Kenny criminal law in Queensland and Western Australia [9th edition.] 9780409339796, 0409339792

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KENNY Criminal Law in Queensland and Western Australia Ninth Edition

John Devereux BA, LLB (Qld), D Phil (Oxon), Grad Dip Mil Law (Melb) Professor of Common Law, TC Beirne School of Law, University of Queensland

Meredith Blake BA, LLB (Hons) (UWA), LLM (Lond), MA (Medical Law and Ethics) (Lond) Associate Professor, Faculty of Law, University of Western Australia

LexisNexis Butterworths

Australia 2016

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National Library of Australia Cataloguing-in-Publication entry Author: Title: Edition: ISBN: Notes: Subjects: Other Authors/Contributors: Dewey Number:

Devereux, J. (John). Kenny criminal law in Queensland and Western Australia. 9th edition. 9780409339796 (pbk). 9780409339802 (ebk). Includes index. Criminal law — Queensland. Criminal law — Western Australia. Blake, Meredith. 345.943

© 2016 Reed International Books Australia Pty Limited trading as LexisNexis. First edition: 1978, J M Herlihy and R G Kenny; second edition: 1984, J M Herlihy and R G Kenny; third edition: 1990, J M Herlihy and R G Kenny; fourth edition: 1997, R G Kenny (reprinted 1998); fifth edition: 2000, R G Kenny; sixth edition: 2004, R G Kenny (reprinted 2005 and 2006); seventh edition: 2008, R G Kenny; eighth edition: 2013, J Devereux and M Blake (reprinted 2014 (twice)). 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 and Palatino. Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Preface Graham Kenny, Jim Herlihy and Kerry Mulqueeny made an indelible impression on a generation of lawyers by instilling a critical understanding of the principles of criminal law. This ninth edition of the formerly titled Herlihy and Kenny attempts to emulate prior editions by presenting students, law teachers and practitioners with an introductory text which is both comprehensive and readable. We thank Serena Cubie, Pamela O’Neill, Daisy Coles and Kim Thomson at LexisNexis Butterworths for their assistance and encouragement. We thank our families for their love, support and understanding. This edition purports to represent the law in Queensland and Western Australia available to us as August 2015. By kind permission of LexisNexis it has been possible to, additionally, include reference to the important High Court decision of Zaburoni. John Devereux Meredith Blake May Day 2016

Table of Cases References are to paragraphs

A A, Re [2001] Fam 147 …. 12.10 A (Children) (Conjoined Twins), Re [2001] Fam 147 …. 8.95 A v Hayden (No 2) (1984) 156 CLR 532; 56 ALR 82 …. 8.151 AAP [2013] 1 Qd R 244 …. 9.23 Abbott (2005) 152 A Crim R 186 …. 16.21 Abernethy (1916) 18 WALR 108 …. 14.54 Ablitt [2009] QCA 45 …. 9.40, 9.41 Acerbi (1983) 11 A Crim R 90 …. 5.78 Adams and Ross [1965] Qd R 255 …. 14.36 Adlem (1999) 20 WAR 419 …. 10.11 Agius [2015] QCA 277 …. 15.65 Ahluwalia [1992] 4 All ER 889 …. 12.81, 13.94 Airedale NHS Trust v Bland [1993] 1 All ER 821 …. 12.9 Aitchison (1996) 90 A Crim R 448 …. 4.20 Alderson v Booth [1969] 2 QB 216 …. 5.21 Aleksovski [1979] WAR 1 …. 12.87, 13.103 Alexanderson (1996) 86 A Crim R 77 …. 9.30 Allen [1937] St R Qd 32 …. 3.31 Alovili [2014] QCA 45 …. 9.20 Amiss (2006) 165 A Crim R 387 …. 3.33 Amman v Wegener (1972) 129 CLR 415; [1972–73] ALR 675 …. 2.13

Ammenhauser [1934] QWN 44 …. 15.126 Amos [1965] QWN 11 …. 13.127 Ancuta [1991] 2 Qd R 413 …. 9.9 Andersen and Basile [1979] WAR 53 …. 8.51 Anderson (1993) 177 CLR 520; 117 ALR 1 …. 6.30 Anderson [2000] 2 Qd R 393 …. 15.98, 15.104 Anderson v Nystrom [1941] St R Qd 56 …. 8.26, 8.82 Anderson and Morris [1966] 2 QB 110 …. 9.17 Angus [2000] QCA 29 …. 15.7, 15.10 Annewetey [1976] Qd R 161 …. 5.38 Archdall and Roskruge; Ex parte Carrigan (1928) 41 CLR 128; [1928] ALR 297 …. 4.17 Aristidis [1999] 2 Qd R 629 …. 14.39, 14.62 Armanasco (1951) 52 WALR 78 …. 8.114 Armstrong (1990) 54 SASR 207 …. 15.58 Arthurs v State of Western Australia [2007] WASC 182 …. 2.1 Arulthilakan (2003) 203 ALR 259; 78 ALJR 257 …. 12.20, 12.22 Ashcroft [1965] Qd R 81 …. 3.31 Ashwell (1885) 16 QBD 190 …. 15.25 Aston (No 3) [1991] 1 Qd R 443 …. 9.23 Astor v Hayes (1988) 38 A Crim R 219 …. 8.31 Atholwood (2000) 110 A Crim R 417 …. 16.21 Attorney-General (Cth) v Tse Chu-Fai (1998) 193 CLR 128; 153 ALR 128 …. 2.27 Attorney-General (NT) v Emmerson (2014) 307 ALR 174; 88 ALJR 522 …. 16.33 Attorney-General (Vic) v Commonwealth (1962) 107 CLR 529; [1962] ALR 673 …. 1.9 Attorney-General’s Reference (No 1 of 1975) [1975] QB 773 …. 9.10,

9.14, 9.24 Attorney-General’s Reference (No 1 of 1977) [1979] WAR 45 …. 8.82, 14.26 Attorney-General’s Reference (No 1 of 1992) (1993) 1 Tas R 349 …. 12.79 Attorney-General’s Reference (No 1 of 1992) (1993) 96 Cr App R 298 …. 11.20, 11.21 Attorney-General’s Reference (No 3 of 1994) [1996] 2 FLR 1 …. 12.14 Attorney-General’s Reference (No 3 of 1994) [1998] 1 Cr App R 91 …. 12.15 Attorney-General’s Reference (No 4 of 1980) [1981] 1 WLR 705 …. 12.45 Attorney-General’s Reference under s 693A Code (WA) (2002) 26 WAR 197 …. 5.76 Attree v Randell (SC(WA), Murray J, Lib No 930397, 19 July 1993, unreported) …. 13.130 Aubertin v State of Western Australia (2006) 33 WAR 87 …. 8.78, 8.81, 14.26 Auckland Area Health Board v Attorney-General [1993] 1 NZLR 235 …. 12.9 Austin (1989) 166 CLR 669; 85 ALR 353 …. 15.109 Australasian Films Ltd (1921) 29 CLR 195 …. 10.20 Aves [1950] 2 All ER 330 …. 15.34 AW [2005] QCA 152 …. 14.32 Ayoub [1984] 2 NSWLR 511 …. 8.102 Azaddin (1999) 109 A Crim R 474 …. 8.66

B B (1958) 44 Cr App R 1 …. 8.140 B (an infant) [1979] Qd R 417 …. 8.140 B (CA(Qld), No 369 of 1997, BC9707526, 6 November 1997,

unreported) …. 8.143 B and A (1979) 69 Cr App R 365 …. 8.142 B and P [1999] 1 Qd R 296 …. 9.8 BG (2005) 152 A Crim R 207 …. 9.8, 9.11 Bacic (1994) 20 MVR 93 …. 13.127, 13.129 Baden-Clay [2015] QCA 265 …. 3.35 Bailey [1924] QWN 38 …. 15.18, 15.20 Bailey [1956] SASR 153 …. 3.36 Bailey (1988) 78 ALR 116; 34 A Crim R 154 …. 3.11, 3.20 Bainbridge [1960] 1 QB 129 …. 9.9 Baker and Ward [1999] Cr App R 335 …. 8.158, 8.161 Baldwin [2014] QCA 186 …. 8.84 Bales v Parmeter (1935) 35 SR (NSW) 182 …. 5.25, 5.28 Ball [1948] St R Qd 212 …. 14.48 Balnaves (2000) 77 SASR 433 …. 15.100 Balogh (1955) 72 WN (NSW) 108 …. 15.48, 15.54 Bank of England v Vagliano Brothers [1891] AC 107 …. 1.21, 1.22, 1.24 Bannah [1989] 1 Qd R 331 …. 15.95, 15.96 Banner [1970] VR 240 …. 5.25 Barbeler [1977] Qd R 80 …. 11.15, 11.17 Barber and Nejdl v State of California (1983, unreported) No A 025586 …. 12.8 Bardsley (2004) 29 WAR 338 …. 3.27, 3.31, 9.6, 9.20, 9.28 Barker [1924] GLR 393 …. 11.23 Barker (1983) 153 CLR 338; 47 ALR 1 …. 15.82 Barlow (1997) 188 CLR 1; 144 ALR 317 …. 1.24, 9.5, 9.21, 9.23, 9.27, 9.29, 9.30, 9.31 Barnard (1837) 7 C & P 784 …. 15.97 Barrell & Wilson (1979) 69 Cr App R 250 …. 5.72

Barrister, Re a (1957) 97 CLR 279; [1957] ALR 620; (1957) 31 ALJR 424 …. 8.109 Barton (1980) 147 CLR 75; 32 ALR 449 …. 5.2, 7.20 Barton v Armstrong [1969] 2 NSWR 451 …. 13.22, 13.23, 13.24, 13.26 Bateman (1925) 19 Cr App Rep 8 …. 1.28, 8.42, 12.38 Battle (1993) 8 WAR 449 …. 8.57, 8.128, 8.130 Bayliss and Cullen (1986) 9 Qld Lawyer Reps 8 …. 12.10 Baytieh v Queensland [2001] 1 Qd R 1 …. 5.66 BBD [2007] 1 Qd R 478 …. 8.43, 12.39, 13.45 Beamish [2005] WASCA 62 …. 3.32 Beard [1920] AC 479 …. 8.132 Beavans (1987) 87 Cr App R 64 …. 15.110 Becerra and Cooper (1976) 62 Cr App R 212 …. 9.35 Beck (1983) 9 A Crim R 168 …. 5.72 Beck [1990] 1 Qd R 30 …. 9.6, 9.8, 9.9, 9.11, 9.13, 9.20, 9.23, 14.6, 14.9 Beckett v New South Wales (2013) 248 CLR 432; 297 ALR 206 …. 5.90 Bedder [1954] 2 All ER 801 …. 12.84 Bedelph [1980] Tas R 23; (1980) 1 A Crim R 445 …. 8.109, 12.84 Bedington [1970] Qd R 353 …. 15.34 Beetham v Tremearne (1905) 2 CLR 582 …. 8.15 Behn (1936) 38 WALR 94 …. 11.38 Belfon [1976] WLR 741 …. 8.36 Bellamy [1981] 2 NSWLR 727 …. 15.32, 15.36 Benbolt (1993) 60 SASR 7 …. 7.18 Bennell v Patterson (1992) 16 MVR 192 …. 15.18, 15.20 Benz (1989) 168 CLR 110; 89 ALR 339 …. 3.42, 3.44 Berg [2015] QCA 196 …. 8.122 Berghofer [1997] 2 Qd R 459; (1997) 91 A Crim R 307 …. 15.132, 15.137 Bergin v Stack (1953) 88 CLR 248; [1953] ALR 805 …. 8.15

Bergstrom (1980) 52 CCC (2d) 407 …. 8.161 Bernhard [1938] 2 All ER 140; [1938] 2 KB 264 …. 8.26, 15.115 BG (2005) A Crim R 152 …. 3.30 Biddle v Dimmock (CCA(Qld), 21 August 1992, No 136 of 1992, unreported) …. 13.30, 13.90 Biess [1967] Qd R 470 …. 12.95 Bingapore (1975) 11 SASR 469 …. 12.29 Birch (1994) 12 WAR 292 …. 4.17, 5.85 Black (1993) 179 CLR 44; 118 ALR 209 …. 5.86 Blaue [1975] 3 All ER 446; [1975] 1 WLR 1411 …. 12.29, 12.32 Bloxham (1943) 29 Cr App R 37 …. 15.8 Bojivic (1999) 113 A Crim R 1 …. 3.37 Bolduc and Bird [1967] SCR 677 …. 14.21 Bolitho v Western Australia (2007) 34 WAR 215 …. 15.101, 15.102 Bollmeyer v Daley [1933] SASR 295 …. 15.44 Bomford v State of Western Australia [2014] WASCA 43 …. 16.35 Bond (2000) 201 CLR 213; 169 ALR 607 …. 1.8 Borg [1972] WAR 194 …. 9.5, 9.8, 9.10, 9.17, 9.31 Boston (1923) 33 CLR 386; 30 ALR 185 …. 11.36 Boughey (1986) 161 CLR 10; 65 ALR 609 …. 12.49, 13.18, 13.19 Bourne [1939] 1 KB 687 …. 12.10 Bourne (1952) 36 Cr App R 125 …. 9.5 Bowden [1957] 3 SA 148 …. 15.134 Bowen (2006) 32 WAR 81 …. 5.35 Bowman [1980] WAR 65 …. 1.24, 15.19 Boxer (1995) 14 WAR 505 …. 3.36 Boyce (1824) 1 Mood CC 29 …. 13.59 Boyce (1976) 15 SASR 40 …. 16.21 Boyd (1984) 12 A Crim R 20 …. 5.78

Boyd v State of Western Australia [2012] WASC 388 …. 2.25 Boyle [1954] 2 QB 292 …. 15.83 Brady v Schatzel [1911] St R Qd 206 …. 13.19, 13.21 Braithwaite [1945] SLT 209 …. 12.94 Bratty v Attorney-General (Northern Ireland) [1963] AC 386 …. 8.56, 8.101, 8.107, 8.109 Brauer [1990] 1 Qd R 332 …. 3.30 Braysich (2011) 243 CLR 434; 276 ALR 451 …. 6.13, 6.24 Brazil v Bielefeld; Ex parte Bielefeld [1964] QWN 5 …. 5.21 Brennan (1936) 55 CLR 253; [1936] ALR 318 …. 1.24, 5.74, 9.6, 9.16, 9.20, 9.21, 9.23 Brewer [1994] 2 NZLR 229 …. 14.17 Brickwood v Phillips (1990) 13 MVR 513 …. 13.127 Briggs (1987) 24 A Crim R 98 …. 5.40, 5.87 Brightwater Care Group (Inc) v Rossiter (2009) 40 WAR 84 …. 12.28, 13.19 Brimblecombe v Duncan [1958] Qd R 8 …. 8.11, 8.76, 8.79, 8.90 Britten v Alpogut [1987] VR 929 …. 11.26 Brogden v Commissioner of the Police Service (2001) 122 A Crim R 394 …. 4.16 Bromage, Re [1991] 1 Qd R 1 …. 8.57, 8.128, 8.132, 8.133 Brombey [1952] QWN 32 …. 14.47 Brooks (1945) 64 NZLR 584 …. 8.140 Broom [1994] 1 NZLR 680 …. 15.9 Brougham (1986) 43 SASR 187 …. 15.70 Brown [1960] AC 432 …. 8.112 Brown [1971] QWN 28 …. 13.126 Brown (1975) 10 SASR 139 …. 14.26 Brown [1985] 2 Qd R 126 …. 3.27

Brown (1986) 43 SASR 33 …. 16.21 Brown (1986) 160 CLR 171; 64 ALR 161 …. 4.17 Brown [1990] 1 Qd R 370 …. 5.86 Brown [1994] 1 AC 212 …. 13.28 Brown (2007) 171 A Crim R 345 …. 9.23 Brown v Deveroux (2008) 192 A Crim R 190 …. 15.103 — v Julius; Ex parte Julius [1959] Qd R 385 …. 6.23 Brown and Morley [1968] SASR 467 …. 8.157 Brownlee (2001) 207 CLR 278; 180 ALR 301 …. 5.85 BRS (1997) 191 CLR 275; 148 ALR 101; 95 A Crim R 400 …. 14.39 Bruce [1965] QWN 48 …. 5.25 Bruce (1987) 74 ALR 219; 61 ALJR 603 …. 6.33, 15.34 Bryant [1984] 2 Qd R 545 …. 14.46, 14.47 Buck [1983] WAR 372; (1982) 8 A Crim R 208 …. 16.13, 16.14, 16.22 Buckmaster [1917] St R Qd 30 …. 13.59 Bugmy (1990) 169 CLR 525; 92 ALR 552 …. 3.44 Bullard [1957] AC 635 …. 6.12 Burdee (1916) 12 Cr App R 153 …. 12.28 Burke (1997) 96 A Crim R 334 …. 15.28 Burton v Davies and General Accident Fire and Life Assurance Corp Ltd [1953] St R Qd 26 …. 13.16 Bush (1993) 69 A Crim R 416 …. 5.83 Butler [2009] QCA 111 …. 3.32 Butler [2013] WASCA 242 …. 8.78, 8.81 Buttigieg (1993) 69 A Crim R 21 …. 6.15, 12.72, 12.73, 12.79, 12.85 Buttle [1984] Tas R 209 …. 10.23, 11.43 Button (2002) 25 WAR 382 …. 3.32, 3.33 Buttsworth (2004) 29 WAR 1 …. 5.85, 5.86 BXJ v State of Western Australia [2010] WASCA 240 …. 3.32

Byrne [1960] 2 QB 396 …. 12.93

C C (a minor) [1996] AC 1; [1995] 2 WLR 383 …. 8.139, 8.140, 8.141, 8.142, 8.143 C (a minor) v Eisenhower [1984] QB 331 …. 13.54 Cahill [1978] 2 NSWLR 453; (1978) 22 ALR 361 …. 11.36 Cain v Doyle (1946) 72 CLR 409; [1946] ALR 490 …. 9.5 Caldwell and Kinross; Ex parte Makin [1987] 2 Qd R 437 …. 4.13 Calhaem [1985] QB 808 …. 9.14, 9.25 Callaghan v R (1952) 87 CLR 115; [1952] ALR 941 …. 8.43, 12.38, 12.56 Callope [1965] Qd R 456 …. 12.68 Cameron [1990] 2 Qd R 264 …. 15.40 Cameron [1990] 2 WAR 1 …. 8.47, 8.57, 8.104, 8.128, 8.134, 8.136 Cameron (2004) 142 A Crim R 424 …. 1.8 Cameron v Holt (1980) 142 CLR 342; 28 ALR 490 …. 8.4, 8.9 Campbell [1933] St R Qd 123 …. 11.37 Campbell [1981] WAR 286 …. 12.19, 13.127, 13.128 Campbell (1991) 93 Cr App R 350 …. 11.19, 11.20, 11.21, 11.22 Camplin [1978] AC 705 …. 12.83 Caratti [1984] WAR 313 …. 15.21 Carden (1992) 8 WAR 296 …. 9.6, 15.98 Carey v Armstrong (1972) 66 QJPR 136 …. 3.10 Carker (No 2) (1967) 2 CCC 190 …. 8.159 Carle [2002] WASCA 71 …. 15.35 Carlton (CCA (Qld), No 42 of 1987, unreported) …. 15.104 Carr-Briant [1943] KB 607 …. 6.8 Carroll (1985) 19 A Crim R 410 …. 7.22 Carroll (2002) 213 CLR 635; 194 ALR 1 …. 7.1, 7.21, 7.22, 7.23

Carter (1994) 12 WAR 310 …. 3.20 Carter (2003) 141 A Crim R 142 …. 12.22, 12.28 Carter v Managing Partner, Mallesons Stephen Jaques (1994) 11 WAR 159 …. 5.75 Carter and Savage [1990] 2 Qd R 371; (1990) 47 A Crim R 55 …. 9.39, 9.40 Carton [1913] QWN 8 …. 10.15 Case Stated by DPP (No 1 of 1993) (1993) 66 A Crim R 259 …. 14.16, 14.38 Casey [1926] SR (NSW) 189 …. 15.35 Castle (1990) 50 A Crim R 391 …. 15.14 Castles [1969] QWN 36 …. 12.14 Catlin [1961] Tas SR 191 …. 11.22 Cavendish [1961] 1 WLR 1083 …. 15.54 Caxton Publishing Co v Sutherland Publishing Co [1939] AC 178 …. 15.7 CBK [2014] QCA 35 …. 6.26 Censori [1983] WAR 89 …. 12.84, 12.87 Challinger [1989] 2 Qd R 352 …. 5.86 Chamberlain (1983) 153 CLR 514; 46 ALR 608 …. 5.58 Chamberlain (No 2) (1984) 153 CLR 521; 51 ALR 225 …. 3.30 Chan [2001] 2 Qd R 662 …. 7.18, 9.14, 9.23, 9.24, 15.60 Chan-Fook [1994] 2 All ER 552; [1994] 1 WLR 689 …. 13.30, 13.52 Chan Kau [1955] AC 206 …. 6.7 Chan Wing-Siu [1985] AC 168; [1984] 3 WLR 677 …. 9.7, 9.20 Chapman [1952] QWN 16 …. 5.83 Charles (2001) 123 A Crim R 253 …. 8.71, 13.53 Cheatle (1993) 177 CLR 541; 116 ALR 1 …. 4.17, 5.85 Chellingworth [1954] QWN 35 …. 11.21

Chester [1982] Qd R 252 …. 8.114, 12.96 Chhay (1994) 72 A Crim R 1 …. 12.79, 12.80, 12.81, 12.82, 13.94 Chia Gee v Martin (1905) 3 CLR 649 …. 7.21 Chidiac (1991) 171 CLR 432; 98 ALR 368 …. 3.30 Chinmaya [2009] QCA 227 …. 16.26 Choveaux v Hunt [1962] Qd R 145 …. 6.23 Christianos v Young [1990] 3 WAR 303 …. 2.13 Christie (1978) 41 CCC (2d) 282 …. 16.21 Christie v Leachinsky [1947] AC 573 …. 5.21, 5.24, 5.28 Christophers (2000) 23 WAR 106 …. 14.5, 14.39 Church [1966] 1 QB 59 …. 12.45 Clare [1994] 2 Qd R 619; (1993) 72 A Crim R 357 …. 8.4, 8.6, 8.8, 8.9, 8.35, 16.13, 16.16, 16.18, 16.19 Clark (2007) 171 A Crim R 532 …. 8.43, 13.60, 12.37 Clark [2014] QCA 99 …. 8.56 Clark v Bailey (1933) 33 SR (NSW) 303 …. 5.25 Clarke [1956] St R Qd 93 …. 15.16 Clarke (2005) 159 A Crim R 281 …. 6.26 Clarke v Calameri (1990) 12 MVR 189 …. 13.127 Clarkson, Carrol and Dodd [1971] 3 All ER 344 …. 9.11 Clayton (2006) 231 ALR 500; 168 A Crim R 174 …. 9.7 Clear [1968] 1 All ER 74 …. 15.113 Cleland (1982) 151 CLR 1; 43 ALR 619 …. 3.31 Clemesha [1978] WAR 193 …. 3.36, 15.22, 15.91, 15.98 Clough v Leahy (1904) 2 CLR 139; 11 ALR 32 …. 8.151 Clouston v Bragg [1949] NZLR 1073 …. 15.9 Clune [1982] VR 1 …. 5.25 Cockrell [2005] 2 Qd R 448 …. 3.36, 5.71 Coco (1994) 179 CLR 427; 120 ALR 415 …. 8.150, 8.151

Cogan [1976] QB 217 …. 9.5, 14.26 Coggins [1873] 12 Cox CC 517 …. 15.60 Cogley [1989] VR 799 …. 11.40 Coleman v Heywood; Ex parte Coleman [1978] Qd R 411 …. 6.23 Collidge v Russo [1984] WAR 1 …. 15.47 Collingridge (1976) 16 SASR 117 …. 11.26 Collins v Wilcock [1984] 1 WLR 1172 …. 13.18 Collister (1955) 39 Cr App R 100 …. 15.109 Conde [2015] QCA 63 …. 13.36 Condo (1992) 62 A Crim R 11 …. 6.26 Condren [1991] 1 Qd R 574 …. 3.32, 3.33, 3.36 Coney (1882) 8 QBD 534 …. 9.11, 13.28 Conley (1982) 30 SASR 226 …. 5.23, 5.24, 5.25 Connell (No 2) (1993) 9 SR (WA) 357 …. 7.26 Connelly [1964] AC 1254 …. 7.20 Connolly (No 2) [1991] 2 Qd R 661 …. 3.36 Connolly and Costello (1909) 3 Cr App R 27 …. 15.97 Conway [1989] QB 290 …. 8.95 Conway (2005) 157 A Crim R 474 …. 13.32 Cook [1927] St R Qd 348 …. 14.47, 14.54 Cook (1980) 2 A Crim R 151 …. 12.30 Cook (2000) 22 WAR 67; 110 A Crim R 117 …. 5.74, 14.31, 14.39 Cooke v Purcell (1988) 14 NSWLR 51 …. 7.1 Cook’s Hotel Pty Ltd v Pope (1983) 34 SASR 292 …. 5.35 Coolwell (1980) 2 A Crim R 85 …. 8.51 Cooper v McKenna [1960] Qd R 406 …. 8.59, 8.60, 8.109 Cooper v Phibbs …. 8.22 Corbett [1903] St R Qd 246 …. 8.130

Corby [1945] St R Qd 186 …. 15.84 Corcoran (2000) 111 A Crim R 126 …. 13.95, 13.96 Cordwell v Lincoln [1914] St R Qd 186 …. 15.8 Corker (2004) 146 A Crim R 33 …. 13.89 Cornish (1988) 48 SASR 520; 6 MVR 419 …. 13.127 Cotchilli v State of Western Australia [2008] WASC 103 …. 5.19 Cotter [1974] 2 QL 265 …. 13.22 Cotter v State of Western Australia [2011] WASCA 202 …. 5.71 Coulburn (1987) 85 Cr App R 309 …. 8.141, 8.142 Court [1989] AC 28 …. 14.45 Courtney v Thomson (2007) 170 A Crim R 233 …. 5.15 Coventry (1938) 59 CLR 633; [1938] ALR 420 …. 13.125, 13.130 Coward (1985) 16 A Crim R 257 …. 5.89 Cox [1986] 2 Qd R 55 …. 15.126 Cox v Coleridge (1822) 1 B & C 37 …. 2.13 Coyne v Dreyer (1991) 13 MVR 540 …. 15.10 Crabbe (1985) 156 CLR 464; 58 ALR 417 …. 15.57 Crampton (2000) 206 CLR 161; 176 ALR 369 …. 14.39 Creamer [1919] 1 KB 564 …. 15.51 Crisafio (2003) 27 WAR 169 …. 14.39 Croft [1944] 1 KB 295 …. 9.35 Croft [1981] 1 NSWLR 126; (1981) 3 A Crim R 307 …. 12.84, 12.86 Crofts (1996) 186 CLR 427; 139 ALR 455 …. 14.29, 14.31, 14.39 Cronau (1980) 3 A Crim R 460 …. 12.50, 12.53, 12.55, 12.56 Crook (2002) 30 SR (WA) 181 …. 5.5 Crossman [2011] 2 Qd R 435 …. 12.49 Croton and Norris (1911) 5 QJPR 219 …. 15.35 Crowe v Bennett; Ex parte Crowe [1993] 1 Qd R 57 …. 4.21

Crozier [1965] Qd R 133 …. 8.136 Cumming (1995) 86 A Crim R 156 …. 16.22, 16.23 Cummings [1948] 1 All ER 551 …. 14.34 Cunliffe [2004] QCA 293 …. 16.20 Curran v Wong Joe [1927] St R Qd 112 …. 7.17 Curtis v de Groot; Ex parte Curtis [1978] Qd R 299 …. 8.90 Cushing (No 2) [1977] WAR 141 …. 15.64 Cutter (1997) 143 ALR 498; 94 A Crim R 152 …. 8.35, 8.135, 8.136, 11.19

D D v C [1982] Qd R 818 …. 5.9, 5.51 Da Costa (1968) 118 CLR 186 …. 8.16 Da Costa [2005] QCA 385 …. 13.54 Dabelstein [1966] Qd R 411 …. 3.34, 8.44, 12.39, 12.56, 12.59 Dale [1969] QWN 30 …. 13.21, 13.25 Dallison v Caffery [1964] 2 All ER 610 …. 5.25 D’Andrea v Woods [1953] 2 All ER 1028 …. 15.52 Danes v Taylor [1965] Qd R 338 …. 5.73 Daniels (1989) 1 WAR 435 …. 8.80 Daniels and Kalatzis [1972] Qd R 323 …. 9.5 Darby (1982) 148 CLR 668; 40 ALR 594 …. 5.74, 9.39, 11.38 D’Arcy (2003) 140 A Crim R 303 …. 5.83 Darkan, Deemal-Hall and McIvor (2006) 227 CLR 373; 228 ALR 334 …. 3.34, 9.23, 9.25 Daugamani-Adamanika (1965–6) P & NG LR 30 …. 15.77 Davern v Messel (1984) 155 CLR 21; 53 ALR 1 …. 7.1 Davidson [1985] 1 Qd R 332 …. 5.35 Davies (1937) 57 CLR 170; [1937] ALR 321 …. 3.30 Davies (2005) 30 WAR 31 …. 16.13

Davis [1989] 1 Qd R 171 …. 15.32, 15.60 Davis [1990] 5 WAR 269 …. 16.21 Davis (1990) 5 WAR 269 …. 8.10 Davis v Gell (1924) 35 CLR 275; (1925) 31 ALR 49 …. 5.90 Dawson (1961) 106 CLR 1; [1962] ALR 365 …. 6.26 Dawson [1961] VR 773 …. 9.41 Day and Simon (1995) 81 A Crim R 60 …. 11.37 De Gruchy (2002) 211 CLR 85; 190 ALR 441; 76 ALJR 1078 …. 6.27, 8.37 De Jesus (1986) 68 ALR 1; 61 ALJR 1 …. 5.72 De la Espriella-Velasco (2006) 31 WAR 291 …. 8.158 De Silva (2007) 176 A Crim R 238; [2007] QCA 301 …. 11.20, 11.22, 11.23 De Simoni (1981) 147 CLR 383; 35 ALR 265 …. 15.66 Dean (1981) 26 SASR 437 …. 5.25 Dearnley [1947] St R Qd 51 …. 8.107, 8.128, 8.133, 15.71 Death of MRG, Re; Ex parte Curtin (1997) 94 A Crim R 88 …. 5.3 Deen [1964] Qd R 569 …. 14.54 Delk (1999) 46 NSWLR 340 …. 15.68 Dellit v Small [1978] Qd R 303 …. 5.21 Demicoli [1971] Qd R 358 …. 6.9 Devine (1986) 25 A Crim R 7 …. 15.97, 15.98 Diamandopoulos (1998) 200 LSJS 477 …. 15.9 Diaz [1982] WAR 60 …. 5.69 Dib (1991) 52 A Crim R 64 …. 16.13 Dick (2006) 161 A Crim R 271 …. 15.70 Dickie [1984] 1 WLR 1031 …. 8.102 Dickson (2010) 241 CLR 491; 270 ALR 1 …. 11.41 Dillon [2015] QCA 155 …. 15.100 Dimozantos (No 2) (1993) 178 CLR 122; 116 ALR 411 …. 3.44, 3.45

Dinsdale (2000) 202 CLR 321; 175 ALR 315 …. 3.37 Director of Public Prosecutions v K [1990] 1 All ER 331; [1990] 1 WLR 1067 …. 13.13 Director of Public Prosecutions v Kent & Sussex Contractors Ltd [1944] KB 146 …. 10.20 Director of Public Prosecutions v Smith [1961] AC 290; [1960] 3 All ER 161 …. 6.35 Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594; 91 ALR 1 …. 6.23 Director of Public Prosecutions for Northern Ireland v Maxwell [1978] 3 All ER 1140 …. 9.9 Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627; 55 ALR 175 …. 3.36 Director of Public Prosecutions Reference (No 1 of 1992) (1993) 9 WAR 281; 65 A Crim R 197 …. 3.23, 14.10 Director of Public Prosecutions Reference No 1 of 1999 (1999) 8 NTLR 148; 128 NRT 1; 105 A Crim R 489 …. 8.26 Director of Public Prosecutions Reference No 1 of 2000 (2001) 11 NTLR 111 …. 10.18 Director of Public Prosecutions Reference (No 1 of 2002), Re (2002) 12 NTLR 176 …. 1.24 District Court of Western Australia Act 1969; Ex parte AttorneyGeneral [1990] 2 WAR 297 …. 5.2, 5.5 Dixon (1885) 2 QLJ 81 …. 15.74 DMC (2002) 137 A Crim R 246 …. 13.18 Dodd [1978] WAR 209 …. 8.136 Dodd (2002) 135 A Crim R 545 …. 5.63 Doggett (2001) 208 CLR 343; 182 ALR 1 …. 14.39 Dolby v Stanta [1996] 1 Qd R 138 …. 15.23 Dolley (2003) 138 A Crim R 346 …. 15.129 Donaldson (2005) 31 WAR 122 …. 3.21, 5.74, 5.75

Doney (1990) 171 CLR 207; 96 ALR 539 …. 2.13, 5.40, 5.87 Donnelly v Rose [1995] 1 Qd R 148 …. 16.24 Donovan [1934] 2 KB 498 …. 13.28 Donovan [1990] WAR 112 …. 8.103 Doueihi, Ex parte [1986] 2 Qd R 352 …. 5.66 Doust v Meyer [2009] WASCA 65 …. 13.76 Dow [1980] Qd R 58 …. 5.69 Doyle [1980] Qd R 308 …. 4.2 Doyle [1988] 2 Qd R 434 …. 7.14 Drage (1989) 9 MVR 540; 44 A Crim R 352 …. 7.30 Drago (1992) 8 WAR 488; 63 A Crim R 59 …. 8.37, 14.45, 14.47 Dribble [2014] QCA 8 …. 7.29 Driscoll (1977) 137 CLR 517; 15 ALR 47 …. 3.34 Dubois [1966] QWN 25 …. 14.36 Duckworth [2016] QCA 30 …. 8.84 Dudley v Ballantyne (1998) 28 MVR 209 …. 8.94, 8.95, 8.97, 8.154, 13.130 Dudley and Stevens (1884) 14 QBD 273 …. 8.95 Duffy [1949] 1 All ER 932 …. 12.89 Duffy [1966] 1 All ER 62 …. 13.105 Duffy [1981] WAR 72 …. 8.51, 8.65 Dunjey v Cross (2002) 36 MVR 170 …. 8.95 Dunn (1986) 32 A Crim R 203 …. 16.19, 16.20 Dunn v Elberg; Ex parte Elberg [1979] Qd R 571 …. 3.16 Dunn and Darby [1984] Crim LR 367 …. 15.44 Duong [2015] QCA 170 …. 8.87 Duong, Lu, Do and Tran (1992) 61 A Crim R 140 …. 9.15 Dutton (1979) 21 SASR 356 …. 12.84 Dwyer and Marsh [1962] Qd R 84 …. 15.14

Dymond [1920] 2 KB 260 …. 15.115 Dyson [1908] 2 KB 454 …. 12.28

E Eagleton (1855) Dears CC 515; (1855) 6 Cox CC 559 …. 11.20 Easton [1994] 1 Qd R 531 …. 15.95 Ebulya [1964] P & NGLR 200 …. 1.17 Edmunds (2004) 144 A Crim R 582 …. 13.104, 13.111 Edwards (1877) 13 Cox CC 384 …. 15.23 Edwards [1956] QWN 16 …. 11.21 Edwards [1973] 1 All ER 152 …. 12.78 Edwards v Ddin [1976] 3 All ER 705 …. 15.29 Ellem (No 2) [1995] 2 Qd R 549; (1994) 75 A Crim R 370 …. 13.69, 13.90, 13.91, 13.93 Ellerman’s Wilson Line Ltd v Webster [1952] 1 Lloyd’s Law Rep 179 …. 15.23 Emelio (2012) 222 A Crim R 566 …. 9.35 EMJ (2001) 27 SR (WA) 265 …. 8.84, 12.22 English (1993) 10 WAR 355 …. 11.15, 11.18, 11.26, 11.40 Enright [1961] VR 663 …. 12.84 Enright [1990] 1 Qd R 563 …. 3.27, 8.102, 8.117, 8.122 Enslow (1992) 62 A Crim R 119 …. 5.78 Environment Protection Authority v Caltex Refining Pty Ltd (1993) 178 CLR 477; 118 ALR 392 …. 10.18, 10.19, 10.20 Epping and Harlow Justices; Ex parte Massaro [1973] QB 433 …. 5.2 Etherton (2005) 30 WAR 65 …. 13.109 Evans [2011] WASCA 182 …. 8.115 Evans v State of Western Australia [2010] WASCA 34 …. 8.113 Evans & Gardiner (No 2) [1976] VR 523 …. 12.32

Evenett [1987] 2 Qd R 753 …. 15.27 Everett and Phillips (1994) 181 CLR 295; 124 ALR 529 …. 3.40 Everingham (1949) 66 WN (NSW) 122 …. 13.21 Eves v State of Western Australia (2008) 49 MVR 259 …. 7.36 Evgeniou [1965] ALR 209; (1964) 37 ALJR 508 …. 5.87, 8.43, 12.56

F F (1996) 40 NSWLR 245; 24 MVR 436 …. 12.14 F (1999) 101 A Crim R 113, [1999] 2 Qd R 157 …. 8.140, 8.141, 8.142 F; Ex parte Attorney-General (Qld) [2004] 1 Qd R 162 …. 9.14 F, Re [1990] 2 AC 1 …. 13.18 Fagan v Metropolitan Police Commissioner [1969] 1 QB 439 …. 13.15 Falconer (1990) 171 CLR 30; 96 ALR 545 …. 8.47, 8.51, 8.57, 8.58, 8.60, 8.61, 8.62, 8.99, 8.102, 8.104, 8.107, 8.110, 8.111, 8.114, 8.128, 8.134 Falkenberg (1973) 13 CCC (2d) 562 …. 8.159 Fallon (1963) 47 Cr App R 160 …. 15.36 Fallon (1981) 28 SASR 394 …. 15.56 Farrah [1997] 1 Qd R 460 …. 8.119 Fawkes v Schadwell [1966] Qd R 20 …. 5.40 Fazio v Castledine (2007) 168 A Crim R 391 …. 8.10 Fehan v Wallin (1985) 32 A Crim R 388 …. 7.17 Fenton (1975) 61 Cr App R 261 …. 12.94 Ferguson [1995] 2 Qd R 490 …. 8.64, 13.18 Ferguson; Ex parte Attorney-General [1991] 1 Qd R 35 …. 5.90, 7.26 Fermanis (2007) 33 WAR 434 …. 15.96 Ferrer-Esis (1991) 55 A Crim R 231 …. 16.19 Festa (2001) 208 CLR 593; 185 ALR 394 …. 3.34 FGC v State of Western Australia (2008) 183 A Crim R 313 …. 14.31, 14.39

Fietkau [1995] 1 Qd R 667 …. 8.148, 8.154 Filippa [2005] 1 Qd R 587 …. 5.59 Filippetti (1978) 13 A Crim R 335 …. 16.13 Firkins (2002) 132 A Crim R 321 …. 5.63 Fisher (1865) LR 1 CCR 7 …. 15.134 Fitzgerald [1980] 4 A Crim R 233 …. 15.7 Fitzgerald (1999) 106 A Crim R 215 …. 8.66 Flanders [1976] Qd R 153 …. 1.9 Flannery and Prendergast [1969] VR 31 …. 14.26 Flattery (1877) 2 QBD 410 …. 14.20 Flood [1956] Tas SR 95 …. 7.23 Fogden v Wade [1945] NZLR 724 …. 13.16, 13.25 Foggo; Ex parte Attorney-General [1989] 2 Qd R 49 …. 3.24 Foley [2003] 2 Qd R 88 …. 5.71 Forsyth v O’Connor (1970) 66 QJPR 38 …. 3.10 Foster (1852) 6 Cox CC 25 …. 15.134 Foster (1982) 6 A Crim R 411 …. 5.89 Foster (1993) 113 ALR 1; 66 A Crim R 112 …. 5.25 Foy [1960] Qd R 225 …. 8.108, 8.114 Francis [1993] 2 Qd R 300 …. 14.14 Fricker (1986) 42 SASR 436; 23 A Crim R 147 …. 12.88 Froggett [1966] 1 QB 152 …. 15.52 Fuge (2001) 123 A Crim R 310 …. 8.23 Fullgrabe (2002) 133 A Crim R 453 …. 5.92

G G (1997) 91 A Crim R 590 …. 14.59 G (1997) 96 A Crim R 162 …. 9.28 GJ Coles & Co Ltd v Goldsworthy [1985] WAR 183 …. 8.76, 8.78, 8.81,

10.18, 10.19, 10.21 Galea (1989) 1 WAR 450 …. 15.77 Gallagher (1986) 160 CLR 392; 65 ALR 207 …. 3.32, 3.33 Gardner (1989) 42 A Crim R 279 …. 12.88 Gardner, Re (1987) 534 A2d 947 …. 12.9 Gardner v Caporn [2005] WASCA 153 …. 13.27 Gardiner (No 1) (1999) 21 SR (WA) 316 …. 8.124 Gardiner (No 2) (1999) 23 SR (WA) 70 …. 8.124 Gardiner (No 3) (2000) SR (WA) 136 …. 8.124 Garth [1949] 1 All ER 773 …. 15.34 Gavin (1992) 6 WAR 195 …. 3.27 Georgiou (2002) 131 A Crim R 150 …. 9.22, 9.32 Geraldton Fishermen’s Co-op Ltd v Munro [1963] WAR 129 …. 6.21, 8.76, 8.90, 10.18 Gesa and Nona; Ex parte Attorney-General [2001] 2 Qd R 72 …. 5.75 Getty v Antrim CC [1950] NI 114 …. 15.134 Ghani v Jones [1970] 1 QB 693 …. 5.28 Giffin [1971] Qd R 12 …. 14.34, 14.37 Gill [1963] 2 All ER 688; [1963] 1 WLR 841 …. 6.14, 8.147 Gillard (2003) 219 CLR 1; 202 ALR 202 …. 9.7 Gilles (2000) 117 A Crim R 339 …. 3.40 Gillespie v The State of Western Australia (2013) 45 WAR 207 …. 15.62 Gilvarry [1991] 2 Qd R 431 …. 3.32, 3.33, 3.36 Giorgianni (1985) 156 CLR 473; 58 ALR 641 …. 9.8, 11.37, 15.57 Gittens [1984] QB 698 …. 12.94 Glebow [2002] QCA 442 …. 8.35 Glennon (1992) 173 CLR 592; 106 ALR 177 …. 3.42 Glennon (1994) 179 CLR 1; 119 ALR 706 …. 3.34 GMB (2002) 130 A Crim R 187 …. 12.94

Go (1990) 73 NTR 1; 102 FLR 299 …. 8.147 Goddard [2014] WASCA 59 …. 11.37 Goldie (2001) 26 SR (WA) 348 …. 2.20, 15.7, 15.8 Gomez [1993] 1 All ER 1 …. 15.22 Goodwyn v State of Western Australia (2013) 45 WAR 328 …. 13.102 Gordon; Ex parte Attorney-General [1975] Qd R 301 …. 7.30, 7.31, 7.33 Gordon v Whybrow [1999] 2 Qd R 362 …. 4.21 Gorman (1991) 56 A Crim R 406 …. 16.13 Gosney [1971] 2 QB 674 …. 13.130 Gough v Braden [1993] 1 Qd R 100 …. 6.23 Gould [1963] 2 All ER 847 …. 13.127 Gould and Barnes [1960] Qd R 283 …. 8.85, 12.48, 12.50 Goulden [1993] 2 Qd R 534 …. 16.32 Gouldham v Sharratt [1966] WAR 129 …. 5.7 Gowlett [1983] 2 Qd R 166 …. 15.38 Graham-Helwig v State of Western Australia (2005) 30 WAR 221 …. 15.101, 15.104 Grain Sorghum Marketing Board v Supastok Pty Ltd; Ex parte Grain Sorghum Marketing Board [1964] Qd R 98 …. 10.18, 10.22 Grakalic (2002) 27 WAR 19 …. 5.72 Grant v Shaw; Ex parte Shaw [1964] QWN 15 …. 13.126 Gray (1998) 98 A Crim R 589 …. 13.89, 13.95 Gray v Smith [1997] 1 Qd R 485; (1996) 87 A Crim R 454 …. 13.86, 13.87 Greatorex (1994) 74 A Crim R 496 …. 16.16 Green (1971) 126 CLR 28; [1972] ALR 524 …. 6.26 Green [1986] 2 Qd R 406 …. 3.37 Green (1997) 191 CLR 334; 148 ALR 659 …. 12.85 Green (1998) 100 A Crim R 539 …. 4.22

Gregory (1867) LR 1 CCR 77 …. 11.43 Griffin (1980) 23 SASR 264 …. 12.84 Griffiths (1994) 125 ALR 545; 69 ALJR 77 …. 8.46 Grinter, Re; Ex parte Hall (2004) 183 FLR 148 …. 2.14 Gudgeon (1995) 133 ALR 379; 83 A Crim R 228 …. 11.37 Guise (1998) 101 A Crim R 143 …. 8.43, 8.46 Gush [1980] 2 NZLR 92 …. 9.23 Guy (2004) 143 A Crim R 428 …. 9.5

H H (2002) 26 WAR 19 …. 5.63 H L Bolton (Engineering) Co Ltd v T J Graham & Sons Ltd [1956] 3 All ER 624 …. 10.19 Haddon v Everitt (2001) 126 A Crim R 418 …. 4.22 Hagarty [2001] QCA 558 …. 13.89 Haggie v Meredith (1993) 9 WAR 206 …. 8.57, 8.128, 8.133 Hakim (1989) 41 A Crim R 372 …. 7.26 Hall [2011] QCA 26 …. 3.30 Hall v Fonceca [1983] WAR 309 …. 13.16, 13.17, 13.63, 13.90, 13.99 Hallett [1969] SASR 141 …. 12.21 Halley (1938) 40 WALR 105 …. 15.77 Hallin [2004] QCA 18 …. 9.32 Halloran and Reynolds [1967] QWN 34 …. 15.74, 15.115 Hally [1962] Qd R 214 …. 15.7 Hamilton (1888) 3 QLJ 78 …. 15.74 Hamilton v Whitehead (1988) 166 CLR 121 …. 10.20 Hancock v Cox (1993) 19 MVR 137 …. 13.130 Hancock v Cox and Hundel (1993) 79 CCC (3d) 97 …. 13.125 Hanson (2003) 142 A Crim R 241 …. 5.58

Hanson (2003) 202 ALR 423; 78 ALJR 157 …. 5.58 Hardy [1924] QWN 26 …. 15.35 Hare (1910) 29 NZLR 641 …. 15.113 Harker (2002) 128 A Crim R 317 …. 5.68 Harkin (1989) 38 A Crim R 296 …. 14.45 Harmer v Grace; Ex parte Harmer [1980] Qd R 395 …. 8.85, 8.90 Harris (1997) 94 A Crim R 454 …. 5.89 Harris (2004) 150 A Crim R 509 …. 5.38 Harry [1974] Cr LR 32 …. 15.113 Hart (2003) 27 WAR 441 …. 12.69, 12.81, 12.87 Hart, Cuzzo and Smith [1980] Qd R 259 …. 11.38 Harvey [1993] 2 Qd R 389 …. 3.31 Hasler [1986] 2 Qd R 411 …. 5.5 Hass (1975) 50 ALJR 400 …. 3.8 Hawken (1986) 27 A Crim R 32 …. 9.41 Hawkins (1994) 179 CLR 500; 122 ALR 27 …. 8.57, 8.61 Hawthorn (Department of Health) v Morcam Pty Ltd (1992) 29 NSWLR 120 …. 8.4 Hay (1925) 19 QJPR 44 …. 15.67 Hay; Ex parte Patane [1981] Qd R 152 …. 7.17 Hayes v Foster (1988) 45 A Crim R 141 …. 10.5 Haynes v Davis [1915] 1 KB 332 …. 7.17 He Kaw Teh (1985) 157 CLR 523; 60 ALR 449 …. 8.1, 8.4, 8.9, 16.19, 16.21 Heath [1991] 2 Qd R 182 …. 8.37 Heaton (2013) 234 A Crim R 409 …. 12.57 Hedges (1909) 3 Cr App R 262 …. 14.34 Heffernan v Ward [1959] Qd R 12 …. 5.38 Hellings [2003] WASCA 208 …. 13.38

Heloise (1917) 19 WALR 84 …. 15.125 Hempenstall [1937] St R Qd 343 …. 15.28 Hennessey [1976] Tas SR (NC) N4 …. 15.10 Hennessy [1989] 2 All ER 9 …. 8.107 Hennigan [1971] 3 All ER 133 …. 13.127 Herbert (1982) 42 ALR 631; 62 FLR 302 …. 8.136 Herlihy [1956] St R Qd 18 …. 12.68 Herpich v Martin [1995] 1 Qd R 359 …. 13.30 Hibbert v McKiernan [1948] 2 KB 142 …. 15.23 Hildebrandt [1964] Qd R 43 …. 2.18 Hill [2015] WASCA 17 …. 8.67 Hillier (2007) 228 CLR 618; 233 ALR 634 …. 3.30 Hind and Harwood (1995) 80 A Crim R 105 …. 9.20, 9.22, 9.23, 12.22, 12.49, 12.54 Hinz [1972] Qd R 272 …. 13.130 Hitchcock v Thorpe (1992) 16 MVR 232 …. 15.18, 15.20 Hitchens [1962] Tas SR 35 …. 8.115 Hoad (1989) 42 A Crim R 312 …. 3.37 Hoar (1981) 148 CLR 32; 37 ALR 357 …. 11.39 Hobart Magalu [1974] PNGLR 188 …. 8.24 Hodges (1985) 19 A Crim R 129 …. 8.108 Hodgetts and Jackson [1990] 1 Qd R 456 …. 8.38, 8.41, 8.43, 8.45, 8.46, 8.64, 8.67, 12.56 Hodgson [1985] Tas R 85 …. 8.129 Hogan v Sawyer; Ex parte Sawyer [1992] 1 Qd R 32 …. 8.20 Hollingsworth v Bean [1970] VR 819 …. 15.45 Holloway [1937] QWN 2 …. 15.68 Hollywood v City of Joondalup (2010) 178 LGERA 252 …. 8.26 Holman [1970] WAR 2 …. 8.135, 14.15

Holman [1997] 1 Qd R 373 …. 6.26 Holmes [1946] AC 588 …. 12.72, 12.82 Holmes [1960] WAR 122 …. 8.108 Holmes (1988) 38 A Crim R 245 …. 1.7 Holmes [1993] 2 Tas R 232 …. 13.28 Hood (2000) 111 A Crim R 556 …. 15.64, 15.66, 15.67 Hooper (1999) 108 A Crim R 108 …. 5.72 Hooper (2000) 116 A Crim R 510 …. 8.64 Hopley [1915] 11 Cr App R 248 …. 8.30 Horne [2009] QCA 336 …. 16.32 Horry [1952] NZLR 111 …. 12.11 Hortin v Rowbottom (1993) 61 SASR 313 …. 5.21 Houghton (2004) 28 WAR 399; 144 A Crim R 343 …. 13.52, 13.61, 13.62, 13.63 House (1936) 55 CLR 499 …. 3.37 Houston v Wittner’s Pty Ltd (1928) 41 CLR 107 …. 10.20 Howe (1958) 100 CLR 448; [1958] ALR 753 …. 13.96, 13.103 Howe (1980) 32 ALR 478; 55 ALJR 5 …. 6.14 Howe [1987] AC 417 …. 8.95, 8.157 Hubert (1993) 67 A Crim R 181 …. 3.27, 8.51, 8.54, 8.64, 8.65, 8.67, 8.73, 8.130, 8.136 Hudson and Taylor [1971] 2 All ER 244 …. 8.160 Hughes [1983] 1 Qd R 92 …. 1.24, 5.57 Hughes v Hi-way Ads Pty Ltd; Ex parte Hughes [1963] Qd R 328 …. 8.21 Hughes v R (1951) 84 CLR 170 …. 12.50 Hull (1989) 41 A Crim R 263 …. 5.4 Hulley v Hill (1993) 69 A Crim 52 …. 5.15 Humes v Townsend [1989] 4 WAR 196 …. 15.24

Humphries [1943] St R Qd 156 …. 12.19 Humphry (2003) 138 A Crim R 417 …. 9.5, 9.14 Humphrys [1977] AC 1 …. 7.20 Hung [2013] 2 Qd R 64 …. 12.49 Hunt v Maloney [1959] Qd R 164 …. 8.11, 8.90, 8.152, 9.1 Hunt v State of Western Australia (No 2) (2008) 37 WAR 530 …. 3.30 Hunter [1988] 1 Qd R 663 …. 12.80 Hunter [2014] WASCA 184 …. 8.30 Hunter v State of Western Australia [2014] WASCA 184 …. 15.101 Hurley and Murray [1967] VR 526 …. 8.157, 8.158, 9.41 Hussie v Williamson; Ex parte Hussie [1955] QWN 48 …. 8.10 Hutchings [2007] 1 Qd R 25 …. 5.86 Hutchinson (2003) 144 A Crim R 28 …. 6.22, 8.89 Hutton [1986] Tas R 24 …. 12.79 Hutton (1991) 56 A Crim R 211 …. 9.14, 9.25 Hutty [1953] VLR 338; [1953] ALR 689 …. 12.14 Hyam [1975] AC 55 …. 8.36, 8.37 Hyde v Mason [2005] 2 Qd R 159 …. 5.37, 5.72 Hyman v French (1990) 46 A Crim R 217 …. 5.87 Hyman and French [1990] 2 WAR 222 …. 3.22

I I (2006) 165 A Crim R 420 …. 5.83 IA Shaw [1996] 1 Qd R 641 …. 14.15, 14.26 Iannella v French (1968) 119 CLR 84; [1968] ALR 385 …. 8.13, 8.16 Ibbs (1987) 163 CLR 447; 74 ALR 1 …. 3.44, 3.45, 14.27 Ibbs [1988] WAR 91 …. 14.15 Ibbs (2001) 122 A Crim R 377 …. 3.36, 14.27 Iby (2005) 63 NSWLR 278; 45 MVR 1 …. 12.14

ICR Haulage Ltd [1944] KB 551 …. 10.20 Ilich (1987) 162 CLR 110; 69 ALR 231 …. 15.7, 15.9, 15.10, 15.22, 15.24, 15.25, 15.26, 15.27 Ilich v Young (2000) 32 MVR 354 …. 8.15 Illingworth (2000) 127 A Crim R 302 …. 6.33, 15.34, 15.55 Ingram [1972] Tas SR 250 …. 8.76 Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140 …. 8.23, 8.24 Investments (WA) Pty Ltd v City of Swan (No 2) (2013) 197 LGERA 197 …. 8.26 Iorlano (1983) 151 CLR 678; 50 ALR 291 …. 5.25 Ireland (1993) 9 SR (WA) 177 …. 5.75 Ireland [1997] 1 FLR 687 …. 13.24 Island Maritime Ltd v Filipowski (2006) 226 CLR 328; 228 ALR 1 …. 7.14, 7.21 Ives [1973] Qd R 128 …. 14.34

J JA (2007) 161 ACTR 1; 174 A Crim R 151 …. 8.139, 8.141 Jackson [1962] WAR 130 …. 4.21 Jackson [1964] Qd R 26 …. 3.36 Jaggard v Dickinson [1980] 3 All ER 716 …. 8.26, 8.80 Jago (1989) 168 CLR 23; 87 ALR 577 …. 5.69, 7.26 Jakac [1961] VR 367 …. 8.36 James (1979) 70 Cr App R 215 …. 13.59 James v Sievwright [2002] WASCA 343 …. 13.111 Jamieson v McKenna (2002) 136 A Crim R 82 …. 8.26 Jayasena [1970] AC 618 …. 6.10 Jeffers (1993) 112 ALR 85; 67 ALJR 288 …. 3.45 Jeffrey (1992) 58 A Crim R 310 …. 6.10

Jeffrey and Daley (2002) 136 A Crim R 7 …. 8.23 Jefferies v Sturcke [1992] 2 Qd R 392 …. 9.11 Jell; Ex parte Attorney-General [1991] 1 Qd R 48 …. 5.90, 7.26 Jemielita (1994) 12 WAR 362 …. 5.63 Jemielita (1995) 81 A Crim R 409 …. 12.20, 12.23 Jenkin [1994] 1 Qd R 266 …. 5.70 Jenvey v Cook (1997) 94 A Crim R 392 …. 16.26, 16.29 Jermyn (1985) 16 A Crim R 269 …. 5.78 Jerome and McMahon [1964] Qd R 595 …. 15.66, 15.68 Jervis [1993] 1 Qd R 643 …. 9.6, 9.17, 9.20, 9.23, 9.29, 9.30, 13.54 Jessen [1997] 2 Qd R 213; (1996) 89 A Crim R 335 …. 15.111, 15.112, 15.113 Jigrose Pty Ltd v Drummond [1994] 1 Qd R 382 …. 15.23 Jiminez (1992) 173 CLR 572; 106 ALR 162 …. 13.125, 13.130, 13.131 John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; 37 ALR 545 …. 5.35 Johns (1980) 143 CLR 108; 28 ALR 155 …. 9.2, 9.7, 9.15, 9.20 Johnson (1911) 6 Cr App R 218 …. 15.54 Johnson [1964] Qd R 1 …. 12.68, 13.91, 13.96, 13.99, 13.103, 13.104 Johnson (1976) 136 CLR 619; 11 ALR 23 …. 12.86 Johnson [1989] 2 All ER 839 …. 12.78 Johnson [2007] 2 Qd R 74 …. 15.96 Johnson and Edwards [1981] Qd R 440 …. 15.116 Johnston [1973] Qd R 303 …. 15.8, 15.10 Jones [1898] 1 QB 119 …. 15.97 Jones (1977) 65 Cr App R 250 …. 9.11 Jones [1978] 3 All ER 1098 …. 5.28 Jones (1997) 143 ALR 52; 71 ALJR 538 …. 14.29 Jones (1997) 191 CLR 439; 149 ALR 598 …. 3.30

Jordan (1956) 40 Cr App R 152 …. 12.32 Jorgensen (1955) 3 Can Crim Cas 30 …. 15.131 Judge Grant-Taylor; Ex parte Johnson [1980] Qd R 387 …. 5.4 Judge of District Courts and Shelley; Ex parte Attorney-General [1991] 1 Qd R 170 …. 5.83 Judkins [1979] Qd R 527 …. 15.39, 15.40 Julian (1998) 100 A Crim R 430 …. 13.95 Junus (2002) 28 SR (WA) 192 …. 10.4 Justices at Cloncurry; Ex parte Ryan [1978] Qd R 213 …. 5.38

K K (1999) 107 A Crim R 195 …. 14.31 K; Ex parte Attorney-General (Qld) (2002) A Crim R 108 …. 5.93 K and B [1997] 1 Cr App R 36 …. 8.140, 9.5 Kaeser [1961] QWN 11 …. 8.135, 15.41 Kaighin (1990) 1 WAR 390 …. 3.36, 13.126, 13.130 Kainhofer (1995) 185 CLR 528; 132 ALR 483 …. 2.27 Kaitamaki [1985] 1 AC 147 …. 14.27 Kake [1960] NZLR 595 …. 14.23 Kamara [1974] AC 104 …. 11.35 Kamarooka Gold Mining Co NL v Kerr (1908) 6 CLR 255 …. 3.8 Kaminski [1975] WAR 143 …. 8.135 Kaporonowski [1972] Qd R 465 …. 3.25, 13.61 Kaporonovski v R (1973) 133 CLR 209; 1 ALR 296; 47 ALJR 472 …. 8.50, 8.51, 8.64, 8.65, 8.66, 8.67, 12.48, 12.68, 12.68, 13.71 KBT (1997) 191 CLR 417; 149 ALR 693 …. 3.34, 14.73 Keenan (2009) 236 CLR 397; 252 ALR 198 …. 9.15, 9.20, 9.23, 9.30 Keene v Carter (1994) 12 WAR 20 …. 15.23 Kehoe v Dacol Motors Pty Ltd; Ex parte Dacol Motors Pty Ltd [1972]

Qd R 59 …. 10.22 Keith [1934] St R Qd 155 …. 13.93 Kelleher (1974) 131 CLR 534; 4 ALR 450 …. 14.48 Kemp (1951) 83 CLR 341; [1951] ALR 659 …. 3.31, 7.23 Kemp [1957] 1 QB 399 …. 8.107, 8.108 Kemp [1968] Crim LR 33 …. 9.41 Kendal and Clince [1984] WAR 150 …. 13.58, 13.61 Kendrick [1933] QWN 21 …. 15.110 Kennedy (2000) 118 A Crim R 34 …. 5.71 Kenney [1983] 2 VR 470 …. 12.88 Kenniff [1903] St R Qd 17 …. 9.11 Kennison v Daire (1986) 160 CLR 129; 64 ALR 17 …. 15.27 Kerr [1976] 1 NZLR 335 …. 13.99 Keskic [1979] Qd R 348 …. 3.25 Khallouf [1981] VR 360 …. 8.122 Khoo v State of Western Australia [2011] WASCA 75 …. 15.103 Kidman (1915) 20 CLR 425; 21 ALR 405 …. 1.6 Kilbourne [1973] AC 729 …. 14.39 Kilby (1973) 129 CLR 460; 1 ALR 283 …. 14.29, 14.31, 14.34 Killick (1980) 24 SASR 137 …. 5.72 Kim (1993) 65 A Crim R 278 …. 3.22 Kimlin v Wilson; Ex parte Kimlin [1966] Qd R 237 …. 15.141 Kimmins [1980] Qd R 524 …. 4.21 Kimmorley v Atherton; Ex parte Atherton [1971] Qd R 117 …. 13.18 Kinash [1982] Qd R 648 …. 12.8, 12.30 King (2003) 139 A Crim R 132 …. 13.52 King (2003) 215 CLR 150; 199 ALR 568 …. 15.82 King v Armstrong; Ex parte King [1985] 2 Qd R 178; (1985) 20 A Crim R 197 …. 5.40, 5.87

King v Lees (1948) 65 TLR 21 …. 15.134 Kingdon v State of Western Australia (2012) 223 A Crim R 449; [2012] WASCA 74 …. 15.13, 15.21 Kingston [1994] 3 All ER 353 …. 8.130 Kirkby [2000] 2 Qd R 57; (1998) 105 A Crim R 323 …. 9.5, 9.24, 9.39 Kirkpatrick v Tully [1991] 2 Qd R 291 …. 13.28, 13.90 Kiripatea [1991] 2 Qd R 686 …. 7.33 Kissier (1982) 7 A Crim R 171 …. 8.51, 8.64, 8.66 Kitson (1987) 5 MVR 228 …. 13.125, 13.130 Knight (1988) 35 A Crim R 314 …. 13.24 Knight (1992) 175 CLR 495; 109 ALR 225 …. 11.19 Knuller [1972] 2 All ER 898 …. 11.35 Knutsen [1963] Qd R 157 …. 8.51, 13.60, 13.61 Koiyari-Iyeva [1965–6] PNGLR 284 …. 8.122 Koowarta v Bjelke-Petersen (1982) 153 CLR 168; 39 ALR 417 …. 3.12 Kosteska v Phillips; Kosteska v Commissioner of Police [2011] QCA 266 …. 16.20 Koushappis (2007) 168 A Crim R 51 …. 3.34 Krakouer (1998) 194 CLR 202; 155 ALR 586 …. 16.21, 16.35 Krakouer v State of Western Australia (2006) 161 A Crim R 347 …. 12.20, 12.22, 12.24, 12.25, 12.28, 13.60 Kranz (1991) 53 A Crim R 331 …. 5.74 Krausky [1990] 2 Qd R 177 …. 1.24 Kron (1995) 78 A Crim R 474 …. 6.28 Kuczynski [1990] 2 WAR 316 …. 13.58, 13.60 Kupferberg (1918) 13 Cr App Rep 166 …. 9.10 Kural (1987) 162 CLR 502; 70 ALR 658; 29 A Crim R 12 …. 16.16, 16.19 Kusu [1981] Qd R 136 …. 8.128, 8.134, 12.94, 13.16

L La Fontaine (1976) 136 CLR 62; 11 ALR 507 …. 6.27 Labaj v Brown [2005] QCA 54 …. 7.27 Lacaze (1981) 3 A Crim R 233 …. 5.92 Lacey [1953] NZLR 431 …. 15.71 Lacey v Attorney-General (Qld) (2011) 242 CLR 573; 275 ALR 646 …. 3.40 Lai [1990] WAR 151; (1989) 42 A Crim R 460 …. 16.13 Lam (1998) 100 A Crim R 188 …. 3.11, 3.22, 5.90 Lamb [1984] 2 Qd R 404 …. 16.1 Lamb v Clewes (1989) 10 MVR 465 …. 13.130 Lambassi [1927] VR 349 …. 15.98 Lancashire and Yorkshire Railway v MacNicoll (1918) 88 LJKB 601 …. 15.7 Lancaster [1989] WAR 83 …. 5.72 Lane v Morrison (2009) 239 CLR 230; 258 ALR 404 …. 1.10 Langham (1984) 36 SASR 48 …. 8.26 Langridge (1996) 17 WAR 346 …. 6.30 Langridge v Fox (SC(WA), Pidgeon J, BC03781, 5 August 1997, unreported) …. 13.76 Lapier (1784) 168 ER 263; 1 Leach 320 …. 15.8 Larner v Dorrington (1993) 19 MVR 75 …. 8.94, 8.96, 8.97, 13.130 Larson v GJ Coles & Co Ltd; Ex parte GJ Coles & Co Ltd (1984) 13 A Crim R 109 …. 8.51, 8.78, 8.83 Larson and Lee [1984] VR 559 …. 5.25 Latoudis v Casey (1990) 170 CLR 534; 97 ALR 45 …. 4.21 Lauchlan (1999) 103 A Crim R 594 …. 8.26 Laurens v Willers (2002) 131 A Crim R 281 …. 5.40, 15.32, 15.34 Lavallee (1990) 55 CCC (3d) 97 …. 13.94

Lavelle (1995) 82 A Crim R 187 …. 2.27 Lawler v Prideaux [1995] 1 Qd R 186; (1993) 70 A Crim R 145 …. 16.13, 16.26, 16.29 Lawlor [1931] QWN 14 …. 15.35 Lawrence [1980] 1 NSWLR 122 …. 8.157 Lawrie [1986] 2 Qd R 502 …. 13.89, 13.91, 13.104 Le Brun [1991] 4 All ER 673 …. 12.45 Leak [1969] SASR 172 …. 3.36 Leaman [1986] Tas R 223 …. 9.41, 9.42 Lean (1989) 1 WAR 348; 42 A Crim R 149 …. 13.65, 13.97, 13.104 Leane [1903] QWN 53 …. 15.8 Leavitt [1985] 1 Qd R 343 …. 11.15 Lee (1950) 82 CLR 133; [1950] ALR 517 …. 3.42, 3.44 Lee [1990] 1 WAR 411 …. 11.26 Lee Chun Chuen [1963] 1 All ER 73 …. 12.70 Lees v Visser (2000) 9 Tas R 103; 109 A Crim R 382 …. 13.21, 13.22, 13.23 Leeson (1968) 52 Cr App Rep 185 …. 14.47 Legge [2014] WASCA 47 …. 13.60 Lehrain, Re (1975) 6 ALR 301; 24 FLR 407 …. 8.12 Leith [2000] 1 Qd R 660 …. 3.27 Leivers and Ballinger (1998) 101 A Crim R 175 …. 2.20 Lenard (1992) 57 SASR 164 …. 8.31 Lennard’s Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705 …. 10.20 Lergesner v Carroll [1991] 1 Qd R 206 …. 8.76, 8.79, 13.28, 13.29, 13.30 Lesbini [1914] 3 KB 1116 …. 12.84 Leslie [1989] 2 Qd R 378 …. 5.73 Leucus (1995) 78 A Crim R 40 …. 3.40

Leutich v Walton [1960] WAR 109 …. 5.28 Levy [1912] 1 KB 158 …. 9.41 Levy (1948) 51 WALR 29 …. 12.31 Lewis (1990) 48 A Crim R 218 …. 3.24 Lewis (1998) 20 WAR 1 …. 15.102 Lewis (2006) 163 A Crim R 169 …. 3.20, 3.27 Lewis v Crafter [1942] SASR 30 …. 10.20 Li Wan Quai v Christie (1906) 3 CLR 1125 …. 7.21 Liberato (1985) 159 CLR 507; 61 ALR 623 …. 3.44 Liddel [1922] QWN 10 …. 15.68 Lim v Gregson [1989] WAR 1 …. 5.63 Lim Chin Aik [1963] AC 160 …. 8.13 Limbo v Little (1989) 65 NTR 19; 98 FLR 421 …. 8.95, 8.98 Lindley (2003) 31 SR (WA) 265 …. 8.124 Linekar [1995] QB 250 …. 14.20 LK (2010) 241 CLR 177; 266 ALR 399 …. 11.30, 11.37, 11.38 Lloyd [1967] 1 QB 175 …. 12.95 Lobban [1981] Qd R 431 …. 4.2 Lobell [1957] 1 QB 547 …. 6.12 Lobston [1983] 2 Qd R 720 …. 13.53 Lock (1994) 12 SR (WA) 111 …. 7.26 Lock [2002] 1 Qd R 512 …. 5.92, 8.114, 12.93 Lockett [1914] 2 KB 720 …. 15.60 Lockwood; Ex parte Attorney-General [1981] Qd R 209 …. 8.36, 15.129, 15.130 Loewenthal (1974) 131 CLR 338; 4 ALR 293 …. 1.9 London and Globe Finance Corp Ltd, Re [1903] 1 Ch 728 …. 15.101 Longman (1989) 168 CLR 79; 89 ALR 161 …. 14.38, s 14.39 Lopuszynski [1971] QWN 33 …. 9.5

Loubie, Re [1986] 1 Qd R 272 …. 5.61 Loughnan [1981] VR 443 …. 8.95 Loveday v Ayre [1955] St R Qd 264 …. 6.21, 8.15, 8.76, 8.79 Lovelady; Ex parte Attorney- General [1982] WAR 65 …. 1.15 Lovell [2015] QCA 136 …. 13.52 Lovell; Ex parte Attorney-General (Qld) [2015] QCA 136 …. 3.23 Lowe (1984) 154 CLR 606; 54 ALR 193 …. 3.37, 3.44 Lowrie [1998] 2 Qd R 579; (1997) 100 A Crim R 1 …. 9.5 Lowrie and Ross [2000] 2 Qd R 529 …. 9.8, 12.22 Lun (1932) 32 SR (NSW) 363 …. 9.5 Lynch v DPP for Northern Ireland [1975] AC 653; [1975] 1 All ER 913 …. 8.157, 9.9

M M (1994) 181 CLR 487; 126 ALR 325 …. 3.29, 3.30, 14.31, 14.35 M (2000) 109 A Crim R 530 …. 14.29, 14.34 M (a minor) (1977) 16 SASR 589 …. 8.141 M v JMP and RP (1999) 108 A Crim R 129 …. 5.7 Mabo (1992) 175 CLR 1; 107 ALR 1 …. 1.4 Macartney (2006) 31 WAR 416 …. 12.48, 12.49, 12.51 MacDonald [1983] 1 NSWLR 729 …. 15.23 MacDonald and MacDonald [1904] St R Qd 151 …. 8.38, 8.41, 12.39, 12.57 Macecek [1960] Qd R 247 …. 5.25 Mack [2014] WASCA 207 …. 8.125 Mackay (1977) 136 CLR 465; 15 ALR 541 …. 3.31, 5.73 Mackay [2011] QCA 28 …. 3.32 Mackenzie (2004) 150 A Crim R 451 …. 5.22 Mackinlay v Wiley [1971] WAR 3 …. 8.166

Macleod (2003) 214 CLR 230; 197 ALR 333 …. 8.22, 8.26, 15.100, 15.102 MacPherson v Beath (1975) 12 SASR 174 …. 13.22, 13.23 — v Brown (1975) 12 SASR 184 …. 13.22 Macri (2005) 158 A Crim R 90 …. 3.37 Madsen v Western Interstate Pty Ltd [1963] Qd R 434 …. 6.23 Maher (1987) 163 CLR 221; 72 ALR 351 …. 5.71 Maher, Re [1986] 1 Qd R 303 …. 5.58 Maher v State of Western Australia [2010] WASCA 156 …. 13.74 Mai and Tran (1992) 26 NSWLR 371 …. 11.26 Maines v Roy (1990) 1 WAR 508 …. 5.19, 5.24 Majewski [1976] 2 All ER 142 …. 13.16 Majok (2005) 152 A Crim R 25 …. 15.69 Maki (1970) 1 CCC (2d) 333 …. 13.28 Malcherek [1981] 1 WLR 690 …. 12.8, 12.30 Mallan v Lee (1949) 80 CLR 198 …. 10.20 Mallard (2005) 224 CLR 125; 222 ALR 236 …. 3.32, 3.36 Maloney [2001] 2 Qd R 678 …. 8.126 Mamote-Kulang (1964) 111 CLR 62; [1964] ALR 1046 …. 8.48, 8.64, 8.65, 8.67, 8.68, 8.69, 12.40, 12.62 Mancini [1942] AC 1 …. 6.4, 12.84, 12.86 Mancini v Ward (1997) 93 A Crim R 456 …. 4.21 Manisco (1995) 14 WAR 303 …. 16.36 Marchese (2006) 163 A Crim R 363 …. 3.37 Marchesi (2005) 30 WAR 359 …. 2.18, 11.37 Maric (1978) 20 ALR 513; 52 ALJR 631 …. 3.31 Markarian [2001] WASCA 393 …. 15.102, 15.104 Markby (1978) 140 CLR 108; 21 ALR 448 …. 9.17, 9.23, 9.28, 9.31 Marker (2002) 135 A Crim R 55 …. 3.5, 16.21 Maroney [2002] 1 Qd R 285 …. 9.14

Maroney (2003) 216 CLR 31; 202 ALR 405 …. 9.14, 16.36 Marsh, Ex parte [1966] Qd R 357 …. 5.7 Marshall, Coombes and Eren [1998] 2 Cr App R 282 …. 15.18 Martens v Commonwealth (2009) 174 FCR 114; 253 ALR 457 …. 3.1 Martin [1963] Tas SR 103 …. 6.10, 6.21, 8.54, 8.74, 8.76 Martin [1989] 1 All ER 652 …. 8.95, 8.97 Martin (No 2) (1996) 86 A Crim R 133 …. 12.15, 12.16 Martinez (2006) 159 A Crim R 380 …. 5.79 Martyr [1962] Qd R 398 …. 8.64, 8.67, 8.68, 8.69, 12.28, 12.60, 12.61, 12.62 Marwey (1977) 138 CLR 630; 18 ALR 77 …. 13.95, 13.104 Masciantonio (1995) 183 CLR 58; 129 ALR 575 …. 12.80, 12.82, 12.83, 12.84, 12.85 Mason (1995) 15 WAR 165 …. 9.4, 9.28 Mason (2005) 30 WAR 205 …. 3.36, 13.91 Masters [1987] 2 Qd R 272; (1986) 24 A Crim R 65 …. 13.93, 13.97 Mastrangelo v Reynolds (2001) 25 WAR 133 …. 4.22 Mathews (2001) 24 WAR 438; 123 A Crim R 137 …. 3.36, 15.100, 15.101, 5.104 Matthews [1950] 1 All ER 137 …. 15.55 Matusevich (1977) 137 CLR 633; 15 ALR 117 …. 9.5 Maund (1866) 3 WW & A’B (L) 96 …. 15.134 Maurantonio (1967) 65 DLR (2d) 674 …. 14.21 Maxwell (1996) 184 CLR 501; 135 ALR 1 …. 5.78 May v O’Sullivan (1955) 92 CLR 654; [1955] ALR 671 …. 2.13, 5.40, 5.87, 6.18 Mayberry [1973] Qd R 211 …. 9.10, 14.27, 14.29 Mayne (1975) 11 SASR 583 …. 13.127 McAuliffe (1995) 183 CLR 108; 130 ALR 26; 69 ALJR 621 …. 9.7, 12.22,

12.27, 13.60 McAvaney v Quigley (1992) 58 A Crim R 457 …. 13.28 McBride (1966) 115 CLR 44 …. 13.125, 13.126 McCafferty [1974] 1 NSWLR 89 …. 8.157 McCaffrey [1911] VR 92 …. 15.35 McCallum [1969] Tas SR 73 …. 8.45 McCarthy [1985] WAR 84 …. 15.36 McCarthy v Xiong (1993) 2 Tas R 290 …. 3.12 McCauley [2009] QDC 298 …. 13.77 McClymont; Ex parte Attorney-General [1987] 2 Qd R 442 …. 15.125, 15.127 McConnell (1993) 69 A Crim R 39 …. 15.57, 15.58 McCoy [1938] St R Qd 249 …. 15.14 McCullough [1982] Tas R 43 …. 13.103 McCullogh v Otto (1996) 90 A Crim R 492 …. 3.12 McDavitt v McDavitt [2013] WADC 22 …. 13.77 McDiven v Paull (1990) 12 MVR 225 …. 13.127 McDonald (1992) 85 NTR 1; 63 A Crim R 376 …. 3.11, 3.20 McDonald [1992] 2 Qd R 634 …. 15.10 McDowell [1954] QWN 47 …. 5.63 McGhee (1995) 183 CLR 82; 130 ALR 142 …. 11.19, 12.82 McGregor [2009] QCA 308 …. 16.27 McHenry v Boardman [1981] WAR 356 …. 5.35 — v Stewart (SC(WA), 14 December 1976, unreported) …. 8.96 McIntosh [1923] St R Qd 278 …. 3.37 McIver (1928) 22 QJPR 173 …. 13.16 McKechnie v Connell (1992) 8 WAR 329 …. 3.36 McKenzie (2000) 113 A Crim R 534 …. 13.91, 13.94 McKiernan [2003] 2 Qd R 424 …. 15.14

McKinnon [1907] St R Qd 123 …. 15.8 McKinnon [1980] 2 NZLR 31 …. 12.21, 12.45 McKnoulty (1995) 77 A Crim R 333 …. 3.30 McLoughlin [1935] QWN 29 …. 15.76 McLuckie v Williams (1995) 22 MVR 265; 82 A Crim R 118 …. 8.83, 8.85 McNamara [1954] VLR 137 …. 13.21 McNamara [2015] QCA 99 …. 8.93 McPherson v Cairn [1977] WAR 28 …. 8.76, 8.90 Meade [2010] QCA 370 …. 15.67 Medcalf v Fisher (1985) 3 MVR 101 …. 13.124 Mehemet Ali (1957) 59 WALR 28 …. 12.79 Mei Ying Su v Australian Fisheries Management Authority (No 2) (2008) 251 ALR 135; 189 A Crim R 23 …. 8.19 Melano [1995] 2 Qd R 186 …. 3.37, 3.40 Mellifont v Attorney-General (Qld) (1991) 173 CLR 289; 104 ALR 89 …. 1.24, 3.24 Melrose [1989] 1 Qd R 572 …. 3.34 Melville (2003) 142 A Crim R 38 …. 2.8 Menniti [1985] 1 Qd R 520 …. 6.10, 9.14, 9.24, 9.33, 9.34, 9.35 Mercanti v Western Australia [2005] WASC 28 …. 9.41 Merembu-Bongab [1971–1972] PNGLR 433 …. 14.23 Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 …. 10.22 Mews [1989] WAR 38 …. 15.21 MFA (2002) 213 CLR 606; 193 ALR 184 …. 3.30 Michael (1840) 19 Car & P 306; 173 ER 867 …. 9.5 Michael v Musk (2004) 148 A Crim R 140 …. 2.11, 3.9, 3.11, 5.38 — v State of Western Australia (2008) 183 A Crim R 348 …. 14.18,

14.22, 14.25 Michaels (1993) 70 A Crim R 78 …. 5.25 Michaux [1984] 2 Qd R 159 …. 12.96 Mickelberg (1989) 167 CLR 259; 86 ALR 321 …. 3.30, 3.32, 3.33 Middap (1992) 63 A Crim R 434 …. 9.41 Middleton (1873) LR 2 CCR 38 …. 15.25 Miers [1985] 2 Qd R 138 …. 12.91, 12.94 Mihic (2006) 43 SR (WA) 374 …. 5.72 Milenkovski v State of Western Australia (2011) 42 WAR 99 …. 5.63 Miles (1997) 17 WAR 518 …. 15.69 Mill v Scott; Ex parte Mill (1955) St R Qd 210 …. 3.12 Millar [2000] 1 Qd R 437 …. 8.79, 14.14, 14.26 Miller [1954] 2 QB 282 …. 13.52 Miller [1975] WLR 1222 …. 13.130 Miller (1980) 25 SASR 170 …. 5.25 Miller (1980) 32 ALR 321; 55 ALJR 23 …. 9.5, 9.7, 9.20 Miller [1990] 2 Qd R 566 …. 5.77 Miller [2009] 2 Qd R 86 …. 12.64 Miller v Miller (2011) 242 CLR 446; 275 ALR 611 …. 9.33 Milloy [1993] 1 Qd R 298 …. 8.58, 8.104, 8.107 Minniti (2001) 120 A Crim R 531 …. 13.95 M’Loughlin (1838) 8 C & P 635 …. 13.54 M’Naghten (1843) 10 Cl & Fin 200; 8 ER 718 …. 8.99, 8.112, 8.116 Mobilio [1991] 1 VR 339 …. 14.21, 14.22 Moffa (1977) 138 CLR 601; 13 ALR 225 …. 12.86 Mogg (2000) 112 A Crim R 417 …. 12.83 Molina v Zaknich (2001) 24 WAR 562 …. 8.23, 8.24 Monk [1970] QJPR 1 …. 8.12

Monteforte [2015] QCA 3 …. 3.13 Moodie (1952) 54 WALR 80 …. 15.35 Moore (1908) 10 WALR 64 …. 8.112 Moore (1994) 11 SR (WA) 74 …. 7.30 Moors [1994] 2 Qd R 315 …. 3.12 Moors v Burke (1919) 26 CLR 265 …. 16.14 Morex Meat Australia Pty Ltd [1996] 1 Qd R 418; (1995) 78 A Crim R 269 …. 3.23 Morgan [1976] AC 182 …. 14.26 Morgan; Ex parte Attorney-General [1987] 2 Qd R 627 …. 12.96 Morris (1987) 163 CLR 454; 74 ALR 161 …. 3.30, 3.42, 3.43, 3.44 Morris (2006) 201 FLR 325 …. 8.167 Morriss [1986] 2 Qd R 429 …. 13.135 Moss v Brown [1979] 1 NSWLR 114 …. 5.2 Most (1881) 7 QBD 244 …. 11.43 Moylan (2007) 169 A Crim R 302 …. 8.78, 15.96 Moxham (2000) 112 A Crim R 142 …. 5.77 Mrzljak [2005] 1 Qd R 308 …. 8.81, 14.26 Mujunen [1994] 2 Qd R 647 …. 15.27 Mullen (1938) 59 CLR 124; [1938] ALR 129 …. 6.18 Mullen [1938] St R Qd 97 …. 1.23 Mullins (1994) 13 WAR 288 …. 15.14 Mumbray [1938] QWN 31 …. 15.28 Munday v Gill (1930) 44 CLR 38; [1930] ALR 313 …. 4.1 Mungatopi (1991) 2 NTLR 1 …. 12.84 Muratovic [1967] Qd R 15 …. 13.84, 13.88, 13.93, 13.95, 13.97, 13.99 Murphy [1969] NZLR 959 …. 11.19 Murphy (1985) 158 CLR 596; 61 ALR 139 …. 5.87, 11.13 Murphy (1989) 167 CLR 94; 86 ALR 35 …. 5.83

Murphy v Porter (1984) 12 A Crim R 38 …. 15.54 Murray [1962] Tas SR 170 …. 9.20, 9.24 Murray (1986) 4 MVR 331 …. 13.126 Murray (2002) 211 CLR 193; 189 ALR 40; 76 ALJR 899 …. 6.18, 8.46, 8.51, 8.64 Murray v McMurchy [1949] 2 DLR 442 …. 13.19 Muscat v Douglas (2006) 32 WAR 49 …. 5.40, 5.87 Myles [1997] 1 Qd R 199; (1995) 83 A Crim R 519 …. 16.19

N Naismith [1961] 2 All ER 735 …. 13.52 Nakayama [1912] St R Qd 287 …. 13.76 Narkle v State of Western Australia [2011] WASCA 160 …. 14.31, 14.38 National Coal Board v Gamble [1959] 1 QB 11 …. 9.9 Neal (1982) 149 CLR 305; 42 ALR 609 …. 3.37, 3.44, 3.45 Neilan [1992] 1 VR 57; (1991) 52 A Crim R 303 …. 6.26 Neilsen and Neilsen (2001) 121 A Crim R 239 …. 8.39 Nelson [1987] WAR 57 …. 15.97, 15.104 Nelson v Haynes (2003) 27 WAR 154 …. 3.27 Newell (1980) 71 Cr App R 331 …. 12.84 NG [2007] 1 Qd R 37 …. 7.27 Nguyen [1995] 2 Qd R 285 …. 16.18, 16.19, 16.26 Nicholas [1989] Tas R (NC) N24; (1989) 45 A Crim R 299 …. 7.14 Nichols, Johnson and Aitcheson [1958] QWN Case 29 …. 12.50 Nicholl (1862) 1 SCRQ 42 …. 5.52 Nichols, Johnson and Aitcheson [1958] Qd R 200 …. 9.25 Nicholson (1994) 14 Tas R 351; 76 A Crim R 187 …. 11.22 Nickisson [1963] WAR 114 …. 3.34 Nicolakis, Nicolakis and Franich (1988) 32 A Crim R 451 …. 9.28

Nielsen [1990] 2 Qd R 578 …. 8.57, 8.114, 8.128, 12.94, 12.95, 12.96 Noble (1994) 70 A Crim R 560 …. 8.31 Nock [1978] 2 All ER 654 …. 11.37 Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146 …. 10.20 Norton (No 2) (2001) 24 WAR 488; 122 A Crim R 104 …. 5.25 Nosworthy (1907) 26 NZLR 536 …. 15.56 Noyes [2005] 1 Qd R 169 …. 5.5 Nudd (2006) 225 ALR 161; 162 A Crim R 301 …. 3.31, 3.34 Nundah (1916) 16 SR (NSW) 482 …. 8.74 Nydam v R [1977] VR 430 …. 12.38

O O (2003) 139 A Crim R 432 …. 3.36, 5.38 Oberbillig [1989] 1 Qd R 342 …. 9.14, 9.25 O’Brien [1981] WAR 305; (1981) 35 ALR 473 …. 1.9, 1.10, 15.15, 15.16 O’Brien v Reitze [1972] WAR 152 …. 15.56 O’Connell [1912] QWN 36 …. 11.37 O’Connor (1980) 146 CLR 64; 29 ALR 449 …. 8.134 O’Driscoll (2003) 141 A Crim R 368 …. 5.88 O’Halloran v O’Byrne [1974] WAR 45 …. 7.18 O’Leary v Matthews (1979) 28 ALR 97; 42 FLR 114 …. 6.23 Ollerton (1989) 40 A Crim R 133 …. 15.56, 15.58 Olney [1996] 1 Qd R 187 …. 1.27, 1.28 Olsen v Grain Sorghum Marketing Board; Ex parte Olsen [1962] Qd R 580 …. 8.22, 8.24 Olugboja [1981] 3 WLR 585 …. 14.15 Omodei (2006) 166 A Crim R 40 …. 8.38, 8.43, 8.46 O’Neill [2013] WASCA 158 …. 13.54

O’Regan [1961] Qd R 78 …. 8.135, 14.78 Orsi v Legal Contribution Trust [1976] WAR 74 …. 15.13, 15.28 Osborne [1905] 1 KB 551 …. 14.36 Osborne [1987] 1 Qd R 96 …. 11.15 Osland (1998) 197 CLR 316; 159 ALR 170 …. 12.81, 13.94 Ostrowski v Palmer (2004) 218 CLR 493; 206 ALR 422 …. 8.17, 8.18, 8.77, 8.85 Oteri [1975] WAR 120 …. 1.27 Oteri (1976) 11 ALR 142; 51 ALJR 122 …. 1.27, 2.23 O’Toole v Arnold (1982) 16 NTR 8; 61 FLR 372 …. 8.140, 8.142

P P [2000] 2 Qd R 401 …. 14.36, 14.62 PS Shaw [1995] 2 Qd R 97 …. 14.17 Pace (1994) 12 WAR 35 …. 15.128, 15.29 Pacino (1998) 105 A Crim R 309 …. 8.43, 8.44, 8.84, 8.85, 8.90, 12.59 Pahuja (1987) 49 SASR 191 …. 6.26 Palazoff (1986) 43 SASR 99 …. 8.160 Palfrey v Macphail (2004) 149 A Crim R 542 …. 16.33 Palmer v Ostrowski (2002) 26 WAR 289; 128 A Crim R 56 …. 8.17 Pangilinan [2001] 1 Qd R 56 …. 12.68, 12.80, 12.88 Papadimitropoulos (1957) 98 CLR 249; [1958] ALR 21 …. 14.20, 14.22 Papaluca (2001) 123 A Crim R 322 …. 16.22 Papas (2002) 27 WAR 67 …. 5.82 Pappajohn (1980) 4 WWR 387 …. 6.12 Parker (1915) 17 WALR 96 …. 8.135 Parker [1919] NZLR 365 …. 15.65 Parker (1963) 111 CLR 610; [1963] ALR 524 …. 6.35, 12.79, 12.81 Parker (1964) 111 CLR 665; [1964] ALR 1153 …. 12.70, 12.78

Parry [1957] NZLR 846 …. 15.77 Parsons (1999) 195 CLR 619; 160 ALR 531 …. 15.13 Parsons [2001] 1 Qd R 655 …. 8.79, 14.26 Pascoe v Christie; Ex parte Pascoe [1984] 1 Qd R 464 …. 8.85 Patel (2012) 247 CLR 531; 290 ALR 189 …. 3.34, 8.43, 12.38, 12.58 Paterson [1940] QWN 48 …. 3.37 Patmoy (1944) 45 SR (NSW) 127 …. 15.104 Patterson [1906] QWN 32 …. 15.53, 15.54 Paul v Collins Jnr [2003] WASCA 238 …. 16.24 Paulger v Hall [2003] 2 Qd R 294 …. 3.10, 5.35 Payne [1970] Qd R 260 …. 8.51 Peacock (1911) 13 CLR 619; 17 ALR 566 …. 6.27 Pearce (1998) 194 CLR 610; 156 ALR 684 …. 7.1, 7.2, 7.20, 7.21, 7.27, 7.34 Pearce v Paskov [1968] WAR 68 …. 8.23 — v Stanton [1984] WAR 359 …. 8.78 Peart (1970) 54 Cr App R 374 …. 15.45 Peel (1971) 125 CLR 447; [1972] ALR 231 …. 3.23, 3.40 Peevey (1973) 57 Cr App R 554 …. 7.18 Peisley (1990) 54 A Crim R 42 …. 12.78 Pelham (1995) 82 A Crim R 455 …. 16.36 Pemble (1971) 124 CLR 107; [1971] ALR 762 …. 13.21 People v Mentzer 209 Cal Rptr 549 (1985) …. 15.132 Pepler (1984) 13 A Crim R 476 …. 6.14 Pereira (1988) 82 ALR 217; 35 A Crim R 382 …. 16.16, 16.17, 16.18, 16.19 Perejmibida v Skelcher (2002) 127 A Crim R 549 …. 16.33 Perkins [1983] WAR 184 …. 6.21 Pernich and Maxwell (1991) 55 A Crim R 464 …. 5.74

Perry [1970] 2 NSWR 501 …. 3.27 Peters (1998) 192 CLR 493; 151 ALR 51 …. 11.37, 15.100, 15.101 Peters (No 2) (2013) 65 MVR 13; [2013] WASCA 205 …. 8.55 Peterson v Fleay (2007) 176 A Crim R 148 …. 9.12 Petrie [1928] 22 QJPR 125 …. 15.28 Petty (1994) 13 WAR 372 …. 14.39 PGA [2012] HCA 21 …. 10.14 Phan [2008] 2 Qd R 485 …. 16.27 Phelen [1964] Crim LR 468 …. 9.41 Phillips (1970) 125 CLR 93; [1971] ALR 161 …. 1.7 Phillips v Carbone (No 2) (1992) 10 WAR 169 …. 7.30, 7.32, 8.54 Phillips and Lawrence [1967] Qd R 237 …. 3.31, 5.72, 5.73, 5.74, 9.19, 9.21, 15.62 Pickard [1959] Qd R 475 …. 8.147, 8.159 Pike v Webb (1989) 8 MVR 563 …. 13.124 Pilbrow v Vestry of St Leonards, Shoreditch [1895] 1 QB 433 …. 15.74 Ping [2006] 2 Qd R 69 …. 13.45 Pinkstone (2000) 119 A Crim R 462 …. 5.59 Pinkstone (2004) 219 CLR 444; 206 ALR 84 …. 2.20, 3.34, 9.5, 16.37 Pinkstone and Yanko (2001) 24 WAR 406 …. 1.7 Pius Piane [1975] PNGLR 52 …. 8.96 Plomp [1962] Qd R 161 …. 8.37 Police v Grieves [1964] NZLR 295 …. 13.26 Pollard [1962] QWN 13 …. 3.25, 8.23, 8.27, 8.29, 15.38 Pollard (1992) 28 NSWLR 659; 63 A Crim R 383 …. 8.16 Pollock and Divers [1966] 2 All ER 97 …. 15.65 Pompey, Arthur, Sullivan, Daley and Coldwater (1924) 18 QJPR 59 …. 9.41 Poole and Blake [1959] Crim LR 45 …. 9.41

Porrit [1961] 3 All ER 463 …. 12.88 Porter (1933) 55 CLR 182; [1936] ALR 438 …. 8.99, 8.108, 8.112, 8.113 Postiglione (1997) 189 CLR 295; 145 ALR 408 …. 3.44 Potter (1981) 4 A Crim R 305 …. 15.84 Potter and MacKenzie [1959] Qd R 378 …. 3.36 Poultry Farmers Co-operative Society Ltd v Grain Sorghum Marketing Board [1963] QWN 3 …. 8.79 Powell (1988) 36 A Crim R 1 …. 15.9, 15.22 Powell and Gentle (1979) 23 SASR 52 …. 3.36 Power v Huffa (1976) 14 SASR 337 …. 8.15 Practice Direction (No 2 of 2000) [2000] 1 Qd R 620 …. 5.4 Prasad (1979) 23 SASR 161 …. 5.87 Prashar [1989] 1 WAR 190 …. 5.40, 5.73, 5.87 Pratt (2000) 112 A Crim R 70 …. 15.69 Presser [1958] VR 45 …. 8.122 Price [1963] 2 QB 1 …. 8.102 Price v Davies (2001) 120 A Crim R 183 …. 5.77 Priest v Nelson (1977) 5 QL 318 …. 5.25 Prior (1992) 91 NTR 53; 65 A Crim R 1 …. 11.15, 11.26 Pritchard (1836) 7 C & P 303; 173 ER 135 …. 8.121 Procter and Perry [1963] Qd R 335 …. 8.30, 11.34 Prow [1990] 1 Qd R 64 …. 13.63, 13.69, 13.87, 13.91 Pryor (2001) 124 A Crim R 22 …. 14.14, 14.23, 14.24 Punevski (2001) 122 A Crim R 342 …. 3.22 Pureau (1990) 19 NSWLR 372 …. 15.8 Purvis v Inglis (1915) 34 NZLR 1051 …. 14.45 Pusey v Wagner; Ex parte Wagner [1922] St R Qd 181 …. 8.15 PV; Ex parte Attorney-General (Qld) [2005] 2 Qd R 325 …. 3.23, 5.75

Q Quail (1866) 4 Fost & Fin 1976 …. 11.43 Quaile [1988] 2 Qd R 103 …. 16.30, 16.31 Quartermaine (1980) 143 CLR 595; 30 ALR 616 …. 3.34 Quartly (1986) 11 NSWLR 332; 22 A Crim R 252 …. 12.89 Queensland v Nolan [2002] 1 Qd R 454 …. 8.39, 12.10, 12.40 Quick and Paddison [1973] 3 All ER 347; [1973] 3 WLR 26 …. 8.109, 9.5 Quigley v Becker (1997) 25 MVR 564 …. 13.126 Quillerat [1962] Tas SR 16 …. 15.56, 15.57 Quy (1905) 7 WALR 268 …. 8.144

R R (1981) 28 SASR 321 …. 12.76 R (2007) 33 WAR 483 …. 3.23 Raabe [1985] 1 Qd R 115 …. 13.28 Rabcznski v Morrison [1988] WAR 71 …. 5.9 Rabey (1980) 114 DLR (3d) 193 …. 8.109 Rabey [1980] WAR 84 …. 3.34, 3.36 Radenkovic (1990) 170 CLR 623; 97 ALR 198 …. 3.44 Radford (1985) 42 SASR 266; 20 A Crim R 388 …. 8.109 Randall (1991) 55 SASR 447 …. 14.10 Randle (1995) 15 WAR 26; 81 A Crim R 113 …. 13.97, 13.99, 13.103 Rannath Mohan [1967] 2 AC 187 …. 9.10 Raspor (1958) 99 CLR 346; 65 ALR (CN) 1062 …. 3.44 Ratten (1974) 131 CLR 510; 4 ALR 93 …. 3.30, 3.33 Raw (1984) 12 A Crim R 299 …. 9.21, 9.22, 9.23 Ready and Manning [1942] VLR 85 …. 9.10 Rechichi (1999) 106 A Crim R 246 …. 9.5, 11.5 Redgard [1956] St R Qd 1 …. 14.48

Reed v Nutt [1890] 24 QBD 669 …. 7.17 Reeves (1994) 122 ACTR 1; 121 FLR 393 …. 7.20 Reid [2007] 1 Qd R 64; (2006) 162 A Crim R 377 …. 8.35, 8.37, 13.57 Rehavi [1999] 2 Qd R 640 …. 7.18 Reilly [1990] 2 WAR 526 …. 5.5 Remillard (1921) 59 DLR 340 …. 9.5 Renwick v Bell [2002] 2 Qd R 326 …. 9.1 Reynhoudt (1962) 107 CLR 381; [1962] ALR 483 …. 13.32 Reynolds v Panten (2000) 23 WAR 238 …. 3.11 RH [2005] 1 Qd R 180 …. 14.32 Rhodes and Kissling (1999) 104 A Crim R 572 …. 5.74 Richards [1934] QWN 19 …. 15.52 Richards (1994) 64 SASR 42 …. 7.26 Richardson [1978] Tas SR 178 …. 14.27 Riddle (1980) 48 CCC (2d) 365 …. 7.1 Rigney [1996] 1 Qd R 551 …. 15.83 Rigney-Hopkins (2005) 154 A Crim R 433 …. 15.96 Riley (2002) 11 Tas R 431; 36 MVR 562 …. 15.53 Rinaldi v State of Western Australia [2007] WASCA 53 …. 3.33 Roach and Bromage [1921] VLR 424 …. 15.36 Robert Millar (Contractors) Ltd and Robert Millar [1970] 1 All ER 577 …. 9.10 Roberts (2002) 25 WAR 501 …. 5.86 Roberts (2005) 29 WAR 445 …. 5.85, 8.23 Roberts [2005] 1 Qd R 408 …. 5.86 Roberts v State of Western Australia (2007) 34 WAR 1 …. 1.24 Robertson [1991] 1 Qd R 262 …. 14.29, 14.37 Robinson (1796) 2 Leach 749 …. 15.109 Robinson (1884) 10 VLR 131 …. 15.97

Robinson (1991) 14 MVR 381; 56 A Crim R 133 …. 13.120 Robinson (1995) 13 WAR 451 …. 14.39 Robinson (1999) 197 CLR 162; 165 ALR 226 …. 14.39 Robinson and Stokes; Ex parte Attorney-General [2000] 2 Qd R 413 …. 7.34 Roche (1889) 3 QLJ 139 …. 8.122 Roche [1988] WAR 278 …. 12.76, 12.79, 13.71, 13.78 Roddan (2002) 128 A Crim R 397 …. 8.15, 8.85 Roddan v Walker (1997) 94 A Crim R 170 …. 6.23 Roden (1981) 14 Tas R 97 …. 14.14, 14.51 Rogers (1994) 181 CLR 251; 123 ALR 417 …. 7.23, 7.24 Rogers v Arnott [1960] 2 All ER 417 …. 15.9 Roisseter [1984] 1 Qd R 477 …. 14.34 Rolfe (1952) 36 Cr App R 4 …. 14.40 Rolph [1962] Qd R 262 …. 8.107, 12.91, 12.93, 12.94 Rope [2010] QCA 194 …. 8.81 Roper v Knott [1898] 1 QB 868 …. 15.134 Rose [1965] QWN 35 …. 15.74 Rose [1967] Qd R 186 …. 12.84, 12.86 Rose v Matt [1951] 1 All ER 361 …. 15.16 Ross (1979) 141 CLR 432; 25 ALR 137 …. 4.16 Ross [2007] QCA 244 …. 14.32 Rowley (1986) 23 A Crim R 371 …. 5.89 Rowlson (1996) 67 SASR 96; 24 MVR 519 …. 13.131 Royall (1991) 172 CLR 378; 100 ALR 669 …. 8.36, 12.19, 12.22, 12.23, 12.27, 13.60, 13.128 Rozsa v Samuels [1969] SASR 205 …. 13.21, 13.26 Runeckels (1984) 79 Cr App R 255 …. 8.141, 8.142 Runjanjic and Kontinnen (1991) 56 SASR 114 …. 13.94

Russell [1933] VLR 59 …. 9.12 Russell [1977] 2 NZLR 20 …. 15.9 Russell (1988) 7 MVR 373 …. 8.87, 13.130 Russell v Smith [1958] 1 QB 27 …. 15.25 Russell v State of Western Australia (2011) 214 A Crim R 326 …. 5.73 Russell, Szann and Patterson [1965] QWN 8 …. 5.74 Ryan (1984) 55 ALR 408; 14 A Crim R 97 …. 3.31 Ryan v Kuhl [1979] VR 315 …. 13.21

S S [1996] 1 Qd R 559 …. 14.62 S [1999] 2 Qd R 89 …. 14.73 S [2000] 1 Qd R 445 …. 5.71 S (2001) 125 A Crim R 526 …. 5.74 S (2002) 129 A Crim R 339 …. 14.34 Saad (1987) 29 A Crim R 20 …. 16.16 Sabato and Hickey (1987) 31 A Crim R 72 …. 16.40 Saibu (1993) 10 WAR 279 …. 14.27 Sailor [1994] 2 Qd R 342 …. 14.34 Sakail [1993] 1 Qd R 312 …. 14.37 Saliba [1973] 1 Qd R 142 …. 15.60 Salmat Document Management Solutions Pty Ltd (2006) 199 FLR 46 …. 7.26 Salmon & James [2003] QCA 17 …. 9.31 Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458 …. 7.23 Samuels v Stubbs (1972) 4 SASR 200 …. 15.134 — v Western Australia (2005) 30 WAR 473 …. 3.11, 3.20 Sancoff v Holford; Ex parte Holford [1973] Qd R 25 …. 8.14, 8.83

Sanders [1919] 1 KB 550 …. 15.104 Sanders (1991) 57 SASR 102 …. 8.26 Sanders (1991) 93 Cr App R 245 …. 12.96 Sankey v Whitlam (1978) 142 CLR 1; 21 ALR 505 …. 2.13 Santos and Carrion (1987) 75 ALR 161; 29 A Crim R 122 …. 5.23 Saraswati (1991) 172 CLR 1; 100 ALR 193 …. 14.62 Sargent [1994] 1 Qd R 655 …. 16.26, 16.29 Saunders [1965] Qd R 409 …. 14.37 Saunders [1980] WAR 183 …. 9.5, 9.20, 9.23, 9.28, 9.31 Saunders [1983] Qd R 270 …. 5.90 Sawiris v Scott [1979] WAR 39 …. 15.13 Saylor [1963] QWN 14 …. 9.34, 9.35 Scarfetta v State of Western Australia [2010] WASCA 209 …. 16.35 Scarth [1945] St R Qd 38 …. 1.24, 8.43, 12.56 Scatchard (1987) 27 A Crim R 136 …. 13.30 Schaffer (1994) 72 A Crim R 242 …. 15.8, 15.14 Schafferius [1987] 1 Qd R 381 …. 8.117 Schama and Abramovich (1914) 11 Cr App R 45 …. 15.33, 15.34 Schiffman [1919] VLR 55 …. 15.35 Schmidt v State of Western Australia [2013] WASCA 201 …. 12.43 Schubert v Lee (1946) 71 CLR 589 …. 13.124 Schubring [2005] 1 Qd R 515 …. 12.91 Schwarten; Ex parte Wildschut [1965] Qd R 276 …. 2.13 Scott [1975] AC 819 …. 11.35, 15.101 Scott v Sandford (1991) 14 MVR 85 …. 13.127 Scrivener (2001) 125 A Crim R 279 …. 5.59 Scruby (1952) 55 WALR 1 …. 14.54 Scullin (1994) 76 A Crim R 15 …. 15.129

Secretary (1996) 5 NTLR 96; 107 NTR 1 …. 13.23, 13.94 Seiffert (1999) 104 A Crim R 238 …. 9.20, 9.22, 9.31, 9.32, 9.34, 9.35, 12.46, 12.50 Seiler [1978] WAR 27 …. 15.91 Self (1992) 95 Cr App R 42 …. 5.15 Selita (2004) 149 A Crim R 243 …. 5.78, 6.30 Sellwood [2011] QCA 70 …. 16.26 Seminara (2002) 128 A Crim R 567 …. 8.66 Semyraha (2000) 118 A Crim R 1 …. 5.89 Shagen (1993) 8 WAR 410 …. 15.27 Shales [2005] QCA 192 …. 9.41 Shannon [1975] AC 717 …. 11.38 Shaw [1962] AC 220 …. 11.35 Shaw [1995] 2 Qd R 97 …. 8.79 Sheehan [1994] 3 NZLR 592 …. 15.141 Sheehan [2001] 1 Qd R 198 …. 8.16, 8.74 Sheehy [2005] 1 Qd R 418 …. 5.75 Sheldon (1996) 2 Cr App R 50 …. 8.142 Sheldon [2014] QCA 328 …. 8.93 Sheppard (1995) 77 A Crim R 139 …. 3.40 Sherras v De Rutzen [1895] 1 QB 918 …. 8.1, 8.4, 8.9 Shetty [2005] 2 Qd R 540 …. 14.3 Shield v Topliner Pty Ltd [2005] 1 Qd R 551 …. 5.36 Shillingworth [1985] 1 Qd R 537 …. 5.78 Shivpuri [1986] 2 All ER 334 …. 11.26 Short v Davey; Ex parte Short [1980] Qd R 412 …. 5.40 Short, Grealy and Plint [1928] St R Qd 249 …. 15.36 Silk [1973] Qd R 298 …. 8.148 Sillery [1980] Qd R 374; (1980) 30 ALR 653 …. 2.18

Simic (1980) 144 CLR 319; 30 ALR 519 …. 3.31 Simpson (1995) 13 WAR 525 …. 6.23 Sitek [1988] 2 Qd R 284 …. 8.90 Siugzdinis and Mauri (1984) 32 NTR 1 …. 5.5 Sjabo [2001] 2 Qd R 214 …. 3.31 SKA (2011) 243 CLR 400; 276 ALR 423 …. 3.30 Skerritt (2001) 119 A Crim R 510 …. 6.17 Skinner (1913) 16 CLR 336 …. 3.37 Skivington [1968] 1 QB 166 …. 8.23, 8.26 Skubevski [1977] WAR 129 …. 3.25 Slade [1995] 1 Qd R 390 …. 8.150, 8.151 Sloan (1988) 32 A Crim R 366 …. 2.13 Sloan (1998) 104 A Crim R 450 …. 10.3 Smails (1956) 74 WN (NSW) 150 …. 15.17, 15.18 Smith [1937] QWN 16 …. 3.31 Smith [1949] St R Qd 126 …. 8.132 Smith [1959] 2 QB 35 …. 12.31, 12.32 Smith [1968] 2 All ER 115 …. 5.88 Smith [1974] QB 354 …. 8.23 Smith [1976] WAR 97 …. 13.125 Smith [1995] 1 VR 10 …. 7.20 Smith (2000) 117 A Crim R 1 …. 4.20, 7.26 Smith [2005] 2 Qd R 69; (2005) 151 A Crim R 535 …. 8.92, 8.155, 8.156, 8.161 Smith, Re [1993] 2 Qd R 218 …. 5.2, 5.8, 5.9, 5.51 Smith (Morgan) [2001] 1 AC 146 …. 12.84 Smith v Le Mura; Ex parte Smith [1983] 1 Qd R 535 …. 8.85, 8.90 — v State of Western Australia [2014] WASCA 90 …. 14.31 Smythe [1997] 2 Qd R 223 …. 16.26, 16.28

Sneesby [1951] Qd R 26 …. 8.144 Snow [1962] Tas SR 271 …. 8.129, 8.135 Sodeman (1936) 55 CLR 192 …. 6.8, 8.112 Solicitor, Re a [1902] St R Qd 9 …. 15.13 Solomon [1959] Qd R 123 …. 9.6, 9.14, 9.24 Solway [1984] 2 Qd R 75 …. 16.13, 16.22, 16.23 Soma (2003) 212 CLR 299; 196 ALR 421 …. 5.88 Sophonow (1984) 11 DLR (4th) 24 …. 6.12 Southwark London Borough Council v Williams [1971] Ch 734 …. 8.95 Sperotto (1970) 92 WN (NSW) 223 …. 14.26 Spies (2000) 201 CLR 603; 173 ALR 529; 113 A Crim R 448 …. 15.102 Spratt (1982) 8 A Crim R 361 …. 15.64 Spratt v Blake (1997) 92 A Crim R 91 …. 5.19, 5.24 Spurge [1961] 2 All ER 688 …. 13.130 Sreckovic [1973] WAR 85 …. 12.87, 13.96 Stacey (1985) 20 A Crim R 45 …. 15.104 Stanik (2001) 125 A Crim R 372 …. 8.66, 12.22, 13.87, 13.89 Stanton [1992] ACL Rep 130 WA 121 …. 3.37 Stapleton (1952) 86 CLR 358; [1952] ALR 929 …. 8.113 Stapleton v R (1952) 86 CLR 358 …. 6.35 Starling v Ostrowski (2001) 24 WAR 61 …. 5.35 Staskos v Johnson [2014] WASC 137 …. 5.28 State of Queensland v Nolan [2002] 1 Qd R 454; (2001) 122 A Crim R 517 …. 8.95, 8.96 State of Western Australia v JWRL [2010] WASCA 179 …. 12.98 State of Western Australia v Rayney (2011) 42 WAR 383 …. 2.4 — v Lauchlan [2005] WASC 266 …. 9.41 — v Oates (2004) 148 A Crim R 202 …. 11.39 — v R (2007) 33 WAR 483; [2007] WASCA 42 …. 16.16, 16.19, 16.21

Steindl [2002] 2 Qd R 542 …. 8.71, 8.72, 13.53 Stevens (1991) 23 NSWLR 75; 102 ALR 42 …. 16.1 Stevens (2005) 227 CLR 319; 222 ALR 40 …. 8.65, 8.66 Stevens and Doglione [1989] 2 Qd R 386 …. 13.75, 13.78, 14.6, 14.9 Stevenson (1996) 90 A Crim R 259 …. 15.124 Stevenson v Yasso [2006] 2 Qd R 150; (2006) 163 A Crim R 1 …. 3.15, 8.25 Stewart [1929] SASR 500 …. 15.68 Stewart (1988) 36 A Crim R 13 …. 8.45 Stewart (1994) 72 A Crim R 17 …. 3.37 Stewart [2015] QCA 231 …. 8.35 St George (1840) 9 C & P 483 …. 13.21 Stingel (1990) 171 CLR 312; 97 ALR 1 …. 12.82, 12.83, 12.85, 13.75 Stipendiary Magistrate at Brisbane; Ex parte Kornhauser [1992] 2 Qd R 150 …. 2.13 Stirland [1944] AC 315 …. 3.34 Stokes v Dance (1994) 11 WAR 428 …. 4.16 Stone [1920] NZLR 462 …. 15.9 Storey (1978) 140 CLR 364; 22 ALR 47 …. 7.23 Stott and Van Embden [2001] 2 Qd R 1313 …. 12.36 Stott and Van Embden [2002] 2 Qd R 310 …. 8.43, 8.46 Strathfield Municipal Council v Elvy (1992) 25 NSWLR 745 …. 8.16 Strudwick v Russell (1989) 9 MVR 15 …. 8.87, 8.95, 8.96, 8.98, 13.130 Street [1944] QWN 24 …. 5.63 Stuart (1974) 134 CLR 426; 4 ALR 545 …. 9.14, 9.20, 9.21, 9.22, 9.23, 9.25, 9.32, 12.48, 12.50, 12.52 Stuart and Finch [1974] Qd R 297 …. 4.25, 5.74 Studer (1915) 11 Cr App R 307 …. 15.109 Sturgeon (2005) 158 A Crim R 34 …. 5.63

Subritzky [1990] 2 NZLR 717 …. 15.9 Suehle v Commonwealth (1967) 116 CLR 353; [1967] ALR 572 …. 8.12 Sullivan [1983] 3 WLR 123 …. 8.109 Sullivan and Marshall [2002] 1 Qd R 95 …. 9.30 Summers [1990] 1 Qd R 92 …. 6.26 Suresh (1998) 153 ALR 145; 72 ALJR 769 …. 3.34, 14.31, 14.35 Susak (1999) 105 A Crim R 592 …. 11.22 Sutton (1984) 152 CLR 528; 51 ALR 435 …. 5.72 Sutton [1986] 2 Qd R 72 …. 3.24, 5.40, 5.87 Svensen [2014] QCA 85 …. 3.34 Sweeney [1984] 1 Qd R 628 …. 13.124 Sweet v Parsley [1970] AC 132 …. 8.2 Sykes [1962] AC 528 …. 9.41, 9.42 Symes v Lawler [1995] 1 Qd R 226 …. 16.26, 16.28, 16.29

T T [1997] 1 Qd R 623; (1996) 91 A Crim R 152 …. 15.130 Tabe (2005) 225 CLR 418; 221 ALR 503 …. 16.17, 16.18, 16.19 Tacey (1821) Russ & Ry 452; 168 ER 893 …. 15.134 Tait (1979) 24 ALR 473; 46 FLR 386 …. 3.37 Tait [1999] 2 Qd R 667 …. 3.27 Taiters [1997] 1 Qd R 333 …. 8.52, 8.66 Talbot v Lane (1994) 75 A Crim R 115 …. 5.35 Tallon [1996] 1 Qd R 448 …. 3.26 Tan [1979] WAR 149 …. 8.30 Tangye (1997) 92 A Crim R 545 …. 5.86 Tate v Arnold (1993) 19 MVR 649 …. 13.124 Tavete [1988] 1 NZLR 428 …. 6.14 Tedge [1979] WAR 12 …. 3.25

Teece [1960] QWN 34 …. 15.14 Tesco Supermarkets Ltd v Nattrass [1972] AC 153; [1971] 2 All ER 127 …. 10.20, 10.21 Tevendale [1955] VLR 95 …. 9.41 Thabo Meli [1954] 1 All ER 373 …. 12.45 Thick v Hoeter (1962) 7 FLR 488 …. 8.11 Thomas (1937) 59 CLR 279; [1938] ALR 37 …. 8.13, 8.16, 8.53 Thomas (1953) 37 Cr App R 169 …. 15.8 Thomas (1960) 102 CLR 584; [1960] ALR 233 …. 6.26 Thomas (1981) 6 A Crim R 66 …. 16.15 Thomas (No 2) [1960] WAR 129 …. 4.24 Thomas v McEather [1920] St R Qd 166 …. 8.90 Thompson [1933] QWN 36 …. 3.25 Thompson [1961] Qd R 503 …. 8.135 Thompson (1965) 50 Cr App R 1 …. 11.37 Thompson (1989) 169 CLR 1; 86 ALR 1 …. 2.18, 6.1, 6.28, 6.29 Thorne v Motor Trade Association [1937] 3 All ER 157 …. 15.116 Thow v Campbell [1997] 2 Qd R 324 …. 16.28 Thurlow [2015] QCA 89 …. 8.56 Tieleman (2004) 149 A Crim R 303 …. 5.58 Tiet (2002) 127 A Crim R 586 …. 9.8, 9.9, 9.13 Tietie, Tulele and Bolamatu (1988) 34 A Crim R 438 …. 9.35 Tihanyi (1999) 21 WAR 377 …. 5.77 Till v Johns [2004] QCA 451 …. 16.1, 16.20 Tilley (1992) 109 FLR 155 …. 7.25 Timbu Kolian (1968) 119 CLR 47; [1969] ALR 143 …. 8.45, 8.49, 8.52, 8.53, 8.64, 8.65, 12.62 Timms v Darling Downs Co-operative Bacon Association Ltd [1989] 2 Qd R 264; (1988) 38 A Crim R 430 …. 8.83, 8.85, 10.18, 10.19

Todd (1982) 6 A Crim R 105 …. 16.15 Tolson (1889) 23 QBD 168 …. 8.1, 8.3, 8.4, 8.74 Toomath [2009] QCA 369 …. 13.80 Tomasevic (1990) 51 A Crim R 72 …. 16.19 Tomlinson [1895] 1 QB 706 …. 15.113 Tonkin & Montgomery [1975] Qd R 1 …. 9.20, 9.23 Tough v Kay (1996) 87 A Crim R 278 …. 13.76, 13.77 Tovey v Ferre [1981] WAR 21 …. 7.17 Tracey (1895) 6 QLJ 272 …. 15.71 Tracey (1999) 20 WAR 555 …. 15.111, 15.115 Trainer (1906) 4 CLR 126; 13 ALR 53 …. 6.33, 15.14, 15.32 Tralka [1965] Qd R 225 …. 3.36, 8.64, 8.65 Tranby (1991) 52 A Crim R 228 …. 13.52 Tranby [1992] 1 Qd R 432 …. 1.24 Treacy [1971] AC 537 …. 15.109 Tricklebank [1994] 1 Qd R 330 …. 5.78, 7.29, 7.30 Trumbic and Leask v Weston [1986] WAR 169 …. 15.13 Tuberville v Savage (1669) 1 Mod 3; 86 ER 684 …. 13.26 Tucs v Algie (1985) 38 SASR 490 …. 1.7 Tumanako (1992) 64 A Crim R 149 …. 12.88 Turan (1990) 2 WAR 140 …. 6.26 TVM v State of Western Australia (2007) 180 A Crim R 183 …. 2.1 Twose (1879) 14 Cox CC 327 …. 8.29

U Udechuku [1982] WAR 21; (1981) 3 A Crim R 343 …. 3.22 Ugle (1989) 43 Crim R 63 …. 15.32 Ugle (1989) 167 CLR 647; 88 ALR 513 …. 14.29 Ugle (2002) 211 CLR 171; 189 ALR 22; 76 ALJR 886 …. 8.51, 8.64

Ulrich v Cummings (1985) 2 MVR 383 …. 13.124 Urbano (1983) 9 A Crim R 170 …. 16.36 Urwin v Duperouzel [1960] WAR 216 …. 13.124

V Vallance v R (1961) 108 CLR 56; [1963] ALR 461 …. 1.24, 8.35, 8.48, 8.50, 8.51, 8.52, 8.65 Van Bao Nguyen (2002) 139 NTR 15; 130 A Crim R 447 …. 13.109 Van Beelen, Re (1974) 9 SASR 163 …. 5.2 Van Den Bemd (1994) 179 CLR 137; 119 ALR 385 …. 8.64, 8.65, 8.68, 8.70, 8.71, 12.61 Van Den Bemd [1995] 1 Qd R 401 …. 8.65, 8.68, 8.70, 8.71, 8.73, 12.61 Van den Berg [1984] WAR 162 …. 15.69 Van Den Hoek (1986) 161 CLR 158; 69 ALR 1 …. 12.80, 13.74 Van Leeuwen (1981) 36 ALR 591; 55 ALJR 726 …. 6.26 Vasta v Clare (2002) 133 A Crim R 114 …. 5.71 Veen (1979) 143 CLR 458; 23 ALR 281 …. 3.44, 3.45 Vella (1990) 2 WAR 537 …. 3.31 Venna [1975] 3 All ER 788 …. 13.15 Verdon (1987) 30 A Crim R 388 …. 14.26 Verhoeven (1998) 101 A Crim R 24 …. 12.85, 13.74, 13.76, 13.80 Veskovich (2005) 40 SR (WA) 332 …. 5.79 Vest [1993] 2 Qd R 210 …. 5.73 Vick v Drysdale [1981] WAR 321 …. 7.17 Vidler (2000) 110 A Crim R 77 …. 12.68, 12.83, 13.95 Viers [1983] 2 Qd R 1 …. 7.13, 7.17, 7.20 Viro (1978) 141 CLR 88; 18 ALR 257 …. 13.103 Voukelatos [1990] VR 1 …. 12.84 Vrisakis v Australian Securities Commission (1993) 9 WAR 395 ….

5.35

W Wade (1869) 11 Cox CC 549 …. 8.29 Wagenaar [2000] WASCA 325 …. 14.15 Waigana (2012) 225 A Crim R 20 …. 12.16 Waine [2006] 1 Qd R 458 …. 8.23 Walden v Hensler (1987) 163 CLR 561; 75 ALR 173 …. 8.11, 8.22, 8.23, 8.24, 8.26, 8.29 Walk [1981] Qd R 380 …. 15.14, 15.16 Walker (1978) 19 SASR 532 …. 15.77 Walker [1989] 2 Qd R 79 …. 5.83 Walker (1998) 101 A Crim R 152 …. 3.27 Walker v New South Wales (1994) 182 CLR 45; 126 ALR 321 …. 1.11 Wallace [1982] Qd R 265 …. 8.114 Wallis v Lane [1964] VR 293 …. 15.8 Walser (1994) 73 A Crim R 154 …. 5.58 Walsh [1984] 2 Qd R 407 …. 8.24, 15.141 Walters, Re [2002] 2 Qd R 109 …. 5.59 Walters v Lunt (1951) 35 Cr App R 94 …. 15.51 Walters, Kidd and Byrne; Ex parte Drager [1945] St R Qd 154 …. 4.13 Walton [1977] 3 WLR 902 …. 8.114 Walton [1978] AC 788 …. 12.96 Walton, Re [1992] 2 Qd R 551 …. 8.102, 8.103, 8.117, 12.96 Walton v Gardiner (1993) 177 CLR 378; 112 ALR 289 …. 4.20, 7.20 Wan (2003) 140 A Crim R 513 …. 16.13 Wanganeen (1988) 50 SASR 433 …. 15.34, 15.35 Ward [1963] Qd R 56 …. 3.34 Ward [1972] WAR 36 …. 8.67

Ward (1980) 142 CLR 308; 29 ALR 175 …. 2.20 Ward (1997) 19 WAR 68 …. 9.8, 9.9, 9.13 Ward (2000) 23 WAR 254 …. 8.99, 8.126 Warneminde [1978] Qd R 371 …. 16.23 Warner [1969] 2 AC 256 …. 8.4 Warner [1980] Qd R 207 …. 8.87, 8.95, 8.96, 8.98, 13.130 Warren and Ireland [1987] WAR 314; (1985) 15 A Crim R 317 …. 9.3, 9.4, 9.5, 9.28 Warrill [1943] St R Qd 39 …. 14.34 Waterfall [1970] 1 QB 148 …. 15.97 Watherston v Woolven (1987) 139 LSJS 366 …. 13.28 Watson [1987] 1 Qd R 440 …. 13.28 WCVB [1989] 1 WAR 279 …. 5.63 Webb [1960] Qd R 443 …. 5.2 Webb [1986] 2 Qd R 446 …. 8.96, 13.130 Webb [1990] 2 Qd R 275 …. 15.124, 15.139 Webb [1995] 1 Qd R 680 …. 9.5 Webb; Ex parte Attorney-General [1990] 2 Qd R 275; (1990) 47 A Crim R 97 …. 9.2, 9.3 Webb and Hay (1994) 181 CLR 41; 122 ALR 41 …. 5.74 Weggers (2014) 240 A Crim R 205; [2014] WASCA 57 …. 11.23 Weissensteiner (1992) 62 A Crim R 96 …. 2.18, 6.28 Weissensteiner (1993) 178 CLR 217; 117 ALR 545 …. 12.11 Welham v DPP [1961] 192 A Crim R 190 …. 15.102 Welsh [1962] Tas SR 213 …. 15.44 West v Palmer; Ex parte West [1960] Qd R 375 …. 8.15 — v Perrier; Ex parte Perrier [1962] QWN 5 …. 9.6 — v Suzuka [1964] WAR 112 …. 9.1, 9.11 Western Australia v Bowen (2006) 162 A Crim R 535 …. 5.74

— v Landers (2000) 22 WAR 278 …. 5.54 Wetherell (No 2) [1939] QWN 15 …. 15.28 Wheatley v Lodge [1971] 1 WLR 29 …. 5.21 Whelan [1934] Ir R 518 …. 8.157 White [1910] 2 KB 124 …. 11.21, 11.22, 11.26 White (2002) 135 A Crim R 346 …. 15.92 White v Conway (CCA(Qld), 26 August 1991, No 37 of 1991, unreported) …. 13.104, 13.105, 13.107 — v Ridley (1978) 140 CLR 342; 21 ALR 661 …. 9.5, 9.35 Whitehead v Procopis (2005) 156 A Crim R 67 …. 13.27, 13.30 Whitehorn (1983) 152 CLR 657; 49 ALR 448 …. 3.30 Whitehouse [1955] QWN 100 …. 14.49 Whittaker v Campbell [1984] QB 318 …. 15.45 Whitworth [1989] 1 Qd R 437 …. 12.93, 12.94, 12.96 Whybrow (1951) 35 Cr App R 141 …. 11.19 Wibberley (1965) 50 Cr App R 51 …. 15.45 Widgee Shire Council v Bonney (1907) 4 CLR 977; 13 ALR 662 …. 8.5 Wilde (1988) 164 CLR 365; 76 ALR 570; 31 A Crim R 331 …. 3.31, 3.34 Wiley (1850) 2 Den 37; 169 ER 408 …. 15.54 Wilkes (1948) 77 CLR 511; [1950] ALR 168 …. 3.44 Will v Borcherdt (No 2) [1991] 2 Qd R 230 …. 6.23 Williams [1923] 1 KB 340 …. 14.20 Williams (1932) 32 SR (NSW) 504 …. 9.39, 9.41 Williams [1965] Qd R 86 …. 11.21, 11.22, 11.23 Williams (1978) 140 CLR 591; 22 ALR 195 …. 16.24 Williams [1982] WAR 277 …. 5.40, 5.87 Williams (1986) 161 CLR 278; 66 ALR 385 …. 5.11, 5.22, 5.23, 5.24, 5.25, 5.26, 5.27 Williams [1988] 1 Qd R 289 …. 8.23, 8.29, 15.82, 15.83

Williams (1995) 15 WAR 559 …. 12.76, 12.87 Williams [2001] 2 Qd R 442 …. 15.60 Williams v Phillips (1957) 41 Cr App R 5 …. 15.23 — v Spautz (1992) 174 CLR 509; 107 ALR 635 …. 5.8, 7.20 Williamson [1972] 2 NSWLR 281 …. 8.160, 8.161, 9.41 Williamson [2001] 1 Qd R 99 …. 5.61 Williamson v Trainor [1992] 2 Qd R 572 …. 7.25 Willis (2001) 25 WAR 217 …. 9.35 Willmot (No 2) [1985] 2 Qd R 413 …. 8.35, 12.43 Wills v Whiteside; Ex parte Wills [1987] 2 Qd R 284; (1986) 4 MVR 465 …. 5.22, 5.23 Wilmot (2006) 165 A Crim R 14 …. 13.95, 13.97, 13.99 Wilson v Clarke (2005) 40 SR (WA) 120 …. 7.14, 7.25 — v Dobra (1955) 57 WALR 95 …. 9.1 Wilton (1993) 2 Tas R (NC) N2; 64 A Crim R 359 …. 9.35 Wiltshire v Barrett [1966] 1 QB 312 …. 5.27 Wimbridge v State of Western Australia [2009] WASCA 196 …. 3.27 Winchester [2014] 1 Qd R 44 …. 14.15 Windle [1952] 2 QB 826 …. 8.113 Windshuttle v Redland Shire Council [2006] QDC 393 …. 8.18, 8.23 Winston [1995] 2 Qd R 204; (1994) 76 A Crim R 113 …. 9.41 Witchard [2005] 1 Qd R 428 …. 11.10 Withers [1975] AC 842 …. 11.35, 11.36 Witsen [2008] QCA 316 …. 9.13 Wogandt (1988) 33 A Crim R 31 …. 8.59 Wongawol v State of Western Australia (2011) 42 WAR 91 …. 12.43 Woodman [1974] QB 754 …. 15.23 Woods [1968] 3 All ER 709 …. 15.56 Woods, Ex parte [1985] 2 Qd R 433 …. 5.61

Woodward [1970] QWN 30 …. 13.59 Wooler [1971] QWN 10 …. 13.135 Woolmington [1935] AC 462 …. 6.3, 6.4, 6.5, 6.6, 6.8, 6.12, 6.22, 6.33 Wornes v Rankmore [1976] Qd R 85 …. 5.21 Worthing v Rowell and Muston Pty Ltd (1970) 123 CLR 89 …. 1.7 Wray (1930) 33 WALR 67 …. 8.112 Wray v Robertson [1970] Tas SR 253 …. 15.45 Wren [2000] 1 Qd R 577 …. 5.59 Wright (1991) 60 A Crim R 215 …. 5.23 Wroblewski v Starling [1987] WAR 233 …. 8.76 Wu (1999) 199 CLR 99; 166 ALR 200 …. 5.85 Wyborn [2013] QCA 400 …. 8.66 Wyles; Ex parte Attorney-General [1977] Qd R 169 …. 9.2, 9.3, 9.5

X X (1993) 69 A Crim R 130 …. 3.27

Y Yambiwato and Apibo [1967] PNGLR 222 …. 12.28 Yanner [1998] 2 Qd R 208 …. 2.25 Yanner v Eaton (1999) 201 CLR 351; 166 ALR 258 …. 8.24 York (2005) 225 CLR 466; 221 ALR 541 …. 3.38 Young [1955] QWN 38 …. 14.62 Young [1969] Qd R 417 …. 8.41, 12.57 Young (2004) 142 A Crim R 571 …. 13.89, 13.104 Young v Coughlan (1976) 63 Cr App R 33 …. 7.13 Yuill (1994) 34 NSWLR 179; 15 ACSR 95 …. 5.86

Z Zaburoni [2016] HCA 12 …. 8.35, 12.43, 13.59

Zaharias (2001) 122 A Crim R 586 …. 8.157 Zaidi (1991) 57 A Crim R 189 …. 14.10, 14.50, 14.82 Zakaria (1992) 62 A Crim R 259 …. 15.57, 15.58 Zanetti v Hill (1962) 108 CLR 433; [1963] ALR 165 …. 2.13 Zanker v Vartzokas (1988) 34 A Crim R 11 …. 13.23, 13.24, 13.26 Zaphir [1978] Qd R 151 …. 15.111, 15.113 Zerafa [1935] St R Qd 227 …. 11.19 Zischke [1983] Qd R 240 …. 15.134 Zuccala (1991) 14 MVR 466 …. 13.130

Table of Statutes References are to paragraphs

Commonwealth Air Navigation Act 1920 …. 1.10 Australia Act 1986 …. 1.26, 2.17 s 2(1) …. 2.17 Australia (Request and Consent) Act 1985 …. 1.26, 2.17 Australian Federal Police Act 1979 s 64 …. 4.2 s 65 …. 4.2 Coastal Waters (State Powers) Act 1980 …. 1.27, 2.23 s 5 …. 2.23 Commonwealth of Australia Constitution Act 1900 …. 1.1, 1.6, 1.10, 1.27 Ch III …. 1.10 s 51 …. 1.6 s 51(vi) …. 1.10 s 51(x) …. 1.10 s 51(xxi) …. 1.9 s 51(xxix) …. 1.10 s 51(xxxix) …. 1.6 s 52(i) …. 1.7 s 77(iii) …. 1.25 s 80 …. 3.22, 4.16

s 90 …. 1.10 s 92 …. 6.23 s 109 …. 1.8, 1.9, 11.41 Commonwealth Places (Application of Laws) Act 1970 …. 1.8 Corporations Act 2001 s 998 …. 6.24 Crimes Act 1914 …. 1.6, 1.10, 1.19, 2.23, 2.24, 4.2, 4.17, 4.19, 8.12 ss 3W–3Z …. 5.15 s 3ZA …. 5.12 s 3ZC(1) …. 5.20 s 3ZC(2)(b) …. 5.20 s 3ZD …. 5.21 s 4 …. 8.12 s 4C …. 7.27 s 4G …. 4.2 s 4H …. 4.2 s 4J(1) …. 4.17 s 4J(2) …. 4.17 s 4J(4) …. 4.17 s 4J(7) …. 4.17 s 4JA …. 4.17 s 5 …. 9.1 s 6 …. 1.19, 9.1 s 7 …. 11.6, 11.18 s 7A …. 11.42 s 13 …. 5.9 s 15B …. 4.19 s 43 …. 11.13

s 86(1)(e) …. 15.100 s 86A …. 15.100, 15.101 Sch, cl 1 …. 2.24 Sch, cl 2 …. 2.24 Sch, cl 7 …. 2.24 Crimes Amendment Act 1995 s 3 …. 8.12 Crimes at Sea Act 2000 …. 1.27 Crimes (Aviation) Act 1991 …. 1.10 Crimes (Traffic in Narcotic Drugs and Psychotic Substances) Act 1990 Pt 2 …. 16.1 Criminal Code Act 1995 …. 1.1, 1.10, 1.19, 1.20, 1.23, 4.2, 8.12, 8.167, 11.41, 16.1 Ch 2 …. 1.19 Ch 4 …. 1.19 Ch 5 …. 1.19, 4.17 Ch 7 …. 1.19 Ch 8 …. 1.19 Ch 9 …. 1.19 Ch 10 …. 1.19 Pt 2.2, Div 5 …. 16.16 Pt 2.5 …. 10.18 Pt 9 …. 16.1 Pt 9, Div 307 …. 16.14 s 1.1 …. 1.19, 6.35 s 1.2 …. 6.35 s 3.1 …. 8.12 s 3.2 …. 1.20, 8.12 s 4.1 …. 1.20

s 4.2 …. 8.47, 8.55 s 4.3 …. 9.12 s 5.1 …. 1.20 s 5.2 …. 8.35 s 5.4 …. 8.36 s 5.5 …. 8.43 s 5.6 …. 1.20 s 6.1 …. 8.9, 8.12 s 6.2 …. 8.9, 8.12 s 7.1 …. 8.138 s 7.2 …. 8.138 s 7.3 …. 8.99, 8.100 ss 8.1–8.5 …. 8.127 s 9.1 …. 8.13, 8.74 s 9.2 …. 8.74 s 9.3 …. 8.13 s 9.4 …. 8.13 s 9.5 …. 8.22 s 10.1 …. 6.6, 8.63, 8.66 s 10.2 …. 6.14, 8.145 s 10.3 …. 8.91 s 11.1 …. 11.6, 11.18 s 11.2 …. 9.7 s 11.2(2)–(4) …. 9.1 s 11.3 …. 9.5 s 11.4 …. 11.42 s 11.5 …. 11.30 s 12.5 …. 8.74

s 12.6 …. 8.66 s 13.1 …. 6.3 ss 13.1–13.5 …. 6.18 s 13.2 …. 6.25 s 13.3 …. 6.10 s 13.5 …. 6.25 s 80.1(1) …. 4.2 s 131.1 …. 1.10 s 131.1(1) …. 4.2 s 136.1(1) …. 4.2 s 136.1(4) …. 4.2 s 300.4 …. 16.1 Customs Act 1901 …. 1.10 s 233B(1)(b) …. 16.16 s 233B(1)(c) …. 16.14 Defence Force Discipline Act 1982 …. 1.10 s 43(1) …. 1.20 Director of Public Prosecutions Act 1983 s 6(2A)–(2E) …. 5.4 s 9(5) …. 5.9 Extradition Act 1988 …. 2.27 Federal Court of Australia Act 1976 s 24(1)(c) …. 3.8 Fisheries Management Act 1991 …. 1.10, 8.19 Judiciary Act 1903 …. 2.16 s 23(2) …. 3.41 s 30(c) …. 1.25 s 35 …. 3.8, 3.41

s 35(1)(b) …. 3.41 s 35A …. 3.42 s 36 …. 3.45 s 37 …. 3.45 s 39(2) …. 1.25 s 39(2)(c) …. 3.8 s 39(2)(d) …. 2.16 s 68 …. 3.8 s 68(2) …. 3.1, 3.23 s 71 …. 5.52 s 79 …. 4.22 s 80 …. 8.12 Marriage Act 1961 …. 1.25 s 94 …. 1.9, 4.2 s 94(1) …. 8.12 s 94(2) …. 8.12 Native Title Act 1993 s 211 …. 8.24 Privy Council (Appeals from the High Court) Act 1975 s 3 …. 3.41 Prohibition of Human Cloning for Reproduction Act 2002 …. 1.10 Racial Discrimination Act 1975 …. 1.10 Seas and Submerged Lands Act 1973 …. 1.27, 2.23 Service and Execution of Process Act 1992 …. 2.27 Telecommunications Act 1975 s 90 …. 4.2

Australian Capital Territory Criminal Code 1995 …. 1.1

New South Wales Crimes Act 1900 s 33 …. 7.21 s 110 …. 7.21 s 173 …. 15.100 Criminal Appeal Act 1912 s 6(1) …. 3.29

Northern Territory Criminal Code …. 1.1

Queensland Acts Interpretation Act 1954 …. 10.18 ss 17A–23 …. 8.10 s 36 …. 10.18 s 42 …. 5.9 s 45 …. 7.27 s 46 …. 10.18 Australia Acts (Request) Act 1985 …. 1.26, 2.17 Bail Act 1980 …. 5.29, 5.31, 5.57, 5.61, 8.119 s 6 …. 5.30, 5.64 s 7 …. 5.29, 5.30 s 8 …. 5.58 s 9 …. 5.58 s 10 …. 5.58 s 10(2) …. 5.59 s 10(3) …. 5.59 s 11 …. 5.64 s 13 …. 5.30, 5.58

s 14 …. 5.31, 5.65 s 14A …. 5.65 s 16 …. 5.58, 5.60 s 16(1)(a) …. 5.61 s 16(1)(b) …. 5.61 s 16(2) …. 5.31, 5.61 s 16(3) …. 5.61 s 19B …. 5.58 s 19C …. 5.58 s 20 …. 5.31, 5.64 ss 21–26 …. 5.66 s 29 …. 5.31, 5.64 s 32B …. 5.66 s 33 …. 5.31, 5.64 s 34BA …. 5.50 s 34BB …. 5.6 Sch …. 5.31 Commonwealth Places (Administration of Laws) Act 1970 …. 1.8 Child Protection Act 1999 …. 10.4 Ch 2 …. 8.138 s 5 …. 10.4 s 6 …. 10.4 s 8 …. 10.4 Children’s Court Act 1992 …. 2.2 s 4 …. 10.2 s 5 …. 10.5 s 6 …. 10.5 s 11 …. 10.5

s 14 …. 10.5 s 20 …. 10.5 Civil and Criminal Jurisdiction Reform and Modernisation Act 2010 …. 2.12, 4.11 Constitution of Queensland Act 2001 s 57 …. 2.3, 2.6 s 58 …. 2.3 Coroners Act 2003 …. 5.3 ss 8–10 …. 5.3 s 48(2)(a) …. 5.3 s 64 …. 5.3 s 70 …. 5.3 Corrective Services Act 1988 s 92 …. 7.33 s 93(1)(a) …. 7.33 s 93(1)(c) …. 8.20 Corrective Services Act 2006 s 122 …. 2.7 Corrective Services (Administration) Act 1988 s 20(1) …. 8.20 s 36 …. 8.20 Crimes at Sea Act 2001 …. 1.27, 2.24 Criminal Code Act 1899 …. 1.1, 1.15, 1.18, 1.20, 1.23, 2.18, 2.19, 2.21, 3.3, 3.20, 4.1, 4.3, 4.5, 4.6, 4.10, 4.11, 4.13, 4.19, 5.15, 5.71, 5.75, 5.76, 5.80, 6.2, 6.18, 6.19, 6.20, 6.22, 6.35, 7.5, 7.6, 7.15, 8.1, 8.5, 8.11, 8.21, 8.34, 8.36, 8.38, 8.39, 8.40, 8.43, 8.67, 8.74, 8.75, 8.78, 8.84, 8.91, 8.92, 8.93, 8.99, 8.100, 8.116, 8.127, 8.130, 8.134, 8.135, 8.138, 8.145, 8.158, 9.1, 9.8, 9.9, 9.12, 9.16, 9.30, 9.33, 9.42, 10.17, 10.21, 11.5, 11.6, 11.8, 11.9, 11.12, 11.13, 11.14, 11.16, 11.19, 11.23, 11.27, 11.28, 11.31, 11.34, 11.37, 11.42, 11.43, 12.5, 12.10, 12.12, 12.23, 12.24, 12.38, 12.40, 12.41,

12.43, 12.48, 12.50, 12.56, 12.61, 12.64, 12.66, 12.68, 12.93, 15.7, 15.9, 15.16, 15.22, 15.24, 15.28, 15.32, 15.47, 15.52, 15.66, 15.68, 15.71, 15.81, 15.85, 15.89, 15.92, 15.107, 15.117, 15.124, 15.134, 15.138 Pt 2 …. 16.19 Pt 6 …. 4.11, 15.1, 16.21 Ch 5 …. 8.1, 8.8, 8.10, 8.11, 15.31, 16.21 Ch 16 …. 7.15 Ch 27 …. 8.38, 9.12, 12.19, 12.35, 12.36 Ch 28 …. 12.3, 12.19 Ch 42A …. 4.11 Chs 49–51 …. 15.85 Ch 53 …. 15.85 Ch 67 …. 3.3 Ch 68 …. 7.22 s 1 …. 2.2, 2.15, 4.9, 5.4, 5.15, 5.71, 10.18, 12.12, 15.12, 15.16, 15.35, 15.38, 15.40, 15.52, 15.53, 15.68, 15.74, 15.76, 15.107, 15.135, 16.12 s 2 …. 1.2, 1.15, 7.32, 9.5, 9.21 s 3(1) …. 4.4 s 3(3) …. 4.5, 4.9 s 3(4) …. 4.13, 4.15 s 3(5) …. 4.5 s 4 …. 11.8, 11.15, 11.16, 11.19, 11.20, 11.21, 15.139 s 4(c) …. 15.8 s 4(1) …. 11.18, 11.27 s 4(2) …. 11.18, 11.21, 11.23 s 4(3) …. 11.24, 11.27 s 4(4) …. 11.18 s 5 …. 1.2, 1.15, 4.6, 5.14, 6.35 s 7 …. 7.27, 9.1, 9.2, 9.5, 9.6, 9.7, 9.8, 9.13, 9.15, 9.16, 9.17, 9.18, 9.23,

9.27, 9.28, 9.30, 9.31, 9.33, 9.36, 15.60 s 7(1) …. 9.2 s 7(1)(a) …. 9.2, 9.3, 9.5 s 7(1)(b) …. 9.2, 9.4, 9.5, 9.6, 9.10, 9.13, 9.15, 9.24, 9.29, 9.35 s 7(1)(b)–(d) …. 9.4 s 7(1)(c) …. 9.2, 9.4, 9.5, 9.6, 9.10, 9.11, 9.12, 9.13, 9.15, 9.24 s 7(1)(d) …. 9.2, 9.4, 9.5, 9.6, 9.14, 9.15, 9.24, 9.25, 11.5 s 7(4) …. 9.5 s 8 …. 1.15, 9.1, 9.2, 9.15, 9.17, 9.18, 9.19, 9.20, 9.21, 9.22, 9.23, 9.24, 9.25, 9.27, 9.28, 9.29, 9.30, 9.31, 9.32, 9.36, 12.48, 12.52 s 9 …. 9.1, 9.2, 9.17, 9.18, 9.24, 9.25, 9.31, 9.32, 9.36, 11.5 s 9(1) …. 9.25 s 10 …. 9.36, 9.40, 9.41 s 10A …. 9.30 s 12 …. 2.19, 2.20 s 12(1) …. 2.18 s 12(2) …. 2.19 s 12(3) …. 2.19 s 12(3A) …. 6.19 s 12(4) …. 2.19 s 13 …. 2.21, 2.22 s 14 …. 2.22 s 16 …. 7.2, 7.27, 7.28, 7.29, 7.31, 7.32, 7.33, 7.34, 7.35 s 17 …. 6.19, 7.2, 7.3, 7.4, 7.5, 7.11, 7.12, 7.13, 7.14, 7.15, 7.17, 7.19, 7.20, 7.22, 7.27 s 22 …. 8.17, 8.13, 8.14, 8.21, 8.25, 8.29, 15.38, 15.115 ss 22–36 …. 8.7 s 22(1) …. 8.13, 8.14 s 22(2) …. 8.22, 8.26

s 22(3) …. 8.13, 8.20, 8.21 s 23 …. 8.11, 8.32, 8.37, 8.46, 8.47, 8.49, 8.52, 8.57, 8.58, 8.60, 8.61, 8.62, 8.63, 8.68, 8.69, 8.70, 8.71, 8.73, 8.75, 8.104, 8.128, 9.6, 12.23, 12.40, 12.48, 12.60 s 23(1) …. 8.32, 8.38 s 22(4) …. 8.13, 8.21 s 23(1)(a) …. 6.20, 8.32, 8.47, 8.72 s 23(1)(b) …. 6.20, 8.32, 8.63, 9.16, 12.60, 12.99 s 23(1A) …. 8.72, 12.61 s 23(2) …. 8.33, 8.34 s 23(3) …. 8.37 s 24 …. 6.21, 8.10, 8.14, 8.15, 8.17, 8.54, 8.74, 8.76, 8.77, 8.78, 8.81, 8.82, 8.86, 8.87, 8.88, 8.89, 8.90, 12.88, 16.19 s 24(1) …. 6.20, 8.74, 8.86 s 24(2) …. 8.88 s 25 …. 8.87, 8.91, 8.92, 8.93, 8.95, 8.96, 8.97, 8.145, 8.146, 8.155 s 26 …. 6.19, 8.61, 8.99, 8.100, 8.120 s 27 …. 8.57, 8.58, 8.60, 8.61, 8.81, 8.99, 8.105, 8.107, 8.114, 8.118, 8.128, 8.131, 8.132, 12.91 s 27(1) …. 8.106, 8.116 s 27(2) …. 8.116 s 28 …. 8.57, 8.127, 8.128, 8.129, 8.130, 8.131, 8.132, 8.133, 8.136, 8.137 s 28(1) …. 8.127, 8.130 s 28(2) …. 8.127, 8.128 s 28(3) …. 8.127, 8.134, 8.135 s 29 …. 8.138, 8.144 s 29(1) …. 6.32, 8.138 s 29(2) …. 6.32, 8.138 s 31 …. 8.92, 8.145, 8.146, 8.147, 8.148, 12.41

s 31(1)(a) …. 8.146, 8.149, 8.165 s 31(1)(a)–(e) …. 8.91 s 31(1)(b) …. 8.146, 8.151, 8.165 s 31(1)(c) …. 8.146, 8.148, 8.154 s 31(1)(d) …. 6.14, 8.146, 8.155, 8.156 s 31(1)(d)(ii) …. 8.156, 8.161 s 31(2) …. 8.148, 8.158 s 31(3) …. 8.153 s 31(4) …. 8.87 s 33 …. 10.15 s 35 …. 10.15 s 36 …. 8.10, 8.11, 8.90 s 36(1) …. 8.8 s 36(2) …. 4.4, 15.31 s 47 …. 11.12 s 48 …. 11.12 s 52 …. 11.34 s 54A …. 15.106, 15.115 s 54A(1) …. 5.84 s 56A …. 4.5 s 56B …. 4.5 s 59 …. 11.12 s 60 …. 11.5, 11.6, 11.12 s 64 …. 2.7 s 65 …. 2.7 s 73 …. 11.12 s 77 …. 4.5 s 80 …. 11.34

s 81 …. 8.148 s 82 …. 8.148, 11.14 s 83 …. 11.34 s 87 …. 11.5, 11.6 s 99 …. 4.6, 11.12 s 100 …. 4.6 s 103 …. 11.5, 11.6, 11.12 s 105 …. 11.5, 11.6 s 106 …. 4.5 s 107 …. 4.19 s 110 …. 11.12 s 117 …. 4.6 s 118 …. 11.5, 11.6, 11.12 s 120 …. 11.5, 11.6, 11.12 s 121 …. 11.5, 11.6, 11.12 s 122 …. 11.12 s 123 …. 4.6, 7.15, 7.22 s 127 …. 11.5, 11.6, 11.12 s 130 …. 11.12 s 131 …. 11.54 s 132 …. 11.54 s 135 …. 4.5 s 137 …. 5.22 s 140 …. 11.15 ss 141–144 …. 4.11 s 148 …. 4.6, 4.11 s 207 …. 4.5, 6.19 s 208 …. 2.7

s 210 …. 2.7, 4.6, 11.5 s 213 …. 2.7 s 215 …. 2.7, 4.6, 8.87, 11.12 s 215(5) …. 6.19 s 216 …. 2.7, 11.12 ss 216–218 …. 11.5 s 216(4) …. 6.19, 8.11, 8.89 s 217 …. 9.8 s 219 …. 2.7 s 221 …. 11.34 s 222 …. 2.7 s 222(4) …. 6.19 s 224 …. 11.6, 11.14 s 227 …. 4.6 s 229 …. 8.11, 8.89 s 229B …. 2.7 s 229G …. 4.6 s 229K …. 4.6 s 230 …. 6.19 s 233 …. 4.6, 4.11 s 233(1) …. 4.5 s 236 …. 6.19 s 245 …. 11.12 ss 250–253 …. 5.12 s 254 …. 5.20 s 255 …. 5.21 ss 255–258 …. 12.41 s 257 …. 5.20

s 258 …. 5.20 s 260 …. 5.15 s 267 …. 12.41 s 268 …. 12.68, 12.76, 12.87 s 269 …. 8.7, 8.91, 12.66, 12.81 s 269(1) …. 6.20 s 270 …. 12.99 s 271 …. 6.20, 12.41 ss 271–273 …. 8.7, 8.91, 8.154 s 272 …. 6.20 ss 274–279 …. 8.7, 8.91 s 280 …. 8.91 ss 280–281 …. 8.7 s 281 …. 8.91, 12.4 s 282 …. 8.7, 8.91, 12.10, 12.40 s 282A …. 8.7, 8.91 s 282A(4) …. 12.10, 12.28 s 282A(5) …. 12.10 s 284 …. 12.7 s 285 …. 8.39, 8.40, 8.41, 12.39, 12.57 ss 285–287 …. 12.56 ss 285–290 …. 12.19, 12.35, 12.56 s 286 …. 8.39, 8.40, 12.10 s 288 …. 8.39, 8.40, 8.44, 12.38, 12.58 ss 288–290 …. 12.56 s 289 …. 8.39, 8.40, 8.44, 8.46, 8.84 s 290 …. 8.39, 8.40 s 291 …. 12.4, 12.40

ss 291–300 …. 12.3 s 292 …. 12.13, 12.14, 12.16 s 293 …. 12.7, 12.12, 12.19, 12.25, 12.34 s 294 …. 12.19, 12.26 ss 294–298 …. 12.25 s 295 …. 12.19, 12.25, 12.27 ss 295–298 …. 12.25 s 296 …. 12.19, 12.28 s 297 …. 12.19, 12.29 s 298 …. 12.19, 12.30, 12.32, 12.33 s 300 …. 12.4, 12.42 s 302 …. 8.39, 12.3, 12.4, 12.6, 12.42 s 302(1)(a) …. 9.31, 11.19, 12.43, 12.45, 12.53, 12.62 s 302(1)(b) …. 9.31, 9.32, 12.46, 12.47, 12.48, 12.49, 12.50, 12.52, 12.53 s 302(1)(c)–(e) …. 12.46 s 302(2) …. 12.44 s 303 …. 8.39, 12.3, 12.4, 12.6, 12.42 s 304 …. 6.20, 8.7, 8.91, 12.3, 12.50, 12.55, 12.63, 12.64, 12.67, 12.69, 12.70, 12.73, 12.78, 12.79, 12.81, 12.87, 12.88, 12.90 s 304(2) …. 12.73 s 304(3) …. 12.74 s 304(5) …. 12.74 s 304(6) …. 12.75 s 304(7) …. 12.65 s 304A …. 8.117, 8.118, 9.26, 12.3, 12.55, 12.63, 12.90, 12.91, 12.92, 12.94 s 304A(1) …. 12.91 s 304A(2) …. 12.90 s 304A(3) …. 9.5

s 304B …. 12.77 s 305 …. 4.5, 8.148, 12.3, 12.6, 12.42 s 306 …. 11.12, 12.3, 12.6 s 307 …. 9.37, 12.3 s 308 …. 12.3, 15.106 s 309 …. 11.34, 12.3 s 310 …. 12.3, 12.6, 12.42 s 311 …. 11.5, 12.3 s 313 …. 12.3, 12.6 s 313(1) …. 12.16 s 313(2) …. 12.16 s 314 …. 12.3, 12.6, 12.17 s 314A …. 12.99 s 315 …. 2.7, 11.12 s 316 …. 2.7, 11.12 s 317 …. 2.7, 11.12 s 317(b) …. 8.35 s 317(e) …. 8.34 s 317(f) …. 11.15 s 318 …. 2.7 s 319 …. 2.7 s 319A …. 2.7 s 320 …. 7.27, 7.28, 8.34, 8.35, 8.39 s 321 …. 11.14 s 323 …. 4.5 s 324 …. 4.5, 8.39 s 328 …. 8.39 s 328A …. 7.30, 12.6

s 328B …. 12.6 s 332 …. 4.5 s 334 …. 4.6 s 335 …. 4.6 s 339 …. 4.6 s 340 …. 4.6, 4.11 s 349 …. 2.7, 7.7, 7.8, 8.87, 9.8, 11.18 s 350 …. 11.18 s 352 …. 2.7, 7.7, 11.5 s 359 …. 15.106, 15.111, 15.115 s 359E …. 4.6 s 364 …. 8.39 s 390 …. 15.11, 15.12, 15.14 ss 390–408E …. 15.1 s 391 …. 1.10, 15.7 s 391(2) …. 15.17 s 391(2A) …. 6.32, 15.29, 15.93 s 391(2AA) …. 15.16 s 391(2B) …. 15.29 s 391(3) …. 15.22 s 391(4) …. 15.9 s 391(5) …. 15.23 s 391(6) …. 15.8 s 391(7) …. 15.16 s 393 …. 15.93 ss 393–395 …. 15.28 s 395 …. 15.93 s 396 …. 15.16

s 397 …. 10.15 s 398 …. 2.7, 4.6, 15.2, 15.3, 15.7 s 398(4)(a) …. 15.68 s 398(4)(b) …. 15.68 s 399 …. 15.85 s 400 …. 15.85 s 401 …. 15.85 s 405 …. 15.85 s 406 …. 15.48 s 407 …. 15.85 s 408 …. 15.13, 15.85 s 408A …. 15.2, 15.37, 15.38, 15.44 s 408A(1)(b) …. 15.39, 15.40, 15.41 s 408A(3) …. 15.38 s 408C …. 15.1, 15.2, 15.85, 15.86, 15.95, 15.98, 15.100, 15.105 s 408C(1) …. 15.89, 15.100 s 408C(1)(a) …. 15.37, 15.92, 15.95 s 408C(1)(a)–(h) …. 15.95, 15.99 s 408C(1)(b) …. 15.95 s 408C(1)(d)–(g) …. 15.92 s 408C(1)(h) …. 15.92 s 408C(2) …. 15.86 s 408C(3)(a) …. 15.92 s 408C(3)(b) …. 15.99 s 408C(3)(c) …. 15.94, 15.95, 15.99 s 408C(3)(d) …. 15.92 s 408C(3)(e) …. 15.95 s 408C(3)(f) …. 15.93

s 408D …. 15.85 s 408E …. 15.85 s 409 …. 2.7, 15.63, 15.66 ss 409–417A …. 15.1 s 411 …. 2.7, 9.3, 15.2, 15.62 s 412 …. 2.7, 11.14, 15.71 s 413 …. 15.71 s 414 …. 15.106, 15.115 s 415 …. 2.7, 15.2, 15.107, 15.112 s 415(1) …. 15.106 s 415(3) …. 15.114 s 416 …. 11.14, 15.106, 15.113, 15.115 s 417 …. 15.106 s 418 …. 15.76, 14.77 ss 418–427 …. 15.1 s 418(3) …. 15.83 s 418(4) …. 15.75 s 419 …. 2.7, 9.3, 15.2, 15.76, 15.83 s 419(1) …. 15.73, 15.84 s 419(2) …. 15.73 s 419(3)(a) …. 15.73 s 419(3)(b)(i) …. 15.73 s 419(3)(b)(ii) …. 15.73 s 419(3)(b)(iii) …. 15.73 s 419(3)(b)(iv) …. 15.73 s 419(4) …. 15.73 s 420 …. 15.84 s 421 …. 2.7, 15.75, 15.76

s 421(1) …. 15.75 s 426 …. 4.5, 15.72 s 427 …. 15.72, 15.95 s 427A …. 15.85, 15.105 ss 427A–432 …. 15.1 s 430 …. 11.34 s 433 …. 15.2, 15.48, 15.52, 15.53, 15.56 ss 433–435 …. 15.1 s 433(1) …. 15.59 s 433(2) …. 15.52 s 433(3) …. 15.49 s 433(4) …. 15.49 s 433(5) …. 15.49 s 433(6) …. 15.49 s 433(7) …. 15.53 s 434 …. 15.51 s 435 …. 15.48 ss 436–442M …. 15.1 s 437 …. 15.85 s 438 …. 15.85 s 441 …. 15.85 ss 444A–450B …. 15.1 s 446 …. 4.20 s 451 …. 4.5 s 451(3) …. 6.19 s 452 …. 4.5 s 458 …. 8.7, 8.91, 8.154, 15.124, 15.126 ss 458–479 …. 15.1

s 458(2) …. 15.125 s 458(3) …. 15.141 s 459 …. 15.124, 15.125, 15.126 s 460 …. 15.134 s 461 …. 2.7, 15.2, 15.117, 15.119, 15.123, 15.131, 15.137, 15.139 s 461(a) …. 15.137 s 462 …. 15.138 s 462(1) …. 11.11, 15.139 s 462(2) …. 15.139 s 463 …. 15.117 s 464 …. 11.13, 15.117 s 465 …. 15.117 s 466 …. 11.11, 15.117 s 467 …. 15.117 s 467A …. 15.117 s 468 …. 15.117 s 469 …. 2.7, 4.6, 8.36, 15.2, 15.117, 15.119, 15.123, 15.134, 15.135 s 469(1)–(10) …. 15.121, 15.135 s 469(9) …. 15.134 s 469A …. 2.7, 15.117 s 470 …. 11.14, 15.117 s 470A …. 15.117 s 471 …. 11.14, 15.117 s 472 …. 15.117 s 473 …. 15.117 s 474 …. 15.117 s 476 …. 15.117 s 477 …. 15.117

s 478 …. 15.117 s 506 …. 4.5 s 507 …. 4.5 s 508 …. 4.5 s 535 …. 4.6, 11.9 s 536 …. 11.9, 11.10 s 537 …. 11.9, 11.10 s 538 …. 11.11 s 539 …. 11.6 s 540 …. 11.23 s 541 …. 11.31, 11.33 s 541(2) …. 11.33 s 542 …. 11.31, 11.33 s 542(2) …. 11.33 s 543 …. 11.35, 11.36 s 543(1) …. 11.34 s 543(1)(f) …. 11.35 s 543(1)(g) …. 11.35 s 543(2) …. 11.33, 11.34 s 543A …. 11.36 s 544 …. 9.37 s 545 …. 9.37 s 545(2) …. 9.37 ss 545A–551 …. 5.13, 5.15 s 546 …. 5.15 s 547A …. 5.15 s 548(1) …. 5.15 s 549 …. 5.15

s 550 …. 5.15 s 551 …. 5.15 s 552 …. 5.22 s 552A …. 4.11 ss 552A–552J …. 4.11 s 552A(1)(c) …. 11.29 s 552B …. 4.11 s 552B(1)(a) …. 15.87 s 552B(1)(a)–(e) …. 4.11 s 552B(1)(c) …. 15.121 s 552B(1)(g) …. 15.48 s 552B(1)(n) …. 11.29 s 552B(1)(p) …. 9.37 s 552B(3) …. 4.11, 15.87, 15.121 s 552B(5) …. 15.48 s 552BA …. 4.11 s 552BB …. 4.11 s 552D …. 4.11, 15.5, 15.48, 15.87, 15.121 s 552D(2A) …. 15.5 s 552F …. 4.19 s 552H …. 4.18 s 552J …. 3.9 s 559A …. 5.4 s 560 …. 5.71 s 560(2) …. 5.75 s 561 …. 5.4, 5.68 s 563 …. 5.90 s 564 …. 5.71

s 565 …. 5.71 s 565(e) …. 15.14, 15.127 s 566 …. 5.71 s 566(5) …. 15.21 s 566(6) …. 15.16 s 566(8) …. 15.16 s 566(13) …. 15.16 s 566(15) …. 15.14 s 567(1) …. 5.72 s 567(2) …. 5.72 s 567(3) …. 5.72 s 567(4) …. 5.72 s 568 …. 5.72 s 568(1) …. 15.21 s 568(6) …. 15.53 s 568(9) …. 15.60 s 568(11) …. 5.73, 9.39, 15.51 s 568(12) …. 5.73 s 569 …. 5.73, 9.5 s 572 …. 5.71, 15.15 s 573 …. 5.71 s 574 …. 5.44 s 575 …. 15.64 ss 575–589 …. 7.6, 9.30 s 576 …. 7.8, 9.30, 12.6 s 576(1) …. 7.7, 7.11, 7.12 s 577 …. 12.6 s 578(1) …. 7.7

s 581 …. 15.86 s 583 …. 11.29, 12.6 s 583(1) …. 7.7 s 590(1) …. 5.68 s 590(2) …. 5.68 s 590(3) …. 5.68 s 590(4) …. 5.68, 5.70 s 590A …. 5.46 s 590AA …. 3.23, 5.75 s 590B …. 5.46 s 594A …. 10.18 s 596 …. 5.76, 7.20 s 597A …. 5.74 s 597B …. 5.74 s 597C …. 5.76 s 597C(1) …. 5.75 s 597C(3) …. 5.75 s 598(2)(a) …. 5.76 s 598(2)(b) …. 5.76 s 598(2)(c)–(e) …. 5.76, 7.13 s 598(2)(f) …. 5.76 s 598(2)(g) …. 5.76, 7.37 s 600 …. 5.77 s 601 …. 5.76 s 602 …. 5.76, 7.13 s 603 …. 5.76, 5.80, 7.37 s 604 …. 2.3, 4.9, 5.79, 5.80, 7.13 s 613 …. 5.80, 8.121, 8.122

s 615 …. 2.1, 4.9 s 617 …. 5.45 s 617(1) …. 4.23 s 617(2) …. 4.24 s 617(4) …. 4.24 s 617A …. 5.80 s 618 …. 5.41, 5.88 s 619 …. 5.39, 5.80, 5.88, 5.91 s 619(1) …. 5.87 s 620 …. 5.39, 5.42, 5.80, 5.92 s 624 …. 5.80, 6.29 s 625 …. 5.80 s 630 …. 5.80 s 631 …. 5.80 s 631A …. 5.76, 5.80 s 636(2) …. 8.11 s 636(2)(b) …. 6.19, 6.32 s 645 …. 8.121, 8.122 s 646 …. 5.87, 5.94, 7.17 s 647 …. 8.61, 8.126, 8.133, 12.91 s 648 …. 5.78, 5.94 s 649 …. 5.78 s 650 …. 5.78 s 651 …. 2.3, 2.7, 3.10, 3.20, 4.3, 4.14 s 659 …. 4.15, 16.6 s 660 …. 4.20 s 668 …. 3.20 s 668(3) …. 8.102

s 668A …. 3.23 s 668B …. 3.25 s 668D …. 3.20 s 668D(1)(a) …. 3.20 s 668D(1)(b) …. 3.20 s 668D(1)(c) …. 3.20, 3.37 s 668E(1) …. 3.28, 3.29, 3.35 s 668E(1A) …. 3.34 s 668F(2) …. 3.35 s 669 …. 3.36 s 669A …. 3.13, 3.18, 3.23, 3.24, 3.26, 3.38 s 669A(1) …. 3.20, 3.38 s 669A(1)(b) …. 3.18 s 669A(1A) …. 3.20 s 669A(2) …. 3.24 s 669A(2A) …. 3.18, 3.24 s 669A(4) …. 3.24 s 669A(5) …. 3.24 s 669A(6) …. 3.18 s 671 …. 3.26, 3.27 s 671B(1) …. 3.32 s 672A …. 5.76 ss 675–677 …. 5.76 s 678(1) …. 7.15 678A …. 7.15 s 678B …. 7.4, 7.22 ss 678B–678C …. 7.15 s 678C …. 7.4, 7.15, 7.22

s 678D …. 7.15 s 678E(2) …. 7.15 s 678E(3) …. 7.15 s 678F …. 7.15 ss 678G–678K …. 7.15 s 686 …. 5.7 s 694 …. 4.20 s 700 …. 7.15, 7.17 s 704 …. 4.20 s 705 …. 5.52 s 720 …. 5.7 Sch 1 …. 1.15 Criminal Law Amendment Act 1997 …. 9.36 Criminal Practice Rules 1999 Sch 2, Form 1 …. 2.5 Criminal Proceeds Confiscation Act 2002 …. 16.33 Dairy Produce Act 1920 s 34 …. 6.9 Disaster Management Act 2003 …. 15.3 Diseases in Stock Act 1915 …. 8.15 Dispute Resolution Centres Act 1990 …. 5.32 Director of Public Prosecutions Act 1984 s 10(1)(a)(i) …. 5.9 s 10(1)(c)(i) …. 5.9 s 10(1)(c)(ii) …. 5.9 District Court of Queensland Act 1967 s 60 …. 2.6, 2.25 s 61 …. 2.7

s 63 …. 2.25 s 66 …. 2.7 s 118 …. 3.4 Drugs Misuse Act 1986 …. 1.18, 4.3, 4.15, 8.8, 8.150, 10.7, 11.9, 16.1, 16.4, 16.18, 16.22 Pt 2 …. 16.3, 16.26 s 4 …. 11.23, 16.2, 16.3, 16.21, 16.26, 16.34, 16.38 s 5 …. 16.4, 16.30, 16.31 s 6 …. 16.4, 16.6 s 6(1) …. 16.4, 16.34 s 6(2) …. 16.4, 16.34 s 7 …. 16.4, 16.12 s 8 …. 16.4, 16.6, 16.38 s 8A …. 16.4 s 9 …. 16.4, 16.6, 16.12 s 9A …. 16.4 s 9B …. 16.4 s 9C …. 16.4 s 10(1) …. 16.6, 16.12 s 10(2) …. 16.12 s 10(4) …. 16.12 s 10(4A) …. 16.12 s 10A …. 6.22, 6.23 s 11 …. 16.4, 16.6, 16.26 s 13 …. 16.6 s 13(4) …. 16.6 s 116 …. 16.12 s 117 …. 11.9 s 118 …. 16.6

s 118(4) …. 16.6 s 123 …. 4.15, 16.6 s 124(1) …. 6.22 s 125 …. 16.5 s 127 …. 4.20 s 129 …. 16.18 s 129(1)(c) …. 6.19, 6.22, 16.13, 16.26, 16.27, 16.28, 16.29, 16.32 s 129(1)(d) …. 8.10, 8.88, 16.19 Drugs Misuse Regulations 1987 …. 16.3 Sch 1 …. 16.2 Sch 2 …. 16.2 Sch 2A …. 16.2 Evidence Act 1977 s 53 …. 9.39 s 131 …. 5.88 s 132C …. 6.30 Fair Trading Act 1989 s 97 …. 8.10 Fauna Conservation Act 1974 s 54 …. 8.24 Fauna Protection Act 1974 s 54 …. 8.29 s 54(1) …. 8.29 Fisheries Act 1994 s 24A …. 8.90 Food Act 1981 …. 8.83 s 114(2) …. 8.78 Food Act 2006

s 45 …. 8.11, 8.88 Health Act 1937 …. 8.11, 16.5 s 130 …. 16.22 s 140(3) …. 8.11 Jury Act 1995 …. 5.80 s 4 …. 5.81 ss 9–11 …. 5.81 ss 13–18 …. 5.81 ss 19–23 …. 5.81 s 20 …. 5.75 s 27 …. 5.81 s 33 …. 5.81 s 34 …. 5.81 s 39 …. 5.83 s 40 …. 5.83 s 41 …. 5.82 s 42 …. 5.83 ss 42–44 …. 5.83 s 43 …. 5.83 s 44 …. 5.82 s 47 …. 5.83 s 50 …. 5.83 s 51 …. 5.83 s 56 …. 5.86 s 57 …. 5.86 s 59 …. 5.84 s 59A …. 5.84 s 60 …. 5.86

Justices Act 1886 …. 1.11, 2.10, 2.15, 4.13, 5.12, 5.33, 5.35, 16.6 Pt 4 …. 5.10 Pt 5 …. 5.44 Pt 6 …. 4.13 s 4 …. 2.11, 3.9, 4.13, 5.1, 5.10, 5.36, 5.45 s 19 …. 2.15, 4.15 s 23EB …. 5.6 s 27 …. 2.10 s 30 …. 2.10 s 40 …. 4.24, 5.45 s 42 …. 5.35 s 43 …. 5.35 s 46 …. 5.35 s 47 …. 5.35 ss 48–50 …. 5.35 s 51 …. 5.12, 5.32 s 52 …. 4.19 s 53 …. 5.10, 5.32 s 53A …. 5.32 s 54 …. 5.32 s 56 …. 5.32 s 56A …. 5.32 s 57 …. 5.12 s 58 …. 5.12 s 59 …. 5.12, 5.32 s 59(2) …. 5.12 s 60 …. 5.12 s 65 …. 5.22

s 76 …. 6.23 s 77 …. 5.52 s 83(5AA) …. 5.48 s 100 …. 4.23 s 102A …. 4.24, 5.51 ss 102A–102G …. 5.9, 5.51 s 102C …. 5.51 s 102C(4) …. 5.45 s 102D …. 5.51 s 102E …. 5.51 s 102F …. 5.51 s 102G …. 5.51 s 103 …. 4.23, 5.45 s 103A …. 5.45 ss 104–134 …. 5.46 s 104(1) …. 4.23 s 104(1)(b) …. 5.45 s 104(2) …. 2.11, 5.46 s 104(2)(b) …. 5.46 s 104(3) …. 5.46 s 104(4) …. 5.46 s 104(5) …. 5.46 s 104A …. 4.24, 5.45 s 108(1) …. 5.46 s 110A …. 2.13, 5.47 s 110A(4) …. 5.48 s 110A(5) …. 5.48 s 110B …. 5.49

s 113 …. 2.11 s 113(1) …. 5.46 ss 114–117 …. 5.50 s 126 …. 5.52 s 130 …. 5.50 s 139 …. 2.26 s 141 …. 5.36 s 142 …. 4.25 s 142(1) …. 5.36 s 142(1)(b) …. 5.36 s 142(1)(d) …. 5.36 s 142(2) …. 5.36 s 142(6) …. 5.36 s 142A …. 4.25, 5.36 s 142A(12) …. 5.36 s 142A(15) …. 5.36 s 143 …. 5.36 s 144 …. 5.37 s 145(1) …. 5.37 s 145(2) …. 5.38 s 146 …. 5.43 s 146A(1) …. 5.36 s 146A(2A) …. 5.36 s 147 …. 5.36 s 148 …. 5.39, 5.42 s 149 …. 5.43, 7.15, 7.17 ss 150–152 …. 5.43 s 157 …. 4.20

s 158 …. 4.20 s 158A(2) …. 4.21 s 222 …. 3.9, 3.15, 3.18 s 222(1) …. 3.4, 3.12, 3.13 s 222(1)(a) …. 3.10 s 222(2)(a) …. 3.10 s 222(2)(b) …. 3.10, 3.18 s 222(2)(c) …. 3.10 s 223 …. 3.15, 3.17 s 224(1)(a) …. 3.10 s 225 …. 3.15 s 227 …. 3.4 s 552BA …. 2.15 s 552BB …. 2.15 Legal Aid Queensland Act 1997 …. 4.27 s 15 …. 4.27 s 44(1)(f) …. 4.27 Sch …. 4.27 Local Government Act 2009 …. 8.18 Magistrates Courts Act 1921 …. 2.10 Mental Health Act 2000 …. 8.117, 8.126 s 58 …. 8.117 s 61 …. 8.117 s 62 …. 8.117 s 257 …. 8.117 s 267 …. 8.117 ss 267–269 …. 8.119 s 270 …. 8.117

ss 270–279 …. 8.119 s 271 …. 8.117 s 281 …. 8.119 s 282 …. 8.119, 12.92 ss 311–313 …. 8.119 s 334 …. 8.119 s 405 …. 8.117 Sch 2 …. 8.117, 8.118, 12.92 Native Title Act 1993 s 211 …. 8.24 New South Wales Acts (Termination of Application) Act 1973 …. 1.11 Peace and Good Behaviour Act 1982 …. 1.18 Penalties and Sentences Act 1992 …. 5.43, 5.78, 6.30, 12.34 Pt 10 …. 5.58 s 4 …. 3.20 s 9 …. 3.37 s 9A …. 6.30 s 15 …. 6.30 s 108B …. 6.30 s 162 …. 3.20 s 177 …. 3.20 Police Powers and Responsibilities Act 2000 …. 5.13, 5.16, 5.17, 5.33 Ch 2 …. 5.17 Ch 14 …. 5.18 Ch 14, Pt 2 …. 5.12 Ch 15, Pt 2 …. 5.29 Ch 15, Pt 2, Div 3 …. 5.26 Pt 1, ss 19–25 …. 5.17

Pt 2, ss 26–38 …. 5.17 Pt 4, ss 40–43A …. 5.17 Pt 5, ss 44–49 …. 5.17 Pt 6, ss 54–68 …. 5.17 Pt 7 …. 5.17 s 5 …. 5.17 s 16 …. 8.159 s 365 …. 5.10, 5.15, 5.18 s 365(2) …. 5.18, 5.27 s 369 …. 5.12 ss 375–380 …. 5.18 s 379 …. 5.29 ss 382–390 …. 5.33 s 391 …. 5.21 s 393 …. 5.22 ss 403–404 …. 5.27 s 485 …. 4.15 s 615 …. 5.20 s 616 …. 5.20 Sch 6 …. 5.12, 5.18 Police Service Administration Act 1990 …. 16.5 Racing Act 2002 …. 1.18 s 321 …. 5.31 s 323 …. 5.31 s 325 …. 5.31 s 337 …. 4.19 Regulatory Offences Act 1985 …. 4.4, 8.10, 15.30 s 5 …. 15.30

s 5(1)(a) …. 15.30 s 5(1)(b) …. 15.30 s 5(1)(c) …. 15.30, 15.31 s 5(2) …. 6.19 s 6 …. 15.30, 15.86 s 6(1)(b) …. 15.31 s 6(2) …. 6.19 s 7 …. 15.142 s 9 …. 4.20, 15.142 Sale of Goods Act 1896 s 20 …. 15.24 State Transport Act 1938 Sch 11, Pt 1(m) …. 8.82 Statute Law (Miscellaneous Provisions) Act (No.2) 1992 s 3 …. 8.13 Statutory Instruments Act 1992 s 50 …. 8.13 Summary Offences Act 2005 …. 1.18, 15.78, 15.136 s 11 …. 15.78 s 13 …. 15.78 s 15 …. 15.78, 15.136 s 16 …. 15.61 s 22 …. 15.105 s 24 …. 15.136 s 25 …. 15.42 s 26A …. 15.136 s 29 …. 8.14 Supreme Court Act 1861 …. 2.3

Supreme Court Act 1867 …. 2.3 s 20 …. 1.4 Supreme Court Act 1895 s 4 …. 2.3 s 6 …. 2.3 Supreme Court Act 1995 …. 2.3 Pt 2 …. 2.3 Pt 9 …. 2.3 s 199 …. 1.4 s 203 …. 2.3 s 205 …. 5.52 s 267 …. 2.3 s 268 …. 2.3 s 269 …. 2.3 s 286(2) …. 2.3 s 287 …. 2.3 Supreme Court of Queensland Act 1991 s 5 …. 3.2 s 13A …. 3.2 s 16 …. 2.3, 3.2 s 28 …. 3.2 s 29 …. 3.3 s 30 …. 3.2 s 31 …. 3.2 s 32 …. 3.2 s 40 …. 3.3 s 41 …. 3.3 Supreme Court (Court of Appeal) Rules 2005

r 28 …. 3.27 Form 1 …. 3.27 Terrorism (Preventative Detention) Act 2005 …. 2.19 Traffic Act 1949 s 16 …. 7.30 Transplantation and Anatomy Act 1979 s 45(1) …. 12.8 Transport Operations (Road Use Management) Act 1995 …. 1.18 s 79 …. 5.31, 11.9 s 79(1) …. 4.13, 7.30 s 80 …. 5.26 s 135 …. 15.47 Transport Regulations 1940 reg 52 …. 8.82 Vagrants, Gaming and Other Offences Act 1931 s 12 …. 8.14 s 29 …. 15.47 Vegetation Management Act 1999 …. 8.18 Vicious Lawless Association Disestablishment Act 2013 …. 15.5 Weapons Act 1990 …. 1.18 Youth Justice Act 1992 …. 10.2, 10.7 Pt 1 …. 10.2 Pts 2–3 …. 10.3 Pts 2–7 …. 10.2 Pt 7 …. 10.13 Pt 7, Div 4 …. 10.13 Pt 7, Div 5 …. 10.13 Pt 7, Div 6 …. 10.13

Pt 7, Div 7 …. 10.13 Pt 7, Div 8 …. 10.13 Pt 7, Div 10 …. 10.13 Pt 7, Div 11 …. 10.13 Pt 7, Div 16 …. 10.13 s 6 …. 10.4 s 8 …. 10.7 s 62 …. 10.5 s 64 …. 10.5 s 69 …. 10.5 s 70 …. 10.5 s 72 …. 10.5 s 77 …. 10.6 s 81 …. 10.7, 10.8 s 82 …. 10.9 s 83 …. 10.9 s 84 …. 10.10 ss 85–88 …. 10.9 s 89 …. 10.10 s 90 …. 10.7, 10.8 s 91 …. 10.7 s 92 …. 10.8 s 93 …. 10.10 s 94 …. 10.7, 10.8 s 95 …. 10.7 ss 96–98 …. 10.8 s 97 …. 10.7 s 98 …. 10.7

ss 99–102 …. 10.8 s 134 …. 10.4 s 149 …. 10.13 s 150 …. 10.13 ss 151–153 …. 10.13 s 158 …. 10.4 s 175 …. 10.13 ss 175–179 …. 10.13 s 176 …. 10.13 s 181 …. 10.13 s 183 …. 10.13 s 184 …. 10.13 ss 203–206 …. 10.13 s 207 …. 10.13 Sch 1 …. 10.5 Sch 4 …. 10.4, 10.7 Youth Justice and Other Legislation Amendment Act 2014 …. 10.13

South Australia Criminal Law Consolidation Act 1935 s 158 …. 15.70 Kidnapping Act 1960 s 3 …. 15.109 Motor Vehicles Act 1921 s 21 …. 15.44

Tasmania Criminal Code Act 1924 …. 1.1, 6.21, 8.54 s 13 …. 8.48

s 13(1) …. 8.51 s 303(1) …. 5.23 s 401(2) …. 3.22 Justices Act 1959 s 34A(1) …. 5.23 s 107 …. 3.12 Police Offences Act 1935 s 14B(1) …. 3.12 Traffic Act 1925 s 37(1) …. 15.44

Victoria Crimes Act 1958 …. 11.41 s 71 …. 15.13 s 81(2) …. 15.45 s 321(1) …. 11.41

Western Australia Australia Acts (Request) Act 1985 …. 1.26, 2.17 Bail Act 1982 …. 5.29, 5.57 s 3 …. 5.30, 5.64 s 5 …. 5.58 s 6 …. 5.22, 5.30 s 6(1) …. 5.29 s 7 …. 5.58 s 13 …. 5.30, 5.58, 5.60 s 14 …. 5.58 s 15 …. 5.30, 5.58 s 16 …. 5.30

s 17(2) …. 5.64 s 18 …. 5.31 s 28(2) …. 5.64 ss 35–50 …. 5.66 s 49 …. 5.66 s 51 …. 5.64 s 61 …. 5.22 Sch 1, Pt C, cl 1 …. 5.60, 5.62 Sch 1, Pt C, cl 3 …. 5.60, 5.62 Sch 1, Pt C, cl 3A …. 5.62 Sch 1, Pt C, cl 3B …. 5.62 Sch 1, Pt C, cl 3C …. 5.63 Sch 1, Pt C, cl 4 …. 5.58 Sch 1, Pt C, cl 5 …. 5.58 Sch 1, Pt D …. 5.64 Sch 2 …. 5.62 Child Welfare Act 1947 s 29 …. 8.138 s 30 …. 8.138 Children and Community Services Act 2004 s 3 …. 10.4 ss 35–41 …. 8.138, 10.4 Children’s Court of Western Australia Act 1988 …. 2.2 s 3 …. 10.4 s 5 …. 10.2 s 6 …. 10.5 s 6(1) …. 10.5 s 10 …. 10.5

s 11 …. 10.5 s 19 …. 10.5, 10.11 s 19(2) …. 10.4 s 19B(1) …. 10.11 s 19B(2) …. 10.12 s 19B(3) …. 10.12 s 19B(4) …. 10.12 s 21 …. 10.13 s 23 …. 10.5 s 31 …. 10.5 s 34 …. 10.5 Commonwealth Places (Administration of Laws) Act 1970 …. 1.8 Coroners Act 1996 …. 5.3 s 3 …. 5.3 s 19 …. 5.3 s 23 …. 5.3 s 27 …. 5.3 s 57 …. 5.3 Crimes at Sea Act 2000 …. 1.27, 2.24 Criminal Appeals Act 2004 …. 7.16 Pt 3, Div 2 …. 3.5 s 5A …. 7.16 s 7 …. 3.5, 3.11 s 7(1) …. 3.12 s 7(1)–(3) …. 3.11 s 7(2) …. 3.13, 3.19 s 8 …. 3.11, 3.19 s 8(1) …. 3.11

s 8(2) …. 3.11 s 9(1) …. 3.11 s 9(2) …. 3.11 s 10(3) …. 3.11 s 13 …. 3.5, 3.11 s 14 …. 3.16 s 14(2) …. 3.16 s 16 …. 3.5 s 16(1) …. 3.11 s 16(3) …. 3.19 s 17(2) …. 3.11 s 18 …. 3.16 s 19 …. 3.16 s 20 …. 3.19 s 22 …. 3.21 s 23 …. 3.5, 3.20, 3.21 s 23(1)(b) …. 3.37 s 23(2) …. 3.21 s 23(2)(b) …. 3.37 s 24 …. 3.5, 3.21 s 24(1) …. 3.22, 3.39 s 24(1)(a) …. 3.22 s 24(2) …. 3.22 s 24(2)(e) …. 3.22 s 25 …. 3.22 s 26 …. 3.21, 5.75 s 27 …. 3.21 s 27(2) …. 3.11

s 28 …. 3.28 s 28(3) …. 3.26 s 30(3) …. 3.28, 3.29 s 30(4) …. 3.16, 3.34 s 30(5)(a) …. 3.36 s 30(5)(b) …. 3.35 s 30(5)(c) …. 3.35 s 31 …. 3.37, 3.39 s 33(2)(a) …. 3.35 s 33(2)(c) …. 3.36 s 33(3) …. 3.35 s 33(4) …. 3.35 s 34 …. 3.36 s 39(1) …. 3.17 s 40(1) …. 3.32 s 46 …. 3.20, 3.25 s 46(2) …. 3.24 s 46A(1) …. 7.16 s 46E …. 7.16 s 46I …. 7.16 s 47 …. 3.23, 3.26 s 47(2) …. 3.23 s 47(4) …. 3.24 s 47(7) …. 3.24 Criminal Code Act 1902 …. 1.16 Criminal Code Act 1913 …. 1.1, 1.7, 1.16, 1.18, 1.20, 1.23, 2.19, 2.21, 4.1, 4.3, 4.7, 4.10, 4.12, 4.19, 5.20, 5.76, 6.2, 6.18, 6.19, 6.22, 6.35, 7.5, 7.6, 8.1, 8.5, 8.11, 8.36, 8.38, 8.39, 8.40, 8.43, 8.67, 8.91, 8.145, 8.162, 8.164, 8.166, 9.1, 9.8, 9.9, 9.12, 9.16, 9.30, 9.42, 10.17, 10.21, 11.5, 11.6, 11.8,

11.9, 11.10, 11.12, 11.14, 11.18, 11.19, 11.27, 11.28, 11.31, 11.34, 11.37, 11.42, 11.43, 12.5, 12.10, 12.12, 12.16, 12.23, 12.24, 12.40, 12.41, 12.43, 12.43, 12.48, 12.50, 12.56, 12.61, 12.64, 12.66, 12.68, 12.76, 12.97, 15.7, 15.9, 15.14, 15.16, 15.22, 15.24, 15.27, 15.28, 15.32, 15.47, 15.52, 15.66, 15.68, 15.71, 15.85, 15.89, 15.92, 15.99, 15.101, 15.117, 15.124, 15.134 Pt VI …. 8.23, 15.1 Ch IIA …. 7.9, 12.5 Ch V …. 8.1, 8.8, 8.10, 8.11, 8.90, 15.82, 16.21 Ch XXVI …. 5.20 Ch XXVII …. 8.38, 9.12, 12.19, 12.35, 12.36 Ch XXVIII …. 12.3 Ch LI …. 15.85 Ch LIII …. 15.85 s 1 …. 5.71, 8.34, 8.111, 10.18, 11.43, 12.12, 15.4, 15.13, 15.16, 15.31, 15.43, 15.52, 15.53, 15.68, 15.80, 15.91, 15.96, 15.133, 15.134, 15.135 s 1(1) …. 3.23, 4.9 s 1(5) …. 2.2, 2.15 s 2 …. 1.2, 1.15, 7.32, 9.5, 9.21 s 3(2) …. 4.9 s 3(3) …. 15.8 s 3(5) …. 4.15 s 4 …. 1.2, 1.15, 3.35, 6.35, 8.134, 11.8, 11.15, 11.18, 11.19, 11.20, 11.21, 11.23 s 5 …. 4.12 s 5(1) …. 11.29 s 5(2) …. 11.29 s 5(3) …. 4.12, 15.6, 15.88, 15.122 s 5(8) …. 4.18 s 7 …. 1.15, 9.1, 9.2, 9.5, 9.6, 9.7, 9.8, 9.13, 9.15, 9.16, 9.17, 9.18, 9.23, 9.27, 9.28, 9.30, 9.31, 9.33, 9.36

s 7(a) …. 9.2, 9.3, 9.5 s 7(b) …. 9.2, 9.4, 9.5, 9.6, 9.10, 9.13, 9.15, 9.24, 9.29, 9.33 s 7(b)–(d) …. 9.4 s 7(c) …. 9.2, 9.4, 9.5, 9.6, 9.10, 9.11, 9.12, 9.13, 9.15, 9.24, 9.33 s 7(d) …. 9.2, 9.4, 9.5, 9.6, 9.14, 9.15, 9.24, 9.25, 9.33, 11.5 s 8 …. 1.24, 9.1, 9.2, 9.15, 9.17, 9.18, 9.20, 9.21, 9.22, 9.23, 9.25, 9.27, 9.28, 9.29, 9.30, 9.31, 9.32, 9.33, 9.36, 12.48, 12.52 s 8(1) …. 9.18, 9.19, 9.21, 9.23, 9.24, 9.25, 12.52 s 8(2) …. 9.33, 9.34, 9.35 s 9 …. 9.1, 9.2, 9.17, 9.18, 9.24, 9.25, 9.31, 9.32, 9.36, 11.5 s 10 …. 9.36, 9.40, 9.41, 10.16 s 10(2) …. 9.36 ss 10A–10I …. 7.9, 12.5 s 10B …. 7.9 s 10B(2) …. 7.9 s 10B(3) …. 7.9 s 10C …. 7.9, 11.26 s 10D …. 7.9, 11.29 ss 10D–10I …. 7.9 s 10D(c) …. 9.38 s 10E …. 7.9 s 12 …. 2.18, 2.20 s 12(1) …. 2.19 s 12(2) …. 2.19 s 12(3) …. 2.19 s 13 …. 2.21, 2.22 s 14 …. 2.22 s 16 …. 7.30, 7.32, 7.35 s 17 …. 6.19, 7.2, 7.3, 7.5, 7.10, 7.11, 7.12, 7.13, 7.14, 7.17, 7.18, 7.19,

7.20, 7.27 s 22 …. 8.13, 8.14, 8.17, 8.21, 8.22, 8.23, 8.26, 8.27, 8.29, 8.30, 15.38, 15.82, 15.115 ss 22–36 …. 8.7 s 22(3) …. 8.13 s 22(4) …. 8.13 s 23 …. 6.6, 6.20, 8.32, 8.37, 8.46, 8.47, 8.49, 8.50, 8.51, 8.60, 8.70, 8.71, 8.73, 8.90, 9.16, 12.23, 12.40, 12.48, 12.60 s 23(1) …. 8.33, 8.34 s 23(2) …. 8.37 s 23A …. 8.32, 8.47, 8.52, 8.57, 8.58, 8.61, 8.62, 8.70, 8.75, 8.104, 8.128, 9.6 s 23A(1) …. 8.38 s 23B …. 8.32, 8.63, 8.75, 12.60 s 23B(1) …. 8.38 s 23B(3) …. 8.63, 8.66, 8.73 s 23B(4) …. 8.63, 8.66 s 24 …. 6.20, 8.11, 8.14, 8.54, 8.74, 8.76, 8.77, 8.81, 8.82, 8.84, 8.85, 8.86, 8.87, 8.88, 8.90, 8.98, 15.82, 16.19, 16.20 s 25 …. 6.20, 8.91, 8.92, 8.93, 8.96, 8.97, 8.98, 8.145 s 26 …. 6.19, 6.32, 8.61, 8.99, 8.100 s 27 …. 8.57, 8.58, 8.60, 8.61, 8.99, 8.104, 8.105, 8.107, 8.112, 8.114, 8.131, 8.132 s 27(1) …. 8.106, 8.116 s 27(2) …. 8.116 s 28 …. 8.57, 8.127, 8.128, 8.129, 8.130, 8.131, 8.132, 8.136, 8.137 s 28(1) …. 8.127, 8.130 s 28(2) …. 8.127 s 28(3) …. 8.127, 8.134, 8.135

s 29 …. 6.32, 8.138, 8.144 s 31 …. 8.92, 8.145, 8.162, 12.41 s 31(1) …. 8.91, 8.146, 8.166 s 31(1)(a) …. 8.165 s 31(1)(b) …. 8.165 s 31(2) …. 8.146, 8.164, 8.166 s 31(3) …. 8.146 s 31(4) …. 6.14, 8.146 s 32 …. 8.91, 8.92, 8.145, 8.162, 8.164 s 33 …. 10.15 s 35 …. 10.15 s 36 …. 8.8, 8.10, 8.90, 16.21 s 47 …. 11.12 s 48 …. 11.12 s 52 …. 11.34 s 58 …. 4.8 s 59 …. 4.7 s 60 …. 11.12 s 61 …. 11.5, 11.6, 11.12 s 72 …. 11.12 ss 77–80 …. 11.42 s 78 …. 4.8 s 80 …. 4.8 s 80A–80D …. 4.8 s 88 …. 11.5, 11.6, 11.12 ss 96–106 …. 4.7 s 101 …. 11.12 s 102 …. 11.5

s 121 …. 11.5, 11.6, 11.12 s 122 …. 11.5, 11.6, 11.12 s 123 …. 11.12 s 124 …. 7.22 s 130 …. 11.5, 11.6, 11.12 s 133 …. 11.12 s 134 …. 11.34 s 135 …. 11.34 s 138 …. 4.7 s 143 …. 11.15 s 177 …. 6.19 s 186(2) …. 6.19 s 187 …. 7.18 s 191 …. 9.8, 11.5 s 192 …. 11.5 s 203 …. 4.8 s 204(3) …. 6.19 s 204A(4) …. 6.19 s 205 …. 8.11, 8.89 s 214 …. 6.19 s 222 …. 11.12 ss 227–230 …. 5.12 s 233 …. 5.20 s 235 …. 5.20, 12.41 s 244 …. 12.41 s 245 …. 12.68, 12.78, 12.87, 12.89 s 246 …. 6.20, 8.7, 8.91, 8.92, 12.66, 12.81 s 247 …. 8.92

s 248 …. 6.20, 8.7, 8.91, 8.92, 12.41 s 248(3) …. 12.50, 12.55, 12.63, 12.97 s 248(4) …. 12.97 s 249 …. 6.20 ss 251–256 …. 8.7, 8.91 s 257 …. 8.91 ss 257–258 …. 8.7 s 258 …. 8.91 s 259 …. 12.10, 12.28, 12.40 ss 259–259A …. 8.7, 8.91 s 259A …. 12.10 s 260 …. 5.20 s 261 …. 5.20, 12.7 s 262 …. 8.40, 8.41, 12.10, 12.39, 12.57 ss 262–264 …. 12.56 ss 262–267 …. 12.19, 12.35, 12.56 ss 262–263 …. 8.39 s 263 …. 8.39, 8.40 s 265 …. 8.39, 8.40, 8.44 ss 265–267 …. 12.56 s 266 …. 8.39, 8.40, 8.44, 8.46, 8.84, 12.39 s 267 …. 8.39, 8.40 s 268 …. 12.4, 12.40 ss 268–277 …. 12.3 s 269 …. 12.13, 12.14, 12.16 s 270 …. 12.7, 12.12, 12.15, 12.19, 12.25, 12.34 s 271 …. 12.15, 12.19, 12.26 ss 271–275 …. 12.25

s 272 …. 12.19, 12.25, 12.27 ss 272–275 …. 12.75 s 273 …. 12.19, 12.28 s 274 …. 12.19, 12.29 s 275 …. 12.19, 12.30, 12.32, 12.33 s 277 …. 12.42, 12.62 s 278(1) …. 12.62 s 279 …. 8.39, 12.5, 12.42 s 279(1) …. 7.9, 7.11, 7.12, 12.3 s 279(1)(a) …. 9.31, 11.19, 12.45 s 279(1)(b) …. 9.31, 11.19, 12.45 s 279(1)(c) …. 9.31, 9.32, 12.46, 12.47 s 279(2) …. 12.45, 12.50, 12.52 s 280 …. 7.9, 8.39, 12.3, 12.5, 12.42 s 281 …. 6.20, 7.9, 8.11, 12.3, 12.5, 12.42, 12.98 s 282 …. 12.5, 12.42 s 283 …. 7.9, 11.12, 12.3, 12.5 s 287 …. 12.3, 12.5, 12.42 s 288 …. 11.5, 12.3 s 290 …. 7.9, 12.3, 12.5, 12.16 s 291 …. 7.9, 8.49, 12.3, 12.5, 12.17 s 292 …. 11.12 s 293 …. 8.49, 11.12 s 294 …. 11.12 s 294(1) …. 8.34 s 294(2) …. 11.15 s 297 …. 7.28, 8.34, 8.39 s 300 …. 8.49

s 301 …. 4.8 s 304(1) …. 8.39 s 304(2) …. 8.39 s 305 …. 4.8 s 313 …. 4.7 s 313(2) …. 4.19 s 317 …. 4.8, 7.9 s 317A …. 4.8 s 318 …. 4.8 s 319(3) …. 11.5 s 320(5) …. 9.8 s 321 …. 7.18 s 321(2) …. 8.87 s 323 …. 4.8 s 324 …. 4.8 s 325 …. 7.18, 8.87, 9.8 s 326 …. 7.18 s 329(11) …. 6.19, 6.32, 8.11 s 331 …. 8.89 s 338A …. 15.106, 15.115 s 338B …. 4.8, 15.106, 15.115 s 338C …. 4.8 s 338E …. 4.8 s 343A …. 4.7 s 344 …. 8.39 s 370 …. 15.11, 15.13, 15.14 ss 370–390A …. 15.1 s 371 …. 1.10, 15.7

s 371(2) …. 15.16, 15.17 s 371(2)(b) …. 15.16 s 371(2)(f) …. 15.13 s 371(3) …. 15.22 s 371(4) …. 15.8 s 371(5) …. 15.23 s 371(6) …. 15.8 s 371(7) …. 15.13, 15.14, 15.16 s 371A …. 7.30, 15.2, 15.37, 15.43, 15.44, 15.46 ss 373–375 …. 15.28 s 376 …. 15.16 s 378 …. 4.8, 15.2, 15.4, 15.7, 15.86 s 378(1) …. 15.4 s 378(2) …. 15.4 s 378(2)(a) …. 7.30 s 378(4a) …. 15.4 s 378(5)(a) …. 15.4, 15.6, 15.68 s 378(5)(b) …. 15.4, 15.68 s 378(5)(c) …. 15.4 s 378(6) …. 15.6 s 378(6)–(9) …. 15.4 s 378(7) …. 15.6 s 379 …. 15.85 s 380 …. 15.85 s 381 …. 4.8, 15.85 s 382 …. 4.8 s 383 …. 4.8 s 384 …. 4.8

s 385 …. 4.8, 15.85 s 386 …. 4.8, 15.85 s 387 …. 4.8 s 388 …. 4.8, 15.48 s 389 …. 4.8, 15.85 s 390 …. 4.8, 15.13, 15.85, 15.43 s 390A …. 4.8 s 391 …. 15.62, 15.69 ss 391–399 …. 15.1 s 392 …. 15.2, 15.62, 15.63, 15.64, 15.66, 15.71 s 392(d) …. 15.69 s 392(c) …. 15.69 s 393 …. 9.3, 15.71 s 396 …. 15.106, 15.109, 15.115 s 397 …. 15.2, 15.108, 15.109, 15.111 s 397(1) …. 15.106 s 397(2) …. 15.106 s 398 …. 11.14, 15.106, 15.113, 15.115 s 399 …. 15.106, 15.115 ss 400–407 …. 15.1 s 400(1) …. 15.80 s 400(2) …. 15.81 s 401 …. 4.8, 9.3, 15.2, 15.79, 15.80, 15.82 s 401(1) …. 15.84 s 407 …. 4.8 s 409 …. 4.8, 15.1, 15.2, 15.85, 15.86, 15.88, 15.90, 15.91, 15.98, 15.105 s 409(1) …. 15.96, 15.101 s 409(1)(a)–(f) …. 15.92, 15.93, 15.96

s 409(1)(c)–(f) …. 15.96 s 409(1)(g) …. 15.86 s 414 …. 4.8, 15.2, 15.48, 15.53, 15.55, 15.56 ss 414–416 …. 15.1 s 415 …. 15.51 s 416 …. 15.48 s 417(2) …. 15.59 ss 418–421 …. 15.85 ss 418–424 …. 15.1 s 424 …. 15.85 s 424(c) …. 15.102 s 426 …. 4.8, 4.12 s 426(2) …. 15.6 s 426(2)–(4) …. 15.6 s 427 …. 4.8, 4.12 s 428 …. 4.7 s 429 …. 4.7 s 436 …. 4.7 s 437 …. 4.7 s 440A …. 4.8, 15.1, 15.85 s 441 …. 8.7, 8.91, 15.50, 15.50, 15.52, 15.124, 15.125, 15.141 ss 441–462 …. 15.1 s 442 …. 15.124, 15.125 s 443 …. 15.128 s 444 …. 4.8, 8.36, 15.2, 15.117, 15.120, 15.122, 15.123, 15.135 s 444(1)(a) …. 15.117, 15.120 s 444(1)(b) …. 15.117, 15.122 s 444A …. 15.122

s 445 …. 15.117, 15.142 s 445A …. 15.122 s 446 …. 15.142 s 449 …. 15.117 s 451 …. 15.117 s 451A …. 15.117 s 451B …. 15.117 s 454 …. 15.117 s 455 …. 11.14, 15.117 s 456 …. 11.14, 15.117 s 457 …. 15.117 s 458 …. 15.117 s 459 …. 15.117 s 461 …. 15.117 s 462 …. 15.117 s 473 …. 4.8 s 488 …. 4.8 s 527 …. 4.8 s 552 …. 11.9, 11.10 s 553(1) …. 11.42 s 553(2) …. 11.42 s 555A …. 4.7, 11.9, 11.10, 11.42 s 555A(1) …. 11.42 s 556 …. 11.6 s 557 …. 11.23 s 558 …. 11.31, 11.32 s 560 …. 4.7, 11.31, 11.32 s 562 …. 9.38

s 562(2) …. 9.38 s 587 …. 9.5 s 594 …. 15.64 s 596 …. 7.18 Criminal Code Amendment Act (No 2) 1987 …. 11.17, 11.33, 11.35 Criminal Investigation Act 2006 …. 1.18, 5.13, 5.14, 5.16, 5.19 Pt 4 …. 5.19 Pt 5 …. 5.19 Pt 5, Div 2 …. 5.13 Pt 5, Div 3 …. 5.13 Pt 6 …. 5.19 Pt 7 …. 5.19 Pt 8 …. 5.19 Pt 9 …. 5.19 Pt 10 …. 5.19 Pt 11 …. 5.19 Pt 12 …. 5.19 Pt 13 …. 5.19 s 3 …. 5.12, 5.15 s 4 …. 5.19 s 13 …. 5.12, 5.14 s 16 …. 5.20 s 16(3) …. 5.20 s 24 …. 5.15 s 25 …. 5.15 s 26 …. 5.15 s 127 …. 5.14, 5.19 s 128 …. 5.10, 5.12, 5.14, 5.15

s 128(1) …. 5.19 s 128(2) …. 5.19 ss 129–133 …. 5.19 s 135 …. 5.19 ss 136–143 …. 5.19 s 138(2) …. 5.21 ss 139–141 …. 5.26 ss 139(2) …. 5.27 s 140(2) …. 5.27 s 144 …. 5.14 Criminal Investigation (Identifying People) Act 2002 …. 5.19 Sch 1 …. 5.19 Criminal Law Amendment Act 1991 …. 12.34 Criminal Law Amendment (Simple Offences) Act 2004 …. 4.6 Criminal Law (Mentally Impaired Defendants) Act 1996 …. 8.106, 8.124, 8.126 Pt 5 …. 8.124 Pt 6 …. 8.124 ss 3–19 …. 8.124 s 5 …. 8.125 s 8 …. 8.111 s 9 …. 8.124 s 9(e) …. 8.125 s 9(g) …. 8.125 s 10 …. 8.120 s 12 …. 8.124 s 14 …. 8.125 ss 16–19 …. 8.125 s 24 …. 8.125

s 25 …. 8.125 s 35 …. 8.125 Criminal Procedure Act 2004 …. 4.13, 4.21, 5.9, 5.35, 5.73, 5.75, 5.80, 7.16 Pt 3, Div 4 …. 2.11, 5.44, 10.12 Pt 3, s 41(1) …. 4.13 s 3 …. 2.11, 5.10, 5.36, 5.71 s 3(1) …. 4.12, 4.13 ss 5–17 …. 5.9 s 18 …. 5.34 s 20 …. 2.14, 5.9 s 20(5) …. 5.7, 5.9 s 21(1) …. 4.19 s 21(2) …. 4.19 s 21(3) …. 4.19 s 23 …. 5.10, 5.34, 5.44 ss 23–28 …. 5.35 s 24 …. 5.34 s 24(1)(b) …. 5.10 s 24(1)(c) …. 5.10 s 25 …. 8.102 s 28 …. 5.10, 5.12 s 28(3)(a) …. 5.34 s 28(3)(b)(i) …. 5.34 s 28(3)(b)(ii) …. 5.34 s 28(4) …. 5.34 s 30 …. 5.34 s 30(5) …. 5.34 s 31 …. 5.12, 5.34

s 32 …. 5.34 s 33 …. 5.34 s 35 …. 2.14, 5.56 s 38(2) …. 5.53 s 38(2)(b) …. 5.36 s 39 …. 5.53 s 40 …. 4.12, 5.53 s 40(4) …. 5.53 s 41 …. 2.14 s 41(2) …. 5.54 s 41(3) …. 5.54 s 41(4) …. 5.54 s 42 …. 2.14, 5.54, 5.55 s 43 …. 2.14 s 43(1) …. 5.54 s 43(2) …. 5.54 s 43(3) …. 5.54 s 43(4) …. 5.54 s 43(5) …. 5.54 s 43(8) …. 5.54 s 43(9) …. 5.54 s 44 …. 2.14, 5.1, 5.2 s 44(1)(a) …. 5.55 s 44(1)(b) …. 5.55 s 44(2) …. 5.56 s 45 …. 5.56 s 46 …. 5.53 s 47(1) …. 5.54

s 50 …. 5.36 ss 50–55 …. 5.36 s 51 …. 4.25, 5.36 s 51(3) …. 5.36 s 51(4) …. 5.36 s 51(6) …. 5.36 s 52 …. 4.23 ss 52–54 …. 5.36 s 53 …. 4.23 s 54 …. 5.36 s 55 …. 4.23, 4.25 s 56 …. 5.36 s 57 …. 4.23 s 58 …. 5.37 s 59 …. 5.37 s 60 …. 5.53 s 64 …. 5.35, 5.75 s 65 …. 5.39 s 66 …. 5.40 s 67 …. 4.20, 4.21 ss 71–74 …. 5.36 s 76 …. 5.5, 7.20 s 78 …. 6.23 s 80 …. 5.4, 5.9, 5.34, 5.56 s 83 …. 5.4, 5.71 s 83(1) …. 5.4 s 83(6) …. 5.4 s 84 …. 5.71

s 85 …. 5.44, 5.71 s 85(2) …. 5.71 s 87 …. 5.90 s 87(1) …. 5.56 s 88 …. 5.53 s 88(3) …. 4.23 s 90 …. 5.5, 7.20 s 91 …. 5.76 s 92 …. 15.62 s 92(c) …. 15.62 s 93 …. 8.124 s 94(2) …. 5.69, 5.76 s 94(3) …. 5.69 s 94(4) …. 5.69 s 98(1)–(4) …. 5.75 s 98(5) …. 5.75 s 98(6) …. 5.75 s 99(4) …. 5.77 s 99(5) …. 5.77 s 100 …. 5.78 s 101 …. 2.4 ss 101–116 …. 5.80 s 102 …. 5.82 s 103 …. 5.83 s 104(1) …. 5.83 s 104(2) …. 5.83 s 104(3) …. 5.83 s 104(4) …. 5.83

s 104(5) …. 5.83 s 105 …. 5.82 s 106 …. 5.83 s 107 …. 5.76 s 108 …. 5.87, 7.17 s 112 …. 5.92 s 113 …. 8.61, 8.126, 8.133 s 114 …. 5.85 s 114(5) …. 5.85 s 115 …. 5.86 s 116 …. 5.86, 5.87 ss 117–120 …. 5.79 s 118 …. 2.1, 2.4, 2.8, 4.9, 4.18 s 118(4) …. 5.79 s 120 …. 5.79 s 123 …. 4.20 s 126(1)(a) …. 5.76, 7.37 s 126(1)(b) …. 3.35, 3.36 s 126(1)(c) …. 5.76, 7.13 s 126(1)(d) …. 8.124 s 126(1)(e) …. 5.76 s 126(1)(f) …. 5.76 s 126(3) …. 7.13 s 126(5) …. 5.76 s 127 …. 5.76 s 127(2) …. 7.13, 7.37 s 127(2)(a) …. 6.29 s 128 …. 5.76

s 128(1)(b) …. 3.35, 3.36 s 130 …. 8.124 s 131 …. 5.35 s 132 …. 5.35, 5.71, 15.15 s 133 …. 5.74 s 133(3) …. 5.73 s 134 …. 4.14 s 134(3) …. 4.15 s 135 …. 2.25 s 140 …. 4.24, 5.53 s 142 …. 5.76 ss 142–145 …. 5.39 s 143(1) …. 5.87 s 143(3) …. 5.88 s 144 …. 5.41 s 144(3) …. 5.88 s 144(4) …. 5.88 s 145 …. 5.42, 5.91 s 146 …. 7.17, 8.126, 8.133 s 147 …. 5.77 s 147(1) …. 5.43 s 147(3) …. 5.43 s 148 …. 5.43, 5.78, 5.94 s 149 …. 5.43, 5.94, 7.17, 8.126 s 150 …. 5.43 s 150(2) …. 5.70 s 153 …. 10.18 s 154 …. 10.18

s 166(2) …. 4.20 s 180 …. 10.19 s 182 …. 5.9 Sch 1 …. 5.44 Sch 1, Pt C, cl 5 …. 5.58 Sch 1, Div 1 …. 5.34 Sch 1, cl 2 …. 5.72 Sch 1, s 3(3) …. 2.5 Sch 1, cl 5 …. 5.35, 5.71 Sch 1, cl 5(2)(c) …. 15.127 Sch 1, cl 6 …. 5.71 Sch 1, cl 6(2)(b) …. 15.14 Sch 1, cl 6(4) …. 15.21 Sch 1, cl 6(5)(c) …. 15.16 Sch 1, cl 6(5)(d) …. 15.14 Sch 1, cl 6(5)(e) …. 15.16 Sch 1, cl 7 …. 5.35, 5.72 Sch 1, cl 7(1) …. 7.9 Sch 1, cl 7(2) …. 7.9 Sch 1, cl 7(3) …. 5.73 Sch 1, cl 7(3)(a) …. 5.72 Sch 1, cl 7(3)(b) …. 5.72 Sch 1, cl 7(3)(c) …. 5.72 Sch 1, cl 7(4) …. 5.73, 9.39 Sch 1, cl 7(5) …. 15.53 Sch 1, cl 7(6) …. 15.51 Sch 1, cl 8 …. 5.35, 5.72 Sch 1, cl 8(3) …. 15.21

Sch 1, cl 9 …. 5.73 Sch 1, cl 10 …. 15.14 Sch 3 …. 5.39, 5.53 Criminal Procedure Regulations 2005 reg 9 …. 5.12 Form 1 …. 5.12 Criminal Property Confiscation Act 2000 …. 16.33 Director of Public Prosecutions Act 1991 s 11(1)(a) …. 5.9 s 13(a) …. 3.23 District Court of Western Australia Act 1969 s 7 …. 2.6 s 42(1) …. 2.6, 2.8, 2.25 s 42(2) …. 2.8 s 46 …. 2.8 Evidence Act 1906 s 47 …. 9.39 s 97(2) …. 5.88 Explosives and Dangerous Goods Act 1961 …. 1.18 Fish Resources Management Act 1994 s 222 …. 8.17, 8.77 Fish Resources Management Regulations 1995 reg 34 …. 8.17, 8.77 Imperial Act of 1829 …. 1.12 Interpretation Act 1984 …. 10.18 s 13C …. 12.8 s 33 …. 8.10 s 34 …. 8.10

s 67(1a) …. 4.7 s 67(2) …. 4.7 s 69(1) …. 10.18 Juries Act 1957 …. 5.80 s 4 …. 5.81 s 5 …. 5.81 ss 13–16 …. 5.81 s 18 …. 5.81 s 27 …. 5.81 s 32 …. 5.75, 5.81 s 36 …. 5.82 s 36A …. 5.82 s 52 …. 5.83 Sch 2 …. 5.81 Sch 3 …. 5.75, 5.81 Justices Act 1902 ss 47–48 …. 5.35 s 142 …. 7.17 Legal Aid Commission Act 1976 …. 4.28 s 36 …. 4.28 s 37 …. 4.28 Legal Aid WA State Eligibility Guidelines 2006 Ch 6B …. 4.28 s 2.1 …. 4.28 Liquor Licensing Act 1988 …. 8.10 Magistrates Court Act 2004 …. 2.10, 2.15 s 8 …. 2.26 s 10 …. 2.10

s 11 …. 2.10, 2.15 s 11(2)(a) …. 4.15 s 11(4) …. 4.3 s 13 …. 2.10 Magistrates Court (Civil Proceedings) Act 2004 …. 2.10 Magistrates Court Rules 2004 s 44 …. 2.26 Mental Health Act 1996 …. 8.106, 8.125 Mental Health Act 2014 …. 8.125 Pt 13, Div 2 …. 8.125 Mental Health (Consequential Provisions) Act 1996 …. 8.106 Misuse of Drugs Act 1981 …. 1.18, 4.3, 16.1, 16.9, 16.19, 16.21 Pt II …. 16.8 s 3 …. 16.7, 16.12, 16.13, 16.36, 16.39 s 4 …. 16.7 s 5 …. 16.8, 16.10, 16.26 s 5(1)(a)–(c) …. 16.16 s 5(1)(a)–(d) …. 16.11 s 5(1)(d) …. 16.12, 16.25 s 5(1)(e) …. 16.11 s 5(2) …. 16.26 s 6 …. 16.8 s 6(1) …. 16.9, 16.11 s 6(1)(a) …. 16.12, 16.13, 16.35, 16.36 s 6(1)(b) …. 11.23, 16.39 s 6(1)(c) …. 16.35, 16.37 s 6(2) …. 16.9, 16.10, 16.11, 16.12 s 6(3) …. 16.9

s 7 …. 16.8, 16.35 s 7(1) …. 16.9, 16.11 s 7(1)(a) …. 16.12, 16.35 s 7(2) …. 16.9, 16.10, 16.11, 16.39 s 7(3) …. 16.9 s 7A …. 16.8 s 7A(1) …. 16.10, 16.11 s 7A(2) …. 16.10 s 7A(3) …. 16.11 s 8 …. 16.8, 16.35 s 9 …. 16.10 s 11 …. 6.22, 16.9, 16.21, 16.35 s 31(6) …. 6.19, 6.22 s 32A …. 16.33 s 32A(1)(a) …. 16.33 s 32A(3) …. 16.33 s 33 …. 11.9 s 33(1) …. 11.23 s 34 …. 16.11 Sch I …. 16.7, 16.8 Sch II …. 16.7, 16.8 Sch III …. 16.10 Sch IV …. 16.10 Sch V …. 16.9, 16.21, 16.35 Sch VI …. 16.9, 16.21, 16.35 Sch VII …. 16.33 Sch VIII …. 16.33 Official Prosecutions (Accused’s Costs) Act 1973 …. 4.21

Official Prosecutions (Accused’s Costs) Act 2003 s 5 …. 4.21 s 6 …. 4.21 Poisons Act 1964 …. 16.9 s 5 …. 16.7 Sch 8 …. 16.7 Police Act 1892 …. 1.18 s 137 …. 5.12 Prostitution Act 2000 s 16 …. 8.88 s 49 …. 6.22 Protective Custody Act 2000 Pt 3 …. 5.26, 5.29 Pt 4 …. 5.26, 5.29 Road Traffic Act 1974 …. 1.18 s 59 …. 7.9, 7.30, 12.5, 15.43 s 59(1) …. 8.154 s 60 …. 7.30, 15.4 s 61 …. 15.4 s 63 …. 11.9 s 63(1) …. 4.13 s 64 …. 11.9 s 64AA …. 11.9 s 66 …. 5.26 s 90 …. 15.47 Sale of Goods Act 1895 s 20 …. 15.24 Sentencing Act 1995 …. 5.43, 5.78, 6.30

ss 6–8 …. 3.37 s 11 …. 7.2, 7.27, 7.28, 7.30, 7.35 s 11(1) …. 7.35, 7.36 s 11(2) …. 7.36 s 11(3) …. 7.28 s 14 …. 5.36 s 15 …. 6.30 Supreme Court Act 1935 …. 2.4 s 7 …. 2.4 s 7(3) …. 3.5 s 7(5) …. 3.5 s 7(6) …. 3.5 s 16(1)(c) …. 2.4 s 43 …. 3.25 s 46(3) …. 2.4 s 57(2) …. 3.5 s 57(5) …. 3.6 s 58(1)(g) …. 3.11 s 58(1)(h) …. 3.11 s 60 …. 3.11 s 62(1) …. 3.6 s 62(2) …. 3.6 s 62(3) …. 3.6 s 62(5) …. 3.6 Supreme Court Ordinance No 15 1861 s 4 …. 2.4 Territorial Waters Jurisdiction Act 1878 …. 1.5 Weapons Act 1999 …. 1.18

Wildlife Conservation Act 1950 s 26 …. 5.9 Young Offenders Act 1994 …. 10.2 Pts 1–4 …. 10.2 Pt 5 …. 10.3 Pts 6–9 …. 10.2 Pt 7 …. 10.13 Pt 7, Div 4 …. 10.13 Pt 7, Div 5 …. 10.13 Pt 7, Div 6 …. 10.13 Pt 7, Div 7 …. 10.13 Pt 7, Div 9 …. 10.13 Pt 8 …. 10.13 s 3 …. 10.4 s 46 …. 10.13 ss 46–50B …. 10.13 s 47 …. 10.13 s 48 …. 10.13 s 55 …. 10.13 s 56 …. 10.13 s 58 …. 10.13 s 60(d) …. 10.13 s 65B …. 10.13 s 118 …. 10.13 s 120 …. 10.13

Imperial Admiralty Offences (Colonial) Act 1849 …. 1.5 s 1 …. 1.27

Australian Courts Act 1828 …. 1.4 s 24 …. 1.4 Courts (Colonial) Jurisdiction Act 1874 …. 1.5 s 3 …. 1.27 Territorial Waters Jurisdiction Act 1878 …. 1.5

Papua New Guinea Criminal Code Act 1974 …. 1.17 s 23 …. 8.11 Motor Traffic Ordinance 1950 s 23 …. 8.11

United Kingdom 20 Vict V 1856 …. 1.13 37 Vict IV 1873 …. 1.13 53 & 54 Vict c 26 1890 …. 1.12 59 Vict No 11 …. 1.13 Australia Act 1986 …. 1.5, 1.26 s 3(2) …. 1.27 s 11 …. 3.41 Bills of Exchange Act 1882 …. 1.21 Criminal Attempts Act 1981 s 1(1) …. 11.19 Criminal Law Act 1977 s 5 …. 11.37 Homicide Act 1957 s 1(2) …. 12.46 Interpretation Act 9 Geo V No XX s 43 …. 1.4

Merchant Shipping Act 1894 s 686(1) …. 1.27 Statute of Westminster 1931 …. 2.17 s 3 …. 2.17 Theft Act 1968 s 6(1) …. 15.18

Contents Preface Table of Cases Table of Statutes

Chapter One: Introduction Historical background Imperial legislation Commonwealth legislation State legislation Codification of the criminal law Other statutory criminal law Codification of Commonwealth criminal law The courts and interpretation of the Codes Federal jurisdiction of state courts Relevance of Imperial legislation Common features of the criminal law

Chapter Two: The Trial Courts Introduction The Supreme Court The District Court Magistrates Courts Territorial restrictions on jurisdiction

Chapter Three: Appeals

Introduction Queensland appellate courts Western Australian appellate courts Appeals from the Magistrates Court Appeal by person ‘aggrieved’ Appeals from the Supreme Court and the District Court Appeals to the High Court

Chapter Four: Classification of Offences Introduction Mode of trial Time limits for prosecution Costs Presence of person charged Legal aid

Chapter Five: The Trial Process Introduction Bringing matters before the Supreme Court or District Court Prosecutions in the Magistrates Court Hearing a non-indictable offence in the Magistrates Court Hearing an indictable offence in the Magistrates Court Bail Trial in the Supreme Court and District Court

Chapter Six: The Onus of Proof Introduction Proof at common law Proof under the Codes

Proof of jurisdiction Proof in sentencing Presumptions

Chapter Seven: Special Pleas Introduction The Codes s 17 Section 16: prevention of double punishment for same act Plea as to jurisdiction

Chapter Eight: Criminal Responsibility Introduction Mental element Ignorance of the law not a defence — Code (Qld) s 22(1) and (WA) s 22 first para Claim of right — Code (Qld) s 22(2) and (WA) s 22 second para Acts independent of will and accident — Code (Qld) s 23(1) and (WA) s 23A The first limb: act independent of will — Code (Qld) s 23(1)(a) and (WA) s 23A The second limb: event that occurs by accident — Code (Qld) s 23(1) (b) and (WA) s 23B Mistake of fact — Code (Qld) s 24(1) and (WA) s 24 first para Extraordinary emergencies — Code (Qld) and (WA) s 25 Insanity — Code (Qld) and (WA) ss 26 and 27 Mental health legislation Intoxication — Code (Qld) and (WA) s 28 Immature age — Code (Qld) and (WA) s 29 Execution of law, duress and compulsion — Code (Qld) and (WA) s 31

Chapter Nine: Parties to Offences Introduction Liability under s 7: accessories, counsellors, aiders and procurers Liability under ss 8 and 9 Differential verdicts Withdrawal from common purpose Accessory after the fact — s 10 Compounding

Chapter Ten: Special Categories of Liability Introduction Children Spousal liability Corporations

Chapter Eleven: Preliminary Offences Introduction Attempts Conspiracy Incitement

Chapter Twelve: Homicide Introduction Alternative verdicts Killing of a person Causation Unlawfulness The substantive offence Murder

Manslaughter Provocation Diminished responsibility — Code (Qld) s 304A Excessive self-defence — Code (WA) s 248(3) Unlawful assault causing death — Code (WA) s 281 Unlawful striking causing death — Code (Qld) s 314A

Chapter Thirteen: Offences Against the Person Introduction Assault Stalking Other offences involving danger to life or health Matters of excuse Provocation for assault Defensive force Dangerous operation of a vehicle (Qld) and dangerous driving (WA)

Chapter Fourteen: Sexual Offences Introduction Sexual offences of which absence of consent is an element Sexual offences of which absence of consent is not an element Offences that anticipate breaches of morality Bestiality

Chapter Fifteen: Offences Relating to Property Introduction Stealing Regulatory offences Recent possession

Unlawful use of motor vehicle Robbery Burglary Fraud Extortion (blackmail) Damage to property

Chapter Sixteen: Drug Offences Introduction Trafficking Selling and/or supplying Manufacturing, producing and cultivating Index

[page 1]

Chapter One Introduction

1.1 Australia is a federation — that is, a polity that divides responsibility for governance between a central entity (the Commonwealth or federal government) and the states or territories. The Commonwealth Constitution contains no express grant of power to the Commonwealth to deal with criminal law matters. Most criminal law matters, therefore, are dealt with by state or territory law. There are two main systems of criminal law in Australia. The Code states (Queensland, Western Australia, Tasmania and the Northern Territory) have Criminal Codes. The common law states (New South Wales, Victoria and South Australia) have reference to criminal law principles developed at English common law, modified by local courts over the years and modified by statutes. Since 1995, a third system of criminal law has developed in Australia. The Commonwealth now has a Criminal Code, and the Australian Capital Territory has a Criminal Code into which Australian Capital Territory offences are progressively migrating. The Commonwealth and Australian Capital Territory Codes operate differently to other Criminal Codes in Australia: see 1.20. The relevant history of criminal law in Australia is explored below.

Historical background 1.2

In the main, criminal law in Queensland and Western Australia

has a statutory basis. This contrasts fundamentally with the situation prevailing in the criminal law of New South Wales, Victoria, South Australia and England, where the common law is still an important source of the criminal law, thus necessitating a reliance on the decisions of courts as a primary source of the law rather than the legislation of parliament. In Queensland and Western Australia, decided cases must also be studied to understand the criminal law, but these cases do not form the basis of that law — they merely aid the interpretation of the various statutes in which the criminal law is to be found. While the criminal law in the common law jurisdictions has been subjected to much statutory intervention over recent years, such statutes [page 2] assume the continued existence of the common law and do not purport to replace it entirely. However, with respect to crime, the common law in Queensland and Western Australia has been almost completely abrogated.1 1.3 Reference to the constitutional development of Queensland and Western Australia reveals that the respective state parliaments are but one source of the legislation pertaining to the criminal law. Consideration must also be given to both Commonwealth legislation and, at least in an historical sense, Imperial legislation.

Imperial legislation 1.4 The first settlers in New South Wales brought with them so much of the law of England, both common law and statute, as was applicable to their situation and the condition of the infant colony. To clarify doubts concerning important changes to English law after 1788 and the applicability of those changes to New South Wales, the Australian Courts Act 1828 (Imp) was enacted. Section 24 of that Act declared 25 July 1828 to be the date for ascertaining the English law to

be applied in the administration of justice in the courts of New South Wales. Consequently, the law of New South Wales in 1828 comprised so much of the then English law as was applicable to the conditions and requirements of the colony of New South Wales.2 Following separation from New South Wales in 1859, Queensland retained 25 July 1828 as the date for determining the applicability of Imperial statutes; in Western Australia, the relevant date is 1 June 1829.3 1.5 After 1828, the Imperial Parliament retained the power to legislate directly for New South Wales and Queensland. The position was similar for Western Australia for Imperial statutes passed after 1 June 1829. In order so to apply, however, such legislation had to be declared expressly to apply to the particular colony (or from 1901 the particular state) or generally to all the colonies or the dominions.4 Examples of such Imperial statutes dealing with the criminal law that applied in Queensland and Western Australia are: Admiralty Offences (Colonial) Act 1849 (Imp); Courts (Colonial) Jurisdiction Act 1874 (Imp); and Territorial Waters Jurisdiction Act 1878 (Imp). These statutes enabled persons to be tried for offences committed at sea in an area adjacent to an Australian state. More generally, Commonwealth and state [page 3] legislative initiatives have reduced the practical significance of Imperial legislation: see 1.26. No Act of the Parliament of the United Kingdom passed after 3 March 1986, the date of commencement of the Australia Act 1986 (Imp), extends to, or is deemed to extend to, an Australian state.

Commonwealth legislation 1.6 An examination of the Commonwealth Constitution will show that there is no express power for the Commonwealth Parliament to legislate with respect to criminal law as a distinct subject matter. However, s 51(xxxix) of the Constitution empowers the Commonwealth Parliament to make laws with respect to matters that are incidental to the execution of any power vested in the parliament or in the government of the Commonwealth, or in the federal judicature, or in any department or officer of the Commonwealth. The High Court of Australia has held that this provision enables the Commonwealth to enact legislation relating to criminal law, provided its operation is limited to one of the Commonwealth agencies referred to in s 51(xxxix). In Kidman (1915) 20 CLR 425; 21 ALR 405, the High Court decided that the power conferred on the Commonwealth Parliament by s 51(xxxix) of the Constitution is as plenary as any other power to make laws, and that the Crimes Act 1914 (Cth) was a law with respect to matters incidental to the execution of one or more of the powers given to the Commonwealth Parliament under s 51.5 1.7 Where a power is vested exclusively in the Commonwealth Parliament, that parliament alone may create criminal offences with respect to the subject matter of that power; for example, only the Commonwealth Parliament can pass a law forbidding the obstruction of a Commonwealth officer engaged in the discharge of his or her duty. The power given to the Commonwealth Parliament under s 52(i) of the Constitution, exclusive of the states, to make laws ‘with respect to … all places acquired by the Commonwealth for public purposes’ meant that in order for an act on a Commonwealth place to constitute an offence, there needed to be a valid law of the Commonwealth in existence characterising the behaviour as criminal. An example of such a Commonwealth place is a defence base. In Phillips (1970) 125 CLR 93; [1971] ALR 161, therefore, the High Court decided that the Criminal Code (WA) did not extend to the conduct of persons on the Pearce aerodrome, Perth.6 Only the Commonwealth Parliament could criminalise such conduct.

1.8 A remedy to this untenable situation was found through the enactment of legislation by the Commonwealth and each Australian state, including Queensland and Western Australia. The statutes are: Commonwealth Places (Application of Laws) Act 1970 (Cth); Commonwealth Places (Administration of Laws) Act 1970 (Qld); and Commonwealth Places (Administration of Laws) Act 1970 (WA). [page 4] Taken together, the effect of this legislation is that the law of the state in which the Commonwealth place is located now has application in that Commonwealth place.7 1.9 Where the Commonwealth Parliament has merely a concurrent power with the states to make laws with respect to a certain subject matter, each state retains the power to create criminal offences with respect to that subject matter until such time as the Commonwealth Parliament enacts overriding legislation.8 Thus, the Marriage Act 1961 (Cth) s 94 defines the offence of bigamy for the whole of Australia and any Code provisions relating to bigamy are rendered redundant by it. The Commonwealth Parliament may enact legislation defining bigamy, because such legislation is incidental to the execution of the power vested in the Commonwealth Parliament to make laws with respect to marriage.9 1.10 Criminal law enacted by the Commonwealth Parliament is found in a wide range of Acts, including: Customs Act 1901 (Cth) (dependent on the customs powers set out in the Constitution s 90); Defence Force Discipline Act 1982 (Cth) (Constitution s 51(vi)); and Fisheries Management Act 1991 (Cth) (Constitution s 51(x)).

It is also found in legislation enacted pursuant to international treaties entered into by Australia in accordance with the external affairs power (Constitution s 51(xxix)), such as: Air Navigation Act 1920 (Cth); Crimes (Aviation) Act 1991 (Cth); Racial Discrimination Act 1975 (Cth); and Prohibition of Human Cloning for Reproduction Act 2002 (Cth).10 The Crimes Act 1914 (Cth) and the Criminal Code Act 1995 (Cth) also create criminal offences that, unlike those created by the Queensland and Western Australian Parliaments, are limited to matters over which the Commonwealth has legislative power.11 So, for example, the general offence of stealing is provided for in the Code (Qld) s 391 and (WA) s 371, whereas the Code (Cth) s 131.1 is limited to theft of Commonwealth property. The need for Commonwealth criminal law to be supported by a head of power contained in the Commonwealth Constitution has meant that, on occasion, a criminal law of the Commonwealth, or of the [page 5] tribunal constituted to determine liability under a Commonwealth criminal law, has been found to be invalid. Lane v Morrison (2009) 239 CLR 230; 258 ALR 404 is an example of such a situation. This case concerned the conviction of a sailor for an offence by the Australian Military Court contrary to the Defence Force Discipline Act 1982 (Cth). The Constitution Ch III prescribes that the judicial power of the Commonwealth may only be exercised by a judge appointed until retirement age of 70 years, who is unable to be removed except on address by both Houses of Parliament being satisfied of proved misbehaviour or misconduct, and whose salary is guaranteed to be not reduced. However, previous High Court decisions had acknowledged an exception to the requirements of Ch

III where the person facing conviction was a defence force member. That person could be tried by a court martial, defence force magistrate or commanding officer trial. A court martial is an ad hoc tribunal, whose members are appointed only for the length of the proceeding. Defence force magistrates are appointed for a length of time and may be removed. A commanding officer is posted to a position and may be removed provided certain conditions are met. Although such tribunals do not meet the requirements of the Constitution Ch III, the courts had found that military trials, such as court martials, were a valid proceeding, as their existence was supported by the defence power of the Commonwealth: Constitution s 51(vi). Amendments to the Defence Force Discipline Act 1982 (Cth) abolished courts martial and defence force magistrate trials, replacing them with trials by a new body, the Australian Military Court (AMC). Judges of the AMC were military officers, appointed for 10 years (with an automatic rank promotion after 5 years), whose appointment automatically terminated if they ceased to be a member of the defence force or if they were not ‘individually ready’ according to single service requirements. The High Court, in setting aside Lane’s conviction by the AMC, noted that the AMC was not a court martial (which would have saved it under the Constitution s 51(vi)), nor was it a court validly appointed under the Constitution Ch III. It therefore found that the Defence Force Discipline Act was invalid.

State legislation Queensland 1.11 Most of the legislation relating to criminal matters in Queensland and Western Australia is that passed by the respective state parliaments. Between 1828 and 1859, New South Wales legislation operated in the area that was to become the colony of Queensland. Such legislation was mainly concerned with adopting English statutes passed after 25 July 1828 and which were expressed

to apply to New South Wales. After separation, these statutes continued to have force in Queensland but since that time the Queensland Parliament has repealed most of these New South Wales statutes and has enacted its own legislation dealing with various aspects of criminal law.12 In 1886, for example, the Queensland Parliament [page 6] enacted the Justices Act dealing with the powers and duties of justices of the peace, still one of the most important statutes relating to the administration of the criminal justice system of Queensland. The enactment of statutes relating to criminal law by the respective state legislatures had the effect of extinguishing Aboriginal customary law relating to such matters.13

Western Australia 1.12 Western Australia had its constitutional origin in an Imperial Act of 1829: ‘An Act to provide until 31 December 1834, for the government of his Majesty’s settlement of Western Australia on the western coast of New Holland [10 Geo IV c 22].’ In 1830, an Order-inCouncil was made under the Act setting up a Legislative Council in Western Australia. The council was formed in Western Australia in 1832 and existed until the Western Australian Parliament came into existence in 1890 by virtue of another Imperial statute: 53 and 54 Vict c 26. 1.13 The Legislative Council passed ordinances which were laid before both Houses of the Imperial Parliament and subject to disallowance. During its period of existence, the council made ordinances dealing with criminal law; for example, in 1856, 20 Vict No V dealt with justices of the peace, and in 1873, 37 Vict No IV dealt with defects in the existing criminal law. When the Western Australian Parliament came into being, it passed various Acts that

related to criminal law; for example, 59 Vict No 11, dealing with the appointment of justices of the peace.

Codification of the criminal law 1.14 Despite the legislative activity in the Queensland and Western Australian Parliaments, the criminal law of those states remained, until the early 1900s, much the same as in other parts of the British Empire. It was similar to the criminal law to be found today in England, New South Wales, Victoria and South Australia in that it comprised a mixture of common law based on judicial decisions, on the one hand, and statutory law, both Imperial and local, on the other. The common law principles were largely those that the original colonists had brought with them. Thus, matters of excuse and justification for otherwise criminal acts, many procedural aspects of criminal law and the elements of various criminal offences were of common law origin, not being enshrined in any legislation.

Queensland 1.15 With the passing of the Criminal Code Act 1899 (Qld), however, a fundamental change was introduced into the criminal law of Queensland. The Criminal Code, which is Sch 1 to the Criminal Code Act 1899, almost entirely abrogated the above-mentioned common law rules, with the exception of the offence known as ‘contempt of court’. The Queensland criminal law thus became almost wholly a creature of statute,14 with most of the common law offences being incorporated in the Code in statutory form. [page 7] The Code was largely the work of Sir Samuel Griffith, then Chief Justice of Queensland and later to become the first Chief Justice of the High Court of Australia. In preparation for his task of codifying the criminal law, Sir Samuel first compiled a Digest of the Criminal Law

in force in Queensland. His draft Code was later transmitted to the Attorney-General under cover of an explanatory letter dated 20 October 1897. Sir Samuel recommended the repeal or amendment of approximately 250 Imperial, New South Wales and Queensland Acts. The draft Code was then reconsidered by a Royal Commission consisting of the Supreme Court and District Court judges, the Crown prosecutors and the Crown Solicitor, before it was finally introduced into the Queensland Parliament in 1899.

Western Australia 1.16 In 1902, the Western Australian Parliament passed Act No 14 of 1902: ‘An Act to establish a Code of Criminal Law’. This was a Code based largely on the Queensland enactment. This Code was repealed and re-enacted with amendments made between 1902 and 1913 by Act No 28 of 1913, which is still in force in Western Australia, albeit in a much amended form.

Papua New Guinea 1.17 The Code, as in force in Queensland on 1 July 1903, was adopted in Papua (then British New Guinea) by the Criminal Code Ordinance 1902 and in New Guinea, as in force in Queensland on 9 May 1921, by the Laws Repeal and Adopting Ordinance 1921. It was later repealed in New Guinea but re-adopted, with some amendments, by the Laws Repeal and Adopting Ordinance 1924. In New Guinea, the adoption of the Code was only so far as applicable to the circumstances of the territory, but the adopting legislation in Papua contained no such qualification.15

Other statutory criminal law 1.18 The whole of the statutory criminal law passed by the Queensland and Western Australian Parliaments is not contained in their respective Criminal Codes. Many statutes have been enacted which create further criminal offences or otherwise relate to the

criminal law and which have not been incorporated in the Criminal Codes, including the following: Queensland Peace and Good Behaviour Act 1982 Drugs Misuse Act 1986 Weapons Act 1990 Transport Operations (Road Use Management) Act 1995 Racing Act 2002 Summary Offences Act 2005

Western Australia Police Act 1892 Explosives and Dangerous Goods Act 1961 Road Traffic Act 1974 Misuse of Drugs Act 1981 Weapons Act 1999 Criminal Investigation Act 2006

[page 8]

Codification of Commonwealth criminal law 1.19 The enactment by the Commonwealth Parliament of the Criminal Code Act 1995 (Cth) was the first step in the process of codifying Commonwealth criminal law. The Code (Cth), which is a Schedule to the Act, abolishes all common law offences (see s 1.1) and codifies various aspects of criminal law as they apply to Commonwealth offences. The Code (Cth) Ch 2 sets out the principles of criminal responsibility, including: physical and fault elements of offences; circumstances where there is no criminal responsibility; extensions of criminal responsibility, including offences of attempt and conspiracy;16 the burden and standard of proof; corporate criminal responsibility; and geographical jurisdiction. The Code (Cth) also sets out various offences relating to: the integrity and security of the international community (Ch 4);

the security of the Commonwealth (Ch 5); the proper administration of justice (Ch 7); offences against humanity (Ch 8); dangers to the community (Ch 9); and the national infrastructure (Ch 10). 1.20 The Commonwealth Criminal Code, though clearly a Code, is different from the Queensland and Western Australian Codes. The Commonwealth Code recognises what it calls ‘physical elements’ (at common law these were referred to as ‘actus reus’), which are:17 conduct; a result of conduct; or a circumstance in which conduct occurs. As a general rule, each physical element requires proof of an accompanying fault element (at common law these were referred to as ‘mens rea’):18 intention; knowledge; recklessness; or negligence. [page 9] Where a fault element is not specified for any particular physical element, the Commonwealth Criminal Code specifies that a default fault element will apply.19 An offence under Commonwealth law may contain several physical elements. This, in turn, means a number of fault elements are also present. So, for example, the Defence Force Discipline Act 1982 (Cth) s 43(1) provides as follows: (1) A person who is a defence member or a defence civilian is guilty of an offence if:

(a) the person engages in conduct; and (b) the conduct results in the destruction of, or damage to, service property; and (c) the person intends that result.

Deconstructing the result reveals the following elements: being a defence member or defence civilian (physical element of circumstance); the person is reckless as to whether or not he or she is a defence member or defence civilian (default fault element of recklessness); commits conduct (physical element of conduct); the person commits the conduct intentionally (default fault element of intention); which results in the destruction of service property (physical element of result); and the person intentionally caused that result (provided fault element of intention). While the criminal law in Queensland and Western Australia recognises the importance of a prescribed act and an accompanying state of mind for each offence, there is no requirement at Queensland or Western Australian law that for each physical element of an offence there must be an accompanying mental state. Further, there are no default mental states that correlate with particular prescribed acts provided in Queensland or Western Australian law. More will be stated about proof of intent under Queensland and Western Australia law in later chapters.

The courts and interpretation of the Codes 1.21 The courts have developed particular rules that apply to the manner in which a Code should be interpreted. An important decision on the interpretation of a Code is that of the House of Lords in Bank of England v Vagliano Brothers [1891] AC 107 at 144–5. There, the Code in question was the Bills of Exchange Act 1882 (Imp) but, referring generally to Codes, Lord Herschell said:

… with sincere respect to the learned judges who have taken this view, I cannot bring myself to think that this is the proper way to deal with such a statute as the Bills of Exchange Act, which was intended to be a code of the law relating to negotiable instruments. I think the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to start with inquiring how the law previously stood, and then, assuming that it was probably

[page 10] intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view. If a statute, intended to embody in a code a particular branch of the law, is to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object with which it was enacted will be frustrated. The purpose of such a statute surely was that on any point specifically dealt with by it, the law should be ascertained by interpreting the language used instead of, as before, by roaming over a vast number of authorities in order to discover what the law was …

Exceptions to the general approach 1.22 There are important exceptions to this general approach to Code interpretation. As Lord Herschell went on to say in Bank of England v Vagliano Brothers [1891] AC 107 at 145: I am of course far from asserting that resort may never be had to the previous state of the law for the purpose of aiding in the construction of the provisions of the code. If, for example, a provision be of doubtful import, such resort would be perfectly legitimate. Or, again, if in a code of the law of negotiable instruments words be found which have previously acquired a technical meaning, or been used in a sense other than their ordinary one, in relation to such instruments, the same interpretation might well be put upon them in the code. I give these as example merely; they of course, do not exhaust the category.

1.23 The exceptions outlined by Lord Herschell commonly occur with any attempt to codify the law. Some provisions may have doubtful meaning, or words that have previously acquired a technical meaning in law will be used, and, in both cases, reference to the previous legal position must be made. Again, a Code may consciously or inadvertently contain gaps. In such cases, the courts must endeavour to fill them, the most logical approach being to ascertain

the common law as at the time of drafting and then to see whether the Code intended to adopt that common law solution. This has happened under the Criminal Codes, for example, with regard to the rules relating to onus of proof.20 1.24 The approach outlined by Lord Herschell in Bank of England v Vagliano Brothers is of general application to all legislation that purports to be a Code and was applied by the High Court in Brennan (1936) 55 CLR 253 at 263; [1936] ALR 318. There, Dixon and Evatt JJ, referring to Criminal Code (WA) s 8, said: But it forms part of a Code intended to replace the common law, and its language should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law. It is not the proper course to begin by finding how the law stood before the Code, and then to see if the Code will bear an interpretation which will leave the law unaltered.

This mode of interpretation will be seen in many of the cases decided under the Codes.21 [page 11]

Federal jurisdiction of state courts 1.25 Even though the source of law against which the accused is alleged to have offended may be Commonwealth or state, this usually has no bearing on the particular court in which he or she will be tried for the offence. This is because state courts have been invested with jurisdiction to try offences against Commonwealth statutes. Pursuant to the Constitution s 77(iii), the Commonwealth Parliament has invested state courts, within the limits of their several jurisdictions, with federal jurisdiction in all matters in which the High Court could be invested with original jurisdiction.22 The High Court can be invested with criminal jurisdiction to conduct jury trials for breaches of Commonwealth law, so the same jurisdiction can be given to state courts.23 Many other Commonwealth statutes invest state courts with

particular federal jurisdiction, some of it relating to criminal matters. The Marriage Act 1961 (Cth) is but one example: see 1.9.

Relevance of Imperial legislation 1.26 Reference has been made above to the historical significance of Imperial legislation as a source of law in Queensland and Western Australia. However, this is now of little practical significance to the administration of criminal law in the states because of the enactment of the Australia Acts by the state, Commonwealth and United Kingdom Parliaments, namely: Australia Acts (Request) Act 1985 (Qld) and (WA); Australia (Request and Consent) Act 1985 (Cth); Australia Act 1986 (Cth); and Australia Act 1986 (Imp). 1.27 As a result of this legislation, and subject to the limitations imposed by the Commonwealth Constitution, the states have a plenary power to legislate extra-territorially for peace, order and good government. This includes the capacity to repeal previous Imperial legislation24 and is of particular significance in respect of offences committed in the seas adjacent to a state. Jurisdiction in respect of such offences can now be exercised by state courts applying the law of the particular state.25 This has obviated the need to rely on Imperial legislation for offences committed offshore, as in Oteri [1975] WAR 120, affirmed by the Privy Council at (1976) 11 ALR 142; 51 ALJR 122. In Oteri, the accused were Australian citizens normally resident at Fremantle in Western Australia. They were fishermen, charged on an indictment in the District Court containing counts alleging that, on a vessel on the high seas 22 miles from the coast, ‘within the jurisdiction of the Admiralty of England’, each stole a crayfish pot. The accused demurred to the counts on the ground that they did not disclose offences under the laws of Western Australia or

[page 12] otherwise triable in Western Australia. In addition, the accused pleaded that the District Court had no jurisdiction to try them. It was held by the Court of Criminal Appeal of Western Australia, and subsequently by the Judicial Committee of the Privy Council, that the District Court had jurisdiction to try the accused by virtue of the Admiralty Offences (Colonial) Act (Imp) 1849 s 1, read with the Merchant Shipping Act 1894 (Imp) s 686(1) and the Courts (Colonial Jurisdiction) Act 1874 (Imp) s 3. Such an approach is no longer necessary.26

Common features of the criminal law 1.28 This is not the place for a debate concerning the proper realm of the criminal law. It is, however, worth making some preliminary comments contrasting criminal law with civil law. Civil law is concerned with compensating a person who has suffered harm (a plaintiff), for the harm he or she suffered. The person alleged to have caused the harm is called the defendant. By contrast, criminal law is concerned with punishment, more than compensation. In Bateman (1925) 19 Cr App Rep 8, Hewitt LCJ noted: 27 … in order to establish criminal liability the facts must be such that the negligence of the defendant went beyond a mere matter of compensation between subjects and showed such a disregard for the life and safety of others as to amount to a crime against the State and conduct deserving of punishment.

A criminal law action is usually commenced by the state, referred to in most cases as the Queen or the Director of Public Prosecutions. The person arguing the case in court may be referred to as the prosecutor. A civil action must be proved ‘on the balance of probabilities’ (that is, more likely than not). Criminal offences are required to be proved ‘beyond a reasonable doubt’. More will be said about burden and standard of proof in Chapter 6.

_________________________________ 1.

Criminal Code Act 1899 (Qld) ss 2, 5; Criminal Code Act 1913 (WA) ss 2, 4.

2. 3.

See Mabo (1992) 175 CLR 1 at 34–8, 76–9; 107 ALR 1. Supreme Court Act 1867 (Qld) s 20 (now Supreme Court Act 1995 (Qld) s 199); Interpretation Act 9 Geo V No XX (WA) s 43.

4.

Australia, along with other Commonwealth countries such as Canada, was, from the late nineteenth century, termed a dominion, meaning a semi-autonomous polity within the British Empire. Following World War II, the term fell into disuse, with the decline of colonialism. The legislation also applied to British possessions where this term included the dominions. See Kidman (1915) 20 CLR 425 at 440, 448–50, 460–1; 21 ALR 405.

5. 6. 7.

8. 9.

See also Worthing v Rowell and Muston Pty Ltd (1970) 123 CLR 89; Tucs v Algie (1985) 38 SASR 490; Holmes (1988) 38 A Crim R 245; Pinkstone and Yanko (2001) 24 WAR 406. The law of the state applies subject to other constitutional limitations, such as the operation of the Constitution s 109: see 1.9; Bond (2000) 201 CLR 213; 169 ALR 607; Cameron (2004) 142 A Crim R 424. Constitution s 109; O’Brien [1981] WAR 305 at 307; (1981) 35 ALR 473. Constitution s 51(xxi); Attorney-General (Vic) v Commonwealth (1962) 107 CLR 529; [1962] ALR 673, where the Marriage Act 1961 s 94 was held to be valid. See also Flanders [1976] Qd R 153; Loewenthal (1974) 131 CLR 338; 4 ALR 293.

10. This legislation relies also on the Commonwealth’s power to legislate on the import and export of human material, patenting and trade and commerce. 11. See O’Brien [1981] WAR 305; (1981) 35 ALR 473. 12. See New South Wales Acts (Termination of Application) Act 1973 (Qld). 13. See Walker v New South Wales (1994) 182 CLR 45; 126 ALR 321. 14. Criminal Code Act 1899 (Qld) ss 2, 5, 8; Criminal Code Act 1913 (WA) ss 2, 4, 7; see also Lovelady; Ex parte Attorney-General [1982] WAR 65 at 66. 15. E J Edwards, R A Hayes and R S O’Regan, Cases on the Criminal Code, Law Book Co, Sydney, 1969, p 9. See also Ebulya [1964] P & NGLR 200 at 221, 222; Criminal Code Act 1974 (PNG). 16. These replace equivalent provisions in the Crimes Act 1914 (Cth) and will eventually be extended to all offences. Note that the Crimes Act 1914 (Cth) s 6 deals with an accessory after the fact: see 9.36ff. 17. Criminal Code 1995 (Cth) s 4.1. 18. Criminal Code 1995 (Cth) ss 3.2, 5.1. 19. Criminal Code 1995 (Cth) s 5.6. 20. See Mullen [1938] St R Qd 97; 6.16. 21. See Bowman [1980] WAR 65 at 69; Hughes [1983] Qd R 92 at 95–6; Vallance (1961) 108 CLR 56 at 76; [1963] ALR 461; Tranby [1992] 1 Qd R 432; Krausky [1990] 2 Qd R 177; Scarth [1945] St R Qd 38; Mellifont (1991) 173 CLR 289 at 309; 104 ALR 89; Barlow (1997) 188 CLR 1 at 31–3; 144 ALR 317; Re DPP Reference (No 1 of 2002) (2002) 12 NTLR 176. See also Roberts v State of Western Australia (2007) 34 WAR 1.

22. Judiciary Act 1903 (Cth) s 39(2). 23. See Judiciary Act 1903 (Cth) s 30(c). 24. Australia Act 1986 (UK) s 3(2). 25. Seas and Submerged Lands Act 1973 (Cth); Coastal Waters (State Powers) Act 1980 (Cth); Crimes at Sea Act 2000 (Cth); Crimes at Sea Act 2001 (Qld); Crimes at Sea Act 2000 (WA). 26. See Olney [1996] 1 Qd R 187. 27. See Olney [1996] 1 Qd R 187.

[page 13]

Chapter Two The Trial Courts

Introduction 2.1 For the more serious offences, the courts exercising a general jurisdiction in criminal law in Queensland and Western Australia are the Supreme and District Courts. At a lower level, there are Magistrates Courts. Supreme Court and District Court trials are presided over by a judge, who determines all questions of law, while questions of fact, including the ultimate question of guilt or innocence, are determined by a jury. In Western Australia, a Supreme Court or District Court judge may deal with matters alone (without a jury) in accordance with the terms of the Criminal Procedure Act 2004 (WA) s 118. There is some disagreement over whether or not the accused needs to show exceptional circumstances in an application for a trial by judge alone.1 Provision is also made in Queensland for a judge to deal with matters alone (without a jury), provided the conditions in the Code (Qld) s 615 are met. 2.2 The Magistrates Courts are usually constituted by a stipendiary magistrate who determines all questions of law and fact without the assistance of a jury, although, in some circumstances, these lower courts may be constituted by justices of the peace: see Chapter 5. A matter dealt with in a Magistrates Court is said to be decided summarily or in a summary way,2 while the determination process by a judge and jury in the Supreme Court or District Court is referred to as a trial at nisi prius, a reference to the trial of matters before a judge

of the common law courts and a jury in provincial England, rather than before the King’s Courts in Westminster. In addition to those courts of general criminal law jurisdiction, there is a Children’s Court in each state: see 10.2–10.13.3 [page 14]

The Supreme Court Queensland 2.3 In Queensland, the Constitution of Queensland Act 2001 s 57 provides that there must be a Supreme Court of Queensland.4 The court is divided into the Office of Chief Justice, the Trial Division and the Court of Appeal.5 In the Trial Division, the right to trial by jury under an Act is preserved by the Supreme Court Act 1995 (Qld) s 203 and the Code (Qld) s 604, but note the procedure for the summary determination of non-indictable offences in the Code (Qld) s 651: see 4.14. The Supreme Court has all the jurisdiction necessary for the administration of justice in Queensland.6 The Supreme Court originally sat only in Brisbane but now sits in places as determined by the Chief Justice.7 Further, Central, Northern and Far Northern Districts of the Supreme Court have since been established with sittings being held, respectively, in Rockhampton, Townsville and Cairns.8 These are conducted by the Central, Northern and Far Northern judges, respectively.9

Western Australia 2.4 In Western Australia, the Supreme Court is established by the Supreme Court Act 1935, which reconstituted a court first established in 1861.10 The exercise of the court’s jurisdiction is divided between the General Division and the Court of Appeal.11 The jurisdiction of the

Supreme Court is set out in the Supreme Court Act 1935 (WA) s 16(1) (c). Supreme Court trials may be held before a judge and jury or before a judge sitting alone, although a judge-alone trial requires an application to the court by the prosecutor or the accused.12 The considerations relevant to deciding the outcome of such an application were considered in State of Western Australia v Rayney (2011) 42 WAR 383. In country areas of Western Australia, the Supreme Court sits in circuit towns as determined by the Chief Justice.13

Jurisdiction 2.5 The Supreme Court’s jurisdiction, although extensive, is limited to the trial of offenders who could have been dealt with by the common law courts possessing criminal jurisdiction in England. This, in effect, means the trial of offences commenced by the presentation of an indictment which, in Queensland, is in the name of the King or Queen14 and, in Western Australia, in the name of the State of [page 15] Western Australia.15 This means that the jurisdiction of the Supreme Court extends to all indictable offences: see Chapter 4. For the criminal jurisdiction conferred on state courts by the Commonwealth Parliament, see 1.25.

The District Court 2.6 The Constitution of Queensland Act 2001 (Qld) s 57 provides that there must be a District Court of Queensland and, in Western Australia, the District Court is established by the District Court of Western Australia Act 1969 (WA) s 7. Like the Supreme Court, the District Court will try persons charged with indictable offences.16

Queensland

2.7 Where the Queensland Supreme Court may deal with all indictable offences, the District Court of that state is limited to those for which the maximum term of imprisonment does not exceed 14 years and to those that are listed in the District Court of Queensland Act 1967 (Qld) s 61.17 Trial is before a judge and jury.18 Also, in Queensland, the District Court may deal summarily with certain nonindictable offences in the circumstances set out in the Code s 651: see 4.14.

Western Australia 2.8 In Western Australia, the District Court jurisdiction extends to those offences for which the maximum term is not life imprisonment.19 In practice, all such offences are dealt with in the District Court and only persons liable to a greater penalty are tried in the Supreme Court. District Court trials may be held before a judge and jury, in accordance with the District Court of Western Australia Act 1969 (WA) s 46 or before a judge sitting alone, again following an application to the court.20

Jurisdiction 2.9 The situation regarding the exercise of federal and Imperial jurisdiction by the District Court is the same as with the Supreme Court: see 2.5.

Magistrates Courts 2.10 Magistrates Courts exercise both a civil and criminal jurisdiction.21 In Queensland, the courts are established, for civil matters, under the Magistrates [page 16] Courts Act 1921 (Qld) and, for criminal matters, under the Justices Act

1886 (Qld). In Western Australia, the court is established, for civil matters, under the Magistrates Court (Civil Proceedings) Act 2004 (WA) and, for criminal matters, under the Magistrates Court Act 2004 (WA).22 These courts function without a jury, with all questions of law and fact determined by the magistrate or the justices of the peace constituting the court, as the case may be.23 In this way, these courts differ markedly from the Supreme Court and the District Court.

Jurisdiction Committal proceedings — Queensland 2.11 In criminal matters, there are two distinct types of jurisdiction exercised by a Magistrates Court in Queensland. First, there is the jurisdiction to conduct an examination of witnesses with respect to an indictable offence, to determine whether a prima facie case has been made out against a person charged with such an offence.24 These preliminary inquiries, or committal proceedings as they are often called, involve an analysis of the evidence to see whether there is sufficient evidence to commit the defendant for trial before a judge and jury in the Supreme Court or District Court.25 If the defendant pleads guilty to the charge, there will be a committal for sentence to the Supreme Court or District Court.26 If the court is of the opinion that there is insufficient evidence to commit for trial, the defendant is discharged.27 2.12 A new type of committal procedure was introduced in Queensland by the Civil and Criminal Jurisdiction Reform and Modernisation Act 2010 (Qld). This new type of committal proceeding, referred to as a registry committal, can only be held where: the defendant is legally represented; all evidence provided by prosecution witnesses is provided in written statements which have been filed; the defendant legal representative has notified the Clerk of the

Court and the prosecution that the defendant does not intend to give evidence or call witnesses; and the defendant is not in custody nor in breach of bail. If the above conditions are met, the Clerk of the Court may commit the matter for trial in the absence of the parties. [page 17] 2.13 Committal proceedings are not of a judicial character — they merely determine whether the defendant should stand trial. In Cox v Coleridge (1822) 1 B & C 37 at 51–2, Holroyd J said:28 A magistrate in cases like the present does not act as a Court of Justice; he is only an officer deputed by the law to enter into a preliminary inquiry and the law which casts upon him that jurisdiction presumes that he will do his duty in enquiring whether the party ought to be committed or not.

The magistrate must decide whether a prima facie case exists against the defendant. To do this, he or she must determine whether the prosecution has adduced evidence that, if believed and unexplained, would be sufficient to support a verdict of guilty. Evidence supports a verdict if a reasonable jury, properly directed as to the law to be applied, could reach that verdict on that evidence. The question is not whether any reasonable jury would convict on that evidence but whether, in the magistrate’s opinion, that jury could convict. The procedure recognises that one reasonable person may reach a conclusion differing from that reached by another reasonable person. It is probably fair to say that magistrates tend to take an optimistic view, from the prosecution’s perspective, of the amount of evidence that may convince a reasonable jury of the guilt of the accused. Such an attitude would seem to be desirable to prevent the filtering out of cases that should have gone to trial. On the other hand, a magistrate should not commit the defendant merely because there is some evidence that tends to show that he or she may have committed the offence.

Commitals can be done orally or ‘on the papers’. An amendment to the Justices Act 1886 (Qld) s 110A in 2010 permits a magistrate to undertake a paper committal for a defendant not legally represented if certain conditions are met. Previously this could only have been done where a person was represented by a lawyer.

Committal proceedings — Western Australia 2.14 Western Australia has introduced a new form of committal which has replaced the preliminary hearing with a regime in which the Director of Public Prosecutions makes all of the prosecution decisions.29 For all intents and purposes, therefore, committal proceedings no longer exist in Western Australia; the Magistrates Court no longer makes a decision on whether to commit the matter to trial or not.30 The Director of Public Prosecutions has a statutory duty of disclosure and the Magistrates Court monitors compliance with this.31 The court must be satisfied that the accused has received and considered the prosecution notice, understands the charge and the purpose of proceedings and has been served [page 18] with the disclosure material. If the accused pleads guilty, he or she is committed for sentence to the relevant court.32 If the accused pleads not guilty, the matter is adjourned and the prosecutor must make full disclosure of the evidential material in relation to the matter.33 This material includes any confessional statements, witness statements, documents or exhibits that may assist the accused’s defence.34 The accused must then plead to the charge and the matter is committed to trial or sentence to the appropriate court, depending on the plea.35

Determination of offences 2.15 In addition to conducting committal proceedings in respect of indictable offences (Queensland) and monitoring compliance with the

Director of Public Prosecution’s duty of disclosure (Western Australia), the Magistrates Court has jurisdiction to hear and determine all non-indictable offences and, where specific provision is made, indictable offences. The Justices Act 1886 (Qld) provides that whenever by any Act of Parliament or regulations made under it any person is made liable to a penalty or punishment, or to pay a sum of money, for any offence, act, or omission not by that Act of Parliament declared to be an indictable offence, and no other provision is made for the trial of that person, the matter may be heard and determined by the court in a summary manner.36 Recent amendments to the Justices Act direct that certain offences must be determined summarily. These provisions will be discussed in Chapter 4.37 Similarly, the Magistrates Court Act 2004 (WA) enables the court to hear and determine simple offences.38 There is no general jurisdiction in the Magistrates Court to hear and determine indictable offences. However, provision is made to enable the court to exercise summary jurisdiction over certain indictable offences: see Chapter 4. This is usually so because the offences, even though indictable and therefore of a serious nature, are committed in circumstances where it is appropriate that they be dealt with by a magistrate.

Federal jurisdiction 2.16 Federal jurisdiction has been conferred on the Magistrates Court in much the same way it has been conferred on the state Supreme Court and District Court. However, the Judiciary Act 1903 (Cth) provides that federal jurisdiction may be exercised only by a stipendiary magistrate or by a specially authorised magistrate.39 Thus, justices of the peace may not exercise federal jurisdiction. [page 19]

Territorial restrictions on jurisdiction

2.17 In addition to the types of matters over which a court can exercise jurisdiction, a further limitation on all state courts arises through the requirement that they can only enforce the laws that are applicable in that state. This will comprise laws that derive from both the legislature of the particular state and the Commonwealth. Prior to the enactment of the Australia Acts,40 the criminal law enacted by a state legislature extended only to acts, events or things having a sufficient connection with the territory of that state. The Australia Acts removed the constitutional limitations on the state courts,41 permitting them to hear matters related to Commonwealth laws.

Relevance of state borders to jurisdiction 2.18 Where all the acts and events that constitute an offence occur within the boundaries of Queensland or Western Australia, the courts of that state will have jurisdiction: Code (Qld) s 12(1); (WA) s 12. The state courts will not have jurisdiction where no element of the offence occurs within the state. In Hildebrandt [1964] Qd R 43, the accused was convicted, in the District Court of Queensland, of offences that were constituted by certain acts perpetrated by him while in an aircraft on a flight from Sydney to Brisbane. It was held by the Court of Criminal Appeal that the Code did not apply to acts done in New South Wales, and that the District Court did not have jurisdiction to try the accused for matters that occurred entirely beyond the Queensland border.42

When an element of an offence occurs outside state border 2.19 The Codes also make provision for when an offence consists of more than one element and not all elements occur within the state. In that case, the Code (Qld) s 12(2), (3), (4) and (WA) s 12(1) enable the state court to exercise jurisdiction provided one of the elements occurred within that state. The Queensland provision requires that it would be an offence within the state if all the elements had occurred there and provides that it is a defence to the charge for the accused to prove that he or she

did not intend that the act or omission should have effect in the state. Further, the Code (Qld) s 12 does not extend, in the case of an offence involving a killing, to the situation where the only material event that occurs in Queensland is the death of the victim, where that death was caused by an act done or omitted to be done by the accused at a place not in Queensland and at a time when the victim was not in that state. [page 20] The Terrorism (Preventative Detention) Act 2005 (Qld) now provides that Queensland courts may exercise jurisdiction under that Act even where certain acts were done (or proposed to be done) outside Queensland. The Code (WA) s 12(2) gives application to s 12(1), even if the only element that occurs in Western Australia is an event, circumstance or state of affairs caused by an act or omission that occurs outside the state.43 2.20 The terms of the Code (Qld) and (WA) s 12 anticipated and resolved the problem of the kind that subsequently arose in Ward (1980) 142 CLR 308; 29 ALR 175 in Victoria, where there was no statutory equivalent to this provision. There, the accused, while standing in Victoria, shot and killed a person in New South Wales. The boundary between the two states was ruled to fall between where the accused and the victim were standing, and a conviction for murder by the Victorian Supreme Court was therefore quashed due to lack of jurisdiction by the Victorian court. Under the Code (Qld) and (WA) s 12, one element of the offence would have occurred in the state where the accused was standing (the death-causing action of the accused), thus giving that state jurisdiction.44 2.21 The Code (Qld) and (WA) s 13 further extends the capacity of a state court to deal with conduct that occurs outside the state boundary. The provision ensures that the accused who, outside of the state, aids, enables, counsels or procures anyone to commit an offence

that is actually committed in the state, is taken to have committed the offence that is committed in the state. In effect, this section applies the party provisions of the Code to the situation where the assistance is given outside the state for the commission of an offence in the state: see Chapter 9. 2.22 While the Code (Qld) and (WA) s 13 is concerned with initiating conduct by an accused who was out of the state and with offences that occur within the state, the Code (Qld) and (WA) s 14 provides for the situation where the accused, within the state, procures another to do an act at a place outside the state. The accused is taken to have committed an offence within the state provided, if he or she had done the act in the state, it would be an offence there and provided further that, if he or she had done the act in the place outside the state, the accused would have committed an offence against the laws in force in that other place. The punishment imposed must not exceed that to which the accused would have been liable in the other place.

Offences occurring offshore 2.23 Reference has been made to the steps taken in order to give the District Court of Western Australia jurisdiction over events that occurred off the coast of Western Australia.45 Since then, the Commonwealth and states have enacted legislation to overcome the necessity of utilising Imperial legislation, somewhat artificially as in Oteri (1976) 11 ALR 142; 51 ALJR 122, to give a state court jurisdiction. Commonwealth legislation comprises the Crimes at Sea Act 2000 (Cth) and the [page 21] Coastal Waters (State Powers) Act 1980 (Cth), the latter giving state legislatures full capacity to enact legislation that will apply over the territorial sea, this being the area within 12 miles of the coastline. Prior

to the enactment of the Seas and Submerged Lands Act 1973 (Cth), that area was considered to be part of the state. However, that 1973 Act vested sovereignty over the territorial sea in the Commonwealth Parliament, limiting state sovereignty to the area down to the lowwater mark. Nonetheless, the Coastal Waters (State Powers) Act 1980 (Cth) s 5 now enables state legislation to have application within the territorial sea.

Cooperative legislative scheme 2.24 In relation to the application of the criminal law of the states extra-territorially in the areas adjacent to the coast, the Commonwealth and the states have given statutory effect to a cooperative scheme which is set out, as a schedule, in the Crimes at Sea Act 2000 (Cth), Crimes at Sea Act 2000 (WA) and Crimes at Sea Act 2001 (Qld), respectively. This scheme enables the criminal law of each state to apply in the area adjacent to the state up to a distance of 200 nautical miles or to the outer limit of the continental shelf, whichever is the greater distance. In the area to a distance of 12 nautical miles, this is by force of the law of the state; and, in the area beyond that, by force of the law of the Commonwealth.46 The scheme applies to offences committed on Australian ships47 and foreign ships.48 In the case of a foreign ship, it is a pre-condition to the matter proceeding in some cases that written consent be given by the Commonwealth Attorney-General.49

Territorial jurisdiction of District Courts 2.25 The territorial jurisdiction of each District Court is the same as that of the Supreme Court.50 However, the District Court of Queensland Act 1967 (Qld) s 63 provides that, when an accused person is committed for trial to a District Court not being the court of the district within which the offence is alleged to have been committed, a judge of the Supreme Court or a District Court may order the trial to be held in the court of that district.51 Similarly, a change of venue may be ordered in Western Australia if there is good

reason to do so.52 Recently, in Boyd v State of Western Australia [2012] WASC 388, the Western Australian Supreme Court referred to the considerations relevant in deciding whether to change the venue of [page 22] the trial. These included whether there are suitable facilities and security available at the proposed location.53

Magistrates Courts 2.26 The jurisdiction of the courts of summary jurisdiction in Queensland and Western Australia to deal with offences committed offshore is the same as that set out above in relation to the Supreme Courts of the states. In relation to offences within the state, the territorial jurisdiction of each Magistrates Court in Queensland is limited. Normally, the court within the district in which the offence or breach of duty was committed is the only court possessing jurisdiction to hear the matter.54 In Western Australia, Magistrates Court registries have been established throughout the state and prosecutions are to be conducted through the registry nearest to the place where the alleged offence was committed.55

Extradition procedures 2.27 While a state court may have jurisdiction to deal with a person alleged to have committed an offence, the accused will need to be within the state in order to attend before the relevant court. Where the accused is known to be in some other state or territory in Australia, prosecuting authorities are able to utilise the extradition procedures, as set out in the Service and Execution of Process Act 1992 (Cth), to arrange for his or her return to the state of prosecution. Where the

accused is known to be in another country, similar steps may be taken, in the case of a country that has entered into treaty arrangements with Australia, by relying on the procedures in the Extradition Act 1988 (Cth) and, in other cases, through diplomatic channels.56 _________________________________ 1.

Compare Arthurs v State of Western Australia [2007] WASC 182 with TVM v State of Western Australia (2007) 180 A Crim R 183.

2. 3.

Code (Qld) s 1; (WA) s 1(5). Children’s Court Act 1992 (Qld); Children’s Court of Western Australia Act 1988 (WA).

4. 5.

The court was established in 1861 and reconstituted in 1867: see Supreme Court Act 1861 (Qld); Supreme Court Act 1867 (Qld); Supreme Court Act 1995 (Qld) Pts 2, 9. Supreme Court of Queensland Act 1991 (Qld) s 16.

6. 7.

Constitution of Queensland Act 2001 (Qld) s 58. Supreme Court Act 1995 (Qld) s 286(2).

8. 9.

Supreme Court Act 1895 (Qld) s 4; Supreme Court Act 1995 (Qld) s 267. Supreme Court Act 1895 (Qld) s 6; Supreme Court Act 1995 (Qld) ss 268, 269, 287.

10. Supreme Court Ordinance No 15 1861 (WA) s 4. 11. Supreme Court Act 1935 (WA) s 7. 12. Criminal Procedure Act 2004 (WA) ss 101, 118; see 5.80. 13. Supreme Court Act 1935 (WA) s 46(3). 14. Criminal Practice Rules 1999 (Qld) Sch 2, Form 1. 15. Criminal Procedure Act 2004 (WA) Sch 1, s 3(3). 16. District Court of Queensland Act 1967 (Qld) s 60; District Court of Western Australia Act 1969 (WA) s 42(1). 17. These are Code (Qld) ss 64, 65, 208, 210, 213, 215, 216, 219, 222, 229B, 315, 316, 317, 318, 319, 319A, 349, 352, 398, 409, 411, 412, 415, 419, 421, 461, 469 and 469A, as well as certain offences in the Corrective Services Act 2006 (Qld) s 122. 18. District Court of Queensland Act 1967 (Qld) s 66. 19. District Court of Western Australia Act 1969 (WA) s 42(1), (2). See Melville (2003) 142 A Crim R 38. 20. Criminal Procedure Act 2004 (WA) s 118; see 5.80. 21. In Queensland until 1964 and in Western Australia until 2004, these were known as Courts of Petty Sessions when exercising criminal jurisdiction. 22. Magistrates Court Act 2004 (WA) ss 10, 11. 23. Justices Act 1886 (Qld) ss 27, 30; Magistrates Court Act 2004 (WA) s 13. 24. In Queensland, ‘defendant’ describes the person appearing in a Magistrates Court and ‘accused’ describes the person appearing before the Supreme or District Court: see

Justices Act 1886 (Qld) s 4. In Western Australia, ‘accused’ describes the person appearing in any court: see Criminal Procedure Act 2004 (WA) s 3. 25. Justices Act 1886 (Qld) s 104(2); Michael v Musk (2004) 148 A Crim R 140; see 5.46–5.52. 26. Justices Act 1886 (Qld) s 113; Criminal Procedure Act 2004 (WA) Pt 3, Div 4. 27. Justices Act 1886 (Qld) s 104(2). 28. See May v O’Sullivan (1955) 92 CLR 654 at 658; [1955] ALR 671; Zanetti v Hill (1962) 108 CLR 433 at 442; [1963] ALR 165; Schwarten; Ex parte Wildschut [1965] Qd R 276 at 282–3; Amman v Wegener (1972) 129 CLR 415 at 435; [1972–73] ALR 675; Sloan (1988) 32 A Crim R 366; Christianos v Young [1990] 3 WAR 303; Doney (1990) 171 CLR 207 at 214–15; 96 ALR 539. For the duty to act judicially, see Sankey v Whitlam (1978) 142 CLR 1 at 83; 21 ALR 505; Stipendiary Magistrate at Brisbane; Ex parte Kornhauser [1992] 2 Qd R 150 at 151. 29. Criminal Procedure Act 2004 (WA) s 20. 30. See Re Grinter; Ex parte Hall (2004) 183 FLR 148 at [192]. 31. Criminal Procedure Act 2004 (WA) s 35. See Re Grinter; Ex parte Hall (2004) 183 FLR 148. 32. Criminal Procedure Act 2004 (WA) s 41. 33. An accused can consent to a committal without full disclosure: Criminal Procedure Act 2004 (WA) s 43. 34. Criminal Procedure Act 2004 (WA) s 42. 35. Criminal Procedure Act 2004 (WA) s 44. 36. Justices Act 1886 (Qld) s 19; Code (Qld) s 1; (WA) s 1(5). 37. Justices Act 1886 (Qld) ss 552BA, 552BB. 38. Magistrates Court Act 2004 (WA) s 11. 39. Judiciary Act 1903 (Cth) s 39(2)(d). 40. Australia Act (Request) Act 1985 (Qld); Australia Act (Request) Act 1985 (WA); Australia Act (Request and Consent) Act 1985 (Cth); Australia Act 1986 (UK). 41. The Statute of Westminster 1931 (Imp) did not give extra-territorial jurisdiction to state parliaments, but only to the Commonwealth Parliament in its constitutional areas of competence (see s 3); but see now the Australia Acts (see above n 40) s 2(1). 42. See also Sillery [1980] Qd R 374; (1980) 30 ALR 653; Weissensteiner (1992) 62 A Crim R 96; Thompson (1989) 169 CLR 1; 86 ALR 1; Marchesi (2005) 30 WAR 359. 43. Note the proviso in Code (WA) s 12(3). 44. See Leivers and Ballinger (1998) 101 A Crim R 175; Goldie (2001) 26 SR (WA) 348; Pinkstone (2004) 219 CLR 444; 206 ALR 84. 45. See Oteri (1976) 11 ALR 142; 51 ALJR 122; 1.27. 46. Clause 2 of the schedules. 47. ‘Australian ship’ means a ship registered in Australia; that operates, or is controlled, from a base in Australia and is not registered under the law of another country; or a ship that belongs to an arm of the defence force: see cl 1 of the Schedules to Crimes at Sea Act 2000 (Cth); Crimes at Sea Act 2000 (WA); Crimes at Sea Act 2001 (Qld). 48. A ‘foreign ship’ is one that is not an Australian ship. 49. This consent is required if the ship is registered under the law of a country other than

Australia and the country of registration has, under international law, jurisdiction over the alleged offence: see cl 7 of the Schedules to Crimes at Sea Act 2000 (Cth); Crimes at Sea Act 2000 (WA); Crimes at Sea Act 2001 (Qld). 50. District Court of Queensland Act 1967 (Qld) s 60; District Court of Western Australia Act 1969 (WA) s 42(1). 51. See Yanner [1998] 2 Qd R 208. 52. Criminal Procedure Act 2004 (WA) s 135. 53. Boyd v State of Western Australia [2012] WASC 388 at [11]. 54. Justices Act 1886 (Qld) s 139. 55. Magistrates Court Act 2004 (WA) s 8; Magistrates Court Rules 2004 s 44. 56. See Lavelle (1995) 82 A Crim R 187; Kainhofer (1995) 185 CLR 528; 132 ALR 483; AttorneyGeneral (Cth) v Tse Chu-Fai (1998) 193 CLR 128; 153 ALR 128.

[page 23]

Chapter Three Appeals

Introduction 3.1 This chapter deals with the processes whereby an appeal may be brought: from a decision in a Magistrates Court; following criminal proceedings in the Supreme Court or District Court; and to the High Court of Australia. While the appellate process is similar in Queensland and Western Australia, there are some significant differences. In particular, in Queensland, an appellate jurisdiction is exercised by both the Supreme Court and the District Court. In Western Australia, the appellate jurisdiction is exercised by the Supreme Court only. The appellate courts in each jurisdiction also deal with Commonwealth offences committed within each state’s boundaries.1

Queensland appellate courts 3.2 In Queensland, some appellate functions are carried out by a District Court judge and others by the Supreme Court, sitting as the Court of Appeal. This is one of the divisions of the Supreme Court.2 The Court of Appeal comprises the President of the Court of Appeal and not less than three but not more than five other Judges of

Appeal.3 It is constituted by any three or more Judges of Appeal.4 Subject to the overriding control of the Chief Justice, the President of the court is responsible for ensuring the orderly and expeditious exercise of the court’s jurisdiction.5 [page 24] 3.3 Proceedings in the Court of Appeal are presided over by the most senior of the judges who constitute it at a given time.6 The nominated order of seniority is Chief Justice, President and then the most senior judge. The decision of the court is to be in accordance with the opinion of the majority of judges present at the hearing, with the most senior judge’s opinion applying if the court is equally divided.7 Jurisdiction of the court is provided for in the Supreme Court of Queensland Act 1991 (Qld) s 29 and this includes any jurisdiction conferred on it by any other state or Commonwealth Act. Such jurisdiction is conferred by the Criminal Code.8 3.4 The appellate jurisdiction of the District Court of Queensland in criminal matters is limited to matters that were determined in the Magistrates Court and is exercised by a District Court judge sitting alone.9 A further appeal lies from the decision of the District Court to the Court of Appeal and, also, the District Court judge may state a case for the opinion of the Court of Appeal.10 In addition to those matters, the Court of Appeal deals with appeals from criminal proceedings in the Supreme Court and District Court and also has jurisdiction in relation to some matters determined in the Magistrates Court: see 3.18.

Western Australian appellate courts 3.5 In Western Australia, appeals from the Magistrates Court are determined by a Supreme Court judge and further appeals then lie to the Court of Appeal.11 Appeals from the District or Supreme Court are determined by the Court of Appeal, which is one of the divisions of

the Supreme Court.12 A person convicted on indictment may appeal against conviction, sentence, or any order made subsequent to conviction,13 while the prosecution has a general right of appeal against sentence, but more limited rights of appeal in other matters.14 The Court of Appeal comprises the Chief Justice, the President and other Judges of Appeal.15 The Chief Justice is the principal judicial officer and, subject to that, the President is responsible for the administration of the Court of Appeal.16 Where the appeal is from the District or Supreme Court, the Court of Appeal may be constituted by two judges for sentencing matters and, otherwise, by an uneven number of judges being not less than three.17 [page 25] 3.6 Proceedings in the Court of Appeal are presided over by the most senior of the judges who constitute it at a given time.18 The decision of the court is to be in accordance with the opinion of the majority of judges present at the hearing, with the presiding judge’s opinion applying if the court is equally divided and is constituted by more than three judges.19 Where the court is constituted by two judges who are divided in opinion, any party to the appeal may give notice, within 1 month of the delivery of the judgments, requiring the appeal to be reheard.20 If no such notice is given, the judgment or order against which the appeal was taken remains unaltered.21

Appeals from the Magistrates Court 3.7 Reference has been made to the jurisdiction conferred on the Magistrates Court by various legislatures: see Chapter 2. When considering appeal procedures, it is necessary to draw a distinction between a situation where the magistrate is exercising federal jurisdiction and one in which the magistrate is exercising state jurisdiction.

Federal jurisdiction 3.8 When the magistrate is exercising federal jurisdiction, an appeal lies to the High Court of Australia. Under the Judiciary Act 1903 (Cth) ss 35 and 39(2)(c), the High Court may grant special leave to appeal from any decision of any court or judge of the state exercising federal jurisdiction notwithstanding that the law of the state may prohibit any appeal from such court or judge: see 3.45. This avenue of appeal is additional to those that apply where the lower courts are exercising state jurisdiction and, normally, the High Court will not grant special leave to appeal if other appeal courts in the state, having had federal jurisdiction conferred on them, are available to hear the appeal.22 There is no provision for direct appeals to the High Court, by special leave or otherwise, from these lower courts when they are exercising state criminal jurisdiction. Pursuant to the Federal Court of Australia Act 1976 (Cth) s 24(1)(c), the Federal Court is also available as an avenue of appeal from a single judge or magistrate in a state court where federal jurisdiction is being exercised. However, the appeal will only be to the Federal Court if there is special legislation that directly selects this avenue of appeal. [page 26]

State jurisdiction Queensland 3.9 In Queensland, under the Justices Act 1886 (Qld) s 222, an appeal lies to a District Court judge against any order made in a Magistrates Court. The term ‘order’ is defined to include any order, adjudication, grant or refusal of any application, and any determination of whatsoever kind made by a Magistrates Court, and any refusal by a Magistrates Court to hear and determine any complaint or to entertain any application made to it. However, it does not include any order made by justices committing a defendant for

trial for an indictable offence, or dismissing a charge of an indictable offence or granting or refusing to grant bail and, in the latter case, whether the court is exercising its criminal jurisdiction or conducting a committal proceeding.23 Where there has been a conviction in summary proceedings for an indictable offence, an appeal lies on the ground that the magistrate erred in deciding the conviction or sentence summarily.24 3.10 The appeal to the District Court is by right, rather than by leave. The application must be made within 1 month of the decision, but this time limit may be extended.25 It applies to indictable and nonindictable offences dealt with in the Magistrates Court. For nonindictable offences, an appeal lies following dismissal of a complaint but this is not available if the defendant pleaded guilty, except where the appeal relates to the sentence imposed.26 For indictable offences, a complainant may only appeal against sentence or an order for costs and not against the dismissal of a complaint.27 Also, this avenue of appeal is not available to a person convicted of a summary offence by a judge of the District or Supreme Court under the Code (Qld) s 651.28

Western Australia 3.11 In Western Australia, an appeal from the Magistrates Court may be heard by a Supreme Court judge or, in exercise of the initiative of the Supreme Court or on application of a party, by the Court of Appeal.29 Appeals are by leave rather than by right30 and are available even where the accused pleaded guilty in the Magistrates Court31 but do not extend to a decision that an Act has declared to be final or not appealable, to decisions about committal for trial or sentence, or decisions relating to bail.32 The judge must not give leave unless there is a reasonable prospect of [page 27] the appeal succeeding.33 The Western Australian Court of Appeal has

held that ‘reasonable prospect’ should be given its ‘ordinary meaning’, and that this:34 … must accordingly be taken to mean that a ground is required to have a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum; in effect, that it has a real prospect of success.

The court went on to emphasise that this did not mean that this did not involve a consideration of whether, if the ground of appeal succeeds, this has led to a substantial miscarriage of justice, this being the issue for the appeal proper. The available grounds for appeal against conviction are that the court of summary jurisdiction made an error of law or fact, acted in excess of jurisdiction or imposed an inadequate or excessive sentence, or there has been a miscarriage of justice.35 There are no criteria set out for appeal against sentences. The appeal must be commenced not later than 28 days after the date of the decision unless leave of the Supreme Court is obtained.36 A further appeal, by leave of the Court of Appeal, lies from a single judge to the Court of Appeal.37 The appeal must be commenced not later than 21 days after the date of the decision unless leave of the Supreme Court is obtained.38

Appeal by person ‘aggrieved’ 3.12 A feature of the appeal avenues from the Magistrates Court is that the process is available to any person who is aggrieved by the lower court decision.39 In McCarthy v Xiong (1993) 2 Tas R 290, the Full Court of the Tasmanian Supreme Court reviewed the authorities relating to the concept of a person aggrieved in the context of the equivalent Tasmanian provision.40 To be aggrieved, the person must have a real or direct interest in the proceedings. Underwood J stated:41 It confers the right on a person who has a real or direct interest in the order sought to be reviewed. The interest which will confer standing to bring the motion to review must be something not shared by the general community. Application of recent authority confirms that such interest need not be a legal interest in the sense of a pecuniary or proprietary interest.

In that case, the magistrate had dismissed a complaint of trespass.42

The person who sought the order was the owner of the house where the alleged trespass [page 28] occurred. It was held that the owner of the house was an aggrieved person entitled to make the application for review. 3.13 Within the category of persons aggrieved, the Justices Act 1886 (Qld) s 222(1) expressly includes the complainant or defendant, and the Criminal Appeals Act 2004 (WA) s 7(2) includes the AttorneyGeneral. In Queensland, appeals by the Attorney-General are provided for in the Code s 669A: see 3.18. The Queensland Court of Appeal has confirmed that a defendant’s right of appeal does not survive his or her death: Monteforte [2015] QCA 3. It is assumed that the same position prevails in Western Australia.

Courts’ powers when determining appeal 3.14 The powers available to the court when determining an appeal from the Magistrates Court are widely drawn.

Queensland 3.15 Appeals to the District Court under the Justices Act 1886 (Qld) s 222 are by way of rehearing on the original material before the Magistrates Court but leave may be given for fresh evidence to be adduced: see s 223 of that Act and Stevenson v Yasso [2006] 2 Qd R 150; (2006) 163 A Crim R 1 at 13. The powers of the District Court judge are set out in s 225 of that Act, whereby the judge may: confirm, quash, set aside, vary, increase or reduce the conviction order, sentence or adjudication appealed against; make such other order in the matter as he or she may think just; and

exercise any power that the lower court might have exercised.

Western Australia 3.16 The Supreme Court in Western Australia, in accordance with the Criminal Appeals Act 2004 (WA) s 14, may: dismiss the appeal; allow the appeal; set aside, quash or vary the decision, including a variation to the penalty imposed; substitute a decision that should have been made; remit the case for rehearing in the lower court; and make orders with respect to costs.43 The court may also dismiss an appeal, notwithstanding that a point raised on the appeal might be decided in favour of the appellant if it considers that no substantial miscarriage of justice has occurred.44 This power is similar to that of the proviso arising under the Criminal Appeals Act 2004 (WA) s 30(4).45 [page 29]

Materials and evidence 3.17 When the Supreme Court in Western Australia and the District Court in Queensland exercise the jurisdiction outlined above, the matter will be determined on the evidence and materials that were before the lower court but, additionally, the court may receive further evidence.46

Appeals by Attorney-General 3.18 In Queensland, appeals by the Attorney-General are provided for in the Code s 669A and are dealt with by the Court of Appeal

rather than the District Court. The appeal may be against a sentence imposed in the Magistrates Court.47 While there can be no appeal against the dismissal of a complaint relating to an indictable offence by the Attorney-General or the complainant,48 the Attorney-General may reserve a point of law, which arose during the summary proceedings, for consideration by the Court of Appeal after an acquittal in the Magistrates Court. This can also be done after the discharge of a defendant, where the prosecution elected not to proceed with the charge because of the magistrate’s decision on the point of law, and also after a conviction of a charge other than the charge that was under consideration when the point of law arose.49 The determination of the Court of Appeal on such a reference does not affect the acquittal or conviction of the defendant and the adoption of the procedure serves to prevent the continued circulation of an incorrect principle of law. Where there is an appeal to the District Court under the Justices Act 1886 (Qld) s 222 by a defendant convicted summarily of an indictable offence, and where the Attorney-General also invokes the procedure under s 669A, the defendant’s appeal is removed from the District Court to the Court of Appeal.50 3.19 In Western Australia, an Attorney-General’s appeal from the Magistrates Court is heard in the same manner as for appellants.51 It also appears that the Attorney-General can appeal on the same grounds as other appellants.52

Appeals from the Supreme Court and the District Court Appeal as of right or by leave 3.20 Following a trial on indictment in the Supreme Court or District Court, an appeal lies to the Court of Appeal.53 In Queensland, the person convicted may appeal against a conviction as of right on any ground involving an issue of law

[page 30] alone54 and, in other situations, the appeal is by leave of the appellate court or by a certificate of the trial judge that it is an appropriate case for appeal.55 Under the Code (Qld), provision is also made for the Attorney-General to appeal against the inadequacy of a sentence and against an order of a trial judge staying proceedings on an indictment.56 Leave is required where the appeal by the person convicted is on a question of fact alone, or a question of mixed law and fact and any other ground that appears to the court to be sufficient.57 Leave is also required where the person convicted appeals against sentence.58 3.21 In Western Australia, leave to appeal against the decision of a District or Supreme Court is required in all cases,59 including appeals against conviction or sentence,60 preliminary appeals against decisions of a judge about joinder of charges and separate trials61 and, where the offender was convicted in the Magistrates Court and sentenced in the District or Supreme Court, appeals against such conviction or sentence.62

Appeal from acquittal on indictment 3.22 In Queensland, no appeal lies from an acquittal on indictment. In Western Australia, there is no general right of appeal against an acquittal on indictment, but the prosecution may appeal to the Court of Appeal in the circumstances set out in the Criminal Appeals Act 2004 (WA) s 24(2)(e). This includes an appeal against an acquittal on indictment where the judgment was entered after a decision by a judge that there was no case to answer63 and also where the judgment was entered by a judge sitting without a jury.64 More generally, the prosecution may seek an appeal in relation to a decision refusing consent to the discontinuance of a prosecution, a decision ordering a permanent stay of proceedings, or a decision

[page 31] ordering an adjournment.65 The prosecution may also appeal against the sentence imposed on a person following conviction.66

Reference of point of law by Attorney-General 3.23 The Code (Qld) s 669A and the Criminal Appeals Act 2004 (WA) s 47 enable the Attorney-General67 to refer a point of law that arose at a trial in the District or Supreme Court to the Court of Appeal for consideration and opinion (see, for example, Lovell; Ex parte Attorney-General (Qld) [2015] QCA 136). The Code (Qld) s 668A also enables the Attorney-General to refer a question of law that arises in relation to a pre-trial direction or ruling.68 The Western Australian provision is quite general in its wording, stating that the AttorneyGeneral can refer ‘any question of law that was decided by a superior court’.69 3.24 The Code (Qld) s 669A(2A) also enables the reference to be made following the summary trial of an indictable offence. Accordingly, the reference may be made where the accused was: acquitted on indictment; acquitted of a charge on a summary trial; convicted following a determination of the judge or magistrate on the point of law; or discharged following the entering of a nolle prosequi (see 5.91) by the prosecutor because of the point of law.70 On a reference by the Attorney-General in any of these circumstances, the court must hear arguments by or on behalf of the accused or, in Western Australia, by any person affected by the decision.71 Where the reference relates to a trial in which the accused was acquitted or convicted, the determination of the Court of Appeal does not affect that acquittal or conviction. The Attorney-General’s

reference procedure serves to prevent the continued circulation of an incorrect principle of law.72

Point of law reserved by trial judge 3.25 Prior to the establishment of the general appeal processes outlined above, the only real redress available to a convicted person was through the procedure [page 32] whereby a trial judge reserves a point of law for consideration by an appellate court.73 Although it has lost much of its significance, the procedure is still available as an alternative to an appeal. Under the Code (Qld) s 668B, the judge may reserve the issue of law for consideration by the Court of Appeal. In Western Australia, a Supreme Court or District Court judge may reserve a point of law for consideration by the Full Court of the Supreme Court under the Supreme Court Act 1935 (WA) s 43 and Criminal Appeals Act 2004 (WA) s 46, respectively.74

Notice of application and time limits 3.26 A convicted person who wishes to appeal must give notice of the appeal or, in those situations where leave to appeal is required (see 3.20), notice of application for leave to appeal, within the time provided for in the Code (Qld) s 671 and Criminal Appeals Act 2004 (WA) s 28. Under the Code (Qld) s 671, a time limit of 1 calendar month is provided and this also applies to appeals by the AttorneyGeneral against sentence. No time limit is provided for a reference on a point of law by the Attorney-General under the Code (Qld) s 669A.75 In Western Australia, a 21-day period applies in the case of a convicted person or the prosecution, while a 60-day period applies to a request by the Attorney-General to refer a point of law to the Court

of Criminal Appeal under the Criminal Appeals Act 2004 (WA) ss 28(3), 47. 3.27 The court has a discretion to extend the prescribed time limits.76 The ultimate question is whether it is in the interests of justice to allow an extension.77 Whether the discretion will be exercised in favour of the appellant will depend on factors such as: the adequacy of reasons given for the delay;78 the prospects of success;79 and the period of time involved.80 After lengthy delay, the court will usually require exceptional circumstances before granting an extension of time, unless a refusal amounts to a manifest miscarriage of justice.81

Appeals against conviction 3.28 The grounds on which an appeal against conviction may be made to the Court of Appeal are set out in the Code (Qld) s 668E(1) and the Criminal Appeals [page 33] Act 2004 (WA) s 30(3). These are that the verdict of the jury was unreasonable or cannot be supported having regard to the evidence; that the judgment should be set aside because of a wrong decision on an issue of law; or that there was a miscarriage of justice.

Unreasonable verdict 3.29 In M (1994) 181 CLR 487; 126 ALR 325, a majority of the High Court (Mason CJ, Deane, Dawson and Toohey JJ) provided authoritative guidance to Courts of Criminal Appeal in Australia when they are determining whether to set aside the verdict of a jury on the ground that it was unreasonable or could not be supported

having regard to the evidence. In issue was the Criminal Appeal Act 1912 (NSW) s 6(1), which sets out a ground of appeal that is not materially different from that referred to above in the Code (Qld) s 668E(1) and Criminal Appeals Act 2004 (WA) s 30(3). 3.30 The test is usually expressed in terms of whether the jury’s verdict was ‘unsafe or unsatisfactory’, although the High Court recognised that other phrases, such as ‘unjust or unsafe’ or ‘dangerous or unsafe’ have sometimes been used. The question is one of fact that a court must decide by making its own independent assessment of the evidence in determining whether, notwithstanding that there is evidence upon which a jury might convict, it would nevertheless be dangerous in all the circumstances to allow the jury’s verdict to stand. The question that the court must ask itself is whether it thinks that, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The High Court was mindful that it was not the task of an appellate court simply to substitute its decision for that of the jury, which had the benefit of having seen and heard the witnesses. However, it considered that, in most cases, a doubt experienced by an appellate court would be a doubt that a jury also ought to have experienced. In M, their Honours stated, at 494–5: It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.82

[page 34]

It is important to note that the key question is whether the appellate court has made its own independent assessment of the evidence, not simply whether there was evidence to support the conviction.83 It is apparent that courts of appeal are not settled as to how to approach cases where a verdict of both guilty and not guilty appears reasonable on the evidence. Generally, it seems that courts are approaching the issue by asking whether on the evidence it was open to the jury to find guilt.84 Arguably, this is different to the alternative approach suggested in MFA (2002) 213 CLR 606; 193 ALR 184 by the High Court, being whether a jury must have had a reasonable doubt about the guilt of the accused. The High Court in M also pointed out that a verdict may be unsafe or unsatisfactory for reasons that lie outside the formula requiring that it not be ‘unreasonable’ or incapable of ‘being supported having regard to the evidence’ in that a verdict that is unsafe or unsatisfactory for any other reason will also constitute a miscarriage of justice requiring the verdict to be set aside.

Wrong decision on question of law: miscarriage of justice 3.31 A broad approach has been adopted in relation to the grounds whereby a court’s judgment is set aside because of a wrong decision on a question of law or because of a miscarriage of justice.85 There is also considerable overlap between them. Examples include: the improper admission or rejection of evidence;86 incorrect summing up of the evidence by the trial judge;87 a misdirection by the trial judge;88 or some procedural irregularity leading to an improperly conducted trial.89

Fresh evidence on appeal 3.32 The Court of Appeal has the capacity to receive further evidence.90 A miscarriage of justice may arise where such fresh

evidence has become available since the trial and the appellate court is satisfied that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial.91 Fresh evidence is distinct from ‘new’ evidence, which may also refer to evidence that was available but just not introduced [page 35] at trial.92 The distinction between ‘fresh’ and ‘new’ evidence is a common law one, which, according to Buss J in BXJ v State of Western Australia [2010] WASCA 240, has not been overridden by the provisions in the Criminal Appeals Act 2004 (WA) s 40(1), which allows the court to ‘admit any other evidence’ when dealing with an appeal. Courts have generally been reluctant to set aside a conviction based on newly-adduced evidence, strictly not fresh evidence.93 However, it appears that in exceptional circumstances a court may hear new evidence that is not also fresh.94 3.33

For fresh evidence to be admissible:

it must be shown that it could not, with reasonable diligence, have been produced at the trial;95 and it must be apparently credible or at least believable.96 In Rinaldi v State of Western Australia [2007] WASCA 53, the court stated that where the evidence is fresh, the test appears to be whether there is a significant possibility that, in light of all the admissible evidence (including that given at trial), a jury, acting reasonably, would have acquitted the accused.97

The proviso 3.34 If a ground of appeal is not established, the court will dismiss the appeal but, even when it considers the point raised might be decided in the appellant’s favour, the court may dismiss the appeal if

it is of the opinion that, notwithstanding the identified legal error, conviction was inevitable.98 This is done under the proviso in the Code (Qld) s 668E(1A) and the Criminal Appeals Act 2004 (WA) s 30(4), according to which the appeal may be dismissed if the court considers that no substantial miscarriage of justice has actually occurred. In Stirland [1944] AC 315 at 321, the following test was applied by the House of Lords to determine what is a substantial miscarriage of justice:99 A perverse jury might conceivably announce a verdict of acquittal in the teeth of all the evidence, but the provision that the Court of Criminal Appeal may dismiss

[page 36] the appeal if they consider that no substantial miscarriage of justice has actually occurred in convicting the accused assumes a situation where a reasonable jury, after being properly directed would, on the evidence properly admissible, without doubt convict.

There has been some uncertainty as to the circumstances in which an appeal court should not apply the proviso, even where it is satisfied of the guilt of the accused. In Patel (2012) 247 CLR 531; 290 ALR 189, the court was of the view that where this is the case, the courts should not try to define the exact circumstances in which the proviso will not be applied, referring to the general requirement that there has been a process failure of such significance that there is a miscarriage of justice.100

Successful appeal and substituted verdict 3.35 In the usual case of a successful appeal against conviction, the court will set aside the conviction and direct that a judgment and verdict of acquittal be entered.101 Where, however, the court is of the opinion that some other offence is established by the evidence, it may substitute a verdict of guilty of that other offence.102 So, in Baden-Clay [2015] QCA 265, the Queensland Court of Appeal set aside a murder conviction, substituting for it a conviction of manslaughter.

Ordering a new trial 3.36 In an appropriate case following a successful appeal, the Court of Appeal can order a new trial.103 The principle guiding the court on the question of whether a new trial should be granted was stated in DPP (Nauru) v Fowler (1984) 154 CLR 627 at 630; 55 ALR 175:104 The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had. In so deciding, the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case … Then the court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused.

[page 37] Factors taken into account in exercising that discretion include: the strength of the evidence against the accused;105 the seriousness of the offence;106 whether the accused has already spent a significant time in prison;107 and whether the prosecution would have an opportunity to conduct its case on a different basis.108 In Cockrell [2005] 2 Qd R 448, the Queensland Court of Appeal held that a new trial may be ordered under the Code (Qld) s 669 where the trial proceedings were a nullity because the indictment was presented by a person not authorised to do so. An order by the Court of Appeal to grant a new trial enables that procedure to be undertaken but, nonetheless, the decision to conduct a further trial will be a matter for the prosecuting authorities.109

Appeals against sentence Appeal by the person convicted 3.37 Where a sentence has been imposed on a person convicted on indictment and, additionally in Western Australia, on a person convicted by a court of summary jurisdiction and committed for sentence, an appeal lies against the sentence under the Code (Qld) s 668D(1)(c) and the Criminal Appeals Act 2004 (WA) ss 23(1)(b), (2)(b) and 31 to the Court of Appeal. The Court of Appeal must set aside the sentence and substitute the appropriate sentence if such other sentence, whether more or less severe, is warranted in law. The capacity of the court to increase the sentence is likely to be exercised only in exceptional cases because it is now open to the prosecution to appeal against a sentence on the basis of leniency: see 3.38–3.40.110 The initial task of the trial judge or magistrate in ascertaining and imposing an appropriate sentence involves the exercise of judicial discretion based on an assessment of a wide range of relevant factors.111 Accordingly, when determining an appeal against sentence, the court must give effect to the general principles that relate to the interference of an exercise of discretion. It is not sufficient if the court, in the particular case, might have disposed of the matter differently. Rather, it is necessary for it to be shown that the sentencing discretion has miscarried so that the sentence appealed from is manifestly inadequate or excessive because the [page 38] judge or magistrate has acted on a wrong principle or overlooked, undervalued, overestimated or misunderstood some salient feature of the material.112 In determining the appropriateness of a sentence, the court will have regard to the need to maintain consistency by considering whether the sentence imposed was within the range of sentences

previously imposed for similar offences, ‘having regard to the needs of punishment, rehabilitation, deterrence, community vindication and community protection’.113

Appeal by the prosecution 3.38 In Queensland, the Attorney-General may appeal to the Court of Appeal under s 669A of the Code (Qld) against a sentence passed for an indictable offence and the court may, in its unfettered discretion, vary the sentence and impose a sentence the court considers appropriate.114 In York (2005) 225 CLR 466; 221 ALR 541, a majority of the High Court held that, despite the reference to an ‘unfettered discretion’ in that provision, it is still necessary for an error in the sentencing judge’s exercise of discretion to be demonstrated before the sentence should be varied.115 3.39 In Western Australia, the prosecution can appeal against sentence to the Court of Appeal in the same manner as for a convicted person. The powers of the court are the same as those noted above in respect of appeals from a convicted person.116 3.40 An appeal by the prosecution against sentence has been described as:117 … cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed.

For that reason, it has been described as a jurisdiction that should be exercised only in ‘rare and exceptional’ cases.118 Nevertheless, in an appropriate case, the court will intervene. In Leucus (1995) 78 A Crim R 40 at 51, Murray J stated: … the essential purpose of a Crown appeal against sentence ought to be to expose serious error of principle in the sentencing court, to correct that, and by the reinforcement of a proper statement of principle to aid the consistency and certainty of the sentencing process and to avoid undue disparity. Upon that basis a Crown appeal ought to be a relative rarity, and it should only be in a clear case that the appellate court is persuaded to intervene with the sentencing disposition of the judge at first instance.

[page 39] Although reference to an ‘unfettered discretion’ to vary sentence by the Court of Appeal in Queensland on an appeal by the AttorneyGeneral would suggest a broader basis for the exercise of jurisdiction, the court has recognised the jeopardy facing a convicted person in such proceedings. Recently, in Lacey v Attorney-General (Qld) (2011) 242 CLR 573; 275 ALR 646, the High Court canvassed the history of the right of appeal and made reference to this risk.119 In Sheppard (1995) 77 A Crim R 139, Dowsett J considered that the general approach adopted by the High Court in Everett and Phillips was applicable under the Code, commenting at 145–6:120 It has long been considered that a more stringent penalty should only be imposed by an appellate court where the quantum of sentence imposed calls, in an obvious way, for correction.

Appeals to the High Court 3.41 Under the Judiciary Act 1903 (Cth) s 35, the High Court has jurisdiction to hear and determine appeals from the Supreme Courts of the states in all matters, and this includes the Supreme Court sitting in its capacity as the Court of Appeal.121 In addition, the High Court can hear and determine appeals from judgments from any other court of the state that were given or pronounced in the exercise of federal jurisdiction.122 The majority opinion of the court prevails on the appeal and, in the event of the High Court being evenly divided in opinion, the decision of the court will depend on the status of the court from which the appeal came. Where that court was the Supreme Court of a state, the decision of the Supreme Court will be affirmed. In the case of other state courts, the opinion of the most senior High Court judge determining the appeal will prevail.123

High Court must give special leave

3.42 There is no right of appeal to the High Court and the appeal shall not be heard unless the High Court gives special leave to appeal.124 The criteria for granting special leave are set out in the Judiciary Act 1903 (Cth) s 35A, whereby the court is to have regard to: (a) whether the proceedings in which the judgment to which the application relates was pronounced involved a question of law: (i) that is of public importance, whether because of its general application or otherwise; or (ii) in respect of which a decision of the High Court, as the final appellate court, is required to resolve differences of opinion between different courts, or within the one court, as to the state of the law; and

[page 40] (b) whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High Court of the judgment to which the application relates.

3.43 The approach of the court was outlined by Dawson J in Morris (1987) 163 CLR 454 at 475; 74 ALR 161: In exercising its wide discretion to grant special leave to appeal, it is proper that the Court should be influenced by the function which it performs as the final appellate Court in the judicial hierarchy. The number of applications for special leave increases year by year, particularly in the criminal law. Since the number of cases with which the Court can properly deal in any one year is limited, it is inevitable that a careful choice must be made having regard to the duty which the Court has to develop and clarify the law and to maintain procedural regularity in the Courts below. The Court must necessarily place greater emphasis on its public role in the evolution of the law than upon the private rights of the litigants before it. Whilst procedurally and otherwise this Court performs in many ways a truly appellate function, more significantly it operates as a court of review and this must ultimately be the most important factor in the selection of those cases in which special leave is to be granted.

Where leave will not be granted 3.44 Special leave will not be granted where the matter relates only to a question of fact.125 There is also a reluctance to grant special leave against sentencing decisions.126 It would be rare for special leave to be granted on the sole ground that the sentence was excessive.127

Another matter in which the High Court will require ‘very exceptional circumstances’ to be shown before special leave is granted is where there is an appeal by the prosecution. In Benz (1989) 168 CLR 110 at 119–20; 89 ALR 339, Deane J referred to earlier decisions of the court in that regard and stated:128 They are authoritative statements of the approach which considerations of fairness and of traditional principle requires this Court to observe when asked by a State to subject a person, who has been acquitted or granted a new trial by the State’s own ultimate criminal court, to the ordeal of renewed jeopardy or to the risk of being deprived of the chance of acquittal on a new trial. The rule of practice which they embody represents an important component of the barrier which divides the due administration of the criminal law and oppression.

Powers of the High Court on appeal 3.45 The application for special leave is usually dealt with as a separate matter. However, the court may deal with the application for special leave and the [page 41] substantive appeal at the same time.129 The powers of the High Court on appeal are set out in the Judiciary Act 1903 (Cth) ss 36 and 37 and they include the power to: affirm, reverse or modify the judgment appealed from; substitute such judgment as ought to have been given in the first instance; and remit the matter to the court below or grant a new trial. Where special leave is granted in respect of a decision relating to a sentence, the usual approach is to remit the matter to the court below.130 _________________________________

1.

Judiciary Act 1903 (Cth) s 68(2). See also Martens v Commonwealth (2009) 174 FCR 114; (2009) 253 ALR 457.

2. 3.

Supreme Court of Queensland Act 1991 (Qld) s 5; see 2.5. Supreme Court of Queensland Act 1991 (Qld) s 28.

4.

Supreme Court of Queensland Act 1991 (Qld) s 30. For the situation where a judge is unable to continue, see Supreme Court of Queensland Act 1991 (Qld) s 31. Supreme Court of Queensland Act 1991 (Qld) ss 13A, 16, 32.

5. 6. 7.

Supreme Court of Queensland Act 1991 (Qld) s 40. The relevant time for ascertaining seniority is at the start of the hearing. Supreme Court of Queensland Act 1991 (Qld) s 41.

8. 9.

Code (Qld) Ch 67. Justices Act 1886 (Qld) s 222(1).

10. District Court of Queensland Act 1967 (Qld) s 118; Justices Act 1886 (Qld) s 227. 11. Criminal Appeals Act 2004 (WA) ss 7, 16. The judge may, on his or her own initiative or on application of a party, refer the matter to the Court of Appeal: Criminal Appeals Act 2004 (WA) s 13; see 3.11. 12. Criminal Appeals Act 2004 (WA) Pt 3, Div 2. 13. Criminal Appeals Act 2004 (WA) s 23. 14. Criminal Appeals Act 2004 (WA) s 24. 15. Supreme Court Act 1935 (WA) s 7(3). 16. Supreme Court Act 1935 (WA) s 7(5), (6). 17. Supreme Court Act 1935 (WA) s 57(2). For a bench of five judges, see Marker (2002) 135 A Crim R 55. 18. Supreme Court Act 1935 (WA) s 57(5). 19. Supreme Court Act 1935 (WA) s 62(1), (2). 20. Supreme Court Act 1935 (WA) s 62(3). 21. Supreme Court Act 1935 (WA) s 62(5). 22. See Kamarooka Gold Mining Co NL v Kerr (1908) 6 CLR 255 at 256 per Griffith CJ; Hass (1975) 50 ALJR 400 at 401; Judiciary Act 1903 (Cth) s 68 whereby state appellate courts have had federal jurisdiction conferred upon them. 23. Justices Act 1886 (Qld) s 4; Michael v Musk (2004) 148 A Crim R 140; see 2.12. 24. Code (Qld) s 552J; see 4.11. 25. Justices Act 1886 (Qld) ss 222(1)(a), 224(1)(a); Forsyth v O’Connor (1970) 66 QJPR 38; Carey v Armstrong (1972) 66 QJPR 136. 26. Justices Act 1886 (Qld) s 222(2)(c); note Paulger v Hall [2003] 2 Qd R 294. 27. Justices Act 1886 (Qld) s 222(2)(b). 28. Justices Act 1886 (Qld) s 222(2)(a). 29. Criminal Appeals Act 2004 (WA) ss 7, 13; Supreme Court Act 1935 (WA) s 58(1)(g), (h). 30. Criminal Appeals Act 2004 (WA) ss 8, 9(1). For leave considerations, see McDonald (1992) 85 NTR 1; 63 A Crim R 376; Bailey (1988) 78 ALR 116; 34 A Crim R 154.

31. Criminal Appeals Act 2004 (WA) s 8(2). For limitations on matter that may be the subject of appeal to the Court of Appeal, see Supreme Court Act 1935 (WA) s 60. 32. Criminal Appeals Act 2004 (WA) s 7(1)–(3). See Lam (1998) 100 A Crim R 188; Reynolds v Panten (2000) 23 WAR 238; Michael v Musk (2004) 148 A Crim R 140. 33. Criminal Appeals Act 2004 (WA) ss 9(2), 27(2). 34. Samuels v Western Australia (2005) 30 WAR 473 at [96]. 35. Criminal Appeals Act 2004 (WA) s 8(1). 36. Criminal Appeals Act 2004 (WA) s 10(3). 37. Criminal Appeals Act 2004 (WA) ss 16(1), 17(2). 38. Criminal Appeals Act 2004 (WA) ss 16(1), 17(2). For leave considerations, see 3.21. 39. Justices Act 1886 (Qld) s 222(1); Criminal Appeals Act 2004 (WA) s 7(1). 40. Justices Act 1959 (Tas) s 107. 41. See McCarthy v Xiong at 295–7, 305; Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 184–5, 221–2, 236, 262–8; 39 ALR 417; Mill v Scott; Ex parte Mill (1955) St R Qd 210; Moors [1994] 2 Qd R 315; McCullogh v Otto (1996) 90 A Crim R 492. 42. Police Offences Act 1935 (Tas) s 14B(1). 43. For additional powers when the matter is heard by the Court of Appeal, see Criminal Appeals Act 2004 (WA) ss 18, 19. 44. Criminal Appeals Act 2004 (WA) s 14(2). 45. See Dunn v Elberg; Ex parte Elberg [1979] Qd R 571; 3.34. 46. Justices Act 1886 (Qld) s 223; Criminal Appeals Act 2004 (WA) s 39(1); for admissibility of fresh evidence, see 3.33. 47. Code (Qld) s 669A(1)(b). 48. Justices Act 1886 (Qld) s 222(2)(b). 49. Code (Qld) s 669A(2A). 50. Code (Qld) s 669A(6). 51. See Criminal Appeals Act 2004 (WA) ss 7(2), 16(3). Note that a costs order may not be made against the Attorney-General: Criminal Appeals Act 2004 (WA) s 20. 52. Criminal Appeals Act 2004 (WA) s 8. 53. Code (Qld) s 668D; Criminal Appeals Act 2004 (WA) s 23. See Carter (1994) 12 WAR 310. In Queensland, this avenue also applies to appeals after conviction under the Code (Qld) s 651 of a summary offence by a District or Supreme Court judge. 54. Code (Qld) s 668D(1)(a). 55. Code (Qld) s 668D(1)(b), (c). For leave to be granted, the applicant must show reasonable prospects of success: see Lewis (2006) 163 A Crim R 169; Samuels v Western Australia (2005) 30 WAR 473; Criminal Appeals Act 2004 (WA) s 46. 56. Code (Qld) s 669A(1), (1A). 57. Code (Qld) s 668D(1)(b). For such leave considerations, see McDonald (1992) 85 NTR 1; 63 A Crim R 376; Bailey (1988) 78 ALR 116; 34 A Crim R 154. 58. Code (Qld) s 668D(1)(c). For ‘sentence’, see Code (Qld) s 668; Penalties and Sentences Act 1992 (Qld) ss 4, 162, 177.

59. Criminal Appeals Act 2004 (WA) s 27. 60. Criminal Appeals Act 2004 (WA) ss 23, 24, 27. In Western Australia, the person convicted is described as the ‘offender’: see Criminal Appeals Act 2004 (WA) s 22. 61. Criminal Appeals Act 2004 (WA) s 26; see 5.73, 5.74. For joinder and separate trials, the appeal may be by the accused or the prosecution. See also Donaldson (2005) 31 WAR 122. 62. Criminal Appeals Act 2004 (WA) s 23(2). 63. See 5.40. 64. Criminal Appeals Act 2004 (WA) s 24(2)(e). See also Lam (1998) 100 A Crim R 188; Udechuku [1982] WAR 21; (1981) 3 A Crim R 343; Hyman and French [1990] 2 WAR 222; Punevski (2001) 122 A Crim R 342; note Kim (1993) 65 A Crim R 278, where a similar provision in the Code (Tas) s 401(2) was held not to offend the Constitution (Cth) s 80. Note the prosecutor’s right to appeal where the acquittal is based in unsoundness of mind: Criminal Appeals Act 2004 (WA) s 25. 65. Criminal Appeals Act 2004 (WA) s 24(1), (2). 66. Criminal Appeals Act 2004 (WA) s 24(1(a). 67. For ‘Attorney-General’, see Code (WA) s 1(1). The function is exercised by the Director of Public Prosecutions: see Director of Public Prosecutions Act 1991 (WA) s 13(a); DPP Reference (No 1 of 1992) (1993) 9 WAR 281; 65 A Crim R 197. ‘Attorney-General’ includes the Attorney-General (Cth): see Judiciary Act 1903 (Cth) s 68(2); Peel (1971) 125 CLR 447; Morex Meat Australia Pty Ltd [1996] 1 Qd R 418; (1995) 78 A Crim R 269 at 295; R (2007) 33 WAR 483. 68. Code (Qld) s 590AA; PV; Ex parte Attorney-General (Qld) [2005] 2 Qd R 325. 69. Criminal Appeals Act 2004 (WA) s 47(2). 70. Code (Qld) s 669A(2); Lewis (1990) 48 A Crim R 218; Sutton [1986] 2 Qd R 72; Mellifont (1991) 173 CLR 289; Foggo; Ex parte Attorney-General [1989] 2 Qd R 49. For the role of the Code (Qld) s 669A in relation to summary proceedings, see 3.18. 71. Code (Qld) s 669A(4); Criminal Appeals Act 2004 (WA) ss 46(2), 47(4). 72. Code (Qld) s 669A(5); Criminal Appeals Act 2004 (WA) s 47(7); Mellifont v AttorneyGeneral (Qld) (1991) 173 CLR 289; 104 ALR 89. 73. See Pollard [1962] QWN 13; Kaporonowski [1972] Qd R 465; Keskic [1979] Qd R 348; Thompson [1933] QWN 36. 74. See Tedge [1979] WAR 12; Skubevski [1977] WAR 129. 75. See Tallon [1996] 1 Qd R 448. 76. Code (Qld) s 671; see Supreme Court (Court of Appeal) Rules 2005 r 28 and Form 1. 77. See Bardsley (2004) 29 WAR 338; Nelson v Haynes (2003) 27 WAR 154. 78. See Gavin (1992) 6 WAR 195; Hubert (1993) 67 A Crim R 181; Enright [1990] 1 Qd R 563; Leith [2000] 1 Qd R 660; Tait [1999] 2 Qd R 667 at 668. 79. See Brown [1985] 2 Qd R 126; Lewis (2006) 163 A Crim R 169. 80. See Bardsley (2004) 29 WAR 338 at 352–3. 81. See Perry [1970] 2 NSWR 501; Gavin (1992) 6 WAR 195; X (1993) 69 A Crim R 130; Walker (1998) 101 A Crim R 152; Wimbridge v State of Western Australia [2009] WASCA 196. 82. See Davies (1937) 57 CLR 170; [1937] ALR 321; Ratten (1974) 131 CLR 510; 4 ALR 93;

Morris (1987) 163 CLR 454; 74 ALR 161; Whitehorn (1983) 152 CLR 657; 49 ALR 448; Chamberlain (No 2) (1984) 153 CLR 521; 51 ALR 225; Chidiac (1991) 171 CLR 432; 98 ALR 368; Brauer [1990] 1 Qd R 332; Mickelberg (1989) 167 CLR 259; 86 ALR 321; McKnoulty (1995) 77 A Crim R 333; Jones (1997) 191 CLR 439; 149 ALR 598; BG (2005) A Crim R 152 at 212; Hillier (2007) 228 CLR 618 at 630, 631, 640; 233 ALR 634. 83. SKA (2011) 243 CLR 400; 276 ALR 423. 84. Hall [2011] QCA 26; Hunt v State of Western Australia (No 2) (2008) 37 WAR 530. 85. Sjabo [2001] 2 Qd R 214 at 226; see Nudd (2006) 225 ALR 161; 162 A Crim R 301 per Gleeson CJ at 306–11. 86. See Kemp (1951) 83 CLR 341; [1951] ALR 659; Ashcroft [1965] Qd R 81; Harvey [1993] 2 Qd R 389; Maric (1978) 20 ALR 513; 52 ALJR 631; Ryan (1984) 55 ALR 408; 14 A Crim R 97. 87. See Smith [1937] QWN 16; Allen [1937] St R Qd 32; Simic (1980) 144 CLR 319; 30 ALR 519; Cleland (1982) 151 CLR 1; 43 ALR 619; Bardsley (2004) 29 WAR 338. 88. See Phillips and Lawrence [1967] Qd R 237. 89. See Wilde (1988) 164 CLR 365; 76 ALR 570; Mackay (1977) 136 CLR 465; 15 ALR 541; Vella (1990) 2 WAR 537. 90. Code (Qld) s 671B(1); Criminal Appeals Act 2004 (WA) s 40(1). 91. See Gallagher (1986) 160 CLR 392; 65 ALR 207; Mickelberg (1989) 167 CLR 259 at 273; 86 ALR 321; Condren [1991] 1 Qd R 574 at 577; Gilvarry [1991] 2 Qd R 431; Button (2002) 25 WAR 382. 92. See Mallard (2005) 224 CLR 125; 222 ALR 236, although this was in the context of an application for a pardon to the High Court, and concerned the rejection of the pardon application by the Western Australian Court of Criminal Appeal. 93. Beamish [2005] WASCA 62 at [9]. See also Butler [2009] QCA 111. 94. Mackay [2011] QCA 28. 95. See Ratten (1974) 131 CLR 510; 4 ALR 93; Condren [1991] 1 Qd R 574 at 579, 590; Gilvarry [1991] 2 Qd R 431 at 436; Button (2002) 25 WAR 382. 96. See Condren [1991] 1 Qd R 574 at 579; Mickelberg (1989) 167 CLR 259 at 301; 86 ALR 321; Gallagher (1986) 160 CLR 392 at 395–6, 401–2, 408–9; 65 ALR 207; Amiss (2006) 165 A Crim R 387. 97. Rinaldi v State of Western Australia [2007] WASCA 53 at [82]. 98. See, for example, Svensen [2014] QCA 85. 99. See also Ward [1963] Qd R 56; Nickisson [1963] WAR 114; Dabelstein [1966] Qd R 411; Driscoll (1977) 137 CLR 517; 15 ALR 47; Rabey [1980] WAR 84; Melrose [1989] 1 Qd R 572; Glennon (1994) 179 CLR 1; 119 ALR 706; Quartermaine (1980) 143 CLR 595; 30 ALR 616 at 619–20; Wilde (1988) 31 A Crim R 331; Suresh (1998) 153 ALR 145; 72 ALJR 769; KBT (1997) 191 CLR 417; 149 ALR 693; Festa (2001) 208 CLR 593; 185 ALR 394; Pinkstone (2004) 219 CLR 444; 206 ALR 84; Darkan, Deemal-Hall and McIvor (2006) 227 CLR 373; 228 ALR 334; Nudd (2006) 225 ALR 161; 162 A Crim R 301 at 305; Koushappis (2007) 168 A Crim R 51 at 87–8. 100. Patel (2012) 247 CLR 531 at 566, 567 per French CJ, Hayne, Keifel and Bell JJ and 611 per Heydon J; 290 ALR 189. 101. Code (Qld) s 668E(1); Criminal Appeals Act 2004 (WA) ss 30(5)(b), 33(2)(a).

102. Code (Qld) s 668F(2); Criminal Appeals Act 2004 (WA) s 30(5)(c). In Western Australia, specific provision is made for appeals against judgments upholding a plea that the offence charged is not within the Criminal Code Act 1913 (WA) s 4: see Criminal Appeals Act 2004 (WA) s 33(3), (4); Criminal Procedure Act 2004 (WA) ss 126(1)(b), 128(1)(b). 103. Code (Qld) s 669; Criminal Appeals Act 2004 (WA) ss 30(5)(a), 33(2)(c), 34. 104. See also Mallard (2005) 224 CLR 125 at 141; 222 ALR 236. 105. See Bailey [1956] SASR 153; Leak [1969] SASR 172; Potter and MacKenzie [1959] Qd R 378; Powell and Gentle (1979) 23 SASR 52; Clemesha [1978] WAR 193; Connolly (No 2) [1991] 2 Qd R 661; Gilvarry [1991] 2 Qd R 431; Kaighin [1990] 1 WAR 390; McKechnie v Connell (1992) 8 WAR 329; Ibbs (2001) 122 A Crim R 377. 106. See Condren [1991] 1 Qd R 574; Tralka [1965] Qd R 225. 107. See Condren [1991] 1 Qd R 574; Jackson [1964] Qd R 26; Rabey [1980] WAR 84; Boxer (1995) 14 WAR 505 at 540; O (2003) 139 A Crim R 432; Mason (2005) 30 WAR 205 at 219–20. 108. See Mathews (2001) 24 WAR 438; 123 A Crim R 137 at 138, 149. 109. See O (2003) 139 A Crim R 432 at 436. 110. See also Neal (1982) 149 CLR 305; 42 ALR 609; Stanton [1992] ACL Rep 130 WA 121. 111. See Penalties and Sentences Act 1992 (Qld) s 9; Sentencing Act 1995 (WA) ss 6–8; Lowe (1984) 154 CLR 606 at 612; 54 ALR 193; Hoad (1989) 42 A Crim R 312 at 315. 112. See Skinner (1913) 16 CLR 336 at 340; McIntosh [1923] St R Qd 278 at 279; Paterson [1940] QWN 48; House (1936) 55 CLR 499; Tait (1979) 24 ALR 473; 46 FLR 386 at 388; Stewart (1994) 72 A Crim R 17; Melano [1994] 2 Qd R 186; Dinsdale (2000) 202 CLR 321; 175 ALR 315; Macri (2005) 158 A Crim R 90; Marchese (2006) 163 A Crim R 363. 113. See Bojivic (1999) 113 A Crim R 1 at 9; Green [1986] 2 Qd R 406. 114. Code (Qld) s 669A(1). 115. Per Gleeson CJ at CLR 468; per Callinan and Heydon JJ at CLR 485–6. 116. Criminal Appeals Act 2004 (WA) ss 24(1), 31; see 3.40. 117. See Everett and Phillips (1994) 181 CLR 295 at 299; 124 ALR 529; Peel (1971) 125 CLR 447 at 452; [1972] ALR 231. 118. See Everett and Phillips (1994) 181 CLR 295 at 299; 124 ALR 529. 119. Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at 583; 275 ALR 646. 120. See also Melano [1995] 2 Qd R 186; Gilles (2000) 117 A Crim R 339 at 343. 121. There is now no appeal to the Privy Council: see Australia Act 1986 (UK) s 11; Privy Council (Appeals from the High Court) Act (1975) (Cth) s 3. 122. Judiciary Act 1903 (Cth) s 35(1)(b). 123. Judiciary Act 1903 (Cth) s 23(2). 124. See Lee (1950) 82 CLR 133 at 138; [1950] ALR 517; Morris (1987) 163 CLR 454; 74 ALR 161; Benz (1989) 168 CLR 110; 89 ALR 339; Glennon (1992) 173 CLR 592; 106 ALR 177. 125. See Raspor (1958) 99 CLR 346; 65 ALR (CN) 1062; Liberato (1985) 159 CLR 507 at 509; 61 ALR 623; Morris (1987) 163 CLR 454 at 476; 74 ALR 161. 126. See Veen (1979) 143 CLR 458 at 461, 472; 23 ALR 281; Lowe (1984) 154 CLR 606 at 608–9; 54 ALR 193; Radenkovic (1990) 170 CLR 623 at 634–5; 97 ALR 198; but see also Neal (1982) 149 CLR 305; 42 ALR 609; Ibbs (1987) 163 CLR 447; 74 ALR 1; Dimozantos (No 2) (1993) 178

CLR 122; 116 ALR 411, where special leave was granted. 127. See Lowe (1984) 154 CLR 606 at 608; 54 ALR 193; Radenkovic (1990) 170 CLR 623 at 634; 97 ALR 198; Bugmy (1990) 169 CLR 525 at 530; 92 ALR 552; Postiglione (1997) 189 CLR 295 at 337; 145 ALR 408. 128. See also Wilkes (1948) 77 CLR 511 at 516–17; [1950] ALR 168; Lee (1950) 82 CLR 133 at 138; [1950] ALR 517. 129. See Jeffers (1993) 112 ALR 85; (1993) 67 ALJR 288. 130. See Veen (1979) 143 CLR 458; 23 ALR 281; Neal (1982) 149 CLR 305; 42 ALR 609; Dimozantos (No 2) (1993) 178 CLR 122; 116 ALR 411; but see also Ibbs (1987) 163 CLR 447; 74 ALR 1.

[page 43]

Chapter Four Classification of Offences

Introduction Trial upon indictment 4.1 Systems of criminal justice usually categorise offences according to their seriousness. Central to the method of classification adopted by the Codes in Queensland and Western Australia is the concept of the indictment: see 5.44. The system of trial upon indictment is a very old one in English law and, from the thirteenth century onwards, trial upon indictment has been the typical method of trial at common law.1 It was the function of the grand jury to determine whether an indictment should be presented against an accused person. If the grand jury decided to proceed, a written charge was formulated and the accused was arraigned on the charge before a petty jury, the forerunner of the modern jury, and a justice of the Court of King’s Bench in London or on circuit. The consequence of a person being charged upon indictment was that all contested issues of fact were determined by the petty jury. This distinction between trials on indictment and trials heard in a summary manner, that is, without a jury, is found in the criminal law of Queensland and Western Australia.

Classification under Commonwealth law

4.2 The general system for classification of offences that arises under Commonwealth law is found in the Crimes Act 1914 (Cth) ss 4G and 4H, where a distinction is made between indictable offences and summary offences. Section 4G provides that offences against the law of the Commonwealth punishable by a period exceeding 12 months’ imprisonment are indictable offences unless the contrary intention appears. Under s 4H, offences punishable by imprisonment for a period not exceeding 12 months or that are not punishable by imprisonment are summary offences unless the contrary intention appears. Thus, for Commonwealth statutes that depend on this general system, offences are indictable or otherwise according to the penalty [page 44] provided. An example is the Marriage Act 1961 (Cth) s 94, which creates the offence of bigamy. This is punishable by 5 years’ imprisonment and, consequently, it is an indictable offence. The Criminal Code 1995 (Cth) also establishes offences that are punishable by terms of imprisonment ranging from 6 months to life.2 The Crimes Act 1914 (Cth) ss 4G and 4H function in the way outlined unless a contrary intention is expressed in a particular statute. When that contrary intention is expressed, the statute in question will provide a scheme of classification applicable to offences within that particular statute.3

Classification under state law 4.3 The classification systems in Queensland and Western Australia make a distinction between indictable and non-indictable offences. The former category comprises the more serious offences. The significant feature of an indictable offence is that it may lead to trial upon indictment before a judge and jury, although many indictable offences may also be dealt with in summary proceedings, that is,

without a jury. A person charged with a non-indictable offence in Queensland or Western Australia will be dealt with in summary proceedings in the Magistrates Court.4 Despite the similarities in the respective systems of classification, it will be seen that there are also differences in those systems. Many offences are found in statutes other than the Code, but the Code categories also apply to such offences.5

Queensland: regulatory offences 4.4 Under the Code (Qld) s 3(1), offences are classified into two kinds: criminal offences and regulatory offences. The latter category relates to a small range of offences that arise under the Regulatory Offences Act 1985 (Qld), comprising offences analogous to stealing or wilful damage. For these regulatory offences, special provision is made in relation to the trial procedure to be utilised, to the application of the onus of proof rules and to the availability of certain excuses.6

Queensland: indictable offences and simple offences 4.5 In Queensland, most offences are criminal offences and these are further subdivided into indictable offences and simple offences under the Code (Qld) s 3(3). Indictable offences are further categorised into crimes and misdemeanours, [page 45] and any offence not otherwise designated is a simple offence.7 Thus, a breach of the criminal law under the Code may be: a crime; for example, murder;8 a misdemeanour; for example, failure to supply necessaries;9 or a simple offence: see 4.6 and 4.7. The Code (Qld) includes the following as ‘offences’ and, therefore, these equate to simple offences:

s 56A — disturbing parliament; s 56B — going armed to parliament; s 77 — unlawful processions; s 106 — illegal election practices; s 135 — advertising reward for stolen property; s 207 — disturbing religious worship; s 233(1) — possession of a thing used to play an unlawful game; s 332 — engineer endangering a steamship; s 426 — unlawful entry of vehicle; ss 451, 452 — unlawful possession or sale of shipwrecked goods; and ss 506, 507, 508 — forgery-related offences.

Queensland: crimes and misdemeanours 4.6 The need for the distinction between misdemeanours and crimes is less obvious and has been abandoned in Western Australia.10 The primary distinction was related to whether a person could be arrested without a warrant. That distinction still applies in Queensland. Under the Code (Qld) s 5, the definition of an offence as a crime imports the consequence that the offender may be arrested without warrant; in the case of a misdemeanour, a warrant for arrest is required: see 5.10–5.27. However, there are many exceptions to that provision under the Queensland Code. Examples of crimes where a warrant is required include the Code (Qld) ss 117 (false claims) and 123 (perjury). Examples of misdemeanours where no warrant is required are found in the Code (Qld) ss 227 (doing indecent acts) and 323 (wounding). Generally, crimes are more serious than misdemeanours, but there are some crimes that attract punishment less than that for some misdemeanours. In Queensland, compare, for example: ss 99 and 100 — crimes relating to various improper practices at

elections, punishable by 2 years’ imprisonment; with [page 46] s 334 — landing explosives, a misdemeanour punishable by up to 3 years’ imprisonment. Some misdemeanours may be dealt with in summary proceedings. In Queensland, these include, for example: s 148 — obstructing officers of the court; s 233 — possession of a thing used for an unlawful game; s 335 — common assault; s 469 — certain offences of wilful property damage; and s 535 — attempt to commit misdemeanour. Some crimes may also be dealt with in summary proceedings. In Queensland, these include, for example: ss 210, 215 — certain sexual offences; ss 229G and 229K — certain prostitution offences; ss 339 and 340 — certain assaults; s 359E — certain stalking offences; s 398 — certain types of stealing; and s 469 — special cases of wilful property damage.

Western Australia: simple and indictable offences 4.7 In Western Australia, the division is between simple (or summary) offences and crimes.11 All crimes are indictable offences and any offence not otherwise designated is a simple offence.12 The Code (WA) includes the following as ‘offences’ and, therefore, these equate to simple offences:

ss 96–106 — relating to improper practices at elections; s 138 — advertising a reward for return of stolen property; s 343A — publication of unapproved report of child-stealing; ss 428 and 429 — offences analogous to stealing; and ss 436 and 437 — unlawfully taking fish. The Code (WA) also refers specifically to some ‘simple offences’; for example: s 59 — refusal of a witness to attend before parliament; s 313 — common assault; s 555A — attempt to commit a simple offence under the Code; and s 560 — conspiracy to commit any simple offence. 4.8 In Western Australia, crimes that may be dealt with summarily include: s 58 — threatening a witness before parliament; ss 78, 80 and 80A–80D — some racial hatred offences; [page 47] s 203 — indecent acts; s 301 — wounding; s 305 — setting dangerous things for people; s 317 — assault occasioning bodily harm; ss 317A and 318 — serious assaults; ss 323 and 324 — indecent assault; ss 338B and 338C — threats; s 338E — stalking; ss 378, 382, 383, 388, 414 and 426 — certain stealing and receiving

offences; ss 381, 384, 385, 386, 387, 389, 390, 390A and 427 — certain offences analogous to stealing; s 401 — burglary; s 407 — persons found armed with intent to commit crime; s 409 — fraud; s 440A — unlawful use of computers; s 444 — wilful damage; s 473 — forgery and uttering; s 488 — procuring or claiming unauthorised status; and s 527 — fraudulent dealing by judgment debtor.

Mode of trial 4.9 A major significance of the classification of offences is that it determines the manner in which a particular offence will be dealt with in the courts. An offender may be tried before a judge and jury in the Supreme Court or District Court or by judge alone in either court (in limited circumstances outlined in the Code (Qld) s 615; Criminal Procedure Act 2004 (WA) s 118: see 5.80. Alternatively, a matter may be heard and determined by a magistrate in summary manner: see Chapter 2. For the purpose of determining which mode of trial will apply, the important distinction is that between indictable offences and simple offences. The indictment is the document that sets out the charge against the accused in writing and, where a person is alleged to have committed an indictable offence, the trial will be conducted ‘on indictment’ unless, in respect of that offence, there is express provision to the contrary.13 To say that the trial is conducted on indictment means that it will be conducted in the Supreme Court or District Court. In Queensland and Western Australia, this will result in trial by judge and jury or by judge alone.14 Not all indictable offences are dealt with

in that way, that is, on indictment. Where, in respect of a particular offence, there is express provision to allow it, the offence may be dealt with in summary proceedings in a Magistrates Court. [page 48]

Indictable offences and summary trials 4.10 Under the Queensland and Western Australian Codes, provision is made for the summary trial of indictable offences in certain circumstances.

Queensland 4.11 In Queensland, a comprehensive scheme for determining when a matter may be summarily determined is set out in the Code (Qld) ss 552A–552J. Under s 552A, certain indictable offences must be dealt with summarily if the prosecution so elects. This is subject to the magistrate’s discretion to decline to do so if he or she is satisfied that the defendant may not be adequately punished on summary conviction, whether because of the seriousness of the offence or because of any other relevant consideration.15 The Code offences in this category are those listed in the Code (Qld) s 552A, subject to s 552BA. They are: ss 141–144 — offences relating to escape from lawful custody; s 148 — obstructing court officers; s 233 — conducting a betting house; s 340 — serious assault; other offences involving an assault, not being of a sexual nature or accompanied by an attempt to commit a crime, where the maximum penalty is not more than 5 years; an attempt to commit any of the foregoing offences; and

an offence of being an accessory after the fact to any of the foregoing offences. Under the Code (Qld) s 552B, certain indictable offences may be dealt with summarily. The provision lists a wide range of offences that will be dealt with summarily unless the defendant elects trial by jury. However, even where the defendant indicates a willingness for the matter to be dealt with summarily, the magistrate has the same overriding discretion under the Code (Qld) s 552D noted above. Thus, for the offences nominated in the Code (Qld) s 552B, the defendant may insist on trial by jury but may not necessarily be able to insist on a summary trial. Some of the offences listed in the provision are summarily determinable only where property under a stated value is involved.16 However, that limitation does not apply if the defendant pleads guilty and the magistrate considers the offence is of such a nature that the defendant may be adequately punished on summary conviction.17 The offences to which the Code (Qld) s 552B applies are: (a) an offence of stealing, fraud, receiving or other dishonesty, or of making anything movable with intent to steal it, and the value of the property, benefit or detriment is not more than $5000;

[page 49] (b) s 406 [bringing stolen goods into Queensland]; (c) damage to or destruction of property up to the value of $5000; (d) an offence relating to an animal, skin or carcass or part of an animal, skin or carcass; (e) s 419 or s 421 [housebreaking] if: (i)

it involved stealing, an intent to steal or an intent to destroy or damage property or the damage or destruction of property; and (ii) the offender was not armed or pretending to be armed when the offence was committed; and

(f)

(iii) the value of any property stolen, damaged or destroyed was not more than $5000; s 425 [possession of things used for unlawful entry];

(fa) s 427 [unlawful entry of vehicle with intent to commit an indictable offence]; (g) s 408A [unlawful use of motor vehicle];

(h) an offence of a sexual nature without a circumstance of aggravation where the complainant was 14 years of age or over at the time of the alleged offence and the defendant has pleaded guilty; (ha) s 339(1) [assaults occasioning bodily harm]; (i) an offence involving an assault, other than an offence against s 339(1), if: (i)

the assault is: (A) without a circumstance of aggravation; (B) is not of a sexual nature; (C) is not an assault mentioned in s 552A; and

(ii) the maximum penalty for the offence is not more than 7 years; (ia) s 316A [unlawful drink spiking]; (j) s 328A(1) [dangerous operation of a vehicle]; (k) s 359A [unlawful stalking without a circumstance of aggravation]; (ka) an offence against Chapter 14, Division 2 [corrupt election practices]; (l) an offence against Chapter 22A [prostitution offences]; (m) an offence against Chapter 42A [secret commissions]; (n) attempting to commit any of the above offences; (o) counselling or procuring any of the above offences; (p) becoming an accessory after the fact to any of the above offences.

The Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010 (Qld) inserted new ss 552BA and 552BB into the Criminal Code. Section 552BA outlines that certain indictable offences must (subject to s 552D) be dealt with summarily. These are offences where a convicted person is liable to a punishment of 3 years or less, all offences in Pt VI of the Code (offences relating to property and contracts) which had a maximum penalty of more than 3 years, unless either explicitly excluded by s 552BB, or one of the offences in Ch 42A (secret commissions). [page 50] Those offences explicitly excluded in s 552BB are: offences where the value of the property involved is $30,000 or more — unless the defendant pleads guilty; and

specifically listed offences such as armed robbery and arson. Section 552D of the Act mandates that a magistrate must not deal with a matter summarily under s 552BA. If a defendant makes an application not to be determined summarily and if the magistrate is satisfied, there are exceptional reasons for doing so.

Western Australia 4.12 In Western Australia, an indictable offence that may be determined on indictment or in a Magistrates Court is described as an ‘either way’ offence.18 With these, the statement of the particular offence in the Code includes a summary conviction penalty as an alternative to the penalty applicable when the matter is dealt with on indictment. Additionally, the Code in Western Australia has some general provisions that bring together certain indictable offences which may be dealt with in a summary manner. These are: s 426 in relation to stealing and receiving offences; and s 427 in respect of offences of a fraudulent nature. Where provision is made for a summary conviction penalty for an indictable offence, the Code (WA) s 5 ensures that the charge will usually be heard and determined summarily in the Magistrates Court. This will be the case unless an application is made by the prosecution or the accused, before the accused pleads to the charge, that the charge be tried on indictment. The magistrate may grant the application only if one of the following grounds is established:19 the circumstances in which the offence was allegedly committed are so serious that, if the accused were convicted of the offence, the court would not be able to adequately punish the accused; the charge forms part of a course of conduct during which other offences were allegedly committed by the accused and the accused is to be tried on indictment for one or more of those other offences; a co-accused of the accused is to be tried on indictment;

the charge forms part of a course of conduct during which other offences were allegedly committed by the accused and others and the accused or one of the others is to be tried on indictment for one or more of those other offences; or the interests of justice require that the charge be dealt with on indictment. Accordingly, in Western Australia, the accused may apply for, but not elect, trial on indictment and will need to satisfy the magistrate that one of those grounds is met. [page 51]

Trial on indictment only for indictable offences 4.13 In Queensland and Western Australia, a person cannot be tried upon indictment except for an offence expressed to be indictable. Thus, a person charged with a traffic offence, for example, being in charge of a motor vehicle while under the influence of alcohol cannot be tried for that offence by a judge and jury.20 This is of practical significance, for a person charged with such an offence might welcome having the issues of fact determined by a jury of peers. Although the Code (Qld) appears to draw a sharp distinction between indictable offences, on the one hand, and non-indictable offences, on the other, the Justices Act 1886 (Qld) s 4 defines a ‘simple offence’ to be an offence, indictable or not, punishable on summary conviction. Defined in this way, the term extends the provisions of the Justices Act, which govern the hearing and determination of nonindictable offences, to the summary hearing and determination of indictable offences and regulatory offences.21 Thus, the procedural provisions of the Justices Act dealing with the hearing of complaints apply, subject to statutory provisions to the contrary, not only to nonindictable offences, but also to indictable offences dealt with summarily.22

In Western Australia, the term ‘offence’ is defined in the Criminal Procedure Act 2004 (WA) s 3(1) to mean an indictable offence or a simple offence. That Act makes specific provision for procedures applicable to dealing with both simple and indictable offences, making it clear that a charge can only be tried on indictment if it is a charge that must be tried on indictment or is an ‘either way charge’.23

Where a person is charged with both an indictable and a non-indictable offence 4.14 In Queensland, where a person is before the Supreme Court or the District Court in relation to an indictable offence and there is also a charge of a non-indictable offence against that person that has not been determined, the judge of that court has jurisdiction to deal with that non-indictable offence, summarily, in the limited circumstances provided for in the Code (Qld) s 651: the court must consider it appropriate to determine the matter; the accused must be represented by a legal practitioner; the prosecution and the accused must consent to the procedure; and the accused must plead guilty: see 2.3, 2.7 and 4.3. 4.15 In Western Australia, there is no specific provision dealing with this situation; however, s 134 of the Criminal Procedure Act 2004 (WA) states that separate prosecutions against the same accused can be dealt with together as long as the prosecutor consents, the court has jurisdiction to deal with the charges and [page 52] the court is satisfied that it is in the interests of justice to do so. However, this does not permit a simple offence to be tried by a jury.24

Summary conviction for indictable offence becomes conviction for simple offence 4.16 In Queensland, the Code (Qld) s 3(4) and the Justices Act 1886 (Qld) s 19 and, in Western Australia, the Magistrates Court Act 2004 (WA) s 11(2)(a) provide that a person guilty of a non-indictable offence may be summarily convicted by a Magistrates Court. However, pursuant to the terms of the Code (Qld) s 659 and (WA) s 3(5), a person convicted of an indictable offence in summary proceedings is deemed to be convicted of a simple offence only, and not of an indictable offence.25 Thus, the defendant has the advantage that the status of the conviction is the same as it would be if the charge had been for a simple offence, thus enabling the avoidance of any adverse consequence, for example, with respect to employment, that may be associated with a conviction for an indictable offence. However, the Drugs Misuse Act 1986 (Qld) s 123 operates to maintain a summary conviction under that Act as being for an indictable offence: see 16.6. In addition, the Police Powers and Responsibilities Act 2000 (Qld) s 485, which authorises the taking of DNA samples in the case of a prisoner serving a term of imprisonment for an indictable offence, applies after a summary conviction of an indictable offence.26

Commonwealth provisions 4.17 Under Commonwealth law, summary offences or nonindictable offences generally will be dealt with in summary proceedings. Indictable offences will normally be dealt with upon indictment which, pursuant to the Commonwealth Constitution s 80, will be on the basis of trial by jury. However, the protection afforded by that provision is limited in that it has no relevance to offences established by state legislation.27 Additionally, as stated in Archdall and Roskruge; Ex parte Carrigan and Brown (1928) 41 CLR 128 at 139–40; [1928] ALR 297:28 Section 80 merely says: ‘That the trial on indictment of any offence against any law of

the Commonwealth shall be by jury’ — that is to say, if there be an indictment, there must be a jury; but there is nothing to compel procedure by indictment.

Therefore, an offence may be classified as indictable under Commonwealth law but the Commonwealth Parliament may make provision for it to be dealt with summarily in certain circumstances. Only when the decision is made by prosecution authorities not to deal with the matter in that way but, rather, to proceed on indictment, will the protection of the Constitution s 80 apply. In Cheatle (1993) 177 CLR 541; 116 ALR 1, the High Court held that a conviction for an indictable offence under Commonwealth law dealt with on indictment must be by [page 53] the unanimous verdict of a jury even in those Australian states that accept that a majority verdict may be taken under state law.

Summary trial of indictable offences 4.18 The Crimes Act 1914 (Cth) sets out the procedures for the summary trial of indictable offences under Commonwealth law. Such provision is made under s 4JA of that Act for some indictable offences punishable by a fine where both the prosecutor and defendant consent. Also, with certain exceptions, an indictable offence punishable by imprisonment for a period not exceeding 10 years may be heard and determined by a court of summary jurisdiction. The section provides that the jurisdiction may only be exercised with the consent of both the prosecutor and defendant. The exceptions to this rule are listed in the provision, the major one being that s 4J(1) operates ‘unless the contrary intention appears’. In addition, s 4J(1) does not apply if some other Act makes express provision for summary determination, presumably in terms different from those expressed in s 4J(1).29 Any indictable offence may be determined summarily at the request of the prosecutor if the offence relates to property of value not exceeding $5000.30 Certain indictable offences

may not be the subject of summary proceedings at all and these are listed in the Crimes Act 1914 (Cth) s 4J(7).31

Classification of offence determines mode of trial 4.19 The foregoing treatment of the mode of classifying offences under Commonwealth and state law reveals that an important reason for such classification is that it provides a means of determining the manner in which particular offences will be heard. The indictable offences are usually more serious and are punishable by more severe penalties than simple offences. A hallmark of the criminal justice system has been that, in order to be liable for these greater penalties, the accused person must be convicted by a jury. However, in both state and Commonwealth law, certain indictable offences may be dealt with in summary proceedings in a Magistrates Court: see 4.10–4.17. Additionally, at the election of the accused or the prosecution, an accused charged with an indictable offence under Western Australian law can be tried by a judge alone without a jury.32 In circumstances where an accused is convicted of an indictable offence in the lower court, the accused is further safeguarded; the court is empowered to impose a lesser penalty than would be the case if the offence were tried on indictment.33

Time limits for prosecution 4.20 Apart from its role in determining the court of trial, and therefore often the penalty applicable to the offence, the classification of offences is important in other ways, to which brief reference will be made. The first relates to the period [page 54] of time within which a prosecution must be commenced. For a simple offence, the proceedings must be commenced within 12 months from the time when the matter of complaint arose, unless the statute

creating the offence provides otherwise.34 However, under the Codes, there is no time limit imposed in respect of the commencement of a prosecution for an indictable offence and this is the case whether the matter is the subject of a summary determination or trial on indictment.35 For indictable offences, this reflects the maxim nullum tempus occurrit regi (time does not run against the Crown). The principle applies subject to statutory exceptions36 but it should be noted that excessive delay, in addition to causing potential difficulties for witnesses, may constitute an abuse of process leading to a stay of proceedings.37 The time for commencing a prosecution under the Crimes Act 1914 (Cth) does not depend on the classification of the offence as indictable or non-indictable but, rather, on the term of imprisonment applicable to the offence. If that term exceeds 6 months, the prosecution may be commenced at any time. If the term is 6 months or less, the prosecution must be commenced within 1 year after the commission of the offence.38

Costs 4.21 The classification of offences is also relevant to the question of whether costs can be awarded at the end of criminal proceedings. For committal proceedings in the Magistrates Court and trials in the Supreme Court or District Court, there is no general power for the court to award costs against the prosecution or to order that fees be taken from the accused.39 However, note the exceptions where the accused may be required to pay the costs of prosecution;40 and, in Queensland, where a private prosecutor may have to pay the accused’s costs.41 [page 55] In respect of summary proceedings in the Magistrates Court, there

is a discretion to award such costs against the unsuccessful party.42 This includes the summary determination of indictable offences.43

Where a matter has been dismissed 4.22 Where a matter has been dismissed, the manner in which the court is to exercise its discretion in awarding costs against the prosecuting police officer is prescribed by statute. In Queensland, the Justices Act 1886 (Qld) s 158A(2) requires that all relevant circumstances be taken into account, including the following: whether the proceeding was brought and continued in good faith; whether there was a failure to take appropriate steps to investigate a matter coming to, or within, the knowledge of a person responsible for bringing or continuing the proceedings; whether the investigation into the offence was conducted in an appropriate way; whether the order of dismissal was made on technical grounds and not on a finding that there was insufficient evidence to convict or make an order against the defendant; whether the defendant brought suspicion on himself or herself by conduct engaged in after the events constituting the commission of the offence; whether the defendant unreasonably declined an opportunity before a charge was laid: – to explain the defendant’s version of the events; or – to produce evidence likely to exonerate the defendant; and the explanation or evidence could have avoided a prosecution; whether the defendant conducted the defence in a way that prolonged the proceeding unreasonably; and whether the defendant was acquitted on one charge, but convicted on another.

In Western Australia, the exercise of discretion to award costs after the dismissal of a complaint is governed by the Official Prosecutions (Accused’s Costs) Act 1973 (WA) and the Criminal Procedure Act 2004 (WA). The accused will ordinarily be entitled to an award of costs. The court may, however, reduce or revoke the accused’s entitlement where the accused did, or omitted to do, something that was unreasonable in the circumstances and that contributed to the bringing of the proceedings, in prolonging the proceedings unnecessarily or causing unnecessary expense.44 [page 56]

State laws apply to Commonwealth prosecutions 4.23 By virtue of the Judiciary Act 1903 (Cth) s 79, the laws of the states as outlined above regarding costs apply to prosecutions brought under Commonwealth legislation.

Presence of person charged Presence required for indictable offences 4.24 The classification system is also relevant to the question of whether an offence can be dealt with in the absence of the person charged45 or his or her legal representative. Traditionally, the trial on indictment in the Supreme Court or District Court of an indictable offence must be conducted in the presence of the person charged. The principle extends to sentencing procedures for indictable offences and is reflected in the Code (Qld) s 617(1) and Criminal Procedure Act 2004 (WA) s 88(3).46 Also, when a charge of an indictable offence is before a Magistrates Court, whether for committal proceedings or for the summary determination of the charge, the presence of the defendant is usually required.47

Exceptions and courts’ discretion 4.25 The provisions that require the presence of the person charged allow for exceptions. For any offence in any court where the conduct of the accused has rendered the continuance of proceedings in his or her presence impracticable, the matter may be continued in his or her absence.48 Apart from those situations that pertain to the behaviour of the defendant, there are, in Queensland, other limited circumstances when the defendant may be excused from attending the Magistrates Court in relation to committal proceedings.49 Another possible exception arises in Queensland where the charge constitutes a misdemeanour. In those cases, the Supreme Court and District Court have a discretion to continue in the absence of the person charged.50

Exercise of jurisdiction in the defendant’s absence 4.26 In respect of non-indictable offences in the Magistrates Court, there is provision for jurisdiction to be exercised in the absence of the person charged. After proof of service of the complaint and summons by the prosecution, the court can proceed to hear evidence on the complaint and convict the defendant or dismiss the complaint.51 The jurisdiction is exercised subject to certain constraints: see 5.35. [page 57]

Legal aid 4.27 The question of whether a person is able to obtain legal aid in respect of criminal proceedings is determined, to some extent, by the classification of the offence with which the person is charged.

Queensland 4.28 In Queensland, legal aid in criminal matters is regulated by Legal Aid, a body corporate established under the Legal Aid Queensland Act 1997 (Qld). Provision is made for legal assistance in

the form of legal representation for ‘specified criminal proceedings’. The definition of that term enables legal aid to be given in respect of indictable offences dealt with in the Supreme Court and District Court and for those committal proceedings in the Magistrates Court where the maximum penalty for the alleged offence exceeds 14 years.52 Clearly, provision of legal aid on those terms does not extend to nonindictable offences or to the summary determination of indictable offences. There is a discretion in Legal Aid to grant assistance in such matters but the scarcity of funds will usually preclude the granting of assistance for these proceedings. Legal Aid also operates a duty solicitor scheme in the Magistrates Court, thus enabling all persons to have legal representation on their first appearance in that court.53

Western Australia 4.29 In Western Australia, legal aid is available through the Legal Aid Commission, established under the Legal Aid Commission Act 1976 (WA), and extends to representation in proceedings. The commission has a discretion as to the types of matters for which legal aid will be granted.54 The State Eligibility Guidelines indicate that priority is given to cases where there is a reasonable chance that the applicant will lose his or her liberty as a result of being charged with a serious criminal offence.55 The Guidelines appear to confine the provision of aid to Magistrates Court matters to situations that are outside the scope of the duty lawyer, and where there is a likelihood of immediate imprisonment or exceptional personal or other circumstances that merit the allocation of aid. There is a duty counsel scheme that operates in the lower courts, and the Aboriginal Legal Service also provides services to those individuals requiring aid. _________________________________ 1.

2.

R Cross and P A Jones, An Introduction to Criminal Law, 5th ed, Butterworths, London, 1964, p 24. For the distinction between trials on indictment and summary proceedings, see Munday v Gill (1930) 44 CLR 38 at 52, 86–8; [1930] ALR 313. For example, see s 80.1(1): treason (life imprisonment); s 131.1(1): theft (10 years); s 136.1(1): knowingly making a false statement (12 months); s 136.1(4): recklessly making a

false statement (6 months). 3.

4. 5.

An example, before the majority of offences were removed to the Criminal Code (Cth), was the Crimes Act 1914 itself. See also Doyle [1980] Qd R 308 in reference to the now repealed Telecommunications Act 1975 (Cth) s 90; Lobban [1981] Qd R 431 at 434 in reference to the now repealed Australian Federal Police Act 1979 (Cth) ss 64, 65. Magistrates Court Act 2004 (WA) s 11(4). Note the sentencing option for non-indictable offences in the Supreme or District Court: see Code (Qld) s 651; 4.14.

6.

For an example of legislation with both simple and indictable offences, see Drugs Misuse Act 1986 (Qld); Misuse of Drugs Act 1981 (WA). Code (Qld) s 36(2).

7. 8.

Code (Qld) s 3(5). Code (Qld) s 305.

9. Code (Qld) s 324. 10. The separate category of ‘misdemeanour’ was removed by Act No 70 of 2004 (WA). 11. See above n 10. 12. See Interpretation Act 1984 (WA) s 67(1a), (2). 13. Code (Qld) ss 1, 3(3); (WA) ss 1(1), 3(2). 14. Code (Qld) ss 604, 615; Criminal Procedure Act 2004 (WA) s 118. 15. Code (Qld) s 552D. 16. Code (Qld) s 552B(1)(a)–(e). 17. Code (Qld) s 552B(3). 18. See Criminal Procedure Act 2004 (WA) ss 3(1), 40. 19. See Code (WA) s 5(3). 20. Transport Operations (Road Use Management) Act 1995 (Qld) s 79(1); Road Traffic Act 1974 (WA) s 63(1). 21. Under the Code (Qld) s 3(4), a person guilty of a regulatory offence may be summarily convicted. 22. Justices Act 1886 (Qld) Pt 6; Walters, Kidd and Byrne; Ex parte Drager [1945] St R Qd 154; Caldwell and Kinross; Ex parte Makin [1987] 2 Qd R 437. 23. See Criminal Procedure Act 2004 (WA) Pt 3, s 41(1). 24. Criminal Procedure Act (WA) s 134(3). 25. See Stokes v Dance (1994) 11 WAR 428; Ross (1979) 141 CLR 432; 25 ALR 137 at 145. 26. See Brogden v Commissioner of the Police Service (2001) 122 A Crim R 394. 27. See Birch (1994) 12 WAR 292. 28. See also Brown (1986) 160 CLR 171; 64 ALR 161; Cheatle (1993) 177 CLR 541; 116 ALR 1. 29. Crimes Act 1914 (Cth) s 4J(2). 30. Crimes Act 1914 (Cth) s 4J(4). 31. The reference is to offences such as treason, espionage and terrorism: see Criminal Code (Cth) Ch 5. 32. Criminal Procedure Act 2004 (WA) s 118; see 5.80.

33. See, for example, Code (Qld) s 552H; (WA) s 5(8). 34. Under the Justices Act 1886 (Qld) s 52, the complaint must be made; under the Criminal Procedure Act 2004 (WA) s 21(2), (3), the prosecution must be commenced. Under Code (WA) s 313(2), there is no time limit for prosecuting common assault. 35. Code (Qld) s 552F; Criminal Procedure Act 2004 (WA) s 21(1). 36. For example, see Code (Qld) s 107 for prosecution within 1 year. See also Racing Act 2002 (Qld) s 337. 37. See Walton v Gardiner (1993) 177 CLR 378; 112 ALR 289; Aitchison (1996) 90 A Crim R 448; Smith (2000) 117 A Crim R 1; 7.26. 38. Crimes Act 1914 (Cth) s 15B. 39. Code (Qld) s 704; Criminal Procedure Act 2004 (WA) s 123; Kimmins [1980] Qd R 524; Latoudis v Casey (1990) 170 CLR 534 at 538; 97 ALR 45; Mancini v Ward (1997) 93 A Crim R 456. 40. Code (Qld) s 660; Criminal Procedure Act 2004 (WA) s 166(2). See also Regulatory Offences Act 1985 (Qld) s 9, which enables a court to impose additional fines amounting to the cost of bringing proceedings. 41. Code (Qld) s 694; Jackson [1962] WAR 130; see 5.51. Note Code (WA) s 446 for costs of cleaning graffiti against offender for property damage. 42. Justices Act 1886 (Qld) ss 157, 158; Criminal Procedure Act 2004 (WA) s 67; Crowe v Bennett; Ex parte Crowe [1993] 1 Qd R 57. 43. Note that no costs may be awarded in any proceedings under the Drugs Misuse Act 1986 (Qld) (see s 127); Gordon v Whybrow [1999] 2 Qd R 362. 44. See Official Prosecutions (Accused’s Costs) Act 2003 (WA) ss 5, 6; Criminal Procedure Act 2004 (WA) s 67; Green (1998) 100 A Crim R 539; Haddon v Everitt (2001) 126 A Crim R 418; Mastrangelo v Reynolds (2001) 25 WAR 133. 45. Defendant (Queensland); accused (Western Australia). 46. See Thomas (No 2) [1960] WAR 129. 47. Justices Act 1886 (Qld) ss 100, 103, 104(1); Criminal Procedure Act 2004 (WA) ss 52, 53, 55, 57. 48. Code (Qld) s 617(2); Justices Act 1886 (Qld) s 40; Criminal Procedure Act 2004 (WA) s 140; Stuart and Finch [1974] Qd R 297 at 341. 49. Justices Act 1886 (Qld) ss 102A, 104A. 50. Code (Qld) s 617(4). 51. Justices Act 1886 (Qld) ss 142, 142A; Criminal Procedure Act 2004 (WA) ss 51, 55. 52. Legal Aid Queensland Act 1997 s 15; Schedule. 53. Legal Aid Queensland Act 1997 s 44(1)(f); Schedule. 54. Legal Aid Commission Act 1976 (WA) ss 36, 37. 55. Legal Aid WA State Eligibility Guidelines (2006) Ch 6B, 2.1.

[page 59]

Chapter Five The Trial Process

Introduction 5.1 This chapter deals with the process of bringing to trial a person who is charged with a criminal offence. Previous chapters relating to the court structure and classification of offences show the importance of the Magistrates Courts in that process. Apart from their jurisdiction with respect to non-indictable offences, these lower courts deal with indictable offences by finally determining certain such offences and by conducting committal proceedings1 for the remaining indictable offences which, ultimately, will be the subject of trial or sentencing proceedings in the Supreme Court or District Court.

Bringing matters before the Supreme Court or District Court Committal proceedings 5.2 The committal proceeding is the usual, but not the only, method available for bringing an offender before the Supreme Court or District Court. Some alternative procedures are dealt with below: see 5.3–5.7. Where no committal proceedings are held, the accused is denied the benefits associated with that public procedure. Traditionally, these include the right: to be discharged by a magistrate without having to undergo a trial

where there is no case to answer; to gain a relatively precise knowledge of the prosecution’s case; to hear the prosecution witnesses give evidence on oath; and to test that evidence by cross-examination.2 [page 60] As noted in Chapter 2, the committal proceedings in Western Australia now dispense with an examination of evidence, this responsibility being with the Director of Public Prosecutions (DPP). However, there is a duty of disclosure on the part of the prosecutor, which must be adhered to.3

Alternatives to committal proceedings Committal following coroner’s investigation 5.3 One alternative to the committal proceeding is where a person is committed for trial following an investigation by a coroner. The Coroners Act 2003 (Qld) and the Coroners Act 1996 (WA) establish the Coroners Court and the office of the State Coroner.4 The coroner conducts an inquest into a reportable death, which is broadly defined and includes death of a person unknown, an unexpected or violent death, death in care and death in custody.5 It was once the case that the coroner could commit a person for trial. However, under present legislation, where the coroner forms the opinion that an indictable offence has been committed, a report to that effect is to be provided to the DPP.6 This may then lead to the institution of criminal proceedings by the DPP’s office.

Ex-officio indictment 5.4 A second alternative to a committal proceeding arises through the right of the senior law officer of the state to present an indictment,

by virtue of his or her office, in the Supreme Court or District Court regardless of whether there have been committal proceedings. In Queensland, this is called an ex-officio indictment and, while that terminology is no longer used in Western Australia, the procedure remains and the term ‘direct indictment’ is used.7 An ex-officio indictment may also be presented in respect of indictable offences in addition to those that have been the subject of committal proceedings and, indeed, may be presented even where a magistrate has found that there is no case to answer.8 Under the Code (Qld) s 561, an ex-officio indictment may be presented by a Crown Law Officer, who is the Attorney-General or DPP or by a DPP presenter, a person engaged by the DPP for that purpose.9 Under the Criminal Procedure Act 2004 (WA) s 83, a direct indictment may be presented by an ‘authorised officer’.10 [page 61] 5.5 The courts have recognised that there is an unfettered discretion in the prosecutor to present an ex-officio indictment, but they also recognise that the court’s inherent jurisdiction can be exercised to prevent an abuse of process or prevent an unfair trial. Accordingly, after the indictment has been presented, the court may postpone or stay a trial on indictment for that reason.11 5.6 In 2010, new s 23EB of the Justices Act 1886 (Qld) and new s 34BB of the Bail Act 1980 (Qld) were inserted to allow a Queensland court to refer review of a charge for an indictable offence to the registry where the prosecution and defence agree the matter will proceed by way of ex-officio indictment, provided that the defendant is legally represented and is not in custody or in breach of a bail condition. In the same year, provision was made for registry committals: see 2.12, 5.50.

Presentation of information by private prosecution

5.7 A third alternative to bringing the accused before a magistrate in committal proceedings is available under the Code (Qld) s 686, but the procedure is no longer available in Western Australia.12 This enables any person to commence a private prosecution by presenting an information, which is equivalent to an indictment, directly to the Supreme Court. The procedure is only available by leave of the Supreme Court and, in Gouldham v Sharratt [1966] WAR 129 at 137–8, the Full Court of Western Australia noted that private prosecutions have become practically otiose and stated the policy considerations in respect of the granting of leave in the following terms:13 What should be the policy of the court in considering whether to grant leave under s 720? I consider it should be guided by the following considerations: (1) Is the type of offence of such grave character that the determination whether to prosecute should be left to the Attorney-General — for example, prosecutions for such offences as non-capital homicide, perjury and so on? (2) Is the admissible evidence in support of the prosecution inherently credible and sufficient to found a prima facie case? (3) If there have been no proceedings for committal, is there any good reason why the usual proceedings for committal before justices should not be resorted to? (4) Has the accused already been committed for trial by a petty sessional court? (5) Has the Attorney-General entered a nolle prosequi or intimated that he will not file a bill? (6) Is the administration of justice likely to be impaired by reason of some discreditable motive on the part of the prosecutor? (7) Is the situation such that if leave is refused a grave injustice will be done to the applicant or somebody standing in close relationship to him?

[page 62] 5.8 In Re Smith [1993] 2 Qd R 218, an appeal against the refusal of a judge to grant leave to present an information was rejected on the ground that no satisfactory explanation had been given for not utilising the usual procedures available to a person to make a complaint leading to committal proceedings before a magistrate.14 While these limitations on the individual to initiate proceedings appear stringent, they serve only to limit the right to present an

indictment directly to the higher court; that is, without permitting the defendant the opportunity of having a committal proceeding. The limitation on private prosecutions in the Magistrates Court (again, no longer possible in Western Australia), whether it be for simple offences or committal proceedings for indictable offences, is much less rigorous.

Prosecutions in the Magistrates Court 5.9 Most criminal prosecutions are commenced in the Magistrates Court.15 There, proceedings on behalf of the prosecution are usually conducted by police prosecutors, although the DPP may institute proceedings for indictable offences, including the conduct of committal proceedings in Queensland and Western Australia and for non-indictable offences in Western Australia.16 In Western Australia, subject to any express statutory exception, proceedings in relation to a non-indictable offence or committal proceedings in relation to an indictable offence may not be commenced by a person acting in a private capacity.17 Such proceedings in the Western Australian Magistrates Court must be commenced by an authorised person.18 Historically, it has not been uncommon for prosecutions in the lower court to be initiated by private individuals. This results from the general rule, which still applies in Queensland and under Commonwealth law, that any penalty imposed by any Act may be sued for by any person, unless the right to sue is expressly given to any officer or person by name or designation.19 This is a statutory expression of the principle that criminal proceedings are taken in the name of the Crown, and that any member of the community has the right to use the name of the sovereign to put the machinery of the criminal law into motion. [page 63]

In Queensland, a series of threshold steps must be taken whereby a private individual who commences committal proceedings for certain indictable offences (where no property damage or injury to the complainant is involved) must show that the prosecution is not frivolous, vexatious or an abuse of process.20 Some public control is maintained over private prosecutions by virtue of the statutory power of the DPP to take over prosecutions for all indictable offences and many summary offences.21

Procedure for bringing a defendant/accused22 before a magistrate 5.10 The bringing of an alleged offender before a magistrate will follow one of the following courses of action: the defendant may have been arrested without warrant and brought before the court;23 in Queensland, a complaint may have been made to a justice of the peace, thereby leading to the issuing of a warrant for the arrest of the defendant who was then brought before the court;24 in Western Australia, a prosecution notice may have been lodged in the court following the arrest of the accused, or, if the accused is in custody or on bail, following the signing of the notice by the prosecutor.25 Additionally, a prosecution notice may be lodged where the accused is not in custody, leading to the issuing of an arrest warrant by a magistrate;26 the defendant/accused may be appearing before the court on a voluntary basis in response to a summons27 or, additionally in Queensland, in response to a notice to appear: see 5.32; or the defendant/accused may be appearing before the magistrate in accordance with a bail undertaking, in which case he or she will have been before the court previously, unless bail was granted by a police officer: see 5.29, 5.30.

Arrest

5.11 The making of an arrest constitutes the first formal step towards bringing an alleged offender before a court to be dealt with according to law. The initial appearance in court brings to an end such ministerial functions as the [page 64] making of the arrest, the formulation of a specific charge and any subsequent investigation involving police questioning. It also marks the commencement of the judicial process.28

Warrants 5.12 An arrest may be made without a warrant or it may be made pursuant to a warrant for arrest. The effect of the relevant provisions of the Justices Act 1886 (Qld) is that a warrant for arrest of a person may be issued by a justice of the peace when a complaint29 is made that the person is suspected of having committed an offence, whether indictable or not.30 Provision is also made for the justice to refrain from issuing a warrant if a summons would be as effective in bringing the person before the court to answer the charge.31 In Western Australia, where the accused is not in custody the effect of the Criminal Procedure Act 2004 (WA) s 28 is that the lodging of a prosecution notice will lead either to an application for the issue of a summons or an application made on oath to a magistrate for an arrest warrant.32 In both Queensland and Western Australia, the warrant is usually directed to police officers33 and the person who executes it is given the benefit of statutory protection from criminal responsibility when carrying out the arrest, even if the wrong person is arrested or the warrant is bad in law.34

Powers of arrest

5.13 In Queensland and Western Australia, the law relating to arrest, with or without a warrant, has a statutory basis, although the legislation reflects aspects of the common law from which it developed. In Queensland, powers of arrest by police officers are provided for in the Police Powers and Responsibilities Act 2000 (Qld) and those relating to other persons are dealt with in the Code (Qld) ss 545A–551. In Western Australia, provision for arrest by police officers and others is made under the Criminal Investigation Act 2006 (WA).35 [page 65]

Arrest without warrant 5.14 In Queensland, the general principle is that every crime is an offence for which an offender may be arrested, in prescribed circumstances, without a warrant, while a misdemeanour usually requires a warrant for arrest.36 However, there are many exceptions: see 4.7. In Western Australia, a police officer can arrest a person for a ‘serious offence’ (one punishable with 5 or more years’ imprisonment), and for a ‘non-serious offence’ if the police officer reasonably suspects that if the person is not arrested it will, for example, not be possible to verify his or her identity or he or she will continue to offend, endanger others or the person’s own safety is endangered.37 Although some statutory offences still require an arrest warrant there is no longer a general requirement for a warrant in Western Australia.38

Citizen’s powers of arrest 5.15 The provisions in the Code (Qld) ss 545A–551 and the Criminal Investigation Act 2006 (WA) s 25 apply to persons other than police officers and enable an arrest to be made without a warrant by a citizen. The citizen’s powers of arrest are more narrowly drawn than those of a police officer. A police officer may lawfully make the arrest if he or she reasonably suspects that the person has committed, is

committing or is about to commit the offence.39 In the case of a citizen, the offence must have been committed or be in the process of being committed.40 The lawfulness of an arrest by a citizen is also recognised in other situations. In Queensland, this extends to arrest by a person in charge of an aircraft for offences committed on the aircraft;41 arrest of an offender who is escaping from arrest;42 and arrest of an offender who offered stolen property for sale.43 The citizen’s capacity to arrest an offender is further extended under the Code (Qld) to the offender who is found by the citizen committing certain indictable or simple offences, that is, those for which a police officer may effect an arrest without warrant,44 and any indictable offence at night.45 [page 66] In Western Australia, a person in charge of a vehicle46 who reasonably suspects that a person has committed or is committing an offence on the vehicle may arrest and detain the person until he or she can be taken to a police officer.47

Police powers of arrest 5.16 Both Queensland and Western Australia have legislation relating specifically to the exercise of powers of arrest by police officers.48 5.17 Queensland The Police Powers and Responsibilities Act 2000 (Qld) purports to be a consolidation and rationalisation of powers and responsibilities of police for investigation of offences and enforcement of the law.49 Chapter 2 of that Act relates to general enforcement and sets out the powers of police for: entering of places (Pt 1 ss 19–25); conducting searches (Pt 2 ss 26–38); requesting name and address (Pt 4 ss 40–43A);

giving directions to move on (Pt 5 ss 44–49); dealing with breaches of the peace (Pt 6 ss 54–68); and dealing with an out-of-control event (Pt 7). 5.18 The Police Powers and Responsibilities Act 2000 (Qld) Ch 14 details arrest and custody powers of police officers in Queensland. It is lawful for a police officer to arrest a person whom he or she reasonably suspects50 has committed, or is committing, an offence if it is reasonably necessary for one of the reasons set out in s 365. These are: to prevent the continuation or repetition of an offence or the commission of another offence; to make inquiries to establish the person’s identity; to ensure the person’s appearance before a court; to obtain or preserve evidence relating to the offence; to prevent the harassment of, or interference with, a person who may be required to give evidence in relation to the offence; to prevent the fabrication of evidence; to preserve the safety or welfare of any person, including the person arrested; to prevent a person fleeing from the officer or the location of the offence; the offence is in the Police Powers and Responsibilities Act 2000 (Qld) ss 790, 791 (assault or obstruct police); [page 67] the offence is a breach of a domestic violence order under the Domestic and Family Violence Protection Act 2012 (Qld); and because of the nature and seriousness of the offence.

In addition, the police officer may arrest a person whom he or she reasonably suspects has committed, or is committing, an indictable offence for the purpose of questioning the person.51 Also, in Queensland, specific circumstances are nominated in which an arrest is to be discontinued by a police officer, including when the person is no longer reasonably suspected of committing an offence.52 5.19 Western Australia In Western Australia, the Criminal Investigation Act 2006 (WA) deals comprehensively with powers of police in a wide range of matters, including: miscellaneous official powers and duties, including the ordering of suspects to move on (Pt 4); entering and searching places and vehicles (Pt 5); obtaining business records (Pt 6); gaining access to data controlled by suspects (Pt 7); searching people (Pt 8); forensic procedures on people (Pt 9); provisions about searches and forensic procedures on people (Pt 10); interviewing suspects (Pt 11); and seizing things and related matters (Pt 13). Part 12 of the Criminal Investigation Act 2006 (WA) is concerned with arrest and matters related to arrest, including powers of entry to and search of places and vehicles,53 searches of people in custody54 and dealing with arrested people.55 The circumstances in which an arrest may be made by a police officer without a warrant vary in accordance with the seriousness of the alleged offence. In the case of a ‘serious offence’, which is defined as one for which the statutory penalty is or includes imprisonment for 5 years or more or life, a police officer may arrest a person if he or she reasonably suspects that the person has committed, is committing, or is just about to commit, the offence.56 For the purposes of that provision, a person reasonably

suspects something at a relevant time if he or she personally has grounds at the time for suspecting the thing and those grounds (even if they are subsequently found to be false or non-existent), when judged objectively, are reasonable.57 For an offence that is not a serious one, the police [page 68] officer must reasonably suspect that the person has committed, is committing, or was just about to commit the offence and, additionally, suspect that if the person is not arrested: it will not be possible, in accordance with law, to obtain and verify the person’s name and other personal details; the person will continue or repeat the offence; the person will commit another offence; the person will endanger another person’s safety or property; the person will interfere with witnesses or otherwise obstruct the course of justice; the person will conceal or disturb a thing relevant to the offence; or the person’s safety will be endangered.58 Powers for obtaining personal details and other identifying information are set out in the Criminal Investigation (Identifying People) Act 2002 (WA).59

Arrest procedures 5.20 Degree of force The legislation in Queensland and Western Australia makes provision for the procedures to be adopted in the carrying out of an arrest. The person may use a degree of force that is reasonably necessary to enable the arrest to be completed.60 In limited

circumstances, there is authorisation to use deadly force, that is, force of a degree that is likely to kill or do grievous bodily harm; for example, to prevent escape from arrest or where the alleged offence is punishable by life imprisonment.61 In Western Australia, the police officer’s use of force is specifically made subject to Ch 26 of the Code (WA), which deals with assaults and violence to the person.62 5.21 Arrestee to be advised of reason for arrest The person making the arrest is required to advise the arrestee of the fact that an arrest is being made and the reason for the making of the arrest, although these duties will be satisfied if the person carrying out the arrest has acted reasonably in the circumstances.63 [page 69] 5.22 Arrestee must be brought before a court without delay Once an arrest has been made, the arrestee must be brought before a court, and this initial court appearance is ensured by statutory obligations cast upon the person making the arrest to bring the arrestee before a justice. In Queensland, the duty arises under the Justices Act 1886 (Qld) s 65; Police Powers and Responsibilities Act 2000 (Qld) s 393; and Code (Qld) s 552. The first of those provisions requires that the duty be carried out as soon as practicable; the second that it be done as soon as reasonably practicable; and the last requires that it be done forthwith. In Western Australia, the Bail Act 1982 (WA) s 6 requires that it be done as soon as is practicable. These provisions reflect a common law principle that ‘a person is not to be imprisoned otherwise than upon the authority of a justice or a court except to the extent reasonably necessary to bring him/her before the justice to be dealt with according to law’.64 Wilful delay in carrying out the duty constitutes an offence.65 5.23 Unreasonable delay may amount to unlawful detention In Williams (1986) 161 CLR 278, the High Court held that the Justices Act

1959 (Tas) s 34A(1), which requires that the arrested person be taken before a justice as soon as is practicable, and the Criminal Code (Tas) s 303(1), which provides that the duty is to be discharged without delay, did not permit police officers to delay taking an arrested person before justices merely for the purpose of conducting an investigation into the offence for which the suspect was arrested, or into other offences.66 In that case, Williams had been arrested at 6 am, questioned from 11 am until 8.30 pm about the offences for which he had been arrested and for additional offences, and not taken before a Magistrates Court until the following morning. The High Court upheld the trial judge’s ruling that confessional material obtained during that period was inadmissible on the basis that Williams had been unlawfully detained. The High Court drew no distinction between the two Tasmanian statutory provisions. Each imports the common law test of reasonableness. Whether the arrested person has been brought before a justice within a reasonable time in a particular case will be a question of fact. However, inevitable delay, for example, that relating to transport arrangements and charge formulation, will not result in detention being unlawful.67 5.24 Detention for investigation What will usually be considered unreasonable, in the absence of statutory provision to the contrary, is detention merely for the purpose of investigation, or further investigation of the offence for which the arrest was made or of other offences.68 This principle will apply even where the arrestee [page 70] has consented to the delay.69 Nevertheless, there have been cases where a person has been lawfully arrested for a particular offence, and where it was held to be lawful for investigations to be carried out in respect of other offences allegedly committed by that person, even where the original arrest was for that purpose.70

5.25 Controls on police conduct In Williams, the High Court rejected the more expansive interpretation of police powers that has prevailed in England.71 The court affirmed the more stringent control of police conduct revealed in Australian authorities.72 5.26 Unlawful detention and investigative efficiency The interpretation of these provisions relating to arrest carries with it the need to strike a balance between the right of the citizen not to be unlawfully detained, on the one hand, and the public interest in the efficiency of police investigation and administration, on the other. On the High Court’s approach in Williams (1986) 161 CLR 278; 66 ALR 385, any change that shifts the balance away from the citizen will require legislative intervention. Indeed, this has been done to a limited extent in both Queensland and Western Australia, where police have been granted statutory detention powers to enable them to carry out investigative functions prior to a court appearance in certain stated situations.73 5.27 Even without extension of police investigative powers, the interpretation applied by the High Court in Williams will not result in undue hampering of police at the point when deciding whether to make an arrest. Only upon completion of the arrest does the obligation to present the arrestee to a justice arise. The lawfulness or otherwise of the arrest must be determined at the time when the arrest is made.74 That will depend on the terms of the warrant or, as in most cases where the arrest is based on suspicion and carried out without a warrant, the terms of the statutory provisions on which the police officer relied to justify the arrest. Similarly, the police will not be prevented from questioning suspects as long as their doing so does not constitute a diversion from the obligation to take the arrestee before a justice and provided the necessary warnings have been [page 71] given. In both Queensland and Western Australia, police can detain a

suspect for a reasonable time for investigative purposes, which includes questioning.75

Resisting arrest, innocence of arrestee and unlawful arrest 5.28 Where the statutory powers relating to arrest are complied with, the conduct of the person making the arrest will be lawful and any resistance to that arrest will be unlawful. Also, the lawfulness of an arrest is unaffected if the other person is later found not to have committed the offence.76 If the limits of the legislation are transgressed by the person making the arrest, the arrestee is able to protect himself or herself against what would, in many cases, amount to an assault.77 This has recently been affirmed in the Western Australian case of Staskos v Johnson [2014] WASC 137 in which the court held that a person is able to use proportionate force in response to an unlawful arrest. In that situation, the person being arrested would be acting in self-defence and may also have a basis for a civil action.78

Police or watch-house bail 5.29 The Bail Act 1980 (Qld) and the Bail Act 1982 (WA) provide for the release, on bail, of persons in custody at various stages of the criminal justice process. Where the arrested person has not been before a court with respect to the matter for which the arrest relates, bail may be granted by certain police officers but, unlike the situation when a person appears before a court (see 5.57), no presumption in favour of a grant of bail arises at this stage. Rather, the police officer is required to investigate the question of whether bail should be granted.79 This is subject to the provisions in the legislative schemes that permit detention for the purposes of questioning and investigating matters.80 5.30 In Queensland, the police officer in charge of a police establishment or manager of the watch-house may grant bail or, alternatively, issue a notice to appear to the alleged offender.81 The

bail granted may, in the case of a person who is not an Australian resident or passport holder, include a requirement that the person surrender his or her passport. In Western Australia, bail may be granted by an authorised police officer; that is, a sergeant or higher rank or officer in charge of a police station or lock-up.82 The granting of police or watch-house bail does not extend to the serious offences referred to in the Bail Act 1980 (Qld) s 13 and the Bail Act 1982 (WA) s 15, such as murder, unless there are exceptional circumstances. In these cases, bail may only be granted by a Supreme Court judge.83 In Queensland, [page 72] the power of the police officer to grant bail extends to all forms of arrest but, in Western Australia, it does not apply to a person arrested pursuant to a warrant.84

Cash bail: Queensland85 5.31 The granting of bail, whether by a police officer or by a court, usually involves the signing by the alleged offender of an undertaking to appear in court at a stated time and place, the breach of which undertaking constitutes an offence under the Bail Act.86 However, in Queensland, for certain non-indictable offences, the arrested person may be granted cash bail. This is where the person is released by the police officer on the making of a deposit of money as security for appearance before the court, rather than by signing an undertaking.87 Cash bail may be granted for any non-indictable offence except for those listed in the Bail Act 1980 (Qld) Schedule.88 This form of bail is only available for relatively minor offences and, because the defendant/accused is not required to sign an undertaking to appear in court, a failure to answer bail will not result in the commission of an offence under the Bail Act. However, such failure will result in the forfeiture of the moneys deposited: see 5.66.

Initiating proceedings: Queensland 5.32 In Queensland, following the making of a complaint in respect of a less serious offence, or in circumstances where it is likely that the person about whom the complaint is made will voluntarily appear before the court, it is proper for a summons to be issued instead of a warrant in the first instance. In general, a warrant will not be issued in the first instance on a complaint of a simple offence.89 The summons may be issued when a complaint is made before a justice that a person is suspected of having committed an offence.90 When it results in the issuing of a summons, rather than a warrant, the complaint need not be on oath.91 The practice is not to issue the summons separately, but to include the complaint and summons in the one document. The summons is served upon the person to whom it is directed and requires him or her to appear in the court at the time and place nominated in the summons.92 5.33 Proceeding by way of a summons rather than by warrant in a given case is preferable if it will be as effective in bringing an offender before a court. Yet there are inevitable procedural delays in complying with the terms of the Justices Act provisions relating to the issuing of a summons. This is recognised in Queensland in the Police Powers and Responsibilities Act 2000, which provides a police officer [page 73] with a further option as an alternative to obtaining a summons. This is by the issuing of a notice to appear. A police officer who reasonably suspects that a person has committed, or is committing, an offence may serve on the person a notice to appear, and this operates in the same way as a complaint and summons under the Justices Act 1886 (Qld).93

Initiating proceedings: Western Australia

5.34 In Western Australia, proceedings are commenced with a prosecution notice which is signed by the person commencing the prosecution94 and lodged with the court in which the prosecution is to be commenced.95 Where the prosecution notice alleges a simple offence, a court hearing notice is issued to advise the accused of various options that are open, including where and when the prosecution notice will be dealt with by the court; whether appearance in court is required; whether a plea of guilty or not guilty may be given; whether a plea of guilty in writing may be accompanied by an explanation of why the offence was committed and information to be used when a sentence is imposed; and whether the matter may be dealt with in his or her absence.96 Where the prosecution notice alleges an indictable offence, a summons may be issued by an authorised investigator, a justice of the peace or a prescribed court officer.97 Alternatively, an arrest warrant may be issued by a magistrate.98

Hearing a non-indictable offence in the Magistrates Court 5.35 Proceedings before a magistrate are conducted in accordance with the provisions of the Justices Act 1886 (Qld) and the Criminal Procedure Act 2004 (WA). In Queensland, they are commenced by complaint, which may be made by the complainant in person or by the complainant’s counsel or solicitor or other person authorised in that regard.99 In Western Australia, they are commenced by a prosecution notice.100 The initiating document must contain a sufficient description of the offence to enable the accused to answer the charge. This requirement is met if the words of the Act or other instrument creating the offence are used in the complaint.101 The detail needed to describe persons and property in a complaint [page 74]

or prosecution notice, and the procedures for amendment of them, are the same as those required in an indictment.102

When one of the parties is not present in court 5.36 In most cases, both the prosecutor and the defendant/accused103 appear before the court but the legislation sets out procedures to be followed when this does not occur: Where the prosecutor does not appear but the defendant/accused attends voluntarily in obedience to a summons, or is brought before the court by virtue of a warrant, the complaint may be dismissed or the hearing may be adjourned where the magistrate considers it proper to do so.104 Where the prosecutor appears but the defendant/accused does not, and where the magistrate is satisfied that the defendant/accused has been appropriately served with notice of the hearing, the court has jurisdiction to hear and determine the complaint in the absence of the defendant/accused.105 Provision is also made for the defendant/accused to apply to have any decision set aside.106 Where the defendant/accused is convicted in his or her absence, limits apply to certain aspects of sentencing. In Queensland, the court may not disqualify, cancel or suspend any licence, registration, certificate, permit or other authority under any Act or order that the defendant be imprisoned without adjourning proceedings to provide an opportunity for the defendant to appear.107 In Western Australia, the court may disqualify the person from obtaining or holding a licence but, if a disqualification does not already exist, the order does not come into operation for 7 days.108 Where the defendant/accused has notified the court in writing that he or she wishes to plead guilty to the charge, the matter may be determined in his or her absence.109

[page 75] Where, under the Justices Act 1886 (Qld) s 142A, the prosecutor is a public officer or a police officer,110 where the court is satisfied that the facts alleged in the complaint constitute the offence and that sufficient particulars of the offence are set out in the complaint, the court may determine the matter as if the facts and particulars have been established by evidence under oath and as if the defendant had personally appeared. Under the Justices Act 1886 (Qld) s 142A(12), the defendant may seek a rehearing. In many of the above situations, where the court decides not to determine the matter in the absence of the defendant/accused, the hearing can be adjourned.111 The court also has jurisdiction to issue a warrant for the arrest of the defendant/accused.112 Where neither party appears on an adjourned hearing, the court may proceed to hear and determine the matter as if they were present.113

When both parties appear 5.37 Where both prosecutor and defendant/accused appear, either personally or by counsel or solicitor, the court may proceed to hear and determine the matter.114 In Queensland, the substance of the complaint is read to the defendant, who is asked to enter a plea.115 In Western Australia, the court must be satisfied that the accused has a copy of the prosecution notice and understands the charge.116

Guilty plea 5.38 If the defendant/accused pleads guilty, he or she will be convicted. However, the court will only accept a plea of guilty after it has satisfied itself in accordance with a rule of prudence that the plea is voluntarily made.117

Not guilty plea

5.39 If the defendant/accused pleads not guilty, the court will commence to hear the matter and the practice and procedure applied in respect of the examination and cross-examination of witnesses is to be in accordance, as far as possible, with the practice for the time being of the Supreme Court.118 [page 76]

Submission of no case to answer 5.40 The prosecution case is opened with an outline of the evidence that is intended to be adduced. Then, prosecution witnesses are called in turn and examined by the prosecutor (evidence-in-chief), crossexamined on behalf of the defendant/accused and, if necessary, reexamined by the prosecutor. The prosecution case is then closed. At that stage, the defendant/accused may make a submission that there is no case to answer or, in other words, that no prima facie case has been made out. Where such a submission is made, the magistrate is required to consider the prosecution evidence and determine whether, on all of that evidence, a trier of fact could conclude beyond reasonable doubt that all the elements of the offence have been established and that, therefore, the defendant/accused could be lawfully convicted.119 In Western Australia, after a plea of not guilty, a trial may be conducted on the papers if the accused and the prosecutor consent, if they agree on which documents may be considered by the court and if the court is satisfied that it is in the interests of justice to do so.120

Defence election to call evidence 5.41 If there is a case to answer, the defendant/accused will be put to the election of whether to give evidence or to call evidence on his or her behalf.121 5.42

In the event that defence evidence is called, each witness is

examined, cross-examined and re-examined. When all the evidence has been adduced, each party may address the court for the purpose of summing up the evidence and making submissions on the law. The practice governing the parties’ submissions is that which applies in the Supreme Court.122

Dismissal or conviction 5.43 The court will dismiss the matter if the charge has not been proved beyond reasonable doubt.123 Otherwise, the defendant/accused will be convicted.124 Following submissions in respect of the appropriate penalty, punishment will be imposed and any orders for costs will be made.125 [page 77]

Hearing an indictable offence in the Magistrates Court Summary or committal proceedings? 5.44 While an indictable offence is one that will usually be tried on indictment in the Supreme Court or District Court, express provision is made in Queensland and Western Australia for many indictable offences to be summarily determined: see 4.15–4.19. Nevertheless, proceedings in respect of indictable offences will be initiated in the Magistrates Court by complaint (Queensland) or by prosecution notice (Western Australia) in the same way as for a non-indictable offence. At a point in the proceedings, a determination will be made as to whether the court will exercise its criminal jurisdiction and hear and determine the matter summarily. Alternatively, it will deal with the matter as a committal proceeding.126 Summary proceedings in respect of indictable offences are governed by the Justices Act 1886 (Qld) Pt 5 and the Criminal Procedure Act 2004 (WA) Pt 3 Div 4.

Additionally, the Code (Qld) s 574, the provision relating to the form and content of indictments, applies to complaints filed against offenders in respect of an indictable offence determined summarily. In Western Australia, the formal requirements of a prosecution notice and of an indictment, for commencement of proceedings in the Magistrates Court or one of the higher courts, respectively, are set out in the Criminal Procedure Act 2004 (WA): see ss 23, 85, Sch 1; 5.33.

Queensland Defendant must be present 5.45 In Queensland, with some exceptions, there is no jurisdiction to proceed in the absence of the defendant for an indictable offence and a warrant may issue for the arrest of the defendant who is not before the court.127 The following exceptions arise: in the hearing of a ‘private complaint’128 which is a complaint made by a person who is not a public officer or acting in the execution of a duty imposed by law or the proper administration of an Act;129 in ‘committal proceedings’ where one defendant has been excused by the court on the basis that the relevant evidence relates to a codefendant;130 or where the court has ordered that proceedings be conducted in the absence of the defendant because of ‘misbehaviour’.131

Committal proceedings 5.46 Where the complaint relates to an offence for which summary proceedings are not available, or to an offence that may be the subject of summary proceedings but the court has determined not to exercise its discretion to determine the [page 78]

matter summarily, the court will conduct a committal proceeding in accordance with the Justices Act 1886 (Qld) ss 104–134. The magistrate reads the substance of the complaint to the defendant but does not take a plea from the defendant at that stage. The prosecution witnesses give their evidence-in-chief and are cross-examined by the defendant or his or her legal representative, and re-examined by the prosecutor if necessary. At the close of the evidence of the prosecution, if the magistrate is of the opinion that there is not sufficient evidence to put the defendant on trial, he or she will be discharged.132 If there is evidence sufficient to put the defendant on trial, the court must address him or her in the following terms, as set out in the Justices Act 1886 (Qld) s 104(2)(b): the defendant is asked whether he or she wishes to say anything in answer to the charge and is advised that there is no need to do so and no obligation to enter any plea; if the defendant reserves his or her defence and either enters no plea or pleads not guilty, he or she will be committed for trial in the Supreme Court or District Court;133 if the defendant pleads guilty, he or she will be committed for sentence in the Supreme Court or District Court;134 if the defendant calls evidence, the court will hear it and then determine, on all of the evidence led at the proceedings, whether there is sufficient evidence for the defendant to stand trial;135 if the evidence is not sufficient for that purpose, the defendant is discharged;136 if the evidence is sufficient for that purpose, the defendant will be committed for trial in the Supreme Court or District Court;137 if the defendant pleads guilty at that stage, he or she is committed for sentence in the Supreme Court or District Court;138 and upon committal for trial, the defendant is warned that, if he or she seeks to adduce expert evidence or alibi evidence at the trial, time

limits prescribed for giving advance notice to the prosecution of such evidence apply.139

Written statements in lieu of oral testimony 5.47 In Queensland, there is provision for committal proceedings to be conducted more speedily. Written statements of witnesses may be tendered, thus eliminating [page 79] the need for oral examination of these witnesses in court.140 A magistrate may only conduct a full paper committal for a defendant who is not legally represented where the magistrate is satisfied that the defendant understands the nature of the proceedings and the possible consequences, is aware that he or she is entitled to legal representation and may apply for legal assistance, and he or she is aware of the right to apply for a direction requiring a prosecution witness to attend court.141 5.48 If a written statement is tendered by the prosecution, it must be admitted as evidence without the witness appearing unless the prosecution and defence agree142 or the witness is required to appear pursuant to a direction under the Justices Act 1886 (Qld) s 83(5AA) or the defendant is not legally represented and the magistrate is not satisfied of matters listed in s 110A(4) of the Justices Act 1886. 5.49 Prior to an application for a direction that a prosecution witness attend a committal proceeding, the parties must have communicated to see if an agreement can be reached.143

Registry committals 5.50 In limited conditions a registry committal may occur. Where a defendant is legally represented, the defendant is not in custody or in breach of bail conditions, all evidence of the prosecution witnesses is

intended to be given in written statements (and copies have been given to the defence), and the defendant’s lawyer has given written notice to the Clerk of the Court and the prosecution that the defendant is not intending to offer any evidence, then the Clerk of the Court may commit the matter on the papers.144

Matters of private complaint 5.51 In Queensland, for matters of private complaint except those relating to an offence of which injury to the person or property of the complainant is an element,145 a special procedure is applicable under the Justices Act 1886 ss 102A–102G. This is designed to test the bona fides of the complainant by enabling a magistrate to conduct an initial inquiry into whether the complaint should be struck out, on the basis that it constitutes an abuse of process, is frivolous, or is vexatious.146 An application for such an order may be made by the defendant, who may be excused from the proceedings, which are held in camera.147 An appeal lies from the decision of the magistrate to a judge of the Supreme Court by a person aggrieved by the decision.148 If the complaint is struck out, there can be no further proceedings in respect of it and it is an offence to publish information concerning the existence of the complaint until it is established that the complaint will not be dismissed [page 80] on the grounds stated above.149 The complaint may also be dismissed for want of prosecution.150 Costs may be awarded against the complainant, who may also be required to give security for costs during the proceedings.151

After committal and where no indictment is to be presented 5.52

In Queensland, after a person has been committed for trial or

for sentence, the Magistrates Court transmits all relevant material, including the depositions of witnesses, to the prosecuting authority where it is examined to decide whether to present an indictment against the defendant.152 Ultimately, if an indictment is presented to the Supreme Court or District Court, the depositions become the prosecution brief for the trial. The defendant is entitled to a copy of the depositions, together with any statements of witnesses that may have been taken.153 If it is determined that no indictment will be presented, the prosecution can be brought to an end with the filing by the Attorney-General of a ‘no true bill’ and the issuing of a warrant for the discharge of the defendant.154

Western Australia 5.53 In Western Australia, the accused will usually be present at proceedings relating to an indictable offence; if not, a warrant may be issued to apprehend an absent accused.155 At the accused’s first appearance, the court must be satisfied that the accused has been provided with the prosecution notice and understands the charge and the purpose of the proceedings.156 If the matter relates to an either way offence, for which summary proceedings are available,157 an opportunity is then given to the prosecutor and the accused to request that this be done.158 If the court decides to try the matter summarily, it may, with the consent of the prosecutor and the accused, proceed to deal with it in that way immediately or, alternatively, adjourn the matter.159 The procedure for determining the matter is the same as that applicable to a simple offence.160 Following a conviction, the accused may be committed for sentence to the District or Supreme Court.161 5.54 If the matter is not to proceed summarily, the procedures relating to committal proceedings will be invoked. The accused is advised that he or she is [page 81]

not required to enter a plea at that stage but is given the opportunity to do so.162 If a plea of guilty is entered, the court, without convicting the accused, must commit him or her to the District or Supreme Court for sentence.163 If the accused does not plead, or pleads not guilty to the charge, the magistrate must adjourn the matter to a disclosure/committal and the prosecutor must make full disclosure to the accused of relevant confessional and evidentiary material.164 Once that material is provided to the accused, the prosecutor may, in writing, request the accused to consent to the court committing him or her for sentence or trial to the District or Supreme Court without a disclosure or committal hearing.165 Consent by the accused to this administrative committal expedites the committal process. In completing the consent form, the accused may declare what his or her plea is and the court may, in the absence of the prosecutor and the accused, commit the accused for trial or, if a guilty plea has been entered, for sentence in the District or Supreme Court.166 5.55 Before a disclosure/committal hearing is conducted, the court must be satisfied that the prosecutor has provided the accused with relevant confessional and evidentiary material.167 If the court is not so satisfied, the matter is to be adjourned and, in the event of further non-compliance by the prosecutor, the matter may be adjourned again or dismissed for want of prosecution.168 At the disclosure/committal hearing, the accused will be required to plead to the charge and the court will commit the accused for sentence or trial, as the plea dictates, to the District or Supreme Court.169 5.56 After the disclosure/committal, the court is to provide relevant documentation to the superior court and deal with matters pertaining to bail.170 Further, the prosecutor is obliged to provide to the relevant authorised officer the relevant documentation, which will be utilised by the prosecution in subsequent proceedings in the District or Supreme Court.171 If it is determined that no indictment will be presented, the prosecution can be brought to an end with the filing of a notice of discontinuance.172

[page 82]

Bail 5.57 The granting of bail is the procedure by which, rather than being remanded in custody pending criminal proceedings, an alleged offender is given a conditional release. Principles relating to bail are set out in the Bail Act 1980 (Qld) and the Bail Act 1982 (WA).173 The issue of whether bail should be granted will arise at various times when the defendant/accused is involved in the criminal justice process. This may be before or at the first court appearance, after committal for trial or sentence, during an adjournment, or even after conviction where an appeal is pending. Reference has been made to police or watch-house bail, which may be granted prior to a court appearance: see 5.29–5.30. This context is concerned with the granting of bail by a judicial officer.

Presumption of innocence 5.58 Central to the concept of any system of granting bail is the presumption that a person is innocent until proven guilty. To some extent, the law of bail in Queensland and Western Australia reflects that view, although there is no absolute right to be granted bail. The Bail Act 1980 (Qld) s 9 requires the court to grant bail on application prior to conviction, but this presumptive position in favour of a grant of bail must be seen in light of the remaining provisions of the Act, in particular s 16, which sets out the circumstances in which bail may be refused. In Western Australia, the courts have an obligation to consider an unconvicted accused’s case for bail, even where a bail application has not been made.174 In each state, those provisions exclude the person who has been convicted, and it is not surprising that any presumption of innocence would no longer operate in that situation. Despite that, where the relevant criteria are satisfied, bail may be granted after conviction; for example, pending the outcome of an appeal.175

Jurisdiction to grant bail 5.59 Generally, each court of the state has jurisdiction to grant bail to a person who appears before it.176 However, for certain serious offences, bail may only be granted by a Supreme Court judge. The Bail Act 1980 (Qld) s 13 provides that only the Supreme Court may grant bail where the offence, on conviction, would require the sentencing court to impose a mandatory sentence of imprisonment for life, such as with murder, or an indefinite sentence under the Penalties and Sentences Act 1992 (Qld) Pt 10. To similar effect is the Bail Act 1982 (WA) s 15, which states that where the accused is in custody for murder, only a Supreme Court judge is able to grant bail. [page 83] In addition to the exclusive jurisdiction in respect of these serious offences, the Supreme Court in each state has an overriding jurisdiction to grant bail or vary bail conditions for any person in custody for an offence, even where an application has been refused by another judge or magistrate.177 In Queensland, once a trial has commenced and until the accused is discharged or sentenced, matters relating to bail may only be determined by the trial judge.178

Legislative criteria for granting bail 5.60 Some guidance is provided in the legislation for determining whether bail should be granted in a particular case, by setting out criteria to be considered.179

Queensland 5.61 In Queensland, the court shall refuse bail where it is satisfied that the defendant should remain in custody for self-protection and also where there is an unacceptable risk that the defendant, if released

on bail, would fail to appear and surrender into custody, or would commit an offence, endanger the safety or welfare of members of the public or interfere with witnesses.180 In so deciding, the court is to have regard to all relevant matters, including the nature and seriousness of the offence charged, the character, antecedents, associations, home environment, employment and background of the defendant, the history of any previous grants of bail to the defendant and the strength of the evidence.181 In some situations, the defendant must show cause why bail should be granted. This is where the defendant is: charged with an offence committed while on bail; charged with an offence for which only the Supreme Court may grant bail; alleged to have used or threatened to use a firearm, offensive weapon or explosive substance; or where the offence arose under the Bail Act 1980 (Qld) itself.182

Western Australia 5.62 In Western Australia, discretion is given to the judicial officer and a range of factors is listed to which regard may be had in the exercise of that discretion.183 These factors are expressed in terms similar to those noted above but, in addition, specific reference is made to whether the prosecutor has put forward grounds for [page 84] opposing bail and whether there are grounds for believing that the proper conduct of the trial may be prejudiced if the defendant is not kept in custody. In the case of a serious offence listed in the Bail Act 1982 (WA) Sch 2, exceptional reasons favouring the grant of bail must be shown.184

Serious offences 5.63 In both Queensland and Western Australia, bail will be granted only in exceptional circumstances where the accused is charged with murder.185 Examples of bail being granted for murder are: Lim v Gregson [1989] WAR 1, where, in a mercy killing case, the accused had substantial assets in the jurisdiction and was unlikely to abscond; McDowell [1954] QWN 47, where the accused was 13 years of age; Sturgeon (2005) 158 A Crim R 34, where the jury had failed to agree on a verdict and there was no prospect of a retrial for 7 months; and Street [1944] QWN 24, where the accused was in ill-health. In Western Australia it is also required to show exceptional circumstances where the accused has been charged with a serious offence and is alleged to have committed another serious offence while on bail. In Milenkovski v State of Western Australia (2011) 42 WAR 99, the Western Australian Supreme Court found that it is not otherwise necessary to demonstrate exceptional circumstances where the accused has been charged with a serious offence.

Conditions of bail Entering into an undertaking 5.64 Before being released on bail, the defendant/accused enters into an undertaking which is in writing and constitutes a promise by him or her to appear at the time and place referred to in the document.186 Failure to appear in accordance with the undertaking is an offence.187 The undertaking will contain other conditions to secure the attendance of the defendant at the nominated time and place, but those conditions cannot be more onerous for the defendant than those that, in the opinion of the judicial officer, are necessary, having regard

to the nature of the offence, the circumstances of the defendant and the public interest.188

Cash bail 5.65 Reference has been made to the granting of cash bail by certain police officers for a limited range of non-indictable offences: see 5.29. In Queensland, a magistrate is also able to grant bail in that way.189 When a police officer, or, [page 85] in Queensland, a magistrate, grants bail on that basis, no written undertaking is required from the defendant and no offence will be committed if the defendant does not appear in court. However, as the moneys were paid as a condition of appearing in court, failure to appear will result in forfeiture of the moneys.190

Deposits of money and other security or surety 5.66 When it is considered that the undertaking alone is not sufficient to ensure subsequent court attendance, the defendant/accused will be required to deposit money and/or other security with the court, as a condition of release. In addition, the defendant/accused may be required to find a surety who is willing to sign a similar undertaking or to deposit money and/or other security, in order to assist in ensuring attendance at court. The defendant/accused and any surety become liable to forfeiture of such moneys and/or securities in the event that the defendant/accused does not appear in accordance with the terms of the respective undertakings.191

Trial in the Supreme Court and District Court Time limits for indictment following commitment for trial

5.67 Following committal proceedings in the Magistrates Court, a defendant or accused may be committed for trial or sentence in the Supreme Court or District Court: see 5.46–5.56. Provision is made to prevent the defendant or accused from spending long periods on bail or in custody on remand after being committed for trial or sentence and to expedite the decision by prosecuting authorities on whether an indictment will be presented.

Queensland 5.68 In Queensland, an indictment must be presented to the court no later than 6 months after the committal date.192 The time limit may be extended on application to the court by the prosecution if relevant evidence is not available, if the defendant has absconded, or if it is impractical, for any other reason, to present the indictment.193 Failure to comply with that time limit will result in the discharge of the defendant.194 However, this requirement is to be read subject to the Code (Qld) s 561, which authorises the subsequent presentation of an ex-officio indictment.195

Western Australia 5.69 In Western Australia, the person committed for trial or sentence to the District or Supreme Court may apply to the court, at any time, for an order [page 86] that prosecution be commenced or discontinued.196 The court may order that proceedings be commenced within a certain period and, in the event of non-compliance, the court may set aside the committal and discharge the accused from the charge.197

Discharge as a result of time limits

5.70 In each state, a discharge under the above provisions is only a discharge from the consequence of that committal and the defendant/accused may be prosecuted for the same offence in the future.198

Indictment procedure 5.71 The term ‘indictment’ is defined in the Code (Qld) and (WA) s 1. It is the document containing the written charge against an accused when it is intended to put the person on trial in the Supreme Court or District Court for an indictable offence.199 The indictment is signed and presented to the court by a prosecutor authorised to do so,200 and it must include the name of the court in which it is to be presented, a statement of the offence charged, with sufficient particulars to enable the accused to answer the charge, and the place of the trial.201 It is sufficient to describe offences by using the words of the Act that establish the offence.202 Special provision is made for particular indictments.203 In the event that there is an irregularity with or defect in the indictment, an application may be made for the judge to exercise a discretion to allow amendment of an indictment.204

Joinder of charges 5.72 Subject to express provision to the contrary, the indictment is to charge one offence only.205 Despite that requirement, provision is made for the joinder of specific offences.206 In addition, there is general provision for the joinder of charges on the one indictment in the following circumstances:207 [page 87] if the charges are founded on the same facts (Queensland)/acts or omissions (Western Australia);208 if the charges are, or form part of, a series of offences of the same

or similar character;209 or where the charges are, or form part of, a series of offences committed in the prosecution of a single purpose.210

Joint trial of offenders 5.73 Provision is also made for the joint trial of offenders, by which two or more persons charged with committing separate indictable offences may be charged in the same indictment and tried together. In Queensland, this can be done if the offences arise substantially out of the same or closely related facts.211 In Western Australia, the criteria for joint trial of offenders are the same as for including more than one charge on an indictment.212 While the Criminal Procedure Act 2004 (WA) generally requires two accused persons to be tried together where they are charged together on the same indictment,213 separate trials may be ordered if the court finds that the accused(s) is likely to be prejudiced by a joint trial.214 In both states, there is provision for the joint trial of principal offenders and accessories to the commission of an offence.215

Court’s discretion to direct separate trials 5.74 These provisions relating to joinder (of offences as well as of offenders) on the one indictment minimise the need for a multiplicity of trials with the same or similar evidence being led, with consequential waste of time, expense and personal hardship to the defendant/accused as well as the prospect of different juries returning inconsistent verdicts on the same evidence. However, to guard against unfairness to the person(s) charged, there is a discretion in the court to direct the separate trial of any charge in the indictment and for the separate trials of persons jointly charged.216 [page 88]

Arraignment 5.75 Under the Code (Qld), a trial in the Supreme Court or District Court is deemed to begin when the accused is so called upon to enter a plea.217 The arraignment of the accused involves him or her being called upon by name, being read the indictment and being required to enter a plea of guilty or not guilty.218 Prior to this, the prosecutor will have presented the indictment to the court219 and the judge will have determined any applications by members of the jury panel to be excused from the proceedings.220 Also, rulings will have been made by the judge on matters that have been raised for pretrial determination.221 This procedure enables pre-trial rulings to be made on a wide range of matters of law or procedure relating to the trial to assist in its speedier disposition.222 These include applications for amending, quashing or staying the indictment; for joinder of accused or joinder of charges; for noting of admissions and issues the parties agree are relevant to the trial or sentence; for deciding questions of law, including the admissibility of evidence; for ascertaining whether a defence of insanity or diminished responsibility or any other question of a psychiatric nature is to be raised; and for the return of subpoenas and notices to prosecution witnesses. In Western Australia, the Criminal Procedure Act 2004 does not nominate the point that constitutes the commencement of the trial but it has been held that the trial commences when the jury has been sworn and the accused is put in charge of the jury.223 Nevertheless, provision is made for a wide range of matters to be determined before a trial begins. These include determining any question of law or procedure; giving any direction necessary or convenient in order to facilitate the preparation for, or the conduct of, the trial, or that is otherwise desirable; determining any question of fact that in a trial may be determined lawfully by a judge alone without a jury; finding the accused not guilty of the charge without requiring a jury to give its verdict on the charge; and referring a question of law to the Court of Appeal.224 The judge constituting the court that deals with any of those matters need not be the judge who constitutes the court when

the trial of the accused takes place.225 Any of these proceedings taking place before the trial are taken to be part of the accused’s trial.226 [page 89]

Pleading to the indictment 5.76 When arraigned, the accused is called upon to plead to the indictment at which time he or she may plead guilty or not guilty.227 Alternatively, the accused may enter one of the special pleas available under the Codes; for example: that the matter has been dealt with previously;228 that he or she has been pardoned;229 or that the court does not have jurisdiction.230

Changing a plea 5.77 In many instances, the accused will have previously entered a plea in the committal proceedings: see 5.45. No difficulty arises where the accused pleaded not guilty at that stage and, when called upon to plead in the higher court, changes the plea to one of guilty. However, where the accused has previously pleaded guilty, then pleads not guilty upon arraignment, it is open to the judge to enter a plea of guilty if satisfied that the accused admitted guilt in the lower court. Where not so satisfied, the judge may order a plea of not guilty to be entered.231

Guilty plea, conviction and sentence 5.78 Where a guilty plea is entered, the defendant/accused will be formally convicted by the trial judge.232 In Queensland, he or she will be asked whether he or she has anything to say as to why sentence should not be passed. This is referred to as the administration of the allocutus and indicates an acceptance by the court of the accused’s

guilt.233 The sentence will be imposed after the judge is made aware by the prosecutor of the facts relating to the offence and after hearing submissions on the appropriate sentence from the prosecutor and from, or on behalf of, the convicted person.234 [page 90]

Not guilty plea 5.79 In Queensland, a plea of not guilty by the accused is treated as a demand to have the issues that are raised by that plea to be tried by a jury.235 In Western Australia, as an alternative, it may be conducted by a judge alone without a jury.236 This can be on the application of the accused or the prosecutor; in the latter case the accused must consent in order for the matter to be tried by judge alone. The application can be made before an indictment has been presented to the court or at any stage thereafter but before the identity of the trial judge is known to the accused.237 The judge sitting alone may make any findings or give any verdict that could have been made or given by a jury and has the same effect as a finding or verdict of a jury.238

Juries 5.80 Both Queensland and Western Australia have enacted legislation dealing specifically with the general practice and procedure governing juries.239 Some provisions of the Code (Qld) and the Criminal Procedure Act 2004 (WA) are also relevant to the functioning of the jury system in criminal proceedings.240 Reference is made here to those provisions that have direct relevance to the criminal trial.

Composition of a jury 5.81 The sheriff has the responsibility of preparing and maintaining lists of persons qualified to serve as jurors and of summoning a panel

of prospective jurors from which the jury for the trial will be selected.241 The sheriff may exempt a qualified person from jury service and a judge may excuse a juror from serving in a particular trial.242 The trial jury consists of 12 persons, but reserve jurors, up to three in Queensland and up to six in Western Australia, may be chosen when a lengthy trial is in prospect.243

Empanelling a jury 5.82 The procedure for empanelling a jury involves the random selection from a box of cards that identify the prospective jurors who have been summoned to be on the jury panel for the trial in question.244 In Queensland, the cards carry [page 91] the name of the person and, in Western Australia, each person is identified by a number. Each juror whose card is drawn, in turn, advances to the front of the court and takes the juror’s oath, thereby swearing to give a true verdict, according to the evidence, on the issues to be tried.245

Challenging a potential juror 5.83 Prior to being sworn, a particular juror may be challenged.246 The prosecution and the accused each may make peremptory challenges, up to eight in Queensland and up to five in Western Australia, where cause for making the challenge need not be shown.247 In addition to these peremptory challenges, there may also be challenge for cause.248 These challenges for cause are made on the basis that the juror is not qualified for jury service or is not impartial.249 In Queensland, a challenge may also be made to the whole panel on the basis, for example, that it is not large enough to enable a jury to be empanelled properly.250 Once the jury has been

sworn, the judge must then inform the jury of the charge set forth in the indictment and of each juror’s duty in the trial.251

Verdicts 5.84 In Queensland, the verdict of the jury must generally be unanimous.252 The Jury Act 1995 (Qld) s 59A permits majority verdicts provided a judge is satisfied the jury is unable to reach a unanimous verdict. This may only occur after a jury has been deliberating for at least 8 hours or, in the case of a complex trial, after such further period as the judge considers reasonable. Unanimous verdicts are, however, still required where the offender is liable, upon conviction for an offence under the Code (Qld) s 54A(1) to life imprisonment, the offence is against a Commonwealth statute or, at the time the verdict is given, the jury consists of only 10 jurors. 5.85 In Western Australia, a unanimous verdict is required for murder but, for other offences, a majority verdict of not less than 10 may be taken where the jury is unable to reach unanimity after deliberating for at least 3 hours.253 The judge, [page 92] however, is not prevented from requiring the jury to deliberate for more than 3 hours.254 A unanimous verdict is required for Commonwealth offences.255 5.86 Provision is made for the taking of a verdict from fewer than the usual 12 jurors where a juror has died or has become incapable of continuing to act as a juror. In such a case, the minimum number of jurors from which a verdict may be taken is 10.256 When it is unable to reach a verdict, the jury will be discharged and the accused may be required to stand trial on another occasion.257 The time taken by a jury to reach a verdict will vary considerably, and in Black (1993) 179 CLR 44; 118 ALR 209, the High Court outlined an appropriate direction for

a trial judge to ensure that unfair pressure to reach a decision is not placed on jurors.258

Prosecution case 5.87 After a jury has been empanelled, proceedings begin with the prosecutor’s opening address, in which an outline of the prosecution’s case is given.259 Then, each witness, in turn, is called by the prosecutor, gives evidence-in-chief, is subjected to cross-examination by or on behalf of the accused and is re-examined by the prosecutor. When the prosecution case is closed, it is open to the accused to submit that there is no case to answer. At that stage, the judge must determine, as a matter of law, whether a prima facie case exists. This requires a consideration of whether, on the evidence adduced by the prosecution, the accused could be lawfully convicted.260 In Queensland, where the judge is satisfied that there is no case to answer, the jury is directed as a matter of law to find the accused not guilty and the accused will be discharged.261 In Western Australia, the judgment of acquittal is entered by the trial judge and the jury is discharged from giving a verdict.262

Defence election to call evidence 5.88 Where a submission that there is no case to answer is not made, or where such a submission is unsuccessful, the accused is put to the election of whether to call evidence in defence.263 This will be after the prosecution has called all of its evidence and closed its case although, in exceptional circumstances, the prosecution may be [page 93] permitted to split its case.264 If the accused elects to adduce evidence, this can be from the accused himself or herself or from witnesses called on his or her behalf. If the accused gives evidence, it should be given before that of any other defence witnesses.265 Before any such

defence evidence is called, the accused or his or her legal representative may open the accused’s case by addressing the jury.266 Defence witnesses are then called to give their evidence-in-chief and are cross-examined and re-examined in the same manner as for prosecution witnesses. As with any other defence witnesses, the evidence of the accused must be given on oath from the witness box.267

Matters of law and voir dire 5.89 During the trial, matters of law are determined by the trial judge. For example, the question of whether an alleged confession was voluntarily made may be raised by the accused and the judge will be required to determine whether such evidence is admissible. Other examples would include whether a particular witness qualifies as an expert, thus enabling the witness to give opinion evidence; or whether a child witness is able to understand the significance of taking an oath of truthfulness. Such matters are determined by the judge after hearing evidence and submissions in the absence of the jury in a proceeding known as a voir dire; that is, a small trial within the confines of the trial itself.268

Terminating proceedings: nolle prosequi 5.90 At any time during the trial and before verdict, it is open to the prosecution to indicate to the judge that it will not proceed further with the indictment before the court.269 By doing so, the prosecutor is said to enter a nolle prosequi and the procedure has the effect of bringing the proceedings to an end and discharging the accused from any further proceedings upon that indictment. However, this does not prevent a further indictment in respect of the same offence being presented subsequently.270 The decision of whether to enter a nolle prosequi is a matter within the discretion of the prosecutor but, because the accused is open to further prosecution for the same offence, the procedure may result in an abuse of process. This would be the case if, when faced with the likelihood of an adverse verdict, the prosecution

was to enter a nolle prosequi, so as to preserve the prospect of a further indictment being presented. Accordingly, where the procedure would constitute an abuse of process, the court has power to refuse the return of the indictment for a nolle prosequi to be endorsed on it.271 [page 94]

Addresses by counsel 5.91 After the evidence, if any, has been adduced for the defence, the prosecutor and the legal representative of the accused are each entitled to address the court to sum up their respective cases. In Queensland, the prosecutor’s address precedes that of the accused’s legal representative only if the accused has not adduced evidence; otherwise, the prosecutor has the right of reply.272 In Western Australia, the prosecutor addresses the jury first but may be permitted to further address the court if an accused, in his or her closing address, asserts any fact that is not supported by evidence adduced in the trial.273

Directions to jury 5.92 The final step in the trial before the jury considers its verdict is for the trial judge to direct the jury on the law relevant to the case and to make such observations on the evidence as he or she considers appropriate.274 5.93 After the jury has retired to consider its verdict, the prosecutor or legal representative for the accused may apply to the trial judge for a redirection to the jury on particular matters referred to by the judge in the summing up. If the judge grants the application, the jury is recalled for redirection.275

Verdict and judgment 5.94

At the end of its deliberations, the jury will be asked for its

verdict and, if the jury finds the accused not guilty, the accused must be discharged from the charge of which he or she has been acquitted.276 If the accused has been found guilty of any offence, he or she is convicted and the allocutus is administered.277 Matters relating to sentence are then disposed of — this process has been considered above in the context of a plea of guilty: see 5.79. _________________________________ 1.

In Queensland, this proceeding may also be referred to as an examination of witnesses, a preliminary inquiry or a preliminary hearing: see Justices Act 1886 (Qld) s 4. In Western Australia, they are called disclosure or committal hearings, although the decision to commit an accused for trial is taken by the DPP: see Criminal Procedure Act 2004 (WA) s 44.

2.

3.

See Barton (1980) 147 CLR 75; 32 ALR 449; Webb [1960] Qd R 443 at 447–8; Epping and Harlow Justices; Ex parte Massaro [1973] QB 433; Re Van Beelen (1974) 9 SASR 163 at 247; Moss v Brown [1979] 1 NSWLR 114 at 125; District Court of Western Australia Act 1969; Ex parte Attorney-General. [1990] 2 WAR 297 at 304–5; and Re Smith [1993] 2 Qd R 219. Criminal Procedure Act 2004 (WA) s 44.

4. 5.

Coroners Act 2003 (Qld) ss 64, 70; Coroners Act 1996 (WA) ss 57. Coroners Act 2003 (Qld) ss 8–10; Coroners Act 1996 (WA) ss 3, 19, 23.

6.

Coroners Act 2003 (Qld) s 48(2)(a); Coroners Act 1996 (WA) s 27; Re Death of MRG; Ex parte Curtin (1997) 94 A Crim R 88. Code (Qld) s 561; Criminal Procedure Act 2004 (WA) s 83(6). See Director of Public Prosecutions Act 1983 (Cth) s 6(2A)–(2E) for Commonwealth proceedings. The indictment may be referred to as an ex officio information: see Hull (1989) 41 A Crim R 263. Historically, both were written accusations, the ‘information’ being presented by a public prosecutor and the ‘indictment’ being presented by a grand jury.

7.

8. 9.

See Judge Grant-Taylor; Ex parte Johnson [1980] Qd R 387. Code (Qld) ss 1, 559A; Practice Direction (No 2 of 2000) [2000] 1 Qd R 620.

10. Criminal Procedure Act 2004 (WA) s 83(1). The term ‘authorised officer’ is defined in the Criminal Procedure Act 2004 (WA) s 80 to mean: the Attorney General; the Solicitor General; the State Solicitor; the DPP and authorised members of staff; and a person appointed by the Governor to prosecute indictable offences. 11. See Hasler [1986] 2 Qd R 411; In the matter of District Court (WA) Act 1969 [1990] 2 WAR 297; Reilly [1990] 2 WAR 526; Siugzdinis and Mauri (1984) 32 NTR 1. For stay of proceedings, see Crook (2002) 30 SR (WA) 181 (long delay by prosecution); Noyes [2005] 1 Qd R 169 (prospects of success). See Criminal Procedure Act 2004 (WA) ss 76, 90. 12. Criminal Procedure Act 2004 (WA) s 20(5). 13. See also Ex parte Marsh [1966] Qd R 357; M v JMP and RP (1999) 108 A Crim R 129. For nolle prosequi, see 5.91.

14. See also Williams v Spautz (1992) 174 CLR 509; 107 ALR 635. 15. In Western Australia, an alternative to prosecution for prescribed offences is for an infringement notice to be issued to an offender, thereby enabling a reduced penalty to be paid and appearance in court to be avoided: see Criminal Procedure Act 2004 (WA) ss 5– 17. 16. Director of Public Prosecutions Act 1984 (Qld) s 10(1)(a)(i), (c)(i); Director of Public Prosecutions Act 1991 (WA) s 11(1)(a). In Queensland, the prosecution of non-indictable offences may be taken over and continued by the DPP: see Director of Public Prosecutions Act 1984 (Qld) s 10(1)(c)(ii). 17. Criminal Procedure Act 2004 (WA) s 20(5). 18. This includes a person authorised to do so under a written law: the Attorney General; the Solicitor General; the State Solicitor; the DPP and authorised members of staff; a person appointed by the Governor to prosecute indictable offences; and a police officer: see Criminal Procedure Act 2004 (WA) ss 20, 80, 182. 19. Crimes Act 1914 (Cth) s 13; Acts Interpretation Act 1954 (Qld) s 42. There was no general provision in Western Australia until the Criminal Procedure Act 2004 (WA) came into force: see Rabcznski v Morrison [1988] WAR 71 in respect of the Wildlife Conservation Act 1950 (WA) s 26. 20. Justices Act 1886 (Qld) ss 102A–102G; D v C [1982] Qd R 818; Re Smith [1993] 2 Qd R 218; see 5.47. 21. Director of Public Prosecutions Act 1983 (Cth) s 9(5); Director of Public Prosecutions Act 1984 (Qld) s 10(1)(c)(ii). 22. In Queensland, ‘defendant’ describes the person appearing in a Magistrates Court and ‘accused’ describes the person appearing before the Supreme or District Court: see Justices Act 1886 (Qld) s 4. In Western Australia, ‘accused’ describes the person appearing in any court: see Criminal Procedure Act 2004 (WA) s 3. 23. Police Powers and Responsibilities Act 2000 (Qld) s 365; Criminal Investigation Act 2006 (WA) s 128. 24. For ‘complaint’, see Justices Act 1886 (Qld) s 4. For ‘procedure’, see Justices Act 1886 (Qld) Pt 4. The justice may be a public official; for example, a Clerk of the Court. 25. Criminal Procedure Act 2004 (WA) ss 23, 24(1)(b). 26. Criminal Procedure Act 2004 (WA) s 28. 27. Justices Act 1886 (Qld) s 53; Criminal Procedure Act 2004 (WA) s 24(1)(c). 28. See Williams (1986) 161 CLR 278 at 305; 66 ALR 385. 29. When a warrant is issued in the first instance, the complaint must be on oath: see Crimes Act 1914 (Cth) s 3ZA; Justices Act 1886 (Qld) s 51. 30. Justices Act 1886 (Qld) ss 57, 59. In Queensland, a warrant may issue initially if the law creating the offence authorises arrest without warrant or the issue of a warrant in the first instance: Justices Act 1886 (Qld) s 59(2). 31. Justices Act 1886 (Qld) s 58. 32. Criminal Procedure Act 2004 (WA) ss 28, 31; Criminal Procedure Regulations 2005 (WA) reg 9, Form 1. Note the exceptions where an oath is not required in Criminal Procedure Regulations 2005 (WA) reg 9. See also Criminal Investigation Act 2006 (WA) s 13.

33. Police Powers and Responsibilities Act 2000 (Qld) Ch 14 Pt 2; Criminal Procedure Regulations 2005 (WA) Form 1. For ‘police officer’, see Police Powers and Responsibilities Act 2000 (Qld) Sch 6; Criminal Investigation Act 2006 (WA) s 3. 34. Justices Act 1886 (Qld) s 60; Code (Qld) ss 250–253; Police Powers and Responsibilities Act 2000 (Qld) s 369; Criminal Investigation Act 2006 (WA) s 128; Police Act 1892 (WA) s 137; Code (WA) ss 227–230. 35. Criminal Investigation Act 2006 (WA) Pt 5, Divs 2, 3. 36. Code (Qld) s 5. 37. Criminal Investigation Act 2006 (WA) ss 127, 128. 38. See Criminal Investigation Act 2006 (WA) s 144, which states that possession of a warrant is not necessary at the time of arrest. Note that s 13 of the Act does set out the procedure for obtaining an arrest warrant but there is no other reference to obtaining a warrant in the Act. 39. Police Powers and Responsibilities Act 2000 (Qld) s 365; Criminal Investigation Act 2006 (WA) s 128. 40. Code (Qld) s 546; Criminal Investigation Act 2006 (WA) s 25. See Self (1992) 95 Cr App R 42; Hulley v Hill (1993) 69 A Crim 52; Courtney v Thomson (2007) 170 A Crim R 233. For prevention of breach of the peace, see Code (Qld) s 260; Criminal Investigation Act 2006 (WA) s 24. For powers of arrest for Commonwealth offences, see Crimes Act 1914 (Cth) ss 3W–3Z. 41. Code (Qld) s 547A. For ‘aircraft’, see Code (Qld) s 1. 42. Code (Qld) s 550. 43. Code (Qld) s 551. 44. Code (Qld) s 548(1). 45. Code (Qld) s 549. For ‘night’, see Code (Qld) s 1. 46. For ‘vehicle’, see Criminal Investigation Act 2006 (WA) s 3. 47. Criminal Investigation Act 2006 (WA) s 26. The provision also sets out circumstances when the person in charge of the vehicle may frisk search a passenger, remove the passenger from the vehicle or prevent the passenger from boarding the vehicle. 48. Police Powers and Responsibilities Act 2000 (Qld); Criminal Investigation Act 2006 (WA). 49. Police Powers and Responsibilities Act 2000 (Qld) s 5. 50. To ‘reasonably suspect’ means to suspect on grounds that are reasonable in the circumstances: Police Powers and Responsibilities Act 2000 (Qld) Sch 6. 51. See Police Powers and Responsibilities Act 2000 (Qld) s 365(2). 52. See Police Powers and Responsibilities Act 2000 (Qld) ss 375–380. 53. Criminal Investigation Act 2006 (WA) ss 129–133. 54. Criminal Investigation Act 2006 (WA) s 135. 55. Criminal Investigation Act 2006 (WA) ss 136–143. 56. Criminal Investigation Act 2006 (WA) ss 127, 128(1); Maines v Roy (1990) 1 WAR 508; Spratt v Blake (1997) 92 A Crim R 91. See Cotchilli v State of Western Australia [2008] WASC 103 on the issue of reasonable belief in relation to the power to delegate arrest. 57. Criminal Investigation Act 2006 (WA) s 4.

58. Criminal Investigation Act 2006 (WA) s 128(2). 59. Criminal Investigation (Identifying People) Act 2002 (WA) Sch 1. 60. Code (Qld) s 254; Police Powers and Responsibilities Act 2000 (Qld) s 615; Criminal Investigation Act 2006 (WA) s 16; Crimes Act 1914 (Cth) s 3ZC(1). 61. Police Powers and Responsibilities Act 2000 (Qld) s 616; Code (Qld) ss 257, 258; Criminal Investigation Act 2006 (WA) s 16(3), which is subject to the Code (WA) ss 233, 235; Crimes Act 1914 (Cth) s 3ZC(2)(b). 62. Section 16 of the Criminal Investigation Act 2006 (WA) refers to the need for the force used to be in accordance with the provisions in the Code (WA). Note particularly ss 260 and 261 of the Code (WA). 63. Police Powers and Responsibilities Act 2000 (Qld) s 391; Code (Qld) s 255; Criminal Investigation Act 2006 (WA) s 138(2); Crimes Act 1914 (Cth) s 3ZD; Alderson v Booth [1969] 2 QB 216 at 220–1; Christie v Leachinsky [1947] AC 573; Dellit v Small [1978] Qd R 303; Wheatley v Lodge [1971] 1 WLR 29; Wornes v Rankmore [1976] Qd R 85; Brazil v Bielefeld; Ex parte Bielefeld [1964] QWN 5; Hortin v Rowbottom (1993) 61 SASR 313. 64. See Williams (1986) 161 CLR 278 at 283, 292–3, 305; 66 ALR 385; Wills v Whiteside; Ex parte Wills [1987] 2 Qd R 284 at 292; (1986) 4 MVR 465; Mackenzie (2004) 150 A Crim R 451. 65. Code (Qld) s 137; Bail Act 1982 (WA) s 61. 66. See also Wills v Whiteside; Ex parte Wills [1987] 2 Qd R 284 at 290; (1986) 4 MVR 465. 67. See Williams (1986) 161 CLR 278 at 299, 313; 66 ALR 385; Conley (1982) 30 SASR 226 at 240; Wright (1991) 60 A Crim R 215; Santos and Carrion (1987) 75 ALR 161; 29 A Crim R 122 at 126. 68. See Williams (1986) 161 CLR 278 at 301–2; 66 ALR 385. 69. See Conley (1982) 30 SASR 226 at 241. 70. See Christie v Leachinsky [1947] AC 573 at 593; Maines v Roy (1990) 1 WAR 508; Spratt v Blake (1997) 92 A Crim R 91. 71. See Dallison v Caffery [1964] 2 All ER 610. 72. See Clark v Bailey (1933) 33 SR (NSW) 303; Bales v Parmeter (1935) 35 SR (NSW) 182; Macecek [1960] Qd R 247; Bruce [1965] QWN 48; Banner [1970] VR 240; Priest v Nelson (1977) 5 QL 318; Miller (1980) 25 SASR 170; Dean (1981) 26 SASR 437; Clune [1982] VR 1; Conley (1982) 30 SASR 226; Larson and Lee [1984] VR 559; Iorlano (1983) 151 CLR 678; 50 ALR 291; Michaels (1993) 70 A Crim R 78 (NSW); Foster (1993) 113 ALR 1; 66 A Crim R 112; Norton (No 2) (2001) 24 WAR 488; 122 A Crim R 104. 73. Police Powers and Responsibilities Act 2000 (Qld) Ch 15, Div 3, Pt 2; Transport Operations (Road Use Management) Act (Qld) s 80; Protective Custody Act 2000 (WA) Pts 3, 4; Road Traffic Act 1974 (WA) s 66; Criminal Investigation Act 2006 (WA) ss 139– 141; Williams (1986) 161 CLR 278 at 311, 312; 66 ALR 385. 74. See Wiltshire v Barrett [1966] 1 QB 312. 75. Police Powers and Responsibilities Act 2000 (Qld) ss 365(2), 403–404; Criminal Investigation Act 2006 (WA) ss 139(2), 140(2). 76. See Ghani v Jones [1970] 1 QB 693. 77. See Jones [1978] 3 All ER 1098; Christie v Leachinsky [1947] AC 573.

78. See Bales v Parmeter (1935) 35 SR (NSW) 182; Leutich v Walton [1960] WAR 109. 79. Bail Act 1980 (Qld) s 7; Bail Act 1982 (WA) s 6(1). 80. Police Powers and Responsibilities Act 2000 (Qld) Ch 15, Pt 2; Protective Custody Act 2000 (WA) Pts 3, 4; see 5.24. Note also that a police officer may release a person without bail for minor drug offences: see Police Powers and Responsibilities Act 2000 (Qld) s 379. 81. Bail Act 1980 (Qld) s 7; see 5.32. 82. Bail Act 1982 (WA) ss 6, 13. 83. See 5.57; and the term ‘offence’ in Bail Act 1980 (Qld) s 6; Bail Act 1982 (WA) s 3. 84. Bail Act 1982 (WA) s 16. 85. With the repeal of the Bail Act 1982 (WA) s 18, cash bail is no longer available in Western Australia. 86. Bail Act 1980 (Qld) ss 20, 29, 33; see 5.65. 87. Bail Act 1980 (Qld) s 14. Note the factors in Bail Act 1980 (Qld) s 16(2). 88. Transport Operations (Road Use Management) Act 1995 (Qld) s 79; Racing Act 2002 (Qld) ss 321, 323, 325. 89. Justices Act 1886 (Qld) ss 53, 59. For mediation under the Dispute Resolution Centres Act 1990 (Qld), see Justices Act 1886 (Qld) s 53A. 90. Justices Act 1886 (Qld) s 53. 91. Justices Act 1886 (Qld) s 51. 92. Justices Act 1886 (Qld) ss 54, 56, 56A. 93. Police Powers and Responsibilities Act 2000 (Qld) ss 382–390. 94. The authorised investigator and, where necessary, a justice of the peace or prescribed court officer: see Criminal Procedure Act 2004 (WA) ss 18, 23; Sch 1, Div 1. The authorised investigator will usually be a police officer but the term extends to an officer of a prescribed public authority, the Attorney General, the Solicitor General, the State Solicitor, the DPP or member of the DPP’s staff: see Criminal Procedure Act 2004 (WA) ss 18, 80. 95. Criminal Procedure Act 2004 (WA) s 24. 96. Criminal Procedure Act 2004 (WA) ss 28(4), 33. 97. Criminal Procedure Act 2004 (WA) ss 28(3)(a), (b)(i), 30, 32. 98. Criminal Procedure Act 2004 (WA) ss 28(3)(b)(ii), 30, 31. For considerations relevant to issuing a summons rather than an arrest warrant, see Criminal Procedure Act 2004 (WA) s 30(5). 99. Justices Act 1886 (Qld) s 42. For joinder of charges, see Justices Act (Qld) s 43; Davidson [1985] 1 Qd R 332; McHenry v Boardman [1981] WAR 356; Vrisakis v Australian Securities Commission (1993) 9 WAR 395; Talbot v Lane (1994) 75 A Crim R 115; Bowen (2006) 32 WAR 81. See also 5.32. 100. See Criminal Procedure Act 2004 (WA) ss 23–28; 5.34. For joinder of charges, see Criminal Procedure Act 2004 (WA) Sch 1, cll 7, 8. 101. Justices Act 1886 (Qld) s 47; Criminal Procedure Act 2004 (WA) Sch 1, cl 5. 102. Justices Act 1886 (Qld) s 46; Criminal Procedure Act 2004 (WA) ss 131, 132; see 5.68. See Cook’s Hotel Pty Ltd v Pope (1983) 34 SASR 292; John L Pty Ltd v Attorney-General (NSW)

(1987) 163 CLR 508; 37 ALR 545. For amendment of a complaint, see Justices Act 1886 (Qld) ss 48–50; Justices Act 1902 (WA) ss 47–48; Starling v Ostrowski (2001) 24 WAR 61; Paulger v Hall [2003] 2 Qd R 294. For determinations prior to summary proceedings, see Criminal Procedure Act 2004 (WA) s 64. 103. In Queensland, ‘defendant’ describes the person appearing in a Magistrates Court and ‘accused’ describes the person appearing before the Supreme or District Court: see Justices Act 1886 (Qld) s 4. In Western Australia, ‘accused’ describes the person appearing in any court: see Criminal Procedure Act 2004 (WA) s 3. 104. Justices Act 1886 (Qld) s 141; Criminal Procedure Act 2004 (WA) s 54. 105. Justices Act 1886 (Qld) s 142(1), (2); Criminal Procedure Act 2004 (WA) s 51 where there is a written plea of guilty but not in the case of a written plea of not guilty: s 50. 106. Justices Act 1886 (Qld) s 142(6); Criminal Procedure Act 2004 (WA) ss 71–74, and note that the provision also enables the prosecutor to make such application. 107. Justices Act 1886 (Qld) s 142(2). 108. Criminal Procedure Act 2004 (WA) s 56. 109. Justices Act 1886 (Qld) s 146A(2A); Criminal Procedure Act 2004 (WA) s 51(3), (4) and, for withdrawal of guilty plea, s 51(6). Under (Qld) s 146A(1), the procedure is not available for an offence triable on indictment or where the defendant is liable to a prison sentence of more than 1 year. For limits on imposing a prison term, see Sentencing Act 1995 (WA) s 14. 110. ‘Public officer’ is an officer or employee of the public service, a statutory body or local government acting in an official capacity: see Justices Act 1886 (Qld) ss 4, 142A(15). 111. Justices Act 1886 (Qld) ss 142(1)(d), 143; Criminal Procedure Act 2004 (WA) ss 50–55. 112. Justices Act 1886 (Qld) s 142(1)(b); Criminal Procedure Act 2004 (WA) s 38(2)(b). 113. Justices Act 1886 (Qld) s 147; Criminal Procedure Act 2004 (WA) ss 52–54; see Shield v Topliner Pty Ltd [2005] 1 Qd R 551. 114. Justices Act 1886 (Qld) s 144; Criminal Procedure Act 2004 (WA) s 58. 115. Justices Act 1886 (Qld) s 145(1); see Hyde v Mason [2005] 2 Qd R 159 at 166. 116. Criminal Procedure Act 2004 (WA) s 59. 117. Justices Act 1886 (Qld) s 145(2); Criminal Procedure Act 2004 (WA) s 129. See Heffernan v Ward [1959] Qd R 12 at 16; Annewetey [1976] Qd R 161; Justices at Cloncurry; Ex parte Ryan [1978] Qd R 213; O (2003) 139 A Crim R 432; Michael v Musk (2004) 148 A Crim R 140; Harris (2004) 150 A Crim R 509. 118. Justices Act 1886 (Qld) s 148; Code (Qld) ss 619, 620; Criminal Procedure Act 2004 (WA) ss 65, 142–145; see 5.83–5.89. In Western Australia, for the obtaining of pre-trial witness statements and the examination of witnesses prior to trial, see Criminal Procedure Act 2004 (WA) Sch 3. 119. See May v O’Sullivan (1955) 92 CLR 654 at 658–9; [1955] ALR 671; Fawkes v Schadwell [1966] Qd R 20 at 21; Short v Davey; Ex parte Short [1980] Qd R 412; Sutton [1986] 2 Qd R 72; Williams [1982] WAR 277; King v Armstrong; Ex parte King [1985] 2 Qd R 178; (1985) 20 A Crim R 197; Briggs (1987) 24 A Crim R 98 at 104; Prashar [1989] 1 WAR 190; Doney (1990) 171 CLR 207 at 214–15; 96 ALR 539; Laurens v Willers (2002) 131 A Crim R 281 at 183; Muscat v Douglas (2006) 32 WAR 49 at 53, 76–77; 5.88.

120. Criminal Procedure Act 2004 (WA) s 66. 121. Code (Qld) s 618; Criminal Procedure Act 2004 (WA) s 144. 122. Justices Act 1886 (Qld) s 148; Code (Qld) s 620; Criminal Procedure Act 2004 (WA) s 145. 123. Justices Act 1886 (Qld) s 149; Criminal Procedure Act 2004 (WA) ss 147(3), 149, 150. 124. Justices Act 1886 (Qld) ss 146, 150–152; Criminal Procedure Act 2004 (WA) ss 147(1), 148. 125. See, generally, Penalties and Sentences Act 1992 (Qld); Sentencing Act 1995 (WA); and, for costs, see 4.20. 126. See above n 1. 127. Justices Act 1886 (Qld) ss 103, 104(1)(b); Code (Qld) s 617. 128. Justices Act 1886 (Qld) ss 102C(4), 103A. 129. Justices Act 1886 (Qld) s 4. 130. Justices Act 1886 (Qld) s 104A. 131. Justices Act 1886 (Qld) s 40; Code (Qld) s 617; see 4.24. 132. Justices Act 1886 (Qld) s 104(2). 133. Justices Act 1886 (Qld) ss 104(3), 108(1). 134. Justices Act 1886 (Qld) ss 104(3), 113(1). 135. Justices Act 1886 (Qld) ss 104(4), 108(1). 136. Justices Act 1886 (Qld) s 108(1). 137. Justices Act 1886 (Qld) s 108(1). 138. Justices Act 1886 (Qld) s 113(1). 139. Justices Act 1886 (Qld) s 104(5); Code (Qld) ss 590A, 590B. 140. Justices Act 1886 (Qld) s 110A. 141. Justices Act 1886 (Qld) s 110A. 142. Justices Act 1886 (Qld) s 110A(5). 143. Justices Act 1886 (Qld) s 110B. 144. Justices Act 1886 (Qld) ss 114–117, 130; Bail Act 1980 (Qld) s 34BA. 145. Justices Act 1886 (Qld) s 102A; D v C [1982] Qd R 818; Re Smith [1993] 2 Qd R 218. 146. Justices Act 1886 (Qld) ss 102A, 102C. 147. Justices Act 1886 (Qld) s 102C. 148. Justices Act 1886 (Qld) s 102D. 149. Justices Act 1886 (Qld) ss 102E, 102F. 150. Justices Act 1886 (Qld) s 102G. 151. See, generally, Justices Act 1886 (Qld) ss 102A–102G. 152. Justices Act 1886 (Qld) ss 77, 126. 153. Code (Qld) s 705. 154. Supreme Court Act 1995 (Qld) s 205; Judiciary Act 1903 (Cth) s 71; Nicholl (1862) 1 SCRQ 42 at 44. 155. See Criminal Procedure Act 2004 (WA) s 38(2) but note the power to excuse appearance in Criminal Procedure Act 2004 (WA) s 88. For exclusion for misconduct, see Criminal

Procedure Act 2004 (WA) s 140; 4.24. 156. Criminal Procedure Act 2004 (WA) s 39. 157. See 4.12. 158. Criminal Procedure Act 2004 (WA) s 40. 159. Criminal Procedure Act 2004 (WA) s 40(4). For the obtaining of pre-trial witness statements and the examination of witnesses prior to trial, see Criminal Procedure Act 2004 (WA) Sch 3. 160. Criminal Procedure Act 2004 (WA) s 60. 161. Criminal Procedure Act 2004 (WA) s 40(4). The court is to provide relevant documentation to the superior court and deal with matters pertaining to bail: see Criminal Procedure Act 2004 (WA) s 46. 162. Criminal Procedure Act 2004 (WA) s 41(2). 163. Criminal Procedure Act 2004 (WA) s 41(3); Western Australia v Landers (2000) 22 WAR 278. The court must also comply with the requirements in the Criminal Procedure Act 2004 (WA) s 47(1). 164. Criminal Procedure Act 2004 (WA) ss 41(4), 42. 165. Criminal Procedure Act 2004 (WA) s 43(1), (2). 166. Criminal Procedure Act 2004 (WA) s 43(3), (4), (5). A committal for sentence automatically cancels the disclosure/committal for trial: see Criminal Procedure Act 2004 (WA) s 43(8), (9). 167. Criminal Procedure Act 2004 (WA) ss 42, 44(1)(a). 168. Criminal Procedure Act 2004 (WA) s 44(1)(b). 169. Criminal Procedure Act 2004 (WA) s 44(1)(a). 170. Criminal Procedure Act 2004 (WA) s 44(2). 171. Criminal Procedure Act 2004 (WA) s 45. These include a copy of the written statement of material facts last served on the accused under s 35; any confessional material of the accused that is relevant to the charge; and a copy of the accused’s criminal record. For ‘relevant authorised officer’, see Criminal Procedure Act 2004 (WA) s 80. 172. Criminal Procedure Act 2004 (WA) s 87(1). 173. In Hughes [1983] 1 Qd R 92 at 95–6, the Bail Act (Qld) was referred to as a Code. 174. Bail Act 1982 (WA) ss 5, 7. 175. See Re Maher [1986] 1 Qd R 303, where the need to show exceptional circumstances was referred to; Chamberlain (1983) 153 CLR 514 at 519–20; 46 ALR 608; Walser (1994) 73 A Crim R 154; Hanson (2003) 142 A Crim R 241 and, on appeal, (2003) 202 ALR 423; 78 ALJR 157; for bail after conviction in Western Australia, see Bail Act 1982 (WA) Sch 1, Pt C, cl 4 and Tieleman (2004) 149 A Crim R 303. This restriction does not apply after conviction in a Magistrates Court: see Bail Act 1982 (WA) Sch 1, Pt C, cl 5. 176. Bail Act 1980 (Qld) s 8; Bail Act 1982 (WA) s 13. 177. Bail Act 1980 (Qld) s 10; Bail Act 1982 (WA) s 14; Scrivener (2001) 125 A Crim R 279; Pinkstone (2000) 119 A Crim R 462. In Queensland, provision is made for the review of bail decisions: see Bail Act 1980 ss 19B, 19C; Filippa [2005] 1 Qd R 587. Also, an appeal lies to the Court of Appeal in relation to bail: see Scrivener (2001) 125 A Crim R 279.

178. Bail Act 1980 (Qld) s 10(2), (3); Wren [2000] 1 Qd R 577; Re Walters [2002] 2 Qd R 109. 179. Bail Act 1980 (Qld) s 16; Bail Act 1982 (WA) s 13; Sch 1, Pt C, cll 1, 3. 180. Bail Act 1980 (Qld) s 16(1)(a), (b). 181. Bail Act 1980 (Qld) s 16(2). 182. Bail Act 1980 (Qld) s 16(3); Ex parte Woods [1985] 2 Qd R 433; Re Loubie [1986] 1 Qd R 272; Williamson [2001] 1 Qd R 99. 183. Bail Act 1982 (WA) Sch 1, Pt C, cll 1, 3. 184. Bail Act 1982 (WA) Sch 1, Pt C, cll 3A, 3B; Sch 2. 185. See Bail Act 1982 (WA) Sch 1 Pt C cl 3C; WCVB [1989] 1 WAR 279; Firkins (2002) 132 A Crim R 321; Dodd (2002) 135 A Crim R 545. In Jemielita (1995) 12 WAR 362, bail was refused on a charge of murder; but bail was granted in H (2002) 26 WAR 19, where a child was charged with murder. 186. Bail Act 1980 (Qld) ss 6, 11; Bail Act 1982 (WA) ss 3, 28(2). 187. Bail Act 1980 (Qld) ss 29, 33; Bail Act 1982 (WA) s 51. 188. Bail Act 1980 (Qld) ss 11, 20; Bail Act 1982 (WA) s 17(2); Sch 1, Pt D. 189. Bail Act 1980 (Qld) s 14A. 190. Bail Act 1980 (Qld) ss 14, 14A. 191. For appointment, role and obligations of sureties, see Bail Act 1980 (Qld) ss 21–26; Bail Act 1982 (WA) ss 35–50; Ex parte Doueihi [1986] 2 Qd R 352. For forfeiture by a surety, see Bail Act 1980 (Qld) s 32B; Bail Act 1982 (WA) s 49; Baytieh v Queensland [2001] 1 Qd R 1. 192. Code (Qld) s 590(1). 193. Code (Qld) s 590(2), (3). 194. Code (Qld) s 590(4). 195. See 5.4; Harker (2002) 128 A Crim R 317. 196. Criminal Procedure Act 2004 (WA) s 94(2). 197. Criminal Procedure Act 2004 (WA) s 94(3), (4); Diaz [1982] WAR 60; Dow [1980] Qd R 58; Jago (1989) 168 CLR 23; 87 ALR 577. 198. Code (Qld) s 590(4); Criminal Procedure Act 2004 (WA) s 150(2); Jenkin [1994] 1 Qd R 266. 199. Code (Qld) s 560; Criminal Procedure Act 2004 (WA) s 3; see 4.13. 200. Criminal Procedure Act 2004 (WA) s 85(2). See Foley [2003] 2 Qd R 88; Cockrell [2005] 2 Qd R 448. For reference to the independence of the prosecutor, see Vasta v Clare (2002) 133 A Crim R 114. 201. Code (Qld) ss 564, 573; Criminal Procedure Act 2004 (WA) ss 83, 84, 85; Sch 1, cll 5, 6; see S [2000] 1 Qd R 445; Cotter v State of Western Australia [2011] WASCA 202 on the situation when the accused asks for further particulars of the charge. 202. Code (Qld) s 564; Criminal Procedure Act 2004 (WA) Sch 1, cl 5. 203. Code (Qld) ss 565, 566; Criminal Procedure Act 2004 (WA) Sch 1, cl 6. 204. Code (Qld) s 572; Criminal Procedure Act 2004 (WA) s 132. See Maher (1987) 163 CLR 221; 72 ALR 351; Kennedy (2000) 118 A Crim R 34. 205. Code (Qld) s 567(1); Criminal Procedure Act 2004 (WA) Sch 1, cl 2; Hyde v Mason [2005] 2 Qd R 159.

206. Code (Qld) s 568; Criminal Procedure Act 2004 (WA) Sch 1, cll 7, 8. 207. Charges are numbered consecutively and, in Queensland, are called ‘counts’: see Code (Qld) s 567(3), (4); Criminal Procedure Act 2004 (WA) Sch 1, cl 2. 208. Code (Qld) s 567(2); Criminal Procedure Act 2004 (WA) Sch 1, cl 7(3)(b); Barrell & Wilson (1979) 69 Cr App R 250; Grakalic (2002) 27 WAR 19. 209. Code (Qld) s 567(2); Criminal Procedure Act 2004 (WA) Sch 1, cl 7(3)(a); Beck (1983) 9 A Crim R 168; Lancaster [1989] WAR 83; Killick (1980) 24 SASR 137; De Jesus (1986) 68 ALR 1; 61 ALJR 1; Sutton (1984) 152 CLR 528; 51 ALR 435; Hooper (1999) 108 A Crim R 108. 210. Code (Qld) s 567(2); Criminal Procedure Act 2004 (WA) Sch 1, cl 7(3)(c); Phillips & Lawrence [1967] Qd R 237; Mihic (2006) 43 SR (WA) 374. 211. Code (Qld) s 568(11), (12). 212. Criminal Procedure Act 2004 (WA) Sch 1, cl 7(3). 213. Criminal Procedure Act 2004 (WA) Sch 1, cl 9. 214. Criminal Procedure Act 2004 (WA) s 133(3); Russell v State of Western Australia (2011) 214 A Crim R 326. 215. Code (Qld) s 569; Criminal Procedure Act 2004 (WA) Sch 1, cl 7(4); Mackay (1977) 136 CLR 465; 15 ALR 541; Prashar [1989] 1 WAR 190; Phillips & Lawrence [1967] Qd R 237; Danes v Taylor [1965] Qd R 338; Leslie [1989] 2 Qd R 378; Vest [1993] 2 Qd R 210. 216. Code (Qld) ss 597A, 597B; Criminal Procedure Act 2004 (WA) s 133; Brennan (1936) 55 CLR 253; [1936] ALR 318; Russell, Szann and Patterson [1965] QWN 8; Phillips & Lawrence [1967] Qd R 237; Stuart and Finch [1974] Qd R 297; Pernich and Maxwell (1991) 55 A Crim R 464; Darby (1982) 148 CLR 668; 40 ALR 594; Webb and Hay (1994) 181 CLR 41; 122 ALR 41; Kranz (1991) 53 A Crim R 331; Rhodes and Kissling (1999) 104 A Crim R 572; Cook (2000) 110 A Crim R 117; S (2001) 125 A Crim R 526; Donaldson (2005) 31 WAR 122; Western Australia v Bowen (2006) 162 A Crim R 535. 217. Code (Qld) s 597C(3). 218. Code (Qld) s 597C(1). 219. Code (Qld) s 560(2). 220. Jury Act 1995 (Qld) s 20. 221. Code (Qld) s 590AA. See PV; Ex parte Attorney-General [2005] 2 Qd R 325. 222. Ireland (1993) 9 SR (WA) 177; Carter v Managing Partner, Mallesons Stephen Jaques (1994) 11 WAR 159; Gesa and Nona; Ex parte Attorney-General [2001] 2 Qd R 72; Sheehy [2005] 1 Qd R 418. 223. Donaldson (2005) 31 WAR 122, which was concerned with the early appeal procedure under Criminal Appeals Act 2004 (WA) s 26. For the excusing of jurors, see Juries Act 1957 (WA) s 32; Sch 3. 224. Criminal Procedure Act 2004 (WA) s 98(1)–(4). For determinations prior to a summary proceeding, see Criminal Procedure Act 2004 (WA) s 64. 225. Criminal Procedure Act 2004 (WA) s 98(5). 226. Criminal Procedure Act 2004 (WA) s 98(6). 227. Code (Qld) ss 597C, 598(2)(a), (b); Criminal Procedure Act 2004 (WA) ss 91, 126(1)(e), (f), 142. Silence is taken as a plea of not guilty: see Code (Qld) s 601; Criminal Procedure Act

2004 (WA) s 126(5). For motion to set the indictment aside, see Code (Qld) s 596; Criminal Procedure Act 2004 (WA) s 94(2). For change of plea during trials, see Code (Qld) s 631A; Criminal Procedure Act 2004 (WA) s 107. It is a matter for the prosecution whether to accept a plea of guilty to a lesser charge in full discharge of the indictment: see AttorneyGeneral’s Reference under s 693A Code (WA) (2002) 26 WAR 197. 228. Code (Qld) ss 598(2)(c)–(e), 602; Criminal Procedure Act 2004 (WA) s 126(1)(c). 229. Code (Qld) ss 598(2)(f), 672A, 675–677. 230. Code (Qld) ss 598(2)(g), 603; Criminal Procedure Act 2004 (WA) ss 126(1)(a), 127, 128. 231. Code (Qld) s 600; Criminal Procedure Act 2004 (WA) s 99(4), (5); Miller [1990] 2 Qd R 566 at 572, 576; Tihanyi (1999) 21 WAR 377; Moxham (2000) 112 A Crim R 142; Price v Davies (2001) 120 A Crim R 183. 232. Criminal Procedure Act 2004 (WA) s 147. 233. Code (Qld) s 648; Enslow (1992) 62 A Crim R 119; Shillingworth [1985] 1 Qd R 537 at 543; Selita (2004) 149 A Crim R 243 at 251. The accused may move to arrest judgment on the ground that the indictment does not disclose an offence: Code (Qld) s 649. Specific provision is no longer made for these procedures in Western Australia. 234. Code (Qld) s 650; Criminal Procedure Act 2004 (WA) s 148. See generally Penalties and Sentences Act 1992 (Qld); Sentencing Act 1995 (WA). For the prosecution’s role in sentencing, see Acerbi (1983) 11 A Crim R 90; Boyd (1984) 12 A Crim R 20; Jermyn (1985) 16 A Crim R 269; Tricklebank [1994] 1 Qd R 330. For what constitutes a conviction, see Maxwell (1996) 184 CLR 501; 135 ALR 1. For the sentencing of an accused convicted in the Magistrates Court in Western Australia and committed for sentencing to a higher court, see Criminal Procedure Act 2004 (WA) s 100. 235. Code (Qld) s 604. 236. Criminal Procedure Act 2004 (WA) ss 117–120; see Veskovich (2005) 40 SR (WA) 332; Martinez (2006) 159 A Crim R 380. 237. The court may refuse to make the order if it considers the trial will involve factual issues that require the application of objective community standards such as an issue of reasonableness, negligence, indecency, obscenity or dangerousness: Criminal Procedure Act 2004 (WA) s 118(4). 238. Criminal Procedure Act 2004 (WA) s 120. 239. Jury Act 1995 (Qld); Juries Act 1957 (WA). 240. Code (Qld) ss 603, 604, 613, 617A, 619, 620, 624, 625, 630, 631, 631A; Criminal Procedure Act 2004 (WA) ss 101–116. 241. Jury Act 1995 (Qld) ss 9–11, 13–18, 27; Juries Act 1957 (WA) ss 13–16. See Jury Act 1995 (Qld) s 4; Juries Act 1957 (WA) ss 4, 5; Sch 2 for qualifications of a juror. 242. Jury Act 1995 (Qld) ss 19–23; Juries Act 1957 (WA) ss 27, 32; Sch 3. 243. Jury Act 1995 (Qld) ss 33, 34; Juries Act 1957 (WA) s 18. 244. Jury Act 1995 (Qld) s 41; Juries Act 1957 (WA) ss 36, 36A; see Papas (2002) 27 WAR 67. 245. Jury Act 1995 (Qld) ss 41, 44; Criminal Procedure Act 2004 (WA) ss 102, 105. 246. Jury Act 1995 (Qld) ss 39, 42–44; Criminal Procedure Act 2004 (WA) ss 103, 104(2). 247. Jury Act 1995 (Qld) s 42; Criminal Procedure Act 2004 (WA) s 104(3), (4). In Queensland, this number is increased if reserve jurors are empanelled.

248. Jury Act 1995 (Qld) ss 43, 47; Criminal Procedure Act 2004 (WA) s 104(5); D’Arcy (2003) 140 A Crim R 303. 249. Jury Act 1995 (Qld) s 43; Criminal Procedure Act 2004 (WA) s 104(5); Chapman [1952] QWN 16; Murphy (1989) 167 CLR 94 at 123–4; 86 ALR 35; Bush (1993) 69 A Crim R 416 at 420–3; I (2006) 165 A Crim R 420. In Western Australia, a party in a criminal trial may also pray a tales: see Juries Act 1957 (WA) s 52. 250. Jury Act 1995 (Qld) s 40; A Judge of District Courts and Shelley; Ex parte Attorney-General [1991] 1 Qd R 170; Walker [1989] 2 Qd R 79. This procedure is no longer available in Western Australia: see Criminal Procedure Act 2004 (WA) s 104(1). 251. Jury Act 1995 (Qld) ss 50, 51; Criminal Procedure Act 2004 (WA) s 106. 252. Jury Act 1995 (Qld) s 59. 253. Criminal Procedure Act 2004 (WA) s 114; Wu (1999) 199 CLR 99; 166 ALR 200; Brownlee (2001) 207 CLR 278; 180 ALR 301; Buttsworth (2004) 29 WAR 1; Roberts (2005) 29 WAR 445 at 463. 254. Criminal Procedure Act 2004 (WA) s 114(5). 255. See Cheatle (1993) 177 CLR 541; 116 ALR 1; Birch (1994) 12 WAR 292. 256. Jury Act 1995 (Qld) ss 56, 57; Criminal Procedure Act 2004 (WA) s 115; Roberts [2005] 1 Qd R 408 at 413–17; Hutchings [2007] 1 Qd R 25. 257. Jury Act 1995 (Qld) s 60; Criminal Procedure Act 2004 (WA) s 116. 258. See Black (1993) 179 CLR 44 at 51–2; 118 ALR 209; Challinger [1989] 2 Qd R 352; [1990] 1 Qd R 370; Yuill (1994) 34 NSWLR 179; 15 ACSR 95; Tangye (1997) 92 A Crim R 545; Roberts (2002) 25 WAR 501; Buttsworth (2004) 29 WAR 1. 259. Code (Qld) s 619(1); Criminal Procedure Act 2004 (WA) s 143(1). 260. Prasad (1979) 23 SASR 161; Williams [1982] WAR 277, where it was held that such a submission and rulings on it should be made in the absence of the jury; Sutton (1986) 2 Qd R 72; May v O’Sullivan (1955) 92 CLR 654; [1955] ALR 671; Murphy (1985) 158 CLR 596; 61 ALR 139; King v Armstrong; Ex parte King (1985) 20 A Crim R 197; Briggs (1987) 24 A Crim R 98; Prashar [1989] 1 WAR 190; Evgeniou [1965] ALR 209 at 212, 221; (1964) 37 ALJR 508; Doney (1990) 171 CLR 207 at 214–15; 96 ALR 539; Muscat v Douglas (2006) 32 WAR 49 at 53, 76–77; see 5.40. 261. Code (Qld) s 646; Criminal Procedure Act 2004 (WA) s 116; Hyman v French (1990) 46 A Crim R 217. 262. Criminal Procedure Act 2004 (WA) s 108. 263. Code (Qld) s 618; Criminal Procedure Act 2004 (WA) s 144(3). 264. See Soma (2003) 212 CLR 299 at 309–12; 196 ALR 421; O’Driscoll (2003) 141 A Crim R 368 at 384. 265. See Joan Smith [1968] 2 All ER 115; Criminal Procedure Act 2004 (WA) s 144(4). 266. Code (Qld) s 619; Criminal Procedure Act 2004 (WA) s 143(3). 267. Evidence Act 1977 (Qld) s 131; Evidence Act 1906 (WA) s 97(2). 268. See Foster (1982) 6 A Crim R 411; Coward (1985) 16 A Crim R 257; Rowley (1986) 23 A Crim R 371; Harris (1997) 94 A Crim R 454; Semyraha (2000) 118 A Crim R 1. 269. Code (Qld) s 563; Criminal Procedure Act 2004 (WA) s 87. See also Beckett v New South

Wales (2013) 248 CLR 432; 297 ALR 206. 270. See Davis v Gell (1924) 35 CLR 275; (1925) 31 ALR 49. 271. See Saunders [1983] Qd R 270; Jell; Ex parte Attorney-General [1991] 1 Qd R 48; Ferguson; Ex parte Attorney-General [1991] 1 Qd R 35; Lam (1998) 100 A Crim R 188. 272. Code (Qld) s 619. 273. Criminal Procedure Act 2004 (WA) s 145. 274. Code (Qld) s 620; Criminal Procedure Act 2004 (WA) s 112; Lacaze (1981) 3 A Crim R 233 at 238; Lock [2002] 1 Qd R 512; Fullgrabe (2002) 133 A Crim R 453. 275. See K; Ex parte Attorney-General (Qld) (2002) A Crim R 108. 276. Code (Qld) s 646; Criminal Procedure Act 2004 (WA) s 149. 277. Code (Qld) s 648; Criminal Procedure Act 2004 (WA) s 148.

[page 95]

Chapter Six The Onus of Proof

Introduction 6.1 While it may be correct to say that the laws creating specific offences are designed for the purpose of punishing the guilty, the procedural rules that pertain to the conduct of a criminal trial are often concerned with the protection of the innocent. The rules relating to the onus, or burden, of proof and those relating to the standard of proof assist in the performance of this latter function.1 This chapter is concerned with the procedural rules that govern who bears the onus of proving what, and to what degree. 6.2 To a large extent, the Codes are silent on such issues. This chapter will examine the concept of proof at common law, and under the Codes, focusing on the key terms of persuasive onus, evidential onus and standard of proof. Reference will then be made to reverse onus provisions, jurisdiction and sentencing and, finally, to legal and factual presumptions.

Proof at common law The guilt of the accused 6.3 To determine whether a particular offence has been committed, one approach would be to require the prosecution to prove the guilt of the accused. An alternative would be for the accused to prove that he

or she is not guilty. At common law, it is the former approach that has been adopted and thus it is the task of the prosecution in a criminal trial to prove that the accused is guilty of the offence charged. Another way of stating that proposition is that the prosecution has the persuasive onus of proof or, as it is sometimes called, the legal onus of proof;2 that is, the onus of persuading the arbiter of fact (the jury in a criminal trial; the magistrate in summary proceedings) that the offence has [page 96] been committed. As Viscount Sankey explained in Woolmington [1935] AC 462 at 481–2: 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, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. 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.

6.4 Six years later, in Mancini [1942] AC 1, the House of Lords reaffirmed the principle in the broadest terms. Viscount Simon said at 11: Woolmington’s case is concerned with explaining and reinforcing the rule that the prosecution must prove the charge it makes beyond reasonable doubt, and consequently, that if, on the material before the jury, there is a reasonable doubt, the prisoner should have the benefit of it. The rule is of general application in all charges under the criminal law.

Accordingly, in all criminal matters at common law, the prosecution carries the onus of proving the guilt of the accused.

Insanity and statutory exceptions

6.5 The passage from Woolmington cited above admits of exceptions to this general principle. It was well established at the time when that case was decided that, if the accused wished to rely on the defence of insanity, he or she had the burden of proving that state of mind. The House of Lords accepted this view in Woolmington and also recognised the right of parliament to create specific exceptions to the general rule by legislation. Apart from insanity, and such express statutory reversals, the onus of proof at common law is with the prosecution.

Matters of excuse 6.6 The principle in Woolmington [1935] AC 462 applies at common law not only to what might be called the positive elements of the offence but also to certain matters of excuse or justification, such as accident, self-defence or provocation, that the accused may wish to rely upon. The onus of proof remains with the prosecution in such matters and, therefore, the prosecution must negative such excuses; it is not for the accused to prove them. Woolmington had shot and killed his wife and was charged with wilful murder. At his trial, he sought to explain the incident by claiming that the shooting was accidental.3 The House of Lords, in Woolmington, held that the prosecution carries the onus, not only of proving the elements of wilful murder, but also of negativing accident. [page 97] 6.7 Similarly, but in relation to self-defence, the Judicial Committee of the Privy Council said, in Chan Kau [1955] AC 206 at 211: … in cases where the evidence discloses a possible defence of self-defence the onus remains throughout upon the prosecution to establish that the accused is guilty of the crime of murder and the onus is never upon the accused to establish this defence any more than it is for him to establish provocation or any other defence apart from that of insanity.

Standard of proof

6.8 The passage from Woolmington at 6.3 also makes reference to the standard of proof required of the prosecution at common law when discharging the persuasive onus of proof. It is not necessary for the prosecution to prove conclusively the accused’s guilt. Nevertheless, the standard of proof is a very high one, for the arbiter of fact must be satisfied beyond a reasonable doubt of the guilt of the accused. This is usually referred to as the criminal standard of proof. If a reasonable doubt remains after a consideration of all of the evidence, the accused is entitled to be acquitted. In those situations where the persuasive onus of proof rests with the accused (insanity and statutory exceptions), the standard of proof is less onerous. The accused need only establish the matter on the balance of probabilities — the standard of proof applicable in civil proceedings.4 In Carr-Briant [1943] KB 607 at 612, the English Court of Criminal Appeal said: In our judgment, in any case where, either by statute or at common law, some matter is presumed against an accused person ‘unless the contrary is proved’, the jury should be directed that it is for them to decide whether the contrary is proved, that the burden of proof required is less than that required at the hands of the prosecution in proving the case beyond a reasonable doubt, and that the burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called upon to establish.

6.9 Of course, if parliament so decides, it can place a more onerous burden of proof on the accused. One such example was noted in Demicoli [1971] Qd R 358 at 377 under the Dairy Produce Act 1920 (Qld) s 34 (now repealed), which provided that, in any proceedings for an alleged offence against that Act, the averment of the prosecution contained in the information: … shall be evidence of the matter averred, and shall, in the absence of the evidence in rebuttal thereof beyond reasonable doubt, be conclusive evidence of the facts so averred.

Such provisions will be rare and will be strictly construed before they are held to operate in such a manner as to decide the accused’s guilt until he or she proves otherwise to the criminal standard of proof.

Evidential onus 6.10 In addition to these common law principles relating to the persuasive onus of proof, reference must be made to another and related concept, that is, [page 98] the evidential onus or evidential burden. This is not concerned with the proof of anything but, rather, with the obligation or duty of a party to call or point to evidence of a particular matter, so that the matter will be seen to have been properly raised. Only then will a trial judge allow the matter to go to the jury for it to consider. The terminology has at times caused difficulty but has been accepted by the courts.5 In the judgment of the Court of Criminal Appeal of Tasmania in Martin [1963] Tas SR 103, Burbury CJ said at 123: The phrase ‘burden of proof’ has been much discussed and the distinction is firmly established between the ‘legal burden’ or ‘persuasive burden’ on the one hand, and the ‘evidential burden’ on the other.6

6.11 To understand the significance of the term ‘evidential onus’ or ‘evidential burden’, it must be appreciated that the law recognises that different juries, acting quite reasonably, may come to different conclusions upon the same body of evidence, because different people may reasonably draw different inferences from the same evidence. If the law were otherwise, the jury system would be purposeless as, in every case, the judge would simply direct the jury, as a matter of law, what its verdict must be. Nevertheless, some control is maintained over juries and, if the verdict of a jury lies outside the limits that the law allows, it is deemed to be unreasonable. The prosecution case will not be put to the jury if the trial judge determines, as a matter of law, that no reasonable jury, properly directed as to the law to be applied in the case, could be satisfied of the guilt of the accused beyond a reasonable doubt. The prosecution must establish a prima facie case or, to put it another way, the

prosecution must discharge the evidential onus cast upon it. If the prosecution discharges this evidential onus, the case is put to the jury and the jury must then decide whether the persuasive onus of proof has been discharged; that is, whether it is, in fact, satisfied beyond reasonable doubt of the guilt of the accused.

Evidential onus when persuasive onus rests with the accused 6.12 As noted above, there are occasions at common law when the persuasive onus of proof with respect to a particular matter rests with the accused; for example, in the case of insanity or of statutory exceptions to the general principle. In these situations, the accused also carries an evidential onus. For example, where insanity is relied upon by the accused, the matter of insanity will not be permitted by the trial judge to go to the jury if the judge determines, as a matter of law, that the evidence is such that no reasonable jury could be satisfied, on the balance of probabilities, that that particular defence has been made out. If the accused is able to point to such evidence, he or she will have discharged the evidential onus and the defence of insanity will be allowed to go to the jury. The task of the jury will then be to decide whether the persuasive onus of proof has been discharged with respect to that matter; that is, whether it is, in fact, satisfied on the balance of probabilities that the particular defence has been made out. [page 99] For most matters of excuse, there is no reversal of the onus of proof and, therefore, the persuasive onus of proof remains with the prosecution in accordance with the general principle referred to in Woolmington: see 6.3–6.4. Accordingly, the prosecution must negative the existence of such matters as accident, self-defence or provocation, should any of these be relied upon by the accused. Although the

persuasive onus of proof with respect to each such matter lies with the prosecution and not the accused, the evidential onus rests with the accused. This means that the accused has a duty or obligation to raise the excuse properly; that is, to call or point to evidence of the particular excuse that he or she wants the jury to consider. The trial judge will not direct the jury upon any such matter of excuse unless there is evidence upon which a reasonable jury could act. Thus, in a murder trial, although the prosecution must negative beyond reasonable doubt excuses such as, say, accident or selfdefence, the trial judge will not direct the jury on accident or selfdefence unless there is evidence that would enable a reasonable jury to have at least a reasonable doubt as to whether the accused acted by accident or in self-defence. If this were not so, the prosecution would be forced to negative, in every case, all matters of excuse and justification, whether they were raised by the evidence or not. Lord Goddard CJ discussed this type of situation in Lobell [1957] 1 QB 547 at 551:7 It must, however, be understood that maintaining the rule that the onus always remains on the prosecution does not mean that the Crown must give evidence-in-chief to rebut a suggestion of self-defence before that issue is raised, or indeed need give any evidence on the subject at all. If an issue relating to self-defence is to be left to the jury there must be some evidence from which a jury would be entitled to find that issue in favour of the accused, and ordinarily no doubt such evidence would be given by the defence. But there is a difference between leading evidence which would enable a jury to find an issue in favour of a defendant and in putting the onus upon him.

6.13 However, the courts have noted that in determining whether an evidential onus has been discharged, the evidence should be interpreted in a way that is most favourable to the accused.8

Discharging the evidential onus 6.14 Referring to the excuse of duress,9 the Court of Criminal Appeal in England stated in Gill [1963] 2 All ER 688; [1963] 1 WLR 841 at 846:10 The Crown is not called upon to anticipate such a defence and destroy it in advance. The defendant, either by the cross-examination of the prosecution witnesses or by evidence called on his behalf, or by a combination of the two, must place before the

court such material as makes duress a live issue fit and proper to be left to the jury. But, once he has succeeded in doing this, it is then for the Crown to destroy that defence in such a manner as to leave in the jury’s minds no reasonable doubt that the accused cannot be absolved on the grounds of the alleged compulsion.

[page 100] That statement notes two ways in which the accused may satisfy the evidential onus; that is, by referring to evidence given in crossexamination of the prosecution witnesses or to evidence called on the accused’s behalf. A third way is to refer to evidence-in-chief of the prosecution witnesses and this is because a determination of whether the accused has discharged the evidential onus is made upon an examination of all the evidence, including that adduced by the prosecution. 6.15 The prosecution, however, is not in quite the same position. This is because the procedure whereby the accused may submit that there is no case to answer at the close of the prosecution’s case is made before any evidence is called on behalf of the accused: see 6.40. This requires the trial judge to determine whether a prima facie case exists against the accused. There will be no case to answer unless the prosecution has discharged its evidential onus in relation to the elements of the offence charged. However, if the trial judge rules that there is a case to go to the jury, the prosecution may rely on all of the evidence, including that adduced by or on behalf of the accused, either in-chief or under cross-examination, to show that the matter has been properly raised and the evidential onus satisfied. When determining whether an accused has satisfied an evidential onus, the trial judge may apply a more lenient standard than would be the case for the prosecution. As long as there is some evidence of the matter, the trial judge will usually find that the matter has been fairly raised by the accused and allow it to be considered by the jury. In relation to provocation, for example, see Buttegeig (1993) 69 A Crim R 21 at 27. 6.16 The common law position for the evidential onus may be summarised as follows. Where the prosecution has the persuasive

onus of proof, for example, with respect to the positive elements of an offence, it must also discharge an evidential onus with respect to these elements. Similarly, where the accused has the persuasive onus of proof, for example, with insanity and statutory exceptions, the accused must also satisfy an evidential onus with respect to those matters. Where, however, the accused wishes to rely on matters of excuse apart from insanity or some statutory exception, the persuasive onus of proof rests with the prosecution but the accused carries an evidential onus. In all cases, whether the evidential onus is discharged is a question of law for the judge. The consequence of failing to discharge the evidential onus in respect of a particular matter is that the judge will not allow that matter to go to the jury for it to consider.

Summary proceedings 6.17 The principles outlined above in the context of a trial before a judge and jury apply with suitable modifications to summary proceedings. The magistrate, or a judge sitting alone, will decide, as a matter of law, which issues have been fairly raised, that is, for which the evidential onus has been discharged. Only then can these issues be properly considered and determined by him or her, sitting as a tribunal of fact.11 [page 101]

Proof under the Codes Elements of the offence 6.18 In Queensland and Western Australia, the Codes, in the main, are silent on issues relating to the onus of proof, the evidential onus and the standard of proof. However, in both Queensland and Western Australia, the common law rules, as outlined above, have been adopted by the courts. Those common law principles have been given statutory recognition in the Commonwealth Criminal Code.12

Accordingly, as at common law, in so far as the positive elements of an offence are concerned, the persuasive onus of proof and the evidential onus rest with the prosecution. In that regard, Dixon J stated in Mullen (1938) 59 CLR 124 at 136; [1938] ALR 129:13 … in cases of homicide the common law rule is that a verdict of murder ought not to be returned if the jury are left in reasonable doubt whether the act by which the prisoner caused the deceased’s death was unaccompanied by the requisite intention or was done under the influence of such provocation as would deprive a reasonable man of his self-control and make the offence manslaughter. The Criminal Code of Queensland does not, in my opinion, contain any sufficient expression of intention to exclude the application of the rule thus established. It is true that in its text there may be traced a belief on the part of the framers that the rule of law was otherwise, a belief which was very generally held. But the Code does not appear to me either to formulate or necessarily to imply a principle that upon an indictment of murder the prisoner must satisfy the jury either on the issue of accident or of provocation.

Thus, for the positive elements of an offence, the persuasive onus of proof and the evidential onus rest with the prosecution in the same way as they do at common law.14

Defences 6.19 The Codes contain a wide range of provisions that may be relied upon by an accused to minimise or alleviate criminal responsibility. With some of these provisions, a form of words is used that equates them with the statutory exceptions at common law, noted above at 6.5, thereby having the effect of reversing the onus of proof and casting it on the accused. This result is achieved where a provision declares the proof of a particular matter to be a defence.15 The same result obtains when a provision refers to acts done without lawful justification or excuse, the proof of which lies on the accused.16 It will also apply where some state of affairs is presumed to be the case such as with the defence of insanity whereby the accused is presumed, under the Code (Qld) and (WA) s 26, to be of sound mind until the [page 102]

contrary is proved.17 Accordingly, with all of these defences, the accused carries the persuasive onus of proof and will be required to discharge that onus on the balance of probabilities. In addition, as at common law, the accused will carry the evidential onus in relation to these matters.

Matters of excuse 6.20 Despite the references in the previous paragraph, it should be noted that most of the statutory provisions in Queensland and Western Australia that are available to an accused to minimise or alleviate criminal responsibility do not involve any reversal of the onus of proof. Such a reversal will only arise where the legislation contains some specific form of words such as those outlined above: see 6.9. Where that does not occur, the persuasive onus of proof will be carried by the prosecution, which will be required to negative the excuse beyond reasonable doubt. However, as at common law, the evidential onus in relation to these matters will rest with the accused. Such matters of excuse include: independence of will;18 accident;19 mistake of fact;20 extraordinary emergency;21 provocation;22 and self-defence.23

Terminology: ‘defences’ and ‘excuses’ 6.21 It is preferable not to refer to these kinds of provisions as ‘defences’ but, rather, as exculpatory provisions or ‘excuses’. They are said to be privative of criminal responsibility with the term ‘defence’ being reserved for those matters where the persuasive onus of proof rests with the accused. In Loveday v Ayre [1955] St R Qd 264, Philp J remarked at 267:24

Whatever may be the position at common law, a mistake is not a defence in Queensland — it is not a matter which the defendant must prove on the balance of probabilities. Section 24 provides that a person is ‘not criminally responsible’ if he acts under an honest and reasonable mistake of fact; the onus then is on the prosecutor to satisfy the court beyond reasonable doubt of the non-existence of operative mistake. Of course, the section does not operate unless there be some evidence, looking at the case as a whole of operative mistake.

[page 103]

Statutes other than the Codes 6.22 With statutes other than the Codes, the question of who bears the persuasive onus of proof is answered by ascertaining the intention of parliament in respect of that issue. No difficulty will arise where there is an express reversal as in the Code provisions noted above.25 An example is s 49 of the Prostitution Act 2000 (WA), which states that: If in proceedings for an offence under this Act, it is relevant, whether or not a person was a child, it is to be conclusively presumed that the accused knew that the person was a child unless it is proved that having taken all reasonable steps to find out the age of the person concerned, the accused believed on reasonable grounds at the time the offence is alleged to have been committed, that the age of the person concerned was at least 18 years.

The Western Australian Court of Appeal held in Hutchinson (2003) 144 A Crim R 28 that this provision displaces the common law presumption of innocence which is at the heart of the Woolmington decision, and places the burden of proof on the accused to establish, on the balance of probabilities, the excuse in this provision. The High Court has recently held that where a statute reversed the onus of proof in relation to an excuse, the trial judge was in error in not leaving the excuse to the jury. 6.23 However, the onus of proof may also be reversed where there is no express statement to this effect, but where the intention of parliament to do so is necessarily implied in the statute. The matter was referred to by the High Court in DPP v United Telecasters Sydney Ltd (1990) 168 CLR 594 at 601; 91 ALR 1:26

Such cases will ordinarily occur where an offence created by statute is subjected to a proviso or exception which, by reason of the manner in which it is expressed or its subject matter, discloses a legislative intention to impose upon the accused the ultimate burden of bringing himself within it. That burden may, of course, be discharged upon the balance of probabilities. Whilst it is convenient to speak in terms of provisos or exceptions, the legislative intent cannot be ascertained as a mere matter of form.

The situation arose in Gough v Braden [1993] 1 Qd R 100 in respect of the Drugs Misuse Act 1986 (Qld) s 10A, which referred to a person having in his or her possession any property reasonably suspected of being the proceeds of an offence under that Act. An offence is committed if the person does not give an account satisfactory to the court of how he or she lawfully came by or had such property in his or her possession. The Queensland Court of Appeal held that the accused bore [page 104] the onus of proof, to be discharged to the civil standard, of providing a satisfactory account showing how he or she came by the property lawfully.27 6.24 The High Court has considered the situation where a statutory excuse reverses the onus of proof so that the accused has the burden of proving that excuse. In Braysich (2011) 243 CLR 434; 276 ALR 451, the accused argued that there was circumstantial evidence of an excuse under s 998 of the Corporations Act 2001 (Cth) in circumstances where he had not directly invoked the excuse. The Western Australian Supreme Court upheld that decision. The accused’s appeal to the High Court was successful; it was held that the trial judge should have left the excuse to the jury, finding that the evidence in such a case needed to be ‘taken at its highest in favour of the accused’. The court stated at CLR 454–5: The appellant was not required to produce evidence of his subjective purpose or purposes in order to meet the legal burden of establishing the statutory defence. The legal burden on him was to prove on the balance of probabilities that he lacked the proscribed purpose. One way of doing that was to adduce or point to evidence inconsistent with the proposition that he had that purpose. He did not have to point to

evidence of his actual purpose in order to invoke the defence. Any evidence that could support an inference that the appellant did not have the proscribed purpose was relevant to the statutory defence. The question whether he had discharged the ‘evidential burden’ was to be answered accordingly.

Standard of proof 6.25 The standard of proof required in discharging the persuasive onus of proof under the Codes is identical to that at common law.28 When the prosecution carries the persuasive onus it must establish the case in accordance with the criminal standard of proof, that is, beyond a reasonable doubt. The civil standard of proof, the balance of probabilities, prevails when the persuasive onus rests with the accused. In the latter case, however, it must be recognised that the parliament, in placing the persuasive onus of proof on the accused, may, in express terms, declare that for a particular matter, the normal criminal standard of proof is to prevail. Such provisions would be rare: see 6.9.

Beyond reasonable doubt 6.26 When a jury must be satisfied of an issue beyond reasonable doubt, attempts have been made from time to time by trial judges to explain the meaning of this term to the jury, or to adopt alternative phrases when directing the jury on what is required of them in reaching a verdict. It has now become the settled rule in Australia that the formula — beyond a reasonable doubt — should be used [page 105] without further explanation. In Dawson (1961) 106 CLR 1 at 18; [1962] ALR 365, Dixon CJ has put the matter thus:29 … in my 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.

This approach has been recently affirmed in CBK [2014] QCA 35, in which the court held that the use of alternative phrases (such as an analogy with a ‘leg before wicket’ decision in cricket) is unhelpful and can be confusing.

Circumstantial evidence 6.27 Where all of the evidence against the accused is circumstantial, the jury may be directed that it should not convict if, on a rational view of the evidence, there is an hypothesis consistent with innocence.30

Proof of jurisdiction Onus of proof with the Crown/state31 6.28 Reference has been made earlier to the territorial limits that apply to the exercise of jurisdiction by courts: see 2.17–2.26. In Thompson (1989) 169 CLR 1; 86 ALR 1, the High Court held that the prosecution carries the burden of proving jurisdiction, but that it need only do so on the balance of probabilities. In that case, the accused had been convicted in the Supreme Court of the Australian Capital Territory of the murder of two persons whose bodies were found in a burnt-out car. The car was on the side of a road in the Australian Capital Territory, some 40 metres from the New South Wales border but some 10 kilometres from the nearest point where the border could be crossed by road. The trial judge directed the jury that it could not convict the accused unless satisfied beyond reasonable doubt that the deaths occurred in the Australian Capital Territory. Because there was a conviction, the jury must have been so satisfied. However, a majority of the High Court was of the opinion that the civil standard of proof should apply to such matters. Mason CJ and Dawson J, with whom Gaudron J concurred, expressed the opinion that the fundamental principle that the guilt of an accused must be established beyond reasonable doubt was not offended by reliance upon the civil standard of proof for establishing the facts essential to the existence of

[page 106] jurisdiction in a court. Referring to the criminal standard of proof, their Honours said at 13:32 To apply that standard to the proof of facts establishing the jurisdiction of the trial court would extend the protection of an accused person to the point of entitling him to an acquittal on the ground that the prosecution could not prove beyond reasonable doubt that the offence was committed in one State or Territory rather than another, even though, if jurisdiction were assumed, the circumstances would be such as to show beyond reasonable doubt that the accused committed the offence charged. To extend the protection in this way would travel beyond the interests which the law seeks to safeguard in imposing the criminal standard of proof and at the same time adversely affect the public interest in the administration of justice by allowing a wrongdoer to escape conviction, notwithstanding that the balance of probabilities suggests that the wrongdoer is subject to the jurisdiction from which he seeks to escape. A wrongdoer clearly subject to the laws of one of two jurisdictions would escape the laws of both, even where such laws were identical, simply because the prosecution could not prove the place of the commission of the offence beyond reasonable doubt. The prospect of this outcome would be lessened if the civil standard of proof were to be applied.

Special verdict 6.29 In Thompson (1989) 169 CLR 1; 86 ALR 1, the High Court also expressed the opinion that, where the issue of jurisdiction is raised, the jury should be asked for a special verdict on jurisdiction before any general verdict is taken so that, in the event that the court is found not to have jurisdiction, the jury can be discharged without the taking of a general verdict.33

Proof in sentencing 6.30 After a defendant has been convicted of an offence, it is the task of the court to determine the appropriate sentence to be imposed. This is done in accordance with the sentencing principles provided for in the Penalties and Sentences Act 1992 (Qld) and the Sentencing Act 1995 (WA). The court, whether constituted by a magistrate or a judge, is given very wide powers to exercise in order to inform itself properly of matters pertaining to the sentence in issue.34 Many of the factual matters that the court relies on will have been established by

the finding that the accused is guilty of the offence charged or by the entering of a guilty plea. Those matters will have been determined to the criminal standard, that is, beyond reasonable doubt. However, there may be additional material put before the court at the time of sentencing and, where the correctness of this material is disputed, the question arises as to the onus of proof and the standard of proof to be applied in resolving such contested matters. In Western Australia, where the matter is relied on by the prosecution, it carries the onus of proof which it must discharge beyond a reasonable doubt; where the matter is raised and relied on by the defence, it carries the onus of proof which it must discharge on the balance of [page 107] probabilities.35 In Queensland, whichever party raises the matter bears the burden of proof which is to be discharged on the balance of probabilities.36 Recent legislative amendments to the Queensland Penalties and Sentences Act have altered the extent to which intoxication can be taken into account in sentencing. Section 9A of the Act now provides that voluntary intoxication of an offender by alcohol or drugs is not a mitigating factor for a court to have regard to in sentencing the offender. Section 108B of the Act states that courts now must make community services orders for offenders who commit certain offences in a public place while the offender was adversely affected by an intoxicating substance (prescribed offences are affray, grevious bodily harm, wounding, common assault, assault occasioning bodily harm, serious assault and assaulting/obstructing police). The community service order is in addition to any other order imposed by the court, so, for example, if an offender is sentenced to a term of imprisonment for committing grevious bodily harm, the offender then has to commence a community service order upon his or her release from custody.

Presumptions 6.31

It has been said that a presumption is:37

… the product of a rule according to which, on proof of one fact, the jury may or must find that some other fact (often called the ‘presumed fact’) exists. The ‘may’ or ‘must’ in the last sentence gives the clue to the classification of presumptions into presumptions of law and presumptions of fact.

Presumptions of law 6.32 Presumptions of law are of two kinds: irrebuttable and rebuttable. An irrebuttable presumption of law is really a substantive rule of law. No evidence to the contrary may be led and it must be determined that the presumed fact exists. An example of an irrebuttable presumption of law is that a person under the age of 10 years is not criminally responsible for any act or omission.38 Rebuttable presumptions of law are not common in criminal law, but an example is to be found in the Code (Qld) s 29(2) and (WA) s 29 second para. There, it is provided that a person under the age of 14 years is not criminally responsible unless it is proved that the person had capacity to know that he or she ought not do the act that constitutes the offence. In that situation, the prosecution bears the onus of proving that the child had the requisite capacity beyond reasonable doubt.39 [page 108]

Presumptions of fact 6.33 Presumptions of fact are inferences that may be drawn, but that are not necessarily to be drawn, from a proved set of facts. Thus, if a person is found in possession of goods that have recently been stolen, the inference may be drawn that the person has either stolen the goods or has received them from the thief.40 A distinction has to be drawn between the above situation, where

the jury may draw a certain inference from proved facts, and a situation where a presumption of law requires a jury to draw an inference from a proved set of facts. In Woolmington [1935] AC 462 at 480, the House of Lords held that, if the evidence proved that the conscious act of the accused caused the death of the victim, the jury may infer the necessary intent to kill from that fact alone. If, however, there had been a presumption of law that a person intends the natural consequences of his or her acts, the jury would have been required to infer the necessary intent to kill. The onus would then have shifted to the accused to prove no such intent existed. There was, of course, no such presumption: see 6.32.

Relevance to onus of proof and evidential onus 6.34 Presumptions of fact are related primarily to the evidential onus rather than to the persuasive onus of proof. They assist a trial judge to determine whether, as a matter of law, sufficient facts have been fairly raised to allow an issue to go to the jury. Presumptions of law, on the other hand, are related primarily to the persuasive onus of proof. A trial judge must direct a jury upon any relevant presumption of law. However, it may be dangerous for a trial judge to give a positive direction to a jury on any presumption of fact, as members of the jury may conclude that they are required, as a matter of law, to draw the relevant inference. As a matter of common sense, the jury members will probably draw the inference, but they are not required to do so.

Presumption that consequences of actions are intended 6.35 A failure to distinguish between the function of presumptions of law and presumptions of fact has led to judicial differences of opinion in an important aspect of criminal law. This has been with respect to the presumption that a person intends the natural consequences of his or her acts. In DPP v Smith [1961] AC 290, a muchcriticised decision of the House of Lords, this presumption was considered to be one of law, resulting in a shifting of onus onto the

accused to prove lack of intent to kill on a charge of murder. This was rejected by the High Court of Australia in Parker (1963) 111 CLR 610; [1963] ALR 524, where Dixon CJ said at CLR 632: In Stapleton v R (1952) 86 CLR 358 at 365, we said: ‘The introduction of the maxim or statement that a man is presumed to intend the reasonable consequences of his act is seldom helpful and always dangerous.’ That was some years before the decision in Director of Public Prosecutions v Smith [1960] 3 All ER 161; [1961] AC 290, which seems only too unfortunately to confirm the observation. I say too unfortunately for I think it forces a critical situation in our (Dominion) relation to the judicial authority as precedents of decisions in England. Hitherto I have thought that we ought to

[page 109] follow decisions of the House of Lords, at the expense of our own opinions and cases decided here, but having carefully studied Smith’s case I think that we cannot adhere to that view or policy. There are propositions laid down in the judgement which I believe to be misconceived and wrong. They are fundamental and they are propositions which I could never bring myself to accept. I shall not discuss the case. There has been enough discussion and, perhaps I may add, explanation, to make it unnecessary to go over the ground once more. I do not think that this present case really involves any of the so-called presumptions but I do think that the summing-up drew the topic into the matter even if somewhat unnecessarily and therefore if I left it on one side some misunderstanding might arise. I wish there to be no misunderstanding on the subject. I shall not depart from the law on the matter as we had long since laid it down in this court and I think Smith’s case should not be used as authority in Australia at all.

In view of that statement, and because of the Criminal Code Acts, rebuttable and irrebuttable presumptions of law in criminal law must be found in the statute passed by the relevant parliament.41 _________________________________ 1.

See Thompson (1989) 169 CLR 1 at 12; 86 ALR 1.

2. 3.

See Criminal Code 1995 (Cth) s 13.1; 1.19, 1.20, 8.12. For provisions on accident, see Code (Qld) and (WA) s 23; (Cth) s 10.1; see 8.62.

4. 5.

See Sodeman (1936) 55 CLR 192 at 233. See Jayasena [1970] AC 618 at 624; Menitti [1985] 1 Qd R 520 at 529–30.

6. 7.

See also Jeffrey (1992) 58 A Crim R 310; Criminal Code (Cth) s 13.3; 1.19, 1.20, 8.12. See also Pappajohn (1980) 4 WWR 387 at 419–20; Sophonow (1984) 11 DLR (4th) 24; Bullard [1957] AC 635.

8.

Braysich (2011) 243 CLR 434; 276 ALR 451.

9. Code (Qld) s 31(1)(d) and (WA) s 31(4). See also Code (Cth) s 10.2. 10. See also Howe (1980) 32 ALR 478 at 482; 55 ALJR 5; Pepler (1984) 13 A Crim R 476; Tavete [1988] 1 NZLR 428. 11. See Skerritt (2001) 119 A Crim R 510 at 516. 12. See Code (Cth) ss 13.1–13.5; 1.19, 1.20, 8.12. 13. See also May v O’Sullivan (1955) 92 CLR 654; [1955] ALR 671. 14. See also Murray (2002) 211 CLR 193 at 207; 189 ALR 40. 15. For example, see Code (Qld) ss 12(3A), 17, 215(5), 216(4), 222(4), 451(3); Regulatory Offences Act 1985 (Qld) ss 5(2), 6(2); Code (WA) ss 17, 186(2), 204(3), 204A(4). 16. For example, see Code (Qld) ss 207, 230, 236; (WA) ss 177, 214. 17. For presumed knowledge of blood relationship for sexual offences, see Code (Qld) s 636(2)(b); (WA) s 329(11). For reversal of onus of proof in drug offences, see Drugs Misuse Act 1986 (Qld) s 129(1)(c); Misuse of Drugs Act 1981 (WA) s 31(6). 18. Code (Qld) s 23(1)(a); (WA) s 23. 19. Code (Qld) s 23(1)(b); (WA) s 23. 20. Code (Qld) s 24(1); (WA) s 24. 21. Code (Qld) and (WA) s 25. 22. Code (Qld) ss 269(1), 304; (WA) ss 246, 281. 23. Code (Qld) ss 271, 272; (WA) ss 248, 249. 24. See also Perkins [1983] WAR 184; Geraldton Fisherman’s Co-op Ltd v Munro [1963] WAR 129. For the Tasmanian Code, see Martin [1963] Tas SR 103. 25. See 6.20; and, for example, Drugs Misuse Act 1986 (Qld) ss 10A, 124(1), 129(1)(c); Misuse of Drugs Act 1981 (WA) ss 11, 31(6). 26. See also Simpson (1995) 13 WAR 525. 27. Justices Act 1886 (Qld) s 76; Criminal Procedure Act 2004 (WA) s 78; Choveaux v Hunt [1962] Qd R 145 at 154–6; Madsen v Western Interstate Pty Ltd [1963] Qd R 434, where proof of immunity under the Constitution (Cth) s 92 was on the balance of probabilities; Coleman v Heywood; Ex parte Coleman [1978] Qd R 411; Brown v Julius; Ex parte Julius [1959] Qd R 385; O’Leary v Matthews (1979) 28 ALR 97 at 105; 42 FLR 114; Will v Borcherdt (No 2) [1991] 2 Qd R 230 at 235; Roddan v Walker (1997) 94 A Crim R 170. 28. For the Commonwealth position, see Code 1995 (Cth) ss 13.2, 13.5; see 6.20. 29. See Thomas (1960) 102 CLR 584; [1960] ALR 233; Green (1971) 126 CLR 28; [1972] ALR 524; Pahuja (1987) 49 SASR 191; Turan (1990) 2 WAR 140; Summers [1990] 1 Qd R 92; Van Leeuwen (1981) 36 ALR 591 at 594; 55 ALJR 726; Neilan [1992] 1 VR 57; (1991) 52 A Crim R 303 at 314–17; Condo (1992) 62 A Crim R 11; Holman [1997] 1 Qd R 373; Clarke (2005) 159 A Crim R 281 at 288–90. 30. See Peacock (1911) 13 CLR 619 at 634; 17 ALR 566; La Fontaine (1976) 136 CLR 62 at 80, 81; 11 ALR 507; De Gruchy (2002) 211 CLR 85 at 95; 190 ALR 441; 76 ALJR 1078. 31. See 2.5. 32. See also Weissensteiner (1992) 62 A Crim R 96; Kron (1995) 78 A Crim R 474.

33. See Thompson at CLR 15; Code (Qld) s 624; Criminal Procedure Act 2004 (WA) s 127(2)(a). 34. Penalties and Sentences Act 1992 (Qld) s 15; Sentencing Act 1995 (WA) s 15. 35. See Anderson (1993) 177 CLR 520; 117 ALR 1; Langridge (1996) 17 WAR 346; Selita (2004) 149 A Crim R 243. 36. Evidence Act 1977 (Qld) s 132C. 37. R Cross and P A Jones, An Introduction to Criminal Law, 5th ed, Butterworths, London, 1964, p 50. 38. Code (Qld) s 29(1); (WA) s 29 first para. 39. See 8.137. For rebuttable presumption of sound mind, see Code (Qld) and (WA) s 26. For rebuttable presumption of knowledge of blood relationship for sexual offences, see Code (Qld) s 636(2)(b); (WA) s 329(11). See also Code (Qld) s 391(2A). 40. See Trainer (1906) 4 CLR 126 at 132; 13 ALR 53; Bruce (1987) 74 ALR 219; 61 ALJR 603; Illingworth (2000) 127 A Crim R 302. 41. Criminal Code Act 1899 (Qld) s 5; Criminal Code Act 1913 (WA) s 4. See also Criminal Code (Cth) ss 1.1, 1.2. For a recent example of a presumption of intention in a parliamentary Bill, see Criminal Code Amendment (Prevention of Lawful Activity) Bill 2015 (WA) s 68AA.

[page 111]

Chapter Seven Special Pleas

Introduction 7.1 An essential feature of a criminal law system is the need to ensure fairness to a person charged with a criminal offence. In this chapter, reference is made to those rules that assist in promoting fairness by preventing a person from being placed in jeopardy more than once or from being punished more than once for a single act or omission. At common law, autrefois acquit (formerly acquitted) is a special plea that may be relied upon by a person charged with an offence when he or she has already been tried and acquitted of the same offence. Autrefois convict (formerly convicted) is pleaded when the accused person has previously been tried and convicted for the same offence. These pleas in bar prevent a second prosecution and are manifestations of the principles res judicata proveritate accipitur (a thing adjudicated is received as the truth) and nemo debet bis vexeri (a person may not be twice vexed for the same cause).1 7.2 These principles are of the greatest importance in both civil and criminal matters in that, once a cause has been judicially determined in a final manner between the parties by a tribunal having jurisdiction to make the determination, neither of the parties may assert the contrary in subsequent proceedings between them. In their application to the criminal law, the principles are known as the rules against double jeopardy, an expression that is not always used with a single meaning and that can be employed in relation to the

prosecution, conviction and punishment stages of the criminal justice process.2 In Queensland and Western Australia, the principles relating to the prevention of double jeopardy are given effect both by statute and through the inherent jurisdiction of a court to prevent an abuse of process. The statutory provisions are the Code (Qld) ss 16, 17; Sentencing Act 1995 (WA) s 11; and the Code (WA) s 17. [page 112]

The Codes s 17 7.3

Section 17 of the Code (Qld) and (WA) reads:

It is a defence to a charge of any offence to show that the accused person has already been tried, and convicted or acquitted upon an indictment [or prosecution notice (WA)]3 on which he might have been convicted of the offence with which he is charged, or has already been acquitted [upon indictment (Qld)],4 or has already been convicted, of an offence of which he might be convicted upon the indictment or [complaint (Qld)] [prosecution notice (WA)] on which he is charged.

Protection from second prosecution for same offence 7.4 The section reflects the rule against double jeopardy and operates to protect a person from being prosecuted for the same offence on a second occasion, although exceptions to this have been introduced where ‘fresh and compelling evidence’ has emerged or there is a finding of a ‘tainted acquittal’5: see 7.15–7.16. In Western Australia, the rule applies regardless of whether the accused was convicted or acquitted on the first occasion on indictment or on prosecution notice. In Queensland, s 17 is more limited in its operation and does not afford protection following the dismissal of a complaint in summary proceedings: see 7.17. Importantly, also, s 17 of the Queensland Act has no application to the charge mentioned in s 678B (where a court may order a retrial in respect of murder where there has been fresh and compelling evidence) or s 678C (where a court may order a retrial for a 25-year offence where there has been a tainted acquittal).

Alternative offences 7.5 Section 17 applies not only to a second prosecution for the same offence, but also provides a defence to a charge of some new offence, different from that charged on a previous occasion, but where the accused could have been convicted of that new offence, as an alternative, on that previous occasion. In that way, the section operates in conjunction with those provisions of the Code that enable a person to be convicted, in the alternative, of an offence other than that named in the indictment or complaint (Queensland)/prosecution notice (Western Australia).

Queensland 7.6 In Queensland, the relevant provisions are found in the Code (Qld) ss 575–589. Reference must be made to them for the range of alternative verdicts available on a charge of a particular offence.6 Where the offence charged in the indictment is found not to have been committed by the accused, each of these provisions makes it possible for a person to be convicted of an alternative offence, nominated in the provision, where that alternative offence is established on the evidence. [page 113] 7.7 Thus, under the Code (Qld) s 576(1), the accused who is charged with murder may be found not guilty of murder but guilty of manslaughter if that latter offence is established on the evidence. Similarly, under the Code (Qld) s 583(1), a person charged with an offence may be found not guilty of committing that offence but guilty of an attempt to commit it, if the attempt is established on the evidence. A further common example is found in the Code (Qld) s 578(1), which relates to offences of a sexual nature. Thus, on a charge of rape under the Code (Qld) s 349, the accused may be found not guilty of that offence but guilty of indecent assault under the Code

(Qld) s 352 where that less serious offence is established on the evidence. Similarly, any of the several other lesser sexual offences set out in the Code (Qld) s 578(1) is an available verdict on the rape indictment. In each case, the alternative verdict is available even though the indictment did not refer to it in express terms. 7.8 Usually, the alternative conviction will arise where an essential element of the offence charged cannot be established beyond reasonable doubt. Thus, in the example of the sexual offence given above, an alternative verdict of indecent assault would be appropriate in the circumstances where there is evidence of non-consensual touching of the victim by the accused but where there is a reasonable doubt on the issue of sexual penetration for the crime of rape under the Code (Qld) s 349. Similarly, on a charge of murder, where there is no evidence of an intent to cause death or grievous bodily harm but where the evidence establishes that the accused caused the death of the victim, it is appropriate that the alternative verdict of manslaughter be returned instead of the verdict of murder.7

Western Australia 7.9 In Western Australia, the general position is that a person charged with an offence cannot be convicted, by the court dealing with the charge, of any other offence instead of that offence unless the person is charged with the other offence as an alternative to that offence.8 However, that is subject to the terms of Ch IIA of the Code (WA) (ss 10A–10I), which deals with alternative verdicts. For example, the provisions permit a person to be convicted of an alternative offence where an offence specifically lists any alternative offences that are available for that offence.9 Accordingly, the Code s 279(1), which defines the forms of murder, nominates as alternative offences s 280 (manslaughter), s 281 (unlawful assault causing death), s 283 (attempted murder), s 290 (killing an unborn child), s 291 (concealing birth of a child) and the Road Traffic Act 1974 s 59 (dangerous driving causing death). Where the offence charged is found not to have been committed by the accused, the person may be convicted of an

alternative offence, nominated in the provision, where that alternative offence is established on the evidence.10 On such conviction, the person is liable to the penalty applicable to the alternative offence.11 Provision is [page 114] also made in Ch IIA for other alternative offences.12 For example, a person charged with committing an offence may, in the alternative, be convicted of attempting to commit it, of inciting another person to commit it or of becoming an accessory after the fact to it.13 Also, a person charged with attempting to commit an offence may, in the alternative, be convicted of committing it but is liable only to the penalty applicable to the attempt.14

Jeopardy of multiple conviction: s 17 defence 7.10 From the foregoing it is evident that, in a criminal proceeding, there is the prospect of the accused being convicted of an offence other than the offence charged where that other offence is, as a matter of law, available as an alternative. In other words, on such a charge, the accused is in jeopardy of being convicted not only of the offence specifically nominated in the indictment, but of any of the other offences that are available as alternatives. It is in this context that the defence in s 17 operates.

Example: murder and manslaughter 7.11 To illustrate the operation of the Code (Qld) and (WA) s 17, consider the example of murder and the alternative verdict of manslaughter. Where, on the first trial, the accused is charged with murder, and either acquitted or convicted, s 17 provides a complete defence to a subsequent charge of murder arising out of the same facts. The section also provides a complete defence if the accused in that example is subsequently charged with manslaughter. At the first

trial, the accused was in jeopardy for manslaughter as well as murder because, as noted above, manslaughter was available as an alternative verdict on the indictment for murder at the first trial.15 Thus, at that subsequent trial for manslaughter, the accused is in jeopardy a second time for that crime and s 17 may be raised as a plea in bar by the accused. 7.12 The obverse of that position is also covered by s 17. Suppose the accused were charged with manslaughter at the first trial and either acquitted or convicted. If the accused is later charged with murder, he or she is, at that second trial, in jeopardy a second time for manslaughter because manslaughter is available as an alternative verdict on the indictment for murder at the second trial.16 Again, s 17 may be pleaded by the accused.

Raising the s 17 defence 7.13 The accused who wishes to raise the plea in bar under s 17 of the Code will do so by, instead of pleading guilty or not guilty, stating that he or she has been lawfully convicted or acquitted of the offence for which he or she is in jeopardy on that second occasion and, in so doing, it is sufficient for the offence to be referred [page 115] to in the terms by which it is commonly known.17 The issue of whether there has been a prior conviction or acquittal is one of law, to be determined by the judge or magistrate.18 Since s 17 is expressed to be a ‘defence’, it is a matter for which the accused bears the onus of proof, which must be discharged on the balance of probabilities.19

Where s 17 will not prevent a second trial 7.14 For a plea of previous conviction or acquittal under s 17 of the Codes to be successful, the earlier proceedings must have reached

finality in the sense that the accused was convicted or acquitted. Accordingly, the provision will not apply where the earlier proceedings were committal proceedings in the Magistrates Court. Similarly, where, in the earlier proceedings, the trial was terminated by a prosecutor entering a nolle prosequi, or where the jury failed to agree on a verdict, and also where a new trial is ordered by an appeal court after quashing a conviction, the plea will not succeed.20 In all of those cases, s 17 will not prevent a second trial because the first proceedings did not finally resolve the matter between the accused and the Crown (Queensland)/state (Western Australia).21 7.15 In Queensland, the Code makes provision for exceptions to the operation of s 17 following an acquittal on a charge of murder and a tainted acquittal on a charge of a 25-year offence.22 An acquittal is tainted23 if the accused or another person has been convicted in Queensland or elsewhere of an administration of justice offence24 in relation to the proceedings in which the accused person was acquitted; and it is more likely than not that, but for the commission of the administration of justice offence, the accused person would have been convicted.25 In those situations, on the application of the Director of Public Prosecutions, the Court of Appeal may order the person to be retried for the offence if satisfied that there is [page 116] fresh26 and compelling27 evidence against the acquitted person in relation to the offence and, in all the circumstances, it is in the interests of justice for the order to be made. In deciding whether it is in the interests of justice to make an order for the retrial, the court must be satisfied that a fair retrial is likely in the circumstances and must have regard to the length of time since the commission of the offence. It must also have regard to whether any police officer or prosecutor has failed to act with reasonable diligence or expedition in relation to the investigation of the commission of the offence, the prosecution of the trial proceedings and the application for the retrial.28

7.16 In 2012, the Western Australian Parliament passed amendments to the Criminal Appeals Act 2004 (WA)29 permitting senior legal offices such as the Director of Public Prosecutions, the State Solicitor or the Attorney-General to apply to the Court of Appeal to retry a person following an acquittal on the same charge.30 Section 46E requires that leave be given for a prosecution where the details of the new charge are ‘the same or substantially the same’ as those of the charge in the previous trial. It also requires that there be ‘fresh and compelling’ evidence to support the retrial.31 The provisions only apply to the most serious offences; those that are subject to a penalty of life imprisonment or imprisonment for 14 years or more.32

Dismissal of charge by magistrate 7.17 The difference in the wording of s 17 as it appears in the Queensland and Western Australian Codes has been noted: see 7.3. This has significance when the earlier proceedings were on complaint (Queensland)/prosecution notice (Western Australia) in the Magistrates Court. There is no difference in the scope of the two provisions when the earlier proceedings in the lower court resulted in a conviction. In that case, s 17 is able to be relied upon as a bar to subsequent proceedings in Queensland and Western Australia.33 However, a difference arises where the charge was dismissed in the lower court. In Western Australia, the wording of s 17 makes it clear that the provision is available in subsequent proceedings following the dismissal of a charge by a magistrate. This is so even though the section refers to a previous acquittal upon an indictment or prosecution notice. In a technical sense, the person would not have been acquitted [page 117] in the Magistrates Court but, rather, the charge against the person will

have been dismissed. In Vick v Drysdale [1981] WAR 321, Wickham J said at 332:34 … a dismissal is not strictly an acquittal though there is no harm in so calling it … The term acquittal applies to offences tried on indictment and means discharge on a verdict by a jury of not guilty.

The wording of the Code (Qld) s 17 allows the provision to have no application following the dismissal of a complaint in a Magistrates Court. Nevertheless, some protection is available to such a person by means other than the Code (Qld) s 17. This is in the form of a certificate of dismissal. The magistrate in the proceedings where the complaint was dismissed has a discretion as to whether to issue such a certificate and will only do so if the complaint has been dismissed on its merits.35 Where such a certificate of dismissal is issued, the certificate itself will act as a bar to any subsequent proceedings on a complaint for the same offence.

Where jury unaware of alternative offence 7.18 Where the former proceeding involved a trial by jury, and where the indictment was one that admitted of the prospect of the conviction of an alternative offence, s 17 of the Codes may be relied upon to bar a subsequent proceeding even where the jury in the earlier proceedings was not made aware of the availability of the alternative offences on the indictment. The issue arose in O’Halloran v O’Byrne [1974] WAR 45, where the Court of Criminal Appeal in Western Australia was considering the now repealed provisions relating to rape and unlawful carnal knowledge of a girl under the age of 16 years.36 The latter offence was available as an alternative verdict on the indictment for rape.37 The accused admitted having had sexual intercourse with the young female and the rape trial was conducted on the issue of consent. Despite a request from the prosecution, the trial judge did not direct the jury on the availability of the alternative verdict of unlawful carnal knowledge.38 The accused was convicted but the conviction was quashed on appeal. He was then charged in summary proceedings

with unlawful carnal knowledge of a girl under the age of 16 years relating to the same circumstances as gave rise to the rape charge. A plea of autrefois acquit was upheld by the magistrate and the charge was dismissed. The Court of Criminal Appeal held that, although the jury was unaware of the availability of a lesser offence as an alternative verdict at the first trial, conviction for it nevertheless remained, as a matter of law, a possibility. Consequently, the court upheld the magistrate’s decision, which was based on the view that the verdict [page 118] of the jury at the first trial was a general one; that is, one that referred to all the charges open on the rape indictment. The conclusion would have been different if the jury had been directed on both rape and unlawful carnal knowledge and had returned a verdict of not guilty of the former charge but were unable to decide in relation to the latter. This would have been a partial verdict.39

Section 17 not a complete protection Need for alternative offence 7.19 The terms of s 17 of the Codes are not sufficient to provide complete protection to a person who has previously been before a court. Clearly, its operation depends upon the availability of an alternative verdict in a particular case. Circumstances can arise where the absence of an alternative verdict in the initial proceedings will enable a subsequent prosecution to proceed on the same evidence.

Injury to more than one victim; stay of proceedings 7.20 Another situation where s 17 of the Codes provides no protection is where the conduct of an accused causes injury to more than one victim. If the accused is tried and acquitted in respect of an

offence relating to one victim, there can be no further trial in respect of that victim. However, there is nothing in s 17 to prevent the prosecution from charging the accused with an injury to a second victim. This is not to say that such protection does not exist in that or in other situations that would involve unfairness to the accused if a further prosecution was commenced. It is well established that a court has an inherent jurisdiction to prevent an abuse of its processes. Therefore, in an appropriate case, a court can order a stay of proceedings to prevent a prosecution from being commenced or from continuing.40 Such an order may be made pending a particular process; for example, the conduct of committal proceedings or even on a permanent basis.41 This is an extreme step as to which a majority of the High Court in Williams v Spautz (1992) 174 CLR 509; 107 ALR 635 stated at CLR 519: It is of fundamental importance that, unless the interests of justice demanded, courts should exercise, rather than refrain from exercising, their jurisdiction, especially their jurisdiction to try persons charged with criminal offences, and that persons charged with such offences should not obtain an immunity from prosecution.

Nevertheless, the High Court considered that it should exercise its inherent jurisdiction to stay proceedings in appropriate circumstances and, in that case, granted a permanent stay of proceedings on the basis that a prosecution had been instituted for an improper purpose. This jurisdiction has also been exercised where there have been previous proceedings and where it would be vexatious or oppressive to enable subsequent proceedings to continue even though, technically, a plea in bar as in the Code s 17 is not available. This means of staying proceedings has been utilised in situations where a second prosecution relates to an offence that is substantially the same as that for which the accused was previously prosecuted [page 119] or where it is based on substantially the same facts as those that pertained to the offence previously prosecuted.42

Offences substantially the same 7.21 In their joint judgment in Pearce (1998) 194 CLR 610 at 616–17; 156 ALR 684, McHugh, Hayne and Callinan JJ referred to the test for determining whether offences were substantially the same: In each of Chia Gee v Martin (1905) 3 CLR 649 and Li Wan Quai v Christie (1906) 3 CLR 1125, 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.

Pearce was convicted in New South Wales of doing grievous bodily harm with intent and also of breaking and entering a dwelling house and inflicting grievous bodily harm.43 Both offences arose out of a single episode. On appeal, he argued that he had been placed in double jeopardy through being prosecuted for both offences. This was rejected by the Court of Appeal and by the High Court. As to double prosecution, the High Court confined the availability of a plea in bar to cases in which the elements of the two offences charged were identical or in which all of the elements of one offence were wholly included in the other and, because each of the offences with which the accused was charged required proof of a fact that the other did not, a plea in bar was not available.44 This preference for a comparison of the elements of the respective offences rather than a comparison between the evidence at the first and second trials was endorsed by the High Court in Carroll (2002) 213 CLR 635 at 651, 663; 194 ALR 1.45 [page 120]

Preventing abuse of process Challenging a verdict of acquittal 7.22 The case of Carroll (2002) 213 CLR 635; 194 ALR 1 related to an accused whose conviction, in 1985, for murder had been quashed by the Queensland Court of Criminal Appeal, which substituted a verdict of acquittal.46 In 2000, he was charged with and convicted of perjury47 on the basis that, in giving evidence at his first trial, he had lied when he stated that he had not killed the victim and the perjury case was based on the availability of fresh evidence of Carroll’s involvement in the killing. The Court of Appeal decision to quash that conviction was affirmed by the High Court, which held that s 17 of the Code was not applicable because perjury had not been a verdict open to the jury on the indictment for murder. It also confirmed that, in addition to the Code provisions that serve to prevent double jeopardy, there was a discretion of a court to prevent an abuse of its procedures by staying an indictment. The High Court applied the principle that the prosecution must treat as incontrovertible a verdict of acquittal, either by a jury or an appellate court, and that, despite the availability of fresh evidence, the only basis of the Crown’s case for perjury was the accused’s denial of guilt. That necessarily involved a challenge to the verdict of acquittal of murder and amounted to an abuse of process for that reason. The principle applied in Carroll would not preclude the bringing of a charge of perjury concerning evidence given by an accused at a previous trial where that evidence was not in relation to an ultimate issue and where the allegation of perjury would not necessarily challenge an acquittal.48 It was in response to Carroll that the 2007 amendments to the double jeopardy rules in Queensland were introduced.49 7.23 The approach adopted in Carroll (2002) 213 CLR 635 at 647–51; 194 ALR 1 had also been utilised by the High Court in Storey (1978) 140 CLR 364; 22 ALR 47. There, the accused were charged with rape in circumstances involving the forcible removal of the victim from a railway station. In earlier proceedings, they had been charged with rape, theft and abduction arising out of these same circumstances. The

jury had acquitted them on the charge of abduction and there was a directed verdict of acquittal on the charge of theft. The jury had been unable to reach agreement on the charge of rape. At the second trial, the accused were convicted of rape and evidence was led that tended to show that they had taken the victim forcibly from the railway station. The Court of Criminal Appeal in Victoria quashed the rape conviction on the basis that the Crown was seeking, by adducing the evidence concerning the removal of the victim from the railway station, to establish that the accused were guilty of a crime of abduction of which they had previously been acquitted. A majority of the High Court dismissed a further appeal by the Crown. [page 121] Although dissenting on the outcome of the appeal, Barwick CJ summarised the position at CLR 372–3:50 Where evidence which would tend to prove the earlier charge or some element of it is admitted in the subsequent charge, the jury must be duly warned that they must accept the fact of the earlier acquittal and not use the evidence in any wise to reconsider the guilt of the accused of the earlier offence or to question or discount the effect of the acquittal … But the citizen must not be twice put in jeopardy, that is to say, as relevant to the present discussion, must not be placed at the risk of being thought guilty of an offence of which he has been acquitted, or of in any sense being treated as guilty. It is the use of the evidence given on the prior occasion to canvass the acquittal which, if allowed, would offend the rule against double jeopardy, giving that rule a generous application. The principle that the accused in the subsequent trial must be given the full benefit of the acquittal thus might be regarded as akin to but not a mere extrapolation of the principle of autrefois acquit, both being grounded upon the protection of the law against double jeopardy. But, to my mind, they are distinct principles.

Where the only inference that can be drawn from evidence is a result inconsistent with the previous verdict, the evidence will be inadmissible and, in many cases, this will have the practical effect of bringing to an end the subsequent prosecution. Much of the decision in Storey is concerned with the applicability of issue estoppel to criminal law proceedings. Although the High Court was divided in opinion as to whether the doctrine applies to criminal proceedings in

that case, it has since been determined that issue estoppel has no application in criminal law.51

Challenging a judge’s ruling 7.24 In Rogers (1994) 181 CLR 251; 123 ALR 417, a majority of the High Court held that it was an abuse of process for the Crown to tender, as evidence against the accused in a second trial, records of interview that, in earlier proceedings, had been the subject of a trial judge’s ruling that they had not been voluntarily obtained and, accordingly, had been ruled inadmissible in those earlier proceedings. Where such evidence is central to the prosecution case at the second trial, it may have the practical effect of bringing that trial to an end.

In the Magistrates Court 7.25 In Williamson v Trainor [1992] 2 Qd R 572, the Queensland Court of Criminal Appeal held that the power of a court to prevent an abuse of its processes was within the jurisdiction of the Magistrates Court. There, the defendant had been charged with assault occasioning bodily harm. After several adjournments, the matter came on for hearing and the police prosecutor sought a further adjournment on the ground of the unavailability of certain prosecution witnesses. The defendant objected to the adjournment because his corroborating witness was about to leave the state. The magistrate refused the adjournment and then stood the matter down at the prosecutor’s request. After discussion with the prosecutor, the defendant signed an indemnity in which he agreed not to claim costs against the police in [page 122] return for which the prosecutor agreed not to proceed further with the charge. When the matter came on before the magistrate, the prosecutor advised that no evidence would be presented. The complaint was dismissed and, consistent with the terms of the

indemnity, no award of costs was sought by the defendant. Some months later, a further complaint alleging the same offence against the defendant was laid by the police and he was convicted in the Magistrates Court. The magistrate, on that second occasion, rejected an application for a stay of proceedings. The Court of Criminal Appeal set aside the conviction on the basis that it amounted to an abuse of the processes of the court.52

Other examples of unfairness 7.26 Other situations that have led to findings of unfairness to the accused arising out of the circumstances of bringing a particular charge have been in cases of: delay;53 illness;54 excessive media coverage;55 prosecution of a similar offence after acquittal in another jurisdiction;56 and refusal to allow a nolle prosequi to be entered.57

Section 16: prevention of double punishment for same act 7.27 The Code (Qld) and (WA) s 17 operates as a plea in bar to proceedings so that, where it is successfully raised, it will prevent a second prosecution from continuing. The principles relating to double jeopardy are also relevant to the prevention of double punishment.58 In that regard, the Code (Qld) s 16 and the Sentencing Act 1995 (WA) s 11 provide protection to a person who has previously been punished. These provisions do not prevent a second prosecution but provide that, with one exception, a person may not be punished twice for the conduct that gave rise to the two offences.59 In NG [2007] 1 Qd R 37, the Court of Appeal held that s 16 was concerned with punishment that may be imposed under an Act such as the Criminal Code rather than a disciplinary matter such as regulatory direction by a school authority that resulted in expulsion of a student for conduct for which he was subsequently convicted and punished in the Children’s Court. It is necessary to ensure that the punishment that is argued to constitute the second punishment, and therefore in breach of the rule, is, in fact, imposed in respect of the same offence for which the first punishment was issued. If the [page 123] second punishment is imposed in respect of an offence committed at a later time, no double punishment arises.60 7.28 The exception in the Code (Qld) s 16 and the Sentencing Act 1995 (WA) s 11 relates to a situation where the act of the accused causes the death of a victim but where, before the victim died, the accused was convicted and punished for his or her act under some offence not involving death, for example, doing grievous bodily harm to the victim.61 If the victim subsequently died as a result of the

accused’s act, the accused may be prosecuted and punished for an offence relating to the causing of that death, notwithstanding the previous conviction and punishment for the offence involving grievous bodily harm.62 7.29 In Tricklebank [1994] 1 Qd R 330, a motor vehicle driven by the accused while he was under the influence of alcohol was involved in a fatal accident. Following conviction and punishment for a drinkdriving offence, he was convicted and further punished for dangerous driving causing death. The Court of Appeal held that the Code (Qld) s 16 had no application to the second proceedings, the majority on the basis that the accused had not been punished twice for the same act: see 7.29. However, Macrossan CJ also held that s 16 did not prevent the punishment on the second trial, because he considered it fell within the exception in s 16.63 Compare Tricklebank with Dribble [2014] QCA 8, where the respondent was charged with committing public nuisance after he was observed by police swinging punches at another man. He pleaded guilty to the charge and was sentenced. He was later charged with causing grievous bodily harm. He sought a stay of the proceedings before the District Court, the stay being upheld by the Court of Appeal.

Limitation: meaning of ‘act’ 7.30 The Code (Qld) s 16 is expressed in terms that a person may not be punished twice for the same act and the interpretation of the term ‘act’ in that provision, as applied by the courts, has resulted in a limiting of the circumstances in which s 16 will apply. In the majority of cases where it has been argued, s 16 has been held to have no application. Several cases relate to the driving of a motor vehicle where the accused has been charged with two offences arising out of a single set of driving circumstances. In Queensland, these have included charges of driving under the influence of alcohol and dangerous driving.64 The Sentencing Act 1995 (WA) s 11 replaced the Code (WA) s 1665 and, prior to its repeal, the Code (WA) s 16 was held

not to apply to the punishments imposed in relation to the following offences: dangerous driving and reckless driving;66 [page 124] reckless driving and stealing a motor vehicle with associated reckless driving;67 and separate counts of dangerous driving causing bodily harm to separate victims in a single motor vehicle accident.68 In each of those cases, the accused’s driving of a vehicle was common to the two offences charged. However, the term ‘act’ was held to encompass more than the mere fact of driving and, therefore, the act on the first occasion was not the same as the act on the second occasion. 7.31 The same conclusion was reached in Gordon; Ex parte AttorneyGeneral [1975] Qd R 301. There, the accused, under the influence of alcohol, was driving on the wrong side of a divided highway and collided with a motor cyclist. He was convicted and punished in a Magistrates Court of being in charge of a motor vehicle while under the influence of alcohol. Subsequently, he was convicted of dangerous driving causing grievous bodily harm but no penalty was imposed in respect of that offence on the basis that he had previously been punished for the same act. On appeal, the Queensland Court of Criminal Appeal held that s 16 had no application because the ‘punishable act’ in each offence was different. Williams J pointed out that the punishable act in respect of the drink-driving offence was the act of driving in a particular condition — the manner of driving was not relevant. On the other hand, the punishable act in respect of the dangerous driving charge was the act of driving in a particular manner — the condition of the driver was not relevant. He summarised the position at 323:

In the final result it seems to me that the proper test is whether the same wrongful act or omission which previously resulted in conviction and punishment is the central theme, the focal point or for want of a more apt choice of words and perhaps more appropriately, the basic act or omission in the later offence charged.

7.32 Similarly, this interpretation of the word ‘act’ was adopted by the Supreme Court of Western Australia in Phillips v Carbone (No 2) (1992) 10 WAR 169. There, the accused had driven a motor vehicle into a stationary vehicle in which two people were injured. He was convicted and punished on one count of dangerous driving causing bodily harm but, although convicted of a second such count, no punishment was imposed because of s 16. On appeal, the Court of Criminal Appeal relied upon the definition of ‘offence’ in the Code (WA) s 2, which provides that an act that makes the person who does that act liable to punishment is called an offence.69 The act that made the accused liable included the result of his driving and was not limited to the means by which that was brought about. Pidgeon ACJ described the gravamen of the offence as causing bodily harm to a person by driving a vehicle in the specified manner. Because bodily harm was caused to separate victims, there were separate punishable acts and s 16 had no application. This interpretation of s 16 gives little effective scope to the provision. [page 125]

Where s 16 has been successful Kiripatea: escaping lawful custody 7.33 The Code (Qld) s 16 was held by the Court of Appeal to apply in Kiripatea [1991] 2 Qd R 686.70 Kiripatea had been convicted of mutiny with circumstances of aggravation under the Corrective Services Act 1988 (Qld) s 92. One of those circumstances was that he had escaped from lawful custody. He was also charged with and pleaded guilty to a charge of escaping from lawful custody under s 93(1)(a) of that Act. He was sentenced to 6 years’ imprisonment on the

first of those charges and to a further 2 years’ imprisonment on the second. The majority of the Court of Appeal held that, once he had been punished for the former offence involving the circumstance of aggravation that he had escaped from lawful custody, he could not also be punished for the latter offence, although the conviction for the second offence was valid.71

Pearce: inflicting grievous bodily harm 7.34 As noted above (see 7.21), in Pearce (1998) 194 CLR 610; 156 ALR 684, the High Court held that there was nothing to prevent a prosecution for doing grievous bodily harm with intent and of breaking and entering a dwelling house and inflicting grievous bodily harm arising out of the same episode. However, on both counts, Pearce was sentenced to 12 years’ imprisonment concurrent with each other and he argued that he had been twice punished for substantially the same act. This was accepted by the High Court on the basis that a single act of inflicting grievous bodily harm on the victim was an element of each offence.72 That reasoning was held by the Court of Appeal to be applicable to the Code (Qld) s 16 in Robinson and Stokes; Ex parte Attorney-General [2000] 2 Qd R 413. There, the accused were convicted of torture, cruelty to a child under 16 years, two counts of grievous bodily harm, three counts of assault occasioning bodily harm and five counts of deprivation of liberty. They were each sentenced to 7 years’ imprisonment for torture, 21 years’ imprisonment for cruelty, 41 years’ concurrent imprisonment for grievous bodily harm, 2 years’ imprisonment for assault occasioning bodily harm and 12 months’ concurrent imprisonment for deprivation of liberty. All sentences were concurrent but for the sentence for cruelty, which was cumulative. The effective total sentence was 91 years’ imprisonment. McMurdo P said at 415: … it seems to me that, consistent with Pearce, the proper approach to the sentence here was to impose a penalty in respect of torture which effectively took into account the particulars of the torture, namely all the remaining counts other than the cruelty charge. Whilst pleas of guilty must be recorded in respect of all counts, there should be

no separate punishment for the offences of grievous bodily harm, assault occasioning bodily harm or deprivation of liberty, not even a concurrent one.

[page 126]

Western Australia: Sentencing Act 1995 s 11 7.35 The Western Australian provision avoids the difficulties associated with the term ‘act’ as it appears in the Code (Qld) s 16 and the repealed Code (WA) s 16. The Sentencing Act 1995 (WA) s 11(1) reads: If the evidence necessary to establish the commission by a person of an offence under the law of this State is also the evidence necessary to establish the commission by that person of another such offence, the person may be charged and convicted of each offence but is not to be sentenced for more than one of the offences.

7.36 Therefore, the rule against multiple punishments in Western Australia is limited to preventing multiple sentences on the same facts; it does not prevent the recording of multiple convictions. In Evans v State of Western Australia (2008) MVR 259, Steytler P addressed the situation where the accused faced separate charges arising out of the same course of criminal conduct. He emphasised that there is no requirement that a concurrent term of imprisonment be imposed for separate offences arising out of a ‘continuing episode’. While he acknowledged that there was a ‘good working rule’ that any term of imprisonment should be made concurrent in such situations, he stated at 261: Recent cases have repeatedly made it clear that a sentencing judge must, in each case, consider whether the application of that general rule would result in an appropriate measure of the total criminality involved in the conduct. If it would not, then the ‘rule’ should not be applied … The preponderance of recent authority in this State and elsewhere supports the proposition that, in cases involving multiple offences arising out of the one motor vehicle accident, it is open to a sentencing court to order at least some degree of cumulation.

Section 11(2) of that Act is in similar terms to s 11(1) and extends the protection against double punishment to the person who is before a

court in Western Australia and where the punishment was previously imposed in another part of Australia.

Plea as to jurisdiction 7.37 The final matter to be raised is the plea as to jurisdiction. An accused may plead that the court has no jurisdiction to try him or her.73 If the plea is raised, the court proceeds to satisfy itself in such manner and upon such evidence as it thinks fit, whether or not it has jurisdiction, and it may ascertain that fact by the verdict of a jury or otherwise.74 _________________________________ 1.

2.

See Riddle (1980) 48 CCC (2d) 365 at 369–70; Cooke v Purcell (1988) 14 NSWLR 51 at 54–6; Davern v Messel (1984) 155 CLR 21 at 29–30, 62–3; 53 ALR 1; Pearce (1998) 194 CLR 610; 156 ALR 684; Carroll (2002) 213 CLR 635 at 665; 194 ALR 1. See Pearce (1998) 194 CLR 610 at 614; 156 ALR 684.

3. 4.

The words in brackets are not in the Code (Qld) s 17. The words in brackets are not in the Code (WA) s 17.

5.

6.

See the Criminal Appeals Amendment (Double Jeopardy) Act (WA) s 46H. Unlike the Western Australian amendments, earlier similar reforms in Queensland in 2007 did not make the effect of this change retrospective, although this has been recently challenged. For the text of the Criminal Code Act 1899 (Qld), see Carter’s Criminal Law of Queensland, LexisNexis Butterworths, Sydney, 1988–present; for the text of the Criminal Code Act 1913 (WA), see Criminal Law Western Australia, LexisNexis Butterworths, Sydney, 1990– present.

7. 8.

See Code (Qld) s 576. Criminal Procedure Act 2004 (WA) Sch 1, cl 7(1), (2).

9. Code (WA) s 10B. 10. Code (WA) s 10B(2). This includes a simple offence which is nominated as an alternative to an indictable offence: Code (WA) s 10B(3) and see, for example, Code (WA) s 317. 11. Code (WA) s 10C. 12. Code (WA) ss 10D–10I. 13. Code (WA) s 10D. 14. Code (WA) s 10E. This provision does not apply to s 283 (attempted murder). 15. Code (Qld) s 576(1); (WA) s 279(1); see 7.7. 16. Code (Qld) s 576(1); (WA) s 279(1); see 7.7. 17. Code (Qld) ss 598(2)(c)–(e), 602; Criminal Procedure Act 2004 (WA) s 126(1)(c), (3).

18.

Code (Qld) s 604. The Criminal Procedure Act 2004 (WA) s 127(2) provides that the matter is to be determined by the court, which may ascertain any fact by the jury if it sees fit.

19. See Young and Coughlan (1976) 63 Cr App R 33; Viers [1983] 2 Qd R 1 at 6; 6.19. 20. See Nicholas [1989] Tas R (NC) N24; (1989) 45 A Crim R 299; Doyle [1988] 2 Qd R 434 at 435; Wilson v Clarke (2005) 40 SR (WA) 120; Island Maritime Ltd v Filipowski (2006) 226 CLR 328; 228 ALR 1. 21. See 2.5. 22. The exception applies whether the acquittal occurred before, on or after the commencement of the Code (Qld) s 678A. Code (Qld) ss 678B–678C. A 25-year offence is one punishable by imprisonment for life or for a period of 25 years or more: Code (Qld) s 678(1). For procedures, time limits, bail considerations and limits on publication, see Code (Qld) ss 678G–678K. An acquittal includes an acquittal in appeal proceedings or at the direction of a court and where a certificate of dismissal was given under the Code s 700 or the Justices Act 1886 (Qld) s 149: see 7.16. It does not include an acquittal on account of unsoundness of mind: Code (Qld) s 678(1). 23. Code (Qld) s 678C. 24. See Code (Qld) Ch 16, which includes s 123 perjury. 25. Code (Qld) s 678E(2). An acquittal is not tainted in the periods relevant to an appeal against the conviction: Code (Qld) s 678E(3). 26. Evidence is ‘fresh’ if it was not adduced in the proceedings in which the person was acquitted and it could not have been adduced in those proceedings with the exercise of reasonable diligence: Code (Qld) s 678D. 27. Evidence is ‘compelling’ if it is reliable, substantial and, in the context of the issues in dispute in the proceedings in which the person was acquitted, highly probative of the case against the acquitted person: Code (Qld) s 678D. 28. Code (Qld) s 678F. 29. Criminal Appeals Act 2004 (WA) s 5A. 30. Criminal Appeals Amendment (Double Jeopardy) Bill 2011. 31. On the meaning of ‘fresh and compelleing evidence’, see Criminal Appeals Act 2004 (WA) s 46I. 32. See Criminal Appeals Act 2004 (WA) s 46A(1). 33. See Viers [1983] 2 Qd R 1. 34. Note the term ‘acquittal’ following a jury verdict in the Code (Qld) s 646 and generally in the Criminal Procedure Act 2004 (WA) ss 108, 146, 149. 35. Code (Qld) s 700; Justices Act 1886 (Qld) s 149; Justices Act 1902 (WA) s 142; see also Hay; Ex parte Patane [1981] Qd R 152; Vick v Drysdale [1981] WAR 321 at 341; Tovey v Ferre [1981] WAR 21; Curran v Wong Joe [1927] St R Qd 112; Haynes v Davis [1915] 1 KB 332; Reed v Nutt [1890] 24 QBD 669; Fehan v Wallin (1985) 32 A Crim R 388. 36. See Code (WA) ss 187, 326 (repealed and replaced by ss 325, 326, 321); Chapter 14. 37. Code (WA) s 596 (repealed; see now ss 325, 326). 38. For reference to when it is appropriate to direct the jury on the alternative verdict, see Rehavi [1999] 2 Qd R 640; Chan [2001] 2 Qd R 662.

39. See Peevey (1973) 57 Cr App R 554; Benbolt (1993) 60 SASR 7. 40. See also Code (Qld) s 596; Criminal Procedure Act 2004 (WA) ss 76, 90. 41. See Barton (1980) 147 CLR 75; 32 ALR 449; Williams v Spautz (1992) 174 CLR 509 at 518–21; 107 ALR 635. 42. See Walton v Gardiner (1993) 177 CLR 378 at 395; 112 ALR 289; Reeves (1994) 122 ACTR 1; 121 FLR 393; Smith [1995] 1 VR 10 at 25; Humphrys [1977] AC 1; Connelly [1964] AC 1254; Viers [1983] Qd R 1 at 6; Pearce (1998) 194 CLR 610 at 620; 156 ALR 684; Carroll (2002) 213 CLR 635 at 650–1; 194 ALR 1. 43. Crimes Act 1900 (NSW) ss 33 and 110, respectively. 44. See Pearce (1998) 194 CLR 610 at 620, 628, 653; 156 ALR 684. 45. Obiter dicta of the majority of the High Court in Island Maritime Ltd v Filipowski (2006) 226 CLR 328; 228 ALR 1 was that all of the elements of one offence must be included in the other for double jeopardy to apply (Gummow and Hayne JJ at 420–1, Kirby J at 434–5 and Callinan J at 436; Gleeson CJ, Heydon and Crennan JJ at 418–19 contra). 46. See Carroll (1985) 19 A Crim R 410; Code (Qld) Ch 68; 7.15. 47. Code (Qld) s 123; (WA) s 124. 48. See Carroll (1985) 19 A Crim R 410. 49. Code (Qld) ss 678B, 678C, which allow a retrial for murder in exceptional circumstances, as well as a retrial in relation to a ‘tainted’ acquittal of a 25-year offence. 50. See also Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458; Kemp (1951) 83 CLR 341; [1951] ALR 659; Flood [1956] Tas SR 95. 51. See Rogers (1994) 181 CLR 251; 123 ALR 417; Carroll (2002) 213 CLR 635 at 662; 194 ALR 1. 52. See also Tilley (1992) 109 FLR 155; Wilson v Clarke (2005) 40 SR (WA) 120. 53. See Jago (1989) 168 CLR 23; 87 ALR 577; Smith (2000) 117 A Crim R 1. 54. See Hakim (1989) 41 A Crim R 372; Lock (1994) 12 SR (WA) 111; Richards (1994) 64 SASR 42. 55. See Connell (No 2) (1993) 9 SR (WA) 357. 56. Salmat Document Management Solutions Pty Ltd (2006) 199 FLR 46. 57. See Jell; Ex parte Attorney-General [1991] 1 Qd R 48; Ferguson; Ex parte Attorney-General [1991] 1 Qd R 35. 58. See Pearce (1998) 194 CLR 610 at 614; 156 ALR 684. 59. See also Criminal Code Act (Qld) s 7; Acts Interpretation Act 1954 (Qld) s 45; Crimes Act 1914 (Cth) s 4C. 60. Labaj v Brown [2005] QCA 54. 61. Code (Qld) s 320; (WA) s 297. 62. Code (Qld) s 16; Sentencing Act 1995 (WA) s 11(3). 63. Tricklebank [1994] 1 Qd R 330 at 334, and note the reference by McPherson JA at 336. 64. See Gordon; Ex parte Attorney-General [1975] Qd R 301 in respect of Code (Qld) s 328A and Traffic Act 1949 (Qld) s 16. See now Transport Operations (Road Use Management) Act 1995 (Qld) s 79(1); Tricklebank [1994] 1 Qd R 330. 65. See Act No 78 of 1995.

66. See Drage (1989) 9 MVR 540; 44 A Crim R 352 in respect of Road Traffic Act 1974 (WA) ss 59, 60. 67. See Moore (1994) 11 SR (WA) 74 in respect of Road Traffic Act 1974 (WA) s 60 and Code (WA) ss 371A, 378(2)(a). 68. See Phillips v Carbone (No 2) (1992) 10 WAR 169. 69. Code (Qld) s 2 is in identical terms. 70. See also examples given by Hanger CJ in Gordon; Ex parte Attorney-General [1975] Qd R 301 at 306. 71. Kiripatea [1991] 2 Qd R 686 at 701–2. 72. Pearce (1998) 194 CLR 610 at 623–4, 629, 650; 156 ALR 684. 73. Code (Qld) s 598(2)(g); Criminal Procedure Act 2004 (WA) s 126(1)(a). 74. Code (Qld) s 603; Criminal Procedure Act 2004 (WA) s 127(2).

[page 127]

Chapter Eight Criminal Responsibility

Introduction 8.1 The Codes (Qld) and (WA) approach the issue of criminal responsibility in a way that bears similarities to the common law approach, although there are important distinctions between the two, which will be explained in this chapter. An important principle of the common law has been that a person may not be criminally responsible for an offence unless his or her prohibited conduct was accompanied by a guilty mind. The principle is expressed in the maxim actus non facit reum nisi mens sit rea: the act does not constitute guilt unless the mind is guilty. In giving effect to that principle, the common law distinguishes between the actus reus, the physical elements of the offence, and the mens rea, the mental, or fault, element, which refers to the quality of moral blameworthiness associated with the offence. Criminal responsibility in the Code jurisdictions likewise requires both the conduct and mental elements of the offence to have been committed by the accused. Criminal responsibility at common law and under the Codes therefore is determined according to principles that indicate whether, in any particular case, there has been sufficient guiltiness of mind accompanying the conduct of the accused to constitute the offence.1 An important difference, however, is that the concepts of actus reus and mens rea have no place in the Codes (Qld) and (WA); the approach is much more ‘elemental’ than that of the common law, in that the Codes do not ‘read in’ a mental element

where that is not explicit in the offence. This means that Chapter 5 of the Codes (Qld) and (WA) has a particularly important place in determining the liability of the accused person.

Mental element Mens rea at common law 8.2 These common law doctrines have no statutory basis and are determined through analysing the relevant cases. When, in a common law jurisdiction, an offence is created, not by the common law itself but by statute, the courts [page 128] must determine the extent to which the doctrines requiring mens rea apply to the offence in question. In that process, they are assisted by a presumption in such jurisdictions that mens rea is required to constitute any statutory offence. The extent to, and means by which, the mental element of a statutory offence in a common law jurisdiction may be ascertained was referred to by Lord Diplock in Sweet v Parsley [1970] AC 132 at 162: Where the crime consists of doing an act which is prohibited by statute the proposition as to the state of mind of the doer which is contained in the full definition of the crime must be ascertained from the words and subject matter of the statute. The proposition … may be stated explicitly by the use of such qualifying adverbs as ‘maliciously’, ‘fraudulently’, ‘negligently’ or ‘knowingly’ — expressions which in relation to different kinds of conduct may call for judicial exegesis. And even without such adverbs the words descriptive of the prohibited act may themselves connote the presence of a particular mental element. Thus, where the prohibited conduct consists in permitting a particular thing to be done, the word ‘permit’ connotes at least knowledge or reasonable grounds for suspicion on the part of the permittor that the thing will be done and an unwillingness to use means available to him to prevent it and, to take a recent example, to have in one’s ‘possession’ a prohibited substance, connotes some degree of awareness of that which was within the possessor’s physical control …

8.3 There, Lord Diplock noted that, frequently, there is an absence of reference to any relevant mental state in the statutory definitions of many offences, with the offence being defined in terms of the physical elements only. He continued at 162: Nevertheless, the mere fact that Parliament has made the conduct a criminal offence gives rise to some implication about the mental element of the conduct proscribed. It has, for instance, never been doubted … that one implication as to the mental element in any statutory offence is that the doer of the prohibited act should be sane, yet this part of the full definition of the offence is invariably left unexpressed by Parliament. Stephen J in R v Tolson (1889) 23 QBD 168 suggested other circumstances never expressly dealt with in the statute where a mental element to be implied from the mere fact that the doing of an act was made a criminal offence would be absent, such as where it was done in a state of somnambulism or under duress, to which one might add inevitable accident.

8.4 Accordingly, with statutory offences in common law jurisdictions, the mental element of the offence, such as intention, recklessness or knowledge, may be expressly referred to or it may be incorporated by applying the presumption of mens rea. However, it will be seen that this presumption is rebuttable.2

The Code states: Queensland and Western Australia 8.5 Unlike the position at common law, criminal responsibility in respect of offences enacted in Queensland or Western Australian statutes does not depend on the doctrine of mens rea. Rather, it depends upon the provisions of the Criminal Codes in those states. Those provisions are based largely on principles that [page 129] developed at common law but, as Griffith CJ said in Widgee Shire Council v Bonney (1907) 4 CLR 977 at 981; 13 ALR 662: Under the criminal law of Queensland as defined in the Criminal Code, it is never necessary to have recourse to the old doctrine of mens rea, the exact meaning of which has been the subject of much discussion.

8.6

Many years later, Philp J gave expression to the same sentiment

when he said:3 In Queensland in determining criminal responsibility the court is not riding the unruly horse of a moral doctrine, it is mounted on the steadier steed of statutory enactment.

8.7 This reliance on statutory provisions rather than the doctrine of mens rea applies equally to Western Australia and, in each state, the most important provisions relating to criminal responsibility are found in Ch 5 of the Code.4 However, there are also provisions that may serve to alleviate criminal responsibility to be found elsewhere in the Codes. For example, see: self-defence;5 defence of property;6 discipline;7 defences to medical necessity;8 and provocation.9 Each of those provisions applies to only a limited range of offences — some to offences against the person and others to offences against property. The difference between them and those in Ch 5 of the Code is that the latter provisions have a broader application. 8.8 The criminal responsibility provisions in Ch 5 of the Codes are of general application to any person charged with any criminal offence in Queensland or any offence in Western Australia.10 The matters of excuse as set out in Ch 5 are available to a person who is charged with an offence created by any state legislation even where the particular offence makes no reference to a mental element.11 The effect of the generality of application given to Ch 5 is that the definition of any offence in Queensland and Western Australia, whether in the Code or some other statute, must be read with the provisions dealing with criminal responsibility. A person [page 130]

cannot be guilty of the defined offence unless the prosecution negatives the application of any Ch 5 excuse that has been raised on the evidence.12

Rebuttal of the mental element 8.9 At common law, the presumption of mens rea may be rebutted not only by the words of the statute creating the offence, but also by the nature of the subject matter with which the statute deals. This will result in offences constituted either with no requirement of guiltiness of mind, known as offences of strict or absolute liability, or with that requirement provided for in some modified form. Thus, a person may be convicted at common law of selling adulterated food even though he or she did not know, and had no means of knowing, that the food had been adulterated.13 8.10 Just as a statute in a common law jurisdiction may exclude mens rea for a particular offence, so a part or the whole of Ch 5 may be excluded expressly or impliedly by a statute of the Queensland or Western Australian Parliament,14 provided the statute in question was passed since the enactment of the Criminal Code.15 Such a specific exclusion would thereby override the generality of s 36 of the Codes and serve to limit the extent to which some part or, conceivably, all of Ch 5 would apply. This legislative power to exclude the criminal responsibility provisions of the Code reflects the capacity for the presumption of mens rea to be rebutted at common law. 8.11 There is no counterpart under the Codes to the common law doctrine of exclusion of mens rea due merely to the nature of the subject matter of the legislation that creates the offence. Philp J, in Brimblecombe v Duncan [1958] Qd R 8 at 12, pointed out that a criminal responsibility provision of the Code can be excluded only by an express provision to this effect in a later statute or by a law that is inconsistent with the coexistence of the particular provision.16 This was demonstrated in Hunt v Maloney [1959] Qd R 164. There, a provision in the Health Act 1937 (Qld) seemed to indicate that an employer could be convicted of an offence even though the offence

had been committed by an employee and without the employer’s knowledge. However, the Full Court of the Supreme Court held by a majority that the relevant provision in Ch 5, that is, the Code (Qld) s 23, had not been excluded by implication. Stanley J said at 177:17 In my opinion, the statutory freedom from criminal responsibility conferred by s 36 and s 23 of the Criminal Code cannot be destroyed except by express enactment

[page 131] of the legislature or by language in a later statute so clear and unequivocal in its meaning that one must necessarily conclude from it that the Legislature intended to destroy that freedom.

As a result of that case, the Health Act 1937 (Qld) was amended to exclude s 23 in express terms.18 It should be noted that there are various sections of the Code that themselves exclude one or more of the provisions of Ch 5; for example, the Code (Qld) ss 216(4), 229 and 636(2) and (WA) ss 205 and 329(11).19 These provisions are concerned with offences of a sexual nature and modify, in particular situations, the way in which the Code (Qld) and (WA) s 24 (a criminal responsibility provision in Ch 5 relating to mistake of fact) is to operate: see 8.87.

Commonwealth legislation 8.12 Until 1995, the Judiciary Act 1903 (Cth) s 80 required that, for the trial of an offender for an offence against Commonwealth law, the principles of criminal responsibility, as they operated in the state in which the trial was held, were to apply. That provision did not relate to offences under the Crimes Act 1914 (Cth), s 4 of which provided that common law principles were to apply to offences under that Act. The effect of these provisions was that, for offences other than those in the Crimes Act, the criminal responsibility of offenders for breaches of Commonwealth law tried in different states of Australia could be determined by a different body of laws, some by common law and

others by Code principles, depending on the prevailing system in the state of trial. This differential treatment of offenders ended with amendment to the Crimes Act 1914 (Cth) in 1995 that ensured that common law principles of criminal responsibility applied to all offences in all states and territories of Australia.20 However, since then, the principles of criminal responsibility under Commonwealth law have been codified by the Criminal Code Act 1995 (Cth) and this now obviates the need to rely upon common law principles of criminal responsibility. The Code (Cth) provides that Commonwealth offences will consist of both physical and fault elements, but that the law that creates an offence may provide that there is to be no fault element for that offence.21 Also, a Commonwealth Act may make specific provision for excuses to be applied to offences under that Act. An example of this is the Marriage Act 1961 (Cth) where s 94(1) establishes the crime of bigamy and s 94(2) provides a defence to such a charge.22 [page 132]

Ignorance of the law not a defence — Code (Qld) s 22(1) and (WA) s 22 first para23 8.13 The Codes (Qld) and (WA) s 22 are concerned, in part, with the general common law principle that a person may not rely on ignorance or mistake of law as an excuse from criminal responsibility.24 The Queensland and Western Australian provisions were identical until the former was amended by the addition of s 22(3) and (4).25 The Code (WA) s 22 comprises the first two subsections only of the Queensland provision, which reads: (1) Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by the offender is expressly declared to be an element of the offence. (2) But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.

(3) A person is not criminally responsible for an act or omission done or made in contravention of a statutory instrument if, at the time of doing or making it, the statutory instrument was not known to him and had not been published or otherwise reasonably made available or known to the public or those persons likely to be affected by it. (4) In this section — ‘publish’ — (a) in relation to a statutory instrument that is subordinate legislation — means notify in accordance with s 47 (Notification) of the Statutory Instruments Act 1992; and (b) in relation to a statutory instrument that is not subordinate legislation — means publish in the Gazette.

Although the qualification in s 22(3) is not included in the Western Australian Code, it is recognised at common law.26 It is likely that this qualification would be recognised by a Western Australian court.27

Mistake of fact and mistake of law 8.14 The rule in the Code (Qld) s 22(1) and (WA) s 22 first para requires distinguishing between mistakes of law and mistakes of fact. In s 24, the Codes expressly provide that a mistake of fact, in certain circumstances, will provide an excuse: see 8.73–8.89. However, a mistake of law is encompassed by s 22 and will afford no excuse. Some mistakes are readily identifiable as being either of fact or of law. If one is mistaken as to the existence of observable facts, that is clearly a mistake of fact; if one is mistaken about the law or as to a legal conclusion to be drawn from observable facts, this should be categorised as a mistake of law. In Sancoff v Holford; Ex parte Holford [1973] Qd R 25, the defendant bookseller was [page 133] charged with being in possession of obscene books.28 He relied on mistake of fact in the Code (Qld) s 24 on the basis that he was aware of the content of the books but believed this to be not obscene. It was determined that any mistake made by the defendant was one of law, not fact. Hanger CJ said at 27:

I think s 24 has no application to the case. The position may be contrasted with that arising if a person has in his possession a book which he has not opened which is marked ‘Electrical Engineering’ but which contains inside nothing but pornographic pictures. Here, a plea that the possessor believed the contents of the book to relate only to electrical engineering would establish a belief in a state of things — the contents of the book. But the belief — if it existed — of the appellant in the instant case, based on a knowledge of the contents of the books, is a very different thing. Knowing all the primary facts of the matter, the appellant claims to have reached a mistaken conclusion as to the result of the facts — that the books were not obscene and that he was entitled to sell them within the law. I think this was an error in law which was no excuse.

8.15 The distinction is also seen in Pusey v Wagner; Ex parte Wagner [1922] St R Qd 181. In that case, the defendant had applied for a permit to travel stock by road to a certain destination and had given the date of the proposed departure of the stock as 18 January 1921. He then decided, after obtaining the permit, not to travel the stock at that time. In August 1921, he moved the cattle towards the same destination without obtaining another permit. He was convicted of an offence against the Diseases in Stock Act 1915 (Qld) — travelling stock without a permit. Again, it was held that s 24 had no application as the mistake was not one of fact. In effect, the mistake was whether the document was a permit to travel stock in August. This was a question of interpretation of the permit and, therefore, a matter of law.29 8.16 Mistakes of law are not always readily distinguishable from those of fact. In Thomas (1937) 59 CLR 279; [1938] ALR 37, Thomas was convicted of bigamy. His defence was that, at the time of a second marriage ceremony to Deed, he honestly and reasonably thought he was a single man. He had previously married Higgins, who had divorced her former husband to marry Thomas. However, after marrying Higgins, Thomas came to believe that Higgins had not been a single woman at the time she went through the marriage ceremony with him, for he had heard that Higgins’ decree nisi of divorce from her first husband had not been made absolute. If this belief had been correct, Thomas would not have committed bigamy by going through a ceremony of marriage with Deed, because his previous marriage to Higgins would have been void on the ground that Higgins was still a married woman at the time of that marriage. Thus, Thomas was relying on a belief that a decree nisi had not been made absolute.

Thomas, however, was mistaken in his belief, as the decree nisi had been made absolute before Thomas married Higgins. The question arose, therefore, whether this belief was a mistake [page 134] of fact, and therefore an excuse, or a mistake of law. By decision of the majority, the High Court held that it was a mistake of fact and the conviction was quashed.30 8.17 In Ostrowski v Palmer (2004) 218 CLR 493; 206 ALR 422, a commercial fisherman was convicted of having fished for rock lobsters in a closed zone contrary to fishing regulations.31 He had relied on a copy of the regulations supplied to him by the office of Fisheries Western Australia. However, the copy given to him was incomplete in that it omitted an amendment that closed off the area in which he was apprehended. A majority of the Court of Appeal held that the accused was acting under a mistake of fact, namely that the material provided to him was complete whereas it was in fact incomplete, and that his conduct was excused under the Code s 24.32 On appeal, the High Court unanimously reversed that decision and held that the only mistake made was that he believed it was lawful for him to fish for lobster in the prohibited area and that this was a mistake of law: at CLR at 504, 518, 529. In their joint judgment, Gleeson CJ and Kirby J said that, unlike the Code s 22, mistake of fact under s 24 is concerned with mistakes about the elements of the offence and not about the law creating the offence. They gave the example that, if the accused had been in the incorrect area because of a navigational error and had an honest and reasonable, but mistaken, belief as to his location, the Code s 24 would be applicable: at 504. 8.18 Ostrowski v Palmer has been followed in Windshuttle v Redland Shire Council [2006] QDC 393. That case concerned a defendant who removed used machinery from land in Birkdale. In order to do so, he removed vegetation on the land. Some of this vegetation was

‘protected vegetation’. Local Law No 6 made it an offence to damage protected vegetation without a permit. The defendant did not have a permit. Although the defendant had a letter from the Department of Natural Resources advising him that his clearing was exempt from the approvals process under the Vegetation Management Act 1999 (Qld), the letter also advised him to check that his proposed clearing did not contravene other legislation, including local laws made under the Local Government Act. The defendant was, however, unaware of the law that deemed the vegetation to be protected vegetation because the land came within the strategic plan. The District Court held he had been correctly convicted of contravening the local law. 8.19 The above decisions should be compared with the decision of the Federal Court of Australia in Mei Ying Su v Australian Fisheries Management Authority (No 2) (2008) 251 ALR 135; 189 A Crim R 23. That case concerned the liability of the master of a Taiwanese fishing vessel who was alleged to have contravened the Fisheries Management Act 1991 (Cth) by bringing his commercial fishing vehicle within the Australian Fisheries Zone. The ship and its nets were seized pursuant to legislation, [page 135] and notice was subsequently given that, unless the owners of the boat and its nets instituted recovery proceedings within 2 months, the seized items would be ‘condemned as forfeited’. The applicant sought a declaration that the things seized were not forfeited. His evidence was that, as he approached Australian waters, he saw ‘a red line’ on his GPS monitor that he thought he had previously been told by the manufacturer of the GPS was the border of the Australian Fishing Zone. He moored his vessel some 11 nautical miles north of this line. In fact, he was in the Australian Fishing Zone when he moored the boat. The Federal Court held that the master’s error was not a mistake of law. Rather, it was a mistake as to whether or not a fact existed (the location of the Australian Fishing Zone border).

Unpublished statutory instruments Queensland 8.20 The Code (Qld) s 22(3) relates to unpublished statutory instruments and provides for no criminal responsibility to attach if the statutory instrument was not known to the offender and was not published or otherwise reasonably knowable to the public or to those persons likely to be affected by it. The provision equates the Queensland position to that pertaining in English law. In Hogan v Sawyer; Ex parte Sawyer [1992] 1 Qd R 32, the Supreme Court of Queensland set aside a prison inmate’s conviction for an offence under the Corrective Services Act 1988 (Qld) s 93(1)(c), which was based upon his having been in possession of an article, that is, money, which was ‘prescribed by rule as a prohibited article’. The Corrective Services Commission had a rule-making power under the Corrective Services (Administration) Act 1988 (Qld) s 20(1). Section 36 of that Act required the commission to inform a prisoner of his or her duties pursuant to the commission’s rules. The conviction had been in respect of a breach of r 14, which prohibited the possession of money by a prisoner. Although there was some common knowledge amongst prisoners of the rule, it had not been the subject of publication in the government Gazette and it had not been made available to the public, police or prisoners. The court held that the rule in question was a ‘statutory instrument’. As to the extent of knowledge required under the provision, Thomas J stated at 37: I do not think that the requirements of [the provision] are met merely by knowledge on the part of the prisoner that he will get into trouble if he does a particular act, or even if he has a general comprehension that there is a ‘rule’ against doing it. It is necessary in my view that he know the substance of the prohibition and that he may be convicted in Court of an offence of some kind if he breaks it.

Western Australia 8.21 The Code (WA) s 22 reflects the position in Queensland prior to the addition of subs (3) and (4) in 1985. Commenting on the Code as

it then was in Queensland, Philp ACJ in Hughes v Hi-way Ads Pty Ltd; Ex parte Hughes [1963] Qd R 328 stated at 332: In England, the common law maxim ‘ignorance of the law is no excuse’ may be held by a court not to apply where lack of its publicity makes the law unknowable, but in Queensland the maxim is enacted in s 22 of the Criminal Code and the courts have no power to modify the operation of that section. That position would still seem to prevail in Western Australia.

[page 136]

Claim of right — Code (Qld) s 22(2) and (WA) s 22 second para33 Honest claim of right 8.22 The Code (Qld) s 22(2) and (WA) s 22 second para enable a person to avoid criminal responsibility when exercising a claim of right. Hanger J referred to the provision in Olsen v Grain Sorghum Marketing Board; Ex parte Olsen [1962] Qd R 580 at 589: Section 22, after stating that ignorance of the law is no excuse, does not proceed to say that ignorance of the law is an excuse in the case of an offence relating to property for an act done with respect to property. It refers to an act done in the exercise of an honest claim of right and without intention to defraud. In Cooper v Phibbs, Lord Westbury has some remarks which I think are relevant. ‘It is said ignorantia juris non excusat, but in that maxim the word jus is used in the sense of denoting general law, the ordinary law of the country. But when the word jus is used in the sense of denoting a private right, that maxim has no application.’ It is this distinction that must be kept in mind when construing and applying s 22 of the Code.

Thus, ignorance or mistake of law is only an excuse when it gives rise to an honest claim of right as outlined in the provision. A claim of right is based on ignorance of the civil, rather than the criminal, law as it is not a claim to freedom to act in a particular manner but a claim to an entitlement in law with respect to property which goes to establish the absence of a guilty mind.34

Limited to offences relating to property

8.23 The scope of the claim of right excuse is limited to offences relating to property. This includes those ‘offences relating to property and contracts’ in the Code Pt VI such as stealing and aggravated forms thereof such as robbery,35 burglary36 and unlawful use of a vehicle37 as well as forgery.38 However, it is not limited to those types of offences, and recent cases have favoured a broad interpretation of the concept of property for the purpose of s 22.39 It has application not only to a claim to a proprietary or possessory right in property but also to a claim of entitlement to act in respect of property such as damaging property40 or remaining on premises without lawful authority.41 [page 137] 8.24 The requirements of a claim of right were not met in Waiden v Hensler (1987) 163 CLR 561; 75 ALR 173. There, the defendant was convicted of keeping fauna without a licence contrary to the Fauna Conservation Act 1974 (Qld) s 54. He was Aboriginal, and periodically returned to bushland near Mount Isa with his family, where they would consume ‘bush tucker’. He was found in possession of a plain turkey, which he had killed for food, and a turkey chick, which was kept as a pet. The defendant had obtained permission to go hunting from the manager of the property where the events took place and there was evidence that he did not know that it was illegal for him to keep the turkeys and that he believed he was entitled to do what he had done. The magistrate’s conviction was upheld by the Full Court of the Supreme Court. On further appeal, the majority of the High Court held that the claim of right provision did not excuse the defendant’s actions.42 Within the majority, Brennan and Dawson JJ held that the offence in the Act s 54 was not an offence relating to property, but not because it was not a Code offence. Brennan J held that an offence with respect to property will be found merely where the relevant act or omission affects in some way a thing that answers the description of ‘property’

as defined in the Code; for example, by destroying, damaging, using, disposing of or otherwise dealing with property or rights in respect of property. Deane J, along with the dissenting judges Toohey and Gaudron JJ, held that the offence was one relating to property. Deane J considered that the reference to ‘an offence relating to property’ should be construed as referring to an offence involving an element of interference with rights, be they proprietary or possessory, by the person charged, with rights of another in relation to property: at 580. Toohey J was of the opinion that the offence related to property because it was related to the ‘taking or keeping of something which answers the description of property’: at 599. Gaudron J conceded that there were difficulties with the interpretation of the phrase, but nevertheless concluded that the fauna in question was capable of being the subject of ownership and that, therefore, the keeping of the birds by the defendant was an act with respect to property within the meaning of the provision: at 609.43 The Western Australian Court of Appeal has followed the line of reasoning adopted by Deane, Toohey and Gaudron JJ.44 8.25 In Stevenson v Yasso [2006] 2 Qd R 150; (2006) 163 A Crim R 1, the defendant was charged under the Fisheries Act 1994 (Qld) s 84 with unlawfully possessing commercial fishing apparatus in the form of a fishing net. He claimed to have used the net in accordance with Aboriginal tradition. McMurdo P held that the Code (Qld) s 22 applied to the offence; McPherson J held that s 22 had no application because the offence of possessing the net was constituted independently of any use of it to catch fish and, therefore, possession was unrelated to Aboriginal tradition; Fryberg J expressed no opinion on claim of right: at A Crim R 21, 31 and 49, respectively. [page 138]

Acting in exercise of honest claim of right 8.26

A further requirement in the Code (Qld) s 22(2) and (WA) s 22

second para is that the accused be acting in the exercise of an honest claim of right. In Bernhard [1938] 2 KB 264 at 270, the English Court of Criminal Appeal held that a person has a claim of right ‘if he is honestly asserting what he believes to be a lawful claim, even though it may be unfounded in law or in fact’.45 In Investments (WA) Pty Ltd v City of Swan (No 2) (2013) 197 LGERA 197, the Western Australian Supreme Court, in dismissing the appellant’s appeal, noted in that case that there is a difference between mistakenly claiming a right to do something (in that case, develop land) and a mistaken belief about the meaning of a condition (in that case, relating to the timing of the payment of a fee). Another Western Australian Supreme Court case has emphasised that the belief may involve a claim as to the law (other than the criminal law) or it may involve a mixed claim of law and fact.46 Whether there is a claim of right is not a question of law, but a question of fact for the jury and there is no requirement that the claim be reasonably held,47 although an unfounded and unreasonable claim may be less likely to be accepted as being honest.48 The excuse has been applied to situations where the accused committed an offence on behalf of another whom he believed to have a claim of right.49

Need for claim of existing right 8.27 In Pollard [1962] QWN 13, the issue was whether the accused could, on a charge of unlawful use of a motor vehicle, point to sufficient evidence to allow claim of right to go to the jury; that is, whether the accused had satisfied the evidential onus with respect to the exculpatory provision. Although the accused did not swear in terms that he believed he was entitled to use the vehicle, he did assert that he believed that the owner would have consented to his using it, if he had been asked. By itself, his belief could not have established a claim of right under s 22, for a claim of right means a claim of an existing right concerning the property, and not one that might be acquired in the future. 8.28

The reasoning of the Court of Criminal Appeal appears to have

proceeded upon the basis that, if it is established that an accused believed an owner would consent to his or her use of a vehicle if asked, a jury might infer that the accused also believed that, in such circumstances, he or she had a presently existing right to use the vehicle. Such a belief would be wrong in law but that is beside the point, because the claim of right in this case operates as an exception to the general rule that [page 139] ignorance of the law is no excuse. Once it is considered that a reasonable jury might infer this second belief, or at least not be satisfied beyond a reasonable doubt that such a belief is excluded, the evidential onus is satisfied and the prosecution must negative the excuse. Thus, from a belief as to future permission being given, one can infer that the accused may have held an existing belief that he or she could use the vehicle. This seems to widen the opportunities of grounding a claim of right excuse.

Claim of right where offence not relating to property 8.29 In Waiden v Hensler (1987) 163 CLR 561; 75 ALR 173, cited above, three members of the High Court expressed an opinion on whether the defendant’s claim to keep the plain turkeys constituted a claim of right under s 22. Brennan and Dawson JJ, who, with Deane J, comprised the majority, did not consider the issue as they determined that s 22 had no operation because of their finding that the offence was not one relating to property. Deane J drew a distinction between an offence that was concerned to prohibit the extraction of minerals owned by the prosecution from a natural forest without the payment of royalties, on the one hand, with an offence that prohibited such mining as a general conservation measure intended to protect the forest from all mining activities, on the other. In the first of those situations, his Honour considered that a claim of right could be raised where there was honest belief in ownership of the relevant minerals,

whereas the claim of right provision would have no relevance with the conservation example because ownership of the minerals in that case was irrelevant to the issue of criminal responsibility. On this view, the Fauna Protection Act 1974 (Qld) s 54 created a general conservation provision for the protection of fauna in its habitat and the provision could not be utilised to ground a claim of right for that reason. His Honour stated at CLR 583: … the general words of s 54(1) are such as to make the taking or keeping of prescribed fauna by a person an offence regardless of whether the person is exercising what would, if the criminal law creating the offence had not been enacted, have been rights of ownership or traditional rights of hunting with respect to that fauna. That being so, a genuine claim of ownership or hunting rights with respect to the fauna no more constitutes the basis of a defence of claim of right than does a genuine belief by a drug trafficker of ownership of the drugs in which he deals.

Toohey and Gaudron JJ adopted the approach outlined above from Pollard [1962] QWN 13. The claim of right arose because the defendant honestly believed he had the right to make use of the plain turkeys: at 603, 609.50

No intention to defraud 8.30 For the person to avoid criminal responsibility on the basis of claim of right, there must be no intention to defraud. It is the act of the accused that is to be done in the exercise of an honest claim of right and without intention to defraud. In Hopley [1915] 11 Cr App R 248 at 250, dealing with a charge of forgery, Ridley J said:51 Intent to defraud is a necessary element in many offences, but there are different forms of it. One case is where there is no claim at all; there is no question about the

[page 140] intent there. Another case is where there is a genuine claim which a man could prove if he adopted proper means, but in respect of which he uses documents, which are not genuine. Because he might have done a certain thing honestly it does not follow that he cannot be convicted if he uses false documents; the jury may well find an intent to defraud … That is not to say that they must, but there is evidence on which they can do so.

The Western Australian Court of Criminal Appeal recently noted that, on a charge of fraud in which intention to defraud is an element of the offence, where an accused claims that he or she has an honest claim of right to the property in issue, that claim is relevant to whether there is an intention to defraud. In this situation, therefore, there is no scope for the operation of s 22.52

Dishonest assertion of claim 8.31 If the means used to assert the claim of right are dishonest, an intent to deprive by deceit (to defraud) may appear, and the evidence of honest claim of right without intention to defraud would not be sufficient to satisfy the accused’s evidential onus. Thus, the provision requires evidence of an honest claim of right pursued honestly before the accused’s evidential onus is discharged.53

Acts independent of will and accident — Code (Qld) s 23(1) and (WA) s 23A 8.32 The Code (Qld) s 23 contains two excuses, while the Code (WA) now provides separately for these two excuses in ss 23A and 23B, following the 2008 amendments to that Code. The first excuse, found in the Code (WA) s 23A and the first limb of the Code (Qld) s 23, is that a person is not criminally responsible for an act that occurs independently of the exercise of that person’s will.54 The second excuse, found in the Code (WA) s 23B and the second limb of the Code (Qld) s 23, is that a person is not criminally responsible for an event that occurs by accident.55 Before considering the operation of these two excuses, reference will be made to other propositions that are referred to in the Code (Qld) s 23 and the Code (WA) ss 23, 23A and 23B. These relate to intention, motive and the requirement that both excuses are to be read subject to the Code provisions relating to negligence.

Intention

8.33 Pursuant to the Code (Qld) s 23(2) and (WA) s 23(1), unless the intention to cause a particular result is expressly declared to be an element of the offence constituted by an act or omission, the result intended to be caused by such act or omission is immaterial in so far as criminal responsibility is concerned.

Code provisions referring to intention 8.34 There are many Code provisions that make express reference to intention. For example, in the Code (Qld) s 317(e) and (WA) s 294(1), the crime of doing [page 141] grievous bodily harm56 is established and the section expressly requires that the accused has acted with any one of several stated intentions, such as an intention to maim, disfigure or disable the victim. Compare that provision with the Code (Qld) s 320 and (WA) s 297, which also establishes the crime of doing grievous bodily harm, but which makes no reference to intention. The unlawful act may be the same under both provisions, as may the injury to the victim, but the element of intention must be established by the prosecution under the first provision which, consistent with the penalty provided, is much more serious. The effect of the Code (Qld) s 23(2) and (WA) s 23(1) is that the intention with which the accused acted in the case of a charge brought under the Code (Qld) s 320 and (WA) s 297 is not relevant to the criminal responsibility of the accused.

Interpretation of ‘intention’ 8.35 When intention is included as an element of an offence, a subjective analysis is required. This is somewhat artificial in that the magistrate or the jury, as arbiter of fact, must decide whether such a state of mind existed at the time of the alleged commission of the offence. The intention will usually be inferred from what the accused

has actually done and from the surrounding circumstances.57 In its most commonly understood interpretation, intention encompasses the desire to bring about a particular result, and the foresight that the result will follow from the accused’s actions. In many circumstances, such an interpretation may be inadequate. Thus, it may not extend to the person who, for the purpose of obtaining insurance moneys, causes an aircraft to explode, thereby killing the passengers. The resultant killings would clearly be foreseeable by the accused, but not necessarily desired. In Vallance (1961) 108 CLR 56; [1963] ALR 461, it was suggested that, for the purposes of the law, desire is not a necessary element of intention. Windeyer J said at CLR 82: The common law … says that a man, who actually realises what must be, or very probably will be, the consequence of what he does, does it intending that consequence. The word ‘intentional’ in the Code carries, I think, the concepts of the common law. It is, I may add, in my view undesirable to insist upon desire of consequences as an element in intention. There is a risk of introducing an emotional ingredient into an intellectual concept. A man may seek to produce a result while regretting the need to do so.

In Willmot (No 2) [1985] 2 Qd R 413, the Queensland Court of Criminal Appeal confirmed the view that intention does not depend upon the notion of desire: at 415 and 418. Further, Connolly J referred to the ordinary and natural meaning of the word ‘intends’ as being ‘to mean, to have in mind’. His Honour also referred to the Shorter Oxford English Dictionary meaning of the term as involving ‘the directing of the mind, having a purpose or design’. He considered that a jury direction should avoid elaboration or paraphrasing of what is meant by intent. While recognising that the jury should be told, in an appropriate case, that intention is the same as motive or desire, he held that it was, essentially, a matter for the jury to determine [page 142] whether intention is established on the whole of the evidence before it: at 418–19.58 He further concluded that a jury may infer intention from

evidence that the accused foresaw the consequence as a probable result of his action or inaction.59 This idea that intention may be inferred from foresight of result must now be regarded as no longer good law, following the very recent decision of the High Court in Zaburoni [2016] HCA 12. In that case the appellant had been convicted of the intentional infliction of transmitting a serious disease, contrary to s 317(b) of the Code (Qld). The appellant had lied to the victim about his HIV status. She contracted the disease following unprotected intercourse with the appellant. A majority of the High Court held at [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.

Ultimately the High Court decided that the evidence could not support an inference of intention to transmit the disease. The appellant was therefore successful in his appeal against his conviction of the s 317(b) offence, and instead a conviction was substituted of the s 320 offence. It is axiomatic that the time for assessing the intent is the time of the doing of the prescribed act: Stewart [2015] QCA 231.

Recklessness 8.36 Having made reference to intention, it is useful to consider another subjective concept, that is, recklessness. The term is not used in the Codes but may be defined as the wrongful disregard of a foreseen risk. It connotes that state of mind in which one foresees the possibility or likelihood, although not the certainty, of one’s actions producing a particular result that is not intended, but where one nevertheless takes the risk of the occurrence of the unintended result. If intention is defined in terms of foresight only, the distinction between intention and recklessness becomes blurred. At common law,

it is not always necessary to make this distinction. Thus, malice aforethought, the mens rea necessary for murder, is constituted either by an intention to cause death or grievous bodily harm or by knowledge that the act done will probably cause death or grievous bodily harm.60 Although the Codes do not utilise the concept of recklessness directly, it has been imported into the meaning of the term ‘wilful’ in a range of property offences under the Code such as wilful damage in the Code (Qld) s 469 and criminal damage in the Code (WA) s 444.61 [page 143]

Motive 8.37 Pursuant to the Code (Qld) s 23(3) and (WA) s 23(2), unless otherwise expressly declared, the 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. In Hyam [1975] AC 55 at 73, Lord Hailsham referred to motive as meaning an emotion prompting an act: The motive for murder in this sense may be jealousy, fear, hatred, desire for money, perverted lust, or even, as in so-called ‘mercy killings’, compassion or love. In this sense emotion which gives rise to murder is entirely distinct from intention or purpose. It is the emotion which gives rise to the intention and it is the latter not the former which converts an actus reus into a criminal act.

This interpretation of ‘motive’ is clearly reflected in s 23. However, while motive may well be immaterial in so far as criminal responsibility is concerned, it is still relevant in the conduct of a criminal trial. Thus, evidence of motive is admissible to prove not only the intent with which an accused did an act, but also to prove that the accused did the act itself.62 Nonetheless, once the act or intent is proved, the motive that induced the accused to do the act or form the intention is immaterial in so far as criminal responsibility is concerned. Of course, such evidence of motive may influence the trial judge on the question of sentence if the accused is convicted.

Criminal negligence 8.38 The introductory words of the Code (Qld) s 23(1) and the Code (WA) ss 23A(1) and 23B(1) contain a proviso that requires that the excuses of unwilled act and accident operate subject to the express provisions of the Code relating to negligent acts and omissions. This means that, where criminal negligence is established, these excuses in the Codes are unavailable.63 The provisions embraced by the proviso are the duty provisions in the Code: see 8.38–8.44. In the law of torts, a person who owes a duty of care to another will be negligent if he or she fails to exercise the degree of care a reasonable person would exercise in relation to the discharge of that duty. In criminal law, too, certain duties are imposed and, under the Codes, they are found in Ch 27. The duties arising under the Code provisions are fewer than those at common law; however, it is possible that the common law duties could be relied upon as a basis for liability. In MacDonald & MacDonald [1904] St R Qd 151 at 177, Chubb J expressed the opinion that the Code did not pretend to be exhaustive of the common law and that there may be common law duties that could be relied upon.

Duty provisions in the Codes 8.39 Some of the Code provisions cast a duty on classes of persons, for example, parents and employers and those in charge of others, to provide certain minimum standards, described as the necessaries of life, to a person in their [page 144] charge.64 Other provisions require persons doing dangerous acts, or who are in charge of dangerous things, to use reasonable care.65 These duty provisions do not, in themselves, create offences.66 Rather, they are concerned with issues of causation in relation to offences against the person: see 12.20. According to their terms, where the relevant duty has been breached by a person, that person is taken to have

caused any consequence to life, health or safety of anyone for whom the duty was imposed. Thus, if a parent fails to provide necessaries to a child under the age of 16 years in accordance with the statutory duty imposed by the Code (Qld) s 286 and (WA) s 263, the parent may be convicted of an offence against the person such as: murder;67 manslaughter;68 failure to supply necessaries;69 doing bodily harm or endangering life, health or safety;70 a negligent act causing harm;71 or, perhaps, unlawfully doing grievous bodily harm.72 The above convictions will depend upon what the consequences of the omission are and the intent, if any, with which the omission is made. There will be no offence under the duty provisions themselves.

Requirement of reasonableness 8.40 The term ‘negligence’ is not used expressly in the duty provisions of the Codes and the term ‘reasonable’ is used in only some of them to indicate the standard of care required. It is used in that way in the Code (Qld) s 288 and (WA) s 265 for the duty of persons doing dangerous acts and in (Qld) s 289 and (WA) s 266 for the duty of persons in charge of dangerous things. The term is also used in the Code (Qld) s 286 to describe the nature of the precautions required to be taken by a person who has the care of a child.73 It is not expressly referred to in the remaining duty provisions, which are: the duty to provide necessaries of life;74 the duty to do certain acts;75 and the duty of the head of the family.76 [page 145]

8.41 Nevertheless, even where reasonableness is not specifically included in the provision, reference will be made to the reasonable person to determine the required standard of care. In MacDonald & MacDonald [1904] St R Qd 151, a mother and stepfather were convicted of the wilful murder of their 15-year-old daughter on the basis of breach of the duty in the Code (Qld) s 285 and (WA) s 262 to provide the necessaries of life, in that case food and medical treatment. Resort was had to the concept of reasonableness to determine what necessaries were and what the word ‘necessary’ meant. Cooper CJ said at 170: It was the prisoners’ duty, therefore, to provide medical aid, food, and clothing, not according to any exaggerated opinion of supersensitive or over-refined persons, but according to the plain common sense ideas of ordinary English people. It was clearly the duty of both prisoners to use efforts reasonable for persons in their position to secure necessary medical assistance and, if the male prisoner neglected to do so and the female prisoner, intending to cause death, purposefully refrained from any attempt either to induce him to send for a doctor, or to procure a doctor’s assistance herself, she was guilty of murder if death was the result of such negligence.

Thus, all of the duty provisions give rise to issues of reasonableness and, therefore, of negligence, and they have been held to be the provisions relating to negligence for the purposes of applying the proviso to the operation of the excuses.77

Distinction between civil and criminal negligence 8.42 The standard of care required in negligence as it arises in criminal law is more onerous than it is in the law of torts. In Bateman (1925) 19 Cr App R 8 at 11–12, the English Court of Criminal Appeal held that, at common law, in order to establish criminal liability in contrast with civil liability, it must be proved that: … the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment.

8.43 This common law distinction between civil and criminal negligence has been imported into the Codes.78 The test of negligence under the Codes is an objective one.79

Dangerous acts and things 8.44 The interpretation to be applied to the term ‘dangerous’ in the Code (Qld) ss 288 and 289 and (WA) ss 265 and 266 has occasioned some difference of judicial opinion. The weight of authority is to the effect that the thing in question need not be dangerous per se but may qualify if it can be used dangerously. Acceptance of this broader view of the term has led to the provision being applied to a wide range of things. In Dabelstein [1966] Qd R 411, a sharpened lead pencil was held to be a dangerous thing for the purposes of the Code (Qld) s 289 and (WA) s 266, and [page 146] in Pacino (1998) 105 A Crim R 309, the accused’s four dogs were held to meet the terms of the provision: see 8.83. 8.45 In Hodgetts and Jackson [1990] 1 Qd R 456, the accused persons added liquid meat preservative to a partially filled can of soft drink and placed it near a rubbish tin that they knew would be inspected by the deceased, whose practice it was to rummage through such bins. The accused persons did not think it was particularly dangerous although they variously thought that it would produce consequences such as diarrhoea or nausea and that the deceased would not swallow it because of the taste. Death ensued because of ingestion of the sodium metabisulphite in the meat preservative. On appeal against the convictions, it was held that the meat preservative was capable of being a dangerous thing, such that an absence of care or precaution in its use might endanger the life or health of someone.80

Causation 8.46 In Hodgetts and Jackson [1990] 1 Qd R 456, it was also held that, once a case is characterised as one where a criminal negligence provision is applicable, the prosecution case will be either one of causation by criminal negligence or one where causation is not

established at all. Referring to cases to which the Code (Qld) s 289 and (WA) s 266 applies, Thomas J stated that, unless a failure to perform the duties specified in the section is established, that is, unless criminal negligence is proved to the jury’s satisfaction, the accused person will ‘not [be] held to have caused the consequences’ the subject of the charge. His Honour indicated that the provisions would apply where injury arose through the use of a motor vehicle or through the use of personal violence involving unintended injuries, but expressed concern at the applicability of the provision when weapons are used and the victim is a target of the accused, stating at 462: The starting point of course is the words of s 289 itself. There has to be a dangerous thing. One also has to consider whether the essential case is that it was the absence of care or precaution in its use or management that did the damage. In a broad way, one would ask whether the case is essentially based on negligence or upon direct violence. Sometimes it may be useful to consider whether the contact between the dangerous thing and victim was willed, but this cannot be the decisive test. Skylarking with motor cars may well involve some intention by a driver to damage the victim, although not as badly as happens in the event. In such a case the criminal responsibility of the accused may still be measured in terms of criminal negligence although from case to case it will be the trial judge’s duty to decide whether it may reasonably be characterised in this way. If the essential Crown case is based on intention to cause harm, it will militate against the identification of the criminal acts as ones that proceeded from absence of care or precaution. When the case is not based on s 289, the accused must find his defence, if he can, in s 23.

Thomas J continued by stating that the problem will frequently be solved by the prosecution indicating or particularising whether the prosecution case is based on criminal negligence but, also, that this will not prevent the ultimate presentation of alternatives to the jury if the evidence fairly leaves open alternative routes [page 147] to conviction. In Griffiths (1994) 125 ALR 545; 69 ALJR 77 at 79, the High Court confirmed that the prosecution case for manslaughter could be put to the jury on the alternative bases that it was committed by voluntary act or that it was committed by criminal negligence.81

The first limb: act independent of will — Code (Qld) s 23(1)(a) and (WA) s 23A 8.47 Under the Code (WA) s 23A and the first limb of the Code (Qld) s 23, a person will not be criminally responsible for an act or omission unless it was accompanied by an exercise of the will. This reflects the common law requirement that a person’s acts must be done with volition or voluntarily. In Falconer (1990) 171 CLR 30 at 40; 96 ALR 545, in which the accused shot her husband, the (then) first limb of the Code (WA) s 23 was referred to in the following way:82 The requirement of a willed act imports no intention or desire to effect a result by the doing of the act, but merely a choice, consciously made, to do an act of the kind done. In this case, a choice to discharge the gun.

In large part, the scope of the excuse relating to acts independent of a person’s will depends on the meaning attributed to the word ‘act’ in the provision. At common law, the term ‘actus reus’ was interpreted as encompassing more than merely the physical act of the accused. In murder, for example, it included the death that resulted from the physical act. With rape, the fact that the victim had not consented was part of the actus reus. The term thus extended to the whole definition of the offence except for the mental element. The question to consider with respect to s 23 is whether ‘act’ has the same meaning as ‘actus reus’ at common law, and, if not, what is included within the scope of the term.

Meaning of ‘act’ 8.48 In Vallance (1961) 108 CLR 56; [1963] ALR 461, Dixon CJ and Windeyer J took the view that the term ‘act’, as used in the equivalent section of the Tasmanian Criminal Code (s 13), meant all the ingredients of the crime: at CLR 60, 79, 80. On the other hand, Menzies J held that the act in question, in that case, was the physical act of shooting the rifle at the victim: at 72. Kitto and Taylor JJ adopted an even narrower approach than Menzies J, saying that the act was the physical act of firing the rifle only; that is, both judges did not seem to

include the raising of the rifle to the shoulder, aiming etc, but just the pulling of the trigger: at 64 and 68.83 8.49 In Timbu Kolian (1968) 119 CLR 47; [1969] ALR 143, following a domestic dispute with his wife, the accused took a stick and aimed a blow at the source of her voice. He was unable to see her because of the darkness. The stick struck and killed their five-month-old child whom, unbeknown to the accused, his wife was holding. On appeal against conviction for manslaughter, all members of the [page 148] High Court held that s 23 was applicable. On the question of the meaning to be attributed to the word ‘act’ in the section, Windeyer and McTiernan JJ adopted the view that the term related to all the external ingredients of the crime: at CLR 64–5. Kitto, Menzies and Owen JJ did not discuss the question in detail as they held that the second substantive rule contained in s 23, relating to accident, operated to afford an excuse in the circumstances of the case. Barwick CJ stated at 54: It seems to me that what will constitute the relevant act may possibly vary with the nature of the charge. In the instant case the liability to punishment comes from killing of the child, that is to say from its death by reason of the blow struck upon his head: see ss 291, 293 and 300 of the Code. That striking, in my opinion, was an act which with its consequential death constitutes in the circumstances the offence of manslaughter. The antecedent wielding of the stick was not, in my opinion, such an act.

While Barwick CJ did not go so far as to say that ‘act’ meant all the external ingredients of the offence, it would seem that he thought it meant more than the physical act of wielding the stick alone. 8.50 Conflict in judicial opinion as to whether there should be a wide or narrow interpretation applied to ‘act’ was resolved by the High Court in Kaporonovski (1973) 133 CLR 209; 1 ALR 296. There, the accused was charged with doing grievous bodily harm and, after conviction, the trial judge postponed judgment pending the outcome of a case stated. Kaporonovski had been involved in an altercation in a

hotel bar during which he took hold of the victim’s wrist and pushed that hand, which was holding a glass of beer, towards the victim’s face. At some stage, the glass broke and it was forced into the victim’s eye, thereby causing grievous bodily harm. One of the questions composed by the trial judge was whether the first limb of s 23 was available upon the evidence. The High Court held that the provision had no application. Walsh J adverted to the two meanings of ‘act’, but found it unnecessary to choose between them in the circumstances (at CLR 220–1), whereas Gibbs J, with whom Stephen J agreed, made a clear choice when he stated at 231:84 In my opinion the ‘act’ to which the first rule refers is some physical action, apart from its consequences — the firing of the rifle rather than the wounding in Vallance v R. I thus respectfully adopt the views of Kitto and Menzies JJ in Vallance v R, supra, rather than the contrary opinion. The pushing, by the applicant, of the hand holding the glass was an action willed by the applicant. It was not an action which occurred independently of the exercise of his will and the first rule in s 23 therefore had no application.

8.51 In Falconer (1990) 171 CLR 30; 96 ALR 545, the accused was convicted of the wilful murder of her husband in circumstances where there was evidence of her acting in a ‘dissociative state’, of a history of violence by the deceased towards her and of sexual assault by him of the accused’s daughters. The accused gave evidence that, on the day of the shooting, the deceased entered her house unexpectedly, sexually assaulted her, demonstrated dramatic changes of mood and taunted her with the suggestion that the daughters would not be believed if evidence was given against him in respect of sexual offences. She said that he reached out towards her with the apparent intention of taking hold of her hair and [page 149] that, from that point, she remembered nothing until she found herself on the floor with her shotgun beside her and her husband dead on the floor nearby. The Court of Criminal Appeal in Western Australia upheld an appeal against conviction on the basis that the trial judge

had incorrectly excluded evidence of the accused’s psychological state. The court held that the evidence was admissible on the issue of whether the act of the accused that caused death was a willed act. Although it granted special leave, the High Court dismissed the appeal by the prosecution and, in respect of the meaning to be ascribed to the term ‘act’, Mason CJ, Brennan and McHugh JJ, in their joint judgment, said at CLR 38–9:85 In our opinion, the true meaning of ‘act’ in s 23 is that which Kitto J in Vallance attributed to ‘act’ in s 13(1) of the Tasmanian Code, namely, a bodily act which, either alone or in conjunction with some quality of the action, or consequence caused by it, or an accompanying state of mind, entails criminal responsibility. That meaning accords with the judgment of Menzies J in Vallance and was adopted by Gibbs and Stephen JJ in Kaporonovski, respectively. That view distinguishes between ‘act’ and ‘event’ in s 23, so that it is immaterial to the operation of the first limb of the section that the actor’s mental state does not encompass the consequences of what he is doing.

8.52 In analysing what the act was in the circumstances of the case, their Honours continued at 39: Is it merely a muscular movement of the accused’s body (the contraction of the trigger finger), or is it the discharging of the loaded gun, or is it the entirety which commences with the contraction of the trigger finger and ends with the fatal wounding of the deceased? In one sense, it can be said that the discharge of the gun is the consequence of a bodily movement of contracting the trigger finger. In our opinion, however, a consequence which the bodily movement is apt to effect and is inevitable and which occurs contemporaneously with the bodily movement is more appropriately regarded as a circumstance that identifies the character of the ‘act’ which is done by making the bodily movement: cf per Barwick CJ in Timbu Kolian. Adopting the meaning of ‘act’ expressed by Kitto J in Vallance, the act with which we are concerned in this case is the discharge by Mrs Falconer of the loaded gun; it is neither restricted to the mere contraction of the trigger finger nor does it extend to the fatal wounding of Mr Falconer.

From this, it can be seen that ‘act’, for the purposes of the unwilled act excuse, refers to some physical action of the accused over which he or she has control. It is some physical action of the accused considered apart from its consequences86 and it is this physical action that must be willed by the accused under the Code (Qld) s 23 and the Code (WA) s 23A.

Mistake as to facts

8.53 It follows that, if the physical act is done in a mistaken belief as to the facts, as was the case in Timbu Kolian (1968) 119 CLR 47; [1969] ALR 143, it is nevertheless [page 150] a willed act for the purposes of the unwilled act excuse. In Thomas (1937) 59 CLR 279 at 299–300; [1938] ALR 37, Dixon J said: Whenever a legal standard of liability includes some exercise or expression of the will, some subsidiary rules of law must be adopted with respect to mistake. States of volition are necessarily dependent upon states of fact, and a mistaken belief in the existence of circumstances cannot be separated from the manifestation of the will which it prompts. Whether consent, intention, or motive, is the element which a legal criterion of liability includes, it is undeniable that a misapprehension of fact may produce a state of mind which though apparently of the required description is yet really of an entirely different quality … The state of facts assumed must often enter into the determination of the will. It would be strange if our criminal law did not contain this principle and treat it as fundamental.

8.54 A subsidiary rule has been included in the Codes s 24 to deal with mistakes of fact: see 8.74. While a mistaken state of mind may exculpate the accused under that section, it is not evidence of an unwilled act for the purposes of that excuse. Physical acts are voluntary even if done under a mistaken impression as to the facts of a matter.87

Act independent of will 8.55 An act may occur independently of an accused’s will in a variety of circumstances.88 It may be in some quite straightforward situation, such as where the act is a reflex action following the receipt of a painful stimulus. It might be the result of a spastic movement or the result of being bumped by another person. However, the effect of any external influence such as a bump on the accused must result in the accused lacking control over his or her actions. In Peters (No 2) (2013) 65 MVR 13; [2013] WASCA 205, the Western Australian Court

of Criminal Appeal considered a case in which the appellant was charged with dangerous driving causing death. She claimed that the passenger in the car had pulled her arm while she was driving, resulting in her not ‘driving’ the car at the time of the fatal accident. Buss LA stated at [29]: Even if (the passenger) held onto and pulled the appellant’s arm, as alleged by the appellant in her evidence, at the material time the appellant retained control over, at least, the propulsion (that is, the accelerator and the brakes) of the vehicle.

Mazza J further stated at [94]: … there was no evidence at all that the appellant did not have, at the time her arm was pulled, the control of the movement and propulsion of the vehicle. She was still, having regard to the statutory definition of the word ‘drive’, driving the vehicle. Even if she was deprived of the ability to steer, that does not exclude the appellant from being the driver.

8.56 An accused’s lack of control over his or her actions might occur because, for example, the vehicle in which an accused was driving ‘aquaplaned’ on some pooled water and the driver lost control: Clark [2014] QCA 99. Or if an accused [page 151] struck a blow in a reflex defensive action without adverting to the fact that he had a glass in his hand, the striking with the glass would be an act that occurred independently of the exercise of his will: Thurlow [2015] QCA 89. It could also be due to more complex phenomena such as an involuntary act done by the accused while in a state of automatism, where bodily movements are not being consciously controlled by the brain. For example, this might occur while the accused is sleepwalking or suffering from concussion.89

Automatistic state 8.57 An automatistic state may be due to some external cause, such as the effect of physical or psychological trauma, the consumption of alcohol or another drug or it may be due to some other inherent

factor, such as the onset of an epileptic fit or a state of dissociation due to a mental illness. Section 23A of the Code (WA) and the first limb of the Code (Qld) s 23 have the potential to encompass all of those situations. However, matters relating to insanity and intoxication are specifically provided for in ss 27 and 28 of the Codes, respectively. Consequently, where the underlying reason for the automatistic state of the accused is a ‘mental disease or natural mental infirmity’ as provided for in s 27, or ‘intoxication’ as provided for in s 28, the unwilled act excuse will have no relevance. The accused will be excused by the terms of s 27, in the case of insanity, or those of s 28, in the case of intoxication, or not at all.90

Insane and non-insane automatism 8.58 Attempts to rationalise potential conflicts between the unwilled act excuse and the insanity excuse have led to a distinction being drawn between ‘insane automatism’ and ‘non-insane automatism’.91 ‘Insane automatism’ arises when the evidence discloses a ‘state of mental disease or natural infirmity’ as those words are used in s 27. The term ‘non-insane automatism’ is used in other cases, that is, where such a state of mind is not present and it is only to such situations of non-insane automatism that the Code (WA) s 23A and the Code (Qld) s 23 will apply. Obviously, the scope of the separate categories of automatism will depend on the interpretation given to the words ‘state of mental disease or natural mental infirmity’. The broader their ambit, the narrower will be the scope of non-insane automatism. It will be seen below that the issue of what amounts to insanity is a question of law for the trial judge. Whether the evidence in a particular case is sufficient to amount to insanity will be a question of fact for the jury. Where the evidence leaves open the questions of both insane and non-insane automatism, both matters may be left to the jury.92 [page 152]

Post-traumatic automatism 8.59 In Cooper v McKenna [1960] Qd R 406, the defendant was charged with dangerous driving. There was evidence that the acts relating to the driving were involuntary, as the defendant was suffering from concussion caused by a severe blow to the head received several hours earlier in a football match. In dismissing the complaint, the magistrate doubted whether the defendant was driving with any real knowledge of his actions; that is, he doubted that the defendant was acting consciously. On appeal to the Full Court, it was held that post-traumatic automatism can amount to an excuse to a dangerous driving charge, though it was one that required close scrutiny. This was because it was ‘common knowledge that “blackout”, to use one of the titles, is one of the first refuges of a guilty mind and a popular excuse’.93

Automatism resulting from physical or psychological trauma 8.60 In Falconer (1990) 171 CLR 30; 96 ALR 545, the High Court reviewed the authorities concerning the scope of the definition of unsoundness of mind for the purposes of insanity, and its relationship to the s 23 defence of unwilled act. It was held that a state of automatism involving a ‘transient non-recurrent malfunction of an otherwise sound mind’ resulting from psychological trauma should be treated no differently than the kind of physical trauma that arose in Cooper v McKenna. Mason CJ, Brennan and McHugh JJ put the matter thus at CLR 55: In a given case, if the psychological trauma causes a sound mind possessed of the requisite standard of strength, to malfunction only transiently so as to produce the effects mentioned in the M’Naghten Rules or in s 27 of the Code, the malfunction cannot be attributed to mental infirmity but to ‘the nature of man’: that is to say, a malfunction which is transient and not prone to recur and to which the mind of an ordinary person would be subject if exposed to the same psychological trauma is neither a mental disease nor a natural mental infirmity. It is neither an instance of unsoundness of mind under the Code nor an instance of insanity at common law.

The decision in Falconer does not provide a uniform ‘test’ for

identifying ‘sane automatism’; while this judgment is most frequently cited, the other judgments identify various features relevant to distinguishing between ‘sane’ and ‘insane’ automatism.94

Onus of proof 8.61 The excuse in the Code (WA) s 23A and the first limb of the Code (Qld) s 23 and the defence of insanity under s 27 differ in the way that they affect criminal responsibility. Where an act occurs independently of the exercise of a person’s will under s 23A or the first limb of s 23, no criminal responsibility attaches and an acquittal will result. On the other hand, where insanity is established in accordance with s 27 of the Codes, a qualified acquittal applies and the person is held in accordance with the state mental health legislation.95 Additionally, the need [page 153] to distinguish between circumstances associated with the unwilled act excuse, on the one hand, and those relating to unsoundness of mind or intoxication, on the other, presents a potential problem with respect to the question of onus of proof. Under the Code (WA) s 23A and the first limb of the Code (Qld) s 23, the prosecution carries the persuasive onus of proof of showing, beyond reasonable doubt, that the accused is not acting involuntarily. For insanity and unintentional intoxication, the persuasive onus of proof is borne by the accused. Nevertheless, the accused will bear an evidential onus in all of these matters: see 6.16. If the accused purports to discharge this evidential onus with respect to the unwilled act excuse but, in so doing, introduces evidence that tends to show unsoundness of mind or unintentional intoxication, s 26 of the Codes becomes applicable and the accused will have the persuasive onus of proof with respect to that state of mind. This is so even where his or her intention was to rely on s 23A or s 23. The express terms of the provisions relating to insanity and

that relating to intoxication are superimposed on these sections for matters within their respective scopes.96 8.62 In relation to the excuse of non-insane automatism under s 23A of the Code (WA) and the first limb of the Code (Qld) s 23, while the prosecution bears the persuasive onus of proof, an evidential onus rests with the accused in order to overcome a presumption of fact that a person, apparently conscious, is acting voluntarily. The matter was referred to in Falconer (1990) 171 CLR 30 at 40–1; 96 ALR 545 per Mason CJ, Brennan and McHugh JJ:97 Keeping steadily in mind that the concepts of will and voluntariness relate merely to what is done, not to the consequences of what is done, it would be an exceptional case in which a person, apparently conscious, committed an act proscribed as an element in a criminal offence without choosing to do so — or, at the least, without running the risk of doing so … the presumption that the acts of a person, apparently conscious, are willed or voluntary is an inference of fact and, as a matter of fact, there must be good grounds for refusing to draw the inference. Generally speaking, grounds for refusing to draw the inference appear only when there are grounds for believing that the actor is unable to control his actions. Although the prosecution bears the ultimate onus of proving beyond reasonable doubt that an act which is an element of an offence charged was a willed act or, at common law, was done voluntarily, the prosecution may rely on the inference that an act done by an apparently conscious actor is willed or voluntary to discharge that onus unless there are grounds for believing that the accused was unable to control that act.

The second limb: event that occurs by accident — Code (Qld) s 23(1)(b) and (WA) s 23B98 8.63 The second limb of the Code (Qld) s 23 and (WA) s 23B relieves a person from criminal responsibility for an event that occurs by accident. It has been interpreted by the courts to reflect the distinction, referred to above, between willed acts and intended results. A recent amendment to the Queensland Code [page 154] has explicitly incorporated into the Code the words from the cases that defined what an event occurring by accident were. So, s 23(1)(b)

of the Code (Qld) now provides that a person is not criminally responsible for an event that the person does not foresee as a possible consequence and an ordinary person would not forseee as a possible consequence. In Western Australia, the 2008 amendments to the Code did not include an explicit provision on the meaning of an accidental event, but a combined reading of s 23B(3) and (4) (which deal with the case of the ‘thin skull’ victim) necessarily implies the same result as that effected by s 23(1)(b) of the Code (Qld).

Meaning of event 8.64 The event referred to in the provisions is the result that is brought about by the accused’s conduct. Thus, in homicide cases, it will be the death of the victim.99 In other personal injury cases, the event in question will be the wounding; or the grievous bodily harm suffered by the victim; or the touching that constitutes an assault.100 The provision may also have application with certain property offences; for example, wilful damage to property. In Kissier (1982) 7 A Crim R 171, the accused was charged with the wilful and unlawful destruction of a pane of glass and the Court of Criminal Appeal in Queensland referred to the breaking of the glass as being the event in question: at 172.101

What does ‘by accident’ mean? 8.65 The test to be applied for determining whether an event occurred by accident incorporates both subjective and objective components. Gibbs J succinctly stated the test in Kaporonovski (1973) 133 CLR 209 at 231; 1 ALR 296:102 It must now be regarded as settled that an event occurs by accident within the meaning of the rule if it was a consequence which was not in fact intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person.

8.66 In Taiters [1997] 1 Qd R 333, the accused was charged with manslaughter in respect of the death of the victim, who fell and struck his head on the concrete footpath during a street fight with the accused. After an intimation by the trial judge that there was

insufficient evidence for manslaughter to be put to the jury, the prosecution entered a nolle prosequi which brought those proceedings to an end. The Attorney-General then referred the matter to the Court of Appeal for clarification of the law in respect of accident.103 The court accepted that the summary [page 155] by Gibbs J in Kaporonovski correctly nominated the elements that comprise the test for accident but preferred a formulation expressed in positive rather than negative terms, saying at 338: The Crown is obliged to establish that the accused intended that the event in question should occur or foresaw it as a possible outcome, or that an ordinary person in the position of the accused would reasonably have foreseen the event as a possible outcome.

As that form of the test reveals, the persuasive onus of proof in relation to accident rests with the prosecution, which must negative the excuse beyond reasonable doubt, although the evidential onus rests with the accused.104 With offences of specific intent, such as murder, the excuse of accident is not available to an accused if the jury is satisfied that the element of intention has been established. This is because it would be inconsistent to find that the accused had the requisite intention and also caused the event charged by accident.105 The Codes now contain specific reference to the objective/subjective formulation. The Queensland provision has been outlined above. As also noted above, the Code (WA) impliedly provides for the same test through a combined reading of s 23B(3) and (4). Section 23B(3) refers to the situation of a person with an inherent weakness (see below), while s 23B(4) states that a person will be responsible for the victim’s death or grievous bodily harm in the circumstances prescribed in s 23B(3): (a) even if the other person did not intend or foresee the death or grievous bodily harm; and (b) even if the death or grievous bodily harm was not reasonably foreseeable.

The Court of Appeal in Taiters [1997] 1 Qd R 333 at 338 also referred to the ‘degree’ of foreseeability that is required of a jury in considering the test for accident. The jury is to be directed that, in considering the possibility of an outcome, it should exclude possibilities that are no more than remote or speculative.106. So, in Wyborn [2013] QCA 400, where the defendant applied a scalding liquid to the face and head of the accused, the accused suffered blistering and swelling of his upper airways. He was required to remain immobile to undertake medical treatment. The Crown’s case was that, while he was immobile, a deep vein thrombosis developed, causing a pulmonary embolism. The defendant was convicted of manslaughter. The Court of Appeal confirmed at [50] that the trial judge’s direction to the jury that: In order to convict, the Crown must satisfy you beyond reasonable doubt that an ordinary person in the defendant’s position would reasonably have foreseen Mr McCarthy’s death as a possible outcome of causing hot liquid to come into contact with the deceased’s face, and in determining whether death would reasonably have been foreseen as a possible consequence, you disregard possibilities that are remote or speculative.

[page 156]

Intervening event: inherent weakness 8.67 In a number of cases the victim’s death has been associated with some form of constitutional or inherent weakness unknown to the defendant. In these cases, it has been suggested that, before an event will have occurred by accident, there must have been some occurrence or happening that intervenes between the willed act of the accused and the event comprising the offence charged.107 This is separate to the question of causation which must be established before the issue of accident arises. The distinction between causation and accidental event was recently considered by the Western Australian Court of Criminal Appeal in Hill [2015] WASCA 17. In that case, the appellant was convicted of manslaughter in circumstances where the victim was found to have suffered various bodily injuries that were

consistent with a violent assault. At trial, the appellant’s counsel argued that the victim had a pre-disposition to seizures, meaning that death was not a foreseeable outcome of the assault. However, on appeal the appellant sought to additionally argue that the evidence of an expert witness as to the effect of the injuries was evidence of an accidental event. The appeal directly raised the relationship between establishing causation (the responsibility of the prosecution to prove) and the excuse of accidental event (which, if raised by the defendant, the prosecution must disprove). The court held that the evidence relating to the effect of the injuries was an issue of causation rather than accidental event, but that in any event the directions of the trial judge on the expert witness were sufficient to address the issue of foreseeability. The court observed at [60]: Causation is concerned with whether the acts of the appellant contributed in a material way to the death. Accident is concerned with whether it was foreseeable that the acts would cause death. The issues are different, but related. Both require consideration of not only the forensic evidence but also the whole of the evidence. If the appellant’s acts caused the death then this is likely to be because of the nature of the injuries that were inflicted. This says something about the acts that caused those injuries. Accident would only produce a different result if the acts were of such a nature as to make death an unforeseeable consequence, notwithstanding that they caused death on this occasion

Concepts of foreseeability and intervening event have been associated with both causation and accidental event. Following Gibbs J’s statement in Kaporonovski (see above) and the amendments to both Codes, it is clear that foreseeability is established as the test for accidental event. While the concept of an intervening event has been traditionally associated with causation, cases involving a victim with an inherent weakness raised the notion of an intervening event in relation to the applicability or not of the accidental event excuse. Therefore, in cases where the victim died after a violent blow in circumstances where the inherent weakness (for example, a weak blood vessel in the brain) meant that the victim died, when a person of normal constitution would not have died, the courts had required there to be a separate intervening event before the accident excuse could be raised. 8.68

However, in Van Den Bemd [1995] 1 Qd R 401, the Queensland

Court of Appeal applied the second limb of the Code (Qld) s 23 without reference to the [page 157] need for such intervening cause, resulting in a controversial decision. There, the accused was convicted of manslaughter where the death of the victim arose after a fight in a hotel bar. The death was caused by a subarachnoid haemorrhage which, according to a pathologist’s evidence, was the result of a blow struck to the left side of the neck. There was also evidence that the haemorrhage would be extremely unlikely except in a person having a ‘peculiar weakness’ of that kind. In that sense, the facts in Van Den Bemd were similar to those in other cases where a conviction for manslaughter was upheld where death was brought about because of some inherent weakness in the victim, thereby reflecting the doctrine applied in the ‘eggshell skull’ cases in torts; that is, that one takes one’s victim as one finds him or her.108 8.69 This was inconsistent with the previous decision in Martyr [1962] Qd R 398 in which the accused was held to be criminally responsible for causing death in circumstances where such death would not have been reasonably foreseeable. The accused struck a blow, which would not seriously injure a normal person, to the victim’s chin. Death quickly followed because of a defect in the constitution of the blood vessels in the victim’s brain. The Queensland Court of Criminal Appeal held that the second limb of the Code (Qld) s 23 had no application where death is the direct and immediate result of an intentional act: at 415 and 417. This interpretation was approved by the High Court in Mamote-Kulang (1964) 111 CLR 62; [1964] ALR 1046 where, again, the victim was suffering from a constitutional defect in the form of an enlarged spleen. 8.70 In Van Den Bemd [1995] 1 Qd R 401, the Court of Appeal declined to follow those inherent weakness cases and subsumed them under the general principles of foreseeability that govern the

operation of the second limb of s 23 (and now s 23A of the Code (WA)). The court said at 405: … criminal responsibility under the second rule depended on whether the grievous bodily harm sustained was so ‘unlikely’ a consequence of the act that no ordinary person would have foreseen it. The test thus appears to be one of foreseeability of the happening of the consequence as a matter of probability or ‘likelihood’.109

8.71 In Queensland, the effect of the decision in Van Den Bemd has been overcome by the enactment of a proviso to the second limb of s 23, which restores the doctrine that one takes one’s victim as one finds him or her.110 Under that proviso, when the second limb of s 23 is considered, the accused will not be excused from criminal responsibility for death or grievous bodily harm that results to a victim because of a defect, weakness or abnormality, even though the accused did not intend or foresee or could not reasonably foresee the death or grievous bodily harm.111 8.72 In Steindl [2002] 2 Qd R 542, the accused struck the victim on the face and this resulted in an injury to his eye, which had previously undergone surgical lens implantation because of a cataract. There was medical evidence that, as a result [page 158] of being struck, the lens implant was displaced so that it protruded through the pupil and that, if left untreated, it would cause permanent injury. The Court of Appeal held that the phrase ‘defect, weakness or abnormality’ in s 23(1A) should not be limited to those bodily abnormalities that occur naturally and applied it to the grievous bodily harm suffered by the victim. This meant that the excuse of accident was not available to the accused. 8.73 While the decision in Van Den Bemd [1995] 1 Qd R 401 altered the law for a short time in Queensland, the approach adopted in that case has not been followed in Western Australia. In Hubert (1993) 67 A Crim R 181, the Court of Criminal Appeal in Western Australia adopted as a correct statement of law an extract that included a

reference to the immateriality of accident as an excuse where death ‘only results because of some constitutional defect unknown to the person responsible for the blow’. Despite that, the court also made it clear that it was not necessary for an intervening event to occur before an event can occur by accident. Murray J stated at 194: Whilst it may be the case that the event for which criminal responsibility is sought to be imposed upon the accused may be held to occur by accident because of the occurrence of some intervening consequence or event caused by a willed act, that does not in my opinion make that intervening event or consequence the relevant event for the purposes of s 23.

According to this view, the presence of such an intervening event may assist in the finding that an event was accidental but, even in the absence of such intervention, an accident may arise. The position has now been largely clarified with the introduction of s 23B(3) to the Code (WA). This states that: If death or grievous bodily harm — (a) is directly caused to a victim by another person’s act that involves a deliberate use of force; but (b) would not have occurred but for an abnormality, defect or weakness in the victim the person is not, for that reason alone, excused from criminal responsibility for the death or grievous bodily harm.

Mistake of fact — Code (Qld) s 24(1) and (WA) s 24 first para112 Categories of mistake of fact 8.74 Where a person does an act that would constitute an offence, but where the person is acting under a mistaken belief as to relevant facts, criminal responsibility may be modified or eliminated where the terms of the Code (Qld) and (WA) s 24 are satisfied. At common law, there are two categories of mistake of fact that may affect criminal responsibility. When some mental state, for example, intention or

[page 159] knowledge, is a constituent element of the offence charged, the onus of establishing that such mental state existed rests with the prosecution. The first aspect of mistake of fact arises when a mistaken belief by the accused bears on the question of whether he or she possessed such mental state. Second, there is the common law defence of mistake. In Tolson (1889) 23 QBD 168, Cave J put it thus at 181:113 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.

8.75 Under the Codes, the first type of excusable mistake at common law is not expressly mentioned and the prosecution must prove the existence of any specific intention defined as an element of any offence. If a mistaken belief suggests that the accused did not possess such an intent, then the prosecution will fail. With regard to offences not having a specific intention as a defined element, the Code (Qld) s 23 and the Code (WA) ss 23A and 23B have potential relevance. However, because of the narrow meaning given to the word ‘act’ in the first limb of that provision (Qld) and s 23A (WA), a person cannot rely upon the independence of will excuse even though there was a mistake as to the facts existing when the physical action, which is part of the offence charged, was done voluntarily. In those circumstances the act is willed, even though done under a mistaken belief. Further, the event will not be an accident under the second limb of s 23 (Qld) or s 23B (WA) simply because the accused is acting under a mistaken belief as to the existing facts. This excuse exculpates an accused for unintended, unforeseen and unforeseeable consequences of willed acts. A consequence can be foreseeable by a reasonable person even though not foreseen, because of a mistaken belief, by the accused. 8.76 The second type of excusable mistake at common law is encompassed by s 24 of the Codes. In relation to the onus of proof and

the operation of that provision, Philp J said, in Loveday v Ayre [1955] St R Qd 264 at 267–8:114 Whatever may be the position at common law, a mistake is not a defence in Queensland — it is not a matter which the defendant must prove on the balance of probabilities. Section 24 provides that a person is ‘not criminally responsible’ if he acts under an honest and reasonable mistake of fact; the onus then is on the prosecutor to satisfy the court beyond reasonable doubt of the non-existence of the operative mistake. Of course the section does not operate unless there be some evidence, looking at the case as a whole, of operative mistake.

Accordingly, mistake of fact under the Code is an excuse, as distinct from a defence such as insanity, and is a matter that the prosecution must negative beyond reasonable doubt once the evidential onus has been discharged by the accused. [page 160]

Mistake of fact and mistake of law 8.77 In considering the operation of s 24, the distinction between mistakes of fact and mistakes of law must be kept in mind. While a mistake of fact, where the circumstances outlined above are satisfied, will be an excuse, that is not the case with mistakes of law: see 8.14–8.17. In Ostrowski v Palmer (2004) 218 CLR 493; 206 ALR 422, a commercial fisherman was convicted of having fished for rock lobsters in a closed zone contrary to fishing regulations.115 He had relied on a copy of the regulations supplied to him by the office of Fisheries Western Australia. However, the copy given to him was incomplete in that it omitted an amendment that closed off the area in which he was apprehended. The High Court held that the accused was acting under a mistake of law, not fact, and that the Code (WA) s 24 was therefore not applicable: see 8.17.

Positive belief in state of things required 8.78 For mistake of fact to arise, there must be a mistaken belief in the relevant state of things and the belief must be positively held, in a

subjective sense.116 Mere inadvertence will not suffice. In Larson v GJ Coles & Co Ltd (1984) 13 A Crim R 109, the corporation was charged with selling a falsely labelled package of meat contrary to the Food Act 1981 (Qld) s 114(2). The pre-packaged meat bore a date of packaging some 3 days after it was placed on sale. The mistake arose because of the use of an obsolete roll of labels which had been fed into an automatic labelling machine. Consequently, the ‘use by’ date was incorrectly printed in the space provided for the date of packaging. The Queensland Court of Criminal Appeal held that a mistake of fact would not arise in circumstances where there was inadvertence to the state of things. Connolly J stated at 111:117 Nevertheless there must in my judgment be some evidence of a belief that the label in question was ‘use by’ and not merely evidence of the state of affairs in which no attention was given to the matter whether for good reason or bad.

The Code (Qld) and (WA) s 24 requires an honest belief. However, apart from the need for the belief to be positively held, it is doubtful if anything turns on the word ‘honest’, as a person either has or does not have a belief in the existence of a state of things. It has recently been affirmed in Butler [2013] WASCA 242 that an accused’s intellectual disability is relevant in assessing what the defendant actually believed. Buss JA noted at [129]: Thirdly, as to the requirement that the accused have an honest belief, this requirement is wholly subjective. The existence of any such belief, may in a particular case, be influenced by the particular accused’s personal attributes and characteristics including an intellectual disability. Also the existence of any such belief may, in a particular case, be inferred from the accused’s evidence as to the relevant facts and circumstances without the accused having expressly said that he or she had an

[page 161] honest belief as to consent … I consider that his Honour did not take into account, in applying the wholly subjective test, the appellant’s significant intellectual disability.

From this statement it appears that trial judges may now be under a duty to positively draw the jury’s attention to any particular

characteristic of the defendant that may affect whether the defendant actually held the relevant belief or not.

Mistake must be reasonable 8.79 In addition to the requirement that the mistake be positively held, it must also be reasonable. In the circumstances of a particular case, it will be a question of fact as to whether this element is established.118 8.80 In some cases, a wholly objective test has been applied so that it must be a mistake that an ordinary or reasonable person could make. In Daniels (1989) 1 WAR 435 at 445, the Court of Criminal Appeal in Western Australia upheld the trial judge’s direction to the jury that ‘the reasonable man is sober’.119 The court held that intoxication is relevant to the question of whether an accused person has an actual belief in the existence of a state of things and that, if the person does have that belief by reason of his or her state of intoxication at the time, it would only avail him or her of an excuse under the provision if a reasonable person would have been mistaken in that situation. Accordingly, a mistake may be reasonable even where the accused is in a state of intoxication. 8.81 In other cases, the focus has been on whether there were reasonable grounds for the belief.120 This imports a mixture of subjective and objective elements so that ‘the personal attributes and characteristics of the accused that are capable of affecting his or her appreciation or perception of the circumstances’ may be taken into account.121 In Aubertin (2006) 33 WAR 87 at 96, these were described as covering matters over which the accused has no control, such as age, gender, ethnicity as well as physical, intellectual and other disabilities, but the court expressed the opinion that it would not extend to intoxication. In that case, the accused was convicted of a sexual offence and the trial judge had directed to the jury in relation to this excuse that he mistakenly believed that the victim had consented. It was held, on appeal, that the trial judge had correctly directed the jury that, in respect of the Code (WA) s 24, the reasonableness of the

relevant belief had to be judged by the standard of a reasonable person of the same age, background and level of intellectual functioning as the accused and who was familiar with all the circumstances that were known to the accused at the relevant time. Similarly, in Mrzljak [2005] 1 Qd R 308, it was held that the accused’s intellectual impairment [page 162] and language difficulties were relevant to the assessment of the reasonableness of his belief for the purposes of the Code (Qld) s 24.122 More recently, in Butler [2013] WASCA 242, the Western Australian Court of Criminal Appeal held that the trial judge was in error in concluding that there was no evidence before the jury of a s 24 defence in a charge of sexual intercourse without consent. The court found that the complainant’s conduct was not obviously consistent with the withdrawal of consent, and that the appellant’s intellectual disability was therefore important to the question of whether his belief that she was consenting was reasonable in the circumstances, in that a person with such a disability would have been confused by the complainant’s statement and conduct. Following Aubertin, the court confirmed that an intellectual disability is among the personal attributes and characteristics of an accused that are capable of affecting his or her understanding of the relevant circumstances. 8.82 There are a number of cases that have indicated what evidence might be relevant in determining whether a belief in a state of facts is reasonable or not. This evidence has included that of a common perception as to a fact, upon which the defendant has relied, where the perception has been shown to be incorrect. In Anderson v Nystrom [1941] St R Qd 56, for example, the accused was charged with an offence under the State Transport Regulations in that he used a vehicle for the carriage of goods upon a traffic route without a licence or permit.123 Under the State Transport Act 1938 (Qld) Sch 11, Pt 1(m), such licence or permit was not required if the journey was not greater

than 15 miles. The evidence showed that there were two roads available to the defendant: one being less than 15 miles in length and in poor condition, the other being longer than 15 miles. The latter route was selected and the defendant thereby came within the terms of the regulation as he had not obtained the necessary licence or permit. However, he relied on s 24 in that he believed this road to be not greater than 15 miles in length. His mistaken belief was based on his measurement of the distance on a prior occasion and to a customary belief among members of the surrounding community that the distance was not greater than 15 miles. Philp J said at 68: It seems to me on the whole evidence that the magistrate was entitled to draw the inference that on a previous occasion the defendant had, by his speedometer, measured the distance and had found it to be under 15 miles. No doubt upon the evidence his speedometer was inaccurate, but a reasonable belief could be founded upon it, especially when that belief was also founded upon general reputation of the mileage. In that case, the defendant had been stopped twice by a policeman; first at a point two miles from his starting point at Dalby and, second, after he had travelled more than 15 miles. As to this, his Honour said at 68–9: It may be that when he was secondly stopped by the constable and told that he had already gone over 15 miles his belief would cease to be reasonable, but that is not the point at which his belief

[page 163] has to be determined — the belief at a point two miles from Dalby was the relevant belief. Moreover, I fail to see why a belief should cease to be reasonable because a constable tells one that it is wrong. In any event the constable’s expression of doubt at the relevant point, and his failure to warn the defendant that the distance was over 15 miles certainly do nothing to detract from the reasonableness of the defendant’s belief at that time.

His Honour went on to say that speedometers are not precision instruments and that their accuracy depended not only upon the condition of the instrument itself, but on the condition of wear of the vehicle’s tyres, so that there was nothing surprising in a variation between the estimates of the constable and of the defendant, based as they were on different speedometers of different cars. Also, his

Honour pointed out that the excess of mileage over the 15 miles was not a matter of measured fact, but of mere estimate. 8.83 In Larson v GJ Coles & Co Ltd (1984) 13 A Crim R 109, it was determined that the mistake by the corporation was not reasonable in that there was no system in place for checking the information that had been printed on the meat packages after they had been displayed for sale: see 8.77. In Timms v Darling Downs Cooperative Bacon Association Ltd [1989] 2 Qd R 264; (1988) 38 A Crim R 430, in relation to a prosecution under the Food Act 1981 (Qld), a smallgoods manufacturer was convicted of preparing, for sale, sausages that did not contain the prescribed percentage of meat. The regulations required sausages to contain 75 per cent of meat flesh, but chemical analysis variously estimated the amount of meat in the sausages to be between 67 and 72.86 per cent. There was a system in place that required workers to use a recipe that barely met the statutory requirement, with virtually no margin to spare, at 75.16 per cent of meat. An absence of consistent screening tests of the finished product after a complex manufacturing process led to a finding by the court that any belief that the regulatory requirements were met was not reasonable.124 8.84 In Pacino (1998) 105 A Crim R 309, the accused was convicted of manslaughter where the victim died as a result of severe injuries from bites inflicted by the accused’s four dogs. The prosecution case was based on criminal negligence in that the dogs were dangerous in accordance with a duty provision in the Code.125 The trial judge had declined to put mistake of fact to the jury, holding that the duty imposed by the Code provision was one that arose as a matter of law based on objective assessments. The Court of Appeal in Western Australia held that s 24 was not excluded by the terms of s 266 and that the jury should have been given the opportunity to consider the accused’s mistaken belief about the propensity of his dogs; he gave evidence that his experience led him to believe they were not a threat to the life or safety of others.126

[page 164]

Mistake must pertain to belief in a ‘state of things’ 8.85 The mistake must relate to the existence of a state of things. A common example of a state of things is whether a person is, or is not, giving consent to the doing of certain actions. So a mistaken belief as to whether a person was consenting may be relevant to liability for indecent assault (Baldwin [2014] QCA 186) or rape (Duckworth [2016] QCA 30). The definition of ‘a state of things’ was referred to in Gould and Barnes [1960] Qd R 283.127 There, the accused were convicted of the murder of a pregnant woman, who died as the result of an attempt by the appellants to conduct an abortion. They had introduced, into the woman’s uterus, a liquid produced by boiling a mixture of glycerine, Dettol and soap powder. The liquid caused a necrosis of the uterine wall and so entered the victim’s bloodstream, causing her death. Both gave evidence that they thought there was no danger in using the mixture in that way. The question for the Court of Criminal Appeal was whether the appellants’ belief as to the effect of the mixture was a belief as to the existence of a state of things. Philp J said at 291: I apprehend that if an abortionist intending abortion by douching with a harmless substance orders a bottle of that substance from a chemist who, unknown to the abortionist, supplies instead a lethal substance which the abortionist uses with a fatal result, the abortionist would not in Queensland be guilty of manslaughter. In such a case it could be said that he had an honest and reasonable but mistaken belief in the existence of a certain state of things, ie that the bottle contained the harmless substance ordered by him. But in the instant case the appellants were under no mistake as to the contents of the liquid they used — they were ignorant of, and mistaken as to the possible lethal effect of their act in using the liquid in the way they did, but that mistake was not one ‘as to the existence of a state of things’ — it was a mistake as to what consequences could flow from an act.

Accordingly, the provision will not operate if the mistaken belief relates to the consequences of the accused’s actions as opposed to the state of things.128 In Pacino (1998) 105 A Crim R 309, it was held that the question of whether the dogs that attacked and killed the victim

were such that, in the absence of care or precautions in their care or management, they might endanger the life, safety or health of a person was a state of things for the purpose of s 24: see 8.83. A mistake that is merely about the law is not a mistake about a ‘state of things’; Ostrowski v Palmer (2004) 218 CLR 493; 206 ALR 422 demonstrates the difficulties that can be associated with drawing this distinction. [page 165]

Mistake of fact not necessarily a complete excuse 8.86 Even where the evidence discloses the existence of an honest and reasonable but mistaken belief in the existence of the state of things, s 24 does not necessarily exculpate a person altogether. This is because the accused is only relieved of criminal responsibility to the same extent as if the real state of things had been such as were believed to exist.129 Consider the following example. 8.87 Suppose the accused is charged with the rape of a 14-year-old female.130 With this offence, the prosecution must prove that the victim was not consenting to sexual intercourse with the accused. Suppose that the victim was not consenting but that the accused had an honest and reasonable belief that she was consenting to his actions. Such a belief, if not negatived by the prosecution, will satisfy the mistake of fact excuse under s 24. However, on the facts as assumed, the mistake of the accused relates only to the matter of consent. If the accused is placed in the position that he believed himself to be in, he has nevertheless committed the crime of having sexual intercourse with an under-aged female, a different offence to rape or sexual penetration without consent.131 With these offences, the issue of consent is not relevant: see 14.52. Only where there is no residual offence remaining after the effect of the mistake is removed will s 24 provide a complete excuse.132 In Duong [2015] QCA 170, the accused pleaded that he thought he

was in possession of one type of prohibited drug, rather than another. The Court of Appeal pointed out that the mistaken belief was only relevant if the accused honestly and reasonably believed he was in possession of an ‘innocent and other than a dangerous drug, such as … protein powder’: at [5].

Exclusions and modifications of mistake provision 8.88 The operation of s 24 may be ‘excluded by the express or implied provisions of the law relating to the subject’.133 In one sense, this merely states the obvious principle of statutory interpretation that a later Act of Parliament can expressly or impliedly repeal or amend an earlier Act. See, for example, Drugs Misuse Act 1986 (Qld) s 129(1) (d). 8.89 Reference has been made above to this in the context of the exclusion of mens rea, generally, in relation to statutory offences in common law jurisdictions: see 8.9. It was noted that there are Code provisions that themselves impact upon the operation of s 24, namely, the Code (Qld) ss 216(4) and 229 and (WA) ss 205 and 331. These provisions modify, in particular situations, the way in which the mistake of fact excuse operates. The situations in those provisions arise where the [page 166] accused is charged with a sexual offence and where the victim is a child below a certain age or is intellectually impaired. Where the accused seeks to rely on mistake as to belief in the victim’s age or mental capacity, the onus of proof usually applicable to s 24 is reversed, so that the accused is required to prove the belief on the balance of probabilities (as opposed to simply raising evidence of the belief).134 8.90 Accordingly, while a statute may expressly or impliedly modify the operation of s 24, this will not occur merely because of the

subject matter with which the later statute deals; there needs to be either an express statement modifying its effect or an implied modification due to inconsistency between s 24 and the later statute. A concise statement of the position is to be found in Hale J’s judgment in the Full Court of Western Australia in Geraldton Fishermen’s Co-op Ltd v Munro [1963] WAR 129, where he said at 133: For the respondent it was argued that by reason of the second paragraph of s 24 the operation of the section is excluded so far as concerns any offence created by s 24A of the Fisheries Act. There is no express exclusion, but it is said that there is an implied exclusion. In my opinion, this involves solely a question of statutory construction. It may be that in some cases decided in this court this has been lost sight of, but it is now accepted that s 36 of the Criminal Code means exactly what it says and that the provisions of Chapter V apply to all statutory offences. It follows that where there is no express exclusion then s 24 and the section creating an offence must, if possible, be read together, and s 24 cannot be treated as excluded by implication, unless on a fair reading of the penal section (read of course in the context of the whole Act in which it stands) it is seen that the penal section is inconsistent with the co-existence of s 24 so that effect cannot be given to both at the same time: Brimblecombe v Duncan [1958] Qd R 8, per Philp and Matthews JJ at 12 and per Stanley J at 19; see also for the same view as to s 23, Hunt v Maloney [1959] Qd R 164. If this view is correct then decisions on the implied exclusion of the common law doctrine of mens rea cannot govern the present case. Now the mere fact that s 24A is couched in absolute language cannot by itself be an implied exclusion of s 24 of the Criminal Code: if this were so, s 24 would never apply unless a penal section itself indicated that s 24 was to apply, and this would be an inversion of what is enacted by s 24. And, in my opinion, it is not permissible to find an implied exclusion by regarding the subject matter of the particular statute. The most that such an examination can show is that it would be quite reasonable for Parliament in the particular case as a matter of policy to have excluded s 24: but if on a fair interpretation of the words used it can be seen that the two sections can stand together, then the fact that an exclusion would have been reasonable, or even the fact that an exclusion might have been expected, cannot, in my opinion, justify the adoption of a gloss on the words used so as to bring about such a result.

In the result, it was held that there was nothing in the Fisheries Act provision, whether it was read alone or in conjunction with the rest of that Act, that showed any intention on the part of parliament to exclude s 24 of the Code, or that created any difficulty in allowing the provision and the Code (WA) s 24 to stand together.135 [page 167]

In Sitek [1988] 2 Qd R 284 at 293, it was held that, where dishonesty is an element of an offence, it is appropriate not to leave mistake of fact to the jury because, if the jury takes the view that the accused had acted dishonestly, it would be inconsistent for the jury to consider that he or she was acting under an honest mistake of fact.

Extraordinary emergencies — Code (Qld) and (WA) s 25136 8.91 The Codes contain several provisions that, in limited circumstances, enable a person to escape criminal responsibility for conduct, even voluntary conduct, that brings about a result, even an intended result, where the conduct of the accused has been precipitated by an external pressure, such as the conduct of another or some other circumstance of necessity; for example: execution of law, obedience to orders, compulsion or duress;137 provocation;138 self-defence;139 defence of property;140 discipline;141 and reasonable medical necessity.142 8.92 Also included within that group of provisions is the excuse relating to extraordinary emergencies in the Code (Qld) and (WA) s 25. This provides an excuse where the accused acts because of a ‘sudden or extraordinary emergency’ such that ‘an ordinary person possessing ordinary power of self control could not reasonably be expected to act otherwise’. The Code (WA) s 25 does not make reference to the term ‘reasonable person’, but the excuse requires evidence that the act or omission of the accused was a reasonable response to the emergency in the circumstances as the accused believed them to be, and that there are reasonable grounds for that belief. In both Queensland and Western Australia, s 25 applies subject

to the provisions relating to compulsion.143 In Western Australia, the section also does not apply if ss 32, 246, 247 or 248 apply. 8.93 Few cases have been decided under the Code (Qld) and (WA) s 25. In his note to the Draft Criminal Code of Queensland, Sir Samuel Griffith said: This section gives effect to the principle that no man is expected (for the purposes of the criminal law, at all events) to be wiser or better than all mankind. It is conceived that it is a rule of the common law, as it is undoubtedly a rule upon which any jury

[page 168] would desire to act. It may perhaps be said that it sums up nearly all the common law rules as to excuses for an act which is prima facie criminal.

In McNamara [2015] QCA 99, the Court of Appeal upheld a judge’s decision to not allow the excuse of sudden or extraordinary emergency. The accused had been charged with speeding after driving at 142 km/h in a 100 km/h zone. He told the court that he had been tailgated by another vehicle and that he was trying to speed away from it. His evidence was that the car had its headlights and spotlights on and that the reflections from them in his mirrors made it difficult for him to see and to control his vehicle. He said that initially he slowed down so that the vehicle could overtake his, but it did not, so he accelerated in order to distance his vehicle from it. The court noted that the driver of the other vehicle had not manifested any intention to run the accused off the road; he had not moved his vehicle to travel in parallel with the accused’s vehicle as a first step in forcing it off the road. In addition, a number of options were open to the applicant, which together negatived a state of emergency that foreclosed other conduct. The court noted that the accused could have adjusted his mirrors; he could have adjusted his body position; or he could have pulled off the road and called the police. McNamara’s case should be contrasted with Sheldon [2014] QCA 328. In that case, the driver of a vehicle had an accident, killing the passengers in his car. This happened when a passenger dropped a safe

door (the safe having just been taken in a robbery) on the driver’s arm. The Court of Appeal held that the possibility of a defence of sudden and extraordinary emergency should have been left to the jury. 8.94 For the excuse of extraordinary emergency, the onus of proof rests with the prosecution which must, therefore, negative the excuse beyond reasonable doubt, provided the evidential onus is discharged by the accused.144

Scope of excuse 8.95 The scope of extraordinary emergency under the Codes seems broader than that of its common law counterpart of necessity. In Dudley and Stevens (1884) 14 QBD 273, the common law defence of necessity was considered. There, the accused were two shipwrecked seamen who had been adrift in an open boat with virtually no food for 20 days, after which they killed and ate the cabin boy who was with them. Four days later, they were rescued and, on returning to England, were tried and convicted of murder, although sentence of death was ultimately commuted to 6 months’ imprisonment. The tenor of Lord Coleridge’s judgment suggests that necessity can never be a defence to murder at common law but the case is not conclusive on the point, because the jury merely found that the seamen would probably not have survived if they had not behaved as they did.145 Indeed, in Re A (Children) (Conjoined Twins) [2001] Fam 147, at least one of the judges in the English Court of Appeal applied the defence of necessity to a situation that fulfilled the definition of murder, although the application of the defence was [page 169] stated to be limited to the extraordinary facts of that case.146 It is clear, however, that, provided the relevant criteria are met, the excuse has application where the alleged extraordinary emergency relates to prevention of personal injury147 or property damage.148

Ordinary person test 8.96 Section 25 has no such limitation and leaves to the jury the decision of whether a person should be criminally responsible for an act or omission done or made under the circumstances of sudden or extraordinary emergency. However, the section provides a limitation as to the nature of the emergency that will suffice and the nature of the response that will be excused. This is done through applying the ordinary person test, which introduces an objective requirement so that the proportionality of the response of the accused, as compared with the nature of the emergency, and whether alternatives were available would need to be considered.149 Although the Code (WA) s 25 does not make specific reference to the ordinary person, these same matters arise for consideration under the provision. 8.97 In Larner v Dorrington (1993) 19 MVR 75 at 79, the Supreme Court of Western Australia referred to English authority for the terms in which a jury should be directed on the issue of common law necessity as a guide to the interpretation of emergency. The court determined that affirmative responses to two questions were required, raising subjective and objective criteria, respectively:150 (i)

whether the accused person was or might have been impelled to act and did because, as a result of what he reasonably believed to be the situation, he had good cause to fear that otherwise death or serious physical injury would result; and (ii) if so, whether a sober person of reasonable firmness, sharing the characteristics of the accused person, would have responded to that situation by acting as the accused person had acted.

The objective test as outlined there requires a notional investing of the ordinary person with the characteristics of the accused. This approach has been rejected in respect of the ordinary person test in the law of provocation, with the exception of considering the age of the accused: see 12.63. Subsequently, in Dudley v Ballantyne (1998) 28 MVR 209, in which the accused relied on s 25, the only characteristic attributed to the accused by the Supreme Court of Western Australia was her age, suggesting the approach taken in Larner v Dorrington is no longer favoured.

[page 170]

In conjunction with other excuses 8.98 Section 25 may be relied upon in conjunction with other excuses. In Warner [1980] Qd R 207, the accused was convicted of dangerous driving causing death. The prosecution evidence was that the accused’s car had been involved in a high-speed race with another vehicle prior to being involved in a fatal collision. The accused gave evidence that his high-speed driving was due to his endeavours to escape the attentions of the driver of another vehicle, whom he did not know and of whom he was ‘scared’. The trial judge did not allow the excuse of extraordinary emergency to be put to the jury but the Court of Criminal Appeal held that s 25 should have been left to the jury in combination with mistake of fact under s 24. This was on the basis that a jury might not be satisfied beyond reasonable doubt that the accused was not trying to extricate himself from a terrifying situation created by the driver of the other vehicle or that, relying upon extraordinary emergency in conjunction with mistake of fact, the jury could not be satisfied beyond reasonable doubt that the accused did not honestly and reasonably believe that he was in that frightening situation.151 In Western Australia there would seem to be no occasion to rely on s 24 in this way as s 25 applies if the accused believes on reasonable grounds that a sudden or extraordinary emergency exists.

Insanity — Code (Qld) and (WA) ss 26 and 27152 The M’Naghten rules 8.99 The common law rules on insanity have their modern genesis in M’Naghten (1843) 10 Cl & Fin 200; 8 ER 718.153 In 1843, Daniel M’Naghten was acquitted by a jury on the ground of insanity following his trial for murder. The prosecution had chosen to lead no evidence in rebuttal of that given by defence witnesses that

M’Naghten was insane. Following public outcry and criticism by the Lord Chancellor, the judges of the Queen’s Bench were summoned to the House of Lords and asked a series of questions. The answers given by them, known as the M’Naghten rules, formed the foundation of the modern common law relating to the defence of insanity. Tindall LCJ responded at 208 and 722:154 … the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature 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.

[page 171] While the Code provisions relating to unsoundness of mind are not identical to those M’Naghten rules, the Code (Qld) and (WA) s 26 recites the common law presumption that the accused was of sound mind when the offence was committed.155

Presumption of sanity 8.100 The presumption of sanity arises under the Code (Qld) and (WA) s 26, which reads:156 Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.

Raising the defence 8.101 In most cases where insanity is relevant, the accused raises the issue. However, it was said obiter by Lord Denning in Bratty v Attorney-General (Northern Ireland) [1963] AC 386 at 411 that the ‘old notion’ that only the defence can raise insanity was gone, that the prosecution are entitled to raise it and, indeed, obliged to do so rather than allow a dangerous person to be at large.

Onus of proof 8.102 Under the Codes, the issue may be raised either by the prosecution or the accused. Because of the presumption of sanity, the party who raises the issue bears the onus of proof in respect of it.157 Where the defence raises unsoundness of mind, it must be discharged on the balance of probabilities.158

The prosecution 8.103 The position is less clear in respect of the standard of proof to be applied when the prosecution seeks to establish the issue. In Western Australia, it has been suggested that the criminal standard of proof applies in that situation.159 In Queensland, Re Walton [1992] 2 Qd R 551 would suggest that the matter is to be determined on the balance of probabilities, although there the Court of Criminal Appeal was concerned with the issue of fitness to plead in proceedings before the Mental Health Tribunal, which has now been replaced by the Mental Health Court: see 8.116.

The defence 8.104 Reference has been made above to the situation where the accused seeks to rely on involuntariness related to a state of automatism: see 8.54. Where the evidence points to involuntariness, the matter may fall within the ambit of the first limb of s 23 (Qld) or s 23A (WA). In that case, the persuasive burden of proof rests [page 172] with the prosecution and must be discharged beyond reasonable doubt. However, where the evidence points to insanity, the persuasive burden of proof rests with the accused, who must discharge it on the balance of probabilities. The first of those situations represents a significant procedural advantage to the accused who, for that reason,

would prefer to rely upon the unwilled act excuse rather than s 27. Nevertheless, such choice is not often open because, where the evidence tends to show unsoundness of mind, it is that defence under s 27 which must be left to the jury and not the excuse in s 23 (Qld) or s 23A (WA).160 In such a case, it is a question of law for the trial judge to determine whether the evidence of the accused’s state of mind will require a direction on insanity.161 However, it may be that the evidence points to automatism of both the non-insane and insane types — this situation was noted in Falconer. In those circumstances, it will be for the trial judge to direct the jury in respect of both the unwilled act excuse and the insanity defence.162

Definition 8.105 The substantive defence of insanity is provided for in s 27 of the Codes, which reads: (1) A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is in such a state of [Qld: mental disease or natural mental infirmity; WA: mental impairment] as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission. (2) A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters but who is not otherwise entitled to the benefit of the foregoing provisions of this section, is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.

8.106 The Western Australian and Queensland provisions were identical until amendments to the Code and new legislation relating generally to mental health commenced operation in 1997 in Western Australia.163 As a result of these amendments, the words ‘mental disease or natural mental infirmity’, as they appear in the Code (Qld) s 27(1), now read ‘mental impairment’ in the Code (WA) s 27(1): see 8.110.

‘Mental disease or infirmity’ 8.107 The M’Naghten rules refer only to ‘disease of the mind’ as the basis for the common law defence of insanity. The Code (Qld) s 27 is

more broadly stated and refers to ‘mental disease or natural mental infirmity’. In Falconer (1990) 171 CLR 30 at 49; 96 ALR 545 (decided when the Code (WA) s 27 read in identical terms to the Code (Qld) s 27), Mason CJ, Brennan and McHugh JJ referred to this variation in terminology, but considered that it did not connote different mental conditions. [page 173] For comment on natural mental infirmity, see Rolph [1962] Qd R 262. The terms encompass the major mental diseases or psychoses such as: schizophrenia;164 and reactive depression.165 Because of the breadth of the concept, a state of mental disease has been found in situations that may not normally be associated with mental illness. For example, the concept has been extended to: psychomotor epilepsy;166 hyperglycaemia (elevated blood sugar levels due to diabetic failure to ingest insulin);167 arteriosclerosis;168 and delirium tremens — a true mental disease associated with alcohol ingestion.169

‘State of mental disease’ 8.108 In Foy [1960] Qd R 225 at 232, the Queensland Court of Criminal Appeal gave broad effect to the expression ‘state of mental disease’. Mansfield CJ talked of a ‘temporary or permanent derangement of the mind’. Philp J defined the expression as ‘any disorder or derangement of the understanding; any destruction of the will’ or ‘an abnormal mental state, no matter how caused or how

transient’: at 243. Wanstall J used the expression ‘any form of physical or material change or deterioration of the brain or recognisable disorder or derangement of the understanding’: at 246–7. There was no reservation or qualification in any of their statements relating to the cause of the disorder or derangement of the mind, the concern of the section being with mental disease rather than brain disease.170 8.109 Some narrowing of the definition of the state of mind required for there to be a mental disease is seen in other cases. In Bratty v Attorney-General (Northern Ireland) [1963] AC 386 at 412, Lord Denning was of the opinion that ‘any mental disorder which has manifested itself in violence and is prone to recur’ is a disease of the mind. Then, in Quick and Paddison [1973] 3 All ER 347, the Court of Appeal in England decided that hypoglycaemia, a deficiency in blood sugar levels following an injection of insulin, was not a state of mental disease, saying at 356:171 In our judgment the fundamental concept is of a malfunctioning of the mind caused by disease. A malfunctioning of the mind of transitory effect caused by the application to the body of some external factor such as violence, drugs including

[page 174] anaesthetics, alcohol and hypnotic influences cannot fairly be said to be due to disease. Such malfunctioning, unlike that caused by a defect of reason from disease of the mind, will not always relieve an accused from criminal responsibility. A self-induced incapacity will not excuse … nor will one which could have been reasonably foreseen as a result of either doing, or omitting to do something, as, for example, taking alcohol against medical advice after using certain prescribed drugs, or failing to have regular meals whilst taking insulin. From time to time difficult borderline cases are likely to arise.

In Cooper v McKenna [1960] Qd R 406, a majority of the Court of Criminal Appeal in Queensland would not extend the concept of mental disease to include a case of concussion from a physical blow. 8.110 A narrowing of the concept of mental disease is also seen in Falconer (1990) 171 CLR 30; 96 ALR 545: see 8.51. There, the various judgments made reference to several factors inconsistent with

insanity. These included where the malfunction of the accused’s mind is transient (at CLR 56, 76 and 85), associated with an external factor originating outside the accused’s body (at 54–6, 75–8 and 85) and not prone to recur: at 56, 75 and 84–5. This reference to external factors was held to be sufficiently broad to include mental stressors that amount to a ‘psychological blow’. Mason CJ, Brennan and McHugh JJ imported an objective test into the question of whether a person could be said to be suffering from a state of non-insane automatism, holding that the law postulates a standard of mental strength that equates to that of the ordinary person, and that, when faced with psychological trauma, protects from malfunction that would amount to insanity: at 55. For their Honours, the trial judge, in evaluating the evidence, would find a state of non-insane automatism if the ordinary woman of the accused’s age and circumstances, who had been subjected to the emotional stressors referred to in that case, would have entered a state of dissociation as a result of the incidents that occurred on the day of the offence. Similarly, Gaudron J, in a separate judgment, referred to the mental reaction as ‘one that may be experienced by a normal or healthy mind’, and therefore an example of non-insane automatism.172

‘Mental impairment’; ‘mental illness’ 8.111 The terms ‘mental impairment’ and ‘mental illness’ are defined in the Code (WA) s 1 and the Criminal Law (Mentally Impaired Defendants) Act 1996 (WA) s 8: mental impairment means intellectual disability, mental illness, brain damage or senility. mental illness means an underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli.

These provisions, which commenced in 1997, reflect the narrowing of the scope attributed to mental disease by the High Court in Falconer: see 8.51. A significant aspect of the changed definition is the exclusion of the reaction of a ‘healthy mind to extraordinary stimuli’, avoiding reference to the external/internal factor distinction.

[page 175]

Elements of mental capacity 8.112 Where the underlying mental state referred to in s 27 is present, it must also be shown that, because of that mental state, there was a loss by the accused of one of the capacities referred to in the provision; that is: to understand what he or she is doing; to control his or her actions; or to know that he or she ought not do the act. These consequences of the accused’s mental state are detailed more extensively than the rules in M’Naghten, which did not refer to capacity to know or understand but, rather, to actual knowledge. The first of these three capacities is self-evident and requires no further comment. However, the second capacity represents an extension to the common law principles relating to insanity and it was referred to in Moore (1908) 10 WALR 64 at 66: This section deals with the defence of insanity, and it shows in what cases persons who would otherwise be responsible for their acts are free from responsibility because they are insane. It treats as insane certain persons who under the old law would not have been treated as insane. It accepts the medical theory of uncontrollable impulse, and treats people who are insane to the extent that they have not the capacity to control their actions, whether from mental disease or natural mental infirmity, as being persons who are irresponsible.173

The same interpretation was applied in Wray (1930) 33 WALR 67 at 68–9, so it is seen that the Code permits failure of conation as well as failure of cognition to be given operative force within the defence of insanity. In respect of the third capacity, the Code provides no guidance on whether it is a capacity to know that the act was against the law or a capacity to know that the act was against the moral standards of the community. The matter has been resolved by the High Court. In Porter (1933) 55 CLR 182; [1936] ALR 438, Dixon J said at CLR 189–90:174

Could this man be said to know … 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 the 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.

8.113 Subsequently, in Stapleton (1952) 86 CLR 358; [1952] ALR 929, the High Court confirmed that view, recognising that, as a matter of practical reality, it would not often be a matter of great importance whether the capacity of the accused was judged by an ability to understand the difference between right or wrong according to reasonable standards, or to understand whether the act is punishable by law. In a small yet important number of cases, to instruct the jury that the accused must only be incapable of understanding that he or she was acting contrary to law as distinct from an appreciation that his or her act was wrong according to the [page 176] ordinary standards adopted by reasonable people would tell heavily against the accused. The court said at CLR 375: But in certain cases, where the insane motives of the accused arise from complete incapacity to reason as to what is right or wrong (his insane judgment even treating the act as one of inexorable obligation or inescapable necessity) he may yet have at the back of his mind an awareness that the act he proposes to do is punishable by law.175

In Evans v State of Western Australia [2010] WASCA 34, McLure J emphasised two principles associated with this form of incapacity. She stated that the first principle is that the ability to know that one ‘ought not’ to do an act is a capacity to know that one ‘ought not’ to do it according to ordinary standards of right and wrong, rather than knowledge that the act is unlawful. The second principle is that the capacity that must be found to be lacking is not merely a capacity to appreciate, in some abstract sense, that others would view the act as wrong. Rather, it is a capacity of the particular accused either to discern the difference between moral good and evil, or to ‘think

rationally’ of the reasons that would lead ordinary people to consider the act to be right or wrong. She therefore endorsed the common law decision in Porter as applicable to the Code provisions.

Evidential onus 8.114 It has been seen that the persuasive onus of proof rests with the party who seeks to establish unsoundness of mind, whether that be the accused or the prosecution: see 8.101. That party will also bear an evidential onus and, usually, medical evidence will lay the ground for the defence. But it could be established in other ways; for example, on evidence of the conduct of the accused. Even if there is medical evidence of mental disease depriving the accused of one of the capacities mentioned in s 27, the question of whether there is evidence sufficient to enable the defence to be left to the jury is one of law rather than one to be answered by medical witnesses.176 Furthermore, if the evidence is left to the jury, it need not be accepted by the tribunal of fact, for, as was said by Dwyer CJ in Armanasco (1951) 52 WALR 78 at 82–3:177 It is for the jury to decide the question of insanity, not medical witnesses however experienced; a jury is not bound to accept any opinion; and the evidence relevant for their consideration includes not only expert opinion but all connected facts, as well as statements, if any, of the accused himself.

8.115 The jury must be satisfied on the balance of probabilities that, at the time of the act giving rise to punishment, the accused had the relevant mental state amounting to unsoundness of mind which deprived him or her of one of the three capacities mentioned in the section. If the mental state is proven, but no deprivation of one of the mentioned capacities is shown to result from it, then the [page 177] onus of proof in respect of unsoundness of mind will not have been discharged.178 In Evans [2011] WASCA 182, the appellant argued that the jury’s rejection of his insanity plea could not be supported on the

evidence. Following a review of the medical evidence the Western Australian Court of Criminal Appeal concluded that the evidence confirmed that the appellant was suffering from a mental illness but that it was open to the jury on that same evidence to conclude that they were not satisfied on the balance of probabilities that the appellant lacked the relevant capacity (in that case the capacity to know that one ought not do the act).

Delusions 8.116 The Code (Qld) and (WA) s 27(2) does not arise frequently. A person suffering from delusions had no defence at common law.179 The Code does not provide for a complete defence in such a situation. Rather, the accused is criminally responsible to the same extent as if the real state of things had been such as his or her delusions suggested. Normally, a person suffering from delusions will suffer from one of the incapacities specified in the Code (Qld) and (WA) s 27(1) and will rely on that provision in an attempt to establish the complete defence of insanity.

Mental health legislation Queensland 8.117 In Queensland, the Mental Health Court, constituted by a Supreme Court judge with the assistance of two psychiatrists, is established under the Mental Health Act 2000 (Qld), with jurisdiction to determine whether a person was suffering, at the time of an offence,180 from unsoundness of mind or diminished responsibility181 (Code (Qld) s 304A) or whether the person is fit for trial.182 The matter may be referred to the Mental Health Court by the person charged, that person’s legal representative, the Attorney-General, the Director of Public Prosecutions or, if the person is receiving treatment for mental illness, the Director of Mental Health.183 Also, the Supreme or District Court may refer the matter of the mental condition of a person charged with an indictable offence to the Mental Health Court. This is

where the person pleads guilty or has been committed for sentence and it is alleged or appears that the person is mentally ill, or was, or may have been mentally ill when the alleged offence was committed.184 In proceedings before the Mental Health Court, no party bears the onus of proof and matters must be determined on the balance of probabilities.185 In addition to referring a matter to the Mental Health Court, a court, including a Magistrates Court conducting [page 178] committal proceedings, may make a court assessment order if the court is satisfied that the person should be detained in an authorised mental health service for assessment.186 8.118 The term ‘unsound mind’ means the state of mental disease or natural mental infirmity described in the Code s 27 but does not include a state of mind resulting, to any extent, from intentional intoxication or stupefaction alone or in combination with some other agent at or about the time of the alleged offence; ‘diminished responsibility’ means the state of abnormality of mind described in the Code s 304A; and ‘fit for trial’ means fit to plead at the person’s trial and to instruct counsel and endure the person’s trial, with serious adverse consequences to the person’s mental condition unlikely.187 8.119 The Mental Health Court, in Queensland, will decide whether, at the time of the alleged offence, the person was of unsound mind or, in the case of murder, of diminished responsibility. It must not make a decision if the court is satisfied there is reasonable doubt the person committed the alleged offence, unless that doubt exists only as a consequence of the person’s mental condition, or if it is satisfied that a fact that is substantially material to the opinion of an expert witness is so in dispute it would be unsafe to make the decision.188 If the Mental Health Court decides that the person was not of unsound mind or if it does not decide the issue for one of those

reasons stated above, it will decide if the person is fit for trial. In that situation, proceedings continue according to law and the Mental Health Court may make orders for the person to be remanded in custody, granted bail under the Bail Act 1980 (Qld), or detained in a mental health service for approval of treatment.189 If the person is found to have been of unsound mind, proceedings against him or her are discontinued and, if a finding of diminished responsibility is made, proceedings for the offence of murder are discontinued but proceedings for another offence such as manslaughter may be continued.190 However, even when the Mental Health Court has decided that a person was of unsound mind when the offence was committed, the person may elect to be brought to trial and may raise the matter of his or her medical condition at trial notwithstanding a decision of the Mental Health Court which is not admissible in evidence.191 8.120 While the defence of insanity is concerned with the state of mind of the accused at the time when the offence was committed, the issue of unsoundness of mind may also arise in relation to the mental capacity of the accused at the time of the criminal proceedings. There is a rebuttable presumption that the accused is mentally fit to stand trial.192 [page 179] 8.121 In Queensland, the matter may be raised at the time when the accused is called upon to enter a plea under the Code (Qld) s 613. It may also be raised at any time during the trial.193 While the latter provision refers specifically to unsoundness of mind, s 613 is not so limited and extends to any reason that the accused may be incapable of understanding the proceedings so as to be able to make a proper defence. In that regard, the common law understood the notion of insanity as covering all persons who, from whatever cause, were unable to plead, understand the proceedings or communicate with other persons. In Pritchard (1836) 7 C & P 303; 173 ER 135, where the

accused was speech and hearing impaired, Alderson B, in addressing the jury, said: Upon this issue, therefore, if you think that there is no certain mode of communicating the details of the trial to the prisoner, so that he can clearly understand them, and be able properly to make his defence to the charge, you ought to find that he is not of sane mind. It is not enough that he may have a general capacity of communicating on ordinary matters.

8.122 The question of the accused’s fitness to plead is a preliminary issue and, even though the prosecution or the defence does not raise the issue, it would seem, from the use of the word ‘appears’ in the Code (Qld) s 613, that it is the duty of the court to satisfy itself whether the accused is fit to plead.194 In Berg [2015] QCA 196, the Court of Appeal considered, but rejected, an argument that, if an accused is self-represented, he is no longer fit to plead since he could not, within the terms of the definition of fitness for trial, instruct counsel. While the Code (Qld) ss 613 and 645 provide for the issue of the mental fitness of the accused to be determined by the jury, in practice, these issues are dealt with by the Mental Health Court: see 8.116.

Western Australia 8.123 On 18 March 2013, a pilot diversionary system for those suffering from a mental illness was introduced into Western Australia. The Specialist Treatment and Referral Team Court (START) is a joint initiative between the Mental Health Commission and the Department of the Attorney General and allows persons with mental illness to be diverted from the Perth Magistrates Court. An evaluation in December 2014 found that the court is valued by all stakeholders, but its long-term operation remains dependent upon government funding, which at the time of writing was uncertain. Diversion to the court is contingent upon the defendant having a mental illness and entering a guilty plea (although an indication of intention to plead guilty also triggers diversion). It excludes those who have been charged with serious offences who require an immediate custodial sentence, those deemed to be a high risk to

themselves or the community and those refused bail who are remanded in custody. Following diversion, the defendant’s case is overseen by a multi-disciplinary team which adopts a therapeutic justice approach under the guidance of a specialist magistrate. [page 180] 8.124 Currently, in Western Australia, the accused may plead that he or she is not guilty on account of unsoundness of mind.195 Where that is the only fact in issue, the matter may be determined by the trial judge provided the parties consent and it is in the interests of justice to do so.196 However, the issue of fitness for trial may be raised at any time before or during criminal proceedings and the matter will be determined under the Criminal Law (Mentally Impaired Defendants) Act 1996 (WA).197 It may be raised by the prosecution, the defence or the presiding judicial officer and the issue is to be determined, on the balance of probabilities, by the presiding judicial officer, who is able to inform himself or herself of relevant matters in any way such officer thinks fit, including the obtaining of psychiatric reports.198 The term ‘mental unfitness to stand trial’ is defined in s 9 of that Act. It requires that the accused have a ‘mental impairment’ (see 8.110) such that he or she is: (a) unable to understand the nature of the charge; (b) unable to understand the nature of the requirement to plead to the charge or the effect of the plea; (c) unable to understand the purpose of a trial; (d) unable to understand or exercise the right to challenge jurors; (e) unable to follow the course of the trial; (f) unable to understand the substantial effect of evidence presented by the prosecution at the trial; or (g) unable to properly defend the charge.199

8.125 Under the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 14, proceedings may be adjourned pending the outcome of the determination of the issue of mental fitness. In that case, the

judicial officer may grant the accused bail, remand him or her in custody or make a hospital order under s 5 of that Act, which brings into operation the Mental Health Act 1996 (WA). Where it has been determined that the accused is mentally unfit to stand trial, there is provision for proceedings to be adjourned for a maximum of 6 months but, if the judicial officer is satisfied that the accused’s fitness will not change, the proceedings are brought to an end and the accused is either discharged or, in limited circumstances, kept in custody until released by order of the Governor.200 The Western Australian Court of Criminal Appeal recently considered the issue of fitness to stand trial in Mack [2014] WASCA 207. In that case, the appellant claimed that the trial judge erred in deciding that he was fit to stand trial on a charge of murder. It was accepted that the appellant suffered from autism, but at trial the two psychiatrist witnesses [page 181] differed on their conclusions as to whether this resulted in him being unfit to stand trial, in the sense of being ‘unable to follow the course of the trial’ (s 9(e)), or ‘unable to properly defend the charge’ (s 9(g)). The Court of Criminal Appeal concluded that it was reasonably open to the trial judge to prefer one opinion over the other, and that the trial judge was entitled to give significant weight to video-recorded interviews, even though these took place some 18 months before the question for fitness to stand trial arose for determination, as these formed part of assessing whether the appellant was able to follow the course of the trial and properly defend the charge: at [84]–[85]. The Western Australian Parliament has recently passed new mental health legislation in the form of the Mental Health Act 2014 (WA). This came into operation in late 2015, and is likely to have implications for the treatment of the mentally impaired accused.201

Special verdict

8.126 It is only once the prosecution has proved its case beyond a reasonable doubt that a jury considers whether a special verdict, on the basis of unsoundness of mind, applies.202 This raises the question of when the question of intent should be determined. In Ward (2000) 23 WAR 254, the court considered whether the jury should determine the issue of intent before or after the issue of insanity; no clear consensus emerged. If the jury determines that a special verdict applies, the effect of this is that the accused is held for treatment under the relevant mental health legislation.203 In Maloney [2001] 2 Qd R 678, the Court of Appeal held that it is generally undesirable and unnecessary for the trial judge to explain to the jury the consequences of this verdict.

Intoxication — Code (Qld) and (WA) s 28204 Two distinct rules for intoxication 8.127 The Code (Qld) and (WA) s 28 makes provision for modification of the rules of criminal responsibility in limited circumstances where the accused’s mind was affected by intoxication from alcohol or by stupefaction from some other form of drug. The provision contains two distinct rules. The first is found in the Code (Qld) and (WA) s 28(1) and (2) and applies to all offences, but only where the accused was unintentionally intoxicated. The second rule is found in the Code (Qld) and (WA) s 28(3) and, while it applies only to those offences that have, as an element, an intention to cause a specific result, it applies whether the intoxication was intentional or unintentional. [page 182]

Relationship with other excuses 8.128

Before dealing with the terms of s 28, three matters should be

noted: Where the ingestion of the alcohol or another drug brings about a true mental disease such as delirium tremens, the provision relating to intoxication will have no relevance. In that case, the circumstances of the accused will be embraced solely by the provisions relating to unsoundness of mind.205 Where the intoxication does not constitute a true mental disease, there can be no reliance upon the provisions relating to unsoundness of mind.206 In Re Bromage [1991] 1 Qd R 1, while intoxication with alcohol was held not to be a mental disease, the combined effect of the involuntary ingestion of organophosphates along with the voluntary intoxication with alcohol was held to have produced a state of mental disease. Since then, the Code (Qld) s 28(2) has been amended in a way that reverses the effect of Bromage in that it precludes a reliance on the insanity defence in s 27 by an accused who was intentionally intoxicated, whether his or her mind was disordered by the intoxication alone or in combination with some other agent. Where the state of intoxication manifests itself in a manner akin to automatism, so that the actions of the accused are not controlled or the accused is acting independently of the exercise of the will, there can be no reliance upon the terms of the first limb of the Code (Qld) s 23 or the Code (WA) s 23A.207

The first rule: unintentional intoxication 8.129 While the first rule in s 28 has application to all offences, the provision requires that the state of intoxication be brought about without intention on the part of the accused. The equivalent provision of the Tasmanian Code requires that the intoxication be involuntary.208 8.130 In Corbett [1903] St R Qd 246 at 249, Griffith CJ directed a jury in a manner that suggests that something approaching involuntariness is also required by the Code (Qld) and (WA) s 28(1) to show that the

intoxication was unintentional. The defence was open only if the intoxication arose in circumstances ‘for which the accused could not be fairly held responsible’. The accused may have been mistaken about the nature of the substance consumed; for example, where it was not known to be alcoholic or where the drug was taken on a doctor’s prescription without a warning of its possible effects. In that situation, and also where the accused is forced or tricked into consuming the substance, the formula suggested in Corbett would be satisfied. On the other hand, where the accused did not intend to become intoxicated, but became so merely because of excessive consumption, there could be no reliance upon the first rule in s 28.209 [page 183] 8.131 The first rule in s 28 is dependent for its operation on concepts relating to insanity because the state of intoxication required must be of such a degree as to deprive the accused of one of the capacities referred to in s 27, the insanity provision — to understand what he or she is doing, to control his or her actions or to know that he or she should not do the act or make the omission that constitutes the offence: see 8.111. 8.132 The Queensland Court of Criminal Appeal, in Smith [1949] St R Qd 126, said at 130:210 The first paragraph of s 28 in very plain language applies the provisions of s 27 to the case of a person whose mind is disordered by intoxication or stupefaction caused without intention on his part by drugs or intoxicating liquor or by any other means. The effect of this is the same as if there were inserted in s 27 after the words ‘natural mental infirmity’ the words ‘or his mind is so disordered by intoxication or stupefaction caused without intention on his part by drugs or intoxicating liquor or by any other means’ … A person whose mind is so disordered by intoxication or stupefaction caused without intention on his part by drugs or intoxicating liquor or by any other means is a person who is of unsound mind while that condition continues.

8.133 This reliance on the principles relating to insanity for the operation of the first rule in s 28 is extended to include two further consequences that are associated with the insanity defence. First, the

accused carries the onus of proving the relevant incapacity in the same way as for unsoundness of mind. However, this matter is not without some doubt.211 The second consequence is that a successful reliance upon the defence is met with the special verdict in the Code (Qld) s 647 and the Criminal Procedure Act 2004 (WA) ss 113 and 146.212

Intoxication must result in true mental disease 8.134 The second rule in respect of intoxication is found in the Code (Qld) and (WA) s 28(3) and, unlike the first rule, it has application whether intoxication is intentional or unintentional and whether it is complete or partial. However, it applies only to those offences where an intention to cause a specific result is an element. The rule represents a significant departure from the common law where intoxication may be relied upon, even for those offences that do not have a specific mental element, in order to show that the accused did not have the necessary mens rea.213 8.135 Because of the clear statement of the elements of each offence in the Codes, difficulties will not usually arise when determining whether an offence is one to which the Code (Qld) and (WA) s 28(3) applies. Where reference is made to intention as an element of the offence, this second rule will usually be applicable. In relation to an attempt to commit an offence, differing approaches have been adopted. In Parker (1915) 17 WALR 96, the Full Court in Western Australia held that intoxication was irrelevant to attempted rape. There, consideration was not [page 184] given to the Code (Qld) and (WA) s 4, which defines ‘attempt’ and does so by making reference to intention. On the basis of that provision, Mack J in O’Regan [1961] Qd R 78 at 88–9 expressed the opinion that intoxication was relevant to all attempts, including

attempted incest, and in Cutter (1997) 143 ALR 498; 94 A Crim R 152, it was held to be applicable to attempted murder. It has been held that an intention to cause a specific result is not an element of rape or unlawfully using a motor vehicle.214

The second rule: complete or partial intoxication 8.136 When relying on the second rule in s 28, the accused has the evidential onus but does not need to raise evidence of complete intoxication, as the section itself uses the words complete or partial. As was said in Crozier [1965] Qd R 133 at 134, in relation to wilful murder:215 If the intoxication is complete, of course, the intent cannot be formed. If the intoxication is partial only, then it is for the jury to decide as a question of fact whether the necessary intent existed. The correct direction can, I think, be formulated in the following way: if you are not satisfied beyond reasonable doubt that through intoxication the prisoner was incapable of forming an intent or if you are left in doubt whether the prisoner did in fact form either of the necessary intents, then it is your duty to acquit of wilful murder and murder.

Thus, after some evidence of intoxication is put before the jury, the onus of proof remains upon the prosecution to prove that the intention defined in the offence was present. In that sense, it is for the jury to be satisfied beyond reasonable doubt as to whether the specific state of mind existed and not whether the accused had the capacity to form that specific state of mind.216 8.137 Because the second rule in s 28 only serves to remove the element of intention, the accused will be guilty of any offence that is committed but where the intention to cause a specific result is not an element. For example, if an accused is charged with murder, successful reliance upon intentional intoxication will have the effect of removing the element of intention. However, when that is done, there remains the crime of manslaughter and the accused may be convicted of this offence if the evidence discloses an unlawful killing: see 12.5. With some offences, once the element of intention is removed, there is no residual offence and the accused will avoid criminal responsibility completely. An example of such an offence is stealing: see 15.3.

[page 185]

Immature age — Code (Qld) and (WA) s 29217 8.138 The Code (Qld) and (WA) s 29 gives effect to the common law presumption that a child is not capable of committing a criminal offence. This presumption of doli incapax takes two forms, depending on the age of the child: for a child under the age of 10 years there is an irrebuttable presumption of law that the child cannot be criminally responsible for any act or omission;218 and for a child who is aged at least 10 years but under the age of 14 years, there is a rebuttable presumption against criminal responsibility for an act or omission; such a child is not criminally responsible unless it is proved that, at the time of doing the act or making the omission, the child knew that he or she ought not to have done the act or made the omission.219 While the effect of the provision is that a child encompassed by its terms will not be criminally responsible for the act or omission that constitutes an offence, action may be taken, nevertheless, by the appropriate state welfare agency.220

Child at least 10 years but under 14 years 8.139 The second of the presumptions, that which relates to a child under the age of 14 years, has been the subject of much criticism, with reference being made to increasing maturation levels and higher education standards of children of the present generation, as compared with those at the time when the law developed. Nevertheless, the existence of the rule at common law has recently been affirmed by the House of Lords.221 8.140 In the case of a child of at least 10 years but under 14 years of age, the onus of proving the capacity of the child to know that he or she ought not to have committed the offence rests with the

prosecution and the matter must be proved beyond reasonable doubt.222

Capacity to know conduct is wrong 8.141 In determining whether the child had the capacity to know that he or she ought not to have committed the offence, the question is whether the child knew the conduct was wrong according to ‘the ordinary principles of ordinary or reasonable’ persons.223 In applying that test, it must be shown that the child knew that the behaviour was ‘seriously wrong’ rather than a matter of mere ‘naughtiness or childish mischief’.224 [page 186]

Rebuttal by prosecution 8.142 There must be positive rebuttal evidence led by the prosecution that does not consist merely of the acts constituting the offence charged.225 Evidence in rebuttal of the presumption may comprise: the nature of the upbringing and home background of the child;226 the child’s conduct, such as running from the scene;227 disposing of a weapon after the commission of the offence;228 answers given to police during investigations;229 assertion of a false alibi; rendering the victim incapable of summoning assistance or of identifying the accused;230 and proof of previous convictions if probative of the capacity to commit the offence charged.231 8.143

In C (a minor) [1996] AC 1; [1995] 2 WLR 383 at 401, the House

of Lords noted at 402: The cases seem to show, logically enough, that the older the defendant is and the more obviously wrong the act, the easier it will generally be to prove guilty knowledge.

The same sentiment was expressed by the Queensland Court of Appeal, which also pointed out that the Code provision is concerned with proof of the child’s capacity to know the conduct was wrong rather than with actual knowledge that it was.232

Under-age accomplice 8.144 A person who is not in law criminally responsible or not proved to be criminally responsible cannot be an accomplice. As was said in Quy (1905) 7 WALR 268 at 269–70: The accused was charged at the Criminal Sessions with having attempted to have carnal knowledge of one M, against the order of nature. He was found guilty of the attempt charged, and being undefended the learned commissioner deemed it advisable to state a case for the opinion of this court. M was the boy upon whom the attempt was made, according to the finding of the jury, by the accused. He was under 12 years of age, and Mr Barker has drawn the attention of the court to s 29 of the Criminal Code, which enacts that a person under the age of 14 years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission. It seems to me that a boy who is not criminally responsible, or proved to be criminally responsible, cannot be an accomplice. It would be strange to hold that a boy who could not commit an offence could be an accomplice in the

[page 187] commission of that offence by another. In order to show that M was a party to this crime it would have been necessary to show that at the time the attempt was made upon him by the accused he had capacity to know that he ought not to submit to that act. There is no evidence to show that this boy thought that he was in any way doing wrong, or that he ought not to submit to the conduct of the accused.

Of course, if the boy had known what he was doing to be ‘wrong’, he would have been criminally responsible, and hence could have been an accomplice in the offence.233

Execution of law, duress and compulsion — Code (Qld) and (WA) s 31234 8.145 Along with the excuse of extraordinary emergency in the Code (Qld) and (WA) s 25 (see 8.90–8.97), the excuses provided for in the Code (Qld) s 31 and (WA) ss 31 and 32 are examples of situations where an accused is relieved from criminal responsibility for conduct that has been precipitated by some external pressure. In the 2008 changes to the Code (WA), duress was separated from s 31 and, given the differences that now exist in the structure and scope of this set of excuses, it is appropriate to look separately at the Queensland and Western Australian provisions, notwithstanding the degree of similarity that remains.

Queensland Range of excuses 8.146 Unlike the s 25 excuse, limitations are imposed by s 31 to the range of offences for which it is available and to the degree of force that may be used by the accused. Within those limits, the accused will not be criminally responsible for an act or omission that is done: in execution of the law;235 in obedience to the order of a competent authority that he or she is bound by law to obey, unless the order is manifestly unlawful;236 when it is reasonably necessary in order to resist actual and unlawful violence threatened to him or her, or to another person in his or her presence;237 when: – the person does or omits to do the act in order to save himself or herself or another person, or his or her property or the property of another person, from serious harm or detriment threatened to be inflicted by some person in a position to carry out the threat;

–

the person doing the act or making the omission reasonably believes he or she or the other person is unable otherwise to escape the carrying out of the threat; and [page 188]

–

doing the act or making the omission is reasonably proportionate to the harm or detriment threatened; 238 or

when he or she does or omits to do the act in order to save himself or herself from immediate death or grievous bodily harm threatened to be inflicted on him or her by some person in a position to execute the threats, and believing himself or herself to be unable otherwise to escape the carrying of the threats into execution.239

Onus of proof 8.147 For each of the excuses in s 31, the persuasive onus of proof rests with the prosecution which, accordingly, must negative the excuse beyond reasonable doubt. However, as with other matters of exculpation, an evidential onus rests with the accused.240

Limitations 8.148 Before referring to the excuses in s 31, it is important to consider the limitations that apply under the provision. These are imposed under the Code (Qld) s 31(2) and apply to all four excuses in addition to any further limitation that is specifically provided for, such as the need for reasonableness in the Code (Qld) s 31(1)(c).241 Protection under s 31 does not extend to an act that is intended or likely to cause death or grievous bodily harm or where the act was done because of a threat to the accused that was a result of some unlawful association or conspiracy entered into by him or her.

Further, the protection does not extend, in Queensland, to piracy or murder.242

Act in execution of the law 8.149 The Code (Qld) s 31(1)(a) provides that a person is not criminally responsible for doing an act in the execution of the law. The provision serves to exculpate those who, by reason of their public position, are required to carry out certain functions that, if performed without the protection of the law, would make them liable to prosecution. 8.150 In Slade [1995] 1 Qd R 390, a police officer supplied a dangerous drug to an informer to enable the latter to infiltrate and report on the activities of a group of criminals more readily. He was convicted of an offence under the Drugs Misuse Act 1986 (Qld). Lee J ruled that the police officer’s conduct was not in the execution of the law and held that this protection would arise only where the act that would otherwise be criminal was necessary in the performance of the officer’s duty so that it could be truly said to be an act that was done under the compulsion of that duty.243 [page 189]

Obedience to the order of a competent authority 8.151 The Code (Qld) s 31(1)(b) relieves a person from criminal responsibility for an act or omission done in obedience to the order of a competent authority that the person is bound by law to obey, unless the order is manifestly unlawful. There is no general rule in Australian law that a person can escape criminal responsibility on the basis that acts were done because of superior orders.244 Further, any legislative provisions that purport to sanction criminal conduct will be strictly construed.245 8.152

The term ‘competent authority’ was considered by Stanley J

in Hunt v Maloney [1959] Qd R 164 at 173: I know of no decision that an ordinary master or principal would be a ‘competent authority’ within the meaning of that section. It is not necessary to determine the precise limits of [the provision], but I think it is directed to a subordinate’s obedience to orders eg a soldier or sailor, a constable, a gaoler. An ordinary agent is not necessarily bound to obey his principal’s orders; he may terminate his agency.

8.153 The issue of whether an order is manifestly unlawful is one of law.246

Resisting actual and unlawful violence or threatened violence 8.154 The excuse in the Code (Qld) s 31(1)(c) arises infrequently and shares elements of other excuses, such as self-defence in the Code (Qld) ss 271–273. However, it is less extensive than self-defence because of the degree of force and the range of offences to which it applies; for example, in Fietkau [1995] 1 Qd R 667, where it was held to have no application to a charge of murder; and see 8.145. Yet, unlike self-defence, it has the potential to apply to offences involving property damage, although an excuse is specifically provided for that purpose in the Code (Qld) s 458: see 15.134. Under the Code (Qld) s 31(1)(c), the response of the accused must be reasonably necessary in the threatened circumstances of actual and unlawful violence and the excuse may be utilised when the threat is to some other person in the accused’s presence. In Dudley v Ballantyne (1998) 28 MVR 209, the then identical Western Australian excuse was held to be applicable on a charge of dangerous driving causing bodily harm to a man (K) under the Road Traffic Act 1974 (WA) s 59(1). In that case, there had been an altercation between a passenger in the defendant’s car and K while the car was stopped outside a shop. As the car drove away, K attached himself to the side of it by reaching in through a window and holding a passenger’s hair. The defendant drove her car for some 120 m at 40 km/h before she became aware of K’s presence. She then continued to drive for another 70 m at which point K fell to the road, injuring his arm. Owen J held that the defendant’s decision to continue driving after she became aware of K

was reasonably necessary in order to avoid actual violence from K to either herself or her passengers. [page 190]

Duress or compulsion 8.155 A person is not criminally responsible for acts that are done under duress or compulsion as provided for in the Code (Qld) s 31(1) (d). This excuse can be seen as part of the more general excuse whereby a person is relieved from criminal responsibility for acts done in circumstances of extraordinary emergency. Indeed, the Code (Qld) s 25, the provision relating to that more broadly based excuse, requires that it be read subject to the provisions relating to compulsion.247 8.156 Under the Code (Qld) s 31(1)(d), the range of threats extends to threats to save the accused, another person or property from serious harm or detriment. There is no requirement of actual presence of the threatener but the belief that he or she is not able otherwise to escape the carrying out of the threat must be reasonably held248 and the conduct of the accused must be reasonably proportionate to the threatened harm or detriment. 8.157 The common law principles relating to duress were referred to in Hurley and Murray [1967] VR 526 at 543 and give some insight into the basis of the defence. There, the accused appealed from a conviction as accessories after the fact to an escape of two prisoners from Pentridge Gaol. The defence of duress was raised on the basis that they had only helped the escapees because they feared the infliction of death or serious injury upon either themselves or the de facto wife of one of them. The court recognised that the law endeavours to accord with common sense and to recognise human frailty and that, if a person acts because of the influence of a genuine fear aroused by the threat of death or serious physical violence, the fear that governs the person’s action may be a fear of the kind that will

affect the will of a person of ordinary courage and fortitude. The threat must have been operative at the time when the criminal action was done, and there must have been no opportunity between the time when the threat was made and the time when the action was done for the accused to be freed from the influence of the threats. If a person were compelled to do criminal acts because of the influence of a fear aroused by the threats of such imminent death or grave physical violence to himself or herself or others, he or she is entitled to claim that the action was a result of duress and that, accordingly, the actions did not amount to a crime.249 8.158 Threat to prevent accused from desisting The court in Hurley and Murray [1967] VR 526 also made reference to the role of duress where the accused placed himself or herself in a position that made the threat likely, saying that it was both good law and good sense that a person who, without threat of death or serious violence, voluntarily becomes a party to a criminal enterprise, cannot excuse later conduct by showing that, after embracing the criminal cause, he or she was subjected to threats of violence to ensure that there would be no resiling from [page 191] the bargain voluntarily entered into. This is also a limitation on the operation of the excuse in the Code.250 8.159 Threat must be immediate It is no longer a requirement of the Queensland provision that there be a threat of ‘immediate death or grievous bodily harm’251 but, when it was, the issue of immediacy was commented upon by Stanley J in Pickard [1959] Qd R 475 at 476:252 In my opinion the word ‘immediate’ qualifies the words ‘death’ and ‘grievous bodily harm’. In my opinion the word ‘immediate’ obviously cannot mean some wholly indefinite future time and place. It must be related to some very short time after the doing or the omission of the act. Whether the length of the time depends on the nature of the threatened injury or whether the section is wholly inapplicable, if some appreciable length of time must lapse before the threat is carried out, need not be discussed further in this particular case on the particular facts.

8.160 At common law, the requirement of immediacy has been applied less strictly. In Williamson [1972] 2 NSWLR 281, the New South Wales Court of Criminal Appeal was dealing with a case in which a particularly brutal murder had been committed. The murder took place on a Wednesday and the accused disposed of the body on the following Sunday evening. His case was that he was under a continuing and present threat from a man, who had just committed a murder, that he would also be killed unless he did what he was told and that each day he was being kept under constant pressure of the original threat to kill him unless he helped to dispose of the body. The court recognised that a threat to inflict death or serious bodily injury may be a present and immediate threat, although the carrying out of the threat is by its nature not to be immediate but later, yet it must be a continuing threat and be seen to be continuing. Lee J summarised the position (at 300):253 … a man’s free choice to refrain from doing an act can be taken away, not only by fear of immediate death or serious physical violence as a result of a threat made to him but also by fear that death or serious physical violence may happen to him in the future as a result of an antecedent threat. In both cases the will can be overborne by the threat and the criminal act done by reason thereof. But the decision recognises also that in many cases where a threat is made to a person that he will suffer death or violence if he does not do a particular criminal act, avenues are usually open, or will become open to him, to render the threat ineffective so that his freedom of choice of action is restored to him. The law requires that a man threatened with death or physical violence if he does not do an act which is criminal, will not meekly and unreasonably yield to the threat when opportunity is reasonably open for him to render it ineffective, and his failure to take advantage of such opportunity precludes him from relying upon the defence of duress. The two matters, namely, that the threat did deprive him of his free will, and the absence up to and at the time of doing the act of any reasonable opportunity to render the threat ineffective, must appear in the defence.

[page 192] 8.161 The Code provision should be interpreted more strictly than the common law position adverted to above in Williamson [1972] 2 NSWLR 281. It requires that the person ‘believes254 him or herself to be unable to escape the carrying out of the threat’ and these words

suggest that the accused must look for a way to render ineffective the threats that have been made.255

Western Australia Range of excuses 8.162 As a result of the amendments to the Code (WA) in 2008, the excuses that existed in s 31 were amended. Section 31 is now limited to excuse acts or omissions done: in execution of the law; or in obedience to the order of a competent authority which the person is bound by law to obey, unless the order is manifestly unlawful. Section 32 was inserted to deal solely with the excuse of duress, and requires evidence of both subjective and objective criteria. There must be evidence that the accused believes that a threat has been made, that the threat will be carried out unless an offence is committed; and that doing the act or omission is necessary to prevent the threat from being carried out. The objective aspect of the test requires that the act or omission is a reasonable response in the circumstances as the person believes them to be. There needs to be reasonable grounds for all of the accused’s beliefs.

Onus of proof 8.163 The same position applies as with the Queensland excuses; it is incumbent upon the accused to provide evidence of the excuse, and the prosecution must then disprove its applicability to the standard of beyond a reasonable doubt.

Limitations 8.164 The amendments to the Code (WA) now mean that there are significant differences in the limitations applicable to the excuses. Apart from specific limitations such as the requirement that the order

not be manifestly unlawful under s 31(2), and requirements of reasonableness under s 32, the amendments removed general limitations on the type of offences that the excuses can apply to, and therefore the excuses now apply to all offences under the Code, including murder and attempted murder. This was a specific recommendation of the Law Reform Commission report which preceded the amendments.256

Act in execution of the law; obedience to the order of a competent authority 8.165 The same considerations apply to the Code (WA) s 31(1)(a) and (b) as to the corresponding excuses under the Code (Qld) s 31(1) (a) and (b). [page 193] 8.166 In relation to an act in execution of the law, the Full Court of Western Australia held in Mackinlay v Wiley [1971] WAR 3 that an editor of a student newspaper who was under no statutory obligation to publish certain impugned material was not acting in the execution of the law by doing so. Virtue SPJ stated at 10: Certainly s 31(1) has no application. This subsection confers on the hangman, the prison authorities, the bailiff and others who are servants of the law and justice and act in accordance with the demands of them that are made by their official position, to escape from ordinary criminal responsibility. It has no application in relation to those who are contractually or morally bound to carry out certain functions but whose obligations can in no sense be pleaded as an excuse for committing a criminal offence.

In relation to the excuse of obedience to the order of a competent authority, the Code (WA) similarly states that whether an order is manifestly unlawful is a matter of law.257

Duress 8.167

The remodelled excuse of duress closely resembles that in the

Commonwealth Code. As noted, most of the limitations on the operation of the excuse have been removed, with the exception that an accused is precluded from relying on duress if he or she has voluntarily associated with the person making the threat for the purpose of: doing an act or making an omission of the kind in fact done or made by the person under duress; or prosecuting an unlawful purpose in which it is reasonably foreseeable such a threat would be made. Again responding to the recommendations of the Law Reform Commission’s report, the amendments to duress removed the previous requirements that the threat be made by a person actually present, that it must be directed to the accused, that the threat must be one of immediate harm, and that it must be a threat to cause death or grievous bodily harm. These changes were largely recommended on the basis that the excuse of duress needed to better accommodate threats that occur in the context of domestic violence.258 This same consideration was behind the recommendation that the excuse be available as an excuse for all offences, including murder. The commission was of the view that the objective requirements of the test for duress justified the removal of these restrictions, and were an adequate safeguard against its possible abuse. As it stands, the excuse is now wide in its scope and considerably simpler, but it may be the case that the objective requirement that the accused’s act or omission be a ‘reasonable response to the threat’ will significantly limit its availability.259 _________________________________ 1.

See Tolson (1889) 23 QBD 168 at 187; Sherras v De Rutzen [1895] 1 QB 918 at 921–2; He Kaw Teh (1985) 157 CLR 523 at 528–32, 549–50, 564–6; 60 ALR 449.

2.

See Tolson (1889) 23 QBD 168 at 187; Sherras v De Rutzen [1895] 1 QB 918; Warner [1969] 2 AC 256; Hawthorne (Department of Health) v Morcam Pty Ltd (1992) 29 NSWLR 120 at 131; He Kaw Teh (1985) 157 CLR 523 at 528, 529, 533–6; 60 ALR 449; Cameron v Holt (1980) 142 CLR 342 at 346, 348; 28 ALR 490; Clare [1994] 2 Qd R 619; (1993) 72 A Crim R 357 at 359–

4.

62; 8.9. See Philp J (then a justice of the Supreme Court of Qld), ‘Criminal Responsibility at Common Law and Under the Criminal Code — Some Comparisons’ (1949) 1 UQLJ 73; Clare [1994] 2 Qd R 619; (1993) 72 A Crim R 357. Code (Qld) and (WA) ss 22–36.

5. 6.

Code (Qld) ss 271–273; (WA) s 248. Code (Qld) ss 274–279, 458; (WA) ss 251–256, 441.

7. 8.

Code (Qld) ss 280–281; (WA) ss 257–258. Code (Qld) ss 282, 282A; (WA) ss 259–259A.

3.

9. Code (Qld) ss 269, 304; (WA) ss 246. 10. Code (Qld) s 36(1); (WA) s 36. 11. See Clare [1994] 2 Qd R 619; (1993) 72 A Crim R 357 in relation to Ch 5 of the Code and its application to the Drugs Misuse Act 1986 (Qld). 12. Insanity is an exception. The accused has the onus of proof where he or she is seeking to argue this defence: see 6.19, 8.99. 13. See Sherras v De Rutzen [1895] 1 QB 918 at 920–1; He Kaw Teh (1985) 157 CLR 523 at 528, 529, 533–6; 60 ALR 449; Cameron v Holt (1980) 142 CLR 342 at 346, 348; 28 ALR 490; Clare [1994] 2 Qd R 619; (1993) 72 A Crim R 357 at 359–62. For the Commonwealth position, see the Code 1995 (Cth) ss 6.1, 6.2; 1.19, 8.12. 14. Fair Trading Act 1989 (Qld) s 97; Regulatory Offences Act 1985 (Qld); Liquor Licensing Act 1988 (WA); Davis (1990) 5 WAR 269; Fazio v Castledine (2007) 168 A Crim R 391. 15. A later statute repeals an earlier inconsistent provision: see Acts Interpretation Act 1954 (Qld) ss 17A–23; Interpretation Act 1984 (WA) ss 33, 34. For exclusion of Code (Qld) s 24, see Hussie v Williamson; Ex parte Hussie [1955] QWN 48; Drugs Misuse Act 1986 (Qld) s 129(1)(d). 16. See also Walden v Hensler (1987) 163 CLR 561 at 567; 75 ALR 173. 17. See also Mack J at 183. 18. The provision, s 140(3) of the Health Act 1937 (Qld), was amended in 1959 and has now been repealed. See now the Food Act 2006 (Qld) s 45. See Thick v Hoeter (1962) 7 FLR 488 at 498, where the Code (PNG) s 23, equivalent to the Code (Qld) s 23, was excluded on the basis of inconsistency with the Motor Traffic Ordinance 1950 (PNG) s 23. 19. Note also s 281 of the Code (WA), which excludes the defence of accident. 20. Crimes Amendment Act 1995 (Cth) s 3. 21. Code (Cth) ss 3.1, 3.2, 6.1, 6.2. 22. See Monk [1970] QJPR 1 at 2; Suehle v Commonwealth (1967) 116 CLR 353 at 356; [1967] ALR 572; Re Lehrain (1975) 6 ALR 301 at 304–5; 24 FLR 407. 23. See also Code 1995 (Cth) ss 9.1, 9.3, 9.4; 1.19, 8.12. 24. See Thomas (1937) 59 CLR 279 at 286, 296, 306; [1938] ALR 37; Iannella v French (1968) 119 CLR 84 at 97, 101, 112; [1968] ALR 385; Lim Chin Aik [1963] AC 160 at 171. 25. See Qld Act 32 (1985) s 10; Act 22 (1992) s 50; Act 68 (1992) s 3. 26. See Lim Chin Aik [1963] AC 160.

27. See 8.21. 28. Vagrants, Gaming and Other Offences Act 1931 (Qld) s 12 (now repealed: see Summary Offences Act 2005 (Qld) s 29). 29. See also West v Palmer; Ex parte West [1960] Qd R 375 at 382–3; Bergin v Stack (1953) 88 CLR 248; [1953] ALR 805; Beetham v Tremearne (1905) 2 CLR 582; Loveday v Ayre [1955] St R Qd 264; Power v Huffa (1976) 14 SASR 337 at 345; Ilich v Young (2000) 32 MVR 354; Roddan (2002) 128 A Crim R 397. 30. See Dixon J at CLR 306–7 who considered a mistake of mixed law and fact to be a mistake of fact; Strathfield Municipal Council v Elvy (1992) 25 NSWLR 745 at 751; Pollard (1992) 28 NSWLR 659; 63 A Crim R 383 at 400; Iannella v French (1968) 119 CLR 84; [1968] ALR 385; Da Costa (1968) 118 CLR 186; Sheehan [2001] 1 Qd R 198 at 209. 31. See Fish Resources Management Regulations 1995 (WA) reg 34; Fish Resources Management Act 1994 (WA) s 222. 32. Palmer v Ostrowski (2002) 26 WAR 289; 128 A Crim R 56 per Malcolm CJ and Olsson AUJ; Steytler J dissenting. 33. See also Code 1995 (Cth) s 9.5; 1.19, 8.12. 34. Walden v Hensler (1987) 163 CLR 561 per Dawson J at 592; 75 ALR 173; Macleod (2003) 214 CLR 230 at 243; 197 ALR 333. 35. See Skivington [1968] 1 QB 166; Fuge (2001) 123 A Crim R 310; Jeffrey and Daley (2002) 136 A Crim R 7. 36. See Williams [1988] 1 Qd R 289. 37. See Pollard [1962] QWN 13. 38. Roberts (2005) 29 WAR 445. 39. The contrary view in Pearce v Paskov [1968] WAR 68 has not prevailed: see Molina v Zaknich (2001) 24 WAR 562; Roberts (2005) 29 WAR 445; Waine [2006] 1 Qd R 458; Jeffrey and Daley (2002) 136 A Crim R 7; Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140. 40. See Smith [1974] QB 354; Walden v Hensler (1987) 163 CLR 561; 75 ALR 173; Waine [2006] 1 Qd R 458. But see Windshuttle v Redland Shire Council [2006] QDC 393. 41. Molina v Zaknich (2001) 24 WAR 562. 42. In Yanner v Eaton (1999) 201 CLR 351; 166 ALR 258, the High Court upheld the dismissal of a similar charge in reliance on s 211 of the Native Title Act 1993 (Cth). 43. See also Olsen v Grain Sorghum Marketing Board [1962] Qd R 580 at 584–5, 593; Walsh [1984] 2 Qd R 407 at 408; Hobart Magalu [1974] PNGLR 188 at 198–9. 44. Molina v Zaknich (2001) 24 WAR 562; Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140. 45. See also Skivington [1968] 1 QB 166; Langham (1984) 36 SASR 48 at 63. In DPP Reference (No 1 of 1999) (1999) 8 NTLR 148; 128 NRT 1; 105 A Crim R 489, the Northern Territory Supreme Court held that a belief based on traditional Aboriginal law was not sufficient to found the excuse. 46. Hollywood v City of Joondalup (2010) 178 LGERA 252, where the Supreme Court found that the magistrate had wrongly excluded the s 22 defence, confusing the issue of mistake of law with an honest claim as to the law.

47. See Bernhard [1938] 2 KB 264 at 272; Anderson v Nystrom [1941] St R Qd 56 at 69; Jaggard v Dickinson [1980] 3 All ER 716 at 719; Walden v Hensler (1987) 163 CLR 561 at 591; 75 ALR 173; Lauchlan (1999) 103 A Crim R 594; Jamieson v McKenna (2002) 136 A Crim R 82 at 85. 48. Macleod (2003) 214 CLR 230 at [41]–[43]; 197 ALR 333. 49. See Sanders (1991) 57 SASR 102 at 105; DPP Reference (No 1 of 1999) (1999) 105 A Crim R 489 at 496; 8 NTLR 148; 128 NRT 1. 50. See also Twose (1879) 14 Cox CC 327; Wade (1869) 11 Cox CC 549; Williams [1988] 1 Qd R 289. 51. See also Procter and Perry [1963] Qd R 335; Tan [1979] WAR 149 at 156–7. 52. Hunter [2014] WASCA 184. 53. See Astor v Hayes (1988) 38 A Crim R 219; Lenard (1992) 57 SASR 164; Noble (1994) 70 A Crim R 560. 54. Code (Qld) s 23(1)(a); (WA) s 23A. 55. Code (Qld) s 23(1)(b); (WA) s 23B. 56. For ‘grievous bodily harm’, see Code (Qld) and (WA) s 1; 13.50. 57. See Clare [1994] 2 Qd R 619; (1993) 72 A Crim R 357 at 369; Cutter (1997) 143 ALR 498; 94 A Crim R 152 at 156–7, 164–6. 58. Code 1995 (Cth) s 5.2; see 1.19, 8.12. See Reid [2007] 1 Qd R 64; (2006) 162 A Crim R 377 at 392–8, 403–8. 59. See also Reid [2007] 1 Qd R 64; (2006) 162 A Crim R 377; Glebow [2002] QCA 442. 60. See Jakac [1961] VR 367; Hyam [1975] AC 55; Belfon [1976] 1 WLR 741; Royall (1991) 172 CLR 378; 100 ALR 669. 61. See Lockwood; Ex parte Attorney-General [1981] Qd R 209; 15.131; Code 1995 (Cth) s 5.4; 1.19, 8.12. 62. See Plomp [1962] Qd R 161 at 174–6, 187; Heath [1991] 2 Qd R 182; Drago (1992) 8 WAR 488; 63 A Crim R 59 at 70, 74; De Gruchy (2002) 211 CLR 85; 190 ALR 441; 76 ALJR 1078 at 1082, 1084–8, 1096; Reid [2007] 1 Qd R 64; (2006) 162 A Crim R 377 at 398–402. 63. See Hodgetts and Jackson [1990] 1 Qd R 456; Omodei (2006) 166 A Crim R 40. 64. Code (Qld) ss 285, 286, 290; (WA) ss 262–263, 267. In Queensland v Nolan [2002] 1 Qd R 454, the Code (Qld) s 286, which casts a duty on persons who have care of a child, was relied on to grant an application to proceed with a surgical operation to separate conjoined craniopagus twins: see 12.10. 65. Code (Qld) ss 288, 289; (WA) ss 265, 266. 66. Note the offence of desertion of children in Code (Qld) s 364; (WA) s 344. 67. Code (Qld) s 302; (WA) s 279. 68. Code (Qld) s 303; (WA) s 280. 69. Code (Qld) s 324; Neilsen and Neilsen (2001) 121 A Crim R 239. 70. Code (WA) s 304(2). 71. Code (Qld) s 328; (WA) s 304(1). 72. Code (Qld) s 320; (WA) s 297. 73. There is no corresponding provision in the Code (WA).

74. Code (Qld) s 285; (WA) s 262. 75. Code (Qld) s 290; (WA) s 267. 76. Code (WA) s 263. 77. See also Young [1969] Qd R 417 at 438; Hodgetts and Jackson [1990] 1 Qd R 456. 78. See Scarth [1945] St R Qd 38; Hodgetts and Jackson [1990] 1 Qd R 456; Evgeniou [1965] ALR 209; (1964) 37 ALJR 508; Callaghan (1952) 87 CLR 115; [1952] ALR 941; Stott and Van Embden [2002] 2 Qd R 313; Guise (1998) 101 A Crim R 143; Pacino (1998) 105 A Crim R 309; Omodei (2006) 166 A Crim R 40; BBD [2007] 1 Qd R 478 at 481, 484; Clark (2007) 171 A Crim R 532. See Code 1995 (Cth) s 5.5; 1.19, 8.12. 79. Patel (2012) 247 CLR 531; 290 ALR 189. 80. See Stewart (1988) 36 A Crim R 13 at 14. For reference to a narrower view, see Windeyer J in Timbu Kolian (1968) 119 CLR 47 at 57; [1969] ALR 143 (by nature, dangerous in ordinary use); McCallum [1969] Tas SR 73 (dangerous per se). 81. See also Guise (1998) 101 A Crim R 143; Stott and Van Embden [2002] 2 Qd R 313; Murray (2002) 211 CLR 193; 189 ALR 40; 76 ALJR 899 at 903, 904; Omodei (2006) 166 A Crim R 40. 82. See Cameron [1990] 2 WAR 1 at 12; Criminal Code 1995 (Cth) s 4.2; 1.19, 8.12. 83. See Mamote-Kulang (1964) 111 CLR 62 at 65; [1964] ALR 1046. 84. See also McTiernan ACJ and Menzies J at 215. 85. See also Gaudron J at 81; Knutsen [1963] Qd R 157 at 165; Payne [1970] Qd R 260 at 264; Coolwell (1980) 2 A Crim R 85 at 88; Andersen and Basile [1979] WAR 53; Kissier (1982) 7 A Crim R 171; Larson v GJ Coles & Co Ltd (1984) 13 A Crim R 109; Duffy [1981] WAR 72; Hubert (1993) 67 A Crim R 181 at 190–2; Ugle (2002) 211 CLR 171; 189 ALR 22; 76 ALJR 886 at 890, 898; Murray (2002) 211 CLR 193; 189 ALR 40; 76 ALJR 899 at 901, 907, 916. 86. See Taiters [1997] 1 Qd R 333 at 335. 87. For the Tasmanian Code, see Martin [1963] Tas SR 103 at 134. For analysis of ‘act’ in a different context, see Phillips v Carbone (No 2) (1992) 10 WAR 169; Hubert (1993) 67 A Crim R 181. 88. Code (Cth) s 4.2. 89. See Bratty v Attorney-General (Northern Ireland) [1963] AC 386 at 409. 90. See Hawkins (1994) 179 CLR 500 at 517; 122 ALR 27; Falconer (1990) 171 CLR 30; 96 ALR 545; Battle (1993) 8 WAR 449; Nielsen [1990] 2 Qd R 578; Re Bromage [1991] 1 Qd R 1; Cameron [1990] 2 WAR 1; Haggie v Meredith (1993) 9 WAR 206. 91. For preference of the term ‘sane’ over ‘non-insane’ automatism, see Milloy [1993] 1 Qd R 298 at 299, where the accused had reactive depression, a condition related to unsoundness of mind/diminished responsibility and not a matter of non-insane automatism under s 23 of the Code. 92. See Falconer (1990) 171 CLR 30 at 58, 70, 77; 96 ALR 545; 8.98. 93. Cooper v McKenna [1960] Qd R 406 at 419; see Wogandt (1988) 33 A Crim R 31. 94. Deane and Dawson JJ do not seem to attempt to formulate a test at all. Toohey and Gaudron JJ emphasised similar factors in their judgments but did not formulate a discrete test for distinguishing sane from insane automatism. 95. Code (Qld) s 647; Criminal Procedure Act 2004 (WA) s 113.

96. See Hawkins (1994) 179 CLR 500; 122 ALR 27; Falconer (1990) 171 CLR 30 at 40–7, 56, 61–3, 68–71, 77, 86; 96 ALR 545. 97. See also Gaudron J at 83, Deane and Dawson JJ at 63 and Toohey J at 68. 98. For the Commonwealth position, see Code 1995 (Cth) s 10.1; 1.19, 8.12. 99. See Mamote-Kulang (1964) 111 CLR 62; [1964] ALR 1046; Timbu Kolian (1968) 119 CLR 47; [1969] ALR 143; Martyr [1962] Qd R 398; Van Den Bemd (1994) 179 CLR 137 at 139; 119 ALR 385; Hubert (1993) 67 A Crim R 181; Ugle (2002) 211 CLR 171; 189 ALR 22; 76 ALJR 886; Murray (2002) 211 CLR 193; 189 ALR 40; 76 ALJR 899; but see Hodgetts and Jackson [1990] 1 Qd R 456 at 470. 100. See Kaporonovski (1973) 133 CLR 209; 1 ALR 296; Tralka [1965] Qd R 225; Ferguson [1995] 2 Qd R 490; Hooper (2000) 116 A Crim R 510. 101. See also Timbu Kolian (1968) 119 CLR 47 at 64, 65; [1969] ALR 143. 102. See also Duffy [1981] WAR 72 at 77; Vallance (1961) 108 CLR 56 at 61, 65, 82; [1963] ALR 461; Mamote-Kulang (1964) 111 CLR 62 at 69, 72, 85; [1964] ALR 1046; Timbu Kolian (1968) 119 CLR 47 at 64, 71; [1969] ALR 143; Tralka [1965] Qd R 225 at 228, 233–4; Hubert (1993) 67 A Crim R 181; Van Den Bemd [1995] 1 Qd R 401; (1994) 179 CLR 137; 119 ALR 385; Stevens (2005) 227 CLR 319 at 326, 341, 345, 368; 222 ALR 40. 103. For nolle prosequi, see 5.91. For reference by the Attorney-General, see 3.23. 104. See 6.16; Criminal Code 1995 (Cth) ss 10.1, 12.6; 1.19, 8.12. 105. See Kissier (1982) 7 A Crim R 171; Fitzgerald (1999) 106 A Crim R 215; Azaddin (1999) 109 A Crim R 474; Stevens (2005) 227 CLR 319; 222 ALR 40. 106. See also Stanik (2001) 125 A Crim R 372; Seminara (2002) 128 A Crim R 567. 107. See Martyr [1962] Qd R 398; Ward [1972] WAR 36; Mamote-Kulang (1964) 111 CLR 62; [1964] ALR 1046; Hodgetts and Jackson [1990] 1 Qd R 456 at 470; Hubert (1993) 67 A Crim R 181; 8.72. 108. See Martyr [1962] Qd R 398; Mamote-Kulang (1964) 111 CLR 62; [1964] ALR 1046; Van Den Bemd (1994) 179 CLR 137 at 148; 119 ALR 385. 109. The High Court refused special leave: see Van Den Bemd (1994) 179 CLR 137; 119 ALR 385. 110. Code (Qld) s 23(1A). 111. See Charles (2001) 123 A Crim R 253; Steindl [2002] 2 Qd R 542. 112. For the Commonwealth position, see Code 1995 (Cth) ss 9.1, 9.2, 12.5; 1.19, 8.12; Sheehan [2001] 1 Qd R 198. 113. See Martin [1963] Tas SR 103 at 134; Nundah (1916) 16 SR (NSW) 482 at 488–9. 114. See also Geraldton Fishermen’s Co-op Ltd v Munro [1963] WAR 129 at 134–5; McPherson v Cairn [1977] WAR 28; Wroblewski v Starling [1987] WAR 233; Brimblecombe v Duncan [1958] Qd R 8; Lergesner v Carroll [1991] 1 Qd R 206; GJ Coles & Co Ltd v Goldsworthy [1985] WAR 183. Contrast the situation under the Tasmanian Code: see Martin [1963] Tas SR 103; Ingram [1972] Tas SR 250 at 258. 115. Fish Resources Management Regulations 1995 (WA) reg 34; Fish Resources Management Act 1994 (WA) s 222. 116. See Aubertin (2006) 33 WAR 87.

See also GJ Coles & Co Ltd v Goldsworthy [1985] WAR 183; Pearce v Stanton [1984] WAR 117. 359; Moylan (2007) 169 A Crim R 302. 118. See Loveday v Ayre [1955] St R Qd 264; Poultry Farmers Co-operative Society Ltd v Grain Sorghum Marketing Board [1963] QWN 3; Brimblecombe v Duncan [1958] Qd R 8; Lergesner v Carroll [1991] 1 Qd R 206; Shaw [1995] 2 Qd R 97; Millar [2000] 1 Qd R 437; Parsons [2001] 1 Qd R 655. 119. See also Jaggard v Dickinson [1980] 3 All ER 716. 120. GJ Coles & Co Ltd v Goldsworthy [1985] WAR 183 at 187–8; Rope [2010] QCA 194. 121. Aubertin (2006) 33 WAR 87 at 96. 122. Per Williams JA at 321 and Holmes J at 329–30. Note that McMurdo P excluded natural mental infirmity as a relevant consideration because of the operation of the Code s 27 (at 317), and that Williams JA excluded self-induced intoxication as a consideration under mistake of fact: at 321. 123. Transport Regulations 1940 (Qld) reg 52; Attorney-General’s Reference (No 1 of 1977) [1979] WAR 45 at 50. 124. Sancoff v Holford; Ex parte Holford [1973] Qd R 25; McLuckie v Williams (1995) 22 MVR 265; 82 A Crim R 118; see 8.14–8.17. 125. Code (WA) s 266; (Qld) s 289; see 8.39. 126. See EMJ (2001) 27 SR (WA) 265; 8.84. 127. In Harmer v Grace; Ex parte Harmer [1980] Qd R 395 at 399, a belief as to blood alcohol concentration was held to be a belief in the existence of a state of things. Compare Smith v Le Mura [1983] 1 Qd R 535; Pascoe v Christie; Ex parte Pascoe [1984] 1 Qd R 464. 128. See Timms v Darling Downs Cooperative Bacon Association Ltd [1989] 2 Qd R 264; (1988) 38 A Crim R 430 at 442; McLuckie v Williams (1995) 22 MVR 265; 82 A Crim R 118; Roddan (2002) 128 A Crim R 397. 129. See the final words of Code (Qld) s 24(1); (WA) s 24 first para. 130. Code (Qld) s 349 (rape); (WA) s 325 (sexual penetration without consent). 131. Code (Qld) s 215 (carnal knowledge of a girl under the age of 16 years); (WA) s 321(2) (sexual penetration of a child under the age of 16 years). 132. See also Warner [1980] Qd R 207, where s 24 was used to recite the accused into the provisions of the Code (Qld) ss 25, 31(4). See also Russell (1988) 7 MVR 373; Strudwick v Russell (1989) 9 MVR 15; 8.85. 133. Code (Qld) s 24(2); (WA) s 24 second para. See Food Act 2006 (Qld) s 45. 134. See 6.16, 14.52; for non-Code examples, see Drugs Misuse Act 1986 (Qld) s 129(1)(d); Prostitution Act 2000 (WA) s 16; Hutchinson (2003) 144 A Crim R 28; 16.21. 135. See also McPherson v Cairn [1977] WAR 28; Curtis v de Groot; Ex parte Curtis [1978] Qd R 299; Harmer v Grace; Ex parte Harmer [1980] Qd R 395 at 397–9; Smith v Le Mura; Ex parte Smith [1983] 1 Qd R 535 at 539; Brimblecombe v Duncan [1958] Qd R 8; Thomas v McEather [1920] St R Qd 166; Pacino (1998) 105 A Crim R 309. 136. For the Commonwealth position, see Code 1995 (Cth) s 10.3; 1.19, 8.12. 137. Code (Qld) s 31(1)(a)–(e); (WA) ss 31(1), 32. 138. Code (Qld) ss 269, 304; (WA) s 246.

139. Code (Qld) ss 271–273; (WA) s 248. 140. Code (Qld) ss 274–279, 458; (WA) ss 251–256, 441. 141. Code (Qld) ss 280, 281; (WA) ss 257, 258. 142. Code (Qld) ss 282, 282A; (WA) ss 259–259A. 143. Code (Qld) and (WA) s 31. See 8.144–8.166; Smith [2005] 2 Qd R 69; (2005) 151 A Crim R 535 at 540. 144. See Larner v Dorrington (1993) 19 MVR 75; Dudley v Ballantyne (1998) 28 MVR 209 at 214. 145. See also Howe [1987] AC 417; Loughnan [1981] VR 443; Southwark London Borough Council v Williams [1971] Ch 734; Conway [1989] QB 290; Martin [1989] 1 All ER 652; Limbo v Little (1989) 65 NTR 19; 98 FLR 421. 146. Note that in the similar Queensland case of State of Queensland v Nolan [2002] 1 Qd R 454; (2001) 122 A Crim R 517, the Supreme Court ruled that Criminal Code (Qld) s 25 did not apply, and instead relied on self-defence to justify the surgical separation of twins. 147. See Warner [1980] Qd R 207; Strudwick v Russell (1989) 9 MVR 15; Limbo v Little (1989) 65 NTR 19; 98 FLR 421. 148. See Dunjey v Cross (2002) 36 MVR 170 at 182; Dudley v Ballantyne (1998) 28 MVR 209 at 213. 149. See Pius Piane [1975] PNGLR 52 at 57; Warner [1980] Qd R 207; Strudwick v Russell (1989) 9 MVR 15 at 18–20; Webb [1986] 2 Qd R 446 at 450; McHenry v Stewart (SC(WA), 14 December 1976, unreported), discussed in Larner v Dorrington (1993) 19 MVR 75 at 79. For reference to s 25 of the Code in the context of granting an application to proceed with the surgical separation of conjoined craniopagus twins, see State of Queensland v Nolan [2002] 1 Qd R 454; (2001) 122 A Crim R 517; 12.10. 150. See also Martin [1989] 1 All ER 652. 151. See also Strudwick v Russell (1989) 9 MVR 15; Limbo v Little (1989) 65 NTR 19; 98 FLR 421. 152. For the Commonwealth position, see Code 1995 (Cth) s 7.3; 1.19, 8.12. 153. See Ward (2000) 23 WAR 254 at 256–7. 154. For a jury direction at common law, see Dixon J in Porter (1933) 55 CLR 182; [1936] ALR 438. 155. See Falconer (1990) 171 CLR 30 at 46–7; 96 ALR 545. 156. Code 1995 (Cth) s 7.3. 157. See Falconer (1990) 171 CLR 30 at 62; 96 ALR 545; Re Walton [1992] 2 Qd R 551 at 564; Enright [1990] 1 Qd R 563 at 571; Ayoub [1984] 2 NSWLR 511; Dickie [1984] 1 WLR 1031; Price [1963] 2 QB 1. Note Code (Qld) s 668(3) and Criminal Procedure Act 2004 (WA) s 25 which preserves the right of appeal of an accused acquitted on the grounds of insanity. 158. See Falconer (1990) 171 CLR 30 at 42, 56, 61, 70, 86; 96 ALR 545. 159. See Donovan [1990] WAR 112. 160. See Milloy [1993] 1 Qd R 298; Cameron [1990] 2 WAR 1. 161. See Falconer (1990) 171 CLR 30 at 49; 96 ALR 545. 162. See Falconer (1990) 171 CLR 30 at 58, 70, 77; 96 ALR 545. See also Milloy [1993] 1 Qd R 298 at 300. 163. See Act 69 of 1996; Criminal Law (Mentally Impaired Defendants) Act 1996; Mental

Health Act 1996 (WA). 164. See Bratty v Attorney-General (Northern Ireland) [1963] AC 386 at 412. 165. See Milloy [1993] 1 Qd R 298. 166. See Bratty v Attorney-General (Northern Ireland) [1963] AC 386. 167. See Hennessy [1989] 2 All ER 9 at 14. 168. See Kemp [1957] 1 QB 399. 169. See Dearnley [1947] St R Qd 51 at 61; 8.127. 170. See Kemp [1957] 1 QB 399; Porter (1933) 55 CLR 182 at 189; [1936] ALR 438; Holmes [1960] WAR 122 at 125; Hodges (1985) 19 A Crim R 129. 171. See also Re a Barrister (1957) 97 CLR 279; [1957] ALR 620; (1957) 31 ALJR 424 at 430–1; Rabey (1980) 114 DLR (3d) 193 at 199; Bedelph [1980] Tas R 23; (1980) 1 A Crim R 445 at 447; Sullivan [1983] 3 WLR 123 at 128–9; Radford (1985) 42 SASR 266; 20 A Crim R 388 at 395–6. 172. Falconer (1990) 171 CLR 30 at 86; 96 ALR 545. 173. This is sometimes referred to as ‘irresistible impulse’: see Sodeman (1936) 55 CLR 192 at 233; Brown [1960] AC 432 at 449–50. 174. See also Sodeman (1936) 55 CLR 192 at 215. 175. The court rejected the alternative view adopted in Windle [1952] 2 QB 826. 176. See Falconer (1990) 171 CLR 30 at 49; 96 ALR 545. 177. See also Walton [1977] 3 WLR 902; Wallace [1982] Qd R 265; Chester [1982] Qd R 252; Nielsen [1990] 2 Qd R 578; and see Foy [1960] Qd R 225 at 239. In Lock [2002] 1 Qd R 512, it was held that the trial judge should assist the jury by explaining the relevance of the medical evidence. 178. See Hitchens [1962] Tas SR 35 at 51. 179. See M’Naughten (1843) 10 Cl & Fin 200 at 208. 180. It applies to simple and indictable offences but not offences under Commonwealth law: see Mental Health Act 2000 (Qld) s 267. 181. Code (Qld) s 304A; see 12.92. 182. Mental Health Act 2000 (Qld) ss 270, 271. 183. Mental Health Act 2000 (Qld) s 257. 184. Mental Health Act 2000 (Qld) ss 61, 62; Enright [1990] 1 Qd R 563. 185. Mental Health Act 2000 (Qld) s 405; Schafferius [1987] 1 Qd R 381; Re Walton [1992] 2 Qd R 551. 186. Mental Health Act 2000 (Qld) s 58; Sch 2. 187. Mental Health Act 2000 (Qld) Sch 2; see 12.92. 188. Mental Health Act 2000 (Qld) ss 267–269. For appeals from the Mental Health Court, see Mental Health Act 2000 (Qld) s 334; Farrah [1997] 1 Qd R 460. 189. Mental Health Act 2000 (Qld) ss 270–279. 190. Mental Health Act 2000 (Qld) ss 281, 282. 191. Mental Health Act 2000 (Qld) ss 311–313.

192. Code (Qld) s 26; Criminal Law (Mentally Impaired Defendants) Act 1996 (WA) s 10. 193. Code (Qld) s 645. 194. See Presser [1958] VR 45; Koiyari-Iyeva [1965–6] PNGLR 284; Khallouf [1981] VR 360; Roche (1889) 3 QLJ 139; Enright [1990] 1 Qd R 563. 195. Criminal Procedure Act 2004 (WA) s 126(1)(d). 196. Criminal Procedure Act 2004 (WA) s 93. 197. See Criminal Law (Mentally Impaired Accused) Act 1996 (WA) ss 3–19; Criminal Procedure Act 2004 (WA) s 130; Lindley (2003) 31 SR (WA) 265. 198. Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 12; see Gardiner (No 1) (1999) 21 SR (WA) 316; Gardiner (No 2) (1999) 23 SR (WA) 70; Gardiner (No 3) (2000) SR (WA) 136. For the role of the Mentally Impaired Accused Review Board, see Criminal Law (Mentally Impaired Accused) Act 1996 Pts 5, 6. 199. Lindley (2003) 31 SR (WA) 265. 200. Criminal Law (Mentally Impaired Accused) Act 1996 (WA) ss 16–19, 24, 25, 35. 201. See Mental Health Act 2014 (WA) Pt 13, Div 2. 202. Code (Qld) s 647; Criminal Procedure Act 2004 (WA) ss 113, 146. 203. Mental Health Act 2000 (Qld); Criminal Law (Mentally Impaired Accused) Act 1996 (WA); Criminal Procedure Act 2004 (WA) s 149. See also 8.116. 204. For the Commonwealth position, see Code 1995 (Cth) ss 8.1–8.5; 1.19, 8.12. 205. See 8.98–8.118; Dearnley [1947] St R Q 51 at 61; Re Bromage [1991] 1 Qd R 1 at 9. 206. See Falconer (1990) 171 CLR 30 at 82; 96 ALR 545; Battle (1992) 8 WAR 449; Haggie v Meredith (1993) 9 WAR 206; Nielsen [1990] 2 Qd R 578; Cameron [1990] 2 WAR 1. 207. See Haggie v Meredith (1993) 9 WAR 206 at 213; Battle (1992) 8 WAR 449 at 456, 464; Kusu [1981] Qd R 136; Falconer (1990) 171 CLR 30; 96 ALR 545; Cameron [1990] WAR 1 at 15–18; 8.55. 208. See Snow [1962] Tas SR 271 at 284; Hodgson [1985] Tas R 85. 209. See also Battle (1992) 8 WAR 449 at 456, 464, 465; Hubert (1993) 67 A Crim R 181 at 199; for the common law position, see Kingston [1994] 3 All ER 353. 210. See also Re Bromage [1991] 1 Qd R 1; Beard [1920] AC 479. 211. See Dearnley [1947] St R Qd 51 at 62. 212. See Re Bromage (1991) 1 Qd R 1 at 7; Haggie v Meredith (1993) 9 WAR 206 at 210, 212; 8.125. 213. See Kusu [1981] Qd R 136; Falconer (1990) 171 CLR 30; 96 ALR 545; Cameron [1990] 2 WAR 1; O’Connor (1980) 146 CLR 64; 29 ALR 449. 214. See Kaeser [1961] QWN 11; Holman [1970] WAR 2 at 6; Thompson [1961] Qd R 503 at 516; Snow [1962] Tas SR 271 at 294; but also see Kaminski [1975] WAR 143, where robbery was held to be an offence that had an intention to cause a specific result as an element. 215. See also Dodd [1978] WAR 209; Herbert (1982) 42 ALR 631; 62 FLR 302. 216. See Cameron [1990] 2 WAR 1 at 13; Hubert (1993) 67 A Crim R 181; Cutter (1997) 143 ALR 498; 94 A Crim R 152 at 155. 217. For the Commonwealth position, see Code 1995 (Cth) ss 7.1, 7.2; 1.19, 8.12.

218. Code (Qld) s 29(1); (WA) s 29 first para. 219. Code (Qld) s 29(2); (WA) s 29 second para. 220. Child Protection Act 1999 (Qld) Ch 2; Child Welfare Act 1947 (WA) ss 29, 30, but see now the Children and Community Services Act 2004 (WA) ss 35–41. 221. See C (a minor) [1996] AC 1; [1995] 2 WLR 383. See also JA (2007) 161 ACTR 1; 174 A Crim R 151. 222. See B (an infant) [1979] Qd R 417; Brooks (1945) 64 NZLR 584; B (1958) 44 Cr App R 1; (1982) 16 NTR 8; C (a minor) [1995] 2 WLR 383 at 401; K and B [1997] 1 Cr App R 36; F [1999] 2 Qd R 157. 223. See M (a minor) (1977) 16 SASR 589 at 591–3; JA (2007) 161 ACTR 1; 174 A Crim R 151; F [1999] 2 Qd R 157 at 160. 224. See Runeckels (1984) 79 Cr App R 255; Coulburn (1987) 85 Cr App R 309 at 315; C (a minor) [1996] AC 1; [1995] 2 WLR 383 at 401. 225. See F [1999] 2 Qd R 157. 226. See B and A (1979) 69 Cr App R 365. 227. See C (a minor) [1996] AC 1; [1995] 2 WLR 383 at 402. 228. See Coulburn (1988) 87 Cr App R 309; Runeckels (1984) 79 Cr App R 255. 229. O’Toole v Arnold (1982) 16 NTR 8; 61 FLR 372; Sheldon (1996) 2 Cr App R 50. 230. See F (1999) 101 A Crim R 113. 231. F (1999) 101 A Crim R 113. 232. See B (CA(Qld), No 369 of 1997, BC9707526, 6 November 1997, unreported). 233. See Sneesby [1951] Qd R 26 at 28. 234. For the Commonwealth position, see Code 1995 (Cth) s 10.2; see 1.19, 8.12. 235. Code (Qld) s 31(1)(a); (WA) s 31(1). 236. Code (Qld) s 31(1)(b); (WA) s 31(2). 237. Code (Qld) s 31(1)(c); (WA) s 31(3). 238. Code (Qld) s 31(1)(d). 239. Code (WA) s 31(4). 240. See Gill [1963] 2 All ER 688 at 691; Pickard [1959] Qd R 475; Go (1990) 73 NTR 1; 102 FLR 299; 6.14–6.16. 241. See Silk [1973] Qd R 298; Fietkau [1995] 1 Qd R 667. 242. See Code (Qld) ss 81, 82, 305. 243. See also Coco (1994) 179 CLR 427; 120 ALR 415. 244. See A v Hayden (No 2) (1984) 156 CLR 532; 56 ALR 82; Clough v Leahy (1904) 2 CLR 139; 11 ALR 32. 245. See Coco (1994) 179 CLR 427; 120 ALR 415; Slade [1995] 1 Qd R 390. 246. Code (Qld) s 31(3). 247. See Smith [2005] Qd R 69; (2005) 151 A Crim R 535 at 540. 248. See Code (Qld) s 31(1)(d)(ii); Smith [2005] Qd R 69; (2005) 151 A Crim R 535 at 542. 249. See also Lawrence [1980] 1 NSWLR 122; Brown and Morley [1968] SASR 467; McCafferty

[1974] 1 NSWLR 89; Lynch [1975] 1 All ER 913; Whelan [1934] Ir R 518 at 526; Howe [1987] AC 417; Zaharias (2001) 122 A Crim R 586. 250. Code (Qld) s 31(2); Baker and Ward [1999] Cr App R 335; de la Espriella-Velasco (2006) 31 WAR 291; see 8.145. 251. Act No 43 of 2000 s 16. 252. See also Carker (No 2) (1967) 2 CCC 190; Falkenberg (1973) 13 CCC (2d) 562. 253. See Hudson and Taylor [1971] 2 All ER 244; Palazoff (1986) 43 SASR 99. 254. In Queensland, this must be a reasonable belief: s 31(1)(d)(ii); see Smith [2005] 2 Qd R 69; (2005) 151 A Crim R 535 at 542. 255. See Bergstrom (1980) 52 CCC (2d) 407 at 411, 422; Baker and Ward [1999] Cr App R 335. 256. Review of the Law of Homicide, Project No 97, LRCWA (Sept 2007), p 199. 257. Code (WA) s 31(2). 258. Review of the Law of Homicide, Project No 97, LRCWA (Sept 2007), pp 186–7. 259. See the decision in Morris (2006) 201 FLR 325 on the duress provision in the Commonwealth Criminal Code, in which the court suggested that even if there is no reasonable way to render the threat ineffective, the accused’s response may still be an unreasonable response.

[page 195]

Chapter Nine Parties to Offences

Introduction 9.1 Where more than one person is involved in the commission of any offence, the criminal responsibility of those who provided assistance to the actual perpetrator will be determined in accordance with the Code (Qld) and (WA) ss 7, 8 and 9. These are referred to as the party provisions of the Code and they apply to all offences, including those that do not arise under the Code.1

Liability under s 7: accessories, counsellors, aiders and procurers 9.2 A person who is a party to an offence is deemed to have committed the offence and may be charged with having committed it.2 Under s 7, the following categories of parties are given: (a) every person who actually does the act3 that constitutes the offence; (b) every person who does an act to enable or aid anyone to commit the offence; (c) every person who aids anyone in committing the offence; (d) any person who counsels or procures anyone to commit the offence. These categories of liability have been held to reflect those at

common law.4 Thus, in common law terminology, para (a) describes a principal in the first degree, paras (b) and (c) describe a principal in the second degree and para (d) describes an accessory before the fact. As will be seen below, the scope of the criminal responsibility of an accessory that arises under s 7 is extended through the operation of the Code (Qld) and (WA) ss 8 and 9. [page 196]

Joint offences 9.3 Where an offence is jointly committed, for example, where two persons combine to perform the acts that constitute the offence, the liability of both arises under the Code (Qld) s 7(1)(a) and (WA) s 7(a). Thus, where two persons open a window in order to enter another’s premises, with the intention of stealing property from it, and they both enter the premises, each of them is deemed to have committed the crime of housebreaking or burglary5 as a principal offender under para (a). Also, where the offence alleged has more than one element, para (a) makes liable both parties where each of them performs some element, but where neither of them performed all elements, of the offence and this will be the case even where the prosecution is unable to identify which of them completed the particular acts that constituted the offence.6 Thus, in the above example of housebreaking, if one person opened the window and the other person entered the premises, both will have committed the offence. Similarly, where one person steals property from the victim, while the other person uses violence to the victim in order to enable the stealing to occur, the crime of robbery will be committed by both parties.7

Derivative nature of liability 9.4 In one sense, the Code (Qld) s 7(1)(b)–(d) and (WA) s 7(b)–(d) operate to make the aider or counsellor liable in a derivative manner; that is, liable for the offence actually perpetrated by another. In the

housebreaking example above, if only one person had entered the premises, a person who stayed outside keeping watch to enable the thief to commit the offence would be liable under paras (b) or (c). Similarly, under para (d), a person who counselled or procured the thief to commit the offence would also be liable for the housebreaking offence. Nevertheless, accessorial liability is not entirely derivative in nature because, in some situations, the accessory may be found guilty of a crime different from that of the perpetrator because the criminal responsibility of each person involved in the commission of the offence will be assessed according to each person’s individual involvement, both physically and mentally.8

Where perpetrator is found not guilty 9.5 As the introductory words to the provision show, s 7 is applicable in circumstances when an offence is committed. A strict interpretation of these words would mean that the aider or counsellor could not be liable if the perpetrator is acquitted or, indeed, not brought to trial at all.9 Such a rule once pertained to the law of criminal conspiracy, but has now been swept away, with the result that one conspirator can now be guilty regardless of the guilt of his or her co-conspirator: see 11.38. That rule had no application to s 7 in any event and, [page 197] therefore, provided someone has committed an offence, there can be liability for aiding or counselling its commission.10 Reliance on the definition of ‘offence’ in s 2 of the Code leads to the same conclusion. The section defines an offence as ‘an act or omission which renders the person doing the act or making the omission liable for punishment’. Transposing this into the introductory words of s 7, persons encompassed by paras (a), (b), (c) or (d) are liable when a

punishable act has been done.11 In Lopuszynski [1971] QWN 33, Kneipp J said at 82–3:12 Suppose the charge is one of rape. The complainant may not be able to identify the man who is alleged to have raped her, and there might not be sufficient other evidence admissible against him, so that the case against him might well fail. The alleged accessory, on the other hand, might have made a full confession, which not only confirms the fact that there was a rape, but identifies the person who committed it, and contains admissions that he aided that person in committing it. I cannot see any reason why, in those circumstances, the alleged accessory should not be convicted.

A similar approach is taken in circumstances where the perpetrator is able to rely on some matter of exculpation as an excuse from criminal responsibility.13 A particular instance of this is seen in the Code (Qld) s 7(4) and (WA) s 7 final para. This is sometimes known as the ‘innocent agent’ or innocent instrumentality provision and it provides that, where the accused procures another to do an act that would have been an offence if the accused had done it, the accused is guilty of the offence even if the person who actually did the act is not guilty of the offence.14 For example, an accused may intend to kill by causing a victim to consume poisoned food. If the accused utilises some third party who has no knowledge of either the accused’s intention or the presence of the poison to serve the poisoned food to the victim, then the innocent agent provision makes the accused liable for the killing and the third party would not be guilty of an offence.15 [page 198]

Accessory must ‘knowingly’ aid perpetrator 9.6 Whether a person has done an act for the purpose of aiding, or has aided or counselled or procured anyone in accordance with s 7, is determined subjectively. This is apparent from the words of para (b) in that the accessory must have done the act ‘for the purpose of enabling or aiding the other to commit the offence’. The other heads of accessorial liability in s 7 have been similarly interpreted. Thus, under s 7(c), the accessory must ‘knowingly’ aid the perpetrator. Such an

interpretation avoids attributing criminal responsibility to the unwitting aider, such as a taxi driver who innocently transports the accused to the scene of the crime.16 This subjective requirement also applies to counselling or procuring under s 7(d).17 This same result was reached by different means in Solomon [1959] Qd R 123, where the Court of Criminal Appeal relied on the first limb of the Code (Qld) s 23 to show that an accessory was not criminally responsible for acts beyond the agreed scope of the concerted purpose, because these occurred independently of the exercise of his or her will. However, this reasoning reflects the now discredited broad interpretation of ‘act’ in the first limb of that provision (and the Code (WA) (now) s 23A): see 8.50. On the narrow interpretation of ‘act’ in s 23 or s 23A, the accused would need to show there was an act of aiding, counselling or procuring that occurred independently of the exercise of his or her will. Such a situation would rarely arise. One example would be where the alleged accessory was acting unconsciously, in the sense of being in an automatistic state, when he or she aided or agreed to aid. In such circumstances, the act of aiding would be excused by the first limb of s 23 or s 23A. However, this is an extreme example; the better approach now is to regard the unwitting aider as lacking the required subjective mental element.

When perpetrator commits some other offence 9.7 Where there is some consensus between the accessory and the perpetrator as to the offence that is to be committed, the prospect arises that the perpetrator may engage in conduct that extends beyond that consensus and that involves the commission of some other offence. Since liability under s 7 is determined subjectively, the accessory will not be criminally responsible under that provision for any secondary or incidental offence that falls outside the scope of the accessory’s contemplation. At common law, it has been held that the accessory is liable for any such further offence so long as it was contemplated as a possible incident of the originally planned venture.18 Although the test may seem far reaching, it is limited by the requirement that the secondary offence must still have been

contemplated by the accessory, albeit as a possibility, and, therefore, the test is still subjective. At common law, this is referred to as the doctrine of common purpose; reference to [page 199] the changing nature of the test for accessorial liability at common law can be seen in McAuliffe (1995) 183 CLR 108 at 114; 130 ALR 26; 69 ALJR 621.19 9.8 In some cases, the test for liability under the Code s 7 approached those common law limits where the accessory was held to be liable under s 7 for offences that the accessory realised, at the time when aid was given, might be involved in the carrying out of the agreed plan.20 A liberal application of that test, however, may be too broad and it could be extended, for example, to include the taxi driver who, in innocently transporting the perpetrator to the scene of the crime, forms the opinion that the perpetrator might commit some offence. Such an approach was rejected by the Queensland Court of Appeal in B and P [1999] 1 Qd R 296. There, a man and a woman had been convicted of two offences: procuring their 11-year-old daughter to engage in carnal knowledge with another man21 and, on the basis of the party provisions of the Code, of the rape of the girl.22 The prosecution case was that they had arranged for the other man to have non-consensual carnal knowledge of the girl in return for a sum of money payable to them and that the father had driven her to the man’s house and waited for her outside until the offence was committed. A majority of the Queensland Court of Appeal held that, for ancillary responsibility to arise under s 7 of the Code, it must be shown that the accessory had intentionally taken part in the offence in the sense that his or her participation was intentionally aimed at the commission of the acts that constitute the offence. On the facts, there was no evidence that the accused parents had intended that the acts of

carnal knowledge take place without the consent of the girl and, because lack of consent is an element of rape, the court quashed the rape conviction.23 However, lack of consent by the victim is not an element of the procuring offence of which the appellants in B and P were convicted and the convictions for that offence were upheld. In any event, the convictions for that other offence did not depend on the party provisions of the Code.24 Given this decision, it seems that the liberal approach to liability demonstrated in the common law authorities is not the position under the Code (Qld) and (WA).

Knowledge of precise crime not necessary 9.9 While the participation of the accessory must be shown to have been intentionally aimed at the acts that constitute the offence committed by the perpetrator, it is not necessary that the accessory know the precise crime for which the aiding, counselling or procuring is given.25 Accordingly, where the accessory drove a terrorist to a hotel, knowing that the latter intended either to shoot persons [page 200] or to deposit a bomb, but without being certain of which, the accessory was held liable for the murder caused by the consequential bomb blast.26 Similarly, where the crime committed is burglary, it will be sufficient to establish liability if the accessory supplied equipment for that purpose but without specifically knowing which premises were involved.27 Although the accessory must knowingly aid, counsel or procure, it is not necessary that the accessory desired or intended that the crime of the perpetrator be committed and a conviction may arise even where the accessory is indifferent to the commission of the offence. In this respect the position under the Code (Qld) and (WA) appears to reflect that at common law.

This was the approach taken in Lynch v DPP for Northern Ireland [1975] AC 653 at 678, where the accessory was held to have aided a murder by driving the murderer to the scene, even though there may have been evidence that the accessory regretted the crime or was horrified by it.28

‘Act for the purpose of aiding’ and ‘aiding’ 9.10 In many cases where the party provisions apply, there is some consensus between the accessory and the perpetrator. This will usually occur when aiding or counselling is involved and it will be less likely in the case of procuring.29 However, there will be situations where there is no agreement, in any formal sense, between the parties and also situations where the perpetrator is unaware of the involvement of the accessory.30 It therefore becomes a question of whether the accused has done an act for the purpose of aiding, or has aided or counselled or procured the perpetrator in the commission of the offence. There is an obvious potential overlap in the respective ambits of the Code (Qld) s 7(1)(b) and (c) and (WA) s 7(b) and (c). An act for the purpose of aiding may also constitute aiding, such as, for example, where the accessory drives the perpetrator to a place where the latter commits an offence and where this was known to be the purpose of the driving.31 The Code (Qld) s 7(1)(b) and (WA) s 7(b) appears also to include the person who intended to aid, did an act that was calculated to aid, but who in fact did not aid in the commission of the offence, perhaps because the act or omission actually tended to hinder the successful commission of the offence. In this respect it seems that the main difference between doing an act for the purpose of aiding and aiding an offence is that in the latter case the accused must actually have aided the principal. [page 201]

Encouragement through presence 9.11 Under the Code (Qld) s 7(1)(c) and (WA) s 7(c), aiding may arise in circumstances where the accessory does not provide physical assistance to the perpetrator in the carrying out of the offence. In the absence of such assistance, there must be some positive encouragement on the accessory’s part. In Coney (1882) 8 QBD 534, participants in a prize fight were found guilty of assault and eight persons who had been among the spectators at the fight were also found guilty of assault on the basis of aiding and abetting, the common law equivalent to aiding. A majority upheld the appeal against the conviction of the spectators and Hawkin J said at 557: In my opinion, to constitute an aider and abettor, some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, or non-interference, or he may encourage intentionally by expressions, gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former he does not. It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Noninterference to prevent a crime is not itself a crime. But, the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had the power so to do, or at least to express his dissent, might under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted. But it would be purely a question for the jury whether he did so or not. So if any number of persons arrange that a criminal offence shall take place, and it takes place accordingly, the mere presence of any of those who so arranged it would afford abundant evidence for the consideration of a jury of an aiding and abetting.

Similarly, in Clarkson, Carrol and Dodd [1971] 3 All ER 344, on a charge of aiding and abetting rape, it was held that the prosecution must establish actual encouragement of the commission of the offence as well as an intention to so encourage.32 Mere presence, then, would be insufficient on most occasions to constitute an aiding, although it could be evidence in an appropriate case on which a jury might find that the accused was present with the intention of encouraging and gave deliberate positive encouragement.33 In Beck [1990] 1 Qd R 30, a

distinction was made between active and passive presence and the term ‘aid’ was held to mean ‘give support to … help, assist’ (at 38).34

Aid through omission 9.12 The aid given by an accessory may be by omission as well as by positive act. The Codes establish several legal duties, and the failure to discharge these is an omission which could be the basis of criminal liability.35 That is also the case at common law, an example of which is seen in Russell [1933] VLR 59, where the Victorian Supreme Court dismissed an appeal by the accused against his [page 202] conviction for the manslaughter of his wife and two children, who had drowned in a public swimming pool. The accused alleged that his wife had drowned herself immediately after she had drowned the children and that he had made unsuccessful attempts to save them. At the trial, the jury had asked the following question: ‘Assuming that the woman took the children into the water without the assistance of putting them in the water by the man, but that he stood by, conniving to the act, what is the position from the standpoint of the law?’. The liability of the accused was discussed first on the basis of his being directly responsible for the deaths; and then, with respect to the children, of his being a principal in the second degree, the common law equivalent to the Code (Qld) s 7(1)(c) and (WA) s 7(c). In relation to the latter approach, Mann J stated at 75–6: I think the more correct view in the present case is that the prisoner on the facts supposed, while perhaps guilty of an independent crime, was certainly guilty as participator in the murder committed by his wife. The moral duty of the accused to save his children, the control which by law he has over his wife, and his moral duty to exercise that control, do not in this view cease to be elements in this crime. On the contrary, it is these elements which as a matter of law give to the acquiescence of the father in the acts of the mother committed in his presence the quality of participation. The control which the law recognises as exercisable by a husband over his wife is well illustrated in the doctrine that the mere presence of the husband at the commission by his wife of a felony, other than murder, is generally enough to exempt the wife

altogether from criminal liability. The physical presence and the ‘connivance’ of a parent in the position of the accused has in law, in my opinion, a criminal significance not attaching to the presence and connivance of the mere “passer-by” referred to in some of the cases. It follows that the case put by me to the jury by way of contrast, though based upon a sound theoretical distinction, was not applicable to the special facts. The facts necessary to constitute aiding and abetting were too narrowly conceived, since no legal distinction can be made between tacit and oral concurrence, and a correct direction would be that not only was the accused morally bound to take active steps to save his children from destruction, but by his deliberate abstention from so doing, and by giving the encouragement and authority of his presence and approval to his wife’s act, he became an aider and abettor and liable as a principal offender in the second degree.

On this basis, mere presence in those situations where there is a duty to act could amount to liability under the Code (Qld) s 7(1)(c) and (WA) s 7(c). In Peterson v Fleay (2007) 176 A Crim R 148, the court found that the accused, who had allowed cannabis to be grown on his land, which was under his ‘dominion and control’, had aided the commission of the principal’s offence. His omission was therefore made culpable by the duties associated with his land. Where such a duty does not arise, and in the absence of actual assistance, some positive encouragement will usually be required.

Mental element 9.13 There also seems to be a difference in the mental state required for liability under the Code (Qld) and (WA) s 7(b) and (c). While it has been accepted that there may be an overlap between the sections, the mental state of doing an act ‘for the purpose of aiding’ is essentially different to that for aiding, which requires that the accused ‘knowingly’ aid. In Beck, the accused’s knowledge of the principal’s [page 203] obsession with young girls was regarded as highly relevant to establishing the mental element for s 7(c) of the Code (Qld), although it would probably not have been sufficient to establish that she had done acts with the ‘purpose’ of aiding. In Ward (1997) 19 WAR 68 at

75, a charge under the Code (WA) s 7(c), the Court of Criminal Appeal in Western Australia held that the relevant state of mind for the secondary offender under s 7 of the Code differs depending on whether the aid was rendered before the commission of the offence or, alternatively, during or after it. Where the aid was rendered before the commission of the offence, it held that the secondary offender must know generally what offence would or might be committed and not precisely how he or she might go about it but that, where the aid was rendered during or after the commission of the offence, the secondary offender must have actual knowledge of the facts amounting to the offence in respect of which aid is being given.36 The later decision in Witsen [2008] QCA 316 confirms that in relation to the offence of aiding, recklessness does not suffice; full knowledge of the facts amounting to the offence is required.

Counselling or procuring 9.14 Under the Code (Qld) s 7(1)(d) and WA s 7(d), the accessory may be charged either with the commission of the offence or with counselling or procuring its commission. A person counsels or procures the commission of an offence if he or she advises, urges or solicits the commission of the offence or conspires with another in its commission.37 Additionally, the accessory may have procured, in the sense of ‘produced by endeavour’, the commission of the offence.38 In Maroney [2002] 1 Qd R 285, the conviction of an accused was upheld for counselling or procuring others to supply him with a dangerous drug.39 In F; Ex parte Attorney-General [2004] 1 Qd R 162, the Court of Appeal cautioned that ‘the degree of proximity between procurement and what is procured may vary on the context in which the word is used’.

Doctrine of common purpose 9.15 Reference was made above to the doctrine of common purpose at common law: see 9.7. Such a doctrine also arises under the Code (Qld) and (WA) s 8, but with a different test for liability than that

which applies at common law. It will be seen below that s 8 imports an objective test of liability. In that sense, the Code, through s 8, has extended accessorial responsibility beyond that at common law and beyond that which arises under s 7, in that the accessory under s 8 may be criminally responsible for an unforeseen result so long as it was objectively foreseeable.40 [page 204] In its application, the common purpose principle may be more relevant to the person sought to be made liable under s 7 para (d) as a counsellor or a procurer rather than under paras (b) or (c) as an aider. This is because of the physical presence of the latter, in most cases, at the scene of the offence and the opportunity presented to him or her to amend the plan according to contingencies as they arise during the commission of the plan’s main object. The counsellor or procurer, on the other hand, will not usually be in that position and thus, as stated in Johns (1980) 143 CLR 108; 28 ALR 155 at CLR 116:41 … 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.

Notwithstanding that, however, the common purpose rule, as stated in Johns, is applicable to all categories of accessories, although it may be necessary to determine the state of mind of each offender at different stages of the criminal enterprise.

Offence involving assault 9.16 The case law has established that if the victim dies in circumstances that involve the planned commission of an assault on the victim, then a person can be committed of manslaughter under s 7. In Brennan (1936) 55 CLR 253; [1936] ALR 318, the accused and two others were charged with wilful murder. Brennan had stayed outside a jeweller’s shop to keep watch while the other two had broken into

the shop and stolen jewellery. In the course of the commission of that offence, the caretaker was killed. Brennan was convicted of manslaughter. On his appeal to the High Court from the Court of Criminal Appeal of Western Australia, the leading judgment was given by Dixon and Evatt JJ who, referring to the Code (WA) s 7, said at CLR 263: Under this provision the applicant was liable to conviction for manslaughter if it was established that the plan on which his confederates acted included some physical interference with the caretaker amounting to an assault, that in fact death resulted from such an assault, and that he remained on watch for the purpose of aiding them in carrying out that plan and so commit the assault, or that he counselled them to do so.

Accordingly, manslaughter will be established under s 7 if the plan involved an assault of any kind. Manslaughter may be established even where the unlawful killing results from a mere common assault: see 12.57. On that basis, and quite apart from the party provisions of the Code, a person who does an act that constitutes an assault will be liable for the consequences of it. Where one of the consequences is death, then, unless the killing was authorised, justified, or excused by law, for example, where it occurred by accident, the person will be guilty of manslaughter.42 Flowing from this, persons who are parties to the planned attack may be similarly liable for manslaughter. [page 205] 9.17 More generally, s 7 makes the accessory to the plan liable to the same extent where the assault committed is of the type envisaged by the plan. The consequences of the commission of the assault may have been greater than the plan envisaged or than what the person who actually did the act intended at the time of so doing. Yet, as long as the consequences flow from the type of assault that was commonly agreed to, both parties to the plan will be criminally responsible. As noted above, if one of the consequences is death, then they will be liable for, at least, manslaughter. On the other hand, when the perpetrator transgresses the plan, for example, by independently and

unexpectedly adopting a degree of violence not previously agreed to or contemplated by the accessory, the accessory will not be liable for the consequences that flow from the application of that greater degree of force, by virtue of s 7. However, the accessory may be liable under ss 8 or 9 if the objective test relating to liability under those provisions is satisfied.43

Liability under ss 8 and 9 Accessorial liability extended 9.18 The scope of accessorial liability under s 7 is extended by the terms of the Code (Qld) and (WA) ss 8 and 9. The Code (Qld) s 8 and (WA) s 8(1) reads: Offences committed in prosecution of common purpose: When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.

The Code (WA) s 9 is virtually identical to Code (Qld) s 9 but is not divided into subsections. The latter provision reads: Mode of execution immaterial: (1) When a person counsels another to commit an offence, and an offence is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence actually committed is the same as that counselled, or a different one, or whether the offence is committed in the way counselled, or in a different way, provided in either case that the facts constituting the offence actually committed are a probable consequence of carrying out the counsel. (2) In either case, the person who gave the counsel is deemed to have counselled the other person to commit the offence actually committed by the other person.

These provisions require a consideration of what was in the contemplation of the accessory and the perpetrator and they deem the accessory to be criminally responsible for an offence committed by the perpetrator where that offence is a probable consequence of carrying out the parties’ common intention or the accessory’s counselling. The extension of criminal responsibility under ss 8 and 9 arises because the provisions rely on objective criteria.

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Section 8 requirements 9.19 Liability under the Code (Qld) s 8 and (WA) s 8(1) requires proof: of a common intention to prosecute an unlawful purpose; that an offence was committed in the prosecution of the common unlawful purpose; and that the offence committed was of such a nature that its commission was the probable consequence of the prosecution of the common unlawful purpose.44

Intention to prosecute an unlawful purpose 9.20 The first of those elements requires consideration of the scope of the common intention for the prosecution of the unlawful purpose agreed to, expressly or tacitly, by the offenders.45 While the scope of this common intention will be determined subjectively, reference may be made, as with all such subjective analyses, to external factors to determine what the parties must have contemplated.46 In Stuart (1974) 134 CLR 426; 4 ALR 545, the two accused were convicted of murder arising out of their setting fire to a nightclub. The case demonstrates that the purpose must be assessed in light of all relevant circumstances. There, Gibbs J pointed out that it was not part of the plan in that case to commit murder or that anyone be killed or injured in the fire and that it was possible that the resultant holocaust may have been contributed to by the action of the air-conditioning plant in the building. However, in assessing the purpose, it was held that the jury was entitled to take into account the circumstances surrounding its formulation, in particular, evidence that indicated knowledge by the accused that the club was occupied and that the fire would occur at a time when patrons of the club were likely to be present (at CLR 533).

In Keenan (2009) 236 CLR 397; 252 ALR 198, the court recognised that it was possible to infer the unlawful purpose where that was not explicit (at CLR 432 per Kiefel J): It is not to be expected that every plan involving the infliction of physical harm will be detailed and include the means by which it is to be inflicted. However it may be possible to infer what level of harm is intended … An inference about the level of harm involved in the common purpose to be prosecuted may be drawn from the general terms in which an intended assault is described, the motive for the attack and the objective sought to be achieved, amongst other factors.

The High Court found that the evidence that it was agreed that a baseball bat was to be used in the assault supported an unlawful purpose of inflicting serious harm. [page 207] Where a common intention cannot be established, however, the requirements of s 8 are not made out. So, in Alovili [2014] QCA 45, where two brothers in succession assaulted the complainant, but there was no evidence that they had agreed to assault the complainant, the defendants’ conviction for doing grievous bodily harm was set aside on appeal.

Offence committed in the prosecution of a common unlawful purpose 9.21 The second requirement in the Code (Qld) s 8 and (WA) s 8(1) is that the offence must have been committed in the prosecution of the unlawful purpose. The term ‘offence’ as it is used there takes its meaning from the Code (Qld) and (WA) s 2, so it is the act done or omission made by the perpetrator that must have been committed in the prosecution of the unlawful purpose.47 In Phillips and Lawrence [1967] Qd R 237, Phillips, Lawrence and three others were convicted of several offences, including unlawful and indecent assault, sodomy and robbery in company with personal violence. There was evidence of a common intention to prosecute the

unlawful purpose of assault. The trial judge directed the jury in terms that, if they were satisfied that robbery was a probable consequence of the assault, they could convict under s 8 for robbery. The Court of Criminal Appeal upheld the appeal against this direction. Hart J referred to common law authority to the effect that, for an offence to be committed ‘in the prosecution of’ an unlawful purpose, it was not sufficient for the offence to be a probable result of the prosecution of the common design. It had to be shown that it was done: in pursuance of the common design; in furtherance of the common design; for the purpose of the common design; or in the prosecution of the common design. Referring to the facts of the case, his Honour said at 284:48 As I have stated, I do not think it could be said here that the robbery could have occurred in the prosecution of a common purpose to assault or be a probable consequence of its prosecution. One or more of the assaulters must have formed a further purpose. The case is quite different where the common purpose is robbery and the offence committed murder, because the murder can be committed in the prosecution of the purpose and be the probable consequence of its prosecution.

9.22 In Hind and Harwood (1995) 80 A Crim R 105, the common intention was to carry out an armed robbery in a cafeteria. Hind shot and killed a person sitting on a seat outside the premises because he failed to move away when requested to do so by Hind. Thereafter, Hind and Harwood fled the scene. Both were convicted of murder, Hind as the perpetrator and Harwood on the basis of the application of the Code s 8.49 The trial judge directed the jury that it ought not convict unless satisfied that the accused were not merely ‘sussing out’ the place but considering [page 208] robbery as an option. The jury must have been so satisfied, because it convicted them. Nevertheless, the direction would seem to be one

favourable to the accused in that case because an act that is ‘preliminary to’ may still have been done in the prosecution of the unlawful purpose.50 Equally, acts subsequent to the unlawful purpose may be included in the prosecution of that purpose and would include acts done in departing from the scene of the offence or resisting action by another to prevent that departure.51

Offence committed a probable consequence of the unlawful purpose 9.23 The third element of the Code (Qld) s 8 and (WA) s 8(1) is that the act done or omission made by the perpetrator must have been of such a nature that it was a probable consequence of the prosecution of the common unlawful purpose.52 This imports a remoteness test into the provision and does so in terms that extend accessorial liability beyond that which is found in s 7. This is because of the objective nature of the test that arises under this element of s 8, in contrast to the subjective test referred to above in the context of s 7. As Gibbs J in Stuart (1974) 134 CLR 426; 4 ALR 545 stated at CLR 442: The question posed by the section is whether in fact the nature of the offence was such that its commission was a probable consequence of the prosecution of the common unlawful purpose and not whether the accused was aware that its commission was a probable consequence.

In applying the test, it has been held that a probable consequence is:53 … that which a person of average competence and knowledge might be expected to foresee as likely to follow upon the particular act; though it may be that the particular consequence is not intended or foreseen by the actor.

It has recently been confirmed that the test of what is a probable consequence is entirely objective. In AAP [2013] 1 Qd R 244, the Queensland Court of Criminal Appeal found that the age and personal circumstances of the perpetrator are not relevant considerations in determining what is a probable consequence. In Hind and Harwood (1995) 80 A Crim R 105 at 116, 117 and 142, the Court of Appeal in Queensland considered that a probable

consequence under s 8 will arise if that consequence was a real or substantial possibility.54 This was disapproved by the High Court in Darkan, Deemal-Hall and Mclvor (2006) 227 CLR 373 at 399 and 412; 228 ALR 334. There, it was held that a probable consequence does not [page 209] mean ‘on the balance of probabilities’, that it means more than ‘a real or substantial possibility or chance’ and that a proper direction to a jury would stress:55 … for the offence committed to be ‘a probable consequence’ of the prosecution of the unlawful purpose, the commission of the offence had to be not merely possible, but probable in the sense that it could well have happened in the prosecution of the unlawful purpose.

In Barlow (1997) 188 CLR 1; 144 ALR 317, the High Court considered what was meant by the ‘nature’ of the offence and Brennan CJ, Dawson and Toohey JJ said at CLR 10: … [s 8] deems a person falling within its terms to have done the act or to have made the omission which the principal offender has done or made. It fastens on the conduct of the principal offender, but it does not deem the secondary party to be liable to the same extent as the principal offender. It sheets home to the secondary offender such conduct (act or omission) of the principal offender as (1) renders the principal offender liable to punishment but (2) only to the extent that that conduct (the doing of the act or the making of the omission) was a probable consequence of prosecuting a common unlawful purpose. The secondary party is deemed to have done an act or made an omission but only to the extent that the act was done or the omission was made in such circumstances or with such a result or with such a state of mind (which may include a specific intent) as was a probable consequence of prosecuting the common unlawful purpose. Those circumstances, that result and that state of mind are factors which, either together or separately but in combination with a proscribed act or omission, define an offence of a particular ‘nature’. Thus the unlawful striking of a blow by a principal offender will constitute an offence the nature of which depends on whether the blow causes bodily harm or grievous bodily harm or death and on the specific intent with which the blow is inflicted.

Most recently in Keenan (2009) 236 CLR 397; 252 ALR 198, it was held that the general plan to inflict serious harm included as a probable consequence the offence of intentionally causing grievous bodily harm. In that case it had been agreed to bring along a baseball

bat in order to assault the victim. In fact, the victim was shot by one of the parties who had, unbeknown to the others, brought along a gun. The High Court upheld Keenan’s conviction as an accessory for this offence, it being a probable consequence of the unlawful purpose of inflicting serious harm on the victim.

Counselling and procuring — Code (Qld) and (WA) s 9 9.24 Unlike the Code (Qld) s 8 and (WA) s 8(1), which is a deeming provision functioning independently of, and in addition to, s 7(b) and (c) of the Code, s 9 is a deeming provision which only operates in conjunction with s 7(d). In the circumstances to which it relates, s 9 deems the secondary offender to have counselled, for the purpose of s 7(d), the offence actually committed by the perpetrator. This liability arises regardless of whether a different offence from that counselled is committed, or whether the same offence is committed but in a different way, provided in either case its commission was a probable consequence of the carrying out of the original counsel. Section 7(d) establishes liability for counselling and procuring. Section 9 extends that provision by deeming, [page 210] in the circumstances to which it relates, the accessory to have counselled the perpetrator to commit the offence actually committed. No reference is made in s 9 to procuring.56 Its omission may be explained by consideration of the nature of procurement, which necessarily involves a nexus between the offence committed and the procurement given. The position is different with counselling, which is more in the nature of advice and, when offered, may be acted on by the perpetrator in a way different from the original counsel.57

Section 9 requirements 9.25

Under the Code (Qld) s 9(1) and (WA) s 9, it must be shown

that: the accessory counselled the perpetrator to commit an offence; an offence was committed by the perpetrator after such counsel; and the facts that constituted the offence actually committed were a probable consequence of carrying out the counsel. Where those requirements are met, the accessory is deemed to have committed the offence and it is immaterial whether the offence actually committed is the same as that counselled or a different one, or whether the offence is committed in the way counselled, or in a different way. The first and third requirements are equivalent to the first and third elements of the Code (Qld) s 8 and (WA) s 8(1) referred to above: see 9.19. The first requirement is expressed in terminology appropriate to counselling rather than to the common intention of s 8; the third requirement imports the same objective test as its counterpart in s 8; and the principles noted above in that context are equally applicable to s 9. When referring to the second element of s 8 above, it was seen that the offence must be committed ‘in the prosecution of’ the common purpose. However, under the second element of s 9, liability appears to arise if any offence is committed after the accessory’s counsel. In Stuart (1974) 134 CLR 426; 4 ALR 545, Gibbs J said at CLR 442:58 The question whether one confederate has counselled another to commit an offence requires a consideration of what the former urged or advised the latter to do. If the latter then does commit an offence which is different from that which he was counselled to commit, the former is made liable by the combined effect of ss 7(d) and 9 provided that the facts constituting the offence are a probable consequence of carrying out the counsel.

This quote suggests that the test of remoteness should apply where a person is counselled to carry out an offence but then commits a different offence. It seems that the solution to this situation is provided by applying the last part of the third requirement in s 9 — that the offence must be a probable consequence of

[page 211] ‘carrying out’ the counsel.59 This provides the nexus between the counselling and the incidental offence committed. The test for what constitutes ‘a probable consequence’ in s 9 is the same as that which applies to s 8: see Darkan, Deemal-Hall and Mclvor (2006) 227 CLR 373 at 399; 228 ALR 334; and 9.23.

Differential verdicts 9.26 Clearly, where the party provisions are applied, more than one person may be criminally responsible and, in the majority of cases, the perpetrator and the accessory will be guilty of the same offence. The Code (Qld) s 304A, which relates to diminished responsibility, makes specific provision for different verdicts by providing that, where two or more persons unlawfully kill another, the fact that one of those persons is guilty of manslaughter because of diminished responsibility does not prevent a verdict of murder being entered in respect of anyone else: see 12.92. Quite apart from the situation where one of the parties may rely on some excuse to alleviate his or her criminal responsibility for his or her part in the commission of the offence, it has been held in both Queensland and Western Australia that different verdicts may be imposed on the perpetrator and accessory, thereby reflecting their respective degrees of involvement in the commission of the offence.

Accessory not always convicted of same offence as perpetrator 9.27 Under the Code (Qld) and (WA) ss 7 and 8, the accessory is deemed to have committed the offence committed by the perpetrator and, in most cases, this will result in both being convicted of the same crime. However, this is not inevitable, and different verdicts may be entered against them, depending on their respective levels of involvement in the commission of the crime. The matter is most likely

to arise where the accessory is criminally responsible for some less serious offence than was the perpetrator but it may also arise in a situation where the criminal responsibility of the accessory exceeds that of the perpetrator. The High Court referred to this prospect in Barlow (1997) 188 CLR 1; 144 ALR 317 at CLR 14: Once s 8 does its work of deeming the secondary party to have done the act or to have made the omission which the principal offender did or made in so far as that act or omission is of a nature covered by the parties’ common intention, the state of mind of the secondary party may again require consideration. If, at the time that the act was done or the omission was made, the secondary party had a state of mind which, in combination with an act or omission of the nature which s 8 deems him to have done or made, renders him guilty of a more serious offence than the offence of which the principal offender is guilty, the secondary party is liable to conviction for the more serious offence. Thus the mastermind who, having greater knowledge of the circumstances or the likely result of a minor criminal offence which he and a comparatively innocent principal offender agree to commit, or who has an evil intent not shared by the principal offender, will be liable according to his (the secondary party’s) state of mind, although the common plan was merely to commit the minor offence.

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Western Australia 9.28 In Western Australia, it has long been accepted that different verdicts may be imposed on the perpetrator and accessory, depending on the nature of their involvement in the commission of the offence.60 In Nicolakis, Nicolakis and Franich (1988) 32 A Crim R 451, it was considered to be well settled that a perpetrator may be found guilty of murder and the aider or accessory guilty of manslaughter on a joint charge of murder under either ss 7 or 8.61

Queensland 9.29 The law in Queensland concerning the imposition of different verdicts was in some doubt prior to the High Court’s decision in Barlow (1997) 188 CLR 1; 144 ALR 317. The capacity to impose different verdicts had been sanctioned by the Court of Criminal

Appeal in Jervis [1993] 1 Qd R 643. There, the accused, Jervis, was convicted of manslaughter in circumstances where the perpetrator, W, was convicted of murder. Some days before the killing, Jervis and two other women discussed with W, who claimed to be a vampire and needed to drink human blood, W’s plan to lure an unsuspecting victim to a place so that W could consume his blood. There was some suggestion that the victim might voluntarily submit to such treatment but, even so, this would require an intentional wounding of the victim. Having found a potential victim, W led him to the river bank while the others remained in their car. Some time later, W returned to the car and said that she needed help because she was going to kill the man. Another of the women, P, accompanied W to the river bank and returned several times to the car. On one such occasion, she asked Jervis for a knife, which Jervis was known to have with her. Jervis remained in the car and the victim was killed by W and the other woman with the knife that Jervis gave them. Referring to Jervis’s criminal responsibility under s 7(1)(b), McPherson ACJ said at 650: Her criminal responsibility therefore depended on the state of her knowledge, at the time she handed the knife over, of the intention of W with respect to its use. If she realised the knife was going to be used by her to kill [the victim] or to cause him grievous bodily harm, the jury would be justified under [s 7(1)(b)] in finding her guilty of murder, in the event which ensued, of the death of [the victim].

In fact, Jervis was found not guilty of murder and, accordingly, the jury must not have been satisfied that, at the time the knife was handed over, she realised that W intended to kill or do grievous bodily harm to the victim. The jury’s verdict also meant that Jervis could not be guilty of murder under s 8 because, on the basis of the necessary finding, Jervis could not have been party to a common intention as required by that section to kill or do grievous bodily harm. Jervis was convicted of manslaughter under s 8 and the jury must have determined that there was a common intention of carrying out together an unlawful purpose falling short of causing death or grievous bodily harm; that is, one relating to wounding [page 213]

or causing some other injury as would allow blood to be obtained, and that a probable consequence of a prosecution of that unlawful purpose was the death of the victim. 9.30 In Barlow,62 the Queensland Court of Appeal decided not to follow the approach adopted in Jervis and held that the accessory was either to be convicted of the same offence as the perpetrator or of no offence at all. On appeal, the High Court rejected that interpretation of the law, thereby enabling different verdicts to be returned.63 In that case three perpetrators were convicted of the murder of the victim, who was beaten to death in the gymnasium of a prison. Barlow did not take part in the killing and was acquitted of murder but convicted of manslaughter. The conviction was upheld by the High Court on the basis of his accessorial involvement, which included requesting the victim to go to the gymnasium, watching the assault and speaking with the perpetrators afterwards.64 The decision in Barlow relates specifically to s 8. However, s 7 is also expressed in terms that the accessory is deemed to have committed the offence committed by the perpetrator and the reasoning in those cases has equal application to s 7. The result achieved in Barlow has since been given statutory effect in the Code (Qld) s 10A, which reads: (1) Under s 7, a person’s criminal responsibility extends to any offence that, on the evidence admissible against him or her, is either the offence proved against the person who did the act or made the omission that constitutes that offence or any statutory or other alternative to that offence. (2) Under s 8, a person’s criminal responsibility extends to any offence that, on the evidence admissible against him or her, is a probable consequence of the prosecution of a common intention to prosecute an unlawful purpose, regardless of what offence is proved against any other party to the common intention. (3) This section does not limit any other provision of this chapter.

This provision will support the conviction for manslaughter of a person in Barlow’s position because manslaughter is an alternative verdict to murder: see 7.7 and 9.31. However, in Sullivan and Marshall [2002] 1 Qd R 95, the Court of Appeal cast doubt on the meaning to be ascribed to s 10A. There, the accused and another, Jackson, were charged with assault occasioning bodily harm. Jackson was the perpetrator of the assault that caused

the injury by punching or kicking the victim in the upper body and head and the prosecution alleged that Sullivan and Marshall were guilty of that assault by virtue of the Code s 7. Sullivan and Marshall had also kicked the victim on his leg but did not cause bodily harm and their kicking was not the subject of a charge against them. Jackson was found guilty of assault occasioning bodily harm. Sullivan and Marshall were convicted of common assault and these convictions were quashed by the Court of Appeal. Davies JA held that, as the jury had found that Jackson assaulted the victim and occasioned bodily harm, the jury could not rationally have found either Sullivan or Marshall guilty [page 214] only of common assault unless some statutory provision permitted that verdict. His Honour referred to the Code s 10A and found that it was not applicable because the evidence relating to the bodily harm that was admissible against Jackson was also admissible against them. His Honour agreed with Pincus JA that the meaning of the section was not immediately clear and said (at 96–7): It might be thought that, because it applies to s 7, ‘offence’ in that section has the same meaning as that which it has in s 7 namely the element of conduct (an act or omission) which, if accompanied by prescribed circumstances, or if causing a prescribed result or if engaged in with a prescribed state of mind, renders a person engaging in the conduct liable to punishment. Those acts were, in this case, the acts by Jackson of punching or kicking the complainant to the upper body and head. However if that meaning is given to offence the section does not appear to have any sensible meaning for it is difficult to see what alternative there would be to the act or omission. The purpose of s 10A may be seen from Explanatory Notes to the Criminal Law Amendment Bill 1996 which introduced s 10A into the Code. It is there said that its purpose is to return the law to the way decided in Jervis. In Barlow, which was decided before s 10A became law but after it was introduced in Parliament, Jervis was approved, making s 10A unnecessary. However, it can be given its intended meaning if ‘offence’ is construed to mean, not the act or omission, but the ‘concatenation of elements’ constituting the offence which, in this case, would include the bodily harm. If that is the correct construction of the section, and I think it is, then there might be circumstances in which persons, in a similar position to the appellants here, could be found guilty only of common assault. But that would be so only if the evidence of

bodily harm, found against Jackson, was admissible only against him. That is not this case and accordingly s 10A has no relevance.

Pincus JA in Sullivan and Marshall [2002] 1 Qd R 95 at 101 referred to the general view of s 7 of the Code that prevailed as having been expressed by McPherson J in Jervis [1993] 1 Qd R 643 at 648 thus: Section 7 thus imposes a form of criminal responsibility that is measured by the extent of knowledge or foresight of the actions intended to be carried out. Its application depends for the most part on the subjective state of mind of the person concerned.

Pincus JA said that, under the Code s 10A, a principal offender may in some cases be convicted of robbery with personal violence while the aider is convicted of robbery only but said that the provision gives no guidance as to when that sort of result may be reached. While declining to give an interpretation of s 10A, his Honour expressed ‘the tentative view’ that there could be, if the aider was proved to have intended the commission of a lesser offence than that committed by the principal offender, a conviction of that lesser offence, under s 10A.65 Notwithstanding this view, it is clear that s 10A (which requires reference to those provisions in the Code relating to alternative verdicts)66 means that different verdicts may be returned under the Code (Qld) s 8.67 For example, because [page 215] manslaughter is an alternative verdict to murder under the Code (Qld) s 576, a perpetrator could be convicted of murder and an accessory could be convicted of manslaughter.68

Murder and manslaughter 9.31 The issue of differential verdicts has most frequently arisen in the context of unlawful killing, the question being whether a perpetrator can be convicted of murder and the accessory of manslaughter, although, as can be seen from Barlow (above), the

reverse of that situation may also arise. Murder can be established in several ways, including: killing with intent to kill;69 killing with intent to do grievous bodily harm (Qld) or killing with intent to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed;70 or killing by means of an act, likely to endanger human life, done in the prosecution of an unlawful purpose.71 The basis of liability in the first two of those situations is subjective, and the perpetrator will be guilty of murder if the jury is satisfied that the requisite intention was present. Similarly, liability for those forms of murder will arise in an accessory who aided, counselled or procured the killing, in the sense that it was contemplated by the accessory that there might be an application of force with intent to kill or do grievous bodily harm. In that situation, the accessory will be criminally responsible for murder as a party under the Code s 7. Further, where the use of such force was not contemplated in a subjective sense, but where the use of such force was a probable consequence of the prosecution of the common unlawful purpose, or was a probable consequence of the counselling, the accessory will be criminally responsible for murder under the Code (Qld) and (WA) ss 8 or 9 because of the objective nature of the test appropriate to those provisions. Where the perpetrator in fact uses such force, but where its use was not contemplated by the accessory and where it was not, in an objective sense, foreseeable, it has been held that the accessory may be responsible for manslaughter or may even escape criminal responsibility altogether. In Markby (1978) 140 CLR 108; 21 ALR 448, Gibbs ACJ said at CLR 112–13: In some cases the inactive participant in the common design may escape liability either for murder or manslaughter. If the principal assailant has gone completely beyond the scope of the common design, and for example has used a weapon and acted in a way in which no party to that common design could suspect, the inactive participant is not guilty of either murder or manslaughter. If, however, the use of the

[page 216] weapon, even if its existence was unknown to the other party, is rightfully regarded as no more than an unexpected incident in carrying out the common design, the inactive participant may be convicted of manslaughter.

On that basis, the issue of guilt will depend on the view taken by the jury of what the accessory expressly intended or realised might have been involved in the performance of the project agreed upon.72 There is always a difficulty facing the accessory in a situation where violence is envisaged, especially where a weapon is known by him or her to be carried by the perpetrator. As Glanville Williams said:73 The knowledge on the part of one criminal that his companion is carrying a weapon is strong evidence of a common intent to use violence, but is not conclusive. Nevertheless it seems that a common intent to threaten violence is equivalent to a common intent to use violence, for the one so easily leads to the other.

Accessory conviction of murder under Code (Qld) s 302(1)(b) and (WA) s 279(1)(c) 9.32 Under the Code (Qld) s 302(1)(b) and (WA) s 279(1)(c), murder is established if the killing was by means of an act, likely to endanger human life, done in the prosecution of an unlawful purpose. This is a constructive form of murder that does not require the prosecution to establish that the accused killed with a specific intention. Rather, an objective test applies: see 12.50. That is also the case with the Code ss 8 and 9 and this has presented certain difficulties when these provisions are relied on by the prosecution to establish accessorial liability for murder under the Code (Qld) s 302(1)(b) and (WA) s 279(1)(c). In Georgiou (2002) 131 A Crim R 150, the Court of Appeal referred to the overlapping of the Code (Qld) s 8 and s 302(1)(b) in that the relevant homicidal act must have been done in the prosecution of an unlawful purpose and that the act or its results must be of such a nature as to be a probable consequence of the prosecution of that purpose (s 8); or be of such a nature as to be likely to endanger human life (Code (Qld) s 302(1)(b)). The court opined that, before s 8 can operate to impose criminal responsibility for murder as secondary

offender in the prosecution of a purpose under the Code (Qld) s 302(1) (b), it may be necessary for the prosecution to prove that the secondary offender knew at least that an act likely to endanger human life was going to be done by the primary offender. However, this was disapproved in Hallin [2004] QCA 18, where the Court of Appeal rejected the inclusion of any subjective component and confirmed that the test of what constitutes a probable consequence is an objective one: at [41]. In that case, the accused and S formed a common intention to commit a robbery. S confronted the victim at night in a deserted car park and killed him with axe blows to the head. The court held that, in considering whether the killing was a probable consequence of their plan, the jury was entitled to take into account that Hallin took a bag carrying the axe to S; that he was aware the axe was in the bag; that he and S, in relation to an earlier robbery plan that day, had made [page 217] elaborate arrangements to avoid capture; and that subsequent violent acts were committed by S in order to avoid capture. In Stuart (1974) 134 CLR 426; 4 ALR 545 (see 12.50), the conviction of the perpetrator for murder was based on the Code (Qld) s 302(1)(b) and the conviction of Stuart was based on that provision in conjunction with the Code (Qld) s 8. The purpose relied on by the prosecution for the murder provision was the same purpose that it relied on for the party provision. It was held that the same purpose could be utilised in that way. Gibbs J said at CLR 441:74 The two sections are not in conflict and have the combined effect that when two persons form a common intention to prosecute an unlawful purpose, and in the prosecution of the purpose one does an act which is likely to endanger human life, and in fact causes death, and the nature of that crime was such that its commission was a probable consequence of the prosecution of the purpose, the other is deemed to have committed the offence of murder.

Withdrawal from common purpose

9.33 In some circumstances, the accessory who has embarked upon a course of criminal conduct may escape criminal responsibility by effectively withdrawing his or her support. In Western Australia, the Code s 8(2) specifically provides for withdrawal from the common purpose under s 8, whereby the accessory is deemed not to have committed the offence if, before it was committed, he or she: (a) withdrew from the prosecution of the unlawful purpose; (b) by words or conduct, communicated the withdrawal to each other person with whom the common intention to prosecute the unlawful purpose was formed; and (c) having so withdrawn, took all reasonable steps to prevent the commission of the offence.

In Miller v Miller (2011) 242 CLR 446; 275 ALR 611, Heydon J noted that s 8(2) of the Code (WA) reflects the common law position and requires both communication of withdrawal and the taking of steps to neutralise the effect of any contribution. There is no similar withdrawal provision associated with s 7 of the Code (WA), however this limitation of the principle of withdrawal to the common purpose under the Code s 8 is not surprising. Once the accessory has done the act for the purpose of aiding, accessorial liability under s 7(b) is complete as long as the offence is committed. Also, where the accessory has withdrawn support, there will be no aiding under s 7(c). Similarly, once the counselling of the accessory has been given and acted on by the perpetrator, the role of the accessory is complete under s 7(d) and this also applies to procurement under that provision. Nevertheless, under the Queensland Code, which makes no provision for such timely withdrawal, the principle has been recognised by the courts and has been extended to all forms of accessorial liability under s 7. In Menniti [1985] 1 Qd R 520, [page 218] a majority of the Court of Criminal Appeal in Queensland rejected the

view that the principle of withdrawal could not be applied to acts done by the accessory for the purpose of aiding. Thomas J stated at 527:75 A man who has given assistance in the early stages of preparation for a crime may change his mind and attempt to frustrate the venture to such an extent that he counterbalances whatever assistance he gave in the early stages. If he effectively counterbalances his earlier acts before the offence is committed, it would be very difficult to say in the end that he has aided another person in committing the offence. In one sense the clock can never be turned back, and no single act can ever be undone. But I do not think that semantics require the criminal law to hold that a person has aided another in committing the offence if, before the offence is committed, he has effectively undone the benefit of the earlier aid. In short, a person is not guilty under s 7(b) of the Code if he undoes the effect of an act previously done by him for the purpose of aiding another person to commit the offence.

Although withdrawal is therefore a more limited plea in Western Australia, what has been said by the case law generally on onus of proof and what constitutes withdrawal would seem to be relevant to that jurisdiction.

Onus of proof 9.34 The issue of who bears the onus of proof in relation to withdrawal arose in Saylor [1963] QWN 14. There, Mam and Saylor combined to assault the victim, who was thereby rendered unconscious. Both attackers then moved away from the victim but, shortly afterwards, Mam returned to commit a further assault. During the second assault, there was evidence that Saylor had spoken to Mam and had attempted to pull him away from the victim. Both were convicted of unlawfully doing grievous bodily harm. On appeal, Saylor argued that the jury could not have been satisfied beyond a reasonable doubt that he had not withdrawn from the common purpose before the second assault was committed. The Queensland Court of Criminal Appeal stated at 36: In my view the law applicable to the instant case is that Saylor was guilty of the offence charged unless there was evidence fit to be considered by a jury that before the final kicking by Mam, Saylor had not only withdrawn from the prosecution of their common purpose but had also communicated that fact to Mam in such circumstances that any subsequent criminal act by Mam was Mam’s separate act.

In that case, it was held that the onus of disproving timely withdrawal rested with the prosecution and that there was an evidential onus upon the accused.76 That approach was also adopted in relation to the Code (WA) s 8(2) in Seifert (1999) 104 A Crim R 238 at 259.

What constitutes withdrawal 9.35 In determining the nature of the conduct required to constitute withdrawal by the accused, the court, in Menniti [1985] 1 Qd R 520, relied on several common law authorities but accepted that there was a requirement of ‘timely communication’ [page 219] in the sense referred to above in Saylor.77 Additionally, reference was made to a conflict in opinion as to whether it was sufficient for the accessory to have taken reasonable steps to undo the effect of his or her previous participation or whether a more stringent view, that the accused eliminate his or her own conduct as a cause of the ultimate offence, would be insisted on. In White v Ridley (1978) 140 CLR 342 at 350; 21 ALR 661, Gibbs J applied the former test and this was also adopted by Thomas J in Menniti [1985] 1 Qd R 520 at 528 and 530. That test reflects the terms of the Code (WA) s 8(2).78 On the application of that test, it was held by the majority that there had been no effective countermand by the accused, Menniti, who had been convicted of supplying a prohibited drug on the basis of the Code (Qld) s 7(1)(b) in that he had done certain acts for the purpose of aiding the commission of the offence, namely, the making of arrangements with the supplier and purchaser of the drugs. When the transaction was about to take place, the accused had become fearful of the presence of police in the area and had communicated his concern in that regard to the supplier of the drugs. As Thomas J stated, the accessory ‘did not try physically to prevent the other actors from

going through with the deal, nor did he provide any effective counsel on the matter’. His Honour considered that the accessory’s conduct was ‘consistent with the desire for postponement so that he personally could dissociate himself’ and that it ‘fell a long way short of reversing the effect of the aid or acts of enablement that he had previously performed’.79 Where the accessory’s dissociation has the effect of preventing the commission of the offence by the perpetrator, there will be no liability for such offence. However, depending on the stage reached by the parties, liability may arise in respect of an inchoate offence such as attempt or conspiracy: see Chapter 11.

Accessory after the fact — s 10 9.36 The scope of accessorial responsibility extends beyond the terms of ss 7, 8 and 9 to include an accessory after the fact. This term is defined in the Code (Qld) and (WA) s 10. In Western Australia, s 10 provides: Accessories after the fact (1) A person who, knowing that another person has committed an offence, receives or assists that other person in order to enable that other person to escape punishment is said to become an accessory after the fact to the offence. (2) A person does not become an accessory after the fact to an offence committed by the person’s spouse by receiving or assisting that spouse.

In Queensland, s 10 is expressed in similar terms but does not make provision for spousal immunity as it appears in the Code (WA) s 10(2).80 [page 220]

Queensland 9.37 In Queensland, the liability of an accessory after the fact arises under the Code ss 544 and 545. The seriousness of the offence and the relevant penalty vary according to the nature of the offence to which

the accused is an accessory. Where a crime is involved, the accessory after the fact also commits a crime that is punishable by 2 years’ imprisonment.81 An exception to that punishment regimen is found in the Code (Qld) s 307, which provides for life imprisonment for an accessory after the fact to murder. On the other hand, a person who becomes an accessory after the fact to a misdemeanour or to any offence of such a nature that the offender may be sentenced on summary conviction to imprisonment with hard labour for 6 months is guilty of a misdemeanour and the penalty is half the greatest punishment to which the principal offender would be liable upon conviction. This latter category encompasses liability for simple offences, but only those punishable by imprisonment for a minimum of 6 months.82 The matter may be summarily determined if the principal offence is such that the offender is punishable on summary conviction.83

Western Australia 9.38 In Western Australia, the Code s 562 provides for the liability of an accessory after the fact but only where the principal offender has committed an indictable offence. In that situation, the accessory also commits an indictable offence and, where the offence committed by the principal offender is punishable by life imprisonment, the accessory is liable to imprisonment for 14 years. In other cases, the accessory is liable to punishment equal to half the greatest punishment to which the person convicted of that offence is liable.84 Under the Code (WA) s 10D(c), a person charged with an offence may be convicted, in the alternative, of being an accessory after the fact.

Prosecution must establish commission of principal offence 9.39 For the liability of an accessory after the fact to arise, it is necessary for the prosecution to establish the commission of the principal offence.85 However, it is not necessary that the principal offender be convicted or be amenable to justice.86

Accessory must have knowledge of offence 9.40 The requirement is that the offence must have been committed. Moreover, the accessory must have knowledge that the person assisted has committed the offence. Clearly, the relevant time for assessing the state of mind of the accessory will be at the time the alleged assistance was given and, therefore, prior to the [page 221] conviction of the perpetrator. Therefore, it is not the accessory’s knowledge of a conviction that is envisaged by s 10 but, rather, his or her knowledge that the perpetrator has done acts that are necessary to constitute an offence.87

Receiving or assisting 9.41 In order to ‘receive or assist’ another under s 10, there must be some positive action on the part of the accessory and this must have been done for the purpose referred to in the provision.88 Clearly, this requires a subjective analysis.89 While s 10 refers only to the single purpose of assisting the offender to escape punishment, those words have been broadly construed. The provision will be satisfied where there has been direct concealment or harbouring of the principal offender.90 The provision has also been extended to less direct means of providing assistance, for example, by: disposing of, or helping to locate a buyer for, stolen goods;91 altering the engine number of a car;92 concealing evidence;93 destroying evidence;94 making false statements in order to enable the principal offender to escape punishment;95

assisting in the removal of the victim’s body and cleaning up the scene of the crime;96 and being a passenger in a vehicle that drove to a pre-arranged destination to provide transport to a person who had killed a security guard.97 In Ablitt [2009] QCA 45, Atkinson J gave some examples of typical conduct engaged in by accessories after the fact. In that case, the accused intentionally stopped a video-recording of a woman who was being assaulted by a police officer after being arrested for stealing. The court referred to the ‘studied deception’ of the accused and found that he had (at [22]): … deliberately prevented evidence from being retained, failed in his duty of care to the person arrested and failed to ensure what evidence there was on the video tape of what had happened was made available to the investigators or the court.

[page 222] As long as it is shown that the accessory acted for the purpose of assisting the perpetrator to escape punishment, this requirement in s 10 will be met even if a further purpose of the accessory was to protect himself or herself or to make personal gain.98

Compounding 9.42 In Sykes [1962] AC 528, the House of Lords held that the common law offence known as misprision of felony is not obsolete. There, it was held that a person is guilty of this offence if, knowing that a felony has been committed, he or she fails to disclose that knowledge to those responsible for the preservation of the peace. Mere non-disclosure could constitute the offence. It is important to remember that there is no analogous offence of general application under the Code. Misprision should be distinguished from compounding. Compounding a crime is an offence that involves the

concealment of the commission of the crime but one of the elements of that offence is the receipt of some benefit.99 _________________________________ 1.

See Hunt v Maloney [1959] Qd R 164; Wilson v Dobra (1955) 57 WALR 95; West v Suzuka [1964] WAR 112. Unless there is an intention to exclude the provisions: see Renwick v Bell [2002] 2 Qd R 326. For the party provisions under Commonwealth law, see Crimes Act 1914 (Cth) ss 5, 6; Criminal Code Act 1995 (Cth) s 11(2)–(4); see 1.18, 8.12.

2. 3.

Code (Qld) s 7(1); (WA) s 7 first para. The Code (Qld) and (WA) s 7 extends to both acts and omissions: see 9.10.

4.

See Wyles; Ex parte Attorney-General [1977] Qd R 169; Johns (1980) 143 CLR 108 at 127–8; 28 ALR 155; Webb; Ex parte Attorney-General [1990] 2 Qd R 275 at 283. Code (Qld) s 419; (WA) s 401.

5. 6. 7. 8. 9.

See Wyles; Ex parte Attorney-General [1977] Qd R 16; Webb [1990] 2 Qd R 275; (1990) 47 A Crim R 97 at 105; Warren and Ireland [1987] WAR 314; (1985) 15 A Crim R 317 at 331. Code (Qld) s 411; (WA) s 393. See Mason (1995) 15 WAR 165; Warren and Ireland [1987] WAR 314; (1985) 15 A Crim R 317; 9.26–9.27. See Miller (1980) 32 ALR 321; 55 ALJR 23.

10. See Cain v Doyle (1946) 72 CLR 409; [1946] ALR 490; Lun (1932) 32 SR (NSW) 363; Remillaard (1921) 59 DLR 340; Lowrie [1998] 2 Qd R 579; (1997) 100 A Crim R 1 at 7, 8; and note the Code (Qld) s 569; (WA) s 587. For proof of the conviction, see Kirkby [2000] 2 Qd R 57; (1998) 105 A Crim R 323. 11. See Borg [1972] WAR 194 at 198, 201; Saunders [1980] WAR 183 at 184; Wyles; Ex parte Attorney-General [1977] Qd R 169 at 176; Warren and Ireland [1987] WAR 314; (1985) 15 A Crim R 317 at 331; Barlow (1997) 188 CLR 1 at 9, 43; 144 ALR 317. 12. See also Humphry (2003) 138 A Crim R 417 at 426; Guy (2004) 143 A Crim R 428. 13. See Daniels and Kalatzis [1972] Qd R 323; Quick and Paddison [1973] 3 WLR 26 at 36; Cogan [1976] QB 217; Matusevich (1977) 137 CLR 633; 15 ALR 117; Bourne (1952) 36 Cr App R 125. Note the Code (Qld) s 304A(3), which provides that, when two or more persons unlawfully kill another, the fact that one of them is guilty of manslaughter because of the application of the defence of diminished responsibility does not affect the question of whether the unlawful killing amounted to murder in the case of any other person. 14. See Pinkstone (2004) 219 CLR 444; 206 ALR 84. For the Commonwealth position, see the Code 1995 (Cth) s 11.3. 15. See White v Ridley (1978) 140 CLR 342; 21 ALR 661; Matusevich (1977) 137 CLR 633; 15 ALR 117; Michael (1840) 19 Car & P 306; 173 ER 867; Cogan [1967] QB 217; Webb [1995] 1 Qd R 680 at 685; K and B [1997] 1 Cr App R 36; Rechichi (1999) 106 A Crim R 246 at 249; Pinkstone (2004) 219 CLR 444; 206 ALR 84. 16. See Beck [1990] 1 Qd R 30 at 38, 44; Carden (1992) 8 WAR 296 at 309; Brennan (1936) 55 CLR 253 at 259–60; [1936] ALR 318; Bardsley (2004) 29 WAR 338 at 342.

17. See Jervis [1993] 1 Qd R 643 at 648; West v Perrier; Ex parte Perrier [1962] QWN 5. 18. See Johns (1980) 143 CLR 108 at 130–1; 28 ALR 155; Miller (1980) 32 ALR 321 at 325–6; 55 ALJR 23; Chan Wing-Siu [1985] AC 168. 19. See also Gillard (2003) 219 CLR 1; 202 ALR 202; Clayton (2006) 231 ALR 500; 168 A Crim R 174. For the Commonwealth position, see the Code 1995 (Cth) s 11.2; 1.9, 8.12. 20. See Borg [1972] WAR 194 at 199; Beck [1990] 1 Qd R 30 at 35, 39, 52; Ward (1997) 19 WAR 68; Tiet (2002) 127 A Crim R 586; BG (2005) 152 A Crim R 207 at 220. 21. Code (Qld) s 217; (WA) ss 191, 320(5); see also 14.76, 14.80. 22. Code (Qld) s 349; (WA) s 325; see also 14.4, 14.8. 23. See also Giorgianni (1985) 156 CLR 473 at 487–8, 500, 506–7; 58 ALR 641. 24. See also Lowrie and Ross [2000] 2 Qd R 529. 25. See Ancuta [1991] 2 Qd R 413. 26. See DPP for Northern Ireland v Maxwell [1978] 3 All ER 1140. 27. See Bainbridge [1960] 1 QB 129; Ward (1997) 19 WAR 68; Tiet (2002) 127 A Crim R 586. 28. See also National Coal Board v Gamble [1959] 1 QB 11 at 23; Beck [1990] 1 Qd R 30 at 35, 38, 41, 47. 29. See Attorney-General’s Reference (No 1 of 1975) [1975] QB 773 at 779. 30. See Mohan [1967] 2 AC 187 at 194; Mayberry [1973] Qd R 211; Ready and Manning [1942] VLR 85; Kupferberg (1918) 13 Cr App Rep 166 at 168; Robert Millar (Contractors) Ltd and Robert Millar [1970] 1 All ER 577; Attorney-General’s Reference (No 1 of 1975) [1975] QB 773. 31. See Borg [1972] WAR 194. 32. See also Kenniff [1903] St R Qd 17 at 30, 38; and West v Suzuka [1964] WAR 112. 33. See Jones (1977) 65 Cr App R 250; Jefferies v Sturcke [1992] 2 Qd R 392; and Beck [1990] 1 Qd R 30. 34. See BG (2005) 152 A Crim R 207 at 217–21. 35. Code (Qld) and (WA) Ch 27; Code 1995 (Cth) s 4.3; see 8.39–8.46. 36. See Tiet (2002) 127 A Crim R 586. 37. See Stuart (1974) 134 CLR 426 at 445; 4 ALR 545; Oberbillig [1989] 1 Qd R 342 at 345; Calhaem [1985] QB 808 at 813; Hutton (1991) 56 A Crim R 211 at 217, 220. 38. See Attorney-General’s Reference (No 1 of 1975) [1975] QB 773; Solomon [1959] Qd R 123 at 129; Menniti [1985] 1 Qd R 520 at 532; Chan [2001] 2 Qd R 662; F; Ex parte Attorney-General (Qld) [2004] 1 Qd R 162. 39. The appeal to the High Court was dismissed: (2003) 216 CLR 31; 202 ALR 405; and see Humphry (2003) 138 A Crim R 417. 40. Keenan (2009) 236 CLR 397; 252 ALR 198. 41. See also Duong, Lu, Do and Tran (1992) 61 A Crim R 140 at 145–6. 42. Code (Qld) s 23(1)(b) and (WA) s 23 first para. See also 8.62. 43. See Borg [1972] WAR 194 at 197–200; Markby (1978) 140 CLR 108; 21 ALR 448; Anderson and Morris [1966] 2 QB 110; Jervis [1993] 1 Qd R 643. 44. See Phillips and Lawrence [1967] Qd R 237 at 247, 257, 274. 45. See Miller (1980) 32 ALR 321; 55 ALJR 23; Beck [1990] 1 Qd R 30; Bardsley (2004) 29 WAR

338 at 348–9. 46. See Brennan (1936) 55 CLR 253 at 265; [1936] ALR 318; Murray [1962] Tas SR 171 at 179; Stuart (1974) 134 CLR 426 at 452–3, 553; 4 ALR 545; Tonkin & Montgomery [1975] Qd R 1 at 24; Johns (1980) 143 CLR 108; 28 ALR 155 at 158–9; Saunders [1980] WAR 183 at 188; Chan Wing-Siu [1985] AC 168; [1984] 3 WLR 677 at 684; Jervis [1993] 1 Qd R 643 at 648; Hind and Harwood (1995) 80 A Crim R 105 at 143; Seiffert (1999) 104 A Crim R 238 at 249–51. 47. See Stuart (1974) 134 CLR 426 at 440–1; 4 ALR 545; Barlow (1997) 188 CLR 1 at 9–10; 144 ALR 317. 48. See also Raw (1984) 12 A Crim R 299; Brennan (1936) 55 CLR 253 at 263–4; [1936] ALR 318. 49. The conviction of Harwood was based on the now discredited view that an accessory and the perpetrator could only be convicted of the same offence: see 9.26–9.30. 50. See Fitzgerald P in Hind and Harwood at 112, citing a similar observation by Jacobs J in Stuart (1974) 134 CLR 426 at 449; 4 ALR 545. 51. See Raw (1984) 12 A Crim R 299 at 305; Seifert (1999) 104 A Crim R 238 at 258; Georgiou (2002) 131 A Crim R 150. 52. Barlow (1997) 188 CLR 1; 144 ALR 317. 53. See Brennan (1936) 55 CLR 253 at 261; [1936] ALR 318; Stuart (1974) 134 CLR 426 at 442, 454; 4 ALR 545; Tonkin and Montgomery [1975] Qd R 1 at 24; Saunders [1980] WAR 183 at 189; Raw (1984) 12 A Crim R 299; Gush [1980] 2 NZLR 92; Aston (No 3) [1991] 1 Qd R 443; Markby (1978) 140 CLR 108 at 112–13; 21 ALR 448; Beck [1990] 1 Qd R 30 at 39, 52; Jervis [1993] 1 Qd R 643 at 648, 666. 54. Chan [2001] 2 Qd R 662 at 663. 55. See also Brown (2007) 171 A Crim R 345. 56. See Kirkby [2000] 2 Qd R 57; (1998) 105 A Crim R 323 at 338. 57. See Murray [1962] Tas SR 170 at 199; Attorney-General’s Reference (No 1 of 1975) [1975] QB 773; Menniti [1985] 1 Qd R 520; Chan [2001] 2 Qd R 662; and see Solomon [1959] Qd R 123 at 129, to the effect that procurement arises when the offence is committed. 58. See also Oberbillig [1989] 1 Qd R 342. 59. See Nichols, Johnson and Aitcheson [1958] Qd R 200 at 217, 237–8; Calhaem [1985] QB 808; and see the emphasis added to the jury direction In Hutton (1991) 56 A Crim R 211 at 215. 60. See Nicolakis, Nicolakis and Franich (1988) 32 A Crim R 451; Saunders [1980] WAR 183; Warren and Ireland [1987] WAR 314; (1985) 15 A Crim R 317; Markby (1978) 140 CLR 108; 21 ALR 448; Mason (1995) 15 WAR 165; Bardsley (2004) 29 WAR 338. 61. See also Saunders [1980] WAR 183; Warren and Ireland [1987] WAR 314; (1985) 15 A Crim R 317; Markby (1978) 140 CLR 108; 21 ALR 448; G (1997) 96 A Crim R 162; Bardsley (2004) 29 WAR 338. 62. Reported as Alexanderson (1996) 86 A Crim R 77. 63. Barlow (1997) 188 CLR 1; 144 ALR 317. 64. See also Jervis [1993] 1 Qd R 643. 65. See Sullivan and Marshall at 102. 66. Code (Qld) ss 575–589; see 7.6–7.7. 67. See Keenan (2009) 236 CLR 397; 252 ALR 198.

68. For the facts of Barlow and the text of the Code (Qld) s 10A, see 9.30. 69. Code (Qld) s 302(1)(a); (WA) s 279(1)(a). 70. Code (Qld) s 302(1)(a); (WA) s 279(1)(b). 71. Code (Qld) s 302(1)(b); (WA) s 279(1)(c). 72. See Saunders [1980] WAR 183 at 191. 73. G Williams, Criminal Law, The General Part, 2nd ed, Stevens and Sons Ltd, London, 1961, pp 397–8; Borg [1972] WAR 194 at 200; Saunders [1980] WAR 183 at 192; Seifert (1999) 104 A Crim R 238 at 254; Salmon & James [2003] QCA 17. 74. See also Seiffert (1999) 104 A Crim R 238 at 247–8. 75. See also Derrington J at 533–4. 76. See Menniti [1985] 1 Qd R 520 at 530. 77. See 9.34; White v Ridley (1978) 140 CLR 342; 21 ALR 661; Croft [1944] KB 295; Becerra and Cooper (1976) 62 Cr App R 212. 78. See Seiffert (1999) 104 A Crim R 238 at 254–9; Willis (2001) 25 WAR 217 at 243. It has also been adopted in New South Wales and Tasmania: see Tietie, Tulele and Bolamatu (1988) 34 A Crim R 438 at 447; Wilton (1993) 2 Tas R (NC) N2; 64 A Crim R 359 at 363–4. 79. See Menniti [1985] 1 Qd R 520 at 529. See also Emelio (2012) 222 A Crim R 566. 80. Provision for spousal immunity was repealed by Act 3 of 1997 (Qld). 81. Code (Qld) s 544. 82. Code (Qld) s 545. 83. Code (Qld) ss 545(2), 552B(1)(p). 84. For summary conviction penalties, see Code (WA) s 562(2). 85. Evidence Act 1977 (Qld) s 53; Kirkby [2000] 2 Qd R 57; (1998) 105 A Crim R 323; Evidence Act 1906 (WA) s 47. 86. Code (Qld) s 568(11); Criminal Procedure Act 2004 (WA) Sch 1, cl 7(4); Williams (1932) 32 SR (NSW) 504; Carter and Savage [1990] 2 Qd R 371; (1990) 47 A Crim R 55; Darby (1982) 148 CLR 668; 40 ALR 594. 87. See Carter and Savage [1990] 2 Qd R 371; (1990) 47 A Crim R 55 at 62; Ablitt [2009] QCA 45. For knowledge, see 15.121, 16.16. 88. See Sykes [1962] AC 528; Winston (1994) 76 A Crim R 113 at 117. 89. See Winston (1994) 76 A Crim R 113 at 116; Middap (1992) 63 A Crim R 434. 90. Hurley and Murray [1967] VR 526. 91. See Poole and Blake [1959] Crim LR 45; Dawson [1961] VR 773; Kemp [1968] Crim LR 33; Phelen [1964] Crim LR 468. 92. Tevendale [1955] VLR 95. 93. See Levy [1912] 1 KB 158; Williams (1932) 32 SR (NSW) 504; Williamson [1972] 2 NSWLR 281. 94. Mercanti v Western Australia [2005] WASC 28. 95. See Leaman [1986] Tas R 223; Shales [2005] QCA 192; State of Western Australia v Lauchlan [2005] WASC 266. 96. See Hawken (1986) 27 A Crim R 32; but note Pompey, Arthur, Sullivan, Daley and Coldwater

(1924) 18 QJPR 59. 97. Winston [1995] 2 Qd R 204; (1994) 76 A Crim R 113 at 117. 98. See Tevendale [1955] VLR 95 at 97; Middap (1992) 63 A Crim R 434 at 445. 99. Code (Qld) s 133; (WA) s 136; Leaman [1986] Tas R 223.

[page 223]

Chapter Ten Special Categories of Liability

Introduction 10.1 Within any community, there are classes of persons for whom the criminal law has a modified application or mode of operation. This has been demonstrated with respect to the liability of those who are of unsound mind and to the presumptions that arise when the offender is a child under a certain age: see 8.137. In this chapter, general reference will be made to special rules pertaining to court proceedings involving children, the relevance of the spousal relationship to criminal responsibility and the criminal responsibility of corporations.

Children 10.2 In Queensland and Western Australia, there is a Children’s Court especially constituted to deal with young offenders.1 The setting for the operation of these courts is provided by the Youth Justice Act 1992 (Qld) and the Young Offenders Act 1994 (WA). This legislation details the court’s objectives, the principles applicable to the administration of juvenile justice, the procedures to be applied when a child is brought before the Children’s Court and the code of punishment to be applied in relation to young offenders.2

Dealing with a child without court proceedings

10.3 The legislation also makes provision for dealing with a child without taking court proceedings. This may be by a police officer issuing a caution3 to the child or it may involve bringing the child, who has accepted responsibility for his or her actions, before a tribunal that is characterised by less formal procedures than a court to enable an appropriate penalty to be determined. In Queensland, this is through the conduct of a community conference; in Western Australia, it is through a referral to a juvenile justice team.4 [page 224]

Children in need of care 10.4 Each state has legislation that provides for the protection of children who, because of their circumstances of living, including lack of adult guidance, are considered to be in need of care.5 For the purposes of the legislation relating to children in Western Australia, a child is a person under the age of 18 years at the time when the offence was committed.6 In Queensland, the age is 18 years for the Child Protection Act 1999.7

The Children’s Court 10.5 In Queensland, the court is constituted by a Children’s Court judge, who is a judge of the District Court, or a Children’s Court magistrate.8 In Western Australia, the Children’s Court is constituted by a judge, who may be a judge of the District Court or Supreme Court, a magistrate and not less than two members who are neither a judge nor a magistrate.9 The legislation provides that the court may be constituted by a judge or a magistrate sitting with one or more members.10 The court has jurisdiction to hear and determine offences of any kind involving a child and must ensure that the child understands the proceedings.11 The court is able to require the presence of the child’s parent or guardian at the proceedings and is also able to exclude a wide range of persons from them.12

Jurisdiction and procedure Queensland 10.6 In Queensland, where a child offender is involved, the Children’s Court magistrate has the jurisdiction that would otherwise be exercisable by the Magistrates Court. Thus, the jurisdiction extends to the hearing and determination of simple offences and the conduct of committal proceedings for indictable offences. Where an indictable offence can be heard and determined summarily in the case of an adult offender, the Children’s Court magistrate has jurisdiction to deal with the offence, with the consent of the child. However, the court must refrain from exercising the jurisdiction unless it is satisfied that the charge can be adequately dealt with summarily.13 10.7 The Youth Justice Act 1992 (Qld) distinguishes between serious offences and other indictable offences. A serious offence is defined in s 8 of that Act to [page 225] mean an offence of a type that, if committed by an adult, would make the adult liable to imprisonment for 14 or more years or for life.14 Serious offences are further divided into Supreme Court offences, which are those that are not triable in the District Court, and other serious offences.15 Proceedings for a Supreme Court offence must be conducted before the Children’s Court magistrate as a committal proceeding and, if a prima facie case is found, the child will be committed for trial or sentence to the Supreme Court.16 10.8 In the case of other serious offences, proceedings must also be conducted as committal proceedings. Where a prima facie case is found and the child is legally represented, after explanation to the child and any parent present in the court, the child is given the option of being committed for trial or, if there is a plea of guilty, for sentence,

to either the Supreme or District Court, where any trial proceedings will be before a judge and jury, or before a Children’s Court judge who sits without a jury.17 A Children’s Court judge has jurisdiction to deal with the child in respect of matters for which the child is being committed for trial or sentence before the Children’s Court judge. The judge, sitting without a jury, may try the child if the child was committed for trial or was committed for sentence but has changed the original plea of guilty to one of not guilty.18 10.9 For those indictable offences that are not serious offences, and where the child is legally represented, the child may elect to have the matter determined summarily.19 For indictable offences that are not serious offences, and where the child is not legally represented, proceedings will commence as a committal proceeding until all the evidence has been adduced on the part of the prosecution and, if a prima facie case is found, after explanation to the child and any parent present in the court, the child has a right to elect to have the proceedings continue as a committal proceeding or to have those proceedings discontinued and for any further proceeding to be the summary hearing and determination of the charge.20 10.10 Where summary proceedings are held, the child must be given an opportunity to plead to the charge and, if a plea of not guilty is entered, the summary trial will continue in the same way as it would in the Magistrates Court for an adult offender.21 If the child pleads guilty, he or she is given the election of being committed for sentence before a court of competent jurisdiction, which will be the Supreme Court or District Court, by the Children’s Court judge or by the Children’s Court magistrate.22 [page 226]

Western Australia 10.11 In Western Australia, the Children’s Court has jurisdiction to hear and determine simple offences in the same way a magistrate has

for adult offenders.23 Where the child is charged with an indictable offence, the child may elect to be tried on indictment in the Supreme Court or District Court24 where, in the case of an adult offender, the adult must be tried on indictment, or it is an offence triable either way committed in circumstances in which the court decides the adult should be tried on indictment. 10.12 If the election is made, the court proceeds in accordance with the terms of the Criminal Procedure Act 2004 (WA) Pt 3, Div 4, which will result in a committal for trial or sentence to a higher court.25 In the absence of such election and for other indictable offences, the court is to determine the matter summarily.26

Punishment of children 10.13 In addition to providing the procedural safeguards outlined above in respect of a child offender, the legislation in each state makes special provision for the punishment of a child. These provisions are found in the Youth Justice Act 1992 (Qld) Pt 7 and the Young Offenders Act 1994 (WA) Pt 7 and they apply regardless of which court imposes the sentence.27 A statement of the sentencing principles to be applied in sentencing a child is set out in the legislation.28 A court may order that: a pre-sentence report be prepared and this is mandatory if the child is to be sentenced to a period of detention;29 the child have no conviction recorded;30 the child be released on condition of good behaviour;31 the child be fined;32 the child be admitted to probation, which in Queensland may be subject to a condition such as a curfew;33 the child be made subject to a community service order, ‘boot camp’ or, in Western Australia, a community work order;34 the child be subject to an intensive supervision order;35

[page 227] the child make restitution or pay compensation;36 a parent or guardian make restitution or pay compensation;37 a period of detention be served by the child but, in Western Australia, only after considering all other available sentences, taking into account the undesirability of holding a child in detention and being satisfied that no other sentence is appropriate.38 This limitation formerly applied in Queensland but has been repealed by the Youth Justice and Other Legislation Amendment Act 2014 (Qld); or in Western Australia, a special order be made in relation to young persons who repeatedly commit serious offences.39 In Queensland, repeat offenders identifying information may be published in certain circumstances, and the Children’s Court may be opened in such matters.

Spousal liability 10.14 Consider now the relevance of the husband–wife relationship to criminal responsibility. At common law, special rules developed to protect the unity of marriage which, in effect, treated the husband and wife as if they were the one entity. Thus, the husband could not be convicted of the rape of his wife. This was based on the wife’s deemed consent to sexual intercourse because of the marriage relationship. The High Court in PGA [2012] HCA 21 held that such a principle no longer formed part of the common law from at least 1935, so that a man charged in 2010 with two counts of rape allegedly committed in 1963 against his then wife could not rely on the immunity. This immunity from conviction for rape has been removed in both Queensland and Western Australia. 10.15 Other forms of protection also developed for both husband and wife. For example, neither could be guilty of a conspiracy between themselves alone. Also, neither spouse was liable for acts

done by one to the property of the other while they were living together, except where the act was done when leaving or deserting the other.40 These forms of immunity were removed with the repeal of the Code (Qld) and (WA) ss 33 and 35 respectively. 10.16 One form of this dual immunity continues in Western Australia, although it has been abolished in Queensland. Under the Code (WA) s 10, one spouse who assists the other to escape punishment does not thereby become an accessory after the fact.41 10.17 A type of spousal immunity developed at common law to protect the married woman, an example of which was found in the Codes until recently. The married woman was given immunity for an offence committed by her under [page 228] compulsion from her husband. The section removed any presumption that a married woman who does an act or makes an omission that constitutes an offence in the presence of her husband does so under compulsion by him.

Corporations 10.18 The instances of special liability discussed so far in relation to children and spouses reflect a narrowing of the general principles of criminal responsibility. A different approach is necessary when considering the criminal responsibility of corporations due to the fact that the majority of offences are worded in such a way as to relate to natural persons. This problem is partly resolved by the definition of ‘person’ in the Code (Qld) and (WA) s 1, which provides that the term, when used with reference to property, includes corporations of all kinds. Further, when an indictment is presented against a corporation, the corporation may be present in court and enter a written plea by its representative.42 Also, the Acts Interpretation Acts43 of Queensland and Western Australia provide that every provision of an Act relating

to offences punishable on indictment or summary conviction shall, unless the contrary intention appears, be deemed to refer to bodies corporate as well as to persons.44

‘Directing mind and will’ 10.19 A corporation performs its various functions through the agency of natural persons and, in most cases, that natural person would be personally liable for the offence. However, in deciding whether the corporation will be liable in a particular instance, one must examine the acts, omissions and, when relevant, the states of mind of these natural persons. It is then necessary to determine whether that act, omission or state of mind is also that of the corporation.45 In H L Bolton (Engineering) Co Ltd v T J Graham & Sons Ltd [1956] 3 All ER 624 at 630, Lord Denning said:46 A company may in many ways be likened to a human body. They have a brain and nerve centre which controls what they do. They also have hands which hold the tools and act in accordance with directions from the centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will. Others are directors and managers who represent the directing mind and will of the company, and control what they do. The state of mind of these managers is the state of mind of the company and is treated by the law as such.

[page 229] 10.20 In Environment Protection Authority v Caltex Refining Pty Ltd (1993) 178 CLR 477; 118 ALR 392, the High Court held that the privilege against self-incrimination did not apply to corporations and, in referring generally to the liability of a corporation, Brennan J said at CLR 514: A corporation has no hands save those of its officers and agents; it has no mind save the mind of those who guide its activities. It cannot be subjected to the corporal penalties to which a natural person who offends against the criminal law can be subjected. Yet it can be held criminally liable. The weight of authority shows that, with some exceptions (a corporation is incapable of committing some offences, eg, perjury or bigamy, at least as a principal offender: R v ICR Haulage Ltd [1944] KB at p 554), a

corporation may be criminally liable where the proscribed act done or the proscribed omission made by a corporation’s officer or agent can be treated as having been done or made by the corporation with the mental state possessed by the person or persons who did or authorised the doing of the act or permitted the making of the omission (On the general principles, see in particular Lennard’s Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705 at p 713–p 714; Tesco Supermarkets Ltd v Nattrass [1972] AC 153 at p 170; Director of Public Prosecutions v Kent & Sussex Contractors Ltd [1944] KB at p 155, p 156; R v Australasian Films Ltd (1921) 29 CLR at p 217), whether or not the officers or agents of the corporation are also liable (see Mallan v Lee (1949) 80 CLR 198 at p 211, p 215–p 216; Hamilton v Whitehead (1988) 166 CLR 121 at p 126–p 127). There may be an alternative basis of a corporation’s criminal liability, namely, as an aider, abettor, counsellor or procurer of the offence committed by the human principal offender (Lewis v Crafter [1942] SASR 30; Houston v Wittner’s Pty Ltd (1928) 41 CLR 107 at p 119–p 120). Whatever basis of liability is applied, criminal liability can be sheeted home to a corporation only upon proof that what is done or omitted to be done and the mental state with which the act was done or the omission was made are within the scope of the authority conferred by the corporation upon the person or persons on whose act, omission or state of mind the corporation’s criminal liability is said to depend (see Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146 at p 201).

10.21 In relation to the determination of identifying those individuals who represent the ‘directing mind and will’ of the company, Lord Reid in Tesco Supermarkets Ltd v Nattrass [1971] 2 All ER 127 at 132 said:47 Normally the board of directors, the managing director and perhaps other superior officers of the company carry out the functions of management and speak and act as the company. Their subordinates do not. They carry out orders from above and it can make no difference that they are given some measure of discretion. But the board of directors may delegate some part of their functions of management giving to their delegate full discretion to act independently of instruction from them. I see no difficulty in holding that they have thereby put such a delegate in their place so that within the scope of the delegation he can act as the company. It may not always be easy to draw the line but there are cases where the line must be drawn.

10.22 In Grain Sorghum Marketing Board v Supastok Pty Ltd; Ex parte Grain Sorghum Marketing Board [1964] Qd R 98, the Queensland Court of Appeal drew the line in such a way as to exclude the manager from representing the mind of the company. However, in Kehoe v Dacol Motors Pty Ltd; Ex parte Dacol Motors Pty Ltd [1972] Qd R 59, the opposite conclusion was reached with respect to the acts and state [page 230]

of mind of the manager, and also the sales manager acting as manager during the latter’s temporary absence. In a particular instance then, it will depend on the way in which the company conducts its business, the nature of the action complained of and the terms of the particular legislative provision that is under consideration.48

Punishment of corporation 10.23 When an offence is committed by a corporation and provision is made for the imposition of a monetary penalty, no difficulty arises with the sentencing of a corporation. Not all offences have punishment expressed in monetary terms, but this difficulty is resolved by legislative provisions in Queensland and Western Australia that substitute fines for imprisonment terms49 and set a scale of fines corresponding to various terms of imprisonment.50 _________________________________ 1. 2.

Children’s Court Act 1992 (Qld) s 4; Children’s Court of Western Australia Act 1988 (WA) s 5. Youth Justice Act 1992 (Qld) Pts 1, 2–7; Young Offenders Act 1994 (WA) Pts 1–4, 6–9.

3. 4.

See Sloan (1998) 104 A Crim R 450. Youth Justice Act 1992 (Qld) Pts 2–3; Young Offenders Act 1994 (WA) Pt 5.

5.

Child Protection Act 1999 (Qld) ss 5, 6; Children and Community Services Act 2004 (WA) ss 35–41. Children and Community Services Act 2004 (WA) s 3; Children’s Court of Western Australia Act 1988 (WA) ss 3, 19(2); Young Offenders Act 1994 (WA) s 3. In Junus (2002) 28 SR (WA) 192, radiological evidence was used to determine that the defendant was not a child for the purposes of proceedings in the Children’s Court of Western Australia.

6.

7. 8.

Child Protection Act 1999 (Qld) s 8; 17 years under the Youth Justice Act 1992 (Qld) ss 6, 134; Sch 4. Children’s Court Act 1992 (Qld) ss 5, 11, 14.

9.

Referred to as Justices of the Peace: Children’s Court of Western Australia Act 1988 (WA) s 6(1). 10. Children’s Court of Western Australia Act 1988 (WA) ss 6, 10, 11. 11. Children’s Court Act 1992 (Qld) s 6; Youth Justice Act 1992 (Qld) ss 62, 64, 72, 158; Sch 1; Children’s Court of Western Australia Act 1988 (WA) ss 19, 34; Hayes v Foster (1988) 45 A Crim R 141. 12. Children’s Court Act 1992 (Qld) s 20; Youth Justice Act 1992 (Qld) ss 69, 70; Children’s

Court of Western Australia Act 1988 (WA) ss 23, 31. 13. See Youth Justice Act 1992 (Qld) s 77; 4.15. 14. The term excludes certain property offences, such as stealing, receiving and housebreaking as well as some Drugs Misuse Act 1986 (Qld) offences which are summarily determinable: see the Youth Justice Act 1992 (Qld) s 8; Sch 4 and, for ‘life offence’, see Sch 4 thereof. 15. Youth Justice Act 1992 (Qld) Sch 4; see 2.6. 16. Youth Justice Act 1992 (Qld) ss 81, 90, 91, 94, 95, 97, 98. 17. Youth Justice Act 1992 (Qld) ss 81, 90, 92, 94, 96–98. 18. Youth Justice Act 1992 (Qld) ss 99–102. 19. Youth Justice Act 1992 (Qld) ss 82, 83. 20. Youth Justice Act 1992 (Qld) ss 85–88. 21. Youth Justice Act 1992 (Qld) ss 84, 89. 22. Youth Justice Act 1992 (Qld) s 93. 23. Children’s Court of Western Australia Act 1988 (WA) s 19; see also Adlem (1999) 20 WAR 419. 24. Children’s Court of Western Australia Act 1988 s 19B(1). 25. Children’s Court of Western Australia Act 1988 s 19B(3); see 5.53, 5.54. 26. Children’s Court of Western Australia Act 1988 s 19B(2), (4). 27. Youth Justice Act 1992 (Qld) s 149; Young Offenders Act 1994 (WA) s 46. 28. Youth Justice Act 1992 (Qld) s 150; Young Offenders Act 1994 (WA) ss 46–50B. 29. Youth Justice Act 1992 (Qld) ss 151–153, 207; Young Offenders Act 1994 (WA) ss 47, 48, 120. 30. Youth Justice Act 1992 (Qld) ss 183, 184; Young Offenders Act 1994 (WA) s 55. 31. Youth Justice Act 1992 (Qld) ss 175, 176; Pt 7, Div 5; Young Offenders Act 1994 (WA) Pt 7, Div 4. 32. Youth Justice Act 1992 (Qld) ss 175, 176; Pt 7, Divs 6, 7; Young Offenders Act 1994 (WA) Pt 7, Div 5. 33. Youth Justice Act 1992 (Qld) ss 175–179; Pt 7, Div 4; Young Offenders Act 1994 (WA) Pt 8. 34. Youth Justice Act 1992 (Qld) ss 175–179; Pt 7, Div 8; Young Offenders Act 1994 (WA) Pt 7, Divs 6, 7, s 65B. 35. Youth Justice Act 1992 (Qld) ss 203–206; Young Offenders Act 1994 (WA) s 60(d); Pt 7, Div 7. 36. Youth Justice Act 1992 (Qld) s 181; Pt 7, Div 11; Young Offenders Act 1994 (WA) s 56. 37. Youth Justice Act 1992 (Qld) Pt 7, Div 16; Young Offenders Act 1994 (WA) s 58. 38. Youth Justice Act 1992 (Qld) s 150; Pt 7, Div 10; Young Offenders Act 1994 (WA) s 118; Children’s Court of Western Australia Act 1988 (WA) s 21. 39. Young Offenders Act 1994 (WA) Pt 7, Div 9. 40. See Carton [1913] QWN 8; and note Code (Qld) s 397. 41. See 9.59–9.65.

42. Code (Qld) s 594A; Criminal Procedure Act 2004 (WA) ss 153, 154. 43. Acts Interpretation Act 1954 (Qld) ss 36, 46; Interpretation Act 1984 (WA) s 69(1). 44. See Grain Sorghum Marketing Board v Supastok Pty Ltd [1964] Qd R 98; Geraldton Fishermen’s Co-op Ltd v Munro [1963] WAR 129; GJ Coles & Co Ltd v Goldsworthy [1985] WAR 183; Timms v Darling Downs Co-operative Bacon Association Ltd [1989] 2 Qd R 264; Environment Protection Authority v Caltex Refining Pty Ltd (1993) 178 CLR 477; 118 ALR 392; DPP Reference No 1 of 2000 (2001) 11 NTLR 111. For corporate criminal responsibility, see also the Criminal Code (Cth) Pt 2.5; 1.18, 8.12. 45. The Criminal Procedure Act 2004 (WA) s 180 makes provision for officers of a corporation to be charged with offences alleged against that corporation. 46. See also GJ Coles & Co Ltd v Goldsworthy [1985] WAR 183; Timms v Darling Downs Cooperative Bacon Association Ltd [1989] 2 Qd R 264; Environment Protection Authority v Caltex Refining Pty Ltd (1993) 178 CLR 477 at 514; 118 ALR 392. 47. The same principles apply where the corporation seeks to rely upon an excuse under the Code: see GJ Coles & Co Ltd v Goldsworthy [1985] WAR 183. 48. See also the Competition and Consumer Act 2010 (Cth) s 84; and note the differing approaches suggested by the Privy Council in Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500. 49. Penalties and Sentences Act 1992 (Qld) s 181A(1); Sentencing Act 1995 (WA) ss 40(2), 42(4), 43(4). 50. See Buttle [1984] Tas SR 209.

[page 231]

Chapter Eleven Preliminary Offences

Introduction 11.1 Most often criminal liability arises in circumstances where what occurs is the doing of a proscribed act (at common law, ‘actus reus’) with a particular state of mind (at common law, ‘mens rea’). If only one of these two offence elements exists, then, generally speaking, there is no criminal liability. 11.2 In exceptional circumstances, however, even though the proscribed act has not been committed, the acts of trying to carry out the offence, planning with others to commit an offence, or inciting others to commit an offence are so serious that the law says they should be punishable. 11.3 Trying to carry out an offence is referred to as an attempt. Agreeing with others to subsequently commit an offence is called a conspiracy. Inciting others to commit an offence is called incitement. 11.4 As an attempt, conspiracy and incitement may be committed in circumstances where the substantive offence itself is not carried through to completion, these are referred to as preliminary or inchoate offences. 11.5 Where another person is involved, the accused’s role might also amount to that of counselling or procuring the other person to commit the substantive offence. Through the operation of the Code (Qld) s 7(1)(d) and (WA) s 7(d) or the combined operation of those

provisions and the Code (Qld) and (WA) s 9, criminal responsibility as an accessory for counselling or procuring will arise where the offence is carried through to completion and the accused will be criminally responsible for the completed offence. These general provisions should be distinguished from the following specific examples of procuring under the Codes:1 s 60 (Qld) and s 61 (WA) — bribery of member of parliament; s 87 (Qld) — official corruption; s 103 (Qld) — bribery; s 105 (Qld) and s 102 (WA) — voting at elections; [page 232] s 118 (Qld) and s 88 (WA) — bargaining for office in public service; s 120 (Qld) and s 121 (WA) — judicial corruption; s 121 (Qld) and s 122 (WA) — other official corruption; s 127 (Qld) and s 130 (WA) — corruption of witnesses; ss 210, 216–218 and 352 (Qld) and ss 191, 192 and 319(3) (WA) — sexual offences; and s 311 (Qld) and s 288 (WA) — suicide. 11.6 On the other hand, where the offence has not been completed, the accused could be liable for inciting the offence or attempting to procure its commission.2 The following are Code examples of specific attempts to procure: s 60 (Qld) and s 61 (WA) — bribery of member of parliament; s 87 (Qld) — official corruption; s 103 (Qld) — bribery; s 118 (Qld) and s 88 (WA) — bargaining for office in the public

service; s 120 (Qld) and s 121 (WA) — judicial corruption; s 121 (Qld) and s 122 (WA) — other official corruption; s 127 (Qld) and s 130 (WA) — corrupting witnesses; and s 224 (Qld) — abortion.3 11.7 This chapter is concerned with the inchoate offences of attempt, conspiracy and incitement.

Attempts 11.8 The scheme of the Code (Qld) and (WA) in relation to attempts is to establish a general attempt offence and to supplement that with some specific attempt offences. With the general attempt offence, there is a formula for determining the penalty, while the specific attempts create a penalty that, usually, is greater than that which would apply under the general formula. In all of these offences, the definition of ‘attempt’ in the Code (Qld) and (WA) s 4 is applicable. In addition, there are some offences that involve an attempt to engage in conduct that, in itself, does not constitute a specific offence. In respect of these offences, the definition of ‘attempt’ in s 4 has no application: see 11.15. 11.9 The general attempt offences are found in the Code (Qld) s 535 and (WA) ss 552 and 555A.4 Under the Code (Qld) s 535, it is an indictable offence to attempt to commit an indictable offence which, unless otherwise stated, will be a misdemeanour. However, there is no general attempt offence with respect to [page 233] simple or regulatory offences in Queensland.5 Under the Code (WA) s 552, it is a crime to attempt to commit an indictable offence and, while there is no general provision relating to simple offences, the Code

(WA) s 555A provides that it is a simple offence to attempt to commit one of the simple offences that is contained in the Code.6

Punishment 11.10 The general attempt offences are punishable under the Code (Qld) ss 536 and 537 and (WA) ss 552 and 555A, and the penalty for such an attempt depends upon the maximum penalty allocated to the offence attempted. In Queensland, where the offence attempted is punishable by life imprisonment or by a minimum of 14 years’ imprisonment, the accused is liable to 7 years’ imprisonment. In Western Australia, where the indictable offence attempted is punishable by life imprisonment, the accused is liable to 14 years’ imprisonment. In all other cases of indictable offences, in both Queensland and Western Australia, the accused is liable to half of the greatest punishment to which the offender convicted of the indictable offence that the accused attempted would be liable.7 Under the Code (WA) s 555A, the person who attempts to commit a simple offence that arises under the Western Australian Code is liable to the same punishment as applies to the offence itself. 11.11 Under the Code (Qld) s 538, a further 50 per cent reduction in penalty is available to the accused who is convicted of an attempt and where it is proved by the accused, on the balance of probabilities,8 that he or she desisted of his or her own motion from the further prosecution of his or her intention to commit the offence. This reduction does not apply where the fulfilment of the accused’s intention was prevented by circumstances independent of his or her will. 11.12 With specific attempt offences, the penalty is usually the same as for the substantive offence attempted. An example is attempted murder in the Code (Qld) s 306 and (WA) s 283. Other specific attempt offences in the Code include: ss 47 and 48 (Qld) and (WA) — unlawful oaths to commit offences;

ss 59 and 60 (Qld) and ss 60 and 61 (WA) — bribery of a member of parliament; s 73 (Qld) and s 72 (WA) — provoking a duel; s 99 (Qld) — impersonating a voter; s 103 (Qld) — bribery; s 110 (Qld) — removing ballot papers; s 118 (Qld) and s 88 (WA) — bargaining for public service office; s 101 (WA) — inducing votes; s 120 (Qld) and s 121 (WA) — judicial corruption; [page 234] s 121 (Qld) and s 122 (WA) — other official corruption; s 122 (Qld) and s 123 (WA) — threatening jurors; s 127 (Qld) and s 130 (WA) — corrupting witnesses; s 130 (Qld) and s 133 (WA) — preventing witness attendance; s 215 (Qld) — attempted carnal knowledge; s 216 (Qld) — abuse of an intellectually impaired person; s 245 (Qld) and s 222 (WA) — assault; s 315 (Qld) and s 292 (WA) — disabling to commit an indictable offence; s 316 (Qld) and s 293 (WA) — stupefying to commit an indictable offence; and s 317 (Qld) and s 294 (WA) — attempt to strike with projectile. 11.13 In Queensland, various of these specific attempts are punishable to an extent greater than that applicable under the general formula above but less than the penalty available for the substantive offence.9 In some situations, the Queensland Code specifically defines

the attempt and provides punishment equivalent to that available under the general formula, that is, half of that available for the substantive offence. An example is found in the Code (Qld) s 464, which relates to attempting to set fire to crops. 11.14 In addition, both Codes establish several offences that are described in their heading as being an attempt, but which are substantive offences in their own right and do not utilise the term or concept of attempt; for example: s 82 (Qld) — piracy; s 224 (Qld) — abortion; s 321 (Qld) — injuring by explosive substances; s 412 (Qld) — robbery; s 416 (Qld) and s 398 (WA) — extortion by threats; s 470 (Qld) and s 455 (WA) — destroying property by explosives; and s 471 (Qld) and s 456 (WA) — damaging mines.

Attempts at conduct not otherwise criminal 11.15 In some instances, a person may be punished for attempting to engage in conduct that, in itself, does not constitute a criminal offence. Thus, pursuant to the Code (Qld) s 317(f) and (WA) s 294(2), it is a crime, punishable by imprisonment for life in Queensland and 20 years in Western Australia, for the accused, with the relevant intention, to attempt to strike a person with any kind of projectile. In this situation, a substantive offence may well be committed if a victim were to be struck by a projectile; for example, an assault, a wounding or the doing of grievous bodily harm. However, striking with a projectile is not, in terms, an offence. A further example is found in the Code (Qld) s 140 and (WA) s 143, whereby it is a misdemeanour in Queensland and a crime in Western Australia punishable

[page 235] by imprisonment for 2 years in Queensland and 7 years in Western Australia for the accused to attempt to obstruct, prevent, pervert or defeat the course of justice.10 This is despite the fact that there is no substantive offence of obstructing, preventing, perverting or defeating the course of justice. Although the term ‘attempt’ is used in these provisions, the definition of ‘attempt’ in the Code (Qld) and (WA) s 4 is not appropriately applied here because that definition requires proof by the prosecution that the accused had an intention to commit the specific offence. With these attempts, there is no such offence in existence. In Leavitt [1985] 1 Qd R 343 at 345, the Court of Criminal Appeal in Queensland held that the word ‘attempt’ in such provisions was to be applied according to its meaning in ordinary usage. Andrews SPJ stated: It seems to me hardly necessary, but by way of emphasis I point out that ‘attempt’ in the Shorter Oxford English Dictionary … means ‘to make an effort or endeavour to do or accomplish some action’. This is consistent with meaning by action to achieve a particular result rather than simply to contemplate the possibility or even the likelihood of such a result by such action. The seeking to achieve a result involved in an attempt simply must involve an intention to achieve it. I can think of no practical use of the word which does not involve an intent. To inform the jury that it was not necessary for them to find that the appellant had an intent to strike a police officer with one of the bullets is to ascribe a meaning to the word which it simply has not.

On that basis, such an attempt requires proof of deliberate action by the accused to achieve a particular result and an intention to achieve that result.11

Definition of ‘attempt’ Queensland 11.16 reads:

The Code provides a definition of ‘attempt’. Code (Qld) s 4

Attempts to commit offences (1) When a person, intending to commit an offence, begins to put his intention into

execution by means adapted to its fulfilment, and manifests the person’s intention by some overt act, but does not fulfil the person’s intention to such an extent as to commit the offence, the person is said to attempt to commit the offence. (2) It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on the offender’s part for completing the commission of the offence, or whether the complete fulfilment of the offender’s intention is prevented by circumstances independent of his or her will, or whether the offender desists of his or her own motion from the further prosecution of his intention. (3) It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence. (4) The same facts may constitute one offence and an attempt to commit another offence.

[page 236] 11.17 For the purposes of that definition, the Court of Criminal Appeal in Barbeler [1977] Qd R 80 held that there are four elements to an attempt: there must be an intention to commit an offence; the person must have begun to put that intention into execution by means adapted to its fulfilment; the person must have manifested that intention by some overt act; and the person must not have fulfilled that intention to such an extent as to commit an offence. There, the court also held that it is only the first three of those elements that the prosecution must establish when a person is charged with an attempt. Thus, the fourth element qualifies the preceding components but is not a matter that the prosecution must prove and, therefore, an attempt can be established whether or not the actual offence is committed.12

Western Australia 11.18

In Western Australia, the second, third and fourth paras of

the Code (WA) s 4 are identical to the Code (Qld) s 4(2), (3) and (4). However, the Code (WA) s 4, first para, which was identical to the Code (Qld) s 4(1) until 1987, now reads:13 When a person, intending to commit an offence, begins to put his intention into execution by doing an act that is more than merely preparatory to the commission of the offence but does not fulfil his intention to such an extent as to commit the offence, he is said to attempt to commit the offence.

The amendments in Western Australia combine the second and third elements of the Queensland provision into a single element14 and, therefore, the elements of the definition of attempt in the Code (WA) s 4 are:15 there must be an intention to commit an offence; the person must have begun to put that intention into execution by doing an act that is more than merely preparatory to the commission of the offence; and the person must not have fulfilled that intention to such an extent as to commit an offence.

Elements of attempt Intention to commit offence 11.19 According to the first element in the Code (Qld) and (WA) s 4, the accused must have an intention to commit the offence. Such intention is an essential element for all attempts, even where the substantive offence attempted does not include the element of intention within it. Thus, although the offence of rape does not contain intent as an element in relation to lack of consent, the offence [page 237] of attempted rape does.16 The requirement that the accused have an intention to commit the offence also has relevance in respect of the crime of attempted murder. One of the forms of murder that arises

under the Code is established where the prosecution is able to prove that the accused unlawfully killed another with either one of two intentions — an intention to kill (in both Queensland and Western Australia) or an intention to do grievous bodily harm (in Queensland); an intention to cause a bodily injury of such a nature as to endanger or be likely to endanger life (in Western Australia).17 Where the intention was to cause grievous bodily harm/life-endangering injury, a failure by the accused to kill the victim will not result in a conviction of attempted murder. This is because s 4 requires proof of an intention to commit the offence and the prosecution would need to prove that the accused intended to commit murder. Consequently, it would be necessary to show that there was an intent to kill on the part of the accused.18 It necessarily follows from this that the crime of manslaughter cannot be attempted.19 Where there is an intention to kill, the offence will be one of attempted murder rather than attempted manslaughter.

Execution of intention 11.20 The second element in the Code (Qld) s 4 is that the accused has begun to put his or her intention into execution by means adapted to the fulfilment of that intention. In the Code (WA) s 4, the requirement is that the accused has begun to put his or her intention into execution by doing an act that is more than merely preparatory to the commission of the offence. The element ensures that there will be no conviction for an attempt based upon intention alone. The common law distinction between attempts and mere preparatory acts,20 although not specifically mentioned in the Queensland provision, is assumed to exist in that section.21 There must be conduct of the accused that is sufficiently proximate to the commission of the intended offence in order for the act to be more than merely preparatory. Various approaches have been suggested to determine the point at which mere preparation ends and the conduct of the accused matures into an attempt.

11.21 The last act test One such approach, referred to as the ‘last act test’, required consideration of whether the accused had done the last act in his or her power towards committing that offence.22 This has been rejected on the basis that, in many cases, it leaves little practical scope for the law of attempt because the [page 238] last act may result in the commission of the offence itself.23 For example, on a strict application, there would be no conviction of attempted murder by shooting unless the accused actually reached the stage of activating the trigger mechanism of the gun. Similarly, there would be no conviction of attempted murder by slow poisoning with repeated doses of poison at the time of the first administration of poison: see White [1910] 2 KB 124. In any event, the test is not open under s 4 of the Codes, which provide in (Qld) subs (2) and (WA) second para that it is immaterial, other than for punishment, whether the accused has done all that is necessary on his or her part to commit the offence. 11.22 Uninterrupted series of acts Another approach was to require that the act of the accused form part of a series of acts that, if not interrupted, would have constituted the actual commission of the substantive offence.24 This test has also been criticised because it falls short of defining the precise point at which the series of acts can be said to begin.25 11.23 Equivocality test In Williams [1965] Qd R 86, another approach, referred to as the equivocality test, was adopted whereby the physical act necessary to constitute an attempt is regarded as complete if the accused does an act that is a step towards the commission of the specific crime and that act cannot reasonably be regarded as having any other purpose than the commission of that specific crime.26 However, in Williams, Stable J commented at 100–1: I would consider it unlikely that the authorities will ever give what the learned judge

calls ‘clear guidance’ as to the method of finding the dividing line between preparation and attempt, for that would mean the discovery of a legal formula universally applicable to the enormous variety of methods by which nefariously inclined individual persons apply their infinite disparity of intellect and capability to the carrying out of criminal intentions.

Given that warning, it is not surprising that no single test has been formulated and, in any particular case, it will be a question of fact as to whether the conduct of the accused is sufficiently proximate to the commission of the offence. In the recent case of De Silva (2007) 176 A Crim R 238; [2007] QCA 301, Jerrard J approved of the approach of Stable J in Williams [1965] Qd R 86 in which that judge acknowledged an earlier judgment in which it was stated that:27 All that can be definitely gathered from the authorities is that to constitute a criminal attempt, the first step along the way of criminal attempt is not necessarily sufficient and the final step is not necessarily required. The dividing line between preparation and attempt is somewhere between these two extremes.

[page 239] Jerrard J thought that the suggested direction of the Court’s Benchbook was in accordance with the terms of the Code (Qld). That direction states as follows:28 The act relied on as constituting the attempt must be an act mistakenly, not merely remotely, connected with the contemplated offence. What is done must go beyond mere preparation to commit the crime and must amount really to the beginning of the commission of the crime. But it is not necessary that the defendant should have done his best or taken the last step towards the intended offence.

In Western Australia, the Court of Criminal Appeal recently considered the test to be applied under s 4 of the Criminal Code (WA) in Weggers (2014) 240 A Crim R 205; [2014] WASCA 57. In that case, the appellant appealed against his conviction of attempting to manufacture methylamphetamine.29 He was stopped by police with his car stocked with chemicals and materials associated with the manufacturing of the drug. He argued on appeal that he had not begun to put his intention into execution, and had not done anything that was more than merely preparatory to the commission of the

offence of manufacturing methylamphetamine. Martin CJ endorsed a contextual approach to the expression ‘more than merely preparatory’, noting that whether or not the accused’s acts are ‘properly characterised as the commencement of putting the offender’s intention into execution … necessarily involves questions of fact and degree that will depend upon the particular circumstances established by the evidence’: at [76]. He concluded that the question of whether an accused’s acts can be characterised as putting his or her intention into execution ‘does not readily admit of any rules of thumb or bright lines of demarcation.’ Martin CJ at 221 looked to nine factors, including that the materials and equipment compiled by W and placed in the vehicle by him were all that were required to manufacture methylamphetamine, and that the gas bottle had been filled a few hours before W’s apprehension, as sufficient evidence from which a jury could conclude beyond a reasonable doubt that W had carried out acts in order to put his intention into execution: Given that the vehicle was going away from Mr Weggers’ house, and that all that was necessary to complete the process of manufacture was present within the vehicle, the only reasonable inference open on the evidence is that the purpose of the journey was to go to a place where the process of manufacture could be completed with reduced risk of apprehension …

In his separate judgment Buss J agreed that in distinguishing between acts that are merely preparatory to an offence and those that are more than merely preparatory, that each case ‘will turn on its own facts and circumstances’: at [158]. However, he identified the following considerations as ordinarily important in making this distinction: the nature of the completed offence; the actions that are necessary for the completion of the offence; the nature of the particular acts of the [page 240] accused; and the relative proximity (including in time and place) of

the actions to those necessary for the completed offence. The decision in Weggers therefore means that in Western Australia a case-by-case approach will be adopted in determining whether sufficient acts have been completed for an attempt under the Criminal Code (WA) s 4, rather than the application of any of the specific tests identified above. 11.24 Immaterial how attempt was stopped Where the accused does not complete the offence, it is immaterial, other than for punishment, whether the fulfilment of his or her intention was stopped by circumstances independent of his or her will or whether he or she voluntarily stopped the attempt.30

Overt act 11.25 The third element contained in the definition of attempt in the Queensland provision is that the accused must manifest his or her intention by some overt act; that is, an act capable of being observed by someone else. Mere intention, then, to commit an offence is insufficient to amount to an attempt. This element is incorporated into the second element in the Western Australian provision.

Factual impossibility 11.26 The definition of ‘attempt’ makes express provision for the situation of factual impossibility by providing that it is immaterial that by reason of circumstances not known to the accused it is impossible to commit the offence.31 This provision serves to make the accused criminally responsible for an attempt where he or she failed to complete the crime because of ineptitude, inefficiency or the adoption of insufficient means. For example: the pick-pocket who dips into an empty pocket; the murderer who uses a non-lethal dose of poison;32 the burglar who employs an insufficiently strong crowbar; the thief who enters a room to steal a particular diamond that is

not there because the owner has removed it;33 the accused who attempts to receive stolen goods that, it turns out, are not stolen;34 and the accused who attempts to import a prohibited substance where, unbeknown to him or her, the substance is not prohibited.35 In these situations, the intended crime was not committed because of factual impossibility due to circumstances not known to the accused. Nevertheless, the accused will be guilty of an attempt provided the offence attempted was a recognised offence, that the accused has done acts that are more than merely [page 241] preparatory according to the relevant tests referred to above, and that there was an intention by the accused to commit the offence.36 11.27 Before leaving the question of factual impossibility, reference should be made to the final words of the second element of the definition of attempt in the Code (Qld) s 4(1). The accused must have used ‘means adapted to the fulfilment of his or her intention’. The Code provides no guidance as to the meaning of these words. In one sense, they appear to conflict with the terms of the Code (Qld) s 4(3), which provides that it is immaterial that, by reason of circumstances not known to the offender, it is impossible in fact to commit the offence. For example, the accused who intends to electrocute his or her victim by placing a torch battery in the bathtub with the victim could be said to be operating in the realms of factual impossibility. Can it be said that the accused in that situation has used means adapted to the fulfilment of his or her intention? In a subjective sense, this will be so. However, it is difficult to see how he or she would have applied means adapted to the fulfilment of his or her intention if the matter is to be viewed objectively. In Western Australia, this apparent conflict within the provision has been removed by the amendment referred to above: see 11.16. There, it is sufficient for the prosecution to show that

the accused has begun to put his or her intention into execution by doing an act that is more than merely preparatory to the commission of the offence. The Queensland provision should be similarly amended. 11.28 The concept of factual impossibility should be contrasted with that of legal impossibility. Provided that the attempt does not fall within the realms of the offences discussed at 11.15 (that is, where the Code creates a specific offence of attempting to do an act, where doing that act itself is not a crime), then it is not an attempt to do something that is not a crime. So, for example, if a person who incorrectly believes there is a curfew in Brisbane attempts to leave his house during what he believes is curfew time he has committed no offence.

Attempt as alternative verdict 11.29 Under the Code (Qld) s 583 and (WA) s 10D, on a charge of committing an offence, the accused may be convicted of attempting to commit such offence. In other words, an attempt is an alternative verdict to the principal offence: see 7.7. The Code (WA) s 10D additionally provides that, on a charge of attempting to commit any offence, called the principal offence, the accused may be convicted of committing the principal offence or of committing or attempting to commit any other offence that would have been an alternative verdict on an indictment charging the principal offence. However, the greatest punishment that can be imposed is that which is relevant to the attempt to commit the principal offence.37

Summary determination 11.30 Where an indictable offence is able to be summarily determined, an attempt to commit such an offence may also be the subject of summary proceedings.38 [page 242]

Conspiracy 11.31 The scheme of the Codes in relation to conspiracy is to create two offences of general application and to supplement these with a variety of particular conspiracies. The general offences are found in the Code (Qld) ss 541, 542 and (WA) ss 558, 560. These general conspiracy provisions apply to conspiracies for the commission of offences in the state and also make punishable a conspiracy to commit an offence outside the state, provided it would also be an offence within the state.

Western Australia 11.32 In Western Australia, it is an indictable offence for the accused to conspire with another to commit any indictable offence. This is punishable by 14 years’ imprisonment where the indictable offence is punishable by imprisonment for 14 years or more and, in any other case, by punishment equal to the greatest punishment to which the person convicted of that indictable offence is liable.39 It is a simple offence for the accused to conspire with another to commit any simple offence and the punishment is equal to the greatest punishment applicable to that offence.40

Queensland 11.33 In Queensland, it is a crime for the accused to conspire with another to commit a crime and the accused is liable to a maximum of 7 years’ imprisonment.41 It is a misdemeanour, punishable by 3 years’ imprisonment, for the accused to conspire to commit any offence that is not a crime.42 An unusual consequence of this latter provision is that it is an indictable offence (misdemeanour) to conspire to commit a simple offence in Queensland, thereby reflecting the philosophy that agreements to commit offences may be socially more reprehensible than the commission of the offence itself.43 The permission of the Attorney-General is required before any conspiracy prosecution may be commenced.44

Particular conspiracies 11.34

Particular conspiracies in the Code (Qld) and (WA) include:

s 52 (Qld) and (WA) — sedition; s 131 (Qld) and s 134 (WA) — bringing false accusation; and s 132 (Qld) and s 135 (WA) — obstructing justice. [page 243] Other particular conspiracies in the Code (Qld) are: ss 80, 83 — piracy; s 221 — defiling; s 309 — murder; and s 430 — defrauding.45 In addition, the Queensland Code provides for other particular conspiracies where the purpose agreed upon does not always constitute an offence, even if put into execution, and yet an agreement to undertake that activity is punishable as a conspiracy. Examples of this are seen in the Code (Qld) s 543(1), which reads: Other conspiracies Any person who conspires with another to effect any of the purposes following, that is to say — (a) to prevent or defeat the execution or enforcement of any Statute law; or (b) to cause any injury to the person or reputation of any person, or to depreciate the value of any property of any person; or (c) to prevent or obstruct the free and lawful disposition of any property by the owner thereof for its fair value; or (d) to injure any person in the person’s trade or profession; or (e) to prevent or obstruct, by means of any act or acts which if done by an individual person would constitute an offence on the person’s part, the free and lawful exercise by any person of the person’s trade, profession, or occupation; or (f) to effect any unlawful purpose; or (g) to effect any lawful purpose by any unlawful means;

is guilty of misdemeanour, and is liable to imprisonment with hard labour for three years.46

Conspiracy and conduct not otherwise criminal 11.35 The terms of the above provisions, especially those of the Code (Qld) s 543(1)(f) and (g), are so broad that a variety of acts which, in themselves, do not constitute offences become misdemeanours punishable by 3 years’ imprisonment if they reach the conspiracy stage only. This result no longer pertains in Western Australia, where the provision equivalent to the Code (Qld) s 543 was repealed in 1987.47 The apparent open-endedness of s 543(1)(f) and (g) has also been seen in a number of common law decisions where appeals against conviction have been dismissed for conspiracies to: corrupt public morals;48 outrage public decency;49 [page 244] trespass;50 and defraud.51 In at least the first two of those instances, the completed conduct would not have been criminal in itself. Thus, under the guise of conspiracy, the courts virtually assumed a legislative function with respect to criminal responsibility. The House of Lords subsequently voiced its disapproval of such an approach. In Withers [1975] AC 842, it was held that there is no such common law offence as conspiracy to effect a public mischief. Apart from the established classes of cases, as in Shaw [1962] AC 220, for example, an agreement to enter into activities not in themselves criminal will not amount to a conspiracy. 11.36 The adoption of this interpretation would limit the potential scope of the Code (Qld) s 543, but may be hampered by observations

in the High Court decision of Boston (1923) 33 CLR 386; 30 ALR 185. In that case, the conspiracy related to an agreement to bribe a member of parliament for the purpose of encouraging him to use his influence to facilitate the purchase of certain land. Such an act of bribery would have constituted an offence at common law and therefore a conspiracy to effect that purpose was also an offence. This would be so, even on the House of Lords’ view. However, some of the judges were of the opinion that there would be a conspiracy to effect a public mischief even where the carrying out of the agreed activity would not constitute a criminal offence.52 On the other hand, Higgins J expressed a view similar to that of the House of Lords in Withers [1975] AC 842 when he stated at 408 that he had ‘great sympathy’ with the trial judge’s reluctance: … to treat an agreement as an offence, where the act to be done under the agreement is not in itself a breach of the law, and the judge is asked to say, on his view of the public interest, that a certain agreement is injurious to the public.

This interpretation is preferable and should be applied to the Code (Qld) s 543.53

Definition 11.37 The term ‘conspiracy’ is not defined in the Codes but the concept was referred to by Blair CJ in Campbell [1933] St R Qd 123 at 133–4: Now, conspiracy consists not merely in the intentions 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, is punishable if for a criminal object or for the use of criminal means. Where conspiracy is charged in the indictment, it is necessary that the prosecution should establish, not indeed that the individuals were in direct communication with each other, or directly consulting together, but that they entered into an agreement with a common design. Such agreements may be made in various ways. There may be one person, to adopt the metaphor of counsel, round whom the rest revolves.

[page 245]

The metaphor is the metaphor of the centre of the circle and the circumference. There may be a conspiracy of another kind, where the metaphor would be rather that of a chain: A communicates with B, B with C, C with D, and so on to the end of the list of conspirators. What has to be ascertained is always the same matter: is it true to say, in the words already quoted, that the acts of the accused were done in pursuance of a criminal purpose held in common between them?

The need for there to be an agreement as well as an intention to commit the crime was recently emphasised by Pullin JA in the Western Australian Court of Criminal Appeal in Goddard [2014] WASCA 59, although he emphasised that the agreement may be the product of a ‘continuing’ form of communication (at [9]): A conspiracy is complete as a crime when an agreement to embark on a course of criminal conduct is made. The continuing nature of the offence of conspiracy means that a number of individuals may be held to be parties to the same conspiracy, although they join at different times, and even though they may not have been parties to the agreement at the same time.

One essential element of conspiracy is an intention to carry out an unlawful purpose.54 Recklessness is not sufficient. The other essential element, then, is agreement to carry out an unlawful purpose.55 If only one person intends to carry out the agreement there is no conspiracy.56

Where one conspirator is acquitted 11.38 Where the conspiracy involves agreement between two persons only, and one is acquitted either at the trial or as the result of an appeal, can conviction of the other stand? In Shannon [1975] AC 717, the House of Lords abandoned a well-established common law rule that demanded the automatic quashing of the co-conspirator’s conviction,57 and a similar approach was adopted by the High Court in Darby (1982) 148 CLR 668; 40 ALR 594.58 Thus, the conviction of one conspirator may stand whether tried together with, or separately from, the co-conspirator, notwithstanding that the latter is acquitted. The High Court admitted of an exception in a situation where, because of the circumstances of the case, the conviction of one is inconsistent with the acquittal of the other. Consequently, in a case where there is no material difference between the evidence admissible

against each of the conspirators, that circumstance will normally dictate that the convictions stand or fall together.59 To facilitate this approach, the High Court recommended that, in cases where material differences do appear in the evidence, separate trials should be ordered.60 In redirecting the common law [page 246] in this way, the High Court recognised that an acquittal was not a declaration of innocence. Their Honours cited Lord Salmon in Shannon:61 An accused is entitled to be acquitted unless the evidence satisfied the jury beyond reasonable doubt that he is guilty. A verdict of not guilty may mean that the jury is certain that the accused is innocent, or it may mean that, although the evidence arouses considerable suspicion, it is insufficient to convince the jury of the accused’s guilt beyond reasonable doubt. The verdict of not guilty is consistent with the jury having taken either view.

The only effect of an acquittal, in law, is that the accused can never again be brought before a criminal court and tried for the same offence. So far as the prosecution is concerned, the accused is deemed, in law, to be innocent. His or her acquittal cannot, however, affect anyone but himself or herself and indeed would not be admissible in evidence on behalf of or against anyone else. Anyone acquitted of a criminal conspiracy may still be sued in damages for the conspiracy of which he or she has been acquitted at his or her trial.62

Where a person is charged both with a conspiracy to commit an offence and the substantive offence 11.39 While there is clear authority for the view that it is not desirable to prosecute a person for a conspiracy to commit an offence and the offence itself,63 the rule is not inflexible and, in some circumstances, both charges may be pursued.64

Impossibility

11.40 Although there is no specific provision in relation to impossibility in the conspiracy provisions, it is clear that the same position applies as in the case of attempting the impossible; there is therefore liability for conspiring to do the factually impossible.65

Impact of the Commonwealth Criminal Code 11.41 The decision of the High Court of Australia in Dickson (2010) 241 CLR 491; 270 ALR 1 has highlighted the possibility that state law on conspiracy can be limited by Commonwealth law. In that case the appellant was charged with conspiracy to steal certain goods contrary to the Crimes Act 1958 (Vic) s 321(1). As the property in question was Commonwealth property, he could instead have been charged under the Criminal Code Act 1995 (Cth). The High Court held that the Commonwealth Constitution s 109 applied to the extent of any inconsistency between the Victorian Act and the Commonwealth Act, such that the particular Victorian provisions were inapplicable in that case. [page 247]

Incitement 11.42 In Queensland, the Code no longer contains offences involving incitement but, in Western Australia, a general offence of inciting to commit an indictable offence is found in the Code s 553(1), which provides: Any person who, intending that an indictable offence be committed, incites another person to commit the offence, is guilty of a crime.

There is also a general provision for inciting another person to commit one of the simple offences in the Code, but there is no similar provision in respect of other simple offences.66 The punishment for incitement is provided for in the Code (WA) ss 553(2) and 555A(1).67 In addition to these general offences of incitement under the

Criminal Code (WA) there are also specific offences related to the incitement of racial hatred.68

Definition of ‘incite’ 11.43 The term ‘incite’ is defined to include soliciting and endeavouring to persuade.69 In Buttle [1984] Tas R 209 at 218, Cox J adopted the following from Glanville Williams:70 An inciter is one who counsels, commands or advises the commission of a crime. It will be observed that this definition is much the same as that of an accessory before the fact. What, then, is the difference between the two? It is that in incitement the crime has not (or has not necessarily) been committed, whereas a party cannot be an accessory in crime unless the crime has been committed. An accessory before the fact is party to consummated mischief; an inciter is guilty only of an inchoate crime.

His Honour also referred to the same author’s Textbook of Criminal Law:71 The word ‘incitement’ generally speaks for itself, but includes advice, encouragement and authorisation, as well as persuasion by threat. The phrase used in the old books was ‘counsel, procure or command’.

Thus, if the principal offence is actually committed, the accused will be guilty, if at all, under the party provisions of the Code. However, it is not necessary in order to constitute an incitement that the crime actually be attempted.72 _________________________________ 1. 2.

See Rechichi (1999) 106 A Crim R 246. For punishment of attempts to procure, see Code (Qld) s 539; (WA) s 556.

3.

For attempts under Commonwealth law, see Crimes Act 1914 (Cth) s 7; Criminal Code 1995 (Cth) s 11.1. See also 1.18 and 8.12. For specific simple offence attempts in other statutes, see Transport Operations (Road Use Management) Act (Qld) s 79. Note the Drugs Misuse Act 1986 (Qld) s 117 whereby an attempt to commit an offence under that Act is punishable as if the offence itself were committed.

4.

5.

6.

For Code (WA) simple offences, see 4.11. For specific simple offence attempts in other statutes, see Road Traffic Act 1974 (WA) ss 63, 64, 64AA. Note the Misuse of Drugs Act 1981 (WA) s 33, which provides for half of the penalty for the offence attempted. Code (Qld) s 536 for crimes and s 537 for misdemeanours; and (WA) s 552 for all indictable offences.

7.

Witchard [2005] 1 Qd R 428.

8. 9.

Code (Qld) s 462(1) — attempted arson; s 466 — casting away ships. For analysis of the authorities in the context of the identical provision in the Crimes Act (1914) (Cth) s 43, see Murphy (1985) 158 CLR 596; 61 ALR 139.

10. See Osborne [1987] 1 Qd R 96. 11. See Barbeler [1977] Qd R 80 at 83; Prior (1992) 91 NTR 53; 65 A Crim R 1; English (1993) 10 WAR 355. 12. Criminal Code Amendment Act (No 2) 1987 (WA). 13. Crimes Act 1914 (Cth) s 7 and Criminal Code 1995 (Cth) s 11.1 are similar to Code (WA) s 4. 14. See English (1993) 10 WAR 355 at 358. 15. See Code (Qld) ss 349, 350; 14.22. These attempts are not specifically defined in the Code (WA). For ‘intention’, see 8.33–8.35. 16. Code (Qld) s 302(1)(a); (WA) s 279(1)(a), (b). 17. See Zerafa [1935] St R Qd 227; Whybrow (1951) 35 Cr App R 141; Murphy [1969] NZLR 959; Knight (1992) 175 CLR 495; 109 ALR 225; Cutter (1997) 143 ALR 498; 94 A Crim R 152. 18. But see the dicta of Deane J in McGhee (1995) 183 CLR 82 at 93–5; 130 ALR 142. 19. Campbell (1991) 93 Cr App R 350 at 354, referring to the Criminal Attempts Act 1981 (UK) s 1(1), which defines ‘attempt’ in terms not materially different to the Code (WA) s 4. 20. De Silva (2007) 176 A Crim R 238; [2007] QCA 301. 21. See Eagleton (1855) Dears CC 515 at 538; 6 Cox CC 559 at 571; Campbell (1991) 93 Cr App R 350 at 354; Attorney-General’s Reference (No 1 of 1992) (1993) 96 Cr App R 298 at 302. 22. See Williams [1965] Qd R 86 and the criticism therein of Chellingworth [1954] QWN 35 and Edwards [1956] QWN 16. 23. See Attorney-General’s Reference (No 1 of 1992) (1993) 96 Cr App R 298 at 302; Campbell (1991) 93 Cr App R 350 at 354. 24. See Campbell (1991) 93 Cr App R 350 at 354; Susak (1999) 105 A Crim R 592 at 597. 25. See Williams [1965] Qd R 86 at 99–100; Nicholson (1994) 14 Tas R 351; 76 A Crim R 187 at 189, 192; Catlin [1961] Tas SR 191; White [1910] 2 KB 124; De Silva (2007) 176 A Crim R 238; [2007] QCA 301. 26. Stable J quoting Salmond J in Barker [1924] GLR 393 at 398. 27. Jerrard J at [21] citing the Queensland Supreme and District Courts’ Benchbook Direction 68.2. 28. Code (Qld) s 4(2); (WA) s 4, second para. Mere preparation is not generally punishable. Note that the term ‘supply’ in the Drugs Misuse Act 1986 (Qld) s 4 includes the doing of preparatory acts: see 16.36. See also Code (Qld) s 540 and (WA) s 557 for suspicious possession of explosive substances. 29. Contrary to ss 6(1)(b) and 33(1) of the Misuse of Drugs Act 1981 (WA). 30. Code (Qld) s 4(3); (WA) s 4, third para. 31. See Collingridge (1976) 16 SASR 117. 32. See White [1910] 2 KB 124.

33. Shivpuri [1986] 2 All ER 334; English (1993) 10 WAR 355. 34. Britten v Alpogut [1987] VR 929; Mai and Tran (1992) 26 NSWLR 371; Lee [1990] 1 WAR 411. 35. See Lee [1990] 1 WAR 411; Britten v Alpogut [1987] VR 929; Prior (1992) 91 NTR 53; 65 A Crim R 1. 36. Code (WA) s 10C. 37. See Code (Qld) ss 552A(1)(c), 552B(1)(n); (WA) s 5(1), (2); 4.14. 38. For the Commonwealth position, see Code 1995 (Cth) s 11.5; see 1.9, 8.12. See also LK (2010) 241 CLR 177; 266 ALR 399. 39. Code (WA) s 558 40. Code (WA) s 560. 41. Code (Qld) s 541. Where the crime is punishable by less than 7 years’ imprisonment, that lesser penalty is the maximum available. The Attorney-General must consent to the proceedings: Code (Qld) s 541. 42. Code (Qld) s 542. 43. The law was the same in Western Australia until 1987: see Criminal Code (Amendment) Act (No 2) 1987 (WA). 44. Code (Qld) ss 541(2), 542(2), 543(2). 45. See also Procter and Perry [1963] Qd R 335. 46. The Attorney-General must consent to the proceedings: see Code (Qld) s 543(2). 47. Criminal Code Amendment Act (No 2) 1987 (WA). 48. Shaw [1962] AC 220; Knuller [1972] 2 All ER 898. 49. See Shaw [1962] AC 220; Knuller [1972] 2 All ER 898. 50. See Kamara [1974] AC 104. 51. See Scott [1975] AC 819. 52. See Knox CJ at 392 and Isaacs and Rich JJ at 396. 53. For limited recognition of this, see Code (Qld) s 543A relating to industrial disputes. See also Cahill [1978] 2 NSWLR 453; (1978) 22 ALR 361. 54. See LK (2010) 241 CLR 177; 266 ALR 399; Thompson (1965) 50 Cr App R 1; Giorgianni (1985) 156 CLR 473 at 506; 58 ALR 641; Nock [1978] 2 All ER 654 at 658. In Peters (1998) 192 CLR 493; 151 ALR 51, McHugh J said that this included the situation where the accused knows as a virtual certainty what the result of the agreement will be. 55. See O’Connell [1912] QWN 36; Day and Simon (1995) 81 A Crim R 60; Gudgeon (1995) 133 ALR 379 at 389; 83 A Crim R 228; Marchesi (2005) 30 WAR 359 at 370. 56. For statutory recognition of this decision, see the Criminal Law Act 1977 (UK) s 5. 57. LK (2010) 241 CLR 177; 266 ALR 399. 58. See also Behn (1936) 38 WALR 94. 59. Darby (1982) 148 CLR 668 at 678; 40 ALR 594. 60. Darby (1982) 148 CLR 668 at 678; 40 ALR 594. 61. Shannon [1975] AC 717 at 772.

62. But see Hart, Cuzzo and Smith [1980] Qd R 259. 63. Hoar (1981) 148 CLR 32; 37 ALR 357. 64. See, for example, State of Western Australia v Oates (2004) 148 A Crim R 202. 65. Cogley [1989] VR 799; English (1993) 10 WAR 355. 66. Code (WA) s 555A; for simple offences in the Code, see 4.11 and 11.6. 67. For incitement under Commonwealth law, see Crimes Act 1914 (Cth) s 7A; and Criminal Code 1995 (Cth) s 11.4. 68. Code (WA) ss 77–80. 69. Code (WA) s 1. 70. G Williams, Criminal Law, The General Part, 2nd ed, Stevens and Sons Ltd, London, 1961, p 612. 71. G Williams, Textbook of Criminal Law, 2nd ed, Stevens and Sons Ltd, London, 1978, p 344. 72. Gregory (1867) LR 1 CCR 77; Quail (1866) 4 Fost & Fin 1976; Most (1881) 7 QBD 244.

[page 249]

Chapter Twelve Homicide

Introduction 12.1 ‘Homicide’ is the term that describes the unlawful killing of a human being. It is an ‘umbrella term’ used to describe fatal offences against the person. 12.2

This chapter examines homicide in the following ways:

a listing of the relevant offences and specific defences relevant to the umbrella term ‘homicide’; an outline of the alternative verdicts that may be returned if a homicide charge is brought; a discussion of the key terms used in homicide — ‘killing’, ‘death’, ‘person’, ‘causation’ and ‘unlawful’; a discussion of the substantive offences of murder and manslaughter; a discussion of defences peculiar to Queensland — provocation and diminished responsibility; a discussion of a defence peculiar to Western Australia — excessive self-defence; a discussion of the new Western Australian offence of unlawful assault causing death; and a discussion of the new Queensland offence of unlawful striking

causing death. 12.3 Homicide is dealt with in the Code (Qld) and (WA) Ch 28, which makes provision for: causation of death;1 murder;2 manslaughter;3 [page 250] unlawful assault causing death;4 attempted murder;5 aiding suicide;6 killing an unborn child;7 concealing the birth of a child;8 provocation;9 and diminished responsibility.10 12.4 A killing will be unlawful unless it is authorised, justified or excused by law.11 In Queensland, any person who unlawfully kills another commits the crime of murder or manslaughter.12 In Western Australia, the unlawful killing may, in addition, amount to the crime of unlawful assault causing death.13

Alternative verdicts Western Australia 12.5 Provision is made in the Codes for alternative verdicts to be available on an indictment charging a person with unlawful homicide.14 In Western Australia, the Code Ch IIA (ss 10A–10I) deals

with alternative offences and each provision that establishes an offence specifically lists any alternative offences that are available for that offence. Accordingly, on a charge of an offence nominated in column 1 of the table below, the accused may be convicted of an offence mentioned in column 2. Table 12.1:

Alternative verdicts for homicide offences

Offence charged Murder — ss 279, 282

Alternative offence Manslaughter — Code s 280 Unlawful assault causing death — Code s 281 Attempt to murder — Code s 283 Killing an unborn child — Code s 290 Concealing the birth of a child — Code s 291 Dangerous driving causing death — Road Traffic Act 1974 (WA) s 59

[page 251] Offence charged Manslaughter — ss 280, 287

Alternative offence Unlawful assault causing death — Code s 281 Killing an unborn child — Code s 290 Concealing the birth of a child — Code s 291 Dangerous driving causing death — Road Traffic Act 1974 (WA) s 59

Queensland 12.6 In Queensland, alternative verdicts are available under the Code ss 576, 577 and 583 as follows. Table 12.2:

Alternative verdicts for Queensland homicide offences

Offence charged Murder — ss 302, 305

Alternative offence Attempted murder — Code s 306 Manslaughter — Code s 310 Killing an unborn child — Code s 313

Concealing the birth of a child — Code s 314 Dangerous driving — Code ss 328A, 328B Manslaughter — ss 303, 310

Killing an unborn child — Code s 313 Concealing the birth of a child — Code s 314 Dangerous driving — Code ss 328A, 328B

Killing of a person 12.7 The term ‘killing’ is defined in the Code (Qld) s 293 and (WA) s 270 in very wide terms. Any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person. The fact that a person consents to his or her own death does not affect the criminal responsibility of the person who causes death in those circumstances.15

Broad definition of ‘death’ 12.8 Modern medical techniques relating to artificial respiration and circulation of blood in the body have altered the conventional concepts of death, in that those functions can be continued even where there is irreversible cessation of all brain function. In Western Australia, the Interpretation Act 1984 s 13C provides that death, for the purposes of all law in Western Australia, means the irreversible cessation of all function of the person’s brain, or the irreversible cessation of circulation of blood in the person’s body. [page 252] As yet, no legislative or judicial definition of death has been formulated for the purposes of criminal law in Queensland. Legislation in Queensland relating to death for the purposes of transplantation of human tissue has adopted irreversible cessation of brain function as a precondition for such procedures to be

conducted.16 However, the effect of that definition is limited to the operation of that legislation. The issue of what amounts to death has arisen indirectly in cases where a person has been injured by an accused, hospitalised and placed on a life support system. The disconnection of the life support system in those circumstances has been found not to constitute a new causative factor in bringing about the victim’s death, and criminal responsibility stays with the accused.17 This is consistent with the view that death occurs when the brain ceases to function.

Medical treatment and death 12.9 Where the hospitalisation of the victim was brought about in the absence of any criminal responsibility, for example, through illness, old age or accidental trauma, and where the medical opinion is that the person will not recover, the question arises as to the criminal responsibility for the victim’s death of those who disconnect a life support system, discontinue medical treatment or merely withhold sustenance in that situation. It has been held that it is not unlawful for a medical practitioner to discontinue the medical treatment and care of a patient in post-coma unresponsiveness (permanent vegetative state).18 12.10 The Codes provide for relief from criminal responsibility for a person who performs a surgical operation or medical treatment (Queensland) or administers surgical or medical treatment or carries out an inoculation procedure (Western Australia) in good faith and with reasonable care and skill.19 In Queensland v Nolan [2002] 1 Qd R 454, an application was granted to proceed with a surgical operation to separate conjoined craniopagus twins on the basis that it was in their best interest that the operation proceed, even though it would lead to the immediate death of one of them. Reliance was placed on the duty imposed by the Code s 28620 and the court found that the operation would not be unlawful because of the Code (Qld) s 282.21 In Queensland, the Code s 282A excuses a doctor, or a person acting under the written direction of a doctor, from criminal responsibility

for providing palliative care to another person if it was provided in good faith and with reasonable care and skill and if the provision of the palliative care is reasonable, having regard [page 253] to the other person’s state at the time and all the circumstances of the case. The provision applies even if an incidental effect of providing the palliative care is to hasten the other person’s death. However, the protection does not extend to an act done or omission made with intent to kill or to aid the other person to kill himself or herself. To remove any doubt, the Code (Qld) s 282A(4) declares that the provision of the palliative care is reasonable only if it is reasonable in the context of good medical practice for the medical profession in Australia having regard to the recognised medical standards, practices, procedures and ethical standards of the medical profession in Australia.22 The term ‘palliative care’ is defined to mean care directed at maintaining or improving the comfort of a person who is, or would otherwise be, subject to pain and suffering.23 12.11 Finally, it should be noted that for a person to be convicted of homicide, it is not necessary that the body of the victim be found. In Horry [1952] NZLR 111, the accused was found guilty of murdering his wife, notwithstanding that no trace of the body had been found and that the accused had made no confession of any participation in the crime.24 In Horry, speaking for the Court of Appeal, Gresson J stated at 123: In this case, there is neither the body nor traces of the body, nor anything in the form of a confession, but, in our opinion that does not exhaust the possibilities. There may be other facts so incriminating and so incapable of any reasonable explanation as to be incompatible with any hypothesis other than murder. It is in accord both with principle and with authority that the fact of death should be provable by such circumstances as render it morally certain and leave no ground for reasonable doubt — that the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for.

Person 12.12 The Code (Qld) s 293 and (WA) s 270 refer to the killing of a person. The Codes contain no definition of ‘person’ in relation to homicide, although the Code (Qld) and (WA) s 1 defines the term ‘person’ in respect of offences relating to property. 12.13 The Code (Qld) s 292 and (WA) s 269 provide that a child becomes a person capable of being killed when it has completely proceeded in a living state from the body of its mother, whether or not it has breathed, has an independent circulation or the ‘navel-string’ is severed. This provision is of uncertain scope; although the child is a person if it is in a ‘living state’, no definition of ‘living state’ is provided. 12.14 In Castles [1969] QWN 36, the accused was charged with manslaughter. Before evidence was adduced at the trial, the judge was asked whether the verdict of guilty would be open as a matter of law. The accused had attempted to procure an abortion by syringing warm water into the uterus of a woman who was 22 weeks pregnant. Two days later, the baby was born in a hospital. There was evidence that the baby was breathing, albeit irregularly, for more than two hours, but that it had [page 254] no prospect of continued survival because of its stage of development. Lucas J, in ruling that the verdict of guilty of manslaughter would be open, said: I should be disposed to think that when the section speaks of a child proceeding in a living state from the body of its mother it is referring to the state in which the child proceeds from the body of its mother, and that a child who lives, albeit doomed to die, for some period after it has proceeded from the body of its mother, is within the section.

According to this broad interpretation of the Code (Qld) s 292 and (WA) s 269, a child is within the terms of the section as long as it lived

for some period after birth, even though it had no prospect of continued existence.25 On that basis, as long as the child is born alive, the accused may be criminally responsible for his or her acts that occurred prior to birth. 12.15 In Martin (No 2) (1996) 86 A Crim R 133, the accused was held to have been properly convicted, under the Code (WA) s 270, of the murder of his son, who died some 7 months after birth. The accused had stabbed his wife when she was 28 weeks pregnant and, although the foetus was not directly harmed at that time, the woman suffered massive blood loss causing her body to draw blood from the placenta, thereby reducing blood flow to the foetus. As a result, the child was born with substantial and irreversible brain damage from which he died.26 The Court of Appeal relied on the Code (WA) s 271 to establish that the accused was deemed to have killed the child because the child had died as a consequence of the accused’s acts, albeit that his death occurred 10 months later.

Unborn child 12.16 Where the accused causes the death of a foetus so that the child is not born in a living state as provided for in the Code (Qld) s 292 and (WA) s 269, the accused may be charged with the killing of an unborn child, which also constitutes a crime.27 An accused is guilty of killing an unborn child if he or she prevents the child from being born alive by an act or omission such that, if the child had been born alive and then died, the accused would have been responsible for the child’s death. No guidance is given as to the stage of development that the foetus must have reached, except that the provision applies when the woman ‘is about to be delivered’ of the child. That terminology suggests a time close to actual birth.28 In Queensland, there is a further offence related to the unborn child which makes no reference to the imminence of birth in the Code s 313(2), which reads:29 Any person who unlawfully assaults a female pregnant with a child and destroys the life of, or does grievous bodily harm to, or transmits a serious disease to, the child before its birth, commits a crime punishable by life imprisonment.

[page 255] There is as yet no corresponding offence in the WA Code, although the West Australian Law Reform Commission has recommended that the Code (WA) s 290 should be amended so that it applies ‘when a woman is pregnant with a child capable of being born’.30

Concealing birth 12.17 Reference should also be made to the offence of concealing the birth of a child by any secret disposition of the child’s body.31 The crime may be committed regardless of whether the child died before, during or after birth.

Causation 12.18 In any charge of a criminal offence where the accused is alleged to have brought about a particular result, an issue of causation arises. Thus, for homicide, offences against a person such as wounding or doing grievous bodily harm and certain property offences such as criminal damage, it will be necessary for the prosecution to prove that the accused caused the particular result charged in the indictment.

Causal connection between accused’s conduct and death of victim 12.19 In the case of homicide, the Code (Qld) s 293 and (WA) s 270, in defining ‘killing’, outline the requirement of a causal connection between the conduct of the accused and the death of the victim.32 Importantly, an indirect connection with death suffices for causation. The scope of that provision is interpreted by reference to: the general principles of causation as they have developed under the Codes and at common law (see 12.20–12.24); other provisions in the Code Ch 28 that deal with specific aspects

of causation (see 12.5–12.30) and (Qld) s 294 and (WA) s 271 — death by acts done at childbirth; (Qld) s 295 and (WA) s 272 — causing death by threats; (Qld) s 296 and (WA) s 273 — acceleration of death; (Qld) s 297 and (WA) s 274 — failing to prevent death by taking proper precaution; and (Qld) s 298 and (WA) s 275 — where death is caused by treatment subsequent to injury; and the duty provisions in the Code Ch 27, which provide that a person is held to have caused any consequences that result to the life or health of another by reason of any omission to perform any of the nominated duties.33 The High Court has pointed out that it is for the jury to determine causation as a matter of fact and, in the many cases where causation is not controversial, a detailed direction as to what constitutes causation will not be required.34 In Royall (1991) 172 CLR 378 at 385, 412, 441; 100 ALR 669 the majority of the High Court, [page 256] at CLR 387, 411, 423, 425 and 441, referred with approval to the statement of Burt CJ in Campbell [1981] WAR 286 at 290: It would seem to me to be enough if juries were 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.

Tests for causation 12.20 The test for causation has two facets. The first requires that there is a factual link between the accused’s action or inaction and the result charged. This is often expressed in terms of ‘but for’ terminology, so that if the result charged would not have occurred but for the action of the accused, then this aspect of causation is established. In Jemielita (1995) 81 A Crim R 409, the Western

Australian Court of Criminal Appeal held that this is a question of fact based on admissible evidence. However, in some situations, that test is too broad, and therefore the determination of liability will depend upon the application of the second part of the causation test, referred to as legal causation. In Krakouer v State of Western Australia (2006) 161 A Crim R 347, the court described the particular challenges of this aspect of the causation test (at [23]):35 Legal causation raises more difficult questions of criminal responsibility — whether the factual connection between the conduct in question and the event is sufficient to justify the attribution of moral culpability and, hence, legal responsibility.

12.21 Therefore, while the acts of the accused need not constitute the sole or immediate cause of the victim’s death, there will be no criminal responsibility where the chain of causation is broken by some intervening agency — a novus actus interveniens. The intervening agency may be the actions of the victim or of some other person, or it may be some natural phenomenon such as that referred to in Hallett [1969] SASR 141.36 Hallett assaulted and left the victim lying unconscious on a beach with his feet reaching into the water. The South Australian Court of Criminal Appeal upheld the conviction for murder on the basis that the original violence of the accused was still an operating and substantial cause of death by drowning, whether that was because of the effects of the tide or because the victim had rolled into the sea. A distinction was drawn between the effects of normal tide and extraordinary events in the following way (at 150): … if the deceased had been placed in a situation safe from the ordinary operation of the sea and had been engulfed by an extraordinary tidal wave as a result of an earthquake in the sea it may be that the earthquake and not the act of the appellant would be regarded as the cause of death. But we cannot regard the ordinary operations of the tides, whether known to the appellant or not, as being such a supervening cause.

12.22 The question of what test to apply in such circumstances has been addressed in two important cases. In Royall (1991) 172 CLR 378; 100 ALR 669, [page 257]

the victim had fallen to her death from a window in a building and one view of the evidence left to the jury was that she had jumped in fear of an attack or further attack from the accused. Four basic tests of causation were referred to in the High Court’s judgment in that situation: the operating and substantial cause test; the natural consequence test; the reasonable foresight of consequences test; and the novus actus interveniens test.37 Brennan J referred to the need for a significant contribution by the accused’s conduct (at 398), Deane and Dawson JJ referred to a ‘substantial or significant cause of death’ as being sufficient (at 411) and Toohey and Gaudron JJ referred to the need for there to be substantial contribution by the accused to the death of the victim (at 423). Although McHugh and Brennan JJ favoured a test based upon foreseeability, the majority were in favour of adopting a test that utilised terms other than those based on foreseeability.38 12.23 The approach of the majority in Royall (1991) 172 CLR 378; 100 ALR 669 should be applied under the Code so that the test is whether the accused’s actions were a substantial or significant cause of death. Where causation is expressed in terms of foreseeability, there is little or no scope for the operation of the excuse of accident under the Code (Qld) and (WA) s 23, according to which the accused is not criminally responsible for an event that is unforeseen by him or her and not reasonably foreseeable.39 12.24 In Krakouer v State of Western Australia (2006) 161 A Crim R 347, the Western Australian Supreme Court applied the substantial or significant contribution test in circumstances where the appellant claimed that his actions in striking the victim over the back of the head with a wooden post were not a cause of the victim’s death, as the victim had previously been mortally wounded by another man. The court concluded that it was clearly open to the jury to have found that the appellant’s blow made a substantial or significant contribution to

the victim’s death and confirmed his conviction for murder. Subsequently, the High Court of Australia rejected an application to appeal this ruling, suggesting that the Code interpretation of ‘cause’ refers to a substantial or significant contribution to the death of the victim. 12.25 The general causation provision in the Code (Qld) s 293 and (WA) s 270 is extended by the terms of the Code (Qld) ss 294–298 and (WA) ss 271–275. These provisions have the effect of deeming the accused to have caused death in [page 258] particular circumstances. In Krakouer, Steytler P (at 74) explained how the general causation principles interact with these deeming provisions: Sections 272 to 275 [Code (Qld) ss 295–298] deal with causation in particular situations: Causing death by threats (s 272 [Code (Qld) s 295]) … However these specific sections do not, in my view, limit the generality of the causation requirement in s 270 [Code (Qld) s 293]. The common law principles of causation provide guidance in that regard.

Acts done before or during birth 12.26 The Code (Qld) s 294 and (WA) s 271 deem the accused to have killed a child where the child died as a consequence of the accused’s act before or during birth: see 12.9–12.12.

Threat, intimidation or deceit 12.27 The Code (Qld) s 295 and (WA) s 272 deem the accused to have killed the victim where the victim’s death was caused by threat, intimidation or deceit by the accused. Typically, this provision will arise where the victim dies as a result of injuries received in attempting to avoid the unwanted attention of the accused and reflects the principles referred to in Royall (1991) 172 CLR 378; 100 ALR 669, where one of the bases on which murder was left to the jury

was that the victim jumped to her death in trying to escape from the accused: see 12.22. The accused will be responsible for causing death if the victim’s apprehension of physical harm was a well-founded one and where the victim’s response was reasonable or proportionate to the threat offered by the accused.40

Victim with disorder or disease 12.28 The Code (Qld) s 296 and (WA) s 273 deem the accused to have killed the victim where the act of the accused hastened the death of the victim, who was already labouring under some disorder or disease arising from another cause.41 This does not apply to the situation in Krakouer where the victim was struck a mortal blow shortly before being struck by the appellant; the court found that the injuries where not a ‘disorder or disease’. A difficult question arises in connection with the medical treatment for terminal illness, a situation referred to as ‘terminal sedation’. In Brightwater Care Group (Inc) v Rossiter (2009) 40 WAR 84, Martin CJ felt that the administration of painkillers in the course of terminal illness that accelerate death would be justified by the defence of medical necessity in the (WA) Code s 259.42 [page 259]

Medical treatment Availability of treatment immaterial 12.29 The Code (Qld) s 297 and (WA) s 274 make it immaterial, when the accused has caused a bodily injury to the victim from which death results, that the injury might have been avoided by proper precaution by the victim or that the victim’s death might have been prevented by proper care or treatment. This provision ensures that the chain of causation is not broken in a situation such as where the victim is seriously injured but, for personal reasons, elects not to receive a

life-saving blood transfusion.43 It is not a deeming provision as such, but prevents the accused from relying on the fact that proper medical treatment would have prevented death as a way of avoiding causal responsibility for the outcome.

Where emergency treatment becomes cause of death 12.30 The Code (Qld) s 298 and (WA) s 275 deem the accused to have killed the victim to whom the accused has done grievous bodily harm as a result of which the victim receives surgical or medical treatment and where the immediate cause of death is that treatment. In Cook (1980) 2 A Crim R 151, the Queensland Court of Criminal Appeal held that the provision applied only where the immediate cause of death was the surgical or medical treatment. The court also held that the term ‘treatment’, for the purposes of the section, extends to the whole management of the patient, including the nonadministration of a drug where such is the result of a deliberate decision by the doctor concerned (at 154).44 12.31 The provision requires that the treatment was reasonably proper in the circumstances and applied in good faith. In Levy (1948) 51 WALR 29, the victim was admitted to hospital suffering stab wounds that were dangerous to life. He was treated with certain drugs that, due to a latent infection, caused his liver to break down, thereby contributing to his death. In the Court of Criminal Appeal, the conviction for murder was upheld. Wolff J, referring to the circumstances in which treatment is given, said that the section relates to ‘the circumstances as viewed by the medical attendants at the particular time or period, according to the reasonable information then at their command’ (at 33). Thus, even where the treatment is unsuccessful, it may nevertheless be reasonably proper. Similarly, where incorrect treatment is administered, the causation factor may still be established if, in an emergency, there is no opportunity to diagnose the idiosyncrasies of the patient.45

Medical negligence

12.32 For the purposes of the Code (Qld) s 298 and (WA) s 275, where the treatment is abnormal due to the negligence of the medical practitioners involved, the chain of causation will be broken and the accused will escape liability.46 Common law decisions show that, at the time of death, the original act or conduct must be an operating and substantial cause before the accused will be responsible, and that [page 260] the chain of causation is only broken where the second cause is so overwhelming as to make the original wound merely part of the history.47 12.33 The Code (Qld) s 298 and (WA) s 275 have no operation in the situation where a ventilator, used to respirate the victim artificially, is disconnected following a medical decision that death has occurred, no new causative element having been introduced by such action: see 12.8.

Time limit on causation 12.34 There was once an exception to the deeming effect of the Code (Qld) s 293 and (WA) s 270. If death did not occur within a year and a day of the act that caused the death, the accused was not criminally responsible for the death. These provisions have now been repealed.48

Proving causation through breach of duty 12.35 A final way of proving a causal link is through the use of the duty sections in the Codes Ch 27.49 Duties are imposed in respect of the conduct of surgery, the duty to provide necessaries, the ‘doing’ of dangerous acts, the way a dangerous object is used and the undertaking of certain acts, the failure to perform which could endanger life or health. Details of these duties are considered under the substantive offence of manslaughter (see 12.55–12.63).

12.36 In Stott and Van Embden [2001] 2 Qd R 1313, McPherson JA observed that the provisions of Ch 27 were probably originally designed to cater for questions of causation arising out of cases of ‘“pure” omission or failure to act’. 12.37 Due to the difficulty of proving a causal link where the accused has failed to act, as opposed to positively harming the victim, a breach of these duty provisions will establish a causal link between the accused’s omission and the harm suffered by the victim, where it is established that the accused has failed to take reasonable steps to avoid the harm in question.50 The sections deem a person to have caused the result of a breach of the relevant duty. 12.38 It is important to understand the degree of negligence involved. The High Court noted in Patel (2012) 247 CLR 531 at 535; 290 ALR 189: The duty under s 288 is ‘to have reasonable skill and to use reasonable care’, but the degree of negligence necessary to constitute a breach of duty is not that of the civil law of negligence. Callaghan v The Queen holds [that], because the provision appeared in a Code dealing with major crimes involving grave moral guilt, the standard to which a provision such as s 289 must be taken to refer is that set by the common law in cases where negligence amounts to manslaughter. The same standard applies to s 288. Criminal responsibility therefore attaches only if there has been ‘criminal’ or ‘gross’ negligence. In Bateman, Hewart LCJ said that whatever epithet be used, the standard of conduct must go beyond that relevant to a matter of compensation; it must be such as to show such disregard for the life and safety of others as to

[page 261] amount to a crime and to be conduct deserving punishment. In Nydam v The Queen, the requisite standard was said to involve ‘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’.

12.39 Defining terms used in some of the duty sections is also important. For example, the term ‘dangerous thing’ in the Code (Qld) s 289; (WA) s 266 has been interpreted such that the item in question need not be inherently dangerous. It is sufficient if the way the thing is

used is dangerous.51 It is important to establish, of course, that the thing in question be under the control of the person, or that the person be in the position to intervene to prevent harm.52 The term ‘necessaries of life’ in the Code (Qld) s 285; (WA) s 262 has been interpreted to mean things that the person requires to survive.53

Unlawfulness 12.40 For the killing to amount to a crime, it must be unlawful. This will be satisfied if the killing is not authorised, justified or excused.54 There appears to be no significant difference between the terms ‘authorised’, ‘justified’ or ‘excused’.55 Therefore, this is a reference to the excuses that are found in the Codes, and that may be invoked to excuse a person who has killed another from criminal responsibility; for example, where the killing was an accident or where the act causing death occurred independently of the accused’s will.56 12.41 The Codes also provide for situations where the use of force is justified in the sense that it is lawful for force to be used. Some of these provisions specifically exclude force that is intended or likely to cause death or grievous bodily harm, and examples are found in compulsion or duress and preventing escape from arrest.57 Other provisions make no reference to intended harm, but require that the force used is reasonable. Examples are found in self-defence and defence of a dwelling.58

The substantive offence 12.42 Once the fact of an unlawful killing has been established, the Code (Qld) s 300 and (WA) s 277 require that the killing be characterised as one of the following: murder;59 [page 262]

manslaughter;60 or additionally, in Western Australia, unlawful assault causing death.61

Murder Where proof of intention is required 12.43 The first form of murder under both the Code (Qld) and (WA) requires proof of intention to kill a person. Intention is not defined in the Codes, but has been the subject of judicial attention in the Queensland courts. Those decisions have made it clear that intention means aim or purpose.62 The second form of murder requires, in Queensland, an intention to cause grievous bodily harm.63 In Western Australia, the Code was amended in 2008 so that the second form of murder requires proof of intention to cause a life-endangering injury or an injury likely to endanger life. This amendment removed intention to cause a permanent injury to health from the scope of murder. The issue of whether this change represents a purely subjective or a subjective/objective test has recently been resolved by the court; it has now been held in two Court of Appeal decisions that it is required that the prosecution prove an intention to cause bodily injury, but that it is an objective question as to whether that injury is a lifeendangering one or is likely to endanger life. In Schmidt v State of Western Australia [2013] WASCA 201, it was held that a retrial should be held on the basis that no attempt was made at trial to identify the bodily injury that it was alleged the accused intended to cause. The court followed the earlier case of Wongawol v State of Western Australia (2011) 42 WAR 91 in holding that the question of whether the bodily injury intended endangered life or was likely to endanger life was to be objectively assessed. 12.44 Those sections make it clear that the accused is still criminally responsible where the intention was to harm someone other than the

victim.64 These forms of murder require a subjective determination of the state of mind of the accused at the time when the offence was committed.65

Temporal connection between mind and action 12.45 When an offence contains a particular state of mind as an element thereof, as with intention for the form of murder in the Code (Qld) s 302(1)(a) and (WA) s 279(1)(a) and (b), there must be concomitance in time between the mental state and the physical acts that constitute the offence. Depending how this principle of contemporaenity is applied, it could unduly favour or disadvantage the [page 263] accused. In Thabo Meli [1954] 1 All ER 373, the Privy Council dealt with this issue. In execution of a preconceived plan to kill their victim and then fake an accident, the appellants had struck him over the head. At that stage, they believed him to be dead but, in fact, the blow had only rendered him unconscious. In furtherance of the second part of their plan, they then rolled the ‘body’ over a cliff, making it look like an accident. Death was caused by exposure to the elements. The appellants were convicted of murder. On appeal they argued that, while the intention to kill was present at the time of striking the blow, the victim was not killed. At the time of doing the act that, in fact, caused death, the intention to kill was not present because they believed him to be already dead. The problem was resolved in this way (at 374):66 It appears to their Lordships impossible to divide up what was really one series of acts in this way. There is no doubt that the accused set out to do all these acts in order to achieve their plan, and as parts of their plan; and it is much too refined a ground of judgment to say that, because they were under a misapprehension at one stage and thought that their guilty purpose had been achieved before, in fact, it was achieved, therefore they are to escape the penalties of the law. Their Lordships do not think that this is a matter which is susceptible of elaboration … Their Lordships … are of opinion

that … there can be no separation such as that for which the accused contend. Their crime is not reduced from murder to a lesser crime, merely because the accused were under some misapprehension for a time during the completion of their criminal plot.

Accordingly, there was no severance of the chain of causation. Another means of achieving that result is to treat the initial assault on the victim as continuing to be a substantive and operating cause of death at the time when the intention to kill was present.67

Where proof of intention is not required 12.46 Other forms of murder do not require proof of an intention to cause a specific result. Thus, an unlawful killing will be murder if it was caused by an act done in the prosecution of an unlawful purpose and where that act was of a nature likely to endanger human life.68 This is a restatement of the common law ‘felony murder’ rule, a form of constructive murder that did not require proof of intent to cause death or serious bodily harm.69 Other forms of murder are defined in the Code (Qld) s 302(1)(c)–(e) and, again, they do not require proof of an intention on the part of the accused and are in fact specific instances of constructive murder whereby the death was caused by administering a stupefying or overpowering thing or by wilfully stopping the victim’s breath where that was done for a specific purpose; that is, to facilitate the commission of a crime or to facilitate the flight of an offender who has committed or attempted to commit a crime. [page 264]

Dangerous act murder 12.47 Of the forms of murder that do not involve an intention to cause a specific result, the most common is that found in the Code (Qld) s 302(1)(b) and (WA) s 279(1)(c). This provision requires that the act that causes death be done in the prosecution of an unlawful

purpose and for that act to be of such a nature as to be likely to endanger human life.

Act likely to endanger life 12.48 This involves an objective test and it is not material whether or not the accused knew that the act was likely to endanger life.70 In Stuart (1974) 134 CLR 426; 4 ALR 545, Stuart and Finch were convicted of this form of murder following the death of patrons in a nightclub that had been set on fire by Finch as part of a plan to extort money from the nightclub owner. Stuart was convicted on the basis of the party provisions of the Code.71 Gibbs J referred to the elements of murder under the provision and to the objective nature of the requirement that the act be of a nature likely to endanger human life. His Honour said at CLR 438: The offence of murder which [s 302(1)(b)] defines has three elements. First, the killing must have been unlawful. Second, the death must have been caused by an act of such a nature as to be likely to endanger human life. Third, that act must have been done in the prosecution of an unlawful purpose. The first of these elements requires no discussion in the present case. To constitute the second element it is enough that the act which caused the death was in fact likely to endanger human life, whether or not the offender knew that it was dangerous. Section [302(1)(b)] speaks of the nature of the act not of the knowledge of the offender, and it was rightly said in R v Gould and Barnes [1960] Qd R 283 at 298, that the test which it requires to be applied is ‘purely objective’. Moreover, [s 302(1)(b)] does not require the offender to have acted with any particular intention, and even without the concluding words, which expressly state that it is immaterial that the offender did not intend to hurt any person, the second paragraph of s 23 would have the effect that the result which the offender intended to cause by his act is immaterial. However, the apparent severity of the operation of [s 302(1)(b)] is mitigated by the provisions of the first paragraph of s 23, since if the death is an event which occurs by accident — that is, if it was a consequence which was not in fact intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person (Kaporonovski v R (1973) 47 ALJR 472 at 480; 1 ALR 296 at 310, and cases there cited) — the accused will not be criminally responsible.

12.49 In Hind and Harwood (1995) 80 A Crim R 105, the two accused were convicted of murder and, in so far as murder under s 302(1)(b) is concerned, Pincus J, in the Queensland Court of Appeal, referred to the degree of probability encompassed by the words ‘likely to endanger human life’ as requiring a substantial or real chance as opposed to a mere possibility (at 138).72 Hind and Harwood intended

to carry out an armed robbery and the victim had been sitting outside the cafeteria. Hind approached the victim and told him to move away, holding the muzzle of [page 265] a sawn-off rifle against the victim as a means of persuading him to move on. The weapon discharged and the victim died from the resultant gunshot wound. Hind’s conviction was upheld on the basis that his action in holding the loaded rifle, without the safety-catch engaged and so close to the victim, was likely to endanger life. The court also held that the actions of Hind, although of a preliminary nature in relation to the robbery, were nevertheless done by him as part of the overall purpose of committing the robbery.73

Act separate from unlawful purpose 12.50 In order to establish murder under the Code (Qld) s 302(1)(b) and (WA) s 279(2), it must be shown that the act that causes death was separate from the overall unlawful purpose of the accused’s conduct. This is consistent with the need for the act to be done ‘in prosecution of’ the unlawful purpose. In Stuart (1974) 134 CLR 426; 4 ALR 545, Gibbs J made reference to these requirements at CLR 438–9: It appears clearly from the words of the section, and it has been laid down by this court, that the act of the accused which caused the death cannot at once constitute the dangerous act and the unlawful purpose: ‘The paragraph relates to an act of such a nature as to be likely to endanger human life when the act is done in the prosecution of a further purpose which is unlawful’: Hughes v R (1951) 84 CLR 170 at 174–5. The facts of Hughes v R clearly exemplify this principle; the dangerous act causing death was a violent assault but the accused had no purpose other than to assault the deceased. If [s 302(1)(b)] had applied in that case it would as Philp J said in R v Gould and Barnes [1960] Qd R at 292, ‘make a man guilty of murder if, without any intent to do grievous bodily harm, he killed by an unlawful act which, in fact, was likely to endanger human life’. The principle recognised in Hughes v R was extended in R v Nichols, Johnson and Aitcheson [1958] QWN Case 29, to a case in which the death was caused in a fire started by the accused with the intention of burning down a hotel. Sheehy J held that a verdict of murder was not open to the jury. He said that ‘that act which caused death, that is the setting fire to the hotel, which itself was arson, was the unlawful purpose’ and that

‘the unlawful or dangerous act relied upon, setting fire to the hotel, is alleged to be at once the unlawful purpose and the dangerous act, and [s 302(1)(b)] does not apply’. With respect, this was a misapprehension of the decision in Hughes v R. In R v Nichols, Johnson and Aitcheson the dangerous act was the striking of a match and applying it to kerosene on the stairs of the hotel, but the unlawful purpose was to commit arson by burning down the hotel; the dangerous act and the unlawful purpose were not the same. The decision in R v Nichols, Johnson and Aitcheson was not required by Hughes v R and finds no support on other authorities on the Code. In R v Gould and Barnes in which, following some earlier decisions, it was held that a verdict of murder was open when death was caused by a dangerous act done for the purpose of unlawfully aborting the deceased, no reference was made to R v Nichols, Johnson and Aitcheson, but the two decisions cannot stand together … In my opinion R v Nichols, Johnson and Aitcheson was wrongly decided and should now be overruled.

His Honour considered that it was open to the jury to find that the lighting of the fire, at a time when people were in the nightclub, was an act likely to endanger human life and that this was done in prosecution of the further and different [page 266] unlawful purpose of extortion. However, Gibbs J also expressed the opinion that the unlawful purpose could have been arson and concluded at 439–40:74 In truth, the act was done in the prosecution of one unlawful purpose (arson) which itself formed part of a wider purpose (extortion). There was ample evidence on which the jury could find as against Stuart that Finch had committed the offence of murder under [s 302(1)(b)].

12.51 It is necessary that a specific act be identified. In Macartney (2006) 31 WAR 416, there was no clear finding as to the cause of death; although consistent with asphyxiation the court found that the failure to identify the act that caused the victim’s death meant that the conviction for this form of murder could not be upheld.

Unlawful purpose under Codes s 8 12.52 In Stuart (1974) 134 CLR 426; 4 ALR 545, the conviction of Finch (who started the fire) was based upon the constructive form of

murder under the Code (Qld) s 302(1)(b) and (WA) s 279(2) and the conviction of Stuart was based upon that provision in conjunction with the Code (Qld) s 8 and (WA) s 8(1). That latter provision requires, inter alia, that the offence be committed in the prosecution of a common unlawful purpose: see 9.20. The purpose relied upon by the prosecution in the murder provision was the same as that relied upon in the party provision. It was held that the same purpose could be utilised in that way. Gibbs J said at CLR 441: The two sections are not in conflict and have the combined effect that when two persons form a common intention to prosecute an unlawful purpose, and in the prosecution of the purpose one does an act which is likely to endanger human life, and in fact causes death, and the nature of that crime was such that its commission was a probable consequence of the prosecution of the purpose, the other is deemed to have committed the offence of murder.

Availability of both forms of murder 12.53 While an objective test applies to the determination of whether a particular act is of a nature likely to endanger human life, those forms of murder involving intention to cause a specific result are, of course, referable to the subjective test of proof of the accused’s intention. Nevertheless, a given set of facts may enable both forms of murder to be put to the jury for consideration. In Cronau (1980) 3 A [page 267] Crim R 460, the accused, carrying a loaded shotgun and wearing a stocking over his face, entered the bottle department of a hotel and demanded money from an employee, who refused to comply. The accused cocked the gun and, shortly afterwards, it fired and the employee was killed. Scientific evidence was to the effect that it was not possible for the gun to be discharged in any other way than by applying the requisite pressure to the trigger when the gun was loaded and cocked. The Court of Criminal Appeal held that the case was correctly put to the jury as one in which they could find the accused guilty of murder under the Code (Qld) s 302(1)(a) on the basis

that he had an intention to kill or to do grievous bodily harm or, alternatively, as coming under the Code (Qld) s 302(1)(b) in either of two ways: where the dangerous act was the voluntary pulling of the trigger for the purpose of robbery; or where the dangerous act was the pointing of the gun, loaded and cocked in circumstances in which it was foreseeable that a struggle would ensue in which the gun might accidentally discharge, again for the purpose of robbery. 12.54 In Hind and Harwood (1995) 80 A Crim R 105, the Court of Appeal in Queensland again approved of the trial judge leaving the two forms of murder to the jury: the first on the basis of killing with an intention to kill or to do grievous bodily harm to the victim; and the second on the basis that the holding of the gun so close to the victim was an act likely to endanger life and that this was done as part of the overall purpose of the robbery which was planned by the two accused: see 12.51.

Manslaughter 12.55 A person who unlawfully kills another under such circumstances as not to constitute murder is guilty of manslaughter. The offence of manslaughter may arise because some essential element of murder is lacking. At common law, this is referred to as involuntary manslaughter. This was a form of manslaughter that, along with murder, was left to the jury in Cronau (1980) 3 A Crim R 460. In directing the jury in that case, however, the judge dealt first with manslaughter and then with murder. On appeal, Lucas ACJ (at 464) said that, as manslaughter would only arise for consideration if the jury was not satisfied of murder, it would be more appropriate for the jury to consider murder first. Manslaughter may arise in another form. This is where all the essential elements of murder are present, but where the accused is able to rely on some circumstance of mitigation that reduces the offence of murder to that of manslaughter.

At common law, this latter form is referred to as voluntary manslaughter. In Queensland, the mitigating factors are provocation and diminished responsibility; in Western Australia, there is now only one mitigating factor, that being if the killing is done in self-defence but with the use of excessive force.75 These are also known as qualified defences to murder. [page 268]

Involuntary manslaughter 12.56 As already noted, involuntary manslaughter arises where an essential element of murder is missing, most commonly intention to cause a specific result on the part of the accused. This form of manslaughter is particularly associated with breaches of the duty provisions of the Codes where that breach is accompanied with criminal negligence. There are two main forms of duty provisions in the Codes:76 first, those that cast a duty on specified classes of persons to provide certain minimum standards, described as the necessaries of life, to a person in their charge;77 and second, those provisions that require persons doing dangerous acts or who are in charge of dangerous things to use reasonable care.78 The standard of care imposed in respect of criminal negligence is higher than that by which civil liability for negligence is determined: see 8.42. Reference was earlier made to Hodgetts and Jackson [1990] 1 Qd R 456, where the distinction was drawn between cases to which general principles of causation will apply and those in which criminal negligence will be relevant: see 8.46.

Criminal negligence: failure to provide necessaries 12.57 In Young [1969] Qd R 417, a mother was found guilty of manslaughter due to her failure to provide necessaries to her 4month-old child, thereby causing its death.79 The difference between this case and Macdonald and Macdonald [1904] St R Qd 151, which

involved a conviction of parents for murder of their child on the basis of omitting to provide necessaries to that child, was that, in the latter case, the jury was able to infer an intention to kill from the nature of the omission: see 8.41. This is unusual, as most cases concern situations where the accused has been proven to be criminally negligent. For example, in a recent Western Australian case, the accused’s conviction for manslaughter was confirmed under this section in circumstances where he had failed to seek any help for the victim, who he had supplied heroin to. The court found that there was no requirement that the appellant needed to ‘appreciate’ that the deceased was exhibiting signs of acute heroin toxicity; his failure to recognise that she was in need of urgent medical attention was sufficient to constitute the gross negligence.80

Criminal negligence: failure of person undertaking medical or surgical treatment 12.58 The term ‘undertaking surgical or medical treatment’ in Code (Qld) s 288 includes not only the conduct of the surgery or medical treatment itself but also the anterior decision of whether or not to conduct such a procedure.81 [page 269]

Criminal negligence: failure of person dealing with dangerous things 12.59 In Dabelstein [1966] Qd R 411, a pencil was found to be a dangerous thing, and the conviction of the appellant for manslaughter was confirmed after he had inserted a pencil into the vagina of the victim resulting in a fatal haemorrhage.82

Accident and inherent weakness 12.60

Another means of establishing involuntary manslaughter is

illustrated by cases involving the delivering of a blow that causes death. In general terms, a person who causes death in that way may escape criminal responsibility through the operation of the excuse of accident in the Code (Qld) s 23(1)(b) and (WA) s 23B. This will be so if the death was unintended, unforeseen and unforeseeable: see 8.62–8.72. However, an exception to the application of the accident excuse has been long recognised where the victim, following the application of force by the accused, dies because of some inherent physical weakness or defect. In Martyr [1962] Qd R 398, the accused struck the victim during a struggle. Although the punches would not have killed a normal person, the victim died because of a constitutional defect in the blood vessels at the base of his brain. Martyr was found guilty of manslaughter and it was determined that the second limb of s 23 relating to accident had no application to inherent weakness cases. 12.61 Subsequently, the Queensland Court of Appeal in Van Den Bemd [1995] 1 Qd R 401 declined to follow Martyr [1962] Qd R 398, thereby enabling the excuse of accident to relieve an accused from criminal responsibility in such cases. Special leave to appeal to the High Court was refused, with the majority determining that the Court of Appeal decision reflected accepted ideas of criminal responsibility under the Queensland Code.83 By amendment to the Code, the law in Queensland has been restored to the pre-Van Den Bemd position.84 In Western Australia there is no indication that the courts have followed the Van Den Bemd decision, and amendments to the Code (WA) in 2008 appear to confirm that accident is unavailable to the accused where death is directly caused by the accused’s act and where death would not have occurred but for an abnormality, defect or weakness in the victim. Accident is also unavailable as a defence to the new Western Australian offence of unlawful assault causing death as well as to the new Queenland offence of unlawful striking causing death: see 12.100. 12.62 In Martyr [1962] Qd R 398, the accused intended to hit the victim and, presumably, to do him bodily harm. Of course, if he had intended to kill or do grievous bodily harm he would have been guilty

of murder in terms of the Code (Qld) s 302(1)(a) and (WA) ss 277, 278(1).85 [page 270]

Voluntary manslaughter 12.63 The second form of manslaughter mentioned above, that referred to as voluntary manslaughter at common law, arises where the elements of murder are satisfied, but where the accused relies on, in Queensland, provocation under the Code (Qld) s 304 or diminished responsibility under the Code s 304A to reduce the offence committed to manslaughter. It also arises in Western Australia where the accused successfully relies on excessive self-defence under the Code (WA) s 248(3).

Provocation Role of provocation 12.64 The defence of provocation acknowledges ‘that there does occur a snapping point when an ordinary person may do something that he would not dream of doing under normal circumstances’: Miller [2009] 2 Qd R 86 at [26]. At common law, provocation had only one function. It operated as a mitigating factor to reduce a killing that would otherwise be murder to manslaughter. It did not negative criminal responsibility altogether and applied only to the crime of murder. Under the Codes, however, provocation has two functions. The first is, in Queensland, the same as for the common law and is set out in the Code (Qld) s 304.86 Provocation is no longer a defence to murder in Western Australia. 12.65 In Queensland, if successfully raised, the excuse of provocation serves to reduce murder or wilful murder to

manslaughter. The Code (Qld) s 304(7) provides that the onus of proof is on the defendant.

Provocation and assault 12.66 The second form of provocation under the Codes is that outlined in the Code (Qld) s 269 and (WA) s 246 and, with respect to certain offences that have assault as a defined element, it will negative responsibility completely. This second form of provocation, therefore, will provide a complete excuse on a charge, say, of assault or assault occasioning bodily harm. Further reference will be made to the second form of provocation when dealing with assault: see 13.70.

Provocation and murder in Queensland: definition 12.67 In relation to murder, the relevant provision in respect of provocation is the Code (Qld) s 304, which establishes the circumstances in which the accused may rely upon provocation but does not provide a definition of the term ‘provocation’. The section reads: When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter only.

Historically, there has been much deliberation as to the source of the definition for ‘provocation’ as it applies in the murder context. [page 271] 12.68 The Codes provide a definition of ‘provocation’ in (Qld) s 268 and (WA) s 245. In Queensland, it has been determined that this definition in the Code s 268 is relevant only to the second form of provocation, noted above, in respect of assault.87 This limited operation of the definition was based upon the opening words of the Code (Qld) s 268; that is, the term ‘provocation’ ‘used with reference

to an offence of which assault is an element’. Because of these words, it was determined that the provision only relates to those offences where the term ‘assault’ is used in the description of the offence in question and is, therefore, an element that the prosecution has to establish. Such proof is not required in respect of murder even though some form of assault may have been involved as an incident in the commission of the offence. In Queensland, in the absence of a statutory definition of provocation for murder, reliance is placed upon the principles pertaining to provocation as they develop at common law.88 12.69 Accordingly, a killing that would otherwise be murder is reduced to manslaughter where the circumstances in the Code (Qld) s 304 are met in accordance with the definition of provocation at common law in Queensland. The evolution of common law principles relating to provocation in recent years has removed many of the differences that once existed between the common law and statutory models.89

Elements of provocation Killing that amounts to murder 12.70 The first element of provocation to be satisfied is that there must be a killing that amounts to murder. This is clear from the wording in the Code (Qld) s 304. Murder may be established in situations other than where the accused had an intent to kill: see 12.48. Provocation is effective in all of those situations and where the accused intends to kill, provided such intent arose in response to the provocation and was not premeditated.90

Loss of self-control 12.71 There is no definition at common law of the type of conduct that may constitute the provocative incident. In effect, any conduct of sufficient gravity to deprive the accused of the power of self-control and that satisfies the objective test outlined below will be sufficient.

Wrongful act or insult 12.72 The common law was slow to accept the notion that words alone could constitute provocation for the killing of another. In Holmes [1946] AC 588 at 598–600, [page 272] the House of Lords considered that words alone would amount to provocation only if they were of a ‘violently provocative character’ or arose ‘in circumstances of a most extreme and exceptional character’. This view was adopted in Queensland in the case of Buttigieg (1993) 69 A Crim R 21. 12.73 Buttigieg’s case has been enshrined in Queensland law by an amendement to s 304 which, in 2011, inserted a new subs (2). That subsection provides that the defence of provocation cannot be based on words alone, except in circumstances of the most extreme and exceptional character. 12.74 Furthermore, under s 304(3), a person cannot, except in the most extreme or exceptional circumstances, rely on the defence of provocation if the defendant has killed a person with whom he or she is in a domestic relationship, and the killing is in response to anything done by the deceased or anything the defendant believes the deceased has done to end or change the relationship, or to indicate in any way that the relationship may, should or will end or change. This is so even where the relationship has already ended: s 304(5). 12.75 In determining what is a circumstance of the most extreme and exceptional character, regard may be had to any history of violence between the parties: s 304(6).

Lawful act is not provocation 12.76 The definition in the Code (Qld) s 268 also provides that a ‘lawful’ act is not provocation for an assault. The common law, and

therefore the law of provocation as it applies to murder in Queensland, is not dependent upon concepts of lawfulness or wrongfulness.91 In Roche [1988] WAR 278, the Court of Criminal Appeal in Western Australia determined that the term ‘lawful’ should be narrowly construed to extend only to conduct that the Code expressly declares to be lawful; for example, the use of defensive force in a range of situations: see 13.77. On the other hand, ‘wrongful’ was given a broad interpretation and extended to the accused finding his wife in bed with the man whom he then killed. Such conduct of the victim, although not unlawful in the general sense in which that word may be used, could not be considered lawful in the narrow sense adopted in Roche.92 12.77 Killing for preservation in an abusive domestic relationship is now covered by s 304B of the Code (Qld). Provided the circumstances outlined in that section are met, a person who kills to preserve himself or herself is guilty of manslaughter only.

Provocation cannot be induced by the accused 12.78 The requirement of a nexus between the act of provocation and the response of the accused is provided for in the Code (Qld) s 304, in that the accused must be deprived of the power of self-control by the provocation, and the act done in the heat of passion by the accused must be caused by the provocation, respectively. The Code (WA) s 245 specifically precludes a reliance upon provocation when [page 273] the provocative act was induced by the accused. The same result will apply in Queensland as the common law requirement is that the accused acted ‘because of’ the provocation.93

Subjective test: acting in the heat of passion 12.79

Under the Code (Qld) s 304, the act of the accused must have

been done in the heat of passion and before there was time for the passion to cool. This requirement introduces a subjective component into the analysis. In determining whether there has been loss of control, all the surrounding circumstances may be taken into account, including the personal characteristics and attributes of the accused and any relevant history of past conduct between the parties whereby a particular incident of provocation shortly before the killing may have greater significance because of past events.94 12.80 Typically, the evidence will reveal feelings of anger on the part of the accused, although it has been held that fear, more usually associated with self-defence, may be a contributing cause to the loss of self-control.95 The presence of an emotion such as anger, fear or, indeed, hatred, resentment or revenge will not preclude a reliance on provocation, provided the intention to kill or do grievous bodily harm was formed as a result of the loss of self-control in response to provocation rather than as a direct response to such an emotion.96

Suddenness of provocation 12.81 The Code (Qld) s 304 requires that the accused’s heat of passion be caused by sudden provocation. This is a reference to the suddenness of the provocation rather than to the suddenness of the accused’s response to the provocative act. It suggests a requirement that the provocative act must be sudden (in the sense of being unexpected by the accused), rather than a requirement that the accused reply suddenly to the provocative act. On the other hand, the form of words used in the Code (Qld) s 269 and (WA) s 246 for provocation for assault reflects the second of those approaches, in that the accused must act upon the provocation on the sudden. In so far as provocation for murder is concerned, the courts have not insisted upon an immediacy of response and this has had particular relevance in the context of cases involving reliance on the battered spouse syndrome, where the killing may occur some time after the act or last act of alleged provocation. However, the longer the

interval involved, the more likely the response is due to some emotion of the accused rather than to provocation.97 In Osland (1998) 197 [page 274] CLR 316; 159 ALR 170, the High Court held that evidence of the battered spouse syndrome is admissible, not for the purpose of establishing a separate defence, but to assist the jury in its determination of whether there was loss of self-control such as to amount to provocation in the particular circumstances of the accused.98

Objective test: provocation of the ordinary person 12.82 The excuse of provocation has been referred to as a concession to human frailty, in that it recognises circumstances when a person may lose self-control.99 However, limits to this concession are imposed through the application of an objective test — the incident of provocation must be one that is of a nature likely to deprive an ordinary person of the power of self-control and to induce the ordinary person to do the act that causes death. The High Court has held that the question for the jury is whether the provocative act was capable of provoking the ordinary person or whether it could have provoked the ordinary person to lose self-control and do what the accused did.100 12.83 In this context, the ordinary person is not the reasonable person familiar to the law of torts, or the average person in the community.101 Neither can the jury be instructed to put itself in the position of the accused and utilise its own standards of conduct as that which need to be satisfied.102 It is a hypothetical ordinary person which sets the minimum standard of conduct and, at common law, the ordinary person does not share any of the idiosyncrasies or characteristics of the accused, with the exception of age. Thus, the ordinary person is not notionally invested with attributes that are

personal to the accused, such as his or her sex, ethnicity, race, colour or physical disability.103 12.84 In Masciantonio (1995) 183 CLR 58; 129 ALR 575, a majority of the High Court affirmed the correctness of this approach. However, it is interesting to note the dissenting opinion of McHugh J at CLR 73: The ordinary person standard would not become meaningless, however, if it incorporated the general characteristics of an ordinary person of the same age, race, culture and background of the accused on the self-control issue. Without incorporating those characteristics, the law of provocation is likely to result in discrimination and injustice. In a multicultural society such as Australia, the notion of an ordinary person is pure fiction. Worse still, its invocation in cases heard by juries of predominantly Anglo-Saxon-Celtic origin almost certainly results in the accused being judged by the standard of self-control attributed to a middle class Australian of Anglo-Saxon-Celtic heritage, that being the stereotype of the ordinary person with which the jurors are most familiar. I have concluded that, unless the

[page 275] ethnic or cultural background of the accused is attributed to the ordinary person, the objective test of self-control results in an inequality before the law.

Although it does not reflect the present state of the law in Australia, that sentiment has been given expression in Mungatopi (1991) 2 NTLR 1, where the Northern Territory Court of Criminal Appeal reflected the attributes of the accused in its description of the ordinary person as an ‘ordinary 29 year old Aboriginal from Bathurst or Melville Islands’.104 12.85 While, for the application of the objective test, the minimum standard of conduct required of the community is that of the ordinary person who bears only the characteristic of the age of the accused, the High Court has determined that any other attribute or characteristic of the accused may be taken into account for the purpose of determining the gravity of the provocation offered to the accused.105 In Masciantonio (1995) 183 CLR 58; 129 ALR 575, the majority stated at CLR 67: 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 the 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 act in a manner which would encompass the accused’s actions.

Thus, personal characteristics of the accused can be considered for the purpose of determining the level of seriousness or the gravity of the provocation,106 from merely trivial to highly provocative. It is then a matter to determine whether the ordinary person, although not sharing those characteristics apart from the age of the accused, would lose self-control and react in the manner of the accused because of a provocative act of that level of seriousness.107 12.86 In Mancini [1942] AC 1 at 9, it was stated that, in applying the ordinary person test, it is of importance to take into account: … the instrument with which the homicide was effected, for to retort, in the heat of passion induced by provocation, by a simple blow, is a very different thing from making use of a deadly instrument like a concealed dagger. In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter.

This is a reference to the need for proportionality of response by the accused. Thus, in Rose [1967] Qd R 186, the accused’s firing of a rifle into the victim’s chest [page 276] at point-blank range was held to be disproportionate to the victim’s attack with a bottle. The decision of the High Court in Johnson (1976) 136 CLR 619; 11 ALR 23 at 38 clearly shows, however, that, although proportionality of response may be an important consideration in deciding the issue of provocation, it is not a separate and independent requirement. Rather, the degree of retaliation is but one of the matters that the jury may take into calculation when determining whether there was actual loss of the power of self-control by the accused108 and

also in applying the test of the effect of the provocation on the ordinary person.109

Proportionality of response 12.87 The Code (Qld) s 268 and (WA) s 245, which relate to provocation for an assault, specifically require proportionality of response. This is not the case with the Code (Qld) s 304, but the requirement is imported in the same way as at common law.110

Where someone other than the provocateur is killed 12.88 To a limited extent, the common law has recognised that the provocation need not emanate from the victim. Thus, the victim may have been killed by accident or in the accused’s mistaken belief that the victim offered the provocation.111 In situations where the victim was not responsible for the provocation, the provocative act must have occurred in the presence of the victim and be offered by a person so closely associated with the victim that it is reasonable for the jury to attribute the conduct of that person to the victim.112 In Pangilinan [2001] 1 Qd R 56, the Court of Appeal confirmed that the definition of provocation for the purposes of the Code (Qld) s 304 was found in the common law and that the excuse was applicable when a person other than the provocateur was killed by mistake because he or she was standing next to the intended victim. The court also noted that, in that situation, it would be unnecessary for the defence to resort to the complicated alternative of relying upon s 24 of the Code, based on an inference that the victim was stabbed because the appellant mistakenly but reasonably believed him to be part of the provocative group that was attacking him. The court said at 65: In our view the evidence was sufficient to raise the reasonable possibility of a loss of self control due to a mixture of fear and anger based on threats, physical gestures and conduct by a group of persons of whom the victim might reasonably be thought to have been a member. On the evidence that was given in this trial, the issue of provocation was raised with respect to all charges. It is true that no application was made by the defence for this issue to be considered by the jury, but where it is properly raised the Court has a duty to direct on the issue.

[page 277]

Where the victim provokes someone other than the accused 12.89 Under the Code (WA) s 245, reliance may be placed on provocation for murder in circumstances where the victim offered the provocation to a person other than the accused. Under that provision, the class of persons to whom the wrongful act or insult can be offered is restricted to persons who are under the immediate care of the accused, or who stand in a conjugal, parental, filial, fraternal or master–servant relationship with the accused. The position is less clear at common law, and, therefore, in Queensland also, but the view has been expressed that provocation can be relied upon in that situation so long as the provocative incident directly involves the accused and the deceased, even though the actual element of provocation may not be directly offered to the accused.113

Diminished responsibility — Code (Qld) s 304A 12.90 In Queensland, the Code s 304A makes provision for the defence of diminished responsibility, which operates in a similar manner to provocation in s 304 in that it is restricted to killing that would otherwise constitute murder and, if successfully raised, it reduces murder to manslaughter. However, in so far as the onus of proof is concerned, the provision operates in the same manner as insanity: the onus of proof rests with the accused, who must establish the defence on the balance of probabilities.114 The Code (Qld) s 304A defines diminished responsibility as follows: (1) When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, is at the time of doing the act or making the omission which causes death in such a state of abnormality of mind (whether arising from a condition of arrested or retarded development of mind or inherent causes or induced by disease or injury) as substantially to impair the person’s capacity to understand what the person is doing, or the person’s capacity to control the person’s actions, or the person’s capacity to know that the person ought not to do the act or make the omission, the person is guilty of

manslaughter only. (2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section liable to be convicted of manslaughter only. (3) When two or more persons unlawfully kill another, the fact that one of such persons is by virtue of this section guilty of manslaughter only shall not affect the question whether the unlawful killing amounted to murder in the case of any other such person or persons.

Comparison with insanity 12.91 The defence of diminished responsibility differs from the defence of insanity in the Code (Qld) s 27 in the following ways: s 304A applies only to the crime of murder, whereas s 27 is applicable to all offences; [page 278] the relevant state of mind is described in different terms. Thus, while s 27 requires a state of mental disease or natural mental infirmity, s 304A(1) requires a state of abnormality of mind that is due to one of the five means listed in the provision; while s 27 requires proof that the accused does not have one of the nominated categories of capacity, that is, to understand what he or she is doing, to control his or her actions, or to know that he or she ought not do the act, it is sufficient under s 304A(1) if one of those capacities is substantially impaired;115 and while acquittal on the grounds of insanity requires a special verdict of the jury under the Code s 647, there is no such requirement for diminished responsibility. However, on an indictment for murder, the evidence may be such that the trial judge may leave diminished responsibility and provocation for the jury to consider. In that situation, if a verdict of manslaughter is returned, the jury should be asked whether or not the conviction was based on diminished responsibility as such a finding may bear on the matter of sentencing: see Schubring [2005] 1 Qd R 515.

Mental Health Court 12.92 The Mental Health Court has jurisdiction to determine whether a person was suffering, at the time of the offence, from diminished responsibility, which term has the same meaning as in the Code s 304A.116 If the person is found to have been of diminished responsibility, proceedings for the offence of murder are discontinued but proceedings for another offence, such as manslaughter, may be continued.117

‘Abnormality of mind’ 12.93 A phrase equivalent to ‘state of mental abnormality’, that is, ‘abnormality of mind’, was referred to by Lord Justice Parker in Byrne [1960] 2 QB 396 at 403 in broad terms as meaning a state of mind ‘so different from that of ordinary human beings that the reasonable man would term it abnormal’. His Honour considered the expression to be wide enough to cover: … the mind’s activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgement whether an act is right or wrong, but also the ability to exercise willpower to control physical acts in accordance with that rational judgement.

Authority under the Queensland Code would suggest that a narrower approach is more appropriate. In Rolph [1962] Qd R 262 at 288, Hanger J referred to the above extract in the following terms: I do not believe that such a description would be an adequate direction to a Queensland jury. I would think it necessary to remind juries that normal people in the community vary greatly in intelligence, and disposition; in their capacity to reason; in the depth and intensity of their emotions; in their excitability; and their capacity to exercise self-restraint, etc, etc, the matters calling for mention varying

[page 279] with the facts of the particular case; and that until the particular quality said to amount to abnormality of mind, goes definitely beyond the limits marked out by the varied types of people met day by day, no abnormality exists.

This statement was adopted in Whitworth [1989] 1 Qd R 437 at 447 by Thomas J, who referred to the defence as one which is not a ‘subterfuge for the angry, the selfish or the vindictive’; rather, it is simply a form of protection for those of ‘genuinely diminished responsibility’. In each case, there will need to be evidence of an identifiable abnormal state or condition that arises from one of the five specific constitutional or external causes referred to in the provision.118 12.94 In Whitworth [1989] 1 Qd R 437, there was evidence that the accused suffered from brain damage as a result of the effects upon him of encephalitis and other physical traumas. However, there was also evidence that such brain damage in itself was not responsible for the accused’s conduct. Rather, it was argued that the accused was in a state of diminished responsibility because of the interaction of the effects of certain psycho-social factors with his condition of brain damage. The Court of Appeal held that the trial judge had wrongly withheld the defence of diminished responsibility from the jury. In that case, examples were given of circumstances that would not fall within the terms of the provision. These include: the temporary effects of intoxication as opposed to the enduring damage that intoxication may cause to the brain;119 conduct within the normal range of human propensities or emotions such as prejudice, anger, temper, jealousy or, in general, base natural emotions;120 and particular attitudes or prejudices derived from religious, political or partisan influences.121 Also, in GMB (2002) 130 A Crim R 187, Chesterman J held that a personality disorder did not constitute an abnormality of the mind for the purposes of the Code (Qld) s 304A.

Definition of ‘substantially’ 12.95 The meaning of the term ‘substantially’ in the section was referred to in Biess [1967] Qd R 470 at 475.122 In Biess, approval was

given by a majority of the Court of Criminal Appeal to a jury direction by Ashworth J in Lloyd [1967] 1 QB 175 at 176 which was in the following terms: … members of the jury, I am not going to try to find a parallel for the word ‘substantial’. You are the judges, but your own commonsense will tell you what it means. This far I will go. Substantial does not mean total, that is to say, the mental responsibility need not be totally impaired, so to speak, destroyed altogether. At the other end of the scale substantial does not mean trivial or minimal. It is something

[page 280] in between and Parliament has left it to you and other juries to say on the evidence, was the mental responsibility impaired, and if so, was it substantially impaired?

Onus of proof 12.96 Whether the accused has discharged the onus of proof in respect of diminished responsibility is a question for the jury and the appropriate standard is the balance of probabilities. As the Privy Council stated in Walton [1978] AC 788, what the jury is seeking to ascertain is whether, at the time of the killing, the accused was suffering from a state of mind bordering on, but not amounting to, insanity. Proof of the defence will require the establishment of one of the causes nominated in the provision and this will generally be done through expert evidence. Unchallenged medical evidence as to the accused’s abnormality of the mind should normally be accepted by the jury.123 However, the jury must consider the medical evidence in conjunction with all the surrounding circumstances of the case, including the nature of the killing and the conduct of the accused. It is to approach the matter in a ‘broad common sense way’.124

Excessive self-defence — Code (WA) s 248(3) 12.97 In Western Australia, the Code provides a partial defence to murder in the form of excessive self-defence; that is, where the accused kills another person in circumstances that would satisfy the

defence of self-defence (in s 248(4)) but for the fact that the response is not a reasonable one in the circumstances as the accused believes them to be. It therefore requires that the accused hold the belief that his or her harmful act is necessary to defend himself or herself, or another, from another harmful act. The elements of self-defence will be dealt with in more detail in Chapter 13. Clearly, a finding of excessive selfdefence as a defence to murder requires that the accused adduce evidence of all of the elements of self-defence, and that the prosecution fail to disprove these elements beyond a reasonable doubt, with the exception of the reasonable response requirement.

Unlawful assault causing death — Code (WA) s 281 12.98 In 2008, as part of a package of extensive amendments to the Western Australian Criminal Code, a new homicide offence of unlawful assault causing death was introduced. This was a response to a series of failed manslaughter prosecutions brought for ‘one punch’ killings, where the accused persons had successfully raised the defence of accident as a defence to manslaughter: see 12.45–12.47. The new offence expressly prevents the defence of accident being relied upon by the accused. It requires proof of an assault, and of a causal link to that and the death of the victim. Given that an assault can be a threat of force, as well as the actual application of force, presumably it can apply outside of the ‘one punch’ scenario. The offence provides [page 281] a ‘third tier’ homicide offence,125 but has been subjected to academic criticism as an example of excessive constructive liability. Recent research has indicated that the offence has been applied in circumstances quite different to the ‘one punch’ killing scenario; up to

one-third of the convictions for this offence have related to domestic violence killings.

Unlawful striking causing death — Code (Qld) s 314A 12.99 A person who unlawfully strikes another person to the head or neck causing, directly or indirectly, the death of the other person is guilty of a crime. Where an individual is sentenced to a term of imprisonment, the court must also impose a mandatory minimum non-parole period of 80 per cent or 15 years imprisonment, whichever is the lesser. Since the Code (Qld) s 314A does not use the term ‘assault’, the defence of provocation is not available. Strike means directly applying force to a person by punching, kicking, or otherwise hitting using any part of the body, with or without the use of a dangerous or offensive weapon or instrument. Section 23(1)(b) and the defence under s 270 of the Code (Qld) are expressly excluded from consideration. A person will not be criminally responsible for a striking offence if the act of striking the other person was done as part of a socially accepted function or activity and was reasonable in the circumstances. _________________________________ 1. 2.

Code (Qld) ss 291–300; (WA) ss 268–277. Code (Qld) ss 302, 305; (WA) s 279(1).

3. 4.

Code (Qld) ss 303, 310; (WA) ss 280, 287. Code (WA) s 281.

5. 6.

Code (Qld) s 306; (WA) s 283. Code (Qld) s 311; (WA) s 288. Neither suicide nor attempted suicide constitutes an offence.

7. 8.

Code (Qld) s 313; (WA) s 290. Code (Qld) s 314; (WA) s 291.

9. Code (Qld) s 304. 10. Code (Qld) s 304A. Code (Qld) Ch 28 also includes s 307 — accessory after fact to

murder; s 308 — threats to murder in a document; s 309 — conspiring to murder. 11. Code (Qld) s 291; (WA) s 268. 12. Code (Qld) ss 300, 302, 303. 13. Code (WA) s 281. 14. See also 7.7. 15. Code (Qld) s 284; (WA) s 261. 16. See the Transplantation and Anatomy Act 1979 (Qld) s 45(1) which, in the alternative, also refers to ‘irreversible cessation of circulation of blood in the body of the person’. 17. See Kinash [1982] Qd R 648 at 649; Malcherek [1981] 1 WLR 690 at 694; see comment on Barber and Nejdl v State of California (1983, unreported) No A 025586 in (1984) 58 ALJ 291. 18. See Airedale NHS Trust v Bland [1993] 1 All ER 821 at 862, 865, 877, 880–4, 890; Re Gardner (1987) 534 A2d 947; Auckland Area Health Board v Attorney-General [1993] 1 NZLR 235. 19. See Code (Qld) s 282; (WA) ss 259, 259A; Bourne [1939] 1 KB 687; Bayliss and Cullen (1986) 9 Qld Lawyer Reps 8. 20. The Code (Qld) s 286 casts a duty on persons who have care of a child. In Western Australia, the equivalent but not identical provision is the Code (WA) s 262. See 8.40. 21. Compare the approach taken by the English Court of Appeal in Re A [2001] Fam 147. 22. Code (Qld) s 282A(5). 23. Code (Qld) s 282A(5). 24. See also Weissensteiner (1993) 178 CLR 217; 117 ALR 545. 25. See also Hutty [1953] VLR 338; ALR 689; F (1996) 40 NSWLR 245; 24 MVR 436; AttorneyGeneral’s Reference (No 3 of 1994) [1996] 2 FLR 1; Iby (2005) 63 NSWLR 278; 45 MVR 1. 26. See Attorney-General’s Reference (No 3 of 1994) [1998] 1 Cr App R 91, where, in a similar situation, the House of Lords held that manslaughter, but not murder, was open. 27. Code (Qld) s 313(1); (WA) s 290. 28. See Martin (No 2) (1996) 86 A Crim R 133 at 138. 29. See Waigana (2012) 225 A Crim R 20. 30. Law Reform Commission of Western Australia, Review of the Law of Homicide, No 97, p 25. 31. Code (Qld) s 314; (WA) s 291. 32. See Vera Humphries [1943] St R Qd 156 at 170. 33. Code (Qld) ss 285–290; (WA) ss 262–267; see also 8.39. 34. See Royall (1991) 172 CLR 378 at 385, 412, 441; 100 ALR 669. 35. See Arulthilakan (2003) 203 ALR 259; 78 ALJR 257 at 264–5; Krakouer v State of Western Australia (2006) 161 A Crim R 347 at 365. 36. See also McKinnon [1980] 2 NZLR 31. 37. Royall (1991) 172 CLR 378 at 449; 100 ALR 669. 38. Royall (1991) 172 CLR 378; 100 ALR 669 per McHugh J at CLR 399; Brennan J at CLR 449; the majority at CLR 390, 412, 425; see also McAuliffe (1995) 183 CLR 108 at 119; 130 ALR 26; Hind and Harwood (1995) 80 A Crim R 105 at 110–12; EMJ (2001) 27 SR (WA) 265 at 270; Lowrie and Ross [2000] 2 Qd R 529 at 534; Stanik (2001) 125 A Crim R 372 at 373–80, 388; Carter (2003) 141 A Crim R 142 at 144; Arulthilakan (2003) 203 ALR 259; 78 ALJR 257 at

265; and Krakouer (2006) 161 A Crim R 347 at 357–9, 367. 39. See Jemielita (1995) 81 A Crim R 409; 8.63. 40. See Royall (1991) 172 CLR 378 at 389–90; 100 ALR 669; McAuliffe (1995) 183 CLR 108 at 119; 130 ALR 26. 41. See Yambiwato and Apibo [1967] PNGLR 222; Dyson [1908] 2 KB 454; Burdee (1916) 12 Cr App R 153; Martyr [1962] Qd R 398 at 415; Carter (2003) 141 A Crim R 142 at 148; Krakouer v State of Western Australia (2006) 161 A Crim R 347 at 357–60. 42. Code (Qld) s 282A(4) sets out situations in which the administration of palliative care will be lawful. 43. See Blaue [1975] 1 WLR 1411; Bingapore (1975) 11 SASR 469. 44. Kinash [1982] Qd R 648; Malcherek [1981] 1 WLR 690. 45. See Smith [1959] 2 QB 35. 46. See Jordan (1956) 40 Cr App R 152. 47. See Smith [1959] 2 QB 35; Blaue [1975] 3 All ER 446; Evans & Gardiner (No 2) [1976] VR 523. 48. Act No 48 of 1992 (Qld); Act No 37 of 1991 (WA). 49. Code (Qld) ss 285–290; (WA) ss 262–267. 50. Clark (2007) 171 A Crim R 532. 51. Dabelstein [1966] Qd R 411. 52. BBD [2007] 1 Qd R 478. 53. Macdonald [1904] St R Qd 151. 54. Code (Qld) s 291; (WA) s 268. 55. See Mamote-Kulang (1964) 111 CLR 62 at 78; [1964] ALR 1046. 56. See s 23 and, for the list of these provisions, 13.61. In Queensland v Nolan [2002] 1 Qd R 454, a surgical operation to separate conjoined craniopagus twins was held not to be unlawful because of the Code (Qld) s 282; (WA) s 259: see 12.10. 57. Code (Qld) ss 31, 255–8; (WA) ss 31, 235. 58. Code (Qld) ss 271, 267; (WA) ss 248, 244; see 13.62. 59. See Code (Qld) s 302; (WA) s 279 for definition; and Code (Qld) s 305; (WA) s 282 for punishment. 60. See Code (Qld) s 303; (WA) s 280 for definition; and Code (Qld) s 310; (WA) s 287 for punishment. 61. Code (WA) s 281. 62. See Willmot (No 2) [1985] 2 Qd R 413; Zaburoni [2016] HCA 12. 63. Code (Qld) s 302(1)(a). 64. See Code (Qld) s 302(2); WA s 279(2). 65. For ‘intention’, see 8.31–8.35. 66. See also Church [1966] 1 QB 59; Attorney-General’s Reference (No 4 of 1980) [1981] 1 WLR 705. 67. See McKinnon [1980] 2 NZLR 31 at 35–7; Le Brun [1991] 4 All ER 673 at 678–9. 68. Code (Qld) s 302(1)(b); (WA) s 279(1)(c).

69. The felony murder rule was abolished in England by the Homicide Act 1957 s 1(2); see Seiffert (1999) 104 A Crim R 238 at 242–6. 70. See Gould and Barnes [1960] Qd R 283 at 298; Stuart (1974) 134 CLR 426 at 438; 4 ALR 545; Macartney (2006) 31 WAR 416 at 430, 458. 71. Code (Qld) and (WA) s 8; see 9.20. 72. See also Fitzgerald P at 113; Boughey (1986) 161 CLR 10 at 14, 21–2; 65 ALR 609; Macartney (2006) 31 WAR 416 at 433, 439, 458; Crossman [2011] 2 Qd R 435; Hung [2013] 2 Qd R 64. 73. The conviction of Harwood was based on the now discredited view that an accessory and the perpetrator could only be convicted of the same offence: see 9.20–9.23. 74. See also Jacobs J at 454–5; Seiffert (1999) 104 A Crim R 238 at 242–7. A person who unlawfully kills another under such circumstances as not to constitute murder is guilty of manslaughter, or, alternatively in Western Australia unlawful assault causing death. The offence of manslaughter may arise because some essential element of murder is lacking. At common law, this is referred to as involuntary manslaughter. This was a form of manslaughter that, along with murder, was left to the jury in Cronau (1980) 3 A Crim R 460. In directing the jury in that case, however, the judge dealt first with manslaughter and then with murder. On appeal, Lucas ACJ (at 464) said that, as manslaughter would only arise for consideration if the jury was not satisfied of murder, it would be more appropriate for the jury to consider murder first. Manslaughter may arise in another form. This is where all the essential elements of murder are present, but where the accused is able to rely on an excuse that reduces the crime to manslaughter. Examples are the defence of provocation under the Code (Qld) s 304 and the defence of excessive selfdefence under the Code (WA) s 248(3). 75. Code (Qld) ss 304, 304A; (WA) s 248(3). 76. See Code (Qld) ss 285–290; (WA) ss 262–267. See also Callaghan (1952) 87 CLR 115; [1952] ALR 941; Scarth [1945] St R Qd 38; Dabelstein [1966] Qd R 411; Evgeniou [1965] ALR 209; (1964) 37 ALJR 508; Cronau (1980) 3 A Crim R 460. The principles relating to criminal negligence have been outlined at 8.37–8.45; see also 12.15. 77. Code (Qld) ss 285–287; (WA) ss 262–264. 78. Code (Qld) ss 288–290; (WA) ss 265–267. 79. Code (Qld) s 285; (WA) s 262. 80. Heaton (2013) 234 A Crim R 409. 81. Patel (2012) 247 CLR 531; 290 ALR 189. 82. See also Pacino (1998) 105 A Crim R 309. 83. See Van Den Bemd (1994) 179 CLR 137 at 139; 119 ALR 385. 84. See Code (Qld) s 23(1A); 8.70. 85. See also Mamote-Kulang (1964) 111 CLR 62; [1964] ALR 1046; Timbu Kolian (1968) 119 CLR 47; [1969] ALR 143. 86. Western Australia abolished this form of provocation in the 2008 amendments to its Code. 87. See Johnson [1964] Qd R 1; Kaporonovski (1973) 133 CLR 209; 1 ALR 296. 88. See Johnson [1964] Qd R 1 at 4–6; Herlihy [1956] St R Qd 18; Kaporonovski (1973) 133 CLR 209; 1 ALR 296; Callope [1965] Qd R 456 at 465; Pangilinan [2001] 1 Qd R 56 at 64; Vidler

(2000) 110 A Crim R 77 at 84. 89. For a discussion of these changes, see J M Herlihy and R G Kenny, An Introduction to Criminal Law in Queensland and Western Australia, 3rd ed, Butterworths, 1990, paras 12.18– 12.29; see Hart (2003) 27 WAR 441 at 450. 90. See Lee Chun Chuen [1963] 1 All ER 73 at 76–7; Parker (1964) 111 CLR 665 (PC); [1964] ALR 1153. 91. See R (1981) 28 SASR 321. 92. See also Williams (1995) 15 WAR 559. 93. See Peisley (1990) 54 A Crim R 42 at 49; Edwards [1973] 1 All ER 152 at 158; Johnson [1989] 2 All ER 839; the advice of the Privy Council in Parker (1964) 111 CLR 665 at 681; [1964] ALR 1153. 94. See Buttigieg (1993) 69 A Crim R 21 at 28; Chhay (1994) 72 A Crim R 1 at 8; Parker (1963) 111 CLR 610 at 628, 662; [1963] ALR 524; Roche [1988] WAR 278; Hutton [1986] Tas R 24 at 30; Mehemet Ali (1957) 59 WALR 28; and Attorney-General’s Reference (No 1 of 1992) (1993) 1 Tas R 349. 95. See Van Den Hoek (1986) 161 CLR 158 at 167; 69 ALR 1; Hunter [1988] 1 Qd R 663; Masciantonio (1995) 183 CLR 58 at 68; 129 ALR 575; Pangilinan [2001] 1 Qd R 56 at 64. 96. See Chhay (1994) 72 A Crim R 1 at 9. 97. See Chhay (1994) 72 A Crim R 1 at 10; Ahluwalia [1992] 4 All ER 889; Parker (1963) 111 CLR 610; [1963] ALR 524; Hart (2003) 27 WAR 441 at 459, 473. 98. Osland (1998) 197 CLR 316; 159 ALR 170 at 185, 217–18, 243. Evidence of the syndrome may also be relevant to self-defence: see 13.95. 99. See Chhay (1994) 72 A Crim R 1 at 11; McGhee (1995) 183 CLR 82 at 90, 103; 130 ALR 142; Holmes [1946] AC 588 at 601. 100. See Stingel (1990) 171 CLR 312 at 325; 97 ALR 1; Masciantonio (1995) 183 CLR 58 at 69; 129 ALR 575. 101. See Stingel (1990) 171 CLR 312 at 328, 332; 97 ALR 1; Vidler (2000) 110 A Crim R 77 at 84– 5. 102. See Stingel (1990) 171 CLR 312 at 327–8; 97 ALR 1. 103. See Camplin [1978] AC 705; Stingel (1990) 171 CLR 312; 97 ALR 1; Masciantonio (1995) 183 CLR 58; 129 ALR 575; Mogg (2000) 112 A Crim R 417 at 425, 431. 104. See also Dutton (1979) 21 SASR 356; Croft [1981] 1 NSWLR 126; Bedelph [1980] Tas R 23; Rose [1967] Qd R 186; Newell (1980) 71 Cr App R 331; Censori [1983] WAR 89; Bedder [1954] 2 All ER 801; Enright [1961] VR 663; Voukelatos [1990] VR 1; Mancini [1942] AC 1; Lesbini [1914] 3 KB 1116; Griffin (1980) 23 SASR 264; Smith (Morgan) [2001] 1 AC 146. 105. See Stingel (1990) 171 CLR 312; 97 ALR 1. 106. Called ‘the sting of the provocation’ by Brennan CJ in Green (1997) 191 CLR 334; 148 ALR 659 at 660. 107. See Buttigieg (1993) 69 A Crim R 21; Verhoeven (1998) 101 A Crim R 24 at 28, 29. 108. Johnson (1976) 136 CLR 619; 11 ALR 23 at 52. 109. Johnson (1976) 136 CLR 619; 11 ALR 23 at 35, 37, 52. See also Moffa (1977) 138 CLR 601; 13 ALR 225; Croft [1981] 1 NSWLR 126; (1981) 3 A Crim R 307 at 334.

110. See Censori [1983] WAR 89; Sreckovic [1973] WAR 85; Alekovski [1979] WAR 1; Williams (1995) 15 WAR 559; Hart (2003) 27 WAR 441 at 456, 459, 473. 111. See Porrit [1961] 3 All ER 463; Fricker (1986) 42 SASR 436; 23 A Crim R 147 at 157. 112. See Tumanako (1992) 64 A Crim R 149 at 155; Kenney [1983] 2 VR 470; Gardner (1989) 42 A Crim R 279. 113. See Quartly (1986) 11 NSWLR 332; (1986) 22 A Crim R 252 at 257; but note Duffy [1949] 1 All ER 932. 114. See s 304A(2); 8.101. 115. Rolph [1962] Qd R 262; Miers [1985] 2 Qd R 138. 116. Mental Health Act 2000 (Qld) Sch 2. 117. Mental Health Act 2000 (Qld) s 282; see 8.116–8.118. 118. In Lock [2002] 1 Qd R 512, it was held that the trial judge should assist the jury by explaining the relevance of the medical evidence. 119. See Whitworth [1989] 1 Qd R 437 at 445; Gittens [1984] QB 698; Fenton (1975) 61 Cr App R 261; Kusu [1981] Qd R 136; Miers [1985] 2 Qd R 138; Nielsen [1990] 2 Qd R 578. 120. See Whitworth [1989] 1 Qd R 437 at 446; Rolph [1962] Qd R 262; Braithwaite [1945] SLT 209. 121. See Whitworth [1989] 1 Qd R 437 at 446. 122. See also Nielsen [1990] 2 Qd R 578. 123. See Michaux [1984] 2 Qd R 159; Nielsen [1990] 2 Qd R 578; Walton [1978] AC 788; Whitworth [1989] 1 Qd R 437; Sanders (1991) 93 Cr App R 245. 124. See Chester [1982] Qd R 252; Morgan; Ex parte Attorney-General [1987] 2 Qd R 627; Re Walton [1992] 2 Qd R 551 at 556. 125. Note the comments on its relevant severity by Martin CJ in State of Western Australia v JWRL [2010] WASCA 179.

[page 283]

Chapter Thirteen Offences Against the Person

Introduction 13.1 The Codes (Qld) and (WA) contain a variety of offences that involve actual or potential interference with the person of another. Some of these offences require proof by the prosecution of a particular physical consequence to the victim, while others focus on conduct that creates a danger of such a consequence occurring. 13.2 The first of those groups includes homicide and offences of a sexual nature: see Chapters 12 and 14 respectively. Also included are: forms of assault where bodily harm results;1 the doing of grievous bodily harm;2 torture;3 wounding;4 dangerous driving causing death or grievous bodily harm;5 dangerous driving causing bodily harm;6 and female genital mutilation.7 13.3

The second group includes:

assault;8 stalking offences;9

[page 284] dangerous driving;10 and creating a situation of danger by disabling a person, setting a trap, depositing explosives, administering poison or failing to supply necessaries.11 13.4 This chapter refers to assault, stalking, doing grievous bodily harm, wounding and dangerous driving. In addition to these offences, this chapter will refer to certain matters of excuse, including selfdefence and provocation, on the basis that they have particular relevance for these sorts of offences.12

Assault Penalties Common assault 13.5 The Codes provide for a general offence of common assault. In Queensland, this is a misdemeanour punishable by 3 years’ imprisonment.13 In Western Australia, it is a simple offence punishable by 18 months’ imprisonment or a fine of $18,000 which increases to imprisonment for 3 years or a fine of $36,000 if it is committed in a circumstance of aggravation.14 In addition to this general offence of assault, the Codes provide for further indictable offences which have assault as an element.

More serious assaults: Queensland 13.6 In Queensland, these additional offences of which assault is an element are crimes under the Code and, along with the relevant punishment, they include: assault with intent to commit rape: 14 years’ imprisonment;15 indecent assault: 10 years’ imprisonment with heavier penalties

where circumstances of aggravation are established;16 assaults on persons protecting vessels in distress: 7 years’ imprisonment;17 assault upon members of aircraft crew: 14 years’ imprisonment;18 assault occasioning bodily harm: 7 years’ imprisonment;19 assault in interference with freedom of trade or work: 5 years’ imprisonment;20 assault with intent to steal: 3 years’ imprisonment;21 and [page 285] assault with intent to steal accompanied by violence:22 – 7 years’ imprisonment; – 14 years’ imprisonment if the accused is, or pretends to be, armed with any dangerous or offensive weapon or instrument or is in company; or – life imprisonment if the accused wounds or uses personal violence to any person by weapon, instrument or noxious substance. Also, there are forms of serious assault in the Code (Qld) s 340. These are crimes punishable by 7 years’ imprisonment and arise where the accused: (a) assaults another with intent to commit a crime, or with intent to resist or prevent the lawful arrest or detention of him/herself or of any other person; (b) assaults, resists, or wilfully obstructs, a police officer while acting in the execution of the officer’s duty, or any person acting in aid of a police officer while so acting;23 (c) unlawfully assaults, resists, or obstructs, any person engaged in the lawful execution of any process against any property, or in making a lawful distress, while so engaged; (d) assaults, resists, or obstructs, any person engaged in such lawful execution of process, or in making a lawful distress, with intent to rescue any property lawfully taken under such process of distress;

(e) assaults any person on account of any act done by him in the execution of any duty imposed on him by law; (f)

assaults any person in pursuance of any unlawful conspiracy respecting any manufacture, trade, business, or occupation, or respecting any person or persons concerned or employed in any manufacture, trade, business, or occupation, or the wages of any such person or persons; (g) assaults any person who is aged 60 years or more; or (h) assaults any person who relies on a guide dog, wheelchair or other remedial device.

An amendment to the Penalties and Sentences Act 1992 (Qld) in 2014 means that if a person commits an offence against any of the following sections: s 320; s 323; s 335; s 339; and s 340(1)(b) or (2AA), and, at the time of committing the offence the person was in a public place, and affected by an intoxicating substance, in addition to any penalty applied, the court must also apply a community service order.24 [page 286]

More serious assaults: Western Australia 13.7 In Western Australia, in addition to the simple offence of common assault under s 313, the Code provides for more serious assaults which constitute crimes. Along with the relevant punishments, these include: assault occasioning bodily harm: 5 years’ imprisonment, which increases to imprisonment for 7 years if it is committed in a circumstance of aggravation;25

assault with one of the following intents: – to commit or facilitate the commission of a crime; – to do grievous bodily harm to any person; or – to resist or prevent the lawful arrest or detention of any person:26 5 years’ imprisonment, which increases to imprisonment for 7 years if it is committed in a circumstance of aggravation; assault of aircraft crew: 14 years’ imprisonment;27 and assault with intent to rob:28 – 10 years’ imprisonment; – 14 years’ imprisonment if the accused is, or pretends to be, armed with any dangerous or offensive weapon or instrument or if there is a circumstance of aggravation; or – life imprisonment if the accused is or pretends to be armed with any dangerous or offensive weapon or instrument and there is a circumstance of aggravation.29 13.8 Also, there are forms of serious assault in the Code (WA) s 318. These are crimes punishable by 10 years’ imprisonment where immediately before or immediately after the offence the offender is either armed with any dangerous or offensive weapon or instrument; or is in company with another person(s). In any other case it is punishable by 7 years’ imprisonment. Serious assault refers to situations where the accused: (d) assaults a public officer30 who is performing a function of his office or employment or on account of his performance of such a function; (e) assaults any person who is performing a function of a public nature conferred on him by law or on account of his performance of such a function;

[page 287] (f)

assaults any person who is acting in aid of a public officer or other person referred to in para (d) or (e) or on account of his having so acted; or

(g) assaults the driver or person operating or in charge of: (i) a vehicle travelling on a railway; (ii) a ferry; or (iii) a passenger vehicle as defined in para (a) of the definition of ‘passenger vehicle’ in s 5(1) Road Traffic Act 1974 (WA); or (h) assaults: (i) an ambulance officer; or (ii) a member of a FESA Unit, SES Unit or VMRS Group; or (iii) a member or officer of a private fire brigade or volunteer fire brigade, who is performing his or her duties as such; or (i)

(j)

assaults a person who — (i) is working in a hospital; or (ii) is in the course of providing a health service to the public; or assaults a contract worker who is providing court security services or custodial services; or

(k) assaults a contract worker who is performing functions under Part IIIA of the Prisons Act 1981.

As a result of amendments to the Code (WA) in 2009, some serious assaults now attract mandatory sentencing.31 Where the assault is done in ‘prescribed circumstances’, then a mandatory nonsuspendable custodial sentence will be imposed. ‘Prescribed circumstances’ are defined to include where the victim is a public officer who is performing a function of his or her office and is a police officer, a prison officer or a security officer.32

Summary proceedings Queensland 13.9 In some circumstances, charges relating to assault may be the subject of summary proceedings. In Queensland, an assault, other than one of a sexual nature or one accompanied by an attempt to commit a crime and where the assault is punishable by not more than 5 years’ imprisonment, must be dealt with summarily at the election of the prosecution.33 Other assaults, punishable by not more than 5 years’ imprisonment, which are not of a sexual nature and where no circumstance of aggravation is involved, may be dealt with summarily

if the defendant so elects and the magistrate considers that the defendant can be adequately punished on summary conviction.34 [page 288]

Western Australia 13.10 In Western Australia, common assault constitutes a simple offence and this will be dealt with summarily.35 Forms of assault which are indictable offences and where provision is made for a summary conviction penalty will be heard and determined summarily in the Magistrates Court unless a successful application is made by the prosecution or the accused, before the accused pleads to the charge, that the charge be tried on indictment.36 A summary conviction penalty is provided for: an assault occasioning bodily harm: 2 years’ imprisonment or a fine of $24,000 which increases to imprisonment for 3 years or a fine of $36,000 if committed in a circumstance of aggravation;37 the assaults with a nominated intent: 2 years’ imprisonment or a fine of $12,000 if the intent is to do grievous bodily harm, which increases to imprisonment for 3 years or a fine of $36,000 if the intent is to commit or facilitate a crime;38 and the serious assaults: 3 years’ imprisonment or a fine of $36,000.39

Definitions 13.11 The foregoing provisions are concerned with creating the offence of assault in its various forms. For what constitutes an assault in these offences, it is necessary to refer to the definition in the Code (Qld) s 245(1) and (WA) s 222, which reads: A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent,

under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault.

13.12 The Code (Qld) s 245(2) and (WA) s 222 define the term ‘applies force’ as including: … the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.

13.13 The definition of assault encompasses two situations which comprise separate offences at common law. The first is where there is an actual application of force, called a ‘battery’ at common law. Under the Codes, the application of force may be direct — as in where one person strikes another; or indirect — where, for example, acid was poured into a hand dryer by a person, and another person was injured when he subsequently switched on the hand dryer.40 The second, common law ‘assault’, is where there is an attempted or threatened application of force. [page 289] Under the Codes, the common law distinction is not made and each constitutes an assault, provided the other elements contained in the definition are satisfied.

Assault must be unlawful 13.14 Before criminal responsibility will arise, the assault must be unlawful, which requires proof by the prosecution that it was not authorised, justified or excused by law.41 Specific provision is made in the Codes for a range of situations that do not attract criminal responsibility even though they involve some interference with the person of another. These include the carrying out of an arrest, preventing a breach of the peace, acting in self-defence and the imposition of domestic discipline. In addition to those situations, the general exculpatory provisions in

Ch 5 of the Codes are available to the accused to show that he or she is not criminally responsible for the application of force. Of particular relevance will be the Code (Qld) and (WA) s 23 where the accused’s act occurred independently of the exercise of his or her will or where the touching of the assault victim was an event that occurred by accident: see 8.32–8.72. This utilisation of s 23 provides a means of excluding from the scope of the offence of assault the type of inadvertent contact that arises between persons in the carrying out of everyday activities such as using a public thoroughfare or public transport.

Mental element Intention 13.15 At common law, the first type of assault, where actual application of force is required, may be committed where the accused intended to apply force or recklessly applied force. Thus, in Venna [1975] 3 All ER 788, the accused was convicted of assault occasioning bodily harm in circumstances where, while he was being arrested by police, he lashed out wildly with his legs and kicked the hand of one of the police officers. Although the accused’s evidence was that he was kicking out in an attempt to rise from the ground, the Court of Appeal held that the trial judge was correct in his direction that the accused would be guilty if he lashed out with his feet ‘reckless as to who was there, not caring one iota as to whether he kicked somebody’.42 13.16 The Code definition of assault does not, in terms, include intention as an element. The Code (Qld) s 23(2) and (WA) s 23 provide that, unless the intention to cause a specific result is expressly provided as an element of the offence, then no intent needs to be proven. However, in McIver (1928) 22 QJPR 173, Macrossan SPJ expressed the opinion that the first type of assault, involving actual application of force, implies intention and this has been accepted as correct in Western Australia.43 Nonetheless, assault is not an offence of specific intention and, consequently,

[page 290] regardless of the accused’s intention, a technical assault would arise whenever there is an application of force.44 Quite apart from issues of intention, the accused will not necessarily be guilty of assault for any such contact. This is because the assault must be unlawful and because of the way in which the consent requirement in the definition of assault has been construed. 13.17 The second type of assault, that which involves a threat or attempt to apply force, inherently requires proof of intention given that threats and attempts are calculated actions. A common law requirement was that there be an intention to produce a certain expectation of apprehension in the victim’s mind, and this was accepted by the Full Court of Western Australia in Hall v Fonceca [1983] WAR 309 as representing the position under Western Australian law. Reference has been made to the fact that intention is an element of an attempt to commit an offence, and a similar intention has been imported into the second form of assault under the Codes.

Conduct elements Lack of consent 13.18 Criminal responsibility for assault will be avoided where the prosecution fails to establish lack of consent on the part of the victim. The term ‘consent’ is not defined in the Codes for the purposes of assault45 but has been held to include implied or tacit consent. This concept has been relied upon to excuse a person from criminal responsibility for assault. In Kimmorley v Atherton; Ex parte Atherton [1971] Qd R 117, the two accused had each photographed the other in the act of kissing the victim. She had consented to being photographed but had not expressly consented to being kissed. They were convicted of unlawful assault. On appeal, the majority of the Court of Criminal Appeal held that there was no assault and Hoare J said at 133:

… the appellants were each asked whether the complainant had consented to their kissing her and they each answered ‘no’. A consent may be express or it may be implied or tacit. Having regard to the charge of assault the circumstances alleged being a man kissing a woman or a youth kissing a girl, it is important to bear in mind that consent (if there be consent) is far more likely to be an implied or tacit consent rather than an express consent. However, in all the circumstances it seems reasonably clear that when the appellants were asked whether the complainant had ‘consented’ to their kissing her their minds were not directed to the question of an implied or tacit consent.

The presence of implied or tacit consent will also serve to avoid criminal responsibility for inadvertent contact that occurs in the course of everyday life.46 The Tasmanian Criminal Code deals expressly with this situation in that it excludes from assault any ‘act which is reasonably necessary for the common [page 291] intercourse of life if done for the purpose of such intercourse, and which is not disproportionate to the occasion’.47 Referring to that provision, Mason, Wilson and Deane JJ in Boughey (1986) 161 CLR 10; 65 ALR 609 stated that its effect is to exclude from assault ‘commonplace, intentional but non-hostile acts such as patting another on the shoulder to attract attention or pushing between others to alight from a crowded bus’. Their Honours considered that such acts are, if committed inoffensively, regarded by the common law as ordinary incidents of social intercourse that do not, without more, constitute battery (at ALR 427).48 13.19 It should be noted that, subject to those forms of contact that occur with implied consent in the common intercourse of life, an assault will arise where there is an actual application of force, even if the victim was unaware of the assault; for example, where the victim was asleep.49 Therefore, intentional contact without consent in relation to an unconscious person may constitute the first form of assault, even if done for beneficent purposes.50 The second form of assault does not require proof of physical contact but, rather, is satisfied where there is an attempt or threat to apply force to the victim. This form of assault

has been held to require proof of anticipation of the application of force on the part of the victim,51 again in circumstances where the attempt or threat occurs without the consent of the victim.

Ability to effect purpose 13.20 For the second type of assault, which does not require contact with the victim, there must be an attempt or threat to apply force, and this must occur in circumstances where the accused has, actually or apparently, a present ability to effect his or her purpose. No difficulties arise where the accused has an actual present ability, such as when he or she is brandishing a knife or a gun that is known by the victim to be loaded. Clearly, in that situation, the accused has an actual present ability to apply force. Such would also be the case where the gun is loaded, even where the victim is unaware or uncertain of that fact. 13.21 Where the accused has a gun that is not loaded or where a replica gun is used, conviction for assault will depend upon the accused having an apparent present ability to apply force.52 The Codes do not expressly indicate whether this requirement is to be interpreted subjectively or objectively; that is, whether it must be apparent to the victim or merely apparent to a reasonable person. At common law, the victim must ‘feel, or at all events, believe, that violence is to be feared’.53 A similar approach has been adopted under the Codes. In Brady v Schatzel [1911] St R Qd 206, the appellant had been convicted of common assault. The victim was [page 292] a police officer who went to the appellant’s house to interview her son. After an exchange of words outside, the appellant entered the house, returned with a rifle and appeared to load it. She then directed it at the police officer and advised him to leave, indicating that she would shoot if he remained. Chubb J said at 208:54

Here the presenting of the rifle was accompanied by a threat to fire it, which was certainly inferential, if not positive, evidence that it was loaded. In my opinion, it is not material that the person assaulted should be put in fear, as observed by Parke B in R v St George. If that were so, it would make an assault not dependent upon the intention of the assailant, but upon the question whether the party assaulted was a courageous or a timid person. Possibly, the learned Baron, by the term ‘bodily fear’, only meant to imply apprehension or expectation, and not a physical fear, of assault. I am of opinion, therefore, that there was evidence on which the justices, disbelieving the appellant’s evidence, could reasonably find that the rifle was loaded, in which case, of course, the appellant having the actual ‘present ability’ to effect her purpose, was guilty of assault. And I think — if, in fact, the rifle was not loaded — the justices, on the evidence, could find that she pretended that it was, and so had ‘apparently’ a present ability to effect her purpose, and in that case was also guilty of assault.

This infers that the same degree of awareness in the victim’s mind is required under the Code as at common law and that, therefore, subjective criteria must be taken into consideration.55 From this subjective reference, it follows that this second type of assault will not arise unless the victim is aware of the accused’s conduct.56 13.22 However, the test is not entirely subjective. If it were, words offered by an accused that were intended as a joke and seen as such by the reasonable bystander would constitute assault even where the victim unreasonably believed that violence was to be feared. The Tasmanian Code expressly provides for this, in that the victim must believe, on reasonable grounds, that the accused has a present ability to effect his or her purpose.57 In Queensland and Western Australia, reasonableness must be imported into the words ‘apparent ability to effect the purpose’.58

Immediacy of threat 13.23 With the second form of assault, which does not require contact with the victim, the accused must have a present ability to effect his or her purpose. However, case authority indicates that immediacy between the threat and the harm threatened is not required. In Secretary (1996) 5 NTLR 96; 107 NTR 1, the accused shot and killed the victim, her abusive husband, while he was asleep. She claimed to have shot him in self-defence, as prior to him falling asleep he had verbally threatened the accused; she had interpreted this as a

threat to kill her based on his escalating violent behaviour towards her.59 The availability [page 293] of self-defence in the Code (NT) required that the accused had been assaulted. A majority of the Court of Criminal Appeal in the Northern Territory found that self-defence should have been left to the jury as the victim had, at the time the threat was uttered, the present ability, either actually or apparently, to effect the purpose when the stipulated time came, that is, when he awoke. The threat had not been withdrawn and, therefore, continued while he slept. On that basis, the threat need not be of immediate harm.60 It is also worth considering Lees v Visser (2000) 9 Tas R 103; 109 A Crim R 382 at 386–7, where Evans J in the Tasmanian Supreme Court expressed the opinion that, in some circumstances, a threat to apply force subsequently could be more intimidating and distressing than a threat to apply force immediately.

Bodily act or gesture 13.24 For the second type of assault, there must be a ‘bodily act or gesture’. These words imply that words alone would be insufficient to bring a person within the terms of the assault definition in the Code (Qld) s 245(1) and (WA) s 222. Accordingly, where threats are made by the accused by telephone, there can be no assault under the Codes, although the opposite conclusion has been reached in some common law jurisdictions.61 13.25 Where a bodily act or gesture is used in conjunction with the words, an assault may arise under the Qld and WA Codes. In Dale [1969] QWN 30, the accused entered a shop and said to the proprietor, ‘This is a stick-up’. He was convicted of assault with intent to steal under the Code (Qld) s 413. However, those words were accompanied

by a bodily act of the accused, as he had concealed a ruler under his jacket in such a way as to represent it as a gun.62 13.26 Where the words accompanying the gesture carry a threat of a conditional nature, it may still be an assault. Thus, in Rozsa v Samuels [1969] SASR 205, the accused, a taxi driver, parked his vehicle at the head of the queue of taxis, whereupon a driver of one of the other taxis approached the accused and threatened to punch him if he didn’t move his vehicle. The accused produced a knife, saying, ‘I’ll cut you to bits if you try it’. He was convicted of assault. The same result should pertain under the Code definition of assault.63 The situation would be different if the words of the accused made it clear that the threat would not be carried out.64 [page 294] 13.27 A bodily act comprising a series of closely-timed blows may be treated as a single episode of continuing assault.65

Relevance of consent of victim 13.28 At common law, there are forms of assault that arise even though the victim has consented. In Donovan [1934] 2 KB 498, the accused was convicted of common assault. Seeking sexual gratification, he had beaten a 17-year-old girl. The girl had consented, but the judge failed to direct the jury that the onus of negativing consent was on the prosecution. The English Court of Criminal Appeal held that consent was immaterial in circumstances where the blows were likely or intended to cause bodily harm. Also, in Coney (1882) 8 QBD 534, Stephen J said at 539: The principle as to consent seems to be this: when one person is indicted for inflicting personal injury upon another, the consent of the person who sustains the injury is no defence to the person who inflicts the injury, if the injury is of such a nature, or is inflicted under such circumstances, that its infliction is injurious to the public as well as to the person injured.

The correctness of the above approach at common law has been affirmed by the House of Lords in Brown [1994] 1 AC 212. This approach is not available under the Codes, because of the specific requirement, in the definition of assault, for the prosecution to establish that the application of force was without the victim’s consent. However, an assault will be committed where the degree of force used by the accused exceeded that to which the victim consented.66 This is a question of fact. As assault is an element of some other (more serious) offences, this approach also applies in those cases. It is important to note, however, that the consent of the victim is not relevant to offences such as wounding or doing grievous bodily harm, as lack of consent is not an element of these offences.

Mistake of fact 13.29 The accused may rely on a mistake of fact under the Code (Qld) and (WA) s 24 where there is a mistake as to whether the victim consented or whether the victim consented to the degree of force used.67

Assault occasioning bodily harm 13.30 The above references to the elements of assault and consent are also relevant to the Code (Qld) s 339(1) and (WA) s 317 whereby it is an offence if the accused unlawfully assaults another and thereby does bodily harm.68 The term ‘bodily harm’ is defined in the Code (Qld) and (WA) s 1 to mean a bodily injury [page 295] that interferes with health or comfort. In Scatchard (1987) 27 A Crim R 136, the Court of Criminal Appeal in Western Australia held that the infliction of pain upon a victim by means of placing the victim in a headlock, in circumstances where no quantifiable bodily injury was inflicted, did not constitute bodily harm. In support of this conclusion,

reference was made to those provisions in the Code (WA) that authorise the use by a person of ‘such force as is reasonably necessary’ in stated circumstances, such as defence of certain property, provided that bodily harm does not result.69 Thus, these provisions contemplate situations that:70 … necessarily involve the occasioning of at least discomfort by the application of force, possibly including a sensation of hurting on the part of the recipient, which the sections, to give the protection they are clearly intended to give, must be taken to contemplate and to be outside the meaning of ‘bodily harm’ as there used.

In Lergesner v Carroll [1991] 1 Qd R 206 at 212, the view was expressed that bodily harm would be satisfied by proof of a black eye or a bloodied nose.71

Serious assault 13.31 Serious assaults are provided for in the Code (Qld) s 340 and (WA) ss 317A and 318: see 13.6 and 13.7. These offences extend to a wide range of circumstances wherein the assault is accompanied by a specific intent; for example, to commit a crime, or where the person assaulted is acting in some official capacity. The provisions are relatively straightforward and require no further comment except for the Code (Qld) s 340(1)(b), which makes it a crime to ‘assault, resist, or wilfully obstruct a police officer while acting in the execution of his duty, or any person acting in aid of a police officer while so acting’. The equivalent provisions in the Western Australian Code are s 318(1) (d) and (f), which relate to assault upon a public officer who is performing a function of his or her office. The Code (WA) s 1 defines the term ‘public officer’ to include a police officer.72

Assaulting or resisting a police officer 13.32 The offence in these subsections will be committed so long as the police officer is, in fact, acting in the execution of his or her duty (Queensland) or performing a function of his or her office or employment (Western Australia). A majority of the High Court in Reynhoudt (1962) 107 CLR 381; [1962] ALR 483 held that, for the

purposes of a similar provision in the Crimes Act 1958 (Vic) s 40, it was not necessary for the prosecution to prove more than the fact that the person assaulted or resisted or wilfully obstructed by the accused was a police officer acting in the due execution of his or her duty. It was not necessary for the prosecution to prove that the accused was aware of the police officer’s special [page 296] status or that he or she was in the execution of his or her duty.73 That decision was made in the context of the common law whereby, if the accused had an honest and reasonable but mistaken belief that the person was not a police officer or that he or she was engaged in the execution of his or her duty, then such belief will act as a defence to the charge of assault and is a matter that the accused must establish on the balance of probabilities. The position is different under the Codes, where the relevant excuse is mistake of fact in s 24. This is a matter of exculpation that must be negatived by the prosecution once fairly raised by the accused. Thus, in the context of the Codes, where the accused satisfies the evidential onus that he or she was acting under such a mistake, it will be a matter for the prosecution to negative beyond reasonable doubt: see 6.11.

Stalking Queensland Punishment and procedure 13.33 In Queensland, the crime of unlawful stalking is found in the Code (Qld) s 359E and is punishable by 5 years’ imprisonment. This increases to 7 years’ imprisonment if the accused uses or intentionally threatens to use unlawful violence against anyone or anyone’s property,74 possesses a weapon, or contravenes or intentionally threatens to contravene an injunction or order imposed or made by a

court under the law of Queensland or the Commonwealth. The matter may be determined summarily if the defendant so elects and if the magistrate considers that the defendant can be adequately punished on summary conviction.75 Additionally, whether the accused is found guilty or not guilty or the prosecution ends in another way, if the court considers it desirable, a restraining order may be made against the person prohibiting particular conduct, including, for example, contact for a stated period by the person with a stated person or the property of a stated person.76

Proscribed conduct Under the Code (Qld) s 359B, unlawful stalking is conduct:

13.34

(a) intentionally directed at a person (the stalked person); and (b) engaged in on any 1 occasion if the conduct is protracted or on more than 1 occasion; and (c) consisting of 1 or more acts of the following, or a similar, type — (i)

following, loitering near, watching or approaching a person;

[page 297] (ii) contacting a person in any way, including, for example, by telephone, mail, fax, e-mail or through the use of any technology; (iii) loitering near, watching, approaching or entering a place where a person lives, works or visits; (iv) leaving offensive material where it will be found by, given to or brought to the attention of, a person; (v) giving offensive material to a person, directly or indirectly; (vi) an intimidating, harassing or threatening act against a person, whether or not involving violence77 or a threat of violence; (vii) an act of violence, or a threat of violence, against, or against property of, anyone, including the defendant; and (d) that — (i) would cause the stalked person apprehension or fear, reasonably arising in all the circumstances,78 of violence to, or against property of, the stalked person or another person; or (ii) causes detriment,79 reasonably arising in all the circumstances, to the stalked

person or another person.

Matters immaterial 13.35 The Code (Qld) s 359C provides that the following matters are immaterial for unlawful stalking: (1) For section 359B(a), it is immaterial whether the person doing the unlawful stalking — (a) intends that the stalked person be aware the conduct is directed at the stalked person; or (b) has a mistaken belief about the identity of the person at whom the conduct is intentionally directed. (2) For section 359B(a) and (c), it is immaterial whether the conduct directed at the stalked person consists of conduct carried out in relation to another person or property of another person. (3) For section 359B(b), it is immaterial whether the conduct throughout the occasion on which the conduct is protracted, or the conduct on each of a number of occasions, consists of the same or different acts.

[page 298] (4) For section 359B(d), it is immaterial whether the person doing the unlawful stalking intended to cause the apprehension or fear, or the detriment, mentioned in the section. (5) For section 359B(d)(i), it is immaterial whether the apprehension or fear, or the violence, mentioned in the section is actually caused.

Non-proscribed conduct 13.36 The Code (Qld) s 359D provides that the following conduct does not constitute unlawful stalking: acts done in the execution of a law or administration of an Act or for a purpose authorised by an Act; acts done for the purposes of a genuine industrial dispute; acts done for the purposes of a genuine political or other genuine public dispute or issue carried on in the public interest; reasonable conduct engaged in by a person for the person’s lawful trade, business or occupation; or

reasonable conduct engaged in by a person to obtain or give information that the person has a legitimate interest in obtaining or giving. As to non-proscribed conduct, see generally Conde [2015] QCA 63.

Western Australia Punishment and procedure 13.37 In Western Australia, two stalking offences arise under the Code s 338E. The more serious of these is in s 338E(1) whereby it is a crime, punishable by 3 years’ imprisonment, to pursue another person with intent to intimidate that person or some other person. It is punishable by 8 years’ imprisonment where a circumstance of aggravation is proven.80 The matter will be dealt with summarily unless a successful application is made by the prosecution or the accused, before the accused pleads to the charge, that the charge be tried on indictment.81 The summary conviction penalty is 18 months’ imprisonment or a fine of $18,000 or, in the case of a circumstance of aggravation, 2 years’ imprisonment or a fine of $24,000. 13.38 In addition, a simple offence of stalking arises under the Code (WA) s 338E(2), where the defendant’s conduct, in the absence of the intention noted above, could reasonably be expected to intimidate and which does, in fact, intimidate a person or a third person. This is punishable on summary conviction by imprisonment of 1 year or a fine of $12,000. This is an alternative offence to the more serious form of stalking.82 [page 299]

Defences 13.39 With each of these stalking offences, it is a defence for the accused to prove that he or she acted with lawful authority.83 This is a

matter for which the accused will bear the onus of proof, to be discharged on the balance of probabilities: see 6.19.

Proscribed conduct 13.40 Under the Code (WA) s 338D(1), ‘pursue’ as an element of the crime of stalking is defined as including: (a) repeatedly communicating with the person, whether directly or indirectly and whether by words or otherwise; (b) repeatedly following the person; (c) repeatedly causing the person to receive unsolicited items; (d) watching or besetting the place where the person lives or works or happens to be, or the approaches to such a place; or (e) doing any of the foregoing, whether repeatedly or not, in breach of a restraining order or bail condition.

There is no definition of ‘repeatedly’ in the Code.

Non-proscribed conduct 13.41 For the purposes of determining whether the accused pursued another person, the Code (WA) s 338D(2) provides: (a) the accused is not to be regarded as having communicated with or followed that person on a particular occasion if it is proved by or on behalf of the accused that on that occasion the accused did not intend to communicate with or follow that person; (b) an act by the accused on a particular occasion is not to be taken into account for the purpose of deciding whether the accused watched or beset a place where that person lived, worked or happened to be, or the approaches to such a place, if it is proved by or on behalf of the accused that on that occasion the accused did not know it was such a place.

13.42 For the matters in the Code (WA) s 338D(2) the accused will bear the onus of proof, to be discharged on the balance of probabilities: see 6.19.

Definition of ‘intimidate’ 13.43 The term ‘intimidate’ is defined in the Code (WA) s 338E(1) to include:

(a) causing physical or mental harm to the person; (b) causing apprehension or fear in the person; (c) preventing the person from doing an act that the person is lawfully entitled to do, or to hinder the person in doing such an act; (d) compelling the person to do an act that the person is lawfully entitled to abstain from doing. [page 300]

Other offences involving danger to life or health 13.44 The Codes Ch 29 contain a range of offences involving danger to the life or health of the victim. The offences vary in severity from those that amount, essentially, to attempted murder (for example, doing grievous bodily harm with intent to cause grievous bodily harm) and to the much less serious offence of negligently causing bodily harm. 13.45

The offences in Ch 29 include:

disabling or stupefying a victim in order to commit an indictable offence;84 unlawful drink spiking;85 intending to cause grievous bodily harm by various means, such as striking with a projectile, placing explosive substances or noxious things and doing an act likely to result in a serious disease;86 intending to cause bodily harm by various means;87 taking or sending dangerous goods on a vehicle (Queensland) or aircraft (Western Australia);88 endangering the safety of persons travelling by railway or aircraft;89

torture;90 attempting to injure by explosive substances;91 administering poison;92 female genital mutilation;93 failure to supply necessaries;94 endangering the life or health of children by exposure;95 setting man-traps (Queensland) and dangerous things (Western Australia);96 negligently causing bodily harm;97 using unseaworthy ships;98 endangering steamships;99 [page 301] shipping dangerous goods;100 and landing explosives.101 13.46 This chapter refers to those Code offences involving danger to life or health that arise with greater frequency, in particular: the doing of grievous bodily harm or causing a serious disease, with a nominated intention;102 doing grievous bodily harm;103 wounding;104 and the dangerous operation of a vehicle (Queensland) and dangerous driving (Western Australia).105

Grievous bodily harm/wounding 13.47 These offences are categorised in accordance with the nature of the injury sustained by the victim and by the state of mind of the

accused. The injuries extend to grievous bodily harm, wounding or serious disease and the most serious of the offences involves proof by the prosecution of intention by the accused to inflict harm on the victim. The prosecution must prove that the injury sustained by the victim amounts to the result charged in the indictment, that the accused caused the injury and, where relevant, that it was done with the requisite intention. With these offences, unlike the offence of assault, consent by the victim is irrelevant to the accused’s criminal responsibility.106 This is because lack of consent is not an element of these offences.

Punishment 13.48 The most serious of the offences are the crimes that arise under the Code (Qld) s 317 and (WA) s 294. These provisions set out a range of intentions and the proof of any one of these will be sufficient to satisfy the mental element. Both Codes refer to an intent to maim, disfigure, or disable any person, an intent to do some grievous bodily harm to any person, and an intent to resist or prevent the lawful arrest or detention of any person. In addition, the Code (Qld) s 317 refers to an intent to transmit a serious disease to any person and an intent to resist or prevent a public officer107 from acting in accordance with lawful authority. If, with any of these intents, the accused does grievous bodily harm to, or wounds, any person, he or she is guilty of a crime and is liable to imprisonment for life (Queensland) and 20 years (Western Australia). The same result pertains if the accused, with one of the nominated intents, transmits a serious disease (Queensland) or does an act that is likely to result in a person having a serious disease (Western Australia). [page 302] 13.49 Doing grievous bodily harm to another, in the absence of one of the nominated intents, is a crime under the Code (Qld) s 320 and

(WA) s 297, punishable by imprisonment for 14 years (Queensland) and 10 years (Western Australia). Imprisonment for 14 years is available under the Western Australian provision if the offence was committed in the course of stealing a motor vehicle or if it was committed in a circumstance of aggravation.108 The wounding of another, without reference to one of the nominated intents, is a misdemeanour under the Code (Qld) s 323(1)(a) punishable by imprisonment for 5 years. Under the Code (WA) s 301(1), it is a crime punishable by imprisonment for 5 years or, if it is committed in a circumstance of aggravation, for 7 years.109

Procedure 13.50 In Queensland, these offences are not able to be determined summarily. That is also the case in Western Australia, with the exception of the crime of wounding which, on summary conviction, is punishable by imprisonment for 3 years or a fine of $36,000 if it is committed in a circumstance of aggravation and, in any other case, by imprisonment for 2 years or a fine of $24,000.110

Meaning of ‘grievous bodily harm’ 13.51 The term ‘grievous bodily harm’ is defined in the Codes s 1. In the Code (WA) s 1, the term means a bodily injury that is of such a nature as to endanger, or be likely to endanger, life, or to cause, or be likely to cause, permanent injury to health. Section 1(4) of the Code states that a reference to causing or doing grievous bodily harm includes a reference to causing a person to have a serious disease.111 In the Code (Qld) s 1, it is defined to mean: (a) the loss of a distinct part or an organ of the body; or (b) serious disfigurement; or (c) any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health; whether or not treatment is or could have been available.

13.52 Until amendment in 1997, the Queensland definition was identical to that which then existed in the Code (WA) s 1. The

extended definition in the Code (Qld) s 1 reflects judicial interpretations of the provision as it read before amendment. Thus, the bodily injury must be one that does, or is likely to, endanger life or cause permanent injury to health.112 In Chan-Fook [1994] 2 All ER 552, it was held that the term was broad enough to include psychiatric injury, provided that it constituted an identifiable clinical condition rather than mere emotion such as fear, distress [page 303] or panic.113 Given that the Code (WA) includes reference to a ‘serious disease’ within the term ‘grievous bodily harm’, it is arguable that in Western Australia a prosecution for grievous bodily harm could occur where the victim has suffered psychiatric injury as a result of the accused’s actions. In Tranby (1991) 52 A Crim R 228, it was held that permanent cosmetic disfigurement constituted by severance of a substantial portion of the ear lobe did not amount to grievous bodily harm, but this type of injury would now seem to be embraced by the extended terms of the definition in the Code (Qld) s 1, although it is uncertain whether the Code (WA) would extend to cover this given that there is no specific reference to the loss of a part of the body. In Lovell [2015] QCA 136, the Queensland Court of Appeal held that a disfigurement that is remedied by medical treatment was capable of amounting to a serious disfigurement within the meaning of ‘grievous bodily harm’ in s 1 of the Code. 13.53 The definition in the Code (WA) s 1 does not indicate the time at which the assessment of the victim’s condition should be made. In Lobston [1983] 2 Qd R 720 at 721, the Court of Criminal Appeal in Queensland held that, in determining whether a particular injury comprised grievous bodily harm, it was necessary to consider the injury at the time it was done. Accordingly, one looks at the nature of the injury itself, and not the surrounding circumstances such as the availability of, or response to, medical treatment. This is specifically

referred to in the present Queensland definition.114 It is likely that the Western Australian courts would adopt a similar approach.

Meaning of ‘wound’ 13.54 There is no definition of the term ‘wound’ in the Codes. To constitute a wound, the true skin of the victim must be broken. A break in the outer layer of the skin would not be sufficient.115 On the other hand, severe internal injury, such as a broken nose, would not constitute a wounding if the skin remains intact, although it would certainly constitute at least bodily harm.116 The Western Australian courts have recently held that biting off the top part of a victim’s ear would constitute a wound, although this is not likely to constitute permanent injury to health, and therefore grievous bodily harm.117

Meaning of ‘serious disease’ 13.55 The term ‘serious disease’ is defined in the Codes s 1. In the Code (WA) s 1, it means a disease of such a nature as to: (a) endanger, or be likely to endanger, life; or (b) cause, or be likely to cause, permanent injury to health.

[page 304] 13.56 The Queensland definition is more extensive. It defines the term as meaning a disease that would, if left untreated, be of such a nature as to: (a) cause or be likely to cause any loss of a distinct part or organ of the body; or (b) cause or be likely to cause serious disfigurement; or (c) endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health; whether or not treatment is or could have been available.

When intent is an element 13.57

The crimes in the Code (Qld) s 317 and (WA) s 294 are

regarded as serious because the causing of the injury is accompanied by one of the intentions specified in the provision. Reference has been made elsewhere to the concept of intention: see 8.33–8.35. With this offence, there must be an intent to maim, disfigure, or disable any person, or to do some grievous bodily harm to any person, or to resist or prevent the lawful arrest or detention of any person. In addition, in Queensland, there may be an intent to transmit a serious disease to any person118 or an intent to resist or prevent a public officer from acting in accordance with lawful authority. In Western Australia, by virtue of the definition of grievous bodily harm, the intent also includes an intent to cause a person to have a serious disease. The prosecution must prove that the accused acted with the requisite intention and that the result charged in the indictment was caused by him or her. 13.58 The harm intended to be done to the victim may be expressed in the same terms as the form of intent itself. For example, it may be a charge of doing grievous bodily harm with an intent to do grievous bodily harm. However, it may be expressed in different terms such as doing grievous bodily harm with an intent to resist lawful arrest. In these latter cases, it is not necessary for the Crown to prove that the intended result was achieved. Thus, it is not necessary to show that there was a successful resistance of arrest, a maiming, disfiguring or disabling, where those terms are used in the indictment.119 13.59 In Woodward [1970] QWN 30, the charge was that, with intent to maim, the accused unlawfully threw a destructive substance, namely petrol in a bottle with a lighted wick.120 Douglas J directed the jury as follows: This is a type of matter which but seldom comes before the courts because, usually, circumstances approximating these are described by other crimes in the calendar. The word ‘maim’ is a word of ancient origins. It apparently derives from the ancient word ‘mayhem’ and originally it was descriptive of something done to stop a man fighting. For instance, it has been said that to deprive a man of his front teeth or his hand, or his arm, or his leg, is to maim him, but to deprive him of his nose, or ears, is not to maim him. It was considered that a man fought with his teeth or his legs, or his arms. If he took his back teeth out that was not maiming him. Really, in fact, it means when you do maim you deprive the person you set out to maim the use

[page 305] of some member; you mutilate or cripple him. In your resolution of the evidence you have to determine what the Crown has proved to your satisfaction beyond reasonable doubt. Has it proved that the intent which existed in the minds of these men at the time this fluid was thrown, if it was thrown at the group of men, was to deprive one or more of them of the use of some member, or to mutilate that person, or to cripple that person — in other words to put him out of action. As counsel for the Crown pointed out to you, of course, fire by means of petrol would be a method of doing that, if you decided to apply it.

As to the circumstances where intent will be inferred from conduct, see Zaburoni [2016] HCA 12.

Causation 13.60 The causation component in all of these offences relating to doing grievous bodily harm, wounding or causing serious disease requires proof by the prosecution that the accused has done the specified harm to the victim. The High Court has expressed a preference for causation to be determined in accordance with tests other than those relating to foreseeability.121 Nevertheless, questions of causation in respect of these offences have been decided, under the Codes, on the basis of foreseeability principles. In Knutsen [1963] Qd R 157, the accused had unlawfully assaulted a woman, thereby rendering her unconscious. He left her in the early hours of the morning on a roadway where, some time later, she was struck by a motor vehicle. The accused was found guilty of unlawfully doing grievous bodily harm. The indictment had included a second charge, unlawful assault occasioning bodily harm. On appeal, the majority of the Court of Criminal Appeal substituted a verdict of guilty of the second charge. The whole court agreed, however, as to the nature of the test to be applied in respect of causation of grievous bodily harm (at 175):122 It is clear that in some cases under s 320, the injury may be the immediate result of the accused’s unlawful act (for example, a blow with a knife). In others it may be the result of the acts of some third party in conjunction with the effects of the act of the accused: for example, the accused’s violence may cause the injured party to suffer harm in an instinctive effort to avoid harm from the accused’s violence or put the injured party in

such a position that he cannot escape injury from some other source of imminent harm. In most, if not all, of these cases an onlooker would exclaim — ‘He (ie the accused) did that’. I can see no difference between an accomplished unlawful physical assault which knocks or flings a man into an open fire or off a footpath into the course of a passing car and a threatened assault of such a kind that, in an effort to escape, the proposed victim falls into the fire or stumbles off the footpath in front of the car. Cases may be multiplied in which the accused’s unlawful act is not the sole cause of the injury suffered, but in some way is a real and substantial part of the cause of ultimate injury. Nevertheless, I do not think a person can be brought within s 320 by reading it to import absolute liability for whatever happens. He is not in the position of an insurer against all results, however remote. The point beyond which no liability attaches must be ‘largely a matter of circumstances and degree’ dependent on the facts in each case. In my opinion in all such cases, the accused is criminally responsible if beyond reasonable doubt injury is

[page 306] suffered in a way likely to result from his unlawful act. A jury should be told to ask themselves was the injury likely to happen in the known course of the conduct of human affairs? In deciding whether injury was likely so to happen, they should ask themselves — would an ordinary person, then and there at the time the accused did the unlawful act, beyond reasonable doubt have foreseen that injury was likely to be sustained in the manner in which injury was in fact sustained by the victim? It is not a matter of foreseeing the details or the degree of injury. It is a matter of foreseeing the probability of some injury being received in the manner in which the known injuries were in fact received. They should be told to distinguish sharply between what can be foreseen as really likely or probable and what is remotely possible, fanciful or conjectural. Such a direction was not given in the present case.

Foreseeability is unlikely to now be regarded as the test for causation for these offences given the comments of the High Court noted above, and of the Western Australian Court of Criminal Appeal in Krakouer: see 12.24. The test is instead likely to reflect the preference for the requirement of a substantial or significant link between the accused’s actions and the result. It should further be noted that in proving the causal link between the accused’s actions or inactions and the harm, the effect of any medical treatment on the injury is irrelevant to determining its seriousness; the Western Australian courts have recently upheld the principles that the seriousness of the injury is to be assessed on the basis that it is not treated.123

It is also possible to prove causation through a breach of one of the duties in the Codes. These are relevant where the allegation is that the accused has caused grievous bodily harm to the victim not through the direct application of force, but rather through failing to prevent that harm, or an omission to act. For example, in Clark (2007) 171 A Crim R 532 the appellant was liable for causing grievous bodily harm to the victim because he had failed to properly secure a safety harness on a flying fox, resulting in the victim falling and suffering serious injuries. He was found to have breached his duty under the Code (Qld) s 289 as he was in charge of a dangerous thing.

Matters of excuse 13.61 Before a conviction will arise for an assault or for an offence associated with the causing of the types of injury outlined in this chapter, it must be proven by the prosecution that the conduct of the accused was unlawful. The conduct will be unlawful if it was not authorised, justified or excused by law.124 Accordingly, it is open to the accused to rely upon the general matters of excuse in Ch 5 of the Codes such as independence of the will or accident, as well as the particular matters of excuse relating to offences against the person such as the use of defensive force or, in the case of assault, provocation. [page 307]

Conduct excused from criminal responsibility 13.62 Where an accused is charged with an offence against the person, from unlawful killing through to assault, the Codes contain provisions that outline circumstances in which he or she will be relieved from criminal responsibility where his or her conduct was directed at the protection of persons or property from threatened harm. Some of the provisions specifically declare that the accused will not be ‘criminally responsible’ for that conduct, including the use of

force. From the definition of that term in s 1 of the Codes, this means that the accused will not be liable to punishment for an offence.125 The Code provisions that declare the accused not to be criminally responsible are: (Qld) s 22(2) and (WA) s 22 — claim of right; (Qld) s 23(1) and (WA) ss 23A and 23B — independence of will and accident; (Qld) s 24(1) and (WA) s 24 — mistake of fact; (Qld) and (WA) s 25 — extraordinary emergency; (Qld) s 27(1) and (WA) s 27 — insanity; (Qld) and (WA) s 29 — immature age; (Qld) and (WA) s 30 — judicial officers; (Qld) s 31(1) and (WA) s 31 — compulsion; (Qld) and (WA) s 34 — partners and company officers; (Qld) s 251 and (WA) s 228 — execution of process; (Qld) s 252 and (WA) s 229 — arrest of wrong person by warrant; (Qld) s 253 and (WA) s 230 — irregular process or warrant; (Qld) s 269(1) and (WA) s 246 — provocation for assault; (Qld) s 272(1) — self-defence against provoked assault; (Qld) ss 282 and 282A and (WA) s 259 — surgical procedure; (WA) s 259A — inoculation procedure; and (Qld) s 458(3) and (WA) s 441(3) — defence of property.

Conduct that is lawful 13.63 Many excuse provisions are expressed in broader terms so that it is ‘lawful’ for the accused to engage in the conduct referred to. In addition to relieving the accused from criminal responsibility, the use of this formula has implications in respect of civil liability.126 Code

provisions that describe the conduct of the accused, including the use of force, as being lawful are: (Qld) ss 247–249 and (WA) ss 224–226 — execution of sentence, process or warrant; (Qld) s 254 and (WA) s 231 — force used in the execution of process or arrest; (Qld) ss 257–258 and (WA) ss 233, 235 — preventing escape from arrest; [page 308] (Qld) s 260 and Criminal Investigation Act 2006 (WA) s 24127 — preventing breach of peace; (Qld) ss 261–265 and (WA) ss 239–242 — suppression of riot; (Qld) s 266 and (WA) s 243 — prevention of crime or violence by a person of unsound mind; (Qld) s 267 and (WA) s 244 — defence of a dwelling; (Qld) s 270 and (WA) s 247 — repetition of insult; (Qld) s 271 and (WA) s 248 — self-defence; (Qld) s 273 — aiding in self-defence; (Qld) ss 274–279 and (WA) ss 251–256 — defence of property; and (Qld) ss 280–281 and (WA) ss 257–258 — domestic discipline.

Permitted levels of force Force that is reasonably necessary 13.64 The measure of the degree of force that an accused may use in respect of these various excuses is expressed in terms of reasonableness which, therefore, imports an objective perspective. Subject to certain qualifications, some Code provisions adopt a

completely objective assessment of the force level and enable the accused to use such force as is reasonably necessary in the following situations: (Qld) s 254 and (WA) s 231 — force used in the execution of process or arrest; (Qld) ss 256(1) and 257(1) and (WA) s 233(1) — preventing escape from arrest; (WA) s 235(1) — preventing escape after arrest; (Qld) s 260 and Criminal Investigation Act 2006 (WA) s 24 — preventing breach of peace; (Qld) s 266 and (WA) s 243 — preventing commission of certain offences; (Qld) s 270 and (WA) s 247 — preventing repetition of insult; (Qld) s 271(1) and (WA) s 248 — self-defence; and (Qld) ss 274–279 and 458(3) and (WA) ss 251–256 and 441 — defence of property. The provisions on domestic discipline — Code (Qld) s 280 and (WA) s 257 — refers to force that is reasonable in the circumstances.

Force that is reasonably believed to be necessary 13.65 Other Code provisions enable the accused to use such force as he or she believes, on reasonable grounds, to be necessary in the circumstances and, with these provisions, a subjective requirement is included in that the accused must have the positive belief required, such belief being objectively reasonable. This test is therefore part subjective, part objective. Examples include: (Qld) ss 262–264 and (WA) ss 239–241 — suppression of riot; [page 309]

(Qld) s 266 and (WA) s 243 — prevention of violence by a person of unsound mind; (Qld) s 258(1) — preventing escape after arrest; and (Qld) s 267 and (WA) s 244 — defence of a dwelling house.128

Limitations 13.66 The general test of reasonableness as set out in the above excuse provisions is subject to some qualifications whereby limitations are imposed on the amount of force that can be used. In Western Australia, some provisions preclude the doing of bodily harm;129 for example: (WA) s 252 — defence of movable property with claim of right; (WA) s 254(3) — defence of premises against trespassers; (WA) s 255 — defence of property or vessel with claim of right; and (WA) s 256 — exercise of right of way or easement. 13.67 In Queensland, some provisions preclude the doing of grievous bodily harm;130 for example: (Qld) s 274 — defence of movable property against trespassers; (Qld) ss 275 and 276 — defence of movable property with or without claim of right; (Qld) s 277 — defence of premises against trespassers; (Qld) s 278 — defence of property or vessel with claim of right; and (Qld) s 279 — exercise of right of way or easement. 13.68 Other provisions preclude the use of force that is not reasonably proportionate to the threatened harm; for example: (Qld) s 260 — preventing breach of peace; (Qld) ss 261–262 and 264 and (WA) ss 238–239 and 241 —

suppression of riot; and (Qld) s 269 and (WA) s 246 — provocation. 13.69 There are also provisions that preclude the use of force that is intended or likely to cause death or grievous bodily harm; for example, in the following circumstances: (Qld) s 257 and (WA) s 233 — preventing escape from arrest; (Qld) s 258 and (WA) s 235 — preventing escape after arrest; (Qld) s 269 and (WA) s 246 — provocation; [page 310] (Qld) s 270 and (WA) s 247 — prevention of repetition of insult; (Qld) ss 271–272 — self-defence against certain unprovoked assaults; (WA) s 251 — defence of movable property against trespassers; (WA) s 253 — defence of movable property without claim of right; and (WA) s 254(2) — defence of property against trespassers. Excuses in that last group may be relied upon where the victim suffers grievous bodily harm or even where the victim dies as a result of the force applied by the accused. This is subject to the proviso that the use of the force was not ‘intended or likely’ to cause death or grievous bodily harm, such as where a moderate blow causes an unexpected death.131

Burden of proof 13.70 In the following paragraphs, reference will be made to selfdefence, provocation and defence of property. As with all excuses noted above, these are matters for which the prosecution carries the burden of proof and, therefore, the prosecution must negative the

excuse beyond reasonable doubt, although the accused carries an evidential onus: see Chapter 6.

Provocation for assault132 13.71 Reference has been made in Chapter 12 to the doctrine of provocation as it relates to homicide, where it was noted that, under the Codes, provocation has two separate functions: under the Code (Qld) s 304 it acts as a mitigating factor that will reduce murder to manslaughter; and under the Code (Qld) s 269 and (WA) s 246 it provides a complete excuse for the limited range of offences to which it relates, namely, those that have assault as a defined element. Reference here is to the second of those forms of provocation which, accordingly, will serve to eliminate criminal responsibility in respect of offences such as assault or assault occasioning bodily harm.133 The excuse of provocation cannot be relied upon where the accused is charged with offences such as doing bodily harm, doing grievous bodily harm or wounding, where an assault may be an incident in the commission of the offence but not a defined element that must be established by the prosecution.134

Definition of ‘provocation’ 13.72 The term ‘provocation’ is defined in the Code (Qld) s 268 and (WA) s 245. In Queensland (which, unlike Western Australia, still recognises a defence of provocation to murder) the provision defines the term only for the purposes of provocation for assault, and the meaning of provocation in the context of murder is taken from the common law: see 12.69. The Code (Qld) s 268, which is not materially different from the Code (WA) s 245,135 reads: [page 311] (1) In this section, ‘provocation’, used with reference to an offence of which an assault is an element, means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in

the presence of an ordinary person to another person who is under the person’s immediate care, or to whom the person stands in a conjugal, parental, filial, or fraternal, relation, or in the relation of master or servant, to deprive the person of the power of self-control, and to induce the person to assault the person by whom the act or insult is done or offered. (2) When such an act or insult is done or offered by one person to another or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give to the latter provocation for an assault. (3) A lawful act is not provocation to any person for an assault. (4) An act which a person does in consequence of incitement given by another person in order to induce him to do the act, and thereby to furnish an excuse for committing an assault, is not provocation to that other person for an assault. (5) An arrest which is unlawful is not necessarily provocation for an assault, but it may be evidence of provocation to a person who knows of the illegality.

Excuse of provocation 13.73 The provision that relieves a person from criminal responsibility because of provocation is set out in the Code (Qld) s 269 and (WA) s 246. Although the heading to the sections refers to provocation as a defence, it is an excuse that must be negatived by the prosecution provided the evidential onus has been discharged by the accused: see 6.20. The Code (Qld) s 269, which is not materially different from the Code (WA) s 246,136 reads: (1) A person is not criminally responsible for an assault committed upon a person who gives the person provocation for the assault, if the person is in fact deprived by the provocation of the power of self-control, and acts upon it on the sudden and before there is time for the person’s passion to cool and if the force used is not disproportionate to the provocation and is not intended, and is not such as is likely to cause death or grievous bodily harm. (2) Whether any particular act or insult is such as to be likely to deprive an ordinary person of the power of self-control and to induce the ordinary person to assault the person by whom the act or insult is done or offered, and whether, in any particular case, the person provoked was actually deprived by the provocation of the power of self-control, and whether any force used is or is not disproportionate to the provocation, are questions of fact.

Elements of provocation

Loss of self-control 13.74 Provocation for assault raises considerations similar to those relevant to provocation for murder and, as noted in that context, there must be actual loss of self-control by the accused and the provocative act must have been such as to deprive the ordinary person of selfcontrol. The courts have found that in the face [page 312] of extremely provocative acts it is open to the jury to infer loss of selfcontrol.137 As with provocation for murder, personal characteristics of the accused can be considered for the purpose of determining the level of seriousness or the gravity of the provocation, from merely trivial to highly provocative, and it is then a matter to determine whether the ordinary person, although not sharing those characteristics apart from the age of the accused, would lose self-control and react in the manner of the accused because of a provocative act of that level of seriousness.138

Provocative conduct 13.75 For the excuse of provocation to be made out, there must be a provocative incident which will be constituted by a wrongful act or insult. In Stevens and Doglione [1989] 2 Qd R 386, the Court of Criminal Appeal in Queensland considered that the word ‘wrongful’ qualified both ‘act’ and ‘insult’. This was disapproved, obiter dicta, by the High Court in Stingel (1990) 171 CLR 312 at 322; 97 ALR 1, where the view was expressed that ‘wrongful’ applied to act but not to insult, on the basis that the term ‘insult’ implies a degree of offensiveness without the additional need for it to be described as wrongful. Such is not the case with the neutral term ‘act’ which would need to be wrongful in order for it to provide a basis for a provoked response. It would seem likely that this interpretation will apply to the Code (Qld) s 268 and (WA) s 245.

13.76 In Tough v Kay (1996) 87 A Crim R 278, the defendant was summarily convicted of assault under the Code (WA) s 313. He had become angry when told that the victim had made certain comments to an associate of the defendant about the defendant’s sexuality. He searched for and located the victim in a hotel bar and challenged the victim to make any such comments to his face. The defendant ‘snapped’ and assaulted the victim because of the facial expression that the victim displayed in response, describing it as the ‘same, smug expression that he uses when he is in a pub’. Heenan J said at 283: The provocative act to which the Code refers usually will take the form of an assault or some outrageous conduct, such as cheating at cards, and the provocative insult will take the form of a taunt or some offensive or deeply hurtful remark, such as a racial slur. It is difficult to imagine a look, or the making of a facial expression, which would be so obscene, so ugly or even so unusual as to fit into either category.

It was held that the circumstances in which the offence occurred did not amount to provocation under the Code (WA) ss 245 and 246. In Verhoeven (1998) 101 A Crim R 24, derogatory comments of a racial nature were held to be an insult sufficient to raise provocation under those provisions and, in Nakayama [1912] St R Qd 287, it was held that cheating in a game of cards or dominoes was a wrongful act under the Code (Qld) ss 268 and 269. In Langridge v Fox (SC(WA), Pidgeon J, BC03781, 5 August 1997, unreported), his Honour expressed the opinion that, while it would not be a wrongful act for a cameraman to film a person in a street from a reasonable distance away, for the purpose of obtaining footage for a news broadcast, the position would be different if the cameraman came too close. In that [page 313] case, the accused was found guilty of assault and provocation was negatived by the prosecution because the action of the accused in attempting to wrest the camera from the cameraman was found to be beyond the reaction of an ordinary person in those circumstances. In Doust v Meyer [2009] WASCA 65, the West Australian Court of Appeal found that ‘wrongful act’ means an act ‘performed, executed or done,

unjustly, unfairly or harmfully’ (at [56]). In that case it was found that holding up a hand while stating ‘Leave these people alone’ could not be described as a wrongful act or insult. 13.77 In Tough v Kay (above), reliance could not be placed on the sexuality comments made to the defendant’s associate, because the defendant was not present when the comments were made. In that regard, the Code (Qld) s 268(2) and (WA) s 245 second para make it clear that the provocative act or insult must be offered to the person provoked; that is, to the defendant or to some other person in the defendant’s presence where that person stands within the specified relationship to the defendant referred to in the Code (Qld) s 268(1) and (WA) s 245 first para: see 12.71. The West Australian District Court has recently confirmed that there are a limited number of circumstances in which provocation can apply where the provocative act or insult has been directed at someone other than the accused, provided the accused is present at the time the wrongful act or insult occurs.139 Therefore, there is no provocation if the accused acts on the basis of his or her awareness that a wrongful act or insult occurred at an earlier time.140

Conduct that does not constitute provocation 13.78 The Code provisions refer to certain conduct that is not capable of constituting provocation. This includes an act that a victim does in consequence of incitement given by the accused in order to induce the victim to do the act and to thereby furnish an excuse for committing an assault by the accused.141 Also, an arrest that is unlawful will not necessarily amount to provocation for an assault although it may be evidence of provocation to a person who knows of the illegality.142 Additionally, while a wrongful act may constitute provocation for an assault, a lawful act will not.143 The courts in Queensland and Western Australia have diverged as to the meaning to be ascribed to the words ‘wrongful’ and ‘lawful’ in this context. Reference has been made above to the range of circumstances in the Codes where conduct is specifically referred to as

being ‘lawful’: see 13.64. In Roche [1988] WAR 278, the Court of Criminal Appeal in Western Australia held that the term ‘lawful’ in the definition of provocation should be limited to those forms of conduct, but that the term ‘wrongful’ should be given a broad construction. This finding means that morally reprehensible conduct that is not unlawful, such as adultery, could constitute provocation. However, whether this position persists in Western Australia is uncertain, given that the partial defence of provocation to murder [page 314] has now been abolished. With this has disappeared the possibility of an accused relying on provocation where the accused has killed on the basis of adultery as the provocation. It is therefore possible that a narrower construction of wrongful will be applied. That is the case in Queensland, where in the decision of Stevens and Doglione [1989] 2 Qd R 386, the Court of Criminal Appeal expressed the opinion that the term ‘lawful’ should be broadly defined, but that the term ‘wrongful’ should be narrowly construed, such that it would not extend to matters that are morally wrong or reprehensible.

Temporal connection of act and response 13.79 The Code (Qld) s 269 and (WA) s 246 include a requirement that there be a close temporal connection between the act of provocation and the response of the accused, in that he or she must act on the provocation suddenly and before there is time for passion to cool. This temporal connection has not been required in respect of provocation for murder, which is only available in Queensland: see 12.83.

Proportionate force 13.80 The definition of provocation requires that the response of the accused not be disproportionate to the provocation and that the force

used by the accused must not have been intended or likely to cause death or grievous bodily harm.144 In Toomath [2009] QCA 369, Muir JA stated that, in assessing the force used, a jury should consider the nature and manner of force, the degree and extent of force and the circumstance, including the location where force was applied.

Defensive force 13.81 The use of force by the accused against a person in selfdefence is provided for in the Code (Qld) ss 271 and 272 and (WA) s 248, and in defence of another in the Code (Qld) s 273.145 For other provisions relating to the use of defensive force, see 13.64–13.69. Unlike provocation, which is limited in the range of offences to which it applies, the provisions relating to the use of defensive force are applicable to any offence against the person. The use of defensive force that causes damage to property may also be excused where the force was used for the purpose of protecting the accused, another person or property. This is provided for in the Code (Qld) s 458 and (WA) s 441: see 15.144. These are all matters of excuse for which the prosecution carries the burden of proof: see 13.71 and Chapter 6.

Self-defence Queensland — two forms of excuse 13.82 Self-defence in Western Australia is now quite different to self-defence in Queensland following the 2009 amendments to the Code (WA). There are two manifestations of self-defence under the Code (Qld), with the distinction between [page 315] them resting with the nature of the assault against which the accused has to defend himself or herself. If the accused has not provoked the assault, the Code (Qld) s 271 is relevant. On the other hand, if the

accused provoked the assault and thereafter found the need to defend himself or herself from retaliation, the relevant provision is the Code (Qld) s 272. In Western Australia there is no such distinction. 13.83

The Code (Qld) ss 271 and 272 read:

Section 271: Self-defence against unprovoked assault (1) When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for the person to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, provided that the force used is not intended and is not such as is likely, to cause death or grievous bodily harm. (2) If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that the person cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for the person to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm. Section 272: Self-defence against provoked assault (1) When a person has unlawfully assaulted another or has provoked an assault from another, and that other assaults the person with such violence as to cause reasonable apprehension of death or grievous bodily harm, and to induce the person to believe, on reasonable grounds, that it is necessary for the person’s preservation from death or grievous bodily harm to use force in self-defence, the person is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or grievous bodily harm. (2) This protection does not extend to a case in which the person using force which causes death or grievous bodily harm first began the assault with intent to kill or to do grievous bodily harm to some person; nor to a case in which the person using force which causes death or grievous bodily harm endeavoured to kill or to do grievous bodily harm to some person before the necessity of so preserving himself arose; nor, in either case, unless, before such necessity arose, the person using such force declined further conflict, and quitted it or retreated from it as far as was practicable.

13.84 For the Code (Qld) s 271(1), a qualifying condition is that the accused has been unlawfully assaulted by the victim and has not provoked the assault. Thus, the provisions apply if there was no provocation at all by the accused or no provocation by the accused for the assault actually made, although there may have been provocation for an assault.146 13.85 For the Code (Qld) s 272, the accused must have either unlawfully assaulted the victim or provoked an assault from the

victim. Thus, the provision applies where the accused has either assaulted the victim initially or has behaved in such a way as to bring a response from the victim in the form of an assault of the degree of violence referred to in the section, thereby causing the accused to [page 316] have reasonable apprehension of death or grievous bodily harm. With the Code (Qld) s 272, greater restrictions are placed upon the extent to which the accused can make use of retaliatory force. 13.86 Interestingly, where the accused provokes a minor assault from the victim and then responds with a minor assault of the victim, neither of the self-defence provisions will apply. In that situation, the terms of the Code (Qld) s 271 are precluded because the accused will not have been unlawfully assaulted by the victim and the terms of the Code (Qld) s 272 are precluded because the degree of violence offered by the victim has been insufficient to meet the requirements of the provision.147 13.87 To decide whether the assault offered by the victim is provoked or unprovoked, reference must be made to the doctrine of provocation itself.148 On that basis, unless the behaviour of the accused would be sufficient to enable the victim to rely on provocation in the event that the victim were charged with an offence, the assault will be unprovoked. Thus, some act of minor provocation by the accused, such as the use of insulting language, may not justify a retaliatory attack on the accused where such an attack is likely to cause death or grievous bodily harm. This is because provocation under the Code (Qld) s 269 is expressly precluded where such force is used, and provocation under the Code (Qld) s 304 may not always give exculpation where words alone constitute the provocation. 13.88 In Muratovic [1967] Qd R 15, the accused was charged with wilful murder. In the course of a fight in a hotel, he drew a knife and stabbed each of two protagonists, killing one and wounding the other.

In his evidence, the accused alleged he had been threatened and violently assaulted by the two men some 6 days prior to the incident at the hotel. A fourth person, who had been present on that earlier occasion, advised the accused that the two men had intended to kill him (the accused). In the hotel, the two victims confirmed that this was their intention and to this the accused responded with insulting language. It was held that this language was insufficient provocation for the type of attack made on the accused. The accused’s response to the attack was thus in self-defence against an unprovoked assault.

Unprovoked assault: Code (Qld) s 271(1) 13.89 Under the Code (Qld) s 271(1), the general principle is that the accused may use such force as is reasonably necessary to make effectual defence against the victim’s assault. An objective test is to be applied in determining whether the force used by the accused was reasonable and, therefore, reference need not be made to the state of mind of the accused.149 In some cases, it has been held that the belief of the accused is one of the circumstances that a jury might take into account [page 317] in determining objectively whether the force used by the accused was reasonably necessary.150 However, in Hagarty [2001] QCA 558, the Queensland Court of Appeal confirmed the objective nature of the test. Williams J said at [34]: Passages in some of the authorities which indicate that the belief of the defender may be relevant should be expressed differently. Most of those statements are concerned either with the situation where a replica weapon was in the possession of the attacker or where the defender believed he was about to be attacked and responded with a ‘preemptive blow’. Given the terms of s 271(1) the question in each case for the jury would be: ‘in all the circumstances confronting the defender at the time, applying objective tests, what was the likely attack and was the response reasonably necessary to make effectual defence against that attack’. Approached in that way the ‘likely attack’ is not that in the belief of the defender, but that which was ‘likely’ when the facts were looked at objectively. In most factual situations where s 271(1) was relevant, there

would be a coincidence between the defender’s belief and what was held to be ‘likely’ applying the objective test.

13.90 Reasonable force Whether or not the force used by the accused is reasonable for the Code (Qld) s 271(1) is a question of fact and of relevance to that determination will be issues such as the proportionality of response by the accused and the utilisation by him or her of any alternative strategies.151 13.91 Deadly or disabling force A condition which limits the force that may be used under the Code (Qld) s 271(1) is that the accused may not use force that is intended or likely to cause death or grievous bodily harm. This is sometimes referred to as ‘deadly force’ or ‘disabling force’.152 In Johnson [1964] Qd R 1 at 12, Stanley J stated that the Code (Qld) s 271(1) deals in the main with relatively minor assaults in which the jury would have no more difficulty in determining what was reasonably necessary than in determining what was reasonable care in the duty provisions of the Code. However, the section has a broader operation than this would suggest. In Prow [1990] 1 Qd R 64, the Queensland Court of Criminal Appeal held that the provision was available even where the accused was charged with manslaughter.153 Obviously, in such a case, the force used by the accused will have killed. Nevertheless, despite that, the section will have application provided the force used by the accused was not ‘intended or likely’ to kill or cause grievous bodily harm. The distinction is between force that is unexpectedly fatal and force that is intended or likely to be so. In the former instance, the Code (Qld) s 271(1) is available to the accused.154

Unprovoked assault: Code (Qld) s 271(2) 13.92 Self-defence in the Code (Qld) s 271(2) is concerned with the use of force by the accused against a more severe form of assault. The provision outlines [page 318]

circumstances where it is lawful for the accused to use force that is intended or likely to cause death or grievous bodily harm. It requires that the accused have: a reasonable apprehension of death or grievous bodily harm; and a belief, on reasonable grounds, that he or she cannot otherwise preserve himself or herself from death or grievous bodily harm. 13.93 Prior acts of victim As to the first of those elements, the jury may take into consideration not only the matters that immediately caused the accused to have an apprehension of death or grievous bodily harm, but also prior acts of the victim. In Muratovic [1967] Qd R 15 at 19–20, the court adopted a statement by Webb J in Keith [1934] St R Qd 155 where his Honour said at 157: … the nature of the assault would, I think, depend not merely upon what the assailant did and said at the time of the assault and the kind of weapon he employed and the manner of its use, but also upon the disposition and mental attitude of the assailant as disclosed, say, by his previous manifestations and declarations of hostility to the person assaulted; and the apprehension of the latter would naturally be grounded on the knowledge he possessed of such manifestations and declarations.

In Muratovic, there was evidence of such prior violence to the accused. The trial judge had refused to leave the issue of self-defence to the jury. The Court of Criminal Appeal allowed the appeal and ordered a new trial, stating that the jury was entitled to consider the evidence as to the previous threats and assaults. In Keith, the accused was convicted of wilful murder and one of the grounds of his appeal was that evidence of prior assaults by the victim and threats to the life of the accused had been wrongly rejected. Although the judge had admitted some evidence of previous assaults to the accused, for which the victim had been fined, he refused to admit evidence of prior assaults by the victim on persons other than the accused and also statements made to those persons by the victim to the effect that he would kill the accused. These assaults had occurred some 8 months prior to the victim’s death. Keith had entered the property of the victim, who was his neighbour, in order to retrieve a bull that had strayed on to the victim’s property. The accused had taken a shotgun with him to protect himself and, if necessary, to shoot the bull. While

attempting to effect his purpose, the accused was confronted by the victim, a bigger and stronger man, of whom the accused was frightened. As the victim advanced towards the accused, the latter shot and killed him. The majority dismissed the appeal, agreeing with the trial judge that the evidence that had been excluded was too remote.155 13.94 Domestic violence Evidence of the victim’s prior conduct will have special significance in the context of offences committed by one spouse against another in circumstances of domestic violence. Expert evidence relating to battered spouse syndrome has been held to be admissible in respect of provocation, duress and self-defence.156 [page 319] 13.95 Subjective analysis The second element, as noted above, in the Code (Qld) s 271(2) is that the accused must believe, on reasonable grounds, that he or she cannot otherwise preserve the person defended from death or grievous bodily harm. Clearly, the requirement that the accused have that belief imports a subjective analysis into the provision.157 If the belief is present, and if it is based on reasonable grounds, there is no requirement for a test of reasonableness to be applied to the amount of force that may be used by the accused. In other words, the level of force used will be justified if the accused believes the force is necessary for him or her to survive the assault on him or her. There is no requirement that the level of force be objectively necessary.158 13.96 Need for retreat In Johnson [1964] Qd R 1, Stanley J thought the word ‘otherwise’ was wide enough to include the question of the accused’s retreat from the scene as a possible alternative to using force. The need to retreat is not specifically mentioned in the Code (Qld) s 271, although it does arise in the Code (Qld) s 272 for selfdefence against provoked attack. Nevertheless, if the accused had an opportunity to retreat reasonably open, the jury may find that the

belief in the necessity to use the force in fact used may not be based on reasonable grounds.159

Provoked assault 13.97 Apprehension and belief that force is necessary The foregoing has been concerned with self-defence against an unlawful assault that was unprovoked by the accused. The Code (Qld) s 272 is relevant when the accused has initiated the conflict by provoking or by unlawfully assaulting the victim. Under the Code (Qld) s 272(1), the accused may still rely on self-defence, provided the victim’s response is sufficient to cause the accused to have reasonable apprehension of death or grievous bodily harm, and provided the victim’s response is sufficient to induce the accused to believe, on reasonable grounds, that the use of force is necessary in order to preserve himself or herself from death or grievous bodily harm.160 The provision therefore requires proof of two states of mind in the accused; that is, the apprehension and the belief that force is necessary. These are to be subjectively determined. Additionally, they have to be objectively reasonable in the circumstances.161 If those conditions are satisfied, then, subject to the requirements of the proviso in the Code (Qld) s 272(2), the accused will not be criminally responsible for the use of such force as is reasonably necessary for his or her preservation. This extends to the use of force that may cause death or grievous bodily harm. Unlike the situation in the Code (Qld) s 271(2), the level of force [page 320] that the accused may use must be ‘reasonably’ necessary and, therefore, must be assessed objectively.162 13.98 Limitations on defensive force Limitations are placed on the use of defensive force by the accused against a provoked assault. These are found in the three clauses of the Code (Qld) s 272(2). The first clause denies the availability of the section to the accused where

initial provocation or assault to the victim was by the use of force accompanied by an intent to kill or do grievous bodily harm. The second clause does so where this degree of force was used by the accused before the need to do so became necessary. The third clause places an obligation on the accused to decline further conflict and to retreat. 13.99 Need for retreat The requirement for the accused to retreat is not included in express terms in the Code (Qld) s 271, but has been imported into that section for the jury to consider when assessing the reasonableness of the accused’s behaviour.163 The extent of the operation of the retreat clause of the Code (Qld) s 272 is unclear. Hart J in Muratovic [1967] Qd R 15 implied that the clause, literally interpreted, had application only to a person who, within the terms of the second paragraph, used murderous violence initially, or before it was necessary to do so. Although initially disqualified from relying on the defence in the section, such a person would requalify by satisfying the terms of the third clause. On the other hand, Stanley J in Johnson [1964] Qd R 1 at 28 indicated that the clause applied to the whole of the Code (Qld) s 272, including the first paragraph. On that view, the accused, once disqualified by falling within the terms of the first and second clauses of the second paragraph, cannot requalify at all. In Randle (1995) 15 WAR 26; 81 A Crim R 113, the first of those approaches was adopted by the Western Australian Court of Criminal Appeal, Malcolm CJ stating at A Crim R 124: … despite the fact that the first two clauses of the second paragraph of s 249 state cases where the protection would not be available in any event, the effect of the final clause is to qualify that absence of protection by stating particular circumstances under which the defence will nonetheless be available in either of those two cases.164

A further unresolved matter with respect to the third clause in the Code (Qld) s 272(2) is the scope of the words ‘as far as was practicable’. Clearly, they apply to the words ‘quitted’ and ‘retreated’ and, in Randle at 124, the opinion was expressed that they also qualify the declining of further conflict by the accused.165

Western Australia: self-defence, defence of another and

excessive self-defence — s 248 13.100 In 2009, significant amendments were made to the law relating to self-defence in Western Australia. The requirement for an assault was removed, [page 321] and the distinction between self-defence following a provoked and an unprovoked assault was also removed. 13.101 The current provision in the Code (WA) s 248 requires the accused to be defending himself or herself, or another person, from a ‘harmful act’, which is defined in s 248(1) as an act that is an element of an offence under Pt V of the Code (WA), with the exception of Ch XXXV (criminal defamation). The accused cannot raise self-defence in response to a harmful act that is lawful. 13.102 The Code (WA) s 248(4) sets out the elements of the defence. This reflects a combined subjective/objective approach to the defence. Under s 248(4)(a), the accused must believe that his or her own harmful act ‘is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent’. Therefore, another change due to the amendments is to remove the requirement of imminence of the threat to the accused. This requirement therefore refers to the accused’s belief as to the need to use force at all and it is likely that the authorities cited at 13.94 are relevant to this assessment. Additionally, the opportunity to retreat may be considered relevant here. The second provision imports an additional requirement of proportionality of force, which appears to be absent from the Queensland provisions: see 13.96. The Code (WA) s 248(4)(b) requires that the accused’s harmful act be a ‘reasonable response in the circumstances as the person believes them to be’. It is likely that evidence of domestic violence will be relevant to both s 248(4)(a) and (b): see 13.95. Both provisions are subject to an underlying objective assessment; that the accused’s belief both as to

the need to use force at all, and the belief that the amount of force used was reasonable, be based upon reasonable grounds. The West Australian Court of Appeal recently considered the proper construction of s 248(4) in Goodwyn v State of Western Australia (2013) 45 WAR 328. In that case, the appellant contended that the section does not require that the apprehended threat to which the accused responds be based on reasonably objective grounds. Martin CJ noted at [2]–[3] that this argument is flawed because it suffers from: … the misconception that s 248(4)(a) involves two discrete and divisible components, that is, a belief as to the apprehended threat, and a belief as to whether a particular act is necessary to defend against that threat. As Buss JA points out, s 248(4) refers to only one belief — namely, that the act committed by the accused is necessary to defend the accused or another person from a harmful act. That belief must be held subjectively by the accused, and, by reason of s 248(4)(c), there must be reasonable grounds for that belief.

Martin CJ noted that because of the way s 248(4) is structured, it is not possible to conceive of a situation in which the accused’s subjective belief that his or her response was a necessary one to an apprehended threat was based on objectively reasonable grounds without there also been objectively reasonable grounds for the apprehension of the threat — the two conditions cannot be segregated.166 [page 322]

Excessive force 13.103 In common law jurisdictions, where a plea of self-defence failed solely because death resulted from force in excess of what was necessary in the circumstances for the accused’s protection and where there was no reasonable basis for the accused’s belief in the need to use such force, it used to be the case that a verdict of manslaughter could be returned on an indictment for murder.167 The reason for this was that the requisite state of mind for murder at common law, malice aforethought, was not present. This approach no longer applies in

common law jurisdictions in Australia.168 The Code (Qld) does not incorporate excessive self-defence, but Western Australia has recently introduced this as a partial defence to murder: see 12.99.

Mistaken belief in force required 13.104 A mistake of fact by the accused in respect of the amount of force required will enable reliance to be placed upon the Code (Qld) and (WA) s 24, but only in respect of the Code (Qld) s 271(1) and (WA) s 248(4). Where the accused acts under an honest and reasonable but mistaken belief in the existence of a state of things, s 24, in conjunction with that paragraph in the Code (Qld) s 271 and (WA) s 248, will provide an excuse. However, s 24 will have a limited role in respect of the Code (Qld) ss 271(2) and 272 because those provisions, in express terms, require that the accused have a belief on reasonable grounds.169

Defence of another 13.105 The Code (Qld) s 273 and (WA) s 248(3) and (4) enable a person to use force in defence of another. Under the Queensland Code, if it is lawful for a person to use an amount of force in selfdefence, anyone helping that person in good faith may use the same amount of force to defend that person. The person assisted must have been actually threatened, because it is such a threat that would justify that person using force in self-defence.170 There is no requirement that there be any special relationship between the person accused of applying force and the person assisted. In White v Conway (CCA(Qld), 26 August 1991, No 37 of 1991, unreported), the accused and another youth approached the victim from behind and the accused pushed or punched the victim in the back. The victim turned and took defensive action by placing the other youth, not the accused, in a headlock. The accused then sought to break the victim’s grip on the other youth and did so by punching the victim in the face. He was convicted of assault occasioning bodily harm although he had relied upon the excuse of aiding in self-defence. The provision was potentially available, but it

was held that it did not apply to the accused because he was not acting in good faith. This finding was based on the [page 323] initial aggression by the accused to the victim, thereby provoking the victim into applying force to the other youth.171 13.106 Under the Code (WA) s 248(4), the elements for self-defence are the same, whether it be of the accused himself or herself, or of another person. 13.107 The Code (Qld) s 31(1)(c) provides justification for the use of force similar to that which arises with self-defence: see 8.153. The provision enables the accused to escape criminal responsibility for doing an act that is reasonably necessary to resist actual and unlawful violence threatened to him or her or to another person in his or her presence. The term ‘violence’ is not defined but, obviously, it involves a degree of force, a threat of which must be both actual and unlawful. In White v Conway, it was held that, where the victim is using force to protect himself or herself in legitimate self-defence, an assault upon the victim will not be excused under this provision because the victim is not acting unlawfully. The Code (Qld) s 273 requires that, where an accused aids another person in self-defence, that other person must be in a position where it is lawful for that person to use self-defence. Accordingly, that other person must have actually been assaulted. That limitation does not apply to the Code (Qld) s 31(1)(c), where it is sufficient if the person protected is in the accused’s presence. 13.108 The Code (WA) s 243 provides a further similar defence specific to the acts of mentally impaired persons. Thus, it is lawful for the accused to use such force as is reasonably necessary to prevent a person whom the accused believes, on reasonable grounds, to be mentally impaired from doing violence to any person or property. It is likely that the same approach to the term ‘violence’ will be adopted as already noted: see 13.127.

Protection of property 13.109 In addition to those provisions that justify the use of force to protect the person, the Codes provide a range of circumstances where force may be used for the protection of property. The provisions include: (Qld) s 267 and (WA) s 244 — defence of a dwelling;172 (Qld) s 274 and (WA) s 251 — defence by a person in peaceable possession of movable property against trespassers;173 (Qld) s 275 and (WA) s 252 — defence of movable property with a claim of right; (Qld) s 276 and (WA) s 253 — defence of movable property without a claim of right; (Qld) s 277 and (WA) s 254 — defence of premises against trespassers; (Qld) s 278 and (WA) s 255 — defence of place in peaceable possession; and (Qld) s 279 and (WA) s 256 — defence of rights of way and easements. [page 324]

Reasonable force 13.110 As with self-defence, it is reasonableness which provides the measure of force that can be used by the accused. However, with the exception of defence of a dwelling, a further limitation is imposed, in that the accused may not do grievous bodily harm (Queensland) or bodily harm (Western Australia).174 Further, with some of the Western Australian provisions, the accused may not use force that is intended or likely to cause death or grievous bodily harm.175 13.111

Dwelling In relation to a dwelling, the occupant may use

force that he or she believes on reasonable grounds to be necessary, but the other limitations do not apply. The Code (Qld) s 267 reads: It is lawful for any person who is in peaceable possession of a dwelling, and any person lawfully assisting him or her acting by his or her authority, to use force to prevent or repel another person from unlawfully entering or remaining in the dwelling, if the person using the force believes on reasonable grounds — (a) the other person is attempting to enter or to remain in the dwelling to commit an indictable offence in the dwelling; and (b) it is necessary to use that force.

That is also the case with the Code (WA) s 244, which provides for defence against home invasion. The provision reads: (1) It is lawful for a person (the occupant) who is in peaceable possession of a dwelling to use any force or do anything else that the occupant believes, on reasonable grounds, to be necessary — (a) to prevent a home invader from wrongfully entering the dwelling or an associated place; (b) to cause a home invader who is wrongfully in the dwelling or on or in an associated place to leave the dwelling or place; (c) to make effectual defence against violence used or threatened in relation to a person by a home invader who is — (i) attempting to wrongfully enter the dwelling or an associated place; or (ii) wrongfully in the dwelling or on or in an associated place; or (d) to prevent a home invader from committing, or make a home invader stop committing, an offence in the dwelling or on or in an associated place. (2) A person is a home invader for the purposes of subsection (1) if the occupant believes, on reasonable grounds, that the person — (a) intends to commit an offence; or (b) is committing or has committed an offence, in the dwelling or on or in an associated place. (3) The authorisation conferred by subsection (1)(a), (b) or (d) extends to a person assisting the occupant or acting by the occupant’s authority. (4) Section 250176 applies to the authorisation conferred by subsection (1)(c).

[page 325] (5) This section has effect even if the conduct it authorises would not otherwise be authorised under this Chapter. (6) In this section — associated place means —

(a) any place that is used exclusively in connection with, or for purposes ancillary to, the occupation of the dwelling; and (b) if the dwelling is one of 2 or more dwellings in one building or group of buildings, a place that occupants of the dwellings use in common with one another; offence means an offence in addition to any wrongful entry; place means any land, building or structure, or a part of any land, building or structure.

With these provisions, the use of force by the accused will be lawful provided he or she has an actual belief that the amount of force was necessary, such belief being based on reasonable grounds.177 Clearly, the provision envisages a situation that justifies an increasing level of defensive force in proportion to the level of the threat presented by the intruder.

Dangerous operation of a vehicle (Qld) and dangerous driving (WA) 13.112 The law of each state makes the dangerous driving of a motor vehicle punishable, with heavier penalties applying where the driving results in death or grievous bodily harm (Queensland) or death, grievous bodily harm or bodily harm (Western Australia). In Queensland, the offence is in the Code s 328A and extends to the dangerous operation of a range of vehicles as well as to, in any way, interfering with the operation of a vehicle. In Western Australia, offences are in the Road Traffic Act 1974 (WA) ss 59, 59A and 61. These offences focus on both actual and potential danger to the life, health or safety of others and require proof that the accused was driving in a manner dangerous to the public. With all of these offences, the accused is liable to disqualification of his or her driving licence.178

Penalties and procedure Queensland 13.113

Under the Code (Qld) s 328A, dangerous operation of, or

interference with the operation of, a vehicle is a misdemeanour punishable by a fine of 200 penalty units179 or imprisonment for 3 years.180 Heavier penalties apply where the accused was affected by an intoxicating substance, excessively speeding, unlawfully racing or has been convicted previously of dangerous operation of a vehicle.181 Where the accused causes the death of or grievous bodily harm to another person, the offence becomes a crime and he or she is liable to imprisonment for 10 years [page 326] with heavier penalties being imposed where the accused was adversely affected by an intoxicating substance, excessively speeding, unlawfully racing or, if he or she knew or ought reasonably to have known the other person has been killed or injured, left the scene other than to obtain medical or other help for the other person, before a police officer arrives.182 13.114 Where the offence arises under the Code (Qld) s 328A(1), that is, without any circumstance of aggravation, the matter may be summarily determined. It can proceed in that manner if the defendant so elects and the magistrate considers that the defendant can be adequately punished on summary conviction.183 On summary conviction, the defendant is liable to a fine of 100 penalty units or to imprisonment for 3 years.184

Western Australia 13.115 Under the Road Traffic Act 1974 (WA) s 61, an accused who drives a motor vehicle in a manner (which expression includes speed) that is, having regard to all the circumstances of the case, dangerous to the public or to any person, commits an offence that is punishable on summary conviction with a fine, in the case of a first offence, of 60 penalty units and, in the case of a subsequent offence, with a fine of 120 penalty units or imprisonment for 9 months.185 If the offence is

committed in a circumstance of aggravation, then a fine of 720 penalty units or imprisonment for 3 years may be imposed. 13.116 The offence of dangerous driving causing bodily harm is found in s 59A of that Act and the accused is liable on summary conviction to a fine, for a first offence, of 180 penalty units or imprisonment for 9 months and, for a subsequent offence, to a fine of 360 penalty units or imprisonment for 18 months.186 If committed in a circumstance of aggravation, this becomes a crime punishable by a fine of any amount or 10 years’ imprisonment although, if determined summarily, it is punishable by a fine of 720 penalty units or imprisonment for 3 years. Circumstances of aggravation are that the vehicle was driven without the consent of the owner; or at a speed that exceeded, by more than 45 km/h, the applicable speed limit; or to escape pursuit by a member of the police force.187 13.117 Under the Road Traffic Act 1974 (WA) s 59, the accused commits a crime where the dangerous driving causes the death of, or grievous bodily harm to, another person.188 The accused is liable, upon summary conviction, to a fine [page 327] of 730 penalty units or imprisonment for 3 years, where the incident does not occasion the death of another. Conviction on indictment is punishable by a fine of any amount, and 10 years’ imprisonment if the person has caused the death of another, and 7 years’ imprisonment if the person has caused grievous bodily harm. In the latter case, if the offence is committed in circumstances of aggravation the person is liable to 20 years’ imprisonment if death has resulted, and 14 years’ imprisonment if grievous bodily harm has been caused.189

Definition of ‘vehicle’ 13.118 The type of vehicle embraced by the Code (Qld) s 328A is extremely wide because of various definitions in the Code (Qld) s 1.

The term ‘vehicle’ is defined to include a motor vehicle, motor cycle, train, aircraft, vessel or anything else used or to be used to carry persons or goods from place to place. The term ‘motor vehicle’ is defined as including any machine or apparatus designed for propulsion wholly or partly by gas, motor spirit, oil, electricity, steam or other mechanical power; the term also includes a motor cycle, or a caravan, caravan trailer or other trailer designed to be attached to a motor vehicle. It is immaterial whether the machine or apparatus is incapable of use through mechanical defect or whether any part or parts thereof have been removed for any purpose or by any person. The term ‘vessel’ is defined to include a ship, boat, and every other kind of vessel used in navigation, while ‘ship’ includes every kind of vessel used in navigation not propelled by oars. 13.119 In Western Australia, the term ‘motor vehicle’ is defined to mean a self-propelled vehicle that is not operated on rails, and the expression includes a trailer, semi-trailer or caravan while attached to a motor vehicle but does not include a power-assisted pedal cycle.190 13.120 In order for liability to arise in Western Australia, the accused must be found to have been ‘driving’ the vehicle at the time. In Robinson (1991) 14 MVR 381; 56 A Crim R 133, the accused had pulled over to a stationary position when the lights of his truck failed, without moving off the carriageway and without activating any emergency lights. He appealed against his conviction for manslaughter, claiming that the Road Traffic Act 1974 (WA) s 59 should have been available. The court held that this alternative was not available as he was not ‘driving’ at the time, suggesting that the Road Traffic Act provisions will not apply where the person has taken steps to put the vehicle into a stationary position.

Circumstances in which offence was committed 13.121 In Queensland, the offence may be committed in almost any place. The only exception is a place being used to race or test vehicles and from which other traffic is excluded at that time.191 However, to ‘operate, or in any way to interfere

[page 328] with the operation of the vehicle dangerously’ requires the satisfaction of a public element of the offence, in that it requires proof that it was done at a speed or in a way that is dangerous to the public, having regard to all the circumstances, including the following which are listed in the Code (Qld) s 328A(6): (a) the nature, condition and use of the place; and (b) the nature and condition of the vehicle; and (c) the number of persons, vehicles or other objects that are, or might reasonably be expected to be, in the place; and (d) the concentration of alcohol in the operator’s blood; and (e) the presence of any other substance in the operator’s body.

The term ‘public’ is defined to include passengers in a vehicle, whether in a public or private place.192 13.122 In Western Australia, the Road Traffic Act 1974 (WA) ss 59, 59A and 61 require that the driving be dangerous to the public, but those provisions are to be read with s 73 of that Act, which provides that a reference to the driving of, or attempting to drive, a motor vehicle shall be construed as a reference to the driving of, or attempting to drive, a motor vehicle on a road or in any place to which the public is permitted, whether on payment of a fee or otherwise, to have access, and a reference to a driver is to be construed accordingly. The term ‘road’ is then given further definition as meaning any highway, road or street open to, or used by, the public and includes every carriageway, footway, reservation, median strip and traffic island thereon.193 13.123 For the purposes of ss 59 and 59A, the Road Traffic Act 1974 (WA) s 59B(1) and (2) provide that the circumstances in which a motor vehicle is involved in an incident occasioning the death of, or grievous bodily harm or bodily harm to, a person include those in which the death or harm is occasioned through the motor vehicle overturning or leaving a road while the person is being conveyed, whether as a passenger or otherwise; the person falling from the motor vehicle; an

impact between any object or thing and the motor vehicle; an impact between the person and the motor vehicle; an impact of the motor vehicle with another vehicle; an impact with any object on or attached to the motor vehicle; or an impact with any object that is in motion through falling from the motor vehicle. Together these provisions mean that the scope of the offences is potentially very wide.

Scope of public place 13.124 Judicial recognition has been given to the legislative intention, as revealed in the above provisions, to give broad ambit to the nature of the places to which the offences relate.194 The offence has been held to have been committed in places such as: the driveway of a caravan park;195 [page 329] an access track to a rubbish dump;196 a hotel car park;197 and a wharf area.198

Dangerous nature of operation 13.125 The dangerous nature of the vehicle’s operation is determined objectively in accordance with principles quite distinct from the concept of criminal negligence.199 13.126 In McBride (1966) 115 CLR 44, with reference to a similar offence in the Crimes Act 1900 (NSW) s 52A, Barwick CJ said at 49–50: The section speaks of a speed or manner which is dangerous to the public. This imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place. It may be, of course, that potential danger to property on or in the vicinity of that roadway would suffice to make the speed or

manner of driving dangerous to the public. While the immediate result of the driving may afford evidence from which the quality of the driving may be inferred, it is not that result which gives it that quality. A person may drive at a speed or in a manner dangerous to the public without causing any actual injury: it is the potentiality in fact of danger to the public in the manner of driving, whether realised by the accused or not, which makes it dangerous to the public within the meaning of the section. This concept is in sharp contrast to the concept of negligence. The concept with which the section deals requires some serious breach of the proper conduct of a vehicle upon the highway, so serious as to be in reality and not speculatively, potentially dangerous to others. This does not involve a mere breach of duty, however grave, to a particular person, having significance only if damage is caused thereby. The distinctions make it imperative that the jury be specifically directed as to the criteria to be applied and the distinctions to be observed in determining whether any particular speed or manner of driving can have the quality, intrinsic or occasional, of being dangerous to the public within the meaning of the section; and that the particular features of the driving charged as in breach of the section be isolated for the jury and related to these criteria.

Accordingly, it is the jury that must determine whether, in all the circumstances, the vehicle was being driven in a manner, actually or potentially, dangerous to the public.200 In Quigley v Becker (1997) 25 MVR 564, the defendant was convicted of dangerous driving under the Road Traffic Act 1974 (WA) s 59A, the magistrate having found that the defendant had failed to live up to the standard of the reasonable and prudent driver. On appeal, it was held that the test used by the magistrate was one that related to negligence rather than to dangerous driving. [page 330] That test is inappropriate, as not all negligent driving will constitute dangerous driving. There must have been, in reality and not speculatively, driving that was actually or potentially dangerous to the public.201

Causation 13.127 Where the prosecution alleges that the dangerous operation of the vehicle has caused death or grievous bodily harm, or additionally, in Western Australia, bodily harm, an issue of causation

arises. Reference has been made elsewhere to the concept of causation: see 12.18 and 12.19. In line with what has been already said, the dangerous driving must be a substantial or significant contributing cause to the result alleged. Provided the dangerous driving is a substantial cause, it is not relevant that there was contribution by another to the relevant injury.202 13.128 It is worth repeating here that the courts have emphasised the need for a common sense approach to the question of causation; in the words of the Court of Criminal Appeal of Western Australia in Campbell [1981] WAR 286 at 290:203 It would seem to me to be enough if juries were 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.

13.129 The Road Traffic Act 1974 (WA) ss 59 and 59A outline principles of causation similar to those applicable to homicide.204 Thus, the accused causes the death, grievous bodily harm or bodily harm whether it is done directly or indirectly. It is immaterial that the death, grievous bodily harm or bodily harm might have been avoided by proper precaution on the part of the victim or have been prevented by proper care or treatment of the victim; for example, where the victim was a passenger and was not wearing a seat-belt.205 Additionally, in s 59 of that Act, where the accused has caused grievous bodily harm to a victim who then received surgical or medical treatment and death has resulted either from the harm or the treatment, the accused is deemed to have caused the death of the victim, even though the immediate cause of death was the surgical or medical treatment, if the treatment was reasonably proper in the circumstances and applied in good faith. These provisions reflect the general principles of causation which will also have application under the Queensland Code.

Excuse or justification 13.130

It is sometimes said that fault on the part of the driver must

be established in order to show that the driving was dangerous. However, fault is not an element [page 331] that must be established by the prosecution in discharging the burden of proof. Rather, if the accused is able to satisfy the evidential onus in respect of some matter of excuse or justification that shows that there was an absence of fault, the prosecution must exclude the applicability of such an excuse or justification.206 Thus, the following circumstances may be relied upon: extraordinary emergency;207 mistake of fact such as the reasons for driving in the wrong direction on a oneway highway;208 or a mechanical defect of which the accused had no knowledge.209

Involuntariness 13.131 Under the Code (Qld) s 23(1)(a) and (WA) s 23A, involuntariness may also be relevant where the driver is not consciously controlling the vehicle; for example, where the driver is asleep. In such a case, the relevant time for determining whether the driving is dangerous is the period immediately prior to the point where the driver fell asleep. Where there is evidence suggesting the driver honestly believed on reasonable grounds that it was safe to drive and there is no evidence that there was any warning of the onset of sleep, reliance can be placed upon mistake of fact under the Code (Qld) s 24(1) and (WA) s 24.210

Alternative verdict 13.132 Pursuant to the Code (Qld) s 328B, the offence in s 328A, with or without the circumstances of aggravation, is available as an alternative verdict upon an indictment charging a person with any

offence in connection with, or arising out of, the driving of a motor vehicle, if such an offence is established by the evidence. Thus, if the accused were charged with manslaughter where the death occurred through the dangerous driving of a motor vehicle, he or she may be found not guilty of that offence but guilty under s 328A.211 13.133 Similarly, the Road Traffic Act 1974 (WA) enables the accused to be convicted of a lesser offence in the following way: careless driving under s 62 of the Act as an alternative verdict to dangerous driving under s 61; [page 332] careless driving under s 62 of the Act or dangerous driving under s 61 of the Act as alternative verdicts for dangerous driving causing bodily harm under s 59A; and any of those verdicts under ss 59A, 61 or 62 as alternatives on a charge under s 59 of the Act. 13.134 Under the Code (WA), dangerous driving causing death is an alternative verdict on an indictment charging murder or manslaughter: see the Code (WA) s 279(1) and s 280 respectively. Also, dangerous driving causing grievous bodily harm is an alternative verdict on an indictment charging a person with the crime of doing grievous bodily harm: see Code (WA) s 297.

Cases involving death 13.135 In the case where there has been a death arising out of the use of a vehicle, the prosecution must choose between charging the accused with unlawful killing or with an aggravated form of dangerous driving. In that regard, Campbell J, in Wooler [1971] QWN 10, said:212 It seems to be the rule rather than the exception in Queensland when the police prefer a charge against a person arising out of a death following a road accident to charge that

person with manslaughter and for magistrates, if they commit at all, to commit him for trial on that charge. Manslaughter is an alternative charge to murder, and should be reserved for the most serious cases. The more appropriate charge in most instances is dangerous driving causing death under s 328A of the Criminal Code. This section is based on s 1 of the Road Traffic Act 1960 (the Imperial Act), as to which I would like to draw the attention of the profession to a note in Archbold (37th ed), para 2818: ‘It would seem that this offence is not intended to be used as an alternative and second charge to manslaughter, but is intended to be used as a substitute for it, and that charges of manslaughter arising from the driving of a motor-vehicle should now be preferred only in the most serious cases where the offence approximates to murder, eg where a policeman is knocked down by the reckless driver of a stolen car’.

_________________________________ 1.

Code (Qld) s 339; (WA) s 317.

2. 3.

Code (Qld) ss 317(e), 320; (WA) ss 294(1), 297. Code (Qld) s 320A.

4. 5.

Code (Qld) s 323; (WA) ss 294(1), 301. Code (Qld) s 328A; Road Traffic Act 1974 (WA) s 59.

6. 7.

Road Traffic Act 1974 (WA) s 59A. Code (Qld) s 323A; (WA) s 306.

8. 9.

Code (Qld) ss 335–338A, 340, 412–413; (WA) ss 313, 317A, 318, 318A. Code (Qld) s 359A; (WA) s 338E.

10. Code (Qld) s 328A; Road Traffic Act 1974 (WA) s 61. 11. Code (Qld) ss 315–319A, 321–322, 324–327; (WA) ss 292–295, 304. 12. See Code (Qld) ss 268–273; (WA) ss 245–250. 13. See Code (Qld) s 335. 14. See Code (WA) s 313. For circumstances of aggravation, see Code (WA) s 221; 13.8. 15. Code (Qld) s 351. 16. Code (Qld) s 352. For circumstances of aggravation, see Code (Qld) s 352(2); 14.37. 17. Code (Qld) s 338. 18. Code (Qld) s 338A. 19. Code (Qld) s 339. 20. Code (Qld) s 346. 21. Code (Qld) s 413. 22. Code (Qld) s 412. 23. Included conduct is biting, spitting and throwing bodily fluids or faeces: Code (Qld) s 340(2A). 24. Penalty and Sentences Act 1992 (Qld) ss 108A, 108B. 25. Code (WA) s 317. Circumstances of aggravation for this provision are those in which: (a) the offender is in a family and domestic relationship with the victim of the offence; (b) a

child was present when the offence was committed; (c) the conduct of the offender in committing the offence constituted a breach of an order made or registered under the Restraining Orders Act 1997 (WA) or to which that Act applies; or (d) the victim is of or over the age of 60 years: Code (WA) s 221. 26. Code (WA) s 317A. For circumstances of aggravation for this provision, see n 25 above. 27. Code (WA) s 318A. 28. Code (WA) s 393. See also robbery at 15.72. 29. For this provision, circumstances of aggravation are those in which: (a) immediately before or at or immediately after the commission of the offence: (i) the offender is in company with another person or persons; (ii) the offender does bodily harm to any person; or (iii) the offender threatens to kill any person; or (b) the person to whom violence is used or threatened is of or over the age of 60 years: see Code (WA) s 391. 30. For ‘public officer’, see Code (WA) s 1. 31. Criminal Code (WA) Amendment Act No 21 of 2009. Mandatory sentencing also applies to s 297 offences. 32. In relation to persons aged 18 years or over, the offender must be sentenced to a minimum custodial sentence of 6 months (s 318) or 12 months (s 297). 33. Code (Qld) s 552A(1)(b); see 4.11. 34. Code (Qld) ss 552B(1)(h), 552D; see 4.11. For circumstances of aggravation, see Code (Qld) s 352(2); 14.37. 35. Code (WA) s 313. 36. See Code (WA) s 5(3); and, for the relevant criteria to be considered by the court, see 4.12. 37. Code (WA) s 317. For circumstances of aggravation, see Code (WA) s 221; 13.8. 38. Code (WA) s 317A. 39. Code (WA) s 318. 40. DPP v K [1990] 1 All ER 331; 1 WLR 1067. 41. Code (Qld) s 246(1); (WA) s 223. 42. See also Fagan v Metropolitan Police Commissioner [1969] 1 QB 439 at 440. 43. See Hall v Fonceca [1983] WAR 309 at 311, 313; Burton v Davies and General Accident Fire and Life Assurance Corp Ltd [1953] St R Qd 26 at 29; Fogden v Wade [1945] NZLR 724 at 728; for intention, see 8.33. 44. See Majewski [1976] 2 All ER 142, where the House of Lords distinguished between offences of basic intent (including assault) and offences of specific or ulterior intent; and Kusu [1981] Qd R 136. 45. The definition of ‘consent’ in the Code (Qld) s 348 and (WA) s 319 applies only to sexual offences: see 14.11, 14.12. 46. See Ferguson [1995] 2 Qd R 490; Collins v Wilcock [1984] 1 WLR 1172 at 1177; Re F [1990] 2 AC 1 at 72–3; and DMC (2002) 137 A Crim R 246. 47. See Criminal Code (Tas) s 182(3). To similar effect is Criminal Code (NT) s 187(e). 48. See also Brennan J at 434. 49. See Boughey (1986) 161 CLR 10; 65 ALR 609.

See Murray v McMurchy [1949] 2 DLR 442. Note, however, that there may be other 50. justifications for the contact, particularly in relation to medical interventions. Note also the impact of the duty provisions on the scope of assault, discussed in Brightwater Care Group v Rossiter (2009) 40 WAR 84. 51. See Brady v Schatzel [1911] St R Qd 206 at 13.21. 52. See Everingham (1949) 66 WN (NSW) 122. 53. See McNamara [1954] VLR 137 at 138. 54. See also St George (1840) 9 C & P 483. 55. See Dale [1969] QWN 30; Everingham (1949) 66 WN (NSW) 122; Rozsa v Samuels [1969] SASR 205; Ryan v Kuhl [1979] VR 315; Lees v Visser (2000) 9 Tas R 103; 109 A Crim R 382 at 386–7. 56. See Pemble (1971) 124 CLR 107; [1971] ALR 762. 57. Criminal Code (Tas) s 182(1); Lees v Visser (2000) 9 Tas R 103; 109 A Crim R 382 at 386–7. 58. Cotter [1974] 2 QL 265; Barton v Armstrong [1969] 2 NSWR 451; MacPherson v Brown (1975) 12 SASR 184 at 197; but note MacPherson v Beath (1975) 12 SASR 174 at 177. 59. It should be noted that the definition of ‘assault’ in the Code (NT) s 187 enables an assault to be constituted by words alone. 60. See also Barton v Armstrong [1969] 2 NSWR 451 at 455; Zanker v Vartzokas (1988) 34 A Crim R 11; but note MacPherson v Beath (1975) 12 SASR 174 at 177. 61. See Knight (1988) 35 A Crim R 314; Barton v Armstrong [1969] 2 NSWR 451 at 454, 455; Zanker v Vartzokas (1988) 34 A Crim R 11 at 16; Ireland [1997] 1 FLR 687 (Eng). Threats made via telephone may amount to an offence under s 474 of the Criminal Code (Cth). 62. See Fogden v Wade [1945] NZLR 724, but note the difference in wording in the statutory definition of ‘assault’ in the Crimes Act 1908 (NZ) s 207. 63. See also Police v Grieves [1964] NZLR 295; Barton v Armstrong [1969] 2 NSWR 451; and Zanker v Vartzokas (1988) 34 A Crim R 11. 64. See Tuberville v Savage (1669) 1 Mod 3; 86 ER 684. 65. See Gardner v Caporn [2005] WASCA 153, discussed in Whitehead v Procopis (2005) 156 A Crim R 67 at 76–9. 66. See Raabe [1985] 1 Qd R 115; Watson [1987] 1 Qd R 440; Kirkpatrick v Tully [1991] 2 Qd R 291; Lergesner v Carroll [1991] 1 Qd R 206; in the context of assault in a sporting contest, see Maki (1970) 1 CCC (2d) 333; McAvaney v Quigley (1992) 58 A Crim R 457; Watherston v Woolven (1987) 139 LSJS 366; Holmes [1993] 2 Tas R 232. 67. See Lergesner v Carroll [1991] 1 Qd R 206. 68. For discussion on causation, see Whitehead v Procopis (2005) 156 A Crim R 67 at 71, 72. 69. See Code (WA) ss 252, 254(3), 255, 256. The equivalent provisions in Code (Qld) ss 274– 279 were amended in 1997 by substituting ‘grievous bodily harm’ for ‘bodily harm’. 70. See Scatchard at 141. In Chan-Fook [1994] 1 WLR 689 at 696, bodily harm under the Offences Against the Person Act 1861 (UK) s 47 included a psychiatric injury, provided it was an identifiable clinical condition. 71. See also Biddle v Dimmock (CCA(Qld), 21 August 1992, No 136 of 1992, unreported); Herpich v Martin [1995] 1 Qd R 359.

72. Note at 13.8 that s 318 assaults against police officers now attract a mandatory custodial penalty. 73. For reference to the availability of the ‘defence’, see Reynhoudt (1962) 107 CLR 381 at 385, 389, 391, 395–6, 399, 408; [1962] ALR 483; and Conway (2005) 157 A Crim R 474. 74. ‘Property’ means property in which the person has an interest, whether or not the defendant also has an interest in the property; or property that is otherwise: (i) used and enjoyed by the person; or (ii) available for the person’s use or enjoyment; or (iii) in the person’s care or custody; or (iv) at the premises at which the person is residing: see Code (Qld) s 359A. For ‘interest’, see Acts Interpretation Act 1954 (Qld) s 36. 75. See Code (Qld) ss 552B(1)(k), 552D; 4.11. 76. See Code (Qld) ss 359E, 359F. 77. ‘Violence’ does not include any force or impact within the limits of what is acceptable as incidental to social interaction or to life in the community; and against a person includes an act depriving a person of liberty; and against property includes an act of damaging, destroying, removing, using or interfering with the property: see Code (Qld) s 359A. The term ‘threat’ is not defined. In Zaphir [1978] Qd R 151, threat was said to be ‘some sort of indication of intent to cause harm or damage’. 78. The term ‘circumstances’ is defined in Code (Qld) s 359A to mean the alleged stalker’s circumstances; the circumstances of the stalked person known, foreseen or reasonably foreseeable by the alleged stalker; the circumstances surrounding the unlawful stalking; and any other relevant circumstances. 79. ‘Detriment’ includes apprehension or fear of violence to, or against property of, the stalked person or another person; serious mental, psychological or emotional harm; prevention or hindrance from doing an act a person is lawfully entitled to do; compulsion to do an act a person is lawfully entitled to abstain from doing: see Code (Qld) s 359A. 80. For circumstances of aggravation, see Code (WA) s 221; 13.8. 81. See Code (WA) s 5(3); for the relevant criteria to be considered by the court, see 4.12. 82. Code (WA) s 338E(1); Hellings [2003] WASCA 208. 83. Code (WA) s 338E(3). 84. Code (Qld) ss 315, 316; (WA) ss 292, 293. 85. Code (Qld) s 316A; (WA) s 305A (intoxication by deception of food or drink). 86. Code (Qld) s 317(e)–(k); (WA) s 294(2)–(8). 87. Code (WA) s 304(2). 88. Code (Qld) s 317A; (WA) s 294A. 89. Code (Qld) ss 319, 319A, 329. 90. Code (Qld) s 320A. See Ping [2006] 2 Qd R 69. 91. Code (Qld) ss 321, 321A. 92. Code (Qld) ss 322, 323(1)(b). 93. Code (Qld) s 323A; (WA) s 306. 94. Code (Qld) s 324. 95. Code (Qld) ss 325, 326.

96. Code (Qld) s 327; (WA) s 305. 97. Code (Qld) s 328; (WA) s 304(1). See BBD [2007] 1 Qd R 478. 98. Code (Qld) s 330. 99. Code (Qld) ss 331, 332. 100. Code (Qld) s 333. 101. Code (Qld) s 334. 102. Code (Qld) s 317(e); (WA) s 294(1), (8). 103. Code (Qld) s 320; (WA) s 297. 104. Code (Qld) s 323(1)(a); (WA) s 301(1). 105. Code (Qld) s 328A; Road Traffic Act 1974 (WA) s 61. 106. Code (Qld) s 246; (WA) s 223. See also 13.18. 107. For ‘public officer’, see Code (Qld) s 1. Note that the Code (WA) s 1(4) includes serious disease within the definition of ‘grievous bodily harm’. 108. Code (WA) s 297. For circumstances of aggravation, see Code (WA) s 221; 13.8. 109. Code (WA) s 301(2). For circumstances of aggravation, see Code (WA) s 221; 13.8. 110. Code (Qld) s 320; (WA) s 297. 111. Section 1(4) also states that a reference to cause or intending to do grievous bodily harm includes a reference to intending to cause a person to have a serious disease. ‘Serious disease’ is defined in s 1 as a disease of such a nature as to (a) endanger, or be likely to endanger, life; or (b) cause, or be likely to cause, permanent injury to health. 112. The requirement may be met even though the injury is not permanent at the time of trial: see Houghton (2004) 28 WAR 399; 144 A Crim R 343 at 347. 113. See Miller [1954] 2 QB 282; Naismith [1961] 2 All ER 735. In King (2003) 139 A Crim R 132, a foetus, injured in an assault on the mother, was held to be part of the mother for the purposes of assessing grievous bodily harm to her under the Crimes Act 1900 (NSW) s 33. 114. See Charles (2001) 123 A Crim R 253 at 256; Steindl [2002] 2 Qd R 542. 115. Jervis [1993] 1 Qd R 643; Da Costa [2005] QCA 385. 116. See M’Loughlin (1838) 8 C & P 635; C (a minor) v Eisenhower [1984] QB 331. 117. See O’Neill [2013] WASCA 158. 118. For observations on intent in this context, see Reid [2007] 1 Qd R 64. 119. See Kendal and Clince [1984] WAR 150; Kuczynski [1990] 2 WAR 316. 120. See Code (Qld) s 317(k); Code (WA) s 294(7); Buckmaster [1917] St R Qd 30. For ‘disfigure’ and ‘disable’, see Boyce (1824) 1 Mood CC 29; James (1979) 70 Cr App R 215. 121. See Royall (1991) 172 CLR 378 at 390, 412–13, 425; 100 ALR 669; McAuliffe (1995) 183 CLR 108 at 119; 130 ALR 26; 12.20–12.24. 122. See also Kuczynski [1990] 2 WAR 316. 123. Legge [2014] WASCA 47. 124. See Code (Qld) s 246; (WA) s 223 for assault; Knutsen [1963] Qd R 157 at 163, 187; Kaporonovski [1972] Qd R 465 at 486; Kendal and Clince [1984] WAR 150; Houghton (2004) 28 WAR 399; 144 A Crim R 343 at 347–52, 362–8.

125. Houghton (2004) 28 WAR 399; 144 A Crim R 343 at 351. 126. See Prow [1990] 1 Qd R 64 at 68; Hall v Fonceca [1983] WAR 309; Houghton (2004) 28 WAR 399; 144 A Crim R 343 at 348; Criminal Code Act 1899 (Qld) s 6; Criminal Code Act 1913 (WA) s 5. 127. The provision refers to force that a citizen ‘may’ use. 128. Note Code (Qld) s 281; (WA) s 258 — discipline on vehicle (Queensland) and vessel or aircraft (Western Australia), which requires that the accused have a belief on reasonable grounds that the force was necessary and that the force be reasonable in the circumstances: see Lean (1989) 1 WAR 348; 42 A Crim R 149 at 151. 129. For ‘bodily harm’, see s 1; 13.30. 130. For ‘grievous bodily harm’, see s 1; 13.47. 131. See Prow [1990] 1 Qd R 64 at 66; Ellem (No 2) [1995] 2 Qd R 549 at 554; 13.92. 132. Code (Qld) s 269; (WA) s 246. 133. See Code (Qld) ss 335, 339; (WA) ss 313, 317. 134. See Kaporonovski (1973) 133 CLR 209; 1 ALR 296; Roche [1988] WAR 278; 12.68. 135. The Code (WA) s 245 is not subsectioned and is in almost identical terms but makes no reference to the relationship of master and servant. 136. The Code (WA) s 246 is in almost identical terms and is not subsectioned. 137. Van Den Hock (1986) 161 CLR 158; 69 ALR 1; Maher v State of Western Australia [2010] WASCA 156 per Pullin JA at [24]. 138. See 12.84–12.88; Verhoeven (1998) 101 A Crim R 24 at 28, 29. 139. McDavitt v McDavitt [2013] WADC 22. 140. McCauley [2009] QDC 298. 141. Code (Qld) s 268(4); (WA) s 245, fourth para. 142. Code (Qld) s 268(5); (WA) s 245, fifth para. 143. Code (Qld) s 268(3); (WA) s 245, third para. 144. Verhoeven (1998) 101 A Crim R 24 at 31–8. 145. Code (WA) s 248 includes the situation where the person is acting in defence of another. The Code (WA) s 248 also includes the use of excessive force in self-defence as a partial excuse to murder. 146. See Muratovic [1967] Qd R 15 at 28. 147. See Gray v Smith [1997] 1 Qd R 485; (1996) 87 A Crim R 454 at 459. 148. See Code (Qld) s 268; (WA) s 245; Prow [1990] 1 Qd R 64; Gray v Smith [1997] 1 Qd R 485; (1996) 87 A Crim R 454; Stanik (2001) 125 A Crim R 372 at 380–1. 149. See Gray (1998) 98 A Crim R 589 at 593; Young (2004) 142 A Crim R 571 at 573, 575, 576. 150. See Lawrie [1986] 2 Qd R 502 at 505; Stanik (2001) 125 A Crim R 372 at 391; Corker (2004) 146 A Crim R 33. 151. See Ellem (No 2) [1995] 2 Qd R 549; Kirkpatrick v Tully [1991] 2 Qd R 291; Biddle v Dimmock (CCA(Qld), No 136 of 1992, 21 August 1992, unreported); Hall v Fonceca [1983] WAR 309. 152. See Lawrie [1986] 2 Qd R 502 at 504.

153. See also Ellem (No 2) [1995] 2 Qd R 549; Mason (2005) 30 WAR 205 at 215–18. 154. A contrary view was expressed by McPherson JA in McKenzie (2000) 113 A Crim R 534 at 549. 155. See Masters (1986) 24 A Crim R 65; Ellem (No 2) [1995] 2 Qd R 549; (1994) 75 A Crim R 370 at 373–4. 156. For provocation, see 12.66–12.71; and for duress, see 8.154–8.166. For admissibility of battered spouse syndrome evidence, see Lavallee (1990) 55 CCC (3d) 97 (self-defence); Secretary (1996) 5 NTLR 96; 107 NTR 1 (self-defence); Ahluwalia [1992] 4 All ER 889 (provocation); Chhay (1994) 72 A Crim R 1 (provocation); Osland (1998) 197 CLR 316; 159 ALR 170 (provocation); Runjanjic and Kontinnen (1991) 56 SASR 114 (duress); McKenzie (2000) 113 A Crim R 534 at 549 (self-defence). 157. See Gray (1998) 98 A Crim R 589 at 593. 158. See Muratovic [1967] Qd R 15 at 19; Marwey (1977) 138 CLR 630 at 636–7; 18 ALR 77; Gray (1998) 98 A Crim R 589 at 593–4; Vidler (2000) 110 A Crim R 77 at 82; Corcoran (2000) 111 A Crim R 126 at 127, 129, 130; Minniti (2001) 120 A Crim R 531 at 533–6; Wilmot (2006) 165 A Crim R 14 at 16–17, 24–6; note the dicta in Julian (1998) 100 A Crim R 430 at 431–4, 437– 9. 159. See Sreckovic [1973] WAR 85 at 89; Howe (1958) 100 CLR 448; [1958] ALR 753; Corcoran (2000) 111 A Crim R 126 at 129, 130. 160. See Masters [1987] 2 Qd R 272; (1986) 24 A Crim R 65 at 73; Wilmot (2006) 165 A Crim R 14 at 28. 161. See Lean (1989) 1 WAR 348; 42 A Crim R 149 at 152. 162. See Muratovic [1967] Qd R 15 at 26–7; Randle (1995) 15 WAR 26; 81 A Crim R 113 at 121; Wilmot (2006) 165 A Crim R 14 at 29–30. 163. See Hall v Fonceca [1983] WAR 309 at 312. 164. This was adopted by Jerrard J in Wilmot (2006) 165 A Crim R 14 at 29. See also R O’Regan, ‘Self-defence in the Griffiths Code’ (1979) 3 Crim LJ 336. 165. See also Kerr [1976] 1 NZLR 335. 166. See also Goodwyn v State of Western Australia (2013) 45 WAR 328 at [99]–[103] per Buss JA. 167. See Howe (1958) 100 CLR 448; [1958] ALR 753; Viro (1978) 141 CLR 88; 18 ALR 257. 168. See Johnson [1964] Qd R 1 at 7, 11; Aleksovski [1979] WAR 1; McCullough [1982] Tas R 43; Randle (1995) 15 WAR 26. For the common law position, see Zecevic (1987) 162 CLR 645; 71 ALR 641. 169. See Johnson [1964] Qd R 1 at 5; Lawrie [1986] 2 Qd R 502 at 504–5; Lean (1989) 1 WAR 348; 42 A Crim R 149; Marwey (1977) 138 CLR 630; 18 ALR 77; White v Conway (CCA(Qld), No 37 of 1991, 26 August 1991, unreported); Young (2004) 142 A Crim R 571 at 573; and Edmunds (2004) 144 A Crim R 582. 170. See White v Conway (CCA(Qld), No 37 of 1991, 26 August 1991, unreported). 171. See also Duffy [1966] 1 All ER 62. 172. For ‘dwelling’, see Code (Qld) and (WA) s 1. 173. For reference to ‘peaceable possession’, see Van Bao Nguyen (2002) 139 NTR 15; 130 A Crim R 447; Etherton (2005) 30 WAR 65.

174. See Code (Qld) ss 274–279; (WA) ss 252, 255, 256. 175. See Code (WA) ss 253, 254. 176. Aiding in self-defence. 177. See James v Sievwright [2002] WASCA 343; and Edmunds (2004) 144 A Crim R 582. 178. See Penalties and Sentences Act 1992 (Qld) s 187; Code (WA) ss 59, 59A, 61. 179. For ‘penalty unit’, see the Penalties and Sentences Act 1992 (Qld) s 5. 180. Code (Qld) s 328A(1). 181. Code (Qld) s 328A(2), (3): 5 years’ imprisonment. 182. Code (Qld) s 328A(4). ‘Excessively speeding’ means driving or operating a vehicle at a speed more than 40 km/h over the applicable speed limit: s 328A(5); an ‘unlawful race’ means a race involving a vehicle in contravention of the Transport Operations (Road Use Management) Act 1995 (Qld) s 85. 183. Code (Qld) ss 552B(j), 552D; see 4.11. 184. Code (Qld) s 552H. 185. See Road Traffic Act 1974 (WA) s 5(1a)(a). An alternative offence is Road Traffic Act 1974 (WA) s 62, careless driving. 186. See Road Traffic Act 1974 (WA) s 59A(2)(c); 13.10. 187. Road Traffic Act 1974 (WA) s 49AB. Alternative offences are Road Traffic Act 1974 (WA) s 61, dangerous driving, and s 62, careless driving. Section 59A also arises where the accused was driving under the influence of alcohol and/or drugs to the extent as to be incapable of having proper control of the vehicle. 188. For grievous bodily harm, see Road Traffic Act 1974 (WA) s 59(2)(d); 13.51. 189. For circumstances of aggravation, see Road Traffic Act 1974 (WA) s 59B(3); 13.115. Alternative offences are Road Traffic Act 1974 (WA) s 59A, dangerous driving, s 61, dangerous driving, and s 62, careless driving. Section 59 also arises where the accused was driving under the influence of alcohol and/or drugs to the extent as to be incapable of having proper control of the vehicle. 190. See Road Traffic Act 1974 (WA) s 5(1). 191. See Code (Qld) s 328A(1), (5). 192. See Code (Qld) s 328A(5). 193. Road Traffic Act 1974 (WA) s 5. 194. See Schubert v Lee (1946) 71 CLR 589 at 592; Tate v Arnold (1993) 19 MVR 649. 195. See Sweeney [1984] 1 Qd R 628; Ulrich v Cummings (1985) 2 MVR 383. 196. See Medcalf v Fisher (1985) 3 MVR 101. 197. See Pike v Webb (1989) 8 MVR 563. 198. See Urwin v Duperouzel [1960] WAR 216. 199. See McBride (1966) 115 CLR 44; Jiminez (1992) 173 CLR 572; 106 ALR 162; Coventry (1938) 59 CLR 633; [1938] ALR 420; Smith [1976] WAR 97; Kitson (1987) 5 MVR 228; Hancock v Cox and Hundel (1993) 79 CCC (3d) 97; for ‘criminal negligence’, see 8.38. 200. See Grant v Shaw; Ex parte Shaw [1964] QWN 15; Murray (1986) 4 MVR 331; Brown [1971] QWN 28.

201. See also Kaighin [1990] 1 WAR 390 at 395. 202. See Amos [1965] QWN 11; Gould [1963] 2 All ER 847; Hennigan [1971] 3 All ER 133; Mayne (1975) 11 SASR 583 at 589; Cornish (1998) 48 SASR 520; 6 MVR 419; Campbell [1981] WAR 286 at 290; Brickwood v Phillips (1990) 13 MVR 513; Bacic (1994) 20 MVR 93; Clarke v Calameri (1990) 12 MVR 189; McDiven v Paull (1990) 12 MVR 225; Scott v Sandford (1991) 14 MVR 85. 203. See also Royall (1991) 172 CLR 378; 100 ALR 669. 204. See Code (WA) ss 268, 274, 275; 12.25. 205. See Bacic (1994) 20 MVR 93. 206. See Jiminez (1992) 173 CLR 572; 106 ALR 162; Kaighin (1990) 1 WAR 390; Attree v Randell (SC(WA), Murray J, Lib No 930397, 19 July 1993, unreported), cited in Hancock v Cox (1993) 19 MVR 137 at 139–41; Lamb v Clewes (1989) 10 MVR 465. 207. See Code (Qld) and (WA) s 25; Warner [1980] Qd R 207; Russell (1988) 7 MVR 373; Strudwick v Russell (1989) 9 MVR 15; Larner v Dorrington (1993) 19 MVR 75; Zuccala (1991) 14 MVR 466; Webb [1986] 2 Qd R 446; Dudley v Ballantyne (1998) 28 MVR 209. 208. See Code (Qld) and (WA) s 24; Gosney [1971] 2 QB 674; Coventry (1938) 59 CLR 633; [1938] ALR 420; Webb [1986] 2 Qd R 446; Kitson (1987) 5 MVR 228; Hinz [1972] Qd R 272; Miller [1975] WLR 1222 at 1226. 209. See Code (Qld) and (WA) ss 23 (accident), 24; Spurge [1961] 2 All ER 688; Jiminez (1992) 173 CLR 572; 106 ALR 162. 210. See Jiminez (1992) 173 CLR 572 at 584; 106 ALR 162; Rowlson (1996) 67 SASR 96; 24 MVR 519; 8.73. 211. See s 328B. This is an exception to the general principle expressed in the Code (Qld) s 576. 212. See also Morriss [1986] 2 Qd R 429.

[page 333]

Chapter Fourteen Sexual Offences

Introduction 14.1 The sexual offences in the Codes (Qld) and (WA) may be classified into three broad groups. The first encompasses various forms of non-consensual sexual contact with the person of another, including indecent assault and, in its most serious form, sexual penetration.1 14.2 The second group encompasses the same forms of sexual contact as the first, but does not require the prosecution to prove lack of consent by the victim. It includes indecently dealing with or sexually penetrating a child or an intellectually impaired person, incest and maintaining a sexual relationship with a child.2 14.3 The third group comprises offences that anticipate breaches of morality and that are designed to prevent persons, especially children, from being placed in a situation where it is likely that an offence of the kind contained in the first two groups will be committed. Within this third group are: procuring, including procuring by threats, deception, by the administration of an intoxicating substance or by using the internet, for sexual purposes;3 being an owner/occupier of premises where offences of the kind contained in the first two groups are committed;4

offences relating to conduct that is offensive to public morality, such as sexual contact with an animal;5 [page 334] publicly performing indecent acts, or exposing obscene material of various, including electronic, kinds;6 and prostitution.7

Sexual offences of which absence of consent is an element Queensland: rape 14.4 The crimes in this group comprise various forms of sexual assault and the Codes adopt different means of describing the offences. In Queensland, the distinction is between rape and indecent assault, with the latter, under the Code (Qld) s 352, extending to all forms of non-consensual sexual contact except for that which comprises rape. The crime of rape arises under the Code (Qld) s 349: 349(1) Any person who rapes another person is guilty of a crime. Maximum penalty — life imprisonment. (2) A person rapes another person if — (a) the person has carnal knowledge with or of the other person without the other person’s consent; or (b) the person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the person’s body that is not a penis without the other person’s consent; or (c) the person penetrates the mouth of the other person to any extent with the person’s penis without the other person’s consent.

14.5 The term ‘carnal knowledge’ is defined in the Code (Qld) s 6(2) to include sodomy8 and the Code (Qld) s 6(1) provides: If ‘carnal knowledge’ is used in defining an offence, the offence, so far as regards that element of it, is complete upon penetration to any extent.9

Under the Code (Qld) s 347, penetration does not include that which is done for a proper medical, hygienic or law enforcement purpose. 14.6 In accordance with those definitions, rape in Queensland involves any form of non-consensual penetration of the vulva, vagina or anus or non-consensual penile penetration of the mouth and, therefore, the victim may be female or male. Also, the accused may be female or male except that, in the case of penile penetration, it must be a male, although a female may be implicated in that situation through the application of the party provisions of the Code.10 [page 335]

Penalties 14.7 In Queensland, non-consensual contact without penetration is an indecent assault punishable by imprisonment for 10 years.11 However, increased penalties apply if a circumstance of aggravation is established.12 Accordingly, if the accused’s conduct involves contact between any part of the genitalia or the anus of a person and any part of the mouth of a person, the penalty becomes 14 years’ imprisonment. This becomes life imprisonment if, immediately before, during, or immediately after the offence, the accused is or pretends to be armed with a dangerous or offensive weapon, or is in company with another person, or if the assault involves non-penile penetration of the accused’s vulva, vagina or anus.

Western Australia: sexual penetration 14.8 In Western Australia, the Code s 325 makes non-consensual sexual penetration a crime punishable by 14 years’ imprisonment. 14.9 The term ‘penetration’ envisaged by the Code (WA) ss 325 and 326 is defined in s 319(1) in the broadest terms. It is not limited to penile penetration and, therefore, the accused may be female or male

except that, in the case of penile penetration, it must be a male, although a female may be implicated in that situation through the application of the party provisions of the Code.13 As in Queensland, the victim may be female or male. 14.10 The term ‘sexually penetrate’ is defined in the Code (WA) s 319(1) to mean: (a) to penetrate the vagina (which term includes the labia majora), the anus, or the urethra of any person with — (i) any part of the body of another person; or (ii) an object manipulated by another person, except where the penetration is carried out for proper medical purposes;14 (b) to manipulate any part of the body of another person so as to cause penetration of the vagina (which term includes the labia majora), the anus, or the urethra of the offender by part of the other person’s body; (c) to introduce any part of the penis of a person into the mouth of another person; (d) to engage in cunnilingus or fellatio;15 or (e) to continue sexual penetration as defined in paras (a), (b), (c) or (d).

Penalties 14.11 While the offence of sexual penetration without consent is punishable by a maximum of 14 years, under the Code (WA) s 326, where a circumstance of aggravation is established the accused is liable to imprisonment for 20 years. [page 336] The circumstances of aggravation are detailed in the Code (WA) s 319(1) as those in which: (a) at or immediately before or immediately after the commission of the offence: (i)

the offender is armed with any dangerous or offensive weapon or instrument or pretends to be so armed; (ii) the offender is in company with another person or persons; (iii) the offender does bodily harm16 to any person; (iv) the offender does an act which is likely seriously and substantially to degrade or humiliate the victim; or

(v) the offender threatens to kill the victim; or (b) the victim is of or over the age of 13 years and under the age of 16 years.

Meaning of ‘consent’ 14.12 Each of the Codes provides a definition of ‘consent’ that has application only in relation to sexual offences. The Code (Qld) s 348 reads: (1) In this chapter, ‘consent’ means consent freely and voluntarily given by a person with the cognitive capacity to give the consent. (2) Without limiting subsection (1), a person’s consent to an act is not freely and voluntarily given if it is obtained — (a) by force; or (b) by threat or intimidation; or (c) by fear of bodily harm; or (d) by exercise of authority; or (e) by false and fraudulent representations about the nature or purpose of the act; or (f) by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner. (3) A child under the age of 12 years is incapable of giving consent.

14.13

The Code (WA) s 319(2) reads:

(a) consent means a consent freely and voluntarily given and, without in any way affecting the meaning attributable to those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit, or any fraudulent means; (b) where an act would be an offence if done without the consent of a person, a failure by that person to offer physical resistance does not of itself constitute consent to the act; (c) a child under the age of 13 years is incapable of consenting to an act which constitutes an offence against the child.

Capacity to consent 14.14 Consent will not be freely and voluntarily given if the victim lacks cognitive capacity to give consent.17 In Francis [1993] 2 Qd R 300, it was held that rape would [page 337]

be committed where a man had sexual intercourse with a woman who, by reason of sleep or a drunken stupor, was incapable of deciding whether to consent.18 In Millar [2000] 1 Qd R 437, the Court of Appeal distinguished the situation from one where rape would not be committed if the consent of the woman was induced by her excessive consumption of alcohol.

Consent, physical resistance and submission 14.15 The reference in the Code (WA) s 319(2)(b) to the failure of the victim to offer physical resistance as not, of itself, constituting consent, is also reflected in judicial opinion: Ibbs [1988] WAR 91. Whether there is consent or not is a question of fact; the notion of consent extends across a wide range of mental states, from actual desire to reluctant acquiescence. Holman [1970] WAR 2 at 6, Jackson CJ stated that a victim’s consent to intercourse may be:19 … hesitant, reluctant, grudging or tearful, but if she consciously permits it (providing her permission is not obtained by force, threat, fear or fraud) it is not rape.

However, in Wagenaar [2000] WASCA 325, the Western Australian Court of Criminal Appeal considered that the direction suggested by Jackson CJ was no longer an appropriate one, given that intimidation can have the effect of preventing the giving of true consent. Jackson CJ’s statement does not adequately indicate the requirement for an autonomous decision, but it does allude to the difficult relationship between submission and consent. In Winchester [2014] 1 Qd R 44, the Queensland Court of Appeal confirmed that Holman is no longer good law, by stating that consent is ‘more than mere acquiescence’. Consistent with other areas of the law, consent, according to the court in Winchester, is concerned with the exercise of free choice. 14.16 In South Australia, in Case Stated by DPP (No 1 of 1993) (1993) 66 A Crim R 259 at 278, the Court of Criminal Appeal dealt with the relationship between submission and consent by reference to the trial judge’s direction on the issue of consent. Duggan J stated: 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. Whether or not consent has been freely given is a question of fact for the jury to determine, having regard to all the circumstances. The question is not concluded against the accused simply by reason of the fact that there was an initial refusal to consent to intercourse. Even following such a refusal there may be a freely given consent after further dealings between the parties. True it is that the difference between submission and consent can be a fine line. But the distinction at law is clear, it is well supported by a long line of judicial authority, and it is for juries, properly instructed, to deal with the matter.

Coercion and threats 14.17 The requirement that consent be free and voluntary will not be met where it was obtained by one of the coercive means outlined in the definitions of consent [page 338] in the Code (Qld) s 348(2) and Code (WA) s 319(2). Those means are detailed in a broadly similar manner in those provisions with a reference to force, threat or intimidation. The Codes give no guidance as to the nature or seriousness of the force, threat or intimidation that will be sufficient to vitiate consent or, indeed, whether any belief that the victim has of being threatened or intimidated must be reasonably based. In PS Shaw [1995] 2 Qd R 97, different approaches to these issues were adopted by members of the Court of Appeal in Queensland.20 In PS Shaw, Pincus JA at 114 expressed the opinion that the threats envisaged by the provision should be confined to instances in which the threat was one of substantial harm. McPherson JA, on the other hand, considered that the term should not be so limited and said at 115: The section does not require that the threats or intimidation must, objectively speaking, be substantial. That is not surprising when it is borne in mind just how much human attitudes and behaviour may vary from one individual to another.

In PS Shaw, the conviction of the accused was for the rape of his sister-in-law. This occurred when the accused, his wife and the victim

were sharing premises. The conviction was upheld on the basis that the victim’s consent was induced by a threat from the accused that, if she did not engage in sexual intercourse with the accused, the accused would not permit her to return to her home and would subject her to further sexual abuse. 14.18 In Michael v State of Western Australia (2008) 183 A Crim R 348, the appellant pretended to be a police officer and threatened that he would report the victims, two sex workers, if they did not provide him with reduced-price or free sex. The Western Australian Court of Appeal decided by majority that the women did not give free or voluntary consent to the sexual intercourse in those circumstances. In the course of his judgment, Steytler P noted at [74]–[75]: … on their ordinary meaning, the words ‘threat’ and ‘intimidation’ are not limited to the threat of physical violence. A threat is as much a threat if it is one, for example, of blackmail as if it is one of physical violence. The same is true of a threat of substantial economic harm … There is an obvious difficulty, in circumstances in which no limitation has been imposed by the legislature, in the notion that judges should direct juries, as a matter of law, as to which types of threat may vitiate consent … While difficulties may arise if any threat is to suffice, it seems to me that the legislature has chosen to impose a subjective test which does not have regard to the nature of the threat except insofar as the jury is required to assess whether the victim’s consent was in fact ‘obtained by’ the threat or intimidation.

Steytler P’s comment therefore suggests that in the absence of any limitation imposed by the legislature on the type of threat, the focus should be on the effect of the threat on the victim.

Deceit and fraud 14.19 Additional means of inducing consent are provided for in the consent definitions. The Code (Qld) s 348 refers to exercise of authority, fear of bodily [page 339] harm, false and fraudulent representations as to the nature of the act

and to the situation where the victim’s consent is given in the mistaken belief, induced by the accused, that the accused is the victim’s sexual partner. The Code (WA) s 319(2) refers to deceit or any fraudulent means. 14.20 In relation to obtaining consent by fraudulent means, the Queensland provision specifically relates the accused’s fraud to the nature of the sexual act. Such fraud arose in Williams [1923] 1 KB 340, where the accused, a singing teacher, induced a 16-year-old pupil to have sexual intercourse with him by representing that the procedure was an operation necessary to improve her breathing.21 In Papadimitropoulos (1957) 98 CLR 249; [1958] ALR 21, the accused fraudulently represented to a non-English-speaking female that their lodging of a notice of intended marriage at a registry office constituted a marriage between them. Acting on this representation, she consented to acts of sexual intercourse with Papadimitropoulos. In quashing his rape conviction, the High Court said at CLR 260: … 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 the 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 act 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.

14.21 The matter of consent to the nature of the act was also considered by the Court of Appeal in Mobilio [1991] 1 VR 339. In that case, a medical technician performed additional procedures to those that were therapeutically required. In particular, he introduced a transducer into the vagina of several women. The Court of Appeal held there was no fraud as to the nature of the act, and therefore there was no rape committed.22

14.22 The definition of consent in the Code (WA) s 319(2) does not limit the deceit or fraudulent means to the nature of the sexual act, suggesting that the terms may be broad enough to extend to the wider aspects of deception such as arose in Papadimitropoulos.23 In Michael v State of Western Australia (2008) 183 A Crim R 348, Steytler P took the view that, given there is no limitation in the definition, the court [page 340] should take a wide view of the sorts of fraud that can vitiate consent. Heenan AJA, who was in the minority, concluded that s 319(2) should be interpreted in line with the common law approach, but extended this to find that fraud as to the identity of the offender or the purpose of the act could invalidate consent.24 In Western Australia, therefore, the position is currently unclear as regards what sorts of fraud will vitiate consent.25

Personation 14.23 The definition in the Code (Qld) s 348 extends to the situation where the victim’s consent is given in the mistaken belief, induced by the accused, that the accused is the victim’s sexual partner. Prior to amendment to its present form, the definition of rape in Queensland was set out in the Code (Qld) s 347 and it provided for the situation where consent was obtained by personating a spouse or de facto spouse with whom the victim lived. However, in that situation, it has been held that the prosecution must prove that the accused intended to pass himself off as the spouse.26 The present definition does not refer to personation but requires that the victim’s mistaken belief be induced by the accused. Also, the present definition suggests a broader class of persons than its predecessor because it refers to the victim’s sexual partner and is not limited to a spousal or de facto spousal arrangement. In cases where personation has been raised, the victim, typically, has been asleep when intercourse commenced. In

that situation, it may not be necessary to rely on the extended notion of consent because, if the victim was asleep, consent will not have been given: see 14.13. 14.24 In Pryor (2001) 124 A Crim R 22, the Court of Appeal was concerned with the now repealed provision. Williams JA said at 29: The evidence here clearly establishes that the complainant did not consent to the appellant having sexual intercourse with her at the time and place in question. The fact that she did not resist, or voice want of consent, because she believed the male penetrating her to be her ‘sexual partner’ is beside the point. Given s 347 of the Code as it stood at the material time, consent involved not only an appreciation that sexual intercourse was about to take place, but also an awareness of the identity of the male about to effect that penetration. Here the complainant had no reason to believe that any male person other than her ‘sexual partner’ was in the house at the material time. The appellant had unlawfully entered the complainant’s dwelling house, and clearly intended having sexual intercourse with the woman he located there whether she consented or not. Her instinctive responses did not constitute a comprehending consent; her reasoning processes were still affected by sleep and the consumption of alcohol. Once she comprehended what was happening — a complete stranger was

[page 341] having intercourse with her — she made it clear that she was not a consenting party. This was a clear case of intercourse without consent, all that is required by the Code to establish the crime of rape.

In Pryor, Dutney J was also of the opinion that a requirement of consent is knowledge of the identity of the person to whom that consent is given and, therefore, the victim had not consented to the accused having intercourse with her: at 40. In obiter dicta, his Honour also expressed the opinion that the factual situation in that case would fall within the present definition in the Code (Qld) s 348(2)(f) on the basis that the victim’s belief that the appellant was her partner was induced by the accused having placed himself in the complainant’s bedroom at night where no person other than her partner would reasonably be expected by the victim to be: at 38. 14.25 In Western Australia, both Steytler P’s and Heenan AJA’s interpretations of the Code (WA) s 319(2) in Michael v State of Western Australia (2008) 183 A Crim R 348 included deceit to cover the

situation where the victim’s consent is given in the mistaken belief, induced by the accused, that the accused is the victim’s sexual partner.27

Mistaken belief in consent 14.26 At common law, one element of the crime of rape is that the accused should intend to have intercourse regardless of whether the victim consents.28 Due to that, an honest but mistaken belief by the accused that the victim was consenting will negative the requisite intent, and this would be so even where the accused’s belief was unreasonable. Under the Codes, however, no reference is made to intention or belief as an element of the offence of rape (Queensland) or sexual penetration without consent (Western Australia). Therefore, the question becomes, simply: Did the victim consent? Nevertheless, where the accused mistakenly believed that the victim consented, reliance may be placed upon the excuse of mistake of fact under the Code (Qld) and (WA) s 24. Whether or not the victim was consenting is a question of fact but, unlike the position at common law, the mistaken belief must be based on reasonable grounds.29 This is distinct from the idea that the belief be one that a reasonable person would have had.

Withdrawal of consent 14.27 In Western Australia, the definition of penetration in the Code s 319(1)(e) makes it clear that, where penetration is initially effected with consent, a [page 342] non-consensual sexual offence will nevertheless be committed if the accused maintains that penetration following the withdrawal of that

consent.30 The position is less clear in Queensland, where the Code does not make express provision for that situation. In Kaitamaki [1985] 1 AC 147, the Privy Council upheld a conviction for rape under the Crimes Act 1961 (NZ) ss 127, 128, in circumstances where initial penetration occurred with consent but where the accused did not desist upon his realising that the woman was no longer consenting. A similar interpretation was applied to the Code (Qld) s 347 in Mayberry [1973] Qd R 211 at 229, where Hanger CJ held that it was not the case that what the accused does after the initial penetration takes place, for example, ejaculation, is not part of the act of rape. His Honour continued, saying: I am quite unable to understand that a man, having effected penetration, ceases to be having carnal knowledge of a woman at that instant of time, though he remains to complete the act of sexual intercourse for some time thereafter, the normal reason for his attack.

On that approach, the crime of rape will be committed in Queensland following the withdrawal of consent after initial consensual penetration if the accused continues with intercourse. In Richardson [1978] Tas SR 178, the Court of Criminal Appeal in Tasmania adopted that interpretation for the purposes of rape in the Tasmanian Code.31

Evidential matters 14.28 Because of the seriousness of the crime of rape (Queensland) and sexual penetration without consent (Western Australia), the courts have attempted to introduce an element of objectivity into the determination of the question of whether the victim consented. This is achieved by permitting, in some circumstances, the behaviour of the victim shortly after the alleged assault to be considered by the jury. In particular, this relates to whether the victim made early complaint about the incident. Special rules have also developed in relation to the need for evidence of the victim to be corroborated by other independent evidence and the need to limit the admissibility of

evidence concerning the sexual reputation and experience of the victim.32 A detailed account of these matters more correctly falls within the realm of a text on evidence but, because of their importance to sexual offences, some reference will be made to the doctrine of fresh complaint and corroboration.33 [page 343]

Fresh, recent or preliminary complaint 14.29 Prior to the High Court decision in Kilby (1973) 129 CLR 460; 1 ALR 283, the failure of the victim to make a complaint at the first reasonable opportunity after the alleged rape was, in itself, evidence of consent to intercourse. On the other hand, the fact that a fresh complaint was made was not evidence that the victim did not consent.34 In Kilby, the two accused were convicted of raping a 15-year-old girl who had accompanied them to a beach party. They carried her some 30 metres away from the others and she was raped by several of the youths while others held her and prevented her from calling for help. She stayed the night on the beach, remained in the company of a youth the next day and made no complaint until some considerable time later. The High Court confirmed the view that, where fresh complaint is made, such complaint is admissible, not as evidence of the facts in issue relating to the commission of the offence, but, rather, on the basis that it supports the consistency of the complainant’s evidence, thereby acting as a buttress to the complainant’s credit. On that basis, the evidence of fresh complaint, although admissible, does not prove absence of consent, but is a matter to be taken into consideration by the jury in evaluating the consistency, and therefore the credibility, of the victim’s evidence. When no fresh complaint is made, the High Court disapproved of the approach that enabled failure to make fresh complaint to be treated as evidence of consent. Barwick CJ said at CLR 472:35

In my opinion, quite apart from the fact that there may be many reasons why a complaint is not made, the want of a complaint does not find an inference of consent. It does tell against the consistency of the woman’s account and accordingly is clearly relevant to her credibility in that respect. I am clearly of opinion, therefore, that a trial judge is not only not bound as a matter of law but not entitled to instruct a jury in the trial of an accused on a charge of rape that the failure of the woman claiming to have been raped to complain at the earliest possible opportunity is evidence of her consent to the intercourse.

Nevertheless, the High Court made it clear that the trial judge was able to draw the attention of the jury to the absence of fresh complaint in a particular case. His Honour said at CLR 465: It would no doubt be proper for a trial judge to instruct a jury that in evaluating the evidence of a woman who claims to have been the victim of a rape, and in determining whether to believe her, they could take into account that she had made no complaint at the earliest reasonable opportunity. Indeed, in my opinion, such a direction would not only be proper but, depending of course on the particular circumstances of the case, ought as a general rule to be given.

14.30 The general principles relating to fresh complaint are those that have developed in the courts. That is still the case in Western Australia where a complaint [page 344] has been made by the victim but, there, the situation where no complaint was made is governed by the Evidence Act 1906 (WA) s 36BD, which reads: Where, on the trial of a person for a sexual offence or an offence under Chapter XXII of the Criminal Code36 (as enacted at any time) evidence is given or a question is asked of a witness which tends to suggest an absence of complaint in respect of the commission of the alleged offence by the complainant or to suggest delay by the complainant in the making of any such complaint, the judge shall: (a) give a warning to the jury to the effect that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false; and (b) inform the jury that there may be good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence.

14.31

In Crofts (1996) 186 CLR 427 at 451; 139 ALR 455, the High

Court pointed out that a provision such as the Evidence Act 1906 (WA) s 36BD does not alter the principles as expressed in Kilby (1973) 129 CLR 460; 1 ALR 283, although it accepted that two qualifications to the duty to provide the warning suggested in Kilby flow from such a provision: The first is where the peculiar facts of the case and the conduct of the trial do not suggest the need for a warning to restore a balance of fairness. The second is that the warning should not be expressed in such terms as to undermine the purpose of the amending Act by suggesting a stereotyped view that complainants in sexual assault cases are unreliable or that delay in making a complaint about an alleged sexual offence is invariably a sign that the complainant’s evidence is false.

Accordingly, in an appropriate case, a warning to the jury about the absence of fresh complaint may still be given.37 The emphasis in the Evidence Act 1906 (WA) s 36BD(a) is that the absence of, or delay in, making complaint does not necessarily mean it is false.38 Recently, the Western Australian Court of Appeal in Smith v State of Western Australia [2014] WASCA 90 has confirmed Kilby, noting that once a complainant has given evidence of the alleged offence, evidence of a recent complaint may be led to ‘buttress the credit of the person making the complaint’ (per Mazza JA at [121]). The appellant had argued that the evidence of the complainant’s complaint was inadmissible because she did not testify as to the detail of the complaint. The Court of Appeal noted that Kilby is authority that if the complainant does give evidence of an alleged offence, then evidence of recent complaint may be admitted; there is no requirement for the complaint evidence to be detailed in order to be considered by the jury. [page 345] 14.32 In Queensland, since 2004 evidence of complaint39 is generally admissible under the Criminal Law (Sexual Offences) Act 1978 s 4A, which uses the term ‘preliminary’ rather than ‘fresh’ or ‘recent’ complaint.40 It provides that evidence of how and when any preliminary complaint was made by the complainant about the

alleged commission of the offence by the defendant is admissible in evidence, regardless of when it was made. The court may exclude the evidence if it is satisfied that it would be unfair to the defendant to admit it. The judge may make any comment to a jury on the complainant’s evidence that it is appropriate to make in the interests of justice, but must not warn or suggest in any way to the jury that the law regards the complainant’s evidence to be more reliable or less reliable only because of the length of time before the complainant made a preliminary or other complaint. Nevertheless, the judge is still obliged to direct the jury that the evidence of a preliminary complaint does not constitute proof of the facts complained of.41 14.33 Cases decided before the enactment of the Evidence Act 1906 (WA) s 36BD and Criminal Law (Sexual Offences) Act 1978 (Qld) s 4A established the following matters in relation to fresh complaint. 14.34 ‘First reasonable opportunity’ The essence of a fresh complaint is the temporal connection between the alleged offence and the making of the complaint. The measure adopted by the courts to assess that relationship is that the complaint must be made at the first reasonable opportunity rather than at the first available opportunity. In Sailor [1994] 2 Qd R 342, the victim, after allegedly being raped at knife-point, returned to her home in the early hours of the morning, where she spoke briefly to her father and went to bed. She spoke to her mother by telephone after waking at about 7 am. She then went to a nearby shop and, at that stage, had made no complaint about her experience. She then went to her cousin’s place where, at about 10 am, she telephoned a friend and told her that she had been raped. In explaining her failure to make an earlier complaint, the victim said that she was fearful that her father would have lost his temper and ‘done something stupid’, that her mother lived in a distant part of Australia and could do nothing, that she did not know people in the shop well enough to involve them and that she had not telephoned the police because she was scared of what was going to happen and did not know what to do. The court held that the trial judge had correctly admitted the complaint into evidence, thereby leaving it to the jury to decide

[page 346] whether it had been made at the first reasonable opportunity. McPherson JA said at 344 (Byrne J agreeing):42 We were referred to no authority suggesting that what is reasonable ought to be judged in an abstract way divorced from the sensitivities of the particular complainant or from the circumstances in which she found herself placed at the time. Individuals respond to crisis or stress in different ways and for various reasons. It would be surprising if the question whether or not a complaint was made at the earliest reasonable opportunity fell to be determined according to some set pattern of behaviour predicated on a hypothetical model complainant. The explanations given by the complainant for what she did or failed to do were necessarily relevant in deciding what was a reasonable opportunity in this case.

14.35 Child victim Where the victim is a child, care must be taken with the drawing of any adverse assumption from the child’s lack of, or delay in, making a complaint. In M (1994) 181 CLR 487 at 515; 126 ALR 325, Gaudron J pointed out that the suspected offender may have the child victim’s trust and confidence and the child may be reluctant to resist the offender or to protest and may be reluctant to complain on that account and also because of fear that he or she will not be believed, fear of punishment or fear of rejection by the offender.43 14.36 Complaint must be voluntary To be admissible, the fresh complaint must have been voluntarily made. Thus, where the victim related an untruthful story to her father to account for her bruised condition, but then complained of rape in response to ‘suggestive and leading questions’ by her father, the evidence of the complaint was inadmissible.44 On the other hand, questions such as ‘What’s the matter?’ or ‘Why are you crying?’ would not have that effect.45 14.37 Complaint need not be an accusation In the usual case of fresh complaint, the words of the victim will be in the form of a complaint about the accused’s conduct in the sense that the words will comprise a grievance or accusation. However, this is not an essential requirement. In Robertson [1991] 1 Qd R 262, it was held that words that amount to a factual narrative may amount to fresh complaint.46 At issue in Robertson were the words of a young victim who merely

related to her mother the events that occurred. Nevertheless, the words of the victim should normally convey the meaning that an offence of a sexual nature has occurred. Hart J in Saunders [1965] Qd R 409 at 425 said: In all the cases I have been able to find on recent complaint, the complaints have referred to some matter concerning sex or sexual activities of some kind or other. I have not been able to find any direct statement that the complaint must refer to sex, but, as the basis of its admission against the prisoner is that it is admitted in sexual cases and as evidence of consistency, it seems to me that there is no basis for it unless it mentions sex in some way or other; unless it does, it is not evidence of consistency. Of course, if the words used are capable of referring to sexual matters it would be a

[page 347] matter for the jury as to whether they amounted to a complaint of a sexual nature or not; in a rape case such as this where consent is the only issue it is a matter for the jury whether neutral words capable of referring in their context to rape do refer to rape or merely to intercourse.

There, the court held that a complaint by the victim that she had been ‘bashed’ had been wrongly admitted. However, in Giffin [1971] Qd R 12, it was held that a statement made to persons in a car that the victim waved down was admissible, even though the words contained no sexual reference. The court said at 19: There is ample evidence that the complainant was hysterical but that she had indicated that she had been attacked. There is nothing whatever inconsistent in a respectable woman who has in fact been raped withholding details of an attack from strangers especially if she is likely to be able to turn for help to more intimate friends or relatives in a reasonably short time.

Corroboration 14.38 Historically, in relation to a range of sexual offences, there was a requirement that the accused could not be convicted unless the jury was warned of the dangers of doing so on the uncorroborated testimony of the victim. The so-called danger arose because of the alleged ease with which accusations of sexual offences can be made and the difficulty faced by the accused in refuting any such allegation.47 With some offences, the requirement was one of law;

with others, it was a rule of practice that was strictly followed. The requirement, whether it arises by law or practice, has now been abolished in Queensland and Western Australia and, therefore, an accused may be convicted on the uncorroborated evidence of one witness.48 Note that the victim’s distressed condition can constitute corroboration but, in order to do so, it must implicate the accused. It should also be noted that it may be necessary to give a warning to the tribunal of fact about the proper use to be made of evidence as to a victim’s distress.49 Nevertheless, those provisions enable the trial judge to comment on the evidence and thereby give a warning to the jury, if that is justified in the circumstances. This approach is consistent with that adopted in Longman (1989) 168 CLR 79; 89 ALR 161. There, with reference to a statutory provision50 that removed the obligation of a judge to give a warning of the danger of convicting on uncorroborated evidence, the High Court held that the provision dispensed only with the requirement to warn of the general danger of acting on the uncorroborated testimony of the victim of sexual offences as a class, and did not affect the requirement for the judge to give a warning whenever necessary to avoid a perceptible risk of miscarriage of justice arising from the particular circumstances of a case. 14.39 Uncorroborated testimony The term ‘uncorroborated testimony’ is defined as evidence that is not corroborated in some material particular by other [page 348] evidence implicating the accused.51 In Kilbourne [1973] AC 729 at 750, Lord Reid referred to corroborative evidence in the following way: There is nothing technical in the idea of corroboration. When in the ordinary affairs of life one is doubtful whether or not to believe a particular statement one naturally looks to see whether it fits in with other statements or circumstances relating to the particular matter; the better it fits in, the more one is inclined to believe it. The doubted statement

is corroborated to a greater or lesser extent by the other statements or circumstances with which it fits in.

Thus, the corroborative evidence is used to confirm, support or strengthen other evidence in the sense that it will render that other evidence more probable.52 A warning of the danger of convicting on uncorroborated evidence will be required where there is a danger of a miscarriage of justice in the absence of such warning; for example, where no complaint of the offence was made for many years.53

Indecent assault 14.40 Under the Code (Qld) s 352 and (WA) ss 323, 324, it is a crime for a person to unlawfully and indecently assault another. The term ‘assault’ takes its meaning from the definition of assault in the Code (Qld) s 245 and (WA) s 222, an essential element of which is that the victim does not freely and voluntarily consent: see 14.13–14.21. The indecent assault provisions embrace all non-consensual sexual contact other than rape (Queensland) and sexual penetration without consent (Western Australia). Just as an assault may occur without actual contact between the accused and the victim, an indecent assault may also arise in that way.54

Penalties 14.41 Queensland In Queensland, indecent assault is punishable by 10 years’ imprisonment.55 Heavier penalties apply where one of the circumstances of aggravation, as set out in the Code (Qld) s 352(2), (3), is proven. These arise: by bringing into contact any part of the genitalia or anus of a person with any part of the mouth of a person (14 years);56 if, immediately before, during, or after the offence, the accused is, or pretends to be, armed with a dangerous or offensive weapon, or is in company with any other person (life imprisonment);57 or where the assault is by penetration to any extent of the vagina,

vulva or anus with any thing or part of the body other than the penis.58 [page 349] 14.42 Western Australia In Western Australia, indecent assault is punishable by 5 years’ imprisonment under the Code s 323; the summary conviction penalty is imprisonment for 2 years or a fine of $24,000. Under the Code s 324, aggravated indecent assault, involving proof of a circumstance of aggravation as defined in the Code (WA) s 319(1), is punishable by 7 years’ imprisonment; the summary conviction penalty is imprisonment for 3 years or a fine of $36,000: see 14.8.

Proceedings 14.43 In Queensland, summary proceedings59 are not available for sexual assault: see Code (Qld) ss 552A(1)(b), 552B(1)(i). In Western Australia, the defendant may be summarily convicted in relation to indecent assault and aggravated indecent assault: see Code (WA) ss 323–324.60

Definition of ‘indecent’ 14.44 The term ‘indecent’ is not defined in the Codes. In respect of offences relating to interference with the person of another, such as indecent assault and indecent dealing with,61 the term has consistently been held to import a standard of conduct that is judged by prevailing community standards; therefore, the question is not whether the accused understood the circumstances to be indecent, but whether an ordinary person would so regard them. 14.45 In Drago (1992) 8 WAR 488 at 497–8, Nicholson J described the test in the following way:62 … what will be ‘indecent’ is a dealing by one person with another person in circumstances which include actions constituting an assault where that conduct is

unbecoming or offensive to common propriety. What is unbecoming or offensive to common propriety in those limited circumstances is not such as would open itself to the objection of allowing undue scope to the varying standards of different juries.

14.46 The concept of indecency also arises in the Code (Qld) s 227 and (WA) ss 203, 204 in the context of doing an indecent act in public or with intent to insult a person. In Bryant [1984] 2 Qd R 545, the accused was convicted of that offence in that he had passed to the complainant a jewellery box containing the testicles of a wallaby. The trial judge directed the jury in accordance with the community standards test noted above, but the majority of the Queensland Court of Criminal Appeal considered such a direction too broad. McPherson J stated that it was hardly the function of the section to punish ‘mere lapses of taste or good manners’ simply because they may be thought by some members of society, who may constitute the jury, to be ‘unbecoming’ or ‘offensive to common propriety’. His Honour cited with approval several Canadian authorities that require an element of ‘moral turpitude’ or acting in a ‘base or shameful manner’, with the emphasis throughout falling on ‘some bodily act of the accused that is indecent judged by prevailing community standards’ (at 552). [page 350] 14.47 The court’s comments were limited to the offence in question and, in Drago (1992) 8 WAR 488, the Court of Criminal Appeal in Western Australia held that the narrower interpretation of indecency adopted in Bryant had no application in the context of sexual assault. The court considered it appropriate to depart from the general principle that a word should be given a consistent meaning throughout the Code because of the different contexts in which the term ‘indecent’ is used in indecent assault and the doing of an indecent act. In particular, this was because the former is usually referable to bodily contact between the accused and the victim, whereas the latter does not necessarily involve the presence of bodily conduct.63 In all cases, the question of whether an assault is indecent is

one of fact to be determined by the jury.64 It should be noted that even if the act itself is not indecent, there may be an indecent assault if the circumstances surrounding the act are regarded as indecent.65

Consent, fresh complaint and corroboration 14.48 For these offences of indecent assault, considerations relating to proof by the prosecution of non-consent, fresh complaint and corroboration are the same as those outlined above in the context of rape (Queensland) and sexual penetration without consent (Western Australia).66 The accused may be convicted of indecent assault as an alternative verdict to rape (Queensland) and sexual penetration without consent (Western Australia).67

Other offences involving absence of consent 14.49 Further crimes that require proof by the prosecution of lack of consent by the victim arise under the Code (Qld) s 352 and (WA) ss 327, 328. The Code (Qld) s 352(1)(b) makes it a crime to procure anyone, without consent, to commit an act of gross indecency or to witness such an act. The penalties are the same as for indecent assault. In Whitehouse [1955] QWN 100, the term ‘gross’ was given its ordinary dictionary meaning of ‘plain, evident, obvious’. 14.50 The Code (WA) ss 327 and 328 establish the crimes of sexual coercion and aggravated sexual coercion, respectively. It is thereby a crime to compel another person to engage in sexual behaviour, and it is punishable by 14 years’ imprisonment, or 20 years’ imprisonment where one of the circumstances of aggravation, as set out in the Code (WA) s 319(1), is established: see 14.8. The Code (WA) s 319(4) provides that a person is said to engage in sexual behaviour if the person sexually penetrates any person, has carnal knowledge of an animal, or penetrates the person’s own vagina (which term includes the labia majora), anus or urethra with any object or any part of the person’s body for other than proper medical purposes.68 While the Code (WA) ss 327 and 328 do not require, in terms,

[page 351] proof by the prosecution of the absence of consent, the element of compulsion would seem to achieve the same purpose.

Sexual offences of which absence of consent is not an element 14.51 With these offences, the question of whether the victim has consented is immaterial in so far as criminal responsibility is concerned. If the conduct of the accused was not consented to by the victim, the offence could be charged as one of rape in Queensland and sexual penetration without consent in Western Australia or indecent assault, depending on the nature of the accused’s behaviour: see 14.4, 14.34; and Roden (1981) 14 Tas R 97. The fact that the victim was a consenting party is, with some of these offences, reflected in the lesser penalty provided. Nevertheless, the offences are serious, especially where the victim is very young or in some special relationship with the accused.

Specific offences 14.52 The offences embrace conduct that is contrary to the commonly held moral beliefs of the community; or they may arise because of the need to provide greater protection for certain groups in the community. The former category includes: incest;69 and bestiality.70 The latter category includes: indecent treatment of children;71 sexual penetration of children;72 sexual abuse of an intellectually impaired person;73 and

maintaining a sexual relationship with a child.74

Procedure 14.53 In Western Australia, summary proceedings are not available for these offences but, in Queensland, summary proceedings may be taken for an offence of a sexual nature, other than an assault, where the victim was at least 14 years of age, where the defendant pleads guilty and consents to the procedure and where the magistrate is satisfied that the defendant can be adequately punished on summary conviction.75 [page 352]

Fresh or preliminary complaint and corroboration 14.54 The situation in respect of fresh complaint and corroboration for these offences is the same as for sexual assault and indecent assault outlined above.76

Child victims 14.55 Although the legislative schemes adopted in the Codes in relation to these offences differ, the overall coverage of the provisions in respect of offences relating to children is much the same. A minimum age for the immateriality of the victim’s consent to the particular conduct of the accused is set. In Queensland, the age is 18 years in respect of sodomy77 (anal intercourse) and 16 years for vaginal intercourse and indecent dealing with a child.78 In Western Australia, the age is 16 years except where the child is under the care, supervision or authority of the accused, in which case it is 18 years.79

Knowledge of victim’s age 14.56 With these offences, it is immaterial that the accused did not know the victim was under the relevant age threshold or believed that

the victim was of, or over, the relevant age, unless the Codes expressly provide otherwise.80 In Queensland, such express provision is made, but only where the child is aged at least 12 years and, accordingly, it is a defence for the accused to prove that he or she reasonably believed the child was of or over the relevant age.81 In Western Australia, the accused’s belief as to the age of the child is irrelevant where the child is under 13 years.82 Where the child is aged at least 13 years, it is a defence for the accused to prove that he or she believed on reasonable grounds that the child was of or over the age of 16 years provided that the accused also proves that he or she was not more than 3 years older than the child.83 However, where the child is under the care, supervision or authority of the accused (an offence where the child is under 18 years) it is no defence to a charge under the Code s 322 to prove the accused believed on reasonable grounds that the child was of or over the age of 18 years.84

Where the accused is married to the child 14.57 In Western Australia, it is also a defence for the accused to prove that he or she was lawfully married to the child.85 The marriage defence is not found in Queensland and is not required in the case of vaginal penetration, because the minimum age at which a minor may lawfully marry is the same as the age below which consent is [page 353] immaterial for sexual offences involving vaginal penetration.86 However, that is not the case with anal penetration, where the relevant age is 18 years: see 14.51.

Mistake of fact 14.58 The defence provisions noted above inherently exclude the operation of the Code (Qld) and (WA) s 24, which relates to mistake of fact: see 8.73. Reliance may still be placed upon the mistaken belief

but, unlike the situation with s 24, the onus of proof is placed on the accused, who must establish the defence on the balance of probabilities: see Chapter 6.

Penalties 14.59 Under the Code (Qld) s 215, it is a crime punishable by 14 years’ imprisonment for the accused to have unlawful vaginal intercourse87 with or of a female under 16 years of age. However, it is a crime punishable by life imprisonment where the accused is the child’s guardian, where the child is under the accused’s care or where the child is under 12 years of age. Under the Code (Qld) s 208, it is a crime, punishable by 14 years’ imprisonment, for the accused to have anal intercourse with a child under the age of 18 years or to permit a male person under 18 years to sodomise him or her. It is punishable by life imprisonment if the child is under 12 years of age and also where the child is, to the accused’s knowledge, the accused’s lineal descendant, under the accused’s care, or where the accused is the child’s guardian.88 14.60 The Criminal Law (Two Strike Sexual Offenders) Act 2012 (Qld) amended the Penalties and Sentences Act 1992 (Qld) to, notwithstanding any provision of the Criminal Code (Qld), impose mandatory life imprisonment on a person convicted of more than one serious child sex offence (new s 161E of the Penalties and Sentences Act). The term ‘serious child sex offence’ is defined in new s 161D of the Act. 14.61 In Western Australia, sexual penetration (see 14.10) of a child is a crime punishable: by 20 years’ imprisonment where the child is under the age of 13 years;89 by 14 years’ imprisonment where the child is at least 13 years of age and under the age of 16 years; by 20 years’ imprisonment where the child of that age is under the care, supervision or authority of the accused; by 7 years’ imprisonment where the

child of that age is not under the care, supervision or authority of the accused and the accused is under the age of 18 years;90 and by 10 years’ imprisonment where the child is 16 or 17 years of age and under the care, supervision or authority of the accused.91 [page 354]

Dealing with a child 14.62 The crime of unlawfully and indecently dealing with a child is committed where the circumstances involve the accused in sexual conduct that does not constitute sexual penetration.92 The term ‘deals with’ includes conduct that, if done without consent, would constitute an assault.93 Reference has been made above to the meaning of the term ‘indecent’ (see 14.44–14.47), to the reliance on a mistaken belief in the victim’s age and, in Western Australia, to the defence of marriage: see 14.57. 14.63 Under the Code (Qld) s 210, indecent dealing with a child is one of the following indictable offences of indecent treatment of children under the age of 16 years: (a) unlawfully and indecently deals with a child under the age of 16 years; or (b) unlawfully procures a child under the age of 16 years to commit an indecent act; or (c) unlawfully permits himself to be indecently dealt with by a child under the age of 16 years; or (d) wilfully and unlawfully exposes a child under the age of 16 years to an indecent act by the offender or any other person; or (e) without legitimate reason, wilfully exposes a child under the age of 16 years to any indecent object or any indecent film, videotape, audiotape, picture, photograph or printed or written matter; or (f) without legitimate reason takes any indecent photograph or records, by means of any device, any indecent visual image of a child under the age of 16 years.

14.64 The provision also sets out the punishment. Thus, if the child is at least 12 years of age, the offence is punishable by 14 years’ imprisonment. It is punishable by 20 years’ imprisonment where the

child is under 12 years of age or is, to the accused’s knowledge, his or her lineal descendant or under his or her care. That penalty also applies if the accused is the child’s guardian. 14.65 In Western Australia, the Code s 319(3) provides that a reference to a person indecently dealing with a child includes procuring or permitting the child to deal indecently with the person, procuring the child to deal indecently with another person and committing an indecent act in the presence of the child. Indecently dealing with a child is a crime punishable: by 10 years’ imprisonment where the child is under the age of 13 years;94 by 7 years’ imprisonment where the child is at least 13 years of age and under the age of 16 years; by 10 years’ imprisonment where the child of that age is under the care, supervision or authority of the accused; by 4 years’ [page 355] imprisonment where the child of that age is not under the care, supervision or authority of the accused and the accused is under the age of 18 years;95 and by 5 years’ imprisonment where the child is 16 or 17 years of age and under the care, supervision or authority of the accused.96

Intellectually or psychiatrically impaired victims 14.66 The Codes make provision for the protection from sexual abuse of incapable persons, that is, those with an intellectual or psychiatric impairment. The offences include anal and vaginal penetrations as well as other instances of sexual interference, noted above, in relation to indecent treatment of children: see 14.48, 14.51.

Queensland

14.67 In Queensland, the class of persons protected is described as those who are intellectually impaired, which is defined in the Code (Qld) s 229F as meaning a disability:97 (a) that is attributable to intellectual, psychiatric, cognitive or neurological impairment or a combination of these; and (b) that results in — (i)

a substantial reduction of the person’s capacity for communication, social interaction or learning; and (ii) the person needing support.

14.68 Under the Code (Qld) s 216(1), it is a crime punishable by 14 years’ imprisonment to have unlawful vaginal intercourse98 with an intellectually impaired person; under the Code (Qld) s 208, it is a crime punishable by 14 years’ imprisonment to have anal intercourse with an intellectually impaired person or for a person to permit an intellectually impaired person to sodomise him or her;99 and, under the Code (Qld) s 216(2), it is a crime punishable by 10 years’ imprisonment to indecently deal with an intellectually impaired person. Greater penalties apply if the accused is the person’s guardian, if the person is under his or her care or if the person is, to the accused’s knowledge, his or her lineal descendant. The greater penalties are 14 years’ imprisonment for indecently dealing with the person and life imprisonment where the accused had anal or vaginal intercourse with the person.100 With these offences, it is a defence for the accused to prove that he or she reasonably believed the person was not intellectually impaired or that the conduct of the accused was not, in the circumstances, sexual exploitation of the person.101 [page 356]

Western Australia 14.69 In the Code (WA) s 330 it is an offence to engage in sexual behaviour with a person who is mentally impaired. The Code s 330(1) defines such a person as one incapable:

(a)

of understanding the nature of the act the subject of the charge against the accused person; or

(b) of guarding himself or herself against sexual exploitation.

Under the Code (WA) s 330(2), it is a crime punishable by 14 years’ imprisonment to sexually penetrate an incapable person. Under the Code (WA) s 330(4), it is a crime punishable by 7 years’ imprisonment to indecently deal with such a person. In both cases, greater penalties apply if the person is under the care, supervision or authority of the accused.102 It is an express element of this offence in Western Australia that the accused knew, or ought to have known, that the person was an incapable person. It is therefore an element of the offence that the prosecution must prove beyond reasonable doubt, although the Code (WA) s 330(9) provides that it is a defence for the accused to prove that he or she was lawfully married to the incapable person: see 14.53.

Maintaining a sexual relationship with a child 14.70 In addition to the crimes against children which focus on individual acts of sexual penetration of, or indecent dealing with, a child, the Codes also make it a crime to maintain a sexual relationship with a child.

Queensland 14.71 Under the Code (Qld) s 229B, it is a crime punishable by life imprisonment for an adult to maintain an unlawful relationship of a sexual nature with a child under the prescribed age, but the prosecution cannot be commenced without a Crown law officer’s consent.103 The prescribed age is 16 years except for offences involving anal penetration in which case it is 18 years. A minimum degree of conduct is required before a sexual relationship will be established. Under the Code (Qld) s 229B(2), this is satisfied where the accused has, over any period, done more than one unlawful sexual act that constitutes an offence of a sexual nature104 other than an offence in the Code (Qld) s 210(1)(e) or (f).105

Western Australia 14.72 Under the Code (WA) s 321A(4), it is a crime punishable by 20 years’ imprisonment for a person to have a sexual relationship with a child under the age of 16 years. The sexual relationship is established if the accused, on three or more occasions, each of which is on a different day, does an act in relation to the [page 357] child that would constitute a prescribed offence.106 The indictment must be signed by the Director or Deputy Director of Public Prosecutions.107

Proof 14.73 Pursuant to the Code (WA) s 321A(5), evidence may be led that the offences alleged against the accused occurred even if it does not disclose the date or exact circumstances of them. However, in KBT (1997) 191 CLR 417; 149 ALR 693, the High Court held that this dispensation with respect to proof applied only to the dates and circumstances relating to the occasions on which the acts were committed and that it did not detract from the need to prove the actual commission of acts that constitute offences of a sexual nature. The court also held that there cannot be a conviction unless the jury agree as to the commission of the same three or more acts constituting the offences of a sexual nature. That case was distinguished in S [1999] 2 Qd R 89 by the Court of Appeal where, unlike in KBT, the conduct of the accused was alleged to have occurred on some 150 occasions. Since those cases were decided, Code (Qld) s 229B has been repealed and replaced. The section now provides that the prosecution is not required to allege, and the jury is not required to be satisfied of, the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence. It also provides that all the

members of the jury are not required to be satisfied about the same unlawful acts.108

Defences 14.74 With these crimes, it is a defence, under the Code (Qld) s 229B(5) and (WA) s 321A(9) for the accused to prove that he or she believed, on reasonable grounds, that the child was the relevant age. The Queensland provision requires that the child be at least 12 years of age before the defence can apply and, in Western Australia, it is only applicable if the accused also proves that he or she is not more than 3 years older than the child. Additionally, in the Code (WA) s 321A(8), it is a defence for the accused to prove that he or she was lawfully married to the child: see 14.53.

Incest Queensland 14.75 The Codes make punishable sexual conduct between persons who are in a blood or lineal relationship. In Queensland, the crime of incest is found in the Code s 222 and requires proof of carnal knowledge: see 14.5. Other forms of sexual conduct are punishable under the general offences outlined above, with heavier penalties being imposed where the victim is a descendant or under the care of the accused, or where the accused is the guardian of the victim.109 Incest is punishable [page 358] by life imprisonment, and the crime requires proof of carnal knowledge,110 by the accused, of his or her lineal descendant, sibling, parent, grandparent, uncle, aunt, nephew or niece. The relationship includes half and adoptive relationships as well as step relationships, provided any such step relationship did not arise after the parties

became adults.111 Knowledge by the accused of the relationship is required and, while the issue of consent by either person is not relevant to the crime of incest, it is a defence for the accused to prove that he or she was coerced by the other person.112

Western Australia 14.76 In Western Australia, sexual offences where blood relationship is involved are dealt with under the Code (WA) s 329, and the provision extends to an offence involving a de facto child which is defined as a stepchild of the accused or a child or stepchild of the accused’s de facto partner.113 14.77 For incest in Western Australia, the reference is to a lineal relative, which is defined to embrace the wide range of relationships noted above for Queensland.114 Under the Code (WA) s 329(2), it is a crime for the accused, whether male or female, to sexually penetrate (see 14.10) a child who is known by the accused to be a lineal relative or a de facto child.115 This is punishable by 20 years’ imprisonment if the child is under the age of 16 years and 10 years’ imprisonment where the child is of, or over, the age of 16 years. Under the Code (WA) s 329(4), it is a crime to deal indecently with a child who is known by the accused to be his or her lineal relative or de facto child: see 14.71. This is punishable by 10 years’ imprisonment if the child is under the age of 16 years and by 5 years’ imprisonment if the child is of or over the age of 16 years. Under the Code (WA) s 329(7), it is a crime to sexually penetrate a person of, or over, the age of 18 years who the accused knows is his or her lineal relative. This is punishable by 3 years’ imprisonment.

Knowledge of relationship 14.78 These offences require proof of knowledge of the relationship and the prosecution is able to rely upon a presumption that a person has knowledge of the blood relationship when the crime is committed.116

Offences that anticipate breaches of morality 14.79 The Codes contain offences that anticipate a breach of morality or that are intended to prevent persons from being placed in circumstances where they may be involved in the commission of an offence of a sexual nature. A detailed treatment of these offences is not given here but some reference is made to them. [page 359]

Queensland 14.80 The Queensland provisions that protect children have, as their focus, the taking or procuring117 of a child for a sexual purpose and the offering of inducements by owners of premises for children to be thereon for such purposes. The offences include: the procuring of a non-adult person to engage in carnal knowledge;118 using electronic communication to procure a child under the age of 16 years to engage in a sexual act;119 taking a child under the age of 16 years for the purposes of doing an act that would constitute an offence under the Code ss 208, 210 or 215;120 and being an owner or occupier of premises who permits a child under the prescribed age to be on his or her premises for the purposes of the commission of any such offence.121 The ‘prescribed age’ is 18 years for the Code (Qld) s 208 and 16 years for the Code (Qld) ss 210 and 215. 14.81 The protection under the Queensland Code extends beyond that of children. Thus, it is a crime to procure, by threat, intimidation of any kind or by a false pretence, another person to engage in a sexual act; or to administer a drug to a person with intent to stupefy or overpower the person, to enable a sexual act to be engaged in with

that person.122 The Queensland Code also prohibits the doing of indecent acts, distributing prohibited visual recordings and publicly exposing others to obscene publications and exhibitions.123

Western Australia 14.82 In Western Australia, children are protected by provisions that make it a crime to procure, incite or encourage a child to engage in sexual behaviour or to do an indecent act.124 Under the Code (WA) s 319(4), a person is said to engage in sexual behaviour if the person sexually penetrates any person, has carnal knowledge of an animal, penetrates the person’s own vagina (which term includes the labia majora), anus or urethra with any object or any part of the person’s body for other than proper medical purposes.125 14.83 It is also a crime to record indecently a child; the term ‘record indecently’ means take or permit to be taken and make or permit to be made an indecent photograph, film, videotape or other recording, including a sound recording.126 [page 360] Specific provision is made for the accused who, knowing of the relevant relationship, procures, incites or encourages a child who is a lineal relative or a de facto child to engage in sexual behaviour, to do an indecent act or to record indecently such a child.127 That same range of conduct is punishable in respect of an incapable person where the accused knew, or ought to have known, the person was an incapable person.128 14.84 Some provisions in the Western Australian Code focus on the occupiers of premises who allow young people to be on those premises for stated sexual purposes.129 As in Queensland, protection is not limited to children. Procuring a person, male or female, to become a prostitute or work in a brothel and procuring anyone to

have unlawful carnal knowledge by threat, administration of drugs are misdemeanours.130

fraud

or

the

Bestiality 14.85 Under the Code (Qld) s 211 and (WA) s 181, it is a crime to have carnal knowledge of an animal. The term ‘carnal knowledge’ is defined in the Code (Qld) and (WA) s 6.131 _________________________________ 1. 2.

Code (Qld) ss 349–352; (WA) ss 323–328. Code (Qld) ss 208, 209, 210, 215, 216, 222, 229B; (WA) ss 320, 321, 321A, 322, 329.

3. 4.

Code (Qld) ss 217, 218, 218A, 219, 221; (WA) ss 191, 192, 204B. For procuration using the internet, see Shetty [2005] 2 Qd R 540. Code (Qld) s 213; (WA) s 186.

5. 6.

Code (Qld) s 211; (WA) s 181. Code (Qld) ss 227, 228, 228A–228H; (WA) ss 203, 204, 204A, 204B.

7.

Code (Qld) ss 229C–229O; in Western Australia, prostitution is not a crime but various activities associated with prostitution (for example, the establishment and running of brothels) are criminalized: Prostitution Act 2000 (WA) Pts 2, 3. A Bill to amend the legal regime governing prostitution was introduced into the Western Australian Parliament in 2011, but at the time of writing this had stalled. Code (Qld) s 6(2). ‘Sodomy’ is not defined but means penile penetration of the anus of a male or female.

8.

9. As to the extent required, see Christophers (2000) 23 WAR 106 at 122. 10. See Stevens and Doglione [1989] 2 Qd R 386; Beck [1990] 1 Qd R 30; Chapter 9. 11. Code (Qld) s 352(1). 12. Code (Qld) s 352(2), (3). 13. See Stevens and Doglione [1989] 2 Qd R 386; Beck [1990] 1 Qd R 30; Chapter 9. 14. For comment on ‘proper medical purposes’, see Zaidi (1991) 57 A Crim R 189 at 209. 15. ‘Cunnilingus’ is oral contact with the vulva or clitoris, not requiring vaginal penetration: see DPP Reference No 1 of 1992/1993 (1993) 9 WAR 281; 65 A Crim R 197 at 203, in relation to ‘sexual penetration’ before amendment to its present form. ‘Vagina’ now includes labia majora. ‘Fellatio’ is oral contact with the penis. See also Randall (1991) 55 SASR 447. 16. For ‘bodily harm’, see Code (WA) s 1; 13.29. 17. Roden (1981) 14 Tas R 97. 18. See also Millar [2000] 1 Qd R 437; Pryor (2001) 124 A Crim R 22 at 29. 19. See also Olugboja [1981] 3 WLR 585 at 592; IA Shaw [1996] 1 Qd R 641 at 646.

20. See also Brewer [1994] 2 NZLR 229. 21. See also Flattery (1877) 2 QBD 410; Linekar [1995] QB 250. 22. Compare Maurantonio (1967) 65 DLR (2d) 674; Bolduc and Bird [1967] SCR 677. 23. Note the misdemeanour to procure a female by threats, intimidation or false pretence, to have unlawful carnal connection with a man: Code (WA) s 192(1), (2). For ‘carnal knowledge’, ‘carnal connection’ and ‘penetration’, when the term is used in defining an offence, it is implied that the offence, so far as regards that element of it, is complete upon penetration: see Code (WA) s 6. 24. The position at common law in relation to fraud as to purpose is found in Mobilio [1991] 1 VR 339. The court found that the accused’s fraud as to the purpose of ultrasound examinations was insufficient to invalidate the victims’ consent to the examinations. 25. The third judge in the Court of Appeal, Miller JA, concluded that it was open to the jury on the evidence to find that the victim had consented on the basis of a combination of deceit, threats and intimidation. Therefore, he did not specifically address the question of what sorts of fraud were sufficient to vitiate consent. 26. See Kake [1960] NZLR 595 at 597–8 with reference to the Crimes Act 1961 (NZ) s 211(1)(c); Merembu-Bongab [1971-1972] PNGLR 433. But note Pryor (2001) 124 A Crim R 22 at 40. 27. As noted, Steytler P took a broad view of the section, and Heenan AJA held that the scope of the section extended beyond the current common law to include deceit as to the identity of the victim’s sexual partner as well as deceit as to the purpose of the act. 28. See Morgan [1976] AC 182; Cogan [1976] QB 217; Sperotto (1970) 92 WN (NSW) 223; Flannery and Prendergast [1969] VR 31; Brown (1975) 10 SASR 139; Mrzljak [2005] 1 Qd R 308; Aubertin v State of Western Australia (2006) 33 WAR 87. 29. See Re Attorney-General’s Reference (No 1 of 1977) [1979] WAR 45 at 50–1; Aubertin v State of Western Australia (2006) 33 WAR 87; Mrzljak [2005] 1 Qd R 308; Verdon (1987) 30 A Crim R 388; IA Shaw [1996] 1 Qd R 641 at 646; Millar [2000] 1 Qd R 437; Parsons [2001] 1 Qd R 655 at 657; 8.73. 30. See Saibu (1993) 10 WAR 279; Ibbs (1987) 163 CLR 447; 74 ALR 1, but note Ibbs (2001) 122 A Crim R 377. 31. The Code (Tas) s 1 reads: ‘the penetration to the least degree of the organ alleged to have been known, by the male organ of generation’. See also Saibu (1993) 10 WAR 279. 32. Criminal Law (Sexual Offences) Act 1978 (Qld); Evidence Act 1906 (WA) ss 36B–36BC. 33. It should be noted here that research into the reporting of sexual assault shows that many complainants are deterred from testifying because of the traumatic experience of the court process: see Community Development and Justice Standing Committee, Inquiry into the Prosecution of Assault and Sexual Offences, Report No 6 (Parliament of Western Australia, 2008), Ch 3. 34. See Mayberry [1973] Qd R 211. 35. See also Robertson [1991] 1 Qd R 262; Ugle (1989) 167 CLR 647; 88 ALR 513; Crofts (1996) 186 CLR 427; 139 ALR 455; Jones (1997) 143 ALR 52; 71 ALJR 538 at 538–9; M (2000) 109 A Crim R 530 at 534–5. 36. Chapter XXII sets out offences against morality. 37. See Narkle v State of Western Australia [2011] WASCA 160, although in that case there was

found to be no relevant delay, and hence no need for a warning. 38. See also Suresh (1998) 153 ALR 145; 72 ALJR 769; M (1994) 181 CLR 487 at 514; 126 ALR 325; K (1999) 107 A Crim R 195 at 228; Cook (2000) 22 WAR 67 at 92–3; FGC v State of Western Australia (2008) 183 A Crim R 313. 39. ‘Complaint’ includes a disclosure: Criminal Law (Sexual Offences) Act s 4A(6). It includes a disclosure after suggestive questioning: see AW [2005] QCA 152. 40. ‘Preliminary complaint’ means any complaint other than: (a) the complainant’s first formal witness statement to a police officer given in, or in anticipation of, a criminal proceeding in relation to the alleged offence; or (b) a complaint made after the complaint mentioned in (a): Criminal Law (Sexual Offences) Act 1978 (Qld) s 4A(6). 41. RH [2005] 1 Qd R 180; Ross [2007] QCA 244. 42. See also Kilby (1973) 129 CLR 460 at 467; 1 ALR 283; Cummings [1948] 1 All ER 551; Ives [1973] Qd R 128; Giffin [1971] Qd R 12; Hedges (1909) 3 Cr App R 262; Warrill [1943] St R Qd 39; Roisseter [1984] 1 Qd R 477; M (2000) 109 A Crim R 530 at 535; S (2002) 129 A Crim R 339 at 344–5. 43. See also Suresh (1998) 153 ALR 145; 72 ALJR 769. 44. See Adams and Ross [1965] Qd R 255. 45. See Osborne [1905] 1 KB 551 at 556; Dubois [1966] QWN 25; P [2000] 2 Qd R 401 at 408. 46. See also Sakail [1993] 1 Qd R 312. 47. See Longman (1989) 168 CLR 79; 89 ALR 161; Case Stated by DPP (No 1 of 1993) (1993) 66 A Crim R 259. 48. Code (Qld) s 632; Evidence Act 1906 (WA) s 50. 49. The implications of the victim’s distress were recently discussed in Narkle v State of Western Australia [2011] WASCA 160. 50. Evidence Act 1906 (WA) s 36BE, now replaced by Evidence Act 1906 (WA) s 50. 51. Code (Qld) s 1; Evidence Act 1906 (WA) s 3. 52. See BRS (1997) 191 CLR 275; 148 ALR 101; 95 A Crim R 400 at 404 per Brennan CJ. 53. See Longman (1989) 168 CLR 79; 89 ALR 161; Petty (1994) 13 WAR 372; FGC v State of Western Australia (2008) 183 A Crim R 313; Robinson (1995) 13 WAR 451; Crofts (1996) 186 CLR 427; 139 ALR 455; Aristidis [1999] 2 Qd R 629; Robinson (1999) 197 CLR 162; 165 ALR 226; Cook (2000) 22 WAR 67 at 95; Crampton (2000) 206 CLR 161; 176 ALR 369; Christophers (2000) 23 WAR 106; Doggett (2001) 208 CLR 343; 182 ALR 1; Crisafio (2003) 27 WAR 169. 54. See Rolfe (1952) 36 Cr App R 4. 55. Code (Qld) s 352(1). 56. Code (Qld) s 352(2). 57. Code (Qld) s 352(3)(a). 58. Code (Qld) s 352(3)(b). 59. See 4.10–4.11. 60. For penalty, see 14.38. 61. Code (Qld) ss 210, 216, 352; (WA) ss 320(4), 321(4). 62. See also Purvis v Inglis (1915) 34 NZLR 1051 at 1053; Court [1989] AC 28; Harkin (1989) 38

A Crim R 296. 63. See Drago at 493–8, 501–2. 64. See Brombey [1952] QWN 32; Cook [1927] St R Qd 348. 65. Leeson (1968) 52 Cr App Rep 185. 66. See Kelleher (1974) 131 CLR 534; 4 ALR 450; 14.25–14.35. 67. Code (Qld) s 578; (WA) s 325; Ball [1948] St R Qd 212; Redgard [1956] St R Qd 1. 68. For ‘proper medical purposes’, see Zaidi (1991) 57 A Crim R 189 at 209. 69. Code (Qld) s 222; (WA) s 329. 70. Code (Qld) s 211; (WA) s 181. 71. Code (Qld) s 210; (WA) ss 320(4), 321(4), 322(4). 72. Code (Qld) ss 208, 215; (WA) ss 320(2), 321(2), 322(2). 73. Code (Qld) ss 208, 216; (WA) s 330. 74. Code (Qld) s 229B; (WA) s 321A. 75. Code (Qld) ss 552B(1)(h), (5), 552D. 76. See Cook [1927] St R Qd 348; Scruby (1952) 55 WALR 1; Abernethy (1916) 18 WALR 108; Deen [1964] Qd R 569; 14.23–14.31. 77. Code (Qld) s 208. Sodomy is not defined but is included in the definition of carnal knowledge: see Code (Qld) ss 1, 6; 14.5. But note the exclusion of sodomy in Code (Qld) ss 215, 216. 78. Code (Qld) ss 210, 215. 79. Code (WA) s 322. 80. Code (Qld) s 229; (WA) s 331. 81. Code (Qld) ss 208(3), 210(5), 215(5). 82. Code (WA) s 320. 83. Code (WA) s 321(9). 84. Code (WA) s 322(7). 85. Code (WA) ss 321(10), 322(8). 86. ‘Marriageable age’ is 18 years: see Marriage Act 1961 (Cth) s 11; but a child of 16 or 17 years may marry where the requirements of Marriage Act 1961 (Cth) s 12 are met. 87. The reference is to ‘carnal knowledge’ but sodomy is excluded and is provided for in Code (Qld) s 208. See 14.5. 88. In G (1997) 91 A Crim R 590, ‘guardian’ was held to mean legal guardian, at common law or as appointed by will, deed or court order; it did not include a stepfather. 89. Code (WA) s 320(2). 90. Code (WA) s 321(2), (7). 91. Code (WA) s 322(2). 92. Saraswati (1991) 172 CLR 1; 100 ALR 193; see 14.10. 93. Code (Qld) ss 210(6), 246(2); (WA) s 319(1); Young [1955] QWN 38; S [1996] 1 Qd R 559 at 561–2; Aristidis [1999] 2 Qd R 629; P [2000] 2 Qd R 401 at 408–9; for assault, see 13.5. 94. Code (WA) s 320(4).

95. Code (WA) s 321(4). 96. Code (WA) s 322(4). 97. The definition is given general application by Code (Qld) s 1. 98. The reference is to ‘carnal knowledge’ but sodomy is excluded and is provided for in Code (Qld) s 208. See 14.5. 99. For punishment, see 14.55. 100. Code (Qld) ss 208(2), 216(3), (3A). 101. Code (Qld) ss 208(4), 216(4); see 14.54. 102. In relation to offences under s 330(2) or (3), a maximum of 20 years’ imprisonment applies; in relation to offences under s 330(4) or (5), a 10-year maximum applies. 103. For ‘Crown law officer’, see Code (Qld) s 1. 104. For ‘offence of a sexual nature’, see Code (Qld) s 229B(10). 105. Section 210(1)(e), (f) relates to conduct such as exposing a child to indecent literature or taking indecent photographs. 106. ‘Prescribed offences’ are those in ss 320(2), (4), 321(2), (4); or in ss 320(3) or 321(3) where the child in fact engages in sexual behaviour: see Code (WA) s 321A(11). 107. Code (WA) s 321A(6). 108. Code (Qld) s 229B(4); Act No 3 of 2003 (Qld) commenced on 1 May 2003. 109. Code (Qld) ss 208–210, 215, 216. 110. For ‘carnal knowledge’, see ss 1, 6; see 14.5. 111. Code (Qld) s 222(5)–(7). 112. Code (Qld) s 222(3), (4). 113. Code (WA) s 329(1). 114. Code (WA) s 329(1). 115. For ‘de facto child’, see 14.72. 116. Code (Qld) s 636(2); (WA) s 329(11); O’Regan [1961] Qd R 78. 117. To procure is to knowingly entice or recruit for the purpose of sexual exploitation: Code (Qld) ss 217(2), 218(2), 218A(10). 118. Code (Qld) s 217. 119. Code (Qld) s 218A. Electronic communication means email, internet chat rooms, SMS messages, real time audio/video or other similar communication: Code (Qld) s 218A(10). 120. Code (Qld) s 219. 121. Code (Qld) s 213. 122. Code (Qld) s 218. For ‘procure’, see above n 117. 123. Code (Qld) ss 227, 227A, 227B, 228. 124. Code (WA) ss 320(3), (5), 321(3), (5), 322(3), (5); see 14.61. 125. For ‘proper medical purposes’, see Zaidi (1991) 57 A Crim R 189 at 209. 126. The offence provisions are in Code (WA) ss 320(6), 321(6), 322(6). The definition of ‘record indecently’ is found in Code (WA) s 319(1).

127. Code (WA) s 329(3), (5), (6). 128. Code (WA) s 330(3), (5), (6). 129. Code (WA) s 186. 130. Code (WA) ss 191, 192. 131. See 14.5; above n 22. For ‘animal’, see Code (Qld) s 1. There is no definition in the Code (WA).

[page 361]

Chapter Fifteen Offences Relating to Property

Introduction 15.1 The Code (Qld) and (WA) Pt 6 makes provision for offences relating to property. These comprise: stealing and analogous offences;1 robbery and extortion;2 unlawful entry;3 fraud;4 receiving;5 and damage to property.6 15.2 This chapter refers to the following offences within the above categories that most frequently come before the courts: stealing;7 unlawful use of a motor vehicle;8 receiving;9 robbery;10 burglary;11 fraud;12

[page 362] demanding property by threats;13 and damage to property.14

Stealing Penalties Queensland 15.3 Under the Code (Qld) s 398 the crime of stealing in its basic form is punishable by 5 years’ imprisonment. More severe penalties apply in particular cases. In Queensland, the more severe punishments and their circumstances of application are: life imprisonment if the thing stolen is a testamentary instrument; a fine of 10 penalty units if the thing stolen is stock; 14 years’ imprisonment if the thing stolen is a firearm (intended for use in the commission of an indictable offence) or a vehicle; 10 years’ imprisonment in a range of circumstances such as: – where the thing is stolen from the person of another; – where the thing is stolen in a dwelling house and exceeds $1000 in value or was taken with a threat of violence; – where the thing is stolen from a vehicle; – where there is a relationship between the stealing and the accused’s position (such as a public servant, clerk, servant, company director, agent or tenant); – where the value of the thing exceeds $5000 or after previous conviction; – where the thing stolen is a firearm; or – where the thing was stolen from an area declared under the Disaster Management Act 2003 (Qld) or was looted.

Western Australia 15.4 In Western Australia, the basic form of stealing under the Code (WA) s 378 is punishable by 7 years’ imprisonment. The more severe punishments and their circumstances of application are: 14 years’ imprisonment in a range of situations such as: – where the thing is stolen from the person of another;15 –

where the thing is stolen in a dwelling house and exceeds $10,000 in value or was taken with a threat of violence;16 or

–

where the thing is stolen from a vehicle;17 [page 363]

10 years’ imprisonment where: – the thing stolen is a testamentary instrument or an aircraft;18 or – there is a relationship between the stealing and the accused’s position (such as a public servant, clerk, servant, company director or agent);19 8 years’ imprisonment if the thing stolen is a motor vehicle and the offender drives in a manner that constitutes an offence of reckless or dangerous driving.20

Procedure Queensland 15.5 In some circumstances, the crime of stealing can be the subject of summary proceedings, but the magistrate must abstain from hearing the matter summarily if satisfied that the defendant may not be adequately punished on summary conviction. However, where the defendant pleads guilty, and regardless of the value of the thing stolen, the magistrate will deal with the matter summarily if he or she

considers that the defendant can be adequately punished in such proceedings.21 A magistrate may not determine the matter summarily if the defendant is alleged to be a vicious lawless associate under the Vicious Lawless Association Disestablishment Act 2013 (Qld).22

Western Australia 15.6 Under the Code (WA) s 426(2), provision is made for a summary conviction penalty for forms of stealing relating to stealing from the person of another23 or stealing from an employer.24 These will be heard and determined summarily in the Magistrates Court unless a successful application is made by the prosecution or the accused, before the accused pleads to the charge, that the charge be tried on indictment.25 The summary conviction penalty if the value of the property does not exceed $1000 (including motor vehicles) is $6000; if the property is a motor vehicle valued at over $1000 or the value of other property does not exceed $10,000 it is imprisonment for 2 years or a fine of $24,000.26

Definitions Taking and conversion 15.7 Although the crime of stealing is found in the Code (Qld) s 398 and (WA) s 378, the definition of ‘stealing’ is found in the Code (Qld) s 391 and (WA) s 371. There are two ways by which stealing can be established: either by a taking [page 364] or by a conversion. The concepts of taking and conversion are not defined in the Codes, but the former relates to physical interference with the thing stolen and conversion arises where the accused deals with the thing in a manner inconsistent with the rights of the true owner.27

Item must be moved or dealt with 15.8 The Code (Qld) s 391(6) and (WA) s 371(6) provide that the act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise actually deals with it by some physical act. This reflects the common law view that there must be asportation before the offence is committed. The smallest degree of movement is sufficient to meet that requirement. In Wallis v Lane [1964] VR 293, the accused, with the intention of stealing certain goods that were being carried on a truck driven by him, moved the goods from one position to another on the truck. Herring CJ held that there was sufficient asportation to constitute the offence of larceny, the common law equivalent to stealing.28 The offence was committed even though the goods had not been removed from the truck.29 In Johnston [1973] Qd R 303, it was held that the Code (Qld) s 391(6) and (WA) s 371(6) perform the negative function of securing a potential offender from punishment but cannot be relied on to show that a person is not still in the process of stealing once the initial movement has occurred. Johnston had been found guilty of breaking, entering and stealing by virtue of the party provisions of the Code. The prosecution case was that X had broken and entered a shop for the purpose of stealing certain items and that the accused, in keeping watch outside, had raised the alarm and caused X to abandon the endeavour. On appeal, it was argued that, because the accused had warned X after X had initially moved the goods, the accused could not be guilty of breaking, entering and stealing, because the stealing had already been completed. The Court of Criminal Appeal held that the breaking, entering and stealing was a single offence and that, on the facts, the jury might have concluded it was a continuing offence at least up until the time that the warning was given. 15.9 There is no definition of conversion in either the Queensland or Western Australian Codes. The Australian High Court in Ilich (1987) 162 CLR 110; 69 ALR 231 defined conversion as dealing with property in a way that is inconsistent with the rights of the owner.

Thus, where the accused obtains possession of the thing with the consent of the owner, or otherwise obtains it without the necessary fraudulent intent, but where, in either case, the accused decides subsequently to deal with it in a manner inconsistent with the rights of the owner, the conversion [page 365] will arise at that time.30 Dealing with a thing inconsistently with the rights of the owner includes: keeping it;31 selling it;32 or changing its appearance.33 It is therefore immaterial whether the property converted is taken for the purpose of conversion or whether the property was in the accused’s possession at the time of the conversion.34 15.10 Where the accused has possession of the property and retains it for safe-keeping or pending a final determination of what to do with it, there will be no conversion unless and until a fraudulent intent is formed.35 In Angus [2000] QCA 29, the accused hired electronic video games but did not return them, in accordance with the terms of the contract of hire, on the following day. The court quashed the conviction for stealing on the basis that passive possession in merely retaining the items beyond the return date was not sufficient to constitute conversion because it did not amount to dealing with them in a manner that was inconsistent with the true owner’s rights. The distinction between a taking and a conversion has assumed less importance with acceptance of the notion that taking is a continuing act, so that where a thing is taken without the requisite fraudulent intention but where that intention is subsequently formed, it has been held that stealing arises because of the continuing nature of the concept of taking.36

‘Things capable of being stolen’ 15.11 The Code (Qld) s 390 and (WA) s 370 contain a definition of what constitutes ‘things capable of being stolen’ for the purposes of the crime of stealing. 15.12 Queensland The Code (Qld) s 390 applies to stealing by fraudulent taking and fraudulent conversion. It reads: Anything that is the property of any person is capable of being stolen if it is: (a) movable; or (b) capable of being made movable, even if it is made movable in order to steal it.

[page 366] That provision must be read with the broad definition of ‘property’ in the Code (Qld) s 1, which provides that the term includes: (a) everything animate or inanimate that is capable of being the subject of ownership; and (b) money;37 and (c) electrical or other energy, gas and water; and (d) a plant; and (e) an animal that is — (i) a tame animal, whether or not naturally tame; or (ii) an untamed animal of a type that, if kept, is usually kept confined; or

(f)

(iii) an untamed animal in a person’s possession or being pursued for return to possession after escape; and a thing produced by an animal mentioned in paragraph (e); and

(g) any other property real or personal, legal or equitable, including things in action and other intangible property.

15.13 Western Australia In Western Australia, the definition of ‘things capable’ of being stolen is only referable to the crime of the ‘taking’ form of stealing. The Code (WA) s 370 is less extensive than its Queensland counterpart in that it does not extend to intangible things, such as a debt, the value of a cheque,38 or intellectual property such as copyright or trademark. Further, it refers only to personal property and not to real property. The provision outlines various

types of animals that are capable of being stolen but also includes a reference to a broad range of tangible items. In so far as it defines inanimate things, the Code (WA) s 370 reads: Every inanimate thing whatever which is the property of any person, and which is movable, is capable of being stolen. Every inanimate thing which is the property of any person, and which is capable of being made movable is capable of being stolen as soon as it becomes movable, although it is made movable in order to steal it.

That definition does not apply in respect of stealing by conversion. In such a case, the thing stolen must be ‘property’, which is defined in the Code (WA) s 1 as including real and personal property and everything, animate or inanimate, capable of being the subject of ownership. Property is further defined in s 371(7) to include certain kinds of intangible property, including any description of real and personal property, money, debts, bank credits, 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. That definition gives stealing, at least in respect of the conversion of property, the same broad ambit as for stealing in Queensland. Although the references in the Code (WA) s 370 would seem to be limited to tangible movable items, in Sawiris v Scott [1979] WAR 39, the Full [page 367] Court of the Supreme Court of Western Australia held that this provision did not provide an exhaustive list of things capable of being stolen and that the definition of property in the Code (WA) s 371(7) serves to extend that provision to include intangible items such as choses in action.39 In Kingdon v State of Western Australia (2012) 223 A Crim R 449; [2012] WASCA 74, the Western Australian Court of Criminal Appeal confirmed this wide interpretation of property in s 371(7), in a case in which the accused was charged with stealing money under s 371(2)(f)

in circumstances in which she had fraudulently converted bank credits. On appeal the accused claimed that ‘money’ as used under the latter section did not include ‘bank credits’. In rejecting this submission, Martin CJ stated at [36]: That submission must be rejected as it is clear that the terms used in s 371(7) are not intended to be mutually exclusive. The section specifically refers to ‘any description of real and personal property’ and the various forms of personal property thereafter specified clearly come within that general description and are, to that extent, repetitive.

This comment appears to be consistent with the finding in Sawiris v Scott [1979] WAR 39.

Ownership, possession and control 15.14 The Code (Qld) s 390 and (WA) s 370 require that the property must belong to a person, although it is made clear in the Code (Qld) s 566(15) and the Criminal Procedure Act 2004 (WA) Sch 1 cll 6(5)(d) and 10 that, if the property was owned by one of two or more persons, but where it is not known by which one, the indictment may describe the property as being the property of one or other of such persons, naming each of them but without specifying which of them. Furthermore, where the ownership is unknown, the indictment may allege ownership in a person unknown and, where that is alleged, the prosecution must prove that ownership is unknown.40 The definition of ‘property’, relevant for the offence of conversion in the Code (WA), does not include a requirement that the property belong to a person, although it must be ‘capable of being the subject of ownership’, and s 371(7) refers to property that ‘has been originally in the possession or in the control of any person’. 15.15 In the more usual situation, where ownership is both known and alleged, the Crown must establish such ownership. In O’Brien [1981] WAR 305, the prosecution alleged that a quantity of drugs belonged to the Commonwealth Repatriation Commission but was unable, due to the unavailability of evidence, to prove that fact. Application was made to amend the indictment by adding, after the reference to the commission, the words ‘or the property of persons whose identity

[page 368] has not been proved to the satisfaction of the court’.41 As the application was made after addresses to the jury, the trial judge refused leave to amend and directed a verdict of acquittal. On appeal, the Court of Criminal Appeal, by majority, upheld the trial judge’s ruling, saying that the amendment could not be made as it was not a case where the owner was unknown or deceased, but rather where the owner was known, where that was alleged in the indictment, but not proven. 15.16 Although ownership must ordinarily be established, it is not necessary that the person who is deprived of the thing stolen is the owner, where that term is used in the limited sense of the person able to establish legal title to the property. This is because the term ‘owner’ has an extended meaning under the Codes so that stealing becomes an offence against possession or control rather than against ownership. Under the Code (Qld) s 391(7), the thing stolen will be the property of another if that other person is the owner or part owner of it, possesses it or has a special property in it. In Western Australia, there is no similar definition of owner42 but the definition of ‘property’ in s 371(7) refers to a person who has had possession or control of the property. The term ‘possession’ is defined in the Code (Qld) and (WA) s 1 in terms that include control. The Queensland definition of ‘owner’ extends to a person who has a special property in the thing stolen and that term also features in the Code (WA) s 371(2)(b). Thus, under the Code (Qld) s 391(2AA) and (WA) s 371(2), one of the means of establishing fraudulent intent is to show that the accused intended to deprive any person who has any special property in a thing stolen. The term ‘special property’ is defined in those provisions to include: Any charge or lien upon the thing [or property (WA)] in question, and any right arising from or dependent upon holding possession of the thing [or property (WA)] in question, whether by the person entitled to such right or by some other person for his benefit.43

Thus, suppose the accused left his or her motor vehicle with a garage proprietor for repair. The proprietor has a special property in

that vehicle in the form of a lien over it.44 If the accused or, indeed, any other person took the vehicle without the consent of the proprietor, the crime of stealing could arise. This broadening of the concept of ownership thereby enables a person to be found guilty of stealing his or her own property.45 The concept of ‘control’ is broader than that of possession. In Walk [1981] Qd R 380, the tenant of a furnished house was found guilty of stealing chattels from the house. Ownership of the property was alleged to be in the letting agent on the basis of the agent’s control over them.46 Where the property is owned by a [page 369] corporation, partnership or association of which the accused is a member, the accused can be guilty of stealing that property.47

Mental element 15.17 For a person to steal something, the taking or conversion of it must be fraudulent. This requires proof of one of the intents listed in the Code (Qld) s 391(2) and (WA) s 371(2).48 These comprise an intent to: deprive the other person49 of it permanently; use it as a pledge or security; part with it on a condition about its return that the person may be unable to perform; deal with it in a way that it cannot be returned in the same condition; or if the property is money, use it at the accused’s will, even if the accused intends to repay the other person afterwards.

Permanent deprivation

15.18 The first of those intentions, to deprive the other person of it permanently, represents the usual case of stealing in the popularly understood sense and will usually be inferred from the manner that the accused deals with the property.50 For example, in Marshall, Coombes and Eren [1998] 2 Cr App R 282, the Court of Appeal held that there was an intent to permanently deprive London Underground Limited of revenue when the accused collected travel tickets from passengers leaving a railway station and resold them at a reduced price to intending travellers.51 It will not be satisfied if the accused only had an intention to deprive the person of the thing temporarily.52 15.19 Temporary deprivation is sufficient with the other forms of intention, each of which involves some risk of permanent loss.53 The accused who takes property with the intention of pawning it, even though intending to redeem it and return it, will have the fraudulent intention of using it as a pledge or security. In many cases, there will be no distinction between that form of intention and the next, which relates to parting with the thing on a condition about its return that the accused may be unable to perform. For example, the accused who pawned the item above may not be able to redeem it. Another example of the third form of intention would arise where A and B enter into a wagering agreement whereby the loser is to give an item to the winner. Suppose that, for the duration of the contest, C is the stakeholder to whom A and B must surrender the item each is wagering. If A gives to C an item that he or she has taken from D, A has acted fraudulently [page 370] because A may not win the contest. In Bowman [1980] WAR 65, the accused broke and entered another person’s storage yard and took certain goods, apparently to retain temporarily until such time as that other person made payment of a debt due to the accused. The Court of Criminal Appeal in Western Australia held that this was not an example of an intention to use the property (the goods) as a pledge or

security because the section required an intention by the accused to pledge the property or give security over it to a third person. Wickham J, relying on the context of the provision and the remainder of the subsection, held that the words used connoted an intention which did not include an intention on the part of the taker to retain the property.

Changed condition 15.20 In order to have an intention to deal with property in a way that it cannot be returned in the same condition, a substantial degree of alteration is required. In Bailey [1924] QWN 38, the accused had been discharged from his employment as a chauffeur. When he left, he removed the car without the permission of the owner and used it for three days in a series of joyrides. He had no intention to deprive the owner of it permanently and, as the wear and tear to the vehicle caused by using it in the way the accused did was too slight to establish an intent to deal with it in such a manner that it could not be returned in the condition in which it was at the time it was taken, he was not guilty of stealing the vehicle. However, he could be convicted of stealing the petrol that was in the car when he took it.54 In Hitchcock v Thorpe (1992) 16 MVR 232, the intentional damaging of a door-lock of a vehicle by the accused to gain entry to the vehicle in order to steal it was a sufficient intent to deal with it in a way that it could not be returned in the same condition.55

The case of money 15.21 The final form of intention is applicable if the property is money. It will be sufficient if the accused intends to use it at his or her will, even if he or she intends to repay the same amount afterwards. Thus, where money is involved, unlike the case with other forms of property, temporary deprivation in the form of borrowing may constitute stealing.56 Note that this is the case with ‘money’ in the physical sense of notes and coins, not in the wider sense of including proprietary interests associated with funds deposited in a bank.57

Mistaken belief in owner’s consent 15.22 In establishing what constitutes fraudulent intention on the part of the accused, the prosecution is not required to establish that the taking or conversion was effected without the consent of the owner. As Gibbs CJ pointed out in Ilich (1987) 162 CLR 110; 69 ALR 231, the practical effect of the Code provisions, at least [page 371] in a case where no question of special property arises and where there is no intent to defraud, is that a person will not be criminally responsible if he or she acts with the consent of the owner or under an honest and reasonable but mistaken belief that he or she is acting with the owner’s consent.58 The acts of the accused may be fraudulent even though done without secrecy or any attempt at concealment.59

Lost items 15.23 Provision is also made, in the Code (Qld) s 391(5) and (WA) s 371(5), for the situation where the accused has found and then retained something apparently lost. In that situation, the conversion will not be fraudulent if, at the time of converting it, the accused did not know who its owner was and reasonably believed the owner could not be found. That provision is concerned only with the commission of a criminal offence and gives no indication of the ownership of the property. The onus of negativing both elements of the provision rests with the prosecution.60 However, where property has been abandoned by its owner, it cannot be stolen because it is no longer the property of any person.61 In Dolby v Stanta [1996] 1 Qd R 138, it was held that the proof by the prosecution of an engraved name on a torch, which was alleged to have been found by the defendant and retained by him, was sufficient to discharge the onus it carried

under the Code (Qld) s 391(5), thereby justifying the summary conviction for stealing of the torch in that case.

Where property in the item has passed 15.24 Under the Codes, stealing is effectively an offence against possession or control: see 15.16. However, where, in addition to mere possession or control, the victim surrenders ownership in the sense of passing property in the thing to the accused, subsequent action by the accused that is inconsistent with the rights of that victim could not, at common law, constitute stealing. Subject to certain qualifications outlined below, this is also the general position under the Codes. Whether property has passed will depend upon the intention of the victim at the time of surrendering possession.62 15.25 Where the victim is acting under a mistake, it may be that there was no real intention to pass property in the thing transferred. In Ilich (1987) 162 CLR 110; 69 ALR 231, the High Court held that, for mistake to prevent the passing of property, it must be of a ‘sufficiently fundamental’ kind. In their joint judgment, Wilson and Dawson JJ held that 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 quality of [page 372] the thing delivered’ (at CLR 126 and 139–44). As an example of the first kind of mistake, reference was made to Middleton (1873) LR 2 CCR 38. There, the accused was convicted of larceny in circumstances where a post office clerk handed him, by way of withdrawal from a savings account, an amount more than was standing to his credit in the account. The clerk had mistakenly referred to a letter that authorised payment, but to another depositor, not the accused. Ashwell (1885) 16 QBD 190 was referred to as an example of a mistake in the second category. There, the accused was convicted of larceny in

circumstances where he had asked for a loan of a shilling but had been handed, by mistake, in the dark, a sovereign. Some time later, when he realised the mistake, the accused decided to keep the more valuable coin. In the third category of mistake was Russell v Smith [1958] 1 QB 27. There, the accused was convicted of theft where eight sacks too many of pig meal were mistakenly delivered to the accused, who appropriated them. 15.26 In all these situations, because of the mistake, property will not have passed and the accused could be guilty of stealing. On the other hand, where the mistake was not of such a fundamental character, possession and ownership would pass in accordance with the victim’s intention and, accordingly, the accused could not be guilty of stealing. The majority of the High Court held that such was the position on the facts of Ilich (1987) 162 CLR 110; 69 ALR 231. There, as payment for his locum service to a veterinary clinic, the accused was handed a quantity of banknotes by the owner. By mistake, the accused was overpaid in the amount of $530. The accused did not count the money at the time and did not become aware of the mistake until later that evening. The majority of the High Court held that there was no fundamental mistake of the kind referred to above. On that view, property had passed and the accused could not be guilty of stealing under the Western Australian Code. 15.27 An alternative approach referred to by the High Court in Ilich was that, in the case of currency, property passes with possession in circumstances where the transferee is unaware of the mistake. Thus, on the facts, where the accused had taken the money without being aware of any mistake, property in the money passed with possession and he could not be guilty of stealing under the Western Australian Code (at CLR 129 and 138). Of course, the accused will be indebted to the payer in the amount of the overpayment. The position would be different if the accused had known of the overpayment at the time he received it. In Kennison v Daire (1986) 160 CLR 129; 64 ALR 17, the High Court upheld a conviction for larceny by an accused who, having closed his account at a bank, used a card that had been issued to him to cause an automatic teller machine to dispense money which

he, knowing he had no title to the money, appropriated. In Ilich, Brennan J considered that Kennison v Daire would be decided the same way under the Code (at CLR 141).63 15.28 In certain situations, the Codes enable a person to be convicted of stealing something, despite the fact that property in the thing would, in the usual sense, have passed. Thus, when a person receives any money, valuable security or power [page 373] of attorney with respect to property, along with a direction that such shall be applied in a particular way, the money and proceeds thereof are deemed to be the property of the person from whom the money, security or power of attorney was received until the direction has been complied with.64 These provisions are subject to the condition that they do not operate if the parties deal with each other on the basis that the relationship between them is one of debtor and creditor only.65

Where item is no longer identifiable 15.29 In Queensland, there is a further provision that deals with the stealing of something where, after it has been received by the accused, the circumstances are such that it is then not identifiable and where property in it has passed to the accused. Under the Code (Qld) s 391(2A), the accused is presumed to have acted fraudulently if the thing is taken without discharging or making arrangements with the previous owner to discharge the accused’s indebtedness or other lawful obligation in relation to the thing. The provision relates to property such as fungibles which, like fluids or grains, cannot be identified after being mixed with a similar substance. It resolves problems such as those associated with the accused who refuels his or her car at a self-service petrol station and leaves without paying. Property in the petrol has passed to the accused and, in the absence of a provision such as the Code (Qld) s 391(2A), the accused could not be

guilty of stealing.66 The presumption that the accused acted fraudulently is rebuttable.67

Regulatory offences 15.30 In Queensland, offences analogous to stealing are found in the Regulatory Offences Act 1985 (Qld). Sections 5 and 6 of that Act provide: 5.

Unauthorised dealing with shop goods

(1) Any person who, with respect to goods in a shop of a value of $150 or less — (a) consumes them without the consent, express or implied, of the person in lawful possession of them; (b) deliberately alters, removes, defaces or otherwise renders indistinguishable a price shown on them without the consent, express or implied, of the person in lawful possession of them; or (c) whether or not the property in the goods has passed to him, takes them away without discharging, or attempting honestly, or making proper arrangements, to discharge his lawful indebtedness therefor, is guilty of a regulatory offence. (1A) Without limiting subsection 1(b), a price may be shown on goods by a bar code or similar device. (2) It is a defence to a charge of an offence defined in subsection (1)(c) to prove that the taking away of the goods was not dishonest.

[page 374] 6. Leaving hotel etc without payment (1) Any person who, with respect to food, drink, accommodation, or like goods and services, of the value of $150 or less obtained from any restaurant or hotel, motel, boarding house or like premises — (a) leaves such premises without discharging, or attempting honestly, or making proper arrangements, to discharge, his or her lawful indebtedness therefor; or (b) purports to pay for them with a cheque that is not met on presentation or a credit card or similar document the person is not authorised to use; is guilty of a regulatory offence and, subject to section 9, is liable to a fine of $300. (2) It is a defence to a charge of an offence defined in subsection (1)(b) to prove the defendant believed on reasonable grounds the cheque would be paid in full on presentation or the defendant was authorised to use the credit card or similar document.

The offences in s 5(1)(a) and (c) refer to circumstances that would constitute stealing, the former having the additional requirement that the prosecution prove consumption without consent of the person in lawful possession and the latter provision making it immaterial that property has passed: see 15.26. The offences in ss 5(1)(b) and 6 are analogous to obtaining by fraud: see 15.97. 15.31 Regulatory offences are determined summarily: see 4.29. Many of the excuses in Ch 5 of the Code are not available to a defendant charged with any of these offences: see the Code (Qld) s 36(2). However, in respect of the offences in ss 5(1)(c) and 6(1)(b), defences are specifically provided and this is a matter that the defendant will be required to prove on the balance of probabilities: see 6.19.

Recent possession 15.32 The common law doctrine of recent possession, which is an example of circumstantial evidence, is applicable to all offences involving theft. It enables a presumption of guilty knowledge to be raised against an accused. Although not referred to in the Codes, this doctrine has been incorporated into the criminal law of the Code states.68 15.33 In Schama and Abramovich (1914) 11 Cr App R 45 at 49, where the accused were charged with receiving stolen goods, Lord Reading CJ referred to the operation of the doctrine: Where the prisoner is charged with receiving stolen property, when the prosecution has proved the possession by the prisoner, and that the goods had been recently stolen, the jury should be told that they may, not that they must, in the absence of any reasonable explanation, find the prisoner guilty. But if an explanation is given which may be true, it is for the jury to say on the whole evidence whether the accused is guilty or not; that is to say, if the jurors think that the explanation may reasonably be true, though they are not convinced that it is true, the prisoner is entitled to an acquittal, because the Crown has not discharged the onus of proof imposed upon it of satisfying the jury beyond reasonable doubt of the prisoner’s guilt.

[page 375]

15.34 Schama and Abramovich makes it clear that the doctrine of recent possession raises a presumption of fact rather than one of law so that it is a matter to be determined by a jury.69 This was confirmed by the High Court in Bruce (1987) 74 ALR 219; 61 ALJR 603 at 603, where Mason CJ, Brennan, Deane, Dawson and Gaudron JJ said:70 Where an accused person is in possession of property which is recently stolen, the jury is entitled to infer as a matter of fact, in the absence of any reasonable explanation, guilty knowledge on the part of the accused. Such an inference will be drawn from the unexplained fact of possession of such property and not from any admission of guilt arising from the failure to proffer an explanation. It is the possession of recently stolen property in the absence of explanation or explanatory circumstances, which enables the inference to be drawn. Thus the absence of any reasonable explanation must not itself be explicable in a manner consistent with innocence. The accused must have had an opportunity to give an explanation in circumstances where, if he is innocent, an explanation might reasonably be expected. Those circumstances do not encompass the situation where an accused, having been duly cautioned, declines to answer questions by the police in the exercise of his right to do so. On the other hand, the fact that the caution was given or that the right to silence was asserted or exercised does not itself provide an explanation of the possession of recently stolen goods or necessarily negate the existence of circumstances of unexplained possession of such goods where such circumstances otherwise exist.

Elements 15.35 The prosecution must prove that the accused was in possession of the goods.71 The prosecution must also prove the necessary degree of relationship between the goods as found and the goods stolen.72 In addition, it must be shown that possession was recent. In McCaffrey [1911] VR 92, Madden CJ said at 95: There is no fixed period of time which in all cases will constitute recent possession. The period is relative to the subject-matter which is found in the prisoner’s possession. The length of the period is subject to other considerations also. For example, in the case of a commonplace thing like a piece of money, which, even if it were marked, might still pass in the ordinary course of exchange unnoticed, or in the case of those classes of commodities which would challenge nobody’s attention when bought in the open market or at the door, the period would be very short. It would be going too far to say that in such a case a person found in possession of the particular thing should be called upon to account for this possession except within a very brief period after it was lost. If, on the other hand, the thing found is a thing not commonly passing from hand to

hand — a thing which would challenge inquiry and fix itself in the memory of a man into whose possession it came — in that case the period of time which would be ‘recent possession’ would be a much longer period. One can easily understand that there are commodities as to which possession of five, ten, or even twenty years might not be considered too long a period to be ‘recent possession’.

[page 376] In that case, possession of a skirt and blouse 9 months after the theft was considered to be recent.73 However, in Hardy [1924] QWN 26, possession of a stolen flute and its case more than 7 months after the alleged stealing was held not to be recent, considering the nature of the articles. In Wanganeen (1988) 50 SASR 433, possession of a wheelrim and tyre and a marked $100 note a week after they were stolen was held to be sufficiently recent for the presumption to be drawn. In Carle [2002] WASCA 71, the Court of Criminal Appeal in Western Australia held that the trial judge should direct the jury on the meaning of the term ‘recent’ in the context of the circumstances it was considering.

Application 15.36 Although recent possession has been referred to above in the context of stealing, it has a wider application and is relevant to any analogous offence.74

Unlawful use of motor vehicle 15.37 Under the Code (Qld) s 408A and (WA) s 371A, there is a specific provision dealing with the accused who unlawfully uses a motor vehicle. The Queensland provision creates a crime in its own right and the provision in Western Australia creates a special case of stealing. These provisions owe their existence to difficulties associated with proving that a vehicle was stolen when the purpose of the accused was to take the vehicle on a temporary basis, often for ‘joyriding’. In that situation, the accused may not have the fraudulent

intent sufficient to constitute stealing: see 15.19. Where the taking of the vehicle was accompanied by a fraudulent intent such as to deprive the owner of the vehicle of it permanently, or of interfering with it so that it cannot be returned in the same condition, a conviction for stealing would be open. Indeed, even temporary deprivation, such as in the case of joyriding, would be embraced by the crime of dishonest application to use under the Code (Qld) s 408C(1)(a), which is part of the crime of fraud: see 15.87–15.108.

Queensland 15.38 Under the Code (Qld) s 408A, it is a crime punishable by 7 years’ imprisonment for the accused to: (a) unlawfully use a vehicle, aircraft or vessel75 without the consent of the person in lawful possession of it, or (b) possess any such vehicle without the consent of the person in lawful possession of it with intent to deprive that person or its owner of the use and possession of it, either temporarily or permanently.

This crime is punishable by 10 years’ imprisonment if the accused uses or intends to use the vehicle to facilitate the commission of an indictable offence. It is [page 377] punishable by 12 years’ imprisonment if the accused wilfully destroys, damages, removes or otherwise interferes with the mechanism of the vehicle or equipment attached to it or intends to do so. It is a defence for the accused to prove, on the balance of probabilities, that he or she had the lawful consent of the vehicle’s owner. Nevertheless, this requirement does not obviate a reliance on the claim of right excuse under the Code (Qld) and (WA) s 22 in circumstances such as arose in Pollard [1962] QWN 13: see 8.27. There, the accused alleged not that the owner had consented to the use of the vehicle, but that the owner would have consented had he been asked.

Possession without lawful owner’s consent 15.39 The crime in the Code (Qld) s 408A(1)(b) focuses upon possession by the accused without the consent of the person in lawful possession. The concept of possession is different from that of ‘lawful possession’. In Judkins [1979] Qd R 527 at 529–30, the Court of Criminal Appeal adopted the following description of possession as that term was used at common law: It was there used in relation to moveable things in three different senses: first, to signify mere physical possession; second, to signify possession in the legal sense; and third, to signify the right to possession. Physical possession has sometimes been described as ‘actual’, ‘manual’ or ‘de facto’ possession. Possession in the legal sense may exist without physical possession. It is possession attributed in law to a person and describes his or her legal relation to the thing with respect to other persons. It has sometimes been called constructive possession. The right to possession has also been called ‘possession’ and ‘constructive possession’.

15.40 The court concluded that the word ‘possession’ in the Code (Qld) s 408A(1)(b) was a reference to the narrowest of these meanings and that it embraced the definition of ‘possession’ in the Code s 1, which includes: … having under control in any place whatever, whether for the use or benefit of the person of whom the term is used or of another person, and although another person has the actual possession or custody of the thing in question.

Such possession will be established where the accused is proven to have had the thing under his or her control: see 16.12. On the other hand, the term ‘lawful possession’ imported the broader notions referred to above from the common law. Thus, the bailee of a motor vehicle who failed to surrender it at the expiration of the bailment was held to be within the provision.76 In Judkins [1979] Qd R 527, the accused had borrowed H’s van on the condition that it be returned by a certain time. After the deadline, the accused continued to use the vehicle for his own purposes. It was held that, during that latter period, the accused was in possession but that H was in lawful possession. Technically, H was not the owner of the vehicle. Rather, he was in the process of purchasing the vehicle and was the hirer of it under a hire–purchase agreement. However, the section requires that

consent be obtained from the person in lawful possession rather than from the owner. [page 378]

Intention to deprive owner of possession 15.41 A further element in the offence provided for in the Code (Qld) s 408A(1)(b) is that the accused have an intent to deprive either the owner or the person in lawful possession of the thing of its use and possession either temporarily or permanently.77 15.42 The Summary Offences Act 2005 (Qld) s 25 makes it an offence to unlawfully enter or use a vehicle without the consent of the person in lawful possession of the vehicle or have a vehicle in the person’s possession without the consent of the person in lawful possession of it, with intent to temporarily or permanently deprive the other person of the use or possession of the vehicle. The offence is punishable by 20 penalty units or 1 year’s imprisonment.

Western Australia 15.43 In Western Australia, the Code s 371A makes the unlawful use of a motor vehicle a special case of stealing. It requires proof that the accused unlawfully used a motor vehicle,78 took a motor vehicle for the purposes of using it, or drove or otherwise assumed control of a motor vehicle. In each case the prosecution must prove beyond a reasonable doubt that this was done without the consent of the owner or the person in charge of that motor vehicle, a position distinct from Queensland where this is not an element of the offence.79 The provision overcomes the need for proof of an intention to permanently deprive the owner of the vehicle of it.

Nature of use 15.44

The term ‘use’ appears in both the Code (Qld) s 408A and

(WA) s 371A but is not defined. In Bollmeyer v Daley [1933] SASR 295 at 297 the term was held by the South Australian Court of Criminal Appeal to cover ‘every degree of use’ for the purposes of the Motor Vehicles Act 1921 (SA) s 21, which refers to the accused who ‘drives or uses’ any motor vehicle. On the other hand, the Tasmanian Court of Criminal Appeal, in Welsh [1962] Tas SR 213, held that, for the purposes of the Traffic Act 1925 (Tas) s 37(1), the ‘use’ of a vehicle is limited to such use as is incidental to its normal use as a unit in road traffic and did not extend to an accused who pushed a vehicle a short distance at night so that he could use its headlights.80 However, there is no justification for limiting the scope of the provision in the Criminal Code to ‘traffic-oriented’ uses of the vehicle. The term would seem to be wide enough to include a variety of uses that do not involve driving the vehicle. Certainly, in Western Australia, where the term ‘use’ is but one means of establishing the offence, this would be the case. In any event, the position should be the same in Queensland, with the term extending to non-driving uses such as sleeping in the car without the owner’s consent or standing on the roof of the car to improve the accused’s view, for example, of a sporting event. [page 379]

‘Taking and using’ 15.45 The consent to use a vehicle may be limited to a specific purpose. Where that is the nature of the consent, the accused will be unlawfully using the vehicle if the scope of consent is exceeded. Thus, in Hollingsworth v Bean [1970] VR 819, the accused was permitted by the owner of the vehicle to sit in the latter’s vehicle at lunchtime for the purpose of eating his lunch and listening to the radio. On one such occasion, the accused drove the car away and was convicted under the Crimes Act 1958 (Vic) s 81(2) of ‘taking and using’ the car without the consent of the owner.81 In the situation that arose in Hollingsworth v Bean, under the Western Australian provision, the accused would be

guilty of taking for the purpose of using or driving the vehicle. The same result should also be achieved under the Queensland provision through application of the term ‘use’.

Procedure 15.46 In Queensland, the matter will be summarily determined unless the defendant elects trial by jury. However, the magistrate must abstain from hearing the matter summarily if satisfied that the defendant may not be adequately punished on summary conviction.82 In Western Australia, the Code s 371A concerns a form of stealing and the matter may be summarily determined in the same manner as for that offence: see 15.6. 15.47 In addition to the Code offences, there are simple offences relating to the unlawful use of, and interference with, motor vehicles.83 In Collidge v Russo [1984] WAR 1, it was held that, to be interfered with for the purposes of the Road Traffic Act 1974 (WA) s 90, the object had to be changed in some way.

Receiving 15.48 Traditionally, the crime of receiving has been considered to be more serious than any of the other indictable offences, such as stealing, which must be committed by someone before the elements of receiving can be established.84 Under the Code (Qld) s 433 and (WA) s 414, it is a crime for the accused to receive anything (Queensland) or any property (Western Australia) that has been obtained by means of an act constituting an indictable offence. In addition to property obtained by an indictable offence committed within the state, the provisions extend to property that was obtained by an act committed outside the state, although the act must have constituted both an offence in the other place and an indictable offence in the state.85 [page 380]

Penalties Queensland 15.49 The Code (Qld) s 433(6) provides for a punishment of 7 years’ imprisonment but with more severe punishments in the following situations: where the offence by which the thing was obtained is a crime: 14 years’ imprisonment;86 and if the thing received is a firearm or ammunition, or where the accused was acting in the capacity of a pawnbroker or dealer in second-hand goods, under a licence or otherwise: 14 years’ imprisonment.87

Western Australia 15.50 The Code (WA) s 414 provides that the offender is liable to the penalty relevant to the kind of offence by which the property was obtained or by imprisonment for 14 years, whichever is the lesser.

Elements Property obtained through an indictable offence 15.51 The crime of receiving requires proof that the property was obtained by means of a previously committed indictable offence, although it is not necessary that the person who obtained the property be amenable to justice.88 Therefore, when a thing has been obtained by means of an indictable offence, and another person has acquired lawful title to it, a subsequent receiving of the property by the accused is not an offence even though the accused knows that the thing was previously so obtained. Thus, protection is afforded to the accused who receives property after some third person has acquired lawful title to it.89 15.52 While the Code (Qld) s 433 refers to anything that has been obtained by means of an indictable offence, the Code (WA) s 414 refers to property so obtained. The difference in terminology is not

material and each provision extends the crime of receiving to include any other property that the original property has been converted into or mortgaged, pledged or exchanged for.90 This extension of the concept of thing (Queensland) or property (Western Australia) overcomes the difficulty revealed in Richards [1934] QWN 19, where the accused received a sum of five shillings in coins, which was his share of a stolen one-pound note. He could not be guilty of receiving the coins because it was not part of the substance of the note actually stolen. The case was decided prior to the amendment of the Code to its present form. [page 381]

Actual receipt 15.53 The crime of receiving requires proof of an actual receiving of the property by the accused. For that purpose, it is sufficient if the accused had possession91 of it, either alone or with someone else, or helped to dispose of it or hide it.92 However, the crime of receiving requires that, at the time of receiving, the accused had the relevant state of mind; therefore, the fact of possession must be accompanied by this mental element. The accused must have, in Queensland, ‘reason to believe’ and, in Western Australia, ‘knowledge’ that the thing was obtained by means of an indictable offence. Until it was amended in 1997, the Code (Qld) s 433 was expressed in the same terms as the Code (WA) s 414 in that it also required knowledge of how the thing was obtained. In Patterson [1906] QWN 32, the verdict of the jury on an indictment charging the accused with stealing and receiving93 was that the accused was guilty of having possession of the stolen property knowing it to have been stolen. The trial judge treated this as a verdict of guilty of receiving. On appeal, it was held that the verdict was consistent with the view that the accused discovered, after he had received it, that the property had been stolen. The conviction was set aside.

Innocent receipt 15.54 In Patterson [1906] QWN 32, the accused was not guilty of receiving because the relevant mental element was absent at the time of receipt of the thing. In Johnson (1911) 6 Cr App R 218 at 220, Grantham J confirmed the requirement that the conduct and mental element coincide in time: The innocent receipt of a chattel and a subsequent dishonest appropriation of it after knowledge that it is stolen do not constitute the crime of receiving unless something takes place after the guilty knowledge which can be regarded either as a fresh act of receiving or as completing the original receiving if the latter was in fact incomplete at the time.

The physical act of receiving was held to be complete in Murphy v Porter (1984) 12 A Crim R 38, where a pre-arranged delivery of property to the accused’s premises took place when he was not present. However, he only realised it was stolen upon first observing it at a later time. Again, there could be no conviction of receiving because there was no coincidence in time between receipt and knowledge of the origin of the item. Where there is no prior arrangement for such delivery, the question of whether there has been a receiving will depend on the actions of the accused upon learning of the presence of the property. On the other hand, physical receipt by prior arrangement of goods known by the accused to be stolen will satisfy the requirements of the provision.94 15.55 An innocent receipt may also arise in another context. This is where a person takes possession of something, knowing it to have been stolen, but with an [page 382] intention of returning it to the owner or to the appropriate authorities. In Matthews [1950] 1 All ER, the Court of Criminal Appeal said at 138: If the appellant received the property with the intention at once of handing it over to the police, that would not be a felonious receiving. The court cannot possibly accept the argument which has been addressed to it on behalf of the prosecution that a person

who intends at once to hand to the police, or its true owner, stolen property which has come into his possession, is nevertheless guilty of the felony of receiving stolen property. That is so startling that I am surprised the argument can be put, and, if, when the property is received, the receipt is innocent, the fact that the receiver changes his mind and later misappropriates the property does not turn the receipt into a felony.

That case was cited with approval for the Code (WA) s 414 in Illingworth (2000) 127 A Crim R 302 at 306.

Knowledge of the accused 15.56 The mental element of receiving is the most difficult element of the crime for the prosecution to prove. Until 1997, the Code (Qld) s 433 and (WA) s 414 both required proof of knowledge of how the thing in question was obtained. This clearly involves a subjective analysis. It has, however, been held that in order to prove knowledge it is sufficient to prove belief,95 although anything less than a belief is not sufficient. Accordingly, where the accused has a ‘pretty good idea’ or a suspicion that property was stolen, this will not be sufficient to constitute knowledge. 15.57 Frequently, evidence discloses that the accused shut his or her eyes to the truth, or even asserted a desire not to know of the origin of the property. This is sometimes referred to as wilful blindness, although the term has been criticised as one that is apt to mislead a jury.96 Wilful blindness by the accused cannot be equated with knowledge or belief but proof that the accused deliberately closed his or her mind to the source of the property may, in an appropriate case, amount to evidence from which an inference of knowledge or belief could be drawn.97 15.58 The accused’s knowledge of the source of the thing received must be determined by reference to a subjective standard, and therefore the actual knowledge of the accused must be considered.98 As with the mental element of intention, knowledge or belief is a matter that the jury may infer from the surrounding circumstances such as those in which the property was found or acquired. For example, the transaction may have been accompanied by attempts at concealment, or may have involved an offer to sell at a greatly

reduced price, in which cases the inference of knowledge may be readily drawn.99 [page 383] 15.59 The strictness of the need to prove knowledge by the accused is ameliorated by the terms of the Code (Qld) s 433(1), which requires proof that the accused had reason to believe that the thing in question was obtained by means of an indictable offence. The amendment introduces an objective component into the analysis and the mental element will be established if the circumstances are such that there was, objectively, reason to believe that the things were obtained by means of an indictable offence. A similar approach is taken in the Code (WA) s 417(2), which states that it is a defence to a charge of possessing stolen or unlawfully obtained property to prove that the accused had no reasonable grounds for suspecting that it was stolen or unlawfully obtained.

Receiving and stealing 15.60 Usually, the accused cannot be convicted of receiving property that was actually stolen by him or her. Thus, when receiving is alleged but the evidence suggests stealing, the accused cannot be convicted of receiving.100 However, in Saliba [1973] 1 Qd R 142, a conviction for stealing and receiving was upheld in circumstances where the accused’s role in the stealing was as a counsellor or procurer under the Code (Qld) s 7.101 Where the prosecution is uncertain of whether the accused stole or received the property, the Code (Qld) s 568(9) permits joinder of the charges and, where the evidence shows one of those offences has been committed but does not indicate which one, the accused can be convicted of the offence for which the lesser punishment is provided.102 15.61

Section 16 of the Summary Offences Act 2005 (Qld) creates an

offence of unlawfully possessing a thing reasonably suspected of having been stolen or unlawfully obtained, punishable by 20 penalty units or 1 year’s imprisonment.

Robbery 15.62 The crime of robbery is found in the Code (Qld) s 411 and (WA) s 392. These provisions appear to create separate offences of robbery, punishable by 14 years’ imprisonment, and robbery with the presence of some other factor that requires the imposition of a greater maximum penalty.103 In Queensland, a penalty of life imprisonment is applicable if the accused is armed with, or pretends to be armed with, any dangerous or offensive weapon or instrument, is in company or, at or immediately before or immediately after the time of the robbery, he or she wounds or uses any other personal violence to any person.104 In Western Australia, life imprisonment is applicable if, immediately before or at or immediately after the commission of the offence, the offender is armed with any dangerous or offensive weapon or instrument or pretends to be so armed and this becomes imprisonment [page 384] for 20 years if the offence is committed in circumstances of aggravation.105 Those circumstances are set out in the Code (WA) s 391 as arising if, immediately before or at or immediately after the commission of the offence, the offender is in company with another person or persons; the offender does bodily harm to any person; the offender threatens to kill any person; or the person to whom violence is used or threatened is of or over the age of 60 years. In Gillespie v The State of Western Australia (2013) 45 WAR 207, the Western Australian Court of Appeal noted that the Code (WA) s 392 does not create two separate offences of robbery and armed robbery. Martin CJ held that there is one offence of robbery, albeit that if

committed in certain circumstances will attract a greater maximum penalty (at [8]): It should be noted that s 92 does not create a separate offence of armed robbery, in the sense that being armed is an additional element which distinguishes such an offence from the offence of robbery. Rather, the effect of the section is to provide that if the offence of robbery is committed in a particular circumstance, being the circumstance defined in s 92(c), the maximum penalty that may be imposed is life imprisonment.

Martin CJ extended this approach to the situation where it is alleged that the accused committed the robbery in aggravating circumstances under the Code (WA) s 391. Again, he took the view that this does not constitute a separate offence, but rather the offence of robbery in circumstances which attract a different maximum penalty; ‘aggravated robbery’ is therefore not a separate offence (at [9]).

Definition of ‘robbery’ 15.63 The term ‘robbery’ takes its meaning from the statement of the offence in the Code (Qld) s 409 and (WA) s 392: Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use [actual]106 violence to any person or property in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen, is said to be guilty of robbery.

Robbery and stealing 15.64 As stealing is included in the definition of robbery, the elements of that crime must be established. Indeed, stealing is an alternative verdict on an indictment charging robbery.107 In Queensland, a verdict of assault is not an alternative to robbery.108 This reflects the fact that, while all robberies necessarily involve a stealing, they do not necessarily involve an assault, because the violence may be offered to property rather than a person. However, assault is an alternative offence under the Code (WA) s 392. [page 385]

Element of violence 15.65 The important distinguishing feature between stealing and robbery is the additional element of violence, a threat of which will suffice.109 In Agius [2015] QCA 277, the Queensland Court of Appeal quashed a conviction for robbery where the defendant handed over to a pharmacy employee a piece of cardboard on which he demanded two prescription medications ‘and no one gets hurt’. The Court of Appeal found at [24] that: [T]he threat implicit in the words on the note did not convert the act or gesture of handing over the note into the act by which force was threatened to be applied. This was not a case where the assault and the threat were constituted by the same act. The act of handing over the note was the means of communicating an implied threat but, even so, clearly there was no threat to apply force ‘by’ that act itself. The handing over of the note was not itself an act or gesture by which force was attempted or threatened to be applied, even when viewed in the context of the words on the note. The contents of the note did not convert the act in question into one by means of which a threat was to be effected.

15.66 The term ‘violence’ is not defined in the Codes, and the Code (WA) s 392 refers only to violence, while the Code (Qld) s 409 refers to actual violence. However, this is not material and, as Gibbs CJ said in De Simoni (1981) 147 CLR 383 at 393; 35 ALR 265, when expressing the view that there is no difference between using actual violence to any person and using personal violence to any person, actual violence means no more than physical force that is real and not merely threatened or contemplated.110 In Hood (2000) 111 A Crim R 556, the accused struggled to escape from the victim whose money he had snatched from the top of an ATM where the victim had placed it. He was held to have been properly convicted of robbery on the basis of violence offered immediately after stealing the money, which was offered for the purpose of overcoming resistance to it being stolen. While the smallest amount of actual violence will suffice as an element of the crime of robbery, not all force applied to the person of another will constitute such actual violence. In Jerome and McMahon [1964] Qd R 595 at 601, Gibbs J suggested that the removal of a purse

or shoes from the body of an unconscious or otherwise non-resisting person did not necessarily amount to actual violence. 15.67 The violence must be offered for one of the purposes stated in the provision; that is, to enable the accused to obtain the thing stolen or to prevent or overcome resistance to it being stolen.111 Consequently, it would not be robbery if the evidence showed that the accused assaulted the victim and subsequently, as an afterthought, stole property from the victim. However, where the purpose is established, the timing of the violence is required by the definition to be at, or immediately before, or immediately after, the time of the stealing. The violence used by the accused need not be offered directly to the person from whom property is stolen. It may be [page 386] offered to any person and it might be offered to property, providing it was for the stated purpose and in the stated time-frame. 15.68 With these factors in mind, it is not difficult to see that, in a particular set of circumstances, a case of stealing could readily become one of robbery, making the accused liable to a much greater penalty.112 The Codes reduce the effect of this with special cases of stealing in the Code (Qld) s 398(4)(a), (b) and (WA) s 378(5)(a), (b), which arise: … if the thing is stolen from the person of another; or if the thing is stolen in a dwelling and its value exceeds $1,000 (Qld)/$10,000 (WA), or the offender at or immediately before or immediately after the time of stealing uses or threatens to use violence to any person in the dwelling.

In the first of those instances, the thing stolen must be removed completely from the victim or from the victim’s control.113 The second instance is more limited than robbery as it applies only to offences committed within a dwelling,114 where the thing stolen exceeds the stated value and where violence is threatened to a person. Additionally, in this special case of stealing, the prosecution does not

need to prove the purpose for which the violence or threat thereof was offered.

Aggravating circumstances Armed robbery 15.69 One of the circumstances of aggravation for robbery that leads to a heavier penalty is that the accused was either armed or pretended to be armed. The reference to pretence would include the situation where the accused pretended to be armed by carrying a short portion of a rifle barrel protruding from a plastic bag in a manner to suggest that it was a rifle.115 An offensive weapon or instrument can be something that is not in common use for any other purpose than a weapon. This would include a gun, sword or ‘cosh’. For other things to qualify, there must be a thing ‘which when carried, so that the carrier can be said to be armed with it, is intended to be used to inflict bodily harm, it being a thing which is useable for that purpose’.116 It has been extended to a syringe filled with blood.117 In Western Australia, armed robbery is dealt with under the Code (WA) s 392(c) as a more serious form of robbery, whereas separate aggravating circumstances are listed under s 391 and attract a different maximum penalty under s 392(d).

Accused in company 15.70 Another circumstance of aggravation that leads to a heavier penalty is that the accused was in company. In Brougham (1986) 43 SASR 187, the accused [page 387] was convicted of robbery of a taxi-driver in company under the Criminal Law Consolidation Act 1935 (SA) s 158. The accused and another man were passengers in the victim’s taxi. When it stopped

and the driver requested the fare, the accused struck him. The other man told the accused to remove the driver from the vehicle and he then attempted to start the motor. The other man eventually ran away and the driver detained the accused until the police arrived. After referring to the relevant authorities in relation to the meaning of ‘being in company’, King CJ said at 191:118 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 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.

Assault with intent to rob 15.71 Most cases of robbery will involve an assault, although this is not inevitable because the crime of robbery envisages a threat of violence either to property or a person. However, the Codes contain crimes analogous to robbery that require proof of an assault and share some of the elements of robbery.119 Thus, the crime in the Code (Qld) s 412 and (WA) s 393, which is called ‘attempted robbery’ in Queensland and ‘assault with intent to commit robbery’ in Western Australia, is identical to robbery with its reference to violence. With these offences, the prosecution is not required to prove stealing but only an assault with intent to steal.120 In Dearnley [1947] St R Qd 51 at 59, 60, it was held that the same act of the accused may satisfy both requirements of the assault and the use or threatened use of violence. The crime is punishable by imprisonment for 7 years (Queensland) and 10 years (Western Australia), with heavier penalties applying in a manner similar to those applicable to robbery. In Queensland, this can be imprisonment for 14 years if the accused is or pretends to be armed with any dangerous or offensive weapon or instrument, or is in company, and life imprisonment if the accused is armed with any dangerous or offensive weapon, instrument or noxious substance and, at or immediately before or immediately after the time of the assault, he or she wounds, or uses other personal violence to, any person by

the weapon, instrument or noxious substance. In Western Australia, this can be life imprisonment if, immediately before or at or immediately after the commission of the offence, the accused is armed with any dangerous or offensive weapon or instrument or pretends to be so armed and the offence is committed in circumstances of aggravation.121 In the event that the requirement relating to being armed or to a circumstance of aggravation is satisfied, the penalty becomes imprisonment for 14 years. [page 388]

Burglary 15.72 Crimes involving unlawful entry into premises extend to all types of premises, with heavier penalties applying in the case of a dwelling (Queensland) or place ordinarily used for human habitation (Western Australia). In Western Australia, all forms of the crime are referred to as burglary and, in Queensland, the term burglary is used in the case of breaking and entering a dwelling. Some of these crimes require proof as an element of the commission of an offence in the premises while, for others, mere intention, at the time of entry, to commit an offence therein is sufficient. In Queensland, specific crimes of unlawful entry into vehicles are set out in the Code (Qld) ss 426, 427.

Queensland Penalties 15.73 Under the Code (Qld) s 419(1), any person who enters, or is in, the dwelling of another with intent to commit an indictable offence therein commits the crime of housebreaking, which is punishable by 14 years’ imprisonment. Life imprisonment is applicable if the accused: entered the dwelling by means of any break;122

committed the offence at night;123 used or threatened to use actual violence;124 was or pretended to be armed with a dangerous or offensive weapon, instrument or noxious substance;125 was in company126 with one or more persons;127 damaged, threatened or attempted to damage, any property;128 or entered or was in the dwelling of another and committed an indictable offence in the dwelling.129

Definitions 15.74 Dwelling The term ‘dwelling’130 is defined in the Code (Qld) s 1 as including: Any building or structure, or part of a building or structure, which is for the time being kept by the owner or occupier for the residence therein, of himself/herself, his/her family, or servants, or any of them; it is immaterial that it is from time to time uninhabited. A building or structure adjacent to, and occupied with, a dwelling

[page 389] is deemed to be part of the dwelling if there is a communication between such building or structure and the dwelling, either immediate or by means of a covered and enclosed passage leading from the one to the other, but not otherwise.

15.75 Premises The crime in the Code (Qld) s 421 is concerned with premises other than a dwelling. The term ‘premises’ is defined in the Code (Qld) s 418(4) to include: (a) a building or structure and any part of a building or structure other than a dwelling; and (b) a tent, caravan or vehicle; and (c) any similar place.

Under the Code (Qld) s 421(1), any person who enters, or is in, any premises with intent to commit an indictable offence, therein commits a crime that is punishable by 10 years’ imprisonment. If the accused entered or was in the premises and committed an indictable offence in

the premises, it is punishable by 14 years’ imprisonment. If the accused gained entry to the premises by any break and committed an indictable offence in the premises, it is punishable by life imprisonment. 15.76 Night, breaking, entering, and breaking and entering In addition to the definitions of ‘dwelling’ and ‘premises’, the offences in the Code (Qld) ss 419 and 421 depend for their operation on the definitions of ‘night’, ‘breaking’, ‘entering’, and ‘breaking and entering’. In the Code (Qld) s 1, ‘night’ is the interval between 9 pm and 6 am.131 The other definitions are set out in the Code (Qld) s 418: (1) A person who breaks any part, whether external or internal, of a dwelling or any premises, or opens, by unlocking, pulling, pushing, lifting, or any other means whatever, any door, window, shutter, cellar, flap, or other thing, intended to close or cover an opening in a dwelling or any premises, or an opening giving passage from one part of a dwelling or any premises to another, is said to break the dwelling or any premises. (2) A person is said to enter a dwelling or premises as soon as any part of the person’s body or any part of any instrument used by the person is within the dwelling or premises. (3) A person who obtains entrance into a dwelling or premises by means of any threat or artifice used for that purpose, or by collusion with any person in the building, or who enters any chimney or other aperture of the dwelling or premises permanently left open for any necessary purpose, but not intended to be ordinarily used as a means of entrance, is deemed to have broken and entered the dwelling or premises.

15.77 The meaning of the term ‘breaking’ was considered in Halley (1938) 40 WALR 105, where opening wider a casement window, which had been left partly open, was held not to constitute a breaking. While there was some dispute as to whether or not the window had been unlatched by the accused, no distinction was drawn between the two situations. On the other hand, in Parry [1957] NZLR 846, where the accused opened an already opened window wider after first unlatching it, the New Zealand Court of Appeal focused on the fact of unlatching to hold that [page 390]

there was a breaking for the purpose of a statutory provision which, for practical purposes, was the same as that in the Code (Qld) s 418.132 15.78 The Summary Offences Act 2005 (Qld) s 11 creates an offence of unlawfully entering, or remaining in, a dwelling or the yard for a dwelling. A separate offence exists of unlawfully entering in or remaining in a place used as a yard for, or a place used for, a business purpose. Both offences are punishable by 20 penalty units or 1 year’s imprisonment. Section 13 of the Summary Offences Act creates an offence of unlawfully entering, or remaining on, land used for agricultural or horticultural purposes, grazing or animal husbandry. This offence is punishable by 10 penalty units or 6 months’ imprisonment. The Summary Offences Act 2005 also creates an offence of possessing an implement for burglary or for unlawful entry, or an implement that has been used for such a purpose: s 15.

Western Australia Penalties 15.79 In Western Australia, the crime of burglary is found in the Code s 401 and the matter will usually be heard and determined summarily in the Magistrates Court unless a successful application is made by the prosecution or the accused, before the accused pleads to the charge, that the charge be tried on indictment. The crimes and the respective punishments are set out in the following terms: 401(1) A person who enters or is in the place of another person, without that other person’s consent, with intent to commit an offence in that place is guilty of a crime and is liable: (a) if the offence is committed in circumstances of aggravation, to imprisonment for 20 years; (b) if the place is ordinarily used for human habitation but the offence is not committed in circumstances of aggravation, to imprisonment for 18 years; or (c) in any other case, to imprisonment for 14 years. Summary conviction penalty: (a) in a case to which paragraph (a) applies where the only circumstance of aggravation is that the offender is in company with another person or other

persons — imprisonment for 3 years and a fine of $36 000; (b) in a case to which paragraph (b) applies — imprisonment for 3 years and a fine of $36 000; or (c) in a case to which paragraph (c) applies — imprisonment for 2 years and a fine of $24 000. (2) A person who commits an offence in the place of another person, when in that place without that other person’s consent, is guilty of a crime and is liable: (a) if the offence is committed in circumstances of aggravation, to imprisonment for 20 years;

[page 391] (b) if the place is ordinarily used for human habitation but the offence is not committed in circumstances of aggravation, to imprisonment for 18 years; or (c) in any other case, to imprisonment for 14 years. Summary conviction penalty (subject to subsection (3)): (a) in a case to which paragraph (a) applies where the only circumstance of aggravation is that the offender is in company with another person or other persons — imprisonment for 3 years and a fine of $36 000; (b) in a case to which paragraph (b) applies — imprisonment for 3 years and a fine of $36 000; or (c) in a case to which paragraph (c) applies — imprisonment for 2 years and a fine of $24 000. (3) If the offence committed in the place is an offence against property and the value of the property is more than $10 000 the offence is not to be dealt with summarily.

Definitions 15.80 For the purposes of the offences in s 401, the Code (WA) s 400(1) provides various definitions. These are: circumstances of aggravation mean circumstances in which: (a) immediately before or during or immediately after the commission of the offence the offender: (i) is or pretends to be armed with a dangerous or offensive weapon or instrument; (ii) is or pretends to be in possession of an explosive substance; (iii) is in company with another person or other persons; (iv) does bodily harm to any person; (v) threatens to kill or injure any person; or

(vi) detains any person (within the meaning of s 332(1)); or (b) immediately before the commission of the offence the offender knew or ought to have known that there was another person (other than a co-offender) in the place.133 place means a building, structure, tent, or conveyance, or a part of a building, structure, tent, or conveyance, and includes: (a) a conveyance that at the time of an offence is immovable; or (b) a place that is from time to time uninhabited or empty of property.

15.81 Entry Unlike the position under the Code (Qld), burglary in Western Australia does not depend on the concept of ‘breaking’. However, the Code (WA) s 400(2) defines the term ‘entry’ as follows: A person enters or is in a place as soon as: (a) any part of the person’s body; or (b) any part of anything in the person’s possession or under the person’s control is in that place.

[page 392]

Proof of lack of owner’s consent Western Australia 15.82 Burglary under the Code (WA) s 401 requires proof, as a specific element, of the lack of consent of the person whose place is entered and, therefore, burglary will not be committed by a person who has consent to be in the premises. Where the accused alleges consent or authority to enter the premises, reliance may be placed upon provisions of Ch 5 of the Code, such as claim of right under s 22 or mistake of fact under s 24, which the prosecution must negative beyond reasonable doubt.134 Where consent is given for a particular purpose, entry by the accused for some other purpose will be nonconsensual.135

Queensland 15.83

With the Code (Qld) s 419, absence of consent is not an

element and the offence may be committed irrespective of whether the accused entered or is in the place with the consent of the relevant person; for example, the owner of the place. The effect of the first part of that provision is to deem the accused to have broken and entered the premises where consent to enter was obtained by means of threat, artifice or collusion. Accordingly, it would extend to the situation that arose in Boyle [1954] 2 QB 292, where entry was obtained by artifice, in that the accused pretended to be a representative of the broadcasting commission and was attempting to locate radio disturbances. In Williams [1988] 1 Qd R 289, the existence of s 418(3) was relied on to allow an inference to be drawn that lack of consent was also an element of housebreaking offences in Queensland. In Rigney [1996] 1 Qd R 551, the Court of Appeal disapproved of the decision in Williams and confirmed that absence of consent is not an element of the Code (Qld) s 419.

Intention — two forms of burglary 15.84 As the statements of the offences outlined above show, housebreaking or burglary may be established even where no offence is committed in the premises.136 With those manifestations of housebreaking and burglary, provided the accused entered with the intention of committing an indictable offence (Queensland) or an offence (Western Australia) and provided that such intention was present at the time of entry, the offence will be complete. Where the accused enters without the required intention but formulates such an intention once inside the premises, he or she may, nevertheless, be guilty of a crime under the Code (Qld) s 419(1) and (WA) s 401(1). With those provisions, the crime is complete if the accused formulates the intention at any time when in the premises. Interestingly, these provisions appear to make a person criminally responsible for the formulation of intention alone. However, presence must also be established and, normally, there would need to be some physical manifestation of intention in order to prove that the intention existed. In Potter (1981) 4 A Crim R 305, the accused assaulted the complainant in her flat and it was held that the prosecution was able to rely on

[page 393] the ‘fleeting or momentary’ intent formed immediately prior to the commission of the assault to found an offence under the Code (Qld) s 420.

Fraud 15.85 There are various fraud-related offences in the Codes, including: (Qld) s 399 and (WA) s 379 — concealing registers; (Qld) s 400 and (WA) s 380 — concealing wills; (Qld) s 401 and (WA) s 381 — concealing deeds; (Qld) s 405 and (WA) s 385 — dealing with minerals in mines; (WA) s 386 — concealing royalty; (Qld) s 407 and (WA) s 389 — disposition of mortgaged goods; (Qld) s 408 and (WA) s 390 — appropriation of power; (Qld) s 408C and (WA) s 409 — fraud; (Qld) s 408D — obtaining or dealing with identification information; (Qld) s 408E and (WA) s 440A — unauthorised computer use; (WA) s 418 — false statements relating to companies; (Qld) ss 437 and 438 and (WA) ss 418–421 — false statements by company officials; (Qld) s 441 and (WA) s 424 — fraudulent falsification of records; (Qld) s 427A — obtaining property by passing valueless cheque; (Qld) Chs 49–51 and (WA) Chs 49, 51 — forgery; and (Qld) and (WA) Ch 53 — personation.

Penalties

15.86 In this chapter, the focus is on the general crime of fraud under the Code (Qld) s 408C and (WA) s 409.137 These are crimes punishable by 5 years’ imprisonment (Queensland) and 7 years’ imprisonment (Western Australia). In Queensland, a term of 10 years’ imprisonment may be imposed if the property in question was valued at $5000 or more, where the fraud was committed by an employee or company director in the course of employment or where the accused had possession or control of the property in accordance with a particular obligation; for example, as a trustee: Code (Qld) s 408C(2). In Western Australia, imprisonment for 10 years may be imposed if the person deceived is of or over the age of 60 years: Code (WA) s 409(1)(g).

Procedure 15.87 In some circumstances, the crime of fraud can be the subject of summary proceedings. In Queensland, where the value of the thing stolen is not more than $5000 it will be summarily determined unless the defendant elects trial by jury, but the magistrate must abstain from hearing the matter summarily if satisfied that the defendant may not be adequately punished on summary conviction. [page 394] However, where the defendant pleads guilty, and regardless of the value of the property, the magistrate will deal with the matter summarily if he or she considers that the defendant can be adequately punished in such proceedings.138 15.88 For the crime of fraud in Western Australia, provision is made for a summary conviction penalty unless the property obtained or delivered or the benefit gained or detriment caused exceeds $10,000 in value. It will be heard and determined summarily in the Magistrates Court unless a successful application is made by the prosecution or the accused, before the accused pleads to the charge,

that the charge be tried on indictment.139 The summary conviction penalty is imprisonment for 2 years or a fine of $24,000 and, if the person deceived is of or over the age of 60 years, imprisonment for 3 years or a fine of $36,000.140

The crime of fraud 15.89 The conduct proscribed by the crime of fraud is expressed in similar terms in the Codes, although the mental element is differently stated. The Queensland provision reads: 408C(1) A person who dishonestly — (a) applies to his/her own use or to the use of any person — (i) property belonging to another; or (ii) property belonging to the person, or which is in the person’s possession, either solely or jointly with another person, subject to a trust, direction or condition or on account of any other person; or (b) obtains property from any person; or (c) induces any person to deliver property to any person; or (d) gains a benefit or advantage, pecuniary or otherwise, for any person; or (e) causes a detriment, pecuniary or otherwise, to any person; or (f) induces any person to do any act that the person is lawfully entitled to abstain from doing; or (g) induces any person to abstain from doing any act which the person is lawfully entitled to do; or (h) makes off, knowing that payment on the spot is required or expected for any property lawfully supplied or returned or for any service lawfully provided, without having paid and with intent to avoid payment; commits the crime of fraud.

15.90 In Western Australia, the general crime of fraud is in the Code (WA) s 409, which reads: 409(1) Any person who, with intent to defraud, by deceit or any fraudulent means: (a) obtains property from any person; (b) induces any person to deliver property to another person;

[page 395]

(c) gains a benefit, pecuniary or otherwise for any person; (d) causes a detriment, pecuniary or otherwise, to any person; (e) induces any person to do any act that the person is lawfully entitled to abstain from doing; or (f)

induces any person to abstain from doing any act that the person is lawfully entitled to do, is guilty of a crime.

15.91 The Code (WA) s 409 does not define ‘property’. The term takes its meaning from the definition in the Code (WA) s 1 as including real and personal property and everything animate or inanimate, capable of being the subject of ownership. Prior to the enactment of the Code (WA) s 409 in its present form, the concept of ‘obtaining’ was construed as requiring the victim to surrender full ownership of the thing in question, either to the accused or to some other person.141

Fraud and stealing: Queensland 15.92 Aspects of this crime, in particular the Code (Qld) s 408C(1) (a) and (h), are stated in a manner that has the potential to displace the crime of stealing. As with stealing, the provision employs extended concepts of ownership and property. It also includes elements that overcome some of the technical difficulties associated with the proof of stealing. Under the Code (Qld) s 408C(3)(d), the person to whom property belongs includes the owner, any part-owner, any person having a legal or equitable interest in, or claim to, the property and any person who, immediately before the offender’s application of the property, had control of it. With stealing, it was noted that an extended definition of property is utilised: see 15.7–15.10. An even broader definition of ‘property’ applies for the crime of fraud by virtue of the Code (Qld) s 408C(3)(a), which provides that the term, for the purposes of the crime of fraud, includes, in addition to the term as it applies to stealing: … credit, service, any benefit or advantage, anything evidencing a right to incur a debtor to recover or receive a benefit, and releases of obligations.

Accordingly, the crime of fraud is not limited to the obtaining of

property. It extends to the gaining of a benefit or advantage and the inducing of conduct.142 The same result is achieved under the Code (WA) due to the wide scope of interference with interests identified in s 409(1)(a)–(f). These interferences extend to cover the sorts of interests referred to in the Code (Qld) above. 15.93 With stealing, it was noted that, in general, if the accused is given ownership of a thing, in the sense that property in the thing passes to the accused, there could be no liability for stealing. This principle applies subject to some forms of mistake; to the receipt by the accused of certain property subject to a direction in accordance with the Code (Qld) ss 393 and 395; and to the operation of the Code (Qld) s 391(2A), which relates to fungibles: see 15.25. Those limitations are removed for the crime of fraud by the terms of the Code (Qld) s 408C(3)(f), which reads: … if a person obtains property from any person or induces any person to deliver property to any person it is immaterial in either case whether the owner passes

[page 396] or intends to pass ownership in the property or whether he/she intends to pass property to any person.

Again, the same result is achieved through the scope of the interferences identified in the Code (WA) s 409(1)(a)–(f). Thus, unlike with stealing, the fact that property, in the sense of title or ownership, of the thing has passed will not prevent the crime of fraud from being committed. 15.94 Property that is apparently lost is dealt with in the same way as it is for stealing: see 15.23. Thus, under the Code (Qld) s 408C(3)(c): A person’s act or omission in relation to property will not be dishonest if, when the accused does the act or makes the omission, he/she does not know to whom the property belongs and believes on reasonable grounds that the owner cannot be discovered by taking reasonable steps, unless the property came into his/her possession or control as trustee or personal representative.

Conduct constituting fraud 15.95 The means of satisfying the crime of fraud in the Code (Qld) s 408C(1)(a)–(h) are expressed in terms that require little analysis. An application to the use of the accused under para (a) will arise if the accused takes the property, converts the property to the use of anyone other than the owner, uses the property or otherwise assumes the owner’s rights to the property.143 The term ‘obtains’ in para (b) is referred to in s 408C(3)(e) as including to get, gain, receive or acquire in any way. In s 408C(3)(c), the induced delivery can be to any person and, in Bannah [1989] 1 Qd R 331, it was held that this could be to the accused or some other person.144 15.96 The Code (WA) s 409(1) requires that the person employ deceit or fraudulent means, and that these means cause one of the consequences specified in paras (a)–(f) of that section. As with the Queensland provision relating to fraud, the crime extends beyond the obtaining or delivery of property and includes the gaining of a benefit, the causing of a detriment or the inducing of conduct.145 The definition of ‘obtains’ in the Code (WA) s 1 removes the limitation in relation to obtaining so that the obtaining of mere possession by the accused will be sufficient for the crime of fraud. It has been held that the inducing of delivery can be a delivery to the accused or to some other person.146 15.97 The making of a false representation is an inherent aspect of fraudulent conduct. To constitute fraud, a representation need not be expressly made and can be implied from conduct. An example of this arose in Barnard (1837) 7 C & P 784, where the accused’s conduct, in wearing a cap and gown in a university town with the intent to be taken for a member of the university, was sufficient to satisfy this requirement.147 However, in Nelson [1987] WAR 57, the accused’s silence was [page 397]

held not to constitute a false pretence. There, she had lodged a claim form with an insurance company in relation to the loss of her car, truthfully declaring therein that she was unaware who had taken it. Subsequently, but before moneys were paid to her, she learned the identity of the person who had removed the car, but failed to advise the insurer. 15.98 Under the Code (Qld) s 408C and (WA) s 409, the fraudulent acts of the accused must be a substantial inducing cause for the victim’s conduct. In Clemesha [1978] WAR 193, the necessary nexus was not established. There, the accused had hired equipment and failed to return it. Although he provided a false name when entering into the agreement, it was held that this was not an inducing factor but that, rather, the hirer had surrendered possession of the equipment because the accused had entered into the agreement.148

The mental element Queensland 15.99 The wide range of conduct embraced by the Code (Qld) s 408C(1)(a)–(h) will constitute fraud only if the mental element of the crime is established. The requirement is that the accused acted ‘dishonestly’. This term is not defined in the Code but some guidance for its application is provided in s 408C(3)(b) and (c). It was noted above that stealing may arise in the case of the borrowing of money: see 15.21. That is also the case for fraud except that the principle is not limited to money and may apply to the borrowing of any property. The Code (Qld) s 408C(3)(b) provides: A person’s act or omission in relation to property may be taken to be dishonest even though: (i) he/she is willing to pay for the property; or (ii) he/she intends to afterwards restore the property or to make restitution for the property or to afterwards fulfil his/her obligations or to make good any detriment; or (iii) an owner or other person consents to doing any act or to making any omission; or (iv) a mistake is made by another person in respect of it.

15.100 The test for dishonesty was addressed by Toohey and Gaudron JJ, with whom Kirby J agreed, in the High Court in Peters (1998) 192 CLR 493; 151 ALR 51, a case relating to the definition of dishonesty in the context of a charge of conspiracy to defraud under the Crimes Act 1914 (Cth) ss 86(1)(e) and 86A. Referring to statutory provisions where the term ‘dishonest’ is not used in any special sense, their Honours said at CLR 504: In a case in which it is necessary 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

[page 398] 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.

Their Honours said that, in most cases where honesty is in issue, the real question is whether an act was done by the accused with knowledge or belief of some specific thing or with some specific intent, not whether it is properly characterised as dishonest, and gave the following example:149 … 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 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.

Toohey and Gaudron JJ’s judgment was subsequently approved of in Macleod (2003) 214 CLR 230; 197 ALR 333 in the context of the Crimes Act (NSW) s 173. Any residual doubts as to the test for dishonesty under the Code

(Qld) s 408C(1) have been resolved by the Court of Appeal’s decision in Dillon [2015] QCA 155. In that case, the Court of Appeal confirmed that the test of dishonesty in Peters applied under section 408C of the Code.

Western Australia 15.101 Under the Code (WA) the mental element is ‘intent to defraud’, by ‘deceit’ or ‘fraudulent means’. The Western Australian Court of Appeal has recently held in Hunter v State of Western Australia [2014] WASCA 184 that these are two separate elements, the first subjective and the second objective. That case confirmed that ‘deceit’ requires the accused to engage in conduct that induces the victim to believe that something that is false is true, in circumstances in which the accused knows or believes the thing to be false.150 ‘Any fraudulent means’ was confirmed to encompass other conduct falling outside the meaning of ‘deceit’ which ‘can properly be stigmatised as dishonest’ (at [38]). Dishonesty is therefore not an express element, although in Peters (1998) 192 CLR 493; 151 ALR 51, Gaudron and Toohey JJ noted that it is inherent in the notion of ‘intent to defraud’. That case concerned the Commonwealth offence of depriving the Commonwealth Commissioner of Taxation of tax revenue, an offence that required proof of an ‘intent to defraud’.151 Their Honours rejected the argument that dishonesty was a separate element that needed to be proved, stating at 443: Under s 409(1), the relevant concepts are ‘intent to defraud’ and ‘fraudulent means’, rather than dishonesty. But the proper course for a trial judge is of the same kind:

[page 399] the knowledge, belief or intent said to reveal an intent to defraud and fraudulent means should be identified by the judge, and the jury should be instructed to decide whether the accused had that knowledge, belief or intent and, if so, to determine whether, on that account, what was relevantly done by the accused was so done with an intent to defraud and by fraudulent means.152

That analysis was adopted by the Western Australian Court of Criminal Appeal in Mathews (2000) 24 WAR 438. More recently in the case of Bolitho v Western Australia (2007) 34 WAR 215, the Western Australian Court of Appeal held that ‘intent to defraud’ under the Code (WA) bears the common law meaning. This has recently been affirmed in Hunter v State of Western Australia [2014] WASCA 184 in which it was noted that at common law, intention to defraud has three components constituting an intention to (1) deprive a person; (2) of something that is of actual or potential economic value; (3) by dishonest means. That case further noted that while intention to use dishonest means will usually be established by proof of the accused having used ‘deceit or any fraudulent means’, this is not itself sufficient to establish the first two elements of an intent to defraud (at [41]). Therefore, in Hunter the Western Australian Court of Appeal held that the trial judge’s directions were incorrect in that they erroneously conveyed the notion that the use of deceit or any fraudulent means is ‘necessarily the foundation for a finding of intent to defraud’, and that ‘the jury had to be directed in clear terms that an accused can act dishonestly without having an intent to defraud’ (at [54]). 15.102 The case of Bolitho also ruled on the scope of interests that an ‘intent to defraud’ must pertain to. In that case the accused represented herself as an orthopaedic surgeon, and in that guise induced an elderly woman to receive five injections into her shoulder. There had been no payment involved. The court ruled that there had been no ‘intent to defraud’ as the accused’s false representation did not relate to an economic interest of the victim. McClure J (Buss JA in agreement) found that ‘intent to defraud’ must be interpreted separately from the conduct element of the offence, and must be construed by reference to the common law meaning of the term. Her Honour therefore found that ‘intent to defraud’ is limited to an intention to interfere with the victim’s economic interests, that being where there is an intention that the victim: 1. suffer direct economic loss;

2.

suffer an economic detriment by being deprived of property or services that have economic value …; 3. be at risk of suffering economic loss or detriment; 4. be deprived of an opportunity to make economic gain; or 5. be deprived of an opportunity to prevent economic loss or detriment. Her Honour indicated one exception to this list, that being where an accused has an intention to induce a person to breach their public duty.153 [page 400] This approach appears consistent with the earlier decision in Lewis (1998) 20 WAR 1, where it was held that the definition of ‘intent to defraud’ must be taken to extend to the case where, even though there is not an intention to cause economic loss, there is an intention to deprive another of his or her property or of the opportunity to protect his or her interests.154 15.103 In the case of Brown v Deveroux (2008) 192 A Crim R 190, Hasluck J affirmed McLure J’s test, and applied it to a case in which the accused had presented a fraudulently altered prescription to a pharmacist in an attempt to secure a repeat prescription of a drug, when in fact she had not been issued with a repeat prescription. Hasluck J ruled, applying McLure J’s second proposition, that there was intent to cause the pharmacist an economic detriment, even though the accused had intended to pay for the prescription. This was because there was an intention to induce the pharmacist by deceit to do an act that he might not otherwise have done (handing over the tablets), which act involved property of economic value. Therefore, it is clear that there can be intent to cause economic detriment even if full consideration for the property is received. This has been affirmed in Khoo v State of Western Australia [2011] WASCA 75 at [24], where McLure J in the Western Australian Court of Appeal noted that:

There will be an intent to defraud even though the victim’s economic interests are not put at risk, in the ordinary sense of that term, where the accused intentionally induces the victim, by deceit or fraudulent means, to part with money or property which the victim is lawfully entitled to retain, and which he or she would not have parted with but for the accused’s deceit or fraudulent means, even though the accused gave value for the victim’s money property.

15.104 In both Queensland and Western Australia, in order for the mental element of the crime of fraud to be satisfied, it is not necessary for the prosecution to prove that the fraud of the accused should operate in precisely the way intended or expected by the accused.155 The mental element for these fraud offences will be met where there is a false representation of fact or a false promise such as: wrongly describing the quality of an item for sale;156 presenting another person’s credit card;157 making payment for goods with a valueless cheque;158 relating false stories to people to gain their sympathy and persuade them to part with their money;159 or [page 401] representing to an employer that a courier service was an independent entity when it was actually set up by the employee accused.160

Valueless cheques 15.105 The crime of fraud in the Code (Qld) s 408C and (WA) s 409 would seem to be stated in sufficiently broad terms as to include the gaining of a benefit or the discharge of an obligation by the accused’s passing of a valueless cheque. Nevertheless, specific provision is made for that situation in the Code (Qld) s 427A, which reads: (1) Any person who — (a) obtains from any other person any chattel, money, valuable security, credit, benefit or advantage by passing a cheque that is not paid on presentation for

payment; or (b) passes a cheque in the discharge or attempted discharge of any debt, liability or obligation, which cheque is not paid on presentation for payment is guilty of a misdemeanour and is liable to imprisonment for 2 years. (2) It is a defence to a charge of an offence defined in this section to prove that the accused person — (a) had reasonable grounds for believing that the cheque would be paid in full on presentation for payment; and (b) had no intent to defraud. (3) The fact that at the time when the cheque was passed there were some funds to the credit of the account on which the cheque was drawn is not of itself a defence to a charge of an offence defined in this section.

The Summary Offences Act 2005 (Qld) s 22 creates an offence of imposing or attempting to impose on another person to obtain money or advantage, punishable by 20 penalty units or 1 year’s imprisonment.

Extortion (blackmail) 15.106 The crime of extortion, commonly known as blackmail, is found in the Code (Qld) s 415(1) and (WA) s 397(1), (2). Analogous offences, which will not be considered in detail here, are found in the following Code provisions: (Qld) s 54A — demands with menaces on government agencies; (Qld) s 308 — threats to murder in document; (WA) s 338A — threats with intent to influence; (Qld) s 359 and (WA) s 338B — threats; (Qld) s 414 and (WA) s 396 — demanding property with menaces with intent to steal; (Qld) s 416 and (WA) s 398 — attempts at extortion; and (Qld) s 417 and (WA) s 399 — procuring execution of deeds. [page 402]

Queensland 15.107 The Code provisions on extortion are expressed in different terms. In Queensland, the provision reads: 415 Extortion (1) A person (the demander) who, without reasonable cause, makes a demand— (a) with intent to— (i) gain a benefit for any person (whether or not the demander); or (ii) cause a detriment to any person other than the demander; and (b) with a threat to cause a detriment to any person other than the demander; commits a crime. Maximum penalty— (a) if carrying out the threat causes, or would be likely to cause, serious personal injury to a person other than the offender—life imprisonment; or (b) if carrying out the threat causes, or would be likely to cause, substantial economic loss in an industrial or commercial activity conducted by a person or entity other than the offender (whether the activity is conducted by a public authority or as a private enterprise)—life imprisonment; or (c) otherwise—14 years’ imprisonment. (2) It is immaterial that— (a) the demand or threat is made in a way ordinarily used to inform the public rather than a particular person; or (b) the threat does not specify the detriment to be caused; or (c) the threat does not specify the person to whom the detriment is to be caused or specifies this in a general way; or Example— a threat to cause a detriment to the public or any members of the public (d) the detriment is to be caused by someone other than the demander. (3) A reference to making a demand includes causing someone to receive a demand. (4) A reference to a threat to cause a detriment to any person other than the demander includes a statement that gives rise to a threat of detriment to the other person. (5) A prosecution for an offence in which it is intended to rely on a circumstance of aggravation mentioned in paragraph (a) or (b) of the penalty cannot be commenced without the consent of the Attorney-General. (6) In this section— threat includes a statement that may reasonably be interpreted as a threat.

The term ‘document’ is defined in the Code (Qld) s 1 as including: (a) anything on which there is writing; and (b) anything on which there are marks, figures, symbols, codes, perforations or

anything else having a meaning for a person qualified to interpret them; and (c) a record.

[page 403]

Western Australia 15.108

In Western Australia, the provision reads:

397 Any person who, with intent to extort or gain anything from any person — (1) knowing the contents of the writing, causes any person to receive any writing demanding anything from or that anything be procured to be done or omitted to be done by any person, without reasonable cause, and containing threats of any injury or detriment of any kind to be caused to any person, either by the offender or any other person, if the demand is not complied with; or (2) orally demands anything from, or that anything be procured to be done or omitted to be done by, any person, without reasonable cause, with threats of any injury or detriment of any kind to be caused to any person, either by the offender or any other person, if the demand is not complied with, is guilty of a crime, and is liable to imprisonment for 14 years. Alternative offence: s 338A, or s 338B.161 The term writing includes any gramophone record, wire, tape, or other thing by which words or sounds are recorded and from which they are capable of being reproduced.

Demand and threat 15.109 The first element of the crime of extortion is that there must be a demand containing a particular kind of threat. The demand may be made orally or in writing and may be made expressly or by implication.162 In Queensland, the threat to cause a detriment to any person does not need to specify the detriment to be caused or the person to whom the detriment is to be caused, and includes a threat to cause detriment to the public. The threat must be a threat to cause a detriment to someone other than the demander; where the demander threatens to cause a detriment to himself or herself and carrying out that threat gives rise to others being harmed, then the element is satisfied. The Code (WA) s 397 requires that any written demand be received

by the victim. Such express provision is not made in the case of an oral demand under the Western Australian provisions.163 In Austin (1989) 166 CLR 669; 85 ALR 353, the accused was charged with a similar crime under the Kidnapping Act 1960 (SA) s 3, which does not require, in specific terms, receipt of the demand. In that case, the accused prepared a letter directed to a South Australian cabinet minister, threatening harm to the Pope (who was about to visit South Australia), unless the minister carried out certain requests nominated in the letter. The letter was left in a public telephone box by the accused who then telephoned a television station advising it of the location of the letter, which was then collected by the police. The accused was charged with demanding money with threats and, although the minister did not receive the demand, it was held, nevertheless, to have been made. The High Court said at CLR 674: Whilst it is clear that there can be more than one view of the meaning of the word ‘demands … of any person’, it is, we think, in accordance with the ordinary usage

[page 404] of language to regard a demand as having been made at a point short of its actual communication to the person to whom it is directed. To do so is neither to concede of the demand in an abstract form nor to use the word proleptically. Of course, a requirement, however peremptory, cannot amount to a demand unless it is made with the intention that it should be conveyed or communicated to the person to whom it is directed and in circumstances which are apt to achieve that end. A message put to sea in a bottle or a request shouted to the four winds cannot, except in the most extraordinary circumstances, amount to a demand of any person. On the other hand, a demand advertised in the newspaper may, even in the absence of actual communication, amount to a demand made of a person if the advertisement is an apt means of bringing the demand to the attention of that person.

Similarly, where a demand is contained in a letter that is sent by post, it has been held that the demand is made upon posting.164 15.110 While the advantage sought to be gained by the accused under the Western Australian provision appears to be quite generally stated, the term ‘anything’ was held in Kendrick [1933] QWN 21 to include tangible things only. Accordingly, it did not encompass a

demand for employment accompanied by a threat to report the recipient of the demand to a statutory authority in the event of noncompliance with the demand. In any event, the alternative expression of the advantage sought to be gained, that is, that anything be done or omitted to be done by any person, would seem to be broad enough to encompass such situations. It is not necessary that the accused actually attains the advantage sought. Provided the accused has the intention to extort or gain, it is immaterial whether anything is gained from the demand, as it is the making of the demand itself with which the section is concerned. In Beavans (1987) 87 Cr App R 64, it was held that the requirement was met by the accused demanding an injection of morphine for pain relief at gunpoint. 15.111 The Code (WA) s 397 does not specifically refer to the public or to property but, clearly, a threat of detriment to any person would include any member of the public and the threat of damage to property would constitute a threat of detriment to its owner. ‘Injury or detriment of any kind’, as these words formerly appeared in another section of the Code (Qld) (s 359), were referred to in Zaphir [1978] Qd R 151 at 164–5 and 180. There, Kelly J considered that the words should not be limited by importing a qualification that the injury or detriment must involve a criminal or unlawful connotation (at 180). Wanstall CJ held that it was sufficient to threaten to cause a detriment to another by inducing a violation of that person’s legal right, contractual or otherwise, but left open the question of whether the words extended to a threat to cause a detriment to another to bring about a consequence that is not in violation of the other’s legal rights (at 164). There would seem to be no justification for providing any such limitation to the concept of injury or detriment.165 [page 405]

Lawful threat 15.112

The threat may be of a nature that the accused is entitled to

make.166 For example, the victim may have committed an offence and the threat may be to bring this to the notice of police or to give evidence against a person in criminal proceedings. In Jessen [1997] 2 Qd R 213; [1996] 89 A Crim R 335, the Court of Appeal gave a wide interpretation to the term ‘detriment’ under the Code (Qld) s 415 and held that it extended to the accused who offered to withhold, in exchange for a payment of money, certain evidence that would result in a person not being committed for trial. Thomas J said at A Crim R 342: In a situation where a person is bargaining for an advantage derived from the circumstance that he is going to be a witness in a case against the other person, I do not think that a stated intention to give true evidence could without more amount to a threat. But a subtle hint that unless paid he might turn the situation to the disadvantage of the other party might be enough to change the position entirely, and enable it to go to a jury.

Objective test 15.113 In Clear [1968] 1 All ER 74 at 80, the Court of Appeal held that a threat was constituted by conduct of such a nature and extent that the mind of an ordinary person of normal ability and courage might be influenced or made apprehensive so as to accede unwillingly to the demand. This objective test was affirmed in Zaphir [1978] Qd R 151 at 164 where the threat was to cause a detriment to a fuel depot proprietor by cutting off the latter’s normal fuel supplies with the intention of compelling him to pay a sum of money to a trade union. Similarly, a threat to disclose misconduct, though not amounting to an offence, or to release information harmful to the victim’s business interests or of physical violence will fall within the section.167 However, a threat to disclose criminal conduct, whether or not committed by the recipient, is a separate offence.168 15.114 The Code (Qld) s 415(3), which makes it immaterial that the threat does not specify the injury or detriment, has no equivalent in the Western Australian section. However, it does not appear to add significantly to the offence. There must still be a threat, and the threat must be one of injury or detriment. Even a threat of a general injury or

detriment, of unspecified detail, would seem to be encompassed by the phrase ‘of any kind’ which is used in both Codes.

Absence of reasonable cause 15.115 The demand containing the threat must be made without reasonable cause (Queensland and Western Australia) and it is for the jury to determine, objectively, the reasonableness of the cause in a particular case. For that reason, an honest belief by the accused that there was reasonable cause is not relevant to the [page 406] section, thereby precluding a reliance upon claim of right under the Code (Qld) and (WA) s 22.169 15.116 In Thorne v Motor Trade Association [1937] 3 All ER 157, the association sent a communication to a member who was in breach of one of its rules, advising that his name would be published on a stop list unless he paid a monetary fine to the association. The House of Lords held that such a demand would be reasonable, provided that the association made it in order to promote the trade interests of the association and its members, and not with intent to injure, and so long as the money, fine or penalty demanded was reasonable and not extortionate. There, Lord Wright listed several situations where a threat coupled with the demand for money may be justified: an offer not to build on a plot of land if compensated for so abstaining; a threat by a valued servant to take other employment unless paid a bonus or increased wages; an offer to abstain from prosecuting for a common assault or infringement of trademark if paid compensation for the civil wrong or if given a public apology; and an offer by the owner of multiple stores not to open a shop in a

particular locality if the tradespeople in the locality paid compensation.170 As with the other elements of the crime, the prosecution must negative the existence of reasonable cause beyond reasonable doubt. However, the accused has an evidential onus to discharge.171

Damage to property 15.117 The scheme of the Codes in relation to conduct that causes property damage is to establish offences that make provision for: damage to property generally: Code (Qld) s 469 (the misdemeanour of wilful damage) and (WA) s 444(1)(b) (the crime of criminal damage); damage caused by fire: Code (Qld) s 461 (the crime of arson) and (WA) s 444(1)(a) (the crime of criminal damage); and damage to particular forms of property, such as: – to crops;172 –

to ships;173

–

to railways;174 [page 407]

–

to aircraft;175

–

to animals;176

–

by explosives;177

–

to mines;178

–

to marine signals;179

–

to navigation works;180

–

to boundary marks;181

–

by sending letters threatening to damage;182 or

by sabotage.183 In Western Australia, it is also a simple offence, under the Code s 445, to unlawfully destroy or damage the property of another without that person’s consent. –

15.118 In this chapter, the focus is on the provisions relating to damage by fire and to general property damage. These are the crime of arson and the misdemeanour of wilful damage in Queensland; and the crime of criminal damage in Western Australia.

Damage by fire and general property damage Queensland 15.119 In Queensland, the crime of arson in the Code s 461 arises where a person wilfully and unlawfully sets fire to any of the following: (a) any building or structure whatever, whether completed or not; (b) any vessel, whether completed or not; (c) any stack of cultivated vegetable produce, or of mineral or vegetable fuel; (d) a mine, or the workings, fittings, or appliances of a mine; or (e) any aircraft or motor vehicle.

Wilful damage under the Code (Qld) s 469 extends to the fire damage of other forms of property and to other forms of damage, for example, by causing an explosion, to any property, including buildings or structures as referred to for the crime of arson.

Western Australia 15.120 In Western Australia, the crime of criminal damage in the Code s 444 extends to all forms of property and arises where a person wilfully and unlawfully [page 408]

destroys or damages any property. Where the damage is inflicted by fire this represents a more serious type of the criminal damage offence.184

Penalty and procedure Queensland 15.121 Arson and wilful damage are punishable by life imprisonment and 5 years’ imprisonment, respectively. Heavier penalties apply for wilful damage in the special cases listed in the Code s 469(1)–(10). In some circumstances, causing damage or destruction of property can be the subject of summary proceedings. Where the value of the property damaged is not more than $5000, it will be summarily determined unless the defendant elects trial by jury, but the magistrate must abstain from hearing the matter summarily if satisfied that the defendant may not be adequately punished on summary conviction. However, where the defendant pleads guilty, and regardless of the value of the property, the magistrate will deal with the matter summarily if he or she considers that the defendant can be adequately punished in such proceedings.185

Western Australia 15.122 Criminal damage is punishable by life imprisonment if the property is damaged or destroyed by fire and 10 years’ imprisonment for other forms of damage, increased to 14 years’ imprisonment if the offence is committed in circumstances of racial aggravation.186 Section 444A imposes a duty to use reasonable care and precautions for persons in control of a source of ignition or fire to avoid destroying or damaging property that the person is not entitled to damage or destroy. Breach of this duty is an offence under s 445A carrying with it a penalty of 15 years’ imprisonment. The person does not breach the duty if the fire does not spread beyond the capacity of the person to extinguish. The crime of criminal damage in the Code s 444 will be heard and determined summarily in the Magistrates Court unless a successful application is made by the prosecution or the accused,

before the accused pleads to the charge, that the charge be tried on indictment.187 The summary conviction penalty, if the property is not destroyed or damaged by fire and the value of the property does not exceed $25,000, is imprisonment for 3 years or a fine of $36,000.188

Accused must act unlawfully 15.123 The offences in the Code (Qld) ss 461 and 469 and the Code (WA) s 444 have in common a requirement that the prosecution prove that the accused acted both ‘unlawfully’ and ‘wilfully’. 15.124 Whereas the unlawfulness of the accused’s conduct in relation to offences in the Codes usually requires a consideration of whether it is authorised, justified or excused, there are specific provisions in the Code (Qld) ss 458, 459 and [page 409] (WA) ss 441, 442 for assessing the unlawfulness of conduct in respect of property damage.189 Under those provisions, an act that damages a person’s property is unlawful if it is done without that person’s consent and is not authorised, justified or excused by law. In Stevenson (1996) 90 A Crim R 259, the accused had damaged the door of a courthouse in Mackay, Queensland, by discharging a shotgun. No evidence was led of absence of consent to that course of conduct by the Director-General, Department of Justice. However, it was held that absence of consent could be inferred in that situation.

Property of another 15.125 Subject to one qualification, the property must be that of another so that, where the accused has damaged his or her own property, or has damaged abandoned property, it will not be unlawful.190 The qualification arises under the Code (Qld) s 459 and (WA) s 442, which make an otherwise lawful act unlawful, even when done in respect of the accused’s own property, if it is done with an

intent to defraud.191 Also, the accused can be liable in respect of damage to the property of another even where the accused possesses, or has an interest, in the property.192 In that way, the property may be that of another person even where the accused is the legal owner of it. 15.126 For example, in Cox [1986] 2 Qd R 55, the accused was convicted of arson in respect of a house that was located on property of which he was the sole registered proprietor, but which he held as trustee for his infant children. McPherson J stated at 59: The question in the present case is not whether the property injured — which was the house — was ‘owned’ by the appellant or by his children, but whether, within the meaning of s 458, it was the house ‘of another’; that is, of some person other than the appellant. It is true that the appellant was registered proprietor of an estate in fee simple in the land on which the house stood. But he held that estate on trust for his infant children, who were entitled to it beneficially and absolutely. To suggest that, because he held the bare legal title in his own name, the house was therefore not the property ‘of another’ is to ignore several centuries of legal development, the unswerving course of which has been to oblige a trustee to treat property held by him in that capacity as not his own property but that of another. Whether considered as a matter of legal principle or of colloquial usage, the house to which the appellant set fire was not his house but the house of his children. It belonged to them not to him.

In Cox, reference was also made to the situation where the accused was the legal owner of the property but where it was subject to a mortgage. In Ammenhauser [1934] QWN 44, Henchman J had ruled that a ‘mortgagee was not the owner or partial owner of and had no legal interest in the land or in any building that was on the land’. Thomas J in Cox did not agree and held that the reference to property in the section is not limited to physical things. It included the interest of a mortgagee and, agreeing with McPherson J, the children’s equitable interest. In Cox, McPherson J also doubted the correctness of the observation in Ammenhauser [page 410] and concluded that, in order to be the property of another for the purposes of the Code (Qld) s 458, it is not necessary to show that such other person has ownership or an interest at law in the land (at 59). In

the result, it would seem that an accused will be liable for arson where the property is subject to a mortgage even in circumstances which, pursuant to the Code (Qld) s 459, do not reveal an intent to defraud. The act will be unlawful because it causes injury to the mortgagee’s property interest.

Proof of ownership 15.127 Where the property of another is involved, the prosecution is not required to prove that it belonged to any particular person unless the prosecution is relying upon such ownership as proof that the damage was unlawful.193

Accused must act wilfully 15.128 For the crime to be committed, the accused must have set fire to the building or structure or done the damage ‘wilfully’. The Code (WA) s 443 provides that this requires proof that the accused intended to destroy or damage the property or did the act, knowing or believing that the act was likely to result in the destruction of, or damage to, the property. In Pace (1994) 12 WAR 35, the Western Australian Supreme Court confirmed that the test under s 443 is a subjective test requiring proof of either intent or recklessness on the part of the accused; it therefore involves the accused either intending that result or having foreseen the harm that could result, having been reckless or indifferent to its occurrence. In that case the accused had, after entering the victim’s property, lit some meat wrapping inside a refrigerator in order to provide light. After he left the property the fire escalated and caused damage. His acquittal was confirmed on appeal on the basis that there was no evidence of intent or recklessness on the part of the accused. 15.129 While there is no such definition in Queensland, the Queensland courts have considered the meaning of this term. In Lockwood; Ex parte Attorney-General [1981] Qd R 209, a specially constituted Queensland Court of Criminal Appeal comprising five judges determined that it was not necessary for the prosecution to

prove that the accused intended the damage before it could be described as wilful. Lockwood had been charged with wilful and unlawful damage to the motor vehicle of the complainant. Lockwood’s evidence was that a person in the complainant’s car had offered certain provocative gestures to him and that, when the two vehicles stopped at traffic lights, he alighted from his vehicle and approached that of the complainant. He tried to open the locked door of the complainant’s car, struck the window and then kicked at and dented the door in anger but without intention to damage the car. The court held that conduct would be wilful if the accused had an actual intention to do the particular kind of harm that in fact was done or, alternatively, deliberately did an act, aware at the time that the result charged in the indictment was a likely consequence of the act and recklessly did it regardless of the risk.194 [page 411] 15.130 In T [1997] 1 Qd R 623; (1996) 91 A Crim R 152, the accused was convicted of arson of a shop that he had unlawfully entered for the purpose of stealing. On leaving the premises, he flicked a burning cigarette onto a store of paper bags, other paper and cardboard items. At interview, the accused said that, on subsequently learning of the fire, he realised that he had caused it but that, at the time of flicking the cigarette, he did not think the paper would catch on fire. In upholding the conviction, the members of the Court of Appeal applied Lockwood (above), with Pincus J at A Crim R 187 suggesting that a result would be a likely one if the accused foresaw that there was substantial chance that it would occur. Mackenzie J declined to express a concluded opinion on the issue. Fitzgerald P at 186 adopted the view that a result would be a likely one if its happening was more probable than not, stating that the test of wilfulness in Lockwood would be satisfied: … if the damage or fire which results from an act is foreseen as more probable than not, and indeed as so probable (or likely) that the act is properly described as reckless

in circumstances in which recklessness must be such as to attract criminal responsibility for a serious offence.

‘Setting fire to’ 15.131 In addition to the elements of wilfulness and unlawfulness, the crime of arson under the Code (Qld) s 461 requires a ‘setting fire to’ an item of property of the kind listed in the section. A person sets fire to a structure when some part of it has been consumed by fire. Charring of wood satisfies this requirement but scorching, blackening or blistering by heat may not. In Jorgensen (1955) 3 Can Crim Cas 30, the structure was a fireproof concrete building and, although the walls were scorched, blackened and blistered, the accused was not guilty of arson. 15.132 In Berghofer [1997] 2 Qd R 459; (1997) 91 A Crim R 307, the Queensland Court of Appeal referred to early notions about consumption by fire as having developed at a time when building material was predominantly wood and noted that modern building materials can be damaged by fire through a change in their chemical composition. The court referred with apparent approval to the decision of the California Court of Appeal in People v Mentzer 209 Cal Rptr 549 (1985) and said at A Crim R 312: There the offence was arson and under the Penal Code it had to be shown that the structure was burned. The defendant had set a fire in a cemetery against a mausoleum and it was shown that the marble floor was broken, buckled and cracked from the heat and that the plaster walls were chipped. It was held that supported a conclusion that within the meaning of the Penal Code the structure was burned. It was said that an item is ‘consumed’ if it is destroyed or devastated in whole or in part by fire and that if an item is ravaged or ruined by fire, it is ‘consumed’ although not reduced to ashes.

‘Destroy’ 15.133 The term ‘destroy’ is not defined in the Queensland Code. The Code (WA) s 1 defines the term, in relation to animate property, as ‘meaning to kill’. [page 412]

‘Damage’ 15.134 No general definition of ‘damage’ appears in the Codes, although a limited definition of the term is provided in respect of written records.195 In addition, the Code (WA) states that ‘damage’ in relation to animate property includes ‘to injure’. A review of authorities concerning the concept of ‘damage’ was undertaken by the Queensland Court of Criminal Appeal in Zischke [1983] Qd R 240. There, the accused was convicted on 11 counts of wilful and unlawful damage to property, pursuant to the Code (Qld) s 469. The charges arose out of the painting of political slogans on the surfaces of buildings, footpaths and walls with an aerosol spray can. On appeal against conviction, it was held that property is damaged when it is rendered imperfect or inoperative and that it is not essential to establish that expenditure of money was required to restore property to prove that damage had resulted. The following examples of what may constitute damage were given: dismantling machinery;196 dislocating machinery;197 wrongly reassembling a boiler;198 adding water to milk;199 scattering sacks of noxious weeds in a wheat field;200 urinating in a taxi;201 painting a statue;202 and jumping several times onto a police officer’s cap.203 Subsequent to the decision in Zischke, the Code (Qld) s 469 was amended to refer specifically to damage by graffiti as being one of the special cases that enable a more severe punishment to be imposed.204 15.135 In the Code (Qld) s 469 and (WA) s 444, the damage must be to property and that term takes its meaning from the definition in the Codes.205 The provision in Queensland indicates the potential breadth of the concept of ‘property’ that may be involved, with its many

references to special cases of property damage which enable greater penalties to be imposed.206 15.136 The Summary Offences Act 2005 (Qld) creates certain offences that may also be relevant. Section 24 of the Act creates an offence of throwing or propelling an object at a sporting event that may damage property. Section 15 makes it an offence [page 413] to possess an implement that is being, is to be, or has been used to unlawfully damage property. Section 26A makes it an offence to interfere with a grave, vault, niche or memorial, a war memorial or a thing fixed at a place of religious worship.

Arson 15.137 The Code (Qld) s 461 lists a wide range of things that, if set fire to, can result in arson. In Berghofer [1997] 2 Qd R 459; (1997) 91 A Crim R 307, the accused was convicted of the arson of a telephone booth. The accused had set alight some pages torn from a telephone book and placed the telephone handset on the flames. The evidence showed that there was extensive damage to the handset as well as to the booth’s ceiling light fitting and wall paneling. The court indicated that there was no justification for limiting the concept in the Code (Qld) s 461(a) to something that involved some minimum standard of complexity before it could be a structure for the crime of arson. It was suggested that there may be some limitation on the scope of the term ‘structure’ in the section because of the phrase ‘building or structure’ within which the term appears. Nevertheless, the court said at A Crim R 311: … there may be involved some restriction to a constructed entity which either serves a purpose of protecting from the elements in support of some human activity, or of confining or containing things to be held within it or, in terms of size, is ordinarily expected to function with a substantial degree of contact with the ground. Thus, it would not be expected that a simple hand-held device would be included.

It was determined in Berghofer that the telephone booth was a structure and the conviction for arson was upheld.

Attempted arson 15.138 The Queensland Code makes specific provision for attempted arson in s 462, which reads: Any person who — (1) attempts unlawfully to set fire to any such thing as is mentioned in the last preceding section; or (2) wilfully and unlawfully sets fire to anything which is so situated that any such thing as is mentioned in the last preceding section is likely to catch fire from it; is guilty of a crime, and is liable to imprisonment for fourteen years.

15.139 The offence outlined in s 462(1) may properly be described as attempted arson. The element of intention and the requirement that the accused act wilfully are not specifically referred to in the section. However, these subjective requirements are imported into the provision by the definition of ‘attempt’ in the Code (Qld) s 4: see Chapter 11. The offence in the Code s 462(2) is not really attempted arson at all. The focus of the provision is not the damage caused by the accused but, rather, the setting fire to an item from which the fire is likely to spread to any of the kinds of property detailed in the provision relating to arson.207 [page 414] 15.140 In Western Australia, there is no specific offence of attempted criminal damage by fire. Attempted criminal damage, by fire or otherwise, is pleaded in the same way as other attempted offences: see Chapter 11.

Damage caused in self-defence 15.141 The Code (Qld) s 458(3) and (WA) s 441 third para provide relief from criminal responsibility when damage is caused to property

by the accused where the force used is reasonably necessary to defend or protect the accused, any other person, or any property from injury that the accused reasonably believes to be imminent.208

Summary offences 15.142 In both Queensland and Western Australia, provision is made for a separate offence where damage to property occurs and which is determinable summarily. The Regulatory Offences Act 1985 (Qld) s 7 provides: Any person who wilfully destroys or damages the property of another and without the consent, express or implied, of the person in lawful possession thereof and thereby causes loss of $250 or less is guilty of a regulatory offence and, subject to section 9,209 is liable to a fine of $500.

In Western Australia, it is an offence, under the Code s 445 to unlawfully destroy or damage the property of another without that person’s consent. Under this section, the offender is liable to imprisonment for 2 years and a fine of $24,000.210 _________________________________ 1. 2.

Code (Qld) ss 390–408E, 444A–450B; (WA) ss 370–390A, 440A. Code (Qld) ss 409–417A; (WA) ss 391–399.

3. 4.

Code (Qld) ss 418–427; (WA) ss 400–407. Code (Qld) ss 408C, 427A–432, 436–442M; (WA) ss 409, 418–424.

5. 6.

Code (Qld) ss 433–435; (WA) ss 414–416. Code (Qld) ss 458–479; (WA) ss 441–462.

7. 8.

Code (Qld) s 398; (WA) s 378. Code (Qld) s 408A; (WA) s 371A.

9. Code (Qld) s 433; (WA) s 414. 10. Code (Qld) s 411; (WA) s 392. 11. Code (Qld) s 419; (WA) s 401. 12. Code (Qld) s 408C; (WA) s 409. 13. Code (Qld) s 415; (WA) s 397. 14. Code (Qld) ss 461, 469; (WA) s 444. 15. Code (WA) s 378(5)(a). 16. Code (WA) s 378(5)(b).

17. Code (WA) s 378(5)(c). 18. Code (WA) s 378(1), (4a). 19. Code (WA) s 378(6)–(9). 20. Code (WA) s 378(2); Road Traffic Act 1974 (WA) ss 60, 61. For ‘clerk’, ‘servant’, ‘dwelling’ and ‘vehicle’, see Code (WA) s 1. 21. Code (Qld) s 552D. 22. Code (Qld) s 552D(2A). 23. Code (WA) s 378(5)(a). 24. Code (WA) s 378(6) and (7). 25. See Code (WA) s 5(3); for the relevant criteria to be considered by the court, see 4.18. 26. See Code (WA) s 426(2)–(4). 27. See Hally [1962] Qd R 214; Ilich (1987) 162 CLR 110 at 116, 124; 69 ALR 231; Caxton Publishing Co v Sutherland Publishing Co [1939] AC 178 at 201; Lancashire and Yorkshire Railway v MacNicoll (1918) 88 LJKB 601; Fitzgerald [1980] 4 A Crim R 233 at 235; Angus [2000] QCA 29; Goldie (2001) 26 SR (WA) 348 at 352. 28. Criminal Code Act 1899 (Qld) s 4(c); Criminal Code Act 1913 (WA) s 3(3). 29. See also Leane [1903] QWN 53; McKinnon [1907] St R Qd 123; Cordwell v Lincoln [1914] St R Qd 186; Lapier (1784) 1 Leach 320; 168 ER 263; Pureau (1990) 19 NSWLR 372; Bloxham (1943) 29 Cr App R 37; Thomas (1953) 37 Cr App R 169; Schaffer (1994) 72 A Crim R 242; Goldie (2001) 26 SR (WA) 348 at 352. 30. Broom [1994] 1 NZLR 680; Subritzky [1990] 2 NZLR 717. 31. Ilich (1987) 162 CLR 110; 69 ALR 231; see 15.29; Stone [1920] NZLR 462 (continuing to use a watch and treating it as his own); Subritzky [1990] 2 NZLR 717 (allowing daughter to use a doll’s pushchair); but note Diamandopoulos (1998) 200 LSJS 477, where use by a taxidriver of a mobile phone left behind by a passenger was held not to amount to stealing. 32. Rogers v Arnott [1960] 2 All ER 417 (a bailee attempting to sell a tape recorder); Clouston v Bragg [1949] NZLR 1073; Powell (1988) 36 A Crim R 1 (selling of a motor vehicle by a person in mere possession). 33. Russell [1977] 2 NZLR 20 (painting an item that had been hired). 34. Code (Qld) s 391(4); (WA) s 371(4). 35. Ilich (1987) 162 CLR 110; 69 ALR 231; Angus [2000] QCA 29. 36. See Johnston [1973] Qd R 303; Hennessey [1976] Tas SR (NC) N4; Coyne v Dreyer (1991) 13 MVR 540; McDonald [1992] 2 Qd R 634. 37. For ‘money’, see Code (Qld) s 1. 38. In Parsons (1999) 195 CLR 619; 160 ALR 531, bank cheques were held to be property under the Crimes Act 1958 (Vic) s 71. 39. Not all intangibles are within the Code (WA) s 371(7): see Code (WA) s 390 regarding fraudulent appropriation of power. See also the Code (Qld) s 408; Re a Solicitor [1902] St R Qd 9; Orsi v Legal Contribution Trust [1976] WAR 74; Trumbic and Leask v Weston [1986] WAR 169. 40. See McCoy [1938] St R Qd 249; Teece [1960] QWN 34; Trainer (1906) 4 CLR 126; 13 ALR 53; Dwyer and Marsh [1962] Qd R 84; Walk [1981] Qd R 380; Castle (1990) 50 A Crim R 391;

Mullins (1994) 13 WAR 288; Schaffer (1994) 72 A Crim R 242; McKiernan [2003] 2 Qd R 424; note Code (Qld) s 565(e) and Criminal Procedure Act 2004 (WA) Sch 1, cl 6(2)(b). 41. Code (Qld) s 572; Criminal Procedure Act 2004 (WA) s 132. 42. A limited definition of ‘owner’ appears in Code (WA) s 1. 43. The words in brackets do not appear in the Queensland provision. 44. Note that mere possession is not enough to establish ‘special property’ in a thing: O’Brien [1981] WAR 305. 45. See Rose v Matt [1951] 1 All ER 361; Clarke [1956] St R Qd 93. 46. Code (Qld) s 566(13); Criminal Procedure Act 2004 (WA) Sch 1, cl 6(5)(e). 47. Code (Qld) ss 396, 566(6), (8). ‘Owner’ in Code (WA) s 1 is read with Code s 376 and Criminal Procedure Act 2004 (WA) Sch 1, cl 6(5)(c). 48. Smails (1956) 74 WN (NSW) 150; for ‘intention’, see 8.33–8.55. 49. This is a reference to the ‘owner’, as outlined at 15.15, 15.16. 50. Smails (1956) 74 WN (NSW) 150. 51. The offence was appropriating property under the Theft Act 1968 (UK) s 6(1). 52. Bailey [1924] QWN 38; Hitchcock v Thorpe (1992) 16 MVR 232; Bennell v Patterson (1992) 16 MVR 192. 53. See Bowman [1980] WAR 65. 54. For unlawful use of a motor vehicle, see 15.44. 55. See also Bennell v Patterson (1992) 16 MVR 192. 56. Code (Qld) s 566(5); Criminal Procedure Act 2004 (WA) Sch 1, cl 6(4). The charge may be made even though the property was taken over a period: see Code (Qld) s 568(1); Criminal Procedure Act 2004 (WA) Sch 1, cl 8(3). See also Mews [1989] WAR 38; Caratti [1984] WAR 313. 57. Note the comments of Martin CJ in Kingdon v State of Western Australia (2012) 223 A Crim R 449; [2012] WASCA 74 above at 15.13. 58. Powell (1988) 36 A Crim R 1; Clemesha [1978] WAR 193 at 197; Gomez [1993] 1 All ER 1. 59. Code (Qld) s 391(3); (WA) s 371(3). 60. Dolby v Stanta [1996] 1 Qd R 138. 61. See Dolby v Stanta [1996] 1 Qd R 138; Hibbert v McKiernan [1948] 2 KB 142; Woodman [1974] QB 754; Edwards (1877) 13 Cox CC 384; Williams v Phillips (1957) 41 Cr App R 5; Keene v Carter (1994) 12 WAR 20; MacDonald [1983] 1 NSWLR 729 at 730; Ellerman’s Wilson Line Ltd v Webster [1952] 1 Lloyd’s Law Rep 179 at 180; Jigrose Pty Ltd v Drummond [1994] 1 Qd R 382. 62. Ilich (1987) 162 CLR 110 at 127, 129, 136–8; 69 ALR 231. For property passing in shopping transactions, see Sale of Goods Act 1896 (Qld) s 20; Sale of Goods Act 1895 (WA) s 20. For the situation in a self-service store, see Humes v Townsend [1989] 4 WAR 196. 63. Mujunen [1994] 2 Qd R 647; Evenett [1987] 2 Qd R 753. 64. Code (Qld) ss 393–395; (WA) ss 373–375. See also Petrie [1928] 22 QJPR 125; Orsi v Legal Contribution Trust [1976] WAR 74; Shagen (1993) 8 WAR 410; Burke (1997) 96 A Crim R 334.

65. Hempenstall [1937] St R Qd 343; Mumbray [1938] QWN 31; Wetherell (No 2) [1939] QWN 15. 66. Edwards v Ddin [1976] 3 All ER 705. 67. Code (Qld) s 391(2B); see 6.32. 68. Trainer (1906) 4 CLR 126; 13 ALR 53; Bellamy [1981] 2 NSWLR 727; Davis [1989] 1 Qd R 171; Ugle (1989) 43 Crim R 63; Laurens v Willers (2002) 131 A Crim R 281 at 293–4. 69. See also Garth [1949] 1 All ER 773 at 774; Laurens v Willers (2002) 131 A Crim R 281. 70. See also Aves [1950] 2 All ER 330, cited in Bedington [1970] Qd R 353 at 362; Wanganeen (1988) 50 SASR 433 at 434; Illingworth (2000) 127 A Crim R 302 at 307. 71. See Lawlor [1931] QWN 14. For ‘possession’, see Code (Qld); (WA) s 1; 16.12. 72. Moodie (1952) 54 WALR 80; Casey [1926] SR (NSW) 189; Schiffman [1919] VLR 55. 73. See also Croton and Norris (1911) 5 QJPR 219. 74. See Fallon (1963) 47 Cr App R 160; McCarthy [1985] WAR 84. The presumption is less strongly drawn for some offences; for example, burglary: see Short, Grealy and Plint [1928] St R Qd 249; Roach and Bromage [1921] VLR 424; Bellamy [1981] 2 NSWLR 727; McCarthy [1985] WAR 84. 75. For ‘motor vehicle’, ‘aircraft’ and ‘have in possession’, see Code (Qld) s 1. For ‘vessel’, see s 408A(3); Gowlett [1983] 2 Qd R 166. 76. See also Cameron [1990] 2 Qd R 264. 77. See Kaeser [1961] QWN 11; for ‘intention’, see 8.33–8.35. 78. For ‘motor vehicle’, see Code (WA) s 1; Road Traffic Act 1974 (WA) s 59. For unlawful use of a conveyance (other than a motor vehicle), see Code (WA) ss 1, 390A. 79. For ‘owner’, see 15.15, 15.16. 80. See also Dunn and Darby [1984] Crim LR 367. 81. See also Wray v Robertson [1970] Tas SR 253; Wibberley (1965) 50 Cr App R 51; Peart (1970) 54 Cr App R 374; Whittaker v Campbell [1984] QB 318. 82. Code (Qld) ss 552B(1)(g), (5), 552D. 83. See Vagrants, Gaming and Other Offences Act 1931 (Qld) s 29; Transport Operations (Road Use Management) Act 1995 (Qld) s 135; Road Traffic Act 1974 (WA) s 90. 84. See Balogh (1955) 72 WN (NSW) 108 at 111. 85. For offences of bringing stolen property into the state, see Code (Qld) s 406; (WA) s 388. For taking reward for stolen property, see Code (Qld) s 435; (WA) s 416. 86. Code (Qld) s 433(3). 87. Code (Qld) s 433(4), (5). 88. Code (Qld) s 568(11); Criminal Procedure Act 2004 (WA) Sch 1, cl 7(6). See also Walters v Lunt (1951) 35 Cr App R 94; Creamer [1919] 1 KB 564. 89. Code (Qld) s 434; (WA) s 415. 90. Code (Qld) s 433(2); (WA) s 414. For ‘property’, see Code (WA) s 1. See also D’Andrea v Woods [1953] 2 All ER 1028; Froggett [1966] 1 QB 152. 91. For ‘possession’, see Code (Qld) and (WA) s 1; Riley (2002) 11 Tas R 431; 36 MVR 562; see 16.12. 92. Code (Qld) s 433(7); (WA) s 414; for the requirement of knowledge of the fact of

possession, see 16.12–16.25. 93. See Code (Qld) s 568(6); Criminal Procedure Act 2004 (WA) Sch 1, cl 7(5). 94. See Murphy v Porter (1984) 12 A Crim R 38; Balogh (1955) 72 WN (NSW) 108; Cavendish [1961] 1 WLR 1083; Wiley (1850) 2 Den 37; 169 ER 408. 95. See Nosworthy (1907) 26 NZLR 536; Woods [1968] 3 All ER 709; O’Brien v Reitze [1972] WAR 152; Quillerat [1962] Tas SR 16; Fallon (1981) 28 SASR 394; Ollerton (1989) 40 A Crim R 133. 96. See Zakaria (1992) 62 A Crim R 259; McConnell (1993) 69 A Crim R 39. 97. See Crabbe (1985) 156 CLR 464; 58 ALR 417; Giorgianni (1985) 156 CLR 473; 58 ALR 641; McConnell (1993) 69 A Crim R 39; Quillerat [1962] Tas SR 16. 98. See Armstrong (1990) 54 SASR 207; McConnell (1993) 69 A Crim R 39; Zakaria (1992) 62 A Crim R 259. 99. See Ollerton (1989) 40 A Crim R 133. 100. See Davis [1989] 1 Qd R 171 at 173; Lockett [1914] 2 KB 720; Coggins [1873] 12 Cox CC 517. 101. Chan [2001] 2 Qd R 662. 102. See Williams [2001] 2 Qd R 442. 103. Phillips and Lawrence [1967] Qd R 237 at 260, 284. 104. Code (Qld) s 411. 105. Code (WA) s 392. 106. Code (WA) s 392 does not use the word ‘actual’. 107. Code (Qld) s 575; (WA) s 594; Spratt (1982) 8 A Crim R 361; Hood (2000) 111 A Crim R 556 at 558. 108. Cushing (No 2) [1977] WAR 141. 109. See Parker [1919] NZLR 365; Pollock and Divers [1966] 2 All ER 97. 110. See also Hood (2000) 111 A Crim R 556 at 558. 111. See Hay (1925) 19 QJPR 44; Hood (2000) 111 A Crim R 556 at 559, 561. See also Meade [2010] QCA 370. 112. See generally Liddel [1922] QWN 10; Holloway [1937] QWN 2; Jerome and McMahon [1964] Qd R 595. 113. See Stewart [1929] SASR 500, where common law authorities are analysed; Delk (1999) 46 NSWLR 340. 114. For ‘dwelling’, see Code (Qld) and (WA) s 1. 115. See Van den Berg [1984] WAR 162, where the accused was found not to be armed in that situation but the case was decided prior to inclusion of the reference to pretence; Majok (2005) 152 A Crim R 25 at 32, 33. 116. See Van den Berg [1984] WAR 162 at 165. 117. See Miles (1997) 17 WAR 518; Pratt (2000) 112 A Crim R 70. 118. See Dick (2006) 161 A Crim R 271. 119. For assault with intent to steal, see Code (Qld) s 413, which omits the additional element of violence associated with robbery. 120. See Tracey (1895) 6 QLJ 272; Lacey [1953] NZLR 431.

121. See Code (WA) s 392; 15.64. 122. Code (Qld) s 419(2). 123. Code (Qld) s 419(3)(a). 124. Code (Qld) s 419(3)(b)(i). 125. Code (Qld) s 419(3)(b)(ii). 126. See 15.82. 127. Code (Qld) s 419(3)(b)(iii). 128. Code (Qld) s 419(3)(b)(iv). 129. Code (Qld) s 419(4). 130. See Dixon (1885) 2 QLJ 81; Hamilton (1888) 3 QLJ 78; Pilbrow v Vestry of St Leonards, Shoreditch [1895] 1 QB 433; Rose [1965] QWN 35. In Halloran and Reynolds [1967] QWN 34, a motel unit occupied for a week was held to be a dwelling. 131. See McLoughlin [1935] QWN 29. 132. See Walker (1978) 19 SASR 532; Daugamani-Adamanika (1965–6) P & NG LR 30. Halley was followed by the Court of Criminal Appeal in Western Australia in Galea (1989) 1 WAR 450. 133. For ‘bodily harm’, ‘explosive substance’ and ‘possession’, see Code (WA) s 1. 134. See the discussion in Williams [1988] 1 Qd R 289 at 294, 300–1, 305–6; 8.23, 8.73. 135. See Barker (1983) 153 CLR 338; 47 ALR 1; King (2003) 215 CLR 150; 199 ALR 568. 136. Any offence committed is relevant to sentence: see Corby [1945] St R Qd 186. 137. Stealing and fraud are alternative verdicts to each other: see Code (Qld) s 581; (WA) ss 378, 409. See also Regulatory Offences Act 1978 (Qld) s 6; 15.30. 138. Code (Qld) ss 552B(1)(a), (3), 552D. 139. See Code (WA) s 5(3); for the relevant criteria to be considered by the court, see 4.12. 140. Code (WA) s 409; see 4.12. 141. See Seiler [1978] WAR 27; Clemesha [1978] WAR 193. 142. Code (Qld) s 408C(1)(d)–(g). See White (2002) 135 A Crim R 346. 143. See Easton [1994] 1 Qd R 531. 144. This case was decided under the Code (Qld) s 427, which was replaced by the Code (Qld) s 408C. 145. Code (WA) s 409(1)(c)–(f). See Johnson [2007] 2 Qd R 74 (chose in action); Rigney-Hopkins (2005) 154 A Crim R 433 (chose in action); Fermanis (2007) 33 WAR 434 (a loan); Moylan (2007) 169 A Crim R 302 (employment). 146. See Bannah [1989] 1 Qd R 331. 147. See also Connolly and Costello (1909) 3 Cr App R 27; Robinson (1884) 10 VLR 131; Waterfall [1970] 1 QB 148; Devine (1986) 25 A Crim R 7; Jones [1898] 1 QB 119. 148. See also Carden (1992) 8 WAR 297 at 307; Lambassi [1927] VR 349; Devine (1986) 25 A Crim R 7; Anderson [2000] 2 Qd R 393. 149. See also Mathews (2000) 24 WAR 438; Balnaves (2000) 77 SASR 433; McLeod (2003) 214 CLR 230 at 242, 256, 264; 197 ALR 333.

150. Following Graham-Helwig v State of Western Australia (2005) 30 WAR 221. Also see Re London and Globe Finance Corp Ltd [1903] 1 Ch 728; Scott [1975] AC 819. 151. Crimes Act 1914 (Cth) s 86A. 152. This analysis was adopted by the Western Australian Court of Appeal in Mathews (2000) 24 WAR 438. 153. For a relevant example, see Welham v DPP [1961] 192 A Crim R 190. 154. The offence in issue in Lewis was the Code (WA) s 424(c) — fraudulent falsification of records — and the court held that the provision may be satisfied even where the offender genuinely believes that there will be no loss because the transaction in question will ultimately be to the advantage of all concerned, even those whose interests have been put at risk. See also Spies (2000) 201 CLR 603; 173 ALR 529; 113 A Crim R 448 at 470; Markarian [2001] WASCA 393; McLeod (2003) 214 CLR 230 at 242, 256, 264; 197 ALR 333. 155. See Nelson [1987] WAR 57. 156. See Patmoy (1944) 45 SR (NSW) 127; Sanders [1919] 1 KB 550; Anderson [2000] 2 Qd R 393. 157. See Carlton (CCA (Qld), No 42 of 1987, unreported). 158. See Stacey (1985) 20 A Crim R 45; Mathews (2001) 24 WAR 438. 159. Markarian [2001] WASCA 393. 160. Graham-Helwig (2005) 30 WAR 221. 161. See 13.33. 162. See Collister (1955) 39 Cr App R 100; Studer (1915) 11 Cr App R 307; Robinson (1796) 2 Leach 749. 163. Code (WA) s 396. 164. See Treacy [1971] AC 537 at 564. 165. Tracey (1999) 20 WAR 555 at 559; Jessen [1997] 2 Qd R 213; (1996) 89 A Crim R 335. 166. See Jessen [1997] 2 Qd R 213; (1996) 89 A Crim R 335 at 341. 167. See Tomlinson [1895] 1 QB 706; Hare (1910) 29 NZLR 641; Harry [1974] Cr LR 32; Jessen [1997] 2 Qd R 213; (1996) 89 A Crim R 335. 168. Code (Qld) s 416; (WA) s 398. 169. See Dymond [1920] 2 KB 260; 8.22. For analogous crimes in Code (Qld) ss 54A, 359, 414, 416 and (WA) ss 338A, 338B, 396, 398, 399, ‘reasonable cause’ is not an element and (Qld) and (WA) s 22 will be relevant. See also Bernhard [1938] 2 All ER 140; Halloran and Reynolds [1967] QWN 34; Tracey (1999) 20 WAR 555 at 566. 170. Thorne v Motor Trade Association [1937] 3 All ER 157 at 167, 170–1. 171. See Johnson and Edwards [1981] Qd R 440 at 446. 172. Code (Qld) ss 463, 464. 173. Code (Qld) ss 465, 466; (WA) s 449. 174. Code (Qld) ss 467, 477; (WA) ss 451, 462. 175. Code (Qld) s 467A; (WA) ss 451A, 451B. 176. Code (Qld) ss 468, 474; (WA) s 459. 177. Code (Qld) ss 470, 470A; (WA) ss 454, 455. 178. Code (Qld) s 471; (WA) s 456.

179. Code (Qld) s 472; (WA) s 457. 180. Code (Qld) s 473; (WA) s 458. 181. Code (Qld) s 476; (WA) s 461. 182. Code (Qld) s 478. 183. Code (Qld) s 469A. This is an alternative offence to criminal damage under Code (WA) s 444. 184. Code (WA) s 444(1)(a). 185. Code (Qld) ss 552B(1)(c), (3), 552D; see 4.11. 186. See Code (WA) s 444(1)(b). 187. See Code (WA) s 5(3); for the relevant criteria to be considered by the court, see 4.12. 188. See Code (WA) s 444. 189. See Webb [1990] 2 Qd R 275. 190. See McClymont; Ex parte Attorney-General [1987] 2 Qd R 442 at 443. 191. See Heloise (1917) 19 WALR 84. 192. Code (Qld) s 458(2); (WA) s 441, second para. 193. Code (Qld) s 565(e); Criminal Procedure Act 2004 (WA) Sch 1, cl 5(2)(c); McClymont; Ex parte Attorney-General [1987] 2 Qd R 442. 194. Scullin (1994) 76 A Crim R 15; Page (1994) 12 WAR 35; Dolley (2003) 138 A Crim R 346. 195. Code (Qld) s 460; (WA) s 1. 196. Tacey (1821) Russ & Ry 452; 168 ER 893. 197. Foster (1852) 6 Cox CC 25. 198. Fisher (1865) LR 1 CCR 7; Getty v Antrim CC [1950] NI 114. 199. Roper v Knott [1898] 1 QB 868. 200. Maund (1866) 3 WW & A’B (L) 96. 201. King v Lees (1948) 65 TLR 21. 202. Bowden [1957] 3 SA 148. 203. Samuels v Stubbs (1972) 4 SASR 200. 204. Code (Qld) s 469(9). 205. For property in the Code (Qld) and (WA) s 1, see 15.11–15.13. 206. Code (Qld) s 469(1)–(10). 207. See Webb [1990] 2 Qd R 275; Code (Qld) s 461. 208. See Walsh [1984] 2 Qd R 407; Kimlin v Wilson; Ex parte Kimlin [1966] Qd R 237; note Sheehan [1994] 3 NZLR 592. 209. This provision enables additional fines amounting to the cost of bringing proceedings to be imposed: see 4.20. 210. See 15.145. For an award against an offender of the costs of cleaning graffiti, see Code (WA) s 446.

[page 415]

Chapter Sixteen Drug Offences

Introduction 16.1 In Queensland and Western Australia, there are legislative schemes for the control of various aspects of the use of prohibited or dangerous drugs. The legislation is the Drugs Misuse Act 1986 (Qld) and the Misuse of Drugs Act 1981 (WA). These statutes establish a wide range of offences that are concerned with controlling the possessing of, the cultivating or manufacturing of, the supplying of and the trafficking in such substances. Further, the Commonwealth has enacted provisions in the Criminal Code 1995 (Cth) that establish a wide range of offences, including drug trafficking, commercial cultivation and manufacturing, possessing and importing or exporting controlled drugs, plants and precursors.1 The Commonwealth legislation does not exclude or limit the operation of the state drugs legislation on the basis of inconsistency.2 This chapter deals with the main offences in the Queensland and Western Australian legislation.3

Queensland Dangerous drugs 16.2 Although the range of substances embraced by the legislation is effectively the same in each case, different terminology is utilised to describe the prohibited substances. In Queensland, the reference is to a ‘dangerous drug’, and the term is defined as meaning a thing, which

includes a plant, specified in the Drugs Misuse Regulations 1987 (Qld) Schs 1, 2 or 2A, or: (a) … where the thing so specified is a plant, any part of the thing; and

[page 416] (b) a thing being a salt, derivative or stereo-isomer of a thing referred to in paragraph (a) or any salt of such a derivative or stereo-isomer; and (c) a thing that— (i)

has a chemical structure that is substantially similar to the chemical structure of a thing referred to in paragraph (a) or (b); or (ii) has a pharmacological effect that is substantially similar to the pharmacological effect of a thing referred to in paragraph (a) or (b); or (iii) is intended to have a pharmacological effect that is substantially similar to the pharmacological effect of a thing referred to in paragraph (a) or (b); and includes a thing referred to in paragraph (a), (b) or (c) that is contained in a natural substance or in any preparation, solution or admixture.4

Penalties 16.3 The Drugs Misuse Act 1986 (Qld) Pt 2 makes provision for a range of drugs-related crimes and offences, the relative seriousness of which depends on factors such as the nature of the accused’s conduct, which Schedule to the Act the drug is listed in5 and the quantity involved, as listed in the Drugs Misuse Regulations 1987 (Qld). Importantly, the quantity of a drug is measured by whole weight, which means the total weight of the drug and any other substance with which it is mixed or in which it is contained.6 16.4 The crimes provided for in the Drugs Misuse Act 1986 include the following:7 s 5 Carrying on the business of unlawfully trafficking in a dangerous drug (a) 25 years for a Schedule 1 drug; (b) 20 years for a Schedule 2 drug; [Note that if a court sentences an offender to a term of imprisonment in respect of the above offences, the offender must serve at least 80 per cent of the term sentenced.] s 6(1) Unlawfully supplying a dangerous drug to another (a) life imprisonment for a Schedule 1 drug where there was aggravated supply (the

person supplied was under 16 years of age), or 25 years where there was aggravated supply (the person was a minor over 16 years of age, an intellectually impaired person, in an educational facility, in a prison or was not aware that they were being supplied with the drug);8 (b) 20 years for a Schedule 1 drug without aggravated supply; (c) 25 years for a Schedule 2 drug where there was aggravated supply involving sale to a minor under 16 years of age; (d) 20 years for a Schedule 2 drug where there was aggravated supply (the person supplied was a minor over 16 years of age, an intellectually impaired person,

[page 417] in an educational facility, in a prison or was not aware that they were being supplied with the drug); (e) 15 years for a Schedule 2 drug without aggravated supply. s 8 Unlawfully producing a dangerous drug (a) if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 1 and the quantity of the thing is of or exceeds the quantity specified in the Drugs Misuse Regulation 1987, schedule 4 in respect of that thing—25 years imprisonment; or (b) if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 1 and the quantity of the thing is of or exceeds the quantity specified in the Drugs Misuse Regulation 1987, schedule 3 but less than the quantity specified in the Drugs Misuse Regulation 1987, schedule 4 in respect of that thing and the person convicted— (i) satisfies the judge constituting the court before which the person is convicted that when the person committed the offence the person was a drug dependent person—20 years imprisonment; (ii) does not so satisfy the judge constituting the court before which the person is convicted—25 years imprisonment; or (c) in any other case where the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 1—20 years imprisonment; or (d) if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 2 and the quantity of the thing is of or exceeds the quantity specified in the Drugs Misuse Regulation 1987, schedule 3 in respect of that thing—20 years imprisonment; or (e) in any other case where the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 2—15 years imprisonment. s 9 Possession of a dangerous drug (a) if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987 schedule 1 and the quantity of the thing is of or exceeds the quantity specified in

the Drugs Misuse Regulation 1987, schedule 4 in respect of that thing—25 years imprisonment; or (b) if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 1 and the quantity of the thing is of or exceeds the quantity specified in the Drugs Misuse Regulation 1987, schedule 3 but is less than the quantity specified in the Drugs Misuse schedule 4 in respect of that thing and the person convicted— (i) satisfies the judge constituting the court before which the person is convicted that when the person committed the offence the person was a drug dependent person—20 years imprisonment; or (ii) does not so satisfy the judge constituting the court before which the person is convicted—25 years imprisonment; or (c) if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 2 and the quantity of the thing is of or exceeds the quantity specified in the Drugs Misuse Regulation 1987, schedule 3 in respect of that thing—20 years imprisonment; or (d) in any other case where the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 1 or 2—15 years imprisonment.

[page 418] Possessing, producing or trafficking relevant substances or things used in connection with offences under the Drugs Misuse Act 1986 is an offence,9 as is permitting someone to use one’s place to commit an offence under the Act.10

Official possession 16.5 Provision is made under the Drugs Misuse Act 1986 s 125 for the protection of persons who are dealing with the prohibited substance in some official capacity. This extends to those authorised to receive the material under the Health Act 1937 (Qld) or the Police Service Administration Act 1990 (Qld) while actually performing the duties under that legislation.

Procedure 16.6

The ‘offences’ outlined above will be summarily determined in

accordance with the procedures in the Justices Act 1886 (Qld).11 The ‘crimes’ will be dealt with on indictment, although provision is made for certain matters to be the subject of summary proceedings. Thus, for example, summary proceedings are available, at the election of the prosecutor, for the crimes that arise under ss 6, 8, 9, 10(1) or 11 and for which the maximum penalty is 15 years’ imprisonment.12 However, if the magistrate forms the opinion that the matter ought to be prosecuted on indictment, he or she will abstain from determining the matter summarily.13 In summary proceedings, the maximum penalty for these crimes is 2 years’ imprisonment.14 Because of the operation of the Code (Qld) s 659, it is usually the case that a person convicted of an indictable offence in summary proceedings is deemed to be guilty of a simple offence only: see 4.14. However, the summary conviction for a drugs-related crime retains its character as a conviction for an indictable offence and, therefore, is an exception to the Code (Qld) s 659.15

Western Australia Prohibited drug, prohibited plant, drug of addiction and specified drug 16.7 In Western Australia, the terms ‘prohibited drug’ and ‘prohibited plant’ are defined as those to which the Misuse of Drugs Act 1981 (WA) applies to by virtue of s 4:16 4(1) Subject to subsection (4), the drugs to which this Act applies are — (a) drugs of addiction; (b) specified drugs; and (c) whether or not they are also drugs of addiction or specified drugs, the drugs specified in Schedule I.

[page 419] (2) Subject to subsection (3), the plants to which this Act applies are — (a) prohibited plants as defined by section 5 of the Poisons Act 1964; and

(b) whether or not they are also prohibited plants as defined by section 5 of the Poisons Act 1964, the plants specified in Schedule II. (3) This Act does not apply to the non-viable seeds of the opium poppy Papaver somniferum. (4) This Act does not apply to processed industrial hemp.

‘Drugs of addiction’ are referred to in the Poisons Act 1964 (WA) Sch 8 as including cannabis, heroin, opium, methadone and morphine. Schedule I to the Misuse of Drugs Act 1981 (WA) includes cocaine, heroin, morphine, opium and cannabis within the group of prohibited drugs. ‘Prohibited plants’ are defined in the Poisons Act 1964 (WA) s 5 as including: … any plant from which a drug of addiction may be obtained, derived or manufactured, or such other plant as the Governor declares and is hereby authorized to declare from time to time to be a prohibited plant for the purposes of this Act

Schedule II to the Misuse of Drugs Act 1981 (WA) includes cannabis as a plant to which the Act applies.17

Offences 16.8 The Misuse of Drugs Act 1981 (WA) Pt II makes provision for a range of drugs-related indictable offences, crimes and simple offences, the relative seriousness of which depends on factors such as the accused’s conduct and whether the substance is a Sch I or a Sch II drug or plant.18 The main offences19 are found in ss 5, 6, 7 and 7A of that Act, which read as follows: Offences concerned with prohibited drugs and prohibited plants in relation to premises and utensils 5(1) A person who — (a) being the occupier of any premises, knowingly permits those premises to be used for the purpose of — (i) the manufacture or preparation of a prohibited drug or prohibited plant for use; or (ii) the manufacture, preparation, sale, supply or use of a prohibited drug or prohibited plant; (b) being the owner or lessee of any premises, knowingly permits those premises to be used for the purpose of using a prohibited drug or prohibited plant;

is knowingly concerned in the management of any premises used for any of (c) the purposes referred to in paragraphs (a) and (b); (d) has in his possession — (i) any pipes or other utensils for use in connection with the smoking of a prohibited drug or prohibited plant; or

[page 420] (ii) any utensils used in connection with the manufacture or preparation of a prohibited drug or prohibited plant for smoking, in or on which pipes or utensils there are detectable traces of a prohibited drug or prohibited plant; or (e) is found in any place which is then being used for the purpose of smoking a prohibited drug or prohibited plant other than cannabis, except when he is authorised by or under this Act or by or under the Poisons Act 1964 to do so, commits a simple offence. (2) In subsection (1), owner, in relation to any premises, includes the person entitled to receive the rent of those premises and the person to whom the rent of those premises is paid. Offences concerned with prohibited drugs generally 6(1) Subject to subsection (3), a person who — (a) with intent to sell or supply it to another, has in his possession; (b) manufactures or prepares; or (c) sells or supplies, or offers to sell or supply, to another a prohibited drug commits a crime, except when he is authorised by or under this Act or by or under the Poisons Act 1964 or the Industrial Hemp Act 2004 to do so and does so in accordance with that authority. (2) Subject to subsection (3) and to section 36A of the Poisons Act 1964, a person who has in his possession or uses a prohibited drug commits a simple offence, except when, in the case of a person who has the prohibited drug in his possession — (a) he is authorised by or under this Act or by or under the Poisons Act 1964 or the Industrial Hemp Act 2004 to do so and does so in accordance with that authority; or (b) the prohibited drug was sold or supplied, or requested to be sold or supplied, to him — (i) by a medical practitioner, nurse practitioner or veterinary surgeon in the lawful practice of his profession; or (ii) on and in accordance with an authorised prescription. Offences concerned with prohibited plants generally 7(1) Subject to subsection (3),20 a person who —

(a) with intent to sell or supply a prohibited plant or any prohibited drug obtainable therefrom to another, has in his possession or cultivates the prohibited plant; or (b) sells or supplies, or offers to sell or supply, a prohibited plant to another, commits a crime, except when he is authorised by or under this Act or by or under the Poisons Act 1964 to do so and does so in accordance with that authority. (2) Subject to subsection (3),21 a person who has in his possession or cultivates a prohibited plant commits a simple offence, except when he is authorised by or under this Act or by or under the Poisons Act 1964 or the Industrial Hemp Act 2004 to do so and does so in accordance with that authority.

[page 421] Selling or supplying a thing knowing it will be used in the hydroponic cultivation of a prohibited plant 7A(1) A person who sells or supplies, or offers to sell or supply, to another, any thing that the person knows will be used to cultivate a prohibited plant contrary to section 7(1)(a) or (2) by hydroponic means commits an indictable offence. (2) A court convicting a person of the offence under subsection (1) may, on the application of the Director of Public Prosecutions or a police prosecutor, in addition order that the person be prohibited for a period set by the court (but not exceeding 2 years) from selling or supplying, or offering for sale or supply, to another, any thing that may be used to cultivate plants by hydroponic means. (3) A person who contravenes an order under subsection (2) is guilty of a simple offence.

Official capacity; presumption of intent to supply 16.9 A person does not commit an offence under the Misuse of Drugs Act 1981 (WA) ss 6(1), (2) or 7(1), (2) if he or she proves that the possession, manufacture or preparation of the prohibited drug or plant was only for the purpose of analysing it in an official capacity or of delivering it to a person authorised to have possession of it, or to manufacture, sell or supply it under the Misuse of Drugs Act 1981, by or under the Poisons Act 1964 or on and in accordance with an authorised prescription.22 For the purposes of ss 6(1) and 7(1) as set out above, the Misuse of Drugs Act 1981 s 11 enables a presumption to be drawn that the accused had an intent to supply the drug or plant. This may be done where the amount in the accused’s possession is not

less than the quantity listed in Schs V and VI, respectively, of that Act.23

Procedure 16.10 The ‘simple’ offences outlined in the Misuse of Drugs Act 1981 (WA) ss 5, 6(2), 7(2) and 7A(2) are the subject of summary proceedings: see 5.32. The ‘crimes’ in ss 6(1) and 7(1) and the indictable offence in s 7A(1) of that Act are dealt with on indictment unless summary proceedings are available in accordance with the Misuse of Drugs Act 1981 (WA) s 9. Except for charges of conspiracy to commit the indictable offence in question, the matter will be dealt with summarily where the quantity of drug or plant is less than the quantity specified in Schs III or IV, respectively, unless the magistrate considers, for any reason, that the matter should be dealt with on indictment: see the Misuse of Drugs Act 1981 (WA) s 9.

Penalties 16.11 The Misuse of Drugs Act 1981 (WA) s 34 provides the penalties for the offences under that Act. For a crime under ss 6(1) or 7(1), the accused is liable to a fine not exceeding $100,000 or to imprisonment for a term not exceeding 25 years, or both. However, where the crime relates only to cannabis (but not to cannabis resin or any other cannabis derivative), the accused is liable, if sentenced by the District or Supreme Court, to a fine not exceeding $20,000 or to imprisonment for a term not exceeding 10 years. Where a crime under ss 6(1) or 7(1) is dealt [page 422] with summarily, the penalty is a fine not exceeding $5000 or imprisonment for a term not exceeding 4 years, or both. Conspiring to commit a crime under ss 6(1) or 7(1) is punishable by a fine not exceeding $75,000 or to imprisonment for a term not exceeding 20

years, or both. For an offence under s 7A(1), the accused is liable to a fine not exceeding $20,000 or to imprisonment for a term not exceeding 5 years, or both if convicted on indictment or, if convicted summarily, to a fine not exceeding $2000 or to imprisonment for a term not exceeding 2 years, or both. For a simple offence under s 5(1) (a)–(d), the penalty is a fine not exceeding $3000 or imprisonment for a term not exceeding 3 years, or both. For a simple offence under ss 5(1) (e), 6(2), 7(2) or 7A(3), the penalty is a fine not exceeding $2000 or imprisonment for a term not exceeding 2 years, or both.

Possession 16.12 In Queensland, it is an offence to possess dangerous drugs under the Drugs Misuse Act 1986 (Qld) s 9, while the Misuse of Drugs Act 1981 (WA) s 6(2) refers to the possession or use of a prohibited drug. It is evident from above that several of the drugs-related offences in both jurisdictions depend on the proof of possession of the drug, plant or other item that is the subject of the charge.24 The term ‘possession’ is not defined in the Queensland Act but the Misuse of Drugs Act 1981 (WA) s 3 provides the following definition: … to possess includes to control or have dominion over, and to have the order or disposition of, and inflections and derivatives of the verb to possess have correlative meanings.

In Queensland, the Drugs Misuse Act 1986 s 116 provides that the Criminal Code is to be read and construed with that Act and, therefore, the definition in the Code (Qld) s 1 is relevant. It reads: … possession includes having under control in any place whatever, whether for the use or benefit of the person of whom the term is used or of another person, and although another person has the actual possession or custody of the thing in question.

Physical element and proof of control 16.13 It is clear from these definitions of ‘possession’ that the concept includes a physical element and that proof of control over the thing will be sufficient to meet that requirement. This will be satisfied where the accused has placed the thing somewhere for safe-keeping

and also where the accused is exercising actual control in a manual sense, such as where he or she has the thing in the clothing that he or she is wearing,25 or in an item such as a suitcase that he or she is carrying or even in his or her body, such as in a body cavity. In addition, the courts have recognised that a person can have possession of a drug where he or she is exercising de facto control over it. In Lai [1990] WAR 151; (1989) 42 A Crim R 460, the accused was [page 423] charged with being in possession of a package of heroin contrary to the Misuse of Drugs Act 1981 (WA) s 6(1)(a). The package was found in the ceiling over the toilet in his restaurant. Referring to the definition in s 3 of that Act, the Court of Criminal Appeal said at A Crim R 463: It is now well settled that possession requires either actual physical possession or, alternatively, de facto custody in the sense that the accused may be said to exercise control and dominion over the article in question. That, of course, may follow if it could be established beyond reasonable doubt that the accused person knew of the existence of the package in question in the ceiling over the toilet in his restaurant because it was his restaurant.

Regardless of who put the package in the ceiling, the accused in that case could be found to be in possession as soon as he exercised control or dominion over it. In Lai, however, the conviction was quashed. In part, this was because other people used the toilet, including customers, staff and building workers engaged on the site and the Crown had not led evidence to negate possession on the part of those other people.26 In Davies (2005) 30 WAR 31,27 parents allowed their son to store cannabis in the ceiling of their house. The Court of Appeal held that possession need not be exclusive and that, even though the son was in possession, so were the parents, and upheld its conviction of possession with intent to supply him with the drug.28 It will be seen below that, unlike the position in Western Australia, the Drugs Misuse Act 1986 (Qld) s 129(1)(c) establishes a rebuttable presumption of

possession by an occupier of premises where a drug is found: see 16.28. 16.14 In Buck [1983] WAR 372; (1982) 8 A Crim R 208, the accused and another man travelled by aircraft to Australia from Malaysia. The accused was charged with an offence under the Customs Act 1901 (Cth) s 233B(1)(c)29 of being in possession of a prohibited import, namely heroin, which, pursuant to their plan, had been placed in condoms and secreted in the anal passage of the other man. The Crown had argued that the accused had purchased the heroin and placed it in the condoms for the other man to carry and that the accused had possession because he had ‘the right to call upon and the right to get it and the right to take it up again’. The Western Australian Court of Criminal Appeal quashed the conviction, determining that the accused did not have possession in that situation. Burt CJ said: A person might … be in possession of a thing which is in a locked box to which he alone or he and an accomplice has a key. That is so because he has the right and the power to take possession of the box and he has the right and the power to take possession of whatever it contains. In such a case, the thing is in ‘some receptacle belonging to him and under his control’. See Moors v Burke (1919) 26 CLR 265 at p 270. But that cannot be said when the thing is within the body of another person. The body of another person is not ‘some receptacle belonging to him and under his control’. In such a case, the stranger, if I may so describe him — in this case the appellant — has not in any sense possession of the container nor has he the power to

[page 424] take physical possession of the thing within it. He must bide his time and rely upon the person within whose body the thing is, to hand it over when the time arrives or, as the trial judge in this case put it, ‘in due course’. But, until that time arrives, the thing, I think, remains in the exclusive possession of the person who has it within his body.

There, the accused had also been convicted of being knowingly concerned in the importation of the heroin. That conviction was also quashed because of a misdirection by the trial judge and a new trial was ordered on that count.

Time period for exercise of control 16.15 The period of time for which control is required need only be relatively brief. Accordingly, where the accused takes the thing for the purpose of throwing it through a window to escape the attention of police officers, possession will be established.30

Mental element Knowledge 16.16 With some of the provisions that establish drug offences, there is a specific requirement for the Crown to prove that particular conduct was ‘knowingly’ undertaken by the accused.31 The offences relating to possession do not include that requirement of knowledge in express terms. Nevertheless, the concept of possession in those offences has been held to include, in addition to the physical element of control, the mental element that the accused had knowledge that the thing was in his or her possession. In Pereira (1988) 82 ALR 217; 35 A Crim R 382 at 385, the High Court held that actual knowledge must be established in order to prove possession, and that it is ‘never the case that something less than knowledge may be treated as satisfying a requirement of actual knowledge’.32 That degree of proof is also required for those offences that expressly include knowledge as a specific element. In Pereira, a distinction was drawn between that strict requirement for proof of possession and the more general requirement for the proof of mens rea at common law. This latter requirement may be described in various ways, depending on the offence, such as intention, foresight, knowledge or awareness with respect to some act, circumstance or consequence: see 8.1–8.4. Where mens rea takes the form of knowledge, something less than the strict requirement of knowledge for possession will suffice. In Kural (1987) 162 CLR 502; 70 ALR 658; 29 A Crim R 12 at 13, the High Court said that belief or an awareness of the likelihood that a package contained a prohibited import would be sufficient to establish the mens rea for an offence under the Customs Act 1901 (Cth) s 233B(1)(b).33 It has now been held that proof of a belief by the accused in the likelihood, in the sense that

there was a significant or real chance, that he or she had a thing in his or her physical possession or otherwise under his or her control or dominion will suffice [page 425] as knowledge.34 This was confirmed by Steytler P in State of Western Australia (2007) 33 WAR 483; [2007] WASCA 42 at [67]: It seems to me that knowledge (which might be equated with awareness in this context) is established if there is proof of a belief by the accused in the likelihood (in the sense that there was a significant or real chance) that he or she had a prohibited drug in his or her physical possession or otherwise in his or her control or under his or her dominion.

16.17 Proof of knowledge can also be established by the drawing of inferences from the surrounding circumstances. Thus, a combination of suspicious circumstances and a failure of the accused to make inquiry about the nature of the substance in question may enable a jury to infer knowledge on the part of the accused, provided that is the only rational inference that can be drawn in that situation.35

Extent of knowledge 16.18 Differing approaches have been adopted as to what it is that the accused must have knowledge of in relation to possession. It is clear that where the accused’s mistake is in relation to whether the substance allegedly possessed by him or her is actually in his or her possession, no offence will be committed (see 16.16). This is because the Crown will not be able to establish one of the elements of the offence, that is, knowledge of the existence of the substance. A different kind of mistake is one relating to the nature of the substance involved. A reading of the Drugs Misuse Act 1986 (Qld) suggests that the prosecution must prove knowledge of possession of the substance but not that the accused had knowledge of the nature of that substance. However, where the accused denies such knowledge, the accused must establish lack of such knowledge because of the

operation of the evidentiary provision in the Drugs Misuse Act 1986 (Qld) s 129 which has the effect of reversing the onus of proof in the event of a mistaken belief as to the nature of the substance.36 Therefore, in effect, the accused will not be criminally responsible without knowledge of the nature of the substance.37 16.19 Under the Misuse of Drugs Act 1981 (WA), it is necessary for the prosecution to prove that the accused had knowledge that the substance possessed was a prohibited substance of some kind, although it is not necessary to prove that the accused knew precisely which such substance it was.38 This has been confirmed [page 426] by the majority judgment in State of Western Australia (2007) 33 WAR 483; [2007] WASCA 42.39 Where the accused claims to be mistaken as to the nature of the substance involved it is usually possible to invoke mistake of fact under the Code (Qld) and (WA) s 24: see 8.73. That is the situation in Western Australia and no criminal responsibility will arise if the prosecution is unable to negative an honest and reasonable mistaken belief in the nature of the substance. Where s 24 applies it will alleviate criminal responsibility only to the extent of the accused’s mistaken belief.40 In Queensland, however, the application of s 24 is modified in its operation by the Drugs Misuse Act 1986 (Qld) s 129(1)(d), which reads: In respect of a charge against a person of having committed an offence against Part 2, the operation of section 24 of the Criminal Code is excluded unless that person shows an honest and reasonable belief in the existence of any state of things material to the charge.

The effect of that provision is to reverse the onus of proof so that a mistake of fact about the nature of the substance becomes a matter that the accused must establish on the balance of probabilities.41

16.20 It is, however, a different situation where the accused believes that he or she was in possession of a particular prohibited substance and the evidence establishes that it was a different prohibited substance. In that situation, the Code (WA) s 24 will alleviate criminal responsibility only to the extent of the accused’s mistaken belief:42 It is no defence for an accused to say that he or she did not believe possession of drugs was unlawful,43 or that he had a religious belief which permitted him to consume drugs,44 or that the drugs were not being used recreationally, but rather medicinally.45

Intention 16.21 In addition to knowledge as a mental element of possession, some cases have referred to the need for the Crown to establish that the accused intended to be in possession of the prohibited substance, although this will be established with proof of custody or control of the substance along with knowledge, as outlined above, or where the accused has laid some claim to the substance. In State of Western Australia (2007) 33 WAR 483; [2007] WASCA 42, the majority held that where possession is alleged in the absence of actual physical custody, there must be an intention to exercise control over it. This reflects the relevance of excuses; [page 427] these may apply such that the accused will not be criminally responsible where, under the state legislation, an excuse within the Codes (Qld and WA) Ch 5, such as accident or unwilled act, is available.46 In Davis [1990] 5 WAR 269, Malcolm CJ referred to the need for the accused to have an intention to possess as a basis for showing that a person in innocent possession should not be criminally responsible. His Honour said at 280: Persons who innocently receive a parcel and on discovering that it contains drugs take steps to deliver them to the police would fall into the same category as would persons whose custody was involuntary or by accident. Indeed by s 36 of the Criminal Code all of the provisions of Chapter 5 of the Code which relieve from criminal responsibility

are applicable to persons charged with offences under the Misuse of Drugs Act 1981 (WA).47

The Misuse of Drugs Act 1981 (WA) s 11 establishes a rebuttable presumption of intent to sell or supply a prohibited drug or plant where the quantity exceeds the amount specified in Schs V and VI of that Act, respectively.48

Intention to exercise future control 16.22 The decision in Buck [1983] WAR 372; (1982) 8 A Crim R 208 indicates that possession will not be established merely by proof that the accused intended to exercise control over the thing in the future. In Solway [1984] 2 Qd R 75, the Queensland Court of Criminal Appeal quashed a conviction for possession of Indian hemp under the Health Act 1937 (Qld) s 130, the forerunner to the provisions in the Drugs Misuse Act 1986 (Qld). There, the drug was found in a cupboard in the bathroom of the house in which the accused lived with other family members. When it was located by police, he told them that there had been a party at the house some weeks earlier and that someone had told him there was cannabis in the cupboard. He had seen the material but had not touched it and said that he was going to clean out the cupboard and ‘dump everything that was in it’. The court held that mere knowledge of the existence of the cannabis, coupled with a future intention to exercise control over it, was not sufficient to constitute possession.49 16.23 In Warneminde [1978] Qd R 371, a conviction had been upheld for possession of cannabis which the accused had paid for and was awaiting arrival of by parcel. The court in Solway (see 16.24) distinguished that case on the basis that Warneminde ‘had performed a past act which showed he laid claim to the parcel’ and that ‘the future act of signing the receipt was within his capacity’.50

Quantity of substance 16.24

The quantity of the prohibited substance that the accused has

in his or her possession will be relevant to the penalty that may be imposed. However, none [page 428] of the legislative schemes gives an indication of the minimum amount of material required before an offence can be committed. The matter arose in Williams (1978) 140 CLR 591; 22 ALR 195 and Donnelly v Rose [1995] 1 Qd R 148. In the latter case, the accused was convicted of being in possession of heroin. The evidence of the analyst was that it weighed 26 thousandths (0.026) of a gram and that there was ‘insufficient … sample available for the quantity of heroin in the substance to be determined’. The Court of Appeal indicated that there was ‘room for argument’ as to what proposition the High Court decision in Williams was authority for, but concluded that the case should be read as requiring application of a ‘common sense and reality’ test. The court continued: If it appears that the amount of heroin found would, if extracted, not be visible to the naked eye, then no offence has been committed. But it does not follow that proof that a minute speck would then be visible results in a conviction. It is our opinion that for a prosecution of this kind to succeed it must be proved that there was ‘possession of such a quantity as makes it reasonable to say as a matter of common sense and reality that it is the prohibited plant or drug of which the person is presently in possession’: Williams (1978) 140 CLR 591 at 600.

The conviction in that case was quashed as it was in Williams, where the material comprised minute quantities of cannabis mixed with dust which had been found in the pocket of a jacket. In that case the amount was so small that effective control could not be exercised over it.51 16.25 For those offences that are concerned with the possession of a thing, such as a pipe or utensil, that has been used in connection with a prohibited substance, the Misuse of Drugs Act 1981 (WA) s 5(1)(d) requires proof of detectable traces of the prohibited drug or plant.

Use of premises

16.26 Where premises are utilised for activities associated with the use of prohibited substances, offences independent of those relating to possession may be committed. In Western Australia, this is by the occupier, owner, lessee or person concerned in the management of the premises who knowingly permits use for that purpose.52 In Queensland, it is by the occupier or person concerned in the management or control of the place who permits the place to be so used: see the Drugs Misuse Act 1986 (Qld) s 11, and s 4 of that Act, which defines ‘place’ to include a vehicle. Additionally, the Drugs Misuse Act 1986 (Qld) s 129(1)(c) establishes a rebuttable presumption of possession by an occupier of a place where a drug is found. It reads: In respect of a charge against a person of having committed an offence defined in Part 2, proof that a dangerous drug was at the material time in or on a place of which that person was the occupier or concerned in the management or control of is conclusive evidence that the drug was then in the person’s possession unless the person shows that he or she then neither knew nor had reason to suspect that the drug was in or on that place.

[page 429] The purpose of the presumption is to alleviate the need for the prosecution to prove knowledge on the part of the accused. Where the provision applies, then, subject to proof of one of the matters referred to in the exception, the accused is deemed to have possession, whether or not there was knowledge.53 The section reverses the onus of proof, so that the accused must establish, on the balance of probabilities, that he or she did not know, or did not have reason to suspect, that the drug was in or on the place.54 In Sellwood [2011] QCA 70, for example, the accused was convicted when drugs were found resting on the centre console in the back seat of his car, and he gave no evidence rebutting the presumption that the drugs were in his possession. In that case the Court of Appeal quoted from the earlier case of Lawler v Prideaux [1995] 1 Qd R 186 where Macrossan CJ, referring to the predecessor section to s 129(1)(c), noted that ‘the intended operation is confined to cases where there is no immediate relationship of physical

possession demonstrated by a person in proximity to the item, that is where there is no immediately obvious possessor, and the legislature has thought it necessary or desirable to attribute possession to someone’. 16.27 In Phan [2008] 2 Qd R 485, the Queensland Court of Appeal considered a case where police had found a package of heroin in a concealed compartment in the wardrobe of a computer room in a house. The appellant claimed that, while he knew of the concealed compartment in the wardrobe, he had not stored anything in it for over a year. He said that he did not know who could have put heroin there, but that he was, at the time, living with his brother who was a heroin addict, and who knew of the existence of the concealed compartment. The appellant argued that the trial judge had erred in his directions to the jury. He submitted at [16] that the learned trial judge should have directed the jury that: … if they were satisfied that the appellant did not know or have reason to suspect that the particular package of heroin found in the concealed compartment of the wardrobe was in his house, then s 129(1)(c) of the Act did not operate to deem the heroin to be in the appellant’s possession … it was argued that, properly construed, s 129(1)(c) of the Act, when it speaks of ‘the drug’ for the second time, is speaking of the particular package of the drug which is proved to be in a house rather than any dangerous drug or a dangerous drug of the kind located in the house.

The Court of Appeal held at [25] that s 129(1)(c): … does not allow an accused person to avoid the creation of the irrebuttable presumption of possession by showing merely that he or she had no reason to suspect that the thing, being a dangerous drug, found in his or her house was a dangerous drug of a particular kind or a particular quantity, just as such a person cannot avoid the presumption by showing that he or she had no reason to suspect that the thing was a dangerous drug packaged in a particular way or located in a particular place.

[page 430] As to whether the presumption under s 129(1)(c) can arise in circumstances where, although a person’s belongings are located at a unit, the person has been seen using the laundry at the unit and the

unit is booked under the person’s name, but the person denies being the occupier of the premises, see McGregor [2009] QCA 308. 16.28 When the presumption in the Drugs Misuse Act 1986 (Qld) s 129(1)(c) is relied upon, the onus rests with the prosecution to establish that the accused is a person to whom the provision applies. The section makes reference to an occupier or person concerned in the management or control of the place. In Smythe [1997] 2 Qd R 223, Thomas J expressed the opinion that the section is not concerned with ‘bare ownership’ but, rather, with actual occupation or a person who is actually concerned in the management or control of the place in question, although it is not necessary that the person physically occupy the place on a continuing basis. In Smythe it was held that s 129(1)(c) did not apply and that the accused had no case to answer on a charge related to possession of cannabis that was found on a rural property owned by her and only visited by her a few times a year for short periods. In that case, Thomas J also expressed the opinion that, within a property, there may be a place which is, and another place which is not, occupied, managed or controlled by the accused.55 For a particular place, there may be more than one occupier; for example, in the case of persons in possession of premises as joint tenants.56 16.29 The terms of the Drugs Misuse Act 1986 (Qld) s 129(1)(c) are relevant only to those offences that pertain to possession and not to those concerned with trafficking, supplying or producing drugs.57 Further, the provision only applies in circumstances where no other person is in possession of the thing in question. In Jenvey v Cook (1997) 94 A Crim R 392, the accused was charged with being in possession of cannabis that was found in a bedroom. She shared the room with a man who had admitted to ownership of the drug. He was convicted on the basis of his possession and she was convicted on the basis of the presumption in s 129(1)(c). The Court of Appeal held that s 129(1) (c) had no application to the situation where possession is established in some person (at 395). The only way that the accused could be convicted of the offence was by proof of actual possession, including the requirement of knowledge.58

Trafficking Queensland 16.30 In Queensland, trafficking in drugs is dealt with in the Drugs Misuse Act 1986 (Qld) s 5, whereby it is a crime to carry on the business of unlawfully trafficking in dangerous drugs. The question of what constitutes the carrying [page 431] on of a business was considered in Quaile [1988] 2 Qd R 103. There, the accused was convicted of the crime and his particular business involved him arranging for supplies of heroin to be brought into Queensland from New South Wales and his selling the heroin in hotel bars in Cairns over a period of several weeks. Having referred to various authorities concerning the carrying on of a business, Andrews CJ said at 106: The cases emphasise that an isolated transaction with nothing else proved does not amount to the carrying on of a business for evidence purposes and that carrying on of a business must consist of a continuous type of conduct for which an ultimate reward of a commercial character is expected.

In that case, his Honour approved of an example given by the trial judge to the jury concerning the sale of eggs. The selling of a single egg on one day only would not constitute the business of egg selling; but the keeping of a hen and the selling of her eggs or some of them would do so. Nevertheless, there would seem to be no reason why a single sale, ‘with something else proved’ such as where a large quantity of drug is involved or where some other evidence of intention to conduct further sales, would not involve the carrying on of a business.59 16.31 Macrossan J, in Quaile [1988] 2 Qd R 103, also referred to the concept of ‘trafficking’ in the Drugs Misuse Act 1986 (Qld) s 5, expressing the opinion that it is concerned with the process involved

in the movement of drugs from the manufacturer, or the person who prepared it, to the consumer. The raising of a commercial element at any stage of that process will constitute trafficking, and his Honour considered that this can be satisfied at an early stage with the purchasing of prohibited drugs for subsequent distribution, but not where the person intends to use the drug himself or herself. His Honour continued at 113–14: … there can be trafficking between persons neither of whom is a user and even though in a particular case the drug in question never in fact reaches a user. In practice, of course, trafficking is hardly likely to exist in the absence of users to generate demand but in a particular case the passage of a drug through to users may be interrupted yet still trafficking may have occurred.

16.32 In Goulden [1993] 2 Qd R 534, the accused was convicted of carrying on the business of trafficking in drugs in Queensland while he was on bail for a similar offence in New South Wales. The court was able to have regard to the earlier interstate conduct, the activity in Queensland being a continuation of it. The conviction was upheld even though the Queensland component of the business was of short duration and involved a relatively small amount of the dangerous drug. The deeming provision, the Drugs Misuse Act 1986 (Qld) s 129(1)(c), has no application to a charge of trafficking. The Crown must prove, beyond reasonable doubt, that the accused was actually in possession of drugs: Horne [2009] QCA 336. 16.33 In Western Australia, trafficking in prohibited drugs is not a separate offence. However, a declaration may be made under the Misuse of Drugs Act 1981 (WA) s 32A that a person is a drug trafficker and, although no penalty thereby attaches under that Act, the declaration becomes relevant for an application under [page 432] the Criminal Property Confiscation Act 2000 (WA).60 The declaration may be made in two situations.61 The first is where there were

convictions, on two previous occasions, within a period of 10 years, of an ‘external serious drug offence’ or a ‘serious drug offence’.62 These terms are defined in s 32A(3) of that Act in the following way: external serious drug offence means: (a) offence against a law of another State, or of a Territory, which offence is prescribed to correspond to an indictable offence under section 6(1), 7(1) or 33(2)(a); or (b) offence against (i) the repealed section 233B of the Customs Act 1901 of the Commonwealth; or (ii) a law of the Commonwealth which offence is prescribed to correspond to an offence against that repealed section. serious drug offence means a crime under section 6(1), 7(1), 33(1)(a) or 33(2)(a).

The second situation where a declaration may be made is where there were convictions, on two previous occasions within a period of 10 years, of a serious drug offence in respect of a prohibited drug in a quantity that is not less than the quantity specified in the Misuse of Drugs Act 1981 (WA) Sch VII in relation to the prohibited drug or prohibited plants in a number that is not less than the number specified in Sch VIII of that Act. A constitutional challenge brought against the confiscation of property pursuant to such declarations under similar Northern Territory provisions has been dismissed by the High Court of Australia. In Attorney-General (NT) v Emmerson (2014) 307 ALR 174; 88 ALJR 522, the court rejected an argument that the enacting of laws permitting the confiscation of property in these circumstances was beyond the power of the Supreme Courts.

Selling and/or supplying 16.34 In Queensland, the unlawful supplying of a dangerous drug to another is a crime under the Drugs Misuse Act 1986 (Qld) s 6(1). The term ‘supply’ is defined in s 4 of that Act as meaning: (a) give, distribute, sell, administer, transport or supply; (b) offering to do any act specified in para (a); (c) doing or offering to do any act preparatory to, in furtherance of, or for the purpose of, any act specified in para (a).

Clearly, that definition is very wide and the offence is more serious if it involves ‘aggravated supply’, which arises where the supply of the drug is by an adult accused to a minor, to an intellectually handicapped person, to a person in an [page 433] educational institution or correctional facility or where the person supplied does not know he or she is being supplied: see the Drugs Misuse Act 1986 (Qld) s 6(2).63 16.35 In Western Australia, crimes arise where the accused is in possession of a prohibited drug or plant with intent64 to supply it to another and also where the accused sells or supplies, or offers to sell or supply, such a drug or plant to another: see the Misuse of Drugs Act 1981 (WA) ss 6(1)(a), (c), 7(1)(a). Additionally, the accused will be presumed to be in possession of the drug or plant with intent to sell or supply if he or she is in possession of a drug exceeding the amount in Sch V, or, if a plant, an amount exceeding that specified in Sch VI by virtue of s 11 of that Act: see also 16.23. The accused must discharge this presumptive onus on the balance of probabilities to escape liability. In Scarfetta v State of Western Australia [2010] WASCA 209 it was found that s 11 applies to both principal and secondary offenders under the Code (WA), although it has no application to attempts or conspiracy.65 In Bomford v State of Western Australia [2014] WASCA 43, it was confirmed that the s 11 presumption applies to offenders charged under ss 7 and 8 as accomplices, as well as to principal offenders. 16.36 The term ‘to supply’ is defined in s 3 of the Misuse of Drugs Act 1981 (WA) as including: … to deliver, dispense, distribute, forward, furnish, make available, provide, return or send, and it does not matter that something is supplied on behalf of another or on whose behalf it is supplied.

In Manisco (1996) 14 WAR 303, the accused was charged with being

in possession of a prohibited drug with intent to supply it to another under the Misuse of Drugs Act s 6(1)(a). He had been handed the drugs by the owner with a view to returning them to the owner at a later date. Pidgeon J referred to the definition of ‘supply’ and said at 306: A form of sale, within the meaning of the section, would be … a transfer, for a price, of the proprietary right of the seller to the buyer together with delivery. The legislature has, however, gone further. It has also proscribed the ‘supply’ of a prohibited drug. In my view, the first reason why the word ‘supply’ is included is to make it unnecessary to prove that there is a price. A form of supply would be the transfer of proprietary rights by delivery. I would not see a re-delivery pursuant to a bailment coming within that category.

In that case, the accused could be convicted of the simple offence of being in possession but not the more serious indictable offence requiring proof of intent to supply. In Manisco, Pidgeon J at 306 expressed the opinion that the Misuse of Drugs Act 1981 (WA) s 6(1) (a) would be satisfied where an owner delivered to a person as his or her agent for the purpose of further supply to another. He also [page 434] noted that if the drugs were delivered to an accused’s place to be collected by the intended owner, the indictable offence may be committed.66 16.37 The scope of the offence of supplying was further explored in Pinkstone (2004) 219 CLR 444; 206 ALR 84, in which the accused assigned a package containing a prohibited drug as air cargo from Sydney to Perth. Once there, it was intercepted by undercover police officers who handed it to the intended recipient. It was held that a person is liable under the Misuse of Drugs Act 1981 (WA) s 6(1)(c) for sending a prohibited drug to another person once he or she has knowingly placed the drug in a mail delivery system with the intention that it be received by that person at a particular place. The High Court said at CLR 463:

Whether or not the drug in question ultimately reaches the intended recipient once it has arrived at its intended destination is, for this purpose, irrelevant. For these reasons, the actions of the appellant in arranging for the delivery of a prohibited drug with the intention that the drug would be received by Mr Yanko at Perth Airport, when combined with the actions of Ansett in causing the drug to reach, and be unloaded at, Perth Airport, amounted to the ‘supply’ of that drug to another within the meaning of s 6(1)(c) of the Drugs Act.

In that case, the actions of the air carrier were imputed to the accused by virtue of the doctrine of ‘innocent agency’.67

Manufacturing, producing and cultivating 16.38 In Queensland, it is a crime under the Drugs Misuse Act 1986 (Qld) s 8 to produce a dangerous drug. The term ‘produce’ is defined in s 4 of that Act as meaning: (a) prepare, manufacture, cultivate, package or produce; (b) offering to do any act specified in para (a); (c) doing or offering to do any act preparatory to, in furtherance of, or for the purpose of, any act specified in para (a).

16.39 In Western Australia, it is a crime to manufacture or prepare a prohibited drug: see the Misuse of Drugs Act 1981 (WA) s 6(1)(b). It is a simple offence to cultivate a prohibited plant: see the Misuse of Drugs Act 1981 (WA) s 7(2). The term to ‘cultivate’, as defined in s 3 of that Act: … in relation to a prohibited plant, includes to grow, sow or scatter the seed produced by, or to plant, nurture, tend or harvest, the prohibited plant.

16.40 Reliance on the term ‘produce’ in the Queensland provision and the definition of that term make it clear that the concept is broader than cultivation. In Sabato and Hickey (1987) 31 A Crim R 72, it was held that production of cannabis was engaged in by the accused in respect of their actions in weeding and harvesting the crop. _________________________________ 1.

Criminal Code 1995 (Cth) Pt 9. See Crimes (Traffic in Narcotic Drugs and Psychotic Substances) Act 1990 (Cth) Pt 2.

2.

Criminal Code 1995 (Cth) s 300.4; Lamb [1984] 2 Qd R 404; Stevens (1991) 23 NSWLR 75;

102 ALR 42; see 1.9; Till v Johns [2004] QCA 451. 3.

4.

The Criminal Code 1995 (Cth), detailed discussion of which is beyond the scope of this work, applies to Commonwealth drug offences. Accordingly, these offences are not dealt with here. For reference to the law prior to the commencement of the Criminal Code 1995 (Cth), see R G Kenny, An Introduction to Criminal Law in Queensland and Western Australia, 5th ed, LexisNexis Butterworths, Sydney, 2000, Ch 16. See Drugs Misuse Act 1986 (Qld) s 4.

5. 6.

See 16.2. See Drugs Misuse Act 1986 (Qld) s 4.

7.

For receiving or possessing property obtained from a crime in ss 5, 6, see Drugs Misuse Act 1986 (Qld) s 7. For publishing or possessing instructions for producing dangerous drugs, see s 8A of that Act. For ‘aggravated supply’, see Drugs Misuse Act 1986 (Qld) s 6(2); see 16.32.

8.

9. Drugs Misuse Act 1986 (Qld) ss 9A, 9B, 9C. 10. Drugs Misuse Act 1986 (Qld) s 11. 11. Drugs Misuse Act 1986 (Qld) s 118; see 5.35. 12. Drugs Misuse Act 1986 (Qld) ss 13, 118. 13. Drugs Misuse Act 1986 (Qld) s 118(4). 14. Drugs Misuse Act 1986 (Qld) s 13(4). 15. Drugs Misuse Act 1986 (Qld) s 123. 16. Misuse of Drugs Act 1981 (WA) s 3. 17. For ‘cannabis’, ‘heroin’ and ‘opium’, see Misuse of Drugs Act 1981 (WA) s 3. 18. See 16.2. 19. For fraudulent behaviour in relation to prohibited drugs, see Misuse of Drugs Act 1981 (WA) s 8. 20. See 16.9. 21. See 16.9. 22. Misuse of Drugs Act 1981 (WA) ss 6(3), 7(3). For reversal of onus of proof, see 6.19. 23. See 16.26. 24. Drugs Misuse Act 1986 (Qld) ss 7, 9, 10(1), (2), (4), (4A); Misuse of Drugs Act 1981 (WA) ss 5(1)(d), 6(1)(a), 6(2), 7(1)(a). 25. The assumption here is that the accused person has placed the drug in his or her pocket. The situation would be different where a person put on a coat, being unaware there were drugs in the pocket: see Clare [1994] 2 Qd R 619. 26. See also Filippetti (1978) 13 A Crim R 335 at 338; Gorman (1991) 56 A Crim R 406 at 409; Lawler v Prideaux [1995] 1 Qd R 186; (1993) 70 A Crim R 145; Solway [1984] 2 Qd R 75; Dib (1991) 52 A Crim R 64 at 66; Buck [1983] WAR 372; (1982) 8 A Crim R 208 at 216. 27. See also Wan (2003) 140 A Crim R 513. 28. Misuse of Drugs Act 1981 (WA) s 6(1)(a). 29. Now repealed. See Criminal Code 1995 (Cth) Pt 9, Div 307. 30. See Thomas (1981) 6 A Crim R 66; Todd (1982) 6 A Crim R 105.

31. Misuse of Drugs Act 1981 (WA) s 5(1)(a)–(c). 32. See Clare [1994] 2 Qd R 619 at 638. This approach has not uniformly applied: see Saad (1987) 29 A Crim R 20; Greatorex (1994) 74 A Crim R 496. However, it was approved by a majority of the High Court in Tabe (2005) 225 CLR 418 at 427–30, 465; 221 ALR 503. 33. See now the Criminal Code 1995 (Cth) Pt 2.2, Div 5. 34. See Tabe (2005) 225 CLR 418 at 424–5; 221 ALR 503; State of Western Australia (2007) 33 WAR 483 at 507–9, 536; [2007] WASCA 42. 35. See Pereira (1988) 82 ALR 217; 35 A Crim R 382 at 385; Tabe (2005) 225 CLR 418 at 425; 221 ALR 503. 36. See Pereira (1988) 82 ALR 217; 35 A Crim R 382 at 385; Tabe (2005) 225 CLR 418 at 425; 221 ALR 503. The Drugs Misuse Act 1986 (Qld) s 129(1)(d) excludes the operation of the Code (Qld) s 24. 37. Clare [1994] 2 Qd R 619 at 639, 643, 646; Nguyen [1995] 2 Qd R 285 at 288; Tabe (2005) 225 CLR 418 at 427, 464; 221 ALR 503. 38. See Dunn (1986) 32 A Crim R 203 at 205, 211; Kural (1987) 162 CLR 502; 70 ALR 658; 29 A Crim R 12; Pereira (1988) 35 A Crim R 382 at 384; He Kaw Teh (1985) 157 CLR 523; 60 ALR 449; Tomasevic (1990) 51 A Crim R 72 at 73; Ferrer-Esis (1991) 55 A Crim R 231 at 235; State of Western Australia (2007) 33 WAR 483 at 507, 539; [2007] WASCA 42. 39. Note Wheeler JA’s dissent on this point; she preferred the approach taken in Clare [1994] 2 Qd R 619. 40. See 6.19; Dunn (1986) 32 A Crim R 203 at 209. 41. See 6.19, 8.73, 8.88. See also Myles [1997] 1 Qd R 199; (1995) 83 A Crim R 519 at 529; Clare [1994] 2 Qd R 619 at 623, 646; Nguyen [1995] 2 Qd R 285 at 287; Tabe (2005) 225 CLR 418; 221 ALR 503. 42. See 6.19; Dunn (1986) 32 A Crim R 203 at 209. 43. Cunliffe [2004] QCA 293. 44. Till v Johns [2004] QCA 451. 45. Kosteska v Phillips; Kosteska v Commissioner of Police [2011] QCA 266. 46. In Queensland, the conduct of the accused must be unlawful, which is defined to mean without authorisation, justification or excuse: see Drugs Misuse Act 1986 (Qld) s 4. 47. See also Christie (1978) 41 CCC (2d) 282 at 287; Boyce (1976) 15 SASR 40 at 46; He Kaw Teh (1985) 157 CLR 523 at 539; 60 ALR 449; Brown (1986) 43 SASR 33. 48. See Atholwood (2000) 110 A Crim R 417; Krakouer (1998) 194 CLR 202 at 210; 155 ALR 586; Marker (2002) 135 A Crim R 55; Abbott (2005) 152 A Crim R 186; 16.37. 49. See also Cumming (1995) 86 A Crim R 156; Papaluca (2001) 123 A Crim R 322. 50. See also Cumming (1995) 86 A Crim R 156 at 163. 51. In Paul v Collins Jnr [2003] WASCA 238, Johnson J doubted the authority of Williams in that the mental element in that case would not be established. 52. Misuse of Drugs Act 1981 (WA) s 5 and, for ‘owner’, s 5(2) of that Act. 53. See Sargent [1994] 1 Qd R 655 at 657; Symes v Lawler [1995] 1 Qd R 226; Nguyen [1995] 2 Qd R 285 at 286, 288, 292. 54. See Smythe [1997] 2 Qd R 223; Jenvey v Cook (1997) 94 A Crim R 392 at 395; Chinmaya

[2009] QCA 227; 6.19. 55. See also Symes v Lawler [1995] 1 Qd R 226. 56. See Thow v Campbell [1997] 2 Qd R 324 at 326. 57. See Sargent [1994] 1 Qd R 655. 58. See also Symes v Lawler [1995] 1 Qd R 226 at 228; Lawler v Prideaux [1995] 1 Qd R 186; (1993) 70 A Crim R 145 at 146. 59. See Quaile [1988] 2 Qd R 103 at 114, 117. 60. For similar legislation in Queensland, see the Criminal Proceeds Confiscation Act 2002. 61. The declaration may be made in a Magistrates Court: see Perejmibida v Skelcher (2002) 127 A Crim R 549. 62. Misuse of Drugs Act 1981 (WA) s 32A(1)(a); Palfrey v Macphail (2004) 149 A Crim R 542. 63. For ‘intellectually handicapped person’, ‘educational institution’ and ‘correctional institution’, see Drugs Misuse Act 1986 (Qld) s 4. 64. For ‘intent’, see 8.33–8.35. 65. See Krakouer (1998) 194 CLR 202; 155 ALR 586. 66. Manisco (1995) 14 WAR 303 per Steytler J at 316. See also Urbano (1983) 9 A Crim R 170; Pelham (1995) 82 A Crim R 455. In Maroney (2003) 216 CLR 31; 202 ALR 405, the accused was convicted of supplying a dangerous drug to himself under the party provisions: see 9.14. 67. See 9.5.

Index References are to paragraphs

A Abandoned property …. 15.23 Abuse of process challenging judge’s ruling …. 7.24 challenging verdict of acquittal …. 7.22, 7.23 Magistrates Court …. 7.25 Accessories see Parties to offences Accidental events …. 8.63 by accident, meaning …. 8.65, 8.66 event, meaning …. 8.64 intervening events …. 8.67–8.73 Accidents onus of proof …. 6.6 Actus reus …. 8.1, 8.47 Aiding or abetting see Parties to offences Alternative verdicts see also Verdicts attempt offences …. 11.29 awareness of jury …. 7.18 dangerous driving …. 13.133 dangerous operation of vehicle …. 13.132 homicide

Queensland …. 12.6 Western Australia …. 12.5 murder and manslaughter …. 7.7, 7.11, 7.12 parties to offences …. 9.30 Queensland …. 7.6 beyond reasonable doubt …. 7.8 murder and manslaughter …. 7.7 Western Australia …. 7.9 Appeals convictions …. 3.28 dismissal …. 3.34 fresh evidence …. 3.32, 3.33 miscarriage of justice …. 3.31 new trial, ordering …. 3.36 substituted verdict …. 3.35 unreasonable verdict …. 3.29, 3.30 High Court …. 3.8, 3.41 powers on appeal …. 3.45 special leave, must give …. 3.42, 3.43 special leave, not granted …. 3.44 Magistrates Courts …. 3.7 aggrieved persons …. 3.12, 3.13 Attorney-General, by …. 3.18, 3.19 courts’ powers …. 3.14–3.16 evidence and materials …. 3.17 federal jurisdiction …. 3.8 Queensland …. 3.9, 3.10, 3.15 Western Australia …. 3.11, 3.16

overview …. 3.1 Queensland …. 3.2 Court of Appeal …. 3.3 District Court …. 3.4 Magistrates Courts …. 3.9, 3.10, 3.15 sentencing by person convicted …. 3.37 by prosecution …. 3.38–3.40 Supreme Court from acquittal on indictment …. 3.22 Attorney-General’s reference …. 3.23, 3.24 convictions …. 3.28–3.36 notice of applications and time limits …. 3.26, 3.27 point of law reserved by trial judge …. 3.25 as of right or by leave …. 3.20 sentences …. 3.37–3.40 Western Australia …. 3.21 Western Australia Court of Appeal …. 3.5 Magistrates Courts …. 3.11, 3.16 presided by most senior judge …. 3.6 Supreme Court …. 3.21 Appropriation see Fraud Arraignment …. 5.75 Arrest …. 5.11 arrestee advised of reason …. 5.21 arrestee brought before court without delay …. 5.22 citizen power …. 5.15

controls on police conduct …. 5.25 degree of force …. 5.20 detention for investigation …. 5.24 innocence of arrestee …. 5.28 police powers …. 5.13 Queensland …. 5.17, 5.18 Western Australia …. 5.19 resisting arrest …. 5.28 unlawful …. 5.28 unlawful detention and investigative efficiency …. 5.26, 5.27 unreasonable delay may amount to unlawful detention …. 5.23 warrants …. 5.12 without warrant …. 5.14 Arrest warrants misdemeanours …. 4.6 Arson attempted …. 15.138–15.140 buildings or structures …. 15.137 Queensland …. 15.119, 15.121 setting fire to, definition …. 15.131, 15.132 Western Australia …. 15.120, 15.122 wilfully, definition …. 15.128–15.130 Assault applies force, definition …. 13.12 attempt or threat to apply force …. 13.20–13.22 bodily act or gesture …. 13.24–13.27 consent given by victim …. 13.28

lack of …. 13.18, 13.19 definition …. 13.11, 13.13 excuse burden of proof …. 13.70 conduct excused from criminal responsibility …. 13.62 lawful conduct …. 13.63 permitted levels of force …. 13.64–13.69 immediacy of threat …. 13.23 intention …. 13.15–13.17 mistake of fact …. 13.29 occasioning bodily harm …. 13.30 penalties common …. 13.5 Queensland …. 13.6 Western Australia …. 13.7, 13.8 provocation …. 12.66, 13.71 conduct not constituting …. 13.78 definition …. 13.72 excuse …. 13.73 loss of self-control …. 13.74 proportionate force …. 13.80 provocative conduct …. 13.75–13.77 temporal connection of act and response …. 13.79 serious …. 13.31 police officers …. 13.32 stalking see Stalking summary proceedings Queensland …. 13.9

Western Australia …. 13.10 unlawful …. 13.14 Attempt offences conduct not otherwise criminal …. 11.15 definition Queensland …. 11.16, 11.17 Western Australia …. 11.18 elements alternative verdict …. 11.29 equivocality test …. 11.23 execution of intention …. 11.20 factual impossibility …. 11.26–11.28 immaterial how attempt stopped …. 11.24 intention to commit …. 11.19 last act test …. 11.21 overt act …. 11.25 summary determination …. 11.30 uninterrupted series of acts …. 11.22 other substantive offences …. 11.14 overview …. 11.8 punishment …. 11.10 reductions …. 11.11 specific offences …. 11.12, 11.13 statutory provisions …. 11.9 Attorney-General appeals …. 3.18, 3.19 reference of point of law …. 3.23, 3.24 sentences, by prosecution …. 3.38, 3.40

time limits …. 3.24 Australia Acts imperial legislation, and …. 1.26 Automatism …. 8.57 insane …. 8.58 non-insane …. 8.58, 8.62, 8.110 physical or psychological drama …. 8.60 post-traumatic …. 8.59 Autrefois acquit …. 7.1 Autrefois convict …. 7.1

B Bail cash bail …. 5.31, 5.65 conditions cash bail …. 5.65 deposits of money and other security or surety …. 5.66 entering into an undertaking …. 5.64 granting, legislative criteria …. 5.60 Queensland …. 5.61 Western Australia …. 5.62 jurisdiction to grant bail …. 5.58, 5.59 overview …. 5.57 presumption of innocence …. 5.58 serious offences …. 5.63 watch-house bail …. 5.29, 5.30 Battered spouse syndrome …. 13.94 Battery see Assault Bestiality …. 14.52

Western Australia …. 14.85 Beyond reasonable doubt alternative verdicts …. 7.8 onus of proof …. 6.26 Blackmail see Extortion Bodily harm assault occasioning …. 13.30 Breach of duty causation, homicide …. 12.35–12.39 Bringing to trial …. 5.1 committal proceedings …. 5.2 coroner’s investigation, following …. 5.3 ex-officio indictment …. 5.4–5.6 private prosecution, presentation of information by …. 5.7, 5.8 Burden of proof see Onus of proof Burglary intention …. 15.84 overview …. 15.72 Queensland breaking and entering, definition …. 15.75 breaking, definition …. 15.76, 15.77 dwelling, definition …. 15.74 entering, definition …. 15.75 penalties …. 15.73 proof of lack of owner’s consent …. 15.82 unlawful entry …. 15.78 Western Australia circumstances of aggravation, definition …. 15.80

entry, definition …. 15.81 penalties …. 15.79 place, definition …. 15.80 proof of lack of owner’s consent …. 15.82

C Carnal knowledge see Sexual offences Cash bail …. 5.31, 5.65 Child sex offences accused married to child …. 14.57 defences …. 14.74 fresh or preliminary complaint and corroboration …. 14.54 indecent dealing …. 14.62 Queensland …. 14.63, 14.64 Western Australia …. 14.65 knowledge of relationship …. 14.78 knowledge of victim’s age …. 14.56 maintaining relationship …. 14.70 Queensland …. 14.71 Western Australia …. 14.72 minimum age …. 14.55 mistake of fact …. 14.58 penalties …. 14.59 procedure …. 14.53 proof …. 14.73 statutory provisions …. 14.60, 14.61 Children accomplices …. 8.144 aged 10 to 14 years …. 8.139, 8.140

capacity to know conduct is wrong …. 8.141 rebuttal of presumption …. 8.142, 8.143 court proceedings …. 10.3 death of child concealment of birth …. 12.17 newborn child …. 12.13–12.15 unborn child …. 12.16 doli incapax …. 8.138 in need of care …. 10.4 no court proceedings …. 10.3 overview …. 10.1, 10.2 protection …. 10.4 punishment …. 10.13 sex offences see Child sex offences Children’s Court lesser offences …. 10.9 Queensland …. 10.2, 10.5 jurisdiction and procedure …. 10.6–10.10 serious offences conduct of proceedings …. 10.8 distinguished from other indictable offences …. 10.7 summary proceedings …. 10.9 pleading charge …. 10.10 Western Australia …. 10.2, 10.5 jurisdiction and procedure …. 10.11, 10.12 Circumstantial evidence onus of proof …. 6.27 Civil law

criminal law, contrasted with …. 1.28 Claim of right see Honest claim of right Classification of offences commonwealth legislation indictable offences, summary trial …. 4.17 Commonwealth legislation …. 4.2, 4.16 determining mode of trial …. 4.18 costs …. 4.20 State laws applicable to Commonwealth prosecutions …. 4.22 where matter dismissed …. 4.21 indictable and summary trials …. 4.10 Queensland …. 4.11, 4.13 Western Australia …. 4.12, 4.13 legal aid …. 4.26 Queensland …. 4.27 Western Australia …. 4.28 mode of trial, and …. 4.9 person charged with both indictable and non-indictable offence Queensland …. 4.14 Western Australia …. 4.15 presence of person charged exceptions and courts’ discretion …. 4.24 exercise of jurisdiction in defendant’s absence …. 4.25 indictable offences …. 4.23 Queensland …. 4.3 crimes and misdemeanours …. 4.6 indictable and summary trials …. 4.11 indictable offences …. 4.5

legal aid …. 4.27 person charged with both indictable and non-indictable offence …. 4.14 regulatory offences …. 4.4 simple offences …. 4.5 summary conviction for indictable offence becomes conviction for simple offence Queensland …. 4.15 Western Australia …. 4.15 time limits for prosecution …. 4.19 trial upon indictment …. 4.1 Western Australia …. 4.3 indictable and summary trials …. 4.12, 4.13 indictable offences …. 4.7 legal aid …. 4.28 person charged with both indictable and non-indictable offence …. 4.15 simple offences …. 4.7 summary offences …. 4.8 Codes …. 1.21–1.24 Commencement of proceedings private individuals, by …. 5.9 private prosecutions …. 5.9 Queensland …. 5.32, 5.33 summons …. 5.32, 5.33 time limits …. 4.19 Western Australia …. 5.34 Committal proceedings Children’s Court …. 10.8

determining if defendant should stand trial …. 2.13 Queensland …. 2.11, 2.12 Western Australia …. 2.14 Common assault see Assault Common law accessorial liability …. 9.42 criminal law …. 1.2 criminal responsibility …. 8.2 duress or compulsion …. 8.157, 8.160 evidential onus of proof …. 6.16 onus of proof …. 6.18 guilt of accused …. 6.3, 6.4 parties to offences …. 9.2 provocation …. 12.64 stealing …. 15.8 Common purpose application …. 9.15 offence involving assault …. 9.16, 9.17 withdrawal …. 9.33–9.35 Commonwealth legislation classification of offences …. 4.2, 4.16 costs, application of State laws …. 4.22 determining mode of trial …. 4.18 indictable offences, summary trial …. 4.17 codification of law …. 1.19 difference to State codes …. 1.20 Commonwealth places …. 1.8 conspiracy, impact on …. 11.41

constitutional powers …. 1.6 concurrent powers …. 1.9 defence powers …. 1.10 exclusive powers …. 1.7 external affairs powers …. 1.10 criminal responsibility …. 1.19, 8.12 examples of Acts …. 1.10 Competent authorities definition …. 8.152 obeying orders …. 8.146 manifestly unlawful …. 8.153 no criminal responsibility when following …. 8.151 Compounding …. 9.42 Compulsion see Duress or compulsion Conduct of proceedings addresses by counsel …. 5.91 arraignment …. 5.75 Children’s Court …. 10.8 defence election to call evidence …. 5.88 indictable offences committal proceedings …. 5.46 defendant must be present …. 5.45 matters of private complaint …. 5.51 prosecution authority to determine if indictment presented …. 5.52–5.56 registry committals …. 5.50 summary proceedings …. 5.44 written statements in lieu of oral testimony …. 5.47–5.49 indictment procedure …. 5.71

Court’s discretion to direct separate trials …. 5.74 joinder of charges …. 5.72 joint trial of offenders …. 5.73 juries …. 5.80 challenging a potential juror …. 5.83 composition …. 5.81 directions …. 5.92, 5.93 empanelling …. 5.82 judgment …. 5.94 unaware of alternative offence …. 7.18 verdicts …. 5.84–5.86, 5.94 matters of law …. 5.89 nolle prosequi …. 5.90 non-indictable offences …. 5.35 both parties appearing …. 5.37 defence election to call evidence …. 5.41, 5.42 dismissal or conviction …. 5.43 guilty plea …. 5.38 not guilty plea …. 5.39 submission of no case to answer …. 5.40 when one party not present in court …. 5.36 pleading to indictment …. 5.76 changing plea …. 5.77 guilty plea, conviction and sentence …. 5.78 not guilty plea …. 5.79 prosecution case …. 5.87 Queensland address by counsel …. 5.91

arraignment …. 5.75 joint trial of offenders …. 5.73 juries …. 5.80–5.84 pleading …. 5.78, 5.79 prosecution case …. 5.87 time limits for indictment …. 5.67 discharge as result of time limits …. 5.70 Queensland …. 5.68 Western Australia …. 5.69 voir dire …. 5.89 Western Australia …. 5.69 address by counsel …. 5.91 arraignment …. 5.75 joint trial of offenders …. 5.73 juries …. 5.80–5.84 prosecution case …. 5.87 Consent assault given by victim …. 13.28 lack of …. 13.18, 13.19 burglary …. 15.82 definition …. 14.12, 14.13 indecent assault …. 14.49, 14.50 rape see Rape sexual penetration see Sexual penetration stealing …. 15.22 unlawful use of motor vehicle …. 15.39 Conspiracy

committing offence and substantive offence …. 11.39 Commonwealth Criminal Code, impact of …. 11.41 conduct not otherwise criminal …. 11.35, 11.36 definition …. 11.37 doing the factually impossible …. 11.40 one conspirator acquitted …. 11.38 overview …. 11.31 particular conspiracies …. 11.34 Queensland …. 11.33 Western Australia …. 11.32 Constitution Commonwealth powers concurrent powers …. 1.9 criminal matters …. 1.1 defence powers …. 1.10 exclusive powers …. 1.7 external affairs powers …. 1.10 incidental matters …. 1.6 jurisdiction …. 1.25 Conversion see Stealing Coroner’s inquests …. 5.3 Corporations criminal responsibility …. 10.18 determining liability …. 10.19, 10.20 identifying individuals …. 10.21, 10.22 punishment …. 10.23 Corroboration see Sexual offences Costs

classification of offences …. 4.20 State laws applicable to Commonwealth prosecutions …. 4.22 where matter dismissed …. 4.21 Counselling or procuring attempting to procure …. 11.6 gross indecency …. 14.49 overview …. 9.14, 9.24 preliminary offences …. 11.5 sexual purposes Queensland …. 14.80, 14.81 Western Australia …. 14.82–14.84 Crimes and misdemeanours Queensland …. 4.6 Criminal codes …. 1.1 Commonwealth codification …. 1.19, 1.20 Criminal law civil law, contrasted with …. 1.28 codification Commonwealth …. 1.19, 1.20 Papua New Guinea …. 1.17 Queensland …. 1.15 Western Australia …. 1.16 common law …. 1.2 statutory law imperial legislation …. 1.4, 1.5, 1.26, 1.27 statutory law …. 1.2, 1.3 Commonwealth …. 1.6–1.10

interpretation of codes …. 1.21–1.24 state legislation …. 1.11–1.13, 1.15, 1.16, 1.18 two main systems …. 1.1 Criminal negligence causation …. 8.46 civil and criminal, distinguished …. 8.42, 8.43 criminal responsibility, relationship with …. 8.38 dangerous acts or things …. 8.44, 8.45 involuntary manslaughter failure to provide necessaries …. 12.57 medical or surgical treatment …. 12.58 person dealing with dangerous things …. 12.59 statutory duties …. 8.39 reasonableness …. 8.40, 8.41 Criminal responsibility …. 8.1 accidental events …. 8.63 by accident, meaning …. 8.65, 8.66 event, meaning …. 8.64 intervening events …. 8.67–8.73 act independent of will …. 8.32 common law …. 8.2 conduct excused …. 13.62 corporations …. 10.18 determining liability …. 10.19, 10.20 identifying individuals …. 10.21, 10.22 defences see Insanity excuses …. 6.20 acts independent of will …. 8.47–8.62

external pressure …. 8.145–8.167 Queensland …. 8.145–8.161 Western Australia …. 8.162–8.167 external pressures duress or compulsion …. 8.155–8.161 execution of law …. 8.149, 8.150 limitations …. 8.148 obedience to order of competent authority …. 8.151–8.153 onus of proof …. 8.147 resisting actual and unlawful violence …. 8.154 extraordinary emergencies …. 8.91–8.93 in conjunction with other excuses …. 8.98 onus of proof …. 8.94 ordinary person test …. 8.96, 8.97 scope of excuse …. 8.95 honest claim of right …. 8.22 acting in exercise …. 8.26 dishonest assertion of claim …. 8.31 need for claim …. 8.27, 8.28 no intention to defraud …. 8.30 property offences, limited to …. 8.23–8.25 property offences, not related to …. 8.29 ignorance of law …. 8.13 immature age …. 8.138 capacity to know conduct is wrong …. 8.141 child at least 10 years but under 14 years …. 8.139, 8.140 rebuttal by prosecution …. 8.142, 8.143 under-age accomplice …. 8.144

independence of will …. 8.47 act, meaning …. 8.48–8.52 acts, examples …. 8.55, 8.56 automatism …. 8.57–8.60 mistake of fact …. 8.53, 8.54 onus of proof …. 8.61, 8.62 insanity see Insanity intention …. 8.33 interpretation …. 8.35 statutory provisions …. 8.34 intoxication complete or partial …. 8.136, 8.137 excuses, relationship with …. 8.128 two distinct rules …. 8.127 unintentional …. 8.129–8.135 mental element …. 8.3 expressly referred or incorporated …. 8.4 mens rea, common law …. 8.2 rebuttal …. 8.9 statutory provisions …. 8.10–8.12 mistake of fact …. 8.14 belief in state of things …. 8.85 categories …. 8.74–8.76 exclusions and modifications …. 8.88–8.90 mistake of law, distinction …. 8.77 not necessarily a complete excuse …. 8.86, 8.87 onus of proof …. 6.20 positive belief …. 8.78

reasonableness …. 8.79–8.84 recklessness …. 8.36 spousal liability assisting to escape punishment …. 10.16 compulsion from husband …. 10.17 conspiracy …. 10.15 rape …. 10.14 statutory provisions …. 8.4, 8.8 mental element …. 8.10–8.12 Queensland …. 8.5, 8.6 Western Australia …. 8.7 unpublished statutory instruments Queensland …. 8.20 Western Australia …. 8.21

D Damage to property see Property damage Dangerous acts or things …. 8.44, 8.45, 12.35 criminal negligence …. 12.59 Dangerous driving alternative verdict …. 13.133, 13.134 cases involving death …. 13.135 circumstances of offence …. 13.121–13.123 involuntariness …. 13.131 penalties and procedure Western Australia …. 13.115–13.117 vehicle definition …. 13.119 Dangerous operation of vehicle

alternative verdict …. 13.132 cases involving death …. 13.135 causation …. 13.127–13.129 determining …. 13.125, 13.126 excuse or justification …. 13.130 involuntariness …. 13.131 overview …. 13.112 penalties and procedure Queensland …. 13.113, 13.114 scope of public place …. 13.124 vehicle definition …. 13.118 driving …. 13.120 Death concealment of birth …. 12.17 consent to …. 12.7 dangerous operation of vehicle causation …. 13.127–13.129 medical treatment …. 12.9 availability immaterial …. 12.29 cause of …. 12.30 criminal responsibility, relief from …. 12.10 failure of person performing …. 12.58 terminal illness …. 12.28 newborn child …. 12.13–12.15 unborn child …. 12.16 Defence of property dwelling …. 13.111

onus of proof …. 13.70 protection …. 13.109 reasonable force …. 13.110 Defences onus of proof …. 6.19 Defensive force …. 13.107 self-defence see Self-defence defence of another …. 13.105 excessive force …. 13.103 mentally impaired persons …. 13.108 mistaken belief in force required …. 13.104 property dwelling …. 13.111 protection …. 13.109 reasonable force …. 13.110 Definitions abnormality of mind …. 12.93 applies force …. 13.12 assault …. 13.11, 13.13 attempt offences Queensland …. 11.16, 11.17 Western Australia …. 11.18 bodily harm …. 13.30 breaking …. 15.76, 15.77 breaking and entering …. 15.75 carnal knowledge …. 14.5 circumstances of aggravation …. 15.80 competent authorities …. 8.152

consent …. 14.12, 14.13 conspiracy …. 11.37 conversion …. 15.9 cultivate …. 16.39 damage …. 15.134 death of person …. 12.8 destroy …. 15.133 diminished responsibility …. 8.118 document …. 15.107 dwelling …. 15.74 entering …. 15.75 entry …. 15.81 fit for trial …. 8.118 grievous bodily harm …. 13.51–13.53 homicide …. 12.1 incitement …. 11.43 indecent …. 14.44–14.47 indictment …. 5.71 insanity …. 8.105, 8.106 intellectually impaired …. 14.67 intimidate …. 13.43 killing of person …. 12.7 mental illness …. 8.111 mental impairment …. 8.111 motor vehicle …. 13.118, 13.119 night …. 15.75 obtains …. 15.95 order …. 3.9

owner …. 15.16 penetration …. 14.9 person …. 12.12 place …. 15.80 possession …. 15.40 premises …. 15.75 produce …. 16.38, 16.40 prohibited drug …. 16.7 prohibited plant …. 16.7 property …. 15.13 provocation …. 13.72 public …. 13.121 robbery …. 15.63 serious disease …. 13.55, 13.56 serious offence …. 10.7 setting fire to …. 15.131, 15.132 sexually penetrate …. 14.10 state of mental disease …. 8.108 substantially …. 12.95 supply …. 16.34, 16.36 taking and using …. 15.45 things capable of being stolen …. 15.11 unsound mind …. 8.118 vehicle …. 13.118, 13.119 wilfully …. 15.128–15.130 wounding …. 13.54 Diminished responsibility abnormality of mind

definition …. 12.93 examples …. 12.94 insanity, comparison with …. 12.91 Mental Health Court …. 12.92 onus of proof …. 12.96 Queensland …. 12.90 substantially, definition …. 12.95 Disabled persons see Intellectually impaired Disease of mind see Insanity Dismissal of matters costs …. 4.21 District Courts see also Magistrates Courts; State courts; Supreme Court jurisdiction …. 2.9 nisi prius …. 2.2 overview …. 2.1 Queensland …. 2.6, 2.7 territorial jurisdiction …. 2.25 Western Australia …. 2.6, 2.8 Doli incapax …. 8.138 Domestic violence self-defence …. 13.94 Double jeopardy …. 7.2 abuse of process, preventing challenging judge’s ruling …. 7.24 challenging verdict of acquittal …. 7.22, 7.23 Magistrates Court …. 7.25 autrefois acquit …. 7.1 autrefois convict …. 7.1

double punishment …. 7.27 act, meaning …. 7.30–7.32 escaping lawful custody …. 7.33 inflicting grievous bodily harm …. 7.34 subsequent death of victim …. 7.28, 7.29 Western Australia …. 7.35, 7.36 nemo debet bis vexeri …. 7.1 res judicata proveritate accipitur …. 7.1 statutory provisions …. 7.3, 7.4 alternative offences …. 7.5 dismissal of charge by magistrate …. 7.17 injury to more than one victim …. 7.20 multiple conviction …. 7.10, 7.13–7.16 murder and manslaughter …. 7.11, 7.12 need for alternative offence …. 7.19 offences substantially the same …. 7.21 Queensland …. 7.6–7.8 Western Australia …. 7.9 where jury unaware of alternative offence …. 7.18 unfairness, other examples …. 7.26 Driving offences see Dangerous driving; Dangerous operation of vehicle Drug offences Commonwealth …. 16.1 possession exercise of control, time period …. 16.15 future control, intention to exercise …. 16.22, 16.23 intention …. 16.21 knowledge …. 16.16–16.20

physical element and proof of control …. 16.13, 16.14 pipes or utensils …. 16.25 quantity of substance …. 16.24 Queensland …. 16.12 Western Australia …. 16.12 Queensland …. 16.1 dangerous drugs …. 16.2 manufacturing, producing and cultivating …. 16.38 official possession …. 16.5 possession …. 16.12 procedure …. 16.6 produce, definition …. 16.38, 16.40 simple offences …. 16.4 supply, definition …. 16.34 trafficking …. 16.30–16.32 selling and supplying Queensland …. 16.34 Western Australia …. 16.35–16.37 use of premises …. 16.26–16.29 Western Australia …. 16.1 cultivate, definition …. 16.39 drugs of addiction …. 16.7 manufacturing, producing and cultivating …. 16.39 offences …. 16.8 official capacity …. 16.9 penalties …. 16.11 possession …. 16.12 procedure …. 16.10

prohibited drug, definition …. 16.7 prohibited plant, definition …. 16.7 supply, definition …. 16.36 trafficking …. 16.33 Drunkenness see Intoxication Duress or compulsion common law …. 8.157 criminal responsibility …. 8.155 evidential onus of proof …. 6.14 immediacy of threat …. 8.159 common law …. 8.160 statutory provisions …. 8.161 limitations …. 8.167 position of accused …. 8.158 range of threats …. 8.156 scope of excuse …. 8.167 spousal liability …. 10.17 use of force …. 12.41 Duty provisions see Criminal negligence

E Eggshell skull …. 8.63 Emergencies see Extraordinary emergencies Events see Accidental events Evidence appeals …. 3.17 fresh evidence …. 3.32 circumstantial …. 6.27 defence election …. 5.41, 5.42, 5.88

different inferences from …. 6.11 fresh complaint child victim …. 14.35 corroboration …. 14.38 first reasonable opportunity …. 14.34 need not be accusation …. 14.37 uncorroborated testimony …. 14.39 voluntary …. 14.36 sexual offences fresh complaint …. 14.29–14.33 Evidential onus of proof …. 6.10 different inferences from same evidence …. 6.11 discharging …. 6.14–6.16 insanity …. 8.114, 8.115 persuasive onus rests with accused …. 6.12 Ex-officio indictment courts’ approach …. 5.4–5.6 overview …. 5.68 Excessive self-defence …. 12.97 Excuses see Criminal responsibility; Defensive force; Provocation Execution of law criminal responsibility …. 8.149, 8.150 External pressures duress or compulsion …. 8.155–8.161 execution of law …. 8.149, 8.150 limitations …. 8.148 obedience to order of competent authority …. 8.151–8.153 onus of proof …. 8.147

resisting actual and unlawful violence …. 8.154 Extortion analogous offences …. 15.106 demand and threat …. 15.109 absence of reasonable cause …. 15.115, 15.116 lawful of threat …. 15.112 nature and advantage …. 15.110 objective test …. 15.113, 15.114 threat of detriment …. 15.111 Queensland …. 15.107 Western Australia …. 15.108 Extra-territorial powers see Offshore areas Extradition procedures …. 2.27 Extraordinary emergencies …. 8.91–8.93 in conjunction with other excuses …. 8.98 onus of proof …. 8.94 ordinary person test …. 8.96, 8.97 scope of excuse …. 8.95

F Fit for trial definition …. 8.118 Mental Health Court …. 8.119 pleading …. 8.121, 8.122 at time of proceedings …. 8.120 Fraud conduct constituting false representation …. 15.97 forms of …. 15.96

obtains, definition …. 15.95 substantial inducing cause …. 15.98 list of offences …. 15.85 mental element dishonesty test …. 15.100 intent to defraud …. 15.102, 15.103 Queensland …. 15.99, 15.104 Western Australia …. 15.101, 15.104 penalties …. 15.86 procedure Queensland …. 15.87 Western Australia …. 15.88 proscribed conduct Queensland …. 15.89 Western Australia …. 15.90, 15.91 stealing, and …. 15.92–15.94 valueless cheques …. 15.105 Fresh complaint see Sexual offences

G Grievous bodily harm overview …. 13.47 causation …. 13.60 definition …. 13.51–13.53 intent …. 13.57–13.59 procedure …. 13.50 punishment …. 13.48, 13.49 Gross indecency …. 14.49

H High Court appeals …. 3.8, 3.41 powers on appeal …. 3.45 special leave, must give …. 3.42, 3.43 special leave, not granted …. 3.44 criminal jurisdiction …. 1.25 Homicide alternative verdicts Queensland …. 12.6 Western Australia …. 12.5 causation …. 12.18 accused’s conduct and death of victim …. 12.19 breach of duty …. 12.35–12.39 medical treatment …. 12.29–12.33 newborn child …. 12.26 tests …. 12.20–12.25 threat, intimidation or deceit …. 12.27 time limit …. 12.34 victim with disorder or disease …. 12.28 death of person body not found …. 12.11 definition …. 12.8 medical treatment, and …. 12.9, 12.10 definition …. 12.1 excessive self-defence …. 12.97 killing of person concealing birth …. 12.17

definition …. 12.7, 12.12 newborn child …. 12.13–12.15 unborn child …. 12.16 manslaughter see Manslaughter murder see Murder overview …. 12.2, 12.3 unlawful assault causing death see Unlawful assault causing death unlawful killing …. 12.4, 12.40 lawful for force to be used …. 12.41 substantive offence …. 12.42 unlawful striking Queensland …. 12.99 Honest claim of right …. 8.22 acting in exercise …. 8.26 dishonest assertion of claim …. 8.31 need for claim …. 8.27, 8.28 no intention to defraud …. 8.30 property offences, limited to …. 8.23–8.25 property offences, not related to …. 8.29 Housebreaking …. 15.73, 15.84 Husband see Spousal liability

I Ignorance of law claim of right …. 8.22, 8.28 criminal responsibility …. 8.13 Western Australia …. 8.21 Immature age …. 8.138 capacity to know conduct is wrong …. 8.141

child at least 10 years but under 14 years …. 8.139, 8.140 rebuttal by prosecution …. 8.142, 8.143 under-age accomplice …. 8.144 Imperial legislation Australia Acts …. 1.26, 1.27 historical background …. 1.4 example statutes …. 1.5 offshore areas …. 1.27 Incest …. 14.52 de facto child …. 14.76, 14.77 Queensland …. 14.75 Western Australia …. 14.76, 14.77 Incitement definition …. 11.43 Western Australia …. 11.42 Indecent assault consent, absence of …. 14.49, 14.50 indecent, definition …. 14.44–14.47 overview …. 14.40 penalties Queensland …. 14.41 Western Australia …. 14.42 proceedings …. 14.43 Indecent dealing or treatment see Child sex offences Independence of will …. 8.47 act, meaning …. 8.48–8.52 acts, examples …. 8.55, 8.56 automatism …. 8.57

insane and non-insane …. 8.58 physical or psychological drama …. 8.60 post-traumatic …. 8.59 mistake of fact …. 8.53, 8.54 onus of proof …. 8.61, 8.62 Indictable and summary trials classification of offences Queensland …. 4.13 Indictable offences Children’s Court …. 10.7, 10.8 lesser offences …. 10.9 summary proceedings …. 10.9, 10.10 committal proceedings determining if defendant should stand trial …. 2.13 Queensland …. 2.11 Western Australia …. 2.14 presence of person charged …. 4.23 Queensland …. 4.5 summary proceedings Children’s Court …. 10.9, 10.10 summary trials …. 4.10 Queensland …. 4.11, 4.13 Western Australia …. 4.12, 4.13 Western Australia …. 4.7 Indictments ex-officio courts’ approach …. 5.4–5.6 overview …. 5.68

joinder of charges …. 5.72 time limits …. 5.67, 5.70 Queensland …. 5.68 Western Australia …. 5.69 Initiating proceedings see Commencement of proceedings Insanity see also Mental health legislation definition …. 8.105, 8.106 delusions …. 8.116 diminished responsibility, comparison with …. 12.91 evidential onus …. 8.114, 8.115 M’Naghten rules …. 8.99 mental capacity …. 8.112, 8.113 mental disease or infirmity …. 8.107 mental illness …. 8.111 mental impairment …. 8.111 onus of proof …. 6.5, 8.102 defence …. 8.104 prosecution …. 8.103 presumption of sanity …. 8.100 raising defence …. 8.101 state of mental disease …. 8.108–8.110 Intellectually impaired sexual offences …. 14.66 Queensland …. 14.67, 14.68 Western Australia …. 14.70 Intention assault …. 13.15–13.17 burglary …. 15.84

criminal responsibility …. 8.33 interpretation …. 8.35 statutory provisions …. 8.34 drug offences …. 16.21 housebreaking …. 15.84 intoxication …. 8.129–8.135 murder not required …. 12.46 required …. 12.43, 12.44 recklessness, distinguished from …. 8.36 stealing …. 15.17 changed condition …. 15.20 money, case of …. 15.21 owner’s consent, mistaken belief …. 15.22 permanent deprivation …. 15.18 temporary deprivation …. 15.19 Interpretation of codes …. 1.21–1.24 Intoxication complete or partial …. 8.136, 8.137 excuses, relationship with …. 8.128 two distinct rules …. 8.127 unintentional …. 8.129–8.135 Involuntary manslaughter see Manslaughter

J Joinder of charges …. 5.72, 5.74 Joint trials …. 5.73 Juries …. 5.80 challenging a potential juror …. 5.83

composition …. 5.81 directions …. 5.92, 5.93 empanelling …. 5.82 judgment …. 5.94 unaware of alternative offence …. 7.18 verdicts …. 5.84–5.86, 5.94 Jurisdiction Children’s Court Queensland …. 10.6 Western Australia …. 10.11 Constitution …. 1.25 District Court …. 2.9 federal Magistrates Courts …. 2.16 Magistrates Courts territorial …. 2.26 special plea …. 7.37 State courts …. 2.17 offshore offences …. 2.23, 2.24, 2.26 State borders, element of offence occurring outside …. 2.19–2.22 State borders, relevance of …. 2.18 Supreme Court …. 2.5 territorial limits elements outside borders …. 2.19–2.22 Jury warnings sexual offences …. 14.31, 14.32 uncorroborated evidence …. 14.38, 14.39

K

Killing a person see Homicide King hit see Unlawful assault causing death

L Legal aid classification of offences …. 4.26 Queensland …. 4.27 Western Australia …. 4.28 Lost property …. 15.23, 15.96

M Magistrates Courts see also District Court; State courts; Supreme Court appeals …. 3.7 aggrieved persons …. 3.12, 3.13 Attorney-General, by …. 3.18, 3.19 courts’ powers …. 3.14–3.16 evidence and materials …. 3.17 federal jurisdiction …. 3.8 Queensland …. 3.9, 3.10, 3.15 Western Australia …. 3.11, 3.16 commencement of proceedings bringing defendant/accused before magistrate …. 5.10 Queensland …. 5.9 Western Australia …. 5.9 committal proceedings Queensland …. 2.11–2.13 Western Australia …. 2.14 determination of offences …. 2.15

double jeopardy …. 7.25 jurisdiction federal …. 2.16 territorial …. 2.26 overview …. 2.2, 2.10 Manslaughter involuntary …. 12.56 accident and inherent weakness …. 12.60–12.62 failure of person dealing with dangerous things …. 12.59 failure of person undertaking medical or surgical treatment …. 12.58 failure to provide necessaries …. 12.57 overview …. 12.55 provocation see Provocation voluntary …. 12.63 Marital relationship see Spousal liability Matters of excuse onus of proof …. 6.20, 6.21 Medical or surgical treatment criminal negligence …. 12.58 Medical treatment death …. 12.9 cause of …. 12.30 criminal responsibility, relief from …. 12.10 failure of person performing …. 12.58 terminal illness …. 12.28 Mens rea …. 8.2 Mental disease see Insanity Mental element

act for purpose of aiding …. 9.13 criminal responsibility …. 8.3 expressly referred or incorporated …. 8.4 mens rea, common law …. 8.2 rebuttal …. 8.9 statutory provisions …. 8.10–8.12 Mental Health Court diminished responsibility …. 12.92 fitness for trial, determining …. 8.119 Queensland …. 8.117 Mental health legislation see also Insanity Mental Health Court …. 8.117 special verdict …. 8.126 unsound mind …. 8.118 determination …. 8.119 fit to plead …. 8.122 Queensland …. 8.121 at time of trial …. 8.120 Western Australia …. 8.123–8.125 Mentally impaired persons preventing violence by …. 13.108 Misdemeanours arrest warrants …. 4.6 crimes, distinction …. 4.5 Queensland …. 4.6 Western Australia …. 4.7 Misprision of felony …. 9.42 Mistake of fact

assault …. 13.29 belief in state of things …. 8.85 categories …. 8.74–8.76 child sex offences …. 14.58 criminal responsibility distinction …. 8.77 mistake of law, distinguished …. 8.15–8.19 exclusions and modifications …. 8.88–8.90 mistake of law, distinction …. 8.77 not necessarily a complete excuse …. 8.86, 8.87 positive belief …. 8.78 reasonableness …. 8.79–8.84 Mistake of law criminal responsibility mistake of fact, distinguished …. 8.15–8.19 Mitigating factors see Provocation Motive criminal responsibility, and …. 8.37 Motor vehicles see Dangerous driving; Dangerous operation of vehicle; Unlawful use of motor vehicle Murder availability of both forms …. 12.53, 12.54 bail …. 5.63 dangerous act …. 12.47 endangering life …. 12.48, 12.49 unlawful purpose, separate from …. 12.50, 12.51 unlawful purpose, statutory provisions …. 12.52 parties to offences …. 9.30 murder and manslaughter …. 9.31, 9.32

Queensland …. 9.30 proof of intention not required …. 12.46 required …. 12.43, 12.44 provocation acting in heat of passion …. 12.79, 12.80 cannot be induced by accused …. 12.78 killing that amounts to murder …. 12.70 lawful act excluded …. 12.76, 12.77 loss of self-control …. 12.71 ordinary person …. 12.82–12.86 person other than provocateur is killed …. 12.88 proportionality of response …. 12.87 suddenness …. 12.81 victim provokes someone other than accused …. 12.89 wrongful act or insult …. 12.72–12.75 temporal connection between mind and action …. 12.45

N Necessaries of life criminal negligence …. 12.57 Negligence criminal, distinguished …. 8.42, 8.43 duty of care …. 8.38 medical treatment …. 12.29–12.33 Nemo debet bis vexeri …. 7.1 Nisi prius …. 2.2 Nolle prosequi …. 5.90 Attorney-General’s reference …. 3.23

unfairness to accused …. 7.26 Non-indictable offences see Simple offences

O Offences against persons assault see Assault driving see Dangerous driving; Dangerous operation of vehicle grievous bodily harm …. 13.47 causation …. 13.60 definition …. 13.51–13.53 intent …. 13.57–13.59 procedure …. 13.50 punishment …. 13.48, 13.49 homicide see Homicide overview …. 13.1–13.4, 13.44–13.46 provocation see Provocation serious disease causation …. 13.60 definition …. 13.55, 13.56 sexual offences see Sexual offences stalking see Stalking wounding causation …. 13.60 definition …. 13.54 Offshore areas cooperative legislative scheme …. 2.24 Magistrates Courts …. 2.26 state legislative powers …. 2.23 Onus of proof

accidents …. 6.6 beyond reasonable doubt …. 6.26 children …. 8.140 circumstantial evidence …. 6.27 common law …. 6.18 guilt of accused …. 6.3, 6.4 defence of property …. 13.70 defences …. 6.19, 6.21 diminished responsibility …. 12.96 evidential …. 6.10 different inferences from same evidence …. 6.11 discharging …. 6.14–6.16 persuasive onus rests with accused …. 6.12 external pressures …. 8.147 extraordinary emergencies …. 8.94 independence of will …. 8.61, 8.62 insanity …. 6.5, 8.102 defence …. 8.104 prosecution …. 8.103 jurisdiction with Crown/state …. 6.28 special verdict …. 6.29 matters of excuse …. 6.20, 6.21 overview …. 6.1, 6.2 presumption consequences of actions are intended …. 6.35 fact …. 6.33 law …. 6.32

meaning …. 6.31 relevance to onus of proof and evidential onus …. 6.34 provocation …. 6.6 self-defence …. 6.6, 6.7 sentencing …. 6.30 standard of …. 6.8, 6.9 statutory provisions …. 6.18, 6.22 defences …. 6.19, 6.21 matters of excuse …. 6.20, 6.21 reversal …. 6.23, 6.24 standard of …. 6.25 summary proceedings …. 6.17 withdrawal from common purpose …. 9.34

P Papua New Guinea criminal code …. 1.17 Parties to offence accessorial liability …. 9.18, 9.19, 9.25 counselling and procuring …. 9.24 intention to prosecute unlawful purpose …. 9.20 offence committed in prosecution of unlawful purpose …. 9.21, 9.22 offence committed probable consequence of unlawful purpose …. 9.23 common purpose application …. 9.15 offence involving assault …. 9.16, 9.17 Parties to offences

accessory accessory after fact …. 9.40 aiding …. 9.10–9.13 counselling or procuring …. 9.14 knowingly aiding …. 9.6 not always convicted of same offence as perpetrator …. 9.27 not having precise knowledge …. 9.5 withdrawal from common purpose …. 9.33–9.35 accessory after fact …. 9.36 accessory must have knowledge …. 9.40 establishment of principal offence …. 9.39 Queensland …. 9.37 receiving or assisting …. 9.41 Western Australia …. 9.38 act for the purpose of aiding active presence …. 9.11 aid through omission …. 9.12 mental element …. 9.13 passive presence …. 9.11 alternative verdicts …. 9.30 categories of liability …. 9.2 children …. 8.144 common law …. 9.2 common purpose withdrawal …. 9.33–9.35 compounding …. 9.42 different verdicts …. 9.26 accessory not always convicted of same offence as perpetrator …. 9.27

murder and manslaughter …. 9.31, 9.32 Queensland …. 9.29, 9.30 Western Australia …. 9.28 joint offences …. 9.3 nature of liability …. 9.4 overview …. 9.1 perpetrator commits some other offence …. 9.7, 9.8 not always convicted of same offence as accessory …. 9.27 not found guilty …. 9.5 spousal liability …. 10.16 Persuasive onus see Onus of proof Pleading Children’s Court …. 10.10 court has no jurisdiction to try …. 7.37 indictment …. 5.76 changing plea …. 5.77 guilty plea, conviction and sentence …. 5.78 not guilty plea …. 5.79 Police bail see Watch-house bail Police officers arrest procedures degree of force …. 5.20 without warrant …. 5.14 bail …. 5.29, 5.30 cash bail …. 5.31, 5.65 powers of arrest …. 5.16 Queensland …. 5.17, 5.18

Western Australia …. 5.19 Possession see Drug offences Preliminary offences …. 1.1 attempts see Attempt offences conspiracy see Conspiracy counselling and procuring …. 11.5 exceptional circumstances …. 11.2 incitement see Incitement procuring commission …. 11.6 substantive offence not completed …. 11.4 trying to carry out an attempt …. 11.4 Presumption of innocence bail, granting …. 5.58 Presumptions consequences of actions are intended …. 6.35 fact …. 6.33 law …. 6.32 meaning …. 6.31 relevance to onus of proof and evidential onus …. 6.34 Prima facie case evidential onus …. 6.11, 6.15 Magistrates Courts …. 2.11, 2.13 Private prosecutions commencement of proceedings …. 5.9 presentation of information limitations …. 5.8 Western Australia …. 5.7 Procuring see Counselling or procuring

Property damage accused must act unlawfully …. 15.123, 15.124 arson attempted …. 15.138–15.140 buildings or structures …. 15.137 Queensland …. 15.119, 15.121 setting fire to, definition …. 15.131, 15.132 Western Australia …. 15.120, 15.122 wilfully, definition …. 15.128–15.130 damage definition …. 15.134 must be to property …. 15.135 summary offences …. 15.136 destroy, definition …. 15.133 overview …. 15.117, 15.118 proof of ownership …. 15.127 property of another …. 15.125, 15.126 self-defence …. 15.141 summary offences …. 15.142 Property offences burglary see Burglary extortion see Extortion fraud see Fraud motor vehicles see Unlawful use of motor vehicle overview …. 15.1–15.3 receiving see Receiving recent possession …. 15.32 application …. 15.36 elements …. 15.35

presumption of fact …. 15.34 robbery see Robbery stealing see Stealing provocation ordinary person …. 12.82–12.86 proportionality of response …. 12.87 Provocation assault …. 12.66, 13.71 conduct not constituting …. 13.78 definition …. 13.72 excuse …. 13.73 loss of self-control …. 13.74 proportionate force …. 13.80 provocative conduct …. 13.75–13.77 temporal connection of act and response …. 13.79 common law …. 12.64 definition …. 13.72 elements acting in heat of passion …. 12.79, 12.80 cannot be induced by accused …. 12.78 killing that amounts to murder …. 12.70 lawful act excluded …. 12.76, 12.77 loss of self-control …. 12.71 ordinary person …. 12.82–12.86 person other than provocateur is killed …. 12.88 proportionality of response …. 12.87 suddenness …. 12.81 victim provokes someone other than accused …. 12.89

wrongful act or insult …. 12.72–12.75 onus of proof …. 6.6 Queensland …. 12.65, 12.67–12.69 Punching see Unlawful assault causing death

R Rape see also Sexual penetration carnal knowledge …. 14.5 consent capacity …. 14.14 coercion and threats …. 14.17, 14.18 deceit and fraud …. 14.19–14.22 definition …. 14.12, 14.13 evidential matters …. 14.28 mistaken belief …. 14.26 personation …. 14.23–14.25 physical resistance …. 14.15 submission …. 14.16 withdrawal …. 14.27 fresh complaint …. 14.29–14.33 child victim …. 14.35 corroboration …. 14.38 first reasonable opportunity …. 14.34 need not be accusation …. 14.37 uncorroborated testimony …. 14.39 voluntary …. 14.36 Queensland …. 14.4–14.7 spousal liability …. 10.14 Western Australia …. 14.8–14.12

Receiving see also Stealing elements actual receipt …. 15.53 innocent receipt …. 15.54, 15.55 knowledge of accused …. 15.56–15.59 property obtained through indictable offence …. 15.51, 15.52 overview …. 15.48 penalties Queensland …. 15.49 Western Australia …. 15.50 stealing, and …. 15.60 summary offence …. 15.61 Recent possession …. 15.32 application …. 15.36 elements …. 15.35 presumption of fact …. 15.34 Recklessness intention, distinguished from …. 8.36 Regulatory offences Queensland …. 4.4 stealing, analogous to …. 15.30, 15.31 Res judicata proveritate accipitur …. 7.1 Robbery aggravating circumstances accused in company …. 15.70 armed robbery …. 15.69 assault with intent to rob …. 15.71 definition …. 15.63

element of violence …. 15.65 nature of violence …. 15.66 same time as robbery …. 15.67 overview …. 15.62 stealing see Stealing stealing, and …. 15.64, 15.68

S Self-defence onus of proof …. 6.6, 6.7 Queensland …. 13.82–13.88 deadly or disabling force …. 13.91 domestic violence …. 13.94 need for retreat …. 13.96 prior acts of victim …. 13.93 provoked assault …. 13.97–13.99 reasonable force …. 13.90 subjective analysis …. 13.95 unprovoked assault …. 13.89, 13.92 use of force …. 13.81 Western Australia …. 13.100–13.102 Sentencing appeals by person convicted …. 3.37 by prosecution …. 3.38–3.40 onus of proof …. 6.30 Serious disease causation …. 13.60 definition …. 13.55, 13.56

intent …. 13.57 punishment …. 13.48 Sexual offences see also Rape bestiality …. 14.52 Western Australia …. 14.85 breaches of morality …. 14.79 Queensland …. 14.80, 14.81 Western Australia …. 14.82–14.84 child sex offences see Child sex offences classification …. 14.1–14.3 consent immaterial …. 14.51 fresh or preliminary complaint and corroboration …. 14.54 procedure …. 14.53 specific offences …. 14.52 incest …. 14.52 Queensland …. 14.75 Western Australia …. 14.76, 14.77 intellectually or psychiatrically impaired victims …. 14.66 Queensland …. 14.67, 14.68 Western Australia …. 14.69 Sexual penetration see also Rape consent …. 14.12, 14.13, 14.21 capacity …. 14.14 coercion and threats …. 14.17, 14.18 deceit and fraud …. 14.19, 14.20 definition …. 14.22 physical resistance …. 14.15 submission …. 14.15, 14.16

definition …. 14.9, 14.10 penalties …. 14.11 Simple offences commencement of proceedings …. 4.19 common assault …. 13.7, 13.10 conduct of proceedings …. 5.34 absence of party …. 4.25 both parties appear …. 5.37 guilty plea …. 5.38 no case to answer …. 5.40 not guilty plea …. 5.39 drug offences …. 16.6, 16.8, 16.10, 16.11 indictable offence, summary conviction …. 4.15 property damage …. 15.117 Queensland …. 4.5 stalking …. 13.38 Western Australia …. 4.7 Sodomy see Sexual offences Special plea indictment, to …. 5.76 jurisdiction …. 7.37 Special verdict jurisdiction …. 6.29 mental health legislation …. 8.126 Spousal liability assisting to escape punishment …. 10.16 compulsion from husband …. 10.17 conspiracy …. 10.15

rape …. 10.14 Stalking Queensland matters immaterial …. 13.35 non-proscribed conduct …. 13.36 proscribed conduct …. 13.34 punishment and procedure …. 13.33 Western Australia defences …. 13.39 intimidate, definition …. 13.43 non-proscribed conduct …. 13.41, 13.42 proscribed conduct …. 13.40 punishment and procedure …. 13.37, 13.38 Standard of proof …. 6.8, 6.9 insanity …. 8.103 onus of proof with Crown/state …. 6.28 discharging …. 6.25 sentencing …. 6.30 State courts see also District Court; Magistrates Courts; Supreme Court extradition procedures …. 2.27 jurisdiction …. 2.17 offshore offences …. 2.23, 2.24 State borders, element of offence occurring outside …. 2.19–2.22 State borders, relevance of …. 2.18 State legislation extra-territorial powers …. 2.23 Queensland …. 1.11, 1.15, 1.18

codification …. 1.15 Western Australia …. 1.12, 1.13, 1.18 codification …. 1.16 Statutory law Commonwealth codification …. 1.19, 1.20 constitutional powers …. 1.6, 1.7, 1.9, 1.10 imperial legislation …. 1.4 Australia Acts, and …. 1.26, 1.27 offshore areas …. 1.27, 2.23 post-1828 developments …. 1.5 state legislation extra-territorial powers …. 2.23 Queensland …. 1.11, 1.15, 1.18 Western Australia …. 1.12, 1.13, 1.16, 1.18 Stealing see also Receiving abandoned property …. 15.23 conversion definition …. 15.9 taking, distinguished …. 15.10 definition …. 15.7 fraud, and …. 15.92–15.94 fraudulent intention …. 15.17 changed condition …. 15.20 money, case of …. 15.21 owner’s consent, mistaken belief …. 15.22 permanent deprivation …. 15.18 temporary deprivation …. 15.19

item must be moved or dealt with common law …. 15.8 conversion and fraudulent intent …. 15.10 lost property …. 15.23 mental element …. 15.17 ownership, possession and control …. 15.14, 15.24 control, concept …. 15.16 known and alleged …. 15.15 owner, extended meaning …. 15.16 passing property in item …. 15.24, 15.28 no longer identifiable …. 15.29 victim under mistake …. 15.25–15.27 penalties Queensland …. 15.3 Western Australia …. 15.4 procedure Queensland …. 15.5 Western Australia …. 15.6 receiving, and …. 15.60 recent possession …. 15.32 application …. 15.36 elements …. 15.35 operation of doctrine …. 15.33 presumption of fact …. 15.34 regulatory offences …. 15.30, 15.31 robbery see Robbery robbery, and …. 15.64, 15.68 things capable of being stolen

definition …. 15.11 Queensland …. 15.12 Western Australia …. 15.13 Summary convictions assault Queensland …. 13.9 Western Australia …. 13.10 dangerous driving …. 13.115, 13.116 dangerous operation of vehicle …. 13.113 drugs offences …. 16.6 fraud …. 15.88 grievious bodily harm …. 13.50 indecent assault …. 14.42 indictable offences …. 4.15 stealing Queensland …. 15.5 Western Australia …. 15.6 Summary offences Western Australia …. 4.8 Summary proceedings arson …. 15.121 assault Queensland …. 13.9 Western Australia …. 13.10 Children’s Court …. 10.9 pleading charge …. 10.10 fraud …. 15.87 indictable offences …. 5.44

Children’s Court …. 10.9, 10.10 onus of proof …. 6.17 receiving …. 15.61 sexual offences …. 14.53 stealing …. 15.5, 15.6 Supreme Court see also District Court; Magistrates Courts; State courts appeals from acquittal on indictment …. 3.22 Attorney-General’s reference …. 3.23, 3.24 convictions …. 3.28–3.36 notice of applications and time limits …. 3.26, 3.27 as of right or by leave …. 3.20 sentences …. 3.37–3.40 Western Australia …. 3.21 Appeals point of law reserved by trial judge …. 3.25 jurisdiction …. 2.5 nisi prius …. 2.2 overview …. 2.1 Queensland …. 2.3, 2.5 Western Australia …. 2.4, 2.5

T Territorial limits see Jurisdiction Time limits appeals …. 3.24, 3.26, 3.27 commencement of proceedings …. 4.19 indictment …. 5.67

discharge as result of time limits …. 5.70 Queensland …. 5.68 Western Australia …. 5.69 prosecution …. 4.19 Trafficking see Drug offences Trial on indictment bringing to trial …. 5.1 arrest see Arrest committal proceedings …. 5.2 coroner’s investigation, following …. 5.3 ex-officio indictment …. 5.4–5.6 private prosecution, presentation of information by …. 5.7, 5.8 Court’s discretion to direct separate trials …. 5.74 ex-officio …. 5.4–5.6 joinder of charges …. 5.72 joint trial of offenders …. 5.73 pleading …. 5.76 changing plea …. 5.77 guilty plea, conviction and sentence …. 5.78 not guilty plea …. 5.79 procedure …. 5.71 special plea …. 5.76 time limits …. 5.67 discharge as result of time limits …. 5.70 Queensland …. 5.68 Western Australia …. 5.69 voir dire …. 5.89 Trial upon indictment

classification of offences …. 4.1

U Unlawful assault causing death …. 12.4 accident, excuse for …. 12.61 Western Australia …. 12.61, 12.98 Unlawful killing …. 12.4, 12.42 umbrella term …. 12.1 Unlawful striking Queensland …. 12.99 Unlawful use of motor vehicle nature of use …. 15.44 overview …. 15.37 procedure …. 15.46, 15.47 Queensland …. 15.38 intention to deprive owner of possession …. 15.41, 15.42 possession without lawful owner’s consent …. 15.39 possession, definition …. 15.40 taking and using, definition …. 15.45 Western Australia …. 15.43 Unsound mind …. 8.118 determination …. 8.119 fit to plead …. 8.122 Queensland …. 8.121 at time of trial …. 8.120 Western Australia …. 8.123–8.125

V Verdict

special …. 6.29 Verdicts …. 5.84–5.86, 5.94, 9.26 accessory not always convicted of same offence as perpetrator …. 9.27 alternative verdicts see Alternative verdicts challenging acquittal …. 7.22, 7.23 murder and manslaughter …. 9.31, 9.32 Queensland …. 9.29, 9.30 special …. 8.126 substituted …. 3.35 unreasonable …. 3.29, 3.30 Western Australia …. 9.28 Voir dire …. 5.89

W Warrants see Arrest Watch-house bail …. 5.29 cash bail …. 5.31 granting …. 5.30 Wife see Spousal liability Wilful damage see Property damage Wilful murder see Murder Will see Independence of will Wounding causation …. 13.60 definition …. 13.54 procedure …. 13.50 punishment …. 13.48, 13.49