Principles of criminal law [Fourth edition.] 9780455237909, 0455237905, 9780455237916, 0455237913

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PRINCIPLES OF CRIMINAL LAW

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PRINCIPLES OF CRIMINAL LAW

Simon Bronitt LLB (Bristol), LLM (Cambridge)

Deputy Dean (Research) and Deputy Head of School TC Beirne School of Law | The University of Queensland

Bernadette McSherry BA (Hons), LLB (Hons), LLM (Melb), PhD (York, Can), Grad Dip Psych (Mon)

Foundation Director, Melbourne Social Equity Institute, University of Melbourne Adjunct Professor of Law, Melbourne Law School and Faculty of Law, Monash University

FOURTH EDITION

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NSW First edition ..................................................................2001 Second edition .............................................................2005 Third edition.................................................................2010 National Library of Australia Cataloguing-in-Publication entry Bronitt, Simon, author. Principles of criminal law / Simon Bronitt; Bernadette McSherry. 4th edition Includes index. ISBN 978 0 455 23790 9 Criminal law—Australia McSherry, Bernadette, author. © 2017 Thomson Reuters (Professional) Australia Limited This
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FOREWORD MarkWeinbergAO Judge
Court
of
Appeal
Supreme
Court
of
Victoria It came as something of a surprise to me when, after some admittedly cursory research on my part, I discovered that most modern legal texts published in this country no longer commence with the traditional foreword. The preface is still sometimes utilised. However, that represents the stated aims of the authors, and not the thoughts of an independent commentator. In searching for some ideas as to what I might say in a foreword, I turned to the one example that had embedded itself in my mind. That was the late Justice ‘Roddy’ Meagher’s utterly scandalous, politically incorrect, and somewhat misogynistic June 1990 foreword to the reprint of Pollock and Wright’s Essay on Possession in the Common Law. I refer in particular to the last paragraph of that foreword where he referred to that great work as having received “negative deference”. He said that this was partly because it had been out of print. He added that it was also because it did not mention “semiotics”, “hermeneutics” or “structuralism”. He described it as having no social relevance whatever. In typical ‘Roddy’ style he observed that the President of the New South Wales Court of Appeal never referred to it. He said it did not live in any “progressive” lawyer’s library and that women barristers had been known to deny its existence. He described it as a work of pure scholarship, of unqualified excellence. The fourth edition of Bronitt and McSherry’s Principles of Criminal Law has now been completed, and not before time. It does not mention “semiotics” or “hermeneutics”. It is replete with references to what some modern scholars would term “structuralism”. It has enormous social relevance. It would live happily in any “progressive” lawyer’s library. It should equally find a home in the library of even the most formalistic of black letter lawyers, who would benefit from opening their minds to its insights. It is a work of pure scholarship and of unqualified excellence. Principles of Criminal Law was first published in 2001. In their preface to the first edition the authors made plain that this was not to be a traditional criminal law text. They said that they had set themselves the daunting task of describing criminal laws across every Australian jurisdiction and, wherever possible, challenging these accounts from interdisciplinary vantage points. They openly proclaimed that reflecting upon their broad variety of interests, they had drawn upon a range of disciplines including criminology, criminal justice studies, feminism, legal history, human rights, legal theory, medicine, psychology and sociology to illuminate the substance and operation of the criminal law. They said: “What we do hope to impart is a critical orientation to the criminal law, rather than simply a description of the rules, principles and substantive definitions applicable in every jurisdiction.” In 2005, when the second edition came to be published, the Honourable Justice Michael Kirby, as he then was, wrote the foreword to the work. His Honour began by saying: “The study of criminal law is coming into its own. Mind you, the upper echelons of the legal profession still tend to look down their noses at crime.” Perhaps Justice Kirby was right, though I suspect that as the criminal law expands into areas into which it had never previously intruded, such as cartel conduct, those “upper echelons” may be forced to reconsider their ingrained prejudices against those who work in this area. In 2010, Bronitt and McSherry produced a third edition. On this occasion Justice Richard Refshauge wrote the foreword. He spoke of the significant increase of work in the criminal courts, and of the v

Principles of Criminal Law

changing nature and content of the criminal law. He referred to the introduction of the Commonwealth Criminal Code (certainly regarded by many as a mixed blessing), but as having changed a number of the fundamental concepts of the criminal law. His Honour had this to say: “While detailed annotations to the various criminal statutes are beloved of practitioners and there are a number of them, the Australian landscape has been firmly sparse when one looked for a text which dealt with the law in a holistic and narrative way, especially if one wanted to understand also the context and the theory which underpins it. Good lawyers look not just for the single instance which might give the answer to an immediate problem but for the principles on which the answer is based. This is not always easy, for legislators do not always make the law in a uniformly principled way. Even the myriad of judges in our nine Australian jurisdictions do not always see eye-to-eye on the theories and principles that they find to apply in case after case. ... I regularly used ‘Bronitt and McSherry’ whilst ACT Director of Public Prosecutions and, as a judge of the ACT Supreme Court, the second edition has sat on my bookshelf right next to my computer, ever ready to be dipped into when criminal cases are before me.” When I was a young barrister, specialising in appellate crime, I made extensive use of a wide variety of criminal law texts, of various kinds. These ranged from purely practitioners’ works such as Archbold, to scholarly treatises of a more philosophical bent. My “Bible” then was Glanville Williams, Criminal Law – The General Part. I also had, and continue to have, a high regard for Smith and Hogan’s Criminal Law (now in its fourteenth edition, under the excellent stewardship of Professor David Ormerod). I found nothing better as a teaching tool than Glanville Williams’ Textbook of Criminal Law (now in its fourth edition, and under the care of Professor Dennis Baker). When I started in the law, Australian criminal law texts were in their infancy. I refer of course to Brett and Waller’s Cases and Materials in Criminal Law 1 (later Waller and Williams) and Howard’s Criminal Law. All these works served their purpose admirably. They were analytically sound, and reflected a deep and principled approach to the vast body of criminal law doctrine that was by then continually developing. They are all works that I still have on my shelf, and use constantly. I also have several editions of Bronitt and McSherry in my personal library. This text had never been particularly easy to work with, and the fourth edition is by no means different. That is not because it is badly written. It is rather because the authors will not compromise, and substitute simplicity for analytical rigour and accuracy. The attention to detail can be frustrating, and there are some parts of the text with which I profoundly disagree. Nonetheless, I find this work to be of inestimable value. There is a wealth of richly rewarding analysis of some of the most troubling questions that confront appellate judges on a regular basis. As judges, we depend greatly upon the synthesis and rigour of legal scholars who have the time, and passion, to delve deeply into areas that we can only cursorily pass over. Bronitt and McSherry have fulfilled their promise to focus upon not just exposition of legal doctrine, but a comparative and interdisciplinary approach to many of these vexed questions. This new edition contains a number of valuable, though contestable, insights. For example, it challenges the assumption that “general principles” represent the full extent of worthwhile theorising about the criminal law. It asserts that as “moral philosophy” criminal law doctrine appears to be a 1

Melbourne, Butterworths, 1962. vi

Foreword

“spectacular failure”, a proposition that may be true, but if I may say so, does not trouble me in the slightest. I have never regarded the criminal law as anything like a branch of moral philosophy. The authors note that some scholars increasingly dispute the traditional disciplinary segregation of criminal law from criminal justice studies and criminology. For my part, that matters little. Such segregation is pedagogically useful, though a more holistic approach may have merit. The authors raise a number of contentious issues. They challenge the “balancing model” reflecting the debate between the value of fundamental human rights, as against so-called collective or social interests which are designed to remedy disadvantage in marginalised communities. They seemingly endorse criticisms of traditional criminal law scholarship said to be exemplified by “liberal accounts of criminal law”, and embrace some of the more radical ideas developed under the rubric of critical legal studies. I do not share their enthusiasm for much of this work. However, I accept, of course, that there is value in being confronted with challenges to basic assumptions. Nor do I share with the authors their somewhat dismissive attack upon “new natural law theorists” such as Finnis. His work seems to me to be far more subtle, and important, than the value they ascribe to it. These criticisms aside, the new edition contains much that is distinctive and illuminating. The authors’ discussion of the pitfalls of codification is particularly helpful, and of great importance at a time when we seem to be moving inexorably in that direction. When the authors eventually move away from abstract theory, and into the realm of orthodox exposition of legal doctrine, their work takes on a different, and in my opinion, more valuable, aspect. For this is in every sense a scholarly text. The discussion of immensely complex legal principles such as those which emerge from cases like He Kaw Teh v The Queen 2 is perceptive, and extraordinarily useful. So too is the discussion of voluntariness, and concepts such as intention, recklessness, and negligence. The abolition of provocation in Victoria, as a partial defence to murder, was and remains contentious. The authors’ analysis of this doctrine is particularly revealing, at least for those jurisdictions where the defence is still available. I find it comforting to see the praise afforded to a simpler test for self-defence, along the lines of that propounded in Zecevic v DPP (Vic), 3 as compared with the poorly conceived attempts at legislative recasting resulting in, for example, the creation of defensive homicide in Victoria, now fortunately consigned to history. Also welcome is the splendid treatment of complicity, and the entirely valid criticism levelled at the High Court’s persistent, and seemingly stubborn, refusal to reconsider the plainly irrational doctrine of extended common purpose. It is unnecessary to say any more about the treatment afforded to specific crimes, such as murder, manslaughter and various other forms of violence. There is nothing shallow about the analysis. In every case the authors have chosen, properly, to delve deeply into the relevant case law, and subject it to proper and careful evaluation. I particularly wish to comment about their treatment of sexual offences. These make up a large proportion of the trials conducted in the County Court of Victoria. The law governing even an offence as well established at common law as rape has become extraordinarily complex, almost unmanageably so. The chapter dealing with sexual offences could easily have been, but is not, a polemic. It is rather a nuanced and carefully considered treatment with many valuable insights. 2 3

(1985) 157 CLR 523. (1987) 162 CLR 645. vii

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For example, the comment (not of course original to the authors, but fully explored by them) that in the context of rape, the strict dualism between physical and fault elements which runs through the criminal law seems to break down is undoubtedly valid. It may explain, in part, why so many appeals against conviction, based upon judicial misdirection, succeed. From the point of view of orthodox legal reasoning, I agree entirely with the authors that the dissenting views of Heydon and Bell JJ in PGA v The Queen, 4 are entirely to be preferred to the views of the majority. This new edition should be part of every practising criminal lawyer’s library. It goes without saying that every judge and magistrate who deals with the criminal law on a regular basis should use it whenever confronted with a difficult legal problem. It is unremittingly challenging. I suspect first year law students will find it beyond their capacity to fully grasp. Better students will, no doubt, find it more to their taste, as of course will later year students. It is a provocative work, pungently written, which repays careful reading. ‘Roddy’ Meagher would not have had this book in his library. If by some chance of fate it had been there, he would not have read it. The authors should regard that as a badge of honour and as being, of itself, sufficient commendation of its worth. I thank them for doing me the honour of having asked me to write this foreword. They must have known, or at least suspected (in its wholly subjective sense), that I would not approach that task uncritically. January 2017

4

(2012) 245 CLR 355. viii

PREFACE Given the pace of reforms to Australian criminal law, over six years between editions for a criminal law textbook is probably far too long a gap. However, this period has provided us with an opportunity to undertake a thorough update and revision. Justice Mark Weinberg AO’s foreword has obviated the need to rehearse our original intent which, although formed at the end of the last century, continues to be refined and extended over successive editions. The foreword, for which we commend and thank Justice Weinberg, offers readers a critical assessment of how successful we have been in achieving our aim of providing a relevant and provocative account of the criminal law in Australia. Australian criminal law remains a messy patchwork of legal norms, substantive and procedural, which cross both internal/local and external/national borders. One constant however is that criminal laws, at every level, continue to be shaped by political demands and media campaigns for better laws and police powers to solve society’s serious problems. In that sense, the modern criminal law functions as an ultimate “safety blanket” for community fears about new and emerging threats, both actual and perceived. A continuing trend in Australia, evident in many of the chapters, is the ever-expanding boundaries of federal criminal law. This creeping federalisation was stimulated by security concerns following the terrorist attacks by al-Qaeda on the United States on the 11 September 2001. While state responses to security threats are neither novel or extraordinary, it is notable that the expansion of federal criminal law thus far shows no signs of curtailment. The state of constant legal flux in the criminal law is matched by the emergence of “new” crime threats. Since the last edition, technological change has intensified demands for new cybercrime laws: the seismic shift of criminality online is reflected in the latest data suggesting that 21st century “burglars” are more likely to be cyber hackers than safe crackers. It is not merely that criminals’ “tools of the trade” have changed. Technology is also producing new forms of sexual harm – cyber assaults and degradation – as revealed in the emergence of new “revenge porn” offences. Theoretical debates about the proper limits of the criminal law and state intervention into the personal lives of citizens remain as relevant today as they did during the debates in the post war period concerning the legality of consensual sex between adult males, abortion, prostitution and obscenity. These debates reflected the perennial tensions between the criminal law respecting individual freedoms and liberties on the one hand, and its important role in reflecting and setting standards. Today, these standards are more likely to be expressed in secular rather than religious or moral terms, and since the first edition of this book, human rights claims have secured greater attention in debates about the proper limits of criminal law. Subjecting the criminal law to human rights scrutiny is no longer a purely “academic” exercise, but is increasingly providing legal anchors for submissions to courts by practitioners as well as judgments. In our view, the need to rethink how criminal law should be understood and taught; to link practice and theory; and to bring other disciplines’ perspectives to bear on hard questions of policy and principle remains unchanged. In that respect, we have continued to profess and confess our intellectual biases in favour of psychology, criminology, sociology and legal history. But we must also concede failure in relation to our earlier ambition to foster the development of a national approach to the study of criminal law, one informed by a national approach to law reform and the High Court’s commitment to articulate general principles derived from a unitary common law of Australia. Not only did the Model Criminal Law project fail to live up to its liberal promise, the teaching of criminal law, with too few notable exceptions, seems to have retreated to jurisdiction-specific syllabi and textbooks. The legal apartheid between “code” and “common law” remains entrenched. On the positive side, such pluralism ensures that there is considerable diversity in approaches to common problems in Australia, ongoing debates between jurisdictions about the best model, and whether a federal or ix

Principles of Criminal Law

indeed, a coordinated national approach is warranted. This diversity in Australia may not make criminal law and its administration an efficient system, but it does make it an interesting one in terms of policy experimentation. We hope that this new edition continues to pique the interest of criminal law students, academics and practitioner communities. Acknowledgments There are many people and institutions to thank in the making of such a big book, including foremost our partners and families. An update of this magnitude involves a team of research assistants. Simon would like to thank Michael Potts and Zoe Brereton, for their research assistance which was completed with passion and commitment, but also with an independent critical eye. He is also grateful to the contributions to the white collar crime updates (including a useful table) made by Jordan English, Sam Hickey and Abigail Mawby. Dr Mel O’Brien, Research Fellow at The University of Queensland, greatly assisted with verifying, updating and refining our claims about international criminal law. Bernadette would like to thank Andrew Butler for his incomparable, painstaking and unstinting help with research, cross-referencing and checking of proofs and Kathleen Patterson, for co-ordinating revisions to draft chapters and keeping everything on track. We also give out heartfelt thanks to the editorial and production team at Thomson Reuters, particularly Elizabeth Gandy and Lara Weeks for their hard work, patience and commitment to getting this edition to fruition. Finally, to our colleagues who have been waiting patiently for another edition, we hope it was worth the wait! Simon Bronitt Bernadette McSherry February 2017

x

TABLE OF CONTENTS Foreword ........................................................................................................................................... v Preface ............................................................................................................................................. ix Table of Cases .............................................................................................................................. .. xiii Table of Statutes .......................................................................................................................... .. xlv

Part I: Theory and Principles Chapter 1: Theory and the Criminal Law .............................................................. .. 3 Chapter 2: General Principles .................................................................................. 79 Chapter 3: Principles of Criminal Responsibility ................................................ 177

Part II: Justifications and Excuses Chapter 4: Mental State Defences ...................................................................... .. 249 Chapter 5: Partial Defences ................................................................................. .. 305 Chapter 6: Self-Help Defences ............................................................................. .. 347

Part III: Extending Criminal Responsibility Chapter 7: Complicity ........................................................................................... .. 395 Chapter 8: Inchoate Offences .............................................................................. .. 457

Part IV: Specific Crimes Chapter 9: Unlawful Killing ................................................................................. .. 521 Chapter 10: Offences Against the Person ............................................................ 581 Chapter 11: Sexual Offences ................................................................................ .. 635 Chapter 12: Property Offences .............................................................................. 757 Chapter 13: Public Order ..................................................................................... .. 859 Chapter 14: Drug Offences .................................................................................. .. 945 Chapter 15: International and Transnational Crimes ...................................... 1029 Index .................................................................... .. ................................................................. 1141 xi

TABLE OF CASES A A v DPP [1997] Crim LR 125 .......................................................................................................................... 3.25 A v United Kingdom (1998) 27 EHRR 611 .................................................................................................. 10.135 A (Children) (conjoined twins: surgical separation), In Re [2001] 2 WLR 480 ................................................ 6.155 ABC Developmental Learning Centres Pty Ltd v Wallace [2006] VSC 171 ....................................................... 3.45 AC Hatrick Chemicals Pty Ltd (unreported, 29/11/1995, VSC, Hampel J) ....................................................... 3.50 ADT v United Kingdom [2000] ECHR 35765/97 ........................................................................................... 2.150 Abbott v The Queen [1977] AC 755 ............................................................................................................... 6.70 Abbott v The Queen (unreported, 25/7/1995, WACCA, No 98 of 1995) .................................................... 10.160 Adam (1999) 106 A Crim R 510 ..................................................................................................................... 7.45 Adams (1812) R & R 225 ............................................................................................................................. 7.105 Adams v Eta Foods Ltd (1987) 19 FCR 93 ...................................................................................................... 3.50 Ahern v The Queen (1988) 165 CLR 87 ......................................................................................................... 8.85 Ahmadi v The Queen [2011] WASCA 237 ..................................................................................................... 6.160 Aickin (2005) 157 A Crim R 515 ...................................................................................................... 11.55, 11.110 Air Canada v United Kingdom (1995) 20 EHRR 150 ................................................................................... 14.200 Airedale NHS Trust v Bland [1993] 2 WLR 316; [1993] AC 789 ................................. 9.45, 9.75, 9.90, 9.95, 9.190 Albert v Lavin [1982] AC 546 ....................................................................................................................... 13.65 Albis (1913) 9 Cr App R 158 .......................................................................................................................... 5.40 Aleksovski v The Queen [1979] WAR 1 ........................................................................................................... 6.55 Alford v Riley Newman Ltd (1934) 34 SR(NSW) 261 ...................................................................................... 3.45 Allen v United Carpet Mills Pty Ltd [1989] VR 323 ......................................................... 3.45, 3.260, 3.270, 3.305 Allsop (1976) 64 Cr App R 29 ...................................................................................................................... 8.140 Allwood (1975) 18 A Crim R 120 ................................................................................................................... 5.35 American Booksellers v William Hudnutt III, Mayor, City of Indianapolis 771 F 2d 323 (1985) .................... 11.240 Ancuta (1990) 49 A Crim R 307 ..................................................................................................................... 7.75 Anderson v Attorney-General (NSW) (1987) 10 NSWLR 198 ...................................................................... 13.230 Anderton v Ryan [1985] AC 560 ................................................................................................................... 8.205 Andrews v DPP [1937] AC 576 .................................................................................... 3.225, 9.150, 9.170, 9.175 Andrews Weatherfoil Ltd, Sporle and Day (1971) 56 Cr App R 31 ................................................................. 7.110 Annakin (1988) 37 A Crim R 131 ................................................................................................................... 7.65 Ansari v The Queen (2010) 241 CLR 299 ................................................................................. 8.75, 8.150, 8.165 Anthony, Re (2004) 142 A Crim R 440 ......................................................................................................... 2.225 Applicant A v Minister of Immigration and Ethnic Affairs (1997) 71 ALJR 381 ................................................ 2.150 Arnol (1981) 7 A Crim R 291 ........................................................................................................................ 4.170 Artugrul v The Queen (2012) 247 CLR 170 .................................................................................................... 6.85 Arulthilakan v The Queen (2003) 203 ALR 259 ............................................................................................. 3.110 Attorney-General v Able [1984] 1 QB 795 .................................................................................. 7.30, 7.65, 9.200 Attorney-General v PYA Quarries Ltd [1957] 2 QB 169 ............................................................................... 13.135 Attorney-General (Northern Ireland) v Gallagher [1963] AC 349 .................................................................. 4.185 Attorney-General (Qld) (Ex rel Kerr) v T (1983) 57 ALJR 285 ........................................................................... 9.30 Attorney-General (Hong Kong) v Lee Kwong-kut [1993] AC 951 .................................................................. 2.165 Attorney-General’s Reference (No 1 of 1975) [1975] QB 773 ....................................................... 7.25, 7.30, 7.65 Attorney-General’s Reference (No 6 of 1980) [1981] QB 715 ........................................................ 10.140, 10.165 Attorney-General’s Reference (No 1 of 1983) [1984] 3 WLR 686 ................................................................ 12.190 Attorney-General’s Reference (No 3 of 1983) [1985] QB 242 ..................................................................... 13.215 Attorney-General’s Reference (No 1 of 1985) [1986] 1 QB 491 .................................................................. 12.155 Attorney-General’s Reference (No 3 of 1994) [1997] 3 WLR 421; [1996] QB 581 ................................ 3.190, 9.30 Attorney-General’s Reference (No 1 of 1996): Re David John Weiderman (unreported, 26/2/1998, Tas SC CCA, Cox CJ, Underwood, Wright, Crawford and Zeeman JJ, No 12/98) ..................... 4.170, 4.180, 4.200 Aubertin v Western Australia (2006) 167 A Crim 1 ...................................................................................... 11.145 August v Fingleton [1964] SASR 22 ................................................................................................................ 4.95 Austin (1996) A Crim R 570 ........................................................................................................................ 11.195 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 .............................. 2.240 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 ................................... 13.80, 15.225 Australian Competition and Consumer Commission v Australian Egg Corp Ltd [2016] FCA 69 ....................... 3.40 Australian Competition and Consumer Commission v Davies [2015] FCA 1017 ............................................. 7.65 Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd (No 3) (2007) 244 ALR 673 ............................................................................................................................................. 3.65 Australian Fisheries Management Authority v Mei Ying Su (2009) 255 ALR 454 ................................. 3.285, 3.290 xiii

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Australian Iron and Steel Pty Ltd v Environment Protection Authority (1992) 29 NSWLR 497 ............ 3.280, 3.305 Australian Stevedoring Industry Authority v Overseas and General Stevedoring Co Pty Ltd (1959) 1 FLR 298 .......................................................................................................................................................... 3.45

B B v The Queen (1960) 44 Cr App R 1 ............................................................................................................. 3.25 B v The Queen (1992) 63 A Crim R 225 ....................................................................................................... 2.190 B v The Queen [2015] NSWCCA 103 ........................................................................................................... 6.165 BP v The Queen [2006] NSWCCA 172 ........................................................................................................... 3.25 Ball v McIntyre (1966) 9 FLR 237 .................................................................................................. 13.165, 13.170 Banditt v The Queen (2005) 219 CLR 43 .................................................................................................... 11.160 Bannen (1844) 1 Car & K 295 ..................................................................................................................... 7.105 Baragith (1991) 54 A Crim R 240 ................................................................................................................... 5.60 Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2 ............................................................................... 2.120 Barker v Burke [1970] VR 884 ........................................................................................................... 4.100, 4.195 Barker v The Queen (1983) 153 CLR 338 ................................................................................................... 12.240 Barlow v The Queen (1997) 188 CLR 1 ............................................................................................. 7.120, 7.185 Barrett v Coroner’s Court (SA) [2010] SASCFC 70 .......................................................................................... 9.30 Barton v Armstrong [1969] 2 NSWLR 451 .............................................................................. 10.30, 10.35, 10.40 Barton v The Queen (1980) 147 CLR 75 ........................................................................................... 2.115, 2.145 Battle v The Queen (unreported, 26/2/1993, WACCA, 149 of 1992) .............................................................. 4.95 Bayliss, Re (unreported, 24/5/1985, QSC, McPherson J, 376 of 1985) ......................................................... 9.225 Beal v Kelley [1951] 2 All ER 763 .................................................................................................................. 10.50 Beatty v Gillbanks (1882) 9 QBD 308 .............................................................................................. 13.85, 13.210 Becerra (1975) 62 Cr App R 212 .................................................................................................................... 7.90 Beckford v The Queen [1987] 3 WLR 611 ....................................................................................................... 6.30 Bedi v The Queen (1993) 61 SASR 269 ...................................................................................................... 10.180 Bedkinov (1997) 95 A Crim R 200 ................................................................................................................ 9.140 Beech (1912) 7 Cr App R 197 ...................................................................................................................... 10.40 Beer v McCann [1993] 1 Qd R 25 .............................................................................................................. 10.140 Benbrika v R (2010) 29 VR 593 ...................................................................................................................... 8.30 Bennett v The Queen (1991) Tas R 11 ............................................................................................... 3.235, 3.240 Bennett (1989) 45 A Crim R 45 ............................................................................................ 4.170, 4.180, 10.100 Bergin v Brown [1990] VR 888 ..................................................................................................................... 5.140 Bergin v Stack (1953) 88 CLR 248 ..................................................................................................... 3.280, 3.295 Betts and Ridley (1930) 22 Cr App R 148 ....................................................................................................... 7.30 Billinghurst [1978] Crim LR 553 ................................................................................................................. 10.160 Binskin v Watson (1990) 48 A Crim R 33 ...................................................................................................... 3.275 Bird v Jones (1845) 7 QB 742 .................................................................................................................... 10.185 Bishopsgate Motor Finance Corp v Transport Brakes Ltd [1949] 1 KB 332 .................................................. 12.110 Black v Corkery (1988) 33 A Crim R 134 .................................................................................................... 13.200 Blackwell v The Queen (2011) 81 NSWLR 119 ................................................................................ 10.55, 10.100 Bleasdale (1848) 2 Car & K 765 ................................................................................................................... 7.105 Bolton, Re; Ex parte Beane (1987) 162 CLR 514 ........................................................................................... 13.90 Bonollo [1981] VR 633 ................................................................................................................................. 12.65 Borg v The Queen [1972] WAR 194 ................................................................................................... 7.120, 7.135 Boucher v The King [1951] 2 DLR 369 ....................................................................................................... 15.225 Boughey v The Queen (1986) 161 CLR 10 ......... 2.25, 3.180, 3.205, 4.180, 9.120, 9.140, 10.55, 10.115, 10.140 Bourne (1952) 36 Cr App R 125 .................................................................................. 7.110, 7.115, 7.130, 7.150 Bowker v Premier Drug Co Ltd [1928] 1 KB 217 ............................................................................................ 7.25 Brady v Schatzel; Ex parte Brady [1911] St R Qd 206 ................................................................................... 10.35 Brambles Holdings Ltd v Carey (1976) 15 SASR 270 ...................................................................................... 3.50 Bratty v Attorney-General (Northern Ireland) [1963] AC 386 .......... 2.175, 2.185, 4.30, 4.95, 4.100, 4.120, 4.140 Bremner v Walker (1885) 6 LR (NSW) 276 .................................................................................................. 11.225 Brennan v Bass (1984) 35 SASR 311 ............................................................................................................. 6.125 Brennan v The King (1936) 55 CLR 253 ............................................................................................ 7.120, 7.135 Brian William Shaw, Application by (2001) 4 VR 103 .................................................................................... 2.110 Brightwater Care Group v Rossiter (2009) 40 WAR 84 .................................................................................... 9.90 Briginshaw v Briginshaw (1938) 60 CLR 336 ..................................................................................... 2.185, 13.20 Brimblecombe v Duncan; Ex parte Duncan [1958] Qd R 8; (1958) 52 QJPR 83 ............................................ 3.235 Brisac and Scott (1803) East ......................................................................................................................... 7.105 British American Tobacco Australia Services Ltd v Cowell (Representing the Estate of McCabe (Dec’d)) (2002) 7 VR 524 ....................................................................................................................................... 3.60 Britten v Alpogut [1987] VR 929 .............................................................................. 8.20, 8.35, 8.65, 8.75, 8.205 Bromage, Re [1991] 1 Qd R 1 ...................................................................................................................... 4.215 xiv

Table of Cases

Broome v Perkins (1986) 85 Cr App R 321 .......................................................................................... 4.95, 4.100 Brown v Scott [2003] 1 AC 681 ................................................................................................................. 14.125 Brown v Spectacular Views Pty Ltd [2011] VSC 197 ...................................................................................... 10.35 Brown [1994] AC 212 .................................................................................................................................. 11.20 Brown (2007) 171 A Crim R 345 .................................................................................................................. 7.120 Browning v Barrett [1987] Tas R 122 ............................................................................................................ 3.275 Brownlee v The Queen (2001) 207 CLR 278 .................................................................................................. 2.90 Brutus v Cozens (1972) 56 Cr App R 799 ........................................................................................ 12.50, 13.165 Budd, Re [1962] Crim LR 49 .......................................................................................................................... 4.95 Bugmy v The Queen (2013) 249 CLR 571 ....................................................................................... 2.220, 13.195 Bull v R (2000) 201 CLR 443 ...................................................................................................................... 11.180 Bull (1845) 1 Cox 281 ................................................................................................................................. 7.105 Bunning v Cross (1978) 141 CLR 54 ....................................................................... 1.145, 2.245, 14.215, 14.220 Burns v Nowell (1880) 5 QBD 444 ............................................................................................................... 3.335 Burns v Seagrave [2000] NSWSC 77 ............................................................................................. 13.180, 13.190 Burns v The Queen (2012) 246 CLR 334 ............................................... 9.140, 9.150, 9.155, 9.165, 9.175, 9.190 Burns (1984) 79 Cr App R 173 .......................................................................................................... 8.115, 8.180 Bush, Governor of Florida v Schiavo 543 US 1121 (2005) .............................................................................. 9.95 Butcher (1858) Bell 6 ................................................................................................................................... 7.105 Butt (1884) 15 Cox 564 ............................................................................................................................... 7.105 Buttigieg v The Queen (1993) 69 A Crim R 21 ............................................................................................... 5.20

C C v S [1988] QB 135 ...................................................................................................................................... 9.30 C (a minor) v DPP [1994] 3 WLR 888 ............................................................................................................. 3.25 C (a minor) v DPP [1995] 2 WLR 383 ............................................................................................................. 3.25 C (adult: refusal of medical treatment), Re [1994] 4 All ER 819 ...................................................................... 9.45 CES v Superclinics Australia Pty Ltd (1995) 38 NSWLR 47 ............................................................................ 9.225 CR v United Kingdom and SW v United Kingdom (1996) 21 EHRR 363 ............................................. 2.150, 11.65 CTM v The Queen (2008) 247 ALR 1 ................................................................................................ 3.275, 3.300 Cain v Doyle (1946) 72 CLR 409 ....................................................................................................... 7.100, 7.110 Callaghan v The Queen (1952) 87 CLR 115 ........................................................................... 3.225, 9.160, 9.175 Cameron (1990) 47 A Crim R 397 ..................................................................................................... 4.170, 4.180 Camilleri (2001) 119 A Crim R 106 ............................................................................................................... 7.110 Campbell v The Queen [1981] WAR 286 ...................................................................................................... 3.110 Campbell (1986) 84 Cr App R 255 ............................................................................................................... 5.105 Campbell (2011) 81 NSWLR 119 ................................................................................................................. 10.55 Canadian Dredge and Dock Co Ltd v The Queen (1985) 19 DLR (4th) 314; 19 CCC (3d) 1 .................. 3.40, 3.45 Canadian Foundation for Children, Youth and the Law v Canada (Attorney General) [2004] 1 SCR 76 ....... 10.135 Cannavan v Lettvale Pty Ltd [2003] QCA 528 .............................................................................................. 2.245 Carriers Case (1473) YB 13 Edw ................................................................................................................... 12.20 Carroll v Lergesner [1991] 1 Qd R 206 ............................................................................................ 10.140, 11.20 Carter v Walker (2010) 32 VR 1 .................................................................................................................... 4.210 Carter and Savage; Ex parte Attorney-General (1990) 47 A Crim R 55 .......................................................... 7.155 Case Stated by DPP (No 1) (1993) 66 A Crim R 259 ................................................................................... 11.110 Catalano (1992) 61 A Crim R 323 ................................................................................................................ 8.120 Censori v The Queen [1983] WAR 89 .................................................................................................. 4.210, 5.40 Chadderton (1908) 1 Cr App R 229 ............................................................................................................. 11.50 Chamberlain v The Queen (No 2) (1984) 153 CLR 521 ..................................................................... 2.175, 2.180 Chan Kau v The Queen [1955] AC 206 ............................................................................................. 2.175, 2.180 Chan Wing-Siu v The Queen [1985] AC 168 ................................................................................................ 7.135 Charlie v The Queen (1999) 199 CLR 387 ......................................................................................... 2.25, 11.145 Chayna (1993) 66 A Crim R 178 .................................................................................................................... 5.85 Cheatle v The Queen (1993) 177 CLR 541 ..................................................................................................... 2.90 Chee Ming Ng v The Queen (2003) 197 ALR 10 ............................................................................................ 2.90 Cheng v The Queen (2000) 203 CLR 248 ....................................................................................... 2.190, 14.140 Cheung v The Queen (2001) 209 CLR 1 ...................................................................................................... 2.190 Chhay (1994) 72 A Crim R 1 ................................................................................................................. 5.15, 5.35 Chicago v Morales 527 US 41 (1999) ......................................................................................................... 13.115 Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161 ...................... 2.185 Chief Executive of the Department of Corrections v All Means All [2014] NZHC 1433 .................................. 9.190 Chiou Yaou Fa v Morris (1987) 46 NTR 1 ..................................................................................................... 3.235 Christie v Foster Brewing Co Ltd (1982) 18 VLR 292 ...................................................................................... 3.45 Chung v The Queen (2007) 175 A Crim R 579 ............................................................................................. 8.140 Churchill v Walton [1967] 2 AC 224 ............................................................................................................. 8.150 xv

Principles of Criminal Law

Clark [1980] 2 A Crim R 90 ............................................................................................................................ 6.90 Clarkson and Lyon (1986) 24 A Crim R 54 .................................................................................................. 12.100 Claydon [2006] 1 Cr App R 20 ..................................................................................................................... 8.180 Clayton v The Queen; Hartwick v The Queen; Hartwick v The Queen (2006) 231 ALR 500 ...... 7.05, 7.110, 7.120, 7.135, 7.140 Cleary v Booth [1893] 1 QB 465 ................................................................................................................ 10.135 Clifford (1845) 2 Car & K 202 ...................................................................................................................... 7.105 Clough (1992) 64 A Crim R 451 ................................................................................................................... 7.150 Coco v The Queen (1994) 179 CLR 427 ......................................................................................... 2.240, 13.125 Coffin v Smith (1980) 71 Cr App R 221 ........................................................................................................ 10.70 Cohen (No 2) [2007] WASCA 279 .............................................................................................................. 11.195 Coleman v Power (2004) 220 CLR 1; 209 ALR 182; [2004] HCA 39 ............ 6.35, 11.210, 11.220, 13.145, 13.160 Collins v State Rail Authority (NSW) (1986) 5 NSWLR 209 ............................................................................. 3.50 Collins v Wilcock [1984] 1 WLR 1172 ...................................................................... 10.50, 10.70, 10.115, 10.140 Colonel Aird, Re; Ex parte Alpert (2004) 220 CLR 308 .................................................................................. 15.25 Colonial Petroleum Oil Pty Ltd, Ex parte; Re Byrne (1944) 44 SR (NSW) 306 .................................................. 3.50 Colosimo v DPP [2006] NSWCA 293; (2005) 64 NSWLR 645 ..................................................................... 13.215 Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46 .................................................. 14.200 Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 .......................... 1.20, 2.120 Conlon (1993) 69 A Crim R 92 ................................................................................................... 4.210, 6.30, 6.45 Connolly v Willis [1984] 1 NSWLR 373 ....................................................................................................... 13.210 Connors v Craigie (1994) 76 A Crim R 502 ................................................................................... 13.155, 13.165 Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385 .......................... 2.155 Cook’s Hotel Pty Ltd v Pope (1983) 34 SASR 292 ........................................................................................... 3.50 Coombes (1785) 1 Leach 388 ...................................................................................................................... 7.105 Coomer (1989) 40 A Crim R 417 ................................................................................................................. 9.155 Cooper v ICI Australia Operations Pty Ltd (1987) 31 A Crim R 67 ................................................................. 3.275 Cooper v McKenna; Ex parte Cooper [1960] Qd R 406 .................................................................................. 4.95 Cooper v The Queen (1979) 51 CCC (2d) 129 .............................................................................................. 4.55 Cooper (1846) 8 QB 533 ............................................................................................................................. 7.105 Cordwell v Carley (1985) 31 A Crim R 291 ..................................................................................................... 4.95 Coulter v The Queen (1988) 164 CLR 350 ................................................................................................. 10.100 Coward v Baddeley (1859) 4 H&N 478 ..................................................................................................... 10.115 Cox v Riley (1986) 83 Cr App R 54 ............................................................................................................. 15.250 Coyne v Dreyer (1991) 13 MVR 540 ............................................................................................................ 12.20 Crafter v Kelly [1941] SASR 237 ................................................................................................................... 7.180 Creek v Cairns Post Pty Ltd [2001] FCA 1007 ............................................................................................... 13.80 Crichton v Victorian Dairies Ltd [1965] VR 49 ............................................................................................... 3.285 Croton v The Queen (1967) 117 CLR 326 ....................................................................................... 12.25, 12.125 Crowe v Graham (1968) 121 CLR 375 ....................................................................................................... 11.230 Cruzan v Director, Missouri Dept of Health 497 US 261 (1990) ...................................................................... 9.90 Cufley v The Queen (1983) 78 FLR 359 ......................................................................................................... 5.10 Cundy v Le Cocq (1884) 13 QBD 207 ......................................................................................................... 3.255 Cunneen v Independent Commission Against Corruption [2014] NSWCA 421 ............................................. 8.145

D D (1997) 21 Crim LJ 40 ............................................................................................................................. 10.180 D’Arrigo (1991) 58 A Crim R 71 ................................................................................................................. 12.250 DPP v Blady [1912] 2 KB 89 ......................................................................................................................... 8.110 DPP v Camplin [1978] AC 705 ....................................................................................................................... 5.50 DPP v Carr (2001) 127 A Crim R 151 .......................................................................................................... 13.185 DPP v Doot [1973] AC 807 ................................................................................................................... 2.50, 2.60 DPP v Majewski [1977] AC 443 ................................................................................... 4.155, 4.165, 4.180, 10.55 DPP v McMaster (2008) 19 VR 191 .............................................................................................................. 9.250 DPP v Murdoch [1993] 1 VR 406 ............................................................................................................... 12.105 DPP v Newbury & Jones [1977] AC 500; [1976] 2 WLR 918 .............................................................. 9.140, 9.170 DPP v Nock [1978] AC 979 ............................................................................................................... 8.215, 8.220 DPP v Nock [1983] QB 1083 ........................................................................................................................ 8.220 DPP v Orum [1988] Crim LR 848 ............................................................................................................... 13.180 DPP v Polyukhovich (No 2) (1993) 171 LSJS 1 .............................................................................................. 15.60 DPP v Ray [1974] AC 370 ........................................................................................................................... 12.285 DPP v Rogers [1953] 2 All ER 644 ................................................................................................................. 10.50 DPP v Shannon [1975] AC 717 ......................................................................................................... 2.160, 8.120 DPP v Smith [1961] AC 290 .............................................................................................................. 9.120, 10.80 DPP v Smith [2006] 2 All ER 16 .................................................................................................................... 10.80 xvi

Table of Cases

DPP v Stonehouse [1978] AC 55; [1978] 168 ER 773 ........................................................ 7.105, 8.35, 8.40, 8.50 DPP v Withers [1975] AC 842 ........................................................................................ 8.85, 8.105, 8.130, 8.135 DPP (Cth) v Tan [2003] NSWSC 717 .......................................................................................................... 14.200 DPP (NT) v WJI (2004) 219 CLR 43; 210 ALR 276 .............................................................................. 2.25, 11.145 DPP (Northern Ireland) v Lynch [1975] AC 653; [1975] 2 WLR 641; [1975] 1 All ER 913 ........... 6.70, 6.80, 6.120, 6.165, 7.65 DPP (Northern Ireland) v Maxwell [1978] 3 All ER 1140; 1 WLR 1350 ........................... 7.65, 7.75, 7.150, 15.190 DPP (UK) v Beard [1920] AC 479 ...................................................................................................... 4.155, 4.200 DPP (UK) v Morgan [1976] AC 182 .................................... 2.175, 3.175, 4.180, 11.145, 11.150, 11.160, 11.175 DPP (Vic) v Cook [2015] VCC 895 ................................................................................................................ 11.75 DPP (Vic) v Warne [2014] VCC 733 .............................................................................................................. 11.75 DPP (Vic) (Reference No 1 of 1996) [1998] 3 VR 352 ............................................................................ 3.35, 3.50 DPP Reference (No 1 of 1991) (1992) 60 A Crim R 43 .................................................................................... 6.10 DPP Reference (No 1 of 1992) (1993) 65 A Crim R 197 ................................................................................ 11.40 DPP Reference No 1 of 2002 [2002] NTCCA 11 ......................................................................................... 11.160 Da Costa v The Queen (1968) 118 CLR 186 ................................................................................................... 5.70 Daire v Stone (1991) 56 SASR 90 ............................................................................................................... 13.155 Daniels v The Queen (1989) 1 WAR 435 ..................................................................................................... 11.145 Darkan v The Queen, Deemal-Hall v The Queen and McIvor v The Queen (2006) 227 CLR 373 ........ 7.120, 9.120 Darwin Bakery Pty Ltd v Sully (1981) 36 ALR 371 ......................................................................................... 3.275 Dau v Emanuele (unreported, 4/12/1995, FCA) ......................................................................................... 14.220 Davis v Bates (1986) 43 SASR 149 ................................................................................................................ 3.250 Davis v Chief of Army (2011) 278 ALR 199 .................................................................................... 10.140, 10.165 Davis v Lisle [1936] 2 KB 434 ....................................................................................................................... 10.70 Davis, Ex parte (1871) 24 LT 547 ................................................................................................................. 13.20 Dawson v The Queen (1961) 106 CLR 1 ........................................................................................... 2.180, 7.155 Dearnley v The King [1947] St R Q 51 ............................................................................................... 4.200, 4.220 Deepak Gulati v State of Haryana (2013) 7 SCC 675 .................................................................................. 11.125 Defiance Enterprises Pty Ltd v Collector of Customs (Queensland) (1990) 96 ALR 697 ................................. 3.235 Dennis v Pight (1968) 11 FLR 458 ......................................................................................................... 7.50, 7.65 Devine v The Queen (1967) 119 CLR 506 .................................................................................................... 13.20 Devine v The Queen [1982] Tas R 155 ......................................................................................................... 10.80 Dharmasena v The King [1951] AC 1 ........................................................................................................... 8.120 Dickson v The Queen (2010) 241 CLR 491 .................................................................................................... 8.95 Dietrich v The Queen (1992) 177 CLR 292 ............................................. 1.145, 2.80, 2.130, 2.135, 2.145, 2.150 Dilip Kumar v State of Bihar (2005) AIR SC 203 .......................................................................................... 11.125 Director General of Fair Trading v Pioneer Concrete (UK) Ltd [1995] 1 AC 456 .............................................. 3.50 Doney v The Queen (1990) 171 CLR 207 .................................................................................................... 2.190 Donnelly v Jackman [1970] 1 All ER 987 .......................................................................................... 10.70, 10.115 Doorson v The Netherlands (1996) 22 EHRR 330 ......................................................................................... 2.135 Dover v Doyle (2012) 34 VR 295 .................................................................................... 4.85, 4.95, 4.140, 4.170 Dowey (1868) 11 Cox 115 .......................................................................................................................... 7.105 Downey v The Queen [1992] 2 SCR 10 ...................................................................................................... 14.125 Du Cros v Lambourne [1907] 1 KB 40 ........................................................................................................... 7.50 Dudgeon v United Kingdom [1981] ECHR 7525/76; 45 Eur Ct HR (ser A) (1981); 4 Eur HR Rep 149 (1982) ......................................................................................................................................... 2.150, 2.250 Dudley and Stephens (1884) 14 QBD 273 ................................................................................................... 6.150 Duffy v The Queen [1981] WAR 72 ................................................................................................... 4.180, 10.55 Dugan v Mirror Newspapers Ltd (1979) 142 CLR 583 .................................................................................... 2.95 Duncan v Jones [1936] 1 KB 218 ...................................................................................................... 10.70, 13.85 Dunn v The Queen (No 7) [2013] WASC 305 ............................................................................................... 8.190 Duvuvier v The Queen (1982) 29 SASR 217 ............................................................................................... 10.130 Dziduch v The Queen (1990) 47 A Crim R 378 .............................................................................................. 6.60

E E (A Child) v The Queen (1994) 76 A Crim R 343 ....................................................................................... 13.180 Eatock v Bolt [2011] FCA 1103 ..................................................................................................................... 13.80 Edelbrand Pty Ltd v H M Australia Holdings Pty Ltd [2012] NSWCA 31 .......................................................... 3.50 Edwards v Raabe [2000] VSC 471 ................................................................................................................ 13.85 Edwards v The Queen [1973] AC 648 ................................................................................................... 5.10, 5.35 Electrolux Home Products Pty Ltd v Delap Impex Ltd [2013] FCA 600 ........................................................... 3.50 Emery (1978) 18 A Crim R 49 ............................................................................................. 6.70, 6.75, 6.80, 6.90 Emmett v Lyne (1805) 1 Bos & PNR 255 .................................................................................................... 10.185 English (1993) 68 A Crim R 96 ..................................................................................................................... 8.205 Entick v Carrington (1765) 95 ER 807 .......................................................................................................... 2.240 xvii

Principles of Criminal Law

Environment Protection Agency v N (1992) 26 NSWLR 352 ......................................................................... 3.250 Evans v State of New South Wales [2008] FCAFC 130 ................................................................................ 13.210 Evenett (1987) 24 A Crim R 330 ................................................................................................................. 12.105 Evgeniou v The Queen [1965] ALR 209 ........................................................................................................ 9.175 Excell v Dellaca (1987) 26 A Crim R 410 .................................................................................................... 14.155

F F v Padwick [1959] Crim LR 439 .................................................................................................................... 3.25 F (mental patient: sterilisation), Re [1990] 2 AC 1 .............................................. 6.150, 6.165, 6.175, 6.180, 9.90 FP v The Queen (2012) 224 A Crim R 82 .................................................................................................... 11.165 Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439 .......... 3.360, 3.365, 3.370, 10.20, 10.25, 10.30, 10.50, 10.55 Fairclough v Whipp [1951] 2 All ER 834 ....................................................................................................... 10.50 Falconer (1989) 46 A Crim R 83 ..................................................................................................................... 4.90 Falstein, Ex parte; Re Maher (1948) 49 SR(NSW) 133 ..................................................................................... 3.50 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 ..................................................................... 12.65 Fardon v Attorney-General (Qld) (2004) 223 CLR 575 .......................................................................... 1.85, 4.80 Fenton (1975) 61 Cr App R 261 ...................................................................................... 5.85, 5.90, 5.105, 5.165 Ferguson v The Queen [1979] 1 All ER 877 .................................................................................................. 2.180 Ferguson v Weaving [1951] 1 KB 814 ............................................................................................................ 7.25 Fernando (1992) 76 A Crim R 58 ................................................................................................................. 2.220 Field v Receiver of Metropolitan Police [1907] 2 KB 853 ............................................................................. 13.230 Field (1964) 48 Cr App R 335 ...................................................................................................................... 8.145 Filmer v Barclay [1994] 2 VR 269 ...................................................................................................... 3.205, 4.180 Fisher v Bennett (1987) 85 FLR 469 ........................................................................................................... 12.280 Fitzgerald v Kennard (1995) 38 NSWLR 184 .............................................................................................. 11.160 Fitzgerald v Montoya (1989) 16 NSWLR 164 ............................................................................................. 13.205 Fitzgerald (1999) 106 A Crim R 215 ........................................................................................................... 10.100 Flatman (1880) 14 Cox 396 ......................................................................................................................... 7.105 Flyger v Auckland City Council [1979] 1 NZLR 161 ...................................................................................... 4.195 Foley v Padley (1984) 154 CLR 349 ........................................................................................................... 13.145 Forbes v Traders’ Finance Corporation Ltd (1972) 126 CLR 429 ................................................................. 14.195 Forbutt v Blake [1981] 51 FLR 465 .............................................................................. 13.20, 13.70, 13.85, 13.90 Fraser v Dryden’s Carrying & Agency Co Pty Ltd [1941] VLR 103 .......................................................... 3.45, 3.50 Fraser v County Court of Victoria and Anor [2017] VSC 83 (21 March 2017) .............................................. 13.160 Freeman v CT Warne Pty Ltd [1947] VLR 279 ................................................................................................. 3.50 Fry v The Queen (1992) 58 SASR 424 ............................................................................................................ 6.35

G GBD v The Queen [2011] VSCA 437 .............................................................................................. 11.155, 11.160 GJ Coles and Co Ltd v Goldsworthy [1985] WAR 183 ............................................................... 3.50, 3.235, 3.290 Gallasso [1993]459 .................................................................................................................................... 12.100 Gardenal-Williams v The Queen [1989] Tas R 62 .......................................................................................... 5.140 Gardner (1979) 71 Cr App R 13 ................................................................................................................... 10.70 Gardner (1989) 42 A Crim R 279 ................................................................................................................... 5.35 Gardner; Re BWV (2003) 7 VR 487 ................................................................................................................. 9.95 Gaskin v United Kingdom (1990) 12 EHRR 36 .............................................................................................. 2.255 Gedeon and Dowe v Commissioner of the New South Wales Crime Commission [2008] HCA 43 ............... 14.220 Geoffrey Davis v DPP (SC No 782 of 1994) .................................................................................................. 2.135 Georgiadis v The Queen (2002) 11 Tas R 137 ............................................................................................... 8.105 Gerakiteys v The Queen (1984) 153 CLR 317 ................................................... 8.105, 8.110, 8.120, 8.130, 8.150 Gherashe v Boase [1959] VR 1 .......................................................................................................... 3.280, 3.290 Gibbins v The Queen (1918) 13 Cr App R 134 .................................................................................... 3.85, 9.165 Gibbon v Fitzmaurice [1986] Tas R 137 ........................................................................................................ 3.290 Giles (1827) 1 Mood CC 166 ....................................................................................................................... 7.105 Gillan and Quinton v The United Kingdom (unreported, 12/1/2010, EctHR, Application No 4158/05) ...... 15.150 Gillard v The Queen (2003) 219 CLR 1 ....................................................................... 7.120, 7.125, 7.135, 7.145 Giller v Procopets [2004] VSC 113 ............................................................................................................... 2.240 Giller v Procopets [2008] VSCA 236 ........................................................................................................... 11.205 Gilson v The Queen (1991) 172 CLR 353 ................................................................................................... 12.245 Giorgianni v The Queen (1985) 156 CLR 473 ...... 3.175, 3.200, 7.25, 7.50, 7.60, 7.65, 7.70, 7.140, 8.75, 8.150, 8.185 Given v CV Holland (Holdings) Pty Ltd (1977) 15 ALR 439 ........................................................................... 3.275 xviii

Table of Cases

Goddard v Osborne (1978) 18 SASR 481 ............................................................. 6.80, 6.90, 6.110, 6.125, 6.135 Gollan v Nugent (1987) 8 NSWLR 166 .......................................................................................................... 7.65 Google Inc v Vidal-Hall & Ors [2015] EWCA Civ 311 .................................................................................... 2.240 Google Spain SL Google Inc v Agencia Española de Protección de Datos, Mario Costeja González (Court of Justice of the European Union, C–131/12, 13 May 2014) ................................................................... 2.250 Gow v Davies (1992) A Crim R 282 .............................................................................................................. 4.210 Graham v The Queen [1984] VR 649 ............................................................................................................. 2.60 Grassby v The Queen (1989) 168 CLR 1 ....................................................................................................... 2.115 Gray v Cash Converters International Ltd (2014) 100 ACSR 29 ...................................................................... 7.25 Green v Sergeant [1951] VR 500 .................................................................................................................. 3.280 Green v The Queen (1971) 126 CLR 28 ....................................................................................................... 2.180 Green v The Queen (unreported, 8/11/1995, NSWCCA) ................................................................................ 5.55 Green v The Queen (1997) 191 CLR 334 ..................................................................................... 5.15, 5.55, 5.60 Green v The Queen [1999] NSWCCA 97 ........................................................................................................ 5.55 Griffin v Marsh (1994) 34 NSWLR 104 ......................................................................................................... 3.285 Grosse v Purvis [2003] QDC 151 .................................................................................................................. 2.240 Guardianship of Schiavo, In Re 780 So 2d 176 (Fla 2d DCA 2001) ................................................................. 9.95

H H Ltd v J (2010) 107 SASR 352 .................................................................................................................... 9.190 HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574 .......................................................................................... 2.165 HM Advocate v Dingwall (1867) 5 Irvine 446 ........................................................................................ 5.05, 5.80 Haas v The Queen [1964] Tas SR 1 ............................................................................................................... 8.205 Haggie v Meredith (1993) 9 WAR 206 .......................................................................................................... 4.170 Hall v Fonceca [1983] WAR 309 ................................................................................................................... 10.55 Hall v Rossi [1830] NSWSC 16 ..................................................................................................................... 2.115 Hall (1988) 36 A Crim R 368 .......................................................................................................................... 4.95 Hamilton v Whitehead (1988) 63 ALJR 80 ...................................................................................................... 3.50 Hamilton-Byrne, Re [1995] 1 VR 129 .............................................................................................................. 2.70 Hampton v United States 425 US 484 (1976) ............................................................................................ 14.215 Handlen v The Queen; Paddison v The Queen (2011) 245 CLR 282 .................................................... 7.25, 7.115 Handmer v Taylor [1971] VR 308 ................................................................................................................. 3.290 Handyside v United Kingdom (1976) 1 EHRR 737 ...................................................................................... 11.235 Harling (1938) 26 Cr App R 127 .................................................................................................................. 11.50 Hart v The Queen (2003) 27 WAR 441 ........................................................................................................... 5.15 Haughton v Smith [1975] AC 476 .......................................................................................... 3.05, 8.205, 12.250 Hausmann v Shute [2007] ACTCA 5 ............................................................................................................. 2.170 Hawkins v The Queen (1994) 179 CLR 500 .................................................................................................. 4.150 Hawthorn (Department of Health) v Morcam Pty Ltd (1992) 29 NSWLR 120 .................................... 3.270, 3.275 Haynes v MOT (1988) 3 CRNZ 587 ............................................................................................................. 4.100 Hayward-Jackson v Walshaw [2012] WASC 107 ............................................................................................ 10.70 Haywood v Mumford (1908) 7 CLR 133 .................................................................................................... 13.205 He Kaw Teh v The Queen (1985) 157 CLR 523 ..... 2.35, 2.175, 3.180, 3.185, 3.235, 3.245, 3.250, 3.255, 3.270, 3.285, 3.290, 3.300, 8.75, 9.115, 10.55, 11.145, 13.155, 14.135, 14.140 Health and Community Services (NT), Department of v JWB (Marion’s case) (1992) 175 CLR 218 .............. 6.180, 10.155 Heaney (1992) 61 A Crim R 241 .................................................................................................................. 7.145 Helmhout v The Queen (1980) 49 FLR 1 ......................................................................................... 4.180, 10.130 Henley 474 A 2d 1115 (1984) ...................................................................................................................... 8.200 Herbert v The Queen (1982) 62 FLR 302 ..................................................................................................... 4.180 Heron v The Queen (2003) 197 ALR 81 ......................................................................................................... 5.45 Herring v Boyle (1834) 1 Cr M & R 377 ..................................................................................................... 10.185 Hewitt (1997) 1 VR 301 ............................................................................................................................... 7.105 Heywood v Canty (unreported, 21/1/1993, VSC, Harper J, 11109 of 1991) ................................................. 3.330 Hicking v Laneyrie (1991) 21 NSWLR 730 .................................................................................................... 3.270 Hill v Baxter [1958] 1 QB 277 ........................................................................................................... 2.185, 4.140 Hill (1981) 3 A Crim R 397 ............................................................................................................................. 5.75 Hinz (1986) 24 A Crim R 185 ......................................................................................................................... 5.85 Hitchens v The Queen [1962] Tas SR 35 ......................................................................................................... 4.65 Hoch v The Queen (1988) 165 CLR 292 ........................................................................................... 2.175, 2.180 Hodges (1985) 19 A Crim R 129 .................................................................................................................... 5.95 Hogan v Sawyer; Ex parte Sawyer [1992] 1 Qd R 32; (1990) 51 A Crim R 46 ............................................... 3.240 Holland v The Queen (1993) 67 ALJR 946 .................................................................................................... 11.45 Holman v The Queen [1970] WAR 2 ................................................................................................ 4.180, 11.110 Holmes v DPP [1946] AC 588 ........................................................................................................................ 5.60 xix

Principles of Criminal Law

Hortin v Rowbottom (1993) 68 A Crim R 381 ............................................................................................ 13.180 Houghton [2006] WASCA 143; (2006) 32 WAR 260 ................................................................................... 11.195 Howell v Doyle [1952] VLR 128 ...................................................................................................................... 7.30 Hubbard v Pitt [1976] QB 142 ................................................................................................................... 13.205 Hubert (1993) 67 A Crim R 181 ................................................................................................................... 10.35 Hudson v Entsch (2005) 216 ALR 188 .......................................................................................................... 8.180 Hugget’s Case (1666) Kel 59; 84 ER 1082 ...................................................................................................... 5.30 Hughes (1989) 42 A Crim R 270 .................................................................................................................... 4.95 Hui Chi-ming v The Queen [1991] 3 WLR 495 .................................................................................. 7.130, 7.135 Hulett v Laidlaw (1996) 89 A Crim R 240 ..................................................................................................... 13.20 Hunter v Johnson (1884) 13 QBD 225 ....................................................................................................... 10.185 Hutton v The Queen [1986] Tas R 24 ............................................................................................................. 5.70 Huynh v The Queen; Duong v The Queen, Sem v The Queen (2013) 295 ALR 624 ........................... 7.110, 7.120 Hyam v DPP [1975] AC 55 ..................................................................................................... 3.180, 3.185, 10.80

I I v DPP [2001] 2 All ER 583 ........................................................................................................................ 13.215 IPH v Chief Constable of South Wales [1987] Crim LR 42 ............................................................................... 3.25 Iannella v French (1968) 119 CLR 84 ..................................................................................... 3.285, 3.315, 5.140 Ilich v The Queen (1987) 162 CLR 110 ................................................................. 12.20, 12.105, 12.180, 12.185 Innes v Weate [1984] Tas SR 14 .................................................................................................................... 13.60 Invicta Plastics Ltd v Clare [1976] Crim LR 131 .................................................................................... 3.40, 8.180 Isaac, Tajeddine & Elachi (1996) 87 A Crim R 513 .......................................................................................... 2.70

J JBH and JH (minors) v O’Connell [1981] Crim LR 632 .................................................................................... 3.25 JM (a minor) v Runeckles (1984) 79 Cr App R 255 ......................................................................................... 3.25 Jabarula v Poore (1989) 42 A Crim R 479 .............................................................................................. 5.30, 5.60 Jackson v Butterworth [1946] VLR 330 ......................................................................................................... 3.325 Jacobellis v Ohio 378 US 184 (1964) ............................................................................................. 11.230, 12.290 Jacobson v United States 503 US 540 (1992) ............................................................................................. 14.215 Jadurin v The Queen (1982) 44 ALR 424 ...................................................................................................... 2.225 Jago v District Court (NSW) (1989) 168 CLR 23 ....................................................................... 2.80, 2.125, 2.130 James v The Queen (2014) 306 ALR 1 ........................................................................................................ 10.100 Jamieson and Brugmans v The Queen (1993) 177 CLR 574 ....................................................................... 12.275 Jeb Bush v Michael Schiavo 885 So 2d 321 (Fla 2004) ................................................................................... 9.95 Jeffrey v The Queen [1982] Tas R 199 .................................................................................................... 4.45, 4.65 Jeffs v Graham (1987) 8 NSWLR 292 ...................................................................................... 4.95, 4.100, 13.155 Jervis (1991) 56 A Crim R 374 ...................................................................................................................... 10.80 Jiminez v The Queen (1992) 173 CLR 572 .................................................................... 3.360, 3.370, 4.95, 9.185 John Henshall (Quarries) Ltd v Harvey [1965] 2 QB 233 ................................................................................. 3.40 Johns v The Queen (1980) 143 CLR 108 ................................................................................ 7.120, 7.130, 7.135 Johnson v The Queen (1976) 136 CLR 619 ........................................................................................... 5.10, 5.60 Johnson v Western Australia [2009] WASCA 71 ............................................................................................. 6.170 Johnson v Youden [1950] 1 KB 544 ................................................................................................................ 7.70 Johnson (1805) 29 St Tr 81 .......................................................................................................................... 7.105 Jolly v The Queen [2009] NSWDC 212 ....................................................................................................... 13.185 Jones (1986) 22 Cr App R 42 ................................................................................................... 4.200, 5.90, 5.105 Jones (1990) 91 Cr App R 351 .............................................................................................................. 8.40, 8.50 Jones and Mirrless (1977) 65 Cr App R 250 .................................................................................................... 7.45 Jordan v Burgoyne [1963] 2 WLR 1045 ........................................................................................................ 13.75

K K v Minister for Youth and Community Services [1982] 1 NSWLR 311 ............................................... 6.150, 9.225 K v T [1983] 1 Qd R 396 .............................................................................................................................. 9.225 Kable v DPP (NSW) (1996) 189 CLR 51 .............................................................. 1.85, 2.25, 4.80, 14.240, 15.275 Kamara v DPP [1974] AC 104 .............................................................................................. 8.130, 8.150, 13.200 Kaminski v The Queen [1975] WAR 143 ....................................................................................................... 4.180 Kaporonovski v The Queen (1973) 133 CLR 209 ........................................................................................ 10.130 Karakatsanis v Racing Victoria Ltd [2013] VSC 434 ................................................................................ 8.35, 8.45 Kay v Butterworth (1945) 61 TLR 452 .......................................................................................................... 3.105 xx

Table of Cases

Kay (1857) Dears & B 231 ........................................................................................................................... 7.105 Kearon v Grant [1991] 1 VR 321 ....................................................................................................... 3.260, 3.270 Keft v Fraser (unreported, 21/4/1986, WASC, 6251) .................................................................................. 13.180 Kehoe v Dacol Motors Pty Ltd; Ex parte Dacol Motors Pty Ltd [1972] Qd R 59 ............................................... 3.50 Kenlin v Gardiner [1967] 2 QB 510 .............................................................................................................. 10.70 Kennison v Daire (1985) 38 SASR 404 .......................................................................................................... 12.20 Kennison v Daire (1986) 160 CLR 129 ....................................................................................................... 12.105 Khammash v Rowbottom (1989) 51 SASR 172 ................................................................................. 3.285, 3.315 King v The Queen (1986) 161 CLR 423 ........................................................................................................ 7.110 King v The Queen (2012) 245 CLR 588 .................................................................... 9.160, 9.175, 9.185, 10.100 Kingdon v Western Australia [2012] WASCA 74 .......................................................................................... 12.135 Kingswell v The Queen (1985) 159 CLR 264 .................................................................................................. 2.90 Klass v Federal Republic of Germany (1978) 2 EHRR 214 .............................................................................. 2.245 Knight v The Queen (1992) 175 CLR 495 ...................................................................................................... 8.75 Knight (1988) 35 A Crim R 314 ................................................................................... 10.20, 10.25, 10.30, 10.40 Knuller (Publishing and Printing Promotions) Ltd v DPP [1973] AC 435 ............................................ 8.130, 8.135 Kowbel v The Queen [1954] 4 DLR 337 ....................................................................................................... 8.110 Kristos (1989) 39 A Crim R 86 ...................................................................................................................... 8.205 Kroon v The Queen (1990) 55 SASR 476 ....................................................................................................... 4.95 Kruslin v France (1990) 12 EHRR 547 ........................................................................................................... 2.245 Kural v The Queen (1987) 162 CLR 502 .......................................................................................... 3.200, 14.140 Kuru v State of New South Wales (2008) 236 CLR 1 .......................................................................... 13.15, 13.35 Kwaku Mensah v The Queen [1946] AC 83 .................................................................................................. 9.140 Kwok Ming v The Queen (No 1) [1963] HKLR 349 ....................................................................................... 3.190

L La Fontaine v The Queen (1976) 136 CLR 62 .................. 2.175, 2.180, 3.180, 3.205, 3.215, 4.180, 9.115, 10.55 Lam (2005) 159 A Crim R 467 ....................................................................................................................... 7.35 Lam (2008) 185 A Crim R 453 ....................................................................................................................... 7.45 Lamb v Toledo-Berkel Pty Ltd [1969] VR 343 .................................................................................................. 3.50 Lamperd, Re (1983) 63 FLR 470 ................................................................................................................... 9.175 Lanciana (1996) 84 A Crim R 268 ............................................................................................. 6.85, 6.115, 6.135 Lang (1975) 62 Cr App R 50 ........................................................................................................................ 11.50 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 ............................................................. 13.160 Larner v Dorrington (1993) MVR 75 ................................................................................................. 6.165, 6.175 Laskey, Jaggard and Brown v United Kingdom (1997) 24 EHRR 39 ....................................... 10.165, 11.15, 11.30 Lavin v Albert [1982] AC 546 ......................................................................................................................... 6.20 Lawless v The Queen (1979) 142 CLR 659 ................................................................................................... 2.115 Lawrence v Metropolitan Police Commissioner [1972] AC 626 ................................................................... 12.100 Leaman v The Queen [1986] Tas R 223 ........................................................................................................ 7.175 Lean and Aland (1993) 66 A Crim R 296 ........................................................................................................ 6.55 Lee v New South Wales Crime Commission (2013) 251 CLR 196 ............................................................... 14.125 Lee v The Queen (1917) 13 Cr App R 39 ............................................................................................. 3.85, 9.165 Lee (1994) 76 A Crim R 271 ......................................................................................................................... 8.105 Lee Chun-Chuen v The Queen [1963] AC 220 ...................................................................................... 5.10, 5.70 Lees v Visser (2000) 9 Tas R 103 ................................................................................................................... 10.40 Lenard v The Queen (1992) 57 SASR 164 .................................................................................................... 3.330 Leonard v Morris (1975) 10 SASR 528 .............................................................................................. 3.180, 10.55 Lergesner v Carroll (1990) 49 A Crim R 51 .................................................................................... 10.140, 10.160 Lewis v Crafter [1942] SASR 30 ...................................................................................................................... 3.40 Liangsiriprasert v Government of the USA [1991] 1 AC 225 ........................................................................... 2.70 Libman v The Queen (1985) 21 CCC (3d) 206; [1985] 2 SCR 178 ................................................................. 2.70 Likiardopoulos v The Queen (2010) 30 VR 654 .............................................................................................. 7.25 Likiardopoulos v The Queen (2012) 247 CLR 265; [2012] HCA 37 ........................................... 7.10, 7.120, 7.155 Lim Chin Aik v The Queen [1963] AC 160 ................................................................. 3.250, 3.270, 3.335, 14.140 Limbo v Little (1989) 45 A Crim R 61 ........................................................................................................... 6.170 Linder v US 268 US 5 (1925) ....................................................................................................................... 14.80 Lindley v Rutter (1980) 72 Cr App R 1 .......................................................................................................... 10.70 Lindsay v The Queen (2015) 255 CLR 272 ................................................................................... 5.10, 5.40, 5.55 Linehan v Australian Public Service Association (1983) 67 FLR 412 ................................................................. 3.50 Lipohar v The Queen (1999) 200 CLR 485 ................................................................................. 2.60, 2.70, 15.35 Llandilo Staircases Pty Ltd v WorkCover Authority of New South Wales (Inspector Parsons) [2001] NSWIRComm 64 .................................................................................................................................... 3.270 Lodhi v The Queen (2006) 199 FLR 303 ......................................................................................................... 8.30 Logdon v DPP [1976] Crim LR 121 ........................................................................................ 10.35, 10.40, 10.55 xxi

Principles of Criminal Law

Longman v R (1989) 168 CLR 79 ............................................................................................................... 11.180 Lotus Case (1927) PCIJ Series A No 10 ........................................................................................................... 2.70 Low v The Queen (1978) 23 ALR 616 ......................................................................................................... 12.285 Lowdens v Keaveny [1903] 2 IR 82 ............................................................................................................ 13.200 Luong v DPP (Cth) [2013] VSCA 296 ........................................................................................................... 6.175

M M’Naghten’s case (1843) 10 Cl and Fin 200 ......................................................................................... 4.15, 4.20 Mabo v Queensland (No 2) (1992) 175 CLR 1 ......................................................................... 2.50, 2.145, 2.210 MacLeod v Attorney-General (NSW) [1891] AC 455 ....................................................................................... 2.45 MacPherson v Beath (1975) 12 SASR 174 .................................................................................................... 10.35 MacPherson v Brown (1975) 12 SASR 184 ...................................................................................... 10.55, 10.185 Macklin and Murphy’s Case (1838) 2 Lew CC 225 ......................................................................................... 7.80 Macleod v The Queen (2003) 214 CLR 230 ......................................................................... 12.35, 12.65, 12.100 Macpherson v Beath (1975) 12 SASR 174 ...................................................................................................... 7.65 Mahadeo v The King [1936] 2 All ER 813 ..................................................................................................... 7.155 Maher v Musson (1934) 52 CLR 100 ............................................................................................................ 3.280 Malette v Shulman (1990) 67 DLR (4th) 321 ...................................................................................... 6.180, 9.45 Malone v Berezowski (1993) 161 LSJS 227 ................................................................................................... 15.60 Mamote-Kulang of Tamagot v The Queen (1964) 111 CLR 62 ............................................... 3.225, 9.175, 10.35 Mancini v DPP [1942] AC 1 .......................................................................................................................... 2.175 Mankotia (2001) 120 A Crim R 492 ................................................................................................................ 5.45 Manley (1844) 1 Cox 104 ............................................................................................................................ 7.105 Mansell v Griffin [1908] 1 KB 160 .............................................................................................................. 10.135 Manton (2002) 132 A Crim R 249 ................................................................................................................ 10.70 Maroney v The Queen (2003) 216 CLR 31 ................................................................................................. 14.155 Martin v The Queen [1963] Tas SR 103 ........................................................................................................ 3.240 Martin (1983) 9 A Crim R 376 ...................................................................................................................... 4.170 Martin (1984) 16 A Crim R 87 ............................................................................................................. 4.95, 4.180 Martin (1989) 88 Cr App R 343 ................................................................................................................... 6.165 Martin (1995) 85 A Crim R 587 ........................................................................................................... 3.190, 9.30 Martin (No 2) (1996) 86 A Crim R 133 ................................................................................................ 3.190, 9.30 Marwey v The Queen (1977) 138 CLR 630 .................................................................................................. 2.175 Masciantonio v The Queen (1995) 183 CLR 58 .......................................................... 5.10, 5.45, 5.50, 5.60, 5.65 Masnec v The Queen [1962] Tas SR 354 ........................................................................................................ 6.55 Masterson and Cooper v Holden [1986] Crim LR 688 ................................................................................ 11.220 Matheson (1958) 42 Cr App R 145 .............................................................................................................. 5.165 Mathews v Fountain [1982] VR 1045 ......................................................................................................... 12.280 Mattingley v Tuckwood (1988) 88 ACTR 1 ................................................................................................. 12.275 Matusevich v The Queen (1977) 137 CLR 633 ....................................................................... 7.105, 7.110, 7.130 Mawji v The Queen [1957] AC 126 .............................................................................................................. 8.110 May v O’Sullivan (1955) 92 CLR 654 ........................................................................................................... 2.175 Mayer v Marchant (1973) 5 SASR 567 ......................................................................................................... 3.280 Mazeau (1840) 9 C & P 676 ........................................................................................................................ 7.105 McArdle v Wallace [1964] Crim LR 467 ........................................................................................................ 10.70 McAuliffe v The Queen (1995) 183 CLR 108 .......................................................................... 7.120, 7.130, 7.135 McAvaney v Quigley (1992) 58 A Crim R 457 ............................................................................................ 10.160 McAvoy v Gray [1946] ALR 459 .................................................................................................................... 9.220 McBride v Turnock [1964] Crim LR 456 ....................................................................................................... 10.70 McCabe v British American Tobacco Services Ltd [2002] VSC 73 .................................................................... 3.60 McCarthy and Ryan (1993) 71 A Crim R 395 .................................................................................................. 7.75 McConnell (1993) 69 A Crim R 39 ............................................................................................................... 3.200 McCullough v The Queen [1982] Tas R 43; (1982) 6 A Crim R 274 .......................................... 4.180, 4.210, 6.55 McDermott v Director of Mental Health; Ex parte Attorney-General (Qld) (2007) 175 A Crim R 461 ............. 5.85, 5.115 McGarry v The Queen (2001) 207 CLR 121 ................................................................................................... 4.80 McGhee v The Queen (1995) 183 CLR 82 ............................................................................. 8.75, 8.205, 10.130 McHenry v Stewart (unreported, 14/12/1976, WACA) ................................................................................. 6.165 McInnis v The Queen (1979) 143 CLR 575 .................................................................................................. 2.155 McKenzie v GJ Coles and Co Ltd [1986] WAR 224 .......................................................................................... 3.50 McKinney v The Queen (1990) 171 CLR 468 ................................................................................................. 2.80 McLean (1981) 5 A Crim R 36 ........................................................................................................................ 7.65 McLeod v United Kingdom (1999) 27 EHRR 493 ......................................................................................... 13.35 McLiney v Minster [1911] VLR 347 .................................................................................................... 6.35, 10.120 McMaster v The Queen (1994) 4 NTLR 92 ................................................................................................... 3.240 xxii

Table of Cases

McPherson v Cairn [1977] WAR 28 .............................................................................................................. 3.235 Medical Board of Australia v Patel [2015] QCAT 133 .................................................................................... 9.180 Mee v Cruickshank (1902) 20 Cox CC 210 ................................................................................................ 10.185 Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44 ..................................................................... 10.185 Meissner v The Queen (1995) 184 CLR 132 ................................................................................................. 8.155 Melbourne Corporation v Barry (1922) 31 CLR 174 ................................................................................... 13.145 Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 ............................... 3.50 Meyrick and Ribuffi (1929) 21 Cr App R 94 .................................................................................................. 8.105 Michael v State of Western Australia (2008) 183 A Crim R 348; [2008] WASCA 66 ......................... 11.110, 11.115 Michael (1840) 9 C & P 356 ........................................................................................................................ 7.105 Middap (1992) 63 A Crim R 434 .................................................................................................................. 7.175 Milicevic v Campbell (1975) 132 CLR 307 ................................................................................................... 14.95 Miller v Miller (2011) 242 CLR 446 ................................................................................................................ 7.90 Miller v The Queen (1980) 32 ALR 321 ........................................................................................................ 7.145 Miller v The Queen; Smith v The Queen; Presley v DPP (SA) (2016) 334 ALR 1; [2016] HCA 30 .......... 7.05, 7.120, 7.135 Milloy v The Queen [1993] 1 Qd R 298 ......................................................................................................... 4.95 Mills (1963) 47 Cr App R 49 .......................................................................................................................... 8.95 Mills (1985) 17 A Crim R 411 ......................................................................................................................... 7.65 Ministry of Transport v Crawford [1988] 1 NZLR 762 ................................................................................... 4.195 Minogue v Briggs (1987) 79 ALR 525 .......................................................................................................... 3.275 Moffa v The Queen (1977) 138 CLR 601 ...................................... 2.175, 5.10, 5.20, 5.25, 5.35, 5.40, 5.65, 5.70 Mogul Steamship Company v McGregor, Gow and Co [1892] AC 25 ............................................................ 8.90 Mohan v The Queen [1967] 2 AC 187 ......................................................................................................... 7.120 Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 ................................................. 2.150, 2.170, 14.95 Moore v Hussey (1609) Hob 93; 80 ER 243 ................................................................................................. 6.140 More v The Queen [1963] 3 CCC 289 ......................................................................................................... 4.150 Morgan v Babcock and Wilcox Ltd (1929) 43 CLR 163 .................................................................................. 3.45 Moriarty v Brooks (1834) 6 C & P 684 ......................................................................................................... 10.80 Morris v Tolman [1923] 1 KB 166 ..................................................................................................... 7.100, 7.110 Moss v McLachlan [1984] IRLR 76 ................................................................................................................ 13.70 Mouse (1608) 77 ER 1341 ........................................................................................................................... 6.140 Mousell Bros Ltd v London and Northwestern Railway Co [1917] 2 KB 836 ................................................... 3.45 Mraz v The Queen (1955) 93 CLR 493 ......................................................................................................... 9.130 Mulcahy v The Queen (1868) LR 3 HL 306 .......................................................................................... 8.85, 8.130 Munda v Western Australia (2013) 249 CLR 600 .......................................................................................... 2.225 Mungatopi v The Queen (1992) 2 NTLR 1 ..................................................................................................... 5.60 Munjunen (1993) 67 A Crim R 350 ............................................................................................................ 12.105 Murray v McMurchy [1949] 2 DLR 442 ........................................................................................... 6.180, 10.155 Murray v The Queen [1962] Tas SR 170 ............................................................. 7.30, 7.110, 7.120, 7.135, 9.140 Murray v The Queen (2002) 211 CLR 193 ..................................................................................................... 2.25 Mutemeri v Cheeseman (1998) 100 A Crim R 397; [1998] 4 VR 484 ................................................. 1.40, 10.180 Mutton (1793) 1 Esp 62 .............................................................................................................................. 7.105

N N, Ex parte [1959] Crim LR 523 ..................................................................................................................... 3.25 NOM v Director of Public Prosecutions (2012) 38 VR 618 .......................................................................... 10.180 NSW Crime Commission v Younan (1993) 31 NSWLR 44 ........................................................................... 14.200 Nagy v Weston [1965] 1 All ER 78 .............................................................................................................. 13.205 National Coal Board v Gamble [1959] 1 QB 11 ............................................................................ 3.40, 7.30, 7.65 Nationwide News Pty Ltd v Bitter (1985) 38 SASR 390 ................................................................................ 3.270 Neal v The Queen (1982) 149 CLR 305 .......................................................................................... 2.220, 13.195 Neal v The Queen (2011) 32 VR 454 .................................................................................. 10.90, 10.145, 10.165 New South Wales Sugar Milling Co-op Ltd v Environmental Protection Agency (1992) 59 A Crim R 6 .......... 3.225 Ng v The Queen [2011] NSWCCA 227 .......................................................................................................... 7.95 Ngawaka v The Queen [2004] NZCA 249 ...................................................................................................... 7.90 Nguyen v The Queen [2005] WASCA 22 ........................................................................................... 6.165, 6.170 Nguyen v The Queen (2008) 181 A Crim R 72 .................................................................................... 6.80, 6.100 Nguyen v The Queen [2013] VSCA 65 ........................................................................................................... 8.75 Nicholas v The Queen (1998) 193 CLR 173 .................................................................................. 14.125, 14.220 Nicholson (1994) 76 A Crim R 187 ................................................................................................................ 8.45 Nicklinson and Lamb v United Kingdom (Apps 2478/15 and 1787/15) ......................................................... 9.60 Nilsson v McDonald [2009] TASSC 66 .......................................................................................................... 13.60 Nirta v The Queen (1983) 10 A Crim R 370; (1983) 51 ALR 53 ................................................... 7.65, 8.10, 8.130 Noordhof v Bartlett (1986) 31 A Crim R 417 ................................................................................................ 10.70 xxiii

Principles of Criminal Law

North Broken Hill; Ex parte Commissioner of Police (Tas) (1992) 61 A Crim R 390 ....................................... 13.50 Northridge v Central Sydney Area Health Service (2000) 50 NSWLR 549 .............................................. 9.35, 9.90 Nosworthy v The Queen (1983) 8 A Crim R 270 .......................................................................................... 4.215 Nudd v The Queen (2006) 80 ALJR 614 ......................................................................................................... 2.80 Nugget (1666) 18 Car 2 ................................................................................................................................ 5.10 Nulyarimma v Thompson (1999) 165 ALR 621 .......................................................................................... 15.105 Nydam v The Queen [1977] VR 430 .................. 3.205, 3.225, 4.180, 4.195, 9.160, 9.165, 9.170, 9.175, 10.100

O O’Brien (1974) 59 Cr App R 222 ......................................................................................................... 8.95, 8.120 O’Connell v The Queen (1844) 8 ER 1061 ................................................................................................. 15.225 O’Connor v Killian (1984) 38 SASR 327 ......................................................................................................... 8.45 O’Leary v Daire (1984) 13 A Crim R 404 ........................................................................................... 4.155, 4.185 O’Meara v The Queen [2009] NSWCCA 90 .................................................................................................... 8.75 O’Neill v Ministry of Transport [1985] 2 NZLR 513 ...................................................................................... 4.195 O’Neill v The Queen [1976] Tas SR 66 ........................................................................................................... 4.65 O’Sullivan v Thurmer [1955] SASR 76 .......................................................................................................... 7.110 O’Sullivan v Truth and Sportsman Ltd (1957) 96 CLR 220 ............................................................................. 7.30 Oatridge (1992) 94 Cr App R 367 .................................................................................................................. 6.50 Oliphant (1905) 2 KB 73 .............................................................................................................................. 7.105 Ong Chin Keat Jeffrey v Public Prosecutor [2004] 4 SLR 483 ...................................................................... 14.230 Osland v The Queen (1998) 197 CLR 316 ...................................... 7.10, 7.15, 7.100, 7.105, 7.110, 7.115, 7.120 Ostrowski v Palmer (2004) 206 ALR 422 ...................................................................................................... 3.350 Owens (1987) 30 A Crim R 59 ..................................................................................................................... 4.155 Oxford v Moss (1978) 68 Cr App R 183 ........................................................................................ 12.145, 15.250

P PGA v The Queen (2012) 245 CLR 355 ............................................................................................. 8.135, 11.65 Pagawa v Mathew [1986] PNGLR 154 ......................................................................................................... 6.165 Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331 ...................................................................................... 10.160 Palmer (1804) 2 Leach 978 .......................................................................................................................... 7.105 Palmer v Ostrowski (2002) 128 A Crim R 56 ................................................................................................. 3.350 Palmer v The Queen [1971] AC 814 ............................................................................................. 6.10, 6.50, 6.55 Palmer v The Queen [1985] Tas R 138 .............................................................................................. 4.170, 4.180 Panos v Hayes (1987) 44 SASR 148 .............................................................................................................. 13.60 Papadimitropoulos v The Queen (1957) 98 CLR 249 .......................................................... 11.40, 11.115, 11.120 Pappajohn v The Queen (1980) 52 CCC (2d) 481 ..................................................................................... 11.150 Parker v Alder [1899] 1 QB 20 ...................................................................................................................... 3.255 Parker v The Queen (1963) 111 CLR 610 ....................................................................................................... 5.40 Parker v The Queen (1964) 111 CLR 665 ..................................................................................... 5.15, 5.35, 5.70 Parker: Re Brotherson, Ex parte (1957) 57 SR (NSW) 326 ............................................................................... 7.50 Parsons v The Queen (1999) 195 CLR 619 .................................................................................... 12.120, 12.135 Patel v The Queen (2012) 247 CLR 531 ................................................................................. 9.160, 9.175, 9.180 Paterson [1976] NZLR 394 ........................................................................................................................... 7.105 Paton v British Pregnancy Advisory Service Trustees [1979] QB 276 ............................................................... 9.30 Patterson (1982) 6 A Crim R 331 .................................................................................................................... 6.50 Pearce v Florenca (1976) 135 CLR 507 ........................................................................................................... 2.45 Pearson’s Case (1835) 2 Lew CC 144 ........................................................................................................... 4.195 Pedro v Diss [1981] 2 All ER 59 .................................................................................................................... 10.70 Peisley (1990) 54 A Crim R 42 ........................................................................................................................ 5.40 Pemble v The Queen (1971) 124 CLR 107 ............... 3.175, 3.205, 4.180, 5.70, 6.80, 9.120, 9.140, 9.150, 10.35 People v Hearn Mich App 300 NW 2d 396 (1981) ....................................................................................... 11.55 People v Lewis 124 Cal 551 (1899) .............................................................................................................. 3.155 People, The v MacEoin (1978) 112 ILTR 43 .................................................................................................... 5.65 Pepler (1984) 13 A Crim R 476 ...................................................................................................................... 5.70 Pereira v DPP (1988) 82 ALR 217 ................................................................................................................. 3.200 Perez-Vargas (1986) 8 NSWLR 559 ............................................................................................................. 11.195 Perka v The Queen (1985) 14 CCC (3d) 385 .......................................................................... 6.140, 6.150, 6.190 Peterkin v The Queen (1982) 6 A Crim R 351 ............................................................................................... 4.180 Peters v The Queen (1998) 192 CLR 493 .............................................. 3.175, 3.200, 8.140, 8.160, 12.50, 12.65 Phillips v The Queen [1969] 2 AC 130 ............................................................................................................ 5.40 Phillips (1987) 86 Cr App R 18 ..................................................................................................................... 8.110 Piddington v Bates [1961] 1 WLR 162 .......................................................................................................... 13.70 xxiv

Table of Cases

Pinkstone v The Queen (2004) 219 CLR 444 ................................................................................... 7.105, 14.155 Pitman (1826) 2 C & P 423 ......................................................................................................................... 7.105 Planned Parenthood v Casey 505 US 833 (1992) ......................................................................................... 9.215 Plomp v The Queen (1963) 110 CLR 234 ..................................................................................................... 9.110 Podirsky v R (1990) 3 WAR 128 .................................................................................................................. 11.195 Police v Atherton [2010] SASC 87 .............................................................................................................. 13.155 Police v Bannin [1991] 2 NZLR 237 .................................................................................................... 4.95, 4.180 Police v Pfeifer (1997) 68 SASR 285 ........................................................................................................... 13.155 Police v Saysouthinh (unreported, 10/5/2005, NSW Local Court, Liverpool, Brydon LCM, M619/02, BBH-F2/H1) .......................................................................................................................................... 13.100 Police, Commissioner of v Allen (1984) 14 A Crim R 244 ................................................................. 13.75, 13.210 Police, Commissioner of v Wilson [1984] AC 242 ......................................................................................... 10.50 Police (Tas), Commissioner of; Ex parte North Broken Hill Ltd (1992) 61 A Crim R 390 ........ 13.70, 13.85, 13.125 Police of the Metropolis, Commissioner of v Caldwell [1982] AC 341 ................................................ 3.220, 9.120 Pollard v DPP (Cth) (1992) 28 NSWLR 659 ............................................................................ 3.275, 3.285, 3.315 Polyukhovich v Commonwealth (1991) 172 CLR 501 ................................................. 15.15, 15.30, 15.35, 15.60 Pong Su, Re (2005) 159 A Crim R 300 ........................................................................................................... 7.65 Postermobile v Brent LBC (unreported, 8/12/1997, Schiemann LJ, English Divisional Court) ........................ 3.350 Poulterers’ Case (1611) 77 ER 813 ................................................................................................................. 8.85 Power v Huffa (1976) 14 SASR 337 .............................................................................................................. 3.285 Pradeep Kumar Verma v State of Bihar & Anor (2007) AIR SC 3059 ............................................................ 11.125 Pregelj v Manison (1987) 31 A Crim R 383 ........................................................................................ 3.235, 3.240 Presidential Security Services of Australia Pty Ltd v Brilley (2008) 73 NSWLR 241 .............. 3.35, 3.45, 3.50, 10.15 Pretty v United Kingdom (2002) 35 EHRR 1 ................................................................................................... 9.60 Prosecutor v Anto Furundzija (Trial Judgement) IT-95-17/1-T, ICTY, Case No ICTY-95-14/1, 10 December 1998 ........................................................................................................................ 15.70, 15.100 Prosecutor v Clément Kayishema and Obed Ruzindana (Trial Judgement) ICTR-95-1-T, ICTR, 21 May 1999 ...................................................................................................................................................... 15.90 Prosecutor v Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic (Trial Judgment) IT-96-23-T & IT-96-23/1-T, ICTY, 22 February 2001 ................................................................................................... 15.100 Prosecutor v Jean-Paul Akayesu (Trial Judgement) ICTR-96-4-T, ICTR, 2 September 1998 ................ 15.90, 15.100 Prosecutor v Stanilav Galic (Trial Judgement and Opinion) IT-98-29-T, ICTY, 5 December 2003 ................. 15.165 Proudman v Dayman (1941) 67 CLR 536 .............................................. 3.270, 3.275, 3.280, 3.290, 3.295, 3.300 Pyneboard v TPC (1983) 45 ALR 609 ........................................................................................................... 2.155

Q Quartermaine v Western Australia (2008) 180 A Crim R 501 ........................................................................... 6.85 Queen, The v GJ [2005] NTCCA 20 .............................................................................................................. 2.220 Queen, The v Gardner [2012] QSC 73 ......................................................................................................... 6.160 Queen, The v Getachew [2012] HCA 10 .................................................................................................... 11.155 Queen, The v Ramalingam [2011] ACTSC 86 ............................................................................................... 10.50 Queen, The v Tamawiwy (No 2) [2015] ACTSC 302 ................................................................................... 11.125 Queensland v Alyssa Nolan (an infant) [2001] QSC 174 ............................................................................... 6.155 Question of Law Reserved (No 1 of 2008) (2008) 102 SASR 398 .................................................................. 8.130 Question of Law Reserved on Acquittal Pursuant to Section 351(1A), Criminal Law Consolidation Act (No 1 of 1993) (1993) 59 SASR 214 ....................................................................................................... 11.25

R R v A (1944) 83 CCC 94 .............................................................................................................................. 9.220 R v A [2001] 93 All ER 1 ............................................................................................................................... 2.135 R v A (No 2) [2002] 1 AC 45 ....................................................................................................................... 11.180 R v AC Hatrick Chemicals Pty Ltd (unreported, VSC, 29 November 1995) ...................................................... 3.50 R v Abbey (1982) 68 CCC (2d) 394 ............................................................................................................... 4.55 R v Abebe [2000] 1 VR 429 ............................................................................................................................ 5.55 R v Abusafiah (1991) 24 NSWLR 531 ......................................................... 6.80, 6.85, 6.100, 6.110, 6.115, 6.135 R v Adomako [1995] 1 AC 171 .......................................................................................................... 3.225, 9.170 R v Aitken [1992] 1 WLR 1006 ................................................................................................................... 10.160 R v Ali [2001] QCA 331 ................................................................................................................................ 9.255 R v Ali [2015] EWCA Crim 1279 ................................................................................................................... 11.85 R v Allan [1965] 1 QB 130 .............................................................................................................................. 7.45 R v Allard (1990) 57 CCC (3d) 397 .............................................................................................................. 4.150 R v Allen [1985] 1 AC 1029 ........................................................................................................................ 12.195 R v Alley; Ex parte Mundell (1886) 12 VLR 13 ............................................................................................... 8.110 xxv

Principles of Criminal Law

R v Alwis [2012] QCA 308 ............................................................................................................................ 12.65 R v Anderson [1965] NZLR 29 ........................................................................................................................ 5.70 R v Anderson [1986] AC 27; [1985] 2 All ER 961 .................................................................. 8.125, 8.150, 14.210 R v Anderson, Neville, Dennis and Oz Publications Ink Ltd (1972) 1 QB 304 .............................................. 11.230 R v Anderson and Morris [1966] 2 QB 110 ........................................................................................ 7.120, 7.125 R v Andrew [1973] 1 QB 442 ....................................................................................................................... 8.145 R v Ansari (2007) 70 NSWLR 89 ................................................................................................................. 14.180 R v Arden [1975] VR 449 ................................................................................................................................ 5.35 R v Arnol [1980] Tas R 222 ........................................................................................................................... 4.180 R v Ashwell (1885) 16 QBD 190 ................................................................................................................. 12.180 R v Aspinall (1876) 2 QBD 48 ....................................................................................................................... 8.100 R v Aubrey (2012) 82 NSWLR 748 ............................................................................................................. 10.175 R v Austin [1981] 1 All ER 374 ...................................................................................................................... 7.110 R v Ayoub [1984] 2 NSWLR 511 .......................................................................................................... 4.70, 5.120 R v B (unreported, 19/7/1995, VSC) .......................................................................................................... 10.180 R v B; R v A [1979] 3 All ER 460 ...................................................................................................................... 3.25 R v BBF [2007] QCA 262 ................................................................................................................................ 8.60 R v Baba [1977] 2 NSWLR 502 .......................................................................................................... 8.130, 8.145 R v Bacash [1981] VR 923 ............................................................................................................................ 10.55 R v Bailey (1800) 168 ER 651 ....................................................................................................................... 3.335 R v Bailey [1983] 1 WLR 760 .......................................................................................................................... 4.95 R v Bainbridge [1960] 1 QB 129 ....................................................................................................... 7.75, 15.190 R v Ball (1991) 56 SASR 126 ........................................................................................................................ 4.180 R v Ballard [1829] NSWSC 26 ........................................................................................................................ 2.50 R v Baltzer (1974) 27 CCC (2d) 118 ............................................................................................................. 4.150 R v Barbouttis (1995) 37 NSWLR 256 ........................................................................................................... 8.215 R v Barbouttis, Dale and Single (unreported, 2/10/1996, HCA, Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ, S51/1996) ..................................................................................................................... 8.215 R v Barker [1924] NZLR 865 .................................................................................................................. 8.35, 8.45 R v Barker (unreported, 2012) .................................................................................................................... 11.125 R v Barker (2014) 287 FLR 249 .......................................................................................... 4.60, 4.65, 4.90, 4.180 R v Barlow (1962) 79 WN (NSW) 756 ............................................................................................... 7.160, 7.175 R v Barlow (1997) 188 CLR 1 .............................................................................................................. 2.25, 7.140 R v Barnier (1980) 51 CCC (2d) 193 .............................................................................................................. 4.55 R v Barton (1931) 25 QJPR 81 ...................................................................................................................... 9.220 R v Baruday [1984] VR 685 ........................................................................................................................ 12.100 R v Battle (1993) 8 WAR 449 ........................................................................................................................ 4.170 R v Bayliss (1986) 9 QL 8 ............................................................................................................................. 9.225 R v Beattie (1981) 26 SASR 481 ................................................................................................................. 11.200 R v Beck [1985] 1 All ER 571 .......................................................................................................................... 7.25 R v Beck [1990] 1 Qd R 30 ................................................................................................................ 7.120, 7.135 R v Beckett (1836) 1 Mood & R 526 ............................................................................................................ 10.80 R v Beecham (1851) 5 Cox CC 181 ........................................................................................................... 12.205 R v Belfon [1976] 3 All ER 46 ........................................................................................................................ 10.65 R v Bell [1972] Tas SR 127 .............................................................................................................................. 8.75 R v Benli [1998] 2 VR 149 .......................................................................................................................... 12.285 R v Bennett [2014] NSWDC 61 .................................................................................................................... 11.75 R v Bernhard [1938] 2 KB 264 ........................................................................................................... 3.330, 12.35 R v Bernhard (1978) 40 CCC (2d) 353 ......................................................................................................... 3.330 R v Berriman (1854) 6 Cox CC 388 .............................................................................................................. 9.255 R v Bickley (1909) 2 Cr App R 53 ................................................................................................................. 9.220 R v Biess [1967] Qd R 470 ............................................................................................................................ 5.115 R v Bingapore (1975) 11 SASR 469 .............................................................................................................. 3.150 R v Bingley (1821) Russ & Ry 446 .................................................................................................................. 7.80 R v Birt (1831) 5 C & P 154 ....................................................................................................................... 13.200 R v Bland [1988] Crim LR 41 .......................................................................................................................... 7.45 R v Blaue [1975] 1 WLR 1411 ............................................................................................................ 3.150, 10.35 R v Blevins (1988) 48 SASR 65 ..................................................................................................................... 10.80 R v Bonnor [1957] VR 227 ............................................................................................................................. 4.70 R v Bonollo [1981] VR 633 ................................................................................................................ 12.50, 12.65 R v Boshears , The Times, 18 February 1961 ................................................................................................... 4.95 R v Boston (1923) 33 CLR 386 ..................................................................................................................... 8.130 R v Boughey (1986) 161 CLR 10 ................................................................................................................ 10.115 R v Bourne [1939] 1 KB 687 ......................................................................................................................... 6.150 R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No 3) [2000] 1 AC 147 ...... 15.40 R v Boyea [1992] 156 JPR 505 ...................................................................................................................... 11.20 R v Bozikis [1981] VR 587 ............................................................................................................................ 10.65 xxvi

Table of Cases

R v Brain (1834) 6 C & P 349 ......................................................................................................................... 9.30 R v Brennan and Leach (unreported, Dist Ct, Qld, Criminal Jurisdiction, Indictment 74 of 2010, DIS – 00000610/10) ........................................................................................................................................ 9.230 R v Brow [1981] VR 783 .................................................................................................................... 12.50, 12.65 R v Brown (1841) Car & M 314 ................................................................................................................... 13.70 R v Brown (1870) 11 Cox CC 517 ................................................................................................................ 9.255 R v Brown [1968] SASR 467 .................................................................................................................. 6.70, 6.80 R v Brown [1975] 10 SASR 139 .................................................................................................................. 11.145 R v Brown (1986) 43 SASR 33 ................................................................................ 6.80, 6.85, 6.90, 6.100, 6.110 R v Brown (1987) 78 ALR 368 ................................................................................................ 3.210, 4.180, 9.120 R v Brown [1990] VR 820 ............................................................................................................................. 8.120 R v Brown [1992] 2 WLR 441 ..................................................................................................................... 10.165 R v Brown [1993] 2 WLR 556 ............................................. 10.140, 10.160, 10.165, 11.10, 11.15, 11.20, 11.210 R v Brown [1994] 1 AC 212 .......................................................................................................................... 11.15 R v Browning (1976) 34 CCC (2d) 200 ........................................................................................................ 4.150 R v Bruer (2012) 114 SASR 365 .................................................................................................................... 10.25 R v Bull (1974) 131 CLR 203 ......................................................................................................... 14.110, 14.135 R v Burgess [1991] 2 QB 92 ........................................................................................................................... 4.95 R v Burgess (2005) 152 A Crim R 100 ............................................................................................................. 6.45 R v Burke [1986] Crim LR 331 ...................................................................................................................... 6.105 R v Burr [1969] NZLR 736 ................................................................................................................... 4.95, 4.100 R v Bush [1970] 3 NSWR 500 ....................................................................................................................... 9.150 R v Butcher [1986] VR 43 ............................................................................................................................. 9.130 R v Butler [1992] 1 SCR 452 ....................................................................................................................... 11.240 R v Butterfield (1843) 1 Cox CC 39 .............................................................................................................. 7.160 R v Button and Swain [1966] 3 AC 591 ...................................................................................................... 13.215 R v Button and Swain [1966] AC 591 ......................................................................................................... 13.215 R v Button; R v Griffen (2002) 54 NSWLR 455 ............................................................................................ 11.165 R v Buttsworth [1983] 1 NSWLR 658 ................................................................................................ 3.225, 9.185 R v Byrne [1960] 2 QB 396 ...................................................................................................... 5.85, 5.115, 5.165 R v CRH (unreported, NSWCCA, 18 December 1996) .................................................................................... 3.25 R v Cagla Kucukeren (2008) 8 DCLR (NSW) 6 .............................................................................................. 8.130 R v Cahill [1978] 2 NSWLR 453 ......................................................................................................... 8.130, 8.135 R v Caird (1970) 54 Cr App R 499 .............................................................................................................. 13.200 R v Caldwell [1982] AC 341 ....................................................................................................................... 11.160 R v Caldwell [2009] VSCA 41 ......................................................................................................................... 8.95 R v Calhaem [1985] QB 808 ................................................................................................................. 7.25, 7.30 R v Callope [1965] Qd R 456 ......................................................................................................................... 5.70 R v Campbell [1933] St R Qd 123 .................................................................................................................. 8.85 R v Campbell [1991] Crim LR 268 .................................................................................................................. 8.50 R v Campbell [1997] 2 VR 585 ........................................................................................................ 10.55, 10.100 R v Camplin (1845) 1 Cox CC 220 ............................................................................................................... 11.60 R v Cao (unreported, 21–22/10/1999, NSWDC, Ford ADJC) ...................................................................... 14.145 R v Carr (unreported, 17/10/1990, NSWCCA) ........................................................................................... 10.160 R v Carr [1996] 1 VR 585 ............................................................................................................................... 4.80 R v Carter [1959] VR 105 ............................................................................................................................. 4.120 R v Carter [1990] 2 Qd R 371 ...................................................................................................................... 7.155 R v Carter (2003) 141 A Crim R 142 ............................................................................................................. 3.125 R v Cato [1976] 1 All ER 260; 1 WLR 110 .......................................................................................... 9.150, 9.220 R v Chan-Fook [1994] 2 ER 552 ................................................................................................................... 10.80 R v Chapin (1909) 74 JP 71 .......................................................................................................................... 10.95 R v Chapple (1840) 9 Car and P 355 ............................................................................................................ 7.160 R v Chellingworth [1954] QWN 35 ....................................................................................................... 8.35, 8.40 R v Cheshire [1991] 3 All ER 670; 1 WLR 844 .................................................................................... 3.125, 3.160 R v Chester [1982] Qd R 252 ............................................................................................................ 4.200, 5.105 R v Chief Constable of Sussex; Ex parte International Traders Ferry Ltd [1999] 2 AC 418 .............................. 13.85 R v Chisam (1963) 47 Cr App R 130 .............................................................................................................. 6.20 R v Chow (1987) 11 NSWLR 561 ............................................................................................................... 14.110 R v Chrastny (No 1) [1991] 1 WLR 1381 ........................................................................................... 8.105, 8.110 R v Chrichton [1915] SALR 1 ........................................................................................................................ 8.180 R v Christov [2006] NSWSC 972 .................................................................................................................... 5.85 R v Church [1966] 1 QB 59 ............................................................................................................... 3.365, 9.140 R v City of Sault St Marie (1978) 40 CCC (2d) 353; [1978] 2 SCR 1299 .......................................... 3.310, 14.140 R v Clarence (1888) 22 QBD 23 .............................................................................. 10.90, 10.95, 11.115, 11.120 R v Clark (1883) 15 Cox CC 171 .................................................................................................................. 9.255 R v Clark [2008] NSWCCA 122 .................................................................................................................. 11.245 R v Clarke (2008) 100 SASR 363 .................................................................................................................. 3.270 xxvii

Principles of Criminal Law

R v Clarke [2009] EWCA Crim 921 ............................................................................................................... 4.125 R v Clarke and Johnstone [1986] VR 643 ...................................................................................................... 14.95 R v Clarke and King [1962] Crim LR 836 ...................................................................................................... 5.165 R v Clarke and Wilton [1959] VR 645 ......................................................................................... 3.85, 7.80, 9.165 R v Clarkson [1971] 1 WLR 1402 .................................................................................................. 7.30, 7.45, 7.65 R v Clifford [1980] 1 NSWLR 314 ............................................................................................................... 13.135 R v Clough (1992) 28 NSWLR 396 .................................................................................................... 7.110, 7.120 R v Cockburn [1968] 1 All ER 466 ................................................................................................... 12.35, 12.215 R v Codere (1916) 12 Cr App R 21 ................................................................................................................. 4.55 R v Coe (1834) 6 Car & P 1295 ................................................................................................................... 9.220 R v Cogan and Leak [1976] 1 QB 217 ............................................................................................... 7.105, 7.150 R v Cogdon [1951] Res Jud 29 ....................................................................................................................... 4.95 R v Cohen (1868) 11 Cox CC 99 ................................................................................................................. 6.130 R v Coleman (1990) 19 NSWLR 467 ...................................................................................... 3.215, 4.180, 10.55 R v Coleman [2010] NSWSC 177 ................................................................................................................. 4.120 R v Collingridge (1976) 16 SASR 117 ............................................................................................................. 8.60 R v Collins (1986) 42 SASR 47 ........................................................................................................................ 2.60 R v Colmer (1864) 9 Cox CC 506 ................................................................................................................ 9.255 R v Coney (1882) 8 QBD 534; 15 Cox CC 46 ................................................................. 3.85, 7.30, 7.45, 10.140 R v Conlon (1993) 69 A Crim R 92 .................................................................................................... 6.45, 11.145 R v Connolly (1958) 76 WN (NSW) 184 ....................................................................................................... 4.200 R v Conway [1989] QB 290 .............................................................................................................. 6.165, 6.170 R v Cook (1870) 11 Cox CC 542 .................................................................................................................. 9.255 R v Cook (1994) 74 A Crim R 1 .................................................................................................................. 13.235 R v Cooke (1985) 39 SASR 225 ........................................................................................................... 4.210, 5.40 R v Cooper (1914) 14 SR (NSW) 426 ........................................................................................................... 3.330 R v Coote (1873) LR 4 PC 599 ..................................................................................................................... 3.315 R v Corbett [1903] St R Q 246 ..................................................................................................................... 4.215 R v Cordell [2009] VSCA 128 ............................................................................................................ 10.20, 10.30 R v Cottle [1958] NZLR 999 ......................................................................................................... 4.30, 4.90, 4.95 R v Court (1912) 7 Cr App R 127 ................................................................................................................. 6.125 R v Court [1989] 1 AC 28 ................................................................................................. 11.210, 11.215, 11.220 R v Cox (1992) 12 BMLR 38 .......................................................................................................................... 9.45 R v Cox [2006] SASC 188 ..................................................................................................................... 4.60, 4.65 R v Crabbe (1985) 156 CLR 464 .... 3.180, 3.185, 3.200, 3.205, 3.210, 3.215, 4.180, 9.115, 9.120, 9.125, 10.55 R v Cramp (1880) 5 QBD 307 ...................................................................................................................... 9.220 R v Creamer [1966] 1 QB 72 ........................................................................................................................ 9.150 R v Croft [1944] 1 KB 295 .............................................................................................................................. 7.90 R v Croft [1981] 1 NSWLR 126 ........................................................................................................... 4.210, 5.15 R v Cuerrier [1998] 2 SCR 371 ....................................................................................................... 11.115, 11.120 R v Cumpton (1880) 5 QBD 341 ................................................................................................................. 10.70 R v Cunningham [1982] AC 566 ....................................................................................................... 9.120, 10.80 R v D [1984] AC 778 .................................................................................................................................. 10.185 R v DPP; Ex parte Kebilene [2000] 2 AC 326; [1999] 3 WLR 972 ..................................................... 2.165, 14.125 R v Dale (1852) 6 Cox CC 14 ....................................................................................................................... 9.220 R v Dally [2000] NSWCCA 162 ..................................................................................................................... 4.210 R v Daniel [1997] QCA 139 .......................................................................................................................... 2.220 R v Daniels [1972] Qd R 323 ........................................................................................................................ 7.110 R v Daniels (1989) 1 WAR 435 .................................................................................................................... 11.145 R v Darby (1982) 148 CLR 668 .............................................................................................. 2.160, 7.110, 8.120 R v Darrington and McGauley [1980] VR 353 ................................................................................................ 6.70 R v Daviault [1994] 3 SCR 63 .............................................................................................................. 4.95, 4.225 R v Davidson [1969] VR 667 ............................................................................ 6.140, 6.150, 6.165, 6.175, 9.225 R v Davies [1975] 1 QB 691 ........................................................................................................................... 5.35 R v Davis (1881) 14 Coc CC 563 .................................................................................................................. 4.200 R v Davis [1955] Tas SR 52 ................................................................................................................ 9.140, 9.150 R v Dawson [1961] VR 773 .......................................................................................................................... 7.155 R v Dawson [1978] VR 536 .................................................................................... 6.70, 6.85, 6.90, 6.100, 6.110 R v Dawson (1985) 81 Cr App R 150 ................................................................................................ 9.150, 9.155 R v Day (1841) 9 C & P 722 ....................................................................................................................... 11.110 R v Day (1845) 1 Cox 207 ........................................................................................................................... 10.50 R v De Montero (2009) 25 VR 694 ............................................................................................................... 9.185 R v Delly [2003] ACTSC 113 ......................................................................................................................... 12.65 R v Demirian [1989] VR 97 ........................ 3.180, 3.205, 3.360, 4.180, 7.100, 7.105, 7.110, 7.120, 9.115, 10.55 R v Denbo Pty Ltd and Timothy Ian Nadenbousch (unreported ...................................................................... 3.40 R v Derham (1843) 1 Cox CC 56 ................................................................................................................. 9.255 R v Di Duca (1959) 43 Cr App R 167 ............................................................................................................ 4.200 xxviii

Table of Cases

R v Dib (2002) 134 A Crim R 329 ................................................................................................................... 5.55 R v Dica [2004] EWCA Crim 1103 ................................................................................................... 10.90, 11.120 R v Dick [1966] Qd R 301 ............................................................................................................................ 5.105 R v Dickie [1984] 3 All ER 173 ........................................................................................................................ 4.55 R v Dillon [2015] QCA 155 ............................................................................................................... 12.50, 12.65 R v Dillon; Ex parte Attorney-General (Qld) [2015] QCA 155 ........................................................................ 12.65 R v Dimozantos (1991) 56 A Crim R 345 ...................................................................................................... 8.180 R v Ditta [1988] Crim LR 42 ......................................................................................................................... 6.125 R v Dodd (1974) 7 SASR 151 ............................................................................... 3.105, 4.85, 4.95, 4.100, 4.170 R v Doherty (1887) 16 Cox CC 306 ............................................................................................................. 9.165 R v Donnelly [1970] NZLR 980 .................................................................................................................... 8.195 R v Donoghue [1914] VLR 195 ..................................................................................................................... 9.255 R v Donovan [1934] 2 KB 498; (1934) 25 Cr App R 1 .............................................. 10.80, 10.140, 11.20, 11.210 R v Doolan [2010] NSWSC 147 .................................................................................................................... 4.120 R v Doucette (1949) 93 CCC 202 ................................................................................................................ 9.220 R v Drummond [2008] NSWLC 10 ............................................................................................................. 11.245 R v Dubar [1994] 1 WLR 1484 ................................................................................................................... 12.175 R v Dudley and Stephens (1884) 14 QBD 273 ............................................................ 6.145, 6.150, 6.155, 6.165 R v Duffy (1901) 1 SR (NSW) 20 .................................................................................................................. 9.220 R v Duffy [1967] 1 QB 63; [1966] 2 WLR 229 ................................................................................................. 6.20 R v Duguid (1906) 94 LT 887 ....................................................................................................................... 8.115 R v Dunbar [1958] 1 QB 1 ........................................................................................................................... 5.120 R v Dutton (1979) 21 SASR 356 ..................................................................................................................... 5.25 R v Dykyj (1993) 29 NSWLR 672 .................................................................................................................. 3.200 R v Déry (2006) 213 CCC (3d) 289 .............................................................................................................. 8.170 R v Eagleton (1855) 6 Cox CC 559 ................................................................................................................ 8.40 R v Easom [1971] 2 QB 315 ....................................................................................................................... 12.220 R v Edwards [1956] QWN 16 ......................................................................................................................... 8.35 R v El Hassan (2001) 126 A Crim R 477 ........................................................................................................ 8.205 R v Ellames [1974] 1 WLR 1391 .................................................................................................................. 12.240 R v Ellis Don (1992) 71 CCC (3d) 63n .......................................................................................................... 3.310 R v Elomar (2010) 264 ALR 759; [2010] NSWSC 10 .............................................................................. 8.30, 8.90 R v Emmett [1999] EWCA Crim 1710 ......................................................................................................... 10.165 R v Ev Costa [1996] VSC 27 ....................................................................................................................... 11.160 R v Evans (1987) 48 SASR 35 ......................................................................................................................... 8.75 R v Evans & Gardiner (No 2) [1976] VR 523 ................................................................ 3.110, 3.125, 3.160, 3.180 R v Evans (Gemma) [2009] EWCA Crim 650 ................................................................................................ 9.165 R v Everingham (1949) 66 WN (NSW) 122 .................................................................................................. 10.35 R v Ewanchuk [1999] 1 SCR 330 ................................................................................. 2.205, 11.30, 11.60, 11.85 R v Ey (No 2) [2012] SASC 116 ...................................................................................................................... 3.25 R v F [2007] 2 All ER 193 ............................................................................................................................ 15.180 R v Falconer (1990) 171 CLR 30 ..... 2.175, 2.180, 4.30, 4.65, 4.70, 4.85, 4.90, 4.95, 4.115, 4.130, 4.140, 4.145, 4.200 R v Fan (1991) 24 NSWLR 60 ......................................................................................................................... 2.70 R v Farrar [1992] 1 VR 207 ............................................................................................................................. 5.10 R v Farrow (1857) 169 ER 961 ..................................................................................................................... 9.220 R v Faure [1999] 2 VR 537 ........................................................................................................................... 9.120 R v Feely [1973] QB 530 ............................................................................................. 3.330, 8.160, 12.35, 12.50 R v Fennell [1971] 1 QB 428 .......................................................................................................................... 6.20 R v Fenton (1975) 61 Cr App R 261 ............................................................................................................. 4.200 R v Ferreri [2006] QCA 443 .......................................................................................................................... 12.65 R v Finlayson (1864) 3 SCR (NSW) 301 ........................................................................................................ 12.20 R v Fisher (1837) 8 Car and P 182; 173 ER 452 .............................................................................................. 5.40 R v Fitzmaurice [1983] QB 1083 .................................................................................................................. 8.220 R v Flanagan and others [1827] NSWKR 1 .................................................................................................... 15.15 R v Flannery [1969] VR 31 .......................................................................................................................... 11.145 R v Flattery (1877) 2 QBD 410 ................................................................................................................... 11.120 R v Fleming and Robinson [1989] Crim LR 658 .......................................................................................... 13.220 R v Fletcher [1962] Crim LR 551 .................................................................................................................... 7.90 R v Forbes & Webb (1865) 10 Cox CC 362 .................................................................................................. 10.70 R v Ford [2003] NSWCCA 5 ......................................................................................................................... 2.190 R v Foster (1990) 14 Crim LJ 289 ................................................................................................................... 6.80 R v Foy [1960] Qd R 225 ...................................................................................................................... 4.30, 4.95 R v Fricker (1986) 42 SASR 436 ...................................................................................................................... 5.35 R v Fry (1992) 58 SASR 424 .............................................................................................................. 5.10, 10.120 R v Fursey (1833) 6 C & P 80 ..................................................................................................................... 13.200 R v G [2004] 1 AC 1034 ....................................................................................................... 3.220, 9.120, 11.160 xxix

Principles of Criminal Law

R v GAP (2010) 109 SASR 1 ......................................................................................................................... 11.65 R v Gabriel (2004) 182 FLR 102 ................................................................................................................... 10.40 R v Galderwood and Moore [1986] 2 WLR 294 ............................................................................................ 6.105 R v Gardner [2012] QSC 73 ......................................................................................................................... 6.170 R v Garrett (1988) 30 SASR 392 ................................................................................................................. 10.185 R v George (1868) 11 Cox CC 41 ................................................................................................................ 9.255 R v Ghosh [1982] 1 QB 1053 ....................................................................................................................... 3.330 R v Ghosh [1982] QB 1053; 3 All ER 689 ....................................................................... 2.25, 8.160, 12.50, 12.55 R v Gilks [1972] 1 WLR 1341 ...................................................................................................................... 12.190 R v Giorgi (1982) 31 SASR 299 ............................................................................................................. 7.25, 7.65 R v Gittens [1984] QB 698 ....................................................................................................... 4.200, 5.90, 5.105 R v Glenister [1980] 2 NSWLR 597 ............................................................................................................... 12.35 R v Glennan (1970) 91 WN (NSW) 609 ......................................................................................................... 7.70 R v Gomez [1993] AC 442 ......................................................................................................................... 12.100 R v Goodfellow (1986) 83 Cr App R 23 ........................................................................................................ 9.150 R v Gordon (1963) 63 SR(NSW) 631 ............................................................................................................ 4.180 R v Gordon [1964] NSWR 1024 ................................................................................................................... 4.180 R v Gorman (unreported, 15/5/1997, NSWCCA, Gleeson CJ, Hunt and Sperling JJ, 60373/95) .................... 9.190 R v Gorrie (1918) 83 JP 136 ........................................................................................................................... 3.25 R v Gose [2009] VSCA 66 ........................................................................................................................... 11.150 R v Gotts [1992] 2 AC 412 ............................................................................................................................. 6.70 R v Gould and Barnes [1960] Qd R 283 ....................................................................................................... 3.285 R v Graham (1888) 16 Cox CC 420 ........................................................................................................... 13.230 R v Graham [1982] 1 WLR 294; 1 All ER 801 .................................................................................................. 6.95 R v Grant (2002) 55 NSWLR 80 ................................................................................................................... 4.190 R v Greenberg [1972] Crim LR 331 ............................................................................................................ 12.195 R v Griffiths [1966] 1 QB 589 ....................................................................................................................... 8.105 R v Grimes [1968] 3 All ER 179 .......................................................................................................... 8.130, 8.145 R v Grimwood [1962] 2 QB 621 .................................................................................................................. 10.65 R v Grundy [1977] Crim LR 543 ..................................................................................................................... 7.90 R v Gullefer [1990] 3 All ER 882 ..................................................................................................................... 8.35 R v Gulyas (1985) 2 NSWLR 260 .................................................................................................................. 8.205 R v Gunn (1930) 30 SR (NSW) 336 ................................................................................................................ 8.95 R v Guthrie (1981) 52 FLR 171 ............................................................................................... 4.155, 4.175, 4.195 R v Gwillin [1823] NSWKR 5 ........................................................................................................................ 12.20 R v Hadfield (1800) 27 St Tr 1281 .................................................................................................................. 4.60 R v Hall [1972] 2 All ER 1009 ...................................................................................................................... 12.175 R v Hallett [1969] SASR 141 ........................................................................................ 3.120, 3.125, 3.135, 3.160 R v Hamilton (1985) 31 A Crim R 167 .......................................................................................................... 4.155 R v Hancock [1963] Crim LR 572 ................................................................................................................. 12.35 R v Hancock; R v Shankland [1986] AC 455 ................................................................................................. 3.185 R v Hansford (1974) 8 SASR 164 ........................................................................................................... 2.60, 2.70 R v Harding [1976] VR 129 ................................................................................................................... 6.70, 6.80 R v Harkin (1989) 38 A Crim R 296 ................................................................................................ 11.215, 11.220 R v Harley (1830) 172 ER 744; [1830] 4 C & P 369 ........................................................................... 7.105, 9.220 R v Harris [1964] Crim LR 54 .......................................................................................................................... 7.50 R v Hart [1986] 2 NZLR 408 ......................................................................................................................... 4.180 R v Hart (2014) SCC 52 ............................................................................................................................. 14.235 R v Hartridge (1966) 57 DLR (2d) 332 ......................................................................................................... 4.100 R v Harvey and Ryan [1971] Crim LR 664 ..................................................................................................... 5.165 R v Haydon (1845) 1 Cox CC 184 ................................................................................................................ 9.220 R v Hayes (1976) 64 Cr App R 82 ............................................................................................................... 12.175 R v Hayes (Tom Alexander) [2015] EWCA Crim 1944 ................................................................................... 12.60 R v Haywood [1971] VR 755 ......................................................................................... 3.105, 4.85, 4.170, 9.150 R v Hemsley (1988) 36 A Crim R 334 ......................................................................................................... 11.160 R v Hennah (1877) 13 Cox CC 547 .............................................................................................................. 9.220 R v Hennessey [1976] Tas SR (NC) 4 ............................................................................................................ 12.20 R v Hennessy [1989] 1 WLR 287 ................................................................................................ 4.30, 4.95, 4.125 R v Hersington [1983] 2 NSWLR 72 ............................................................................................................. 8.140 R v Hewitt and Smith (1866) 4 F & F 1101 .................................................................................................. 9.255 R v Hickey (1992) 16 Crim LJ 271 .................................................................................................................. 6.65 R v Hicklin (1868) LR 3 QB 360 ..................................................................................................... 11.225, 11.230 R v Higgins (1801) 2 East 5 ............................................................................................................... 8.175, 8.180 R v Higley (1830) 4 C & P 366 ..................................................................................................................... 9.255 R v Hill [1986] 1 SCR 313; (1986) Cr App R 386 .................................................................................. 5.45, 9.220 R v Hilton (1977) 34 CCC (2d) 206 .............................................................................................................. 4.150 R v Hoar (1981) 148 CLR 32 ........................................................................................................................ 8.190 xxx

Table of Cases

R v Hoare & Heavey [1965] NSWR 1167 ...................................................................................................... 10.65 R v Hobson (1823) 1 Lew CC 261 ................................................................................................................ 2.165 R v Hodges (1985) 19 A Crim R 129 ............................................................................................................... 4.45 R v Holey [1963] 1 All ER 106 ....................................................................................................................... 7.160 R v Holland (1841) 2 M & Rob 351; 174 ER 313 .......................................................................................... 3.150 R v Holloway (1849) 3 Cox 241 ................................................................................................................... 12.35 R v Holmes [1960] WAR 122 .......................................................................................................................... 4.95 R v Holness [1970] Tas SR 74 ....................................................................................................................... 9.170 R v Holzer [1968] VR 481 .................................................................................................................. 9.140, 9.155 R v Hopkins [2011] VSC 517 .......................................................................................................................... 4.25 R v Hopley (1860) 2 F & F 202 .................................................................................................................. 10.135 R v Hornbuckle [1945] VLR 281 ................................................................................................................... 4.180 R v Horsington [1983] 2 NSWLR 72 .................................................................................................. 8.130, 8.160 R v Howe (1958) 100 CLR 448 ..................................................................................................... 6.30, 6.50, 6.55 R v Howe [1987] AC 417 ......................................................................................................... 6.70, 6.145, 6.150 R v Howell [1974] 2 All ER 806 ..................................................................................................................... 4.180 R v Howell [1982] QB 416 ........................................................................................................................... 13.60 R v Howes (1971) 2 SASR 293 ........................................................................................................... 8.130, 8.160 R v Howes [2000] VSC 159 ........................................................................................................................ 11.190 R v Hudson [1971] 2 QB 202 .............................................................................................................. 6.90, 6.110 R v Hughes (1850) 4 Cox CC 447 ................................................................................................................ 9.255 R v Hughes (2000) 202 CLR 535 .................................................................................................................... 2.75 R v Humphreys and Turner [1965] 3 All ER 689 ............................................................................................ 7.110 R v Hung Duc Dang [2001] NSWCCA 321 ................................................................................................... 7.145 R v Hunt (1820) 1 State Tr NS 435 ............................................................................................................. 13.200 R v Hunt (1845) 1 Cox CC 177 .................................................................................................................. 13.230 R v Hunter [1988] 1 Qd R 663 ....................................................................................................................... 5.40 R v Hurley and Murray [1967] VR 526 .............................. 6.70, 6.75, 6.80, 6.85, 6.90, 6.95, 6.100, 6.105, 7.160 R v Hutty [1953] VR 338 ................................................................................................................................ 9.30 R v ICR Haulage Ltd [1944] KB 551 ..................................................................................................... 3.35, 8.110 R v Iannazzone [1983] 1 VR 649 .................................................................................................................. 3.295 R v Iby (2005) 63 NSWLR 278 ....................................................................................................................... 9.30 R v Instan [1893] 1 QB 450; (1893) 17 Cox CC 602 ................................................................ 3.85, 9.165, 9.190 R v Ireland; R v Burstow [1998] AC 147; [1997] 4 All ER 225 .......................... 2.205, 10.30, 10.80, 10.95, 10.175 R v Irwin (2006) 94 SASR 480 ...................................................................................................................... 8.205 R v Isaacs (1862) 169 ER 1371 ..................................................................................................................... 9.220 R v Isitt (1978) 67 Cr App R 44 ........................................................................................................... 4.95, 4.100 R v JJ Alford Transport Ltd [1997] Crim LR 745 ............................................................................................... 7.50 R v Jack [2002] ACTSC 90 .......................................................................................................................... 12.135 R v Jackson [1891] 1 QB 671 .......................................................................................................... 10.135, 13.40 R v Jacob [1932] SASR 456 ........................................................................................................................... 9.255 R v Jadurin (1982) 7 A Crim R 182 ............................................................................................................... 2.225 R v Jarmain [1945] 2 All ER 613 .................................................................................................................... 9.140 R v Jarvis (1837) 2 Mood & R 40 .................................................................................................................. 7.160 R v Jefferson [1994] 1 All ER 270 ................................................................................................................ 13.220 R v Jeffrey [1967] VR 467 ............................................................................................................................... 5.40 R v Jensen and Ward [1980] VR 194 ............................................................................................................... 7.90 R v Jervis [1993] 1 Qd R 643 .......................................................................................................................... 2.25 R v Jimmy Balir (1951–1976) NTJ 633 ............................................................................................................ 5.60 R v Jogee; Ruddock v The Queen [2016] UKSC 8; [2016] UKPC 7 ..................................................... 7.135, 7.140 R v Johns (unreported, 26/8/1992, SASC, No SCCRM/91/452) ......................................................... 11.25, 11.85 R v Johnson [1964] Qd R 1 ................................................................................................. 5.10, 6.30, 6.50, 6.55 R v Johnston [1973] Qd R 303 ..................................................................................................................... 12.20 R v Johnstone [2003] 3 All ER 884 ................................................................................................................ 2.165 R v Jones (1832) 4 B & As 345 ..................................................................................................................... 8.130 R v Jones [1949] 1 KB 194 ........................................................................................................................... 7.175 R v Jordan (1956) 40 Cr App R 152 .............................................................................................................. 3.160 R v Joudrie (unreported, 9/5/1996, Court of Queen’s Bench, Alberta, No 9501–1280–C6) ............................ 4.95 R v Joyce [1970] SASR 184 .................................................................................................................. 4.70, 4.100 R v K (1970) 3 CCC (2d) 84 ........................................................................................................................... 4.95 R v K (1993) 118 ALR 596 ............................................................................................................................ 10.70 R v Kaeser [1961] QWN 11 .......................................................................................................................... 4.180 R v Kageregere [2011] SASC 154 ................................................................................................................. 9.130 R v Kalajdic and Italiano (2005) 157 A Crim R 300 ......................................................................................... 8.75 R v Kamipeli [1975] 2 NZLR 610 .................................................................................................................. 4.155 R v Kampeli [1975] 2 NZLR 610 ................................................................................................................... 4.180 R v Katarzynski [2002] NSWSC 613 ................................................................................................................ 6.45 xxxi

Principles of Criminal Law

R v Keenan (2009) 236 CLR 397 .................................................................................................................. 7.120 R v Kellett [1976] QB 372 ............................................................................................................................ 8.145 R v Kemp [1957] 1 QB 399 ................................................................................................................. 4.30, 4.120 R v Kempley (1944) 44 SR (NSW) 416 ......................................................................................................... 8.130 R v Keogh [1964] VR 400 .................................................................................................................... 4.95, 4.170 R v Khan [1990] 2 All ER 783 .......................................................................................................................... 8.75 R v Khawaja (2006) 214 CCC (3d) 399 .......................................................................................................... 8.30 R v Khawaja 2010 ONCA 862 ........................................................................................................................ 8.30 R v Khawaja [2012] 3 SCR 555 ....................................................................................................................... 8.30 R v Kimber [1981] 1 WLR 1118 .................................................................................................................. 11.210 R v King (2003) 59 NSWLR 472 ..................................................................................................................... 9.30 R v King (2004) 155 ACTR 55 ........................................................................................................................ 4.65 R v Kingston [1994] 3 WLR 519 ................................................................................................................... 4.155 R v Kirkby (1985) 21 CCC (3d) 31 ...................................................................................................... 4.55, 4.150 R v Kitchener (1993) 29 NSWLR 696 ............................................................................................... 11.10, 11.160 R v Kjeldsen (1981) 64 CCC (2d) 161 ............................................................................................................ 4.55 R v Knight (1998) 35 A Crim R 31 ................................................................................................................ 10.30 R v Kontinnen (1992) 16 Crim LJ 360 ............................................................................................................ 6.65 R v Konzani [2004] EWCA 706 ................................................................................................................... 11.120 R v Kovacs [1974] 1 WLR 370 .................................................................................................................... 12.280 R v Krause (1902) 66 JP 1902 ....................................................................................................................... 8.180 R v Kron (1995) 78 A Crim R 474 ................................................................................................................... 2.60 R v Kumar [2002] 5 VR 193 ................................................................................................................. 5.25, 5.150 R v Kusu [1981] Qd R 136 ................................................................................................................ 4.170, 4.215 R v Kuzmenko [1968] QWN 49 .................................................................................................................... 4.200 R v L (1991) 174 CLR 379 ............................................................................................................... 11.65, 11.175 R v LK (2010) 241 CLR 177 ...................................................................................................... 8.75, 8.150, 8.165 R v Lacjance [1963] 2 CCC 14 ..................................................................................................................... 4.150 R v Lamb [1967] 2 QB 981 .................................................................................................... 9.150, 9.170, 10.35 R v Lambert [2001] 3 All ER 577 ................................................................................................................... 2.165 R v Lambie [1982] AC 449 ......................................................................................................................... 12.285 R v Lamoureux [2012] 3 SCR 187 .............................................................................................................. 14.125 R v Landry (1991) 62 CCC (3d) 117 ............................................................................................................... 4.55 R v Lane [1983] 2 VR 449 ............................................................................................................................... 6.30 R v Langford (1842) 174 ER 653 ................................................................................................................ 13.230 R v Lapier (1784) 168 ER 263 ....................................................................................................................... 12.20 R v Larkin [1943] 1 All ER 217 ...................................................................................................................... 9.140 R v Latimer (1886) 17 QBD 359 ........................................................................................................ 3.180, 3.190 R v Laurie [1987] 2 Qd R 762 ....................................................................................................................... 12.65 R v Lavallee [1990] 1 SCR 852 ....................................................................................................................... 6.65 R v Lavender (2004) 41 MVR 492 ................................................................................................................ 3.225 R v Lavender (2005) 222 CLR 67 ....................................................................................................... 3.225, 9.170 R v Laverty [1970] 3 All ER 432 .................................................................................................................. 12.285 R v Law (2007) 176 A Crim R 350 ................................................................................................................ 6.170 R v Lawrence [1980] 1 NSWLR 122 ............................................................................................ 6.70, 6.80, 6.110 R v Lawrence [1982] AC 510 ........................................................................................................................ 3.220 R v Lawson [1986] VR 515 ............................................................................................................................. 6.35 R v Le Brun [1991] 4 All ER 673 .................................................................................................................... 3.365 R v Leaf-Milham (1987) 47 SASR 499 ........................................................................................................... 4.155 R v Lechasseur (1977) 38 CCC (2d) 319 ...................................................................................................... 4.150 R v Lee (1990) 1 WAR 411 ................................................................................................................. 8.190, 8.205 R v Lees [1999] NSWCCA 301 ........................................................................................................................ 5.25 R v Leff (1996) 86 A Crim R 212 ................................................................................................................. 14.110 R v Leonboyer [2001] VSCA 149 ......................................................................................................... 4.90, 4.105 R v Lesley (1860) Bell CC 220 .................................................................................................................... 10.185 R v Levy [1912] 1 KB 158 ............................................................................................................................. 7.160 R v Lew; R v Ng [2003] NSWSC 781 .............................................................................................................. 7.95 R v Lewis [1970] Crim LR 647 ...................................................................................................................... 10.40 R v Lifchus [1997] 3 SCR 320 ....................................................................................................................... 2.180 R v Lindner [1938] SASR 412 ....................................................................................................................... 9.220 R v Lindsay [2014] SASCFC 56 ..................................................................................................... 5.40, 5.45, 5.55 R v Lloyd [1967] 1 QB 175 ........................................................................................................................... 5.115 R v Lloyd [1985] QB 829 ............................................................................................................... 12.205, 12.210 R v Lobston [1983] 2 Qd R 720 .................................................................................................................... 9.120 R v Lock (unreported, Ipswich Crown Court, 22 January 2013) .................................................................... 11.20 R v Lodhi [2005] NSWSC 1377 .................................................................................................................. 15.190 R v Lodhi [2006] NSWCCA 121 .................................................................................................................. 15.190 xxxii

Table of Cases

R v Lodhi [2006] NSWSC 584 .................................................................................................................... 15.190 R v Lomas (1913) 9 Cr App R 220 .................................................................................................................. 7.50 R v London Quarter Sessions; Ex parte Metropolitan Police Commissioner [1940] KB 670 ............................ 13.20 R v Londonderry Justices (1891) 28 LR Ir 440 ............................................................................................... 13.85 R v Looseley [2001] 4 All ER 897 ......................................................................... 14.215, 14.220, 14.225, 14.230 R v Lopuszynski [1971] QWN 33 .................................................................................................................. 7.110 R v Loughnan [1981] VR 443 ................................................................ 6.140, 6.155, 6.160, 6.165, 6.170, 6.175 R v Love (1989) 17 NSWLR 608 ...................................................................................................... 3.330, 12.280 R v Lovet [1986] 1 Qd R 52 .......................................................................................................................... 4.180 R v Lovett [1975] VR 488 ............................................................................................................................. 10.55 R v Lowe [1827] NSWSupC 32 ...................................................................................................................... 2.50 R v Lowe [1973] 1 QB 702 ........................................................................................................................... 9.190 R v Lowery (No 2) [1972] VR 560 ...................................................................................................... 7.110, 7.120 R v Lynsey [1995] 3 All ER 654 ..................................................................................................................... 10.15 R v M [1977] 16 SASR 589 ............................................................................................................................. 3.25 R v M (unreported, 18/3/1994, VSC, Hampel J) ............................................................................................. 4.95 R v MacDonald (1951–1976) NTJ 186 ........................................................................................................... 5.60 R v Macdonald [1904] QSR 151 ..................................................................................................................... 7.80 R v Machirus [1996] 6 NZLR 404 ................................................................................................................. 8.145 R v Mack (1988) 44 CCC (3d) 513 ................................................................................................ 14.220, 14.230 R v Mack [2014] SCC 58 ............................................................................................................................ 14.235 R v Madden (1975) 1 WLR 1379 ................................................................................................................ 13.135 R v Maes [1975] VR 541 .................................................................................................................. 11.95, 11.145 R v Mahroof [1989] Crim LR 72 ................................................................................................................. 13.220 R v Mai (1992) 26 NSWLR 371 .................................................................................................................... 8.205 R v Mainwaring (1981) 74 Cr App R 99 ..................................................................................................... 12.175 R v Makin (2004) 8 VR 262 ............................................................................................................................ 7.05 R v Malcharek; R v Steel [1981] 2 All ER 422; 1 WLR 690 ................................................................... 3.160, 3.165 R v Malcolm [1951] NZLR 470 ....................................................................................................................... 7.90 R v Maloney (1901) 18 WN (NSW) 96 ......................................................................................................... 7.175 R v Manchester Crown Court [2003] 1 AC 787; [2002] UKHL 39 ...................................................... 2.185, 13.25 R v Mansfield (unreported, acquittal 5/5/1994, VSC, Hampel J) ............................................... 4.95, 4.100, 4.130 R v Mappin (1904) 6 WALR 161 ................................................................................................................... 9.255 R v Margach (2007) 173 A Crim R 149 ........................................................................................................... 5.60 R v Mark (1902) 28 VLR 610 ........................................................................................................................ 12.25 R v Marlow (1964) 49 Cr App R 49 .............................................................................................................. 9.220 R v Marshall (1987) 49 SASR 133 ............................................................................................................... 10.120 R v Martin (1881) 8 QBD 54 ........................................................................................................................ 10.95 R v Martin [1979] Tas R 211; (1979) 1 A Crim R 85 ........................................................................... 4.170, 4.180 R v Martin [1989] 1 All ER 652 ..................................................................................................................... 6.175 R v Martin (No 1) (2005) 159 A Crim R 314 ................................................................................................... 4.25 R v Martineau (1990) 58 CCC (3d) 353 ....................................................................................................... 9.130 R v Marwey (1977) 138 CLR 630 ................................................................................................................... 6.50 R v Mason (unreported, 2015) ................................................................................................................... 11.125 R v Masters (1992) 26 NSWLR 450 ................................................................................................................ 8.85 R v Matchett [1980] 2 WWR 122 ................................................................................................................. 4.100 R v Mathieson (1906) 25 NZLR 879 ............................................................................................................. 4.180 R v Matthews [1972] VR 3 ........................................................................................................................... 8.145 R v Mawgridge (1707) 84 ER 1107 ................................................................................................................ 5.10 R v Maybery [1973] Qd R 211 ........................................................................................................................ 7.30 R v McBride [1962] 2 QB 167 ........................................................................................................... 4.155, 4.175 R v McCallum [1969] Tas SR 73 ............................................................................................. 9.140, 9.150, 9.155 R v McConnell, McFarland and Holland [1977] 1 NSWLR 714 ............................................................ 3.365, 6.70 R v McCormack [1969] 2 QB 442 ................................................................................................................ 10.50 R v McCormack [1981] VR 104 .................................................................................................................. 13.230 R v McCullough [1982] Tas R 43 .................................................................................................................. 3.285 R v McDonald [1992] 2 Qd R 634 ................................................................................................................ 12.20 R v McDonnell [1966] 1 QB 233 .................................................................................................................. 8.110 R v McDonough (1962) 47 Cr App R 37 ...................................................................................................... 8.220 R v McDougall [2011] ATSC 51 ............................................................................................................. 6.45, 6.60 R v McEwan [1979] 2 NSWLR 926 ............................................................................................................. 11.145 R v McGarvie (1986) 5 NSWLR 270 .................................................................................................... 5.85, 5.100 R v McGrath and Simonidis [1983] 2 Qd R 54 ............................................................................................. 8.140 R v McGregor [1962] NZLR 1069 ......................................................................................................... 5.40, 5.50 R v McGuckin [2014] ACTSC 242 ................................................................................................................. 10.20 R v McGuigan and Cameron [1991] Crim LR 719 ...................................................................................... 13.220 R v McIntosh [1999] VSC 358 .................................................................................................................... 10.165 xxxiii

Principles of Criminal Law

R v McKay [1957] VR 560 ............................................................................................................ 6.25, 6.30, 6.55 R v McKechie [1926] NZLR 1 ....................................................................................................................... 8.110 R v McKenna [1960] 1 QB 411 .................................................................................................................... 7.160 R v McMaster [2007] VSC 13 ....................................................................................................................... 9.250 R v McNally [2013] EWCA Crim R 1051 ..................................................................................................... 11.125 R v McNamara [1954] VLR 137 .................................................................................................................... 10.35 R v Meachen [2006] EWCA Crim 2414 ......................................................................................................... 11.20 R v Meddings [1966] VR 306 .......................................................................................... 4.30, 4.95, 4.120, 4.200 R v Meech [1973] 3 All ER 939 ................................................................................................................... 12.175 R v Meloche (1975) 34 CCC (2d) 184 .......................................................................................................... 4.150 R v Menniti [1985] 1 Qd R 520 ...................................................................................................................... 7.90 R v Metharam [1961] 3 All ER 200 ............................................................................................................... 10.80 R v Metropolitan Police Commissioner; Ex parte Blackburn [1968] 2 QB 118 ............................................. 13.125 R v Michael (1840) 2 Mood 121; 169 ER 48; 9 Car & P 356 .............................................................. 3.180, 7.105 R v Middleton (1873) LR 2 CCR 38 ............................................................................................................ 12.180 R v Miers [1985] 2 Qd R 138 ........................................................................................ 4.170, 4.200, 5.90, 5.105 R v Millar [1970] 2 QB 54 .............................................................................................................................. 7.65 R v Miller [1951] VLR 346 ................................................................................................................. 9.120, 10.80 R v Miller [1954] 2 QB 282 .......................................................................................................................... 10.80 R v Miller (1980) 25 SASR 170 ....................................................................................................................... 7.65 R v Miller [1982] 2 All ER 386 ....................................................................................................................... 9.190 R v Miller [1983] 2 AC 161 ........................................................................ 3.05, 3.85, 3.360, 3.365, 3.370, 9.165 R v Miller [2009] QCA 11 ............................................................................................................................... 5.60 R v Milton [2002] NSWCCA 124 ................................................................................................................ 11.160 R v Minor (1955) 112 CCC 29 ....................................................................................................................... 4.95 R v Minor (1992) 59 A Crim R 227 .................................................................................................... 2.220, 2.225 R v Mobilio [1991] 1 VR 339 ......................................................................................................... 11.115, 11.120 R v Moffatt [1998] 2 CR 229 .......................................................................................................................... 4.80 R v Mohan [1976] QB 1 ............................................................................................................................... 4.180 R v Moloney [1985] AC 905 ......................................................................................................................... 3.185 R v Momcilovic (2010) 25 VR 436 ................................................................................................................ 2.170 R v Monkhouse (1849) 4 Cox CC 55 ............................................................................................................ 4.155 R v Moore (1908) 10 WALR 64 ....................................................................................................................... 4.65 R v Morgan; Ex parte Attorney-General [1987] 2 Qd R 627 ............................................................... 4.200, 5.105 R v Morhall [1995] 3 All ER 659 ...................................................................................................................... 5.50 R v Morris (1848) 2 Cox CC 489 .................................................................................................................. 9.255 R v Morris [1961] 2 QB 237 ........................................................................................................................... 5.85 R v Morris [1984] AC 320 ........................................................................................................................... 12.100 R v Morris (Clarence Barrington) [1998] Cr App R 386 ................................................................................. 10.80 R v Most (1801) 2 East 5 .............................................................................................................................. 8.180 R v Motlop [2013] QCA 301 ...................................................................................................................... 11.110 R v Mowatt [1968] 1 QB 421 .......................................................................................................... 10.55, 10.100 R v Mrzljak [2005] 1 Qld R 308 .................................................................................................................. 11.145 R v Muddarubba (1951–1976) NTJ 317 ......................................................................................................... 5.60 R v Mullen (1938) 59 CLR 124 ............................................................................................... 2.160, 2.175, 2.180 R v Munday (2003) 7 VR 432 ..................................................................................................................... 11.150 R v Muranyi (1986) 8 Cr App R (S) 176 ...................................................................................................... 13.230 R v Muratovic [1967] Qd R 15 ....................................................................................................................... 6.40 R v Murphy (1985) 158 CLR 596 ...................................................................................................... 8.130, 8.145 R v Murray [1980] 2 NSWLR 526 ................................................................................................................. 4.155 R v Murray (1987) 11 NSWLR 12 ............................................................................................................... 11.160 R v Murray Wright Ltd [1970] NZLR 476 ........................................................................................................ 3.35 R v Murrell (1836) 172 .................................................................................................................................. 2.50 R v Mursic [1980] Qd R 482 ........................................................................................................................... 4.30 R v Narden (1873) 12 SCR(NSW) 160 .......................................................................................................... 9.255 R v Narongchai Saengsai [2004] NSWCCA 425 .......................................................................................... 14.140 R v Nedrick [1986] 3 All ER 1 ....................................................................................................................... 3.185 R v Nelson (1951–1976) NTJ 327 .................................................................................................................. 5.60 R v Newland (unreported, 2015) ............................................................................................................... 11.125 R v Newman [1948] VLR 61 .............................................................................................................. 5.35, 10.130 R v Nghia Trong Nguyen (Ruling No 2) [2010] VSC 442 .............................................................................. 9.150 R v Nicholson [1916] VR 130 ....................................................................................................................... 10.95 R v Nielsen [1990] 2 Qd R 578 ................................................................................................. 4.200, 5.85, 5.105 R v Nundah (1916) 16 SR (NSW) 482 .......................................................................................................... 3.330 R v Nuri [1990] VR 641 .............................................................................................................................. 10.180 R v O’Connor (1980) 146 CLR 64 ................................................ 2.175, 4.95, 4.155, 4.165, 4.170, 4.180, 10.55 R v O’Connor aka Coble [2013] NSWDC 272 .............................................................................................. 11.75 xxxiv

Table of Cases

R v O’Neill [1982] VR 150 ............................................................................................................................ 4.210 R v O’Regan [1961] Qd R 78 ........................................................................................................................ 4.180 R v O’Sullivan (1948) 54 WN (NSW) 155 ................................................................................................... 13.200 R v Oakes [1986] 1 SCR 103 ...................................................................................................................... 14.125 R v Oblach (2005) 195 FLR 212 ..................................................................................................................... 6.85 R v Offley (1986) 51 CR (3d) 378 ............................................................................................................... 12.145 R v Olugboja [1982] QB 320 ................................................................................................ 11.50, 11.85, 11.110 R v Orton [1922] VLR 469 ................................................................................................................... 8.95, 8.130 R v Osip (2000) 2 VR 569 ............................................................................................................................. 3.225 R v Osland [1998] 2 VR 636 ......................................................................................................................... 7.110 R v P & O European Ferries (Dover) Ltd (1991) 93 Cr App R 73 ...................................................................... 3.35 R v Packett (1937) 58 CLR 190 .................................................................................................................... 2.160 R v Page [1933] VLR 351 ................................................................................................................................ 8.60 R v Pagett (1983) 76 Cr App R 279 ........................................................................................ 3.110, 3.125, 3.160 R v Palazoff (1986) 43 SASR 99 ....................................................................................... 6.70, 6.85, 6.110, 6.175 R v Panayiotou [1973] 2 All ER 112 .............................................................................................................. 8.145 R v Pangilinan [2001] 1 Qd R 56 .................................................................................................................... 5.40 R v Pantelic (1973) 21 FLR 253 .................................................................................................................... 4.100 R v Park [1995] 2 SCR 836 ......................................................................................................................... 11.150 R v Parks [1992] 2 SCR 871 ................................................................................................................. 4.95, 4.115 R v Parmenter [1991] 3 WLR 914 ................................................................................................................. 10.50 R v Parsons [1998] 2 VR 478 ...................................................................................................................... 12.135 R v Patel [2010] QSC 199 ............................................................................................................................ 9.180 R v Patel (No 7) [2013] QSC 65 ................................................................................................................... 6.165 R v Patel; Ex parte Attorney-General (Qld) [2011] QCA 81 ........................................................................... 9.180 R v Patipatu (1951–1976) NTJ 18 ................................................................................................................... 5.60 R v Patterson [1962] 2 QB 429 ................................................................................................................... 12.240 R v Patton [1998] 1 VR 7 .............................................................................................................................. 10.15 R v Paxman (unreported, 21/6/1995, NSWDC) ........................................................................................... 4.160 R v Pear (1779) 168 ER 208 ......................................................................................................................... 12.25 R v Percali (1986) 42 SASR 46 .................................................................................................................... 10.100 R v Perks (1986) 41 SASR 335 .............................................................................. 4.155, 4.210, 5.40, 6.80, 10.80 R v Perry (1847) 2 Cox CC 223 .................................................................................................................... 9.220 R v Perry (1855) Dears CC 471 .................................................................................................................... 9.255 R v Phillips (1971) 45 ALJR 467; ALR 740 ......................................................................................... 9.140, 10.115 R v Pickard [1959] Qd R 475 .......................................................................................................................... 6.90 R v Pink [2001] 2 NZLR 860 ........................................................................................................................... 7.90 R v Pius Piane [1975] PNGLR 52 ........................................................................................................ 6.165, 6.170 R v Pollard [1962] QWN 13 ......................................................................................................................... 3.330 R v Porter (1933) 55 CLR 182 ............................................................................................................... 4.60, 4.70 R v Potisk (1973) 6 SASR 389 ..................................................................................................................... 12.180 R v Potter (unreported, 16/10/1993, NSWDC, Judge Dent QC) ................................................................... 6.165 R v Powell [1962] QWN 123 ........................................................................................................................ 12.35 R v Powell [1997] 3 WLR 959 ....................................................................................................................... 7.120 R v Preddy [1996] AC 815 .......................................................................................................................... 12.135 R v Price [1969] 1 QB 541 ............................................................................................................................ 9.220 R v Prior (1992) 91 NTR 53 .......................................................................................................................... 8.205 R v Pryor [2001] QCA 341 ............................................................................................................................ 11.95 R v Purdy [1982] 2 NSWLR 964 ..................................................................................................................... 5.85 R v Quick [1973] QB 910 .................................................................................................................... 4.95, 4.125 R v R (1981) 28 SASR 321 ................................................................................. 5.15, 5.25, 5.30, 5.35, 5.40, 5.75 R v R [1992] 1 AC 599 .......................................................................................................... 11.65, 11.80, 11.175 R v Rabey (1977) 37 CCC (2d) 461 ................................................................................. 4.30, 4.95, 4.115, 4.125 R v Rabey (1981) 54 CCC 1 ........................................................................................................................... 4.95 R v Radford (1985) 42 SASR 266 .......................................................................... 4.30, 4.95, 4.100, 4.130, 4.140 R v Radford (No 2) (1987) 11 Crim LJ 231 ................................................................................................... 4.130 R v Ramage [2004] VSC 391 ........................................................................................................................ 5.155 R v Ramage [2004] VSC 508 ........................................................................................................................ 5.155 R v Ransford (1874) 13 Cox CC 9 ................................................................................................................ 8.180 R v Rau [1972] Tas SR 59 .............................................................................................................................. 9.140 R v Ready [1942] VLR 85 .............................................................................................................................. 7.160 R v Reeves (1892) 13 LR (NSW) 220 ............................................................................................................ 7.175 R v Reynhoudt (1962) 107 CLR 381 .................................................................................................. 3.295, 10.70 R v Richman [1982] Crim LR 507 ................................................................................................................. 6.130 R v Ridgeway (1998) 72 SASR 73 ............................................................................................................... 14.220 R v Robert Millar (Contractors) Ltd [1970] 2 QB 54 ........................................................................................ 3.40 R v Robinson [1915] 2 KB 342 ....................................................................................................................... 8.40 xxxv

Principles of Criminal Law

R v Roffel [1985] VR 511 ................................................................................................................... 3.50, 12.100 R v Rogerson (1992) 174 CLR 268 .......................................................... 8.85, 8.120, 8.130, 8.135, 8.145, 8.155 R v Rolph [1962] Qd R 262 ........................................................................................................ 5.85, 5.95, 5.115 R v Romano (1984) 36 SASR 283 ................................................................................................................... 5.25 R v Rook [1993] 2 All ER 955 .......................................................................................................................... 7.90 R v Rose [1962] 3 All ER 298 ........................................................................................................................ 7.160 R v Rosenberg (1906) 70 JP 264 ................................................................................................................... 9.255 R v Runjanjic and Kontinnen (1991) 56 SASR 114 ............................................................................... 6.85, 6.110 R v Russell [1933] VLR 59 ..................................................................... 3.85, 7.25, 7.45, 7.50, 7.65, 9.165, 9.190 R v Ryan [1821] NSWKR 2 ............................................................................................................................ 2.180 R v Ryan (1890) 11 LR(NSW) 171 ............................................................................................................... 10.120 R v Ryan and Walker [1966] VR 553 ............................................................................................................. 9.130 R v S [1991] Tas R 273 ................................................................................................................................. 11.75 R v Saddler [2008] NSWDC 38 ................................................................................................................... 11.245 R v Salisbury [1976] VR 452 .............................................................................................................. 10.50, 10.95 R v Salvo [1980] VR 401 .............................................................................................. 3.330, 12.50, 12.65, 12.70 R v Samuels [1985] 1 NZLR 350 ..................................................................................................................... 7.65 R v Sanders (1991) 57 SASR 102 .................................................................................................................. 3.330 R v Sang [1980] AC 402; [1979] 2 All ER 1222 ................................................................................ 2.125, 14.215 R v Saunders [1575] Fost 371 ...................................................................................................................... 3.180 R v Saunders [1985] Crim LR 230 ................................................................................................................. 10.80 R v Saunders (unreported, 1991) ............................................................................................................... 11.125 R v Saunders and Archer (1576) 2 Plowd 473; 75 ER 706 ............................................................................... 7.90 R v Savage and Parmenter [1992] 1 AC 699 .................................................................................... 10.55, 10.100 R v Sayers [1943] SASR 146 ......................................................................................................................... 8.120 R v Saylor [1963] QWN 14 ............................................................................................................................. 7.90 R v Scarrow (1968) 52 Cr App R 591 .......................................................................................................... 13.215 R v Scarth [1945] St R Qd 38 .............................................................................................................. 4.95, 9.160 R v Scofield (1784) Cald Mag Rep 397 ........................................................................................................... 8.15 R v Scott [1967] VR 276 .................................................................................................. 3.105, 4.85, 4.95, 4.170 R v Scriva (No 2) [1951] VLR 298 .......................................................................................................... 5.10, 5.30 R v Sebalj [2003] VSC 181 ............................................................................................................................. 4.25 R v Sebalj [2004] VSC 212 ............................................................................................................................. 4.25 R v Secretary (1996) 5 NTLR 96 ............................................................................................. 10.30, 10.40, 10.45 R v Secretary of State for the Home Department; Ex parte Venables; R v Secretary of State for the Home Department; Ex parte Thompson [1997] 3 WLR 23 ................................................................................... 3.15 R v Secretary of State of Home Office Department; Ex parte Brind [1991] 1 All ER 720 ................................. 2.150 R v See Lun (1932) 32 SR(NSW) 363 ................................................................................................. 7.100, 7.110 R v Sew Hoy [1994] 1 NZLR 257 .................................................................................................................. 8.215 R v Seymour [2004] QCA 19 ...................................................................................................................... 12.135 R v Shankar Ramalingam [2011] ACTSC 86 ....................................................................................... 10.20, 10.55 R v Sharkey (1949) 79 CLR 121 .................................................................................................................. 15.225 R v Sharp [1957] 1 QB 552 ........................................................................................................... 13.215, 13.230 R v Sharp [1987] QB 853 ............................................................................................................................. 6.105 R v Sheaf (1927) 134 LT 127 ...................................................................................................................... 12.175 R v Sheer Metalcraft Ltd [1954] 1 QB 586 .................................................................................................... 3.335 R v Shephard [1919] 2 KB 125 ..................................................................................................................... 8.220 R v Shepherd (1987) 86 Cr App R 47 ........................................................................................................... 6.105 R v Sheriff [1969] Crim LR 260 ..................................................................................................................... 10.50 R v Shields [1981] VR 717 .......................................................................................................................... 10.100 R v Shivpuri [1987] AC 1 .............................................................................................................................. 8.205 R v Shorrock [1993] 3 WLR 698 ........................................................................................................ 1.40, 13.135 R v Simcox [1964] Crim LR 402 ................................................................................................................... 5.115 R v Simonidis [1983] 2 Qd R 54 ................................................................................................................... 8.160 R v Simpson (1959) 76 WN (NSW) 589 ....................................................................................................... 9.140 R v Singh [1973] 1 All ER 122 ......................................................................................................................... 6.80 R v Singh (2003) 86 SASR 473 ..................................................................................................................... 4.135 R v Skewes (1981) 7 A Crim R 276 ............................................................................................................... 8.130 R v Sleep (1864) 9 Cox CC 559 ................................................................................................................... 9.255 R v Smith [1681] 2 Show KB 165 ................................................................................................................. 3.325 R v Smith [1949] St R Qd 126 ...................................................................................................................... 4.215 R v Smith [1959] 2 QB 35 ............................................................................................................................ 3.160 R v Smith [1961] AC 290 ............................................................................................................................... 6.80 R v Smith [1963] 1 WLR 1200 ...................................................................................................................... 7.120 R v Smith [1974] QB 354 ............................................................................................................................. 3.345 R v Smith [1979] 1 WLR 1445 ........................................................................................................................ 4.95 R v Smith (1982) A Crim R 437 .................................................................................................................. 12.275 xxxvi

Table of Cases

R v Smyth [1963] VR 737 ............................................................................................................................. 6.115 R v Soley (1707) 11 Mod Rep 115 .............................................................................................................. 13.230 R v Solomon [1959] Qd R 123 ........................................................................................ 7.30, 7.90, 7.120, 7.135 R v Solomon [1980] 1 NSWLR 321 ............................................................................................................... 4.180 R v Sood [2006] NSWSC 1141 ..................................................................................................................... 9.225 R v Spencer; Ex parte Attorney-General (Qld) [1991] QCA 80 ....................................................................... 11.75 R v Sperotto (1970) 71 SR (NSW) 334 ......................................................................................................... 7.120 R v Spratt [1991] 2 All ER 210; [1990] 1 WLR 1073 ........................................................................... 10.50, 10.55 R v Sproule (1975) 26 CCC (2d) 92 ............................................................................................................... 4.95 R v St George (1840) 9 Car & P 483 ............................................................................................................ 10.35 R v Stally [1959] 3 All ER 814 ......................................................................................................................... 7.30 R v Stanley (unreported, 7/4/1995, NSWCCA, No 60554 of 1994) ............................................................ 10.160 R v Steane [1947] KB 997 .............................................................................................................................. 6.80 R v Stein (2007) 18 VR 376 ........................................................................................................................ 10.165 R v Stephens (1839) 3 State Tr NS 1189 .................................................................................................... 13.200 R v Stevens (1991) 23 NSWLR 75 ................................................................................................................. 14.95 R v Stevens [2014] QCA 286 .............................................................................................. 12.80, 12.110, 12.205 R v Stevenson (1990) 58 CCC (3d) 464 ....................................................................................................... 4.150 R v Stingel (1990) 171 CLR 312 ..................................................................................................................... 6.85 R v Stokes (1990) 51 A Crim R 25 ................................................................................................................. 4.155 R v Stone [1981] VR 737 .............................................................................................................................. 7.170 R v Stone [1999] 2 SCR 290 ................................................................................................... 4.115, 4.120, 4.145 R v Stone and Dobinson [1977] 1 QB 354 ......................................................... 3.85, 3.225, 9.165, 9.170, 9.190 R v Stones (1955) 56 SR (NSW) 25; 72 WN (NSW) 465 .................................................................... 4.180, 4.200 R v Stringer (2000) 116 A Crim R 198; [2000] NSWCCA 293 ......................................................... 11.190, 11.220 R v Stripp (1978) 69 Cr App R 318 ................................................................................................................. 4.95 R v Sullivan [1984] 1 AC 156 ................................................................................................................. 4.30, 4.95 R v Summers (1972) 56 Cr App R 604 ........................................................................................................ 13.215 R v Swaffield; Pavic v The Queen (1998) 192 CLR 159 .................................................................... 2.150, 14.230 R v Swain (1991) 63 CCC (3d) 481 ................................................................................................................ 4.70 R v Swindall and Osborne (1846) 2 Car & Kir 230 ....................................................................................... 7.110 R v Taaffe [1984] AC 539 ............................................................................................................................. 8.200 R v Taikato (1996) 186 CLR 454 ................................................................................................................... 1.185 R v Tait [1973] VR 151 ............................................................................................................. 3.105, 4.85, 4.170 R v Taktak (1988) 14 NSWLR 226 ...................................................................................................... 9.165, 9.190 R v Tandy [1989] 1 WLR 350; (1988) 87 Cr App R 45; (1987) 31 A Crim R 453 ................................. 4.200, 5.105 R v Tang (2007) 16 VR 454 ........................................................................................................................ 15.120 R v Tang (2008) 237 CLR 1; [2008] HCA 39 .................................................................................... 15.95, 15.120 R v Taufahema (2007) 228 CLR 232 ......................................................................................... 7.05, 7.140, 7.150 R v Taylor [1911] 1 KB 674 ........................................................................................................................... 12.20 R v Telford (2004) 89 SASR 352 ..................................................................................................................... 4.65 R v Teremoana (1990) 54 SASR 30 ............................................................................................................. 10.180 R v Terry [1955] VLR 114 ............................................................................................................................ 10.135 R v Terry [1964] VR 248 ................................................................................................................................. 5.35 R v Tevendale [1955] VLR 95 ............................................................................................................. 7.160, 7.170 R v Thomas (1937) 59 CLR 279 ................................................................................................................... 3.285 R v Thomas [1993] 1 Qd R 323 .................................................................................................................. 13.235 R v Thompson [1961] 1 Qd R 503 ............................................................................................................... 4.180 R v Tolmie (1995) 37 NSWLR 660 .................................................................................... 11.145, 11.160, 11.255 R v Tolson (1889) 23 QBD 168 .................................................................................................................. 11.145 R v Tonkin [1975] Qd R 1 .................................................................................................................. 7.120, 7.135 R v Torpey (1871) 12 Cox CC 45 ................................................................................................................. 6.130 R v Tout (1987) 11 NSWLR 251 ................................................................................................................... 10.30 R v Tranby [1992] 1 Qd R 432 ..................................................................................................................... 10.80 R v Tranter [2013] SASCFC 61 .................................................................................................................... 14.110 R v Tsigos [1964–5] NSWR 1607 .................................................................................................................... 4.95 R v Tucker (1984) 36 SASR 135 ......................................................................................................... 4.170, 4.180 R v Turner (1846) 173 ER 704 ...................................................................................................................... 9.255 R v Turner (1910) 4 Cr App R 203 ................................................................................................................ 9.220 R v Turner [1962] VR 30 ............................................................................................................................. 10.120 R v Turner (No 2) [1971] 2 All ER 441 ........................................................................................................ 12.155 R v Ul-Haque (unreported, NSWSC, 18 February 2006) ............................................................................. 15.185 R v Upton [2005] ACTSC 52 ........................................................................................................................ 2.155 R v Valderrama-Vega [1985] Crim LR 220 ..................................................................................... 6.80, 6.85, 6.90 R v Van Beelen (1973) 4 SASR 353 .................................................................................................... 9.130, 10.80 R v Van Den Bend (1994) 170 CLR 137 ........................................................................................................ 9.140 R v Vasic (2005) 155 A Crim R 26; [2005] VSCA 38 ..................................................................................... 12.280 xxxvii

Principles of Criminal Law

R v Vassiliev [1968] 3 NSWLR 155 .................................................................................................................. 5.70 R v Veaty (1910) 74 JP Jo 352 ....................................................................................................................... 9.255 R v Venna [1976] QB 421; [1975] 3 All ER 788; 3 WLR 737 ....................................... 10.25, 10.50, 10.55, 10.100 R v Vickers [1957] 2 QB 664; [1957] 3 WLR 326; [1957] 2 All ER 741 ....................................... 3.105, 4.85, 4.170 R v Voukelatos [1990] VR 1 .................................................................................................................... 5.35, 5.55 R v Vreones [1891] 1 QB 360 ....................................................................................................................... 8.145 R v Wagner (1993) 66 A Crim R 583 ............................................................................................................. 15.60 R v Wald (1971) 3 DCR (NSW) 25 ..................................................................................................... 6.150, 9.225 R v Walsh (1824) 168 ER 1166 ..................................................................................................................... 12.20 R v Walsh [1984] VR 474 ................................................................................................................... 8.130, 8.140 R v Walsh (1991) 60 A Crim R 419 ........................................................................................................ 4.70, 6.45 R v Walsh (unreported, Kingston Crown Court, 8 August 2012) ................................................................... 11.20 R v Wampfler (1987) 11 NSWLR 541 ................................................................................................. 3.270, 3.275 R v Ward (1938) 38 SR (NSW) 308 ............................................................................................................... 12.25 R v Warner (1970) 55 Cr App R 93 ............................................................................................................. 12.205 R v Warner [1980] Qd R 207 ........................................................................................................................ 6.165 R v Waterage (1846) 1 Cox CC 338 ............................................................................................................. 9.255 R v Waterfield [1964] 1 QB 164 .................................................................................................................... 10.70 R v Watson [1987] 1 Qd R 440 ............................................................................................................ 5.65, 9.120 R v Watson [1989] 1 WLR 684 ...................................................................................................................... 9.150 R v Webb (1977) 16 SASR 309 ..................................................................................................................... 4.210 R v Webb; Ex parte Attorney-General [1990] 2 Qd R 275 ............................................................................... 7.80 R v Wei Tang [2006] VCC 637 .................................................................................................................... 15.120 R v Wei Tang (2007) 16 VR 454 .................................................................................................................. 15.120 R v Welch (1995) 101 CCC (3d) 216 ............................................................................................... 10.165, 11.50 R v Welsh (1869) 11 Cox 336 ......................................................................................................................... 5.10 R v West (1848) 2 Cox CC 500 .................................................................................................................... 3.190 R v Wewar (1842) .......................................................................................................................................... 2.50 R v White [1910] 2 KB 124 ............................................................................................................................. 8.40 R v White (1951) 51 SR (NSW) 188 .............................................................................................................. 9.175 R v White (1987) 31 A Crim R 194 ............................................................................................................... 6.165 R v White (2002) 135 A Crim R 346 ............................................................................................................. 12.65 R v Whitehouse (1941) 1 WWR 112 ............................................................................................................... 7.90 R v Whitehouse [1977] QB 868 .................................................................................................................... 8.180 R v Whitworth [1989] 1 Qd R 437 ................................................................................ 4.200, 5.85, 5.100, 5.105 R v Wholesale Travel Group Inc [1991] 3 SCR 154 ........................................................................................ 3.310 R v Williams [1923] 1 KB 340 ..................................................................................................................... 11.120 R v Williams (1932) 32 SR (NSW) 504 ......................................................................... 7.100, 7.110, 7.155, 7.160 R v Williams [1953] 1 QB 660 ...................................................................................................................... 12.35 R v Williams [1965] Qd R 86 ................................................................................................................. 8.35, 8.45 R v Williams (1990) 50 A Crim R 213 ............................................................................................................ 3.215 R v Williams (Gladstone) (1984) 78 Cr App R 276 .......................................................................................... 6.20 R v Williamson [1972] 2 NSWLR 281 ................................................................................. 6.70, 6.80, 6.90, 6.110 R v Willmot (No 2) [1985] 2 Qd R 413 ......................................................................................................... 9.115 R v Wills [1983] 2 VR 201 ....................................................................................................... 9.140, 9.155, 9.170 R v Wilson (1856) 169 ER 945 ...................................................................................................................... 9.220 R v Wilson [1996] 3 WLR 125; (1996) 2 Cr App R 241 ........................................................ 10.150, 10.165, 11.20 R v Wilson (unreported, 2013) ................................................................................................................... 11.125 R v Wong and Others (2005) 202 FLR 1 ......................................................................................................... 7.25 R v Wood and McMahon (1830) 1 Mood CC 278 ........................................................................................ 10.80 R v Woodrow (1846) 15 M & W 404 ........................................................................................................... 3.255 R v Woollin [1998] 4 All ER 103; 3 WLR 382 .................................................................................... 3.185, 15.195 R v Wyles; Ex parte Attorney-General (Qld) [1977] Qd R 169 ......................................................................... 7.80 R v Yilmaz [2003] ACTCA 20 ........................................................................................................................ 4.135 R v Young (1878) 12 Cox CC 114 ................................................................................................................ 11.60 R v Youssef (1990) 50 A Crim R 1 ...................................................................................................... 2.175, 2.185 R v Yusurf [2005] VSCA 69 .......................................................................................................................... 11.150 R v Zilm [2006] VSCA 72 ............................................................................................................................ 11.150 R v de Souza (unreported, 20/10/1995, NSWSC, Dunford J) ........................................................................ 5.105 R (a child) v Whitty (1993) 66 A Crim R 462 .................................................................................................. 3.25 R (on the application of Nicklinson and another) v Ministry of Justice and others [2014] UKSC 38 ................. 9.60 R (on the application of Purdy) v Director of Public Prosecutions [2009] UKHL 45 .......................................... 9.60 R and Minister for Customs and Australasian Films Ltd (1921) 29 CLR 195 ..................................................... 3.45 RH v Director of Public Prosecutions (NSW) [2013] NSWSC 520 .................................................................... 3.25 RH v Director of Public Prosecutions (NSW) [2014] NSWCA 305 .................................................................... 3.25 RIL Aviation HL 7740 & HL 7741 Pty Ltd v Alliance & Leicester Plc [2011] NSWCA 423 ................................... 3.40 RLP (2009) VSCA 271 ................................................................................................................................. 11.195 xxxviii

Table of Cases

RP v Ellis [2011] NSWSC 442 .......................................................................................................................... 3.25 RPS v The Queen (2000) 199 CLR 620 ......................................................................................................... 2.190 Rabey v The Queen [1980] 2 SCR 513 ................................................................................................ 4.90, 4.125 Race Relations Board v Applin [1973] QB 815 .............................................................................................. 8.180 Radford v The Queen (No 2) (1986) 11 Crim LJ 231 ...................................................................................... 4.95 Rahman (1985) 81 Cr App R 349 ............................................................................................................... 10.185 Rance v Mid-Downs Health Authority [1991] 1 QB 587 ....................................................................... 9.30, 9.240 Rank Film Distributors Ltd v Video Information Centre [1981] 2 All ER 76 ................................................... 12.210 Rex v Donovan [1934] 2 KB 498 ................................................................................................................ 10.140 Rice v Connolly [1966] 2 QB 414 ............................................................................................................... 13.100 Ridgeway v R (1995) 184 CLR 19 ....................................................................................... 14.95, 14.215, 14.220 Roads and Traffic Authority (NSW) v Jara Transport Pty Ltd (2005) 44 MVR 394 ........................................... 3.270 Roads and Traffic Authority of New South Wales v O’Reilly (2009) 52 MVR 243 ................................ 3.280, 3.285 Roberts v Western Australia [2008] HCATrans 297 ........................................................................................ 9.140 Roberts v Western Australia (2007) 34 WAR 1 ............................................................................................... 9.140 Robinett v Police [2000] SASC 405 ............................................................................................................ 13.185 Roche v The Queen [1988] WAR 278 .................................................................................................... 5.30, 5.35 Rodriguez v Attorney-General (British Columbia) [1993] 3 SCR 519 ............................................................... 9.60 Roffel v R [1985] VR 511 ............................................................................................................................ 12.100 Rogers v Whitaker (1992) 175 CLR 479 ........................................................................................................ 6.180 Rogers and Murray (1989) 44 A Crim R 301 ................................................................................................. 2.220 Rogerson (1990) 51 A Crim R 359 ................................................................................................................ 8.155 Rolfe (1952) 36 Cr App R 4 .......................................................................................................................... 10.50 Rooke v Auckland City Council [1980] 1 NZLR 680 ...................................................................................... 4.195 Rose v The Queen [1961] AC 496 ................................................................................................................ 5.115 Rowe v Kemper [2008] QCA 175 ............................................................................................................... 13.100 Royall v The Queen (1991) 172 CLR 378 ..... 3.110, 3.120, 3.125, 3.130, 3.145, 3.210, 3.360, 9.40, 9.110, 9.120 Royley’s case (1612) Cro Jac 296 ................................................................................................................... 5.10 Rozsa v Samuels [1969] SASR 205 ..................................................................................................... 10.25, 10.45 Rubie v Faulkner [1940] 1 KB 571 .................................................................................................................. 7.50 Russell and Russell (1987) 85 Cr App R 388 .................................................................................................... 7.80 Ryan v The Queen (1967) 121 CLR 205 ............................ 2.175, 3.105, 3.360, 4.85, 4.100, 4.140, 4.170, 9.130

S S v de Blom (1977) (3) SA 513 ..................................................................................................................... 3.320 S v The Queen (1989) 168 CLR 266 ........................................................................................................... 11.195 SAJ v The Queen (2012) 269 FLR 390; 225 A Crim R 528; 36 VR 435; [2012] VSCA 243 .................... 12.50, 12.65 S&Y Investments (No 2) Pty Ltd v Commercial Union Assurance Co of Australia Ltd (1986) 85 FLR 285 ......... 3.50 SC Small v Noa Kurimalawai (unreported, 22/10/1997, Magistrates’ Court ACT, CC97/01904) ................... 4.165 SW v United Kingdom; CR v United Kingdom (1996) 21 EHRR 363 .............................................................. 11.65 Saad v The Queen (1987) 29 A Crim R 20 ....................................................................................... 3.200, 14.140 Saler v Klingbeil [1945] SASR 171 .................................................................................................................. 6.20 Salford Health Authority; Ex parte Jamaway [1988] 2 WLR 442 ...................................................................... 7.65 Saliman v State of Israel (Israel Supreme Court, 17 August 2008) ............................................................... 11.125 Satnam and Kewal (1983) 78 Cr App R 149 ............................................................................................... 11.160 Saunders v Herold (1991) 105 FLR 1 .......................................................................................................... 13.180 Saunders v The Queen [1980] WAR 183 ............................................................................................ 7.120, 7.135 Savage v DPP [1991] 3 WLR 914 ................................................................................................................ 10.100 Saw [2004] VSC 117 .................................................................................................................................. 11.195 Schiavo Ex Rel v Schiavo 544 US 945 (2005) .................................................................................................. 9.95 Schloendorff v Society of New York Hospital 105 NE 92 (SCNY 1914) ............................................................ 9.60 Schloss v Maguire (1897) 8 QLJ 21 ............................................................................................................ 10.140 Schmid v Keith Quinn Motor Co Pty Ltd (1987) 47 SASR 96 ........................................................................ 3.275 Scott v Commissioner of Police for the Metropolis [1975] AC 819 ................................................................ 12.50 Scott v Killian (1985) 40 SASR 37; (1984) 36 SASR 438 .................................................................................. 7.65 Scott v Metropolitan Commissioner of Police [1975] AC 819 ................................................. 8.130, 8.140, 8.160 Secretary of State for the Home Department v Robb [1995] 1 Fam LR 127 .................................................. 9.190 Seers (1984) 79 Cr App R 261 ........................................................................................................................ 5.85 Sellen (1991) 57 A Crim R 313 ................................................................................................................... 11.195 Shadrokh-Cigari [1988] Crim LR 465 ......................................................................................................... 12.160 Sharp v McCormick [1986] VR 869 ............................................................................................................ 12.225 Shaw v DPP [1962] AC 220 .................................................................................................... 1.210, 8.130, 8.135 Sherman v United States 356 US 369 (1958) ............................................................................................. 14.215 Sherras v De Rutzen [1895] 1 QB 918 ............................................................................................... 3.240, 3.255 Sibanda v The Queen [2011] VSCA 285 ..................................................................................................... 11.155 xxxix

Principles of Criminal Law

Simpson (1915) 11 Cr App R 218 .................................................................................................................. 5.35 Sims v Drewson [2008] ACTSC 91 .............................................................................................................. 11.160 Singh (unreported, 18/12/1990, VCA, No 226 of 1990) .............................................................................. 11.50 Sio v The Queen (2016) 334 ALR 57 ............................................................................................................ 7.120 Slaveski v Victoria [2010] VSC 441 .................................................................................................... 10.30, 10.40 Smith v Byrne (1894) QCR 252 .................................................................................................................. 10.135 Smith v Chief Superintendent Woking Police Station (1983) 76 Cr App R 234 .............................................. 10.40 Smith v Le Mura [1983] Qd R 535 ............................................................................................................... 3.235 Smith v The Queen (unreported, 6/3/1979, Tas CCA, Cosgrove, Crawford and Nettleford JJ) ........................ 6.70 Smith v Trocadero Dansant Ltd [1927] St R Qd 39 ......................................................................................... 3.40 Smith (1987) 44 SASR 587 ......................................................................................................................... 11.195 Smith, Maltimore v R [2016] NSWCCA 93 ................................................................................................. 14.140 Snell v Pryce (1990) FLR 213 ...................................................................................................................... 12.145 Snow v The Queen [1962] Tas SR 271 .................................................................................... 4.170, 4.180, 4.215 Sodeman v The King (1936) 55 CLR 192 .............................................................................................. 4.65, 4.70 Soering v United Kingdom (1989) 11 EHRR 439 ........................................................................................ 15.130 Sorrells v United States 287 US 435 (1932) ................................................................................................ 14.215 South Australia v Totani [2010] HCA 39 ...................................................................................................... 15.275 Sreckovic v The Queen [1973] WAR 85 .......................................................................................................... 5.70 Stapleton v The Queen (1952) 86 CLR 358 ........................................................................................... 3.25, 4.60 State v Barry (1912) 45 Mont 598 ............................................................................................................... 10.35 State Rail Authority (NSW) v Hunter Water Board (1992) 65 A Crim R 101; 28 NSWLR 721 ............... 3.280, 3.285 State of Israel v Kashur (July 19, 2010—Jerusalem District Court) CrimC (Jer) 561/08 ................................. 11.125 State of NSW v Tyszyk [2008] NSWCA 107 .................................................................................................. 13.60 Steel v United Kingdom (1999) 28 EHRR 603 ....................................................................... 13.25, 13.90, 13.125 Stein v Henshall [1976] VR 612 .................................................................................................................... 12.90 Stephens v Robert Reid & Co Ltd (1902) 28 VLR 82 ....................................................................................... 3.50 Stephenson v State 179 NE 633 (1933) ....................................................................................................... 3.155 Stewart v The Queen (1983) 149 DLR (3d) 583 ......................................................................................... 12.145 Stewart v The Queen (1988) 41 CCC (3d) 481 ............................................................................. 12.210, 15.250 Stewart and Schofield [1995] 1 Cr App R 441 .............................................................................................. 7.110 Stingel v The Queen (1990) 171 CLR 312 .............................. 2.25, 3.25, 5.10, 5.30, 5.40, 5.45, 5.50, 5.60, 5.70 Stokes and Difford (1990) 51 A Crim R 25 ................................................. 4.180, 4.220, 7.45, 7.75, 7.150, 10.55 Strathfield Municipal Council v Elvy (1992) 25 NSWLR 745 .............................................................. 3.275, 3.285 Stuart v The Queen (1974) 134 CLR 426 .......................................................................................... 7.120, 7.135 Subramaniam v Public Prosecutor [1956] 1 WLR 965 ..................................................................................... 6.80 Sullivan (1981) 6 A Crim R 259 .................................................................................................................... 4.155 Summers (1986) 22 A Crim R 47 .................................................................................................................. 4.180 Sweetman v Industries and Commerce Department [1970] NZLR 139 ......................................................... 7.110

T T v DPP; L v DPP; H v DPP [1977] Crim LR 127 .............................................................................................. 3.25 T v United Kingdom; V v United Kingdom (1999) IX ECHR 112 ..................................................................... 3.15 T (Adult: Refusal of Treatment), Re [1992] 4 All ER 649; 3 WLR 782 ................................................... 9.45, 10.155 T (Adult: Refusal of Treatment), Re [1993] Fam 95 ..................................................................................... 10.155 TTS Pty Ltd v Griffiths (1991) 105 FLR 255 ................................................................................................... 3.240 Taaffe (1983) 77 Crim App R 82 ................................................................................................................... 8.200 Tabe v The Queen (2005) CLR 418 ................................................................................................................ 7.75 Taktak (1988) 34 A Crim R 334 ......................................................................................................... 3.85, 14.145 Talbot v Norman (2012) 275 FLR 484 ............................................................................................................ 9.30 Tangye (1997) 92 A Crim R 545 ................................................................................................................... 7.150 Taxation, Commissioner of v La Rosa [2004] HCATrans 420; (2003) 198 ALR 521 ...................................... 14.185 Taylor v DPP [1973] AC 964 ....................................................................................................................... 13.215 Taylor v The King [1948] 1 DLR 545 ............................................................................................................. 4.210 Teixeira de Castro v Portugal (EHRR, 9 June 1998, Reports of Judgments and Decisions 1998-IV) .... 2.130, 14.225 Temoannui v Ford [2009] ACTSC 69 ............................................................................................... 13.85, 13.105 Terry Ernest Curnow v Leonard David Pryce [1999] NTSC 116 ..................................................................... 2.230 Tesco Supermarkets Ltd v Nattrass [1972] AC 153 .............................................................................. 3.50, 3.310 Thabo Meli v The Queen [1954] 1 WLR 228 ..................................................................................... 3.360, 3.365 Thambiah v The Queen [1966] AC 37 ............................................................................................................ 7.25 Thomas v McEather [1920] St R Qd 166; (1920) 14 QJPR 160 .......................................................... 3.235, 3.240 Thomas v Mowbray (2007) 233 CLR 307 ........................................................................................ 15.20, 15.150 Thomas v The Queen (1937) 59 CLR 279 .................................................................................................... 3.285 Thomas v The Queen (1960) 102 CLR 584 ....................................................................................... 2.175, 2.180 Thomas (1985) 81 Cr App R 331 ................................................................................................................. 10.50 xl

Table of Cases

Thompson v The Queen (1989) 169 CLR 1 .................................................................................. 2.45, 2.50, 2.70 Thornton v Mitchell [1940] 1 All ER 339 ............................................................................................ 7.100, 7.110 Tietie (1988) 34 A Crim R 438 ........................................................................................................................ 7.90 Tofilau v The Queen (2007) 231 CLR 396 .................................................................................................. 14.235 Toonen v Australia (1994) 1 PLPR 50 ................................................................................................. 2.150, 2.245 Totani v South Australia [2009] SASC 301 .................................................................................................. 15.275 Tracey, Re; Ex parte Ryan [1989] HCA 12 ..................................................................................................... 15.25 Trade, Board of v Owen [1957] AC 602 ................................................................................................ 2.70, 8.90 Trade Practices Commission v Tubemakers of Australia Ltd (1983) 76 FLR 455; 47 ALR 719 ........ 3.40, 3.45, 3.50, 8.75 Treacy v DPP [1971] AC 537 .......................................................................................................................... 2.45 Tsang Ping-Nam v The Queen [1981] 1 WLR 1462 ...................................................................................... 2.175 Tsiaras [1996] 1 VR 398 .............................................................................................................................. 11.195 Tuck v Robson [1970] All ER 1171 .................................................................................................................. 7.50 Tumanako (1992) 64 A Crim R 149 ..................................................................................................... 5.85, 5.100 Turnbull (1977) 65 Cr App R 242 ........................................................................................................ 5.85, 5.165 Turner, Re (1984) 13 CCC (3d) 430 ........................................................................................................... 15.250 Tyler and Price (1838) 1 Mood CC 428 ........................................................................................................ 7.105

U Uday v State of Markataka (2003) AIR SC 1639 .......................................................................................... 11.125 Union Steamship of Australia Pty Ltd v King (1988) 166 CLR 1 ....................................................................... 2.70 United States v Behrman 258 US 280 (1922) ............................................................................................... 14.80 United States v Jimenez Recio 537 US 270 (2003) ........................................................................................ 8.125 United States v Russell 411 US 423 (1973) ................................................................................................. 14.215 Universal Telecasters (Qld) Ltd v Guthrie (1978) 18 ALR 531 ............................................................... 3.50, 3.275 Usmanov v R [2012] NSWDC 290 ................................................................................................... 11.10, 11.205

V Vaillancourt v The Queen [1987] 2 SCR 636 ................................................................................................. 9.130 Vallance v The Queen (1961) 108 CLR 56 ............................................... 2.25, 3.235, 3.240, 9.120, 10.55, 10.80 Valler (1844) 1 Cox 84 ................................................................................................................................. 7.105 Van Den Hoek v The Queen (1986) 161 CLR 158 .................................................................................. 5.10, 5.40 Van Leeuwen v The Queen (1981) 36 ALR 591 .................................................................................. 2.175, 2.180 Van Mechlen v The Netherlands [1997] HRCD 431 (23 April 1997) ................................................... 2.130, 2.135 Van den Hoek v The Queen (1986) 161 CLR 158 ........................................................................................... 5.70 Varley v The Queen [1976] 12 ALR 347 ........................................................................................................ 7.125 Veen v The Queen (No 1) (1979) 143 CLR 458 ............................................................................................ 5.165 Veen v The Queen (No 2) (1988) 164 CLR 465 ..................................................................................... 1.85, 4.80 Victoria Park Racing v Taylor (1937) 58 CLR 479 .......................................................................................... 2.240 Vidal-Hall & Ors v Google Inc [2014] EWHC 13 ........................................................................................... 2.240 Viro v The Queen (1978) 141 CLR 88 ................................................. 2.175, 4.155, 4.180, 6.15, 6.30, 6.50, 6.55 Von Lieven v Stewart (1990) 21 NSWLR 52 ................................................................. 3.250, 3.275, 3.280, 3.285

W Wai Yu-Tsang v The Queen [1992] 1 AC 269 ..................................................................................... 8.130, 8.140 Wainohu v New South Wales [2011] HCA 24 .............................................................................................. 15.275 Wake v Northern Territory (1996) 124 FLR 298 .............................................................................................. 9.50 Wakefield, Re (1958) 75 WN (NSW) 66 .......................................................................................................... 4.95 Wakeman v Farrar [1974]136 ..................................................................................................................... 12.175 Walden v Hensler (1987) 163 CLR 561 ......................................................................................................... 3.330 Walden (1986) 19 A Crim R 444 ..................................................................................................................... 6.30 Walker v Bradley (unreported, 15/12/1993, NSWDC, Kirkham J, 1919 of 1989) ......................................... 10.155 Walker v New South Wales (1994) 182 CLR 45 ............................................................................................ 2.210 Wallis v Lane [1964] VR 293 ......................................................................................................................... 12.20 Walplan Pty Ltd v Wallace (1985) 8 FCR 27 .................................................................................................... 3.45 Walsh v Sainsbury (1925) 36 CLR 464 ............................................................................................... 7.100, 7.110 Ward v The Queen (1980) 142 CLR 308 ........................................................................................................ 2.60 Wardrope (1987) 29 A Crim R 198 ................................................................................................................. 5.70 Warren v The Queen [1987] WAR 314 ............................................................................................... 7.120, 7.135 Watherston v Woolven (1988) 139 LSJS 366 .............................................................................................. 10.160 xli

Principles of Criminal Law

Watmore v Jenkins [1962] 2 QB 572 .............................................................................................................. 4.95 Watson v The Queen [2015] EWCA Crim 559 ............................................................................................... 11.85 Wayne v Boldiston (1992) 85 NTR 8 ............................................................................................................ 10.80 Webb v United States 249 US 96 (1919) ...................................................................................................... 14.80 Weight v Long [1986] Crim LR 746 .............................................................................................................. 10.70 Welch v United Kingdom (1995) 20 EHRR 247 ........................................................................................... 14.200 Welham v DPP [1961] AC 103 ...................................................................................................................... 8.160 Welham (1845) 1 Cox 192 ........................................................................................................................... 7.105 Wellard (1978) 67 Cr App R 364 ................................................................................................................ 10.185 Wesley-Smith v Balzary (1977) 14 ALR 681 ................................................................................................... 8.190 Westaway (1991) 523 A Crim R 336 ........................................................................................................... 10.100 Wheeler (1990) 92 Cr App R 279 ............................................................................................................... 12.110 Whelan v The Queen (2012) 228 A Crim R 1 .................................................................................................. 9.30 White v Director of Military Prosecutions (2007) 231 CLR 570 ..................................................................... 10.15 White v Ridley (1978) 140 CLR 342 ....................................................................................... 7.90, 7.105, 14.110 White (1987) 31 A Crim R 194 ..................................................................................................................... 6.175 Whitefield (1983) 79 Cr App R 36 .................................................................................................................. 7.90 Whitney v California 274 US 357 (1927) ...................................................................................................... 13.70 Whybrow (1951) 35 Cr App R 141 ............................................................................................................... 10.65 Whyte v The Queen [1988] 2 SCR 3 .......................................................................................................... 14.125 Widgee Shire Council v Bonney (1907) 4 CLR 977 ......................................................................................... 3.05 Wilcox v Jeffery [1951] 1 All ER 464 ..................................................................................... 3.85, 7.25, 7.30, 7.45 Willgoss v The Queen (1960) 105 CLR 295 .................................................................................. 4.45, 4.50, 4.55 Williams v Spautz (1992) 174 CLR 509 ........................................................................................................ 2.145 Williams v The Queen [1978] Tas SR 98 ......................................................................................................... 4.95 Williams v The Queen (1986) 161 CLR 278 ............................................................... 2.115, 10.65, 13.65, 13.125 Williams (1990) 50 A Crim R 213 .................................................................................................... 10.55, 10.100 Wilson v Ferguson [2015] WAS 15 .............................................................................................................. 11.205 Wilson v Kuhl; Ryan v Kuhl [1979] VR 315 .................................................................................................... 10.35 Wilson v Pringle [1986] 2 All ER 440 ............................................................................................................. 10.40 Wilson v The Queen (1992) 174 CLR 313 ...................................................... 9.135, 9.140, 9.155, 9.175, 10.100 Wilson v The Queen (2011) 33 VR 340 ....................................................................................................... 11.155 Wilson v Woodrow (1987) 26 A Crim R 387 ................................................................................................. 12.90 Wilton (1993) 64 A Crim R 359 ...................................................................................................................... 7.90 Wise v Dunning [1902] 1 KB 167 ............................................................................................................... 13.200 Wiseman, Re (1972) 46 ALJ 412 ..................................................................................................................... 4.95 Wogandt (1988) 33 A Crim R 31 ......................................................................................................... 4.95, 4.140 Wooley v Fitzgerald [1969] Tas SR 65 ......................................................................................................... 10.140 Woolmington v DPP [1935] AC 462 .................................. 2.160, 2.175, 2.180, 3.105, 4.70, 4.85, 4.170, 14.120 Woolworths Ltd v Luff (1988) 33 A Crim R 144 .............................................................................................. 3.50 Worsnop v The Queen (2010) 28 VR 187 ................................................................................................... 11.155 Wray v The King (1930) 33 WALR 67 ............................................................................................................. 4.65 Wright v McQualter (1970) 17 FLR 305 ..................................................................................................... 13.125

X X v The Sydney Children’s Hospitals Network [2013] NSWCA 320 ............................................................... 6.180 X v X [1958] Crim LR 805 .............................................................................................................................. 3.25 X (unreported, 15/8/2002, NSWDC) ......................................................................................................... 11.165 X7 v Australian Crime Commission (2013) 248 CLR 92 ........................................................ 2.130, 2.160, 14.125

Y Yedla Srinivasa Rao v State of A.P (2006) 11 SCC 615 ................................................................................. 11.125 Yip Chiu-Cheung v The Queen [1995] 1 AC 111 .......................................................................................... 8.125 York [2005] HCA 60; (2005) 225 CLR 466 .................................................................................................. 11.195 Youssef (1990) 50 A Crim R 1 ..................................................................................................... 4.30, 4.95, 4.140

Z Zaburoni v The Queen (2016) 256 CLR 482 ............................................................................................... 11.120 Zaharias (2001) 122 A Crim R 586 ............................................................................................................... 6.115 Zakaria (1992) 62 A Crim R 259 ................................................................................................................... 3.200 Zanker v Vartzokas (1988) 34 A Crim R 11 .................................................................................................... 10.40 xlii

Table of Cases

Zarb v Kennedy (1968) 121 CLR 283 ............................................................................................................. 2.90 Zecevic v DPP (1987) 162 CLR 645 ................................................................................................. 4.210, 10.125 Zecevic v DPP (Vic) (1987) 162 CLR 645 ................................ 6.05, 6.15, 6.25, 6.30, 6.35, 6.40, 6.45, 6.50, 6.55 Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 .................................... 4.95 Zijlstra v Northern Territory of Australia [2011] NTSC 46 ............................................................................ 10.140 Zikovic (1985) 17 A Crim R 396 .......................................................................................................... 6.30, 9.155 Zirilli v The Queen [2014] HCA 2 ................................................................................................................. 2.120

xliii

TABLE OF STATUTES Classification (Publications, Films And Computer Games) (Enforcement) Act 1995 s 3: 11.235 s 56: 11.235

COMMONWEALTH Acts Interpretation Act 1901 s 2C: 3.35 s 15AB(2): 2.150

Classification (Publications, Films and Computer Games) Amendment Act 2004: 11.235

Anti-Money Laundering and Counter-Terrorism Financing Act 2006: 14.180, 14.185 s 5: 14.185 s 6: 14.185 s 40: 14.185 s 47: 14.185 s 51B: 14.185 s 81: 14.185 Pt 2: 14.185

Classification (Publications, Films and Computer Games) (Enforcement) Amendment Act 2005: 15.235 Competition and Consumer Act 2010: 3.65 ss 44ZZRF to 4ZZRK: 3.65 Constitution s 51: 15.225 s 51(i): 2.75, 14.95 s 51(v): 11.205, 15.250 s 51(vi): 15.20, 15.30 s 51(xxiv): 15.30 s 51(xxix): 2.75, 11.245, 14.95, 15.15 s 51(xxxvii): 15.175 s 80: 2.90, 2.130, 2.190 s 109: 11.65

Anti-Terrorism Act 2004: 15.150 Anti-Terrorism Act (No 2) 2004: 15.200 Anti-Terrorism Act 2005: 8.30 Anti-Terrorism Act (No 2) 2005: 8.30, 15.150 Sch 7, item 12: 15.20 Australian Citizenship Amendment (Allegiance to Australia) Act 2015: 15.20

Copyright Act 1968 s 132AD: 12.210 ss 132AD to AJ: 12.210 s 132AL: 12.210 Div 5: 12.210

Australian Crime Commission Act 2002 s 4A(2): 15.280 Australian Crime Commission Amendment (National Policing Information) Act 2016: 15.10

Corporations Act 2001: 2.75, 12.65 s 184(2): 12.65 s 184(2)(a): 12.65

Australian Federal Police Act 1979: 15.150 s 8: 13.15 s 64: 13.85

Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014: 15.150, 15.230

Australian Security Intelligence Organisation Act 1979: 15.130, 15.150 s 34G: 15.165

Crimes Act 1914: 7.20, 12.15, 14.220, 15.150, 15.225 s 3ZC: 10.120 ss 4G to 4H: 2.100 s 4AA: 14.105, 14.180 s 6: 7.20, 7.155, 7.170, 7.175 s 7(3)(a): 8.205 s 15I: 14.220 s 15J: 14.220 s 15R: 14.220 s 15T: 14.220 s 15GA: 14.220 s 15GI: 14.220 s 15HA: 14.220 s 15HB: 14.220 s 15UC(1): 14.220 s 16A: 2.220 s 16A(2A): 2.220 s 16A(2A)(b): 2.220 s 16A(1): 1.55 s 16A(2)(m): 11.195 s 19B: 13.20 s 20BJ: 4.80 s 24A: 15.225 s 24A(1)(g): 15.225

Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003: 15.140 Aviation Crimes and Policing Legislation Amendment Act 2010: 15.130 Broadcasting Services Amendment (Online Services) Act 1999: 11.235, 11.245 Sch 1: 11.235 Cheques Act 1986: 12.135 Civil Aviation Act 1988 s 24: 10.70 Classification (Publications, Films and Computer Games) Act 1995: 11.235, 11.240, 11.245 s 3: 11.235 s 7: 11.235 s 11: 11.235 s 48(2): 11.235 Sch 1: 11.245 xlv

Principles of Criminal Law

s 4: 9.35 s 4.1(1): 14.140 s 4.1(2): 7.50 s 4.2(3): 4.90 s 5.2: 9.115, 15.70 s 5.2(1): 7.105, 15.190 ss 5.2(2) to (3): 8.75 s 5.2(3): 7.65 s 5.3: 8.75, 15.190 s 5.4: 10.190, 12.275, 14.140 s 5.4(1): 3.210, 9.110 s 5.4(2): 7.120, 9.110 s 5.4(3): 3.210 s 5.4(4): 3.210, 3.245 s 5.5: 3.60, 3.225, 7.105 s 5.6: 3.245, 14.140, 15.175, 15.190 s 5.6(1): 14.140, 15.190 s 5.6(2): 15.70, 15.90, 15.260 s 5.6(4): 15.175 s 6.1: 14.140, 15.70, 15.185 ss 6.1 to 6.2: 3.245 s 6.2: 14.140 s 7.1: 3.15 s 7.2: 3.25 s 7.3(1): 4.20 s 7.3(1)(a): 4.20 s 7.3(1)(b): 4.20, 4.60 s 7.3(1)(c): 4.20, 4.65 s 7.3(3): 3.10, 4.70, 4.140 s 7.3(4): 4.70 s 7.3(8): 4.20, 4.40, 4.45 s 7.3(9): 4.35 s 8.2(1): 4.160 s 8.3(1): 4.195 s 8.3(2): 4.195 s 9.1: 3.225, 6.170 s 9.2: 3.275, 3.290, 6.170, 14.140, 15.185 s 9.4: 3.355 s 9.4(2)(c): 3.340 s 9.5: 3.330 s 10.2: 6.70, 6.80, 6.100 s 10.2(2): 6.85, 6.90, 6.95, 6.115 s 10.2(2)(b): 6.110 s 10.2(3): 6.70, 6.105 s 10.3: 6.140, 6.150, 6.175 s 10.3(1): 6.155 s 10.3(2): 6.160 s 10.4: 4.210, 6.15 s 10.4(2): 6.15, 6.45, 6.50 s 10.4(2)(a): 6.20 s 10.4(3): 6.15, 6.25 ss 10.4(3)(a) to (c): 6.05 s 10.4(4): 6.35 s 11.1: 8.30, 15.185 s 11.1(2): 8.35, 8.55, 15.185 s 11.1(3): 8.75 s 11.1(4)(a): 8.200, 8.205 s 11.1(5): 8.190 s 11.1(6A): 8.75 s 11.1(7): 8.170 s 11.2: 7.10, 7.65, 7.120 s 11.2(1): 7.20 s 11.2(2)(a): 7.30 s 11.2(3)(a): 7.65, 7.75 s 11.2(3)(b): 7.65, 7.120, 7.135 s 11.2(4): 7.90 s 11.2(5): 7.10, 7.185

Crimes Act 1914 — cont s 28: 13.145 s 29: 12.15 s 29D: 12.260 s 30K: 7.30 s 42: 8.145 s 52: 15.15 s 76C: 15.250 s 85S: 15.155 s 85X: 15.155 s 85Y: 15.155 s 86(1)(e): 2.25 s 86A: 2.25 Pt 1D: 2.245 Pt IB: 1.60 Crimes Amendment (Controlled Operations) Act 1996: 14.220 Crimes (Aviation) Act 1991: 15.130 s 21: 10.70 Crimes (Foreign Incursions and Recruitment) Act 1978: 15.230 Crimes (Internationally Protected Persons) Act 1976 s 8(1): 10.185 s 8(2): 10.180 s 8(7)(c): 10.180 Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Act 2016: 14.200 Crimes Legislation Amendment (Serious and Organised Crime) Act 2010: 15.10, 15.280 Crimes Legislation Amendment (Slavery, Slavery-Like Conditions and People Trafficking) Act 2013: 11.190, 15.95, 15.115 Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act 2010: 15.85 Crimes (Torture) Act 1988: 15.85 Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990: 14.90, 14.150 s 5(1): 14.150 s 6: 14.150 s 9: 14.150 s 9(1)(b): 14.150 s 10: 14.150 s 11: 14.150 s 12: 14.205 s 13: 14.205 s 14: 14.205 Criminal Code: 2.25, 2.70, 2.160, 3.60, 3.210, 3.235, 3.275, 4.20, 4.165, 4.195, 4.215, 6.15, 6.85, 6.120, 6.175, 6.195, 7.10, 7.20, 7.65, 7.75, 7.90, 7.120, 7.140, 8.30, 8.85, 8.165, 8.175, 11.145, 11.190, 11.195, 11.205, 12.05, 12.15, 12.45, 12.65, 12.210, 12.300, 12.305, 13.80, 14.105, 14.110, 14.125, 14.140, 14.150, 14.155, 14.180, 14.185, 15.10, 15.15, 15.20, 15.30, 15.35, 15.50, 15.65, 15.70, 15.75, 15.80, 15.85, 15.95, 15.100, 15.110, 15.115, 15.120, 15.150, 15.185, 15.205, 15.210, 15.215, 15.225, 15.230, 15.255, 15.260, 15.280, 15.285 s 3: 15.175 xlvi

Table of Statutes

s 91.1(4): 15.150 s 91.2(1): 15.150 s 91.2(2): 15.150 s 100.1: 15.180, 15.185, 15.190 s 100.1(1): 15.180 s 100.1(1)(b): 15.190 s 100.1(1)(c): 15.190 s 100.1(3): 15.185 s 100.1(c): 15.185 s 101.1: 15.175 s 101.1(1): 15.185 s 101.1(2): 15.185 s 101.2: 8.30, 15.175, 15.185 s 101.3: 15.190 s 101.4: 8.30, 15.175, 15.185, 15.190 s 101.5: 8.30, 15.175, 15.185 s 101.6: 8.30, 8.90, 15.175, 15.185 s 101.6(1): 15.185 s 102.1: 15.200 s 102.1(1): 15.200 s 102.1(1A): 15.215 s 102.1(2): 15.200, 15.215 s 102.2: 15.200 ss 102.2 to 102.8: 15.200 s 102.3: 15.200 s 102.4: 15.200 s 102.5: 15.200 s 102.5(2): 15.185 s 102.5(3): 15.185 s 102.5(4): 15.185 s 102.6: 15.200 s 102.7: 15.200 s 102.8: 1.25, 15.200 s 102.8(4): 15.200 s 102.8(4)(a): 15.200 s 102.8(4)(b): 15.200 s 102.8(4)(c): 15.200 s 102.8(4)(d): 15.200 ss 104.4(1)(c)(ii) to (v): 15.150 s 106.3: 8.30 s 115.1: 15.130 s 115.1(1)(e): 15.130 s 115.1(1A): 15.130 s 115.1(1B): 15.130 s 115.1(e): 15.130 s 115.2: 15.130 s 115.2(1)(e): 15.130 s 115.3: 15.130 s 115.4: 15.130 s 115.9: 3.125 s 119.1(1): 15.230 s 119.1(2): 15.230 s 119.2: 15.230 s 119.4: 15.230 s 130.1: 12.15 s 130.2(1): 12.155 s 130.3: 12.15, 12.55, 12.65, 12.300 s 130.4: 12.45 s 131.1: 12.15 s 131.2: 12.15, 12.45 s 131.2(3): 12.45 s 131.3: 12.15 s 131.3(1): 12.85 s 131.3(2): 12.110 s 131.6(b): 12.175 s 131.7: 12.190 s 131.9: 12.155

Criminal Code — cont s 11.2(7): 7.80 s 11.2(b): 7.10 s 11.3: 7.105 s 11.4: 8.175 s 11.4(1): 8.180 s 11.4(2): 8.185 s 11.4(3): 8.200, 8.220 s 11.4(5): 8.175 s 11.5(1): 8.85, 8.90 s 11.5(2)(b): 8.150 s 11.5(2)(c): 8.85, 8.95, 8.100 s 11.5(3)(a): 8.200, 8.215 s 11.5(3)(b): 8.110 s 11.5(3)(d): 8.120 s 11.5(5): 8.100 s 11.5(6): 8.190 s 11.5(8): 8.85 s 12.1: 3.55 ss 12.1 to 12.6: 3.55 s 12.2: 3.55 s 12.3: 3.55 s 12.3(1): 3.55 s 12.3(2): 3.55 s 12.3(6): 3.55 s 12.4: 3.60 s 12.4(3): 3.60 s 13: 2.160 s 13.3: 15.185 s 13.5: 2.165 ss 15.1 to 15.4: 2.70, 15.35 s 15.3: 15.280 s 15.4: 15.30, 15.200 s 23A(2): 4.90 s 27: 4.90 s 70.2: 12.305 s 70.3: 12.305 s 70.4: 12.305 s 70.4(1): 12.305 s 70.4(1)(c): 12.305 s 70.4(3): 12.305 s 71.2: 8.75 s 71.2(1)(d): 8.75 s 71.23(2): 3.125 s 72.3(1): 15.175 s 72.3(2): 15.175 s 80.1: 15.150 s 80.1AA: 15.225 s 80.1AA(6): 15.225 s 80.2: 15.20, 15.225 s 80.2(1): 15.225 s 80.2(3): 15.225 s 80.2(5): 15.225 s 80.2A: 15.225 s 80.2A(1): 15.225 ss 80.2A to C: 15.225 s 80.2B: 15.225 s 80.2B(1): 15.225 s 80.2C: 15.185, 15.225, 15.230 s 80.2C(2)(b): 15.230 s 80.2C(3): 15.230 s 80.2C(4): 15.230 ss 80.3(1)(a) to (f): 15.225 s 80.6: 15.215 s 91.1(1): 15.150 s 91.1(2): 15.150 s 91.1(3): 15.150 xlvii

Principles of Criminal Law

s 271.7: 15.120 ss 271.7A to 271.7E: 15.115 s 271.8: 15.120 s 272.2: 3.125 s 272.2(1A): 15.115 s 272.2(1C): 15.115 s 272.2(2): 15.115 s 272.2(2B): 15.115 s 272.14(3): 8.205 s 272.15(3): 8.205 s 274.2: 15.85 s 300.1(1): 14.110 s 300.2: 14.110 s 301.4(b): 14.105 s 301.10: 14.105 s 301.11: 14.105 s 301.13: 14.110 s 301.13(1): 14.110 ss 301.13(2)(b)(i) to (iv): 14.110 s 302.1: 14.150 s 302.1(1)(e): 14.155 s 302.2: 14.150 s 302.3: 14.150 s 302.4: 14.150 s 302.5: 14.125 s 302.5(1): 14.155 s 304.4: 14.105 s 304.5: 14.105 s 304.6: 14.105 s 307.1: 14.105, 14.120, 14.140 s 307.1(2): 14.140 s 307.1(3): 14.140 s 307.2: 14.105 s 307.2(2): 14.140 s 307.2(3): 14.140 s 307.2(4): 14.120 s 307.3: 14.105 s 307.3(2): 14.140 s 307.3(3): 14.105, 14.120 s 307.4: 14.105, 14.120 s 307.4(2): 14.140 s 307.6(4): 14.120 s 307.9(4): 14.120 s 307.11: 14.105 s 307.11(2): 14.140 s 307.11(3): 14.140 s 307.12: 14.105 s 307.12(2): 14.140 s 307.12(3): 14.140 s 307.13: 14.105 s 307.13(2): 14.140 s 307.14: 14.140 s 308.1: 14.150 s 370.3: 12.135 s 372.1: 12.135 s 372.1A: 12.135 s 390: 15.280 s 390.1: 15.280 s 390.2(1): 15.280 s 390.2(2): 15.280 s 390.2(4): 15.280 s 390.3: 15.280 s 390.3(2): 15.280 s 390.3(6): 15.280 s 390.4: 15.280 ss 390.4 to 390.6: 15.280 s 390.5: 15.280

Criminal Code — cont s 131.10: 12.15 s 131.10(2): 12.205 s 131.10(3): 12.215 s 132: 12.245 s 132.1(9): 12.100 s 132.2: 12.235 s 132.3: 12.235 s 132.4: 12.240 s 132.5: 12.240 s 132.7: 12.240 s 133.1: 12.105, 12.275 s 134.1: 12.275 s 134.1(9): 12.135 s 134.1(10): 12.135 s 134.2: 12.10, 12.280 s 135.4: 8.85, 8.140 s 141.1: 12.300 s 141.1(1): 12.300 s 141.1(1)(b): 12.300 s 141.1(3): 12.300 s 141.1(3)(b)(i): 12.300 s 141.1(3)(b)(ii): 12.300 s 142.1(2): 12.300 s 142.2(1): 12.300 s 142.2(2): 12.300 s 146.2: 3.125 s 233B(1)(a): 14.120 ss 268.3 to 268.7: 15.110 s 268.4: 15.110 s 268.4(2): 15.110 s 268.5(2): 15.110 s 268.8(b): 15.90 ss 268.8 to 268.23: 15.80 s 268.10: 15.95 s 268.10(2): 15.95 s 268.13: 2.140 s 268.14: 15.110 s 268.14(1): 15.100 s 268.14(2): 15.100 s 268.14(3): 11.85, 15.100 s 268.24: 15.70 s 268.24(1)(b): 15.70 s 268.24(1)(c): 15.70 s 268.24(2): 15.70 ss 268.24 to 268.34: 15.70 s 268.25: 2.140, 15.70 ss 268.70 to 268.76: 15.75 s 268.73: 2.140 ss 268.77 to 268.94: 15.75 ss 268.95 to 268.101: 15.75 s 268.117(1): 15.50 s 270.1: 15.95 s 270.2: 15.95 s 270.3: 15.95, 15.120 s 270.3(1)(a): 15.120 s 270.3(1)(aa): 15.95 s 271.2: 15.115 s 271.2(1): 15.115 s 271.2(1A): 15.115 s 271.2(1B): 15.115 s 271.2(2A): 15.115 s 271.2(2C): 15.115 s 271.3: 15.120 s 271.4: 15.120 s 271.5: 15.115 s 271.6: 15.120 xlviii

Table of Statutes

Div 80: 15.215 Div 101: 15.175, 15.185 Div 102: 15.185, 15.200 Div 104: 15.150, 15.275 Div 105: 15.150 Div 115: 15.130 Div 268, subdiv D: 15.70 Div 270: 15.95, 15.115 Div 271: 15.115 Div 302: 14.150 Div 305: 14.150 Div 307: 14.110, 14.120, 14.140, 14.150 Div 307, subdiv B: 14.110 Div 307, subdiv C: 14.110 Div 400: 14.180 Div 477: 15.255, 15.265 Div 478: 15.255 Dictionary : 9.35 Sch 1: 2.25

Criminal Code — cont s 390.6: 15.280 s 390.7: 15.280 s 400.1: 14.180 s 400.2: 14.180 ss 400.3 to 400.8: 14.180 s 471.11: 15.155 s 471.11(4): 3.125 s 471.12: 15.155 s 471.13: 15.155 s 471.15: 15.155 s 473.4(b): 11.245, 15.225 s 474.15(4): 3.125 s 474.19: 11.245 s 474.21: 11.245 s 474.26(2): 15.260 ss 474.26(2)(c) to (d): 15.260 s 474.27(2): 15.260 ss 474.27(2)(c) to (d): 15.260 s 474.27A(1)(b): 15.260 s 474.28(9): 15.260 s 474.29: 15.260 s 474.29(6): 15.260 s 476.1: 15.240 s 476.2(3): 3.125 s 476.3: 15.265 s 477.1: 15.265 s 477.1(7): 8.205 s 477.2: 15.265 s 477.2(1)(d)(i): 15.265 s 477.2(1)(d)(v): 15.265 s 477.2(1)(d)(ii): 15.265 s 477.2(1)(d)(iv): 15.265 s 477.2(1)(d)(vi): 15.265 s 477.2(1)(d)(iii): 15.265 s 477.2(1)(d)(vii): 15.265 s 477.3: 15.265 s 478.1: 15.255, 15.265 s 478.1(d)(i): 15.265 s 478.1(d)(ii): 15.265 s 478.1(d)(iii): 15.265 s 478.2: 15.265 s 478.3: 15.265 s 478.3(2): 8.205 s 478.4: 15.265 s 478.4(2): 8.205 Ch 4: 15.175 Ch 5: 15.175, 15.225 Ch 10: 12.255 Pt 2: 15.70, 15.110 Pt 2.2: 3.05 Pt 2.5: 9.10 Pt 5-3: 15.210 Pt 5.1, Div 80: 15.225 Pt 5.3: 15.175, 15.180 Pt 5.4, Div 115: 15.130 Pt 7.2: 12.15 Pt 7.3: 12.260 Pt 7.6: 12.300 Pt 9.1: 14.90, 14.110 Pt 9.1, Div 307: 14.105, 14.110, 14.120 Pt 9.5: 12.135 Pt 10.5: 15.155 Pt 10.6: 15.260 Div 5: 7.105 Div 14, s 14.1: 15.35 Div 72: 15.175

Criminal Code Amendment (Anti-Hoax And Other Measures) Act 2002: 15.155 Criminal Code Amendment (Bribery of Foreign Public Officials) Act 1999: 12.305 Criminal Code Amendment Regulation 2013 (No 1): 14.105, 14.125 Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999: 15.95 Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000: 12.05, 12.15, 12.260, 15.30 Criminal Code Amendment (Trafficking in Persons Offences) Act 2005: 11.190, 15.115 Criminal Code Regulations 2002: 14.125, 14.150 Div 3.2: 14.120 Sch 4: 14.120 Customs Act 1901: 3.200, 8.205, 14.95, 14.110, 14.135, 14.140, 14.195 s 5.6: 14.140 s 50(1): 14.95 s 51(1): 14.95 s 229(1)(a): 14.195 s 229A: 14.195 s 233B: 8.205, 14.110 s 233B(1)(a): 14.120, 14.135 s 233B(1)(a)(iii): 14.110 s 233B(1)(b): 14.110, 14.140 s 233B(1)(c): 14.140 s 243A: 14.195 Pt XII: 14.55 Cybercrime Act 2001: 12.105, 12.315, 15.240, 15.245, 15.255, 15.265 s 51(v): 15.240 Defence Act 1903 s 51SE: 6.185 Pt IIIAAA: 6.185, 15.20 Defence Force Discipline Act 1982: 2.45, 2.210, 15.25 s 61(2): 15.25 s 190: 15.25 s 190(4): 15.25 xlix

Principles of Criminal Law

s 7(c): 14.200 s 13: 14.205 s 17: 15.210 s 20(1)(d): 15.210 s 20(2): 15.215 s 47: 15.210 s 54: 14.200 s 80: 14.200 s 92: 14.200 s 116: 15.210 s 152: 15.210 s 153(1): 14.200 s 153(2): 14.200 s 315(1): 14.200 s 315(2): 14.200 ss 319(6)(a) to (e): 14.200 Pt 2.1: 14.200 Pt 2.4: 14.200

Euthanasia Laws Act 1997: 9.50 Sch 1: 9.50 Evidence Act 1995: 14.230 s 80: 5.165 s 138: 14.220 s 138(3): 2.150 s 141: 2.160 Family Law Act 1975: 11.65, 13.45 s 4AB: 10.05 s 65Y: 10.185 s 65Z: 10.185 s 68B: 13.45 s 114(1): 13.45 Family Law (Child Abduction Convention) Regulations 1986: 10.185 Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011: 10.05

Public Order (Protection of Persons and Property) Act 1971: 13.145 s 25: 13.215

Financial Transaction Reports Act 1988: 14.180 Genocide Convention Act 1949: 15.105 s 4: 15.105 s 5: 15.105

Race Discrimination Act 1975: 2.220 Racial Discrimination Act 1975: 13.80 s 6A: 13.80 s 18C: 11.230, 13.80

Human Rights (Sexual Conduct) Act 1994: 2.210, 2.245, 11.190, 11.220 s 4: 10.165, 11.30, 11.190, 11.220

Security Legislation Amendment (Terrorism) Act 2002: 15.150

International Criminal Court (Consequential Amendments) Act 2002: 15.50

Suppression of the Financing of Terrorism Act 2002: 14.195, 14.200, 15.210

Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Act 2011: 12.135

Telecommunications (Interception and Access) Act 1979: 14.50

Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005: 14.110, 14.150

Therapeutic Goods Act 1989: 14.20

Measures to Combat Serious and Organised Crime Act 2001: 14.220

Trade Practices Act 1974: 3.65 ss 44ZZRF to 4ZZRK: 3.65 s 45: 3.65 s 84: 3.45 s 85: 3.310 s 155(5): 3.65

Model Criminal Code: 3.15, 3.25, 3.225, 3.235, 3.245, 8.100, 11.40, 11.85, 11.100, 11.145, 11.190, 12.05, 12.10, 12.15, 12.55, 12.85, 12.260, 13.215, 15.240 cl 3.1.1: 12.15 cl 5.2.6: 11.35 cll 5.2.29 to 5.2.31: 11.200 cl 5.2.34: 11.190 cl 5.2.36(c): 11.165 cl 13.6: 12.240 cl 16.3: 12.240 cl 16.3(2): 12.240 cl 16.4: 12.240 Ch 2: 3.55, 12.205 Ch 3: 12.05, 12.45 Ch 8: 15.15

Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009: 3.65 War Crimes Act 1945: 15.30, 15.55 War Crimes Amendment Act 1988: 15.60, 15.65

AUSTRALIAN CAPITAL TERRITORY Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 s 9(2)(c): 11.235 s 10: 11.235 s 22: 11.235 s 24: 11.245 s 32: 11.245 s 43: 11.245

National Service Act 1968: 2.90 Proceeds of Crime Act 1987: 14.195 Proceeds of Crime Act 2002: 12.10, 14.180, 14.185, 14.195, 14.200, 15.210 s 5: 14.200 s 5(c): 14.200 s 5(f): 14.195 s 7: 14.200

Confiscation of Criminal Assets Act 2003: 14.180, 14.195 Crime Prevention Powers Act 1998: 13.105 l

Table of Statutes

s 62(1): 11.190 s 62(2): 11.190 s 62(3): 11.190 s 63: 10.185 s 64: 11.210 s 67: 11.85 ss 67(1)(a) to (j): 11.110 s 67(1)(g): 11.115, 11.125 s 67(1)(h): 11.30 s 67(1)(i): 11.200 s 67(2): 11.50, 11.95 ss 83 to 114: 12.40 s 86(1): 12.270 s 178C: 12.280 ss 188 to 190: 13.35, 13.55, 13.85 s 221: 10.120 s 289: 6.120 s 300: 4.230 s 323: 4.80 s 324: 4.80 s 328: 4.80 s 329: 4.80 s 331: 4.80 s 334: 4.80 s 339: 4.165 s 391: 13.215 s 392: 11.210, 13.165 s 393: 11.210 s 397(1): 13.20, 13.55 s 397(2): 13.20, 13.55 Pt 4: 10.105

Crimes (Abolition of Offence of Abortion) Act 2002: 9.210 Crimes Act 1900: 2.25, 6.120, 9.20, 9.45, 9.120, 9.185, 10.75, 11.190, 12.65, 12.100 s 51 – 54: 11.55 s 4: 10.80 s 9: 2.100 s 10: 9.30 s 12(1): 9.20 s 12(1)(a): 9.20, 9.115 s 12(1)(b): 9.20, 9.120 s 12(1)(c): 9.20 s 13: 5.10 s 13(2): 4.210, 5.10, 5.40 s 13(2)(a): 5.20 s 13(2)(b): 5.45 s 13(3): 5.55, 5.155 s 13(4)(a): 5.60 s 13(5): 5.70 s 14: 5.80, 5.85 s 14(2): 5.120 s 15: 9.160 s 15(1): 9.135 s 16: 9.200 s 17: 9.45, 9.200 s 18: 9.200 s 19: 10.75, 10.80, 10.100 s 20: 10.75, 10.80, 10.100 s 21: 10.80 s 22: 10.65 s 23: 10.75 s 24: 10.75, 10.80 s 25: 10.75, 10.80, 10.100 s 26: 10.15 s 27(3)(b): 10.180 s 27(3)(e): 10.180 s 27(3)(f): 10.180 s 27(4)(b): 10.65 s 27(4)(c): 10.70 s 28(2)(b): 10.180 s 28(2)(c): 10.180 s 28(2)(d): 10.180 s 30: 10.170 s 31: 10.170 s 32(1)(b): 10.65 s 32(1)(c): 10.70 s 32(2)(b): 10.65 s 32(2)(c): 10.70 s 34: 10.185 s 35: 10.175 s 38: 10.185 s 39: 10.180 s 42: 9.30, 9.235, 9.240, 9.245 s 47: 9.255 s 47(1): 9.255 s 47(2): 9.255 s 48: 11.210 s 49: 10.15 s 50: 11.40, 11.45 s 54: 11.35, 11.125, 11.160 s 54(1): 11.145 s 54(2): 11.165 s 55(2): 11.190 s 56(2): 11.190 ss 57 to 61: 11.210 s 58: 4.180

Crimes (Amendment) Act (No 4) 1985: 12.05 Crimes (Controlled Operations) Act 2008: 14.220 Crimes (Forensic Procedures) Act 2000: 2.245 Crimes (Industrial Manslaughter) Act 2003: 9.10 Crimes (Murder) Act 2009: 9.120 s 12(1)(c): 9.120 Crimes (Restorative Justice) Act 2004: 1.95 s 6: 1.95 s 8: 1.95 s 16: 2.135 s 17(1): 1.95 s 18(2): 1.95 s 19: 1.95 s 44: 1.95 Pt 4: 1.95 Pt 5: 1.95 Crimes (Sentencing) Act 2005 s 33(1)(r): 11.195 Criminal Code: 2.25, 2.45, 4.20, 4.170, 4.195, 7.20, 8.85, 8.175, 12.15, 12.40, 12.65, 12.270, 14.150 s 3: 9.35 s 5: 2.25 s 13: 7.50 s 15: 3.105, 4.85 s 15(2): 4.90, 4.100, 4.170 s 15(5): 4.165, 4.170 s 18(2): 7.65, 9.115 ss 18(2) to (3): 8.75 s 19: 8.75 s 20: 12.275 li

Principles of Criminal Law

s 48(4): 8.85 s 48(5)(a): 8.200, 8.215 s 48(5)(b): 8.110 s 48(5)(d): 8.120 s 48(6): 8.100 s 48(9): 8.190 s 48(10): 8.85 ss 49 to 51: 3.55 s 52: 3.60 s 55: 3.60 ss 247A to 247I: 15.240 s 300: 12.45, 12.50 s 301(1): 12.150, 12.155 s 303: 12.15, 12.45 s 303(3): 12.45 ss 303 to 308: 12.40 s 304: 12.15 s 304(1): 12.85 s 304(2): 12.20, 12.85, 12.110 s 304(3): 12.110 s 305: 12.15 s 305(1): 12.155 s 305(2): 12.165 s 305(4): 12.165, 12.175 s 305(5): 12.190 s 306: 12.15, 12.215 s 306(2): 12.205 s 306(4): 12.205 s 307: 12.140 s 308: 12.15, 12.40, 12.270 s 309: 12.235 s 310: 12.235 s 311: 12.240 s 312: 12.240 s 313: 12.245 s 315: 12.240 s 318: 12.95 s 321: 12.75 s 322A: 12.195 s 325: 12.105, 12.275 s 326: 12.270, 12.275 s 330: 12.135 s 332: 12.10, 12.280 s 333: 12.40, 12.260 s 334: 8.140 s 336: 12.285 s 336(1): 12.285 s 363: 13.85 s 363B: 3.125 ss 370 to 372: 12.100 s 400: 3.125 s 412: 3.125 s 415: 15.265 s 415(3)(a): 8.205 s 416: 15.265 s 417: 15.265 s 418: 15.265 s 418(3): 8.205 s 419: 15.265 s 419(3): 8.205 s 420: 15.265 s 421: 15.265 s 422: 3.125 s 602(e): 14.155 s 603: 14.155 s 603(1): 14.150 s 603(3): 14.150

Criminal Code — cont s 20(1): 3.210, 7.120, 9.110 s 20(2): 3.210, 9.110 s 21: 3.225 s 21(a): 9.175 s 22: 3.245 s 25: 3.15 s 26: 3.25 s 27(1): 4.20, 4.40, 4.45 s 27(2): 4.35 s 27(3): 4.35 s 28: 4.20 s 28(1)(a): 4.20 s 28(1)(b): 4.20 s 28(1)(c): 4.20 s 28(2): 4.60 s 28(4): 3.10, 4.70 s 28(5): 4.70, 4.140 s 28(6): 4.70 s 29(1): 4.110 s 31: 4.165 s 31(1): 4.155, 4.180 s 32(1): 4.195 s 32(2): 4.195 s 33: 4.210 s 34: 4.170, 4.215 s 35: 6.170 s 36: 3.275, 3.285, 3.295, 6.170 s 38: 3.330 s 40: 6.70, 6.80, 6.100 s 40(2): 6.90, 6.95 s 40(2)(b): 6.85, 6.110 s 40(3): 6.70, 6.105 s 41: 6.140, 6.175 s 41(2): 6.160 s 42: 4.210, 6.15 s 42(2): 6.45 s 42(2)(a): 6.50 s 42(2)(a)(i): 6.20 s 42(3): 6.25 s 42(3)(b): 6.35 s 44: 8.30 s 44(2): 8.35, 8.55 s 44(3): 8.35 s 44(4)(a): 8.200, 8.205 s 44(5): 8.75 s 44(6): 8.75 s 44(8): 8.190 s 44(9): 8.30 s 44(10): 8.170 s 45: 7.10 s 45(1): 7.20, 7.30 s 45(2)(b): 7.65 s 45(2)(b)(i): 7.75 s 45(2)(b)(ii): 7.120, 7.135 s 45(5): 7.90 s 45(6): 7.10, 7.185 s 45(8): 7.80 s 46: 7.105 s 47: 8.175 s 47(1): 8.180 s 47(2): 8.185 s 47(4): 8.200, 8.220 s 47(6): 8.175 s 48(1): 8.85 s 48(2)(b): 8.150 s 48(2)(c): 8.85, 8.95, 8.100 lii

Table of Statutes

s 82: 14.160 s 85: 14.160 s 96(1): 14.160 Ch 6: 14.160

Criminal Code — cont s 603(7): 14.150 s 604: 14.155 s 700: 3.125 s 717: 7.20, 7.155, 7.170 s 717(1)(c)(i): 7.175 s 717(1)(c)(ii): 7.175 s 717(4): 7.175 Pt 2.2, Div 2.2.3: 7.105 Pt 2.7: 2.65, 15.35 Pt 6.3: 14.150 Dictionary: 9.35

Police Offences Ordinance 1930–1961 s 17(d): 13.165 Public Health Act 1997 s 66C: 14.20 s 66J: 14.20 Pt 3A: 14.20 Sexuality Discrimination Legislation Amendment Act 2004 Sch 2, Pt 2.1: 5.55

Criminal Code Regulation 2005: 14.150 Sch 1: 14.150 Sch 2: 14.150 Sch 3: 14.150

Supreme Court Act 1933 s 20: 2.155

Criminal Code (Serious Drug Offences) Amendment Act 2004: 14.150, 14.155

Terrorism (Extraordinary Temporary Powers) Act 2006: 15.150

Criminal Code (Theft, Fraud, Bribery and Related Offences) Amendment Act 2004: 12.40

Transplantation and Anatomy Act 1978 s 45: 9.35

Discrimination Act 1991 ss 65 to 67: 15.225

NEW SOUTH WALES

Domestic Violence and Protection Orders Act 2008 s 16: 13.25

Anti-Discrimination Act 1977: 15.225 s 20B: 13.80 ss 20C to 20D: 15.225 s 20D: 13.80 s 38S: 15.225 s 49ZT: 15.225 s 49ZXB: 15.225

Drugs in Sport Act 1999: 14.110 Drugs of Dependence Act 1989: 14.150 s 164: 14.95 s 164(3): 14.155 s 171: 14.150 s 171(1): 14.95 s 171A: 1.160

Bushranging Act 1830: 15.205 Children (Criminal Proceedings) Act 1985 s 5: 3.15

Environment Protection Act 1997 s 153: 3.310

Classification (Publications, Films and Computer Games) Enforcement Act 1995 s 6: 11.235

Evidence Act 2011 s 138(3): 2.150 Evidence (Miscellaneous Provisions) Act 1991 s 51: 11.180 s 73: 11.150

Confiscation of the Proceeds of Crime Act 1989: 14.180, 14.195 Crimes Act 1900: 4.195, 4.215, 6.120, 7.20, 8.85, 9.20, 9.30, 9.45, 9.110, 9.130, 9.185, 10.75, 11.190, 12.70, 12.135, 13.05, 13.215, 13.220 s 3: 6.120, 13.220 s 4: 6.120, 9.30, 9.235, 13.220 s 4(1): 9.120, 10.80, 10.90 s 4A: 9.110 s 4B: 12.45, 12.50, 12.70 s 4B(1): 12.70, 12.260 s 4B(2): 12.70 s 5: 12.15 s 10C: 2.65 s 10E(1): 2.70 s 18: 3.210, 9.110 s 18(1)(a): 3.210, 9.20, 9.110, 9.115, 9.120, 9.130 s 18(1)(b): 9.135, 9.160 s 18(2)(a): 9.110 s 20: 9.30 s 21: 9.235 s 22A(1): 5.125 s 23: 5.10, 5.60 s 23(2): 4.210, 5.10

Human Rights Act 2004: 1.75, 2.150, 2.155, 2.170, 9.60, 11.10, 13.90, 13.105 s 8: 2.200 s 12: 2.245 s 18(1): 2.170 s 21: 13.25, 14.230 s 22(1): 2.160 s 22(2): 2.155 Legislation Act 2001 s 160: 3.35 s 161(1): 3.35 s 161(2): 3.35 s 161(3): 3.35 Medical Treatment (Health Directions) Act 2006: 9.45 Medicines, Poisons and Therapeutic Goods Act 2008: 14.160 s 19: 14.160 s 78: 14.160 s 81: 14.160 liii

Principles of Criminal Law

s 61N: 11.210 s 61O: 11.210 s 61P: 11.210 s 61R(2)(c): 11.55 s 61AA: 10.135 s 61AA(1): 10.135 s 61AA(2): 10.135 s 61HA: 11.55, 11.115, 11.160 s 61HA(2): 11.85 s 61HA(3): 11.145, 11.160 s 61HA(4): 11.55 s 61HA(5)(c): 11.115, 11.120 s 61HA(6): 11.55 s 61HA(6)(b): 11.55 s 61HA(6)(c): 11.30 s 61HA(7): 11.50, 11.95 s 61JA(1): 11.165 s 65: 11.55 s 65A: 11.55 s 65A(2): 11.55 s 65A(3): 11.55 s 66C: 11.190 s 66C(5)(c): 11.165 s 66F(3): 11.200 s 73: 11.190 s 78A: 11.190 s 78B: 11.190 s 78N: 11.190 s 81C: 11.210 s 82: 9.215 s 83: 9.215 s 84: 9.215 s 85(1): 9.255 s 85(2): 9.255 s 86: 10.185 s 87: 10.185 s 91H(3): 11.245 s 91H(4): 11.245 s 91H(4)(a): 11.245 s 91H(4)(c): 11.245 s 93B: 13.220, 13.235 s 93B(5): 13.30 s 93C: 13.215, 13.220 s 93C(4): 13.215 s 93C(5): 13.30, 13.215 s 93E: 13.220 ss 93T(1) to (4): 15.270 s 94: 12.235 s 95: 12.235 ss 95 to 98: 12.235 s 109(1): 12.240 s 114(1)(b): 12.240 s 116: 12.15 ss 116 to 163: 12.15 s 117: 12.15 s 120: 12.25 s 154A: 12.95 s 154F: 12.95 ss 155 to 163: 12.20 s 161: 12.140 s 173: 12.35, 12.65, 12.100 s 178A: 12.115 s 178C: 12.280 s 178BA: 12.10, 12.105 s 183: 12.100 s 188: 12.245 s 189: 12.245

Crimes Act 1900 — cont ss 23(2)(a) to (b): 5.15 s 23(2)(b): 5.60 s 23(2)(d): 5.45 s 23(3): 5.55 s 23(4): 5.40 s 23(5): 5.40 s 23(7): 5.70 s 23A: 5.80, 5.85, 5.110 s 23A(1)(b): 5.115 s 23A(4): 5.120 s 23A(8): 5.110 ss 25A to 25B: 9.145 s 26: 8.85 s 27: 10.65 ss 27 to 30: 8.15 s 31: 10.170 s 31A: 9.200 s 31B(1): 9.205 s 31B(2): 9.205 s 31C: 9.200, 9.205 s 31C(1): 9.45 s 31C(2): 9.45 s 33: 9.30, 10.55, 10.80, 10.100 s 35: 9.30, 10.80, 10.100 s 35A: 10.80 s 36: 10.90 s 38: 10.180 s 38A: 10.180, 11.135 s 39: 10.180 s 43: 10.70, 10.180 s 44: 3.85, 9.165, 10.180 s 45: 10.105 s 46: 10.180 s 47: 10.180 s 48: 10.180 s 49: 10.75 s 49(1): 10.180 s 51A: 9.185 s 52A: 3.370, 7.60, 7.70, 9.185 s 52A(3): 9.30 s 52A(4): 9.30 s 52B(3): 9.30 s 52B(4): 9.30 s 54: 9.30, 10.75, 10.80, 10.100 s 55: 10.180 s 56: 10.70 s 57: 10.70 s 58: 10.65, 10.70 s 59: 10.75, 10.80 s 59A: 13.220 s 60: 10.70 s 60(1): 10.70 s 60(4): 10.70 s 60A: 10.70 s 60B(1): 10.70 s 60E: 10.70 s 61: 10.15 s 61C: 3.215 s 61H: 11.40 s 61H(1)(a): 11.45 s 61I: 11.35, 11.55, 11.115 s 61J: 11.55, 11.165 s 61J(2)(c): 11.165 s 61K: 11.55 s 61L: 11.210 s 61M: 11.210 liv

Table of Statutes

Crimes Amendment (Diminished Responsibility) Act 1997: 5.90, 5.165

Crimes Act 1900 — cont s 189A: 12.245 s 192I: 12.135 s 192J: 12.135 s 192K: 12.135 s 206: 10.70 s 249F: 7.20 s 249F(1): 7.20 s 308B(3): 3.125 s 308C: 15.265 s 308C(4)(a): 8.205 s 308D: 15.265 s 308E: 15.265 s 308F: 8.205, 15.265 s 308G: 8.205, 15.265 s 308H: 15.265 s 308I: 15.265 s 309: 15.250 s 319: 8.145 s 326: 10.70 s 341: 8.145 s 342: 8.145 s 344A: 8.30 s 346: 7.10, 7.20 ss 347 to 350: 7.20, 7.155 s 351B: 7.20 s 417: 12.240 s 418: 6.15 s 418(2): 6.20, 6.45, 6.50 ss 418 to 423: 4.210 s 420: 6.25 s 421: 6.55 s 428A: 4.215 ss 428A to 428I: 4.225 s 428B: 4.180 s 428B(2): 4.180, 4.190 s 428C: 4.155, 4.180, 4.190 s 428C(2): 4.180 s 428F: 4.195 s 428G(1): 4.170 s 428H: 2.25 s 475B: 2.100 s 545C(1): 13.200 s 545C(2): 13.200 s 545C(3): 13.200 s 546A: 15.205 s 546C: 13.85 s 574B: 9.200 s 578C: 11.10, 11.205, 11.210 s 580E: 2.100 Pt 3A, Div 3: 13.15 Pt 6: 15.240 Sch 11, s 65: 9.110

Crimes Amendment (Grievous Bodily Harm) Act 2005: 9.30, 10.80 s 4: 10.80 Crimes Amendment (Provocation) Act 2014: 5.10, 5.60 Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 Pt 8: 2.195 Crimes (Criminal Organisations) Act 2009: 15.275 Crimes (Domestic and Personal Violence) Act 2007: 10.175, 13.05, 13.45 s 8: 13.05 s 13: 10.175, 13.05 s 14: 13.45 s 25(1): 13.45 s 27: 13.45 s 35: 13.45 s 81: 13.45 Pt 13: 13.45 Crimes (Domestic Violence) Amendment Act 1993: 10.175 Crimes (Forensic Procedures) Act 2000: 2.245 Crimes (High Risk Offenders) Act 2006: 1.85 Crimes (Injuries) Amendment Act 1990: 10.90 Crimes Legislation Amendment Act 1996: 4.225 Crimes Legislation Amendment Act 2000 s 10C: 15.35 Crimes (Public Justice) Amendment Act 1990: 8.145 Crimes (Sentencing Procedure) Act 1999 s 10: 1.100 s 16: 3.35 s 21A: 1.55 s 21A(3)(j): 11.195 Criminal Assets Recovery Act 1990: 14.180, 14.195, 14.200 s 6(2): 14.200 s 16A: 14.200 s 16B: 14.200 Criminal Procedure Act 1986 s 8(2): 2.115 s 64: 2.115 s 132: 2.100 s 132(2): 2.100 s 132(3): 2.100 s 132(4): 2.100 s 293: 11.180 s 336: 1.160 Sch 1, ss 258 to 273: 2.100

Crimes Amendment Act 2007 Sch 1: 10.90 Crimes Amendment (Aggravated Sexual Assault in Company) Act 2001: 11.165 Crimes Amendment (Child Protection—Physical Mistreatment) Act 2001: 10.135

Dangerous Lunatics Act 1843: 4.15, 4.75

Crimes Amendment (Computer Offences) Act 2001: 15.240

Drug Court Act 1998 s 3: 14.30

Crimes Amendment (Consent—Sexual Assault Offences) Act 2007: 11.55, 11.145

Drug Summit Legislative Response Act 1999: 14.20 lv

Principles of Criminal Law

s 197(1)(d): 13.100 s 197(1)(e): 13.100 ss 197 to 200: 13.100 s 199(1): 13.105 s 200: 13.105 s 206: 13.120 Pt 3: 14.55 Pt 4: 14.55 Pt 11, Div 2: 14.55 Pt 11, Div 3: 14.55 Pt 14: 14.55 Pt 16: 13.120

Drug Summit Legislative Response Amendment (Trial Period Extension) Act 2003: 14.20 Drug Summit Legislative Response Amendment (Trial Period Extension) Act 2007: 14.20 Drug Trafficking (Civil Proceedings) Act 1990: 14.200 Drugs Misuse and Trafficking Act 1985: 14.150 s 3: 14.155 s 10: 14.150 s 10(1): 14.95 s 12(1): 14.145 s 21: 14.150 s 25: 14.95, 14.155 s 25A: 14.95 s 29: 14.155 s 30: 14.150 s 32: 14.150 s 33: 14.150 s 33(2)(a): 14.150 s 33(3)(a): 14.150 s 33AA: 14.155 s 36A: 14.20 s 36N(2): 14.20

Law Enforcement (Powers and Responsibilities) Amendment Act 2007: 14.55 Liquor Act 1982 s 114: 3.270 Mental Health (Forensic Provisions) Act 1990: 4.20 s 38: 4.20 s 39: 4.80 Obscene and Indecent Publications Act 1901: 11.230

Education Act 1990 s 35(2): 10.135 s 35(2A): 10.135

Piracy Punishment Act 1902 s 4: 15.15 s 5: 15.15 s 6: 15.15

Education and Public Instruction Act 1987 s 14: 10.135

Poisons Amendment Act 1970 s 21A: 14.150

Evidence Act 1995: 14.230 s 80: 5.165 s 138: 13.185, 14.220 s 138(3): 2.150, 14.230 s 141: 2.160

Police Act 1990 s 6: 13.15

Felons (Civil Proceedings) Act 1981: 2.95

Police Powers (Internally Concealed Drugs) Act 2001: 14.55 s 7: 14.55 s 8: 14.55

Police Powers (Drug Detection Dogs) Act 2001: 14.55 Police Powers (Drug Detection Trial) Act 2003: 14.55

Fines Act 1996 s 19A: 1.150 Human Tissue Act 1983 s 33: 9.35

Police Regulation 2000 reg 8: 13.15 reg 9: 13.15

Interpretation Act 1987 s 8(d): 3.35 s 21(1): 3.35

Police Service Regulation 1990 cl 7: 13.110

Intoxicated Persons Act 1979: 13.120

Protection of the Environment Operations Act 1997 s 118: 3.310

Law Enforcement (Controlled Operations) Act 1997: 14.220 s 14: 14.220 s 23(1): 14.220

Public Assemblies Act 1979: 13.210 Road Transport Legislation Amendment (Car Hoons) Act 2008: 13.135

Law Enforcement (Powers and Responsibilities) Act 2002 s 4: 13.35 s 9: 13.35 s 11: 13.100 s 12: 13.100 s 21: 14.55 s 21A: 14.55 s 36: 14.55 s 37: 14.55 s 82: 13.35 s 83: 13.35 s 197: 13.100, 14.55

Road Transport (Safety and Traffic Management) Act 1999 s 40: 13.135 ss 40 to 43: 13.135 s 41: 13.135 Sports Drug Testing Act 1995: 14.110 Summary Offences Act 1988: 13.220, 14.55 s 4: 13.155 s 4A: 13.155 s 6: 13.205 s 11A: 13.220 lvi

Table of Statutes

s 30(1): 3.325 s 30(2): 3.330 s 30(3): 3.340 s 31: 3.105, 4.170, 9.140, 9.170, 10.55, 11.145 s 31(1): 10.55, 11.145 s 32: 3.275, 3.285, 6.170 s 33: 6.140, 6.165, 6.175, 9.240 s 38(1): 3.15 s 38(2): 3.25 s 40: 6.70, 6.80, 6.90, 6.100 s 40(1)(b): 6.95, 6.110 s 40(1)(d): 6.110 s 40(2): 6.105 s 43A: 4.20, 4.35, 4.40, 4.200, 4.215 s 43C: 4.20, 4.200 s 43C(1)(a): 4.20 s 43C(1)(b): 4.20, 4.60 s 43C(1)(c): 4.20 s 43D(1): 3.10, 4.70 s 43D(2): 4.70, 4.140 s 43E: 4.70 s 43F: 4.100 s 43F(1)(b): 4.70 s 43I: 4.80 s 43AD: 7.50 s 43AF: 3.105, 4.85 s 43AF(2): 4.90, 4.170 s 43AF(5): 4.165, 4.170 s 43AI(2): 7.65, 9.115 ss 43AI(2) to (3): 8.75 s 43AJ: 8.75 s 43AK: 10.100, 11.160 s 43AK(1): 3.210, 7.120, 9.110 s 43AK(2): 3.210, 9.110 s 43AL: 3.225 s 43AL(a): 9.175 s 43AM: 3.245 s 43AN: 3.275 s 43AP: 3.15 s 43AQ: 3.25 s 43AR(1)(a): 4.215 s 43AS: 4.165 s 43AS(1): 4.155, 4.180 s 43AT(1): 4.195 s 43AT(2): 4.195 s 43AU: 4.210 s 43AV: 4.170, 4.200, 4.215 s 43AW: 6.170 s 43AX: 3.275, 3.285, 3.295, 6.170 s 43AY(2)(a): 3.325 s 43AY(3): 3.340, 3.355 s 43AZ: 3.330 s 43BB: 6.70, 6.80, 6.85, 6.100 s 43BB(2): 6.90, 6.95 s 43BB(2)(b): 6.110 s 43BB(3): 6.70, 6.105 s 43BC: 6.140, 6.165, 6.175 s 43BC(2): 6.160 s 43BD: 6.15 s 43BD(2): 4.210, 6.45 s 43BD(2)(a): 6.50 s 43BD(2)(a)(i): 6.20 s 43BD(3): 6.25, 6.35 s 43BF(2): 8.35, 8.55 s 43BF(3): 8.35 s 43BF(4): 8.75 s 43BF(6)(a): 8.200, 8.205

Summary Offences Act 1988 — cont s 11A(4): 13.30 s 11H: 13.135 s 28: 13.220 s 28F: 13.100 Terrorism (Commonwealth Powers) Act 2002 s 4(1)(a): 15.175 s 4(1)(b): 15.175 Terrorism (Police Powers) Act 2002 Pt 2A: 15.150 Workers Compensation Act 1987 s 155: 3.270 World Youth Day Act 2006: 13.210 Young Offenders Act 1997: 1.95 s 3(c): 1.95

NORTHERN TERRITORY Advance Personal Planning Act: 9.45 Classification of Publications, Films and Computer Games Act s 50X: 11.235 s 50Z: 11.235, 11.245 s 50Z(2): 11.245 Classification of Publications, Films and Computer Games Act s 37(2): 11.235 s 49: 11.235 Crimes Property Forfeiture Act: 14.180, 14.195 Criminal Code: 2.25, 3.275, 4.20, 4.45, 4.170, 4.195, 5.60, 6.120, 7.20, 8.85, 8.175, 9.20, 9.45, 9.185, 10.75, 10.80, 10.130, 11.190, 12.15, 15.150 s 1: 3.35, 4.215, 6.15, 6.80, 9.35, 9.120, 10.80, 11.40, 11.45 s 1A: 10.80, 10.90 s 1C(1): 9.30 s 1C(2): 9.30 s 3: 2.100 s 4: 8.30, 8.35, 8.40 s 4(1): 8.75 s 4(2): 8.60 s 4(3): 8.205 s 5: 2.160 s 11: 10.135 s 12: 6.70, 7.10 s 12(1)(a): 7.20 s 12(1)(b): 7.20, 7.50 s 12(1)(c): 7.20 s 13: 7.20, 7.155, 7.170 s 13(1): 7.175 s 26(3): 10.155 ss 27(a) to (b): 10.120 s 28: 10.120 s 29: 6.15 s 29(2): 6.45 s 29(2)(a): 6.50 s 29(2)(a)(i): 6.20 s 29(2)(a)(ii): 10.120 s 29(3): 6.25 s 29(5): 6.35 lvii

Principles of Criminal Law

s 159(1)(c): 5.115 s 159(4): 5.120 s 160: 9.135, 9.140 s 160(b): 9.200 s 160(c): 9.160, 9.170 s 161A: 9.145 s 162: 9.45, 9.200 s 163: 9.255 s 165: 8.15, 10.65 s 166: 10.170 s 166(1): 10.170 s 166(2): 10.170 s 170: 9.30, 9.235, 9.240, 9.245 ss 174C to 174E: 10.05, 10.75, 10.80, 10.190 s 174D: 10.100 s 174E: 10.75, 10.100 s 174F: 9.185 s 176: 10.180 s 176A: 10.180, 11.135 s 177: 10.100 s 177(c): 10.180 s 181: 10.80 s 182: 10.180 s 183: 3.85, 9.165, 9.190, 10.180 s 184: 10.180 s 185: 10.180 s 186: 10.80 s 187: 10.20, 10.40, 10.140 s 187(a): 10.50 s 187(b): 10.25, 10.30, 10.35 s 187(e): 10.115 s 188: 10.15 s 188(2)(b): 10.70 s 188(2)(c): 10.70 s 188(2)(d): 10.70 s 188(2)(e): 10.70 s 188(2)(f): 10.70 s 188(2)(g): 10.70 s 188(2)(h): 10.65, 10.70 s 188(2)(k): 11.210 s 189: 10.175 s 189A: 10.65, 10.70 s 191: 10.70 s 192: 11.145, 11.160, 11.210 s 192(1): 11.85 s 192(2)(f): 11.120 s 192(3): 11.35, 11.145 s 192A(a): 11.50, 11.95 s 192A(b): 11.50 s 193: 10.65 s 194: 10.185 s 195: 10.185 s 196: 10.185 s 200: 10.170 s 201: 11.210 s 202: 10.185 s 208A: 9.215 s 209: 12.05, 12.15, 12.40 s 209(1): 12.20, 12.45, 12.85 s 209(4): 12.165 s 210: 12.15 s 211: 12.235 s 213: 12.240 s 215: 12.240 s 218: 12.95 s 221: 12.145 s 222: 12.145, 15.265

Criminal Code — cont s 43BF(7): 8.190 s 43BF(9): 8.75 s 43BF(10): 8.170 s 43BG: 7.10 s 43BG(1): 7.20 s 43BG(2)(a): 7.30 s 43BG(3)(a): 7.75 s 43BG(3)(b): 7.65, 7.120, 7.135 s 43BG(5): 7.90 s 43BG(6): 7.10, 7.185 s 43BH: 7.105 s 43BI: 8.175 s 43BI(1): 8.180 s 43BI(2): 8.185 s 43BI(4): 8.200, 8.220 s 43BI(7): 8.175 s 43BJ: 8.115 s 43BJ(2)(b): 8.150 s 43BJ(2)(c): 8.85, 8.95, 8.100 s 43BJ(4)(a): 8.200, 8.215 s 43BJ(4)(d): 8.120 s 43BJ(6): 8.100 s 43BJ(7): 8.190 s 43BJ(10): 8.85 s 43BK(3): 3.35 ss 43BK to 43BM: 3.55 s 43BN: 3.60 ss 45 to 46: 15.215 s 73: 15.15 s 74: 15.15 s 75: 15.15 s 125B: 11.210 s 125B(4): 11.245 s 125C: 11.210 s 127: 11.190, 11.220 s 127(1)(b): 11.210 s 127(2)(a): 11.165 s 128(1)(b): 11.210 s 130: 11.200 s 130(2)(b): 11.210 s 131(1)(b): 11.210 s 132: 11.210 s 134(1): 11.190 s 134(2): 11.190 s 134(3): 11.190 s 140: 11.210 s 149: 9.190 s 149C: 3.125, 10.05, 10.75, 10.80, 10.190 s 150: 6.180, 9.170, 10.180 ss 150 to 151: 9.190 s 151: 9.165, 9.170 s 154: 4.225 s 155: 3.85, 9.170, 9.190 s 156(1)(a): 9.20 s 156(1)(b): 9.20, 9.200 s 156(1)(c): 9.20, 9.115, 9.120 s 158: 4.210, 5.10 s 158(2): 5.10 s 158(2)(b): 5.45, 5.60 s 158(3): 5.20 s 158(4): 5.40 s 158(5): 5.55, 5.155 s 158(6)(a): 5.60 s 158(7): 5.70 s 159: 5.80, 5.110 s 159(1): 5.85 lviii

Table of Statutes

s 9(1): 14.95 s 9(2)(a): 14.150 s 9(2)(b): 14.150 s 9(2)(c): 14.150 s 12(2): 14.20 s 12(3): 14.20 s 12(5): 14.20 s 13: 14.145 s 20A: 1.160 s 40(c): 14.155

Criminal Code — cont s 226A: 6.05 s 226B: 6.05 s 227: 12.275 s 228A: 12.135 s 228C: 12.135 s 228D: 12.135 s 228E: 12.135 s 229: 12.245 s 240: 3.125 s 276(2): 3.125 s 276B: 15.265 s 276C: 15.265 s 276D: 15.265 s 276E: 15.265 s 277: 8.30 s 280: 8.175 s 282: 8.85 s 283: 8.85 s 284: 8.85, 8.140 s 285: 8.85 s 286: 8.85, 8.145 s 288: 8.85 s 289: 8.85 s 291: 8.110 s 292(a): 8.120 s 292(e): 8.115 s 315: 10.15 s 428D(b): 4.215 s 428G: 4.215 Pt IIAA: 7.105 Pt VI: 10.105 Div 3: 4.215 Sch 1: 3.325, 8.115

Police Administration Act: 1.95 s 159: 13.85 Pt VII, Div 7: 2.245 Rights of the Terminally Ill Act: 9.50, 9.55, 9.85 s 3: 9.50 s 7(1)(c): 9.50 s 7(1)(c)(iv): 9.50 s 20(1): 9.50 Sentencing Act s 5: 1.55 s 78A: 2.230 Sentencing Amendment Act (No 3): 2.230 Serious Sex Offenders Act: 1.85 Summary Offences Act s 47A(1): 13.100 s 47AA: 13.215 s 55A: 15.205 Termination of Pregnancy Law Reform Act 2017 s 7: 9.215, 9.225 s 8: 9.215, 9.225 s 9: 9.215, 9.225 s 10: 9.225 s 13: 9.225

Criminal Code Act: 2.20, 15.150 Criminal Code Amendment (Criminal Responsibility Reform) Act: 10.05, 11.145

Terrorism (Emergency Powers) Act Pt 2B: 15.150

Criminal Law Amendment Ordinance 1939–1960: 2.225

Terrorism (Northern Territory) Request Act: 15.175

Criminal Law and Procedure Ordinance 1933 s 55(2): 6.120

Transplantation and Anatomy Act s 23: 9.35

Criminal Reform Amendment Act (No 2): 5.90 s 17: 5.55

Youth Justice Act: 1.95

Emergency Medical Operations Act s 3(1): 10.155

QUEENSLAND

Evidence (National Uniform Legislation) Act s 138(3): 2.150

Acts Interpretation Act 1954 s 32D: 3.35 s 36: 3.35 s 46: 3.35

Interpretation Act s 17: 3.35 s 24AA: 3.35 s 38B: 3.35

Anti-Discrimination Act 1991: 13.80 s 124A: 15.225

Juvenile Justice Act s 53(1): 2.230

Anti-Discrimination Amendment Act 2001: 13.80 Backward Persons Act 1938: 4.15

Juvenile Justice Amendment Act (No 2): 2.230

Classification of Computer Games and Images Act 1995 s 26(3): 11.245 s 59(1): 11.245

Law Reform (Gender, Sexuality and De Facto Relationships) Act: 11.220 Misuse of Drugs Act: 14.150 s 5: 14.95 s 5(2): 14.155

Classification of Films Act 1991 s 41(3): 11.245 lix

Principles of Criminal Law

s 224: 9.215 s 225: 9.215 s 226: 9.215 s 227: 11.210 s 228: 11.210 s 236: 11.210 s 245: 6.30, 10.25, 10.30, 10.35, 10.40, 10.140 s 245(1): 10.20, 10.50 s 245(2): 10.50 s 254: 10.120 s 257: 10.120 s 261: 13.235 s 267: 6.25 s 268: 10.130 s 269: 10.130 s 271: 4.210, 6.15, 6.20, 6.30, 6.35, 6.40, 6.50, 10.120 s 271(1): 6.15 s 271(2): 6.15, 6.45 s 272: 6.30, 6.40, 6.50 s 273: 6.20 s 274 to 279: 6.25 s 280: 10.135 s 282: 6.150, 6.155, 9.225, 10.155 s 282(1): 6.180 s 283: 6.55 s 285: 3.85, 9.165, 9.190, 10.180 s 286: 9.190 s 288: 10.180 ss 288 to 289: 9.190 s 289: 9.165, 9.170 s 291: 9.20, 9.140 s 292: 9.30 s 293: 9.20 s 300: 9.20, 9.200 s 302: 9.20 s 302(1)(a): 9.20, 9.115, 9.120 s 302(1)(b): 9.130 s 302(1)(d): 9.130 s 302(1)(e): 9.130 s 303: 9.135, 9.160, 9.180 s 304: 4.210, 5.10, 5.55 s 304(2): 5.20, 5.55 s 304A: 5.80, 5.85 s 304A(2): 5.120 s 304B: 5.75, 6.65 s 306: 8.15, 10.65 s 307: 7.155 s 308: 10.170 s 309: 8.130 s 311: 9.45, 9.200 s 313: 9.30, 9.240 s 313(1): 9.235, 9.245 s 313(2): 9.235 s 314: 9.255 s 314A: 9.145 s 316: 10.180 s 316A: 10.180, 11.135 s 317: 10.75, 10.80, 10.100 s 317(b): 10.90, 11.120 s 317(g): 10.180 s 320: 9.180, 10.75, 10.80, 10.100 s 321: 10.180 s 322: 10.180 s 323(1): 10.80 s 323A: 10.105 s 323B: 10.105

Classification of Films Act 1991 — cont s 58: 11.245 Classification of Publications Act 1991 s 14: 11.245 s 37: 11.245 Pt 3: 11.235 Corrective Services Act 2000 s 92: 13.235 Crime and Misconduct Act 2001: 12.300, 15.150 Pt 6A: 14.220 Criminal Code: 2.25, 3.05, 4.20, 5.20, 6.15, 7.20, 8.40, 8.85, 9.20, 9.45, 9.130, 9.185, 10.75, 10.165, 11.190, 12.15, 12.155, 12.275 s 1: 3.35, 6.80, 9.120, 10.80, 10.90, 11.45 s 3: 2.100 s 4: 8.30, 8.35, 8.40 s 4(1): 8.75 s 4(2): 8.60 s 4(3): 8.205 s 7: 6.70, 7.10, 7.20 s 7(1)(b): 7.20, 7.50 s 7(1)(c): 7.20 s 7(1)(d): 7.20, 14.155 s 8: 7.120, 7.135, 7.140, 7.185, 9.120 s 9: 9.120 s 10: 7.20, 7.155, 7.170, 7.175 s 12: 2.65 s 22(1): 3.325 s 22(2): 3.330 ss 22(3) to (4): 3.340 s 23: 3.105, 4.85, 4.170, 10.55, 10.100 s 23(1): 4.170 s 24: 3.275, 3.285, 6.170 s 25: 6.140, 6.155 s 26: 3.10, 4.70 s 27: 4.20, 5.95 s 27(1): 4.20, 4.40 s 28: 4.215 s 28(1): 4.200 s 28(2): 4.200 s 28(3): 4.155, 4.180 s 29(1): 3.15 s 29(2): 3.25 s 31: 6.70 s 31(1)(d): 6.70, 6.80, 6.85, 6.90, 6.100 s 31(1)(d)(ii): 6.110 s 31(2): 6.105 s 31(d)(ii): 6.95 s 32: 6.120 s 39: 12.80 ss 44 to 46: 15.215 s 52: 15.215 s 72: 13.215 s 80: 15.15 s 132: 8.145 s 210: 11.210 s 216: 11.200 s 216(2): 11.210 s 218: 11.115 s 218A(6): 8.205 s 219: 11.210 s 219(1): 10.185 s 222(1): 11.190 s 222(2): 11.190 lx

Table of Statutes

s 542(2): 8.85 s 543: 8.85 s 543(2): 8.85 s 544: 7.155 s 568(1): 12.140 s 575: 10.15 s 581: 12.25 s 647: 4.80 Ch 24: 13.15

Criminal Code — cont s 324: 10.180 s 326: 10.180 s 327: 10.180 s 328: 10.75, 10.80, 10.100 s 328A: 9.185 s 328A(4): 9.185 s 335: 10.15 s 338A: 10.70 s 339: 10.75 s 340(1)(a): 10.65 ss 340(1)(a) to (d): 10.65 s 340(1)(b): 10.70 ss 340(g) to (h): 10.70 s 348(1): 11.85 s 348(2)(d): 11.30 s 348(2)(e): 11.125 s 349: 11.35, 11.145 s 349(2): 11.40 s 352: 11.210 s 352(3)(a): 11.165 s 354: 10.185 s 354A: 10.185 s 355: 10.185 s 359: 10.170 s 359A: 10.175 ss 359A to 359F: 10.175 s 359B: 10.175 s 363: 10.185 s 363A: 10.185 s 364: 10.180 s 390: 12.15 s 391: 12.20 s 391(1): 12.15 s 391(2): 12.15, 12.35 s 393: 12.165 s 398: 12.15 ss 398(5) to (8): 12.20 s 408A: 12.95 s 408C: 12.65, 12.135, 12.270, 12.275 s 408C(1): 12.115 s 408C(1)(d): 12.10, 12.280 s 408C(3)(d): 12.155 s 408C(3)(e): 12.275 s 408D: 12.135 s 408D(1): 12.135 s 408E: 12.115 s 408E(1): 15.265 s 408E(2): 15.265 s 408E(3): 15.265 s 409: 12.235 s 419: 12.240 s 425: 12.240 s 427A: 12.275, 12.285 s 427A(2): 12.285 s 429: 12.25 s 430: 8.140 s 433: 12.245 s 469A: 15.150 s 535: 8.30 s 538: 8.60 s 539: 8.175 s 540: 10.180 s 541: 8.85 s 541(2): 8.85 ss 541 to 543: 8.85 s 542: 8.85

Criminal Code Act 1899: 2.20 Criminal Code (Double Jeopardy) Amendment Act 2007: 2.195 Criminal Code and Other Legislation Amendment Act 2011: 5.20 s 5: 5.55 Criminal Law Amendment Act 1993 s 3: 10.175 Criminal Law Amendment Act 1996 s 47(2): 9.235 Criminal Law Amendment Act 2017: 5.20 s 10: 5.55 Criminal Proceeds Confiscation Act 2002: 14.180, 14.195 Dangerous Prisoners (Sexual Offenders) Act 2003: 1.85 Domestic and Family Violence Protection Act 2012 s 100: 13.45 s 138: 13.45 Drug Rehabilitation (Court Diversion) Act 2000: 14.30 Drugs Misuse Act 1986: 7.75, 14.150 s 6: 14.95 s 8: 14.150 s 9: 14.95 s 9(a): 14.150 s 9(b): 14.150 s 9(d): 14.150 s 10(3): 14.20 G20 (Safety and Security) Act 2013: 13.75, 13.145 s 2: 13.75 Health Act Amendment Act 1971 s 7: 14.150 s 12: 14.150 Law Reform Act 1995 s 16: 10.155 Major Events Act 2014: 13.75 Mental Health Act 2000: 4.80 Peaceful Assembly Act 1992: 13.75, 13.90 s 2(1): 13.90 s 3: 13.90 s 5: 13.210 s 5(1): 13.90 s 6(1): 13.90 Penalties and Sentences Act 1992 s 9: 1.55 s 9(6): 11.195 lxi

Principles of Criminal Law

Criminal Law Consolidation Act 1935: 4.20, 7.20, 8.175, 9.20, 9.45, 9.110, 9.185, 10.75, 10.80, 11.65, 11.190, 11.205, 12.15, 12.135, 12.200 s 5: 11.40, 11.190 s 5(3): 11.45 s 5C: 2.70 s 5D: 2.100 s 5G: 2.65 s 5AA: 10.75 s 5AA(1)(c): 10.65, 10.70 s 5AA(1)(e): 10.70 s 5AA(1)(f): 10.70 s 5AA(1)(g): 10.70 s 5AA(1)(j): 10.70 s 5AA(c)(i): 10.70 s 12(a): 8.85, 8.130 s 12A: 9.20, 9.130 s 13(2): 9.150 s 13A(1): 9.200 s 13A(2): 9.200 s 13A(3): 9.205 s 13A(5): 9.45, 9.200 s 13A(7): 9.200 s 13A(10)(a): 9.205 s 13A(10)(b): 9.205 s 13A(11): 9.205 s 14(1)(c): 9.170 s 15: 6.55, 10.120 s 15(1): 4.210, 6.15, 6.45 s 15(1)(a): 6.50 s 15(1)(b): 6.50, 6.55 s 15(2): 6.50, 6.55 s 15(3)(a): 6.20 s 15(4): 6.35 s 15A(1)(a)(i): 6.25 s 15A(1)(b): 6.25 s 15C: 6.05 s 15C(2): 4.210 s 19: 10.170 s 19(2): 10.170 s 19(3): 10.170 s 19A(1): 9.185 s 19AA: 10.175 s 20: 10.15, 10.20, 10.65, 10.70 s 20(1): 10.140 s 20(4): 10.75 ss 20 to 29: 10.05 ss 20 to 29A: 10.75, 10.80, 10.190 s 21: 3.125, 3.210, 9.110, 10.80, 10.90 s 23: 10.75, 10.100 s 24: 10.75, 10.190 s 24(2): 10.100 s 29: 10.180 s 30: 3.85, 9.165, 10.180 s 32C: 11.135 s 39: 10.185 s 46: 11.120 s 46(2): 11.85 s 46(3)(a)(i): 11.25 s 47: 11.160 s 48: 11.35, 11.160 s 48(1): 11.145 s 48A(1)(b): 11.165 s 49(3): 11.190 s 49(5): 11.30, 11.190 s 49(6): 11.200 s 51: 11.200

Police Powers and Responsibilities Act 2000: 13.100 ss 36 to 41: 13.100 s 46: 13.100 s 47(2): 13.105 s 48: 13.100 s 50: 13.35, 13.60 s 51: 13.235 s 790: 13.85 s 791: 13.85 Ch 17: 2.245 Powers of Attorney Act 1998 s 36(2): 9.90 Ch 3, Pt 3: 9.45 Sale and Use of Poisons Act 1891: 14.70 Sports Drug Testing Act 2003: 14.110 Summary Offences Act 2005 s 6: 13.135, 13.160 Terrorism (Commonwealth Powers) Act 2002 s 4(1)(a): 15.175 s 4(1)(b): 15.175 Terrorism (Community Safety) Amendment Act 2004: 15.150 Terrorism (Preventative Detention) Act 2005: 15.150 Transplantation and Anatomy Act 1979 s 45(1): 9.35 Vagrants, Gaming and Other Offences Act 1931 s 7(1)(d): 13.160 Youth Justice Act 1992: 1.95

SOUTH AUSTRALIA Acts Interpretation Act 1915 s 4: 3.35 s 26: 3.35 Advance Care Directives Act 2013 Pt 3: 9.90 Authorised Betting Operation Act 2000: 14.220 Consent to Medical Treatment and Palliative Care Act 1995: 9.45 s 13(1): 10.155 Controlled Substances Act 1984: 14.150 s 32: 14.95 s 32(1): 14.150 s 32(2): 14.150 s 32(3): 14.150 s 32(5): 14.155 s 33L: 14.20, 14.150 s 33L(1)(a): 14.95 s 33L(2)(a): 14.95 s 45A: 1.160 Controlled Substances (General) Regulations 2000 reg 8A(1): 14.20 Criminal Assets Confiscation Act 2005: 14.180, 14.195 lxii

Table of Statutes

Criminal Law Consolidation Act 1935 — cont s 56: 11.210 s 57: 11.100, 11.190 s 57(1): 11.190 s 58: 8.175, 11.210 s 58A: 11.210 s 59: 10.185 s 60(b): 11.115 s 62: 11.245 s 63(a): 3.270 s 63A(2): 11.245 s 63B: 8.175 s 63B(1)(a): 3.270 s 72: 11.190 s 80: 10.185 s 81(1): 9.215 s 81(2): 9.215 s 82: 9.215 s 82A: 9.215 s 82A(1)(a): 9.225 s 82A(1)(b): 9.225 s 82A(3): 9.225 s 82A(8): 9.30, 9.240 s 83(1): 9.255 s 84: 12.90, 12.155 ss 86B to 86I: 15.240 s 86E: 15.265 s 86G: 15.265 s 86H: 15.265 s 86I(1)(a): 15.265 s 86I(1)(b): 15.265 s 130: 12.155, 12.165, 12.175, 12.245, 12.275 s 131: 12.15, 12.45, 12.50, 12.105 s 131(4): 12.45 s 132: 12.100 s 133(2): 8.140 s 134: 12.15, 12.85, 12.245 s 134(1)(a): 12.15 s 134(1)(b): 12.40, 12.90 s 134(1)(c): 12.15 s 134(1)(c)(ii): 12.200 s 134(2): 12.200 s 134(3)(a): 12.85, 12.110 s 136: 12.140 s 137(1): 12.235 s 137(2): 12.235 s 139: 12.270 ss 140 to 142: 12.260 s 141: 12.105, 12.275 s 142(2): 12.280 s 143: 12.100, 12.195 s 144: 12.195 s 144B: 12.135 s 144C: 12.135 s 144D: 12.135 s 168: 12.240 s 174: 15.15 s 192E: 12.260 s 241: 7.20 s 241(1)(a): 7.175 s 241(1)(b): 7.175 s 241(2): 7.170 s 241(2)(b): 7.180 s 267: 7.10, 7.20, 7.100 s 268: 4.160 s 268(1): 4.180 s 268(2): 4.180

s 268(3): 4.180 s 268(4): 4.195 s 268(5): 4.195 s 268(6): 4.180 s 269A(1): 4.20, 4.35, 4.40, 4.200 s 269C: 4.20, 4.60 s 269C(a): 4.20 s 269C(b): 4.20 s 269C(c): 4.20 s 269D: 3.10, 4.70 s 269E: 4.20 s 269E(1)(b): 4.70 s 269F: 4.70 s 269F(3): 4.140 s 269O: 4.80 s 270A: 8.30 s 270B: 10.65 s 328A: 6.120, 6.125, 6.130, 6.135 Pt 3, Div 8: 10.105 Pt 7A: 13.15 Criminal Law Consolidation (Criminal Neglect) Amendment Act 2005: 9.170 Criminal Law Consolidation (Double Jeopardy) Amendment Act 2008: 2.195 Criminal Law Consolidation (Identity Theft) Amendment Act 2003: 12.135 Criminal Law Consolidation (Intoxication) Amendment Act 2004: 4.160 Criminal Law Consolidation (Offences of Dishonesty) Amendment Act 2002: 12.05, 12.10, 12.40 Criminal Law Consolidation (Self-Defence) Amendment Act 1997: 6.55 Criminal Law (Forensic Procedures) Act 2007: 2.245 Criminal Law (High Risk Offenders) Act 2015: 1.85 Criminal Law (Sentencing) Act 1988 s 10: 1.55 s 10(1)(l): 11.195 Criminal Law (Undercover Operations) Act 1995: 14.220 Dangerous Drugs Amendment Act (No 2) 1970 s 5: 14.150 Death (Definition) Act 1983 s 2: 9.35 Evidence Act 1929 s 34L: 11.180 s 69: 3.270 s 71: 3.270 Mental Defectives Act 1913: 4.15 Racial Vilification Act 1996: 13.80 s 4: 15.225 Road Traffic Act 1934–39 s 30: 3.275 Road Traffic Act 1961 s 144: 3.280 s 146: 3.280 lxiii

Principles of Criminal Law

s 2A: 10.140, 11.50 s 2A(1): 11.85 s 2A(2)(e): 11.30 s 3: 7.10 s 3(1)(b): 7.20, 7.50 s 3(1)(c): 7.20 s 3(1)(d): 7.20 s 4: 7.120, 7.135 s 5: 2.100 s 6: 7.20, 7.155, 7.170, 7.175 s 8: 4.215, 6.140 s 13: 4.170, 9.120, 10.100 s 13(1): 3.105, 4.85, 4.170 s 14: 3.275, 3.285, 3.295 s 14A(1)(c): 11.85 s 15: 3.10, 4.70 s 16: 4.20, 4.65 s 16(1): 4.20 s 16(1)(a)(i): 4.20, 4.55 s 16(1)(a)(ii): 4.20 s 16(1)(b): 4.20, 4.65 s 17(1): 4.200 s 17(2): 4.155, 4.180 s 18: 9.120 s 18(1): 3.15 s 18(2): 3.25 s 20: 6.70, 6.80, 6.90, 6.95, 6.100 s 20(1): 6.70, 6.85, 6.90, 6.105, 6.110 s 20(2): 6.120 s 26: 10.120 ss 30 to 31: 10.120 ss 40 to 45: 6.25 s 46: 4.210, 6.15, 6.20, 6.45, 6.50 s 50: 10.135 s 51: 6.150 s 51(1): 10.155 s 51(3): 10.155 s 52: 6.55 s 61I: 4.180 s 61J: 4.180 s 61K: 4.180 ss 66 to 67: 15.215 s 73(3): 13.235 s 80: 13.215 ss 116 to 117: 13.70 s 124: 11.190 s 126: 11.200 s 127: 11.210 s 127A: 11.210 s 129: 11.115 s 129(b): 11.115 s 133(1): 11.190 s 133(2): 11.190 s 137: 11.210 s 138: 11.210 s 139: 11.210 s 144: 3.85, 9.165, 9.190, 10.180 s 145: 9.190 s 147: 9.190 s 149: 6.150 ss 149 to 150: 9.190 s 150: 9.165, 9.170 s 153: 9.05, 9.20 s 153(1): 9.200 s 153(4): 9.30 s 154: 9.05 s 156(2): 9.20

Rundle Street Mall Act 1975 s 11(1)(a): 13.145 Serious and Organised Crime (Control) Act 2008: 15.275 Sports Drugs Testing Act 2000: 14.110 Statutes Amendment (Computer Offences) Act 2004: 15.240 Statutes Amendment and Repeal (Aggravated Offences) Act 2005: 10.05 Summary Offences Act 1953: 11.205 s 6: 10.70 s 6(2): 13.85 s 7: 13.155 s 13: 15.205 s 18: 13.100 s 22: 13.180 s 26A: 11.205 s 26A(3): 11.205 s 26B: 11.205 s 26B(4)(d): 11.205 s 26C: 11.205 s 26C(2)(a)(ii): 11.205 s 26C(2)(b): 11.205 s 33(5): 11.245 s 44: 15.265 s 44A: 15.265 s 59: 13.70 Summary Offences (Filming Offences) Amendment Act 2013: 11.205 Terrorism (Commonwealth Powers) Act 2002 s 4(1)(a): 15.175 s 4(1)(b): 15.175 Terrorism (Preventative Detention) Act 2005: 15.150 Young Offenders Act 1993: 1.95 s 5: 3.15

TASMANIA Acts Interpretation Act 1931 s 24A(2): 3.35 s 35: 3.35 s 41(1): 3.35 Anti-Discrimination Act 1998 s 19: 15.225 Classification (Publications, Films and Computer Games) Enforcement Act 1995 s 81(1): 11.245 Crime (Confiscation of Profits) Act 1993: 14.180, 14.195 Criminal Code: 2.20, 2.150, 2.245, 4.20, 4.215, 5.10, 5.60, 6.70, 6.140, 7.20, 8.75, 8.85, 8.175, 9.20, 9.45, 9.120, 9.130, 9.185, 10.75, 10.130, 11.190, 12.15 s 1: 6.80, 10.80, 11.40, 11.45 s 2: 8.30, 8.35 s 2(1): 8.75, 8.205 s 2(2): 8.60, 8.205 s 2(4): 8.35 lxiv

Table of Statutes

s 297(1)(b): 8.145 s 297(2): 8.110 s 298: 8.175 s 299: 8.30 s 300: 7.20, 7.155 s 334A: 10.15 s 338(1): 12.25 s 342(3): 8.190 s 381: 4.70 s 381(3): 4.140 Ch XXXIIB: 13.15

Criminal Code — cont s 156(2)(a): 9.20 s 156(2)(b): 9.160 s 156(2)(c): 9.140 ss 156 to 159: 9.05 s 157: 9.20 s 157(1)(a): 9.20, 9.115 s 157(1)(b): 9.20, 9.120 s 157(1)(c): 9.20, 9.120 s 157(1)(d): 9.20, 9.130 s 157(1)(d) to (f): 9.130 s 157(1)(e): 9.130 s 157(2): 9.130 s 158: 9.20 s 159: 9.135 s 159(1): 9.140 s 161: 7.20, 7.155 s 162: 10.170 s 163: 9.45, 9.200 s 164(2): 9.225 s 164(9): 9.225 s 165A: 5.125 s 166(1): 9.255 s 166(2): 9.255 s 167A: 9.185 s 169: 10.180 s 170: 10.75, 10.80, 10.100 s 170(c): 10.180 s 172: 10.75, 10.80, 10.100 s 175: 10.180 s 178: 10.180 ss 178A to 178C: 10.105 s 179: 10.180 s 181: 10.180 s 182: 10.20, 10.40, 10.55 s 182(1): 10.25, 10.35, 10.50, 10.170 s 182(2): 10.30 s 182(3): 10.115 s 182(4): 10.140 s 183: 10.75 s 183(a): 10.65 s 183(b): 10.70 s 184: 10.15 s 185: 11.35, 11.145 s 186: 10.185 s 189: 10.185 s 191A: 10.185 s 192: 10.175 s 226(1): 12.15 s 226(2): 12.15 s 227: 12.15 s 233: 12.145 s 234: 12.15 s 240: 12.235 s 244: 12.240 s 248: 12.240 s 252: 12.25 s 252A: 12.10 s 253A: 8.140 s 257B: 15.265 s 257C: 15.265 s 257D: 15.265 s 257E: 15.265 s 257F(1): 2.65, 15.265 s 258: 12.245 s 261: 12.115 s 297: 8.85

Criminal Code Amendment (Abolition of Defence of Provocation) Act 2003: 4.210, 5.10, 10.130 Criminal Code Amendment Act 1997: 11.195 Criminal Code Amendment (Financial Advantages) Act 1989 s 4: 12.10 Criminal Injuries Compensation Amendment Act 1996: 14.200 Criminal Justice (Mental Impairment) Act 1999 s 21: 4.80 Education Act 1994 s 82A: 10.135 Evidence Act 2001: 14.230 s 138(3): 2.150 s 141: 2.160 s 194M: 11.180 Forensic Procedures Act 2000: 2.245 HIV/AIDS Preventive Measures Act 1993 s 39: 14.20 Human Tissue Act 1985 s 27A: 9.35 Misuse of Drugs Act 2001: 14.150 s 3: 14.155 s 12(1): 14.150 s 12(2): 14.155 s 24: 14.95, 14.145 s 24(a): 14.150 s 25: 14.95 s 26: 14.95 s 29: 14.55 Sch 1, Pt 2: 14.150 Poisons Act 1971 s 83A(1): 14.20 Police Offences Act 1935 s 6: 15.205 s 34B: 13.85 s 34B(1): 10.70 s 38A: 12.195 Sentencing Act 1997 s 3: 1.55 Terrorism (Commonwealth Powers) Act 2002 s 4(1)(a): 15.175 s 4(1)(b): 15.175 Terrorism (Preventative Detention) Act 2005: 15.150 lxv

Principles of Criminal Law

s 36: 11.50, 11.155 s 36(1): 11.85 s 36(2): 11.30 s 36(2)(b): 11.110 s 36(2)(g): 11.200 ss 36(2)(h) to (k): 11.115 s 36(2)(l): 11.95 s 36A: 11.85, 11.150 s 37(C): 11.45 s 37AA: 11.150 s 38: 11.35, 11.145 s 38(1): 11.160 s 39(1)(a)(iii): 11.165 s 39(a)(iv): 11.165 s 45: 11.115 s 48A: 11.120 s 49B: 11.190 s 49C: 11.190 s 49D(1): 11.210 s 49E: 11.210 s 49F: 11.210 s 49G: 11.210 s 49I: 11.210 s 50C: 11.190 s 50D: 11.190 s 50E: 11.190 s 50F: 11.190 s 50G: 11.190 s 50H: 11.190 s 50I: 11.190 s 51G(1): 11.245 s 51G(3): 11.245 s 51H(1): 11.245 s 51I: 11.245 ss 51J(a) to (b): 11.245 s 51L: 11.245 s 51L(2): 11.245 s 51M: 11.245 s 51N: 11.245 s 51P: 11.245 s 52B: 11.200 s 52C: 11.200, 11.210 s 52D: 11.200, 11.210 s 52E: 11.200, 11.210 s 55: 10.185 s 56: 10.185 s 63: 10.185 s 63A: 10.185 s 65: 9.215 s 66: 6.165 s 67: 9.255 s 70(2): 15.225 s 70A: 15.15 s 71: 12.125 s 71(2): 12.150 ss 71 to 93: 12.40 s 72: 12.40 s 72(1): 12.15 s 73: 12.15, 12.205 s 73(2): 12.45 s 73(2)(a): 3.330 s 73(3): 12.45 s 73(4): 12.20, 12.85, 12.110 s 73(5): 12.110 s 73(6): 12.125 s 73(8): 12.165, 12.170 s 73(9): 12.165, 12.175

Youth Justice Act 1997: 1.95

VICTORIA Abortion Law Reform Act 2008: 9.210 Charter of Human Rights and Responsibilities Act 2006 : 2.150, 2.170, 9.60, 11.10, 13.25, 13.90, 15.275 s 8: 2.200 s 13: 2.245 s 19: 13.25 s 25(1): 2.160, 2.170 Children and Young Persons (Further Amendment) Act 1993: 11.195 Children, Youth and Families Act 2005 s 344: 3.15 Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 s 23(1): 11.235 s 56: 11.235 s 57: 11.235, 11.245 s 57(1): 11.235 s 58: 11.235, 11.245 Confiscation Act 1997: 14.180, 14.195 Crimes Act 1958: 2.110, 6.80, 6.120, 7.20, 8.85, 8.175, 9.20, 9.45, 9.130, 9.185, 9.250, 10.75, 11.95, 11.150, 11.155, 11.190, 11.200, 11.210, 12.15, 12.245 s 2A(1): 8.180 s 3A: 9.20, 9.130 s 3B: 5.10 s 4A: 9.145 s 5: 5.155 s 5A: 9.250 s 6: 5.140 s 6(1): 5.125, 5.130 s 6A: 9.200 s 6B(1): 9.205 s 6B(2): 9.45, 9.200 s 6B(2)(a): 9.200 s 6B(4): 9.205 s 9AD: 6.65 s 15: 9.30, 9.235, 10.80, 10.90 ss 15 to 18: 10.190 s 16: 9.30, 10.75, 10.80, 10.100 s 17: 9.30, 10.75, 10.80, 10.100 s 18: 10.75, 10.80, 10.100, 10.190 s 19: 10.180 s 19A: 10.90 s 20: 10.170 s 21: 10.170 s 21A: 10.175 s 21A(3): 10.175 s 22: 10.180 s 23: 10.180 s 24: 9.30, 10.75, 10.80, 10.100 s 25: 10.180 s 26: 10.180 s 31(1)(a): 10.65 s 31(1)(b): 10.70 s 31(1)(c): 10.65 ss 32 to 34A: 10.105 s 35(1): 11.40, 11.45, 11.120 lxvi

Table of Statutes

Crimes Act 1958 — cont s 73(10): 12.190 s 73(12): 12.225 s 73(14): 12.95, 12.200 s 74: 12.15 s 75(1): 12.235 s 75A: 12.235 s 76: 12.240 s 80A: 2.60, 2.65 s 81: 12.10 s 81(4): 12.105, 12.275, 15.250 s 82: 12.135, 12.280 s 86(2): 12.135 s 88: 12.245 s 88A: 12.245 s 88A(b): 12.245 s 91(3): 12.240 s 181: 7.10, 7.20 s 196(1): 15.250 s 247A(4): 3.125 ss 247A to 247I: 15.240 s 247B: 15.265 s 247C: 15.265 s 247D: 15.265 s 247E: 15.265 s 247F: 15.265 s 247G: 15.265 s 247H: 15.265 s 247J(3): 3.125 s 251: 13.15 ss 253 to 255: 3.60 s 317: 10.180 s 318: 9.185 s 318(2A): 9.185 s 319: 9.185 s 320: 10.15 s 321(2): 8.150 s 321(3): 8.215 s 321(4): 8.85 s 321B: 8.120 s 321F(1): 8.135, 8.145 s 321F(2): 8.140 s 321F(3): 8.170, 8.175 s 321F(4): 8.85 s 321G(1): 8.175, 8.180 s 321G(2): 8.185 s 321G(3): 8.220 ss 321G to 321I: 8.175 s 321H: 8.175 s 321I: 8.175 s 321M: 8.30 s 321N: 8.30 s 321N(1): 8.35, 8.55 s 321N(2): 8.75 s 321N(2)(b): 8.75 s 321N(3): 8.205 s 321P: 1.55 s 322B(1): 2.100 s 322K: 4.210, 6.15 s 322K(2): 6.45 s 322K(2)(a): 6.50 s 322K(3): 6.20, 6.25 s 322L: 6.35 s 322M: 6.30 s 322M(1)(b): 6.55 s 322O: 6.70, 6.80, 6.100 s 322O(2): 6.90, 6.95

s 322O(2)(a)(ii): 6.85, 6.110 s 322O(3): 6.70, 6.105 s 322O(4): 6.70 s 321(1): 8.85 s 321C: 8.85 s 321F(2): 8.85 s 322R: 6.140, 6.175 s 322R(2): 6.160 s 322R(3): 6.165 s 323: 7.10, 7.20, 7.100 s 323(1): 7.140 s 323(1)(d): 7.120, 7.135 s 324: 7.20, 7.100 s 324(2): 7.90 s 324A: 7.185 s 324C: 7.05, 7.140 s 325: 7.20 s 325(1): 7.155, 7.170, 7.175, 7.180 s 336: 6.120, 6.125 s 336(1): 6.120 s 336(2): 6.125, 6.130 s 336(3): 6.125, 6.130 s 336(4): 6.130 s 336(5): 6.135 s 339(1): 8.110 s 463B: 9.200 s 464: 2.245 Crimes Amendment (Abolition of Defensive Homicide) Act 2014 s 6: 7.05 Crimes Amendment (Child Homicide) Act 2008: 9.250 Crimes Amendment (Gross Violence Offences) Act 2013 s 3(c): 10.80 Crimes Amendment (Repeal of Section 19A) Act 2015: 10.90 Crimes Amendment (Sexual Offences) Act 2016: 11.155, 11.190, 11.210 Crimes Amendment (Sexual Offences and Other Matters) Act 2014: 11.155 s 38(1)(c): 11.155 Crimes (Controlled Operations) Act 2004: 14.220 Crimes (HIV) Act 1993: 10.90 Crimes (Homicide) Act 2005: 4.210, 5.10, 5.155 s 3: 5.10 Crimes (Married Person’s Liability) Act 1977: 6.120 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: 4.20 s 20: 4.20, 4.25 s 20(1)(a): 4.20 s 20(1)(b): 4.20, 4.60 s 21: 4.145 s 21(1): 3.10, 4.70 s 21(2)(b): 4.70 s 21(3): 4.70, 4.140 s 22(1): 4.70, 4.145 s 23: 4.80 Crimes (Property Damage and Computer Offences) Act 2003: 15.240 lxvii

Principles of Criminal Law

Repealed by Crimes Amendment (Abolition of Defensive Homicide) Act 2014 s 3(3): 6.65

Crimes (Rape) Act 1991: 11.95 s 1: 11.60, 11.125 Crimes (Sexual Offences) Act 1991 s 36: 11.120

Road Rules r 21: 3.270

Crimes (Sexual Offences) Amendment Act 2016: 11.115

Road Safety (Traffic) Regulations 1988 cl 1001(1)(c): 3.270

Crimes (Theft) Act 1973: 12.05 s 2(1)(b): 12.10

Sentencing Act 1991 s 5(1): 1.55 Div 2(1C): 14.30

Criminal Procedure Act 2009 s 253: 2.110 Criminal Procedure Amendment (Double Jeopardy and Other Matters) Act 2011: 2.195 Drugs, Poisons and Controlled Substances Act 1981: 14.150 s 4: 14.155 s 5: 2.170 s 71: 14.150 s 71A: 14.150 s 71B: 14.155 s 71AA: 14.150 s 71AC: 14.95, 14.150 s 73: 14.95 s 73(1)(b): 14.150 s 73(2): 14.155 s 75: 14.145 s 80(5): 14.20 Education and Training Reform Regulations 2007 r 14: 10.135 Environment Protection Act 1970 s 39(1): 3.270 s 66B(4B)(c): 3.310 Evidence Act 2008: 14.230 s 138(3): 2.150 s 141: 2.160 Human Tissue Act 1982 s 41: 9.35 Infringements Act 2006 s 8: 1.150 Interpretation of Legislation Act 1984 s 38: 3.35 Jury Directions Act 2015: 11.155 s 46(3)(c)(i): 11.50 s 46(3)(c)(ii): 11.50 s 47(3): 11.150 s 52: 11.180 Medical Treatment Act 1988: 9.45, 9.95 s 5: 9.95 s 5B: 9.95 Occupational Health and Safety Act 1985: 3.40 Poisons (Drugs of Addiction) Act 1976 s 6: 14.150 Racial and Religious Tolerance Act 2001 s 7: 15.225 s 24: 15.225

Sentencing (Amendment) Act 2002 s 5: 14.30 Serious Sex Offenders (Detention and Supervision Act) 2009: 1.85 Sports Anti-Doping Act 2005: 14.110 Summary Offences Act 1966: 11.205 s 6: 13.100 s 6(5): 13.105 s 26C: 11.205 s 40: 11.205 s 41C: 11.205 s 41D: 11.205 s 41D(2)(a): 11.205 s 41H: 11.135 s 41DA: 11.205 s 41DA(3): 11.205 s 49F: 15.205 s 52: 13.85 Terrorism (Commonwealth Powers) Act 2002 s 4(1)(a): 15.175 s 4(1)(b): 15.175 Terrorism (Community Protection) (Amendment) Act 2006: 15.150 Unlawful Assemblies and Processions Act 1958 s 5: 13.235 ss 11 to 12: 13.235

WESTERN AUSTRALIA Acts Amendment (Abortion) Act 1998: 9.215, 9.220 Censorship Act 1996 s 58: 11.245 Children and Community Services Amendment (Reporting Sexual Abuse of Children) Act 2008: 11.195 Corruption, Crime and Misconduct Act 2003: 14.220 Criminal Code: 3.190, 4.20, 5.30, 6.120, 7.20, 8.85, 8.175, 9.20, 9.30, 9.45, 9.130, 10.75, 11.190, 12.15, 12.135, 12.185, 15.70 s 1: 3.35, 4.20, 4.35, 4.40, 6.80, 8.175, 8.180, 10.80, 12.135 s 1(1): 9.120, 10.90 s 1(4): 10.80, 10.90 s 3: 2.100 s 4: 8.30, 8.35, 8.40, 8.55, 8.60, 8.75, 8.205 s 7: 7.10, 7.20 s 7(b): 7.20, 7.50 lxviii

Table of Statutes

s 266: 9.165, 9.170 s 268: 9.20, 9.140 s 269: 9.30 s 270: 9.20 s 277: 9.20, 9.200 s 279: 9.20, 15.70 s 279(1)(a): 9.20, 9.115 s 279(1)(b): 9.20, 9.120 s 279(1)(c): 9.20, 9.130 s 280: 9.135, 9.160 s 281: 9.145 s 283: 8.15, 10.65 s 288: 9.45, 9.200 s 290: 9.30, 9.235, 9.240, 9.245 s 291: 9.255 s 293: 10.180 s 294: 10.75, 10.80, 10.100 s 294(1)(c): 10.180 s 294(1)(h): 10.90 s 294(8): 10.90 s 297: 10.75, 10.80, 10.100 s 301: 10.80 s 304: 10.75, 10.80 s 305: 10.180 s 305A: 11.135 s 306: 10.105 s 313: 10.15 s 317: 10.75 s 317A: 10.65 s 317A(c): 10.65 s 318(1)(d): 10.70 s 318(1)(e): 10.70 s 318A: 10.70 s 319: 11.110, 11.190 s 319(1): 11.40 s 319(2)(a): 11.85 s 319(2)(b): 11.50, 11.95 s 320: 11.210 s 321: 11.210 s 321(2): 11.190 s 322: 11.190, 11.210 s 323: 11.210 s 324: 11.210 s 325: 11.35, 11.40, 11.145 s 329: 11.190, 11.210 s 330: 11.200, 11.210 s 332: 10.185 s 333: 10.185 s 338: 10.170 s 338B: 10.170 s 338D: 10.175 s 338E: 10.175 s 343: 10.185 s 344: 10.180 s 370: 12.15 s 371: 12.20 s 371(1): 12.15 s 371(2): 12.15, 12.35 s 371A: 12.95, 12.200 s 373: 12.165 ss 378(6) to (9): 12.20 s 390: 12.145 s 392: 12.235 s 401: 2.230, 12.240 s 407: 12.240 s 409: 8.140, 12.260, 12.270 s 411: 12.25

Criminal Code — cont s 7(c): 7.20 s 7(d): 7.20 s 8(1): 7.120, 7.135 s 8(2): 7.90 s 10: 7.20, 7.155, 7.170, 7.175 s 12: 2.65 s 22: 3.325, 3.330 s 23: 4.90, 10.55, 10.100 s 23A: 3.105, 4.85 s 23A(2): 4.170 s 23B: 3.105 s 24: 3.275, 3.285, 3.350, 6.170 s 25: 6.140, 6.170, 6.175 s 25(3): 6.160 s 26: 3.10, 4.70 s 27: 4.20 s 27(1): 4.20 s 28: 4.200, 4.215 s 28(2): 4.200 s 28(3): 4.155, 4.180 s 29: 3.15, 3.25, 9.185 s 32: 6.70, 6.80, 6.100, 6.120 s 32(1): 6.70 s 32(2): 6.90, 6.95 s 32(2)(a)(iii): 6.85, 6.110 s 32(3): 6.70, 6.105 ss 44 to 46: 15.215 s 52: 15.215 s 62(4): 13.235 s 71: 13.215 s 77: 15.225 s 78: 15.225 s 80A: 15.225 s 80B: 15.225 s 80H: 15.225 s 135: 8.145 s 172: 13.85 s 192(1)(b): 11.115 s 192(2): 11.115 s 199: 9.215, 9.220 s 199(2): 9.215 s 203: 11.210 s 204: 11.210 s 214: 11.210 s 222: 10.20, 10.25, 10.30, 10.35, 10.40, 10.50, 10.140 s 231: 10.120 s 233: 10.120 s 244: 6.05 s 245: 5.30, 10.130 ss 245 to 246: 5.10 s 246: 10.130 s 248: 6.15, 10.120 s 248(3): 6.55 s 248(4): 6.45 s 248(4)(a): 6.20, 6.30, 6.50 s 248(4)(c): 4.210 s 248(5): 6.35 ss 251 to 256: 6.25 s 257: 10.135 s 259: 6.150, 6.180, 9.225, 10.155 s 260: 6.55 s 262: 3.85, 9.165, 9.190, 10.180 s 263: 9.190 s 265: 10.180 ss 265 to 266: 9.190 lxix

Principles of Criminal Law

s 11: 14.155 s 34(1)(a): 14.150 s 34(1)(e): 14.150

Criminal Code — cont s 414: 12.245 s 440A: 15.265 s 552: 8.30 s 553: 8.175 s 555A(1): 8.30 s 555A(2): 8.175 s 556: 8.175 s 557: 10.180 s 557K(4): 15.205 s 558: 8.85 s 560: 8.85 s 562: 7.155 s 586(1): 12.140

Poisons Act 1964 s 36A: 14.20 Police Act 1892 s 54: 13.180 s 59: 13.180 s 138: 13.185 Restraining Orders Act 1997 s 62A: 13.45 Road Traffic Act 1974: 9.185 s 59: 9.185

Criminal Code Amendment Act (No 2) 1987 s 6: 8.110

Sentencing Act 1995: 2.220

Criminal Code Amendment (Identity Crime) Act 2010: 12.135

Sports Drug Testing Act 2001: 14.110

Criminal Code Compilation Act 1913: 2.20 s 319(1)(a)(ii): 11.165 s 326(1): 11.165

Terrorism (Commonwealth Powers) Act 2002 s 4(1)(a): 15.175 s 4(1)(b): 15.175

Criminal Investigation Act 2006 s 27: 13.100 s 28(2)(b): 13.100 s 28(3): 13.100 s 38C(2): 13.70, 13.85

Terrorism (Preventative Detention) Act 2005: 15.150 Young Offenders Act 1994: 1.95

CANADA

Criminal Investigation (Identifying People) Regulations 2002: 2.245

Charter of Rights and Freedoms: 9.130, 10.135, 14.125 s 7: 2.165, 9.60 s 15: 11.150

Criminal Law Amendment Act (No 2) 1992: 10.90 Criminal Law Amendment (Home Burglary and Other Offences) Act 2015: 12.240

Constitution Act 1982: 2.165 Criminal Code: 9.130, 11.120 s 33.1: 4.225 s 43: 10.135 s 83.19: 8.30 s 83.19(2): 8.30 s 265(4): 11.150 s 273.2: 11.150 s 283: 12.145 ss 467.11 to 467.13: 15.280 cl 4(6): 7.75

Criminal Law Amendment (Homicide) Act 2008: 4.210, 5.10, 9.145 s 12: 5.10 Criminal Law (Mentally Impaired Accused) Act 1996 s 22: 4.80 Pt 3: 4.35 Criminal Property Confiscation Act 2000: 14.180, 14.195 Dangerous Sexual Offenders Act 2006: 1.85

Protecting Canadians from Online Crime Act 2014 s 162.1: 11.205

Evidence Act 1906 s 36BC: 11.180 Fish Resources Management Regulations 1995 s 34: 3.350 reg 34: 3.350

GERMANY

Health Act 1911: 9.215, 9.220 s 334: 9.215, 9.220, 9.225

Grundgesetz Art 1: 11.10 Art 1(1): 11.10

Interpretation Act 1984 s 5: 3.35 s 13C: 9.35 s 69(1): 3.35

NEW ZEALAND

Aviation Security Act: 6.185

Harmful Digital Communications Act 2015 s 41: 11.205

Misuse of Drugs Act 1981: 14.150 s 6(1): 14.150, 14.155 s 6(1)(c): 14.95 s 6(2): 14.95, 14.150 s 8E: 1.160

International Criminal Court Act 2000: 15.50 Privacy Act 1993 s 56(1): 11.205 lxx

Table of Statutes

Human Rights Act 1998: 1.230, 2.135, 2.150, 2.165, 9.60, 11.105, 13.25, 14.125 s 4: 2.150

UNITED KINGDOM AND IMPERIAL Accessories and Abettors Act 1861: 7.10, 7.25 s 8: 7.25 Aliens Order Act 1920: 7.45

Infanticide Act 1922: 5.05, 5.125 s 1(1): 5.125

An Act for the Abolition of the Slave Trade 1807: 15.95

Infanticide Act 1938: 5.125

An Act to Prevent the Destroying and Murthering of Bastard Children: 5.125

Justices of the Peace Act 1361: 13.20 Larceny Act 1916: 12.35, 12.175

Anti-terrorism, Crime and Security Act 2001: 15.165

Lord Ellenborough’s Act: 5.125

Children Act 2004 s 58: 10.135

Mental Deficiency Act 1913: 14.80

Commonwealth of Australia Constitution Act 1900 s 51(xxix): 15.10 s 51(vi): 15.150 Ch III: 15.150

Misuse of Drugs Act 1971: 2.165, 8.215

Computer Misuse Act 1990: 15.255

Offences Against the Person Act 1828 s XIV: 5.125

Obscene Publications Act 1959: 11.235 Obscene Publications Act 1964: 11.235

Corporate Manslaughter and Corporate Homicide Act 2007: 9.15 s 1(1): 9.15 s 1(3): 9.15

Offences Against the Person Act 1861: 8.115, 10.05, 10.80 s 60: 5.125

Crime and Disorder Act 1998 s 1: 13.25 s 34: 3.25

Pacific Islanders Protection Act 1872: 3.335 Prohibition of Female Genital Mutilation (Scotland) Act 2005: 10.105

Criminal Attempts Act 1981: 8.205 s 1(1): 8.55 s 1(2): 8.205

Public Order Act 1936 s 5: 12.50, 13.75, 13.165 Public Order Act 1986: 13.215, 13.220, 13.235 s 3: 13.215 s 5: 13.180 s 18: 13.80 s 38: 13.15

Criminal Damage Act 1971: 3.345 Criminal Justice Act 1972 s 36(1): 3.190 Criminal Justice Act 2003: 2.195 Criminal Justice and Courts Act 2015: 11.10 s 33: 11.10, 11.205

Regulation of Investigatory Powers Act 2000: 14.220

Criminal Justice and Immigration Act 2008 s 63: 11.20

Riot Act 1715: 13.230, 13.235

Riot Act 1714: 13.235

Scottish Sexual Offences Act 2009: 11.125

Criminal Justice and Public Order Act 1994: 13.135 s 63: 13.135 ss 64 to 65: 13.135

Serious Crime Act 2007 ss 44 to 46: 7.25 s 50: 7.115 s 56(1)(a): 7.115 s 59: 7.115 Pt 2: 7.05, 7.50, 7.115

Criminal Law Act 1977: 8.130, 8.135 s 1: 8.150 s 5(8): 8.120 Pt I: 8.130

Sexual Offences Act 1956 s 1(1): 8.180

Criminal Law Amendment Act 1885 s 4: 11.100, 11.115

Sexual Offences Act 2003: 2.165, 11.85, 11.110, 11.150 s 1: 11.40, 11.150 s 1(1)(c): 11.150 s 2: 11.40, 11.125 s 75: 11.105, 11.150 s 75(2): 11.110 s 75(2)(f): 11.130 s 76: 11.105 s 76(2)(b): 11.115

Female Genital Mutilation Act 2003: 10.105 s 1(1): 10.105 s 1(2): 10.105 s 2: 10.105 s 3: 10.105 s 4: 10.105 Finance Act 2000: 12.25 Homicide Act 1957 s 1(2): 9.130 s 2: 5.80

Slave Trade Act 1824: 15.95 lxxi

Principles of Criminal Law

Art 3: 10.135, 15.130 Art 5: 13.25 Art 6: 2.80, 2.130, 2.135, 3.15, 14.200, 14.225, 14.230 Art 6(2): 2.165 Art 7(1): 11.65 Art 8: 2.250, 9.60, 15.150 Art 9: 13.25 Art 10: 11.235, 13.90 Art 11: 13.90

Slave Trade Act 1843: 15.95 Slave Trade Act 1873: 15.95 Street Offences Act 1959: 8.135 Terrorism Act 2000: 15.165, 15.180, 15.190 s 1: 15.180 s 44: 15.150 Terrorism Act 2006 s 1: 15.215

Geneva Convention: 14.160 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field: 15.50 Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea: 15.50 Convention (III) relative to the Treatment of Prisoners of War; Convention (IV) relative to the Protection of Civilian Persons in Time of War: 15.50

Theft Act 1968: 2.25, 12.05, 12.40, 12.45, 12.50, 12.100, 12.110, 12.145, 12.165, 12.175, 12.190, 12.195, 12.205, 12.210, 12.240, 12.245, 12.275 s 1(1): 12.40, 12.50 s 2(1): 12.45 s 2(2): 12.45 s 3: 12.195 s 3(1): 12.85 s 4(1): 12.145 s 5(3): 12.175 s 5(4): 12.190 s 15(2): 8.50 s 15A: 12.135 s 16(1): 12.285 s 24(3): 8.205

Hague Convention on the Civil Aspects of International Child Abduction: 10.185 Organisation for Economic Co-operation and Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions: 15.15

Theft Act 1978 s 3: 12.195 Trade Descriptions Act 1968: 3.50

Rome Statute of the International Criminal Court (International Criminal Court Statute, Rome Statute, ICC Statute): 15.90 Art 5: 15.15, 15.45, 15.135 Art 5(2): 15.15 Art 6: 15.50, 15.110, 15.135 Art 6(a): 15.110 Art 6(b): 15.110 Art 6(c): 15.110 Art 7: 15.50, 15.100 Art 7(1): 15.80 Art 7(1)(g): 15.100 Art 7(1)(g)-1: 15.100 Art 7(2): 15.80 Art 7(2)(c): 15.95 Art 8: 15.50 Art 8(2)(a): 15.70 Art 8(2)(b): 15.60, 15.75 Art 8(2)(c): 15.75 Art 8(2)(e): 15.75 Art 12: 15.45 Art 13: 15.45 Art 15: 15.135 Art 16: 15.45 Art 17: 15.50 Art 17(1): 15.45 Art 25(3)(e): 15.110 Art 28: 15.50 Art 30: 15.100

Youth Justice and Criminal Evidence Act 1999 s 43: 2.135

UNITED STATES Foreign Corrupt Practices Act of 1977 (15 USC § 78dd-1, et seq) : 12.305 Harrison Narcotics Tax Act 1914: 14.80 Criminal Conduct Act 1974 (Michigan) ss 520b(1)(f)(i) to (iv): 11.55 Model Penal Code: 3.210 Pennsylvania Abortion Control Act 1989: 9.215

TREATIES AND CONVENTIONS Convention for the Prevention and Punishment of Terrorism: 15.165 Convention on Cybercrime (Budapest Convention on Cybercrime): 15.15, 15.240, 15.255, 15.265 Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (Strasbourg Convention or SETS 141): 14.195 Convention to Suppress the Slave Trade and Slavery (1926 Slavery Convention) Art 1: 15.95

United Nations Convention Against Corruption (UNCAC): 15.15

European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention for Human Rights, ECHR: 2.135, 11.15, 13.90, 14.200

United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances: 14.150, 14.175, 14.180, 14.195 Art 2(5): 14.160

lxxii

Table of Statutes

United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances — cont Art 3(1)(c)(i): 14.175 Art 3(1)(c)(ii): 14.175 Art 3(2): 14.160 Art 3(3): 14.180 Art 4: 14.205 Art 5: 14.195 Art 5(3): 14.180 Art 5(4): 14.180 Art 5(3): 14.185 United Nations Convention against Transnational Organized Crime: 14.180, 14.195, 15.10, 15.15, 15.115, 15.210 Art 3: 15.10 Art 5(1): 15.10 Art 6(1)(a)(i): 14.180 Art 6(2)(f): 14.180 Art 13: 14.180 United Nations Convention agains Transnational Organized Crime: Protocol to Prevent, Suppress and Punish Trafficking in Persons (Trafficking Protocol, UN TIP Protocol): 15.115 United Nations Convention against Torture (Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment): 15.40 Art 27(1): 15.40 Preamble : 11.10 United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW): 2.205, 11.30 Preamble : 11.10 United Nations Convention on the Elimination of All Forms of Racial Discrimination (CERD): 13.80, 15.225 Art 4(a): 13.80 United Nations Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention): 15.50, 15.105 United Nations Convention on the Rights of the Child: 10.135 Art 1: 11.245 Art 19(1): 10.135 Art 24(3): 10.105 Art 34: 11.245 United Nations Declaration on the Elimination of Violence Against Women: 2.205 Art 4: 2.205 Art 4(j): 2.205 United Nations International Drug Control Program (UNDCP): 14.180

United Nations International Covenant on Civil and Political Rights (ICCPR): 2.130, 2.200, 11.30, 13.25, 15.225 s 17(1): 2.245 Art 2(2): 2.130 Art 3: 2.200 Art 6(2): 11.65 Art 7: 2.140, 2.225 Art 9: 15.135 Art 9(1): 15.130 Art 10: 11.10 Art 10(3): 1.80 Art 14: 2.145, 14.230 Art 14(2): 2.145, 2.160, 2.165 Art 14(3): 2.145 Art 14(3)(d): 2.145 Art 14(3)(g): 15.130 Art 14(7): 2.145, 2.195 Art 15: 2.150, 15.130 Art 15(1): 11.65, 15.130 Art 17: 2.245, 2.250, 13.35 Art 18: 2.205 Art 19: 11.235, 13.90, 13.145, 13.150, 15.130 Art 20: 13.80 Art 20(2): 13.80, 15.225 Art 21: 13.90, 13.145, 13.150 Art 22: 13.90, 13.145, 13.150, 15.130 Art 24: 15.130 Art 26: 2.200, 15.130 Art 27: 2.205, 2.225 Preamble : 11.10 United Nations International Covenant on Economic, Social and Cultural Rights (ICESCR) Art 13: 11.10 Preamble Preamble: 11.10 United Nations International Convention for the Suppression of the Financing of Terrorism: 14.195 United Nations Single Convention on Narcotic Drugs: 14.160 Art 36(1): 14.160 Sch IV: 14.160 United Nations Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: 15.95, 15.120 United Nations Universal Declaration of Human Rights (UNHR) Art 1: 11.10 Art 3: 15.135 Art 7: 2.200 Art 11(2): 11.65 Art 19: 13.90 Art 20: 13.90 Art 23: 11.10 Art 24: 11.10 Preamble : 11.10

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PART I

THEORY AND PRINCIPLES Chapter 1: Theory and the Criminal Law ........................................................ .. 3 Chapter 2: General Principles ............................................................................ 79 Chapter 3: Principles of Criminal Responsibility .......................................... 177

Chapter 1

Theory and the Criminal Law Theories are nets to catch the world, to rationalise, to explain and to master it. 1 Theory is here and law/doctrine is there. Students all too often fall into the gap between the two. 2 [1.05] [1.10]

WHAT IS THEORY? AND WHO REALLY CARES? ................................................................................ 3 Mapping the Theoretical Terrain .................................................................................................... 4

[1.20] [1.20] [1.30] [1.35] [1.40] [1.45] [1.105] [1.120] [1.185]

CONSTRUCTING THE CRIMINAL LAW ............................................................................................ 6 Defining Crime and the Rule of Law ............................................................................................... 6 Legal Positivism and a Concept of Criminal Law ........................................................................... 11 Reinstating History and Procedure ................................................................................................ 14 Beyond Legal Positivism ............................................................................................................... 15 The Relationship Between Crime and Punishment ........................................................................ 17 Criminology and the Criminal Law ............................................................................................... 32 Theories of Criminal Justice .......................................................................................................... 40 Towards Critical Synthesis: A Theory of Criminalisation ................................................................. 54

[1.190] [1.200] [1.205] [1.220] [1.235] [1.245] [1.250]

RECONSTRUCTING THE CRIMINAL LAW ...................................................................................... Preventing Harm .......................................................................................................................... Preserving Morality ...................................................................................................................... Promoting the Public Interest and Community Welfare ................................................................ Social Freedom and Republican Theories of Criminal Justice ......................................................... Regulatory Theories of Criminal Justice ......................................................................................... CONCLUSION: INTEGRATING CRIMINAL LAW AND THEORY .......................................................

57 58 60 66 70 75 76

WHAT IS THEORY? AND WHO REALLY CARES? [1.05] Michael King defines theory as the “many general principles or set of principles

formulated to explain the events in the world or relation between such events”. 3 The test of the validity of such general principles is not whether they are accepted by police or lawyers “but the extent to which they offer useful insights into the operation of the criminal justice system”. 4 This positive view that theory expands the boundaries of legal knowledge is 1 2 3 4

K Popper, The Logic of Scientific Discovery (London: Hutchinson, 1959) p 59. G Simpson, “On the Magic Mountain: Teaching Public International Law” (1999) 10 European Journal of International Law 70 at 80. M King, Framework of Criminal Justice (London: Croom Helm, 1981) p 8. M King, Framework of Criminal Justice (London: Croom Helm, 1981) p 9.

[1.05]

3

Part I: Theory and Principles

countered by cynicism that theory adds little value to our understanding of the criminal law as teachers, students and practitioners. Theoretical debate often seems divorced from the real world, raising legitimate questions about its relevance (if any) to the study and practice of criminal law. Beyond the introductory lecture, theory is usually left to be pursued furtively in further reading and footnotes. This chapter sets out to explore the role and value of theory in understanding the function, structure and processes of the criminal law. It may be viewed as an essay on the role and value of theory in constructing and reconstructing the criminal law.

Mapping the Theoretical Terrain [1.10] Legal analysis is often represented as a process of “mapping” the divisions and

boundaries of law. As Lindsay Farmer noted, the criminal law is concerned not only with geographical space or territory, but also with the metaphysical space in which the law is imagined and represented. 5 In Farmer’s view, legal scholarship may be regarded as a form of legal cartography: “Just as maps recreate space by the use of imaginary or scientific devices, the law, in the form of doctrine or academic treatises, must be capable of representing itself. Legal doctrine is a guide, not to the geographical territory, but to the territory of the law, to the imaginary space that the law occupies. From their earliest days law students are taught that to venture into this territory without a map is foolhardy. It is vast and ancient, full of unseen dangers. It is possessed of a strange and wonderful beauty that cannot be perceived by the untrained eye. The law as it is taught and written is always an attempt to impose an order on this unruly country by marking out the ‘greater divisions and principal cities’. It is always the result of a process of selection, and the symbolic order that is constructed mirrors, or more precisely refracts, the legal ordering of space.” 6

This process of mapping can be productive, exposing the underlying contradictions within the substantive law and providing a guide for reform. It may also be repressive, concealing and suppressing the range of issues considered appropriate for “legitimate” legal consideration. 7 As we shall see below, the theory of legal positivism, the concept of law as an autonomous body of legal rules distinct from morality, sociology or politics, has been criticised for excluding other perspectives, such as ethnicity, gender and power, from legal analysis. Theorists claim that their ideas about the law provide the legal community with guides or blueprints for constructing and reconstructing the law. Yet is this really so? The criminal law has certainly provided the doctrinal gist for much thinking and re-thinking about the nature and purpose of law. Until relatively recently, the bulk of this theorising has been concerned with determining the legitimate conditions, in both moral and political terms, of criminal liability and punishment. A leading American legal scholar, George Fletcher, went so far as to claim that the criminal law itself is a “species of moral and political philosophy”. 8 As a consequence, much theoretical debate has been concerned with exploring the conditions under which individuals should be held morally and legally responsible for their conduct. In most textbooks, theoretical engagement is focused on the “principles of responsibility” in general 5 6 7

8

L Farmer, Criminal Law, Tradition and Legal Order (Cambridge: Cambridge University Press, 1997). L Farmer, Criminal Law, Tradition and Legal Order (Cambridge: Cambridge University Press, 1997) pp 2–3. Desmond Manderson in “Beyond the Provincial: Space, Aesthetics, and Modernist Legal Theory” suggests that legal theory more generally may be viewed as a form of legal cartography: (1996) 20(4) Melbourne University Law Review 1048. Manderson argues against such geographic reification of law in terms of provinces, empires, and territory, proposing instead that law should be understood not in spatial terms, but as an aesthetic enterprise—as a process of signification. Rather than suppress complexity and diversity, the aesthetic approach values pluralism. He characterises this approach as “critical pluralism” (at 1069). The repressive aspects of analytical jurisprudence are explored in V Kerruish, Jurisprudence as Ideology (London and New York: Routledge, 1991). G Fletcher, Rethinking Criminal Law (Oxford: Oxford University Press, 2000) p xix.

4 [1.10]

Theory and the Criminal Law

Ch 1

terms, at the expense of critical examination of the aims and limits of the criminalisation in specific contexts. As Peter Alldridge has observed: “There are other problems in the criminal law than those to do with attribution of responsibility … They too can generate important problems requiring contributions from philosophical and other extradoctrinal sources. So long as the crimes under consideration are homicide and assaults there is little controversy as to what the law should require people to do (not kill or hit one another) but there are many areas where it is precisely that question which requires attention. Whatever the standpoint, it is important to realise that ’general principles’ are not the full extent of theorising about criminal law.” 9

From the perspective of criminal law as moral philosophy, criminal law doctrine appears to be a spectacular failure. Textbooks often seem to be a litany of complaints about the failure of the courts and legislatures to uphold “fundamental” principles, such as the presumption of innocence or mens rea (understood as a subjective mental state). These traditional accounts proceed with little or no appreciation of the social, political, historical or practical context within which the criminal law has developed and currently operates. Legal scholarship seems preoccupied with the search for universal principles of responsibility applicable to all crimes, and has been characterised fundamentally as a “rationalising enterprise”. 10 At the same time, there is an increasingly pervasive “critical” consciousness that an alternative basis for the study of the criminal law is necessary, one which seriously engages with the external disciplinary perspectives offered by sociology, psychology, feminism, human rights, legal history and so on. 11 Most significantly, criminal law scholars are increasingly disputing the traditional disciplinary segregation of criminal law from criminal justice studies and criminology. By exploring the nature and purpose of the criminal process, critical scholars have exposed the ideology and contradictions within the concept of “criminal justice”. Drawing on such broader insights, a holistic approach may be developed that conceives the criminal law as merely one component of a larger legal apparatus involved in the detection, prosecution and punishment of offenders. In this chapter, we describe, evaluate and critique various theories of the criminal law and criminal justice, as well as laying the foundation for a critical pluralistic theory of the criminal law which Nicola Lacey called “criminalization”. 12

Types of theory [1.15] When thinking about the function and significance of different theories of the criminal law, a distinction is sometimes drawn between explanatory and normative models. The former explains how the criminal law works, while the latter is concerned with how it ought to work. As John Braithwaite observed: “Sound policy analysis involves a combination of explanatory and normative theory”. 13 Indeed, a simple binary classification can be misleading since explanatory analysis is invariably founded upon an implicit normative 9 10

11

12

13

P Alldridge, Relocating Criminal Law (Aldershot: Ashgate, 2000) p 5. A Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (3rd ed, Cambridge: Cambridge University Press, 2014) p 9, citing M Horwitz, “The Historical Contingency of the Role of History” (1981) 90 Yale Law Journal 1057. While foreign to the common law based criminal justice systems found throughout most of the former British Empire (including the United States), this non-exclusive approach to the discipline is the norm in the civil law systems of Continental Europe: P Alldridge, Relocating Criminal Law (Aldershot: Ashgate, 2000) pp 18–19. This theory has been developed over many years, and is summarised in its most recent form in N Lacey and L Zedner, “Legal Constructions of Crime” in M Maguire, R Morgan and R Reiner (eds), The Oxford Handbook of Criminology (5th ed, Oxford: Oxford University Press, 2012). J Braithwaite in K Hazlehurst (ed), Crime and Justice: An Australian Textbook in Criminology (Sydney: Law Book Company, 1996) p 5. [1.15]

5

Part I: Theory and Principles

model. Reflecting this integrated approach, this chapter organises the material around the ideas of “constructing” and “reconstructing” the criminal law, an approach which traverses both explanatory and normative terrain.

CONSTRUCTING THE CRIMINAL LAW Yet law-abiding scholars write; … Law is neither wrong nor right; … Law is only crimes; … Punished by places and by times. 14

Defining Crime and the Rule of Law [1.20] The criminal law is conventionally defined as a set of legal norms for determining the

conditions under which individuals may be held liable to punishment. Glanville Williams viewed the criminal law as comprised of “crimes” which he defined as follows: “A crime (or offence) is a legal wrong that can be followed by criminal proceedings which may result in punishment.” 15

The distinction between criminal and civil wrong is critical to this type of definition. As Andrew Ashworth has noted: “One way of distinguishing criminal cases from civil is generally, and subject to exceptions and various hybrids, by reference to the procedure adopted—public prosecutor, conviction and sentence—rather than by reference to the content of the law itself.” 16

In this account, the criminal law is defined by reference to the legal norms (rules and principles) for identifying and punishing proscribed conduct, rather than by reference to the inherent wrongful quality of that conduct. Crime is simply whatever the law-makers (legislatures or courts) at a particular time have decided is punishable as a crime. As the criminal law reflects the social, political and cultural values of the period in which it developed, it has been described as a “sociopolitical artefact”. 17 While sociologists and criminologists may define crime in qualitative terms that transcend formal legal categories, such as “deviance” or “socio-cultural” transgression, 18 for the purpose of legal analysis and, more importantly, adjudication, crime is simply any conduct which is proscribed by law as being criminal and punishable accordingly. As Lord Atkin concluded in Proprietary Articles Trade Association v Attorney-General (Canada): “[T]he domain of criminal jurisprudence can only be ascertained by examining what acts at any particular period are declared by the State to be crimes, and the only common nature they will be found to possess is that they are prohibited by the State and that those who commit them are punished.” 19 14 15 16 17 18

19

WH Auden, “Law Like Love”, in AW Allison et al, The Norton Anthology of Poetry (New York: WH Norton & Company Inc, 1975) p 117. G Williams, Textbook of Criminal Law (2nd ed, London: Stevens and Sons, 1983) p 27. A Ashworth, “Is the Criminal Law a Lost Cause?” (2000) Law Quarterly Review 225 at 232. H Packer, The Limits of the Criminal Sanction (Stanford: Stanford University Press, 1968) p 364. C McCormick, D Downes and P Rock, Understanding Deviance (Oxford: Oxford University Press, 2009). Also see K Hayward and J Young, “Cultural Criminology” in M Maguire, R Morgan and R Reiner (eds), The Oxford Handbook of Criminology (5th ed, Oxford: Oxford University Press, 2012). For a review of the varied definitions of crime, see R White, F Haines and N Asquith, Crime and Criminology (5th ed, Melbourne: Oxford University Press, 2012). [1931] AC 310 at 324.

6 [1.20]

Theory and the Criminal Law

Ch 1

Accordingly, it is the power of the State to label and punish conduct as criminal that is the defining characteristic of “crime”. Many legal norms seek to regulate conduct, but only the criminal law has the power to ascribe guilt and to impose punishment in the name of the State. Laws can proscribe conduct as “unlawful”, but without any prospect of conviction and punishment, they cannot be described as “criminal”. However, as Ashworth had to concede, the distinction between criminal and civil law is subject to “exceptions and various hybrids”. 20 Hayne J in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd, reflected on the instability of the civil/criminal law distinction, and the tendency of modern legislatures to blur these lines: “It seeks to divide the litigious world into only two parts when, in truth, that world is more complex and varied than such a classification acknowledges. There are proceedings with both civil and criminal characteristics: for example, proceedings for a civil penalty under companies and trade practices legislation. The purposes of those proceedings include purposes of deterrence, and the consequences can be large and punishing.” 21

The instability of the civil/criminal distinction thus made it unsuitable for determining which type of standard of proof—beyond reasonable doubt or balance of probabilities—should apply in any particular legal proceedings. The case is discussed further in Chapter 2, [2.185]. Unlike Ashworth’s assessment above, we do not consider hybrids to be “exceptional” in the modern criminal law. Indeed, across the Australian legal system, there are numerous examples of “civil penalties” being applied to breaches of industrial relations, environmental, consumer and corporations laws. 22 Although the civil and criminal law may have similar aims and effects, as the High Court recently observed in its 2015 Fair Work Building Industry Inspectorate decision, it is the significance of conviction, carrying the added moral stigma of guilt and shame, that set the two types of proceeding apart: “Granted, both kinds of proceeding [civil and criminal] are or may be instituted by an agent of the state in order to establish a contravention of the general law and in order to obtain the imposition of an appropriate penalty. But a criminal prosecution is aimed at securing, and may result in, a criminal conviction. By contrast, a civil penalty proceeding is precisely calculated to avoid the notion of criminality as such.” 23

While civil remedies such as injunctions or exemplary damages have coercive qualities and effects, from the viewpoint of legal classification, such judgments of legal liability are not based on determinations of guilt.

Civil and criminal regulation: blurring the boundaries? [1.25] In 2002, the Australian Law Reform Commission (ALRC) conducted a major inquiry into the use of civil and administrative penalties in the federal jurisdiction. 24 This ALRC report identified the lack of coherence and principles governing the use of such penalties. It recommended that the distinction between criminal and non-criminal (civil) penalty law and procedure should be maintained and reinforced, and that parliament should exercise caution about extending the criminal law into regulatory areas unless the conduct being proscribed clearly merited the moral and social censure and stigma attached to conduct regarded as 20

21 22 23 24

For a discussion of hybrid laws in the counter-terrorism context, see S Bronitt and S Donkin, “Australian Responses to 9/11: New World Legal Hybrids?” in A Masferrer (ed), Post 9/11 and the State of Permanent Legal Emergency: Security and Human Rights in Countering Terrorism (Dordrecht: Springer, 2012) Ch 10. (2003) 216 CLR 161 at 198 (footnotes omitted). Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 at [23]-[24]. Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 at [54]. Australian Law Reform Commission, Principled Regulation: Federal Civil and Administrative Penalties in Australia, Report No 95 (2002). [1.25]

7

Part I: Theory and Principles

criminal. 25 Although the recommended Regulatory Contraventions Statute of general application was never enacted, in 2004 the Attorney-General’s Department published a guide to assist the framing of proposed criminal offences intended to become part of Commonwealth law. The 2011 revision of A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers drew heavily upon the findings and recommendations of the ALRC. 26 As the revised Guide notes, proposals to criminalise conduct should always consider alternative options such as infringement notices, civil penalties, enforceable undertakings and administrative sanctions, which may be “as effective, or more effective, in deterring and punishing breaches of legislation”. 27 As a form of soft law, the Guide may be viewed as a form of meta-regulation, which prescribes how regulation itself should be regulated. The factors relevant to criminalisation under the Guide are discussed further at [1.215].

The concept of the criminal law as a system of legal norms for guiding action backed by the potential threat of State condemnation and punishment has long been faced with the need, as Lacey and Zedner note, “to legitimate its activities vis-a-vis those who are subject to [it]”. 28 This challenge is tackled on two levels. At the level of substantive doctrine, legitimation is addressed by appealing to the objective and timeless status of the legal standards being applied, and then basing these standards in common understandings or shared universal commitments. At the level of criminal process, legitimacy is addressed by compliance with the fundamental values of criminal justice embodied in the principles of legality, fairness and equality, and so on. This list of fundamental values and principles in the criminal law is not closed, and increasingly draws upon the rights contained in international treaties and human rights legislation: Chapter 2, [2.145] and [2.195]. Whatever the precise legal form these values take – whether recognised under international law, constitutional law or merely as general principles – these normative standards play a significant role in legitimating the criminal law. In liberal democratic societies, the legitimacy of punishment is addressed through the principle of legality or, as it is more traditionally known, the rule of law. 29 The rule of law secures legitimation by purporting to constrain arbitrary power in a number of ways. A key idea is that no person may be punished except for a breach of law established in the ordinary manner before the courts. Another important component is that no person is above the law; every person is subject to these laws without exception, thus ensuring equality before the law. Judges are required to do justice according to the law, rather than by reference to subjective,

25 26 27 28 29

Australian Law Reform Commission, Principled Regulation: Federal Civil and Administrative Penalties in Australia, Report No 95 (2002) [3.110] (Statement of Principle). Attorney-General’s Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (2011). Attorney-General’s Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (2011) p 12. N Lacey and L Zedner, “Legal Constructions of Crime” in M Maguire, R Morgan and R Reiner (eds), The Oxford Handbook of Criminology (5th ed, Oxford: Oxford University Press, 2012) p 166. The phrase “rule of law” is commonly associated with the 19th century English constitutional writing of AV Dicey, Introduction to the Study of the Law of the Constitution (10th ed, London: Macmillan, 1959) pp 202–203. The idea of rule by law rather than by men has an older lineage traceable to the Magna Carta (1215) as well as the Glorious Revolution (1688), the United States Declaration of Independence (1776) and Constitution (1787). For an excellent essay examining the rule of law, see D Clark, “The Many Meanings of the Rule of Law” in K Jayasuriya (ed), Law, Capitalism and Power in Asia (London and New York: Routledge, 1999).

8 [1.25]

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Ch 1

arbitrary and discretionary notions of fairness or morality. 30 These elements are embodied in the principle of legality, which is expressed through the dual maxims: • nullum crimen sine lege (no crime without law); and • nulla poena sine lege (no punishment without law). Fidelity to the principle of legality, and its maxims, leads to the rejection of retrospective criminal laws and punishment without trial, as well as imposing constraints on judicial creativity in expanding the scope of criminal laws. 31 The principle has spawned subsidiary rules relating to statutory interpretation, such as the presumption that parliament did not intend to enact retrospective penal measures or abrogate fundamental rights. 32 More generally, the principle of legality supports the general “strict” approach to statutory interpretation in which the courts must resolve uncertainty and ambiguity of penal provisions in favour of the defendant. 33 That said, legislatures in jurisdictions which do not elevate legality to an overriding constitutional principle do retain sovereign power to derogate from this principle. 34 Though not a common occurrence, the federal parliament has enacted new offences, applying them retrospectively, to criminalise serious offences. It has done this in relation to war crimes and some terrorism offences, such as “harming Australians overseas” in the aftermath of the Bali bombings: see Chapter 15, [15.130]. The ideals lying behind the rule of law are largely the product of the Enlightenment. As Lindsay Farmer has noted, these ideals emerged in the 18th century “as part of a movement that sought to restrict arbitrary royal power, and defend the absolute value of law” and, as such, are “inextricably bound up with views of the modernity of law”. 35 In the context of early colonial Australia, the rule of law played an important role in constraining the absolute powers of the Governor and facilitating the transformation of a penal settlement into a free and civil society. 36 In the modern context, where disempowered subjects are denied civil and 30

31

32 33

34

35

36

The centrality of these values of legality is reinforced by legal theory. Lon Fuller in The Morality of Law (Revised ed, New Haven: Yale University Press, 1969) has suggested that the “inner morality of law” rests on eight precepts: there must be rules; these rules must be prospective, not retrospective; they must be published; intelligible; not contradictory; capable of being complied with; not constantly changing; and that there must be congruence between the declared rules and those applied by officials. For an excellent article tracing the evolution of this “world-wide principle of legality”, and the role of academic work, especially the contributions of Glanville Williams, in raising its profile in domestic criminal law: see G Cumes, “The Nullum Crimen, Nulla Poena Sine Lege Principle: The Principle of Legality in Australian Criminal Law” (2015) 39 Criminal Law Journal 77. G Cumes, “The Nullum Crimen, Nulla Poena Sine Lege Principle: The Principle of Legality in Australian Criminal Law” (2015) 39 Criminal Law Journal 77 at 84–90. G Cumes, “The Nullum Crimen, Nulla Poena Sine Lege Principle: The Principle of Legality in Australian Criminal Law” (2015) 39 Criminal Law Journal 77 at 84–86, notes how the term “principle of legality” has been applied narrowly by Australian judges only to denote these common law principles of statutory interpretation. The principle, while recognised by the common law, “is not an express element of Australia’s constitutional framework”, which has the effect that the legislature has the power to rebut these presumptions by use of clear and express language: G Cumes, “The Nullum Crimen, Nulla Poena Sine Lege Principle: The Principle of Legality in Australian Criminal Law” (2015) 39 Criminal Law Journal 77 at 89ff. L Farmer, Criminal Law, Tradition and Legal Order (Cambridge: Cambridge University Press, 1997) p 23. For an examination of these themes in the context of colonial New South Wales, see I Holloway, S Bronitt and J Williams, “Rhetoric, Reason and the Rule of Law in Early Colonial New South Wales” in H Foster, B Berger and AR Buck (eds), The Grand Experiment: Law & Legal Culture in British Settler Societies (Vancouver: UBC Press, 2008). The extent to which the rule of law operated to constrain the exercise of arbitrary State power, or, conversely, to legitimate the power of the ruling elite, is a matter of continuing debate in the Australian context: D Neal, The Rule of Law in A Penal Colony (Cambridge: Cambridge University Press, 1991) Ch 3; B Kercher, An Unruly Child: A History of Law in Australia (Sydney: Allen and Unwin, 1995); G Woods, A History of [1.25]

9

Part I: Theory and Principles

political rights, the concepts of legality and the rule of law continue to provide one of the few (though not always effective) means of rendering the State accountable for its actions. 37 These ideals and principles encompassed within the rule of law play an influential role in constructing the legal subject—the offender. An important premise behind the rule of law is that the State punishes criminal conduct, not criminal types. As Francis Allen points out: “Although the point seems not often made, the nulla poena principle has important implications not only for the procedures of justice but also for the substantive criminal law. It speaks to the questions, ‘What is a crime?’ and ‘Who is the criminal?’ The nulla poena concept assumes that persons become criminals because of their acts, not simply because of who or what they are.” 38

According to Allen, drafting criminal laws to punish individuals because they possess characteristics perceived to be dangerous or anti-social is incompatible with the principles of legality. As we shall explore below, criminological theories based on biological determinism supported such approaches to criminalisation, and were influential in Nazi and Soviet legal systems: see [1.110]. It would be incorrect, however, to assume that legal systems based on the rule of law did not enact offences targeting the defective character of offenders rather than their conduct. Throughout the 19th century, “status” offences were widely enacted to deal with vagrants, bushrangers, prostitutes, drunks and habitual criminals. As we shall explore below, the modern criminal law continues to identify types of offenders through the range of special laws and powers enacted to deal with dangerous offenders and, more recently, members of terrorist groups and “outlaw motorcycle gangs”. In the aftermath of the September 2001 terrorist attacks (9/11), membership of proscribed organisations has been criminalised by federal legislation, with further ancillary offences such as associating with terrorist organisations: Criminal Code Act 1995 (Cth), s 102.8. These federal laws have provided the template for new organised crime offences: see Chapter 15, [15.280]. Such derogations from the rule of law are significant. They reveal that the ideals of legality, upon closer scrutiny, are often hedged with qualifications. The value of legality is not so much instrumental, but rather symbolic and ideological. Its importance resides in its capacity to confer legitimacy on the criminal law. By abstracting the offence from the political and social context of its enactment and enforcement, the law may be applied (or so it is claimed) in a neutral and impartial manner. This has the effect of excluding the subject of the criminal law—the offender—from legal view, and therefore suppressing the relevance and significance of personal characteristics such as class, ethnicity, sexuality and gender. This abstraction of offenders from their social and political context may be viewed as part of a historical project of

37

38

Criminal Law in New South Wales (Sydney: Federation Press, 2002). For earlier discussions of the significance of the rule of law in the administration of criminal justice in 18th century England, see EP Thompson, Whigs and Hunters: The Origins of the Black Act (London: Allen Lane, 1975); J Langbein, “Albion’s Fatal Flaws” (1983) 98 Past and Present 96. Also see D Hay, “Property, Authority and the Criminal Law” in D Hay, P Linebaugh, J Rule, EP Thompson and C Winslow (eds), Albion’s Fatal Tree: Crime and Society in 18th Century England (New York: Pantheon, 1975). Within developing Asian economies, the rule of law is primarily used as a means of legitimating strong government rather than protecting democratic, liberal values: K Jayasuriya (ed), Law, Capitalism and Power in Asia (London and New York: Routledge, 1999). British colonial powers have not been averse to supplying legal rights in lieu of democracy: C Jones, “Politics Postponed: Law as a Substitute for Politics in Hong Kong and China” in K Jayasuriya (ed), Law, Capitalism and Power in Asia (London and New York: Routledge, 1999) p 45. F Allen, The Habits of Legality—Criminal Justice and the Rule of Law (New York: Oxford University Press, 1996) p 15.

10 [1.25]

Theory and the Criminal Law

Ch 1

reconstructing notions of criminal responsibility in the late 19th century. 39 Until this period, the idea of responsibility in the criminal law was determined largely by reference to the offender’s character, rather than their conduct. 40 This idea was reflected in a moral conception of fault based on malice and wickedness. Only gradually were these normative notions of objective fault displaced with descriptive neutral subjective mental states based on intention, knowledge or recklessness: see Chapter 3, “Fault elements”, [3.170]. Although modern legal discourse struggles to suppress the political dimensions of the criminal law, it is never completely successful. While political questions about criminalisation and enforcement policies are deemed non-justiciable at trial, they are often relevant at the pre-trial (influencing police or prosecutorial discretion) or post-conviction (influencing sentencing) stages. The political dimensions of criminal conduct are sometimes exposed in the application of substantive legal rules. For example, feminists have revealed that the legal definitions of homicide, self-defence and provocation (while formally gender-neutral) are constructed around and condone masculine understandings of legitimate excusable violence. As we shall see in Chapters 4 and 5, the socio-political construction of homicide has severely limited the range and scope of defences available to battered women who kill abusive partners. Critical scholarship recognises as important a wide range of questions about the nature of the crime, the type of offender, and the impact of law enforcement—matters that should have crucial implications for legal responses to crime. Debates in the criminal law are often represented as a dialogic tension between the interests of legality and the countervailing needs of securing individualised justice. 41 This tension is stamped across many compartments of the criminal law. However, it is not only justice that tempers legality. Broader community values and interests are often viewed as imposing limitations on legality. For example, the rules governing intoxication reveal how strict legal logic has been qualified by policy considerations based on “common sense” and “community interests”. The tensions between the principle of legality and other legal values, such as fairness, and non-legal values, such as efficiency, are further explored in Chapter 2, [2.115].

Legal Positivism and a Concept of Criminal Law [1.30] Notwithstanding the emergence of alternative theoretical perspectives in the form of

Critical Legal Scholarship, socio-legal studies and law in context, much legal scholarship (and consequently legal education) remains “broadly positivist”. 42 From both explanatory and normative perspectives, legal positivism fixes clear boundaries around the criminal law, which is viewed as a discrete and autonomous field that may be understood and applied without reference to politics, economics, morality, history, psychology or sociology. To the extent that analysis does extend beyond cases and legislation, it is limited to contextualising law within a set of legal values (informed broadly by liberalism) relating to autonomy, equality, fairness, privacy, and so on. Conceiving of the criminal law as a discrete system of rules and principles has the effect of quarantining questions about the nature of crime, punishment and the criminal process, from 39

40 41 42

A Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (3rd ed, Cambridge: Cambridge University Press, 2014); L Farmer, Criminal Law, Tradition and Legal Order (Cambridge: Cambridge University Press, 1997) Ch 1. M Wiener, Reconstructing the Criminal (Cambridge: Cambridge University Press, 1991). F Allen, The Habits of Legality—Criminal Justice and the Rule of Law (New York: Oxford University Press, 1996) p 21. N Lacey, “Feminist Perspectives on Ethical Positivism” in T Campbell and J Goldsworthy (eds), Judicial Power, Democracy and Legal Positivism (Aldershot: Ashgate, 2000) p 92. This essay reviews how feminism has challenged positivism’s claims of objectivity, neutrality, centrality, unity and rationality for law. See further S Bottomley and S Bronitt, Law in Context (4th ed, Sydney: Federation Press, 2012) Ch 3. [1.30]

11

Part I: Theory and Principles

legal analysis. 43 The ideological exclusion of criminology, as well as other non-legal perspectives, conceals important insights into the role of offenders, victims, the public and the State in understanding crime and the legal responses to it. Criminology, as well as providing theoretical perspectives on the criminal law and criminal justice system, offers empirical insights on the practical operation of specific laws. It opens a disciplinary space for critical scholarship to explore the gap between “law in action” and “law in the books”. We explore this crucial distinction at [1.130]. Empirical research undoubtedly produces better policy-making and law reform—it serves to counteract the belief of lawyers, judges and legislators pursuing “law and order” agendas, that social and cultural change by criminal prohibition is inevitable and achievable. 44 As we shall explore in Chapter 11, empirical studies in Australia have shown that, notwithstanding the abolition of many discriminatory rules and practices in rape trials, the treatment of complainants has not significantly improved. Indeed, in many areas, these reforms have been counterproductive. Criminologists and sociologists have exposed the limits of legality in regulatory terms. Peter Grabosky has highlighted the risk of new laws being neutralised through “creative adaptation” and “unintended consequences”. 45 Adopting this regulatory approach invites a more complex account of criminalisation, one which places criminal law within a wider space that spans public and private law, as well as other non-legal forms of social control. Critical scholarship has moved beyond the standard “law in context” methodology, suggesting that the criminal law is itself subjected to regulation: “Criminal law … both regulates and is regulated by other normative systems within the social order”. 46 Criminal law therefore must be understood as interacting within the wider legal context of public and civil law, as well as affected by underlying community attitudes that impact upon levels of compliance and non-compliance. Regulatory perspectives need not discount the significance of symbolism. As Lacey acknowledges, since the instrumental effects of criminalisation may be uncertain, the distinctive regulatory contribution of the criminal law lies not in its standard-setting functions, but rather in its conferral of legitimacy, “one of the key symbolic resources of any regulatory system”. 47 Liberal accounts view the criminal law as the ultimate prohibitory norm that should only be used as a measure of “last resort” reserved for serious wrongdoing. 48 This concern about over-criminalisation is shared by critical scholars, such as Russell Hogg and David Brown, who accuse law-makers of squandering the criminal law through an “uncivil politics of law 43

44

45 46 47 48

12

Since the modern criminal law, due to the sheer breadth of its reach in regulatory terms, cannot be distinguished by looking to substance alone, the trend in modern textbooks to ignore or gloss rationales for criminalisation is particularly concerning: N Lacey and L Zedner, “Legal Constructions of Crime” in M Maguire, R Morgan and R Reiner (eds), The Oxford Handbook of Criminology (5th ed, Oxford: Oxford University Press, 2012) p 164. A Ashworth, “Editorial—The Value of Empirical Research in Criminal Justice” [1997] Criminal Law Review 533; R Lee, “Socio-Legal Research—What’s the Use?” in P Thomas, Socio-Legal Studies (Aldershot: Dartmouth, 1997). The increased focus on empirical research across many fields of law is reviewed in P Cane and HM Kritzer (eds), The Oxford Handbook of Empirical Legal Research (Oxford: Oxford University Press, 2010). P Grabosky, “Counterproductive Regulation” (1995) 23 International Journal of the Sociology of Law 347. See generally A Freiberg, The Tools of Regulation (Sydney: Federation Press, 2010). See N Lacey “Criminalization as Regulation: The Role of Criminal Law” in C Parker, C Scott, N Lacey and J Braithwaite (eds), Regulating Law (Oxford: Oxford University Press, 2004) Ch 7. N Lacey, “Criminalization as Regulation: The Role of Criminal Law” in C Parker, C Scott, N Lacey and J Braithwaite (eds), Regulating Law (Oxford: Oxford University Press, 2004) p 157. A Ashworth and J Horder, Principles of Criminal Law (7th ed, Oxford: Oxford University Press, 2013) pp 31–35. [1.30]

Theory and the Criminal Law

Ch 1

and order”. 49 This trend is apparent in many areas, such as public order and drug offences, where new police powers and offences have been enacted to combat perceived threats to the community’s social, political, economic and even international interests. Notwithstanding this image of an omnipotent criminal law in need of restraint, it must be acknowledged that the regulatory power of criminalisation can be surprisingly weak. To criminalise conduct places the subject and conduct practically and symbolically beyond the boundaries of legality and civil society. The criminal is literally and legally rendered out law. This is the paradox of criminalisation. The process, while potently symbolic, weakens the instrumental capacity of law to regulate the prohibited conduct. For example, where there exists a continuing market for goods or services that have been prohibited, such as illicit drugs or prostitution, the regulatory impact of the criminal law may be marginal or even counterproductive. Criminalisation may simply serve to stimulate the illegal market by increasing the profit to be gained from the delivery of illicit goods and services. It may also undermine law enforcement more generally by increasing the likelihood of police corruption and weakening public confidence in the administration of justice. Criminal prohibition may have undesirable and unintended effects and criminalisation should not necessarily mean that legal regulation must be abandoned. As David Dixon observed in relation to illicit drugs: “Indeed, the prohibition/legalisation dichotomy is unhelpfully stark: the significant issue is not whether we choose prohibition or legalisation, but rather how we regulate markets in ways which minimise the harms caused by the activities and by their prohibition.” 50

Similar concerns about the counterproductive effects of criminalisation have been raised in relation to special offences prohibiting HIV transmission and female genital mutilation, discussed in Chapter 10 at [10.90] and [10.105] respectively. The counterproductive effects of prohibition of illicit drugs are further explored in Chapter 14, [14.10]. Another weakness of the positivist conception of law is that the sources of its rules and principles are restricted to formal authorities, namely legislation and case law, which tends to overlook or marginalise the roles played by institutional gatekeepers. As John Gardner has noted, “[l]egislators, justice ministers, trial judges, jurors, appeal judges, probation officers, prison governors, and so on all have their own role to play in the social practices of criminal law and criminal punishment”. 51 Empirical research has revealed how police and prosecutors play a key role in determining the boundaries of the criminal law through their practices and policies of selective enforcement, charge-negotiation and plea-bargaining. 52 As Keith Hawkins’ classic empirical study of environmental enforcement revealed, the values and policies of the prosecutors, not the substantive legal definitions, were often determinative of the decision to prosecute. 53 Combined with the reality that most suspects plead guilty, the 49 50 51 52

53

R Hogg and D Brown, Rethinking Law and Order (Sydney: Pluto Press, 1998) Ch 1. D Dixon, “Issues in the Legal Regulation of Policing” in D Dixon (ed), A Culture of Corruption (Sydney: Hawkins Press, 1999). J Gardner, Offences and Defences (New York: Oxford University Press, 2007) p 202. J Hodgson and A Roberts, “Criminal Process and Prosecution” in P Cane and HM Kritzer (eds) The Oxford Handbook of Empirical Legal Research (Oxford: Oxford University Press, 2010) provides an excellent survey of empirical research on prosecution, and the wide range of legal and non-legal factors that shape decision-making. K Hawkins, Environment and Enforcement (Oxford: Clarendon Press, 1983) found that prosecution of environmental offences only proceeded in cases where there was evidence of an intentional violation of the law by the accused even though the law—which imposed strict liability—did not require proof of intent. See also K Hawkins, “Law as Last Resort” in R Baldwin, C Scott and C Hood (eds), A Reader on Regulation (Oxford: Oxford University Press, 1998) p 288. [1.30]

13

Part I: Theory and Principles

legal rules (encapsulated in procedural, evidential and substantive legal definitions) operate primarily as “bargaining chips” for the police, prosecution and defence lawyers in negotiating charges and pleas and penalties. Positivist accounts of the criminal law ignore how legal rules and principles are mediated through the criminal process—the rules of the criminal law simply define and prohibit particular conduct and states of mind. Such accounts rarely consider how legal rules articulated in the higher courts are “translated” in the lower courts. Little attention is paid to the influential role of jury directions and legal summation in shaping the meaning of key legal concepts, such as intention, consent or dishonesty. These issues are further explored in Chapter 2, [2.190], “The law/fact distinction: the boundaries of judicial impartiality”. It has been suggested that the number and extent of these directions pose a threat to the independence of the jury. 54 Formal accounts of the criminal law also tend to ignore the role of judicial texts, such as judicial benchbooks, which provide both specimen directions and, for all practical purposes, are regarded as an authoritative source of criminal law for guiding trial judges. It is often the summary of the relevant legal rule contained in the benchbook, rather than the primary source itself, that will be guiding the magistrate, trial judge and the jury. To achieve a deeper understanding of the criminal law, both practically and theoretically, a wider range of legal sources, both formal and informal, must be studied. 55

Reinstating History and Procedure [1.35] The positivist “concept of law” may also be criticised for conceiving its rules and

principles in ahistorical terms. Legal history, if considered at all, is only used to trace the pedigree of legal rules or principles along lines of authority. This is a form of legal antiquarianism—an exploration of the past for the purpose of demonstrating how far we have progressed. As Alan Norrie observes: “To the extent that lawyers think historically about the law, they tend to think in terms of the slow evolution of legal forms from the crude to the sophisticated, and not in terms of the particular connections between different legal forms and different kinds of society.” 56

This suppression of history, especially the impact of procedural changes, reinforces the conception of the criminal law as a rational system of rules. Crimes are dissected into components, such as “ingredients” or “elements” of offences or defences, rather than viewed as a historical process of criminalisation which is responsive to changing social, cultural and political forces. Historical analysis produces a more complex and comprehensive understanding of the criminal law. It has exposed the contingency and contradictions of “general principles” of the criminal law, as well as the social, political and economic forces shaping the development of specific substantive crimes. For example, as we reveal in Chapter 14, the history of drug law in Australia reveals the role of racism in the construction and legal repression of “Chinese vice” in the 19th century. This is not an exercise motivated by legal antiquarian fascination. By exposing the contingency of criminalisation, historical research may assist the reshaping of our approach to the criminalisation of illicit drugs: see Chapter 14, [14.10]ff. 54 55

56

14

G Flatman and M Bagaric, “Juries Peers or Puppets—The Need to Curtail Jury Instructions” (1998) 22 Criminal Law Journal 207. These sources, once privately prepared and circulated among judges, are now available online in many jurisdictions. For example, http://www.courts.qld.gov.au/court-users/practitioners/benchbooks (cited 20 December 2016) and https://www.judcom.nsw.gov.au/category/publications/bench-books/ (cited 20 December 2016). A Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (3rd ed, Cambridge: Cambridge University Press, 2014) p 10. [1.35]

Theory and the Criminal Law

Ch 1

Farmer has sought to meld the historical and procedural perspectives into a theory of criminal law called “critical positivism”. 57 He argues that a better understanding of rules and principles may be gained from historical study of the relationship between criminal law and its procedures. He suggests that historical approaches to criminal law must not confine themselves to tracing the influence of liberal philosophy on the development of the “principles of criminal responsibility” from the 18th century onwards. He is dismissive of the current “fetish” for contextualising the criminal law through inter-disciplinary critique—in his view, this leads to a growing confusion about how the criminal law fits together (particularly of what constitutes the “core” and the “context”) and “increasingly diffuse accounts of social control”. 58 By contrast, his theory of “critical positivism” offers the prospect of a deeper appreciation of the criminal law through its relationship with criminal justice: “The study of the doctrine of the criminal law must therefore begin by shifting attention on the relationship between legal practices and moral philosophy itself. It should look at its origins, the way that this has been invested with significance, and its actual significance to the operation of the criminal justice system. This entails looking at it as one practice within a complex of practices—the philosophising of the criminal law in the field of the administration of criminal law and criminal justice—where the relationship is not given, once and for all, but must always be in the process of re-establishing itself. The true significance of each of these practices in a specific period must be traced and weighed against the others. The organising concepts of the criminal law do not have an a priori existence, springing fully formed from the head of some god-like philosopher. They emerge from institutional practices and their study must begin by looking at their uses in this system of practices.” 59

Beyond Legal Positivism [1.40] The principal weakness of the positivist definition of “crime” is its tendency to conceal

or suppress its deeply contested normative character. Farmer suggests that the tendency of modern lawyers and judges to define crime in neutral procedural terms, rather than by reference to its inherent normative qualities, simply “reflects the diversity of functions of law in the interventionist State. There is no single, simple moral or other purpose that is capable of holding the whole together”. 60 He traces this diversity in the modern criminal law to the administrative transformations in the 19th century criminal justice system; in particular, the growth of regulatory offences triable by summary procedures. While these new forms of crime promoted public welfare, social order and efficiency, they could no longer be justified in terms of protecting the moral or political order. As a consequence, explanations of the criminal law became increasingly neutral and policy-based. Normative suppression performs an important legitimating function related to the separation of powers. According to the ideals of legal positivism, the function of the courts should be confined to the interpretation and application of existing rules or principles. 61 Within the constraints of adjudication, the courts have the power to refine and clarify definitions and concepts, and to apply existing rules to new situations. Higher courts have the additional power to correct doctrinal mistakes and to develop the law in accordance with its fundamental principles. Positivism contends that if there are no clear rules or principles, then it 57 58 59 60 61

L Farmer, Criminal Law, Tradition and Legal Order (Cambridge: Cambridge University Press, 1997) Ch 1. L Farmer, Criminal Law, Tradition and Legal Order (Cambridge: Cambridge University Press, 1997) p 12. L Farmer, Criminal Law, Tradition and Legal Order (Cambridge: Cambridge University Press, 1997) p 12. L Farmer, “The Obsession with Definition: The Nature of Crime and Critical Legal Theory” (1996) 5 Social and Legal Studies 57 at 66. HLA Hart, The Concept of Law (Oxford: Clarendon Press, 1961); R Dworkin, Law’s Empire (London: Fontana, 1986). [1.40]

15

Part I: Theory and Principles

is for parliament, not the courts, to fill the gaps. Questions of what the criminal law is are primarily technical legal matters for the courts. Questions of what the law should be are political matters for the legislature. 62 The positivist’s “concept of law” is clearly contestable as a sociological depiction of adjudicative practices within systems based on the common law tradition. The interpretative process permits judges at every level considerable discretion or “leeways”, to use Julius Stone’s phrase, to refashion and create legal doctrine. 63 Judicial creativity is admittedly constrained by legal conventions governing the proper use of precedent, interpretation of statutes and beliefs about the appropriate constitutional limits of judicial law-making. Indeed, most common law systems would deny judges the inherent power to create “new” crimes retrospectively in the public interest. 64 Judicial law-making in the criminal law field does, however, occur indirectly—the High Court has exercised its power to abolish outmoded common law offences (such as battery manslaughter) or restrict the scope of particular defences. In some cases, this process of incremental doctrinal development raises concern about the legitimate limits of criminalisation by judicial pronouncement rather than legislative enactment. For example, judicial decisions in England and Australia have held that the marital rape immunity is no longer part of the common law. This refusal to recognise the historical immunity may be viewed as a judicial act of law-creation, criminalising spousal rape where no such crime previously existed. Although potentially conflicting with the principle against retrospectivity, the courts clearly have some latitude in moulding the law in accordance with changing social and political attitudes. The demise of the marital rape immunity is further explored in Chapter 11, [11.65]ff. This process of judicial law-making is also facilitated by the breadth of offence definitions that allow the courts to extend existing laws to emerging and unforeseen social threats. For example, “catch all” offences of public nuisance and endangerment, recognised by common law and statute, have been used to criminalise individuals organising “raves”, 65 and individuals who engage in sexual intercourse that exposes others to the risk of HIV transmission. 66 Legal rhetoric, in keeping with positivist ideals, is compelled to deny the true extent of judicial creativity. The inherent flexibility and discretion within interpretation and adjudication 62

63

64

65 66

This ideal is strongly promoted in Tom Campbell’s The Legal Theory of Ethical Positivism (Brookfield, VT: Dartmouth Publishing Co, 1996). This explicitly normative theory of law emphasises the importance of democratic institutions and the separation of powers with the effect of imposing strict limits on judicial law-making. Ethical positivism, however, is open to the same criticisms that have been levelled at its ancestors: it adopts a narrow conception of legal and political power, and denies the relevance of external disciplinary perspectives on law: N Lacey, “Feminist Perspectives on Ethical Positivism” in T Campbell and J Goldsworthy (eds), Judicial Power, Democracy and Legal Positivism (Aldershot: Ashgate, 2000). See J Stone, Legal System and Lawyers’ Reasonings (London: Stevens and Sons, 1964); J Stone, Precedent and Law: Dynamics of Common Law Growth (Sydney: Butterworths, 1985). Responding to accusations of inappropriate levels of judicial activism, some judges have addressed the issue of the legitimacy and limits of judicial law-making in extra-curial speeches: M McHugh, “The Law-Making Function of the Judicial Process—Part I” (1988) 62 Australian Law Journal 15 and “The Law-Making Function of the Judicial Process—Part II” (1988) 62 Australian Law Journal 116; A Mason, “The Role of the Courts at the Turn of the Century” (1993) 3 Journal of Judicial Administration 156; A Mason, “The Courts as Community Institutions” (1998) 9(2) Public Law Review 83. Scottish criminal law being the most prominent exception: see L Farmer, Criminal Law, Tradition and Legal Order (Cambridge: Cambridge University Press, 1997) p 23, citing Rachel Wright (1809): “The genius of our law rests on a principle diametrically opposite to that of England; the Courts of criminal jurisdiction being authorised to punish crimes with any positive enactment”, per Clerk Hope LJ. See further J Popple, “The Right to Protection from Retroactive Criminal Law” (1989) 13 Criminal Law Journal 251. R v Shorrock [1993] WLR 698. Mutemeri v Cheeseman [1998] 4 VR 484.

16 [1.40]

Theory and the Criminal Law

Ch 1

provides the space for theory to inform and guide legal development. These normative resources may be framed in terms of common sense, experience or conventional legal, moral or political philosophy. Whether the legal community is conscious of the value of theory, legal rules are shaped and outcomes determined by reference to ideas about how the criminal law does and should operate.

The Relationship Between Crime and Punishment The requirements of deterrence, rehabilitation, denunciation, punishment and restorative justice do not point in the same direction. Specifically, the requirements of justice, in the sense of just deserts, and of mercy, often conflict. Yet we live in a society which values both justice and mercy. 67 [1.45] According to conventional definitions, the criminal law is tied to punishment.

Punishment following conviction has several competing aims and effects. These aims and effects are typically represented as retribution, deterrence, incapacitation and rehabilitation. In recent times, as noted above, restorative justice has been added to this list—though this concept is said only to complement, rather than replace, conventional criminal processes and sentencing procedures. The relationship between crime and punishment is typically examined in the first few pages of the standard criminal law text, rarely posing the question whether the linkage assists our understanding of the nature, scope and limits of the criminal law. In the next section, we search more deeply for answers to questions about the proper relationship of punishment to the criminal law, drawing on normative, historical and empirical perspectives on the nature, purpose and effects of punishment. Since punishment flows from a verdict of guilt, theoretical discussion of the criminal law is customarily prefaced with an exploration of the legitimacy of State punishment. As HLA Hart said in Punishment and Responsibility, punishment in legal terms must: • involve pain or other consequences normally considered unpleasant; • be for an offence against legal rules; • be exacted upon an actual or supposed offender for an offence; • be intentionally administered by human beings other than the offender; and • be imposed and administered by an authority constituted by a legal system against which the offence is committed. 68 To view criminal law as an adjunct to punishment draws us inevitably into a philosophical discussion of the purposes and justifications of punishment. This is represented as an ideologically polarised debate between retributivists seeking punishment as “just deserts” for law-breakers, and utilitarians who view punishment as a tool to prevent crime through deterrence, rehabilitation or incapacitation: “Such crude extremism readily spills over to create rival caricatures of the criminal law as a whole.” 69 In discussing punishment, there is a tendency to muddle the purposes, consequences and justifications. As leading legal theorist HLA Hart conceded, theories of punishment do not necessarily explain what punishment is or achieves, but rather constitute “moral claims as to what justifies the practice of punishment—claims as to why, morally, it should or may be used”. 70 As a consequence, discussion of punishment is highly normative. These various 67

68 69 70

J Spigelman, “Judging Today” (Address to the Local Courts of New South Wales 2003 Annual Conference, 2 July 2003), http://www.supremecourt.justice.nsw.gov.au/Pages/SCO2_publications/SCO2_judicialspeeches/ sco2_speeches_pastjudges.aspx#spigelman (cited 17 July 2016). James Spigelman served as the Chief Justice of New South Wales from 1998 to 2011. HLA Hart, Punishment and Responsibility (New York: Oxford University Press, 2008) pp 4–5. S Shute, J Gardner and J Horder, Action and Value in Criminal Law (Oxford: Clarendon Press, 1993) p 3. HLA Hart, Punishment and Responsibility (New York: Oxford University Press, 2008) p 72. [1.45]

17

Part I: Theory and Principles

theories of punishment have influenced a wide range of issues including criminalisation; the basis and scope of criminal responsibility; the availability of defences or excuses; and the proper principles to guide sentencing law, policy and practice. In the following section, we examine the background and philosophical ideas behind these rival theories of punishment and evaluate their impact upon and significance for the modern criminal law. Retribution and proportionality My object all sublime … I shall achieve in time, … To let the punishment fit the crime … … The punishment fit the crime? 71 [1.50] Retribution is the communal, institutionalised expression of the basic human instinct

to impose, within acceptable limits, painful consequences upon persons who commit harmful and wrongful acts. For many people, retribution is viewed as the primary purpose of punishment. 72 To distinguish it from vengeance, retribution holds that offenders should receive punishment proportionate to the harm caused by their conduct and their blameworthiness or guilt. 73 In a system based on retribution, however, there is no further purpose behind punishment, such as prevention of future crime by deterrence or rehabilitation. As a consequence, retribution is said to be “backward-looking” because it focuses on the past criminal act and the offender’s criminal responsibility for that act. Not only must there be proportionality between the nature and degree of punishment and the blameworthiness of the offender, but there must also be a proportionate relationship between the harm done and the punishment. In colloquial terms, “the punishment must fit the crime”, a commonplace idea that inspired the operatic lyrics of Gilbert & Sullivan, quoted above. It is important to distinguish retribution from proportionality, the latter having a broader appeal and application, for example, placing limits on the use of punishment in pursuit of utilitarian aims such as deterrence. 74

An eye for an eye: retributive or restorative justice? [1.55] The lex talionis is usually traced to the Old Testament injunction “an eye for an eye, a tooth for a tooth”: Exodus 21:24. Paradoxically, this provision of Jewish law relates not to a measure of punishment, but rather to a principle of just compensation in the civil law. 75 The phenomenon of restorative concepts being hijacked by retributive discourse has also been found in the evolution of Greek and Anglo-Saxon laws. 76 Braithwaite suggests that restorative justice, rather than being a recent innovation, has been “the dominant model of criminal justice throughout most of human history for perhaps all of the world’s peoples”. 77 He has also traced the way in which Australian convict society offered restorative justice through its high levels of reintegration and procedural justice. 78

71 72

73 74 75 76 77 78

From “The Mikado” (1885), a comic opera by A Gilbert and WS Sullivan, Act II. Retribution is sometimes considered to be a synonym for punishment: G Davies and K Raymond, “Do Current Sentencing Practices Work?” (2000) 24 Criminal Law Journal 236 at 238. Such definitions erroneously imply that interventions promoting rehabilitation, deterrence or incapacitation are not punishment. R Fox, “The Meaning of Proportionality in Sentencing” (1994) 19 Melbourne University Law Review 489. Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006) pp 133, 149–151. M Lew, The Humanity of Jewish Law (London: The Soncino Press, 1985) Ch 1. J Braithwaite, Restorative Justice and Responsive Regulation (Oxford and New York: Oxford University Press, 2002). J Braithwaite, Restorative Justice and Responsive Regulation (Oxford and New York: Oxford University Press, 2002) p 5. J Braithwaite, “Crime in a Convict Society” (2001) 64(1) Modern Law Review 11.

18 [1.50]

Theory and the Criminal Law

Ch 1

Dissatisfaction with the effectiveness of deterrence and rehabilitation in the 1990s revived academic interest in retributive justice. 79 Retribution, framed as a “Theory of Just Deserts”, now occupies a prominent place in debates about modern sentencing law, policy, principles and practices. 80 While retributive justice has gained much ground, it would be wrong to claim that it is the primary or paramount purpose of punishment. Modern sentencing legislation tends to adopt a “smorgasbord” approach in which the judge, in deciding whether the sentence is “just” or “appropriate” 81 may take into account a range of considerations, some potentially contradictory and conflicting, relating to rehabilitation, deterrence, denunciation and community protection. 82 Indeed, retributive justice is increasingly being challenged by ideas of “restorative justice”, which are explored further at [1.95]. The theory of retributive justice also has implications beyond sentencing law and practice. In the substantive law governing attempts, lesser penalties generally apply than for the completed offence: punishment must be proportioned according to whether or not harm has been caused: see, for example, Crimes Act 1958 (Vic), s 321P. Although a person who attempts to commit a crime may possess an equivalent level of culpability to a person who successfully commits one, the importance of proportionality in relation to harm justifies different treatment. Similarly, if an accused has attacked another, intending to cause grievous bodily harm, he or she will be punished less severely if the victim survives than if the victim dies. The level of blameworthiness may be the same, but the punishment will differ according to the consequences of the accused’s actions.

Sentencing perspectives Searching for Consistency: Commonwealth Sentencing Database [1.60] In the context of modern sentencing, retribution is an important, but not

overriding, consideration. At common law, the aims of sentencing may be found scattered in judicial dicta, many of which are contradictory. To promote consistency, the purpose and principles guiding sentencing discretion have been cast in legislative form in most jurisdictions. At the Commonwealth level, the “complex and ambiguous” sentencing regime in Pt IB of the Crimes Act 1914 (Cth) has led to there being “compelling evidence of inconsistencies in the sentencing of federal offenders in Australia”. 83 In response to public and judicial concerns and on the recommendation of the ALRC, the Commonwealth Sentencing Database (CSD) was launched in 2008 by the then Minister for Home Affairs, Bob Debus, who declared: 79 80

81 82

83

R Murugason and L McNamara, Outline of Criminal Law (Sydney: Butterworths, 1997) p 10. This revival has been promoted by Andreas von Hirsch: see A von Hirsch, Doing Justice: The Choice of Punishments (New York: Hill and Wang, 1976); Past or Future Crimes: Deservedness and Dangerousness in the Sentencing of Criminals (New Brunswick: Rutgers University Press, 1985); Censure and Sanctions (Oxford: Oxford University Press, 1993). See also, AP Simester, A Du Bois-Pedain and U Neumann (eds), Liberal Criminal Theory—Essays for Andreas von Hirsch (Oxford: Hart Publishing, 2014). Section 16A(1) of the Crimes Act 1914 (Cth) provides that “… a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence”. See Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A; Sentencing Act (NT), s 5; Penalties and Sentences Act 1992 (Qld), s 9; Criminal Law (Sentencing) Act 1988 (SA), s 10; Sentencing Act 1997 (Tas), s 3; Sentencing Act 1991 (Vic), s 5(1). Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006) pp 1–2. [1.60]

19

Part I: Theory and Principles

“The [CSD] is designed to provide judicial officers with reliable, accessible and up-to-date information on penalties imposed for breaches of Commonwealth laws. This will promote consistency of sentencing across the nation—which is fundamental to maintaining a just and equitable criminal justice system … People expect that a court dealing with a Commonwealth offence in one State or Territory will be consistent in approach with courts in other States and Territories. The same offence should get a similar sentence—whether committed in Broome or Bundaberg … The Same Crime, Same Time report called for an information system to ensure that penalties imposed for Commonwealth offences be proportionate and that sentences be consistent. In response—the new database has been developed. It is online [for access see footnotes 85 and 86 below] and includes: • sentencing statistics • guidance on the principles and practice followed by the Courts in sentencing for Commonwealth offences, and • reference material such as legislation, case law and articles. The statistics component will be particularly useful in encouraging consistency. It provides users with access to information in the form of graphs and tables on the range and frequency of penalties imposed by courts. Through a search function, it also enables users to obtain comparative sentencing information. It contains commentary on sentencing principles, including key passages from judgments that distil the essence of leading cases.” 84

The “statistics” component of the CSD is not open access, but researchers and students may request access by contacting the National Judicial College of Australia. 85 However both the “principles and practice” and “publications” components are available to the public online. 86 The CSD is modelled on the New South Wales Judicial Commission’s Judicial Information Research System (JIRS), which is an online source of primary, secondary and statistical reference material for judicial officers, the courts, the legal profession and government agencies that play a role in the justice system. Regrettably, access is again limited to judicial officers, though part of it is accessible to the broader legal profession, libraries and educational institutions on a hefty subscription basis. 87 Bearing in mind the central role that these databases play in sentencing, greater levels of transparency and accessibility are required. Indeed, the Judicial Conference of Australia (JCA) has recognised the importance of transparency in the sentencing processes to counter negative perceptions in the community. 88 Deterrence [1.65] Deterrence, unlike retribution, is concerned with preventing crime. In this sense, it is

“forward-looking”, viewing punishment in terms of its capacity to prevent individuals (either the individual accused or the general public) from breaking the criminal law. Punishment is 84 85 86 87 88

R Debus, “Sentencing Issues and the Launch of the Commonwealth Sentencing Database”, Sentencing 2008 Conference, 9 February 2008, National Judicial College, Canberra. See https://www.njca.com.au/sentencing/statistics/ (cited 21 December 2016). See https://www.njca.com.au/sentencing/principles-practice/ (cited 21 December 2016) and https:// njca.com.au/sentencing/principles-practice/ (cited 21 December 2016). See https://www.judcom.nsw.gov.au/research-and-sentencing (cited 21 December 2016). JCA, Judge for Yourself: A Guide to Sentencing in Australia, http://www.jca.asn.au/wp-content/uploads/2013/ 10/JCA_judge_for_yourself_large.pdf (cited 7 July 2016).

20 [1.65]

Theory and the Criminal Law

Ch 1

not legitimate unless it serves as an effective deterrent, a view most strongly put by the 18th century penal reformers, Cesare Beccaria and Jeremy Bentham, whose influential ideas are discussed below. Deterrence is modelled on particular assumptions about human nature; namely, that since individuals are rationally motivated to maximise pleasure and avoid pain, they will freely choose not to commit crimes. It is the threat of punishment, rather than moral “goodness”, that ensures compliance with the law. To motivate rational people, the punishment must also be proportionate to both harm and culpability. Punishment is measured to have maximum individual and general deterrent effect. Not only may it prevent recidivism (recurrence of crime) by punishing the offender, it also has the general effect of deterring other members of society from engaging in criminal conduct. As JH Burns and HLA Hart point out, these two aspects of deterrence are often confused. 89 Punishment can only have a deterrent effect, both general and specific, where the person has freely chosen to break the law. According to Jeremy Bentham, punishment should not be applied to conduct which, morally speaking, is involuntary. As Norrie noted, this exemption of involuntary conduct would excuse “individuals who could not know the law, who have acted without intention, who have done the evil innocently, under an erroneous supposition, or by irresistible constraint”. 90 Also, to be effective as a deterrent, the criminal law must be formulated in advance in clear and accessible terms, and there must be certainty and consistency of enforcement. Deterrence theory is a product of 18th and 19th century theorising about the nature of crime, human conduct and reason. As a general theory, it assumes that individuals are similarly situated socially, politically and economically, each one rationally capable of weighing and attaching similar values to the opportunities and costs of particular courses of conduct. The difficulty with this model of human behaviour is that it generalises about human behaviour and abstracts individuals from the context of their offending. The deterrent effect of laws is dependent on a wide range of factors, including the publicity of the offence, the nature of the offence, the risk of detection and certainty of prosecution, and the social stigma attached to the offence and punishment. Empirical research on the deterrent effects of environmental crimes has suggested that a deterrent effect is correlated to two factors: the certainty of punishment, that is, the likelihood of prosecution, trial and conviction; and, to a lesser extent, the severity of punishment. 91 Clearly for these “white collar” crimes, the deterrent effect may be reasonably high since potential offenders, being successful corporate players, are more likely to be economically rational, self-interested, knowledgeable about the law and occupy a high social standing, where the stigma of conviction involves significant social and professional costs. For the wider population, given the range and diversity of regulatory offences contained in the modern criminal law, it is unrealistic to presume knowledge of every crime and, most significantly, applicable sentencing tariffs. 92 89 90 91

92

JH Burns and HLA Hart, Jeremy Bentham: Introduction to the Principles of Morals and Legislation (London: Methuen, 1982) p 17. A Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (3rd ed, Cambridge: Cambridge University Press, 2014) p 23. J Norberry, “Environmental Offences: Australian Responses” in D Chappell and P Wilson (eds), The Australian Criminal Justice System: The Mid 90s (Sydney: Butterworths, 1994) p 167, discussing research undertaken by Duncan Chappell in Canada. M Moore, Act and Crime (Oxford: Clarendon Press, 1993) estimates that the criminal law in modern industrialised societies comprises 7,000 offences: p 1. J Horder, Ashworth’s Principles of Criminal Law (8th ed, Oxford: Oxford University Press, 2016), estimates that there are 10,000 crimes in English criminal law: p 184. [1.65]

21

Part I: Theory and Principles

Moreover, on any rational assessment, the likelihood of detection and conviction—let alone imprisonment—for many offences is very remote. This has important consequences for the theory of “absolute deterrence” which claims that the “existence of a criminal justice system that punishes offenders has the effect of deterring would-be criminals”. 93 This is strikingly represented in this summary of data on the “size of crime”, published 30 years ago, by the Australian Institute of Criminology: FOR EACH 1000 “CRIMES” COMMITTED 400 ARE REPORTED TO THE POLICE 320 ARE RECORDED BY THE POLICE AS CRIMES 64 ARE DETECTED 43 RESULT IN CONVICTIONS 1 PERSON IS JAILED 94

Clearly, a complex array of factors explains legal conformity beyond the deterrent effect of punishment. Nevertheless, there remains a widespread belief within the legal and wider community that punishment (specifically the use of imprisonment), rather than the likelihood of detection, does deter crime. It is an ideology that is sustained by political “law and order” campaigns that tougher punishments work to prevent crime. Although the assumptions behind deterrence (that individuals are calculating and rational agents) may be true for some people, some of the time, they do not generalise easily into a “theory of punishment”. Even Jeremy Bentham, the founding father of “Deterrence Theory”, had to concede the limitations of his rationalist assumptions about human nature. As Norrie observes: “The sad truth for his own deterrent theory, Bentham acknowledges, is that people can know what they ought to do, but nonetheless do what they ought not to.” 95 Notwithstanding its shaky empirical foundations, the idea of deterrence remains politically and morally significant in criminal justice debates. With the increasing scepticism in the 1970s that crime was rooted in “social factors” and that imprisonment failed to reform or rehabilitate, there was a revival of deterrence as the primary focus for crime control. Embracing deterrence was justified on pragmatic rather than philosophical grounds. As influential American scholar, James Q Wilson, conceded in his 1975 manifesto for criminal justice reform, Thinking About Crime, the deterrence model was favoured: “not necessarily because of a belief that the ‘causes of crime’ are thereby eradicated but because behavior is easier to change than attitudes, and because the only instruments society has by which to alter behavior in the short run require it to assume that people act in response to the costs and benefits of alternative courses of action.” 96

Whatever the political and pragmatic appeal of this “new” approach to crime control, it suffers from the same weakness as earlier theories of deterrence. It rests on crude 93

94

95 96

Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006) p 134; see also G Davies and K Raymond, “Do Current Sentencing Practices Work?” (2000) 24 Criminal Law Journal 236 at 239. See S Mukherjee, J Walker, T Psaila, A Scandia and D Dagger, The Size of the Crime Problem in Australia (Canberra: Australian Institute of Criminology, 1987), cited in R Hogg and D Brown, Rethinking Law and Order (Sydney: Pluto Press, 1998) p 10. A Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (3rd ed, Cambridge: Cambridge University Press, 2014) p 27. JQ Wilson, Thinking About Crime (Revised ed, New York: Basic Books, 1983) p 50.

22 [1.65]

Theory and the Criminal Law

Ch 1

generalisations about human nature and the motivations to commit crime, and it removes offenders from the social, economic and political context of their offending behaviours. Rehabilitation [1.70] Another prominent aim of punishment seeks the rehabilitation of offenders.

Rehabilitation, like deterrence, is concerned with the prevention of crime. However, it differs from deterrence in seeking to modify behaviour by changing or reforming the moral outlook of the offender, rather than simply threatening or imposing a measure of pain sufficient to induce conformity. The history of rehabilitation is tied to the rise of prisons and the emergence of pathological models for explaining crime in the 19th century, which viewed criminal behaviour as a “social disease” that, with appropriate interventions, was both curable and preventable. Until the middle of the 20th century, rehabilitation remained a plausible purpose of punishment. Supported by sociological theories of deviance, criminal behaviour was “learned” and the product of attitudes to offending shaped and influenced by social groups, friends and family. Faulty learning could be rectified through, among other things, psychological therapy and treatment. Due to the focus of treatment on the individual needs of the offender, rehabilitation is criticised from a retributivist perspective because it leads to inconsistent sentences for the same offence. Whilst rehabilitation remained popular until the 1960s and 1970s, particularly in relation to the treatment of juveniles, it has been somewhat overtaken by the revival of retributive and deterrent theories. As we shall see in Chapter 14, [14.30], rehabilitation is making a partial comeback with the establishment of specialised drug courts in Australia which have been specifically constituted to provide judicial supervision of drug treatment and rehabilitation. 97

Rehabilitation and the rise of the model prison [1.75] In terms of the history of punishment, the penitentiary model emerged as an instrument of “carceral” discipline directed to training the mind or soul of the offender. It displaced an earlier form of “corporeal” discipline directed to the physical body. 98 Using Michel Foucault’s theoretical approach, Mark Finnane in Punishment in Australian Society traces these shifts through the demise of transportation and the emergence of “model prisons” in Australia. 99 The penitentiary incorporated the pervasive surveillance technology of Bentham’s Panopticon and social isolation of prisoners as a means of achieving “reform through suffering”: see [1.175]. This new architecture of penality was supported by the emerging disciplines of criminology and penology, which offered scientific explanations for offending that progressed from crude pathological or biological accounts, to more complex psychological explanations. 100 Such approaches are in stark contrast to the new Australian Capital Territory prison, which has been devised with the Human Rights Act 2004 (ACT) in mind. The prison is designed to offer opportunities for inmates to improve themselves whilst incarcerated, and to encourage behaviour which will help people when they are released back into the community. The Alexander Maconochie Centre (AMC) is named after Captain Maconochie, the humane superintendent and penal reformer of Norfolk Island from 1840–1843, who is credited with turning a “living hell” into an orderly penal establishment. 101

97 98 99 100

A Freiberg, “Australian Drug Courts” (2000) 24(4) Criminal Law Journal 213. M Foucault, Discipline and Punish: The Birth of the Prison (New York: Pantheon Books, 1977). See M Finnane, Punishment in Australian Society (Melbourne: Oxford University Press, 1997) Ch 2. See, generally, J Hirst, “The Australian Experience: The Convict Colony” in N Morris and D Rotham (eds), The Oxford History of the Prison (New York: Oxford University Press, 1998). [1.75]

23

Part I: Theory and Principles

Rehabilitation uses a medical or pathological model for determining the motivations and proper treatment of offenders. This approach searches for the latent abnormalities of offenders and then deems these correlated “characteristics” as the underlying causes of crime. Deviance (whether moral, social or legal) may be constructed in terms of a “sickness” that requires diagnosis and treatment. However, these pathological conditions are not objective categories existing independently from medico-legal discourse. As the construction, and subsequent de-construction, of “homosexuality” as a type of sexual disorder in the 20th century demonstrates, there is a complex relationship between law and medical science in defining and punishing deviance. 102 An emphasis on rehabilitation necessarily suppresses these wider historical, political and social forces shaping the process of criminalisation. In Chapter 14, we explore how the discovery of drug addiction as a disease in the late 19th century generated the “deficit model” of drug use that has continued to shape legal policy on illicit drugs through to the present day. By conceptualising drug use as a disease of addiction, the range of criminal justice interventions is limited to treatment options such as counselling, detoxification or maintenance programs. While the medical model undoubtedly has the capacity to blunt the criminal law, it has also diverted our attention away from controlled drug use and alternative market-based regulatory strategies, that are increasingly used to control other historical “vices” such as gambling and prostitution.

Rehabilitation as the principal purpose of punishment? [1.80] Article 10(3) of the International Covenant on Civil and Political Rights (1966), reflecting the then dominant social conception of crime and offending, prioritises, through treatment, the reform and rehabilitation of prisoners as the principal purpose of imprisonment: “The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.”

Incapacitation [1.85] Nigel Walker suggests that the “incapacitation” of those known to be dangerous

should be regarded as a justification that is as sound as retributive notions of “just deserts” and proportionality, or notions of deterrence and the need for treatment. 103 Capital punishment was of course the ultimate form of incapacitation. The modern idea of incapacitation, removing the means and opportunity for future criminal offending, is linked with assessments of risk and dangerousness. 104 The criminal law has a long history of regulating dangerous subjects, even authorising indefinite detention without proof of guilt. The paradigm example is the law’s response to persons suffering mental impairment who 101

102

103 104

For an assessment of Alexander Maconochie’s contribution to modern prison reform, see N Morris, Maconochie’s Gentlemen: The Story of Norfolk Island and the Roots of Modern Prison Reform (New York: Oxford University Press, 2002). On the changing medico-legal status of homosexuality, and the political movement within psychology and psychiatry to remove it as a sexual disorder, see E Shorter, A History of Psychiatry (New York: Wiley, 1997). See also L Moran, The Homosexual(ity) of Law (London: Routledge, 1996); and C Stychin and D Herman, Sexuality in the Legal Arena (London: The Athlone Press, 2000). N Walker, “Unscientific, Unwise, Unprofitable or Unjust?” (1982) 22 British Journal of Criminology 276. For a review of these special laws, targeting habitual criminals, see J Pratt, Governing the Dangerous: Dangerousness, Law and Social Change (Sydney: Federation Press, 1997).

24 [1.75]

Theory and the Criminal Law

Ch 1

engaged in conduct that, but for lack of capacity, would constitute a criminal offence. As persons acting without criminal responsibility cannot be punished, the criminal law struck a balance between individual justice and public safety by recognising a verdict of “not guilty by reason of insanity”. This “qualified acquittal” has justified the detention of persons for an indefinite duration in secure psychiatric institutions since the 19th century: see Chapter 4, [4.75]. The scope of preventive detention has expanded further with the advent of “dangerous offenders” laws that permit detention beyond the term of the original sentence for preventive as opposed to punitive purposes. 105 In Veen v The Queen (No 2), Deane J foreshadowed the development of these preventive measures in the following terms: “The protection of the community obviously warrants the introduction of some acceptable statutory system of preventive restraint to deal with the case of a person who has been convicted of violent crime and who, while not legally insane, might represent a grave threat to the safety of other people by reason of mental abnormality if he [or she] were to be released as a matter of course at the end of what represents a proper punitive sentence. Such a statutory system could, one would hope, avoid the disadvantages of indeterminate prison sentences by being based on periodic orders for continuing detention in an institution other than a gaol and provide a guarantee of regular and thorough review by psychiatric and other experts.” 106

The protection of the community as a justification for incapacitating “dangerous” individuals has been criticised for punishing individuals for what they might do, rather than for what they have done. 107 As Anthony Duff and David Garland have observed: “It is wrong, in principle, to punish offenders for their predicted future conduct: they should be punished for what they have done, not in respect of what they will or might do. We should treat individuals (unless they are insane) as moral agents who can choose whether or not to desist from future crimes.” 108

The contested nature of incapacitation as a purpose of sentencing is apparent in the changing views of the Australian Law Reform Commission (ALRC) on the issue. In its 1988 Report, the ALRC rejected incapacitation as a legitimate purpose of sentencing for reasons similar to those of Duff and Garland. 109 By 2006, the ALRC had reversed its position in its report on federal 105

106 107

108 109

The origins of these laws in Victoria are discussed in P Fairall, “Violent Offenders and Community Protection in Victoria—The Gary David Experience” (1993) 17(1) Criminal Law Journal 40. The doctrine of institutional integrity implied into the Federal Constitution prevents the executive or legislature usurping judicial functions or bestowing non-judicial functions on State courts in order to maintain their “essential characteristics” as repositories of federal judicial power. The High Court has held that an order of involuntary detention of a penal or punitive character that was not imposed pursuant to a judicial determination of guilt violated the separation of powers doctrine: Kable v DPP (NSW) (1996) 189 CLR 51; P Fairall, “Before the High Court: Imprisonment without Conviction in New South Wales: Kable v Director of Public Prosecutions” (1995) 17(4) Sydney Law Review 573. The Kable doctrine has required the legislature to draft new preventive laws with these institutional limitations in mind. In Fardon v Attorney-General (Qld) (2004) 223 CLR 575, the High Court upheld the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) as it had made provision for the operation of adversarial processes, placing the burden on the State to establish a sufficient degree of risk to justify detention: see O Roos, “Baker v The Queen & Fardon v Attorney General for the State of Queensland” (2005) 10(1) Deakin Law Review 271. Other jurisdictions have since enacted similar legislation: see Crimes (High Risk Offenders) Act 2006 (NSW), Serious Sex Offenders (Detention and Supervision Act) 2009 (Vic), Criminal Law (High Risk Offenders) Act 2015 (SA), Serious Sex Offenders Act (NT) and Dangerous Sexual Offenders Act 2006 (WA). Veen v The Queen (No 2) (1988) 164 CLR 465 at 495. See, for example, CR Williams, “Psychopathy, Mental Illness and Preventive Detention” (1990) 16(2) Monash University Law Review 161 at 168, 178; Victorian Sentencing Committee, The Report of the Victorian Sentencing Committee, Vol 1 (Melbourne: Attorney-General’s Department, 1988) pp 120–121. A Duff and D Garland, A Reader on Punishment (Oxford: Oxford University Press, 1994) p 239. Australian Law Reform Commission, Sentencing, Report No 44 (1988). [1.85]

25

Part I: Theory and Principles

sentencing law. 110 The ALRC’s reversal reflects the growing acceptance of the need to protect society, by means of incapacitation, from dangerous recidivists. 111

Empirical claims about punishment: fact and fiction? [1.90] Scholars have searched for empirical evidence to support the claims that punishment effectively promotes incapacitation, deterrence and rehabilitation. Mirko Bagaric, for example, found that there was little empirical evidence to support the effectiveness of any of these aims except for general deterrence. 112 Since general deterrence is the only effective basis for punishment, specific deterrence and rehabilitation should be abolished as sentencing objectives. Bagaric’s empirical claims relied on a historical analysis of outbreaks of lawlessness during police strikes, including the strike in Melbourne in 1923. With the removal of the police and, therefore, the threat of punishment for wrongdoing, the bonds of civil society dissolved and anarchy inevitably followed. This finding supports his conclusion that: “Experience shows that absent the threat of punishment for criminal conduct, the social fabric of society would readily dissipate. Crime would escalate and overwhelmingly frustrate the capacity of people to lead happy and fulfilled lives. Thus while there is only one objective of punishment which the utilitarian can invoke [general deterrence], this is more than sufficient to justify the practice of State imposed unpleasantness on those who violate the criminal law.” 113 Drawing on similar historical evidence of the effect of police strikes, Don Weatherburn concluded that increasing the likelihood of apprehension and punishment acts as a “very substantial deterrent to offending”. 114 While there is uncertainty about the empirical foundation for existing theories, this analysis of the instrumental effect of punishment, like much of the discourse he critiques, is over-determined. Both Bagaric and Weatherburn ignored the other forces that operated to encourage the conditions of lawlessness during police strikes—in the context of the Melbourne police strike in 1923, these forces were most obviously the social and economic conditions caused by the mass demobilisation of soldiers at the end of World War I, and the onset of the Great Depression. Rather than search for an explanation and justification of punishment in narrowly instrumental terms, it may be more fruitful to explore the symbolic dimensions of punishment.

Restorative justice [1.95] There is a growing international social movement in favour of reconstructing criminal

justice to promote “restorative justice”. Under this increasingly influential model, the search for legitimacy is redirected away from the State and its power to punish towards communitybased initiatives that offer the prospect of reintegration and restoration for offenders, victims

110 111 112 113 114

Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006) [4.14]–[4.17], [4.27]. CR Williams, “Psychopathy, Mental Illness and Preventive Detention” (1990) 16(2) Monash University Law Review 161 at 178. M Bagaric, “Incapacitation, Deterrence and Rehabilitation: Flawed Ideals or Appropriate Sentencing Goals?” (2000) 24(1) Criminal Law Journal 21. M Bagaric, “Incapacitation, Deterrence and Rehabilitation: Flawed Ideals or Appropriate Sentencing Goals?” (2000) 24(1) Criminal Law Journal 21 at 45. D Weatherburn, Law and Order in Australia (Sydney: Federation Press, 2004) p 84.

26 [1.90]

Theory and the Criminal Law

Ch 1

and communities affected by crime. There is a wealth of literature exploring, from both practical and theoretical perspectives, the emergence of restorative justice as an effective alternative to retributive forms of justice. 115 Notwithstanding
the
influence
of
restorative
justice
in
Australia,
Canada,
New
Zealand
and
the
United
Kingdom,
it
has
had
less
impact
in
the
United
States
where
criminal
justice
theorists
assert
that
retributivism
is
the
dominant
orthodoxy
among
Anglo-American
scholars.
Indeed,
George
Fletcher
in
his
influential
treatise
on
American
criminal
law
posited
only
two
models
of
punishment:
the
principal
model
of
“retributive
justice”
and
the
alternative
model
based
on
“social
protection”
(under
which
Fletcher
groups
deterrence,
rehabilitation,
medical
treatment,
welfare,
public
or
community
safety
etc).
116
Bearing
in
mind
the
loss
of
faith
in
rehabilitation
in
the
United
States,
it
is
unsurprising
that
Fletcher
ultimately
favoured
the
idea
that
it
is
for
wrongdoing
that
punishment
is
imposed.
The
failure
to
explore
the
rise
of
restorative
justice
elsewhere
undoubtedly
weakens
the
claims
of
universalism
inherent
within
his
grand
theorising.
117 It is difficult to give a simple definition of restorative justice because it emerged as a “unifying banner”, encompassing a wide range of methods and goals. 118 One frequently used definition is that restorative justice “is a process whereby parties with a stake in a specific offence collectively resolve how to deal with the aftermath of the offence and its implications for the future”. 119 Restorative justice practices have a number of goals, including: • that offenders confront and accept responsibility for their conduct and its consequences; • that families and communities surrounding the protagonists play a role in both reintegration and support for both the victim and the offender; and • to provide a resolution for disputes. 120 Put simply, the focus of restorative justice is inclusive participation, reparation and resolution. Declan Roche suggests that “the best known element and centrepiece of restorative justice is the meeting, which brings together those people affected by a particular offence to decide on a consensual basis how to deal with the aftermath of that offence”. 121 In Australia, this occurs through the convening of a “conference” where offenders are brought together with the victims of their crime, usually with their respective families and a facilitator, to discuss the impact of their actions on the victim and the community, as well as ways to repair the harm done. 115

See, for example, H Strang and J Braithwaite (eds), Restorative Justice: Philosophy to Practice (Aldershot: Ashgate, 2000); D Roche, Restorative Justice (Aldershot: Ashgate, 2000); J Braithwaite, Restorative Justice and Responsive Regulation (Oxford and New York: Oxford University Press, 2002). For a useful collection of key publications in this field, see G Johnstone (ed), A Restorative Justice Reader (Devon: Willan, 2003).

116 117

G Fletcher, The Grammar of Criminal Law (Oxford: Oxford University Press, 2007). See further, S Bronitt, “Towards a Universal Theory of Criminal Law: Rethinking the Comparative and International Project” (2008) 27 Criminal Justice Ethics 53. For a more general discussion on the interplay between restorative justice and globalisation, see C Cunneen, “Understanding Restorative Justice Through the Lens of Critical Criminology” in T Anthony and C Cunneen (eds), The Critical Criminology Companion (Sydney: Hawkins Press, 2008). D Roche, Accountability in Restorative Justice (Oxford and New York: Oxford University Press, 2003) p 6. T Marshall, “Restorative Justice: An Overview” in G Johnstone (ed), A Restorative Justice Reader (Devon: Willan, 2003) p 28. See also L Walgrave, “Extending the Victim Perspective Towards a Systemic Restorative Justice Alternative” in A Crawford and J Goodey (eds), Integrating a Victim Perspective within Criminal Justice (Aldershot: Ashgate, 2000), who describes restorative justice broadly as “action that is primarily oriented towards doing justice by restoring the harm that has been caused by a crime”: p 260.

118 119

120

121

K Daly and H Hayes in “Restorative Justice in Conferencing in Australia”, Australian Institute of Criminology: Trends and Issues in Crime and Criminal Justice No 186 (Canberra: Australian Institute of Criminology, 2001). D Roche, Accountability in Restorative Justice (Oxford and New York: Oxford University Press, 2003) p 2. [1.95]

27

Part I: Theory and Principles

Diversionary conferencing is widely used for dealing with juvenile offending in many jurisdictions, as well as informing an increasing array of pre-trial and post-conviction decision-making by police, prosecutors and the courts. For example, the Young Offenders Act 1997 (NSW) establishes a system of youth justice conferencing as a diversionary program from the children’s court, administered by the Department of Juvenile Justice. Important pre-conditions apply: the participant must admit guilt to the offence, and there must be consent by all parties. The stated aims of the Act are to: • emphasise restitution by the offender; • emphasise the acceptance of responsibility by that person for his or her behaviour; and • meet the needs of victims and offenders: s 3(c)(ii), (iii). An evaluation conducted 12 months after the introduction of the Act found that most of the conferences met the Act’s objectives and aims. The report found high levels of satisfaction with the conference experience from all participants (that is, the victims, victims’ supporters, offenders and offenders’ supporters). More than 90% of all parties felt that the conference was fair to both the victim and the offender; over 90% felt they had the opportunity to express their views, while 79% said they were satisfied with the way their case had been dealt with by the justice system. 122 Table 1 Restorative justice in Australia Jurisdiction ACT

Provision

Applies to

Offences excluded

Crimes (Restorative Justice) Act 2004

eligible offenders who are at least 10 years old

NSW

Young Offenders Act 1997 Youth Justice Act 2005; Police Administration Act 1978 Youth Justice Act 1992

juvenile offenders only

adult offenders: domestic violence offences child offenders* (before the phase 2 application day): domestic violence offences and less serious sexual offences sexual offences, offences causing death, some drug offences, AVO offences and some traffic offences

NT

Qld SA

Young Offenders Act 1993 Youth Justice Act 1997

Tas Vic WA

no statutory basis Young Offenders Act 1994

juvenile offenders only

juvenile offenders and some eligible adults juvenile offenders only juvenile offenders only juvenile offenders only juvenile offenders only

sexual offences, serious violence and domestic violence offences none none traffic offences, serious violence, sexual offences, and dangerous weapons offences drink-driving offences driving offences, serious violence and sexual offences

Restorative justice conferencing has been adopted in all Australian jurisdictions, though thus far its use has been mainly confined to less serious instances of juvenile offending. Conferencing may be made available more broadly to deal with adult offending and more serious types of crime. For example, the Australian Capital Territory is one of the few jurisdictions to extend conferences to adults. Rather than apply an ad hoc administrative

122

L Trimboli, An Evaluation of the NSW Youth Justice Conferencing Scheme (Sydney: NSW Bureau of Crime Statistics and Research, Attorney-General’s Department, 2000). There is extensive literature evaluating trials carried out in Australia, the USA, Canada and New Zealand: see H Strang, Restorative Justice Programs in Australia: A Report to the Criminology Research Council (Canberra: Australian National University, 2001) and J Braithwaite, “Restorative Justice” (1999) 25 Crime and Justice: A Review of Research 1 for extensive reviews. Generally, the literature reports extremely high levels of perceived procedural justice. Some record further benefits to the victims and the offenders, as well as the community.

28 [1.95]

Theory and the Criminal Law

Ch 1

approach to restorative justice conferencing, the Territory enacted a comprehensive statute governing restorative justice processes. The Crimes (Restorative Justice) Act 2004 (ACT) defines its objects in section 6 as follows: (a) to enhance the rights of victims of offences by providing restorative justice as a way of empowering victims to make decisions about how to repair the harm done by offences; (b)

to set up a system of restorative justice that brings together victims, offenders and their personal supporters in a carefully managed, safe environment;

(c)

to ensure that the interests of victims of offences are given high priority in the administration of restorative justice under this Act; to enable access to restorative justice at every stage of the criminal justice process without substituting for the criminal justice system or changing the normal process of criminal justice;

(d)

(e)

to enable agencies that have a role in the criminal justice system to refer offences for restorative justice. Under the Act, restorative justice is available for acts deemed eligible under Pt 4 when: • there is an eligible victim or eligible parent in relation to the offence; • the offender is an eligible offender; • the offence is referred for restorative justice by a referring entity; and • the director-general decides that restorative justice is suitable for the offence: s 8. The Act seeks to address many of the concerns that conferencing processes and agreements between the parties lacked transparency and accountability. 123 To be eligible under Pt 5 of the ACT Act, victims must be at least 10 years old and capable of agreeing to take part: s 17(1). If a victim is younger than 10 years old, an immediate family member may be eligible: s 18(2). Alternatively, a parent of a child victim of an offence may take part in restorative justice as an invited participant: s 44. Offenders must have been at least 10 years old when the offence was committed and are eligible if they accept responsibility for the commission of the offence, are capable of agreeing to take part, and do agree to take part: s 19. It is important to recognise the limitations, as well as the benefits, of restorative justice. In a thorough review of restorative justice literature, John Braithwaite has outlined the key arguments for and against restorative justice processes. 124 His arguments 125 are summarised in Table 2. In addition to these arguments raised by Braithwaite, Chris Cunneen has expressed concern over the tendency for risk assessment screening tools to exclude marginalised groups from restorative justice programs. Robust screening processes as used in Australia and Canada assess risk by looking at individual factors such as the age of first court order, prior offending history, and failure to comply with court orders—factors which, “through the miracle of statistics”, exclude the most marginalised groups in society on the basis of “risk”. 126 Additionally, there will be cases where the offender simply cannot be “restored”. In such cases, conventional approaches to guilt determination and punishment may be reinstated, though proponents of restorative justice would permit incapacitation only as a measure of last resort. Braithwaite has innovatively devised a calibrated approach to sanctions, which mirrors his 123 124 125 126

For a critical examination of these concerns about accountability, see D Roche, Accountability in Restorative Justice (Oxford: Oxford University Press, 2003). J Braithwaite, “Restorative Justice” (1999) 25 Crime and Justice: A Review of Research 1. J Braithwaite, “Restorative Justice” (1999) 25 Crime and Justice: A Review of Research 1 at 101. C Cunneen, “Understanding Restorative Justice Through the Lens of Critical Criminology” in T Anthony and C Cunneen (eds), The Critical Criminology Companion (Sydney: Hawkins Press, 2008) p 299. [1.95]

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regulatory enforcement pyramid discussed at [1.245]. As he concludes, coercive control becomes legitimate only when other more dialogic forms (using restorative justice or deterrence) have been tried but have failed to secure compliance with the law. Table 2 Arguments for and against restorative justice Supporting arguments Restorative justice practices may restore and satisfy victims, offenders and communities better than existing criminal justice practices Restorative justice practices may reduce some forms of crime more and rehabilitate offenders better Conferences are structurally fairer due to the nature of participation Engenders greater procedural justice, which in turn communicates respect Conferencing is more cost-effective Restorative justice practices enrich freedom and democracy

Opposing arguments Participation provides no benefits to unknowing victims (that is, the criminal justice system only applies in 10% of offences committed) Because more than 90% of crimes are untouched by State processes, it may have no significant impact on the crime rate In some cases, it may increase victims’ fears of re-victimisation It can make victims props for attempts towards offender rehabilitation It can be a “shaming machine” that worsens stigmatisation It may widen nets of social control (though Braithwaite found this not to be the case in Australia or New Zealand) It fails to redress structural problems inherent in liberalism, like unemployment and poverty It may disadvantage women, children, racial minorities It may “trample rights because of impoverished articulation of procedural safeguards”

Source: J Braithwaite, Restorative Justice and Responsive Regulation (New York: Oxford University Press, 2002) p 32.

The implications of restorative justice for the substantive criminal law have also been explored by John Braithwaite in an imaginative essay called “Intention versus Reactive Fault”. 127 He argues that the focus on intention in the criminal law, from both normative and sociological perspectives, is mistaken. Consistent with the ideals of restorative justice, he sketches a model of restorative fault called “reactive fault”. Since restorative justice focuses primarily on the physical aspects (actions and consequences) of offending behaviour, attention is shifted from “fault which is causally prior to the crime, of which intention is the most important variant, to fault based on how restoratively the offender acts after the crime”. 128 Under this model, which builds on earlier work with Brent Fisse on corporate crime, Braithwaite suggests that fault for criminal liability should be determined “reactively, on the basis of the constructiveness and restorativeness of his [or her] reaction to the problem caused by his [or her] act”. 129 If the reaction was sufficiently restorative, then only civil liability would apply. Braithwaite is not, however, arguing that mental states be abandoned: where the conduct is not sufficiently restorative, then the mental element for the crime would have to be established before or during its commission. The extent to which the offender reacts restoratively would, of course, be crucial to the imposition of penalty. With the dominance of subjective fault in the criminal law, the theory of reactive fault would require a profound readjustment in our approach to fault, though it must be acknowledged that many existing legal doctrines, such as the law relating to omissions, already “stretches” the concept of “act” to impose liability that is 127 128 129

J Braithwaite, “Intention versus Reactive Fault” in N Naffine, R Owens and J Williams (eds), Intention in Law and Philosophy (Aldershot: Ashgate, 2001) Ch 16. J Braithwaite, “Intention versus Reactive Fault” in N Naffine, R Owens and J Williams (eds), Intention in Law and Philosophy (Aldershot: Ashgate, 2001) p 345. J Braithwaite, “Intention versus Reactive Fault” in N Naffine, R Owens and J Williams (eds), Intention in Law and Philosophy (Aldershot: Ashgate, 2001) p 351. Braithwaite’s model was influence by the earlier work of Brent Fisse: see “Reconstructing Corporate Criminal Law: Deterrence, Retribution, Fault, and Sanctions” (1983) 56(6) Southern California Law Review 1141.

30 [1.95]

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tantamount to reactive fault: see the discussion in Chapter 3, [3.370] “Fault element imposed upon a continuing act”. As Braithwaite concludes: “Restorative justice is much more than just a new technology of disputing”. 130

Sociological perspectives Punishment [1.100] David Garland in Punishment and Modern Society conceives of punishment as a social and cultural institution, rather than merely as an instrument of State coercion. This approach provides a more complex and useful understanding of the multiple roles and meanings of punishment in modern society. Garland set out to develop a comprehensive theory drawing on insights from earlier theorists, including Durkheim, Foucault, “the Marxists” and others. In reviewing the various theories of punishment over the 20th century, he highlights a number of weaknesses in earlier accounts. In Garland’s view, penality “communicates meaning not just about crime and punishment, but also about power, authority, legitimacy, morality, personhood, social relations, and a host of other tangential matters”. 131 It has a powerful moralising effect: “Punishment expresses and projects a definite conception of social relations, holding out an imagery of the ways in which individuals relate—or ought to relate—to one another in society”. 132 Earlier approaches to punishment suffered from “over-determination”; that is, the tendency of theorists to subscribe to a “single causal principle or functional purpose for punishment be it ‘morals’ or ‘economics’, ‘State control’ or ‘crime control’”. 133 The complexity of punishment and its multiple layers of meaning—its polysemic quality—are inconsistent with mono-causal explanations. Instead of searching for a single explanatory principle, we need to grasp the facts of multiple causality, multiple effects and multiple meanings. 134 Garland suggests that punishment should be viewed as a “social institution” with expressive and symbolic aspects. 135 Punishment is, on the face of things, an apparatus for dealing with criminals—a circumscribed, discrete, legal-administrative entity. But it is also, as we have seen, an expression of State power, a statement of collective morality, a vehicle for emotional expression, an economically conditioned social policy, an embodiment of current sensibilities, and a set of symbols which display a cultural ethos and help create a social identity. Within modern legal systems, the symbolic value of punishment may be more important than its instrumental functions. When viewed in instrumental terms, punishment is a signal failure. This is because the most effective means of inducing social conformity—those processes of socialisation that are based on an internalised sense of morality, duty, trust, loyalty, shame and so on, lie outside the jurisdiction of existing penal institutions. Approached in this broader sociological way, punishment is no longer glorified as a functionally important social institution. Rather, its limitations and

130 131 132 133 134 135

J Braithwaite, “Intention versus Reactive Fault” in N Naffine, R Owens and J Williams (eds), Intention in Law and Philosophy (Aldershot: Ashgate, 2001) p 357. D Garland, Punishment and Modern Society (Oxford: Clarendon Press, 1990) p 252. D Garland, Punishment and Modern Society (Oxford: Clarendon Press, 1990) p 271. D Garland, Punishment and Modern Society (Oxford: Clarendon Press, 1990) p 280. D Garland, Punishment and Modern Society (Oxford: Clarendon Press, 1990) p 281. D Garland, Punishment and Modern Society (Oxford: Clarendon Press, 1990) p 287. [1.100]

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alternatives to punishment are exposed, “and to the extent that punishment is deemed unavoidable, it should be viewed as a morally expressive undertaking rather than a purely instrumental one”. 136 This sociological approach to punishment has profound implications for the criminal law. Recognition of the polysemic quality of punishment affects (or, rather, infects) the criminal law in many ways. Rather than be viewed as an instrument of retribution, deterrence, rehabilitation or incapacitation, the criminal law may be viewed as a part of a wider practice of cultural signification that contains and expresses multiple and contradictory meanings. A sociological approach suggests that greater attention needs to be paid to the range and diversity of the criminal law’s expressive functions. These functions include both the positive capacity to produce “normality” and conformity, as well as the negative capacity to suppress and stigmatise deviance. From this perspective, the criminal trial (including the law as propounded in the higher courts), far from being unimportant as early legal realists contended, assumes considerable significance as a site where fundamental “meanings” of the criminal law are expressed and contested. While theories of punishment have influenced the shape of the modern law, it is important to recognise that the criminal law need not necessarily be tied to the search for the legitimacy of State punishment. Although presented as a distinctive feature of criminal law, punishment does not always follow a finding of guilt. A conviction may be imposed without any painful or unpleasant consequences beyond the finding of guilt. Admittedly, condemnation as a “criminal” is an unpleasant consequence for most people. Even in relation to condemnation, however, a sentencing court may exercise its discretion not to record a conviction or to impose an entirely symbolic sentence of remaining in court until the next adjournment (known as a sentence imposed until the “rising of the court”): see Crimes (Sentencing Procedure) Act 1999 (NSW), s 10. These options acknowledge that the punitive effect of condemnation is neither always needed, nor in fact desirable.

Criminology and the Criminal Law [1.105] As a discipline, criminal law is occupied with the study and rationalisation of legal

doctrine, its rules and general principles. By contrast, criminology employs a wide range of external perspectives—drawing from sociology, history, economics, psychology, anthropology, and so on—to identify the causes of crime and to develop effective responses to “crime problems”. 137 Theories about crime are historically contingent, shaped and remodelled by a kaleidoscope of changing social, economic and political forces. 138 For criminal justice scholars writing in the so-called “Age of Enlightenment” during the 18th century, knowledge about crime and the operation of the criminal law was pursued through scientific rationality and classification. The model of a rational and ordered criminal law emerged as a reaction to the punitive and arbitrary nature of the criminal justice system of the previous century, where the criminal law 136 137

138

D Garland, Punishment and Modern Society (Oxford: Clarendon Press, 1990) p 292. Some criminologists tie the discipline firmly to the boundaries of the criminal law. Edwin Sutherland in Criminology (New York: Lippincott Co, 1974) viewed the discipline as concerned with the making, breaking and enforcement of the criminal law. Others adopt a wider focus that embraces social deviance generally: C McCormick, D Downes and P Rock, Understanding Deviance (Oxford: Oxford University Press, 2009). For an overview of the various schools of criminological thought, see R White, F Haines and N Asquith, Crime and Criminology (5th ed, Melbourne: Oxford University Press, 2012). The historical material in this section is based on B Mason, “From Shamans to Shaming: A History of Criminological Thought” in K Hazlehurst (ed), Crime and Justice (Sydney: Law Book Company, 1996) Ch 2.

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served primarily to instil legal terror in the lower orders through its draconian laws and extensive use of capital and brutal forms of corporal punishment, such as flogging. Against the backdrop of this “Bloody Code”, justice was not found in the fabric of substantive or procedural law, but rather was promoted post-conviction through sentence mitigation or executive clemency in the form of pardons or transportation. 139 At this time, the legitimacy of criminal law and punishment became the central focus of attention. In England, Jeremy Bentham, both a legal academic and campaigner for law reform, argued that deterrence was the only legitimate purpose for imposing criminal punishment. According to Bentham, the system of criminal law in England at that time was both ineffective and unjust. Primarily sourced from the common law, the criminal law was difficult to discover and subject to gross judicial manipulation in the courts. As Norrie noted, “Bentham called it ‘dog law’, for it condemned individuals after the event, in the way that a person punishes his [or her] dog. The dog only learns after the punishment that what it has done is wrong”. 140 Bentham’s insights had a number of consequences for the reform of criminal law and punishment. In the place of the common law, which rested on unwritten laws and arbitrary judicial discretion, Bentham instead proposed a rational and humane system of codified laws and fixed penalties. To maximise rationality and deterrence, there must be greater certainty and predictability in how the law operated. To that end, proportionality between the crime and the punishment was required. Under Bentham’s “utilitarian” approach, the self-interested citizen would conclude that the costs of punishment outweighed the benefits of crime and therefore make the rational decision to desist from its commission. Punishment was justified on the utilitarian theory of deterrence based upon an individual rational calculation of self-interest. Alan Norrie summarised this theory as follows: “In England, the utilitarian reformer Bentham wrote that mankind was placed under two sovereign masters, pain and pleasure, and possessed an innate tendency to avoid one and seek the other. The ability to calculate rationally the consequences of action combined with the pain/pleasure principle to enable the individual to maximise his [or her] self-interest.” 141

Laws must be certain and knowable to operate as an effective deterrent. To achieve this, Bentham advocated fervently for codification of law into the “Pannomion”, a comprehensive code covering constitutional, civil and penal laws. Promoting this utopian ideal widely, Bentham urged its adoption for the newly independent United States of America. Underpinning this project was Bentham’s belief in the universalism inherent in the project of codification: “The great outlines … will be found to be the same for every territory, for every race, and for every time.” 142 According to Bentham, enacting a criminal code supported by rational 139

140

141 142

A Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (3rd ed, Cambridge: Cambridge University Press, 2014) pp 20–21. See further EP Thompson, Whigs and Hunters: The Origins of the Black Act (London: Allen Lane, 1975). In the Australian context, the extent to which transportation constituted a form of punishment or an opportunity for rehabilitation is discussed in M Finnane, Punishment in Australian Society (Melbourne: Oxford University Press, 1997) Ch 1. A Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (3rd ed, Cambridge: Cambridge University Press, 2014) p 24. Bentham’s preference for legislation over common law stood in stark contrast to the earlier views of Blackstone, who eulogised the common law in Commentaries on the Laws of England (9th ed, London: Garland, 1978) (first published, 1765). A Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (3rd ed, Cambridge: Cambridge University Press, 2014) p 23. J Bentham, cited in M Kayman, “A Memorial for Jeremy Bentham: Memory, Fiction, and Writing the Law” (2004) Law and Critique 207 at 210. For a discussion of Bentham’s Pannomion project, see S Bronitt and M Gani, “Criminal Codes in the 21st Century” in B McSherry, A Norrie and S Bronitt (eds), Regulating Deviance (Portland: Hart Publishing, 2009) pp 239–243. [1.105]

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punishments would reduce crime to virtually nil. Although Bentham’s ambitions for codification of the criminal law were unsuccessful in “codiphobic” England, they did take root in Continental Europe, in Australia, and other British colonies in the 19th and 20th centuries. We explore the differences between Code and common law jurisdictions in Chapter 2, [2.15]. The impact of these liberal utilitarian values on law has been significant and enduring. The modern criminal law is stamped throughout with liberal assumptions about “free will” and “rationality” as measures of culpability. The emergence of the “reasonable man” in both the civil and criminal law may be viewed as the fictive embodiment of the rational, self-interested, utility-calculating person against whom the conduct of the defendant will be judged. 143 The influence of this conception of human action has been profound, constituting “the major model of human behaviour held to by agencies of social control in all advanced industrial societies”. 144

Criminological perspectives Free Will Versus Determinism [1.110] Bentham’s theories concerning the criminal law coalesced with the new science of crime—criminology—emerging in Continental Europe. The emergence of this new discipline concerned with the nature and cause of crime is tied to the history of the bickering Italian “schools” of the 18th and 19th centuries. The father of the “Classical School of Criminology”, Cesare Beccaria, published an acclaimed Essay On Crimes and Punishments in 1764 145 which set out a manifesto for criminal justice reform. Beccaria, like Bentham, wrote against the backdrop of an arbitrary and severe criminal justice system. His conception of crime was rooted in the liberal values of the Enlightenment—crime was explained as a matter of free choice exercised by rational individuals, rather than being caused by evilness or the supernatural forces. Both Beccaria and Bentham shared the view that the criminal law must incorporate the “principle of hedonism”—that is, since humans are possessed of free will and rational choice, they will choose to obey the law because the pain of punishment will outweigh the pleasure derived from rule-breaking. To minimise interference with individual freedom, the punishment meted out must be no more than is necessary to prevent or deter crime. Arguments about the perceived value of deterrence from explanatory and moral perspectives have waxed and waned with criminological theories about the nature of crime and criminals. The liberal values and optimism of the “Classical School” was dented by the emergence of the rival “Positivist School”. The father of Positivism, Cesare Lombroso (1835–1909), explained criminal behaviour in biological terms. By measuring the skulls of cadavers, Lombroso observed that features of convicted criminals had “atavistic anomalies”—they appeared primitive and inferior. He therefore hypothesised that individuals were born “criminal” and that this was part of their nature (pathology and biology). To modern eyes, Lombroso’s “science” based on observations from decomposing corpses hardly seems credible, but, at the time, it seemed a natural implication drawn from Charles Darwin’s theory of human evolution. As a form of “social Darwinism”, Positivism had implications for the criminal law: 143 144 145

A Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (3rd ed, Cambridge: Cambridge University Press, 2014) pp 24–29. I Taylor, P Walton and J Young, The New Criminology (London: Routledge and Kegan Paul, 1973) pp 9–10. C Beccaria, An Essay on Crimes and Punishments (London: F Newberry, 1770, first published 1764).

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“As the criminal’s behaviour was largely determined by factors such as biology, the needs of society could best be served by adopting measures to prevent the criminal from committing further offences. For ‘born criminals’ elimination or incapacitation (and, later, medical correction of defects) was the only answer. Rehabilitation was useless where defects could not be altered.” 146

In the Australian context, these competing conceptions of crime and criminals served to polarise and sustain a division in early colonial society between the free-born colonists (The Exclusives) and those who bore the “convict stain”—the transported convicts and their descendants (The Emancipists). 147 By the middle of the 20th century, Positivism had been thoroughly discredited as a result of its flirtation with fascism in the 1930s, which lent scientific credence to eugenic programs and ultimately, in some cases, to genocide for “inferior” human races. In the post-war period, biological explanations of criminal behaviour gave way to social or sociological explanations. These “modern schools” viewed crime as a social phenomenon that was, to some degree, determined beyond the capacity of the individual to freely resist. It was in a social, rather than biological sense, that crime was determined. A broader range of theories emerged, united in the hypothesis that the roots of crime lie in social structures and institutions. Theories like Edwin Sutherland’s “theory of differential association” suggested that criminal behaviour was “learned”, in that, through interaction with others who advocate crime, deviance for some individuals is normalised and encouraged. 148 Other theories stressed the causative role of social alienation and social, economic and political powerlessness. Drawing on Durkheim’s theory of “anomie”, Robert Merton viewed crime as a product of the discrepancy (or strain) between the aspirations of an individual and the means and opportunities available for achieving them. The weakness of the “strain theory” was that it predicted “too little bourgeois criminality and too much proletarian criminality”. 149 The post-war period was confronted by a “crisis of aetiology and penality”—notwithstanding the emergence of the welfare state, improving standards of education and prosperity, crime levels continued to rise. 150 At this time, the State, and its role in defining crime, also became a focus of study. Rather than search for “causes” of crime, researchers explored the State’s role in construction of deviance and the “labelling” of crime. Crime did not exist, in an objective or natural sense, separate from the laws defining and enforcing crime: “deviance is not a quality of the act the person commits, but rather a consequence of the application by others of rules and ‘sanctions’ to the

146 147 148

149 150

B Mason, “From Shamans to Shaming: A History of Criminological Thought” in K Hazlehurst (ed), Crime and Justice (Sydney: Law Book Company, 1996) p 20. D Neal, The Rule of Law in A Penal Colony (Cambridge: Cambridge University Press, 1991) Ch 2. Discussed in B Mason, “From Shamans to Shaming: A History of Criminological Thought” in K Hazlehurst (ed), Crime and Justice (Sydney: Law Book Company, 1996) pp 22–24. This theory had the advantage of explaining working-class crime and “white collar” crime committed by persons of high social class. I Taylor, P Walton and J Young, The New Criminology (London: Routledge and Kegan Paul, 1973) p 107. J Young, “Incessant Chatter: Recent Paradigms in Criminology” in M Maguire, R Morgan and R Reiner (eds), The Oxford Handbook of Criminology (2nd ed, Oxford: Oxford University Press, 1997) pp 480–482. [1.110]

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offender”. 151 Accordingly, the role of the State in responding to moral panics, spawning new categories of crime and criminals, such as “hooliganism”, became the subject of study. 152 The idealism of “New Criminology” in the 1970s went even further, viewing criminality and criminalisation as essentially political acts of resistance and control respectively. 153 Criminal behaviour, it was argued, is normal and natural, merely an assertion of human diversity in a society of inequality of wealth, power and property. Criminality, on the other hand, is merely a social construct invented by the powerful to protect the interests of capital. As crime is a function of the existing social, economic and political arrangements, it would disappear when these inequalities were eradicated. Needless to say, this revolutionary Marxist idealism was short-lived. Left realist criminology emerged as a reaction to this leftist extremism, regaining political credibility by “taking crime seriously”. It aimed to be faithful to the reality of crime, recognising that victims, as well as offenders, were also drawn from the powerless sections of society. Left realism is critical of the partial approach of left idealism and its tendency to separate the causes of crime from reactions by the criminal justice system. This involves a synthesis of approaches, recognising that “all crimes must, of necessity, involve rules and rule breakers (that is, criminal behaviour and reaction against it) and offenders and rule breakers”. 154 Left realism is concerned with restoring the offender to the picture; while avoiding the biological reductionism of the past, left realists do not reject the correlations between biology and crime, whether that involves body size, hormones, size and age. Put simply, there are “facts” about crime that any theory ought to fit—such as the fact that crime is committed disproportionately by individuals who are male and young, aged between 15–25 years. 155 With an increasing sense that “nothing works”, some academics abandoned criminology as a flawed discipline. 156 Other criminologists, rejecting “social” accounts of crime, returned to the classical ideas, such as James Q Wilson’s revival of deterrence and free will theories of crime in the United States in the 1970s, discussed at [1.65]. Others have sought to identify the causes of crime in the deficits and characteristics of individuals, denying any relationship between crime and broader social structures. Avoiding biological positivism’s over-determined approach to crime, these theorists established a multiplicity of “causal relations” between

151 152 153 154 155 156

Howard Becker, cited in B Mason, “From Shamans to Shaming: A History of Criminological Thought” in K Hazlehurst (ed), Crime and Justice (Sydney: Law Book Company, 1996) p 29. S Cohen, Folk Devils and Moral Panics (London: Paladin, 1973). I Taylor, P Walton and J Young, The New Criminology (London: Routledge and Kegan Paul, 1973). J Young, “Left Realist Criminology” in M Maguire, R Morgan and R Reiner (eds), The Oxford Handbook of Criminology (2nd ed, Oxford: Oxford University Press, 1997) p 485. J Braithwaite, Crime, Shame and Reintegration (Cambridge: Cambridge University Press, 1989) Ch 3. Carol Smart has argued that criminology is a problematic enterprise which marginalises the significance of gender and, thus, has little to offer feminism: Law, Crime and Sexuality (London: Sage Publications, 1995) Chs 2–3.

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crime and other factors, including: genetics; low intelligence; inadequate child-rearing; inadequate single mothers; and inadequate socialisation in the first five years of life. 157 There have also been attempts to synthesise free will and determinist theories of criminal behaviour. According to these accounts, while people do exercise choice over whether or not to commit crime, social and biological conditions may impose constraints on the choices available. This search for synthesis and comprehensive theory is evident in J Wilson and R Herrnstein’s Crime and Human Nature. In this book, which became criminology’s first “best-seller”, the authors highlight the importance of “constitutional factors”, such as low IQ, in explaining patterns of crime: “Social forces cannot deter criminal behavior in 100 percent of a population, and that the distributions of crime within and across societies may, to some extent, reflect underlying distributions of constitutional factors … crime cannot be understood without taking into account individual predispositions and their biological roots.” 158

These forms of determinism are less crude than their positivist forebears. Crime is a matter of free choice, albeit exercised within a biologically and socially determined framework. However, as a general theory, it has significant limitations. As Braithwaite observes, it cannot account for the massive reality of “white collar” crime. 159 The search for synthesis has occupied criminologists on both the right and left sides of politics. In striving for this complex synthesis, Jock Young offers the following definition of crime: “As an activity, crime involves a moral choice at a certain point in time in changing determinant circumstances. It has neither the totally determined quality beloved of positivism, nor the wilful display of rationality enshrined in classicist legal doctrine. It is a moral act, but one which must be constantly assessed within a determined social context. It is neither an act of determined pathology, nor an obvious response to desperate situations. It involves both social organization and disorganization.” 160

Such broad statements demonstrate the futility of criminology as an enterprise that searches for singular or universal truths about “crime”. Critical scholars who have come to reject criminology, such as Carol Smart, have doubted the value of Young’s “synthesis”. 161 As Jock Young’s definition itself concedes, the reasons for deviance and conformity are more complex and varied than any single “school” of criminology, theory or model of human behaviour can explain. Notwithstanding criminology’s increasingly pluralistic (and post-modern) explanations of crime, the criminal law clings firmly to assumptions about the rationality and free will of offenders. As subsequent chapters will reveal, the presumptions of rationality and free will underscore many of the key principles of criminal responsibility. The idea that these behavioural attributes are “typical” or “normal” is not supported by empirical research. 157

158 159 160

161

These theorists are discussed in J Young, “Incessant Chatter: Recent Paradigms in Criminology” in M Maguire, R Morgan and R Reiner (eds), The Oxford Handbook of Criminology (2nd ed, Oxford: Oxford University Press, 1997) pp 479–480. For an overview of the influence of the classical, neo-classical, positivist and critical schools of criminology, see Stephen Jones, Criminology (5th ed, Oxford: Oxford University Press, 2013) esp Part II. See discussion in B Mason, “From Shamans to Shaming: A History of Criminological Thought” in K Hazlehurst (ed), Crime and Justice (Sydney: Law Book Company, 1996) pp 34–35. J Braithwaite, Crime, Shame and Reintegration (Cambridge: Cambridge University Press, 1989). J Young, “Incessant Chatter: Recent Paradigms in Criminology” in M Maguire, R Morgan and R Reiner (eds), The Oxford Handbook of Criminology (2nd ed, Oxford: Oxford University Press, 1997) p 106. For a useful collection of essays reviewing the key disciplinary and theoretical debates within the discipline, see M Bosworth and C Hoyle (eds), What is Criminology? (Oxford: Oxford University Press, 2011). C Smart, Law, Crime and Sexuality (London: Sage Publications, 1995) pp 38–39. [1.110]

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Recent studies suggest that many (if not most) offenders processed before the courts have committed their crime while under the influence of alcohol and/or illicit drugs, casting doubt on the presumption that criminal conduct is the product of a rational mind possessed of free will: see Chapter 4, [4.155]. That said, legal academics, law reformers, politicians and judges nevertheless place great weight on the liberal values of clarity and predictability in deterring crime and promoting a more effective and just criminal law. We may reasonably conclude that the assumptions about human behaviour that inform legal doctrine are truly normative ideals derived from liberalism, rather than explanatory truths supported by empirical study. There is nothing wrong with striving for a criminal law that promotes liberal values and setting standards which individuals should comply with. Indeed, we shall explore how republican theorists have set out to rehabilitate liberalism as a normative guide for the criminal law and criminal justice reform: see [1.235] “Social freedom and Republican theories of criminal justice”. The problem with existing approaches to the criminal law is that liberal and individualistic assumptions about agency and responsibility are represented as universal truths, rather than as normative ideals that are politically and morally contestable. The failure to consider criminology and other external perspectives can blind lawyers, judges, legislatures and reformers to the complexities of crime and the effects of criminalisation. Law reform is weakest when conceived solely as an exercise in improving the internal rationality and coherence of the law. As we shall explore in Chapter 14, [14.10], in its examination of serious drug offences in Australia in the 1990s, the Model Criminal Code Officers Committee undertook a detailed analysis of existing offences and confiscation powers. However, the Committee’s report did not address significant issues relating to criminalisation such as: • the historical development of drug offences; • the rationale for criminalisation; • the validity of the distinctions drawn between different drugs and types of users; • the relevance of culture and setting to drug use; • the effectiveness of alternative approaches to drug control based on regulation rather than criminalisation; or • the potential exemption for the “therapeutic” or medical uses of certain illicit substances in the treatment or management of certain health conditions. As “political questions”, these issues were considered to be beyond the scope of the Committee’s terms of reference. Criminological and sociological perspectives on crime and the criminal process are essential not merely for providing an external critique, but also as the foundation for internal critiques of the criminal law. The attempt to develop a critical theoretical synthesis of these external and internal perspectives, which Lacey calls “criminalisation”, is exploredat [1.185].

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Criminological perspectives Tackling Rising Imprisonment Rates: Justice Reinvestment [1.115] The World Prison Population List 162 provides global data on the number of

persons in prison, revealing significant differences in the levels of imprisonment across the world. 163 Over 10.35 million persons are in prison globally, with 2.2 million prisoners in the United States of America, more than 1.65 million in China (though this excludes an unknown number in pre-trial detention or “administrative detention”). The United States has the second-highest prison population rate in the world, after the small island-state of the Seychelles: 698 prisoners per 100,000 of the national population, a slight decrease on previous years. This compares with Australia at 151 prisoners per 100,000 population, a slight increase on previous years. Reversing the incarceration trend and responding to the high costs (both human and financial) of imprisonment has been a priority of penal reformers in many jurisdictions. The Open Society Foundations, led by Holocaust survivor and successful Texan philanthropist George Soros, pioneered the concept of “Justice Reinvestment”. Emerging from the United States, the idea is attracting interest in Australia, offering a radical departure from prevailing detention practices and the heavily state–individual focused nature of criminal justice programs. 164 As explained by the then-Australian Human Rights Commissioner, Tom Calma, in an address given to the Australian Institute of Criminology Conference on Juvenile Justice in 2009: “It is a criminal justice policy approach that diverts a portion of the funds spent on imprisonment to the local communities where there is a high concentration of offenders. The money that would have been spent on imprisonment is reinvested in programs and services that address the underlying causes of crime in these communities.” 165

This system has been adopted in many jurisdictions in the United States, where there is now an active shift away from the costly culture of imprisonment. Evidence from the United States shows that large numbers of offenders come from a relatively small number of disadvantaged communities. Similar patterns, as Tom Calma has pointed out, apply in Australia in relation to Indigenous communities. By highlighting the reality that millions of dollars are spent each year imprisoning people from identified communities, justice

162

163

164

165

R Walmsley, World Prison Population List (11th ed, London: Institute for Criminal Policy Research, 2016) http://www.prisonstudies.org/sites/default/files/resources/downloads/world_prison_population_list_ 11th_edition_0.pdf (cited 3 March 2017). The report reveals that Australia’s prison population over the period (2000-2015) continued to rise from a rate of 114 per 100,000 population in 2000, to 152 per 100,000 population in 2015: http://www.prisonstudies.org/ country/australia. Senate Legal and Constitutional Affairs Committee, Value of a justice reinvestment approach to criminal justice in Australia (2013). See also submission of the Australian Human Rights Commission: https:// www.humanrights.gov.au/sites/default/files/20130313_jr.pdf (cited 17 July 2016). See also D Brown, M Schwartz, L Boseley, “The Promises of Justice Reinvestment” (2012) 37(2) Alternative Law Journal 98. T Calma, “Investing in Indigenous Youth and Communities to Prevent Crime”, speech given at the Indigenous Young People, Crime and Justice Conference, Parramatta, Sydney, 31 August 2009: see http://www.aic.gov.au/ events/aic%20upcoming%20events/2009/indigenousyouth.aspx (cited 17 July 2016). [1.115]

39

Part I: Theory and Principles

reinvestment encourages commensurate investment in programs that prevent crime in these communities. Examples of such community projects operating in the United States include substance abuse programs, local job placement agencies, programs for children of incarcerated parents, summer youth employment programs (which also revitalise neighbourhoods) and nurse–family partnership programs that provide early intervention in the first years of a child’s life. Impressive results are now emerging with Oregon achieving a 72% reduction in youth incarceration within the first year of the program, and Kansas reducing its overall prison population by 7.5% as well as achieving a 35% decline in recividism rates. Even Texas has managed to halt the growth in its imprisonment rate for the first time in years. The recent reversal of the imprisonment trends in the United States, as reported in the World Prison Population List correlates with the introduction of justice reinvestment programs since 2006. 166

Theories of Criminal Justice [1.120] Concerns about the legitimacy of the criminal law, as already noted, are linked to its

processes as well as its substantive content. As we shall explore in Chapter 2, the general principles, such as fairness, equality and privacy, play an important role in ensuring legitimacy within the criminal justice system. As Herbert Packer recognised nearly 50 years ago, theoretical discussion about the criminal law must address questions about the nature of criminal punishment, culpability (criminal responsibility) and the criminal process. 167 The purpose of the criminal process is typically represented in terms of “crime control”, namely, that the guilty should be detected, convicted and duly sentenced. 168 Legitimacy in this mission is ensured by proper observance of “due process of law”. Packer constructed these objectives as two competing models of criminal process—“the normative antinomy at the heart of the criminal law”. 169 Models of criminal justice: crime control and due process [1.125] Models have been a popular way of analysing the criminal justice system. Packer’s

theory of criminal justice draws two models of criminal process into dialogic tension—“crime control” versus “due process”. As the crime control model is concerned with the repression of criminal conduct, its emphasis is on social control and maintaining public order. In this sense, “the criminal process is a positive guarantor of social freedom”. 170 Considerable attention is paid to promoting efficiency, with a stress on effectiveness and the avoidance of legal rules that are obstacles to this objective. However, the efficient apprehension and disposition of offenders does not take place in a political vacuum: the quantity and quality of resources available for crime control are not infinite. Thus, efficiency is an important consideration that demands both “speed and finality”. Speed depends on informality, while finality is achieved by minimising opportunities for challenge. The process must not be cluttered by steps that impede the closure of a case. This consideration favours reliance on administrative rather than judicial procedures. Hence Packer coins the metaphor of an “assembly line” for the crime control 166

167 168 169 170 40

The report reveals that US prison population over the period (2008-2015) continued to decline from a rate of 755 per 100,000 population in 2008, to 693 per 100,000 population in 2015: http://www.prisonstudies.org/ country/united-states-america (cited 3 March 2017). H Packer, The Limits of the Criminal Sanction (Stanford, CA: Stanford University Press, 1968). A Ashworth, “Concepts of Criminal Justice” [1979] Criminal Law Review 412. H Packer, The Limits of the Criminal Sanction (Stanford, CA: Stanford University Press, 1968) p 153. H Packer, The Limits of the Criminal Sanction (Stanford, CA: Stanford University Press, 1968) p 158. [1.120]

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model. 171 Informal but efficient procedures are given priority, leading to widespread reliance on confessions as a means of inducing guilty pleas and the efficient disposal of cases. The efficient handling of cases demands a system that screens out cases unlikely to result in convictions, whilst securing convictions in the remainder as expeditiously as possible with the minimum opportunity for challenge. This depends on the earliest possible determination of guilt or innocence. According to Packer, the key factor determining whether a case proceeds further is the presumption of guilt: “The presumption of guilt is what makes it possible for the system to deal efficiently with large numbers, as the crime control model demands”. 172 Packer goes on to deal with the relationship between this presumption of guilt and its “polestar”—the presumption of innocence. The development of the presumption of innocence and its role in ensuring fairness is explored in Chapter 2, [2.160]. Since these two concepts are directed to different ends, they should not be viewed as opposites. The presumption of innocence is a direction as to how officials ought to proceed: that, even in the face of overwhelming evidence, the suspect is to be treated as innocent. In contrast, the presumption of guilt that operates as part of the crime control model is purely and simply a prediction of outcome: “The presumption of guilt is descriptive and factual; the presumption of innocence is normative and legal”. 173 The presumption of guilt is central to the crime control model: the dominant goal of repressing crime can be achieved through summary processes, without loss of efficiency, because of the probability that the preliminary screening processes used by the police and the prosecution contain adequate guarantees of reliable fact-finding. It follows that the criminal process must place as few restrictions as possible on administrative fact-finding and, in particular, on police powers. Minimal control over the police is a central feature of the crime control model. Another way that Packer puts this is that the “center of gravity” of the process lies at the early stages of fact-finding before trial. 174 Subsequent stages are relatively unimportant. The crime control model has very little use for many conspicuous features of the adjudicative process, and in real life works out a number of ingenious compromises with them, such as plea-bargaining. Crime control is counter-balanced by the due process model. Packer uses the metaphor of an “obstacle course”: a series of procedures designed to impede the suspect’s further progress through the system. 175 Packer rejects the idea that due process is the obverse of the crime control model. The due process model is not founded on the idea that repression of crime is socially undesirable, although some critics often assert this. Its starting point is different. The focus in this model is not on the prevention of crime, but on the control of State power in a liberal democracy. Within liberal democracies, the primacy of the individual is stressed: “The aim of the process is at least as much to protect the factually innocent as it is to convict the factually guilty”. 176 The due process model stresses the possibility of error in fact-finding. For example, witnesses may be mistaken or confessions may be unreliable. Hence, there is a suspicion of informal fact-finding and a premium placed on the use of legal procedures of formal, adjudicative, and adversarial processes for discovering and evaluating evidence. These 171 172 173 174 175 176

H Packer, The Limits of the Criminal Sanction (Stanford, CA: Stanford University Press, 1968) p 159. H Packer, The Limits of the Criminal Sanction (Stanford, CA: Stanford University Press, 1968) p 160. H Packer, The Limits of the Criminal Sanction (Stanford, CA: Stanford University Press, 1968) pp 161–162. H Packer, The Limits of the Criminal Sanction (Stanford, CA: Stanford University Press, 1968) p 162. H Packer, The Limits of the Criminal Sanction (Stanford, CA: Stanford University Press, 1968) p 163. H Packer, The Limits of the Criminal Sanction (Stanford, CA: Stanford University Press, 1968) p 165. [1.125]

41

Part I: Theory and Principles

concerns about fallibility predominate, supporting the wide availability of reviews and appeals: “The demand for finality is thus very low in the due process model”. 177 In reconciling the competing demands of efficiency and reliability, the crime control model will tolerate some degree of error. By contrast, due process insists on the prevention and elimination of such mistakes. Rules are developed—such as the presumption of innocence and the burden of proof—that have nothing to do with the factual question of guilt, but are designed to ensure the observance of standards that limit the exercise of official power. As Packer concedes, it is unconvincing to say that a person who, after police investigation, is charged with a crime is probably innocent. What due process requires is that the State must be forced to prove its case—this brings into operation a whole series of rules designed to limit the use of the criminal sanction against the individual, and to increase the accused’s opportunity of securing a favourable outcome. 178 Even when a person’s guilt is clear, the legitimacy of the process is what matters: it is more important to constrain errant police and prosecutors than to secure a conviction. Crime control and due process: a false dichotomy? [1.130] Packer’s use of models to explain the criminal justice system—in particular, the

dichotomy drawn between crime control and due process—has attracted significant criticism. His construction of the criminal justice system draws a distinction between the role of the police (who promote crime control) and the courts (who uphold due process). Presented in these binary terms, the models are antagonistic: when the system promotes one set of values, it necessarily undermines the other. Another criticism is that the model did not accommodate victims’ interests or anticipate the growing significance of victims’ rights movement and the rise of restorative justice conferencing, discussed above. 179 Doreen McBarnet in Conviction: Law, the State and the Construction of Justice is highly critical of the validity and assumptions of this distinction from a sociological and theoretical perspective. McBarnet argues that empirical analysis of the criminal process reveals Packer’s models as drawing a “false distinction”. 180 The dichotomy underlying Packer’s theories reflects the earlier distinction drawn by American legal realists between “law in action” and “law in books”—crime control is what happens, due process is what should happen. 181 This binary conception of criminal justice leads lawyers to believe that reforms require merely greater fidelity to the values of due process and legality in the criminal process, rather than subjecting the values themselves to further independent or critical scrutiny. 182 177 178 179

180 181

182

42

H Packer, The Limits of the Criminal Sanction (Stanford, CA: Stanford University Press, 1968) p 164. H Packer, The Limits of the Criminal Sanction (Stanford, CA: Stanford University Press, 1968) p 167. For an excellent essay reviewing the influence and limitations of Packer’s theory, see J Stribopoulos, “Packer’s Blind Spot: Low Visibility Encounters and the Limits of Due Process versus Crime Control” in F Tanguay-Renaud and J Stribopoulos (eds), Rethinking Criminal Law Theory (Oxford: Hart Publishing, 2012). Stribopoulos identifies Packer’s blind spot, namely that the courts, by championing due process, could operate as a restraint on police power. Empirical research over the past 50 years reveals that the courts and doctrines of due process have been “incapable of meaningfully regulating police authority”: p 216. D McBarnet, Conviction: Law, the State and the Construction of Justice (London: MacMillan, 1981) p 156. Packer would reject this criticism since he argued that his models “are not labelled Is and Ought, nor are they to be taken in that sense”: H Packer, The Limits of the Criminal Sanction (Stanford, CA: Stanford University Press, 1968) p 153. See, for example, FA Allen, The Habits of Legality—Criminal Justice and the Rule of Law (New York: Oxford University Press, 1996). Other legal scholars have argued that the principles of due process and legality should be subject to critical evaluation and reconstruction using external normative sources, such as ethics and human rights: see, for example, A Ashworth and M Redmayne, The Criminal Process (4th ed, Oxford: Oxford [1.130]

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McBarnet argued that this approach was unsatisfactory. Her research suggested that “law in action”, rather than being a deviation from the “law in books”, was condoned by the law: “If the practice of criminal justice does not live up to its rhetoric, one should not only look to the interactions and negotiations of those who put the law into practice but to the law itself … Deviation from the rhetoric of legality and justice is institutionalised within the law itself.” 183

Due process did not set a standard of legality from which the police deviated, but rather provided police, lawyers and judges with a licence to ignore the rhetoric of legality and justice in many cases. McBarnet concludes: “If we bring due process down from the dizzy heights of abstraction and subject it to empirical scrutiny, the conclusion must be that due process is for crime control.” 184

McBarnet’s inversion of the conventional rhetoric of justice has been criticised as an “over-generalisation”. 185 While it must be conceded that due process does impose some constraints on crime control, McBarnet’s thesis usefully highlights the importance of empirical research in exposing the realities and contradictions behind the rhetoric of criminal justice. The “gap” between the rhetoric and realities of criminal justice is managed in a number of ways. Both in its substance and structure, the law provides considerable room for judicial manoeuvre. Fundamental principles are subject to numerous judicial and legislative qualifications. For example, a core idea at the heart of due process is the “fair trial”. However, a closer examination of legal doctrine reveals that this so-called fundamental common law right is only an entitlement to a trial as fair as the courts can make it. In Chapter 2, we further explore the contradictions between the rhetoric and the realities of the fair trial principle in Australian law: [2.80] and [2.160]. General principles may be venerated in judicial rhetoric, while simultaneously distinguished and confined by the “particular facts” of the case. McBarnet notes that this flexibility in adjudication allows lawyers and judges to balance the contradictory demands of crime control and due process, and to manage the gap between the rhetoric and practice “out of existence”. 186 McBarnet’s research also drew attention to “two tiers of justice” within the criminal justice system, contrasting the “ideology of triviality” that pervaded the lower courts with the “ideology of justice” available for public consumption in the higher courts. 187 This finding is significant, bearing in mind that the bulk of criminal matters are initiated and determined in the magistrates’ court.

183 184 185

186 187

University Press, 2010). In the Australian context, scholars have only recently commenced the task of subjecting the criminal process to rights-based analysis: see, for example, J Gans, T Henning, J Hunter and K Warner, Criminal Process and Human Rights (Sydney: Federation Press, 2011). D McBarnet, Conviction: Law, the State and the Construction of Justice (London: MacMillan, 1981) p 156. D McBarnet, Conviction: Law, the State and the Construction of Justice (London: MacMillan, 1981) p 156. Russell Hogg has criticised McBarnet’s conclusion on the ground that it simply replaces one abstraction with another; namely, suggesting that “the law is essentially about one thing (crime control) rather than another (due process)”: R Hogg, “Policing and Penality” in K Carrington and B Morris (eds), Politics, Prisons and Punishment (Bathurst: Centre for Social Justice Studies, 1991), partially extracted in D Brown, D Farrier, S Egger, L McNamara, A Steel, M Grewcock and D Spears, Brown, Farrier, Neal and Weisbrot’s Criminal Laws: Materials and Commentary on Criminal Law and Process of New South Wales (5th ed, Sydney: Federation Press, 2011) pp 167–169. D McBarnet, Conviction: Law, the State and the Construction of Justice (London: MacMillan, 1981) p 161. D McBarnet, Conviction: Law, the State and the Construction of Justice (London: MacMillan, 1981) Ch 7; D McBarnet, “Two Tiers of Justice” in N Lacey (ed), Criminal Justice (Oxford: Oxford University Press, 1994). [1.130]

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Part I: Theory and Principles

Australian crime—facts and figures 2014 [1.135] National crime data prepared by the Australian Institute of Criminology reported that 780,260 cases were lodged in criminal courts in Australia for the period of 2012–13 of which: • 96% (n=750,514) were initiated in magistrates’ courts, 3% (n=25,249) were initiated in district/county courts and the remaining 1% (n=4,497) were initiated in supreme courts. • 70% of all matters were finalised in all courts in less than 13 weeks; guilty verdicts were the most common method of finalisation in matters that took less than 13 weeks to finalise (75%). A further 17% took 13–26 weeks to finalise, with the highest proportion of defendants acquitted (29%). • Only 4% of matters took greater than 52 weeks to finalise. The majority of these were for matters that ended in an acquittal. 188

Examining the nature of proceedings in magistrates’ courts reveals that these are not confined to trivial, regulatory or minor crimes. Magistrates’ courts deal with an increasingly wide range of offences, many carrying the risk of imprisonment and/or substantial fines. What is truly striking is that historically limited academic attention was paid to this part of the criminal process. This was possible because summary proceedings, which account for 96% of criminal proceedings and have potentially serious consequences for the parties involved, could be constructed as “exceptions” to the general rule. Summary offences often dispensed with proof of any mental state, or reversed the onus of proof in relation to key ingredients of the offence. As we shall explore in Chapter 2, [2.100], even the fundamental right to a fair trial, which judges were duty-bound to protect, only applied to those proceedings involving “serious offences”, and excluded pre-trial proceedings such as committals conducted before a magistrate. In Chapter 12, we shall also explore the implications of the two modes of fact-finding (trial before a jury versus summary proceeding before a magistrate) in the context of theft. Most legal discussion proceeds on the assumption that the test of dishonesty for theft is a matter for a jury to determine, applying the standards of “ordinary decent people”. In reality, the majority of cases of minor theft will be determined by a magistrate sitting without a jury. Rather than the jury functioning as a cipher for “community standards”, it is the magistrate applying his or her own subjective morality that will govern the scope of dishonesty, with attendant risks that the attribution of legal blame may be less objective, neutral and apolitical than is commonly claimed, see Chapter 12, [12.70]. McBarnet’s theory has many implications for our understanding of the criminal process and the direction of criminal justice research. It encourages deeper reflection on the structure and functions of law in the criminal process, and the apparent tensions and contradictions within legal doctrine and its fundamental principles. These perspectives are further explored in our critical review of general principles in Chapter 2. The acceptance of Packer’s model by researchers has tended to conceal or minimise the role of law in constituting criminal justice

188

See Australian Crime: Facts and Figures 2014 (Canberra: Australian Institute of Criminology, 2016), http://www.aic.gov.au/media_library/publications/facts/2014/facts_and_figures_2014.pdf (cited 17 July 2016).

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practices. McBarnet criticises sociologists and criminologists who study the behaviour of police, prosecutors and judges, but who ignore the role that law plays in shaping and constituting such behaviour. 189

Law in policing [1.140] An excellent example of research that does recognise the significance of law to the understanding of criminal justice practices is David Dixon’s Law in Policing: Legal Regulation and Police Practices. 190 This empirical study of English and Australian policing reveals that the law for the police is not conceived as a “rule book” to be either followed or ignored, but rather serves as a “tool” or normative resource that is used by police officers in performing their diverse roles of maintaining social order, and preventing and apprehending crime. His study exposes the complexity and contingency of law in policing and concludes “law’s relationship with policing depends upon the nature of the law, the type of policing, and the social and political contexts”. 191

The value of studying the criminal process lies not merely in gaining knowledge about the legal rules and practices governing criminal investigation and the conduct of a trial. Rather, it provides the resources for developing an appreciation of how changes to the substantive law impact upon methods of surveillance, intelligence-gathering, investigation and procedure, and vice versa. The focus on confession evidence in modern policing is undoubtedly related to the increasing emphasis placed on subjective mental states from the late 19th century onwards, and the gradual displacement of constructive or imputed forms of criminal fault. Lindsay Farmer has traced similar synergies between the massive expansion of the summary jurisdiction during the 19th century and legislative efforts to impose stricter forms of liability for a wider range of “regulatory” offences; measures that were designed to improve the administrative efficiency and reach of the criminal law. 192 Another weakness of Packer’s models of criminal process is the unproblematic view of “crime”. The difficulty with the crime control model is that the notions of “guilt” and “offenders” are conceived as existing, in some phenomenological sense, apart from the institutions and practices involved in investigation and the production of evidence. This approach fails to recognise that “guilt” and “innocence” are not simply the products of legal rules applied at trial, but are “constructed” at earlier stages of the process by the key players within the system, such as police, prosecutors and informers: see “Policing and Case Construction” at [1.170]. Also, the crime control model does not conceive repression of police illegality as part of its mission. Proactive policing techniques involving illegality by the police, such as active participation or incitement of criminal activity as part of controlled operations, cut across Packer’s distinction, drawn between “the criminal” and “the crime controller”. In Chapter 14, we explore the pervasive practice of police entrapment in drug law enforcement: [14.210]. 189 190 191 192

D McBarnet, “False Dichotomies in Criminal Justice Research” in J Baldwin and K Bottomley (eds), Criminal Justice (London: Martin Robertson, 1978). D Dixon, Law in Policing: Legal Regulation and Police Practices (Oxford: Oxford University Press, 1997). D Dixon, Law in Policing: Legal Regulation and Police Practices (Oxford: Oxford University Press, 1997) p 318. L Farmer, Criminal Law, Tradition and Legal Order (Cambridge: Cambridge University Press, 1997) pp 122–126. See also M Dubber, The Police Power: Patriarchy and the Foundations of American Government (New York: Columbia University Press, 2005), which explores the role of the criminal law in sustaining the “Police Power Model” in the United States, with its emphasis on the use of criminalisation of particular “statuses” to affirm state power. [1.140]

45

Part I: Theory and Principles

Beyond balancing crime control and due process: promoting human rights [1.145] At the core of Packer’s binary conception of criminal justice implicitly lies the

importance of ensuring “balance” between the normative antinomies of crime control and due process. Andrew Ashworth rejects Packer’s conception of criminal justice as a “balance” between two poles. In an article called “Concepts of Criminal Justice”, Ashworth recognised that the general justifying aim of the criminal process was crime control, though this was subject to three main qualifiers: • considerations of system (that is, resources); • principles of fairness; and • control of abuse. 193 Unlike Packer’s model, where due process is the only constraint on crime control, Ashworth’s concept of criminal justice accommodates both economic and public policy interests as legitimate constraints. These “considerations of system” recognise the economic constraints on the criminal process—since full enforcement of every breach of the criminal law would be impractical, imposing an unreasonable cost on society, decisions to arrest and prosecute rest on the exercise of discretion. This approach supports practices that encourage cooperation, such as charge negotiation and plea-bargaining, as well as diverting matters away from the courts through the use of infringement or fixed penalty notices for minor offences. Ashworth identified “control of abuse” by law enforcement officials as a further qualifier. It is not an end in itself, but rather a means of maintaining the balance between the State and the citizen. Not only does it have instrumental value, subjecting police to the rule of law, it also serves to maintain public confidence in the administration of criminal justice. In the Australian context, the importance of maintaining public confidence underlies the judicial discretion to exclude evidence that was illegally or improperly obtained and the inherent power to grant a stay of proceedings on the ground of “abuse of process” in order to prevent an unfair trial. 194 Debates about criminal justice reform tend to pivot on the need to “balance” the rights of suspects against the public interest in detecting, preventing and prosecuting crime. The weakness of this approach is that it suggests that due process and crime control exist in some sort of hydraulic relationship to one another. 195 Far from maintaining the perfect equilibrium, the criminal justice system, as McBarnet contends, consistently favours the interests of the State and the community over the individual. A similar assessment may be extended to special laws enacted to deal with terrorism in the wake of 9/11, where, under the rubric of developing a “balanced” response, many fundamental rights have been eroded: see Chapter 15, [15.145]ff. Ashworth has similarly pointed to the distorting effect of balancing metaphors in debates about criminal justice reform. Rather than balancing interests or rights, he proposes that reformers must first determine the aim of a given part of the criminal process and then ascertain what rights ought to be ascribed to the affected parties (the law enforcement agency, prosecution and defence counsel, suspects, accused and the community). 196 In a powerful 193 194 195

196

A Ashworth, “Concepts of Criminal Justice” [1979] Criminal Law Review 412 at 413. See Bunning v Cross (1978) 141 CLR 54 and Dietrich v The Queen (1992) 177 CLR 292 respectively. D Dixon, Law in Policing: Legal Regulation and Police Practices (Oxford: Clarendon Press, 1997) p 284, citing J Braithwaite, Crime, Shame and Reintegration (Cambridge: Cambridge University Press, 1989) pp 158 –159. A Ashworth, “Crime, Community and Consequentialism” [1996] Criminal Law Review 220 at 229. For an excellent chapter, outlining the significance of Ashworth’s writings on criminal law doctrine generally, see N Lacey, “Principles, Policies, and Politics of Criminal Law” in L Zedner and JV Roberts (eds), Principles and Values in Criminal Law and Criminal Justice: Essays in Honour of Andrew Ashworth (Oxford: Oxford University Press, 2012).

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critique of balancing, Ashworth proposes that criminal justice reform, rather than adopting a utilitarian approach, should ensure maximum protection for fundamental human rights. The drawbacks of the balancing model are further explored in Chapter 2, [2.140]. Ashworth’s approach of promoting rights is not unproblematic. Rights have traditionally favoured liberal political agendas, promoting individual over collective or social interests. There has been a lively debate about the value of rights, with critical legal scholars exposing the failure of rights to remedy disadvantage within marginalised communities. As we shall explore in Chapter 2, some feminist and critical scholars have rejected “rights discourse” entirely: [2.205]. Economic models of criminal justice [1.150] David Garland in The Culture of Control: Crime and Social Order in Contemporary

Society 197 traces the profound shifts from a “social” to “economic” style of reasoning in the fields of crime policy and criminal justice decision-making in the late 20th century. 198 This economic model asserts that key private-sector values (for example, “value-for-money”, “cost-benefit”, and “performance measurement”) can provide better tools for regulatory design. The agenda typically exposes the inefficiency of state-centric interventions, favouring privatisation of policing, prisons and post-release offender supervision will produce more efficient and effective outcomes for the criminal justice system. There are many examples of criminal justice processes being driven by efficiency in Australia, ranging from diversionary tools (such as police cautions and infringement notices) to practices of charge-negotiation and plea-bargaining. All of these practices are justified in terms of their efficiency, promoting disposal of cases without burdening the system with costly trials. Police cautions, whether formal or informal, are widely used in dealing with juveniles, and assist in the management of suspects in several ways. A police caution provides official notice to an individual that they are “known to the police” and may, therefore, act as a deterrent. It also forms part of the police record, and thus may shape future interactions with the person as well as bolster the reasonableness of police suspicion in subsequent investigations. From an internal bureaucratic perspective, cautions are also attractive: though not resulting in convictions, they may be counted as “clearances” for the purpose of measuring police performance. With only limited opportunities for suspects to dispute the legality of cautions—which are administrative actions —the working informal definitions of illegality applied by police remain unchallenged. 199

197 198

199

D Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Chicago: University of Chicago Press, 2001). D Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Chicago: University of Chicago Press, 2001) pp 188–192. See also Michael King in The Framework of Criminal Justice (London: Croom Helm, 1981), who sketched a “bureaucratic model” of criminal justice. Efficiency is the key objective, though it is not restricted to the narrow interests of “crime control” in the sense of maximising the detection and conviction of the guilty. The emphasis, rather, is on gathering and managing information about suspects and offenders, as well as minimising the costs associated with the administration of criminal justice. Such a model prioritises administrative processes over formal legal procedures. At common law, cautions, while practically significant, have no formal legal status and there is limited scope for challenging the grounds of a caution: R May, “The Legal Effect of a Police Caution” [1997] Criminal Law Review 491. Some jurisdictions have recognised in statute the discretion of law enforcement officials to issue a caution rather than a penalty notice: see s 19A, Fines Act 1996 (NSW) (inserted 2008), s 8, Infringements Act 2006 (Vic). The NSW Attorney General has issued “Caution Guidelines under the Fines Act 1996” which sets out a list of factors which should be considered when issuing a caution: http://www.justice.nsw.gov.au/ justicepolicy/Documents/caution_guidelines_under_the_fines_act_pdf.pdf (cited 21 December 2016). [1.150]

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Part I: Theory and Principles

Actuarial justice: the new criminal law? [1.155] The term “Actuarial Justice” was first coined by Malcolm Feeley and Jonathon Simon to denote the “New Penology” based on management of risk. 200 Many initiatives in criminal justice (including new criminal laws) have been directed to identifying and managing “dangerousness” in the community. This trend has justified the use of incapacitation and preventive detention, imposition of curfews, and the profiling of offenders who pose a risk of danger to the community. 201 Actuarial Justice is a theory of risk-based criminal justice that normatively rests on the technical neutrality of statistics. However, as Pat O’Malley points out in his essay, this idea of risk is contestable: “[Risk] is always a moralised way of governing and the specific moral foundations should be made explicit”. 202 Rather than tying it to exclusionary incapacitative schemes, O’Malley argues for a “new ethics of risk” that is linked to social justice and social welfare, which foster risk models that deliver preventive and restorative resources to disadvantaged sectors of the population. 203

Other diversionary practices within the criminal justice system have similar qualities, such as the power to issue “on the spot” penalties, or infringement notices to deal with minor offences (for example, speeding). However, the presumed efficiency gains of promoting these diversionary schemes in lieu of prosecution must be subject to critical scrutiny. The last decade has seen the gradual spread of the use of infringement notices beyond the realm of regulatory crime to minor offences relating to drugs and public order. As we shall explore below, the power to issue infringement notices in relation to the possession of small quantities of cannabis has resulted in significant increases in court appearances and convictions for drug offences. Mandatory sentencing laws may also be understood in terms of promoting efficiency. Removing sentencing discretion is said not only to promote (formal) equality and deterrent effect of punishment, it also dramatically streamlines the sentencing process. It dispenses with the need for lengthy hearings where evidence is tendered and contested on the nature of the offence, the background of offenders and the prospects for rehabilitation. Additionally, the risk of error and the defendant mounting costly appeals is minimised. As the next Perspectives section reveals, there is a danger that these “efficient” disposal mechanisms privilege bureaucratic interests over other values such as due process and the protection of human rights.

200 201 202 203

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M Feeley and J Simon, “Actuarial Justice: The Emerging New Criminal Law” in D Nelken (ed), The Futures of Criminology (London: Sage Publications, 1994). For a collection of articles exploring these developments, see P O’Malley (ed), Crime and the Risk Society (Aldershot: Ashgate, 1998). P O’Malley, “The Uncertain Promise of Risk” (2004) 37(3) Australian and New Zealand Journal of Criminology 323 at 326. P O’Malley, “The Uncertain Promise of Risk” (2004) 37(3) Australian and New Zealand Journal of Criminology 323 at 333–334. See also P O’Malley, “Neoliberalism and Risk in Criminology” in T Anthony and C Cunneen (eds), The Critical Criminology Companion (Sydney: Hawkins Press, 2008). [1.155]

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Procedural perspectives The Rise of Diversion and Cautionary Tales: “On the Spot” Justice: Decriminalising Cannabis and Regulating Traffic [1.160] Pat O’Malley has explored the rise of managerialism in the criminal justice

system—a rise which he calls “technocratic justice”. 204 Infringement or penalty notices and expiation schemes, commonly known as “on-the-spot-fines”, may be viewed as measures of technocratic justice. Infringement, penalty notices or expiation schemes are now widely used by police and other law enforcement officials, such as health and safety inspectors, to manage an increasing range of offences. The offender has the choice of paying the fine, essentially pleading guilty to the commission of the offence but with no resulting record of conviction, or to dispute the matter in court. These offences are no longer confined to minor traffic infringements—they have been extended to a wide range of offences, including possession of narcotics, common assault, shoplifting, offensive conduct, offensive language, and goods in custody. 205 Infringement notices have been described by the Australian Law Reform Commission (ALRC) as a tool to divert offenders involved in minor cases away from the criminal courts—this “results in an ‘opt-in’ criminal process where the criminal burden of proof will only need to be met by the prosecution if the alleged offender elects to contest the offence in court”. 206 These diversionary schemes offer, at first glance, significant savings in terms of system costs since there is no hearing and the “penalty” paid covers the enforcement costs. 207 The failure to pay the penalty is made a distinct offence, though only in cases where the person has not elected to contest the notice of infringement. From the offender’s perspective, irrespective of guilt or innocence, compliance with the scheme is encouraged because the negative cost of prosecution and risk of conviction outweighs the relatively minor pecuniary burden of the penalty. The ALRC notes that: “The attraction for the person issued with the infringement notice is that it is generally quick, easy and inexpensive to pay the penalty without question. Not paying the penalty and contesting the offence is made less attractive by the prospect of a heavier sanction if a court determines the matter, in addition to the cost and inconvenience of the proceedings themselves.” 208

The process, as the ALRC also points out, is costly in terms of due process: “Infringement notice schemes may be seen as an attempt to convince people to voluntarily forego the procedural protections of the criminal process in the interests of allowing the state to collect fines more efficiently.” 209

204 205 206 207 208 209

P O’Malley, “Technocratic Justice in Australia” (1984) 2 Law in Context 31. See the report by the NSW Ombudsman, On the Spot Justice?: The Trial of Criminal Infringement Notices by NSW Police (Sydney: NSW Ombudsman, April 2005). Australian Law Reform Commission, Securing Compliance: Civil and Administrative Penalties in Federal Jurisdiction, Report No 65 (2002) p 397. RG Fox, Criminal Justice on the Spot: Infringement Penalties in Victoria (Canberra: Australian Institute of Criminology, 1995). Australian Law Reform Commission, Securing Compliance: Civil and Administrative Penalties in Federal Jurisdiction, Report No 65 (2002) p 396. Australian Law Reform Commission, Securing Compliance: Civil and Administrative Penalties in Federal Jurisdiction, Report 65 (2002) p 400. [1.160]

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O’Malley’s conclusion is that the displacement of due process from the system in effect “de-moralises crime and renders it merely a breach of administrative regulation”. 210 The effect, as O’Malley observed, is that there is now an increasing range of “civil offences” of a morally ambiguous character. 211 Mirko Bagaric suggests that this tendency to overuse criminalisation for regulatory purposes means that the modern criminal law is devoid of any justificatory principle and that the notion of criminality is now debased. 212 For example in New South Wales, any offence can be disposed of by way of an infringement notice (called a “penalty notice”), provided it is so prescribed by regulation: see Criminal Procedure Act 1986 (NSW), s 336. Diversionary schemes have been applied to minor drug offences in many jurisdictions. In the Australian Capital Territory, the Northern Territory, South Australia and Western Australia, infringement notices may be issued for possession of small quantities of cannabis, 213 replacing conviction as the method of deterrence and removing the stigma associated with criminal prosecution. 214 Tasmania, New South Wales and Queensland also introduced cannabis cautioning schemes, although eligibility, processes and penalties differ between jurisdictions. Although there has been nearly 20 years of diversionary practice of issuing cautions, warnings and offence notices for cannabis offenders, there is scant data evaluating the costs and benefits of such schemes compared with court-based processes, taking into account recidivism rates, health and social outcomes for those diverted. 215 Infringement notices were initially welcomed by law enforcement officials and law reformers as sensible alternatives to strict prohibition—alternatives that would better promote “harm minimisation”. As we shall explore in Chapter 14, see [14.10] they have neither increased diversion from the criminal justice system nor blunted the coercive edge of the criminal law. Lower courts continue to process large numbers of minor drug offences, often by repeat offenders. They have also become clogged with prosecutions of fine defaulters because drug users, unlike individuals processed for minor motoring offences, typically are drawn from disadvantaged communities and are poorly placed to pay fines and thus avoid prosecution and conviction. With some cautionary notes, the infringement notices scheme will be attractive to regulators, especially when combined with technology that automates the processes of detection and issuance of breaches, such as red-light and speed cameras. One study of a pilot scheme a decade ago revealed a total estimated saving of approximately $647,015 for the NSW Police and local courts for the 12-month trial period of the criminal infringement notice (CIN) scheme. This permitted the redirection of resources for the police to other activities (such as front-line policing) and the courts to a more timely 210 211 212 213 214 215

P O’Malley, “Technocratic Justice in Australia” (1984) 2 Law in Context 31 at 46. P O’Malley, “Technocratic Justice in Australia” (1984) 2 Law in Context 31 at 45. M Bagaric, “The “Civilisation” of the Criminal Law” (2001) 25(4) Criminal Law Journal 184 at 184–185. Drugs of Dependence Act 1989 (ACT), s 171A; Misuse of Drugs Act (NT), s 20A; Controlled Substances Act 1984 (SA), s 45A; Misuse of Drugs Act 1981 (WA), s 8E. Australian Law Reform Commission, Securing Compliance: Civil and Administrative Penalties in Federal Jurisdiction, Report No 65 (2002) pp 55–57. In 2015 the National Drug and Alcohol Research Centre completed a national online study of over 1,000 cannabis offenders from across Australia to evaluate outcomes and cost-effectiveness of diversion programs: https://www.ndarc.med.unsw.edu.au/project/australian-policy-diversion-cannabis-offences-assessingprogram-outcomes-and-cost (cited 1 August 2016).

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disposition of matters. 216 However, mindful of the potential for the overuse of infringement notice schemes, the NSW Ombudsman identified that the following principles should be applied when considering what type of offences should be included in these schemes: • The offence is relatively minor. • There is a sufficiently high volume of contraventions so as to justify the cost of establishing systems for the offence to be dealt with by way of a CIN. • Other diversionary options to effectively and appropriately deal with the conduct in question are not available to police. • A fine for the offence is a sufficiently effective means of addressing the conduct, as opposed to an alternative penalty or sentence. • Specific and general deterrence can be adequately conveyed by police, rather than by a court. • The physical elements of the offence are relatively clear-cut. • The issuing of a CIN for the offence would generally be considered a reasonable sanction by the community, having due regard to the seriousness of the offence. 217 Constructing knowledge of crime and criminal justice [1.165] The production of knowledge regarding crime and criminal justice occurs at a number of different levels and locations. It plays a vital role in defining the nature and seriousness of a crime problem, and of determining what response is required from both a law enforcement and a law reform perspective. In this section, we explore how police practices and institutions play a role in the creation of knowledge and the role of the popular media in shaping our approach to crime and criminal justice.

Policing and case construction [1.170] The significant role played by the police in the construction of knowledge about

“suspects” is borne out by the research of Mike McConville, Andrew Saunders and Roger Leng in The Case for the Prosecution. This important empirical study, based on research done in the United Kingdom in the late 1980s, developed the theory of “case construction”; namely, that police accounts of any event may be represented in numerous ways: “Official accounts are problematic, selective renderings of complex realities”. 218 The process of case construction is continuous. At each stage, the question of “what happened?” is the subject of “interpretation, addition, subtraction, selection and reformulation”. 219 In short, evidence is “constructed” rather than merely discovered. Due to case construction, pre-trial processes are often determinative of outcome. Although, theoretically, the outcome of an investigation might depend on the application of the correct legal definition of fault required for an offence, in practice the police simply direct their efforts to obtaining a confession for the purpose of inducing a guilty plea so that technical definitional questions are rendered redundant. This process is apparent in earlier phases of the criminal process. In Chapter 13, [13.15]ff, for example, we shall explore how the police play a determinative role in constructing an 216 217 218 219

NSW Ombudsman, On the Spot Justice?: The Trial of Criminal Infringement Notices by NSW Police (April 2005) p iii. NSW Ombudsman, On the Spot Justice?: The Trial of Criminal Infringement Notices by NSW Police (April 2005) p iv. M McConville, A Saunders and R Leng, The Case for the Prosecution (London: Routledge, 1991) p 7. M McConville, A Saunders and R Leng, The Case for the Prosecution (London: Routledge, 1991) p 12. [1.170]

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incident as “disorderly” and worthy of police attention through public order law—police definitions of “good order” are often practically and legally unassailable. 220 The extent to which public order law imposes restrictions on political protest—or conversely upholds fundamental human rights of peaceful assembly, association or expression—has less to do with formal legal definitions and more to do with police culture and training. The police, as gatekeepers of the system, make crucial decisions in the management of cases, and exercise discretion in determining whether or not to arrest (or alternatively issue a caution or infringement notice), to commence or withdraw an investigation, and ultimately, to progress the matter to prosecution. 221 Surveillance is integral to the process of creating and managing knowledge of suspect populations. Indeed, its prevalence within modern societies leads some scholars to suggest that the dominant objective of the criminal process is no longer crime control, but rather surveillance. In Australia, surveillance is conducted through covert policing and intelligencegathering. There are also more visible investigative processes and agencies gathering data on specific crime threats, and even particular suspects. Ad hoc inquiries such as Royal Commissions are now supplemented by specialised investigative bodies, such as the Independent Commission Against Corruption (NSW) and, nationally, the Australian Crime Commission (ACC) (now operating under the umbrella of the Australian Criminal Intelligence Commission (ACIC)), which have broad-ranging inquisitorial and coercive powers to gather intelligence and undertake covert operations to tackle organised crime. 222 As Richard Ericson concludes, these trends to “system surveillance” pose considerable dangers to fundamental human rights since “[s]uspects’ rights are displaced by system rights. Justice becomes a matter of just knowledge production for the efficient management of suspect populations”. 223

Foucault on crime and punishment [1.175] In the modern context, surveillance not only produces knowledge about crime and criminals, it also has disciplinary dimensions. In Discipline and Punish—the Birth of the Prison, 224 Michel Foucault traces the transformation of disciplinary technologies from their initial focus on the “corporeal” (capital punishment), to the “carceral” (the rise of the penitentiary) and, finally, to the emergence of “management”. He examined the new surveillance technologies developed in the 19th century that aimed to produce “docile bodies”, such as Bentham’s model prison, which incorporated the Panopticon. The Panopticon’s circular design subjected prisoners to the constant but invisible threat of surveillance from a central observation point. In his famous essay “The Panopticon versus New South Wales” (1802), Bentham trumpeted the model of prison reform as a preferable

220

221

222

223 224

As Lawrence Lustgarten concluded in “The Police and the Substantive Criminal Law” (1987) 27(1) British Journal of Criminology 23 at 29: “A key characteristic of all preventive public order offences, is that the police are a complainant, judge, and, in all but a few cases, jury as well.” On the role of police discretion, and how this is mediated through prosecution guidelines and police culture, see S Bronitt and P Stenning, “Understanding Discretion in Modern Policing” (2011) 35(6) Criminal Law Journal 319. This trend toward “system surveillance” explains the increasing use of Royal Commissions to generate knowledge about the criminal justice system and notorious miscarriages of justice: R Ericson, “The Royal Commission on Criminal Justice Surveillance” in M McConville and L Bridges (eds), Criminal Justice in Crisis (Cheltenham, UK: Edward Elgar Publishing, 1995) Ch 11. R Ericson, “The Royal Commission on Criminal Justice Surveillance” in M McConville and L Bridges (eds), Criminal Justice in Crisis (Cheltenham, UK: Edward Elgar Publishing, 1995) pp 139–140. M Foucault, Discipline and Punish—the Birth of the Prison (New York: Pantheon Books, 1977).

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solution to transportation. 225 John Braithwaite has criticised Foucault’s historical sequencing, arguing that it overlooks the significance of banishment, in particular transportation, of criminals. The penitentiary did not replace transportation at the end of the 19th century as Foucault contended, but rather co-existed in many places alongside other forms of punishment. As Australian colonial history demonstrates, banishment in the form of transportation was not inherently exclusionary, and often promoted restorative justice and opportunities for reintegration that were not available in the penitentiary model. 226

Criminological research has revealed the importance of the media (including news and “info-tainment” as well as crime fiction) in shaping knowledge about crime and the criminal justice system—knowledge which then feeds back into research, law reform and policy. 227 This complex interrelationship sustains penal populism and a “law and order” society in Australia, which Russell Hogg has described in the following terms: “Crime policy becomes symbolic. Measures are more important for what they say than what they do. … Populist crime policy is increasingly produced in transactions between the most politicized element within the executive (political leaders, political staffers, pollsters and media advisors) and the tabloid media. Professional knowledge and opinion, research and evidence are marginalized.” 228

As we shall explore in later chapters, there is a complex interrelationship between community fear, the politics of law and order, and criminalisation. Popular fears about new crime “threats” have justified the adoption of new police powers and offences across a wide field—the past decade has witnessed new laws against terrorism, outlaw motorcycle gangs, public disorder, “drink-spiking”, online grooming and even distribution of “revenge porn”. The responsiveness of the criminal law and police powers to community fears and local “law and order” politics is further explored in Chapter 13, [13.10].

The media: reflecting or shaping crime fears? [1.180] For most people the media provides the primary source of information on crime and justice. 229 The 2007 Australian Survey of Social Attitudes revealed significant divergence between community perceptions and the reality of crime (rates of which are stable or declining for most offence categories). 230 Analysing the data collected, the Australian Institute of Criminology found: “The rate of crimes reported to police per 100,000 persons was lower in 2007 than in 2005 for the four major crime categories of homicide and related offences, unlawful entry with intent, motor vehicle theft and other theft. The rate of crimes reported to police increased for two minor categories: robbery and blackmail/extortion. When all categories are considered together as one category ‘crime’, the trend is downward. Survey respondents 225 226 227

228 229

230

M Finnane, Punishment in Australian Society (Melbourne: Oxford University Press, 1997) Ch 2. J Braithwaite, “Crime in a Convict Society” [2001] 64(1) Modern Law Review 11. A Howe (ed), Sexed Crime in the News (Sydney: Federation Press, 1998) and A Young, “Culture, Critical Criminology and the Imagination of Crime” in T Anthony and C Cunneen (eds), The Critical Criminology Companion (Sydney: Hawkins Press, 2008). R Hogg, “Resisting a Law and Order Society” in T Anthony and C Cunneen (eds), The Critical Criminology Companion (Sydney: Hawkins Press, 2008) p 281. See L Roberts and D Indermaur, What Australians Think About Crime and Justice: Results from the 2007 Survey of Social Attitudes—Research and Public Policy Series 101 (Canberra: Australian Institute of Criminology, 2009) p 24. The Australian Survey of Social Attitudes, 2007 (2008) https://www.ada.edu.au/social-science/01127 (cited 3 March 2017). [1.180]

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(n=5,303) were asked ‘Do you think that the level of crime in Australia has changed over the past 2 years?’ The majority of respondents (64.9%) responded that crime has increased over the past two years. Only 2.9% correctly identified that crime rates reduced over this period. However, almost one-quarter of respondents (24.6%) indicated that the crime rate had stayed the same, which is closer to reality than the two groups that incorrectly perceived a crime increase. Of those perceiving a crime increase, most (four in 10 overall) thought there was a lot more crime and just over two in 10 (23.2%) thought there was a little more crime.” 231

A follow-up study in 2010, using the 2007 data, revealed further relationships between perceptions and actual prevalence of crime in the community. Individuals were more likely to misperceive the crime rates if they consumed television and tabloid news, were female or older, or had lower levels of educational attainment. 232 As the authors concluded, “public policymakers should exercise additional care when framing important law enforcement decisions taken against the background of the public’s potential misperceptions of crime.” 233

Towards Critical Synthesis: A Theory of “Criminalisation” [1.185] Legal scholarship plays a significant role in constituting the conceptual boundaries

and vocabulary of the criminal law. As this chapter has demonstrated, there is no single concept of criminal law—rather, there are multiple and contradictory accounts of its nature and function. Yet many textbooks (to the extent they acknowledge theory at all) restrict themselves to the province of analytical jurisprudence and liberal theory. As we shall further explore in Chapters 2 and 3, the theoretical foundations of “general principles” in the criminal law are firmly based in the moral and political concerns of liberalism. This is particularly so as regards the need to provide a legitimate basis for State interference with individual liberty, especially the rule of law and the rights to freedom of person and property. Liberal accounts of the criminal law have not gone unchallenged. In the 1980s, Critical Legal Scholarship (CLS) emerged in the United States. 234 Through close textual analysis, Mark Kelman exposed the internal “politics” of legal discourse in the field of criminal law. This internal or immanent critique unmasked the indeterminacy and contradictions of “general principles” in the criminal law. Kelman demonstrated that, notwithstanding a subjectivist rhetoric underlying doctrines such as subjective fault elements, the law wavered between “free will” and “determinist” accounts of human action. The principal weakness of the early CLS movement was its failure to develop an “external critique”, or to engage in normative reconstruction within the structure of law. As Nicola Lacey concluded, developing 231

232

233

234

L Roberts and D Indermaur, What Australians Think About Crime and Justice: Results from the 2007 Survey of Social Attitudes—Research and Public Policy Series 101 (Canberra: Australian Institute of Criminology, 2009) p 9. B Davis and K Dossetor, “(Mis)perceptions of Crime in Australia”, Australian Institute of Criminology: Trends and Issues in Crime and Criminal Justice No 396 (Canberra: Australian Institute of Criminology, 2010), http://www.aic.gov.au/media_library/publications/tandi_pdf/tandi396.pdf (cited 17 July 2016). B Davis and K Dossetor, “(Mis)perceptions of Crime in Australia”, Australian Institute of Criminology: Trends and Issues in Crime and Criminal Justice No 396 (Canberra: Australian Institute of Criminology, 2010) p 6, http://www.aic.gov.au/media_library/publications/tandi_pdf/tandi396.pdf (cited 17 July 2016). The emergence of “CLS” is reviewed in N Lacey, “Criminology, Criminal Law, and Criminalization” in M Maguire, R Morgan and R Reiner (eds), The Oxford Handbook of Criminology (2nd ed, Oxford: Clarendon Press, 1997) pp 440–441; and D Nelken, “Criminal Law and Criminal Justice: Some Notes on their Irrelation” in I Dennis (ed), Criminal Law and Criminal Justice (London: Sweet and Maxwell, 1986) pp 152–155.

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an internal critique requires engagement with a broader set of “historical, political, and social questions about the conditions and existence and efficacy of particular doctrinal arrangements”. 235 In recent years, this deficiency in criminal law scholarship has been largely rectified. Alan Norrie’s Crime, Reason and History is an outstanding example of the meshing of internal and external perspectives on the evolution and role of subjective fault elements in the criminal law. 236 In this book, Norrie uses legal history to critique the modern principles of criminal responsibility. His study reveals that the criminal law’s commitment to subjectivism, rather than being a timeless and universal principle, was formed in the crucible of social and political forces in the 19th century and remained, in the 20th century, the site of struggle and contradiction. As Nicola Lacey notes, socio-legal perspectives reject the notion that “crime” is a given act of law creation. 237 The study of the crimes must be placed within a wider disciplinary terrain that encompasses the criminal law, criminology and criminal justice studies. Lacey uses the term “criminalization” to describe this broader conceptual framework: “The idea of criminalization captures the dynamic nature of the field as a set of interlocking practices in which the moments of ‘defining’ and ‘responding to’ crime can rarely be completely distinguished and in which legal and social (extra-legal) constructions of crime constantly interact. It accommodates the full range of relevant institutions within which those practices take shape and the disciplines which might be brought to bear upon their analysis; it allows the instrumental and symbolic aspects of the field to be addressed, as well as encompassing empirical, interpretive and normative projects.” 238

An important aspect of criminalization, beyond attention to formal legal analysis, is a close examination of the rhetorical and aesthetic structure of legal doctrine. The unrelenting quest for integrity in law—order, rationality and coherence—has an important symbolic and ideological function. As explored above, the prospect that the criminal law can be stated in rational and principled terms is essential to the notion of legality and the rule of law. This concept of criminal law directs disciplinary efforts towards “tidying up” the incoherence of the criminal law. However, resolving incoherence through conceptual analysis often masks the internal contradictions within the law and limits the normative choices available for reform. Legal scholarship is deeply implicated in this process of constructing the criminal law. An approach that draws only on a narrow brand of (liberal) moral and political philosophy severely inhibits the potential to imagine the criminal law and its organising principles differently. The challenge offered to legal scholars and students who embrace “criminalization” is awesome. Since the conception of the criminal law is less bounded than traditional accounts, the potential disciplinary terrain is vast. Peter Alldridge similarly proposed that the discipline must be broadened to encompass crime, criminal law and criminal justice. Adopting this broadened perspective brings into focus questions related to human rights, victims and the 235 236 237

238

N Lacey, “Legal Constructions of Crime” in M Maguire, R Morgan and R Reiner (eds), The Oxford Handbook of Criminology (4th ed, Oxford: Oxford University Press, 2007) p 192. A Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (3rd ed, Cambridge: Cambridge University Press, 2014). A “socio-legal” approach requires an appreciation of the political, social and cultural contexts of legal developments, as well as a commitment to theorising law as a social phenomenon: R Cotterrell, “Why Must Legal Ideas Be Interpreted Sociologically?” (1998) 25 Journal of Law and Society 171 at 183. Such sociological perspectives, he states, are not merely a “desirable supplement but an essential means of legal understanding” at 192. For an early collection of essays on the importance of socio-legal studies, see P Thomas (ed), Socio-Legal Studies (Aldershot: Dartmouth, 1997). N Lacey, “Legal Constructions of Crime” in M Maguire, R Morgan and R Reiner (eds), The Oxford Handbook of Criminology (4th ed, Oxford: Oxford University Press, 2007) p 197. [1.185]

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globalisation of crime. 239 This “no exclusions” approach to criminal law is certainly daunting. The only strategy for coping with this approach is to become conscious and comfortable with the “gaps” in our knowledge. In many areas, the process of critically (re)thinking and (re)reading the criminal law from both internal and external perspectives is at an embryonic stage of development. Forays beyond doctrinal analysis or analytical (liberal) jurisprudence are undoubtedly hampered by the conservative nature of legal professional culture. New sources of knowledge and ideas may engender hostility from within the profession and some parts of the academy on the grounds that they will fragment and disorder the discipline of law. 240 Critical scholarship is necessarily “messy”, producing more complex, fractured and pluralistic accounts of the criminal law. As Desmond Manderson has pointed out, rather than viewing this quality as a form of legal anarchy in need of order, an aesthetic theory of law, built on traditions of legal pluralism and critical scholarship, would value and celebrate legal diversity. 241 Celebration of diversity stands in stark contrast to the uncritical “principled approach” to criminal law that understands “inconsistency” as “incoherence” requiring remediation. Through its successive editions, Howard’s Criminal Law searched for its principles through the conceptual rationalisation of the law governing a narrow range of substantive offences and defences. 242 Such texts have failed to provide an explicit explanatory or normative platform (beyond the promotion of clarity, coherence and rationality) upon which to evaluate the criminal law. An understanding of legal principle must step beyond an inquiry into clarity, coherence and rationality. The study of criminal law must seek to expose rather than conceal doctrinal contingency and contradiction. It can no longer focus exclusively on “serious crimes” for which imprisonment is the usual penalty. More importantly, it must place these principles of law in a broader context using a variety of external disciplinary perspectives. As Nicola Lacey observed in Unspeakable Subjects, a critical approach towards the criminal law need not necessarily descend into “disempowering relativism” where one interpretation is as good as another. 243 The process of exposing contradictions in legal doctrine need not be an exercise in mindless “trashing”; rather, it may open up spaces for normative reconstruction which are often concealed by traditional accounts of legal doctrine. We believe that adopting a socio-legal and socio-theoretical approach to the criminal law pays both academic and practical dividends. Broader perspectives not only encourage more realistic accounts of the criminal law, they also encourage more imaginative debate about the scope, possibilities and limits of law reform. These perspectives may be used to challenge and subvert the law’s epistemological claims of objectivity, universality and neutrality. As we shall explore in Chapters 5 and 6, the tests for self-defence and provocation are based on “objective” gender-neutral standards. Liberal concerns about equality are addressed simply by replacing the overtly discriminatory standard of the “reasonable man” with the purportedly gender-neutral “reasonable or ordinary person”. However, as feminists have observed, law reform that only tackles formal discrimination does little to address the myths and stereotypes about women as potential victims and perpetrators of violence that may influence the assessment of “reasonableness” of a woman’s conduct by the judge, jury or magistrate. 239 240

241 242

243

P Alldridge, Relocating Criminal Law (Aldershot: Ashgate, 2000) pp 18–23. See, for example, the review by S Odgers of the first edition of S Bronitt and B McSherry, Principles of Criminal Law in Bar News NSW, Summer 2001–2002, in which he comments: “The point I wish to make is that such academic critical legal analysis increases the rift between academic lawyer and practitioner”. D Manderson, “Beyond the Provincial: Space, Aesthetics, and Modernist Legal Theory” (1996) 20(4) Melbourne University Law Review 1048 at 1069. The last edition of Colin Howard’s Australian criminal law textbook was authored by Brent Fisse, Howard’s Criminal Law (5th ed, Sydney: Law Book Company, 1990). Fisse did increase the normative content of this textbook, drawing heavily on the US Model Penal Code and its commentaries. N Lacey, Unspeakable Subjects (Oxford: Hart Publishing, 1998) p 228.

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Notwithstanding its purported neutrality, the “reasonableness” of the defensive actions and beliefs of a woman who kills her abusive partner, or who carries an irritant spray because she lives in constant fear of male violence, continues to be defined in masculine terms. 244 Feminist scholarship has been directed towards confronting this gendered reality and reconstructing the “reasonable” and “ordinary” standards in the law in more inclusive terms. Such a project, in both academic and practical terms, is aided by external disciplinary perspectives. Insights from psychology on the “battered women syndrome” (mediated through expert evidence) have been used to bolster claims of provocation and self-defence. As we shall review in Chapter 6, the benefits and pitfalls of such forensic strategies continue to be hotly debated both inside and outside the courtroom. There remains considerable scepticism whether such “external” perspectives on violence against women are credible in terms of psychology or law: Chapter 6, [6.65], “Intimate partner violence and self-defence”.

RECONSTRUCTING THE CRIMINAL LAW [1.190] In the process of rational construction and reconstruction of the criminal law, the

legal community (that is, the broader interpretive community comprised of lawyers, judges and legal academics) is influenced by a wide range of normative theories. 245 Normative discussion may not be explicit, but rather remains latent within legal discourse. The concealment of the “ethical” in legal discussion may be viewed as a symptom of modernity. It forms part of positivism’s efforts to separate law and morality, and to deny the existence of normative choices within the criminal law. As a consequence, the dichotomy between constructing and reconstructing the criminal law, between explanatory and normative perspectives, is often conflated. Indeed, the unconscious slippage from the “is” to the “ought” is a powerful rhetorical strategy of legal persuasion used by lawyers, judges and academics alike. Even in relation to contextual and critical scholarship, there is a tendency to merge “the question of explaining legal doctrine with the rational reconstruction of arguments and justifications for particular legal provisions”. 246 To provide resources for normative reconstruction, this section provides an overview of some significant theories. The purpose of this section is to review the origins, aims and key tenets of these theories, as well as highlight their implications for the reform of the criminal law. While some theories relate to protecting liberal values, such as preventing harm to individuals and limiting the power of the State, others are concerned with communitarian or social interests, such as welfare or the republican hybrid of “social freedom”. The search for a single unifying theory that can explain or guide our decisions to proscribe behaviour as criminal is pointless, as Paul McCutcheon concluded:

244

245

246

See R v Taikato (1996) 186 CLR 454, where the High Court held that the lawful justification for possessing an offensive weapon in a public place (in this case the irritant spray) rested on whether there was a well-founded fear of attack in that place, which was not satisfied on the facts. To counter the suppression of the relevance of gender to doctrinal development, leading legal feminists in Australia have set about re-imagining landmark rulings such as Taikato: see J Stubbs, “A Well-founded Fear? Giving Context to Self-defence in Taikato v R” in H Douglas, F Bartlett, T Luker and R Hunter (eds), Australian Feminist Judgments: Righting and Rewriting Law (London: Hart Publishing, 2014) Ch 15. For an exploration of the concept of “community” in legal discourse, as well as its power to create and legitimate communities by defining and excluding “others”, is explored in N Lacey, Unspeakable Subjects (Oxford: Hart Publishing, 1998) Ch 5. D Nelken, “Criminal Law and Criminal Justice: Some Notes on their Irrelation” in I Dennis (ed), Criminal Law and Criminal Justice (London: Sweet and Maxwell, 1986) p 154. [1.190]

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“[I]n many such cases a sense that the proscribed conduct is wrongful is as plausible an explanation as others that are offered and that sense is often the real motivating force behind the enactment of the prohibition … Ultimately it is probably futile to seek a single unifying criterion that distinguishes the lawful from the unlawful.” 247

The normative ideas addressed in this chapter are not exhaustive. The contribution of feminism to reconstructing the criminal law is not separately addressed in this chapter. This deficiency is rectified in Chapter 2, which reviews the feminist critique and reconstruction of the fundamental notions of justice, fairness, equality and privacy in the context of the criminal law. Later chapters address feminist critiques of defences such as provocation and self-defence, and specific crimes such as rape and domestic violence. This section pays limited attention to another increasingly influential external perspective—law and economics. This external perspective on law, which has been most influential in the United States, has only limited explanatory and normative power for the criminal law. Its fundamental weakness, like deterrence theory, is that it presumes that individual offenders are always self-interested and rational actors. Economic analysis suffers from an over-determined view of human behaviour. As Peter Alldridge notes, “[w]hen applied at all, it seems to have had greatest influence in punishments, procedural rather than substantive law and in relation to acquisitive crime rather than other offences”. 248 A broader regulatory perspective on the criminal law which transcends economic critiques is developing, however, and is discussed at [1.245].

The Chicago school of criminal law [1.195] “Law and economics” offers useful insights in relation to the criminalisation of commodities such as drugs, but when viewed as a grand theory for regulating types of behaviour, it necessarily involves crude forms of reductionism. For example, rape has been conceived as an “appropriation” of sexual intercourse—viewed as a commodity—on “unjust terms”. 249 On this view, the law of rape simply operates, or should operate, to protect the proprietary interests in one’s own body. 250 As feminists point out, a significant drawback to the objectification or commodification of sex is that it can attach no value to other non-material interests connected with sexuality requiring legal protection, such as pleasure, communication, trust, respect and sexual health. 251

Preventing Harm [1.200] Liberalism has exerted a significant influence on both the shape and substance of the

criminal law. Liberal political theory in the 19th century had a profound impact on criminal law since it required those creating laws, and thus interfering with individual freedom, to justify State intervention in the lives of citizens. Liberalism conceives personal liberty and autonomy as matters of prime importance. Individual freedom should not be curtailed simply to promote public morals or the interests of the State. 247 248 249 250 251

P McCutcheon, “Morality and the Criminal Law: Reflections on Hart-Devlin” (2002) 47 Criminal Law Quarterly 15 at 37–38. P Alldridge, Relocating Criminal Law (Aldershot: Ashgate, 2000) p 13. D Dripps, “Beyond Rape: An Essay on the Difference Between the Presence of Force and the Absence of Consent” (1992) 92 Columbia Law Review 1780. Richard Posner, a leading figure in the law and economics movement, has written an analysis of rape which is discussed in P Alldridge, Relocating Criminal Law (Aldershot: Ashgate, 2000) p 14. For an introduction to law and economics, see S Bottomley and S Bronitt, Law in Context (4th ed, Sydney: Federation Press, 2012) Chs 10–13.

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As a principle of political philosophy, this idea was famously championed in the mid-19th century by John Stuart Mill. Restrictions on individual liberty must be curtailed and are justifiable only in order to prevent harm to others: “The object of this essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties or the moral coercion of public opinion. That principle is that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right.” 252

The criminal law should not be used to prohibit non-harmful behaviour, or to prevent individuals from harming themselves, or simply to enforce a particular conception of morals, public interest or general welfare. As Norrie argues, the harm principle is a product of 19th century liberalism, reflecting a view that the social world is founded upon individual self-interest and rights. 253 It aims to accommodate the principal concerns of the State whilst respecting individual freedom and autonomy. The harm principle has played an influential role in the criminal law, informing debates over whether homosexuality and prostitution pose a sufficient threat of “harm to others” to warrant criminal sanction. It has also provided the philosophical framework for debating the scope of consent in the context of sadomasochistic assaults: see Chapter 10, [10.165] “Consent and sadomasochism”. The primary difficulty with the harm principle is the central notion of “harm to others”. The definition of what constitutes “harm to others” is notoriously unstable and difficult to apply. There is considerable disagreement over whether offensive or insulting behaviour is conduct that causes “harm to others”. Joel Feinberg in The Moral Limits of the Criminal Law: Harm to Others explored this aspect of the harm principle, proposing a broader conception of harm that encompasses a “setback to a person’s interest”. 254 In his second volume in this series, The Moral Limits of the Criminal Law: Offense to Others, Feinberg refines these ideas through the development of the “offense principle”, which would permit the use of criminal prohibitions in order to prevent serious offence or hurt to other persons. 255 As we shall see in Chapter 13, while superficially attractive, the history of criminalising “offensive conduct” reveals that the concept of offensiveness is legally constructed and enforced in ways that can discriminate against minority groups: [13.175]. Another difficulty with Feinberg’s theory is that it fails to address the moral, political and cultural nature of the particular interests “set back”. 256 Further questions and uncertainties concerning the scope of the harm principle have also arisen: • Must harm be direct, or can it be indirect? • What types of harm should be included (physical, psychological, economic or environmental harm)? 252 253 254

255 256

JS Mill, On Liberty (Harmondsworth, UK: Penguin, 1974) p 68. A Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (3rd ed, Cambridge: Cambridge University Press, 2014) pp 21–22. J Feinberg, The Moral Limits of the Criminal Law: Harm to Others (New York: Oxford University Press, 1984) p 215; see also J Schonsheck, On Criminalisation: An Essay in the Philosophy of the Criminal Law (Dordrecht: Kluwer, 1994). J Feinberg, The Moral Limits of the Criminal Law: Offense to Others (New York: Oxford University Press, 1988). A Ashworth and J Horder, Principles of Criminal Law (7th ed, Oxford: Oxford University Press, 2013) p 28. [1.200]

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• To what extent, if at all, does the principle accommodate conduct involving potential harm? 257 There are often sound moral, social and political reasons for broadening the harm principle to include conduct which causes indirect harm to others. As we shall explore in Chapter 11, this argument is often used by feminists to justify tighter criminal regulation of pornography; obscene publications are claimed to cause harm indirectly by increasing the likelihood of sexual assault and perpetuating discrimination against women: [11.240]. In Chapters 13 and 15, we will examine how some theorists have argued for the criminalisation of racial vilification on the ground that it is necessary to prevent psychological harm: [13.80], [15.225]. From a traditional liberal perspective, such expanded notions of harm significantly weaken the harm principle as a means of maximising freedom and curbing State power. In addition to the problems of indeterminacy and elasticity, another limitation is that the harm principle is anthropocentric in its focus. This means that it is difficult to justify criminal prohibitions where conduct causes harm to the environment but has no harmful effects on human beings. 258 It also has an individualistic focus which would confine the criminal law to measures preventing harm to individuals, rather than preventing harm to communities or groups. Efforts to justify criminal prohibitions in terms of harm stretch the principle to such an extent that the concept of harm has become nebulous. Moreover, the concept of harm is “morally loaded”, with the effect that the designation of a consequence as a “harm” involves a societal judgment with moral dimensions. 259 As a normative resource for the criminal law, the harm principle operates as an exclusory guide. It explains why some activities should not be criminalised, but it does not explain why some activities should be criminalised. Not only do we have problems in defining “harm”, but the harm principle is hardly descriptive of the modern criminal law. Many regulatory offences prohibit conduct that does not cause direct harm to others, while other crimes restrict conduct that only indirectly causes harm. Nevertheless, the harm principle holds enormous sway over debates in the criminal law. The better view is that the harm principle should be viewed “neither as ideal nor as explanation but rather as an ideological framework in terms of which policy debate about criminal law is expressed”. 260

Preserving Morality [1.205] The normative quality of labelling and punishing wrongdoing underscores the idea

that the criminal law serves, and ought to serve, the function of enforcing morality. Morality may be conceived either in religious or secular terms. In legal systems where religious and secular law is aligned—for example, in jurisdictions applying Islamic or Shariah law—religious morality acquires legal force. In common law systems, the Christian religion (more specifically, the canons of the Church of England) has exerted an influence on secular law through the ecclesiastical jurisdiction by exporting into the criminal law offences against God, such as 257

258

259

260

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The harm principle certainly supports the existence of crimes such as murder, assault and rape, but falters in explaining the criminalisation of many regulatory offences and inchoate crimes, such as attempts or conspiracy, unless an extremely elastic notion of harm is adopted: R Murgason and L McNamara, Outline of Criminal Law (Sydney: Butterworths, 1997) p 6. In debates about the legality of abortion, the further question arises whether the rubric “harm to others” extends to embryos and foetuses. See further, J Seymour, Childbirth and the Law (Oxford: Oxford University Press, 2000) Ch 8. N MacCormick, Legal Right and Social Democracy (Oxford: Oxford University Press, 1982) p 29; P McCutcheon, “Morality and the Criminal Law: Reflections on Hart-Devlin” (2002) 47 Criminal Law Quarterly 15 at 22. C Wells and O Quick, Lacey, Wells and Quick—Reconstructing Criminal Law: Texts and Materials (4th ed, Cambridge: Cambridge University Press, 2010) p 10. [1.205]

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perjury, blasphemy, sodomy and swearing and cursing, and the (now abolished) procedural defences of “benefit of clergy” and marital rape immunity.

Perjury as a crime [1.210] Most ecclesiastical crimes have been abolished, the principal exception being the crime of perjury (lying under oath). However, the rationale of perjury has changed over time. From its original religious rationale of protecting individuals from damnation for bearing false witness, perjury has been remodelled into a secular offence protecting the integrity of the administration of justice. 261

Religion has made its mark on the criminal law in many ways, though modern writers are apt to minimise or ignore its influence through their decontextualized, ahistorical accounts of legal doctrine. As Jeremy Horder recently observed, until the gradual secularisation of criminal law in the late 18th and 19th centuries, Christian teachings provided the primary normative framework for the “criminal law writers’ understanding of what ought to be criminal”. 262 However, this template was to be displaced by the “secular and rational turn” led by the rising influence of Benthamite rationality and humanism, which demanded total separation of church and state. 263 The influence of religion on the criminal law, though diminishing, was never entirely erased. Indeed, it significance was revived in the mid-20th century in a series of lectures by Lord Patrick Devlin, the distinguished English judge. 264 In those lectures, Lord Devlin advanced the normative principle that the criminal law ought to be used only to enforce morals, defending morality as the proper organising principle for criminalisation against encroachment from other principles, such as the prevention of harm and principle of welfare, discussed below. Devlin contended that there existed a common positive morality that binds members of a society together and that “society may use the law to preserve morality in the same way as it uses it to safeguard anything else that is essential to its existence”. 265 According to Devlin, the “suppression of vice is as much the law’s business as the suppression of subversive activities”; legislating against immorality was just as necessary as legislating against treason. 266 Rather than being gifted divinely from God, morality was “populist”, derived from the shared moral beliefs of the majority of the community. Accordingly, morality could vary across cultures and history. A common morality could be determined by inquiring into what “every right-minded person” presumes to consider immoral. 267 Whether specific conduct ought to be criminalised depended upon whether it attracted a widespread feeling of reprobation—a mixture of “intolerance, indignation, and disgust”. 268 Morality for this purpose was concerned simply with the “distinction between virtue and vice, between good and evil so far as it affects our actions”. 269 261 262 263 264

265 266 267 268 269

For a review of the transition of criminal process from a religious to a secular system of justice, see J Hunter and K Cronin, Evidence, Advocacy and Ethical Practice (Sydney: Butterworths, 1995) pp 9–24. J Horder, Ashworth’s Principles of Criminal Law (8th ed, Oxford: Oxford University Press, 2016) p 23. J Horder, Ashworth’s Principles of Criminal Law (8th ed, Oxford: Oxford University Press, 2016) p 30. P Devlin, The Enforcement of Morals (London: Oxford University Press, 1965). This book has been described as a “classic example of a populist morality justification” for the criminal law: N Bamforth, Sexuality, Morals and Justice (London: Cassell, 1997) p 179. P Devlin, The Enforcement of Morals (London: Oxford University Press, 1965) p 11. P Devlin, The Enforcement of Morals (London: Oxford University Press, 1965) pp 13–14. P Devlin, The Enforcement of Morals (London: Oxford University Press, 1965) p 15. P Devlin, The Enforcement of Morals (London: Oxford University Press, 1965) p 17. P Devlin, The Enforcement of Morals (London: Oxford University Press, 1965) pp 18–19. [1.210]

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There were limitations, however, in this approach. Devlin acknowledged that a prima facie entitlement to use the criminal law to enforce morality could be rebutted by other considerations. These “loose principles” acknowledged the practical difficulties of removing criminal laws once moral attitudes had changed; the importance of respecting personal privacy as far as possible; and, most importantly in his view, that the criminal law should be concerned with established minimum rather than maximum standards of conduct. 270 Lord Devlin’s theory concerning morality and the criminal law must be understood in its political-historical context. His lectures were delivered as a conservative counter-offensive against the gathering political momentum in the 1950s to “liberalise” offences against homosexuality and prostitution. He suggested that the Wolfenden Committee (1957) was wrong to adopt the harm principle as the basis for decriminalising homosexual acts performed in private between consenting adults. 271 Devlin argued that, since there is a general abhorrence of homosexuality, society would be entitled to use the law to prohibit or impose some regulation on these objectionable practices. The moral standards of a community are based on those of the “reasonable man”. 272 Since no society can teach morality exclusively by religion, the law must base itself on Christian morals and, to the extent of its ability, enforce them: “[n]ot simply because they are the morals of most of us, nor simply because they are the morals which are taught by the established Church … but for the compelling reason that without the help of Christian teaching the law will fail.” 273

While the religious basis of Devlin’s normative claims is problematic, his proposal to use law to enforce common moral values is supported by empirical research that suggests people are much more likely to follow laws that they believe are morally correct, and much more likely to break laws that counter their views of morality. Drawing on social psychological research, Tom Tyler concluded: “People are more likely to obey rules if those rules accord with two important values: legitimacy and morality. Perhaps most centrally, people obey rules when they view those rules as being more legitimate. Further they obey them when the rules accord with their personal views about what is right and wrong.” 274

Devlin’s theory, however effective it might be in terms of enforcement, runs into problems. This first difficulty is the claim that a common shared morality can be identified. Although modern society is comprised of many different cultures and religions, Devlin maintained that it was possible to identify shared moral values. In his view, morality in England in the 1950s was derived “broadly speaking” from Christian teachings. At the start of the 21st century, such claims are difficult to sustain in secular societies where religion does not buttress the law, and where separation of Church and State is vigilantly defended and constitutionally entrenched. There have been attempts by “new natural law” theorists to conceive morality as an objective set of secular values rather than as divinely derived or populist morals. By separating morality from religion, “new” natural law philosophers such as John Finnis have attempted to 270 271 272 273 274

These principles are critically reviewed in N Bamforth, Sexuality, Morals and Justice (London: Cassell, 1997) p 181. Referring to the Report of the Committee on Homosexual Offences and Prostitution (London: HMSO, Cmnd 247, 1957). P Devlin, The Enforcement of Morals (London: Oxford University Press, 1965) p 24. P Devlin, The Enforcement of Morals (London: Oxford University Press, 1965) p 25. T Tyler, “New Approaches to Justice in Light of Virtues and Problems of the Penal System” in W Oswald, S Bieneck, J Hupfeld-Heinemann (eds), Social Psychology of Punishment of Crime (Chichester: Wiley –Blackwell, 2009) p 20; see also T Tyler, Why People Obey the Law (New Haven: Yale University Press, 1990).

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widen its legitimacy and acceptability. 275 Finnis has developed an argument, in the context of defending laws prohibiting homosexuality, that the criminal law should be used to reinforce moral conceptions of right and wrong conduct. He argues that notions of right and wrong in this context are determined objectively by reference to “basic human goods” that are necessary for human flourishing, such as life, knowledge, play and the like. The problem of subjectivity is addressed by reference to “practical reasonableness”. Goods such as “family” are conceived in exclusively heterosexual terms tied to procreative capacity, with the inevitable effect of relegating all sex acts outside of this framework to the category of moral worthlessness and an appropriate area for legal repression. As Nicholas Bamforth cogently points out, such secular theories of morality rest on barely concealed theological foundations: “In reality his arguments make little or no sense unless one supports a conservative interpretation of Catholic sexual morality”. 276 Both populist and new natural law theories of morality have the potential to discriminate against minority groups. The image of a reasonably harmonious society, bound by shared moral values, sits uncomfortably with the realities of modern secular, pluralistic and multicultural communities, within which moral disagreement rages over issues such as abortion, euthanasia, pornography, prostitution, drug use and the like. The stability of a “common morality” is questionable even in relation to apparently uncontroversial crimes, such as murder, which purport to uphold the most fundamental of moral principles, namely, the “sanctity of human life”. Consider, for example, the scope of admissible defences for women who kill abusive partners. Early approaches to the problem of “battered wives” admitted no excuse or defence (eg, provocation or self-defence). Indeed, the justification for denying such claims was cast in terms of the importance of maintaining the sanctity of human life and fending off moral and social disintegration. In recent years, however, the courts have made significant changes to the law to recognise the realities confronting victims who, subject to repeated psychological and physical violence, resort to deadly force in order to defend themselves: Chapters 5 and 6. Devlin’s contention that the enforcement of communal morality is necessary for “social preservation”—the disintegration thesis—is also contestable. The moral foundations of society do not, as an empirical fact, disintegrate as a result of the increasing secular nature of modern society. As the legal positivist HLA Hart pointed out, Devlin produced no evidence to support his contention that deviation from accepted morality, such as homosexuality, threatens the existence of society. No reputable historian has maintained this thesis, and there is indeed much evidence against it. As a proposition of fact, Hart suggested that it was entitled to no more respect than the Roman Emperor Justinian’s statement that homosexuality was the cause of earthquakes. 277 Hart then went on to criticise Devlin for moving from the acceptable proposition that some shared morality binds a society together to the “unacceptable proposition that a society is identical with its morality … so that a change in its morality is tantamount to the destruction of a society”. 278 The fact that morality may change in a permissive direction does not mean that society will be destroyed. Hart also criticised Devlin’s notion of the populist model of common morality on the ground of its capacity to trample on minority rights:

275 276 277 278

J Finnis, Natural Law and Natural Rights (Oxford: Oxford University Press, 1980). N Bamforth, Sexuality, Morals and Justice (London: Cassell, 1997) p 174. HLA Hart, Law, Liberty and Morality (Oxford: Oxford University Press, 1963) p 50. HLA Hart, Law, Liberty and Morality (Oxford: Oxford University Press, 1963) p 51. [1.210]

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“The central mistake is a failure to distinguish the acceptable principle that political power is best entrusted to the majority from the unacceptable claim that what the majority do with that power is beyond criticism and must never be resisted.” 279

It is questionable as to whether Devlin actually made the latter claim, but there may be a problem with distinguishing between common morality and popular prejudice. From a normative perspective, Hart proposed that using the criminal law to enforce common morality would significantly curb individual freedom, since it may be used to protect individuals from causing harm (both physical and moral) to themselves or used where no harm is caused at all. The Irish criminal law scholar, Paul McCutcheon, brought some fresh perspective to the Hart-Devlin debate. 280 Notwithstanding the sustained criticism levelled at Devlin’s moral theory, he concluded that it had “something of merit”: “[T]he limits of the criminal law cannot be set by reference to a ‘simple principle’, be it harm, individual liberty or whatever. Instead the boundaries of the law are shaped by a variety of forces that operate as broad guidelines rather than as clear-cut criteria. Once this is acknowledged it must be accepted that it is legitimate and appropriate to take moral considerations into account in determining the contents of the criminal law. In short, the law-maker may properly justify a prohibition on an appeal to moral reasons.” 281

This moral concept of the criminal law fits better with certain areas of the law. The moralising force of the criminal law is most powerfully felt in relation to the laws governing sexual conduct and sexuality. In Chapter 11, we shall explore the wide range of crimes against morality that proscribe “unnatural acts” or “acts against nature” as unlawful. These legal euphemisms deal with a catalogue of sexual acts, ranging from incest to bestiality to sexual acts between males. In relation to the latter, “homosexual offences”, unlike other sexual offences, apply irrespective of the age or consent of the parties involved. Indecency and obscenity laws have also similarly evolved to protect moral interests—though, as we shall see, the objectives of the law have shifted from protecting (religious) morality to protecting (secular) community standards of decency. A similar trend is also evident in relation to property offences (Chapter 12) and public order offences (Chapter 13), where the jury is invited to apply “community standards” to determine whether conduct is dishonest or offensive respectively. In developing the law governing sexual conduct, judges often appeal to the moral foundations of the criminal law. For example, in Shaw v DPP, 282 the House of Lords revived a common law offence of “conspiracy to corrupt public morals” in order to criminalise the publishers of the Ladies Directory, which listed contact details of prostitutes. The justification for taking action against conduct promoting prostitution and promiscuity was cast in moral terms. Viscount Simonds held that: “In the sphere of criminal law I entertain no doubt that there remains in the courts of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the State, and that it is their duty to guard it against attacks which may be more insidious because they are novel and unprepared for.” 283

See further, Chapter 8, [8.135]. 279 280 281 282 283

HLA Hart, Law, Liberty and Morality (Oxford: Oxford University Press, 1963) p 79. P McCutcheon, “Morality and the Criminal Law: Reflections on Hart-Devlin” (2002) 47 Criminal Law Quarterly 15. P McCutcheon, “Morality and the Criminal Law: Reflections on Hart-Devlin” (2002) 47 Criminal Law Quarterly 15 at 16. [1962] AC 220. Shaw v DPP [1962] AC 220 at 267. Viscount Simonds did not purport to “create” a new offence of conspiracy to corrupt morals, as is often claimed, but merely extended the existing offence of conspiracy, known at law, to a new category of case. For an excellent examination of the historical context of Shaw’s case, including its

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It would be wrong to conclude that a moral theory of criminal law necessarily supports the enactment of repressive and discriminatory sexual offences. Liberal theorists, like HLA Hart, proceed with the implicit assumption that morality would necessarily condemn homosexual conduct between consenting adults, a condemnation that liberalism would avoid by deeming such behaviour to be within the realm of private immorality that is none of the law’s business. As McCutcheon points out, this assumption is contestable in light of the significant shifts in community attitudes to homosexuality. 284 However, McCutcheon’s progressive approach to morality, which more closely tracks contemporary public opinion and community standards than Devlin’s approach discussed above, remains vulnerable to “law and order” populism. An alternative approach is to construct morality inclusively around a wider range of fundamental principles and values, such as equality before the law, fairness and privacy. We examine the potential to reconstruct doctrinal concepts, such as indecency and the “reasonable person”, using these values in Chapter 11, [11.145]. While it may be conceded that many serious offences (such as offences against the person and property crimes) have a moral dimension, the modern criminal law does not universally promote or enforce any particular conception of morals. The bulk of offences lack any explicit moral foundation, being essentially regulatory in nature—such as motor traffic regulations. Even in relation to the question of criminal responsibility, the commitment to moral blame is weakened by the rise of strict and absolute liability offences that dispense with fault. As explored above, this trend toward technocratic and actuarial models of criminal justice has largely “de-moralised” our notions of crime and criminal responsibility. The most important insight in relation to the role of morals in the criminal law is its symbolic and ideological effect; that is, the widespread belief in the community that the criminal law serves a moral function by creating and reinforcing moral consensus and conformity. Once again, consistent with Garland’s approach to punishment explored at [1.100], it is the symbolic and expressive functions of criminal laws in upholding core moral values that are more important than their instrumental effects.

Law reform and hidden liberal agendas [1.215] Law reform projects are generally preoccupied with promoting certainty, coherence and rationality in the criminal law. Such projects rarely explicitly draw on theory to inform law reform or policy development. A notable exception was the review of the law of consent by the Law Commission in the United Kingdom, where the Commission engaged (albeit in an appendix) in an extended philosophical discussion divided into two stages: Stage One examined the criminalisation of harmful activity from the approaches of liberalism, paternalism and legal moralism; Stage Two examined the impact of criminalisation on the process values, such as the importance of “the Rule of Law” and efficiency in the administration of justice. 285 The justification for criminalisation is similarly overlooked in law reform exercises in Australia. That said, the Commonwealth has issued general guidance to its agencies on when to resort to criminalisation as opposed to some other form of

284 285

impact upon the Hart-Devlin debates about the proper relationship between law and morality, see H Mares, “Shaw v Director of Public Prosecutions (1961)” in H Mares, I Williams and P Handler (eds), Landmark Cases in Criminal Law (London: Bloomsbury Press, 2017) Ch 11. P McCutcheon, “Morality and the Criminal Law: Reflections on Hart-Devlin” (2002) 47 Criminal Law Quarterly 15 at 36. Law Commission (England and Wales), Consent in the Criminal Law, Consultation Paper No 39 (London: HMSO, 1995) pp 245–283. Appx. C contained a review of the competing theories of liberalism, paternalism and legal moralism, ignoring entirely feminist and critical scholarship on gender violence, privacy, consent and autonomy. [1.215]

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regulation. 286 In considering whether to define a given provision as criminal or civil in character, the Guide noted that the most important factor to be considered is the effect of a criminal conviction. 287 Other questions relevant to determining whether criminalisation was warranted included the following: • What is the nature of the conduct seeking to be deterred? What are the circumstances surrounding the proposed provision? • Where does the proposed provision fit in the overall legislative scheme? • Does the conduct seriously harm other people? • Does the conduct in some way so seriously contravene our fundamental values as to be harmful to society? • Is it justified to use criminal enforcement powers in investigating the conduct? • How is similar conduct regulated in the proposed legislative scheme and other Commonwealth legislation? • If the conduct has been regulated for some time, how effective have existing provisions been in deterring the undesired behaviour? • What level and type of penalties will provide appropriate deterrence?

Promoting the Public Interest and Community Welfare [1.220] Rather than appeal to divinely-inspired or universal moral principles, judges and

legislators today tend to justify the use of criminal law in the more acceptable, secular terms of promoting the public interest, community values and public welfare. While appearing to be neutral and objective, these concepts are highly malleable political notions. Feminist scholarship has revealed that the public–private dichotomy is a malleable legal construct, with the power to render discrimination against women, children, gay men, lesbians and other minority groups legally invisible. As we shall explore in Chapter 2, [2.250], the notion of “public” is shaped by the “private”, and vice versa. At the substantive level, public interest and public policy are built into the structure of some criminal offences and defences. For example, in relation to the law of assault, the courts have placed “public interest” limitations on the scope of consent as a defence. As we explore in in Chapter 10 and Chapter 11, [10.165] and [11.15], public interest limitations have played a controversial role in determining the legality of ostensibly consensual acts of sadomasochism, revealing its malleability and contingency in the criminal law. There is a danger that the public interest simply serves as a legal device for cloaking the political and moral views of individual judges in neutral and legitimate terms. On the other hand, it may be argued that the increasing judicial resort to the language of public interest, community values and welfare reflects a changing conception within the judiciary of the courts as “community institutions”. 288 Gauging the public interest [1.225] How then should our governments, legislatures and courts gauge the public’s interests, values and welfare in reforming legal doctrine? Obviously, systematically gathering 286 287 288

See Attorney-General’s Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (September 2011). Attorney-General’s Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (September 2011) p 13. A Mason, “The Courts as Community Institutions” (1998) 9 Public Law Review 83. For a collection of essays debating the roles and limits of judicial versus parliamentary law-making, see T Campbell and J Goldsworthy (eds), Judicial Power, Democracy and Legal Positivism (Aldershot: Ashgate, 2000) Chs 10–18.

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evidence of “public opinion” on specific issues would be one approach. In the United States, Paul Robinson and John Darley undertook an empirical study on public attitudes to blameworthiness that revealed significant discrepancies between public opinion on the assignment of criminal responsibility and legal doctrine. 289 In the area of self-defence, for example, their research revealed a gap between public opinion and legal doctrine: public opinion was extremely supportive of “self-help remedies” far in excess of those permissible under the law. Since legal observance among citizens is influenced by the extent to which laws are believed to be morally sound, the authors concluded that the efficacy of the criminal law would be significantly improved by “closing this gap”. Indeed, the expansion of homeowner or dwelling defence laws in Australia and other jurisdictions may be viewed as such an effort to bring legal doctrine into closer alignment with community expectations about what is a reasonable response to violent home-invasions. Similar research done in the United Kingdom by Barry Mitchell—examining public attitudes to homicide—has revealed how the law diverges from the community on the significance of predisposition/planning, victim-status, and underlying motives (for example, mercy killings versus unintentional killings during the commission of violent crimes). 290 Public attitudes to the various scenarios revealed the complexity of factors that influence assessments of blameworthiness in murder cases and the difficulty of encompassing the wide range of scenarios within a single offence called murder and a mandatory penalty of life imprisonment. Mitchell’s research also revealed that unplanned killings in the course of committing other crimes (known as felony murder) were viewed as one of the more culpable forms of homicide, notwithstanding the moral objections levelled at “constructive homicide” by legal scholars. 291 However, these findings did not lead the Law Commission to re-evaluate whether constructive forms of homicide liability had any place in the modern criminal law. By contrast, most Australian and American jurisdictions, consistent with the general intuitions of justice and blameworthiness, retain some version of felony-murder: see Chapter 9, [9.130]. Research on public attitudes to terrorism offences in Australia has revealed similarly interesting insights. One scenario-based study by Mark Nolan revealed that lay perceptions of blameworthiness differed between identical terrorist acts depending on the type of motive possessed by the suspect. The identification of “religious motives” (which, as we shall explore in Chapter 15, has been integrated into the definition of “terrorism” in Australia) were generally identified as more blameworthy, raising the risk of attitudinal bias among both juries and judges. 292 A broader study, using the data gathered by the 2007 Australian Survey of Social Attitudes, revealed that perceptions of an increased threat of a terrorist attack correlates with expressions of support for tougher counter-terrorism measures. The implications of this data is that during times of heightened anxiety about terrorist attacks in Australia: 289 290

291

292

See P Robinson and J Darley, Justice, Liability and Blame (Boulder, CO: Westview, 1995). B Mitchell, “Further Evidence of the Relationship Between Legal and Public Opinion on the Law of Homicide” [2000] Criminal Law Review 814. The research was a Government–commissioned review of homicide in the UK: see Law Commission (England and Wales), Partial Defences to Murder, Final Report No 290 (London: HMSO, 2004) [2.19] –[2.35]. For an excellent article examining the justification for retaining constructive malice in homicide see P Bindon, “The Case for Felony Murder” (2006) 9(2) Flinders Law Journal 149. In a study consisting of 822 interviews, 53% of interviewees rated the scenario of a killing which occurred during a burglary as the most serious form of homicide: B Mitchell, “Public Perceptions of Homicide and Criminal Justice” (1998) 38(3) British Journal of Criminology 453 at 459. See also B Mitchell, “Further Evidence of the Relationship Between Legal and Public Opinion on the Law of Homicide” [2000] Criminal Law Review 814 and BJ Mitchell and JV Roberts, “Sentencing for murder: exploring public knowledge and public opinion in England and Wales” (2012) 52 (1) British Journal of Criminology 141. See M Nolan, “Lay Perceptions Of Terrorist Acts and Counter-Terrorism Responses” in M Gani and P Mathew (eds), Fresh Perspectives on the “War on Terror” (Canberra: ANU E Press, 2008), at http:// www.epress.anu.edu.au/war_terror_citation.html (cited August 2016). [1.225]

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“Public discourse will be steered towards discussions of the need for the extension of police powers to address terrorism. The complex interplay of media exposure, political initiative and public expressions of grief and outrage will facilitate a focus on measures of combating terrorism. This focus will make it less possible for a rational debate and a consideration of human rights to occur.” 293

The difficulty with the public interest, and use of public opinion research to substantiate these claims, is that they are neither neutral nor autonomous. They are highly contingent upon historical, political and social contexts. Public responses to particular conduct are often shaped by moral panics and the politics of law and order. As Stanley Cohen observed in Folk Devils and Moral Panics, his classic sociological study of “Mods” and “Rockers” in post-war Britain: “Societies appear to be subject, every now and then, to periods of moral panic. A condition, episode, person or group of persons emerges to become defined as a threat to societal values and interests; its nature is presented in a stylized and stereotypical fashion by the mass media; the moral barricades are manned by editors, bishops, politicians and other right-thinking people … Sometimes the panic passes over and is forgotten, except in folk-lore and collective memory; at other times it has more serious and long-lasting repercussions and might produce such changes as those in legal and social policy or even in the way the society conceives itself.” 294

As we shall examine in Chapter 14, the enactment of Australian drug laws has been influenced by successive domestic and international moral crusades. These began with a campaign against the Chinese vice of opium-smoking in the 19th century, and continue today in the form of an international “War Against Drugs”. A fundamental difficulty with demands to make criminal law better conform to public opinion is that it overlooks the role of criminalisation itself in forming and reinforcing public attitudes to certain types of conduct —moral views held within the community do not exist in a legal vacuum. The increasing public awareness of “addiction”, “domestic violence” and “drink-driving” as crimes has dramatically changed the community’s moral outlook on previously acceptable conduct. In this way, the law, through education and enforcement policies, plays a role in creating and (re)forming public opinion towards particular wrongdoing. While public interest and public opinion are malleable concepts, and thus dubious guides for criminalisation, they have considerable symbolic and rhetorical force. As Wells and Quick have observed: “Both in terms of the developing definition of crime and in terms of its enforcement, the intangible phenomenon of ‘public opinion’ and, perhaps more importantly, perceptions of that phenomenon, are enormously influential.” 295

Gauging the welfare of the community [1.230] The idea that the criminal law should be applied to promote community

welfare—what has been termed the “principle of welfare”—arises from the dissatisfaction with asocial individualism of JS Mill’s harm principle and the paternalism of Lord Devlin’s legal moralism as the appropriate guides for the criminal law. 296 It has been argued that societal welfare, though admittedly broad, is a tangible concept capable of promotion by the

293

294 295 296

L Roberts and D Indermaur, What Australians Think About Crime and Justice: Results from the 2007 Survey of Social Attitudes—Research and Public Policy Series 101 (Canberra: Australian Institute of Criminology, 2009) p 25. S Cohen, Folk Devils and Moral Panics (London: Paladin, 1973) p 9. C Wells and O Quick, Lacey, Wells and Quick - Reconstructing Criminal Law: Texts and Materials (4th ed, Cambridge: Cambridge University Press, 2010) p 28. C Wells and O Quick, Lacey, Wells and Quick - Reconstructing Criminal Law: Texts and Materials (4th ed, Cambridge: Cambridge University Press, 2010) p 28.

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criminal law. 297 In the form advanced by Nicola Lacey, the principle of welfare seeks to reconstruct the criminal law around a different set of collective, as opposed to individual, interests. Jeremy Horder, more recently, has framed these interests as those “public goods” that are necessary to support “lives in common”. 298 From this perspective, what is (or more precisely what should be) considered a crime depends upon an evaluation of what is in the “best interests” of society as a whole. Thus, legislation prohibiting activities which may lead to environmental damage can be supported on the basis that it promotes the well-being of the eco-system, and health and amenity of the whole community. A similar justification may be made for offences relating to enhancing public safety, whether such threats arise from terrorists or drivers distracted by their mobile phones. Thus, the welfare principle provides justification for prohibiting a wide range of “consensual” conduct that might not support criminalisation under the harm principle (because the conduct which causes or risks only harm to oneself). Prohibiting the failure to wear seatbelts or bike helmets may be legitimate on the ground that the resulting negative social and public health effects may impose excessive burdens upon the community’s healthcare system and social services. By the judicious use of the criminal law to better regulate such activities, burdens on the whole community may be avoided, or at least mitigated. Like the principle of utility, the principle of welfare opens a wide, potentially unlimited, spectre of criminalisation. Lacey seeks to impose limits on the principle of welfare by grounding it in those values, needs and interests that society, through its democratic processes, regards as fundamental to its collective social functioning, and thus requiring protection by the criminal law. These community values, needs and interests are democratically rather than morally derived, and so can be distinguished from Lord Devlin’s approach. It also recognises that collective interests extend to addressing matters of individual concern such as “the fulfilment of certain basic interests such as maintaining one’s personal safety, health and capacity to pursue one’s chosen life plan”. 299 If we accept this conception, then the dichotomy between liberalism and welfare appears to be overstated, with the effect that much “liberalism orthodoxy is welfarist”. 300 On this view, the principle of welfare serves as a balance or check on the principle of autonomy. For example, the voluntary taking of drugs may be considered an expression of personal autonomy—what Horder has termed “lifestyle autonomy”. 301 Although some self-harming conduct is legitimately tolerable under the harm principle, the preservation of social welfare may call for its criminalisation because of the costs—financial and social—to the community. We explore the tension between the principles of autonomy and welfare in our discussion of drug prohibition in Chapter 14, [14.20]ff. 297

298

299 300

301

AV Lundstedt, Legal Thinking Revisited (Stockholm: Almqvist and Wiksell, 1956) p 137. See also N Lacey, State Punishment: Political Principles and Community Values (London/New York: Routledge, 1988) Chs 2 and 7; N Lacey, Unspeakable Subjects (Oxford: Hart Publishing, 1998) Ch 2. Discussing the renowned legal positivist philosopher Joseph Raz, Horder notes that the concept of “public good” is much more than the aggregation of individual goods, requiring the identification of those goods that serve the interests of the community as a whole: J Horder, Ashworth’s Principles of Criminal Law (8th ed, Oxford: Oxford University Press, 2016) p 47. N Lacey, State Punishment: Political Principles and Community Values (London/New York: Routledge, 1988) p 104. N Lacey, Unspeakable Subjects (Oxford: Hart Publishing, 1998) p 54. Liberal scholars rarely subscribe to pure models of liberalism or individual autonomy, recognising a wide range of restraining principles, policies and values. Respect for human rights has gained much ground as a limiting set of principles following the Human Rights Act 1998 (UK): see generally J Horder, Ashworth’s Principles of Criminal Law (8th ed, Oxford: Oxford University Press, 2016) Ch 3. The idea is based on the right of each person to choose how to live his or her life, which finds expression in JS Mill’s harm principle: J Horder, Ashworth’s Principles of Criminal Law (8th ed, Oxford: Oxford University Press, 2016) pp 68ff. [1.230]

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The difficulty with an unqualified acceptance of welfare as the basis for criminalisation is defining with any precision its goals. As the Swedish legal realist, Anders Vilhelm Lundstedt, has noted, the goals of social welfare extend broadly to include: “[s]uch things as suitable and well-tasting food, appropriate and becoming clothes … dwellings furnished in the best and most comfortable way, security of life, limb and ‘property’, the greatest possible freedom of action and movement … in brief, all conceivable material comfort as well as the protection of spiritual interests.” 302

These are obviously very general aspirations and there are dangers, even when the identification of these goals is entrusted to the democratic process, that applying the principle of welfare may lead to over-criminalisation and to harsh and intrusive policies of law enforcement. In most instances, the principle of welfare is not conceived as an overriding principle but, rather, as a rival to the harm principle that mediates and limits arguments based on the importance of individual autonomy. Though in Ashworth’s liberal-welfare framework, the danger is that the promotion of communal interests is legitimate only to the extent that they do not significantly encroach upon individual autonomy and personal freedom. Across many compartments of the criminal law, there is a conflict or tension between individual and collective interests. As we shall explore in Chapters 10 and 11, the defence of consent in relation to offences against the person purports to uphold the liberal principle of autonomy (individual interest), but is subject to limits deemed necessary in the public interest (community interests). Legal debate is trapped within an either/or dialogue between liberalism and welfare: either the law should prioritise the interests of individuals over community, or vice versa. As we shall explore in our discussion of sexual assault in Chapter 11, it is possible to transcend this dichotomy. Rather than being viewed as rival models, autonomy and welfare may be drawn into a more constructive dialogue, one that offers the prospect of remodelling consent through the adoption of standards based on positive communication and disclosure of risks. As we shall explore in the next section, the pervasive disillusionment with welfarist models has fostered cultures of control and security. To counter this punitive turn in criminal justice in the last two decades of the 20th century, some theorists have sought to return to the notion of freedom as the aim of the system—though defining this concept as positive social freedom rather than negative individual liberty. For convenience, we have grouped these various writings under the heading “Social freedom and republican theories of criminal justice”.

Social Freedom and Republican Theories of Criminal Justice [1.235] Evidence of social exclusion caused and compounded by the criminal justice system

has led some scholars to rethink criminal justice models. David Garland in The Culture of Control describes the emergence of a “crime complex” in the United States and United Kingdom in the late 20th century. Garland traces the shifts in policing, criminalisation and punishment from “penal welfarism” to the “penal modality”, with the latter justifying new punitive “law and order” measures. 303 Rejecting these models of crime control, in the final chapter of this text, Garland advocates a more “inclusionary” model of criminal justice. In similar terms, Andrew Sanders and Richard Young have argued for a remodelled criminal justice system, the principal purpose of which should be the maximising of “freedom”. 304 But freedom, like equality, is a deeply contested notion that yields different visions depending on 302 303 304 70

AV Lundstedt, Legal Thinking Revisited (Stockholm: Almqvist and Wiksell, 1956) p 140. D Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Chicago: University of Chicago Press, 2001). A Sanders and R Young, Criminal Justice (2nd ed, London: Butterworths, 2000). [1.235]

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the particular political tradition. While theories based on freedom are packaged in different forms, they share similar characteristics. They reject exclusionary, retributive and utilitarian models, aligning themselves more closely to victim rights, human rights and restorative justice movements. Such theories may be distinguished from communitarian, welfare models (discussed above) by the location of freedom, liberty and non-domination at their core. In this section, we focus on the contribution of one such model—based on republican principles developed by two leading Australian theorists—that seeks to promote a socially inclusive idea of freedom which could be used to guide the reform of the criminal justice system. In Not Just Deserts—A Republican Theory of Criminal Justice, John Braithwaite and Phillip Pettit propose a comprehensive normative theory of criminal justice. 305 The criminal justice system is conceived in terms of interrelated sub-systems of investigation, prosecution, guilt-determination and punishment. This comprehensive aspect of republican theory is consistent with Lacey’s approach to “criminalization”. Braithwaite and Pettit provide new theoretical resources, not merely for reconstructing the aims of punishment around nonretributive goals (as the title of their book suggests), but also for redefining the aims and scope of the criminal law and criminal process. What follows is necessarily a brief description of a complex theory that combines insights from criminological and sociological research on crime (particularly theories of reintegrative shaming), and the political philosophy of republicanism. 306 Using insights from both criminology and political philosophy, Not Just Deserts builds a case against the retributive and utilitarian models for the criminal justice system. Retributive justice is rejected by the authors because it has no purpose. It conceives criminal justice as the means of ensuring offenders receive their “just deserts” (that is, punishment proportionate to their wrongdoing) rather than in terms of ends or consequences. While deterrence is not susceptible to this criticism, the utilitarian model is also rejected because maximising happiness or the welfare of the majority is a potent threat to individual freedom. Utilitarianism renders rights unstable: “It fails to provide the criminal justice authorities with reason to take the rights seriously, attaching moral as well as legal force to them”. 307 Furthermore, where necessary to maximise overall happiness, utilitarian models would subscribe to penalisation of the innocent, “preventionism” and over-criminalisation. 308

Republican inequality perspectives on crime and criminal justice [1.240] Republicanism integrates explanatory and normative accounts of crime. Braithwaite’s research has identified that inequality was an important factor in understanding criminal behaviour, discovering striking correlations between levels of homicide and inequality with society. Low-crime societies were characterised by active community engagement in defending the institutions of freedom. As crime is conceived as the domination by one person over another, legal responses to crime must promote freedom as non-domination. Freedom, equality and community are “key explanatory variables and central normative ideals”. 309

305 306

307 308

J Braithwaite and P Pettit, Not Just Deserts —A Republican Theory of Criminal Justice (Oxford: Clarendon Press, 1990). J Braithwaite and P Pettit, Not Just Deserts—A Republican Theory of Criminal Justice (Oxford: Clarendon Press, 1990). See also J Braithwaite, Crime, Shame and Reintegration (Sydney: Cambridge University Press, 1989) and P Pettit, Republicanism—A Theory of Freedom and Government (Sydney: Oxford University Press, 1997). J Braithwaite and P Pettit, Not Just Deserts—A Republican Theory of Criminal Justice (Oxford: Clarendon Press, 1990) p 44. J Braithwaite and P Pettit, Not Just Deserts—A Republican Theory of Criminal Justice (Oxford: Clarendon Press, 1990) p 52. [1.240]

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Not Just Deserts offers a comprehensive and consequentialist theory of criminal justice. According to this theory, the purpose of the criminal justice system should be directed to promoting a conception of republican liberty called “dominion” or “freedom as nondomination”. 310 Republicanism is concerned with freedom, though it is not the conception of liberty offered by classical liberalism. Both in its negative and positive forms, liberalism envisages an asocial concept of individual freedom that must not be interfered with by others. Republican theory reconceives freedom in social and relational terms: “Republicans differ from classical liberals … in arguing for a different interpretation of what the ideal of negative liberty is more or less bound to involve. According to the classical liberal interpretation, the sort of condition required is that of being left alone, a condition exemplified par excellence in the solitary individual. According to the republican interpretation, it is the condition of citizenship or equality before the law.” 311

Braithwaite has summarised “dominion” as follows: “Dominion is a republican conception of liberty. Whereas the liberal conception of freedom is the freedom of an isolated atomistic individual, the republican conception of liberty is the freedom of a social world. Liberal freedom is objective and individualistic. Negative freedom for the liberal means the objective fact of individuals being left alone by others. For the republican, however, freedom is defined socially and relationally. You only enjoy republican freedom—dominion—when you live in a social world that provides you with an intersubjective set of assurances of liberty. You must subjectively believe that you enjoy these assurances, and so must others believe. As a social, relational conception of liberty, by definition it also has a comparative dimension. To fully enjoy liberty, you must have equality-of-liberty with other persons. If this is difficult to grasp, think of dominion as a conception of freedom that, by definition, incorporates the notions of liberté, égalité, and fraternité; then you have the basic idea.” 312

This model of freedom, dominion, has three components. A person enjoys full dominion if and only if: • the person enjoys no less a prospect of liberty than that which is available to other citizens; • this condition is common knowledge among citizens, so that the person and nearly everyone else knows that the person enjoys the prospect mentioned, they and nearly everyone else knows that the others generally know this too, and so on; and • the same person enjoys no less a prospect of liberty than the best that is compatible with the same prospects for all citizens. 313 It is the subjective aspect of dominion which sets Braithwaite and Pettit’s theory apart from other consequentialist theories such as utilitarianism. By defining their goal in such a way, republican theory aims to protect individuals in a way that other consequentialist theories do not. 314 Braithwaite and Pettit argue that securing this state of “subjective dominion” is critical to the protection of individual rights: 309

310 311 312 313 314

J Braithwaite, Regulation, Crime, Freedom (Aldershot: Ashgate, 2000) p xii. This collection of previously published essays and articles provides an excellent overview of the key elements of republican theory and the empirical research that underscored its development and refinement. J Braithwaite and P Pettit, Not Just Deserts—A Republican Theory of Criminal Justice (Oxford: Clarendon Press, 1990) p 51. J Braithwaite and P Pettit, Not Just Deserts—A Republican Theory of Criminal Justice (Oxford: Clarendon Press, 1990) p 58. J Braithwaite, “Inequality and Republican Criminology” in J Hagan and R Peterson (eds), Crime and Inequality (Stanford, CA: Stanford University Press, 1995) p 279. J Braithwaite, “Inequality and Republican Criminology” in J Hagan and R Peterson (eds), Crime and Inequality (Stanford, CA: Stanford University Press, 1995) pp 64–65. A von Hirsch, Censure and Sanctions (Oxford: Oxford University Press, 1993) p 22.

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“One of the most common ways in which dominion can be reduced in a society is through subjective erosion: through people, even perhaps those people who have reasonable liberty prospects, coming to lose faith in the prospects provided … Montesquieu writes in suitable vein ‘The political liberty of the subject is a tranquillity of mind, arising from the opinion each has of his [or her] safety. In order to have this liberty, it is requisite the government be so constituted as one man [or woman] need not be afraid of another’.” 315

Braithwaite and Pettit offer the example of convicting an innocent person to placate an angry mob. A republican will not countenance this, even where a utilitarian might, because to do so would threaten the right not to be convicted of an offence unless guilty: “It is part of the very concept of having dominion—that a person cannot enjoy dominion fully if she [or he] perceives or suspects that the agents of the state, or indeed any other powers in the land, will not be scrupulous in respecting her [or his] rights.” 316

To assist in interpreting the abstract goal of dominion, republican theory identifies four general presumptions, which serve as middle-range principles: • Parsimony is the presumption in favour of parsimony, or in other words, the “presumption … in favour of less rather than more criminal justice activity”. This presumption arises because any criminal justice intervention does immediate and unquestionable damage to someone’s dominion (whether the intervention be investigation, arrest, detention, prosecution or punishment), whereas the benefits of the initiative are always of “a distant and probabilistic character”. Thus, the onus of proof should be on those justifying any intervention. • Checking of power is the presumption that the power enjoyed by criminal justice authorities will always be subject to checks. This presumption arises because, in its absence, people’s subjective dominion is threatened. It supports the recognition of rights (such as the right to a fair trial), as well as checking mechanisms such as accountability mechanisms. • Reprobation is the presumption in favour of reprobation, or disapproval of crime, based on the recognition that such reprobation promotes dominion by reducing crime, and also by improving people’s understanding of what the criminal justice system does (which promotes subjective dominion). • Reintegration is the presumption that the criminal justice system “should pursue reintegration in the community, in particular the restoration of dominion, for those citizens who have had their dominion invaded by crime or punishment”. 317 The republican regulatory approach has implications for a wide range of debates in the criminal law, including: • the objectives and priorities of policing; • the acceptable limits of surveillance, investigation and prosecution; • the scope and type of criminal laws; and • sentencing. 318 315 316 317 318

J Braithwaite and P Pettit, Not Just Deserts—A Republican Press, 1990) p 68 (footnotes omitted). J Braithwaite and P Pettit, Not Just Deserts—A Republican Press, 1990) p 76. J Braithwaite and P Pettit, Not Just Deserts—A Republican Press, 1990) p 91. J Braithwaite and P Pettit, Not Just Deserts—A Republican Press, 1990) pp 90–132.

Theory of Criminal Justice (Oxford: Clarendon Theory of Criminal Justice (Oxford: Clarendon Theory of Criminal Justice (Oxford: Clarendon Theory of Criminal Justice (Oxford: Clarendon

[1.240]

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As a consequentialist theory, the purpose of the criminal justice system and its integrated sub-systems is conceived in terms of the maximisation of dominion. Unlike the harm principle, republicanism has a positive target—the promotion of dominion—rather than a negative one—the prevention of harm to others. Like all of the theories discussed above, republicanism has strengths and weaknesses. Dominion is conceived in terms of “citizenship” or “equality before the law”, and a central principle is “equality-of-liberty-opportunity”. By using these concepts, Braithwaite and Pettit hope to avoid the limitations of formal or strict equality, and therefore offer remedies for individuals and groups who have typically been denied liberty by virtue of their status as non-citizens, such as women, children and Indigenous persons. However, the right to equality, including the right to equality of opportunity, has been subject to extensive criticism. As we shall explore in Chapter 2, critical scholars and feminist theorists have expressed scepticism as to whether equality jurisprudence, conceived as the right to same treatment rather than respect for difference, can address entrenched structural disadvantage: [2.205]–[2.220]. The failure of anti-discrimination laws based on promoting “equality of opportunity” to remedy gender and race-based disadvantage is a challenge that republican theorists must confront and resolve. The centrality of “rights” to the promotion of republican goals may also attract criticism. As we shall explore in Chapter 2, there is a large body of literature examining the value and dangers of casting interests in these terms—the so-called “critique of rights debate”: [2.135] and [2.250]. There is a strong tendency in liberal discourse to “fetishise” rights. Legal rights are considered as “self-executing”, taking no account of the social and cultural disadvantage of individuals who theoretically possess particular rights. While the structural and historical limitations of rights must be acknowledged, republicanism attaches considerable value to the instrumental and symbolic functions of rights. From a symbolic perspective, rights as a juridical form—particularly those designated as fundamental or human rights—have a powerful moralising and normative effect. Rights need not be abandoned, but redefined and harnessed to promote the republican goal of dominion. Groups that have been traditionally disenfranchised are rightfully sceptical of the emancipatory potential of social liberalism based on liberté, égalité, and fraternité (which should be understood to include sorority). In re-fashioning concepts and rights in a manner that most effectively promotes a social concept of liberty—“freedom as non-domination”—republican theorists must be sensitive to these issues of structural disadvantage. What is the likely prognosis for reconfiguring the criminal justice system around social freedom and republican values? While providing normative resources for critique, the theorists are realistic about the limited influence of inclusionary models in the prevailing political climate of “law and order”. As Andrew Sanders and Richard Young have observed in the context of the United Kingdom: “The contrast between the integrated and the excluded is as striking in the field of criminal justice as in other fields of social policy. Arguably, major advances in liberty are only ever secured in the United Kingdom when the middle classes are threatened. If so, we can expect this divided society to manifest these exclusionary processes for a long time to come, and for ‘freedom’ in the sense we use it here to be given little weight by policy-makers and practitioners.” 319

The culture which promotes penal populism and law and order is not beyond contestation. Indeed, the growing acceptance of the relevance of human rights norms to the future of criminal law and justice in Australia (in practitioner, policy as well as academic communities) 319

A Sanders and R Young, “From Suspect to Trial” in M Maguire, R Morgan and R Reiner (eds), The Oxford Handbook of Criminology (4th ed, Oxford: Oxford University Press, 2007) p 971.

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offers a new framework of accountability. 320 The fundamental importance of this perspective, which is used to assess the legitimacy of both criminalisation and law enforcement, is now legally underscored by the domestic incorporation of human rights legislation in two jurisdictions in Australia. The adoption of human rights legislation in the Australian Capital Territory and Victoria is discussed further in Chapter 2, [2.150].

Regulatory Theories of Criminal Justice [1.245] An increasingly significant theoretical perspective bearing on criminalisation, and

more significantly decriminalisation, is regulatory theory. 321 Within this theory, criminalisation is the ultimate, but not always the most effective tool for regulating conduct and promoting legal compliance. The field, pioneered by Ayres and Braithwaite in Australia, aimed to transcend the deregulation debate of the late 1980s, which pitched State-centric “command and control” regulation against private sector self-regulation based on incentives rather than penalties. Drawing on empirical studies across various fields, responsive regulation has become a dominant model for rethinking “strategies of governing” activities of both individual actors and corporations, seeking to strike a balance between persuasion (creating incentives) and coercion (imposing costs or penalties) as a means for achieving legal compliance. To visually represent the interaction between persuasion and coercion, Ayres and Braithwaite developed the Enforcement Pyramid, see Diagram 1. Diagram 1: Enforcement pyramid

Source: This version of the pyramid appears in J Braithwaite, “Inequality and Republican Criminology” in J Hagan and R Peterson (eds), Crime and Inequality (Stanford, CA: Stanford University Press, 1995) p 299.

The pyramid maximises the use of non-legal, informal modes of promoting compliance. Regulatory responses are escalated in the face of non-compliance, first through civil law and 320

321

See generally J Gans, T Henning, J Hunter and K Warner, Criminal Process and Human Rights (Sydney: Federation Press, 2011); R Hogg, “Resisting a Law and Order Society” in T Anthony and C Cunneen (eds), The Critical Criminology Companion (Sydney: Hawkins Press, 2008) p 287. I Ayres and J Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (Oxford: Oxford University Press, 1992). See generally, A Freiberg, The Tools of Regulation (Sydney: The Federation Press, 2010) and S Bottomley and S Bronitt, Law in Context (4th ed, Sydney: The Federation Press, 2012) Ch 9. [1.245]

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administrative measures, with regulatory responses with more coercive effect, such as license revocation, criminalisation and, as last resort, punishment and incapacitation. Neil Gunningham summarises the “dialogic regulatory culture” as follows: “This approach conceives of regulation in terms of in which regulators signal to industry their commitment to escalate their enforcement response whenever lower levels of intervention fail. Under this model, regulators begin by assuming virtue (to which they respond with cooperative measures) but when their expectations are disappointed, they respond with progressively punitive/coercive strategies until the regulatee conforms.” 322

The pyramid has been influential in shifting regulatory strategies from “zero tolerance” prosecution policies to more responsive strategies that prioritise education and prevention, as well as exploring hybrid responses that extend the regulatory reach of enforcement agencies by enlisting assistance from third-party actors, under the banner of “Smart Regulation”. 323 The literature on regulatory law is voluminous. 324 The enforcement pyramid has influenced approaches to regulation across a wide range of fields, from occupational health and safety, environmental regulation, public health and corporations law. 325 The potential application of the enforcement pyramid to other fields, such as domestic violence, is explored in Chapter 13, [13.45]. As noted at [1.95], the regulatory pyramid has also been reconceptualised within the framework of restorative justice. The main criticisms levelled at early accounts of these regulatory models relate to their failure to give adequate attention to legitimacy issues, specifically the rights of persons and entities subjected to regulatory actions, and overlooking the “constitutional values of proportionality and consistency, which are themselves rooted in the right to fair and equal treatment”. 326 That said, later work by Braithwaite has grounded their theory of criminal justice in republican ideals, which demand transparency and checks and balances in the exercise of state power. These principles should extend, by implication, to the regulatory strategies at all levels of the pyramid!

CONCLUSION: INTEGRATING CRIMINAL LAW AND THEORY [1.250] As the introductory quotations to this chapter suggest, theory offers the tantalising

prospect of a deeper, more authentic, understanding of the criminal law. Yet, in relation to the criminal law, theory very often fails to live up to its promise. Students, teachers and practitioners may legitimately question the value of theoretical perspectives on the criminal law. After all, competent legal analysis and a lifetime of criminal practice may be undertaken without any conscious intrusion of theory. However, ideas about the criminal law—how it works and ought to work—do inform our understanding of the process and substance of the criminal law. Whether packaged as “common sense” or “fundamental principles” guiding the framing of offences, theories about how the law is or should be constructed are influential both in instrumental and symbolic terms. As we shall see in Chapters 2 and 3, liberalism has played a powerful role in the modern constitution of the criminal law, especially in the 322 323

324

325

326

N Gunningham, “Enforcement and Compliance Strategies” in R Baldwin, M Cave and M Lodge (eds), The Oxford Handbook of Regulation (Oxford: Oxford University Press, 2010) pp 120–121. This extension to responsive regulation is explained in N Gunningham, “Enforcement and Compliance Strategies” in R Baldwin, M Cave and M Lodge (eds), The Oxford Handbook of Regulation (Oxford: Oxford University Press, 2010). For a useful survey of the history and current debates in regulatory theory, as well as its impact across a range of legal fields, see R Baldwin, M Cave and M Lodge (eds), The Oxford Handbook of Regulation (Oxford: Oxford University Press, 2010). The impact of the enforcement pyramid on reshaping the regulatory strategies of Australian Securities and Investment Commission (ASIC) is critically evaluated in V Comino, Australia’s “Company Law Watchdog”: ASIC and Corporate Regulation (Sydney: Thomson Reuters, 2015). K Yeung, Securing Compliance: A Principled Approach (Oxford: Hart Publishing, 2004) pp 167–170.

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development of general principles and principles of criminal responsibility. Engagement with critical perspectives reveals the contingent and contradictory nature of these principles, providing scope for their normative reconstruction using alternate social, political and moral ideas. Criminal law, as a discipline, defines its own jurisdiction. Its conceptual “territory”, as Lindsay Farmer observes, is presently narrowly defined in terms of the principles of criminal responsibility—a focus that fosters an atheoretical, ahistorical obsession with definition. 327 This preoccupation with criminal responsibility has other disciplinary consequences. Deeper engagement in theoretical questions raised by feminist, critical, historical, medico-legal and socio-legal scholarship is considered unnecessary, and even disruptive, to the traditional analytical enterprise. Indeed, the exclusion of these “eclectic” perspectives is sometimes justified by the demands of practical legal education. Much debate within legal education circulates around an unproductive polarity between its “academic” versus “practical” objectives. Andrew Goldsmith and Christine Parker explore this tension and sketch a “transformative vision of legal education”. 328 In their view, the tension between academic and practical objectives—which daily confronts law students, teachers, practitioners and judges—should be embraced positively rather than negatively. They suggest that Australian law schools should reconstitute themselves by embracing and entrenching: • a broad conception of the legal knowledge which we are responsible for passing on—a knowledge based on a variety of disciplines from the humanities, social sciences and elsewhere, that allow law students to study the diverse meanings and consequences of law as a social and human variable in everyday life; and • an expanded conception of the field of legal practice for which we prepare our students, so as to integrate a critically and ethically oriented understanding of how lawyers and others carry law and legal institutions into the communities in which they live and work. 329 Understanding the criminal law, or any other legal subject, as a complex social phenomenon rather than simply a set of legal rules requires engagement with a wide array of perspectives. In promoting this multi-perspective approach, we have paid particular attention to neglected historical and comparative perspectives on the criminal law. 330 We envisage that this chapter, which functions both as an introduction and conclusion, will provide the explanatory and normative foundations for a deeper understanding of the meanings and limits of the criminal law in modern Australian society.

327 328 329 330

L Farmer, “The Obsession with Definition: The Nature of Crime and Critical Legal Theory” (1996) 5 Social and Legal Studies 57. A Goldsmith and C Parker, “Failed Sociologists in the Marketplace: Law Schools in Australia” (1998) 25(1) Journal of Law and Society 33. A Goldsmith and C Parker, “Failed Sociologists in the Marketplace: Law Schools in Australia” (1998) 25(1) Journal of Law and Society 33 at 47. An approach particularly promoted by P Alldridge, Relocating Criminal Law (Aldershot: Ashgate, 2000) pp 23–24. [1.250]

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General Principles The truth is, that the law is always approaching, and never reaching, consistency. It is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not yet been absorbed or sloughed off. It will become entirely consistent only when it ceases to grow. 1 [2.05]

INTRODUCTION .......................................................................................................................... 79

[2.10] [2.10] [2.15] [2.25] [2.30]

THE STRUCTURE AND FUNCTION OF GENERAL PRINCIPLES ........................................................ The Concept of General Principles ............................................................................................... Codification and the General Part: The Criminal Law’s Constitution ............................................. The Promise of Codification: Overstated and Still Unrealised? ...................................................... The Abstraction of Principles: An Elusive or Illusory Search? ..........................................................

[2.40] [2.40] [2.45] [2.80] [2.200] [2.240] [2.255]

PRINCIPLES OF CRIMINAL PROCESS ............................................................................................ 95 The Relationship Between Criminal Law and Procedure ................................................................ 95 The Principle of Territoriality ......................................................................................................... 96 The Principle of Fairness ............................................................................................................. 107 The Principle of Equality Before the Law ..................................................................................... 152 The Principle of Privacy .............................................................................................................. 170 CONCLUSION: THE FUTURE OF GENERAL PRINCIPLES .............................................................. 174

80 80 82 84 90

INTRODUCTION [2.05] This chapter explores the place of “general principles” in the criminal law. The concept

of general principles embodies fundamental ideas about how the criminal process and substantive law operates, or rather should operate. General principles encompass both procedural and substantive matters. They also perform explanatory and normative functions. This distinction has been explained in Chapter 1, [1.15]. Chapter 2 offers critical perspectives on the structure and function of general principles through an examination of the principles of territoriality, fairness, equality and privacy. It focuses primarily on principles governing the criminal process and punishment, rather than criminal responsibility which are separately considered in Chapter 3. The latter principles of responsibility determine the conditions under which conduct or individuals should ordinarily be held criminally liable. As we shall explore below, the idea of general principles universally applying across all offences, while normatively significant, is a highly contestable representation of the existing law. Although claimed to be 1

Oliver Wendell Holmes, The Common Law (Boston: Little, Brown and Co, 1881) p 36.

[2.05]

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the “General Part” of the criminal law, many of these principles are routinely subject to derogation or qualified with exceptions in the context of specific offences; for example, the presumption of a fault element is displaced for many crimes of strict liability, including serious drug and public order offences, as well as less serious regulatory offences. This chapter examines the process and reasoning behind the criminal law’s designation of certain principles as “fundamental” and “universal”. By exploring their historical, moral and political foundations, the chapter provides resources for a critical re-examination of their claims of centrality in the criminal law. The chapter is necessarily selective in its coverage. 2 It claims neither to be an authoritative nor exhaustive account of those principles that have shaped the criminal law over time. Returning to our introductory quotation by Oliver Wendell Holmes, it is important to recognise that the law is perpetually engaged in the process of identifying new principles, reforming existing ones and abolishing obsolete ones. In terms of “new” principles, for example, the right to human dignity, which finds expression in both domestic constitutional law in some jurisdictions, and underlies international human rights treaties, 3 is emerging as a normative resource for thinking about the proper boundaries of the criminal law in specific contexts, particularly in the context of terrorism offences, and how the law defines consent and fault for the purposes of sexual offences and assault, see Chapter 11, [11.10]. The chapter offers some observations on that process of doctrinal representation, laying the foundation for developing critical perspectives on the roles—symbolic as well as instrumental—of general principles within the criminal law.

THE STRUCTURE AND FUNCTION OF GENERAL PRINCIPLES The Concept of General Principles [2.10] General principles have been a major focus of modern criminal law scholarship. The

conceptual task of developing a framework for understanding the criminal law is regarded as fundamental, with practical as well as theoretical implications for the structure or form of criminal liability. A “principled approach” promises a high degree of conceptual unity for criminal law. Rather than focus on the doctrinal particularities of specific crimes, attention is redirected towards “the fundamentals”, that is, the core concepts and doctrines of the criminal law. Since the late 19th century textbook discussion has been structured around the “General Part”, focusing attention on those doctrines applicable to physical and fault elements, as well as general defences. In some cases, this discussion may be prefaced by a cursory survey of selected principles governing criminal procedure and punishment. General principles are said to be fundamental to the promotion of the “liberal” values of certainty, consistency and predictability in the criminal law, as explored previously in Chapter 1, [1.20], “Defining Crime and the Rule of Law”. As such, they are an essential precondition for the modernisation and codification of the criminal law. As American criminal law philosopher, Michael Moore, has argued: “The criminal law thus needs some structure if its codification is to be possible and if adjudication under such codes is to be non-arbitrary. More specifically, it needs some general doctrines—doctrines applying to all types of action prohibited by a criminal code—in order to avoid an ungodly repugnancy and a woeful incompleteness.” 4 2

3 4

See J Gans, T Henning, J Hunter and K Warner, Criminal Process and Human Rights (Sydney: Federation Press, 2011), which provides an excellent “rights-based analysis” of criminal procedure laws in Australia, drawing on international and comparative human rights law. See, generally, A Barak, Human Dignity: The Constitutional Value and the Constitutional Right (Cambridge: Cambridge University Press, 2015). M Moore, Act and Crime (Oxford: Oxford University Press, 1993) p 4.

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In jurisdictions that codify the criminal law, general principles are elevated to the status of positive law. However, reconciling these abstract general principles with the specific elements of individual crimes has caused interpretational difficulties, as we explore in the next section, “Codification and the General Part: The Criminal Law’s Constitution” at [2.15]–[2.20]. There are also inherent difficulties in determining whether a principle applies to a sufficiently wide range of offences to be characterised as belonging to the General Part. 5 General principles not only assist our understanding of the criminal law, they also perform an important normative function. By establishing normative parameters for legal development, these principles provide lawyers, judges and academics with the tools for determining the “proper” direction for the criminal law. Operating at a higher level of abstraction than rules, principles are highly flexible. By resorting to principles, judges and lawyers free themselves from the constraints of existing doctrine. Contradictory precedent can be rationalised and reconciled, while simultaneously preserving flexibility for the development of the criminal law in future cases. Principles generate legal rules, but they do not dictate their development unless they acquire constitutional force through entrenched bills of rights. As Andrew Ashworth has observed, principles operate as arguments based on political or moral foundations; though there may be countervailing considerations of principle or policy that outweigh them in specific contexts. 6 On this view tension is inevitable, because principles reflect a wide range of competing political and moral ideas about the legitimate scope and function of the criminal law. Sometimes principles are trumped for sound policy reasons. For example, the practical evidential difficulties of proving subjective mental states in relation to drug offences, combined with a strong political and legislative commitment to the “War Against Drugs”, has displaced the presumption of a fault element in relation to drug possession and trafficking offences. On other occasions, principles may be sacrificed to interests of political expediency, responding to the clamour of unruly local law and order politics. The widespread derogation from the normal principles of fault attribution and cherished procedural values, such as the burden of proof, is further discussed in Chapter 14, [14.120] and [14.135]. There is a strong relationship between theoretical ideas and general principles. Principles, like theories, can provide “blueprints” for the development of the criminal law. This process is facilitated by theorists casting their ideas (or rather ideals) as “principles”; see, for example, John Stuart Mill’s “harm principle”; Lord Devlin’s “protection of morals”; Nicola Lacey’s “principle of welfare”; and the “republican principles” of John Braithwaite and Philip Pettit reviewed in Chapter 1, [1.190], “Reconstructing the Criminal Law”. Theoretical and general principles may share normative concerns about the proper nature and scope of the criminal law, but they perform distinct functions. Theoretical principles address macro-level questions, such as the proper purpose and scope of the criminal law. As explained in Chapter 1, the harm principle has provided the conceptual framework for the liberalisation of homosexual offences and prostitution in the late 20th century: see [1.210]. General principles, by contrast, address micro-level questions, such as the forms and structure of the criminal process (how a trial should be conducted) and criminal responsibility (when a person should be found guilty). This macro-micro dichotomy should not be overstated. In calling for a more principled criminal 5

6

RA Duff, Answering for Crime: Responsibility and Liability in the Criminal Law (Oxford: Hart Publishing, 2007) p 3, resolves this issue by noting that the specific principle belongs to the General Part where “it is not essentially tied to any specific offence”. J Horder, Ashworth’s Principles of Criminal Law (8th ed, Oxford: Oxford University Press, 2016) pp 65ff. Ashworth’s textbook on English criminal law, through successive editions, is the paradigm example of the “principled” approach to legal analysis. Ashworth moved beyond doctrinal exegesis to develop deeper theoretical as well as policy-based critiques of the law. It was also the first textbook to take human rights law into account in shaping criminal law doctrine. [2.10]

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law, Andrew Ashworth has advocated a closer relationship between the decision to criminalise and the procedural context, particularly relating to law enforcement and sentencing. 7 Theoretical contributions are not restricted to providing “guiding principles” for legislative reform. As we shall reveal in the next chapter, the principles that govern criminal responsibility dealing with agency, fault and causation have been influenced (overtly and covertly) by a range of different philosophical perspectives. Indeed, philosophical disagreement over the attribution of fault has fuelled fierce doctrinal disagreement over whether a subjective or objective mental state is the “true” principle of fault in the criminal law: see discussion in Chapter 3, [3.230].

Codification and the General Part: The Criminal Law’s Constitution [2.15] The identification of a set of general principles for the criminal law formed part of a

modernisation project that commenced in the 19th century. Codification into a single Act of Parliament logically demands a “General Part” that deals with principles ordinarily applicable to every offence. The General Part of a Code operates, in effect, as a constitution for the criminal law, setting the parameters for judging all criminal conduct. In this sense, the General Part functions as a legal dictionary of key concepts and guiding principles that are addressed to the judicial officer and legislative drafter, rather than to the citizen at large. General principles, based on reason and logic, promise to curb the irrational and illogical tendencies of the common law. Since codification purports to place the responsibility for development of the criminal law with the legislature rather than the judiciary, it represents an important instantiation of liberal values. Codification is thus an expression of democratic legitimacy. Given that it is the state that has the responsibility to create and maintain the rules for the punishment of individuals, it is appropriate that only the elected arm of government (that is, Parliament) should be responsible for articulating those rules and the principles that will govern their application. Codification claims to remove from judges their quasi-legislative power to extend the criminal law by remodelling offences and defences, and minimises the risk of violation to the principle of non-retrospectivity discussed in Chapter 1. As one member of the team responsible for drafting Australia’s Model Criminal Code in the early 1990s noted, codification makes the criminal law “easy to discover, easy to understand, cheap to buy and democratically made and amended”. 8

Historical perspectives Codification and Bentham’s Pannomion [2.20] As the embodiment of Enlightenment thinking, legal codification sought to impose

the elegance of form, structure and rationality of European penal codes (such as the French Code Napoleon) upon the messy case-oriented substance of the common law. It became the life-long work of liberal reformers such as Jeremy Bentham and James Fitzjames Stephen in England, and Samuel Griffith in Australia. The modern criminal code 7

8

A Ashworth, “Is the Criminal Law a Lost Cause?” (2000) Law Quarterly Review 225 at 226. The principles identified by Ashworth as relevant to the criminal law include classical liberal ideas such as the principle of parsimony (which he terms “minimal criminalisation”), autonomy, as well as the principle of “no liability for omissions,” and “proportionality”. Ashworth also identifies countervailing welfare-based principles, such as the “principle of social responsibility” recognising that citizens have mutual obligations to each other. For an excellent essay reviewing the originality and impact of Ashworth’s principles over the past three decades, extending beyond the academic search for a “General Part”, see N Lacey, “Principles, Policies, and Politics of Criminal Law” in L Zedner and J Roberts (eds), Principles and Values in Criminal Law and Criminal Justice: Essays in Honour of Andrew Ashworth (Oxford: Oxford University Press, 2012). M Goode, “Codification of the Australian Criminal Law” (1992) 16 Criminal Law Journal 5 at 8.

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owes much to the writings of Bentham who is widely credited with inventing the term “codification”. 9 Towards the end of his long academic career, Bentham became obsessed with codification. In an open letter to the “several American United States” in 1817, he offered to draft them a “Pannomion”, or a set of Codes covering constitutional, civil and penal laws. This offer had been previously made to the Russian Tsar, the Spanish, Portuguese and Greek liberals, and the newly independent states of Argentina and Guatemala. 10 The Pannomion project, in common with his more famous ideal model prison called the “Panopticon”, shared the common objective of promoting conformity and compliance of the legal subject (whether citizen or prisoner) with rules. Rational legality favoured an approach in which offences and, hence, the legal power to punish must be prescribed in clear legal rules in advance, expressed in language and terms which these subjects could understand. It sought to replace the patchwork of common law (overlaid with statutory modifications) with a systematic and principled system of criminal law, combined with rational and proportionate punishments which aimed at deterrence. The resultant laws were applied rather than made by the courts, with minimal scope for discretionary judicial interpretation or resort to legal fictions. Notwithstanding Bentham’s influential writings, and various draft codes prepared by several English royal commissions appointed to consolidate and codify the criminal law in the 19th century, the codification project faltered. This led Professor Amos, one of the commissioners, to describe the British hostility to codification as a form of “codiphobia”. 11 By contrast, British colonies and territories were much more receptive to Bentham’s project. Codification was attractive to transplanted British societies, offering citizens a reasonably comprehensive and modernised statutory criminal law. Rather than rely on the vagaries of the inherited and hard-to-find common law precedent, the code provided colonial societies with a “ready-made” criminal law devised by some of the most distinguished jurists of the time. In Australia, the process of codification was relatively late in its development. Codes based on a draft produced by the Attorney-General of Queensland, Samuel Griffith, in 1897 were enacted in Queensland (1899). Other jurisdictions followed suit: Western Australia (1902, re-enacted 1913), Tasmania (1924)

9 10

11

P Schofield and J Harris (eds), Jeremy Bentham—Writings on Codification, Law and Education (Oxford: Clarendon Press, 1998). M Kayman, “A Memorial for Jeremy Bentham: Memory, Fiction, and Writing the Law” (2004) Law and Critique 207 at 207–208. For an essay, drawing on Bentham and Foucault, exploring how modern penal codes have substantially failed to link themselves to the primary function of addressing the legitimacy of the exercise of the power of the state over its subjects, see M Dubber, “Penal Panopticon: The Idea of a Modern Model Penal Code” (2001) 4 Buffalo Criminal Law Review 53. A Hemming, “When Is a Code a Code?” (2010) 15(1) Deakin Law Review 65 at 67, fn 9. Horder has however noted that England did adopt a “fledgling criminal code”, albeit in the form of a series of consolidation statutes in 1861, dealing with inter alia offences against the person and larceny: J Horder, Ashworth’s Principles of Criminal Law (8th ed, Oxford: Oxford University Press, 2016) p 32. Subsequent efforts in the 1870s to pass a criminal code failed, due largely to the suspicion that judges and the profession held towards the generalisation inherent within a code, and the extent to which codification would stultify the development of the common law: A Braun, “The English Codification Debate and Role of Jurists in the Development of Legal Doctrines” in M Lobban and J Moses (eds), The Impact of Ideas on Legal Development (Cambridge: Cambridge University Press, 2012) pp 214ff. [2.20]

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and the Northern Territory (1983). 12 Griffith envisaged that the code should be a collected and explicit statement of the criminal law in a form that could be ascertained by an intelligent person. 13 His code is generally considered to be one of the most faithful and successful attempts to implement a Benthamite model for the codification of law, and the “Griffith Code”, as it has become known, was adopted—with only minor revisions—in many other British colonies. 14 Even today, as Jeremy Horder observed, part of the driving intellectual force behind the codification movement “has been the wish to snuff out once and for all the flickering flame of judicial creativity in the field of criminal law.” 15 This movement also seeks to place law reform, somewhat unrealistically, in a technocratic realm beyond politics. 16 The difficulty with the approach to reform is discussed in relation to serious drug offences in Chapter 14, [14.05]. In England, codification remains elusive. Even today, the criminal law is a hotchpotch of common law and statutory consolidations, with little progress being made in implementing the Draft Criminal Code produced by the Law Commission of England and Wales in 1989. Indeed, in 2008 the Law Commission decided to remove mention of its criminal law codification project from its latest Programme of Law Reform, replacing it with a new project of “simplification” of criminal law offences. It intends to revisit codification after this simplification project is complete, though it has left the time frame for this return open-ended. 17

The Promise of Codification: Overstated and Still Unrealised? [2.25] The liberal promise of codification can be overstated. As noted above, codification

aims to democratise criminal law through giving control of the development of criminal law to an elected legislature rather than an unelected judiciary. The first provision of the code typically abolishes “crimes at common law” – offences are to be found only in the code or other statutory provision. In practice, however, modern criminal law-making is controlled by the Executive, which develops public policy, and then drafts and proposes new criminal laws for presentation to the Legislature. The idea that criminalisation under a codified system should be principled, governed and constrained by the code’s general principles, is reflected in

12

13

14

15 16 17

See Criminal Code Act 1899 (Qld); Criminal Code Compilation Act 1913 (WA); Criminal Code Act 1924 (Tas); Criminal Code Act 1983 (NT), respectively. The Griffith Code was also adopted in a number of British colonies and dependencies such as Papua (1902) and New Guinea (1921). On the migration of the Code, see R O’Regan, New Essays on the Australian Criminal Codes (Sydney: Law Book Company, 1988) pp 103–120. Sir Samuel Griffith, “Explanatory Letter to the Attorney-General Queensland with Draft Code” in K Whitney, M Flynn, P Moyle, The Criminal Codes (5th ed, Sydney: LBC, 2000) p 5. See, generally, G MacKenzie, “An Enduring Influence: Sir Samuel Griffith and his Contribution to Criminal Justice in Queensland” [2002] Queensland University of Technology Law and Justice Journal 3. See S Bronitt and M Gani, “Criminal Codes in the 21st Century” in B McSherry, A Norrie and S Bronitt (eds), Regulating Deviance: The Redirection of Criminalisation and the Futures of Criminal Law (Oxford: Hart Publishing, 2009) p 243 fn 41. J Horder, “Criminal Law” in P Cane and M Tushnet (eds), Oxford Handbook of Legal Studies (Oxford: Oxford University Press, 2003) p 227. J Horder, “Criminal Law” in P Cane and M Tushnet (eds), Oxford Handbook of Legal Studies (Oxford: Oxford University Press, 2003) p 229. Law Commission (England and Wales), Simplification of the Criminal Law, http://www.lawcom.gov.uk/ project/simplification-of-the-criminal-law (cited 14 January 2017).

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government drafting guides. 18 However, developing a “principled” criminal law becomes more challenging when the Executive and Legislature is faced by the political clamour to take tough measures against emerging serious crime threats. Requiring proof of intent for example may be “principled” but will, practically speaking, present considerable challenges for investigators and prosecutors. As we examine in Chapter 15, [15.150], the drug and terrorism offences in the Criminal Code (Cth) did little to stem the wide use of reverse onus clauses, no-fault liability provisions and resort to extra-territorial jurisdiction. 19 The differences between codified and uncodified jurisdictions may be overstated. Under any system of law, whether codified or not, gaps and uncertainties remain. As distinguished comparative lawyer Samuel Stoljar observed, poorly drafted codes may produce considerable uncertainty, while the concept of “leading cases” (and the academic commentary they generate) can promote clarity, coherence and guiding principles far beyond the particular dispute at hand. 20 The legal assertion of the code’s primacy over the common law may be viewed simply as an application of the doctrine of parliamentary sovereignty: the most significant provision of a criminal code, distinguishing it from a consolidation statute, as discussed below, states that all offences are to be found in either the code or legislation, rather than common law. But this does not diminish the role or significance of precedent under a code. Since code provisions are not self-executing, precedent develops to guide interpretation; the fundamental status of precedent has neither been altered nor diminished in code jurisdictions. In terms of legal culture, the centrality of precedent in code jurisdictions is apparent from the retention of “casebooks” for explaining the criminal law. 21 Conversely, in those jurisdictions that have resisted comprehensive codification—namely New South Wales, South Australia and Victoria—it would be wrong to assume that criminal law is sourced exclusively from the common law. Even in so-called “common law jurisdictions”, the bulk of offences and defences are found in consolidating legislation or other statutes. What remains significant by comparison with the code jurisdictions is that the common law survives as a reservoir of residual offences and doctrines available for revival by prosecutors and judges as needed. Codification has nevertheless produced two distinct but related cultures of criminal jurisprudence in Australia. 22 The primary difference between code and non-code states relates to the approach to statutory interpretation. As a special type of legislation, codes are governed by their own distinct principles of interpretation, which Kirby J in Charlie v The Queen summarised as follows: “The first loyalty, as it has been often put, is to the code. Where there is ambiguity, and especially in matters of basic principle, the construction which achieves consistency in the interpretation of like language in similar codes of other Australian jurisdictions will ordinarily be favoured. But before deciding that there is ambiguity, the code in question must be read as a whole. The operation of a contested provision of a code, or any other legislation, cannot be elucidated by confining attention to 18 19

20 21 22

Attorney-General’s Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (Canberra: Commonwealth Attorney-General’s Department, 2011). S Bronitt and M Gani, “Criminal Codes in the 21st Century” in B McSherry, A Norrie and S Bronitt (eds), Regulating Deviance: The Redirection of Criminalisation and the Futures of Criminal Law (Oxford: Hart Publishing, 2009) pp 247–254. See S Stoljar, “Codification and the Common Law” in S Stoljar (ed), Problems of Codification (Canberra: ANU Press, 1977). See, for example, E Colvin, J McKechnie and J O’Leary, Criminal Law in Queensland and Western Australia: Cases and Commentary (7th ed, Sydney: LexisNexis Butterworths, 2015). S Tarrant, “Building Bridges in Australian Criminal Law: Codification and the Common Law” (2013) 39 Monash University Law Review 838. [2.25]

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that provision. It must be presumed that the objective of the legislature was to give an integrated operation to all of the provisions of the code taken as a whole, and an effective operation to provisions of apparently general application, except to the extent that they are expressly confined or necessarily excluded.” 23

There is a countervailing view that a “special” approach to the interpretation of the “Griffith Code” sustains unhelpful, artificial and parochial divisions in the criminal law of Australia. As Stella Tarrant argues, codes should be approached as ordinary legislative enactments governed by the principles of interpretation found in the applicable Acts Interpretation legislation and the common law: “A proper approach to the legal interpretation of codes is that they are statutes, pure and simple; there are no general rules of interpretation that apply peculiarly to a ‘code’ as a reified notion of a special form of law”. 24 Australian judges have struggled reconciling the Code’s “General Part” with specific offences that follow. Doubts have arisen as to whether or not general provisions dealing with criminal responsibility in fact displace or qualify the terms of specific offences. For example, Dixon CJ in Vallance v The Queen, expressed doubts about the practical value of the general part of codes, describing them as: “wide abstract statements of principle about criminal responsibility framed rather to satisfy the analytical conscience of an Austinian jurist than to tell a judge at a criminal trial what he [or she] ought to do.” 25

In other words, the meaning of “general provisions” in codes could not be determined in the abstract. Rather, as Dixon CJ noted, “it is only by specific solutions of particular difficulties raised by the precise facts of given cases that the operation of [provisions of general application] can be worked out judicially”. 26 General principles, on closer scrutiny, are often subordinated to the definitional constraints of specific offence provisions in the code, rather than vice versa. As Jeremy Horder noted, the attempt to hive off the “General Part” has little theoretical or practical value and “inevitably ends up presenting an impoverished picture of the ‘special part’, in which the latter’s moral richness and diversity have been airbrushed out”. 27 Even when expressed in a code, the idea of “fundamental” and “universal” principles guiding the interpretation and application of all offences is rhetorical and illusory. Notwithstanding the view above that codes are governed by “special” rules of interpretation, it would be inaccurate to characterise the differences as a form of legal apartheid. In many areas, especially those relating to key principles and definitions, the High

23

24 25 26

27

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(1999) 199 CLR 387 at 394 (footnotes omitted). These principles are derived from dicta in R v Barlow (1997) 188 CLR 1 at 31–33; Boughey v The Queen (1986) 161 CLR 10 at 30; and R v Jervis [1993] 1 Qd R 643 at 647 and 670–671. See also Murray v The Queen (2002) 211 CLR 193 and Kirby J in DPP (NT) v WJI (2004) 219 CLR 43 at [71]. S Tarrant, “Building Bridges in Australian Criminal Law: Codification and the Common Law” (2013) 39 Monash University Law Review 838 at 861. Vallance v The Queen (1961) 108 CLR 56 at 61. Vallance v The Queen (1961) 108 CLR 56 at 61 per Dixon CJ. In Charlie v The Queen (1999) 199 CLR 387, the majority of the High Court (Kirby and Hayne JJ dissenting) held that General Part provisions in the Criminal Code (NT) dealing with mental states were excluded by the definition of “intent” specifically included in the offence of murder. Kirby J concluded (at 396) that the General Part was an “overarching provision … a core principle of general application, a core tenet of our criminal law. It is not one which would ordinarily be confined or narrowed”. J Horder, “Criminal Law” in P Cane and M Tushnet (eds), Oxford Handbook of Legal Studies (Oxford: Oxford University Press, 2003) p 241. [2.25]

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Court has promoted convergence between the codes and the common law where possible. 28 The promotion of convergence is undoubtedly aided by the fact that there is only one common law in Australia. In a number of decisions, the High Court has held that common law should be viewed as a “unitary” system; that is, there is a “common law of Australia”, as distinct from nine separate systems of federal, State and Territory common law. As McHugh J observed in Kable v DPP (NSW): “Unlike the United States of America where there is a common law of each State, Australia has a unified common law which applies in each State but is not itself the creation of any State.” 29

The importance of developing a consistent and unitary concept of Australian common law in relation to the test of criminal jurisdiction has been stressed by the High Court in Lipohar v The Queen. 30 This decision is explored at [2.70]. The centralising and conditioning influence of the “unitary” common law of Australia upon the criminal codes is, however, far from absolute, and will be constrained by the language of the provision under consideration, and the degree of ambiguity in the particular case. Also, it can take many years for general common law concepts and definitions to seep into code jurisprudence. In the absence of an explicit interpretive duty on judges within code states to develop the code in conformity with the common law of Australia, uptake of High Court pronouncements from non-code jurisdictions may be slow or even resisted. A recent example of the latter is the Queensland Court of Appeal decision of R v Dillon; Ex parte Attorney-General (Qld), 31 a case examining the meaning of “dishonesty” for the offence of fraud under the Criminal Code (Qld). Dishonesty in the context of property offences is discussed in Chapter 12, [12.45]. The High Court had comprehensively addressed the meaning of “dishonesty” 17 years earlier in Peters v The Queen 32 in the context of the offence of conspiracy to defraud under ss 86(1)(e) and 86A of the Crimes Act 1914 (Cth). Notwithstanding the High Court favouring an objective test of dishonesty, rejecting the mixed objective/subjective test favoured by English courts in Ghosh, 33 Queensland courts continued to direct juries in accordance with the Ghosh test for offences requiring proof of dishonesty. McMurdo P, delivering the leading judgment in Dillon, accepted that despite a long history of applying the Ghosh test, Queensland courts must approach dishonesty in a manner consistent with the High Court’s ruling in Peters. The long delay of 17 years between the dishonesty test in Peters, and its ultimate acceptance in Queensland, underscores Justice Kirby’s assessment that judicial loyalty lies, first and foremost, to the code, rather than the common law! 34 Recent proposals for codification have been part of a broader project promoting harmonisation of criminal laws in Australia. However, consensus on the scope and content of general principles and specific offences has proven difficult to achieve. From a political perspective, the adoption of a uniform criminal code would require cooperation between the Commonwealth, States and Territories. Until recently, the Commonwealth has played only a limited role in the field of criminal law, as its power to legislate is circumscribed by the heads of power in the Commonwealth Constitution. Since the enactment of a national criminal code would lack a solid legal basis under the Constitution, harmonisation of federal, State and 28 29 30 31 32 33 34

An example of this is the High Court’s treatment of the partial defence of provocation in Stingel v The Queen (1990) 171 CLR 312, which is further discussed in Chapter 5, [5.10]. Kable v DPP (NSW) (1996) 189 CLR 51 at 112. (1999) 200 CLR 485. [2015] QCA 155 (25 August 2015). (1998) 192 CLR 493. R v Ghosh [1982] QB 1053. Charlie v The Queen (1999) 199 CLR 387 at 394. [2.25]

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Territory criminal laws has been viewed as the next best alternative. Harmonisation involves each jurisdiction enacting the same (or substantially similar) criminal laws. In 1990, the Standing Committee of Attorneys-General (SCAG) placed on its agenda the question of the development of a uniform criminal code for Australian jurisdictions. Before 1990, the pattern of harmonisation in the criminal law was ad hoc. For example, as we shall explore in Chapter 13, partial uniformity in relation to property offences was achieved in the Australian Capital Territory, Northern Territory and Victoria by the adoption of statutory provisions modelled on the Theft Act 1968 (UK), creating, in effect, “mini-codes” in some areas. SCAG established the Model Criminal Code Officers Committee (MCCOC), as it was then known (since renamed the Model Criminal Law Officers Committee (MCLOC)) to draft a criminal code for the Commonwealth, which would provide the model for codes adopted in the States and Territories. As one of the drafters, Mathew Goode, pointed out, the original aims of the Model Criminal Code were codification and uniformity. 35 Elsewhere, Matthew Goode has also suggested that the Model Criminal Code, more realistically, is an exercise in promoting “voluntary consistency not compulsory uniformity”. 36 As Miriam Gani concluded: “The jury is still out as to the ultimate impact of the codification project. What can be said, though, is that consistent, uniformly applicable criminal law through codification in Australia has not been achieved.” 37

More than any other jurisdiction, the development of federal criminal law has been shaped by the Model Criminal Code project, discussed at [2.15]. As Miriam Gani notes, the federal jurisdiction has been the “most enthusiastic adopter of the Model Criminal Code”. Schedule 1 of the Criminal Code Act 1995 (Cth) enacted the Criminal Code, which contained the following chapters: Chapter 1: Chapter 2: Chapter 3: Chapter 4: Chapter 5: Chapter 6: Chapter 7: Chapter 8: Chapter 9: Chapter 10:

35 36 37

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Codification (a one-section chapter, which abolishes common law offences in the federal jurisdiction) General principles of criminal responsibility [empty] The integrity and security of the international community and foreign governments (eg, protected persons offences, people smuggling) The security of the Commonwealth (eg, treason, espionage and terrorism). [empty] The proper administration of government (eg, bribery, forgery, impersonation of public officials and theft and property offences) Offences against humanity and related offences (eg, genocide, war crimes and crimes against humanity) Dangers to the community (eg, cross-border firearms trafficking) National infrastructure (eg, money laundering, postal and telecommunications offences and cybercrime)

M Goode, “Codification of the Australian Criminal Law” (1992) 16 Criminal Law Journal 5 at 7. M Goode, “Constructing Criminal Law Reform and the Model Criminal Code” (2002) 26 Criminal Law Journal 152 at 163. M Gani, “Codifying The Criminal Law: Issues of Interpretation” in S Corcoran and S Bottomley (eds), Interpreting Statutes: Essays on Statutory Interpretation (Sydney: Federation Press, 2005) p 222. [2.25]

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The federal Criminal Code is not, however, a mimetic of the Model Criminal Code – Chapters 3 and 6, for example, remain empty. 38 Procuring political agreement at the national level on the need to adopt consistent criminal laws has been the major stumbling block for codification, and implementation has been piecemeal. 39 Queensland has largely ignored the Model Criminal Code, engaging in independent reviews and amendments of its code. In other jurisdictions, a selective approach to codification has prevailed, with specific areas subject to reform in light of the proposals in the Model Criminal Code. Under this ad hoc approach, the relationship between the reforms based on the Model Criminal Code and the existing common law has not been consistent, even within the same jurisdiction. For example, in New South Wales, reforms to the law governing intoxication expressly abolished the existing common law: see Crimes Act 1900 (NSW), s 428H. By contrast, no equivalent clarifying provision was included in relation to the “codification” of the rules relating to self-defence. According to Miriam Gani, this inconsistency undermines many of the core values behind codification, such as promoting certainty and consistency. 40 She continues, warning that the failure to clarify in legislative form the key interpretive principles governing codes, particularly the status of pre-existing common law, has the potential to undermine the whole project: “It is a legal paradox to codify the criminal law—to take a legislative-centric approach to it—without also legislating for how that code is to be interpreted”. 41 It also leaves the courts with the responsibility for developing these principles, further undermining codification’s democratic aspiration to place development of the criminal law in the hands of the legislature rather than the courts. Moreover, even if we accept Matthew Goode’s revisionism that codification is about broad consistency and not uniformity, Miriam Gani concludes that the “halfway house of partial consistency is counterproductive to the hopes and aims of the codification project”. 42 In those few areas where consistency has been substantially achieved, such as cybercrime, the political drivers for reform are not related to the objectives behind the Model Criminal Code project, but rather to the need to modernise and mobilise the criminal law to fight the threat of transnational crime and terrorism in the wake of the 2001 September 11 attacks (9/11). The political opportunism surrounding such law reform is explored further in Chapter 15, [15.20]. From the outset, the MCCOC gave priority to the codification of principles of criminal responsibility over preliminary procedural issues “as these [principles of criminal responsibility] were the very foundation of any system of criminal justice”. 43 The recommendations contained in this report have been enacted in the Criminal Code Act 1995 (Cth), Criminal Code (ACT) and Criminal Code (NT). Chapter 1 of the federal Code abolishes common law crimes, stating that the only offences against laws of the Commonwealth are 38

39 40 41 42 43

For excellent commentaries on the federal Code, see I Leader-Elliott, The Commonwealth Criminal Code: A Guide for Practitioners (Canberra: Australian Institute of Judicial Administration, 2002) and S Odgers, Principles of Federal Criminal Law (3rd ed, Sydney: Lawbook Co, 2015). See M Goode, “Constructing Criminal Law Reform and the Model Criminal Code” (2002) 26 Criminal Law Journal 153 at 165–166 which contains a useful table of implementation of the MCCOC’s reports. M Gani, “Codifying The Criminal Law: Issues of Interpretation” in S Corcoran and S Bottomley (eds), Interpreting Statutes (Sydney: Federation Press, 2005). M Gani, “Codifying The Criminal Law: Issues of Interpretation” in S Corcoran and S Bottomley (eds), Interpreting Statutes (Sydney: Federation Press, 2005) p 222. M Gani, “Codifying The Criminal Law: Issues of Interpretation” in S Corcoran and S Bottomley (eds), Interpreting Statutes (Sydney: Federation Press, 2005) p 222. Model Criminal Code Officers Committee, Model Criminal Code: Chapter 2—General Principles of Criminal Responsibility (1992) p ii. [2.25]

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those offences created by, or under the authority of, the code or any other Act. Chapter 2 of this Code deals with “General Principles of Criminal Responsibility”. Section 2.1 states: The purpose of this Chapter is to codify the general principles of criminal responsibility under laws of the Commonwealth. It contains all the general principles of criminal responsibility that apply to any offence, irrespective of how the offence is created.

Section 5 of the Criminal Code (ACT) states that the only offences in the Australian Capital Territory will be statutory offences, with the result that the Crimes Act 1900 (ACT) operates in tandem with the gradually expanding Code. The principles of criminal responsibility are examined below, and other proposals relating to specific offences will be explored in subsequent chapters.

The Abstraction of Principles: An Elusive or Illusory Search? [2.30] Principles are claimed to provide a means for promoting coherence and rationality in

the criminal law. Even scholars who structure their accounts in terms of principles are prepared to concede the existence of widespread disagreement and incoherence in the criminal law. As noted above, the power of principles to promote coherence in the criminal law is limited in a number of ways—principles possess rivals that inevitably clash, and even those principles deemed to be “fundamental” may be outweighed for countervailing policy considerations. Though significant, these qualifications and limitations on the explanatory and normative power of principles rarely justify the re-evaluation of claims that some principles have attained a fundamental and universal status in the criminal law. Some degree of disjunction between principles and the actual law would seem inevitable. Since general principles embody normative ideals—a state of legal perfection—it is hardly surprising that imperfect human judges and law-makers fall into error. When structured in terms of principles, academic discussion of the criminal law flits between explanatory and normative accounts, serving a significant ideological function by smoothing over doctrinal rifts and contradictions in the criminal law. 44 Critical scholars have expressed profound scepticism with the quest for identifying general principles in the criminal law. Nicola Lacey has described the rationalising enterprise of orthodox criminal scholarship as involving: “eliciting, articulating, and, where necessary, prescribing the proper principles informing criminal law, ironing out and rationalising apparent contradictions and exceptions, and paving the way for a clear, consistent and coherent theory and practice of criminal law on the basis of a loosely speaking liberal set of principles.” 45

She concludes that in many areas of the criminal law—such as the meaning of “intention”—the search for universal principles is not only elusive, it is illusory. The conflicts and contradictions that exist within doctrine, the apparent multiple meanings of fundamental concepts, are

44 45

See A Ashworth and J Horder, Principles of Criminal Law (7th ed, Oxford: Oxford University Press, 2013) pp 44–45. N Lacey, “A Clear Concept of Intention: Elusive or Illusory?” (1993) 56 Modern Law Review 621 at 637. See, generally, C Wells and O Quick, Lacey, Wells and Quick—Reconstructing Criminal Law: Texts and Materials (4th ed, Cambridge: Cambridge University Press, 2010) Ch 1; D Brown, D Farrier, S Egger, L McNamara, M Grewcock and D Spears, Brown, Farrier, Neal and Weisbrot’s Criminal Laws: Materials and Commentary on Criminal Law and Process of New South Wales (5th ed, Sydney: Federation Press, 2011) pp 3–4.

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“symptomatic of deeper substantive political questions that cannot be submerged by doctrinal rationalisation or by formal conceptual analysis”. 46 Critical scholarship has also rendered transparent the fact that many of the organising principles of the criminal law are sourced, directly or indirectly, from liberal philosophy. With the rise of legal positivism in the 19th century, law was conceptualised as a system of positive legal rules. This liberal project demanded the separation of legality from morality; the authority of modern law no longer required moral underwriting from God or natural law ideas. Legitimacy within this framework is primarily addressed by constraining arbitrary power through the strict observance of legal rules and procedures: see Chapter 1, [1.25]. Principles and rules could be justified largely in terms of their own logic and rationality; in this sense, the authority of the modern criminal law is said to be self-referential. 47 In the latter half of the 20th century and early 21st century, legal logic and rationality has been bolstered by arguments from moral and political philosophy, with the tenets of liberalism providing the principal “external” perspective for explaining, justifying and reconstructing the criminal law. There is now a significant body of “analytical criminal jurisprudence” that strives to synthesise from existing legal doctrine the fundamental and universal principles of criminal law. The primary philosophical focus of this body of scholarship are “the principles of criminal responsibility” which govern the identification of the legitimate conditions for attributing blame for wrongful conduct. Monograph after monograph examines fundamental concepts such as intention, free will, agency, causation, attempt, complicity and so on. 48 Moral blameworthiness provides the template for legal guilt at the expense of other external explanatory and normative perspectives, such as criminology, sociology, psychology, ethics or human rights. This concept of criminal law is exclusive rather than inclusive, removing from view broader issues and questions relating to morality and politics. Questions about the purpose and limits of punishment—for example, whether the criminal law and punishment should be legitimately used—are distinguished from questions about the conditions of individual responsibility. Questions of individual justice are divorced from broader questions of criminal justice, 46

47

48

N Lacey, “A Clear Concept of Intention: Elusive or Illusory?” (1993) 56 Modern Law Review 621 at 637. Note that Lacey’s critique of intention was explored by Jeremy Horder, “Intention in the Criminal Law— A Rejoinder” (1995) 58 Modern Law Review 678. Horder proposed that the multiple meanings of “intention” reflect the multiple roles performed by the concept, such as the liberal values of protecting autonomy, and representative labelling. From this perspective, the present guidance on intention in murder constitutes a legitimate compromise, permitting juries, within defined legal parameters, to engage in moral evaluation in the labelling process of distinguishing murder from manslaughter. See further N Lacey, “In(de)terminable Intentions” (1995) 58 Modern Law Review 692. The authority for principles and rules is drawn from an “ordinary” or “common sense” understanding of concepts, an approach that Lacey calls “stipulative analysis” in “A Clear Concept of Intention: Elusive or Illusory?” (1993) 56 Modern Law Review 621 at 624. See, for example, HLA Hart, Punishment and Responsibility (Oxford: Oxford University Press, 1968); RA Duff, Intention, Agency and Criminal Liability (Oxford: Blackwell, 1990); RA Duff, Criminal Attempts (Oxford: Oxford University Press, 1996); RA Duff (ed), Philosophy and the Criminal Law: Principle and Critique (Cambridge: Cambridge University Press, 1998); M Moore, Placing Blame: A General Theory of the Criminal Law (Oxford: Oxford University Press, 1997); S Shute, J Gardner and J Horder (eds), Action and Value in Criminal Law (Oxford: Oxford University Press, 1993); AP Simester and ATH Smith (eds), Harm and Culpability (Oxford: Oxford University Press, 1996); RA Duff, Answering for Crime: Responsibility and Liability in the Criminal Law (Oxford: Hart Publishing, 2007); L Alexander and K Kessler Ferzan with S Morse, Crime and Culpability—A Theory of Criminal Law (Cambridge: Cambridge University Press, 2009); J Gardner, Offences and Defences: Selected Essays in the Philosophy of Criminal Law (Oxford: Oxford University Press, 2007); AP Simester and A von Hirsch, Crimes, Harms, and Wrongs: On the Principles of Criminalisation (Oxford: Hart Publishing, 2011). [2.30]

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thereby suppressing the sociological and normative significance of the key institutions involved in the administration of the criminal law such as police, prosecutors and juries. 49

George Fletcher’s “Ten Commandments” of the criminal law [2.35] Distinguished US criminal law theorist, George Fletcher, argues in The Grammar of Criminal Law 50 that there are ten propositions or claims that read as the secular “Ten Commandments” of criminal law doctrine applicable to legal cultures around the world: 1.

Every criminal offence presupposes a voluntary human act.

2.

Every criminal offence includes a dimension of wrongdoing.

3.

Claims of justification negate wrongdoing.

4.

Every punishable act presupposes blameworthy commission of the elements of the offence.

5.

Blameworthy commission requires at least negligent conduct with respect to every element of the offence.

6.

Intentional, knowing, and reckless actions are worse than negligent conduct with respect to each element of the offence.

7.

Excused conduct is not blameworthy.

8.

Reasonable mistakes are not blameworthy.

9.

Self-defence is available only against unjustified attacks.

10.

The prosecution must always prove guilt beyond reasonable doubt. 51

Fletcher claims that these propositions are ones that most “practitioners of criminal theory around the world would, in varying degrees, hold to be true and binding”. 52 However, the consensus attributed by Fletcher to these ten propositions is more fragile and contested than he proposes—his proposal amounts to a universalist conception of criminal law that excludes the distinctiveness of micro-legal cultures that have created different solutions to problems of “punishment, human action and guilt” arising from criminal law, based on their particular historical, social and political contexts. 53

The narrow focus of this “philosophy of the criminal law” sustains a strict division between criminal law, criminal justice and criminology. As outlined in Chapter 1 [1.185], the criminal law may be more meaningfully understood as part of a broader framework bridging these divisions, an approach that Lacey calls “criminalization”. 54 The increasing scepticism over treating moral and political philosophy as the conceptual framework for the criminal law has encouraged scholars to search more widely for explanatory and normative insights. Modern 49 50 51 52 53

54

N Lacey, “Introduction—Making Sense of Criminal Justice” in N Lacey, A Reader on Criminal Justice (Oxford: Oxford University Press, 1994) p 3. (New York: Oxford University Press, 2007). G Fletcher, The Grammar of Criminal Law (New York: Oxford University Press, 2007) pp 95–96. G Fletcher, The Grammar of Criminal Law (New York: Oxford University Press, 2007) p 96. For a critique of Fletcher’s claims of universalism and plea for greater attention to legal pluralism, see S Bronitt, “Toward a Universal Theory of Criminal Law: Rethinking the Comparative and International Project” (2008) 27(1) Criminal Justice Ethics 53 and M Dubber, “Comparative Criminal Law”, in M Reimann and R Zimmermann (eds), Oxford Handbook of Comparative Law (Oxford, UK: Oxford University Press, 2006) pp 1305–1306. N Lacey and L Zedner, “Legal Constructions of Crime” in M Maguire, R Morgan and R Reiner (eds), The Oxford Handbook of Criminology (5th ed, Oxford: Oxford University Press, 2012).

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criminal scholarship draws increasingly from feminism, psychology, history, sociology, regulatory theory, literary theory, human rights, economics, and so on. As Peter Alldridge suggested, the range of perspectives on the criminal law should have “no exclusions”. 55 Clearly, this grip of liberal philosophy on the criminal law is not inevitable. Indeed, Lacey has called for an alternate “social theory” for the criminal law, one that is grounded in sociology and criminology rather than analytical jurisprudence. 56 Theoretical pluralism need not be a descent into eclecticism. While rejecting the idea of grand theory or theoretical monopoly, it is important to realise that some perspectives have greater explanatory power than others in certain contexts. While feminist theory assists us to reconceptualise notions of “sexual harm”, psychology offers explanatory and normative resources for reshaping fundamental concepts of criminal responsibility. Economic and regulatory theory may offer useful perspective on how best to deal with corporate crime, Chapter 3, [3.30]. As we shall explore in Chapter 14, economic, sociological and medical perspectives may shed light on the nature of drug markets and the potential counterproductive impact of criminalisation of “pleasurable commodities”. Viewing criminal law as a “species of moral and political philosophy” as famously suggested by George Fletcher in Rethinking Criminal Law can also produce an acute form of historical myopia. 57 As noted in Chapter 1, conventional accounts of the criminal law tend to be ahistorical, concealing the contingency and conflict surrounding the development of principles and doctrines. 58 Through processes of abstraction, general principles are represented as self-evident, eternal, moral and political truths about the criminal law. By contrast, historical perspectives on the development of legal concepts and specific forms of crime can expose the fragility of principles that claim universal and fundamental status. Rather than possessing transcendent qualities, the criminal law is contingent, reflecting the social, political and moral concerns about wrongful conduct and particular groups at certain times. Adopting this perspective on the general principles of responsibility, Alan Norrie concludes that concepts of agency and responsibility that emerged in the criminal law in the 19th century were modelled on a psychological and political concept of individualism that abstracted the “legal subject” (in this context, the accused) from his or her social and political context. 59 Conventional accounts of the criminal law often conceal or suppress the fact that the obsession with “general principles” has been primarily an academic rather than a judicial or legislative project. Paradoxically, modern legal scholarship tends to minimise or deny the significance of its own role in synthesising and creating general principles. The concept of “criminal law” as a unified corpus of general principles and doctrines, as distinct from the “law of crimes”, emerges only in the 19th century. 60 This reconceptualisation of criminal discourse may be traced to the first self-styled textbook on “criminal law” published in the 55 56 57 58

59 60

P Alldridge, Relocating Criminal Law (Aldershot: Ashgate, 2000) pp 18–19. N Lacey, ““Philosophical Foundations of the Common Law”: Social Not Metaphysical” in J Horder (ed), Oxford Essays in Jurisprudence (Oxford: Oxford University Press, 2000) p 17. G Fletcher, Rethinking Criminal Law (Boston: Little, Brown and Co, 1978) p xix. “Analytic scholarship is anti-historical: it regards history as subversive because it exposes the rationalising enterprise”: MJ Horwitz, “The Historical Contingency of the Role of History” (1981) 90 Yale Law Journal 1057. A Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (3rd ed, Cambridge: Cambridge University Press, 2014) Ch 2. While some principles claim an ancient pedigree, such as the tautological maxim actus non facit reum nisi mens sit rea (an act does not make a person guilty of a crime unless that person’s mind be also guilty), their meaning and scope change significantly over time. During the 19th century, the principle moved from a normative moral understanding of fault (malice or evil) to a descriptive psychological understanding (intention, knowledge or recklessness): A Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (3rd ed, Cambridge: Cambridge University Press, 2014) especially Chs 3 and 4. [2.35]

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19th century by James Fitzjames Stephen, one of the most distinguished English judges and jurists of his time. This book, published in 1863, represented a significant transition in the order of representation of the criminal doctrine. As Shaun McVeigh and Peter Rush point out: “Stephen collapses the disparate traditions of the law of public wrongs and pleas of the Crown, that is the Institutists and the common lawyers. This sets in train the transition from the laws of crime to criminal law.” 61

Unlike previous criminal texts, Stephen distinguished “criminal law doctrine” from the rules of procedure and evidence, and subordinated specific crimes to general principles. This approach continues to represent the dominant model for thinking, rethinking and reforming the criminal law. 62 The search for general principles may be viewed as an academic enterprise, only recently attracting the attention of law reformers and the appellate courts. From a judicial perspective, general principles are ill-suited to the common law method. The judicial ability to articulate fundamental principles of universal application is hampered by the constraints of legal adjudication. Since adjudication is based on precedent, which naturally inclines to inductive reasoning, incrementalism and pragmatism, judges rarely identify the principles underlying their decisions. 63 As a consequence, a significant part of legal scholarship is devoted to the extrapolation and synthesis of the “hidden principles” of the criminal law. 64 Adopting a “principled” approach to the study of criminal law also dramatically narrows the scope of intellectual engagement. Crimes that derogate from general principles are “exceptional”, governed by their own special rules and doctrines. Though numerically significant, minor crimes of strict or absolute liability that do not require proof of a subjective fault element are viewed as unworthy of consideration. As Doreen McBarnet pointed out, this conception of the criminal law sustains an “ideology of triviality” around summary crimes and processes. 65 This ideology sustains academic invisibility around offences that deviate from general principles such as minor crimes of a regulatory nature, as well as more serious crimes such as drug dealing. The latter, far from being an exception, “is the single crime that most clearly drives the contemporary criminal justice system.” 66 As Lacey has concluded, critical perspectives provide a powerful antidote to the constraints of current legal constructions, requiring law students, teachers and practitioners to search “beyond the boundaries of criminal law and its doctrines to its social meanings, its enforcement practices, its ideological functions and so on.” 67 61

62

63

64 65 66 67

S McVeigh and P Rush, “Cutting Our Losses: Criminal Legal Doctrine” in P Rush, S McVeigh and A Young (eds), Criminal Legal Doctrine (Aldershot: Dartmouth, 1997) p 189. Note that liberal reformer Jeremy Bentham also played a significant role in creating a new conceptual framework for understanding criminal punishment and legislation: see A Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (3rd ed, Cambridge: Cambridge University Press, 2014) Ch 2. G Williams, Criminal Law—The General Part (2nd ed, London: Stevens and Sons, 1961). Discussion of legal doctrine is commonly organised around principles. This convention is not limited to academic texts, but is employed in leading practice texts which represent and reduce the law to neat propositional forms, such as C Dellitt, B Fisse and P Keyzer, The Laws of Australia (Sydney: Law Book Company, 1993–). An exception is the discussion of “general principles” in the context of drug offences in He Kaw Teh v The Queen (1985) 157 CLR 523. Brennan J divided his judgment into a statement of “The General Principles”, at 564ff, and then “Application of the General Principles to s 233B(b) and (c) [of the Criminal Code (Cth)]” at 582ff. See, for example, J Horder, “Two Histories and Four Hidden Principles of Mens Rea” (1997) 113 Law Quarterly Review 95. D McBarnet, Conviction: Law, the State and the Construction of Justice (London: Macmillan, 1981) Ch 7. P Alldridge, Relocating Criminal Law (Aldershot: Ashgate, 2000) p 23. N Lacey, “A Clear Concept of Intention: Elusive or Illusory?” (1993) 56 Modern Law Review 621 at 639.

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Adopting critical perspectives on general principles does not deny their normative significance or standing within legal culture. General principles represent an ideal (or idealised) image of how the process and substance of the criminal law should operate. Conversely, advocating a more principled approach to the development of the criminal law does not necessarily lead to the denial of external critical perspectives or the historical and political contingency of criminalisation, a point made by Ashworth. 68 As well as offering guidance to scholars, lawyers, judges and lawmakers, these principles also strive to confer legitimacy—both moral and political—on the criminal law. Modern legal scholarship has been primarily concerned with demonstrating how the criminal law fails to live up to its principles, with many liberal scholars, including Ashworth, recognising that the prospect of achieving better conformity between principle and the existing criminal law “may be a lost cause”. 69 Critical scholars, on the other hand, do not regard this “gap” between rhetoric and reality as a remediable derogation, but rather as something which is constitutive of the law itself. By resorting to a higher level of abstraction, general principles minimise and conceal disagreement (which often reflects wider moral and political conflict in society) within legal doctrine. Moreover, the analysis and reconstruction of law in terms of general principles tends to inscribe liberal values as legal values. This performs a disciplinary function, defining the intellectual boundaries beyond which the criminal law (as well as its students, scholars, practitioners and judges) must not venture. Feminist and critical legal scholars have exposed the “commonsense” liberal assumptions behind many of these principles. While liberalism may dominate our legal understanding of what is “fundamental”, the range and scope of general principles are not immutable. As we shall explore below, in the context of the criminal law there is plenty of scope for reconstructing principles of justice, such as those relating to fairness, equality and privacy, in more radical and socially inclusive ways.

PRINCIPLES OF CRIMINAL PROCESS The Relationship Between Criminal Law and Procedure [2.40] Many criminal law courses and textbooks examine process issues in a cursory and

descriptive fashion. 70 There is little attempt to examine how legal rules and principles impinge, if at all, on law enforcement practices and trial procedures. Criminal procedure is typically marginal to criminal law, represented as having practical rather than academic significance. 71 Neither has the law governing criminal procedure been a priority for law reformers—25 years after the Model Criminal Code Officers Committee (MCCOC) began its work, the section of the Code that deals with principles of criminal procedure (Chapter 1) has not substantially progressed. The MCCOC took the view that the “general principles of criminal responsibility” were fundamental and therefore accorded a greater priority. 68 69 70

71

A Ashworth, “Is the Criminal Law a Lost Cause?” (2000) Law Quarterly Review 225 at 229. A Ashworth, “Is the Criminal Law a Lost Cause?” (2000) Law Quarterly Review 225 at 255. The segregation of criminal law from criminal justice is further entrenched by the emergence of “criminal justice” as a distinct field of legal study, supported by its own texts: eg M Findlay, S Odgers and S Yeo, Australian Criminal Justice (5th ed, Melbourne: Oxford University Press, 2014); A Ashworth and M Redmayne, The Criminal Process (4th ed, Oxford: Oxford University Press, 2010). Textbooks on criminal procedure in Australia have tended to adopt a practical, jurisdictional rather than academic or national perspective, see, for example, R Fox and D Deltondo, Victorian Criminal Procedure: State and Federal law (14th ed, Sydney: Federation Press, 2015); C Corns and S Tudor, Criminal Investigation and Procedure: The Law in Victoria (Sydney: Lawbook Co, 2009); M Eburn and R Hayes, Criminal Law and Procedure in New South Wales (3rd ed, Chatsworth: LexisNexis Butterworths, 2009); cf F Feld, A Hemming and T Anthony, Criminal Procedure in Australia (Chatswood: LexisNexis Butterworths, 2015). [2.40]

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By contrast, critical scholarship has highlighted the significance of the criminal process. David Nelken has highlighted the irrelation between criminal process and the substantive law; namely, how legal rules are translated, sometimes distorted, by the criminal process. 72 Building on these critical perspectives, Lindsay Farmer proposes that the criminal law is best understood not in terms of “general principles of responsibility”, but rather through an examination of the impact of historical and procedural changes in specific areas. Farmer began his review of the criminal law of Scotland by exploring the growth of the “summary jurisdiction” in the 19th century and its role in transforming key concepts of criminal responsibility in the common law. 73 The relationship between process and substantive law in specific contexts is explored in subsequent chapters. In this chapter, we focus on four principles that have general application to the criminal law: territoriality, fairness, equality before the law and privacy.

The Principle of Territoriality All crime is local. The jurisdiction over the crime belongs to the country where the crime is committed, and, except over her own subjects, Her Majesty and the … Imperial Legislature have no power whatever. 74 [2.45] The idea that the criminal law is “territorial”—in the sense of being bound to a defined

geographic territory—is considered to be a “general thesis of the common law.” 75 This image of territoriality as the jurisdictional norm for the criminal law is reinforced by the presumption (albeit rebuttable) that offences do not have extra-territorial effect. 76 The principle of territoriality appears to be unproblematic; it is rarely addressed in standard criminal textbooks, being regarded as having greater practical, rather than academic, significance. 77 Far from being of marginal significance, jurisdiction is a fundamental concept that creates and defines the boundaries of the criminal law. As Lindsay Farmer notes: “The power of law is always a territorial question. The law draws physical boundaries in geographic space. The law orders the interior of this space into political and administrative units. Legal sovereignty means nothing without these physical aspects of space and organisation. The law is also always the law of the land.” 78 72 73 74 75 76

77

78

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D Nelken, “Criminal Law and Criminal Justice: Some Notes on their Irrelation” in I Dennis (ed), Criminal Law and Criminal Justice (London: Sweet and Maxwell, 1986). L Farmer, Criminal Law, Tradition, and Legal Order (Cambridge: Cambridge University Press, 1997). MacLeod v Attorney-General (NSW) [1891] AC 455 at 458–459 per Halsbury LC. Thompson v The Queen (1989) 169 CLR 1 at 33 per Deane J. The presumption that criminal offences do not have extra-territorial effect may be rebutted expressly or impliedly: Pearce v Florenca (1976) 135 CLR 507; Treacy v DPP [1971] AC 537 at 561 per Lord Diplock. See C Dellitt, B Fisse and P Keyzer, Chapter 5, “Territorial and Extraterritorial Jurisdiction” in 9 CRIMINAL LAW PRINCIPLES, 9.1 “The Criminal Laws”, The Laws of Australia (Sydney: Law Book Company, 1993–). See C Dellitt, B Fisse and P Keyzer, Chapter 5, “Territorial and Extraterritorial Jurisdiction” in 9 CRIMINAL LAW PRINCIPLES, 9.1 “The Criminal Laws”, The Laws of Australia (Sydney: Law Book Company, 1993–) paras 110–120, 150, 1180–1570; A Leaver, Investigating Crime: A Guide to the Power of Agencies Involved in the Investigation of Crime (Sydney: LBC Information Services, 1997) pp 33–50. By contrast, the principle of territoriality is rarely addressed by standard criminal texts: see B Fisse, Howard’s Criminal Law (5th ed, Sydney: Law Book Company, 1990). Falling between criminal law and conflicts of law, criminal jurisdiction has become an area of discrete specialisation: see D Lanham, Cross-Border Criminal Law (Melbourne: FT Law & Tax Asia Pacific, 1997) Ch 1. L Farmer, “The Law of the Land: Criminal Jurisdiction 1747–1908” in P Rush, S McVeigh and A Young (eds), Criminal Legal Doctrine (Aldershot: Ashgate, 1997) Ch 3. See also Criminal Law, Tradition, and Legal Order (Cambridge: Cambridge University Press, 1997) Ch 3. [2.45]

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The idea of territoriality reinforces ideas of national sovereignty by promoting centralisation and uniformity, rather than localisation in the administration of criminal justice. 79 By aligning criminal jurisdiction with geographical and political space, territoriality displaces alternate grounds for claiming jurisdiction, such as the status of the parties or nature of the conduct: “With the privileging of the forum deliciti [the jurisdiction where the offence occurred] the law is moving away from the face to face control of individuals towards the control of actions with particular legal space. The legal subject is abstracted from particularities of place, time and biography.” 80

These views reflect the modern conception of criminal jurisdiction that emerged in the late 18th and 19th century. A closer historical review reveals that criminal jurisdiction has never been perfectly aligned with territorial borders. In many respects, the common law evolved a highly localised view of jurisdiction that limited trials to the locality in which the crime occurred. 81 But the jurisdiction of the common law was not bounded by national borders, extending “beyond the seas” to deal with universal crimes such as piracy, an offence which received renewed attention in recent years as a result of crimes committed by pirates operating in international waters off the Somalian coast, discussed further in Chapter 15, [15.15]. 82 In relation to status, Crown immunity was the most significant deviation from territoriality as the basis for jurisdiction; neither the courts nor Parliament had power over crimes committed by the Sovereign. 83 Until the 18th century in England, the offender’s status could be regularly invoked as a basis for denying criminal jurisdiction; many accused escaped trial by claiming the “benefit of clergy”. By invariably disingenuous claims of clerical ordination (thereby invoking ecclesiastical jurisdiction over the crime), educated accused were furnished with a means of defeating jurisdiction of the criminal courts on a technicality. Proof of clergy status was ritualised by an accused reciting a passage in Latin from the Book of Psalms, proverbially known as the “neck verse”, and then receiving a branding on their thumb to prevent them claiming the benefit more than once! 84 The scope of the benefit was progressively narrowed

79 80

81

82

83 84

P Alldridge, Relocating Criminal Law (Aldershot: Ashgate, 2000) p 138. In Scots law, the power to punish under feudal customary law survived until its gradual displacement by the introduction of a centralised “summary” procedure in the 19th century. The army and church also reserved its own jurisdiction: L Farmer, “The Law of the Land: Criminal Jurisdiction 1747–1908” in P Rush, S McVeigh and A Young (eds), Criminal Legal Doctrine (Aldershot: Ashgate, 1997) pp 66–69. The importance of venue related to the need to ensure that the jury which was empanelled to hear the matter had “local knowledge” of the offender and offence: see discussion, A Leaver, Investigating Crime: A Guide to the Power of Agencies Involved in the Investigation of Crime (Sydney: LBC Information Services, 1997) p 37. Crimes committed on the high seas (such as piracy) eventually became a matter for Admiralty jurisdiction: D Lanham, Cross-Border Criminal Law (Melbourne: FT Law & Tax Asia Pacific, 1997) pp 2–3. The law governing crimes committed on the high seas, and the significance of “flag state” jurisdiction in the context of the modern cruising industry, is examined in K Lewins and N Gaskell, “Jurisdiction Over Criminal Acts on Cruise Ships: Perhaps, Perhaps, Perhaps?” (2013) 37 Criminal Law Journal 221. MacLeod v Attorney-General (NSW) [1891] AC 455 at 458–459 per Halsbury LC. By the 18th century, the benefit was no longer confined to persons belonging to religious orders and any person who could read received the benefit subject to being branded on the thumb to prevent a second claim. The range of “clergyable crimes” was reduced, and from 1718 onwards, a condition of the claim was that the offender submit to transportation for seven years: WR Cornish and G Clarke, Law and Society in England 1750–1950 (London: Sweet and Maxwell, 1989) p 558. Although diminishing in its authority, the ecclesiastical courts retained jurisdiction to try members of their parish for crimes such as drunkenness, adultery, incest, brawling and failure to attend church, until the late 18th century: p 546. [2.45]

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by legislation in the course of the 18th and 19th century, until it was formally abolished by Imperial statute in 1827. The practice of raising this plea seems not to have taken root in the Australian colonies. 85 Status, nevertheless, continues to play some role in determining the scope and application of the criminal law in Australia. Military discipline law is an exception to territoriality: members of the Australian Defence Force are subject to offences (disciplinary offences drawn from the Defence Force Discipline Act 1982 (Cth) or imported from the Criminal Code (ACT)). These are discussed in Chapter 15, [15.25] “Extraterritorial Criminal Jurisdiction”. During the colonial period, the legal status of the Indigenous persons under British rule took many years to resolve, vexing colonial courts and administrators as to whether the full jurisdiction and demands of English law governed crimes committed by and between “native persons”.

Historical perspectives The Status of Aboriginal Persons: Conflict and Contestation [2.50] A status-based approach to criminal jurisdiction, rather than strictly territorial

approach, applied during the first 40 years of colonisation in relation to Aboriginal persons. The initial approach de facto recognised the sovereignty of native tribes in relation to resolving disputes among themselves (known as crimes inter se). 86 From the 1820s onwards, increasing violent interactions between the settler and Aboriginal communities raised the inevitable legal question whether white settlers or military officers could be amenable to British justice for committing crimes against Aboriginal persons. The newly founded Supreme Court of New South Wales first addressed this issue in R v Lowe, 87 where a military officer was charged with the murder of an Aboriginal man. The case provided the first opportunity for the Supreme Court to examine whether the criminal jurisdiction protected Aboriginal people. Before the trial commenced, the leading lawyers, Dr Wardell and Mr Wentworth, objected to the court’s jurisdiction to try a British subject for a crime committed against a native. The lawyers’ submissions drew on natural law theory and law of nations (international law) to dispute whether natives who had not submitted to British sovereignty could be amenable to the protection or indeed jurisdiction of the colony’s criminal court. Forbes CJ took a clear stance on the position recognising that the Supreme Court applied only British Acts of Parliament, and could not take cognisance of any other body of law: “How far it is proper to pass an act, taking in these territories, and naming them the territory of New South Wales, and establishing therein our own rules and ordinances, is a question not for us to entertain. It is sufficient for us to say that the territory is recognised as the Colony of New South Wales. This is a judicial fact which comes within our knowledge; and beyond that we cannot go. … If the Act of Parliament has recognised a sovereignty over this country and recognised the application of English law here, we must look to British law as established here de facto.” 88

85 86

87 88

See GD Woods, A History of Criminal Law in New South Wales: The Colonial Period 1788–1900 (Sydney: Federation Press, 2002) pp 113–114. See generally on the challenges confronting British colonists in responding to violence within and between Aboriginal peoples, H Douglas and M Finnane, Indigenous Crime and Settler Law: White Sovereignty After Empire (Basingstoke: Palgrave Macmillan, 2012). R v Lowe [1827] NSWSupC 32. R v Lowe [1827] NSWSupC 32.

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The Court found the Act applied to the territory where the offence occurred and also that the “native, whatever be his denomination, [was] a British subject”. The trial of the military officer proceeded in circumstances revealing a cover-up of the killing by the military officers and local magistrates. 89 The military jury which sat with the Chief Justice acquitted the accused for lack of evidence after only five minutes deliberation! The outcome in Lowe resonates with David Neal’s conclusion: “For the original inhabitants of the colony, the Aborigines, the rule of law provided cold comfort. For the white free settlers, convicts and emancipists, it provided a measure of protection against power from the top, and eventually was the instrument through which their claim to political status was realised; for the Aborigines, its authority stood behind their forceful dispossession, its protection proved largely illusory, its courts were closed to Aboriginal testimony, and its principles denied the existence of their own laws.” 90

Lowe, which is only now receiving the academic attention it deserves, forms part of a complex legal narrative about the legal treatment of Aboriginal subjects. Indeed, two years later, in R v Ballard, 91 Forbes CJ returned to the question whether English law could apply to the murder of an Aboriginal native by another, of whom were “wandering about the country, and living in the uncontrolled freedom of nature”. Forbes CJ regarded the case as being sui generis and unlike Lowe was more receptive to the arguments based on natural law. In the absence of legal authority to the contrary and consistent with practices of the North American colonies, English law had no application to crimes committed between Aborigines. In Forbes CJ’s view, it was improper to interfere with the institutions of natural justice in which Aborigines redressed their wrongs by retaliation rather than through the courts. The legal historian Bruce Kercher, in his commentary on the early 19th century cases dealing with criminal jurisdiction over Aborigines, concluded that the significance of Ballard has been largely overlooked. This is hardly surprising as the decision was not reported, and over-shadowed by the subsequent decision in R v Murrell, 92 which seven years later held that Aborigines were amenable to English law for offences committed against one another, effectively reversing Ballard. In Murrell criminal jurisdiction was defined territorially, rather than by the status of the offenders and victims as natives. In doing so, as Kercher notes, Murrell “has the dubious reputation of being the founding case for the application of the terra nullius doctrine in Australia”. 93

89 90

91 92 93

For a detailed commentary and analysis of the case, see K Chaves, ““A Solemn Judicial Farce, the Mere Mockery of a Trial”: The Acquittal of Lieutenant Lowe, 1827” (2007) 31 Aboriginal History 122. D Neal, The Rule of Law in a Penal Colony (Cambridge: Cambridge University Press, 1991) p 78. For a general assessment of the role of the rule of law see I Holloway, S Bronitt and J Williams, “Rhetoric, Reason and the Rule of Law in Early Colonial New South Wales” in H Foster, B Berger and AR Buck (eds), The Grand Experiment: Law & Legal Culture in British Settler Societies (Vancouver: University of British Columbia Press, 2008). R v Ballard [1829] NSWSC 26. R v Murrell (1836) 1 Legge 72. B Kercher, “Ballard, R v Murrell and R v Bonjon” (1998) 3 Australian Indigenous Law Reporter 410. A similar stance was taken in Western Australia in R v Wewar (1842). For an excellent examination of how colonial courts struggled with jurisdiction over Aboriginal violence beyond the frontier: H Douglas and M Finnane, Indigenous Crime and Settler Law: White Sovereignty After Empire (Basingstoke: Palgrave Macmillan, 2012). [2.50]

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The autonomy of Aboriginal law and jurisdiction was ultimately suppressed by the spreading fiction of terra nullius—that is, that the continent of Australia was uninhabited territory, barren of Indigenous peoples and systems of law. Not all colonial judges accepted this legal fiction: see the decision of Willis J of the Supreme Court of NSW for the District of Port Phillip in R v Bonjon, 94 also discussed by Kercher. Kercher concludes that decisions like Ballard and Bonjon warrant more contemporary attention “not least because they are more consistent with the writings of Vattel [a distinguished international law scholar of the period] on the rights of nomadic peoples and … because they are more consistent with the rights of native peoples in other jurisdictions”. 95 Such claims have only in the last two decades been revived in the wake of the recognition of native title in Mabo v Queensland (No 2). 96 The implications of claims of Aboriginal criminal jurisdiction are further explored in [2.210] “The Principle of Equality Before the Law”. Tests of criminal jurisdiction: from territoriality to territorial nexus [2.55] The tests of territoriality developed by courts and legislatures, while not always

determinative, provide the legal framework within which jurisdiction is negotiated, and where necessary, determined by the jury or tribunal of fact. The principle of territoriality is rarely visible, revealing itself only in cases where criminal conduct and individuals traverse domestic or international frontiers. The principle of territoriality under common law [2.60] The leading case of Ward v The Queen 103 provided the High Court with the

opportunity for a sustained examination of the common law principles governing criminal jurisdiction. The accused, standing on the Victorian bank of the Murray River, shot and killed his victim who was standing on the opposite bank in New South Wales. The accused was tried and convicted of murder in Victoria. On appeal, the accused challenged the jurisdiction and the High Court considered that the question of jurisdiction fell to be determined either by: (1) the place where the conduct causing death initiated (the initiatory theory); or (2) the place where the consequences of that conduct occurred (the terminatory theory). 104 Under international law, either of these tests—which are termed subjective and objective territoriality respectively—will suffice for claiming domestic criminal jurisdiction. 105 The High Court in Ward first had to resolve the territorial limits of New South Wales. 106 The Court then considered and confirmed that the second approach—the terminatory 94 95 96 103

“Report of R v Bonjon”, Port Phillip Patriot (Melbourne), 20 September 1841. B Kercher, “R v Ballard, R v Murrell and R v Bonjon” (1998) 3 Australian Indigenous Law Reporter 410. Mabo v Queensland (No 2) (1992) 175 CLR 1. Ward v The Queen (1980) 142 CLR 308.

104

These theories, and the authorities cited supporting them, are discussed in D Lanham, Cross-Border Criminal Law (Melbourne: FT Law & Tax Asia Pacific, 1997) Ch 1. The High Court relied extensively on an article reviewing these competing theories: see G Williams, “Venue and Ambit of Criminal Law—Part III” (1965) 81 Law Quarterly Review 518. As Lanham notes (at p 6), the High Court omitted to mention that Glanville Williams favoured the initiatory rather than the terminatory theory! I Shearer, “Jurisdiction” in S Blay, R Piotrowicz and M Tsamenyi (eds), Public International Law: An Australian Perspective (2nd ed, Melbourne: Oxford University Press, 2005) p 159. The High Court held that the border between the two States ran along the top of the southern bank of the Murray River. Stephen J (with whom the rest of the High Court agreed) discussed a wide range of legal and historical sources, including the Constitution of New South Wales: Ward v The Queen (1980) 142 CLR 308 at 337. As the Constitution defined the State as extending across the “whole Watercourse”, Stephen J reviewed the legal effect of floods and tides on jurisdiction.

105 106

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theory—applied to these facts. Accordingly, New South Wales, rather than Victoria, had jurisdiction to try the accused for murder. This question was not merely an academic exercise, as Murphy J observed, 107 since the defence of diminished responsibility was available in New South Wales, but not in Victoria. Clearly, decisions to submit to or challenge jurisdiction involve a range of tactical as well as substantive legal considerations. As David Lanham points out, the “cross-border rules” laid down in Ward are modelled on crimes that have “one core element which dictates where it may be tried”. 108 These rules do not easily apply to crimes that have multiple elements that may be committed at different times and from different locations. As Gleeson CJ remarked in Lipohar v The Queen: “Discussion of the rule [governing jurisdiction in cases of conspiracy to defraud] usually proceeds upon the assumption that the offence is committed in only one place. That assumption is not a logical necessity, and whether it should be revised is a question that may be addressed in some future case.” 109

The tests may also be criticised as anthropocentric since they are modelled around human individuals rather than corporations. As Peter Alldridge has observed, the process of jurisdiction becomes an even more “metaphysical activity” where the criminal conduct and responsibility is diffused across the complex organisational structure of multinational global corporations. 110 The terminatory test in Ward v The Queen has been widely regarded as being the basis for criminal jurisdiction under the common law. 111 However, it is not clear whether the principle of territoriality (based on the terminatory theory) endorsed in Ward was intended to apply beyond the offence of homicide. As David Lanham pointed out, the common law rules for determining the jurisdiction for murder in many respects were “exceptional”. 112 They were framed against the historical background of murder as a felony punishable by death. Extending the jurisdiction for homicide was a politically sensitive matter, with the potential to unhinge relations between the States. 113 In these circumstances, it was not surprising that the courts adopted a test of jurisdiction that rested on territorial borders rather than some other base, such as nationality or domicile of the victim or the accused. While Ward is often represented as the ″general principle″ for determining jurisdiction, as we shall explore below, other courts have acknowledged the limitations of the terminatory theory and have adopted more flexible tests or conceptions of territoriality. A broader, inclusive test is particularly evident in cases where the criminal conduct appears to genuinely have a multi-jurisdictional dimension. 114 To widen the basis of territoriality in cases of 107 108 109 110 111

112 113 114

Ward v The Queen (1980) 142 CLR 308 at 340. D Lanham, Cross-Border Criminal Law (Melbourne: FT Law & Tax Asia Pacific, 1997) p 3. Lipohar v The Queen (1999) 200 CLR 485 at 498. P Alldridge, Relocating Criminal Law (Aldershot: Ashgate, 2000) p 142. C Dellitt, B Fisse and P Keyzer, Chapter 5, “Territorial and Extraterritorial Jurisdiction” in 9 CRIMINAL LAW PRINCIPLES 9.1 “The Criminal Laws”, The Laws of Australia (Sydney: Law Book Company, 1993–) [1250]. New South Wales: R v Kron (1995) 78 A Crim R 474; South Australia: R v Collins (1986) 42 SASR 47; Victoria: Graham v The Queen [1984] VR 649. The terminatory test has been incorporated into the tests of territorial jurisdiction in the Codes adopted in Queensland, Tasmania and Western Australia. D Lanham, Cross-Border Criminal Law (Melbourne: FT Law & Tax Asia Pacific, 1997) Ch 1. D Lanham, Cross-Border Criminal Law (Melbourne: FT Law & Tax Asia Pacific, 1997) pp 8–9. Dishonest and false representations made in one jurisdiction may result in obtaining of property or services in another: see R v Hansford (1974) 8 SASR 164, discussed in D Lanham, Cross-Border Criminal Law (Melbourne: FT Law & Tax Asia Pacific, 1997) p 11. [2.60]

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conspiracy, the courts have categorised the physical elements of the offence as being “continuing” in nature, conveniently placing the agreement and its objective in the same jurisdiction. 115 The principle of territoriality modified by statute [2.65] Legislative reforms have modified or substantially qualified the traditional territorial

test of jurisdiction. In Queensland and Western Australia, the legislature has adopted a composite test, fusing the initiatory and terminatory theories: Criminal Code (Qld), s 12; Criminal Code (WA), s 12. Other jurisdictions, such as the Australian Capital Territory, New South Wales and South Australia, have supplemented the common law with a statutory test of jurisdiction based on “territorial nexus” or “geographical nexus” 116. In other jurisdictions, the legislature responded by creating an ad hoc exception in favour of extraterritoriality for specific offences, including theft (eg, Crimes Act 1958 (Vic), s 80A), or computer offences (eg, Criminal Code (Tas), s 257F(1)). The New South Wales provision provides as follows: Section 10C Extension of offences if there is a geographical nexus (1) If: (a) all elements necessary to constitute an offence against a law of the State exist (disregarding geographical considerations), and (b) a geographical nexus exists between the State and the offence, the person alleged to have committed the offence is guilty of an offence against that law. (2) A geographical nexus exists between the State and an offence if: (a) the offence is committed wholly or partly in the State (whether or not the offence has any effect in the State), or (b) the offence is committed wholly outside the State, but the offence has an effect in the State.

Significantly, these statutory provisions do not abrogate the common law. While territorial or geographical nexus seems to constitute a significant departure from the terminatory theory, it is unclear whether the legislative test will provide greater flexibility than the common law, particularly in light of developments in the High Court, which are discussed below. 117 Beyond territoriality: the limits of the common law? [2.70] As jurisdictional challenges are resolved “case by case”, there is some uncertainty

whether the principle, theory or test of territoriality endorsed applies to all offences or is 115

116 117

DPP v Doot [1973] AC 807. “The concept of a continuing offence is invoked to expand the scope of territorial jurisdiction. That concept is used to circumvent the difficulties of pinpointing when and where a crime takes effect”: C Dellitt, B Fisse and P Keyzer, Chapter 5, “Territorial and Extraterritorial Jurisdiction” in 9 CRIMINAL LAW PRINCIPLES, 9.1 “The Criminal Laws”, The Laws of Australia (Sydney: Law Book Company, 1993–) [1280]. The complex body of authority on conspiracy to commit crime abroad or in another Australian jurisdiction is discussed in M Goode, “Two New Decisions on Criminal “Jurisdiction”: The Appalling Durability of Common Law” (1996) 20 Criminal Law Journal 267 at 273–281. See also Crimes Act 1958 (Vic), s 80A. See Criminal Code (ACT), Pt 2.7; Crimes Act 1900 (NSW), s 10C; Criminal Law Consolidation Act 1935 (SA), s 5G. It has been suggested that territorial nexus has a “similar effect” to the real and substantial link test: C Dellitt, B Fisse and P Keyzer, Chapter 5, “Territorial and Extraterritorial Jurisdiction” in 9 CRIMINAL LAW PRINCIPLES, 9.1 “The Criminal Laws”, The Laws of Australia (Sydney: Law Book Company, 1993–) [1270]. Some early decisions adopted a restrictive approach to the provision, leading one commentator to conclude that: “It appears at this stage that the courts will so interpret [the provision] to achieve nothing that was not already achieved by common law”: M Goode, “Two New Decisions on Criminal “Jurisdiction”: The Appalling Durability of Common Law” (1996) 20 Criminal Law Journal 267 at 282.

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crime-specific. As a review of the concept of territoriality concluded: “Any reader seeking a common thread of reason, rationale or plain legal reasoning in these and other decisions will be bitterly disappointed”. 118 Resolving jurisdiction exclusively by reference to the terminatory test can be overly restrictive. In addition to legislative modifications, discussed above, the test of jurisdiction has also been broadened by judicial development of the common law. In cases where the criminal activity has cross-border dimensions, some judges have resorted to more flexible tests of jurisdiction that fall broadly into one of two categories: (1)

whether the conduct of the accused affects “the peace, welfare and good government of the State” 119—this is also known as the “Queen’s Peace” test 120 or the protective theory of jurisdiction; 121 or (2) whether there is a “real and substantial link” between the offence and the jurisdiction seeking to try it. 122 The first test, which dispenses with the need to establish any physical connection to a territory, is particularly broad. Notwithstanding the inherent vagueness and legal malleability of this test, it has been “applied enthusiastically to drug and terrorism offences”. 123 The second test, which offers similar flexibility though at the cost of some certainty, has been examined by the High Court in Lipohar v The Queen. 124 The High Court in Lipohar involved determining jurisdiction in relation to complex cross-border fraud. The accused, who was tried in South Australia for conspiracy to defraud, devised a fraudulent scheme involving activity in Indonesia, Thailand, Queensland, Victoria and South Australia. The intended victim was a company based in Adelaide, and so it was in South Australia that proceedings were instituted against the accused. In this case, the parties conceded that the territorial nexus test, which was contained at that time in s 5C of the Criminal Law Consolidation Act 1935 (SA), did not confer jurisdiction. As a consequence, the High Court examined the applicable common law tests. 118

M Goode, “Two New Decisions on Criminal ’Jurisdiction’: The Appalling Durability of Common Law” (1996) 20 Criminal Law Journal 267 at 269.

119

R v Hansford (1974) 8 SASR 164 at 195 per Wells J. The origins of this formulation lie in Board of Trade v Owen [1957] AC 602 at 624 per Tucker LJ. The House of Lords held that it could be conspiracy to enter into an agreement in England to commit a crime abroad, provided that the contemplated crime abroad would be indictable had it occurred in England: “It is necessary to recognise the offence to aid in the preservation of the Queen’s peace and the maintenance of law and order within the realm”: at 624–625. The Australian courts have recast this formulation into “peace, welfare and good government”, a phrase from the plenary power to legislate contained in State Constitutions: Union Steamship of Australia Pty Ltd v King (1988) 166 CLR 1 at 6. As a principle of jurisdiction, the phrase is vague and imposes few real restrictions: R v Fan (1991) 24 NSWLR 60. A Leaver, Investigating Crime: A Guide to the Power of Agencies Involved in the Investigation of Crime (Sydney: LBC Information Services, 1997) pp 43–47. It has been suggested that this principle comes from the period of radical nationalism which produced the French and American revolutions, and was originally limited to national security crimes: Model Criminal Code Officers Committee/Standing Committee of Attorneys–General, Chapter 4—Damage and Computer Offences and Amendments to Chapter 2 (Jurisdiction), Report (2001) p 222. The Supreme Court of Canada discarded the old territoriality tests in favour of recognising jurisdiction where there is “a real and substantial link between the offence and the country”: Libman v The Queen (1985) 21 CCC (3d) 206 at 232. This test was endorsed by the Privy Council in Liangsiriprasert v Government of the USA [1991] 1 AC 225. Model Criminal Code Officers Committee/Standing Committee of Attorneys-General, Chapter 4—Damage and Computer Offences and Amendments to Chapter 2 (Jurisdiction), Report (2001), p 224. Lipohar v The Queen (1999) 200 CLR 485.

120 121

122

123 124

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The majority of the High Court, affirming jurisdiction on these facts, applied various approaches, including whether there was: (a) a “sufficient connection”; 125 or (b) a “real link” 126

between the offence and the jurisdiction. Kirby J, dissenting, adhered to the existing test of jurisdiction based on territoriality. He had been initially attracted to the Supreme Court of Canada’s “real and substantial link” test, noting the desirability of adopting simple rules of jurisdiction within a federal system. 127 Although not pressed by counsel, he noted that the Commonwealth Constitution could provide a basis for uniform rules. In this case, the matter fell to be determined by the rules enacted by the legislature or judges applying the common law. In South Australia, the legislature had enacted remedial provisions in the form of a territorial nexus test. In Kirby J’s view, the courts must restrain their enthusiasm to repair omissions appearing in such legislation. Abandoning the principle of territoriality in the common law, in his view, would require resort to legal fictions to bring conduct within the jurisdiction; such an approach would have the effect of creating new offences and applying them retrospectively. It would also require the courts to subvert the territorial division of Australia, reflected in the Constitution, into separate geographical areas of States and Territories. Since these new tests of jurisdiction extend the criminal law beyond conventional boundaries, there is an increased possibility of concurrent claims of jurisdiction between the Commonwealth, States and Territories, as well as from overseas jurisdictions. An obvious consequence of greater inclusivity is that the issue of jurisdiction requires judicial attention to focus explicitly on policy matters, such as maintaining good relations between States (known as the requirements of “international comity”), 128 as well as practical law enforcement considerations such as the necessary resources and evidence for a successful prosecution. 129 Jurisdiction is determined not simply by the application of formal legal rules, but rather involves the exercise of judicial discretion and the weighing of competing policy considerations, both national and international. 130 This issue of comity has been addressed by the High Court in Lipohar v The Queen, where Gaudron, Gummow, and Hayne JJ held that considerations of comity would have no bearing on relations between jurisdictions within a federal system since 125 126 127 128

129

130

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Lipohar v The Queen (1999) 200 CLR 485 at 17 per Gleeson CJ, at 42 per Gaudron, Gummow and Hayne JJ. Lipohar v The Queen (1999) 200 CLR 485 at 84 per Callinan J. Lipohar v The Queen (1999) 200 CLR 485 at 62 per Kirby J. As the Canadian decision of Libman v The Queen [1985] 2 SCR 178 acknowledged: “The outer limits of the test [of real and substantial link] may, however, well be coterminous with the requirements of international comity”: at 213–214 per La Forest J. In relation to crimes committed on the high seas, the “flag state” jurisdiction of the ship on which such a crime took place may lack the resources or resolve to investigate or prosecute such matters: K Lewins and N Gaskell, “Jurisdiction Over Criminal Acts on Cruise Ships: Perhaps, Perhaps, Perhaps?” (2013) 37 Criminal Law Journal 221 at 224. David Lanham reviews authorities in which non-legal factors were considered relevant to jurisdiction, representing them as a checklist of “policy considerations”: Cross-Border Criminal Law (Melbourne: FT Law & Tax Asia Pacific, 1997) pp 16–20. The breadth of a principle informed by policy or comity would not violate international law since a State may claim criminal jurisdiction unless there is proved to be a rule of international law to the contrary: Lotus Case (1927) PCIJ Series A No 10, discussed in I Shearer, Starke’s International Law (11th ed, Sydney: Butterworths, 1994) pp 183–184. The decision has been the subject of criticism: J Crawford, Brownlie’s Principles of Public International Law (8th ed, Oxford: Oxford University Press, 2012) pp 457–458. [2.70]

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“[w]ithin Australia, any rationale for the common law rule respecting comity between what became the States disappeared with federation.” 131 Lipohar v The Queen represents yet another “nail in the coffin” for territoriality. As reflected in these statutory and common law developments, the modern trend is against the traditional view that “all crime is local”. Broader tests of territoriality based on a territorial or geographical nexus, or a real, sufficient link or connection, cast further doubt on the hitherto fundamental assumption that there is only one core element of an offence that situates the crime in a particular jurisdiction. Until Lipohar v The Queen, the Australian courts remained faithful to territoriality as the appropriate test of jurisdiction. 132 Indeed, the Model Criminal Code Officers Committee (MCCOC) expressed concern that the real and substantial link test, which mirrored that which was applied to determine jurisdiction in torts cases, would lead to uncertainty in the application of the criminal law. The MCCOC concluded that such uncertainty explained the reluctance of the Australian courts “to abandon the cloak of territorialism”. 133 The Canadian approach has, however, support from legal commentators. 134 Notwithstanding the diversity of tests and theories underlying the principle of territoriality, jurisdiction rarely forms the basis for an objection by the defence. This is probably because the tests of jurisdiction under the common law and statute are inclusive rather than exclusive, and in practice it is rare to find a case where a sufficient territorial connection could not be found under one or other of the relevant tests. 135 In practice, the uncertainties in the present law do not significantly impair the functioning of the administration of criminal justice. Indeed, the current patchwork of competing common law “theories” merely provides a flexible framework within which police, prosecutors and defence negotiate jurisdiction. Only where such negotiation fails will a judge be required to direct the jury on the topic of territoriality, which the prosecution must establish on the balance of probabilities. 136 The trend extending domestic criminal law offshore has continued to intensify, especially in the aftermath of the September 11, 2001 terrorist attacks. In Australia, a more modern scheme for determining jurisdiction has been developed for the Model Criminal Code. This model scheme has been applied to federal criminal offences by the Criminal Code (Cth) Div 15, ss 15.1 – 15.4. The federal scheme of jurisdiction in the Criminal Code (Cth) is discussed in Chapter 15, [15.35]. The principle of territoriality, traditionally conceived, minimises and conceals the transnational dimensions of the criminal law. As territoriality is expanded or transcended, a fragmented and pluralistic picture of the modern criminal law emerges. The kaleidoscopic 131 132 133 134 135 136

Lipohar v The Queen (1999) 200 CLR 485 at 526. Similar comments were made by Gleeson CJ at 503 and Kirby J at 550–551. The Canadian test of “real and substantial link” had been criticised in Re Hamilton-Byrne [1995] 1 VR 129 at 139–140, 142; Isaac, Tajeddine & Elachi (1996) 87 A Crim R 513 at 522. Model Criminal Code Officers Committee/Standing Committee of Attorneys-General, Chapter 4—Damage and Computer Offences and Amendments to Chapter 2 (Jurisdiction), Report (2001), pp 229–230. See, for example, M Goode, “Two New Decisions on Criminal ’Jurisdiction’: The Appalling Durability of Common Law” (1996) 20 Criminal Law Journal 267 at 279–280. C Dellitt, B Fisse and P Keyzer, Chapter 5, “Territorial and Extraterritorial Jurisdiction” in 9 CRIMINAL LAW PRINCIPLES, 9.1 “The Criminal Laws”, The Laws of Australia (Sydney: Law Book Company, 1993–) [1250]. Thompson v The Queen (1989) 169 CLR 1 per Mason CJ, Dawson and Gaudron JJ. Since venue will often affect the range of defences and level of punishment, the minority (Brennan and Deane JJ) took the view that in cases where liability in the “other” jurisdiction is materially different, then the prosecution must establish jurisdiction “beyond reasonable doubt”. Under the common law, the burden of proof lies with the prosecution. In some jurisdictions, this has been displaced by a presumption that territorial nexus exists unless the contrary is proved: Crimes Act 1900 (NSW), s 10E(1). [2.70]

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quality of criminal jurisdiction has implications for other general principles, such as fairness and equality before the law. For example, in negotiating and determining the venue of the proceedings, law enforcement officials, prosecutors and judges must be mindful of the danger that the accused may be unfairly subject to prosecution and punishment in another State or Territory for the same conduct, thereby violating the principle against “double jeopardy”. 137 These concerns are specifically addressed in the Model Criminal Code rules governing jurisdiction, discussed above, that permit the accused to raise as a defence the fact that the conduct overseas does not constitute an offence that corresponds to the domestic offence charged. The increasingly pluralistic and fragmented nature of jurisdiction in Australian law also provides scope for the recognition of Indigenous or native criminal jurisdiction. As we explore, at [2.200], the acceptance of a status-based principle of criminal jurisdiction may lead to conflict with the fundamental principle of equality—particularly the ideal that individuals should be subject to the same treatment before the law. The growth of the federal jurisdiction and cooperative federalism [2.75] Federalism undoubtedly complicates conceptions of territoriality in Australia. In the

field of criminal law, federal, State and Territory substantive laws and procedures for enforcement overlap. This overlap between laws has grown significantly in recent years because of the expansion of federal criminal jurisdiction. 138 The Commonwealth’s legislative power to enact criminal law is restricted by the Constitution. Since the Constitution does not include an express power to legislate generally in the field of criminal law, to be constitutionally valid, federal offences must be supported by, or “incidental” to, an existing head of power. The High Court has construed these heads of power broadly, providing a wide mandate for the “federalisation” of criminal law and procedure. For example, in relation to drugs, federal jurisdiction derives from the Commonwealth’s legislative power under the Constitution to regulate “trade and commerce”, as well as “external affairs”: Commonwealth Constitution, s 51(i) and (xxix). In relation to the latter, the power to legislate is triggered by Australia’s ratification of many international treaties and conventions dealing with drugs: see Chapter 14, [14.160]. It was estimated ten years ago by the Australian Law Reform Commission that federal crimes account for approximately 10% of all criminal activity in Australia. 139 The review of federal criminal law, though not exhaustive, identified 1,555 federal criminal offences, most of which were regulatory offences found in legislation dealing with licensing regimes, trade practices and corporate law. 140 The trend to expand federal criminal law, to combat transnational crime threats and enact new regulatory offences to support national cooperative regimes, has continued unabated. At the level of enforcement, there are national cooperative schemes for prosecution in specific areas, such as the arrangements governing the prosecution of offences enacted under the Corporations Act 2001 (Cth). Under coordinating legislation, the Commonwealth Director of Public Prosecutions (DPP) has been assigned the role of prosecuting offences under uniform State and Territory laws, in effect “federalising” crimes in areas where the Commonwealth lacks constitutional authority. However, these 137 138

139 140

D Lanham, Cross-Border Criminal Law (Melbourne: FT Law & Tax Asia Pacific, 1997) Ch 3. The expansion of federal criminal law is reflected in the publication of a multi-volume looseleaf service and online resources: R Watson and A Watson, Australian Criminal Law—Federal Offences (Sydney: Lawbook Co, 1995–) and N Williams, A Payne and S McNaughton, Federal Criminal Law (Sydney: LexisNexis, 1994–). Australian Law Reform Commission, Sentencing of Federal Offenders, Issues Paper 29 (2005). Australian Law Reform Commission, Securing Compliance: Civil and Administrative Penalties in Federal Jurisdiction, Discussion Paper 65 (2002) [1.10].

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national cooperative arrangements may lack a firm constitutional basis. As Kirby J noted in R v Hughes, national schemes, in the absence of an express referral of power from the States, can be vulnerable to constitutional challenges: “Under our Constitution, criminal liability and punishment, when provided in a federal law, must be supported by demonstrable constitutional authority. Convenience and desirability are not enough if the constitutional foundation is missing.” 141

In the Hughes case, the High Court held that the authority of the Commonwealth DPP to prosecute State or Territory corporate offences under the cooperative scheme passed the constitutional test since the activity by the accused in that case impinged upon two heads of power: “trade and commerce” with other countries and “affairs external to Australia”. Consequently, the federal laws authorising the DPP to exercise enforcement powers under the relevant mirror State legislation – in this particular instance, the Corporations Act of Western Australia – were valid. However, the constitutional basis for the Commonwealth DPP prosecuting State and Territory corporate offences generally remained uncertain. As Kirby J concluded, Hughes, while upholding the national scheme on these particular facts, provided: “a fragile foundation for a highly important national law. The present accused fails in his challenge. But the next case may not present circumstances sufficient to attract the essential constitutional support.” 142

To resolve this uncertainty left by the ruling in Hughes, and provide greater assurance as to the constitutionality of a national cooperative approach to corporate regulation, the States subsequently made a “referral of power” to the Commonwealth in respect of matters relating to the formation of companies, corporate regulation and the regulation of financial services and products, and the associated investigation and enforcement powers, under the Corporations Act 2001 (Cth).

The Principle of Fairness For all the grandiose descriptions that have been offered of the adversary system of trial, and for all the pomp and self-esteem that tends to affect its professional participants, it is the best method we have yet devised for giving the suckers an even break. 143

The rhetoric of fairness and criminal justice [2.80] Alongside legality and the rule of law, the principle of fairness plays an important

legitimating function in the criminal law. It holds out to the accused, victims and the wider community the promise of obtaining justice from the substantive law and criminal process. From a philosophical perspective, justice has been conceived in a number of different ways. Liberal theorists have conceived justice in terms of “fairness”, equality of treatment and respect for individual rights. 144 The centrality accorded to individuals and their rights within this conception of justice has attracted substantial criticism. Feminist legal theorists have exposed how liberal conceptions of justice have only a limited ability to address structural and 141 142 143 144

R v Hughes (2000) 202 CLR 535 at 583. R v Hughes (2000) 202 CLR 535 at 584. Geoffrey Robertson QC, The Justice Game (London: Vintage, 1999) p 386. See J Rawls, A Theory of Justice (Cambridge, Mass: Harvard University Press, 1980); R Dworkin, Taking Rights Seriously (London: Duckworth, 1977), respectively. For a review of competing theories of justice, see T Campbell, Justice (3rd ed, Basingstoke: Macmillan, 2010) and S Wojciech (ed), Justice (Aldershot: Ashgate, 2001). [2.80]

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group-based discrimination that lies beyond the public sphere. 145 Republican theorists have similarly rejected ideas of criminal justice as “just deserts” or retribution, arguing instead for a theory based on the promotion of social freedom or dominion: see Chapter 1, [1.240]. Such theoretical debates about the meaning of justice have practical as well as philosophical implications for the criminal law, especially when translated into concrete legal rights and claims based on fairness, equality and privacy. Fairness in the administration of law is regarded as “fundamental”. It promises legitimacy for the criminal process through maintaining a balance between the State and the citizen. This equilibrium is reflected in the concept of “equality of arms” that underscores the right to a fair trial in international human rights law. 146 As McBarnet has observed: “The criminal justice process is the most explicit coercive apparatus of the State and the idea that the police and the courts can interfere with liberties of citizens only under known law and by means of due process of law is thus a crucial element in the ideology of the democratic State.” 147

This relationship between legality and fairness in upholding justice is complex. Fairness functions as a curative for the strict unbending quality of legality. The inherent opposition between these two concepts is captured within the phrase “fair trial according to law”, or the American version “due process of law” entrenched by the Fourteenth Amendment to the United States Constitution. As Gaudron J noted in Dietrich v The Queen: “It is fundamental to our system of criminal justice that a person should not be convicted of an offence save after a fair trial according to law. The expression ‘fair trial according to law’ is not a tautology. In most cases a trial is fair if conducted according to law, and unfair if not. If our legal processes were perfect that would be so in every case. But the law recognizes that sometimes, despite the best efforts of all concerned, a trial may be unfair even though conducted strictly in accordance with law. Thus, the overriding qualification and universal criterion of fairness!” 148

The centrality accorded to the “trial” by the common law reflects the limited judicial control over criminal investigation and prosecution within adversarial systems. With the exception of judicial supervision of pre-trial warrants, the trial is the forum where judges can demonstrate their fidelity to the principles of legality and fairness. Thus, the courts have recognised a right to a fair trial “in the interests of seeking to ensure that innocent people are not convicted of criminal offences”. 149 As we will examine below, the judicial commitment to avoiding unfairness is embodied in a wide range of procedural rules, such as the presumption of

145

148 149

While the theories of Rawls and Dworkin presume the existence of the welfare state and may be described as broadly welfarist, they nevertheless take individuals and their rights as the starting point. Being addressed to political action in the public sphere, the theories have only restricted scope for achieving social justice: see N Lacey, Unspeakable Subjects—Feminist Essays in Legal and Social Theory (Oxford: Hart Publishing, 1998) Ch 2. This principle has been drawn from the fair trial guarantees in Art 6 of the European Convention on Human Rights: A Ashworth and M Redmayne, The Criminal Process (4th ed, Oxford: Oxford University Press, 2010) p 34, noting that the European Court of Human Rights has played a significant role in implying this principle of equality of arms into Art 6, which has crystallized as the right of a defendant to have disclosure of “all material evidence for or against the accused”. D McBarnet, Conviction: Law, the State and the Construction of Justice (London: MacMillan, 1981) p 8 (original emphasis). Dietrich v The Queen (1992) 177 CLR 292 at 362 (footnotes omitted). See also Deane J at 326. Jago v District Court (NSW) (1989) 168 CLR 23 at 42 per Mason CJ.

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146

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innocence and burden of proof, as well as rules governing the admissibility and exclusion of evidence. The denial of a fair trial to an accused is a ground for setting aside a conviction on the grounds of miscarriage of justice. 150 The fairness principle is directed towards the process, not the substance, of the criminal law. It does not require the criminalisation or decriminalisation of any type of conduct. Rather, it merely insists that criminal proceedings operate in a way that avoids an unfair trial by minimising the risk of innocent people being convicted. So while there may be evidence that law enforcement policies and definitions of substantive crimes discriminate against certain groups within society, judges can be relied upon to apply the rules governing fact and guilt determination during the trial in an objectively fair manner. The importance of fair treatment plays a vital role in preserving public confidence in the administration of justice. There is ample evidence from psychological research that people place great emphasis on the fairness of procedures, even when they disagree with the outcome. 151

Public perceptions concerning police and criminal courts acting fairly [2.85] An Australian Institute of Criminology study reported on data from the 2007 Australian Survey of Social Attitudes regarding public attitudes towards the police and criminal courts. Regarding these institutions’ propensity to act fairly, 73.7% of respondents had, at least, quite a lot of confidence in the ability of police to act fairly, in comparison to only 51.5% of respondents with the same level of confidence in the criminal courts. 152 Significantly, the authors ran statistical regressions which found that individual respondents who had had actual contact with the police in the 12 months prior to completing the survey were slightly—but significantly—less confident in police, while those with contact with the criminal courts had higher levels of confidence in them. 153 It is also interesting that 66.9% of respondents had, at least, quite a lot of confidence in the ability of criminal courts to have regard for defendants’ rights (compared to 46.6% of respondents with a similar confidence in the criminal courts’ regard for victims’ rights), reflecting perhaps a historical focus on defendants’ rights. 154

This representation of criminal justice as a “balance” between crime control and due process is problematic: see Chapter 1, [1.130]. Critical and socio-legal research has suggested that due 150

151

152

153

154

In McKinney v The Queen (1990) 171 CLR 468, the High Court observed, in the context of jury warnings relating to uncorroborated confession evidence, that “the central thesis of the administration of criminal justice is the entitlement of an accused person to a fair trial according to law” and wherever this is not met there will be a miscarriage of justice: at 478. For High Court discussion on what “unfair” elements arising in a criminal trial would be required to constitute a miscarriage of justice, see Nudd v The Queen (2006) 80 ALJR 614 (particularly the judgment of Gleeson CJ). A Ashworth, “Crime, Community and Creeping Consequentialism” [1996] Criminal Law Review 220 at 228, citing T Tyler, Why People Obey the Law (New Haven: Yale University Press, 1990). See, generally, M Oswald, S Bieneck and J Hupfeld-Heinemann (eds), Social Psychology of Punishment of Crime (Malden: Wiley–Blackwell, 2009) Part I: “Attitudes towards Punishment and Legal Sanctions in a Changing Society”. L Roberts and D Indermaur, What Australians Think About Crime and Justice: Results from the 2007 Survey of Social Attitudes, Australian Institute of Criminology Reports: Research and Public Policy Series 101 (2009) pp 16–18. L Roberts and D Indermaur, What Australians Think About Crime and Justice: Results from the 2007 Survey of Social Attitudes, Australian Institute of Criminology Reports: Research and Public Policy Series 101 (2009) pp 16, 18. L Roberts and D Indermaur, What Australians Think About Crime and Justice: Results from the 2007 Survey of Social Attitudes, Australian Institute of Criminology Reports: Research and Public Policy Series 101 (2009) p 18. [2.85]

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process values such as fairness, while performing important ideological functions, may often be illusory when subjected to closer empirical scrutiny. In lower courts, where most suspects are processed, an “ideology of triviality” pervades summary proceedings. 155 Rather than venerate values of fairness, empirical research has revealed that trial procedures, especially those in lower courts, may operate as ritualised degradation ceremonies, paying scant attention to the ideal that those brought before the court should be presumed innocent, rather than the reverse. 156 This occurs because of the relative invisibility of the summary proceedings, and lack of legal representation for those accused in the lower courts. Though the jury trial occupies a central place in our image of criminal justice, the majority of legal proceedings are summary in nature, presided over by a magistrate sitting without a jury. Indeed, the cherished right to jury trial has been extensively abrogated by legislation—summary proceedings are so pervasive that the symbolic function of the jury now far outweighs its practical significance. The summary jurisdiction has extended significantly in the past 30 years. As we shall explore in Chapter 12 (at [12.70]) although most common theft cases will be determined by a magistrate, the test of dishonesty presumes that relevant community standards will be determined and applied by a jury. The role and impact of judicial instructions on the independence of jury deliberations is further explored at [2.190].

Section 80: an impotent constitutional right to trial by jury? [2.90] No doubt conscious of the trend toward the increasing dominance of summary justice in the late 19th century, the drafters of the Commonwealth Constitution included the following guarantee in s 80: “The trial on indictment of any offence against any law of the Commonwealth shall be by jury”. Notwithstanding a powerful dissenting judgment by Deane J, it appears that the High Court has affirmed that s 80 has procedural rather than substantive effect, leaving the legislature completely free to determine whether crimes should be “deemed” summary and thus tried without a jury. 157 In cases where the Commonwealth Parliament has specified trial on indictment, the High Court has held that there are some essential features of a trial by jury for the process to comply with s 80. These include a jury which is randomly and impartially selected; 158 representative of the community; not being selected on the basis of gender or property qualifications; 159 and independent of outside influence. 160 There is also a political dimension to the s 80 jurisprudence. 161 He argues that s 80 cases considered by the High Court, with only one exception, have either not had to consider issues regarding the justice of sentences under review (because the cases dealt with defendants tried on indictment or who pleaded guilty, rather than with defendants who were tried summarily and then argued that they 155 156

157

158 159 160

161

D McBarnet, Conviction: Law, The State and the Construction of Justice (London: MacMillan, 1981) especially Chs 7 and 8. K Laster, Law as Culture (2nd ed, Sydney: Federation Press, 2001) pp 294–295; M Feeley, The Process is the Punishment (New York: Sage, 1979). On the positive use of shame to reintegrate rather than stigmatise offenders, see J Braithwaite, Crime, Shame and Reintegration (Cambridge: Cambridge University Press, 1989). Kingswell v The Queen (1985) 159 CLR 264. See D Brown, “Lionel Murphy and the Criminal Law” in M Coper and G Williams (eds), Justice Lionel Murphy: Influential or Merely Prescient? (Sydney: Federation Press, 1997) pp 85–89, for Murphy J’s contribution to the debate; G Williams, Human Rights Under the Australian Constitution (Melbourne: Oxford University Press, 1999) pp 36–37, 103–110, for commentary on this issue generally. Chee Ming Ng v The Queen (2003) 197 ALR 10; Cheatle v The Queen (1993) 177 CLR 541. Brownlee v The Queen (2001) 207 CLR 278. Brownlee v The Queen (2001) 207 CLR 278. See further, J Stellios, “Brownlee v The Queen: Method in the Madness” (2001) 2 Federal Law Review 319; “The Constitutional Jury—“A Bulwark of Liberty”?” (2005) 27(1) Sydney Law Review 113; “The High Court’s Recent Encounters with s 80 Jury Trials” (2005) 29 Criminal Law Journal 139. As explored by V Thackeray in “Trial by Jury: A Political Analysis” (2006) 30 Criminal Law Journal 275.

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should have received a trial by jury), or because sentences imposed in those cases were within jury trial benchmark limits, as set out by the relevant legislation. 162 The exception was Zarb v Kennedy, 163 a case that dealt with the summary convictions of two years’ mandatory imprisonment for those who failed to comply with draft notices under the National Service Act 1968 (Cth). Thackeray argues that the High Court would not have considered the sentence imposed on the defendants unjust, as there were public policy objectives that were relevant to encouraging draftees to fight in Vietnam, as well as an awareness on the High Court’s part that “the punishment by the defendant was not very different to the treatment that would have been suffered by a person who complied with a call-up notice, as a draft offender and a national serviceman were both deprived of their liberty for two years”. 164 Thackeray then notes judicial dicta from both the High Court and Federal Court (in majority judgments, no less) that, if an appropriate case was before them, the wide remit the legislature currently has for bypassing s 80 would be subject to judicial re-consideration. 165

Even in superior courts, where the rhetorical assurances of fair treatment are strongest, Doreen McBarnet concludes that the rhetoric of legality and fairness rarely stands in the way of conviction: “If we bring due process down from the dizzy heights of abstraction and subject it to empirical scrutiny, the conclusion must be that due process is for crime control”. 166 Her point is not that the police, prosecutors and judges collude in deviating from legality and fairness, but rather that the law itself licenses this deviation. Judicial rhetoric venerates fairness and legality in the administration of criminal justice, while systematically denying them in the specific application of rules, discretions and remedies: see Chapter 1, [1.130]. The challenge for critical scholars has not only been to expose the dichotomy between rhetoric and reality, but also to engage in the radical reconstruction and expansion of the principle of fairness. Classification of offences and criminal proceedings

Felony versus misdemeanour [2.95] Historically, the distinction between felonies and misdemeanours developed in the

English common law to distinguish between the type of punishment to be applied. Felonies were capital crimes. The effect of passing a sentence of death (whether or not commuted to transportation or imprisonment) was “attainder”. Attainder (which means “to blacken” in Latin and is probably the source of the phrase “convict taint”) resulted in convicted felons losing all civil rights, including the right to hold property and institute legal proceedings. The felon suffered a form of “legal death” and the property of felons was therefore forfeited to the Crown. Misdemeanours were less serious offences that did not result in civil incapacitation or forfeiture, but were punishable by imprisonment or fine. Following the statutory relaxation of attainder in relation to the forfeiture of property in the late 19th century, and the subsequent demise of capital punishment generally, the distinction lost much of its practical significance. These reforms did not address the continuing legal incapacity of persons convicted of a capital felony to bring civil actions. Although attainder was rarely invoked after the 19th century, in 1979 the High Court in Dugan v Mirror Newspapers Ltd confirmed that the English doctrine, though archaic, had 162 163 164 165 166

V Thackeray in “Trial by Jury: A Political Analysis” (2006) 30 Criminal Law Journal 275 at 280–284. (1968) 121 CLR 283. V Thackeray, “Trial by Jury: A Political Analysis” (2006) 30 Criminal Law Journal 275 at 284. V Thackeray, “Trial by Jury: A Political Analysis” (2006) 30 Criminal Law Journal 275 at 284–287. D McBarnett, Conviction: Law, the State and the Construction of Justice (London: MacMillan, 1981) pp 155–156. [2.95]

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been received into New South Wales in 1828. 167 However, since the doctrine had not been abolished by statute, a person convicted of a capital felony could not bring proceedings in defamation. This anomaly was quickly remedied by legislation in jurisdictions retaining the distinction: for example, Felons (Civil Proceedings) Act 1981 (NSW). It should be noted that the forfeiture of property, pre-trial as well as post-conviction, has been revived by special legislative provisions relating to the confiscation of proceeds of crimes. For further discussion of these measures in the context of drug trafficking, see Chapter 14, [14.195]-[14.200].

Historical perspectives On the Convict Taint [2.100] In early colonial New South Wales, the full force of the doctrine of attainder was

not applied. To establish order and respect for legality, the courts ignored the doctrine and allowed civil proceedings to be instituted by and on behalf of convicted felons. In 1788, the first civil case was instituted by Henry and Susannah Kable (both convicted felons) to recover compensation for goods “lost” during their transportation. 168 Felons could seek to restore themselves civilly through a royal pardon granted by the Governor. However, as Greg Woods notes the practice was complex and had not been properly perfected in New South Wales. In 1819, litigation in England revealed that such colonial pardons were legally ineffective, and that transportees who had acquired property or entered into contracts could not sue to protect their interests. 169 This formal legal incapacity could be partially circumvented by rehabilitated felons using agents, including their wives, to hold property and enter into contracts on their behalf. The distinction between the terms “felony” and “misdemeanour” has been specifically abolished in the Australian Capital Territory, New South Wales, South Australia, and Victoria. 170 The Commonwealth never introduced the distinction, simply dividing crimes into indictable or summary offences. 171 In the Commonwealth, Australian Capital Territory, Tasmania and Victoria, crimes are referred to simply as “indictable offences” and “summary offences”. The Code States abolished the common law classifications and, with them, the doctrine of attainder. The Codes simply divide offences into categories: crimes, misdemeanours

167

168

169 170 171

Dugan v Mirror Newspapers Ltd (1979) 142 CLR 583. Gibbs J noted (at 589) that, in the early colonial period, the doctrine had been largely evaded in practice by judges requiring proof of conviction and sentence from England. For a discussion of the legal fictions resorted to overcome the civil disabilities attached to attainder see I Holloway, S Bronitt and J Williams, “Rhetoric, Reason and the Rule of Law in Early Colonial New South Wales” in H Foster, B Berger and AR Buck (eds), The Grand Experiment: Law & Legal Culture in British Settler Societies (Vancouver: University of British Columbia Press, 2008). For a discussion of the relative civil freedom of convicts in Australia, see D Neal, The Rule of Law in a Penal Colony (Cambridge: Cambridge University Press, 1991) Ch 1; B Kercher, The Unruly Child: A History of Law in Australia (Sydney: Allen and Unwin, 1995) Ch 2; Debt, Seduction and other Disasters: The Birth of Civil Law in Convict New South Wales (Sydney: Federation Press, 1996) Ch 3; I Holloway, S Bronitt and J Williams, “Rhetoric, Reason and the Rule of Law in Early Colonial New South Wales” in H Foster, B Berger and A Buck (eds), The Grand Experiment: Law and Legal Culture in British Settler Societies (Vancouver: University of British Columbia Press, 2008) Ch 4. GD Woods, A History of Criminal Law in New South Wales (Sydney: Federation Press, 2002) p 100. Crimes Act 1900 (ACT), s 9; Crimes Act 1900 (NSW), s 580E; Criminal Law Consolidation Act 1935 (SA), s 5D; Crimes Act 1958 (Vic), s 322B(1). Crimes Act 1914 (Cth), ss 4G – 4H.

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and simple offences (and regulatory offences in Western Australia). 172 The distinctions are relevant to determining the mode of trial (indictable/summary). The division of indictable offences into “crimes” and “misdemeanours” in the Northern Territory, Queensland and Western Australia make for complexities in terminology when reviewing Australian criminal law. Since this book will be concerned predominantly with the law relating to indictable offences, we will refrain from further dividing indictable offences into felonies or crimes, as opposed to misdemeanours, and will simply use the generic term “offences”. In modern criminal law, the classification of offences is most significant for determining the mode of trial used to adjudicate guilt. Crimes are conventionally divided into the following classes: • offences triable on indictment before a jury, known as “indictable offences”; • offences triable summarily before a magistrate, known as “summary offences”; • offences triable either way, known as “hybrid offences”. Typically, indictable offences are determined before a judge and jury, and so are usually reserved for more serious offences. Summary offences require trial before a magistrate, who sits as both the tribunal of law and fact. There are also “hybrid offences”, where the accused in an indictable matter may elect to be tried before a single judge sitting without a jury. For example, in New South Wales, both the accused person and the prosecutor may apply for trial by judge alone. 173 There are also indictable offences, scheduled under the NSW Act, that must be dealt with summarily unless the prosecution elects to proceed by way of indictment. 174 There is also another type of hybrid offence: the summary offence that may be heard by a Supreme Court judge sitting without a jury. In New South Wales, s 475B of the Crimes Act 1900 (NSW) has been introduced to deal with complex “white collar” crimes. Commercial fraud trials can be extremely complex (arguably too complex for a jury) and may take many months. This section provides a quicker procedure for dealing with such cases. However, s 475B clearly indicates that it is only the accused who can elect for this type of trial. Table 1 Types of offences and terminology Jurisdiction Cth ACT NSW NT Qld SA Tas Vic WA

172 173

174

Offences triable by judge and jury (most serious) indictable indictable serious indictable crime crime indictable indictable indictable crime

Offences triable by judge and jury (less serious) indictable indictable minor indictable crime misdemeanour indictable indictable indictable misdemeanour

Offences triable by magistrate summary summary summary simple or regulatory simple or regulatory summary summary summary simple

Criminal Code (NT), s 3; Criminal Code (Qld), s 3; Criminal Code (Tas), s 5; Criminal Code (WA), s 3. Criminal Procedure Act 1986 (NSW), s 132. Trial by judge alone is available where the accused person and prosecutor agree: s 132(2). Trial by judge alone cannot be compelled where the accused person refuses to agree: s 132(3). In cases where the prosecution refuses to agree, trial by judge alone may be ordered where the court considers it to be in the “interests of justice”: s 132(4). Criminal Procedure Act 1986 (NSW), Sch 1, ss 258 – 273. [2.100]

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Indictable versus summary offences [2.105] Indictable offences take their name from the indictment, which is a written document

prepared on behalf of the Crown (commonly the Director of Public Prosecutions). Hence, cases are listed as R v Smith (“R” representing either “Regina”, during the reign of a Queen, or “Rex”, during the reign of a King). Originally, the bill of indictment was laid before a “grand jury”, numbering between 17 and 23 men, who had to decide whether the bill was “true”; that is, whether there was a case for the accused to answer. If it was true, the case would then proceed to trial by a “petty jury” consisting of 12 men. In early colonial Australia, the summary trial without jury was established as the norm. There was a brief period between 1824 and 1828, which Greg Woods describes as the “Forbes experiment” where trial by jury (including the use of a grand jury) was introduced for Quarter Sessions by Francis Forbes, the first Chief Justice of New South Wales. Paradoxically, at this time, more serious matters heard before the Supreme Court continued to be tried before a military panel of seven. This grand jury operated as a powerful investigative body, exposing the unlawful punishments meted out by magistrates to convicts in 1825. The experiment was short-lived, terminated by imperial legislation. 175

The grand jury Downunder [2.110] The rarity of the trial is a reflection of the ubiquity of the guilty plea. The grand jury was abolished in England and most of its colonies during the 19th century, as noted above, with the role of laying an indictment ceded to professional Crown Prosecutors and, later, Directors of Public Prosecutions. Its preservation by statute in Victoria was unique in Australia: see Application by Brian William Shaw. 176 This case was a rare attempt by some concerned citizens to seek the convening of a grand jury to investigate alleged illegal activities of the Freemasons. Freemasonry is a secret order, founded in 18th century England, which is devoted ostensibly to charitable causes, but remains the source of many conspiracy theories. The court exercised its discretion to refuse to convene a grand jury, rejecting the applicants’ claim that the Freemasons were an unlawful association committing offences under the Crimes Act 1958 (Vic). The grand jury has since been abolished in Victoria by the Criminal Procedure Act 2009 (Vic), s 253.

The overwhelming majority of criminal matters are initiated by way of a summons (hence “summary offences”): Chapter 1, [1.135]. As a result, most proceedings in Australia are conducted before a magistrate sitting without a jury. Rather than the norm, indictable matters heard before a jury may be viewed as exceptional. As a creation of statute, the summary procedure only applies where stipulated by legislation. The Act creating the offence must expressly state that the crime is a summary offence or that the offence must be tried by a magistrate. Whilst indictable offences are prosecuted on behalf of the Crown, in summary matters the proceedings are initiated by an informant, that is, the person who lays the information before the magistrate. The informant can be anyone, but is usually the arresting officer or the officer responsible for conducting prosecutions in that police station.

175 176

See GD Woods, A History of Criminal Law in New South Wales (Sydney: Federation Press, 2002) pp 56–61. Application by Brian William Shaw (2001) 4 VR 103 at [1].

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Historical perspectives Trial by Jury in Australia [2.115] Trial by jury was originally considered impractical within a society comprised largely of felons, and was only gradually introduced in the mid-19th century as a result of a concerted political campaign by Emancipists. 177 For all the rhetoric and hyperbole surrounding the advent of the jury trial in the Supreme Court of New South Wales in 1830, Blackstone’s “palladium of liberty” played more like a colonial farce. The first civil jury was empanelled in the Supreme Court for an action of trespass arising from a malicious prosecution in Hall v Rossi. 178 The conclusion of the first Supreme Court jury trial was marked, somewhat comically, with a stern judicial admonishment to members of the jury for passing notes to each other during the trial. The judge read out some of the jurors’ notes, which ridiculed the proceedings, and included the following statements: “The great proverb writer has informed the world that there is nothing new under the sun. Had he seen the contents of this jury-box yesterday, and knew that the persons therein were sitting in judgment on the properties of others, even he would have acknowledged himself in error. Of all humbugs in this humbugging world, the most detestable is to sit for hours in a blackguard Botany Bay jury-box, on the same seats that have been polluted by the canaille (Anglice) Mancipists, listening to the prosing blunders of a superannuated old wig. What is there surprising in seeing such worthies here? They still labour in their vocation. Formerly pockets were picked by them, contrary to law. The Legislature has taken pity on them, and now permits some of the most skilful (and on that account the most wealthy), to follow their favourite pursuits, under cover of the law. Folks shake hands with you here, the very speaking to whom in the street, at home, would insure one’s being disinherited.”

The judge, Mr Justice Dowling, was sufficiently moved to call for the Attorney-General to consider the matter for prosecution. It was an inauspicious start to the long-championed right to trial by one’s peers in Australia. For minor matters, the summary procedure is often justified for its efficiency. Although the accused loses the right to a trial by jury, there are some advantages associated with summary proceedings. First, it provides for a speedier trial, as Blackstone, writing in the 18th century, noted: “There is no intervention of a jury, but the party accused is acquitted or condemned by the suffrage of such person as the statute has appointed for his judge. An institution designed professedly for the greater ease of the subject, by doing him speedy justice.” 179

Secondly, summary offences place limits on the powers of the judicial officer, limiting the range of penalties available to the court. The modern trend is firmly in favour of expanding

177 178 179

D Neal, The Rule of Law in a Penal Colony (Cambridge: Cambridge University Press, 1991) Ch 7; GD Woods, A History of Criminal Law in New South Wales (Sydney: Federation Press, 2002) Ch 6. Hall v Rossi [1830] NSWSC 16 (15 March 1830). W Blackstone, Commentaries on the Laws of England (1765) Book IV, p 280. As legal historian Bill Cornish has pointed out, the rise of summary justice stemmed from the desire to deal with local offenders engaging in less serious crime more efficiently and effectively, avoiding the lengthy detention of prisoners on remand pending trial, where they would experience “evils of idleness and contamination of bad association”: W Cornish et al, The Oxford History of the Laws of England (Oxford: Oxford University Press, 2010) vol 8, p 115. [2.115]

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summary jurisdiction and the range of sentencing powers of magistrates. 180 For a discussion on the importance of efficiency and economic models of criminal justice, see Chapter 1, [1.120]ff, “Theories of criminal justice”. Criminal proceedings may be commenced by way of a summons, as an alternative to arrest. A summons is a notice served on the accused by a court official instructing the accused to appear before the court on a particular date. The courts have construed the power to arrest or proceed by way of summons in a manner that provides maximum protection to individual liberty. 181 The use of infringement notices, as another way of disposing of criminal matters without trial, has been explored in Chapter 1, [1.160]. Magistrates also played an important role in relation to indictable matters. From the 16th century in England, magistrates had conducted committals in which they interrogated witnesses and suspects for the purpose of reducing oral testimony to writing, which could then be used by the grand and petty juries. Essentially performing an investigative function, magistrates did not consider themselves empowered to discharge cases for lack of evidence—at best, they might grant bail in such cases. The power to discharge the accused was expressly conferred by statute through the adoption of the English Jervis Act in 1850. The committal evolved gradually from an investigative process into an impartial preliminary hearing to evaluate the strength of the prosecution case and determine whether there is a reasonable prospect that a jury, properly instructed, would be likely to convict. 182 It has been claimed that the function of the modern committal is to operate as a procedural filter, with the objectives of: (1)

eliminating weak cases;

(2)

disclosing the prosecution case;

(3)

identifying guilty pleas early in the prosecution process;

(4)

rehearsing the case and clarifying the issues; and

(5) providing a public venue for the testing of the prosecution case. 183 Empirical research, however, suggests that very few committals result in discharge. In one study conducted, only 7.6% of cases were discharged at the committal. 184 Indeed, the reviewing power of the magistrate through the committal is further undermined by the power of the DPP to lay an “ex officio” indictment in cases where there has been no committal, though this is rarely done. 185 It has been held that the power to lay an ex officio indictment is

180 181 182

183

184

185

P Darbyshire, “An Essay on the Importance and Neglect of the Magistracy” [1997] Criminal Law Review 627. See, for example, Williams v The Queen (1986) 161 CLR 278 and Grassby v The Queen (1989) 168 CLR 1 at 9–10 per Dawson J. Criminal Procedure Act 1986 (NSW), s 64. For a historical review of these changes in the roles of the magistracy see GD Woods, A History of Criminal Law in New South Wales (Sydney: Federation Press, 2002) pp 173–177. These objectives are drawn from P Salmelainen, “Understanding Committal Hearings” (1992) 18 Crime and Justice Bulletin 2 and M Findlay, S Odgers and S Yeo, Australian Criminal Justice (5th ed, Melbourne: Oxford University Press, 2014) pp 130–131. P Salmelainen, “Understanding Committal Hearings” (1992) 18 Crime and Justice Bulletin 2. See also the national study by the Australian Institute of Criminology: by D Brereton and J Willis, “Evaluating the Committal” In J Vernon (ed), The Future of Committals (Canberra: Australian Institute of Criminology, 1990) Proceedings of a Conference held 1–2 May 1990. For example, Criminal Procedure Act 1986 (NSW), s 8(2).

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not amenable to judicial review. 186 Rather than view the committal as merely a rubberstamping exercise for the prosecution, a less sceptical explanation of the very low rate of discharge is that the committal stage has a disciplinary effect on both investigators and prosecutors, leading to the more careful selection and preparation of cases. The second function of the committal is that it allows the accused to be informed of the prosecution’s case and the evidence that will be called at trial. Pre-trial disclosure helps the defence prepare its case, though the extent to which the fair trial principle imposes a duty of disclosure on police and prosecutors is murky. In practice, the duties of disclosure are now regulated by prosecution policies and guidelines. 187 While civil pleadings and discovery procedures are not features of criminal trials, there are increasing moves, in the name of efficiency, to impose formal pre-trial disclosure obligations on both the prosecution and the defence. These obligations are typically imposed by prosecution guidelines or practice statements issued by the courts, though in some jurisdictions these duties of disclosure have been formalised in legislation. The stated purpose of pre-trial disclosure is to reduce delays in complex criminal trials. To promote litigation efficiency, these legislative regimes cast obligations on the accused to disclose the nature of the defence before trial. In both systems, failure to comply with the procedures may lead to exclusion of evidence or adverse comment to the jury about the failure to comply. Similar non-legislative schemes, based on voluntary defence disclosure, have been adopted under the rubric of “case management” in many jurisdictions. 188 This has raised concerns about the negative impact of these efficiency reforms on the right to a fair trial; in particular, the extent to which they threaten the presumption of innocence by requiring the accused to furnish evidence of his or her own guilt. 189 Others have argued that the reforms enacted in Victoria are measured and justifiable responses for promoting efficiency, and do not abrogate fundamental principles of criminal justice. 190

186

187

188

189

190

Barton v The Queen (1980) 147 CLR 75. For a fuller discussion on the rules governing the institution of criminal proceedings, see Chapter 2 of C Cato, The Law and Practice of Criminal Litigation (Sydney: LBC Information Services, 1998). Lawless v The Queen (1979) 142 CLR 659. In the 1990s, the DPPs in Australia worked together to promote more national consistency in prosecution practices and policies. The various federal, State and Territory DPP policies and guidelines set out a range of powers and responsibilities of prosecutors, including duties of disclosure before and during the trial: see, for example, Commonwealth Director of Public Prosecutions, Prosecution Policy of the Commonwealth: Guidelines for the Making of Decision in the Prosecution Process (nd) and Disclosure Statement (nd) at www.cdpp.gov.au/partner-agencies/disclosure-statement (cited 6 June 2016); Guideline 18, Prosecution Guidelines of the Office of the Director of Public Prosecutions for New South Wales (nd) at http://www.odpp.nsw.gov.au/prosecution-guidelines (cited 1 February 2017). These are reviewed in R Refshauge, “Frankenstein’s Monster—Creating a Criminal Justice System for the 21st Century” (2000) 9(4) Journal of Judicial Administration 185. M Findlay, S Odgers and S Yeo, Australian Criminal Justice (5th ed, Melbourne: Oxford University Press, 2014), pp 131–133. S Bronitt and M Ayers, “Criminal Law and Human Rights” in D Kinley (ed), Human Rights in Australian Law (Sydney: Federation Press, 1998), pp 130–132; see also M Findlay, S Odgers and S Yeo, Australian Criminal Justice (5th ed, Melbourne: Oxford University Press, 2014), pp 133–136 discussing the reforms in Victoria and New South Wales. G Flatman and M Bagaric, “Accused Disclosure—Measured Response or Abrogation of the Presumption of Innocence” (1999) 23 Criminal Law Journal 327. [2.115]

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Plea-bargaining in the shadow of the criminal law [2.120] The rarity of the trial is a reflection of the ubiquity of the guilty plea, which often follows discussion between the lawyers working for the prosecution and the defence. 191 Charge negotiation, or charge-bargaining, better describes the common practice involving negotiations between the defence and the prosecution in relation to the charges which will proceed to hearing. As a result of these negotiations, an accused may opt to plead guilty to fewer charges than initially laid, or to a lesser charge(s) in return for the prosecution offering no evidence on the remaining charges. The pressures and incentive to plead to fewer or lesser charges can lead to injustices from both a victim and defence perspective, though DPP guidelines and policies are aimed at ensuring that the prosecution achieves a charge agreement that not only procures a guilty plea but adequately represents the criminality revealed by the facts. 192 The term “plea bargaining”, which is widely used in the US, has been described as misleading in the Australian context, since our judges do not participate in negotiations over penalties, approving deals where the defence pleads guilty in exchange for an agreed lesser sentence. This antipathy toward bargaining over penalties in criminal trials is apparent in Barbaro v The Queen; Zirilli v The Queen 193 where the High Court held that it is inconsistent with the nature of criminal sentencing proceedings for a sentencing judge to receive a submission from the Crown as to the appropriate sentence or even as to the available range of sentences. The responsibility for determining sentence must be, and be seen to be, as a matter for the judge alone. The majority identified three propositions that should guide sentencing: “First, it is for the prosecution, alone, to decide what charges are to be preferred against an accused person. Second, it is for the accused person, alone, to decide whether to plead guilty to the charges preferred. That decision cannot be made with any foreknowledge of what sentence will be imposed. Neither the prosecution nor the offender’s advisers can do anything more than proffer an opinion as to what might reasonably be expected to happen. Third, and of most immediate importance in these applications, it is for the sentencing judge, alone, to decide what sentence will be imposed.” 194 The position in relation to negotiation of civil penalties is different, and the High Court has held that the limitations in Barbaro do not apply in those circumstances; as the proceedings were civil, and the penalty did not follow from a conviction, there was much wider scope for the parties to agree upon facts and appropriate settlement of the dispute, including the level of penalty to be paid: Commonwealth v Director, Fair Work Building Industry Inspectorate. 195

The right to a fair trial: Dietrich v The Queen [2.125] Although the fair trial principle is claimed to be fundamental and universal—indeed,

a basic human right protected by international law—its scope and effect are legally circumscribed in a number of ways. The judicial duty is not to ensure fairness in the criminal process, but rather to prevent the accused being subjected to an unfair trial and the risk of wrongful conviction. Limiting the duty in this way means that judges do not have the responsibility of ensuring fairness during investigation. That said, what happens before a trial 191

192

193 194 195

For an early survey of plea-bargaining which combines empirical research and discussion of reform, see K Mack and S Anleu, “Reform of Pre-Trial Criminal Procedure: Guilty Pleas” (1998) 22 Criminal Law Journal 263. See also J Bishop, Prosecution without Trial (Sydney: Butterworths, 1989). N Cowdery, The DPP’s Decision to Prosecute, NSW Bar Association Bar Practice Course (2007). For the full text of the Prosecution Guidelines of the Office of the Director of Public Prosecutions for New South Wales (2007) see http://www.odpp.nsw.gov.au/prosecution-guidelines (cited January 2017). [2014] HCA 2. Zirilli v The Queen [2014] HCA 2 at [47]. [2015] HCA 46.

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may hamper the ability of the court to conduct a fair trial. For example, serious pre-trial delay may have a negative impact on the ability of accused persons to conduct their defence as established in the High Court decision of Jago v District Court (NSW). 196 In this “indirect” way, procedural and evidential rules for ensuring fairness during the trial impinge on pre-trial methods of investigation and prosecution decision-making. 197 As Lord Scarman has observed in R v Sang: “The judge’s control of the criminal process begins and ends with the trial, though his influence may extend beyond its beginning and conclusion”. 198

The Right to A Fair Trial: Justice is Blind but Never Asleep … Cesan v The Queen; Mas Rivadavia v The Queen 199 [2.130] The issue has arisen whether the right to a fair trial may be infringed by the fact that

the trial judge had been asleep during parts of the trial. The High Court in Cesan v The Queen; Mas Rivadavia v The Queen quashed a conviction for drug trafficking and ordered a retrial on the ground that the trial had been compromised where the trial judge had been asleep during significant parts of the trial. [The trial judge was later diagnosed as suffering from severe obstructive sleep apnoea and subsequently retired on the grounds of permanent disability]. The High Court rejected the approach of the New South Wales Court of Criminal Appeal that had considered whether the accused had been disadvantaged as a result. Rather, the High Court held that there had been a miscarriage of justice arising because the trial judge did not exercise that degree of supervision of the proceedings which would ensure, so far as reasonably practicable, that the jury paid attention to all of the evidence as it was given. French CJ agreed that there was a miscarriage of justice “… constituted by the judge’s substantial failure to maintain the necessary supervision and control of the trial. Further, his conduct created a distraction during the trial process. In particular it distracted the jury and led at least some of the members of the jury to regard the judge with amusement.” 200 The Court declined to consider the argument that the impaired consciousness of the judge had prejudiced the right to jury a trial under s 80 of the Constitution, deciding the case instead according to the ordinary principles of the common law of Australia and the miscarriage provisions under the relevant state legislation. Further practical limitations to the fair trial principle emerge when it is applied to specific contexts. The judicial rhetoric of fairness shifts from one of “universal absolutes” to a “fundamental principle subject to reasonable qualifications”. As we shall explore below, the fair trial principle is dependent on the gravity of the offence. For example, in Dietrich v The Queen 201 the majority of the High Court held that the lack of legal representation for an accused charged with a “serious crime” may result in an unfair trial. While the High Court did not hold that the right to a fair trial was inapplicable to proceedings for minor crimes (this was 196 197

198 199 200 201

Jago v District Court (NSW) (1989) 168 CLR 23. The impact of law on investigative practices is often overstated. Australian research reveals that many leading High Court decisions that had an impact on investigative powers were not communicated to the police or were misconstrued: D Dixon, Law in Policing: Legal Regulation and Police Practices (Oxford: Oxford University Press, 1997) p 205. R v Sang [1980] AC 402 at 455. Cesan v The Queen; Mas Rivadavia v The Queen (2008) 236 CLR 358. Cesan v The Queen; Mas Rivadavia v The Queen (2008) 236 CLR 358 at [64]. Dietrich v The Queen (1992) 177 CLR 292. [2.130]

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not the question being litigated), there is some indication that the standards of fairness are not truly universal or absolute. 202 Indeed, the right to a fair trial may be viewed as a right to a trial that is reasonably fair in the circumstances. Like the notion of “perfect justice”, the fair trial is a normative ideal which judges should strive to achieve. As Brennan J pointed out in Jago v District Court (NSW): “If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in law and whether the legal right of an accused, truly stated, is a right to a trial as fair as the courts can make it. Were it otherwise, trials would be prevented and convictions would be set aside when circumstances outside judicial control impair absolute fairness.” 203

There are clearly constitutional limits on the judicial obligation to ensure a fair trial. The courts cannot address the resource implications of the fair trial principle, such as the availability and allocation of resources for legal aid. The separation of the spheres of governmental responsibility—judicial, executive and legislative—reinforces judicial independence and authority. The doctrine of separation of powers places the law above and beyond politics. However, the constitutional confinement of judicial responsibility for the fair trial effectively sequesters the courts from the wider political contexts of the administration of criminal justice. Yet, fairness within the criminal process is not solely a judicial or even legal responsibility. It is a responsibility that should be shared between judicial, political and social institutions. Indeed, this is consistent with the position under the International Covenant on Civil and Political Rights (ICCPR), which imposes enforceable obligations in relation to the fair trial on all organs of state, including the legislature, executive and judiciary. 204 There is considerable indeterminacy surrounding many aspects of the principle of fairness. Many fundamental questions remain unresolved, including: • What is a “fair” trial? • How far does the fair trial principle extend? • Does the principle apply pre-trial to preliminary hearings or committals? • Does the principle apply to the methods of gathering evidence? • If the fair trial principle confers legal rights and duties, what remedies are available for breach? • Does the inherent judicial power to halt or stay legal proceedings apply where the unfairness to the accused is caused or sanctioned by statute? • Does the Commonwealth Constitution contain an implied right to a fair trial, and does this extend to State as well as federal proceedings? 205 202

203

204 205

120

Not everyone accepts the rationing of the right to only serious charges. As Stephen Odgers noted, “it is difficult to understand what the nature of the potential sentence has to do with the fairness of the trial”: (1993) 17 Criminal Law Journal 102. Jago v District Court (NSW) (1989) 168 CLR 23 at 49 (emphasis added). This dicta was approved in Dietrich v The Queen (1992) 177 CLR 292 at 345 per Dawson J. Gaudron J similarly noted: “A trial is not necessarily unfair because it is less than perfect” at 365. See Art 2(2) of the International Covenant on Civil and Political Rights, as clarified by the United Nations Human Rights Committee General Comment, Nos 2 and 3, 36 UN GAOR, Supp No 40 (a/36/40) Annex VII. Discussion of these issues is beyond the scope of this chapter. On the constitutional developments, see J Hope, “A Constitutional Right to A Fair Trial? Implications for the Reform of the Australian Criminal Justice System” (1996) 24 Federal Law Review 173 at 181–189 and F Wheeler, “The Doctrine of Separation of Powers and Constitutionally Entrenched Due Process in Australia” (1997) 23(2) Monash University Law Review 248. For a comparative Australian and English perspective on the “principle of a fair trial”, as well as discussion on the impact of the fair trial principle on procedural and evidentiary matters in Australian law, see J Spigelman, “The Truth Can Cost Too Much: The Principle of a Fair Trial” (2004) 78(1) Australian Law Journal 29. [2.130]

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At its core, the definition of “fairness” in the fair trial principle proves to be elusive. As Deane J observed in Jago v District Court (NSW) the general concept of fairness “defies analytical definition. Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial which will or may affect the overall trial to an extent that it can no longer properly be regarded as a fair one”. 206 The categories of unfairness were not closed. In Dietrich v The Queen, 207 members of the High Court acknowledged that the right to a fair trial under the common law, by its nature, is an evolving concept incapable of exhaustive definition. Acknowledging its contingency, Gaudron J observed that: “What is fair very often depends on the circumstances of the particular case. Moreover, notions of fairness are inevitably bound up with prevailing social values … And, just as what might be fair in one case might be unfair in another, so too what is considered fair at one time may, quite properly, be adjudged unfair at another.” 208

While the fair trial concept in domestic law remains narrowly circumscribed, there are signs that the principle under international law is evolving into a fundamental value that extends throughout the criminal process. This is evident in a decision of the European Court of Human Rights, Teixeira de Castro v Portugal, 209 which held that evidence obtained by deliberate police entrapment violated the right to a fair trial under Art 6 of the European Convention on Human Rights. The court affirmed that the guarantee of fairness is not limited to legal proceedings, but underpins the whole course of the criminal process including the way in which evidence was taken. 210 The judicial discretion to exclude evidence gathered by entrapment in Australia, which is based on public policy considerations rather than fairness, is further discussed in Chapter 14. There is potential to further extend the concept of the fair trial under the common law into the pre-trial phase. As Mason CJ observed in Jago v District Court (NSW): “There is no reason why the right should not extend to the whole course of the criminal process.” 211 The role of international human rights law on the development of the right to a fair trial and its remedies is further explored below.

Feminist perspectives The Fair Trial Principle: A Flawed Balance? [2.135] Normative disagreement over the fair trial principle is related not only to

structural issues, such as its scope and possible remedies. More fundamentally, feminists have raised concerns that the concept of fairness that underlies the adversarial system is 206 207 208 209 210

211

Jago v District Court (NSW) (1989) 168 CLR 23 at 57. Dietrich v The Queen (1992) 177 CLR 292 at 300 and 353. Dietrich v The Queen (1992) 177 CLR 292 at 364. Teixeira de Castro v Portugal (9 June 1998) Reports of Judgments and Decisions 1998-IV. Teixeira de Castro v Portugal (9 June 1998) Reports of Judgments and Decisions 1998-IV, [34], citing Van Mechlen v The Netherlands (23 April 1997) Reports of Judgments and Decisions 1997-III, p 711, §50. This approach has been incorporated into English law and has the potential to influence the future development of Australian law: see S Bronitt, “The Law in Undercover Policing: A Comparative Study of Entrapment and Covert Interviewing in Australia, Canada and Europe” (2004) 33(1) Common Law World Review 35; C Harfield, “The Governance of Covert Investigation” (2010) 34(3) Melbourne University Law Review 773; B Murphy, “Retrospective on Ridgeway: Governing Principles of Controlled Operations Law” (2014) 38 Criminal Law Journal 38. Jago v District Court (NSW) (1989) 168 CLR 23 at 29. A similar point was made in X7 v Australian Crime Commission & Anor (2013) 248 CLR 92 at 116 (French CJ and Crennan J) [2.135]

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constrained by its traditional “binary” or “bipolar” construction. 212 That is, the state’s interests are pitted against the individual accused and the judge’s obligation is to maintain a fair balance between these two parties. To ensure that the power and superior resources of the state do not upset this balance, the law develops safeguards against wrongful conviction of the innocent, such as the presumption of innocence and the standard of proof. This image of balancing the interests of the state and the accused is reinforced in popular culture and legal iconography. As Patricia Easteal has pointed out: “Another striking flaw in the portrayal of justice is that the scales [of justice] are held by a woman, the goddess Astraea; an ironic use of female imagery since women have and continue to play such a marginal and silent role in the legal system.” 213

The imagery is deficient not only because there are so few female judges, but also because it traditionally excludes victims, their families and the wider community from the scales of justice. 214 In the modern criminal process, it is often said that victims have no special status beyond their position as a potential witness for the prosecution. 215 While there is an increasing commitment at the international level to improving the treatment of victims of crime, 216 prosecutors are not representatives or advocates for victims, nor for the communities affected by crime. The wider interests of the state and victims do not necessarily coincide. This has been evident, for example, in the controversy and subsequent law reform efforts to deal with cases where those accused of rape have sought access to the complainant’s confidential medical and/or counselling records. 217 That said, in the past two decades, victims’ rights movements have played a role in securing reforms addressing this imbalance. Their efforts are evident through the use of victim impact statements during sentencing; the inclusion of victims as participants in restorative justice conferences; and the creation of new statutory positions resourced to assist and represent the interests of victims. Indeed, some criminal justice scholars have argued that even the 212

213 214

215 216

217

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P Easteal, “Beyond Balancing” in P Easteal (ed), Balancing the Scales: Rape, Law Reform and Australian Culture (Sydney: Federation Press, 1998) Ch 14. See, generally, P Easteal, Less than Equal: Women and the Australian Legal System (Sydney: LexisNexis Butterworths, 2001) Ch 1. These attributes also apply to civil procedure: see R Hunter and K Mack, “Exclusion and Silence: Procedure and Evidence” in N Naffine and R Owens (eds), Sexing the Subject of Law (Sydney: LBC Information Services, 1997) Ch 9. P Easteal, Balancing the Scales: Rape, Law Reform and Australian Culture (Sydney: Federation Press, 1998) p 205. See United Nations, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, GA Res 40/34, UN GAOR, 40th Session, Supp No 53, at 213, UN Doc A/40/53 (1985). This has resulted in the widespread adoption of “victims’ charters”, leading to compensation schemes and the introduction of “victim impact statements” at the sentencing stage. C Pollard, “Victims and the Criminal Justice System: A New Vision” [2000] Criminal Law Review 5. Celia Wells argues that despite widespread feminist awareness, evidence continues to demonstrate that a gendered understanding of criminal law and justice has yet to be fully realised: “The Impact of Feminist Thinking on Criminal Law and Justice: Contradiction, Complexity, Conviction and Connection” (2004) Criminal Law Review 503 at 515. A Cossin, “Tipping The Scales in Her Favour: The Need to Protect Counselling Records in Sexual Assault Trials” in P Easteal (ed), Balancing the Scales: Rape, Law Reform and Australian Culture (Sydney: Federation Press, 1998) Ch 7. For a survey comparing approaches in Canada, Australia and the United States, see S Bronitt and B McSherry, “The Use and Abuse of Counselling Records in Sexual Assault Trials: Reconstructing the ’Rape Shield’” (1997) Criminal Law Forum 259. See T Henning and S Bronitt, “Rape Victims on Trial: Regulating the Use and Abuse of Sexual History Evidence” in P Easteal (ed), Balancing the Scales: Rape, Law Reform and Australian Culture (Sydney: Federation Press, 1998) Ch 6. [2.135]

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process of criminalisation itself is increasingly “victim-driven” or “victim-oriented”, as reflected in the adoption of offences related to stalking, hate crime, human trafficking etc. 218 While the principle of equality has provided the basis for the reform of sexual assault laws, the fair trial principle has provided a foundation for challenging such initiatives. Defence counsel have argued that rape trials should be permanently stayed on the ground that “rape shield laws”, which aim to limit humiliating and degrading cross-examination on the complainant’s sexual history, violate the accused’s right to a fair trial. 219 While ultimately unsuccessful in Australia, in the United Kingdom similar arguments have been successful based on Art 6 of the European Convention on Human Rights (ECHR). Invoking the obligation under the Human Rights Act 1998 (UK) to interpret legislation to conform to the ECHR, the House of Lords in R v A has interpreted the rape shield provision in s 43 of the Youth Justice and Criminal Evidence Act 1999 (UK) “as subject to the implied provision that evidence or questioning which is required to ensure a fair trial under Article 6 of the convention should not be treated as inadmissible”. 220 The principle has also been invoked to stay proceedings where the complaint is substantially delayed because the complaint relates to sexual abuse perpetrated on the victim as a child. 221 The traditional adversarial conception of the criminal process in terms of a “battle model”—the state versus the individual—is clearly open to challenge. Feminists have argued for wider use of alternate dispute resolution, such as mediation, claiming that these processes are more “culturally feminine” and better able to accommodate the female subject. 222 This feminine approach to dispute resolution is contrasted with the masculine construction of “justice” in terms of rights, autonomy and impartiality. 223 While mediation offers advantages in terms of contextualising disputes and enabling parties to produce a consensual outcome, it poses the danger (especially vivid in the criminal justice context) of concealing legal wrongs against women from public scrutiny. As Rosemary Hunter and Kathy Mack point out: “The emphasis on privacy and confidentiality [in mediation] can reinforce the law’s construction of sexed harms to women as not suitable for consideration or remedy by formal legal processes.” 224 Thus far, under the rubric of restorative justice, offenders and victims in the criminal context have been brought together to participate in a diversionary option where guilt is 218

219

220 221

222 223

224

L Sebba, “Victim-Driven Criminalisation? Some Recent Trends in the Expansion of the Criminal Law” in B McSherry, A Norrie, and S Bronitt (eds), Regulating Deviance: The Redirection of Criminalisation and the Futures of Criminal Law (Hart Publishing, Oxford, 2008). See T Henning and S Bronitt, “Rape Victims on Trial: Regulating the Use and Abuse of Sexual History Evidence” in P Easteal (ed), Balancing the Scales: Rape, Law Reform and Australian Culture (Sydney: Federation Press, 1998) Ch 6. R v A [2001] 93 All ER 1 at 18 per Lord Steyn. The prosecution of a doctor for alleged sexual abuse of children patients was stayed on the grounds of the victims’ “inexcusable delay”: Geoffrey Davis v DPP (SC No 782 of 1994), discussed in P Easteal, “Suppressing the Voices of Survivors: Sexual Exploitation by Health Practitioners” (1998) 33(1) Australian Journal of Social Issues 211 at 222–227. R Graycar and J Morgan, The Hidden Gender of Law (2nd ed, Sydney: Federation Press, 2002) pp 445–446. Carol Gilligan argues that the legal voice—which is implicitly male—is based on logic of justice, whereas the female voice attaches greater value to the “ethic of care”: In A Different Voice (Cambridge, MA: Harvard University Press, 1982), discussed in K Daly, “Criminal Justice Ideologies and Practices in Different Voices: Some Feminist Questions about Justice” in N Lacey (ed), Criminal Justice (Oxford: Oxford University Press, 1994). R Hunter and K Mack, “Exclusion and Silence: Procedure and Evidence” in N Naffine and R Owens (eds), Sexing the Subject of Law (Sydney: LBC, 1997) p 188. [2.135]

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not contested (see Chapter 1, [1.95]). Indeed, feminist concern about power imbalances and lack of transparency has led to some reticence about whether these methods can be applied to family violence. Julie Stubbs argues that the (gendered) dynamics of family violence are inconsistent with a restorative justice approach; that it poses risk to the victim’s safety; and perpetuates the privatisation of family violence. 225 Notwithstanding these concerns, some jurisdictions have extended restorative justice conferences to domestic violence offences. 226 The dichotomy between male and female approaches to dispute resolution has also been challenged at a more fundamental level. Criminologist Kathy Daly has pointed out that the common feminist accusation that “justice” is masculine and therefore incapable of feminine “care” is an over-simplified representation of existing criminal processes. In many areas, such as the discretion to prosecute and the sentencing stage, considerations of “care” do intrude when taking into account the potential negative impact of prosecution or imprisonment on dependent family members. 227 Rather than abandon the adversarial system, there is scope for re-conceptualising the fair trial principle in holistic and inclusive terms. As Gaudron J pointed out in Dietrich v The Queen, the concept of fairness is not immutable and may properly take account of changing social values. 228 The adversarial system is neither undermined nor its “balance” upset by valuing the legitimate interests of victims. Indeed, adjustment to the traditional balance may be essential for achieving “justice”. As Helena Kennedy observed: “Civilised men and women adhere to a social contract requiring them to settle disputes in courtrooms rather than with pistols at dawn. That involves the provision by courts of symbolic retribution, an assuagement for the victims and their families as well as society. But the contract ceases to operate effectively if victims are not dealt with fairly in the courts or defendants cannot be guaranteed a fair trial. There is a constant tension between the needs of those who suffer crime and those who are accused of it, and it is within that tension that justice is defined. There has to be a constant fine tuning to a changing world and a willingness to shed preconceptions.” 229

Under international human rights law, there are signs that the concept of a fair trial is evolving to accommodate the rights of victims and other participants in the criminal process such as witnesses. The European Court of Human Rights has held that, in relation to the needs of preserving the anonymity of witnesses and victims, the fair trial principle in Art 6 of the ECHR is broad enough to encompass the interests of victims and their families. 230 Reconceiving justice in terms of victims’ interests addresses the traditional exclusion of women from the scales of justice, yet victims’ interests cannot be paramount. Kathy Daly has pointed to the dangers of reconstructing criminal law and justice practices exclusively from the standpoint of victims: 225 226 227 228 229 230

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J Stubbs, “Domestic Violence and Women’s Safety: Feminist Challenges to Restorative Justice” in H Strang and J Braithwaite (eds), Restorative Justice and Family Violence (Cambridge: Cambridge University Press, 2002). See Crimes (Restorative Justice) Act 2004 (ACT), s 16 which extends to both young offenders and adults. K Daly, “Criminal Justice Ideologies and Practices in Different Voices: Some Feminist Questions about Justice” in N Lacey (ed), Criminal Justice (Oxford: Oxford University Press, 1994) p 238. Dietrich v The Queen (1992) 177 CLR 292 at 364. H Kennedy, Eve Was Framed—Women and British Justice (London: Vintage Books for Chatto and Windus, 1993) p 12. Doorson v The Netherlands (1996) 22 EHRR 330; Van Mechlen v The Netherlands [1997] HRCD 431, discussed in A Ashworth and M Redmayne, The Criminal Process (4th ed, Oxford: Oxford University Press, 2010) p 49. A report by JUSTICE, a leading non-governmental human rights and law reform organisation, has similarly proposed: “A fundamental principle of criminal justice is that it must show integrity towards both victims and offenders”: Victims in Criminal Justice (London: JUSTICE, 1998) Recommendation 1.2, p 5. [2.135]

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“A victim-centred strategy can easily lead to a feminist law and order stance, and we should be wary of this for several reasons. It can spill over to a more punitive treatment of women defendants, and it can have especially harsh consequences for ethnic minority men.” 231

Feminists understandably express some scepticism toward “rights-based” reformist agendas that draw exclusively from the traditional catalogue of human rights in which political and civil rights are privileged over social and economic ones. 232 The classical liberal freedoms protected by Bills of Rights and to a lesser extent, by the common law, maintain and inscribe boundaries between public and private spheres. This approach offers only limited opportunities for remedying entrenched gender discrimination occurring outside the public sphere. Feminist scholarship has produced both a “critique of rights”, as well as engaging in the reconstruction of concepts—such as equality and privacy—in ways that better protect the interests of women. The public/private dichotomy is explored further in “The public/private dichotomy: malleable and discriminatory”, [2.250]. Gender discrimination is structurally embedded within the substance and procedure of the criminal law. The media has highlighted “unfair” sexist and insensitive judicial comments made during rape trials. Closer scrutiny of these remarks reveal that judicial “gender bias” is often based on established evidential and procedural rules, such as the requirement to give a corroboration warning in sexual cases. 233 An inclusive notion of fairness, that both avoids the pitfalls of “balancing” and accommodates a wider range of interests, could provide a more effective basis for tackling structural discrimination within the criminal process. 234 It could provide the normative principle for challenging and reconstructing discriminatory rules of evidence that unfairly discredit the testimony of women and children in sexual offences cases. One such rule is the requirement in trials involving sexual offences to give mandatory jury warnings that it is dangerous to rely on the uncorroborated testimony of the complainant or that a failure to make a prompt complaint may render the testimony less credible and worthy of belief. 235 The discriminatory basis of these special evidential rules, and reforms over the years, are critically evaluated in Chapter 11 at [11.180]. A more expansive notion of fairness may also support the widening of “legal standing”, facilitating and providing resources for independent legal representation for victims. These developments would provide the first step toward “the generation of ‘feminist procedure’ in these cases—a procedure that would incorporate women’s experiences and knowledge”. 236

231 232 233

234 235

K Daly, “Criminal Justice Ideologies and Practices in Different Voices: Some Feminist Questions about Justice” in N Lacey (ed), Criminal Justice (Oxford: Oxford University Press, 1994) p 240. H Charlesworth, “Taking the Gender of Rights Seriously” in B Galligan and C Sampford (eds), Rethinking Human Rights (Sydney: Federation Press, 1997) Ch 3. See Senate Standing Committee on Legal and Constitutional Affairs, Gender Bias and the Judiciary (1994). This federal inquiry was prompted by publicity given to judicial remarks by Bollen J during a rape trial: see Ch 11, [11.25]. The Committee concluded that the directions were largely sanctioned by law, and that the problem of gender bias was systemic rather than individual: at [18]. P Easteal, “Beyond Balancing” in P Easteal (ed), Balancing the Scales: Rape, Law Reform and Australian Culture (Sydney: Federation Press, 1998), Ch 14. Notwithstanding the statutory abolition or modification of these warnings in most jurisdictions, the judicial practice of offering informal warnings on these dangers of false accusation persist: K Mack, ““You Should Scrutinise Her Evidence With Great Care”: Corroboration of Women’s Testimony About Sexual Assault” in P Easteal (ed), Balancing the Scales: Rape, Law Reform and Australian Culture (Sydney: Federation Press, 1998) Ch 5. [2.135]

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Images of balance pervade debates about the administration of criminal justice. In Chapter 1, we explored Herbert Packer’s influential theory of criminal justice as a balance between the competing models of “crime control” and “due process”: [1.125]. “Balancing” is the act of striving to attain a state of perfect equilibrium between competing interests. Judges, lawyers and law reformers seem constantly to be engaged in “balancing acts”. For example, the Australian Law Reform Commission, in reforming the rules of criminal evidence, concluded that a “critical issue is the way the balance is struck between the prosecution and the defence”. 237 Yet there is increasing scepticism, even within liberal circles, as to whether “balancing” is a useful concept. Andrew Ashworth long ago warned of the dangers of “creeping consequentialism” associated with balancing rhetoric that reduces criminal justice reform to the utilitarian calculus of weighing, trading and trumping competing interests. The rhetoric of balancing obscures and suppresses the rights and interests in conflict, such as the rights of victims and the community. Instead of “balancing”, Ashworth has sketched a “principled approach” to reform which accords maximum respect for rights: “The first step should be to ascertain what the aim of a given part of the criminal process is, and then to ascertain what rights ought to be accorded to suspects, defendants and victims. If there are conflicts, as there often are, then the justifications for the rights and their relative strength must be examined with care. To short circuit this process with bland assertions of ‘balance’ leads to sloppy reasoning.” 238

In more recent work, Ashworth and Redmayne have further developed this rights-based framework for the criminal process, drawing on the European Convention on Human Rights, which has both legal and political salience in the United Kingdom since the enactment of the Human Rights Act 1998 (UK). Though not without its limitations, these authors claim that the rights-based theory provides the best way of accommodating the conflicts of values and interests which occur in the criminal justice system: “[T]he human rights framework has been offered as a way of dealing with those conflicts that has a firmer moral and political foundation than consequentialist theories and has greater integrity and transparency than approaches that simply refer to ‘balancing’. However, two limitations of rights theories must be kept firmly in view—the gap between the law in action and the law in the books, and the political volatility of criminal justice systems.” 239

The significance of the principle of equality before the law for the criminal process is examined in the next section. While sympathetic to the concern that utilitarian balancing invariably means crime control trumps due process, the limitations of a “principled approach” based on rights have been identified above: first, it tends to conceal the inherent contested nature of fundamental legal concepts, and, secondly, it tends to inscribe a narrow set of liberal values as legal values.

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237 238 239

R Hunter and K Mack, “Exclusion and Silence: Procedure and Evidence” in N Naffine and R Owens (eds), Sexing the Subject of Law (Sydney: LBC, 1997) p 192, citing H Koh, “Two Cheers for Feminist Procedure” (1993) 61 University of Cincinnati Law Review 1201 at 1202–1203. Australian Law Reform Commission, Evidence, Report No 38 (1987), p 19, following the “balancing” approach adopted by the Royal Commission into Criminal Procedure (1981) in the United Kingdom. A Ashworth “Crime, Community and Creeping Consequentialism” [1996] Criminal Law Review 220 at 229. A Ashworth and M Redmayne, The Criminal Process (4th ed, Oxford: Oxford University Press, 2010) p 58.

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Terrorism law reform: balancing security and liberty? [2.140] The limitations in the balancing approach are most apparent in the field of legal responses to terrorism. Post-9/11, much of the debate about the expansion of State power to combat terrorism has been framed as striking a balance between security and liberty. 240 Although a pervasive feature of public policy in the field of counter-terrorism, the balancing approach has been subject to significant academic criticism. A common objection is that balancing promotes consequentialism in which the “ends justify the means”, a calculus in which individual interests are sacrificed for community gains. Such consequentialist logic opens the door for justifications for torture and other inhumane practices that currently contravene Australian and international law prohibitions: discussed in Chapter 15, [15.85]. 241 Another objection relates to the relative weight of attaching competing values in a balancing model, with the distributive effects between security and liberty being uneven—security is typically enhanced not through interference with our own liberty, but by sacrificing the freedoms of others, typically young Muslim males. 242

International perspectives on the fair trial principle [2.145] While fairness may be said to be a fundamental value of criminal justice guiding legal

development, its formulation as a distinct “right” that confers remedies under the common law is a relatively recent innovation. In Australia, international human rights law has been influential in the domestic recognition of the common law right to a fair trial. Article 14 of the ICCPR guarantees the general right, in both criminal and civil proceedings, to a “fair and public hearing by a competent, independent and impartial tribunal established by law”. It then specifies a number of due process safeguards: Art 14(2) contains the “presumption of innocence” (considered at [2.160]). Article 14(3) states: In the determination of any criminal charge against him [or her], everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he [or she] understands of the nature and cause of the charge against him [or her]; (b) To have adequate time and facilities for the preparation of his [or her] defence and to communicate with counsel of his [or her] own choosing; (c) To be tried without undue delay; (d) To be tried in his [or her] presence, and to defend himself [or herself] in person or through legal assistance of his [or her] own choosing; to be informed, if he [or she] does not have legal assistance, of this right; and to have legal assistance assigned to him [or her], in any case where the interests of justice so require, and without payment by him [or her] in any such case if he [or she] does not have sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him [or her] and to obtain the attendance and examination of witnesses on his [or her] behalf under the same conditions as witnesses against him [or her]; (f) To have the free assistance of an interpreter if he [or she] cannot understand or speak the language used in court; 240 241 242

J Waldron, “Security and Liberty: The Image of Balance” (2003) 11(2) The Journal of Political Philosophy 191. Torture is prohibited under the Criminal Code (Cth), ss 268.13, 268.25, 268.73, as well as the ICCPR, Art 7. M Freeman, “Order, Rights, and Threats: Terrorism and Global Justice” in R A Wilson (ed), Human Rights in the “War on Terror” (Cambridge: Cambridge University Press, 2005) p 48. For a fuller exploration of “balancing” debates, see S Bronitt, “Balancing Security and Liberty: Critical Perspectives on Terrorism Law Reform” in M Gani and P Mathew (eds), Fresh Perspectives on the “War on Terror” (Canberra: Australian National University E Press, 2008) Ch 5, available online at http://press.anu.edu.au/publications/freshperspectives-war-terror (cited 5 January 2017). [2.145]

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(g) Not to be compelled to testify against himself [or herself] or to confess guilt.

Article 14(7) enshrines the principle of double jeopardy, which has been discussed above. These rights are variously protected under common law as well as in Commonwealth, State and Territory legislation, including the human rights legislation enacted in the Australian Capital Territory and Victoria: see [2.150]. The High Court cases of Jago and Dietrich framed the protection of the fair trial in terms of an institutional duty of the court to ensure the trial process was not unfair – consistent with the common law notion of negative liberties, rather than positive rights, and the rule of law. The judgments in Dietrich, in framing the common law remedies, took particular judicial notice of the fair-trial guarantees in the ICCPR and the equivalent provisions contained in the ECHR and the Canadian Charter of Rights and Freedoms. 243 The majority held that, although there is no positive right to legal representation at public expense under the common law, compelling an indigent accused to face serious criminal charges without legal representation could result in an unfair trial, which imposed upon the courts a duty to stay legal proceedings as an abuse of process. 244 Although the terms of Art 14(3)(d) of the ICCPR provided limited assistance in shaping the common law right, the majority of the High Court noted that their “qualified approach” to legal representation followed the interpretation adopted by the European Court of Human Rights and the Supreme Court of Canada. 245 The decision has had a significant impact on governmental priorities and policies of Legal Aid Commissions around Australia. 246 The decision in Dietrich signified a new “transnational approach” to legal adjudication, under which binding obligations under international law, including those contained in the ICCPR, could be considered a legitimate influence on the judicial development of the common law. 247 Undoubtedly, in further elaborating the content of this right, legal practitioners and judges may draw upon the “minimum guarantees” laid

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244 245 246

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See discussion of Art 14 of the International Covenant on Civil and Political Rights (ICCPR) in the following judgments within Dietrich v The Queen (1992) 177 CLR 292: Mason CJ and McHugh J at 300, 305–307, Deane J at 337, Toohey J at 351, 359–361, and Gaudron J at 373. Although dissenting, Brennan J viewed the ICCPR as an expression of “contemporary values” and therefore was relevant in general terms to the development of the common law: at 321. His refusal to extend the right to a fair trial, however, was motivated by concern about the appropriate limits of judicial intervention in the law-making process. Dawson J, dissenting, also accepted that the common law was inconsistent with Art 14(3)(d), but concluded that the ICCPR had no bearing on the development of the common law since the relevant case law was clear and unambiguous: at 347–349. The duty of the trial judge to grant a stay of proceedings to prevent an unfair trial was first recognised in Barton v The Queen (1980) 147 CLR 75 at 95–96; see also Williams v Spautz (1992) 174 CLR 509. Dietrich v The Queen (1992) 177 CLR 292 at 307–309 per Mason CJ and McHugh J. G Zdenkowski, “Defending the Indigent Accused in Serious Cases: A Legal Right to Counsel?” (1994) 18 Criminal Law Journal 135 and S Garkawe, “Human Rights in the Administration of Justice” (1994) 1 Australian Journal of Human Rights 371. In Victoria, reductions to the legal aid funding available for instructing defence solicitors in 2013 led to numerous stay applications on the ground that reducing funding would impinge upon the right to a fair trial in Dietrich (1992) 177 CLR 292. This legal strategy, which was based the common law rather than the Victorian Charter, was upheld on appeal, leading to swift change in legal aid policy. The issues of legal principle and policy are explored in A Flynn, J Hodgson, J McCulloch and B Naylor, “Legal Aid and Access to Legal Representation: Redefining the Right to a Fair Trial” (2016) 40(1) Melbourne University Law Review 207. See also Mabo v Queensland (No 2) (1992) 175 CLR 1. See, further, A Mason, “The Influence of International and Transnational Law on Australian Municipal Law” (1996) 7 Public Law Review 20. [2.145]

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down in Art 14(3) and the jurisprudence and commentary that has developed around the ICCPR and its European and Canadian counterparts. 248

Human rights perspectives Domesticating International Human Rights Law: ACT and Victoria Experiments [2.150] International human rights law has exerted an influence on domestic criminal

process principally in the fields of procedure and evidence. However, this impact should not be overstated. While the High Court has held that international human rights law may be relevant to the development of the common law as “an expression of contemporary values” or “fundamental rights”, it does not constitute an overriding source of law. 249 Under the Australian legal system, international law has no direct legal effect until incorporated into domestic legislation. 250 Domestic incorporation of the ICCPR has not occurred in Australia, though the Australian Capital Territory has enacted the Human Rights Act 2004 (ACT) and Victoria has largely followed the ACT model in its Charter of Human Rights and Responsibilities Act 2006 (Vic). Over the past decade, momentum for an equivalent Act at the national level has been growing. The first Rudd Government in 2007 announced national public consultation into human rights chaired by Frank Brennan. The Report of the National Human Rights Consultation, released in 2008, contained 31 recommendations to improve the promotion and protection of human rights in Australia, which included support for enacting national human rights legislation: the consultation found strong public support for such legislation with 87.4% of submissions favouring adoption. 251 Ultimately, the Rudd Government deferred the idea of national legislation, prioritising education and more active parliamentary review with human rights protection. To assist the later, the Australian Government requested the Australian Law Reform Commission (ALRC) to examine how Commonwealth laws infringe identified “traditional” rights and freedoms, which included the right to a fair trial, and to consider whether infringement was justified in the sense of being necessary or proportionate. 252 The ALRC “Freedoms Inquiry,” as it is known, covered a broad territory, though it expressly declined to offer “concluded judgments about whether these laws are appropriately justified”. Under this so-called dialogue model of human rights legislation adopted in the United Kingdom, ACT and Victoria, courts are placed under a duty to interpret legislative provisions consistently with these rights, or, if this is not possible, to make a declaration of incompatibility or inconsistent interpretation. Upholding the principle of parliamentary 248

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250 251 252

KP Duggan, “Reform of the Criminal Law with Fair Trial as the Guiding Star” (1995) 19 Criminal Law Journal 258 at 271. For an excellent discussion of potential influence of recent European human rights jurisprudence see A Flynn, J Hodgson, J McCulloch and B Naylor, “Legal Aid and Access to Legal Representation: Redefining the Right to a Fair Trial” (2016) 40(1) Melbourne University Law Review 207 at 230–235. Dietrich v The Queen (1992) 177 CLR 292 at 321 per Brennan J. Dawson J, dissenting, found that the present law clearly conflicted with the ICCPR, but concluded that the ICCPR had no relevance since the authorities were clear and unambiguous: at 347–349. See also A Mason, “The Influence of International and Transnational Law on Australian Municipal Law” (1996) 7 Public Law Review 20. See A Mason, “The Role of the Judiciary in the Development of Human Rights in Australian Law” in D Kinley (ed), Human Rights in Australian Law (Sydney: Federation Press, 1998). Attorney-General’s Department, National Human Rights Consultation Report (2009). Australian Law Reform Commission, Traditional Rights and Freedoms, Report No 129 (2016). [2.150]

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supremacy, the courts do not have the power to invalidate legislation on the grounds of inconsistency with the enumerated human rights. As is the case with the Human Rights Act 1998 (UK), the Australian provisions do not permit the courts to invalidate legislation that is inconsistent with human rights but, consistent with parliamentary supremacy, places the responsibility for amending the law upon the legislature. A report into the first five years of operation of the Human Rights Act 2004 (ACT) (hereafter HRA), compiled by the ACT Human Rights Act Research Project based at the Australian National University, assessed and summarised the impacts of the HRA as follows: “Over 60 per cent of the HRA cases concern the criminal law, covering issues such as bail, search warrants, admissibility of evidence, treatment of persons in custody, the particular rights of children in the criminal process, the right to trial without undue delay, the right to a jury trial and sentencing issues, including circle sentencing, a community-based sentencing option for Indigenous offenders. This focus on criminal issues reflects the general trend of use of bills of rights in other jurisdictions.” 253

The ACT legislation is, however, more limited than the UK model in several respects. First, there is uncertainty over the applicability of the ACT legislation to the Australian Federal Police (AFP) where their powers rest largely, or even partly, on federal rather than Territory law. Secondly, the HRA applies exclusively to “Territory law”, which is defined in the Dictionary to the Act as “an Act or statutory instrument”. The exclusion of the common law from the HRA potentially limits the impact of the HRA, leaving litigants and the courts searching and straining for a “Territory law” to which the HRA might attach. Both these features of the HRA raise the prospect that law enforcement officials may engage in strategic “choice of law”, employing powers based in federal rather than Territory law (or even the common law) to avoid their obligations under the HRA. Although federal criminal law remains outside the protective net of the HRA, it is important not to underestimate its potential impact, especially in relation to shaping legislative policy formation and educating the wider community. 254 The debate about which is the “right” model of human rights protection in Australia will no doubt continue: indeed, the Queensland Government instituted a public inquiry in 2016 to examine the desirability of enacting human rights legislation along the lines of that adopted in the UK, ACT and Victoria. International law influences the interpretation of domestic statutes in other ways. In accordance with ordinary principles of statutory interpretation, where Australian legislation incorporates or refers to a provision of an international human rights instrument, wholly or in part, the “prima facie legislative intention is that the transposed text should bear the same meaning in the domestic statute as it bears in the treaty”. 255 In relation to general legislation that does not specifically incorporate or refer to international human rights provisions, the 253

254

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The ACT Human Rights Act Research Project, The Human Rights Act 2004 (ACT): The First Five Years of Operation (2009) p 47: http://www.acthra.anu.edu.au/documents/ACTHRA_project_final_report.pdf (cited 1 May 2016). See Report of the ACT Bill of Rights Consultative Committee, Towards An ACT Human Rights Act (May 2003) and S Bronitt, “Editorial: The Human Rights Act 2004 (ACT): A Claytons Bill of Rights or New Magna Carta?” (2004) 28(6) Criminal Law Journal 325. The complex relationship between federal constitutional law and the Australian Capital Territory and Victorian legislation is explored in J Stellios, “State/territory Human Rights Legislation in a Federal Judicial System” (2008) 19 Public Law Review 52. Applicant A v Minister of Immigration and Ethnic Affairs (1997) 71 ALJR 381 at 383 per Brennan CJ. This principle of interpretation is reflected in the statutes of some jurisdictions: see Acts Interpretation Act 1901 (Cth), s 15AB(2). Moreover, courts should interpret such provisions in light of the decisions of relevant international tribunals: Dietrich v The Queen (1992) 177 CLR 292 at 304–305. [2.150]

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Australian common law recognises a rebuttable presumption that Parliament intended to conform to its fundamental human rights obligations. 256 Legislation must be construed, as far as its language permits, consistently with these human rights. 257 While judges may strenuously assert the right or even their duty to consider international human rights law in developing the common law or interpreting statutes, this freedom to incorporate indirectly human rights into Australian law is necessarily constrained by both precedent and parliamentary sovereignty. As Kirby J observed in R v Swaffield; Pavic v The Queen: “To the fullest extent possible, save where statute or established common law authority is clearly inconsistent with such rights, the common law in Australia, when it is being developed or re-expressed, should be formulated in a way that is compatible with such international and universal jurisprudence.” 258

There are of course limits to this interpretive duty. For example, any judicial development that would potentially widen the basis of criminal liability must be cognisant of the dangers of retrospective application. The principle that a person should not be held liable or punished for conduct that was not clearly criminal at the time of its commission (nullum crimen/nulla poena sine lege) is itself a fundamental human right protected by Art 15 of the ICCPR. While the principle of non-retrospectivity operates as a brake on arbitrary exercises of judicial power, it does not preclude common law development in the criminal law. International human rights law accepts that absolute certainty and predictability is impossible within common law jurisdictions. The European Court of Human Rights held that the development of the common law (in this case, the House of Lords effectively overturned a long-recognised marital rape immunity) would not offend the principle against non-retrospectivity “provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen”. 259 Nevertheless, such cases raise legitimate concerns about the limits of judicial law-making within a liberal democracy. 260 Where domestic law is either undeveloped or ambiguous, the judiciary is clearly faced with a dilemma—should it wait for Parliament to legislate (which may never happen, because of political inertia or stalemate), or should it develop common law doctrine in a manner that is consistent with international human rights standards? See further Chapter 11, [11.30]. Within “dualist” legal systems such as Australia, which maintain a strict divide between domestic and international law, the principal route for vindicating human rights protected by international law is litigation before the appropriate international court or tribunal. Following Australia’s ratification of the Optional Protocol of the ICCPR in 1991, individuals may challenge Commonwealth, State or Territory laws that violate rights protected by the ICCPR before the United Nations Human Rights Committee. The Committee may issue a ruling that 256

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258 259 260

Dietrich v The Queen (1992) 177 CLR 292 at 306 per Mason CJ and McHugh J, at 348–349 per Dawson J. The English courts have restricted the presumption that Parliament intended to legislate in conformity with the ECHR to cases involving “ambiguity”: R v Secretary of State of Home Office Department; Ex parte Brind [1991] 1 All ER 720. The Human Rights Act 1998 (UK) requires the courts to adopt an interpretation which is compatible with the Convention or, if this is impossible, to make a declaration of incompatibility: s 4. The use of international human rights law in domestic litigation is explored in K Eastman and C Ronalds, “Using Human Rights Laws in Litigation” in D Kinley (ed), Human Rights in Australian Law (Sydney: Federation Press, 1998) Ch 14. (1998) 192 CLR 159 at 214 (footnotes omitted). A similar point was made in Momcilovic v The Queen (2011) 245 CLR 1 at [444] (Heydon J) CR v United Kingdom and SW v United Kingdom (1996) 21 EHRR 363. M Giles, “Judicial Law-making in the Criminal Courts: The Case of Marital Rape” [1992] Criminal Law Review 407. [2.150]

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requires contracting States to take steps to remedy any violation, including the repeal or modification of existing laws. The Optional Protocol’s impact on the criminal law is potentially far-reaching. Immediately after its ratification, offences under the Criminal Code (Tas) that prohibited sodomy and gross indecency between consenting adult males were challenged before the Committee in Toonen v Australia. 261 The Committee held that the existence of these offences violated the rights of privacy protected under the ICCPR. The subsequent failure to repeal these laws in Tasmania led the Federal Parliament, relying upon its external affairs power under the Constitution, to enact a right to privacy in relation to sexual conduct for adults that had the effect of rendering these laws inoperative. As we shall explore in Chapter 11 at [11.220], the federal privacy shield has the potential to limit the scope of many national laws governing sexual activity, though its impact to date has been minimal. While such challenges are a cause for optimism, there are many cases where international human rights law has failed to curb judicial enthusiasm for common law development at the expense of the principles of certainty and non-retrospectivity. 262 Notwithstanding such reservations, there is a strong case for the courts and legislatures to develop domestic criminal law in conformity with international human rights law. In the criminal law field, the impact of international human rights law has been much stronger in relation to the law of evidence and procedure. The fair trial guarantees in the ICCPR have been used by Australian courts to develop the common law governing the right to silence, hearsay, prosecution disclosure and sentencing discretion. Compliance with the ICCPR is also a factor relevant to the exercise of discretion under many rules of evidence and procedure. 263 The growing significance of international human rights law to domestic criminal law and procedure is reflected in publication of recent Australian texts that outline the potential relevance of these human rights sources to domestic law, providing judges and practitioners with new legal resources for guiding the principles of interpretation – whether grounded in either common law or statute – discussed above. 264

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(1994) 1 PLPR 50, Communication No 488/1992, UN Doc CCPR/C/50/D/488/1992, 4 April 1994. For similar rulings before the European Court of Human Rights challenging equivalent homosexual offences, see: Dudgeon v United Kingdom [1981] ECHR 7525/76 and ADT v United Kingdom [2000] ECHR 35765/97. The European Court of Human Rights held that the notoriously elusive common law definition of “breach of the peace”, which lies at the heart of public order offences and powers, complied with the ECHR: see Ch 13, [13.25]. Even where the European Court has held the domestic law in breach, this does not necessarily lead to legislative reform. For example, the common law defence of “reasonable chastisement” was successfully challenged before the European Court of Human Rights as a violation of the right not to be subjected to “torture or inhuman or degrading treatment or punishment”. The legislative inertia in the UK to reform this defence is discussed in Ch 10 at [10.135]. Indeed, the Uniform Evidence Acts specifically provide that the failure to comply with the ICCPR is a factor that must be considered in the exercise of the judicial discretion to exclude improperly obtained evidence: Evidence Act 1995 (Cth), s 138(3); Evidence Act 1995 (NSW), s 138(3); Evidence Act 2001 (Tas), s 138(3); Evidence Act 2008 (Vic), s 138(3); Evidence Act 2011 (ACT), s 138(3); Evidence (National Uniform Legislation) Act (NT), s 138(3). See for example J Gans, T Henning, J Hunter and K Warner, Criminal Process and Human Rights (Sydney: Federation Press, 2011). [2.150]

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The Fair Trial Human Rights Legislation in Practice: R v Upton [2005] ACTSC 52 We shall sell to no man, and we will not defer to any man, either justice or right. 265 [2.155] The challenge of domesticating human rights norms is apparent in the Australian

Capital Territory decision of R v Upton. In Upton, the accused had been subject to significant delays in a prosecution for an assault. The delays occurred twice: first, when there was an interference with a prosecution witness on the first day of the trial in October 2003, which occurred in the presence of Connolly J—proceedings were deferred pending police investigation and recommenced 18 months later. The second delay occurred on the day of the recommenced trial, where the Director of Public Prosecutions sought an adjournment because of difficulties in locating key witnesses. Justice Connolly’s approach to the fair trial arguments raised by the defence in its objection to further adjournment traced the common law evolution of the power to stay proceedings on the grounds of unfairness. Connolly J examined the leading decision of the High Court in Dietrich, discussed at [2.125]. Mindful of the importance of tying the interpretive provisions in the ACT Human Rights Act 2004 (HRA) to a precise statutory provision, he identified s 20 of the Supreme Court Act 1933 (ACT) as providing the legislative “hook” upon which the HRA interpretive obligation attached—the provision itself is a sparse section which simply confers on the Court “all the original and appellate jurisdiction that is necessary to administer justice in the Territory”. After locating the relevant Territory law, Connolly J turned to an analysis of s 22(2) of the HRA and the meaning of the right to be tried without “unreasonable delay”. There has been a tendency in some legal quarters to view the HRA as simply “declaratory” of the rights that are already protected by the common law. 266 While this is no doubt true sometimes, it is not always so. Indeed, the right to a fair trial under the common law diverges significantly from the evolving international fair trial jurisprudence, which extends beyond the trial into the pre-trial and evidence-gathering phases. Indeed, Upton is one such case where Connolly J was attentive to the differences between the common law and the HRA concept of a fair trial. Justice Connolly held “that the right to a trial with unreasonable delay [in the HRA] may confer greater power on this Court than the common law”. 267 One difference identified in Upton is that the common law right to a fair trial required that any delay had to be causally related to some prejudice or forensic disadvantage to the defendant. Justice Connolly held that this conception was too narrow. He was fortified in his views by a careful review of international jurisprudence which ranged across human rights cases in the United Kingdom, New Zealand and Canada. In determining whether a delay was “unreasonable”, he concluded that prejudice was simply one factor among several that could be considered by the court, along with the length of the delay, waiver of the time periods, and the reasons for the delay. What is novel about the decision in Upton was not merely the articulation of a “human-rights 265

266 267

The Magna Carta was originally issued in 1215, but was subsequently revised and reissued in 1225. The Charter was adopted by an Act of Parliament, (1297) 25 Edw 1 c 29, and it is this document which is presumed to have legal effect. See, especially, R Refshauge, “Impact on Criminal Law and Procedure”, 2007 Protecting Human Rights Conference (25 Sept 2007). R v Upton [2005] ACTSC 52 at [18]. [2.155]

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compliant” approach to the fair trial principle, but also the recognition that the appropriate remedy for breach must be proportionate. Proportionality, he observed, was the foundation of human rights law. In this context, it meant that the court must consider whether any disadvantage to the defendant caused by unreasonable delay could be appropriately addressed by measures other than a permanent stay of proceedings. In this case, he addressed the concern of the added cost burden to the defendant caused by the delay by making the order of a stay not absolute. The DPP was given the option to reimburse the defendant for the costs incurred thus far, and could commence proceedings if the court could be assured that a fair trial could be held. As he concluded: “If the DPP is of the view that this is a case where the public interest demands that the matter go to trial, all that it needs to do is to recompense Mr Upton for the cost he has incurred as a result of two trial dates that have been abandoned through no fault of his own.” This inventive remedy is not prescribed by the ACT legislation expressly. Indeed, Upton demonstrates the effective operation of the HRA required by judges, like Connolly J, who have an appreciation of the vitality of the common law method in protecting rights under the HRA, but also who respect the equally important public interest in bringing offenders to justice. Human rights law is exerting an increasingly powerful normative force on criminal law and procedure in Australia. More than 30 years ago, Murphy J foreshadowed the melding of domestic and international human rights law, coining the phrase “the common law of human rights” to denote the broader role for the common law in the protection of individual rights. 268 In the face of widespread political apathy toward the protection of human rights, judges must be especially vigilant. As Murphy J observed in McInnis v The Queen: “Often courts cannot remedy denial of human rights which occurs outside of the judicial system, but there is no excuse for tolerating it within the system.” 269 As this brief survey has demonstrated, international human rights law can no longer be viewed as a discrete area of specialisation for international lawyers, but rather forms an integral part of domestic criminal law and practice. The presumption of innocence: fundamental principle or legal fiction? [2.160] In this section, we focus on two of the most famous attributes of the fair trial—the

right to be presumed innocent, and the criminal standard of proof “beyond reasonable doubt”. The “presumption of innocence” is the cornerstone of the fair trial principle, and is celebrated in both legal and popular culture. 270 It is a fundamental human right embodied in Art 14(2) of the ICCPR: “Everyone charged with a criminal offence shall be presumed 268

269 270

Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385 at 394–395 and Pyneboard v TPC (1983) 45 ALR 609 at 621–622, where Murphy J described the privilege against self-incrimination as part of the “common law of human rights”. A similar point has been made by Lord Cooke, “The Road Ahead for Common Law” (2004) 53 International & Comparative Law Quarterly 273 at 273–274. McInnis v The Queen (1979) 143 CLR 575 at 593. In TV fiction, the presumption of innocence—the golden thread of the criminal law—is cherished as the key protection against State tyranny, an image most famously and regularly invoked by Rumpole of the Bailey: J Mortimer, Rumpole (London: The Folio Society Ltd, 1994). Note also that a useful filmography, providing sources of fictional material with significant courtroom scenes illustrating the dramatic and tactical aspects of adversarial practice, has been produced by Kathy Laster with Krista Breckweg and John King: The Drama of the Courtroom (Sydney: Federation Press, 2000).

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innocent until proven guilty.” 271 The ICCPR provision has been incorporated into the human rights legislation adopted in the Australian Capital Territory and Victoria. 272 This familiar concept, which rarely requires further judicial elaboration for juries, simply means that the prosecution must prove that the accused is guilty of an offence. 273 The use of the term “presumption” is somewhat perplexing. It is not a “presumption” in the sense commonly understood by lawyers. Presumptions are evidential devices for deeming the normal expected conditions or state of affairs to exist unless proven otherwise: “The presumption, in short, is nothing more than a rule of thumb worked out by courts on its experience of the probabilities in that kind of situation.” 274 Thus, when executing a will or contract, a party is presumed to have legal capacity unless there is evidence to the contrary. By contrast, the presumption of innocence does not reflect the normal or expected state of affairs that a person charged with an offence is or will be proven innocent of the offence. Rather, the function of the presumption is to serve as a formal caution to those parties concerned with guilt determination—judges, lawyers and jurors—that the prosecution (usually the State) has to prove guilt, rather than the defence having to prove innocence. It reflects the adversarial nature of the legal process, that the party who “avers” must prove the case, and that a fair “balance” is maintained between the State and the individuals who are accused of a criminal offence. The presumption of innocence performs an important constitutional function related to the fair trial principle. The burden of proof directs the fact-finder as to which party must prove or disprove a particular element of an offence or establish a defence. It is regarded as a matter of substantive law rather than a rule of evidence because: “[r]ules for determining the incidence of the legal burden of proof are not something over and above the substantive rules to which the burden relates. Rather we speak of the ‘“burden of proof”’ because of the nature of the adversarial process. It is placed on one party or the other according to the terms of substantive rules.” 275

To determine the burden of proof, careful attention must be paid to the terms of the legislation and/or available authorities. The rules governing standard of proof, by contrast, tell the jury what to do when faced with uncertainty over the facts. Strangely, the ICCPR makes no provision about the standard of proof that should be applied in criminal proceedings. The meaning of the burden and standard of proof is governed by the common law. Since the Codes of the Northern Territory, Queensland, and Western Australia are silent on the question of burden of proof, it has been held that the common law applies. 276 Even the codification of these rules in the Criminal Code (Cth) simply restates the common law, without further 271 272 273 274 275

276

The presumption has been codified in some jurisdictions: see Criminal Code (NT), s 5. Human Rights Act 2004 (ACT), s 22(1) and Charter of Human Rights and Responsibilities Act 2006 (Vic), 25(1) respectively. For the effect of acquittal, see the discussion by Gibbs CJ, Aickin, Wilson and Brennan JJ in R v Darby (1982) 148 CLR 668 at 675 of Lord Salmon’s judgment in DPP v Shannon [1975] AC 717. J Stone and WAN Wells, Evidence: Its History and Policies (Sydney: Butterworths, 1991) p 62. Australian Law Reform Commission, Evidence, Report No 26 (Interim) (1985) p 15. By contrast, the rules of evidence assist the judge to determine whether material should be heard (admissibility) and the tribunal of fact to determine the weight to be attached to evidence (credibility). Although conceptually correct, rules relating to burden proof—both civil and criminal—have been included in the Uniform Evidence Acts. R v Packett (1937) 58 CLR 190 at 212 per Dixon J; R v Mullen (1938) 59 CLR 124 at 136 per Dixon J, at 132 per Rich J, at 138 per McTiernan J. [2.160]

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elaboration of fundamental concepts such as “beyond reasonable doubt”. 277 This approach has been followed in those jurisdictions which have adopted the Uniform Evidence Act. 278 The common law rules governing proof claim an ancient and distinguished pedigree in the criminal law. As Viscount Sankey LC observed in Woolmington v DPP: “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 the whole of the case, there is a reasonable doubt, created by the evidence, given by either the prosecution or the prisoner … the prosecution has not made out its 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 and no attempt to whittle it down can be entertained.” 279

This famous “Golden Thread” speech was made in the context of the rules governing murder at common law. Woolmington cast doubt on the well-established practice of directing juries that, once the prosecution had proved that the accused caused the death of the victim, the killing was presumed to be murder unless the accused could prove that the killing was “involuntary” manslaughter. 280 Indeed, although much celebrated, as the High Court pointed out recently, closer historical attention to the provenance of the golden thread reveals that “… those axiomatic principles about the burden and standard of proof in criminal trials” were not fully established until Woolmington in 1935, and that it was “not until the last years of the nineteenth century that an accused person became a competent witness at his or her trial”. 281

The platitudes of innocence: a golden thread or recent invention [2.165] A famous essay by CK Allen on the presumption of innocence, published four years before Woolmington, traced how English law, from early times, contained many “platitudes of innocence”. However, as Allen observed, the presumption of innocence did not emerge distinctly until the early 19th century: “In sum, then, we may conclude that four hundred years ago in all criminal trials of which we have any record, the dice were loaded heavily against the accused. The presumption of innocence was not only absent from, but antagonistic to, the whole system of penal procedure.” 282 Allen traced the growing judicial commitment to the presumption of innocence over the intervening period to two sources: the changed social conditions and decreasing lawlessness in 277 278

279 280

281 282

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Criminal Code (Cth), s 13. Provisions have also been included in the Evidence Act 1995 (Cth), s 141; Evidence Act 1995 (NSW), s 141; Evidence Act 2001 (Tas), s 141; Evidence Act 2008 (Vic), s 141. These sections provide: “(1) In a criminal proceeding, the court is not to find the case of the prosecution proved unless satisfied that it has been proved beyond reasonable doubt; (2) In a criminal proceeding, the court is to find the case of a defendant proved if satisfied that it has been proved on the balance of probabilities”. Woolmington v DPP [1935] AC 462 at 481–482. Viscount Sankey LC, in Woolmington v DPP [1935] AC 462 at 473–474, refers to the discussion of this rule in Foster’s Crown Law (1762). However, he dismisses its authority on the basis that this statement, though made by a distinguished judge, appeared in a textbook unsupported by precedent! Paradoxically, Viscount Sankey LC offered scant legal authority for his “golden thread” in English criminal law. X7 v Australian Crime Commission (2013) 248 CLR 92 at 100. CK Allen, Legal Duties and Other Essays in Jurisprudence (Oxford: Oxford University Press, 1931) pp 257–258, extracted in C Wells and O Quick, Lacey, Wells and Quick—Reconstructing Criminal Law: Texts and Materials (4th ed, Cambridge: Cambridge University Press, 2010) p 81. One such platitude of innocence was the idea that it is better that 10 guilty men should escape punishment than one innocent person be wrongfully convicted. It emerged as a maxim in the 16th century but the ratio was initially 20:1. The 10:1 ratio was fixed as the preferred ratio in R v Hobson (1823) 1 Lew CC 261. [2.165]

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England after 1688, and the “building up” of the law of evidence—particularly the principle that a person who makes a claim under either civil or criminal law must positively prove it. 283

The fragility of the historical claims surrounding the presumption of innocence also hints at its marginal place in the modern criminal law. While the presumption is much vaunted in legal rhetoric, this fundamental principle has been significantly eroded by legislation. Although Viscount Sankey held that no attempt to “whittle” the golden thread should be entertained, he recognised two instances where the legal burden was lifted from the prosecution: the insanity defence at common law, and exceptions provided by legislation. If the defence raises evidence of insanity, it bears both the legal and evidential burden of proof to establish that defence on the standard of the balance of probabilities. The nature and role of the burdens of proof in relation to mental state defences is further explored in Chapter 4, [4.70]. The role of the evidential burden is explained below. The second exception in Woolmington relates to statutory offences that place the legal burden on the accused to prove or disprove certain facts. Such statutory provisions do not expressly state that the burden is “reversed”, but rather have the effect of (or are construed as) placing a legal duty on the accused to prove or disprove certain facts. They are a common feature of strict or absolute liability offences such as trafficking in drugs, which provide that where a person possesses a prescribed quantity of a proscribed drug, it is presumed that the drug is possessed for the purpose of trafficking unless the accused proves otherwise. A similar provision applies to the possession of stolen goods. Where the legal burden is placed on the accused, the standard of proof is the civil standard—the balance of probabilities. 284 Empirical research conducted in England by Andrew Ashworth and Meredith Blake suggests offences that derogate from the presumption of innocence are not exceptional. 285 Indeed, no fewer than 40% of indictable offences studied violated the presumption, in the sense that the burden of proof did not lie with the prosecution in all respects. The findings are more striking since the research was confined to indictable, rather than summary, proceedings. Deviation from the fundamental principle seemed ubiquitous and unprincipled; it was neither the preserve of “trivial” summary offences nor “serious” crimes involving drugs or terrorism. The study concluded that the deviation was the result of the wide scope given to Parliament by the common law to dispense or modify the requirement that the prosecution must prove a subjective fault element on the part of the accused:

283 284

285

CK Allen, Legal Duties and Other Essays in Jurisprudence (Oxford: Oxford University Press, 1931) pp 273–276. See R v Johnstone [2003] 3 All ER 884 and Criminal Code (Cth), s 13.5. This is recommended by the Attorney-General’s Department for the drafting of Commonwealth offences (Australian Government Attorney-General’s Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (Canberra: Commonwealth Attorney-General’s Department, 2011) p 52: https:// www.ag.gov.au/Publications/Pages/ GuidetoFramingCommonwealthOffencesInfringementNoticesandEnforcementPowers.aspx (cited 5 January 2017). See, generally, S Odgers, Principles of Federal Criminal Law (3rd ed, Sydney: Lawbook Co, 2015) Ch 6. A Ashworth and M Blake, “Presumption of Innocence in English Criminal Law” [1996] Criminal Law Review 306. The offences departed from Woolmington in a number of ways, including reverse onus provisions, rebuttable presumptions and irrebuttable presumptions (or deeming provisions): pp 310–313. No comparable research has been undertaken in Australia, though it is unlikely that the findings would be significantly different. [2.165]

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“Perhaps the limited terms of Viscount Sankey’s speech in Woolmington holds the key: what he said, in effect, is that courts should invariably place the burden of proof on the prosecution, but that parliament may do what it pleases.” 286

Ashworth finds similar results in an analysis of 165 new criminal offences created in 2005 in the United Kingdom, which revealed that: • 40% of the offences were strict liability, and a further 26% were offences of strict liability leavened by the clause “without reasonable excuse”; • only 31% of the offences required some form of subjective fault, chiefly intention or knowledge; • 26% were offences of omission; and • burdens of proof were distributed between prosecution and defence inconsistently, even within the same statute. 287 While Art 14(2) of the ICCPR proclaims that everyone charged with an offence should be presumed innocent, the concept has not yet been interpreted as limiting Parliament’s sovereign power to impose “reasonable” qualifications. In jurisdictions where the fair trial principle is constitutionally entrenched, the presumption has the power—at least potentially—to invalidate offences that alter the burden of proof. This issue was the position taken in the Privy Council in Attorney-General for Hong Kong v Lee Kwong-kut when considering the application of a Bill of Rights Ordinance to a reverse onus clause in a possession of stolen goods provision. 288 In Canada, the courts have adopted a less discretionary approach to stricter forms of liability. The principle of “fundamental justice” contained in s 7 of the Charter of Rights and Freedoms confers substantive rights that are not merely procedural, and thus has invalidated offences that dispense with fault while carrying imprisonment as a possible penalty. 289 The principle of fundamental justice in Canada has been used to initiate a wide-ranging review of the law of criminal responsibility. 290 It provides the clearest example in a common law jurisdiction of how constitutionalising abstract principles (in this case “fundamental justice” rather than fairness) can produce significant rethinking of traditional doctrinal concepts and strengthen judicial commitment to basic values. In jurisdictions such as the United Kingdom, Victoria and the Australian Capital Territory, where the courts are under a duty to interpret legislation consistently with human rights, reverse onus provisions have been “read down” by the courts as imposing only an evidential, rather than legal or persuasive, burden on the accused. 291 This approach had been applied to terrorism offences by the House of Lords before the Human Rights Act 1998 (UK) had come 286 287

288 289

290 291

A Ashworth and M Blake, “Presumption of Innocence in English Criminal Law” [1996] Criminal Law Review 306 at 314. See A Ashworth, “Criminal Law, Human Rights and Preventive Justice” in B Sherry, A Borrie and S Bronitt (eds), Regulating Deviance: The Redirection of Criminalisation and the Futures of Criminal Law (Oxford: Hart Publishing, 2008). Attorney-General for Hong Kong v Lee Kwong-kut [1993] AC 951. Charter of Rights and FreedomsSection 7 provides, “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”: Constitution Act 1982 (Can). E Colvin, “Recent Developments in Canadian Criminal Law” (1995) 19 Criminal Law Journal 139. This has also been the approach favoured in Hong Kong in the Final Court of Appeal, which considered that the presumption of innocence entrenched in the Basic Law imposed a duty on courts to interpret the legislation so as to be compatible with that human right, with the effect that the obligation placed on the accused to prove

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into effect. 292 Responding to the interpretive duties imposed by the new Act, the House of Lords in R v Lambert affirmed that inroads on the presumption of innocence must be carefully scrutinised to ensure that departures were both justified and proportionate. In that case, the reverse-onus provisions in the Misuse of Drugs Act 1971 (UK) had “crossed the line” and, in the words of Lord Steyn, were “a disproportionate reaction to perceived difficulties facing the prosecution in drugs cases”. 293 The consideration of the House of Lords decision in R v Lambert had an impact on the drafting of legislation in the field of sexual offences, leading to the removal of reverse-onus provisions in the Bill that was subsequently enacted as the Sexual Offences Act 2003 (UK). 294 It is important to appreciate that this body of human rights jurisprudence does not require all burdens on the defence to be interpreted as evidential ones. This distinction is discussed at [2.175]. A subsequent House of Lords decision in R v Johnstone unanimously declined to take such an approach to the construction of a defence to a trademark offence (the defence was required to show that the accused had a reasonable belief that the use did not infringe the trademark). Lord Nicholls, with whom the other Lords agreed, held that placing the legal or persuasive burden on the accused did not breach the presumption of innocence protected in Art 6(2) of the ECHR. He noted that in Convention jurisprudence: “A reasonable balance has to be held between the public interest and the interests of the individual. In each case it is for the state to show that the balance held in the legislation is reasonable. The derogation from the presumption of innocence requires justification.” 295

A range of factors would be relevant to this balancing exercise: the serious effects caused by trading in counterfeit goods; whether the offence was strict liability; the level of punishment attached to the offence; the need to encourage prudence on the part of the traders to ensure that they were not trading in counterfeit goods; the defence relating to facts within the accused person’s own knowledge; and the difficulties faced by prosecutors in obtaining evidence. After weighing these factors, he concluded that the burden properly rested with the accused to establish the “reasonable belief” defence: “Given the importance and difficulty of combating counterfeiting, and given the comparative ease with which an accused can raise an issue about his [or her] honesty, overall it is fair and reasonable to require a trader, should need arise, to prove on the balance of probability that he [or she] honestly and reasonably believed the goods were genuine.” 296 [2.170] There are limits to this interpretive approach, and the Australian courts seem less

willing than the House of Lords to take a strong remedial approach to interpretation that would effectively constitute a judicial redraft of the provision. In R v Momcilovic, 297 the Victorian Court of Appeal expressed a clear preference to issue a declaration of incompatibility rather than trespass onto the province of the legislature by straining interpretation. The case involved reverse onus provisions in drug trafficking offences which had the effect that proof that a drug of dependence was found “upon any land or premises occupied by” a person

292 293 294 295 296 297

certain exculpatory matters must be viewed as an evidential rather than legal burden. In this case, Sir Anthony Mason NPJ concluded that the Basic Law of Hong Kong impliedly conferred power on the Court to make “a remedial interpretation” which went beyond ordinary common law interpretation: HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574. R v DPP; Ex parte Kebilene [1999] 3 WLR 972. R v Lambert [2001] 3 All ER 577 at 594. A Ashworth and J Temkin, “The Sexual Offences Act 2003: Rape, Sexual Assaults and the Problems of Consent” [2004] Criminal Law Review 328 at 333–334, 342–343. R v Johnstone [2003] 3 All ER 884 at 898. R v Johnstone [2003] 3 All ER 884 at 900. R v Momcilovic (2010) 25 VR 436. [2.170]

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would mean that the person is deemed to be in possession of that drug unless the contrary was proved. In this case the boyfriend admitted that he had stored the drug in his girlfriend’s apartment without her knowledge. The girlfriend was convicted of possession on the basis that she was unable to prove, on the balance of probabilities, that she was not aware of the existence of those drugs. The Court of Appeal engaged in an extensive review of the interpretive obligations under the Victorian Charter of Rights and Responsibilities informed by a comparison with similar human rights instruments in the UK, Canada, New Zealand and Hong Kong. The Court identified a three-stage approach, once it was established that the statutory provision infringed a Charter right: “Step 1: Ascertain the meaning of the relevant provision by applying s 32(1) of the Charter in conjunction with common law principles of statutory interpretation and the Interpretation of Legislation Act 1984 (Vic). Step 2: Consider whether, so interpreted, the relevant provision breaches a human right protected by the Charter. Step 3: If so, apply s 7(2) of the Charter to determine whether the limit imposed on the right is justified.” 298

In this case, the Court concluded that the reverse onus provision in s 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) cannot be interpreted consistently with the presumption of innocence under s 25(1) of the Charter. The Court considered the approach taken in the UK cases but rejected that approach of imposing an evidential rather than legal burden on the accused. Rather the Court issued a declaration of incompatibility, which places the issue before the Attorney-General and the legislature for consideration. The matter was appealed to the High Court, where this particular declaration was held invalid, though the majority (4:3) held these declarations in general to be valid, with the majority judges evenly split (2:2) on whether the particular declaration should have been made in this case. The High Court also overturned Ms Momcilovic’s conviction on grounds unrelated to the Charter of Rights. 299 The case reveals the acute dilemmas and high political stakes that judges face in applying human rights legislation in the criminal context – to either strain interpretation of the statutory provisions so as to conform to the Charter, or to boldly declare the provision to be incompatible with the Charter, and suffer the inevitable political fallout from such a ruling and populist claim that the courts are “soft on crime”. The presumption of innocence is not the only human right enlivened by these strict forms of liability. The Australian Capital Territory Court of Appeal, while recognising that the Human Rights Act 2004 (ACT) (HRA) does not prevent the legislature from enacting strict liability offences, noted that s 18(1) of the HRA secures a right to liberty and security of person (with express reference to the prohibition on arbitrary arrest or detention). In the view of Higgins CJ and Connolly J, this meant that s 18(1) “would be inconsistent with disproportionate punishments or the imposition of punishment for conduct for which the actor is not, on any rational view, responsible”. 300 This suggests that strict liability offences in the Australian Capital Territory would be similarly “read down” as has occurred in the United Kingdom.

298 299 300

R v Momcilovic (2010) 25 VR 436 at 446. Momcilovic v The Queen (2011) 245 CLR 1. Hausmann v Shute [2007] ACTCA 5 (5 April 2007), per Higgins CJ and Connolly J at [37]–[39], discussed in The ACT Human Rights Act Research Project, The Human Rights Act 2004 (ACT): The First Five Years Of Operation (2009) p 60: http://www.acthra.anu.edu.au/documents/ACTHRA_project_final_report.pdf (cited 1 May 2016).

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Distinguishing burdens: legal or evidential? [2.175] As noted above, the burden of proof—which is sometimes referred to as the onus of

proof—relates to the duty placed on a party to prove certain facts. The term “burden of proof” is used in two different senses, as: • the legal burden of proof; and • the evidential burden of proof. Diagram 1: Burden of proof

The most significant burden of proof is the legal or persuasive burden. In criminal cases, the general rule is that the prosecution bears the legal burden of proving all the elements of the crime and rebutting any defences. 301 It is a persuasive burden, in the sense that the prosecution bears the risk of losing the case if there is a failure to persuade the trier of fact that a proposition has been made out: Woolmington v DPP. 302 The legal burden remains on the prosecution for the whole trial. In exceptional cases, where the legal burden is placed on the accused (for example, the defence of mental impairment), the lower civil standard, the balance of probabilities, applies. The other burden of proof, the evidential or tactical burden, relates to the duty to produce some evidence to support a claim. The evidential burden, unlike the legal burden can rest on either party. The duty is placed on one of the parties to produce sufficient evidence to permit the matter to be left to the jury for consideration. This burden does not require the party to prove the issue. It is for the judge to decide whether the issue has the support of evidence so that it can be considered by the jury. A distinction is generally drawn between the evidential burden in relation to offences and defences. Except where otherwise provided by statute, the 301

302

Woolmington v DPP [1935] AC 462; R v Mullen (1938) 59 CLR 124; Chan Kau v The Queen [1955] AC 206; Thomas v The Queen (1960) 102 CLR 584; La Fontaine v The Queen (1976) 136 CLR 62; Van Leeuwen v The Queen (1981) 36 ALR 591; Chamberlain v The Queen (No 2) (1984) 153 CLR 521; Hoch v The Queen (1988) 165 CLR 292; R v Falconer (1990) 171 CLR 30. Woolmington v DPP [1935] AC 462 at 482 per Viscount Sankey LC. [2.175]

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prosecution bears the evidential burden in relation to proving the elements of the crime. 303 However, in relation to defences, the evidential burden is placed upon the accused. 304 The rationale for placing an evidential burden on the accused in relation to defences is that it would be impractical to require the prosecution to rebut every defence theoretically open to the accused in every trial. Why do we place such a burden on the party adducing the evidence? Lord Morris in Bratty v Attorney General for Northern Ireland offered the following rationale for the placing of an evidential burden on the accused: “As human behaviour may manifest itself in infinite varieties of circumstances it is perilous to generalise, but it is not every facile mouthing of some easy phrase of excuse that can amount to an explanation. It is for a judge to decide whether there is evidence fit to be left to the jury which could be the basis of some suggested verdict.” 305

The evidential burden ensures that the prosecution is not saddled with a duty to disprove all possible defences, however fanciful and incredible. It provides a practical means of controlling whether the defence has made a reasonable foundation for a defence, before requiring the prosecution to disprove it. The standard of proof in criminal trials: doubts about beyond reasonable doubt? [2.180] While the burden of proof deals with which party bears the duty of proving a

particular issue, the standard of proof relates to the quantum or level of proof: how much evidence is required to convict the accused? The criminal standard of proof—“beyond reasonable doubt”—again occupies a central place in legal and popular culture. 306 Although regularly affirmed by the courts today, historical research reveals that, prior to Woolmington, there was little legal authority supporting the criminal standard of proof as beyond reasonable doubt. 307 Since he doubted whether there was any “true difference” between a balance of probabilities and a reasonable certainty (the converse of reasonable doubt), CK Allen concluded that “the principle of ‘reasonable doubt’ therefore seems to be little more than a counsel of prudence; and there is considerable judicial authority for this

303 304

305 306

307

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DPP v Morgan [1976] AC 182; Tsang Ping-Nam v The Queen [1981] 1 WLR 1462; May v O’Sullivan (1955) 92 CLR 654. Mancini v DPP [1942] AC 1; Chan Kau v The Queen [1955] AC 206; Ryan v The Queen (1967) 121 CLR 205 at 215–216 per Barwick CJ; Marwey v The Queen (1977) 138 CLR 630 at 641 per Stephen J; Moffa v The Queen (1977) 138 CLR 601 at 607 per Barwick CJ; Viro v The Queen (1978) 141 CLR 88 at 95 per Barwick CJ, at 117 per Gibbs J, at 146 per Mason J, at 147–148 per Jacobs J; R v O’Connor (1980) 146 CLR 64 at 88 per Barwick CJ; He Kaw Teh v The Queen (1985) 157 CLR 523 at 534–535 per Gibbs CJ, at 593 per Dawson J; R v Youssef (1990) 50 A Crim R 1. Bratty v Attorney General for Northern Ireland [1963] AC 386 at 416–417. Since Woolmington v DPP [1935] AC 462, the criminal standard has been repeatedly affirmed: R v Mullen (1938) 59 CLR 124; Chan Kau v The Queen [1955] AC 206; Thomas v The Queen (1960) 102 CLR 584; La Fontaine v The Queen (1976) 136 CLR 62; Van Leeuwen v The Queen (1981) 36 ALR 591; Chamberlain v The Queen (No 2) (1984) 153 CLR 521; Hoch v The Queen (1988) 165 CLR 292; R v Falconer (1990) 171 CLR 30. A similar position appears to apply in Australia. In 1821, an admission that the prisoner caused the death would place a burden on the defence to establish that the killing was justified or manslaughter under provocation: see R v Ryan [1821] NSWKR 2: “The Judge Advocate then entered into a very full elucidation of these two points, remarking, all killing was held to be murder until satisfactorily proved to the contrary; but that in every case a very principal feature for the Court to have in regard was that malice aforethought must appear to have existed before it could amount to murder.” [2.180]

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view”. 308 Julius Stone similarly viewed the principle of beyond reasonable doubt as a “neutralising weapon” that addressed the frailties of human tribunals, particularly the normal tendency for the mere fact of a criminal accusation to interfere with the degree of impartiality necessary for a fair trial. 309 Diagram 2: Standard of proof

“Beyond reasonable doubt” is commonly defined and contrasted by its antinomy, the civil standard of proof (that is, the “balance of probabilities”). Any further attempt to elaborate on the time-honoured formula of beyond reasonable doubt by resort to mathematical analogies or percentages can provide grounds for an appeal. 310 The likelihood and severity of punishment affect the degree of certainty required to “feel sure”. As Helena Kennedy observed: “The wording invariably used by judges today is that jurors must be ‘satisfied so that they are sure’, an expression more likely to conjure up advertisements for Cadbury’s chocolate. Does the concept of satisfaction or ‘being sure’ drive one to the level of certainty which should be required before we surrender a citizen to sentencing and the likely loss of liberty? For the most part the only people who mention proof ‘beyond reasonable doubt’ are defence lawyers.” 311

The formula impresses upon the jury the importance of prudence in criminal matters because of risks to liberty and reputation posed by conviction. Yet in this regard, the jury is not well placed to gauge the weight of these matters since they are invariably ignorant of the gravity of the consequences of a guilty verdict, such as whether the offence carries imprisonment. By contrast, the civil standard, discussed below, impresses on the fact-finder (the judge rather than a jury) the importance of such consequential factors. A review of available empirical evidence reveals that the direction on standard of proof in criminal trials is “almost universally seen as problematic”. 312 Penny Darbyshire sums up the research on the direction as follows: 308

309 310 311 312

CK Allen, Legal Duties and Other Essays in Jurisprudence (Oxford: Oxford University Press, 1931), discussed in N Lacey, C Wells and O Quick, Reconstructing Criminal Law (3rd ed, London: LexisNexis Butterworths, 2003) p 26. J Stone and WAN Wells, Evidence (Sydney: Butterworths, 1991) p 69. Dawson v The Queen (1961) 106 CLR 1 at 18 per Dixon CJ; Thomas v The Queen (1960) 102 CLR 584; Green v The Queen (1971) 126 CLR 28; La Fontaine v The Queen (1976) 136 CLR 62. H Kennedy, Eve Was Framed—Women and British Justice (London: Vintage Books for Chatto and Windus, 1993) p 4. P Darbyshire, “What Can We Learn From Published Jury Research?” [2001] Criminal Law Review 970 at 974. [2.180]

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“Juries have immense difficulty in understanding ‘beyond reasonable doubt’. Depending on how it is interpreted by the judge, they may equate it with 51-100 per cent proof. Modern lay persons are used to evaluating probability in percentages. English research findings confirm real jurors’ accounts that when the judge uses the word ‘sure’, some or even the majority of jurors will equate BRD [beyond reasonable doubt] with absolute proof.” 313

This is confirmed by an English study based on interviews with real jurors, many of whom were uncertain about the meaning of the concept. 314 Nevertheless, judges are discouraged from elaborating more generally on the meaning of “beyond reasonable doubt”, except to reiterate that the standard does not require absolute certainty and is stricter than the civil standard of “balance of probabilities”. As the Privy Council has observed in Ferguson v The Queen: “The time-honoured formula is that the jury must be satisfied beyond reasonable doubt … attempts to substitute other expressions have never prospered. It is generally sufficient and safe to direct a jury that they must be satisfied beyond reasonable doubt so that they feel sure of the defendant’s guilt. Nevertheless, other words will suffice, so long as the message is clear.” 315

The New South Wales Law Reform Commission’s 2008 Consultation Paper, Jury Directions, suggests that, in Australia, a judge is constrained in the explanation that can be provided when a jury requests more details as to what “beyond reasonable doubt” refers to: “The general approach in Australia would be to provide no more elaboration than that a reasonable doubt is a doubt that the jury considers reasonable, or to inform the jury, somewhat unhelpfully, that the law does not permit of any further explanation than that given in the initial direction.” 316

The Commission went on to note that there was empirical and anecdotal evidence from studies in both New South Wales and New Zealand suggesting that jurors disagreed about the meaning of “reasonable doubt” when not given further explanation. The current position in Australia contrasts with the position taken by New Zealand, Canadian and United States courts, which encourages explanation to jurors. 317 For example, in R v Lifchus 318 the Supreme Court of Canada held that a trial judge must offer proper guidance to the jury on the meaning of “beyond reasonable doubt”—it was insufficient for juries to be told that this standard was a familiar concept determined by its ordinary meaning. In directing the jury, the court emphasised that judges should draw a link between the standard of proof and the presumption of innocence. Reasonable doubt was described as “a doubt based on reason and common sense which must be based upon the evidence or lack of evidence”. 319

313 314

315 316 317 318 319

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P Darbyshire, “What Can We Learn From Published Jury Research?” [2001] Criminal Law Review 970 at 978. P Thornton, “Trial by Jury: 50 years of Change” [2004] Criminal Law Review 683 at 690. See also New South Wales Law Reform Commission, Jury Directions, Consultation Paper 4 (2008) pp 70–72, and, generally, W Young, “Summing-up to Juries in Criminal Cases: What Jury Research Says About Current Rules and Practice” [2003] Criminal Law Review 665. Ferguson v The Queen [1979] 1 All ER 877 at 882. New South Wales Law Reform Commission, Jury Directions, Consultation Paper 4 (2008) pp 69–70 (footnote omitted). New South Wales Law Reform Commission, Jury Directions, Consultation Paper 4 (2008) pp 71–72. R v Lifchus [1997] 3 SCR 320. R v Lifchus [1997] 3 SCR 320 at 333. See further, G Ferguson, “Recent Developments in Canadian Criminal Law” (2000) 24 Criminal Law Journal 248 at 262–263. [2.180]

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A model “beyond reasonable doubt” direction? [2.185] In New South Wales, the following model instruction is given when a judge instructs a jury as to the meaning of “beyond reasonable doubt”: “The Crown must prove the accused’s guilt beyond reasonable doubt. That is the high standard of proof that the Crown must achieve before you can convict the accused. At the end of your consideration of the evidence in the trial and the submissions made to you by the parties you must ask yourself whether the Crown has established the accused’s guilt beyond reasonable doubt. In other words you should ask yourselves whether there is any reasonable possibility that the accused did not do what the Crown alleges against him/her. Unless the Crown satisfies you that no such possibility exists you must find the accused not guilty. 320… In a criminal trial there is only one ultimate issue that a jury has to decide. Has the Crown proved the guilt of the accused beyond reasonable doubt? If the answer is “yes”, the appropriate verdict is ’guilty’. If the answer is ’no’, the verdict must be ’not guilty.” The New South Wales Law Reform Commission further asserts that “appellate courts in Australia have consistently held that it is an expression well understood by ordinary people” and thus “is a matter for the jury to decide whether a doubt is reasonable in the circumstances.”? 321 Empirical evidence suggests the contrary, discussed further at [2.190].

The position in relation to the standard of the evidential burden of proof is similarly shrouded with uncertainty. In Bratty v Attorney-General for Northern Ireland, Lord Denning spoke of the requirement that the evidential burden on the defence in relation to sane automatism would be fulfilled if the evidence amounted to a “proper foundation”. 322Subsequently, the New South Wales Court of Criminal Appeal stated in R v Youssef that: “[T]he accused bears an evidentiary onus to point to or to produce evidence (or material in an unsworn statement) from which it could be inferred that … there is at least a reasonable possibility that, for example, the act of the accused was accidental, or that it was provoked or done in self-defence.” 323

Just what amounts to a “proper foundation” or “prima facie evidence” or a “reasonable possibility” will be a matter for a judge to determine. The distinction between the criminal and civil standards of proof is further blurred when the meaning of “balance of probabilities” is subject to close critical scrutiny. Although the phrase is suggestive of “51 out of 100 per cent”, 324 the civil standard of proof has been held to be case or context-dependent. What constitutes the amount of proof necessary for “reasonable satisfaction” in a civil matter varies, as Sir Owen Dixon in Briginshaw v Briginshaw observed: “But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences

320

321 322 323 324

This Model Instruction from the Judicial Commission of New South Wales, New South Wales Criminal Trial Courts Bench Book (October 2008) is reproduced in the New South Wales Law Reform Commission, Jury Directions, Consultation Paper 4 (2008) p 67. New South Wales Law Reform Commission, Jury Directions, Consultation Paper 4 (2008) p 67. Bratty v Attorney-General for Northern Ireland [1963] AC 386 at 413. Moreover, in Hill v Baxter [1958] QB 277 at 285, Lord Devlin referred to the requirement of “prima facie evidence”. R v Youssef (1990) 50 A Crim R 1 at 3. See, generally, G Williams, “The Mathematics of Proof” [1979] Criminal Law Review 297. [2.185]

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flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.” 325

Since jury trials are rare in civil matters, the metaphysical dimensions of a case or context-dependent standard of proof have not been subject to further judicial elaboration. The concept of a modified civil standard may acquire further elaboration with increasing prevalence of civil penalty provisions: see Chapter 1, [1.25]. In the United Kingdom, the House of Lords held that in determining whether to grant anti-social behaviour orders—a form of restraining order—the criminal standard of beyond reasonable doubt applies. Their Lordships noted that although the relevant proceedings were civil in character, given the serious consequences of the allegations, fairness to the accused required a higher standard of proof: R v Manchester Crown Court. 326 The High Court of Australia has addressed a similar question in relation to the standard of proof applicable to customs and excise prosecutions for the recovery of penalties in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd. 327 Rather than engage in an inquiry to determine the “essential” character of the proceedings as being either civil or criminal, the court focused on the nature of the orders that flowed from the proceedings. Although there had been a long practice of classifying customs prosecutions as civil (in common with revenue proceedings), the court took the view that the prospect of entering a conviction at the conclusion of such proceedings meant that the criminal standard should apply. As Hayne J noted: “Absent statutory provision to the contrary, a conviction should not be recorded except where the requisite elements of the contravening conduct are established beyond reasonable doubt”. 328 Of course, this dicta suggests that the legislature is free to modify expressly the standard applied in any legal proceedings, demonstrating the malleability and blurred contours of the civil/criminal law distinction, discussed in Chapter 1, [1.20]. The law/fact distinction: the boundaries of judicial impartiality [2.190] In terms of the division of labour, the judge decides matters of law, whereas the jury

decides matters of fact. In matters of fact, the jury may be said to be sovereign. The judge’s duty is to direct the jury as to the relevant law and it is the duty of the jurors to apply the law to the facts. The judge directs the jury as to the law during the summing-up at the end of the trial, just before the jury retires to deliberate on its verdict. In the summing-up, the judge may also express an opinion as to the evidence, but must be careful not to usurp the function of the jury. 329 During sentencing, however, the judge has a duty to review the evidence for the purpose of making findings of facts in order to determine the sentence. 330 This does not violate s 80 of the Constitution, which guarantees within federal jurisdiction the right to trial by jury for indictable offences. 331 325

330 331

Briginshaw v Briginshaw (1938) 60 CLR 336 at 361–362. The case involved an appeal against a divorce on the grounds of adultery. There remains uncertainty over this formulation: “As the seriousness of the allegation increases does the standard of satisfaction vary or does the standard remain the same but more cogent proof is needed?”: Australian Law Reform Commission, Evidence, Report No 26 (Interim) (1985) p 45, fn 25. R v Manchester Crown Court [2003] 1 AC 787. (2003) 216 CLR 161. Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161 at 206. For a description of the duties involved in “summing up” see C Cato, The Law and Practice of Criminal Litigation (Sydney: LBC Information Services, 1998) pp 304–306. Cheung v The Queen (2001) 209 CLR 1. Cheng v The Queen (2000) 203 CLR 248.

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326 327 328 329

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The complexity of the judicial role in commenting on evidence has been examined by the High Court in RPS v The Queen. 332 The appeal examined whether inferences of guilt could be drawn from the accused’s failure to testify. The majority (Gaudron ACJ, Gummow, Kirby and Hayne JJ) held that where the prosecution adduced direct evidence of guilt, the accused’s silence could not be used to infer guilt. This general inhibition on the evidential use of silence was related to the fundamental feature of criminal trials; namely, that the accused was not bound to give evidence and that the prosecution must prove its case beyond reasonable doubt. At the end of their judgment, the majority took the unusual step of offering general guidance on the function of jury instructions: Judicial instructions in criminal trials 41. Before parting with the case, it is as well to say something more general about the difficult task trial judges have in giving juries proper instructions. The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence. 42. But none of this must be permitted to obscure the division of functions between judge and jury. It is for the jury, and the jury alone, to decide the facts. As we have said, in some cases a judge must give the jury warnings about how they go about that task. And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues. But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge’s other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel. 333

Although the division of judicial and jury responsibilities is firmly drawn, as noted above, upon closer scrutiny the law/fact dichotomy is misleading. The judge exerts significant influence over fact-determination through the process of “summing-up” which legitimately traverses both matters of law and fact. The rules of evidence may impose a judicial duty to direct or warn the jury on matters relating to issues of credibility or dangers of certain types of evidence, such as eyewitness testimony. Moreover, Australia has inherited the English tradition (which has not been followed in the United States) of giving judges considerable latitude in commenting on the strengths and weaknesses of the defence and prosecution case. The extent to which a trial judge may express personal views on the credibility of witnesses threatens to undermine the independence of the jury. As Helena Kennedy has observed: “When jurists from other countries see the extent to which our judiciary give rein to their own views and try to influence juries in the summing-up at the end of the trial, they are appalled; it appears a usurping of the jury’s function, contrary to the principle of jury trial.” 334

Indeed, the guidance offered by the High Court in RPS v The Queen may be viewed as an attempt to minimise undue judicial interference with jury deliberations. 335 332 333 334 335

RPS v The Queen (2000) 199 CLR 620. RPS v The Queen (2000) 199 CLR 620 at 637 (original emphasis, footnotes omitted). H Kennedy, Eve Was Framed—Women and British Justice (London: Vintage Books for Chatto and Windus, 1993) p 5. RPS v The Queen (2000) 199 CLR 620. See further, New South Wales Law Reform Commission, Jury Directions, Consultation Paper 4 (2008) pp 108–111, 113–126; G Flatman and M Bagaric, “Juries Peers or Puppets—The Need to Curtail Jury Instructions” (1998) 22 Criminal Law Journal 207. [2.190]

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Judges are also called upon to make interlocutory determinations on many factual questions in the course of the trial. Preliminary hearings may be held to determine the admissibility of evidence; for example, a voir dire (a hearing in the absence of a jury) may be held to determine the admissibility of a confession alleged to be involuntary or improperly obtained. At the end of the prosecution case, the judge may be called upon to rule whether there is a prima facie case for the accused to answer; that is, whether there is sufficient evidence to allow the case to proceed. 336 Conversely, the jury is not confined exclusively to the facts, and may intrude upon legal matters. Since the jury renders the general verdict of guilty or not guilty, and is not required to provide reasons, it has considerable power to nullify laws and prosecutions considered to be abusive or unjust. 337 The capacity of the jury to temper the strictness of legality—its power to be “above the law”—has been represented as a bulwark of liberty against unfair and unjust offences enacted by the legislature over which the courts, due to the doctrine of parliamentary supremacy, are powerless. 338 Unlike the United States, where the power of jury nullification is expressly preserved in some States, nullification in Anglo-Australian juries is illusory since juries do not receive instruction on nullification verdicts. While jury nullification of “unjust” laws may occur in some cases (or be suspected to have occurred), its practical significance is further tempered by the rarity of contested criminal matters and the dominance of summary trials conducted without a jury: see Chapter 1, [1.135]. The formal segregation of the functions of judge from jury also ignores the wide range of “mixed” issues of law and fact. This may be illustrated by the standard directions concerning the meaning of grievous bodily harm or serious injury. In determining whether the harm or injury caused is grievous or serious, the jury does not have a completely free hand with the facts. The judge will direct the jury as to the type and quantum of injuries that satisfy the particular legal definition. As we shall explore in Chapter 10, [10.80], the judge may (depending on the facts) direct the jury that: • the injury must be serious, not trivial; • the accused must take the victim as he or she finds them; and • harm is not limited to physical injury—it also includes psychological harm, provided that it amounts to a “recognisable psychiatric disorder”. In both direct and indirect ways, a judge imposes limits on the freedom of the jury to determine the facts as the jury sees fit. Available research on jury decision-making reveals the strong influence of judicial directions on the minds of the jury. In a pioneering study more than 35 years ago, John Baldwin and Mike McConville identified cases where much of the jury’s deliberation was actually taken up with seeking to discover what was in the judge’s mind and with trying to produce a verdict with which the judge would agree!? 339 Subsequent research suggests that jurors continue to struggle with the complexity of the evidence and law presented to them, though the increased provision of written instructions, visual aids and access to trial 336

338 339

Doney v The Queen (1990) 171 CLR 207; see C Cato, The Law and Practice of Criminal Litigation (Sydney: LBC Information Services, 1998) pp 301–302; J Jackson and S Doran, “Judge and Jury: Towards a New Division of Labour in Criminal Trials” (1997) 60(6) Modern Law Review 759 at 767. See further P Devlin, Trial By Jury (London: Stevens and Sons, 1966); J Hunter and K Cronin, Evidence, Advocacy and Ethical Practice (Sydney: Butterworths, 1995) pp 120–122. P Devlin, “The Conscience of the Jury” (1991) 107 Law Quarterly Review 398 at 404. J Baldwin and M McConville, Jury Trials (Oxford: Clarendon Press, 1979) p 78.

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transcripts would greatly assist in deliberation. 340 Without legislative change, some judges provide jurors with written material in serious matters, such as homicide, which summarises the key questions and outlines the law to be applied. Such materials, while being no substitute for proper oral directions, “greatly assist the jury to follow and apply the oral directions”. 341 An empirical study in New Zealand suggests that juries, while confronting difficulties, did perform their tasks competently and with integrity. 342 This sentiment is echoed by Justice Young of the High Court of New Zealand who presents a review of current jury research and concludes that: “[I]solated instances of jury misconduct or perversity should not be taken as the norm. It is right to recognise that juries are generally diligent, and, if given the right assistance, are usually collectively willing and able to determine cases”. 343 He is supportive of judicial input in jury trials and makes recommendations for providing better judicial assistance to juries: “At the start of the trial, jurors should be told what is truly in issue. In summing up, if not before, the judge should marshal the evidence around those questions. In cases of any length, the oral process of the criminal trial process requires some written supplementation if jurors are to recall enough of the evidence and the summing up to be able to deliberate efficiently and to reach verdicts on the evidence and in accordance with the law.” 344

Despite these sentiments, empirical research has revealed that judges often hamper rather than assist jury decision-making. Research using mock juries in England suggests that judicial warnings about evidence that is considered potentially unreliable—such as the mandatory corroboration warning in sexual offences trials—can be counterproductive, having the opposite effect to that which was intended by the judge. 345 While perhaps ineffective, such warnings embody discriminatory myths and stereotypes about female sexuality. The “special” evidential and procedural rules governing sexual offences are explored in Chapter 11, [11.180], “Perspectives: special procedural and evidential rules for sexual offences”. To avoid the danger of unduly prejudicing the jury and rendering the trial unfair, the summing-up must be “balanced” between the prosecution and defence: “A judge is obliged to give a fair and balanced account of the prosecution and the defence case … He or she must exhibit a judicial balance so that the jury is not deprived of understanding and giving effect to the evidence and matters relied upon in support of the defence.” 346

Even where the direction is balanced, the language and tone can play a significant role: 340

341 342 343 344 345

346

P Darbyshire, “What Can We Learn From Published Jury Research?” [2001] Criminal Law Review 970 at 973; see also New South Wales Law Reform Commission, Jury Directions, Consultation Paper 4 (2008) pp 111–113. For an excellent review of the current state of jury research, see M Nolan and J GoodmanDelahunty, Legal Psychology in Australia (Sydney: Lawbook Co, 2015) Ch 7. See R v Ford [2003] NSWCCA 5 at [5] per Heydon JA. W Young, Y Tinsley and N Cameron, “The Effectiveness and Efficiency of Jury Decision-Making” (2000) 24 Criminal Law Journal 89. Young J, “Summing-up to Juries in Criminal Cases—What Jury Research Says about Current Rules and Practice” [2003] Criminal Law Review 665 at 689. Young J, “Summing-up to Juries in Criminal Cases—What Jury Research Says about Current Rules and Practice” [2003] Criminal Law Review 665 at 689. London School of Economics Jury Project, “Juries and the Rules of Evidence” [1973] Criminal Law Review 208, discussed in J Hunter and K Cronin, Evidence, Advocacy and Ethical Practice (Sydney: Butterworths, 1995) pp 80–81. In cases where the warning was given, juries were more likely to convict. One possible explanation is that the warning to the jury that it is dangerous to convict without corroboration requires the judge to identify what evidence is corroborative. This serves to highlight implicating material against the accused and so underscores (rather than undermines) the prosecution case. C Cato, The Law and Practice of Criminal Litigation (Sydney: LBC Information Services, 1998) pp 305–306, citing B v The Queen (1992) 63 A Crim R 225 at 229 per Brennan J; for further discussion, see New South Wales Law Reform Commission, Jury Directions, Consultation Paper 4 (2008) pp 113–119. [2.190]

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“The judge’s usual linguistic device is to express an opinion and then add the rider that ‘of course, members of the jury, it is a matter for you’. But jurors perceive this as the judge tipping them the wink as to how they should be thinking.” 347

Indeed, these judicial cues and qualifications may explain why evidence of intoxication or an unreasonable mistake, though technically capable of negating the required mental state for the offence, rarely result in an acquittal: see Chapter 11, [11.150]. As this section has revealed, for academic as well as practical reasons, greater attention must be paid to the procedural context within which so-called fundamental principles operate.

Procedural perspectives Law and Order Politics: The Reform of Double Jeopardy [2.195] Double jeopardy is typically represented as an “800-year-old rule of the common

law”. It is reflected in the Latin maxim non bis in idem and pleas of autrefois convict or acquit. However, this venerable pedigree conceals the extensive modern development of the doctrine which has occurred both in domestic common law and international human rights law. In relation to the latter, the principle of double jeopardy finds its modern expression in the International Covenant on Civil and Political Rights (ICCPR), Art 14(7), which provides: No-one shall be liable to be tried or punished again for an offence for which he [or she] has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

In Australia, reform of this important principle has proceeded in a largely ad hoc, piecemeal fashion as a response to the public controversy generated by the High Court’s decision in R v Carroll. 348 In that case, the accused had been acquitted of murder following a successful appeal against their conviction. Following new evidence many years later that pointed towards his guilt, the accused was prosecuted and convicted for perjury arising out of the allegedly false denials of killing the victim which he had made during the murder trial. The decision of the High Court to quash the conviction for perjury was not legally controversial, amounting merely to an affirmation of a “fundamental rule of the common law” 349. Reflecting his reasoning in Carroll, Kirby J in his extra-judicial writings has highlighted the many important functions of the existing rule, including the principle of finality. He also noted that substantial revision to permit retrial may be incompatible with Art 14(7) of the ICCPR, above. 350 Due to the extensive media coverage of the case, the MCCOC was compelled into a more strategic review of the law for the purpose of 347 348 349 350

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H Kennedy, Eve Was Framed—Women and British Justice (London: Vintage Books, 1993) p 5. (2002) 213 CLR 635. M Kirby, “Carroll, Double Jeopardy and International Human Rights Law” (2003) 27 Criminal Law Journal 231 at 235. M Kirby, “Carroll, Double Jeopardy and International Human Rights Law” (2003) 27 Criminal Law Journal 231 at 243–244. See further, C Corns, “Retrial of Acquitted Persons: Time for Reform of The Double Jeopardy Rule?” (2003) 27(2) Criminal Law Journal 80; M Bagaric and L Neal, “Double Jeopardy in Australia: The Illusion of an Absolute Protection and the Prosecution Process as Punishment” (2005) 8 Canberra Law Review 87; M McMahon, “Retrials of Persons Acquitted of Indictable Offences in England and Australia: Exceptions to the Rule Against Double Jeopardy” (2014) 38(3) Criminal Law Journal 159. For an excellent review of the origins, and confused rationale of the rule, see M Edgely, “Truth or Justice? Double Jeopardy Reform for Queensland: Rights in Jeopardy” (2007) 7(1) Queensland University of Technology Law and Justice Journal 108. [2.195]

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developing a series of “protective principles” to govern the retrials of persons previously acquitted. 351 This may be contrasted with the comprehensive review of the law in New Zealand and the United Kingdom by their respective Law Commissions. 352 Notwithstanding some compelling arguments in favour of retention, significant political pressure was applied to reform these “outdated” laws governing double jeopardy through the Council of Australian Governments (COAG). As a result, most jurisdictions have modified the rule against double jeopardy. 353 These reforms in Australia largely followed the United Kingdom model in the Criminal Justice Act 2003 (UK), which allows prosecutors to apply to the Court of Appeal for retrials of “serious offences” notwithstanding an earlier acquittal in cases where there is fresh and compelling evidence or the acquittal was “tainted”, and the retrial would otherwise serve the “interests of justice”. The reforms provide the prosecution with new powers to appeal acquittals on points of law and to seek retrials, though there are some significant differences across jurisdictions. Marilyn McMahon has summarised the differences as follows: • The appeal against acquittal is of right (New South Wales, Western Australia) or by leave of the trial judge/appellate court (Tasmania, South Australia). • The grounds of appeal vary signi?cantly from questions of law (New South Wales and Tasmania), to questions of law and/or fact (Western Australia) and “any grounds” (South Australia). • The appeal is sometimes subject to the proviso that even if a ground of appeal might be decided in favour of the prosecution, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. • Following the quashing of an acquittal, the orders that can be made by an appeal court vary considerably: in Tasmania the appeal court is empowered to substitute a verdict of guilty; whereas in New South Wales this is expressly prohibited. • Unlike other reforms to double jeopardy, they are generally not retrospective in operation. 354 Though these laws have been in place for some time in England and Australia, the powers are rarely, if ever, used, and have not even been evaluated, 355 leading to concern that these reforms, responding to the lobbying efforts of victims of crime groups, have been largely symbolic.

351 352 353

354 355

MCCOC, Chapter 2—Issue Estoppel, Double Jeopardy and Prosecution Appeals against Acquittals, Report (2004). Law Commission (NZ), Acquittal Following Perversion of the Course of Justice, Report No 70 (2001); Law Commission (England and Wales), Double Jeopardy and Prosecution Appeals, Report No 267 (2001). Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 (NSW) Pt 8; Criminal Code (Double Jeopardy) Amendment Act 2007 (Qld); Criminal Law Consolidation (Double Jeopardy) Amendment Act 2008 (SA), Criminal Code Amendment Act 2008 (No. 33 of 2008); Criminal Procedure Amendment (Double Jeopardy and Other Matters) Act 2011 (Vic). Proposals to enact similar reforms are currently before the legislatures in the Australian Capital Territory and Northern Territory. M McMahon, “Retrials of persons acquitted of indictable offences in England and Australia: Exceptions to the rule against double jeopardy” (2014) 38(3) Criminal Law Journal 159 at 172. M McMahon, “Retrials of persons acquitted of indictable offences in England and Australia: Exceptions to the rule against double jeopardy” (2014) 38(3) Criminal Law Journal 159 at 162. [2.195]

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The Principle of Equality Before the Law [The poor] have to labour in the face of the majestic equality of the law, which forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread. 356 [2.200] Equality before the law is a fundamental principle which ensures that individuals are

not subject to discrimination in the enjoyment of their legal rights or entitlements. Article 7 of the Universal Declaration of Human Rights 357 (UDHR) provides that “[a]ll are equal before the law and are entitled without discrimination to equal protection of the law”. The International Covenant on Civil and Political Rights (ICCPR) contains a similar provision in Art 26, which states that: The law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The equal right of men and women to enjoy these rights is further recognised in Art 3. The right to equality before the law was the subject of a major law reform project by the Australian Law Reform Commission two decades ago called Equality Before the Law. 358 The major report recommended federal legislation that would “guarantee that everyone is entitled to equality in law” and would render inoperative “any law, policy, programme, practice or decision which is inconsistent with equality in law on the ground of gender”. 359 The recommendation was never implemented though Victoria and the Australian Capital Territory have enshrined the right to equality before the law in their respective human rights legislation, discussed at [2.150]. 360 The principle of equal treatment before the law is directed to procedural rather than substantive ends. As formal or strict equality promotes sameness of treatment, it may conceal the substantive political, social and economic inequality of disadvantaged groups or individuals. Acknowledgment of these limitations has generated remedial versions of equality, such as equality of opportunity. Yet, both formal and remedial conceptions of equality have been criticised from a feminist perspective. Nicola Lacey has summarised the feminist critique as follows: “In the case of equality, it has been argued that liberal notions of equality are fundamentally premised on the idea of sameness: equal treatment is due to all who are similarly situated to the full liberal subject. Hence, if the subject is implicitly marked as masculine—is understood in terms of bodily and psychic characteristics which have been culturally understood to be associated with men—then the strategy of equality amounts to the assimilation of women to a norm set by and for men.” 361

Inequality is approached from the liberal (and invariably legal) standpoint of individualism. By conceiving discrimination as the different treatment of individuals on specified grounds such as gender or race, there is only limited scope for addressing and remedying group-based disadvantage. Rejecting the concept of “equality as sameness”, feminists have focused instead 356 357 358 359 360 361

Anatole France, Le Lys Rouge (1894) Ch 7. Adopted and proclaimed by General Assembly Resolution 217A (III) of 10 December 1948. Australian Law Reform Commission, Equality Before the Law, Report No 69 (1994). Australian Law Reform Commission, Equality Before the Law, Report No 69 (1994) p 65. See Human Rights Act 2004 (ACT), s 8 and Charter of Human Rights and Responsibilities Act (Vic), s 8. N Lacey, Unspeakable Subjects—Feminist Essays in Legal and Social Theory (Oxford: Hart Publishing, 1998) p 240.

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on subordination. 362 There is considerable scope for the “normative reconstruction” of equality in broader pluralistic terms such as “equality as acceptance” or “equality as respect for difference”. 363 Anti-discrimination legislation has been criticised as implicitly setting up a male norm by which other groups can be measured. To avoid this, it has been suggested that legislation aimed at specific disadvantaged groups should be enacted instead. 364 There is also concern about the packaging of equality, or indeed any normative claim, in terms of “rights”. Dissatisfied with the privileging of liberalism within conventional rights discourse, some critical and feminist scholars have rejected the concept of rights entirely. 365 Valerie Kerruish rejects the fetish for asserting rights, claiming it is wrong to support rights as “claims of liberal ideals of liberty, equality and democratic community, or of justice or human rights or whatever”. Rather, she argues that rights should be construed as “claims by people bearing the heaviest burdens of our way of life, which express resistance to the established order of things”. 366 This approach recognises the empowering effect of the language of rights within legal and political discourse. As Hilary Charlesworth concludes: “The assertion of rights can have great symbolic force for oppressed groups within a society offering a significant vocabulary to formulate political and social grievances which is recognised by the powerful.” 367

Equality is clearly a contested notion with multiple meanings. While being flawed and limited in fundamental respects, the principle of equality before the law continues to influence many debates about the reform of the criminal law. It holds out the promise of liberation for the disadvantaged within society. In the following sections, we review the struggles over the different and contested meanings of equality in debates concerning the treatment of women and Indigenous peoples by the criminal law. Feminist perspectives on gender discrimination and the criminal law [2.205] In her essay, Celia Wells, a leading feminist scholar, concluded: “Viewing criminal law

and justice through a feminist lens has revealed both profound transformations and ‘business 362

363 364

365

366 367

C MacKinnon, Toward a Feminist Theory of the State (Cambridge, Mass: Harvard University Press, 1989) Ch 12; J Morgan and R Graycar, The Hidden Gender of Law (2nd ed, Sydney: Federation Press, 2002) pp 28–31, discussing the adoption of the subordination principle as the theoretical perspective for reviewing criminal law in Canada: E Sheehy, “Personal Autonomy and the Criminal Law: Emerging Issues”, Background Paper, Canadian Advisory Council on the Status of Women (1987). See also proposals for a gendered equality right within a Bill of Rights which specifically addresses women’s subordination: J Morgan, “Equality Rights in the Australian Context: A Feminist Perspective” in P Alston (ed), Towards an Australian Bill of Rights (Canberra: Centre for International and Public Law and Human Rights and Equal Opportunity Commission, 1994) p 144. N Lacey, Unspeakable Subjects—Feminist Essays in Legal and Social Theory (Oxford: Hart Publishing, 1998) pp 239–241, discussing the work of feminist theorists Drucilla Cornell and Luce Irigaray. See, for example, the Australian Law Reform Commission minority report which proposed the adoption of a Status of Women Act for the purpose of establishing a specific right to equality in law for women: H Charlesworth, “Taking the Gender of Rights Seriously” in B Galligan and C Sampford (eds), Rethinking Human Rights (Sydney: Federation Press, 1997) p 48. For a review of this debate, see H Charlesworth, “Taking the Gender of Rights Seriously” in B Galligan and C Sampford (eds), Rethinking Human Rights (Sydney: Federation Press, 1997) pp 32–35, and J Morgan, “Equality Rights in the Australian Context: A Feminist Perspective” in P Alston (ed), Towards an Australian Bill of Rights (Canberra: Centre for International and Public Law and Human Rights and Equal Opportunity Commission, 1994) pp 123–131. V Kerruish, Jurisprudence as Ideology (London and New York: Routledge, 1991) p 145. H Charlesworth, “The Australian Reluctance About Rights” in P Alston (ed), Towards an Australian Bill of Rights (Canberra: Centre for International and Public Law and Human Rights and Equal Opportunity Commission, 1994) p 49. See also H Charlesworth, “Taking the Gender of Rights Seriously” in B Galligan and C Sampford (eds), Rethinking Human Rights (Sydney: Federation Press, 1997) Ch 3. [2.205]

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as usual’”. 368 It is undeniable that there have been some significant reforms aimed at improving the treatment of women by the criminal justice system. As we shall explore in Chapter 11, feminist concerns about the rules of evidence and procedure that discriminate against women who allege sexual abuse have led to wide-ranging reforms in Australia: [11.175]. However, empirical studies suggest that rape law reform has not significantly improved the treatment of victims by the legal process. 369 Arguments based on equality have also supported the abolition of substantive rules that discriminate against women, such as the marital rape immunity. Yet the case of marital rape reveals the limits of legal strategies for achieving gender equality. While formal legal and evidential hurdles to the prosecution of men who rape their wives have been removed, discriminatory attitudes of prosecutors and judges during sentencing continue to downgrade the seriousness of non-stranger rape (rape by a spouse, partner or acquaintance). 370 As Nicola Lacey concludes, the criminal law has only limited potential to achieve sexual equality in marriage “because of all sorts of other flows of power—economic power being significant among them—which cannot be affected except by very radical social change which cannot be engendered directly by legal means”. 371 While landmark judicial decisions have addressed some overtly discriminatory aspects of the criminal law (such as marital rape immunity), these cannot really be heralded as evidence of the success of feminism. As Celia Wells noted in the essay above, few of these decisions made use of the significant writing or campaigns by feminists on these topics. 372 A better legal strategy for promoting gender consciousness could be to expressly align feminist critique with international human rights law. International human rights law can provide a legal basis—as distinct from a purely philosophical basis—for using equality to evaluate and reform the criminal law. In the context of discrimination against women, this process has been bolstered by international treaties such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), adopted by the United Nations in 1979, that contains specific obligations on contracting states to take steps to eliminate discrimination against women. 373 The Convention does not address the general topic of violence against women, though the subsequent Declaration on the Elimination of Violence Against Women (DEVAW) stated that “gender-based violence” as a form of discrimination is prohibited under CEDAW. These international human rights treaties have supported the enactment of extraterritorial offences against sexual trafficking and child sex tourism, discussed in Chapter 15, [15.30]. As noted at [2.145], there is considerable potential for international law, particularly relating to human rights, to operate as a legitimate influence on the development of the 368 369

370 371 372 373

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C Wells, “The Impact of Feminist Thinking on Criminal Law and Justice: Contradiction, Complexity, Conviction and Connection” [2004] Criminal Law Review 503 at 515. Department of Women (NSW), Heroines of Fortitude (1996); Department of Justice (Vic), Rape Law Reform Evaluation Project—The Crimes (Rape) Act 1991 (1997). See, generally, P Easteal (ed), Balancing the Scales: Rape, Law Reform and Australian Culture (Sydney: Federation Press, 1998); G Mason, “Reforming the Law of Rape” in D Kirkby (ed), Sex, Power and Justice (Melbourne: Oxford University Press, 1995) Ch 4. P Easteal, Balancing the Scales: Rape, Law Reform and Australian Culture (Sydney: Federation Press, 1998) Ch 8. N Lacey, Unspeakable Subjects—Feminist Essays in Legal and Social Theory (Oxford: Hart Publishing, 1998) p 241. C Wells, “The Impact of Feminist Thinking on Criminal Law and Justice: Contradiction, Complexity, Conviction and Connection” [2004] Criminal Law Review 503 at 508. See, generally, H Charlesworth and C Chinkin, “Violence against Women” in J Stubbs (ed), Women, Male Violence and the Law (Sydney: Institute of Criminology, 1994) Ch 2. [2.205]

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common law in Australia. A Canadian decision provides an example of how international treaties may be used productively to remove discriminatory concepts embedded in the substantive law. In R v Ewanchuk the Supreme Court of Canada remoulded the common law definition of “consent” for the purpose of sexual assault. The Court unanimously rejected a submission that the common law recognise a defence of “implied consent” to sexual assault. 374 Not only did a defence of implied consent give inadequate weight to the importance of sexual autonomy, it also perpetuated the “no means yes” discriminatory stereotype of females’ sexual passivity. Feminist criticism of the common law governing lack of consent in rape law is reviewed in Chapter 11, [11.25]. The strategy of reshaping the common law adopted by the Supreme Court of Canada was preferred to a direct constitutional challenge that these laws violated the guarantee of equality under the Canadian Charter of Rights. In developing the common law, Madam Justice L’Heureux-Dubé drew extensively on provisions in CEDAW and DEVAW, pointing to the obligation on contracting states to “ensure that laws against family violence and abuse, rape, sexual assault and other gender-biased violence give adequate protection to all women, and respect their integrity and dignity”. 375 The obligation included protection against sexual activity that occurs because of force, threats or fear. L’Heureux-Dubé J highlighted the importance of tackling discrimination in the form of gender bias in the judiciary, pointing to the obligation in Art 4(j) of DEVAW that required states to adopt: “all appropriate measures, especially in the field of education, to modify the social and cultural patterns of conduct of men and women and to eliminate prejudices, customary practices and all other practices based on the idea of the inferiority or superiority of either of the sexes and on stereotyped roles for men and women.” 376

In light of these international obligations, L’Heureux-Dubé J viewed the judicial task as involving the correction of “myths and stereotypes” evident both in the substantive legal rules and the gender-biased language employed in the judgments of the lower courts. She concluded: “It is part of the role of this Court to denounce this kind of language, unfortunately still used today, which not only perpetuates archaic myths and stereotypes about the nature of sexual assaults but also ignores the law.” 377

The experience in Canada suggests that these provisions of CEDAW and DEVAW may be used to develop the Australian common law in a similar manner. 378 A similar sensitivity to issues of discrimination is evident in judicial efforts to re-define self-defence in a way that may take into account the experiences of battered women: see Chapter 6, [6.65], “Intimate partner violence and self-defence”. Feminist and cultural claims to equality can often collide. Articles 18 and 27 of the ICCPR specifically protect ethnic and cultural rights under the guarantee of freedom of religion and the right of ethnic, religious or linguistic minorities to enjoy their own culture, religion or 374 375 376 377 378

[1999] 1 SCR 330. R v Ewanchuk [1999] 1 SCR 330 at 364 (emphasis in original). R v Ewanchuk [1999] 1 SCR 330 at 365 (original emphasis). R v Ewanchuk [1999] 1 SCR 330 at 376. The notion of “actual bodily harm” under the common law of assault has traditionally excluded the infliction of psychological and psychiatric distress: cf the wider definition in English law in R v Ireland [1997] 4 All ER 225. By contrast, gender-based violence under the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) covers “acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty”: General Recommendation No 19 (11th Session 1992). CEDAW provides the mandate for widening the common law definition of “assault” and developing new statutory crimes of stalking: see Ch 10. [2.205]

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language. “Rights conflicts” are most problematic in cases where individual rights collide with group rights. Human rights lawyers often reject the contention that rights are hierarchical and that specific individual rights trump general collective rights. Since rights are rarely absolute, competing tensions between rights and other interests must be resolved through a process of balancing interests. Concepts like proportionality are thus liberally employed to accommodate competing interests while maximising respect for human rights. The ALRC in its Freedom Inquiry described the proportionality analysis for ustifying restrictions of rights and freedoms as follows: “In short, a structured proportionality analysis involves considering whether a given law that limits important rights has a legitimate objective and is suitable and necessary to meet that objective, and whether—on balance—the public interest pursued by the law outweighs the harm done to the individual right.” 379

However, there are problems in this “balanced” image of human rights. The structural constraints of “balancing” have been previously explored in the context of the fair trial principle: see [2.135]. In this context, the process of balancing conceives individual and group rights as mutually exclusive: to promote individual rights is necessarily to subvert collective rights, and vice versa. 380 The reduction of conflict to these simple binary terms conceals the composition and complexity of the values in opposition, and tends to result in individual rights trumping collective interests. Dissatisfied with the privileging of individual liberalism, some feminists have argued for a pluralistic conception of equality that promotes, rather than suppresses, difference. Difference is not confined to gender but includes anything that plays a role in constituting identity, including culture, religion, language, sexuality and so on. 381 The “difference perspective” cuts across the binary distinction of individuals and groups since it is concerned both with individual differences such as personal expression and characteristics, and group differences such as language, culture and religion. Adopting this approach, the values underlying respective claims are transparent and may be negotiated more constructively. In the criminal law, tensions within the concept of equality have manifested themselves in debates over the extent to which defences should incorporate discriminatory cultural beliefs about female sexuality. In the context of provocation, examined in Chapter 5, at [5.10], there is controversy over whether the cultural attitudes and ethnic background of the accused should be considered relevant; not only to determining the gravity of the provocation, but whether the provocation was such as could cause an “ordinary person” to act in the way in which the accused did. The difficulty arises in cases where the accused’s response to the provocation is founded on cultural belief or customs that are discriminatory and condone or legitimate violence against women and children. From a practical perspective, it is important that cultural claims that incorporate and perpetrate gender discrimination are evaluated 379 380

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Australian Law Reform Commission, Traditional Rights and Freedoms – Encroachments by Commonwealth Laws, Report No 129 (2016), [2.63] (bold emphasis in original). Noting the sterility of the individual versus group rights approaches in Canadian jurisprudence, Eisenberg favours the development of a “difference perspective”. By focusing on identity-related difference, courts can better frame its reasoning in terms of the values actually at stake: A Eisenberg, “The Politics of Individual and Group Difference in Canadian Jurisprudence” (1994) 27 Canadian Journal of Political Science 1. There is a danger that feminism replaces one (masculine) universalism with two. As Lacey concludes: “We need, in other words, to … locate the ethical impulse to attend to otherness not just within the vector of sexual difference but within those of racial, ethnic, national, class and other differences too”: Unspeakable Subjects—Feminist Essays in Legal and Social Theory (Oxford: Hart Publishing, 1998) p 245. On the growing significance of intersectionality in equality jurisprudence, see S Bottomley and S Bronitt, Law in Context (4th ed, Sydney: Federation Press, 2012) pp 18-20. [2.205]

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carefully—culture is neither monolithic nor immutable. Without careful interrogation of the centrality of these cultural beliefs to identity, there is a real danger that the courts may stereotype the values and beliefs of “other” races and cultures, paradoxically perpetuating discriminatory myths. Respecting gender and cultural differences involves complex political and moral questions. In cases of irreconcilable conflict between these imperatives, it has been suggested that the legislature, rather than the courts, should choose which values should prevail in a specific context. 382 Anticipating the potential clash between cultural and feminist claims to equality, the DEVAW sets out that “States should condemn violence against women and should not invoke any custom, tradition or religious consideration to avoid their obligations with respect to its elimination”: Art 4. The DEVAW draws on the rights contained in the UDHR and the ICCPR. The UDHR and ICCPR contain the right not to be subject to torture, or to cruel, inhuman or degrading treatment or punishment, and the right to liberty and security of person. In Chapter 10, [10.105], we consider the conflict between feminist and cultural claims to equal treatment in relation to “female genital mutilation”. Should this practice be outlawed as a form of torture? To what extent should the law accommodate harmful cultural differences? Is it possible to achieve a balance between feminist and cultural claims? Equality before the law: denying Indigenous criminal law and jurisdiction [2.210] The paradox of equality before the law—its capacity to perpetuate and thereby

condone disadvantage—is apparent in debates over the recognition of Indigenous “customary law”. As noted in our discussion of jurisdiction at [2.50], in the colonial period there were legal challenges (ultimately unsuccessful) suggesting that Indigenous people were not amenable to criminal jurisdiction in all situations. This issue of native criminal jurisdiction has been re-agitated by the High Court’s recognition of native title in Mabo v Queensland (No 2). The decision left open a basis for argument, by analogy to native title, that Indigenous criminal laws (including customary defences) may have survived British occupation. As Deane and Gaudron JJ observed in Mabo: “The common law so introduced was adjusted in accordance with the principle that, in settled colonies, only so much of it was introduced as was ‘reasonably applicable to the circumstances of the colony’. This left room for the continued operation of some local laws or customs among the native people and even the incorporation of some of those laws and customs as part of the common law.” 383

Not long after Mabo, Stanley Yeo (drawing the analogy with native title) argued that Aboriginal criminal jurisdiction survived unless clearly abrogated by Parliament or executive action. 384 Yeo suggested that even if Aboriginal criminal jurisdiction was held to have been abrogated, Mabo provided a moral basis for its reinstatement as a gesture of reconciliation consistent with the trend toward recognition of Indigenous rights to self-determination or self-management. 385 382

383 384 385

K Amirthalingam and S Bronitt, “Cultural Blindness and the Criminal Law” (1996) 20(2) Alternative Law Journal 58 at 60. See also S Bronitt, “Visions of a Multicultural Criminal Law: An Australian Perspective” in AD Renteln and M Foblets, Multicultural Jurisprudence: Comparative Perspectives on Cultural Defense (Hart Publishing, Oxford, 2009) and T Calma, “The Integration of Customary Law into the Australian Legal System” (2007) 25(1) Law in Context 74 at 77. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 79. S Yeo, “Native Criminal Jurisdiction After Mabo” (1994) 6 Current Issues in Criminal Justice 9; S Yeo, “Editorial—Recognition of Aboriginal Criminal Jurisdiction” (1994) 18 Criminal Law Journal 193. S Yeo, “Editorial—Recognition of Aboriginal Criminal Jurisdiction” (1994) 18 Criminal Law Journal 193 at 196. [2.210]

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The extent of the extinguishment of native criminal jurisdiction is yet to be resolved authoritatively by the High Court. However, the prospects of success seem remote in light of the reasoning in Walker v New South Wales. This case concerned an attempt to claim, through the civil courts, that the Commonwealth and State parliaments lacked the power to legislate over Aboriginal people without their consent. During the course of oral argument, the plaintiff introduced a further argument that Aboriginal criminal customary law had not been extinguished by British settlement. Refusing leave to appeal, Mason CJ noted that an argument framed in terms of Indigenous sovereignty and rights of self-determination was doomed to failure, as they were in Mabo (No 2). The second argument also failed on the ground that the recognition of two concurrent, potentially overlapping, systems of criminal law would be confusing to citizens and, more fundamentally, contradicted the principle of equality before the law: “It is a basic principle that all people should stand equal before the law. A construction which results in different criminal sanctions applying to different persons for the same conduct offends that basic principle. The general rule is that an enactment applies to all persons and matters within the territory to which it extends, but not to any other persons and matters … The presumption applies with added force in the case of the criminal law, which is inherently universal in its operation, and whose aims would otherwise be frustrated.” 386

Mason CJ went on to say that even if it was assumed that the customary criminal law of Aboriginal people had survived settlement, it had been extinguished by the passage of criminal statutes of general application. No analogy could be drawn with native title: “English criminal law did not, and Australian criminal law does not, accommodate an alternative body of law operating alongside it. There is nothing in Mabo (No 2) to provide any support at all for the proposition that criminal laws of general application do not apply to Aboriginal people.” 387

This approach, based on the principle of equality before the law, is not beyond challenge. As our discussion of jurisdiction above has revealed, the simple ideal of territoriality in the criminal law has been subject to significant qualifications and exceptions. As Jennifer Neilsen and Gary Martin point out, the rejection of Indigenous criminal law in Walker ignores “the pluralism already inherent within the Australian federation, which is comprised of three tiers of law-making authority, each of which is supposed to complement the others”. 388 As noted above, criminal jurisdiction within Australia is already fragmented, divided between the nine jurisdictions of the Commonwealth, States and Territories. It is also overlaid by the military criminal jurisdiction for defence services personnel conferred by the Defence Force Discipline Act 1982 (Cth). Legal and administrative mechanisms have been developed to “share” criminal jurisdiction and to resolve potential conflicts. For example, federal offences may be tried in State or Territory courts, though in accordance with State or Territory, rather than federal, rules of evidence and procedure. In some spheres, federal law has an overriding effect: State and Territory offences may be subject to claims that they are inoperative to the extent of inconsistency with Commonwealth legislation. See, for example, the impact of the Human Rights (Sexual Conduct) Act 1994 (Cth) on homosexual offences and age of consent laws in States and Territories, discussed in Chapter 11, [11.30]. The problem of potential conflict between Indigenous and non-Indigenous criminal jurisdiction is not insurmountable, and could be resolved—as in the case of native title—by 386 387 388

Walker v New South Wales (1994) 182 CLR 45 at 50. Walker v New South Wales (1994) 182 CLR 45 at 50. J Neilson and G Martin, “Indigenous Australian Peoples and Human Rights” in D Kinley (ed), Human Rights in Australian Law (Sydney: Federation Press, 1998) p 111.

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legislation which clarified the scope and limits of Indigenous law. Indeed, the Northern Territory Law Reform Committee has recommended steps in this direction: “That upon application to the Attorney-General an Aboriginal community may apply for recognition, within the community, and by those who consent to it, of such Aboriginal customs and traditions as the community sees fit and which shall therefore be recognised as lawful and binding upon those who accept it, provided that such customs and traditions do not transgress the general laws of the Northern Territory or universal human rights and fundamental freedoms.” 389

The formalistic conception of equality offered by Mason CJ in Walker severely limits the scope of claims for recognition of Aboriginal criminal laws and jurisdiction. As Neilsen and Martin point out: “[T]his formal reading of the notion of equality is out of kilter with international jurisprudence, and so the continued denial of the Indigenous criminal justice system contravenes the cultural rights of Indigenous Australians”. 390 A similarly contested concept of equality informs the discussion in the Australian Law Reform Commission (ALRC) 1986 report on The Recognition of Aboriginal Customary Laws. 391 The ALRC considered that special laws or defences for Aboriginal people had to comply with the principle of equality before the law. This did not rule out different treatment for Indigenous people where it was a necessary and reasonable response to the special needs of Aboriginal persons. 392 Consequently, the ALRC rejected special offences and defences in favour of addressing the issue of Aboriginality and Aboriginal law, where appropriate, within existing substantive and procedural laws. Rather than conceptualise equality as “equal versus special treatment”, the Law Reform Commission of Canada has recognised the limits of equality discourse, proposing instead the higher goal of “ensuring equal access to justice, equitable treatment and respect” for Aboriginal peoples within the criminal justice system. 393 On this view, the principle of equality before the law would be consistent, rather than antagonistic, with the creation of parallel systems of Indigenous criminal justice. The principle of equality before the law is limited in another way. The right to equality is usually conceived in procedural rather than substantive terms. Equality before the law ensures that all persons accused of crime receive the same minimum level of treatment from the criminal justice system. Thus, discretion relating to law enforcement, prosecution and sentencing should be structured and exercised in a consistent and non-discriminatory manner. In relation to pre-trial decision-making, Denis Galligan has pointed out that values such as fairness, consistency and equality before the law do not ordinarily attach to substantive purposes or policies. 394 Ensuring even-handedness in the administration of justice does not address the substantive discrimination that may be embedded in the purpose and policies of criminalising certain conduct. Substantive offences based on loose definitions such as “offensiveness” and “indecency” have a disproportionate impact on ethnic and minority groups. As we shall explore in Chapter 13, [13.150], empirical research has revealed that offensive conduct crimes are used primarily to deal with individuals who are intoxicated, 389 390 391 392 393 394

Northern Territory Law Reform Committee, Report on Aboriginal Customary Law (2003) p 19, https:// www.justice.nt.gov.au/__data/assets/pdf_file/0011/238619/ntlrc_final_report.pdf (cited 3 September 2016). J Neilson and G Martin “Indigenous Australian Peoples and Human Rights” in D Kinley (ed), Human Rights in Australian Law (Sydney: Federation Press, 1998) p 111. Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, Report No 31 (1986). Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, Report No 31 (1986) [404]–[412]. Law Reform Commission of Canada, Aboriginal Peoples and Criminal Justice, Report No 34 (1991) Ch 3. See “Regulating Pre-Trial Decisions” in N Lacey (ed), A Reader on Criminal Justice (Oxford: Oxford University Press, 1994). [2.210]

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swear at the police or otherwise demonstrate disrespect for authority. Such offences provide the police with flexible legal tools for defining and responding to social disorder, with adverse consequences for young persons, particularly those from Indigenous and ethnic communities.

Aboriginal courts and circle sentencing courts [2.215] David Weisbrot, in 1981 wrote of the possibility of having “a semi-autonomous Aboriginal community court system” that would apply “customary law with an emphasis on mediation and conciliation, with jurisdiction parallel (as a minimum) to Courts of Petty Sessions [Local Courts], and appellate review available only for allegations of denial of natural justice.” 395 His suggestion was made on the basis of overseas experience, ignored by the ALRC at the time, that successfully integrated customary law with orthodox law through having village courts applying native customary law in Papua New Guinea, Native American tribunal courts in the United States, and Sharia courts in Malaysia and other Islamic countries. 396 Such systems recognise that, in modern times, customary law is relevant to circumstances beyond criminal law. The Australian fixation with Indigenous customary law has been within the context of criminal law, rather than broader areas such as personal law (that is, customary law applicable to marriages, adoption, child custody and property title, for example). 397 Such recognition is predicated on having a dynamic understanding of customary law, rather than a static view which sees customary law as belonging to time immemorial and being lost when the European colonisers landed in Australia. This static view would deny customary law recognition to those Indigenous peoples who have not maintained their traditional lifestyles on reserves, but who are, after all, Aboriginal. 398 David Weisbrot’s suggestion of having separate courts has never been taken up in Australia (even though he subsequently became the President of the ALRC). Currently, there are specialist Aboriginal and circle sentencing courts in many jursdictions, though these are viewed as “alternative” diversionary processes. These do not apply Indigenous customary laws but do allow for engagement by Aboriginal elders in court processes involving Indigenous offenders. 399 These courts are important innovations in the context of institutional settings that determine criminal guilt. As Harry Blagg notes, Indigenous courts provide an important antidote to mainstream courts, which are: “spatially, culturally and linguistically non-Indigenous—there are no Indigenous cultural points of reference, and they are presided over by authority figures to whom Indigenous people usually cannot relate and with whom they have little or no connection.” 400 Equality as a principle allows all persons to appear equally before a tribunal or court, but does not consider the implications that this particular fora may have on a person, given their cultural background and identity. Blagg argues that:

395 396 397 398 399 400

D Weisbrot, “Customary Law” (1981) 1(1) Aboriginal Law Bulletin 3, reprinted in (2006) 6(21) Indigenous Law Bulletin 3–4. D Weisbrot, “Customary Law” (1981) 1(1) Aboriginal Law Bulletin 3, reprinted in (2006) 6(21) Indigenous Law Bulletin 4. D Weisbrot, “Customary Law” (1981) 1(1) Aboriginal Law Bulletin 3, reprinted in (2006) 6(21) Indigenous Law Bulletin 3–4. D Weisbrot, “Customary Law” (1981) 1(1) Aboriginal Law Bulletin 3, reprinted in (2006) 6(21) Indigenous Law Bulletin 3–4. H Blagg, Crime, Aboriginality and the Decolonisation of Justice (2nd ed, Sydney: Federation Press, 2016) p 109. H Blagg, Crime, Aboriginality and the Decolonisation of Justice (2nd ed, Sydney: Federation Press, 2016) p 110.

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“Aboriginal people maintain that the alienation many experience in the system is a factor in the high rates of repeat contact with the system, the failure to attend court, and failure to comply with court orders.” 401 At present, the remit of Aboriginal courts and circle sentencing courts is limited to the sentencing of offenders, and they act as alternatives to sentencing through regular (“Western”) criminal courts. This has lead to offenders pleading guilty in order to access the Koori courts in Victoria, not because these courts were considered an easier sentencing alternative but because offenders wanted to be “judged by their elders and to have access to culturally appropriate treatment options—there is a wide belief that the court is not a soft option but is willing to address the cultural, health and welfare needs of offenders”. 402 Other programs include circle sentencing (NSW), the Murri courts (Qld) and the Ngunga courts (SA). 403 The success of the Koori courts in Victoria, and similar models in other parts of Australia suggests that the scope and remit of these institutions should be expanded to include early-intervention visits to offenders and involvement in trial processes. 404

Sentencing and equality before the law [2.220] The principle of equality before the law also influences sentencing. The racial and

ethnic background of an offender tests the principle of equality in a number of ways. Race is not in itself a ground for differential treatment in sentencing—to do so would violate the Race Discrimination Act 1975 (Cth). Nevertheless, as Brennan J concluded in Neal v The Queen, the principle of equality may require the sentencing court to consider rather than ignore the effects that flow from the offender’s ethnic and racial background: “The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender’s membership of an ethnic or other group. So much is essential to the even administration of criminal justice.” 405

The political and social context of the offending conduct in Neal is further explored in Chapter 13, [13.195]. It is often said that the socio-economic conditions within Indigenous communities (including alcohol abuse) may be taken into account in mitigation where relevant. 406 However, there is a concern that the “checklist” approach to Aboriginal disadvantage in

401 402 403 404

405 406

H Blagg, Crime, Aboriginality and the Decolonisation of Justice (2nd ed, Sydney: Federation Press, 2016) p 110. H Blagg, Crime, Aboriginality and the Decolonisation of Justice (2nd ed, Sydney: Federation Press, 2016) p 115. See T Calma, “The Integration of Customary Law into the Australian Legal System” 25(1) Law in Context (2007) 74 at 84. H Blagg, Crime, Aboriginality and the Decolonisation of Justice (2nd ed, Sydney: Federation Press, 2016) especially Ch 7. The Queensland Government closed the Murri courts on 31 December 2012, purportedly as a savings measures. In its final six months of operation, it received 63 referrals, 50 of which successfully led to a final sentence (Queensland Courts, Magistrates Courts of Queensland: Annual Report 2012-2013 (Brisbane: Queensland Courts, 2013) p 25). With a change of government, the Murri courts returned to operation in 2015. Neal v The Queen (1982) 149 CLR 305 at 326. Rogers and Murray (1989) 44 A Crim R 301 at 307; Fernando (1992) 76 A Crim R 58. [2.220]

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mitigation of sentence does not give sufficient weight to the negative effect of the dispossession of land, culture and law as a contributing cause of offending. 407 A review of the authorities reveals considerable judicial ambivalence about the extent to which the accused’s Aboriginal background may be taken into account, particularly in cases where the violence occurs within Indigenous communities. In R v Daniel, Fitzgerald P observed that it is not possible to reconcile all the judicial statements taken from these cases: “Although the public, politicians and the media generally seem unaware of the complexity of sentencing, it involves principles and considerations which are potentially contradictory, as is not only recognised by the courts but established by legislative statements of parliamentary intention. The public has competing interests, which are visible in the conflicting interests of victim and offender. Shortly put, some factors favour severity and some favour leniency of punishment; thus, for example, deterrence of crime, both general and personal to a particular offender, which is necessary for the protection of the community, punishment for the wrong done to the victim of an offence and society, and vindication of the rights of the victim indicate the need for a sufficient penalty, while leniency can be attracted by favourable considerations which are personal to the offender and the prospect of his or her rehabilitation. Nonetheless, these factors which are inherent in the sentencing process cannot fully explain the divergent views expressed in the authorities concerning the sentencing of members of Aboriginal communities.” 408

In Bugmy v The Queen the High Court, affirming the approach in Neal and Fernando, unanimously held that there were no special rules governing the sentencing of Aboriginal offenders: “There is no warrant, in sentencing an Aboriginal offender in New South Wales, to apply a method of analysis different from that which applies in sentencing a non-Aboriginal offender. Nor is there a warrant to take into account the high rate of incarceration of Aboriginal people when sentencing an Aboriginal offender. Were this a consideration, the sentencing of Aboriginal offenders would cease to involve individualised justice.” 409

That said, the court held that the early experiences of deprivation on offenders (whether in Aboriginal or non-Aboriginal communities) can have a life-long impact, and thus may be relevant to determining the individual offender’s sentence. Moreover, rejecting the approach of the court below, the court held that the impact of this deprivation did not diminish “with the passage of time and repeated offending” and that it was therefore “right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision”. 410 Judicial ambivalence is also evident in cases where the offender has been, or will be, punished in accordance with Indigenous law or customary practices. Judicial notice is taken of laws, customs and practices within Indigenous communities that shed light on the seriousness of the individual offender’s wrongdoing. This may operate to either mitigate or aggravate the penalty, though sentencing courts are warned not to consider such matters without credible independent evidence on Indigenous law and customs. 411 As we shall explore below, judges and law reformers alike have struggled to understand and recognise, within limits, the relevance of “payback” within Indigenous communities to sentencing law. The modern trend is firmly against the recognition of customary law and the “cultural context” of the offending behaviour in sentencing decisions. The ALRC in Multiculturalism and the Law had proposed that “cultural background” should be made a relevant factor in 407 408 409 410 411

J Nicholson, “The Sentencing of Aboriginal Offenders” (1999) 23 Criminal Law Journal 85. R v Daniel [1997] QCA 139 (30 May 1997) (footnotes omitted). Bugmy v The Queen (2013) 249 CLR 571 at 592. Bugmy v The Queen (2013) 249 CLR 571 at 595, per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ. R v Minor (1992) 59 A Crim R 227 at 237 per Mildren J.

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federal sentencing. 412 The ALRC in Same Crime, Same Time: Sentencing of Federal Offenders went even further in relation to customary law, recommending that legislation should endorse the judicial practice of considering traditional laws and customs when sentencing Aboriginal offenders. 413 These recommendations of the ALRC were, however, never adopted due to the public controversy following a series of high-profile cases in the Northern Territory in which culture was used to “excuse” serious offending; in one case, significantly reducing the penalty for sexual offending against a minor. 414 The political response to these cases in 2005 included a proposal by the federal government to amend s 16A of the Crimes Act 1914 (Cth), expressly denying the courts from considering customary law or cultural practice in sentencing and bail decisions. 415 Section 16A(2A) of the Crimes Act 1914 (Cth) provides: [T]he court must not take into account [in these decisions] any form of customary law or cultural practice as a reason for: (a) excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates; or (b) aggravating the seriousness of the criminal behaviour to which the offence relates.

In debating the changes, the ideal of equality before the law loomed large in the parliamentary and public debates. As the government proponents of the above amendment noted: “All Australians should be treated equally under the law … Criminal behaviour cannot in any way be excused, justified, authorised, required or rendered less serious because of customary law or cultural practice. The Australian Government rejects the idea that an offender’s cultural background should automatically be considered, when a court is sentencing that offender, so as to mitigate the sentence imposed.” 416

As noted by Tatum Hands: “In spite of the contrary recommendations of federal bodies … the Howard Government passed amendments to the Crimes Act 1914 (Cth) in November 2006 precluding customary law or cultural factors from being taken into account during sentencing proceedings. In the Second Reading Speech, Liberal MP Michael Johnson argued that removing ‘cultural background’ as a sentencing factor under the Crimes Act was ‘all about reconciliation’ …” 417

As indicated above, the value of this liberal idea of equality before the law remains deeply contestable—not only does it suppress the relevance of salient difference, but it also subtly signals that the cultural context may justify a harsher penalty to deter “primitive cultural practices”. This scenario may have been avoided, at least in federal sentencing legislation, had the law accepted the Senate Committee’s recommendation to expressly state that culture may never be taken into account to aggravate the penalty: see Crimes Act 1914 (Cth), s 16A(2A)(b) above. Note, however, that other jurisdictions appear more open to taking the cultural 412 413 414

415 416 417

Australian Law Reform Commission, Multiculturalism and the Law, Report No 57 (1992). Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006). The most controversial case attracting media attention involved an Aboriginal man who anally raped a fourteen-year old girl whom he believed he had married according to Aboriginal law. The Northern Territory Chief Justice Brian Martin sentenced him to one month imprisonment, accepting the defendant’s view that he was entitled to act as he did under customary law: The Queen v GJ, Supreme Court of the Northern Territory, SCC 20418849. The sentence was increased on appeal to three years imprisonment: The Queen v GJ [2005] NTCCA 20. The High Court dismissed GJ’s appeal against the harsher sentence on 19 May 2006. See further, C Lorimer and S Harris-Rimmer, Crimes Amendment (Bail and Sentencing) Bill 2006, Bills Digest, No.56, (2006–07), 27 November 2006. Crimes Amendment (Bail and Sentencing) Bill 2006 (Cth). See Second Reading Speech, Senate Debates, 14 September 2006, p 9. T Hands, “Aboriginal Customary Law: The Challenge of Recognition” (2007) 32(1) Alternative Law Journal 42 notes (at 42). [2.220]

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background of offenders into account in sentencing procedures where relevant; for instance, the Law Reform Commission of Western Australia has recommended that the Sentencing Act 1995 (WA) be so amended. 418 Clearly, laws that deny customary law and cultural context will only compound the structural disadvantage and over-representation of Aboriginal people within the criminal justice system. This is not to deny the reality of crime within some communities, and the serious harm caused by sexual abuse. However, a more proportionate solution to the controversial case involving sexual abuse of a minor discussed above is to exclude customary law and culture-based arguments specifically in cases involving violence against women and children, a position which is consistent with international human rights law and an argument further explored at [2.205]. The issue of multiculturalism and the criminal law is further explored. 419

Indigenous perspectives on crime and punishment “Payback”: The Recognition of Indigenous Justice [2.225] Although Australian courts have persistently denied Indigenous criminal

jurisdiction, they have been prepared to recognise practices sanctioned by Aboriginal customary law indirectly as a factor relevant to sentencing. “Payback” is an Aboriginal–English term used to describe the wide range of methods used to punish wrongdoers and to appease victims within some Indigenous communities. It is not a form of revenge, but constitutes an admission of responsibility, typically involving some form of restitution or gift to the victim, or acceptance of punishment by the wrongdoer. 420 Forms of payback vary widely, ranging from death, spearing and duelling, through to shaming, education, compensation or exclusion. 421 In some communities payback may be purely symbolic, involving no more than merely touching the accused on the thigh with a spear. 422 The type of payback varies according to the severity of the breach of Indigenous law, the factors surrounding the offence, the parties involved and any other relevant matters. Once the type of payback is determined and carried out, that is regarded as the end of the matter and the potential for further violence between the clans is averted. Judges in the Northern Territory and Western Australia have a long history of recognising such customary law in sentencing decisions. 423 The Australian Law Reform Commission (ALRC) has recognised the relevance of Aboriginal customary law to sentencing and recommended that lawful forms of traditional punishment could be incorporated into sentencing orders. However, the ALRC 418 419 420 421 422 423

T Hands, “Aboriginal Customary Law: The Challenge of Recognition” (2007) 32(1) Alternative Law Journal 42 at 43. S Bronitt, “Visions of a Multicultural Criminal Law: An Australian Perspective” in AD Renteln and M Foblets, Multicultural Jurisprudence: Comparative Perspectives on Cultural Defense (Oxford: Hart Publishing, 2009). Jadurin v The Queen (1982) 44 ALR 424 at 427–428 contains a vivid description of a payback ceremony and its consequences for those involved. Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31 (1986) [500]. R v Minor (1992) 59 A Crim R 227 at 229 per Asche CJ. R v Minor (1992) 59 A Crim R 227 at 237 per Mildren J. This was aided by legislation that permitted the court in murder cases to receive any evidence on native law or custom in mitigation of penalty: Criminal Law Amendment Ordinance 1939 (NT). For a rich legal history of the practices of policing and prosecution of inter se homicide within Aboriginal communities, see H Douglas and M Finnane, Indigenous Crime and Settler Law: White Sovereignty After Empire (Basingstoke: Palgrave Macmillan, 2012).

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refused to sanction the incorporation of traditional punishment into sentencing orders that would involve a breach of the general law. Partial recognition of Aboriginal law was justified as being consistent with Art 27 of the ICCPR, which provides: “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with others of the group to enjoy their own culture, to profess and practice their own religion or to use their own language.”

In Australia, debate over recognition of customary law in sentencing decisions has tended to fixate negatively upon “payback by spearing” rather than positively on the restorative nature of Indigenous community-based punishment. Notwithstanding the media’s construction of payback as a form of private vengeance, the promotion of community involvement, victim restitution and offender restoration aligns it more closely to restorative rather than retributive justice: Chapter 1, [1.55]. 424 While accepting the inevitability of payback involving the infliction of serious injury within some Indigenous communities, the courts point out that payback is not retribution or vengeance and that the deliberate infliction of serious harm cannot be judicially condoned. 425 This pragmatic approach allows courts to factor payback into sentencing, while deftly avoiding judicial consideration of the question of its legality under domestic or international law. 426 This indeterminacy of the status of payback continues notwithstanding the recent High Court decision of Munda v Western Australia. 427 In this case, the defendant (an Aboriginal male) was convicted of the manslaughter of his partner (an Aboriginal woman), who had suffered in a long-term relationship characterised by serious domestic violence and alcohol abuse. In reviewing the adequacy of the sentence, the court reiterated the approach taken above. In reviewing the position of the offender, the High Court noted that he was anxious to submit to payback, a prospect which had been taken into account by the sentencing court, and affirmed by the WA Court of Appeal. The correctness of that approach to payback was however not pressed on appeal, so the High Court declined to rule on the matter: “In these circumstances, this case does not afford an occasion to express a concluded view on the question whether the prospect of such punishment is a 424

425 426

427

For a typical media depiction of payback, see The Independent (May 1994) where the front page banner “Bloody Justice” is pierced by a blood-splattered spear. On the importance of Indigenous involvement in sentencing, see N Löfgren, “Aboriginal Community Participation in Sentencing” (1997) 21 Criminal Law Journal 127. R v Jadurin (1982) 7 A Crim R 182 at 187 per St John, Toohey and Fisher JJ; R v Minor (1992) 59 A Crim R 227 at 240 per Mildren J; Re Anthony (2004) 142 A Crim R 440 at 358 per Martin CJ. It has been suggested, obiter, that payback may not constitute an assault: R v Minor (1992) 59 A Crim R 227. The Northern Territory Code provides that an assault is not illegal where it is authorised by the victim, and the person who commits the assault does not intend to kill or cause grievous bodily harm. According to Mildren J, a person who administers payback on behalf of the Aboriginal community does not intend to kill or cause grievous bodily harm. Neither would that person inflict grievous bodily harm. Mildren J pointed to authority which supported the view that mere spearing into the thigh muscle may not, in fact, cause any permanent injury to health so as to fall within the definition of “grievous bodily harm”. This aspect of the judgment in Minor represents a novel approach to offences against the person. Previously, severe forms of payback by spearing had been assumed to be unlawful even where the victim consents. In a Western Australian case, the judge refused to grant bail to an accused to allow him to undergo payback on the grounds that the spearing would be “unlawful”: “Judge Rejects Spear Justice” in The Western Australian, 4 October 1997, p 3. This hostile approach to payback has subsequently been followed in the Northern Territory in Re Anthony (2004) 142 A Crim R 440, casting doubt on Minor. In Anthony, bail was granted, but only on condition that the accused not attend the place where the traditional punishment was to be administered. Munda v Western Australia (2013) 249 CLR 600. [2.225]

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consideration relevant to the imposition of a proper sentence, given that the courts should not condone the commission of an offence or the pursuit of vendettas, which are an affront and a challenge to the due administration of justice. It is sufficient to say that the appellant did not suffer any injustice by reason of the circumstance that the prospect of payback was given only limited weight in his favour by the courts below.” 428 While the status of payback remains open, the High Court’s characterisation of the practice as an unlawful “vendetta” is inconsistent with how payback is understood within customary law in Aboriginal communities, and the long-standing approach taken to payback by sentencing courts in jurisdictions where it occurs. When the matter of payback in sentencing is fully argued before the High Court, it is hoped a more respectful and informed position may be taken. Indeed, Aboriginal justice advocate, Tom Calma, has called for more judicial education in relation to payback: “What really needs to occur in terms of bail and sentencing decisions is a thorough education of the judiciary and the wider public about the true nature of customary law. [He concluded that:] Culture and context are important aspects of mitigation. By ignoring payback, Indigenous offenders can be put in a situation of double jeopardy.” 429

Judicial recognition of payback does raise the question of whether Australian law is sanctioning—perhaps even facilitating—“cruel, inhuman or degrading treatment or punishment” which is prohibited by Art 7 of the ICCPR. This argument has not been raised before either domestic or international courts, but as the leading scholar of international law and current judge of the International Court of Justice, James Crawford, observed, nothing in the text of the ICCPR prevents Australian courts from taking traditional spearing into account in sentencing decisions: “The question, then, is whether the Covenant requires States Parties actively to suppress all treatment considered ‘cruel’ or ‘degrading’, even where the treatment occurs with the consent of the parties concerned, and as an aspect of the traditions and customs of the ethnic group within which it occurs, and no matter what other consequences such suppression, with its associated policing, would involve for the group in question. Quite apart from the question whether such punishment is ‘cruel’ or ‘degrading’, the answer must be that it does not. Nothing in the Covenant prevents the law enforcement authorities from adopting a policy of intervening in indigenous communities only upon complaint, in cases not involving threats of life or suppression of complaints.” 430

But Crawford’s approach sidesteps the issue of legality, hiding behind the prosecutorial discretion not to proceed in the absence of a complaint. From an international perspective, the toleration of payback by domestic law poses a significant challenge to the universality of human rights. As we have explored above, international law—while accepting some “margin of appreciation” in the application of human rights—is reluctant to dilute the universal quality of fundamental rights. This claim of universality is strongest in relation to rights that are not qualified, such as Art 7 of the ICCPR that prohibits torture, cruel, 428

430

Munda v Western Australia (2013) 249 CLR 600 at 622 per French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ. T Calma, “The Integration of Customary Law into the Australian Legal System” (2007) 25(1) Law in Context 74 at 82. See J Crawford, “International Law and the Recognition of Aboriginal Customary Law” in B Hocking (ed), International Law and Aboriginal Human Rights (Sydney: Law Book Company, 1988) p 63; S Blay, “The International Covenant on Civil and Political Rights and the Recognition of Customary Law Practices of Indigenous Tribes: the Case of Australian Aborigines” (1986) 19 Comparative and International Law Journal of Southern Africa 199 at 203–207; Australian Law Reform Commission, Aboriginal Customary Law—Recognition, Discussion Paper No 17 (1980) p 53.

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inhuman or degrading treatment or punishment. The ALRC has acknowledged in Aboriginal Customary Law—Recognition, that it is impossible to escape the culturally determined nature of fundamental concepts: “But by what standard are the notions of human rights to be measured? Obviously there is a wide gap in some areas between Western notions of human rights and those which apply in Aboriginal society. These issues pose questions of justice which have never been answered satisfactorily anywhere and which are probably unanswerable. There is a direct clash between the imperative of imposed law and indigenous custom, a clash between irreconcilable moral imperatives.” 431

As considered above, the clash requires the legal system—domestic and international—to choose between competing rights. After reviewing these issues, the ALRC concluded that the right to culture under Art 27 was “qualified” by Art 7: “Article 27 protects the right of a minority ‘to profess and practice’ its religion. It does not in terms protect cruel or inhumane punishments connected with it.” 432

On balance, the ALRC was satisfied that prohibiting cruel punishment would not have a significant detrimental effect on Aboriginal culture since there were other means of preserving Aboriginal culture, such as land rights and language. Payback involving spearing exposes the limits of equality and rights discourse, presenting challenges which the criminal justice system has only just begun to address. The ALRC’s solution is an example of the tendency of individual rights to trump collective rights. It also reveals the process by which laws and cultural practices of “others” can be constructed as “inhuman and degrading punishment”, denying legal recognition to practices that play a vital role in sustaining individual and group identities. 433 As we shall explore in Chapter 10, what is striking by comparison is the “unseen” legitimation of a wide array of lawful “homosocial violence” within Australian society in the form of religious or cultural practices (such as male circumcision), violent sports (such as boxing and rugby), and general larrikinism or “rough horseplay”. Mandatory sentencing: (in)equality before the law [2.230] Political debates about crime and punishment in Australia have degenerated into

“uncivil politics of law and order”. 434 Within these debates, the rhetoric of equality and victims’ rights, crudely and formalistically understood, can have a negative, often counterproductive, impact on the most disadvantaged within our community. This is clearly evident in relation to the continuing controversy surrounding the use of mandatory sentencing laws, 435 following the introduction of mandatory sentencing laws introduced in Western

431 432 433

434 435

Australian Law Reform Commission, Aboriginal Customary Law—Recognition, Discussion Paper No 17 (1980) p 52. Australian Law Reform Commission, Aboriginal Customary Law—Recognition, Discussion Paper No 17 (1980) p 53. See “Editorial: A Defence of Consent to Indigenous Customary Punishment” (2003) 27 Criminal Law Journal 229; S Bielefeld, “The Culture of Consent and Traditional Punishments under Customary Law” (2003) 7 Southern Cross University Law Review 142 at 148–149. R Hogg and D Brown, Rethinking Law and Order (Sydney: Pluto Press, 1998) Ch 1. For an overview of mandatory sentencing laws enacted across all Australian jurisdictions, see Law Council of Australia, Policy Discussion Paper on Mandatory Sentencing – Discussion Paper (Canberra: Law Council of Australia, 2014) Attachment A. [2.230]

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Australia and the Northern Territory in the mid-1990s. 436 (The Northern Territory provisions were repealed by the Sentencing Amendment Act (No 3) (NT) and the Juvenile Justice Amendment Act (No 2) 2001 (NT), following a change of government.) These laws were a response to a moral panic that the criminal justice system was not taking victims’ rights seriously, and that sentencing courts—by considering factors such as race and socio-economic deprivation—were passing inconsistent and excessively lenient sentences. These mandatory sentencing laws were also influenced by then President Bill Clinton’s penal policy of “three strikes and you’re out” introduced in the United States. Under these laws, the sentencing court was required to impose a minimum sentence of imprisonment in relation to designated offences, with escalating severity for repeat offending. For example, the Northern Territory law required imprisonment for 14 days for the first offence, 90 days for the second offence and one year for the third offence. 437 As Declan Roche has pointed out, notwithstanding political claims to the contrary, there is scant empirical evidence that these laws have had any significant deterrent effect. 438 While incapacitation limits the capacity of an individual to commit crime, it violates the principle that a person should be punished for what they have done, not for what they may do in the future: see Chapter 1, [1.85]. Leading criminologist, Don Weatherburn, characterised these laws as examples of “irrational crime control policies … uninformed by research evidence, not subjected to any evaluation, and often designed (despite appearances) to allay public concern about crime rather than to do something about it”. 439 The costs of mandatory imprisonment are high in social, as well as financial, terms. The social cost for the Indigenous community was vividly demonstrated by the suicide of a young Aboriginal male while serving a prison sentence for minor theft. Rather than tackle discrimination within the sentencing process, these laws perpetuate disadvantage within the least powerful communities in society. As Roche concludes, mandatory sentencing is morally questionable, particularly as it routinely disadvantages the poor and marginalised. 440 The laws do not apply to “white collar crimes”, but rather are restricted to a narrow range of property crimes that are most likely to be committed by individuals from disadvantaged communities. Mandatory sentencing aims to achieve a consistency of treatment between offenders by removing or fettering judicial discretion during sentencing. Judges have expressed concern that these laws simply require heavier sentences which are not justified on the facts. As Mildren J observed in Terry Ernest Curnow v Leonard David Pryce: “Prescribed minimum mandatory sentencing provisions are the very antithesis of just sentences. If a court thinks that a proper just sentence is the prescribed minimum or more, the minimum prescribed penalty is unnecessary. It therefore follows that the sole purpose of a prescribed minimum mandatory sentencing regime is to require sentencers to impose heavier sentences than would be proper according to the justice of the case.” 441

436

438 439 440 441

Criminal Code (WA), s 401 (adults and juveniles); Sentencing Act 1995 (NT), s 78A (adults); Juvenile Justice Act 1996 (NT), s 53(1) (juveniles). See H Bayes, “Punishment is Blind: Mandatory Sentencing of Children in Western Australia and the Northern Territory” (1999) 22 University of New South Wales Law Journal 286; G Zdenkowski, “Mandatory Imprisonment of Property Offenders in the Northern Territory” (1999) 22 University of New South Wales Law Journal 302. D Roche, “Mandatory Sentencing”, Australian Institute of Criminology—Trends and Issues, No 138 (1999). D Weatherburn, Law and Order in Australia (Sydney: Federation Press, 2004) p 29. D Weatherburn, Law and Order in Australia (Sydney: Federation Press, 2004) p 6. Terry Ernest Curnow v Leonard David Pryce [1999] NTSC 116 at [12].

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Mandatory sentencing flatly contradicts the recommendation of the Royal Commission into Aboriginal Deaths in Custody that every jurisdiction should enact legislation “to enforce the principle that imprisonment should be utilised only as a sanction of last resort”. 442 The United Nations Human Rights Committee has also observed that the mandatory sentencing laws in Australia, which were viewed as imposing disproportionate punishment and being inconsistent with strategies to reduce the over-representation of Indigenous people in the criminal justice system, raised serious issues of compliance with various Articles of the ICCPR. 443

Aboriginal deaths in custody [2.235] Although almost three decades have passed since the Royal Commission into Aboriginal Deaths in Custody, the levels of Aboriginal deaths in custody remain disproportionately high. A recent study examining long-term trends between 1980-2013 records 2,463 deaths in custody, of which 470 were Indigenous people and 1,993 were of non-Indigenous background. 444 Although there has been a steady decline in the rates of deaths in custody, Indigenous people continue to make up a significant portion of the general prison population: in 2012–13, 8,259 detainees in prison custody were identified as Indigenous (27% of the overall prison population). There was a small increase in prisoner mortality rates between 2011–13, which was also reflected in the number of Indigenous people who died in custody. In 2012–13, for example, nine of the 53 deaths were Indigenous prisoners, equating to 17% of all prison deaths. Using prison population data, the rates of death in prison custody across Australia in 2012–13 were 0.11 per 100 Indigenous prisoners and 0.20 per 100 non-Indigenous prisoners. 445 Recent research on over-representation now reveals a more complex pattern, suggesting differences between sentencing in the higher courts, where Aboriginal offenders received the same or more lenient sentences than non-Aboriginal offenders for equivalent offending, and lower courts where more severe penalties applied to Aboriginal offenders. The authors of the study suggest that this difference may stem from the time and resource constraints that lower courts face when sentencing offenders, which militates against the leniency found in higher courts. 446 The increased range of penalties, including imprisonment, available in lower courts may explain why Aboriginal persons constitute such a large proportion of the prison population, although in 2011 they were estimated to constitute only 3% of the total Australian population. 447

“Tough on crime” laws, like mandatory sentencing and the federal reforms that deny the relevance of cultural factors to sentencing, may be resisted in a range of informal and formal ways. Concern about the excessive punitiveness of these policies may influence decisions made by the police and prosecutors to caution or divert the offender from the criminal justice 442 443 444 445 446

447

See National Report—Overview and Recommendations (Canberra: Australian Government Publishing Service, 1991) Recommendation 92. Concluding Remarks of the Human Rights Committee—Australia, CCPR/CO/69 AUS, [17] (28 July 2000). A Baker and T Cussen, Deaths in Custody in Australia: National Deaths in Custody Program 2011–12 and 2012–13, Monitoring Report No 26 (Canberra: Australian Institute of Criminology, 2015) p 37. A Baker and T Cussen, Deaths in Custody in Australia: National Deaths in Custody Program 2011–12 and 2012–13, Monitoring Report No 26 (Canberra: Australian Institute of Criminology, 2015) p 9. S Jeffries and C Bond, “Indigenous Disparity in Lower Court Imprisonment Decisions: A Study of Two Australian Jurisdictions, 1998 to 2008” Australian Institute of Criminology Trends & Issues in Crime and Criminal Justice No. 447 (Canberra: Australian Institute of Criminology, 2012). Australian Bureau of Statistics, Estimates of Aboriginal and Torres Strait Islander Australians, June 2011. http://www.abs.gov.au/ausstats/[email protected]/mf/3238.0.55.001 (cited 1 June 2016). [2.235]

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process. 448 Mandatory sentencing may also have an impact on the jury, encouraging “not guilty” verdicts as a nullification of these harsh laws (discussed at [2.190]). Judges may also interpret the terms of the legislation, contrary to its obvious intent, in a manner most favourable to the accused. The power of Parliament to abrogate sentencing raises questions of constitutional significance relating to the doctrine of separation of powers. 449 The case of mandatory sentencing reveals the importance of ensuring that the principle of equality before the law is not politically and morally corrupted by the “uncivil politics of law and order”. 450 Criminal justice reform requires a complex and contextual understanding of equality—a discourse of feminist and Indigenous rights—that both acknowledges and addresses the disadvantage faced by offenders and victims within marginalised communities.

The Principle of Privacy [2.240] Privacy is a concept that influences and constrains the scope of the criminal law in

many ways. Since the right to privacy protects citizens from arbitrary intrusion into their homes or private lives, it imposes limits on both procedural and substantive laws. The legal conception of a “right to privacy” surprisingly is a relatively recent innovation, emerging first in American legal scholarship during the late 19th century. 451 This period of legal development witnessed a significant shift in focus from the protection of physical interests (such as property) to less tangible, psychological interests (such as privacy). 452 While the common law has always attached considered value to the inviolability of property, 453 invasion of privacy traditionally does not constitute a distinct tort. 454 The High Court decision in Victoria Park Racing v Taylor is commonly cited for this proposition. 455 However, the breadth of this proposition may not be supported by this decision, as noted by the High Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd, where several members of the Court left open the question of the future development of a tort of privacy. As Callinan J held: “Principles for an Australian tort of privacy need to be worked out on a case by case basis in a distinctly Australian context”. 456 In the absence of an authoritative position in the High Court, State courts seem divided on this question. The ALRC 448

D Roche, “Mandatory Sentencing”, Australian Institute of Criminology Trends and Issues in Crime and Criminal Justice No 138 (Canberra: Australian Institute of Criminology, 1999) pp 4–5.

449

455 456

M Flynn, “Fixing a Sentence: Are there any Constitutional Limits?” (1999) 22 University of New South Wales Law Journal 280. R Hogg, “Mandatory Sentencing Laws and the Symbolic Politics of Law and Order” (1999) 22 University of New South Wales Law Journal 262. The legal conception of privacy is traced to a famous article in the Harvard Law Review in 1890 by Samuel Warren and Louis Brandeis. Drawing analogies from a range of civil law remedies, the authors rationalised the right to privacy as “the right to be let alone”: S Warren and L Brandeis, “The Right to Privacy” (1890) 4(5) Harvard Law Review 193 at 193. For a review of the significance of this seminal article on US law, see K Gormley, “One Hundred Years of Privacy” (1992) Wisconsin Law Review 1335. P Alldridge, Relocating Criminal Law (Aldershot: Ashgate, 2000) pp 107–108. The importance of property is reflected in the common law’s historical antipathy toward general warrants, and the strict construction of warrants authorising the search, seizure or surveillance of property: see Entick v Carrington (1765) 95 ER 807. While affirming the inviolability of an Englishman’s property with legal authority, the court acknowledged that the power to issue search warrants for stolen goods had crept into the common law by stealth! In relation to listening devices warrants, the High Court has held interference with the rights of ownership are justified only where it has been authorised or excused by law: Coco v The Queen (1994) 179 CLR 427 at 435–436. English law has recently recognised a tort of “misuse of private information”: see Vidal-Hall & Ors v Google Inc [2014] EWHC 13 (QB). Upheld in Google Inc v Vidal-Hall & Ors [2015] EWCA Civ 311. Victoria Park Racing v Taylor (1937) 58 CLR 479 (especially at 496 per Latham CJ). Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 328.

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450 451

452 453

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recommended the creation of a cause of action for the serious invasion of privacy under federal legislation which would contain a non-exhaustive list of the types of invasion that would fall within its scope. 457 Privacy: A shield against arbitrary state intrusion [2.245] In the modern era, privacy is a fundamental human right protected by Art 17 of the

ICCPR: (1) No one shall be subjected to arbitrary or unlawful interference with his [or her] privacy, family, home or correspondence, nor to unlawful attacks on his [or her] honour and reputation. (2) Everyone has the right to the protection of the law against such interference or attacks.

Without a federal Bill of Rights, privacy rights are protected indirectly through a range of piecemeal provisions. The closest Australian provision implementing Art 17(1) of the ICCPR is s 12 of the Human Rights Act 2004 (ACT) and the equivalent provision in the Charter of Human Rights and Responsibilities Act 2006 (Vic), s 13: see [2.150]ff]. In the field of criminal process, the right to privacy has the potential to operate as a shield against intrusive methods of investigation. Since privacy is not absolute, interference through the use of electronic surveillance may be legitimate where it is reasonably necessary for the prevention of disorder or crime. 458 Provided that the domestic law imposes appropriate legal and/or administrative safeguards against abuses, intrusive investigative activity will not constitute an arbitrary interference with privacy. With increasingly sophisticated and inexpensive surveillance technologies, the right to privacy provides a normative principle for imposing limits and ensuring accountability for intrusive investigative methods in the public and private sector. 459 With advances in forensic sciences, such as DNA testing, the threats to privacy emerge at the molecular level; not surprisingly, the law has been subject to considerable reform to keep pace with these technological advances. 460 457

458 459

460

Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report No 108 (2008) Recommendation 74. In Grosse v Purvis [2003] QDC 151 the Queensland Division Court recognised a tort of privacy in a case of stalking and granting the victim damages (including exemplary damages) of $178,000: cf, the Supreme Court of Victoria in Giller v Procopets [2004] VSC 113 where the existence of the tort was doubted at [181]. Klass v Federal Republic of Germany (1978) 2 EHRR 214 (ECHR Series A, No 28, 1978); Kruslin v France (1990) 12 EHRR 547 (ECHR, Series A, No 176B, 1990). The extent to which the statutory framework for electronic surveillance in Australia satisfies these international obligations is considered in S Bronitt and J Stellios, “Telecommunications Interception in Australia: Recent Trends and Regulatory Prospects” (2005) 29 Telecommunications Policy 875 and S Bronitt and J Stellios “Regulating Telecommunications Interception and Access in the Twenty-first Century: Technological Evolution or Legal Revolution?” (2006) 24(4) Prometheus 413. Threats to privacy also stem from “private policing” and its extensive use of surveillance cameras (CCTV) in workplaces and shopping malls. On the legal issues surrounding the use of forensic evidence and the history on the proposals leading to the National Criminal Investigation DNA Database, see Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Model Forensic Procedures Bill; DNA Database Provisions Report (1999) and N Waters, “Controlling the DNA Database” (2001) 8 Privacy Law and Policy Reporter 74. The legislation was supported by a national agency, established in 2000, called CrimTrac that enabled data sharing between jurisdictions. In 2016, these functions were assumed by the Australian Criminal Intelligence Commission: see http://www.acic.gov.au (cited 5 September 2016). See Crimes Act 1914 (Cth), Pt 1D; Crimes (Forensic Procedures) Act 2000 (ACT); Crimes (Forensic Procedures) Act 2000 (NSW); Police Administration Act 1978 (NT), Pt VII Div 7; Criminal Law (Forensic Procedures) Act 2007 (SA); Forensic Procedures Act 2000 (Tas); Crimes Act 1958 (Vic), Pt 3, s 464ff; Police Powers And Responsibilities Act 2000 (Qld), Ch 17; Criminal Investigation (Identifying People) Regulations 2002 (WA). The pros and cons of DNA evidence are explored in M Smith and M Mann, “Recent Developments in DNA Evidence” (2015) Trends & Issues in Crime and Criminal Justice No 506. See generally, M Smith, DNA Evidence in the Australian Legal System (Sydney: LexisNexis Butterworths, 2015). [2.245]

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Privacy plays an important role in limiting the exercise of State power. As the High Court observed when considering the judicial discretion to exclude evidence obtained by improper or illegal means, “it is not fair play that is called into question but rather society’s right to insist that those who enforce the law themselves respect it, so that a citizen’s precious right to immunity from arbitrary and unlawful intrusion into the daily affairs of private life may remain unimpaired”. 461 In this context, respect for legality (the rule of law) is not merely an end in itself, but also a means of protecting privacy: see further, Chapter 1, [1.20], “Defining crime and the rule of law”. Privacy also has an impact on the substantive law. As we shall explore in subsequent chapters, privacy has influenced debates about the criminalisation of a wide range of conduct which previously fell outside the scope of the criminal law, such as cybercrime, stalking and domestic violence. In terms of decriminalisation, the principle has exerted the most influence in the “liberalisation” of homosexual and prostitution offences. The principle of privacy, however, operates spasmodically. In the sexual field, it is more likely to confer protection on conventional rather than transgressive forms of sexuality. This issue is further explored in Chapter 11, [11.15] “Reconstructing sexual crime: sexual violence or violent sex”. In other areas, privacy has had negligible impact. As Peter Alldridge notes: “Privacy does not seem to have any substantial contemporary relevance to the drug debate”. 462 Australia’s accession to the Optional Protocol to the ICCPR, which created the right of individual petition, provided a new legal avenue for challenging domestic laws which violate the right to privacy: see [2.150]. In Toonen v Australia, the United Nations Human Rights Committee ruled that criminalisation of sexual conduct between consenting adult males under the Criminal Code (Tas) violated the right to privacy under the ICCPR. 463 With no immediate prospect of State legislation repealing the offending sections, the Federal Government, as a party to the ICCPR, was obliged to provide the applicant with the “effective remedy” required by the Human Rights Committee. The resulting legislation, the Human Rights (Sexual Conduct) Act 1994 (Cth), created a right to sexual privacy under federal law: Section 4 Arbitrary interferences with privacy (1) Sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights. (2) For the purposes of this section, an adult is a person who is 18 years old or more.

Although protecting only one aspect of the right to privacy under Art 17 of the ICCPR—the right to sexual privacy—it is generally accepted that the Act is a valid exercise of the Commonwealth’s legislative power under the external affairs provision in the Constitution. 464 The scope of protection for sexual privacy offered by s 4, consistent with the Explanatory Memorandum, has been interpreted narrowly to exclude non-sexual activity that has a sexual dimension or related purpose, such as the production or distribution of pornographic material: see Cannavan v Lettvale Pty Ltd. 465 The impact of this provision on domestic criminal laws is further considered in Chapter 11, [11.30]ff.

461 462 463 464 465

Bunning v Cross (1978) 141 CLR 54 at 75 per Stephen and Aickin JJ. P Alldridge, Relocating Criminal Law (Aldershot: Ashgate, 2000) p 116. Toonen v Australia (1994) 1 PLPR 50 at [8.2]. Report by the Senate Legal and Constitutional Legislation Committee, Human Rights (Sexual Conduct) Bill 1994 (December 1994) at [1.72]. Cannavan v Lettvale Pty Ltd [2003] QCA 528.

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The public/private dichotomy: malleable and discriminatory [2.250] The scope of the protection accorded by Art 17 of the ICCPR, reflected in Toonen

and the resulting federal Act, rests upon the public/private dichotomy. The idea that there exist spheres of “private” activity that cannot legitimately be subject to State intervention—which underlies the “harm principle”—has been influential in the liberalisation of laws governing homosexuality and prostitution: see Chapter 1, [1.200], “Preventing harm”. Like equality, privacy has been the subject of extensive feminist critique. Feminists have noted that the legal division between the public and the private has played, and continues to play, a significant role in concealing and legitimating the subordination of certain groups in society. The private sphere of the “family” remains the site for female subordination. 466 By placing “domestic” violence and “marital” rape firmly within the private sphere, these crimes are not viewed as proper matters for State regulation. Although the spousal immunity for rape has been removed from the substantive law, in practice the authorities are reluctant to interfere with violence which occurs within the family. The public sphere is claimed to be constructed around male interests. Theorists exploring gay and lesbian rights also share similar concerns. Wayne Morgan argues that juridical discourses of privacy, including those employed in Toonen, conceal and contribute to the subordination of homosexuality by constructing this type of sexuality as powerless, dangerous and deviant. 467 By contrast, Morgan advances equality as the preferable basis for protecting and extending gay and lesbian rights. While it is true that privacy has traditionally done little to validate or celebrate different sexualities, our discussion of equality in the preceding section reads as a catalogue of failure on the part of the courts and legislatures to provide effective remedies for addressing the structural causes of disadvantage affecting marginalised groups in society. It is not a question of abandoning privacy in favour of equality, but rather engaging in the normative reconstruction of both concepts. In relation to privacy, it has been suggested that the right to respect for private life could be reconceptualised. The boundaries between the spheres of public and private are neither immutable nor universal. As Margaret Thornton observes, “the public/private dichotomy of liberal thought, far from constituting two analytically discrete realms, is a malleable creation of the public realm”. 468 Working within this traditional framework, it is possible to reconstruct privacy in ways that provide individuals with greater freedom to express and fulfil their emotional needs. Privacy may be viewed not merely as a shield, but as a positive basis for the recognition of personal needs and aspirations. The European Commission has observed that the right to privacy protected under the European Convention on Human Rights includes, “to a certain extent, the right to establish and to develop relationships with other human beings, especially in the emotional field for the development and fulfilment of one’s own personality”. 469 This approach expands the negative conception of privacy as freedom from unwarranted State intrusion into one’s private life, to include the positive right to establish, develop and fulfil one’s own emotional needs. 470 This glimmer of “privacy as autonomy” 471 466 467

468

469 470

See W Morgan, “Identifying Evil for What it is: Tasmania, Sexual Perversity and the United Nations” (1994) 19 Melbourne University Law Review 740. For an excellent review of the “critique of rights” debate in this context, see J Morgan, “Equality Rights in the Australian Context: A Feminist Assessment” in P Alston (ed), Towards an Australian Bill of Rights (Canberra: CIPL/HREOC, 1994) p 123. M Thornton, “The Public/Private Dichotomy: Gendered and Discriminatory” (1991) 18 Journal of Law and Society 448 at 459. See, generally, M Thornton (ed), Public and Private: Feminist Legal Debates (Melbourne: Oxford University Press, 1995). App No 6825/74, 5 Eur Com HR Dec & Rep 86 at 87. This broader conception of privacy is reflected in Dudgeon v United Kingdom 45 Eur Ct HR (ser A) (1981); 4 Eur HR Rep 149 (1982). P Alldridge, Relocating Criminal Law (Aldershot: Ashgate, 2000) p 114. [2.250]

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underlies legal measures recognising rights of access to personal information, such as medical and counselling records, as well as the right to demand removal of sensitive personal information from the internet. 472 Indeed, the ALRC in its three-volume report on privacy law in Australia recognised at the outset the elusive nature of privacy, and the importance of escaping the limitation of a traditional liberal definition of privacy as freedom from interference by others, to include the protection of autonomy and promotion of human dignity. 473 The growing interest in the right to human dignity, as a foundation legal principle, capable of reframing areas of the substantive criminal law and defences is further explored in Chapter 11, [11.60]. By reconstructing privacy in this way, the scope of private sexual conduct can be redefined to include some types of public behaviour. A redefined concept of privacy could offer protection against laws that unreasonably interfere with sexual activity in public spaces, such as public displays of homosexuality. Under the present law, a wide range of homosexual conduct is indirectly criminalised through public indecency and offensive conduct laws. This reconstruction of privacy would have considerable practical significance since empirical research in Australia indicates that, even before the decriminalisation of homosexual activity “in private”, the bulk of prosecutions for homosexual activity concerned public acts of some kind. 474 Although privacy has the potential to protect many facets of personhood, the present sphere of protection continues to be drawn along traditional liberal and therefore negative lines. As we shall explore in Chapter 11 at [11.215]ff, rather than respect and celebrate sexual difference, privacy jurisprudence simply maintains an oppressive legal closet around conduct that is considered to be sexually deviant or transgressive.

CONCLUSION: THE FUTURE OF GENERAL PRINCIPLES [2.255] General principles embody a set of political, moral and ethical values that are

considered fundamental to the operation of the criminal law and criminal process. In this chapter, we have examined the contested meaning and scope of a selection of principles relating to territoriality, fairness, equality before the law and privacy. Rather than exhibiting universal and immutable qualities, these principles are historically contingent, evolving to accommodate changing social, political and moral expectations about the proper function and limits of the criminal law. The legitimacy of the principles discussed in this chapter increasingly derives from the moral and political authority of international law; in particular, those treaties which protect fundamental human rights. 475 Globalisation means that many basic concepts of the criminal law are being challenged and reformed by reference to the principles of international law. We predict that international legal sources will exert an increasing influence on the future 471

472

473

474 475

174

It has been suggested that the State should assume a greater role in promoting, rather than simply protecting, the right to respect for private life under Art 8: AM Connelly, “Problems of Interpretation of Article 8 of the European Convention on Human Rights” (1986) 35 International and Comparative Law Quarterly 567 at 574–575. The Court of Justice of the European Union has further extended data privacy – recognised under the EU Data Protection Directive 95/46 – to include a “right to be forgotten” in the context of ongoing online accessibility of personal information: Google Spain SL Google Inc v Agencia Española de Protección de Datos, Mario Costeja González (Court of Justice of the European Union, C–131/12, 13 May 2014). As the ALRC observed, the European conception of privacy tends to emphasise the importance of human dignity as a core aspect of privacy compared with Anglo-American privacy law which focuses on liberty values and freedom from state interference: Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report No 108 (2008) Vol 1, [1.43]ff. New South Wales Bureau of Crime Statistics and Research, Statistical Report (1978) Series 2, No 9, p 38. Gaskin v United Kingdom (1990) 12 EHRR 36 held that the refusal to allow a patient access to her medical records breached the right to privacy protected by the European Convention on Human Rights. Rights to [2.255]

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development of the substantive criminal law: see Chapter 15, “International and transnational crimes”. The growing internationalisation of criminal jurisdiction through extraterritorial offences is a further example of this trend. International law not only provides blueprints for new criminal laws and powers, but it also imposes some restraint on the expansion of state power through international human rights treaties. Treaties such as the ICCPR set out the rights and values which domestic criminal law must respect. The advent of human rights legislation in the Australian Capital Territory and Victoria, discussed at [2.150], further underscores the practical as well as academic relevance of international and comparative human rights jurisprudence to understanding and applying criminal law—both substantive and procedural—in Australia. This chapter has also explored the contribution of critical scholarship to the understanding and reconstruction of general principles. While conventional legal scholars, practitioners, judges and liberal reformers view their task as forcing the law to live up to its rhetoric, critical scholars have suggested that the dichotomy between the rhetoric and reality of criminal justice reveals something fundamental, indeed constitutive, about the law and legal ideology. The “gap” between rhetoric and reality reflects the profound normative disagreement within legal doctrine—a conflict that is often concealed or minimised within principled accounts of criminal law. Critical and feminist scholars have also exposed the limits of general principles as a means of remedying the entrenched political, social and economic disadvantage of marginalised groups. In this chapter, we hope to have demonstrated that the adoption of critical perspectives need not lead to mindless “trashing” or “deconstruction” of the criminal law. While critical scholars tend to remain sceptical of the universalist claims inherent within “general principles”, we believe that normative perspectives—whether packaged as theories, models, principles or values—are essential for the future vitality of the criminal law. By revealing the contingent and contradictory nature of the principles relating to territoriality, fairness, equality and privacy, we have opened spaces for re-imagining these fundamental concepts in radically different ways. This process—which Nicola Lacey calls “normative reconstruction”—is not confined to general principles. In Chapter 3, we review the principles governing criminal responsibility adopting a similar perspective. By drawing insights from psychology and other disciplines, we will critically examine the fundamental principles governing the fault and physical elements of offences, and will provide alternative normative frameworks for understanding and reconstructing notions of responsibility within the criminal law.

privacy may conflict with competing rights such as the right to a fair trial. The legal arguments surrounding defence access to the counselling records of rape victims are explored in S Bronitt and B McSherry, “The Use and Abuse of Counseling Records in Sexual Assault Trials: Reconstructing the ‘Rape Shield’” (1997) 8(2) Criminal Law Forum 289. [2.255]

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Principles of Criminal Responsibility I find the doctors and the sages Have differ’d in all climes and ages, And two in fifty scarce agree On what is pure morality. 1 [3.05]

INTRODUCTION ........................................................................................................................ 177

[3.10] [3.10] [3.15] [3.30]

WHO MAY COMMIT CRIMES? ................................................................................................... 179 Individuals with Mental Impairment ........................................................................................... 179 Children ..................................................................................................................................... 179 Corporations .............................................................................................................................. 185

[3.70] [3.75] [3.105] [3.110] [3.170] [3.235] [3.240] [3.270] [3.275] [3.315] [3.360] [3.365] [3.370] [3.375]

THE ELEMENTS OF A CRIME ....................................................................................................... Physical Elements ....................................................................................................................... Voluntariness .............................................................................................................................. Causation .................................................................................................................................. Fault Elements ........................................................................................................................... STRICT LIABILITY AND ABSOLUTE LIABILITY OFFENCES .............................................................. The Presumption of Subjective Fault at Common Law ................................................................ Strict Liability Versus Absolute Liability ........................................................................................ Mistake of Fact and Strict Liability Offences ................................................................................ Mistake of Law ........................................................................................................................... CONCURRENCE OF PHYSICAL AND FAULT ELEMENTS ............................................................... Fault Element Imposed Upon a Series of Acts ............................................................................. Fault Element Imposed Upon a Continuing Act .......................................................................... CONCLUSION ...........................................................................................................................

194 194 196 197 206 224 224 227 228 235 242 242 243 245

INTRODUCTION [3.05] The principles that underlie the criminal law are dependent upon the idea of a person

as a rational being, capable of making choices between right and wrong, and able to control conscious actions. 2 The idea that children and those with mental impairment lack the ability to reason and therefore should be excused from responsibility for criminal acts has been 1 2

Thomas Moore, “Morality” in The Poetical Works of Thomas Moore (London: Longman, Green, Longman and Roberts, 1860) p 293, l 15–18. Peter Alldridge analyses this concept of “personhood” in Relocating Criminal Law (Aldershot: Ashgate, 2000) Ch 3.

[3.05]

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pervasive throughout the history of the criminal law. For example, in the 18th century, Sir Matthew Hale considered that “infants” under the age of 14 were incapable of discerning between good and evil, and that the lack of understanding in the insane precluded them from criminal sanction. 3 The criminal law continues to excuse children and those with mental impairment from criminal responsibility and this is briefly explained below. The attribution of criminal responsibility has not, however, been confined to human persons. For example, at times, the law has attributed criminal responsibility to animals. 4 One of the developing areas of criminal law is the attribution of criminal responsibility to corporations, and the question of whether or not corporations can commit crimes is now the subject of a growing field of literature. It was once claimed that “the punishment of corporations is of small relevance to the purposes of the criminal law”. 5 This no longer holds—the inquiry into corporations and criminal responsibility has increased in tandem with the growth in sociological analyses of corporate crime and increasing social concern with the serious forms of harms that result from corporate activities. As well as developing general principles relating to who may commit a crime, the principles governing criminal responsibility have been concerned with ensuring that only a person who is considered “blameworthy” should be convicted of a crime. There has thus been a division made between the physical and fault elements of serious offences. This is expressed in the Latin maxim, actus non facit reum, nisi mens sit rea, which may be loosely translated as “an act does not make a person guilty of a crime unless that person’s mind be also guilty”. 6 The maxim appears to have originated with Sir Edward Coke writing in the 17th century. 7 A variety of terms have been used to describe these physical and fault elements, the most common being those stemming from the Latin maxim, namely actus reus and mens rea. The use of these Latin terms persists in common law States despite constant criticism. In R v Miller, Lord Diplock stated: “[I]t would … be conducive to clarity of analysis of the ingredients of a crime that is created by statute … if we were to avoid bad Latin and instead to think and speak … about the conduct of the accused and his [or her] state of mind at the time of the conduct, instead of speaking of actus reus and mens rea.” 8

The Code jurisdictions do not refer to mens rea or actus reus and do not use any synonyms for these terms. Physical and fault elements are determined by the nature and definition of the crime under consideration. For example, in Widgee Shire Council v Bonney, Griffith CJ stated in relation to the Criminal Code (Qld): “[I]t 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.” 9

The Model Criminal Code Officers Committee (MCCOC) avoids using the terms mens rea and actus reus and simply uses the generic terms “physical” and “fault elements”, an approach which has been applied in the Criminal Code (Cth), Pt 2.2. Because of the criticism of these Latin terms and their lack of use in the Code jurisdictions, we will follow the MCCOC’s lead and simply refer to physical and fault elements throughout this book. 3 4 5 6 7 8 9

Sir Matthew Hale, The History of the Pleas of the Crown (London: Professional Books Ltd, 1971) (original publication 1736) Chs III and IV, pp 16–37. EP Evans, The Criminal Prosecution and Capital Punishment of Animals (London: Faber and Faber, 1987). G Williams, Criminal Law: The General Part (2nd ed, London: Stevens and Sons, 1961) p 865. Haughton v Smith [1975] AC 476 at 491–492 per Lord Hailsham. Sir Edward Coke, Institutes of the Laws of England, Part 3 (London: Lee and Pakemam, 1644) 3 Inst 6. R v Miller [1983] 2 AC 161 at 174. Widgee Shire Council v Bonney (1907) 4 CLR 977 at 981.

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It should, however, be noted that the distinction between physical and fault elements itself has also been criticised on the basis that it lacks clarity, and there is often an overlap between the two elements. This becomes particularly apparent in the analysis of automatism, which is explored in Chapter 4 (see [4.85]–[4.150]). In addition, a large range of statutory crimes can be classified as ones of strict or absolute liability: see [3.235]. These offences enable a person (or corporation) to be convicted despite having acted without intention, recklessness or negligence. At the other end of the scale, individuals can be punished for certain conduct that is preliminary to a substantive offence being carried out. The intention to commit a crime becomes the principal ingredient of the offences of attempts, conspiracy and incitement. These are considered further in Chapter 8 (see respectively [8.15]ff “Attempts”; [8.85]ff “Conspiracy”; and [8.175]ff “Incitement”). In this chapter, we will first consider criminal responsibility in terms of who may commit a crime, before turning toward an exploration of the traditional division between physical and fault elements and the rise of strict and absolute liability offences.

WHO MAY COMMIT CRIMES? Individuals with Mental Impairment [3.10] There is a presumption in criminal law that individuals do not suffer from mental

impairment. 10 In general, this presumption may be displaced by the defence proving on the balance of probabilities that the accused was suffering from mental impairment at the time of the commission of the crime. Such mental impairment must have affected the accused’s ability to know the nature and quality of the conduct, or that the conduct was wrong or, in some jurisdictions, affected the accused’s capacity to control his or her conduct. The law views mental illness as affecting a person’s ability to reason and, therefore, his or her criminal responsibility. If a person is found not guilty because of mental impairment, he or she is generally detained in a psychiatric institution. The defence of mental impairment will be dealt with in more detail in Chapter 4 (see [4.10]ff “Mental Impairment”).

Children [3.15] Like those with some form of mental impairment, children have traditionally been

viewed as lacking the ability to reason; for example, the ancient Greek philosopher Aristotle associated children with animals because of their lack of reason and rational desire. 11 In the criminal law, children under a certain age have been exempted from criminal responsibility because of their presumed incapacity to understand the consequences of their acts and because they have not fully developed an appreciation of the difference between right and wrong. 12 Having a legally prescribed minimum age of criminal responsibility is occasionally questioned, particularly when a serious crime is committed by a child. The murder of two-year-old James Bulger in Liverpool, England, by Robert Thompson and Jon Venables, both of whom were aged 10 at the time, gave rise to much public concern and outrage. 13 In R 10

11 12 13

Criminal Code (Cth), s 7.3(3); Criminal Code (ACT), s 28(4); Criminal Code (NT), s 43D(1); Criminal Code (Qld), s 26; Criminal Law Consolidation Act 1935 (SA), s 269D; Criminal Code (Tas), s 15; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s 21(1); Criminal Code (WA), s 26. Aristotle, The Nichomachean Ethics, translated by T Irwin (Indianapolis: Hackett Publishing Co, 1985) i 9 1100a1. C Bryan-Hancock and S Casey, “Young People and the Justice System: Consideration of Maturity in Criminal Responsibility” (2011) 18(1) Psychiatry, Psychology and Law 69. The trial was held in the Preston Crown Court before Morland J in November 1993. Alan Norrie has analysed the responses in the context of law’s hegemony over such events: “Legal and Moral Judgment in the ’General’ [3.15]

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v Secretary of State for the Home Department; Ex parte Venables; R v Secretary of State for the Home Department; Ex parte Thompson 14 Lord Hope of Craighead pointed out that had the two boys been born a few months later, they could not have been held responsible for the crime. 15 The accused subsequently complained to the European Court of Human Rights that they had been denied a fair trial. 16 There was evidence that the accused had found the trial distressing and frightening and had not been able to concentrate during it. The majority of the court, 16 to one, held that there had been a violation of the right to a fair trial under Art 6 of the European Convention on Human Rights. This was on the basis that, given their immaturity and emotional state and the tense court room and public scrutiny, they would not have been capable of consulting with their lawyers and giving them information for the purposes of their defence. The main rationale behind treating children as not criminally responsible is that they are viewed as somehow morally different to adults. This has been questioned by social science researchers who argue that children and adolescents’ moral reasoning in the sense of knowing the difference between right and wrong may be very similar to that of adults. 17 The main difference between children and adolescents, as compared to adults, is that children differ in relation to judgment and self-control. Stephen Morse contends that, in relation to adolescents, children: • “have a stronger preference for risk and novelty; • subjectively assess the potentially negative consequences of risky conduct less unfavourably; • tend to be impulsive and more concerned with short-term rather than long-term consequences; • subjectively experience and assess the passage of time and time periods as longer; and • are more susceptible to peer pressure.” 18 Morse argues that differential treatment of children because of these findings is a normative judgment that only society can make. The immaturity of adolescent behaviour may be related to recent findings that the brain does not mature until around age 20. 19

14 15

16 17

18 19

Part” in P Rush, S McVeigh and A Young (eds), Criminal Legal Doctrine (Aldershot: Ashgate, 1997) pp 4–8. For an outline of the facts of the case and references to newspaper reports at the time, see JN Turner, “The James Bulger Case: A Challenge to Juvenile Justice Theories” (1994) 68(8) Law Institute Journal 734. See, generally, F Gale, N Naffine and J Wundersitz (eds), Juvenile Justice: Debating the Issues (St Leonards: Allen and Unwin, 1993); A Borowski and I O’Connor (eds), Juvenile Crime, Justice and Corrections (South Melbourne: Addison Wesley Longman, 1997). [1997] 3 WLR 23. This is because they would then have been under the age of 10 years. Both Thompson and Venables were 10 years and six months old at the time of their offence: R v Secretary of State for the Home Department; Ex parte Venables; R v Secretary of State for the Home Department; Ex parte Thompson [1997] 3 WLR 23 at 76. T v United Kingdom; V v United Kingdom (1999) IX ECHR 112. See, for example, T Grisso, “Society’s Retributive Response to Juvenile Violence: A Developmental Perspective” (1996) 20 Law and Human Behavior 229; JL Woolard, N Dickon Reppucci and RE Redding, “Theoretical and Methodological Issues in Studying Children’s Capacities in Legal Contexts” (1996) 20 Law and Human Behavior 219; L Steinberg and E Cauffman, “Maturity of Judgement in Adolescence: Psycho-social Factors in Adolescent Decision Making” (1996) 20 Law and Human Behavior 249; ES Scott, N Dickon Reppucci and JL Woolard, “Evaluating Adolescent Decision Making in Legal Contexts” (1995) 19 Law and Human Behavior 221; CS Fried and N Dickon Reppucci, “Criminal Decision Making: The Development of Adolescent Judgment, Criminal Responsibility, and Culpability” (2001) 25 Law and Human Behavior 45. S Morse, “Immaturity and Irresponsibility” (1998) 88(1) The Journal of Criminal Law and Criminology 15 at 53. M Beckman, “Crime, Culpability, and the Adolescent Brain” (2004) 305 Science 596.

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The way in which children have been treated by the criminal law has differed markedly according to societal concepts of childhood. In the 17th and 18th centuries, children were treated as miniature adults and were subject to fierce punishments such as whipping, branding and even hanging. 20 It was only in the 19th century that children began to be treated differently, and only at the turn of the 20th century that separate courts for children’s crime were established in common law countries. 21 The minimum age for criminal responsibility is 10 years of age in Australia. At common law, there is an irrebuttable presumption that a child aged seven or under cannot be guilty of a crime. 22 Legislation in each of the States and Territories has raised the minimum age of criminal responsibility to 10, 23 so that a person under that age cannot be found guilty of a crime. This mirrors the position taken in the Model Criminal Code, reflected in s 7.1 of the Criminal Code (Cth).

The overrepresentation of Indigenous young people in detention [3.20] In May 2015, Amnesty International released a report entitled “A Brighter Tomorrow: Keeping Indigenous Kids in the Community and Out of Detention in Australia”. 24 It highlighted that data for 2013-2014 indicated that Indigenous young people were approximately 26 times more likely to be in detention than non-Indigenous young people. 25 The Australian Institute of Health and Welfare has since reported that 56% of all young people in unsentenced detention (such as awaiting trial or sentence) on an average day were Indigenous during 2014-2015. 26 In the Northern Territory, the proportion was 94%. 27 Amnesty International has called on the Commonwealth Government to raise the minimum age of criminal responsibility to 12 in order to reduce the overrepresentation of Indigenous young people in detention. 28 Thomas Crofts argues that raising the minimum age of criminal responsibility to 12 is an essential factor towards ensuring that the “proven negative impacts” of social exclusion and social costs arising from the detention of Indigenous young people can be addressed. 29

20 21

22 23

24

25

26 27 28

See, generally, I Pinchbeck and M Hewitt, Children in English Society (London: Routledge, 2005) Vols 1 and 2. J Turner, “The James Bulger Case: A Challenge to Juvenile Justice Theories” (1994) 68(8) Law Institute Journal 734 at 735. The special procedures and rules governing the investigation, adjudication and sentencing of juveniles in Australia are reviewed in K Warner, “The Legal Framework of Juvenile Justice” in R White and C Alder (eds), The Police and Young People in Australia (Melbourne: Cambridge University Press, 1994) Ch 2. Sir William Holdsworth, A History of English Law (London: Sweet and Maxwell, 1966) Vol 3, p 372; Sir James Stephen, A History of the Criminal Law of England (London: Macmillan, 1883) Vol 2, p 98. Criminal Code (ACT), s 25; Children (Criminal Proceedings) Act 1985 (NSW), s 5; Criminal Code (NT), ss 38(1), 43AP; Criminal Code (Qld), s 29(1); Young Offenders Act 1993 (SA), s 5; Criminal Code (Tas), s 18(1); Children, Youth and Families Act 2005 (Vic), s 344; Criminal Code (WA), s 29. Amnesty International Australia, A Brighter Future: Keeping Indigenous Kids in the Community and Out of Detention in Australia (May 2015). https://www.static.amnesty.org.au/wp-content/uploads/2016/09/A_ brighter_future_National_report.pdf (cited 9 December 2016). Amnesty International Australia, A Brighter Future: Keeping Indigenous Kids in the Community and Out of Detention in Australia (May 2015) p 5. https://www.static.amnesty.org.au/wp-content/uploads/2016/09/A_ brighter_future_National_report.pdf (cited 9 December 2016); citing Australian Institute of Health and Welfare, “Youth Detention Population in Australia 2014”, Juvenile Justice Series No 16 (2014) Table s 10. Australian Institute of Health and Welfare, “Young People in Unsentenced Detention: 2014-2015” Youth Justice Fact Sheet No 67 (2016) p 2. Australian Institute of Health and Welfare, “Young People in Unsentenced Detention: 2014-2015” Youth Justice Fact Sheet No 67 (2016) p 2. Amnesty International Australia, A Brighter Future: Keeping Indigenous Kids in the Community and Out of Detention in Australia (May 2015) p 5. https://www.static.amnesty.org.au/wp-content/uploads/2016/09/A_ brighter_future_National_report.pdf (cited 9 December 2016). [3.20]

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The rebuttable presumption [3.25] Under both common law and statute, when a child reaches the age of 14 he or she is

regarded as an adult in terms of criminal responsibility. However, there may be some leeway as to the standard of behaviour expected. In the context of the defence of provocation, the High Court in Stingel v The Queen stated that “[t]here is, we think, adequate justification in policy, reason and authority for taking age, in the sense of immaturity, into account in setting the standard of self-control required by reference to the ordinary [person]”. 30 A problem arises as to how to treat those children of and over the minimum age of criminal responsibility but below the age of 14. At common law, a presumption arose that once a child reaches the age of seven but is under the age of 14, he or she does not “know the difference between right and wrong and [is] therefore … incapable of committing a crime because of lack of mens rea”. 31 This is sometimes referred to by the Latin term doli incapax (incapable of wrongdoing). A rationale for the presumption is that it protects children from the “full rigour of criminal law enforcement”. 32 The doli incapax presumption has been codified by legislation in the Australian Capital Territory, Commonwealth, Northern Territory, Queensland, Tasmania and Western Australia, and survives as part of the common law in New South Wales, South Australia and Victoria. 33 The presumption that a child between the minimum age of criminal responsibility and 14 is incapable of committing a crime was severely criticised by Laws J sitting in the Divisional Court of the Queen’s Bench Division in C (a minor) v DPP. 34 In that case, two 12-year-old boys were caught tampering with a motorcycle. One boy held the handlebars while the other used a crowbar in an attempt to force open the padlock and chain around the motorcycle. The police approached on foot and one chased C who then climbed a wall, but was caught by another officer. C was convicted of interfering with a motor vehicle with the intention to commit theft. The magistrate considered a submission that C was doli incapax, but held that the presumption had been rebutted on the basis that it could be inferred from C’s running away and the criminal damage that C knew that what he was doing was wrong. The Divisional Court dismissed C’s appeal on the basis that the presumption of doli incapax was outdated and should be treated as being no longer good law. In the course of his judgment, Laws J criticised the presumption on a number of grounds. One criticism was that the presumption operated in favour of children with impoverished backgrounds and anti-social tendencies: “It must surely nowadays be regarded as obvious that, where a morally impoverished upbringing may have led a teenager into crime, the facts of his [or her] background should not go to his [or her] guilt, but to his [or her] mitigation; the very emphasis placed in modern penal policy upon the desirability of non-custodial disposal designed to be remedial rather than retributive … offers powerful support for 29 30 31 32 33 34

T Crofts, “A Brighter Tomorrow: Raise the Age of Criminal Responsibility” (2015) 27(1) Current Issues in Criminal Justice 123. Stingel v The Queen (1990) 171 CLR 312 at 330. Archbold: Criminal Pleading Evidence and Practice (44th ed, London: Sweet and Maxwell, 1992) Vol 1, [1.96]. B Fisse, Howard’s Criminal Law (5th ed, Sydney: Law Book Company, 1990) pp 477–478. Criminal Code (Cth), s 7.2; Criminal Code (ACT), s 26; Criminal Code (NT), ss 38(2), 43AQ; Criminal Code (Qld), s 29(2); Criminal Code (Tas), s 18(2); Criminal Code (WA), s 29. [1994] 3 WLR 888.

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the view that delinquents … who may know no better than to commit anti-social and sometimes dangerous crimes, should not be held immune from the criminal justice system, but sensibly managed within it.” 35

The judgment of the Divisional Court was overturned by the House of Lords, which held that abolition of the presumption was a matter for Parliament. 36 Lord Lowry addressed the above criticism as well as a number of others set out by Laws J, and stated that the main purpose of the presumption is to protect children of this age group from the full force of the criminal law. 37 He stated: “The distinction between the treatment and the punishment of child ‘offenders’ has popular and political overtones, a fact which shows that we have been discussing not so much a legal as a social problem, with a dash of politics thrown in.” 38

In A v DPP, 39 the Divisional Court of the Queen’s Bench held that consideration of conduct closely associated with the criminal act and the nature of the offence charged (in this case, indecent assault) may be relevant factors in deciding whether guilty knowledge was in all the circumstances proved. The pros and cons of retaining the presumption that a child aged above the minimum age of criminal responsibility and under 14 is incapable of wrongdoing have been explored in academic material. 40 Thus far, the presumption remains firmly in place in Australia, but, in England, the presumption has been abolished by s 34 of the Crime and Disorder Act 1998 (UK). A joint report of the Australian Law Reform Commission (ALRC) and the Human Rights and Equal Opportunity Commission advised, in implementing the recommendations of the Model Criminal Code, that the principle of doli incapax, should be applied consistently throughout Australia and be legislatively based. 41 It is important to note that the presumption is just that, and is capable of being rebutted. The prosecution bears the legal burden of rebutting the presumption. It must prove that the child committed the criminal act with the requisite fault element and that he or she had 35

C (a minor) v DPP [1994] 3 WLR 888 at 895–896.

36 37

C (a minor) v DPP [1995] 2 WLR 383. C (a minor) v DPP [1995] 2 WLR 383 at 396–399.

38 39 40

41

C (a minor) v DPP [1995] 2 WLR 383 at 403. [1997] Crim LR 125. T Bartholomew, “Legal and Clinical Enactment of the Doli Incapax Defence in the Supreme Court of Victoria, Australia” (1998) 5(1) Psychiatry, Psychology and Law 95; M Grove, “Are You Old Enough? In Defence of Doli Incapax” (1996) Law Institute Journal 38; P Blazey-Ayoub, “Doli Incapax” (1996) 20 Criminal Law Journal 34; D Price, “The Criminal Liability of Children” (1995) 69(8) Australian Law Journal 593; N Konic, “Say Goodbye Doli? Age and Criminal Responsibility?” (1994) 19(3) Alternative Law Journal 140; T Wilkinson, “Doli Incapax—RIP?” (1994) 138 Solicitors’ Journal 662; T Wilkinson, “Doli Incapax Resurrected” (1995) 139 Solicitors’ Journal 338; S Bandalli, “Abolition of the Presumption of Doli Incapax and the Criminalisation of Children” (1998) 37(2) Howard Journal of Criminal Justice 114; A Jack, “A Judicial Step Too Far” [1995] New Law Journal 315; G Hubble, “Juvenile Defendants: Taking the Human Rights of Children Seriously” (2000) 25(3) Alternative Law Journal 116; G Urbas, “The Age of Criminal Responsibility”, Australian Institute of Criminology—Trends and Issues in Criminal Justice Factsheet No 181 (November 2000); A Apler, “Naughty or Bad? Expert Evidence in Rebuttal of Doli Incapax Presumption” (2000) 7(2) Psychiatry, Psychology and Law 206; L Skingley, “The Age of Criminal Responsibility” (2003) 129 Criminal Lawyer (UK) 3; T Crofts, “Doli Incapax: Why Children Deserve its Protection” (2003) 10(3) eLaw Journal: Murdoch University Electronic Journal of Law; N Lennings and C Lennings, “Assessing Serious Harm under the Doctrine of Doli Incapax: A Case Study” (2014) 21(5) Psychiatry, Psychology and Law 791; T Crofts, “A Brighter Tomorrow: Raise the Age of Criminal Responsibility” (2015) 27(1) Current Issues In Criminal Justice 123. Australian Law Reform Commission, Seen and Heard: Priority For Children in the Legal Process, Report No 84 (1997) [18.20]. [3.25]

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sufficient understanding to know that what he or she did was wrong—that is, the prosecution must prove that the child knew the offence was wrong, rather than simply naughty or mischievous. 42 Just what is meant by the term “wrong” is unclear. One standard that has been used is that of “seriously wrong”. 43 Proof that the child knew that the act was morally wrong may not be sufficient to establish the requisite understanding. 44 However, proof that he or she knew that the act would result in criminal punishment may be enough. 45 Another standard is that akin to the definition of “wrong” for the purposes of the common law defence of insanity. In R v M 46 and R (a child) v Whitty, 47 the standard referred to was that of wrong according to the ordinary principles of reasonable people—a standard which was laid down by the High Court in Stapleton v The Queen 48 in relation to the defence of insanity. What will amount to sufficient evidence to rebut the presumption and allow a conviction is largely a matter of discretion for individual judges. 49 Lord Lowry stated in C (a minor) v DPP 50 that evidence of the offence itself was not enough on its own to show that a child knew that the act was wrong. 51 In R v CRH, 52 the New South Wales Court of Criminal Appeal reviewed the English and Australian cases on doli incapax and held that the law as expressed by Lord Lowry in C’s case is the law in Australia. More recently in RH v DPP (NSW) Basten JA held that “the operation of the principle in this jurisdiction is not in doubt”. 53 In T v DPP; L v DPP; H v DPP, 54 the Divisional Court of the Queen’s Bench held that the prosecution was not required to lead direct evidence, such as psychiatric evidence, specifically relating to the child’s knowledge of wrongfulness. It is sufficient that the circumstances of the case led to an inference about the child’s knowledge. While expert evidence may serve some role in rebutting the presumption of doli incapax, there still appears to be some difficulties associated with experts assessing a child’s understanding of the wrongfulness of behaviour. 55 Evidence that a child knew that the act was wrong may include: • evidence of the child’s upbringing; 56 • admissions to the police that the child knew that the conduct was wrong; 57 42

43 44 45 46 47 48 49 50 51 52 53 54 55 56 57

R v M [1977] 16 SASR 589; C (a minor) v DPP [1994] 3 WLR 888 at 894; IPH v Chief Constable of South Wales [1987] Crim LR 42; BP v The Queen [2006] NSWCCA 172; RP v Ellis [2011] NSWSC 442; RH v Director of Public Prosecutions (NSW) [2013] NSWSC 520. IPH v Chief Constable of South Wales [1987] Crim LR 42; R v Gorrie (1918) 83 JP 136. JM (a minor) v Runeckles (1984) 79 Cr App R 255. R (a child) v Whitty (1993) 66 A Crim R 462; RH v Director of Public Prosecutions (NSW) [2014] NSWCA 305. [1977] 16 SASR 589; R v Ey (No 2) [2012] SASC 116 at [34]. (1993) 66 A Crim R 462. (1952) 86 CLR 358. T Crofts, “Rebutting the Presumption of Doli Incapax” (1998) 62(2) Journal of Criminal Law 185. [1995] 2 WLR 383. C (a minor) v DPP [1995] 2 WLR 383 at 401–402. Unreported, NSWCCA, 18 December 1996. [2014] NSWCA 305 at [17]. [1977] Crim LR 127. A Apler, “Naughty or Bad? Expert Evidence in Rebuttal of Doli Incapax Presumption” (2000) 7(2) Psychiatry, Psychology and Law 206. X v X [1958] Crim LR 805; B v The Queen (1960) 44 Cr App R 1; F v Padwick [1959] Crim LR 439. Ex parte N [1959] Crim LR 523; F v Padwick [1959] Crim LR 439; R v M (1977) 16 SASR 589 at 593 per Bray CJ; R (a child) v Whitty (1993) 66 A Crim R 462; R v Ey (No 2) [2012] SASC 116 at [34].

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• conduct after the criminal act, including attempts at concealment 58 or running away when disturbed; 59 • conduct and demeanour in court; 60 • mental capacity; 61 and • any relevant prior convictions. 62

Corporations [3.30] Celia Wells writes that the “development of corporate criminal liability is woven from

a number of interweaving strands and the resulting cloth is uneven”. 63 The criminal responsibility of corporations was virtually unknown until the latter half of the 19th century, and then it was on the basis of vicarious liability. The immediate response to the question as to who can be convicted of a crime is to envisage a human being. That may partly explain the slow development in attributing criminal responsibility to corporations, as well as the tendency to associate regulatory rather than criminal law with corporate actions. The need for rules regarding corporate criminal responsibility has developed in tandem with the growth of corporations and the occurrence of major disasters involving large companies, such as the Air New Zealand Mount Erebus crash, the Bhopal disaster in India, the Chernobyl nuclear explosion and the Exxon Valdez and BP oil spills. 64 In Australia, there are a significant number of work-related deaths occurring every year.

Corporate responsibility for work-related deaths in Australia [3.35] In October 2015, Safe Work Australia released a report entitled Work-Related Traumatic Injury Fatalities, Australia 2014. Safe Work Australia reported that 188 workers were fatally injured at work in 2014, with some 3,000 total such fatalities during the 12 year period from 2003 to 2014. 65 Almost half of these fatalities (47%) in 2014 occurred within the transport, postal and warehousing and agricultural, forestry and fishing industries. 66 The highest number of deaths in 2014 was recorded in New South Wales (53 fatalities), followed by 49 in Queensland and 42 in Victoria. 67 It is unclear how many of those deaths were preventable. The legal construction of work-related deaths and injuries as minor breaches of occupational health and safety regulations, rather than criminal acts of manslaughter, is discussed further in Chapter 9, [9.10]–[9.15].

58 59 60 61 62 63 64

65

66 67

JM (a minor) v Runeckles (1984) 79 Cr App R 255. A v DPP [1997] Crim LR 125. JM (a minor) v Runeckles (1984) 79 Cr App R 255; Ex parte N [1959] Crim LR 523. JBH and JH (minors) v O’Connell [1981] Crim LR 632. R v B; R v A [1979] 3 All ER 460. C Wells, Corporations and Criminal Responsibility (2nd ed, Oxford: Oxford University Press, 2001) p 85. For an excellent collection of essays on this topic, see, generally, P Grabosky and A Sutton (eds), Stains on A White Collar: Fourteen Studies in Corporate Crime or Corporate Harm (Sydney: Federation Press, 1989). Harry Glasbeek has also written a provocative account of corporate crimes: Wealth by Stealth: Corporate Crime, Corporate Law and the Perversion of Democracy (Toronto: Between the Lines, 2002); see also H Holderness, “Criminal Offences Stagger into Corporate Law” [2015] New Zealand Law Journal 161 on the ad hoc nature of reform in this area. Safe Work Australia, Work-Related Traumatic Injury Fatalities, Australia 2014 (2015) p 5. http:// www.safeworkaustralia.gov.au/sites/SWA/about/Publications/Documents/939/work-related-traumaticinjury-fatalities-australia-2014.pdf (cited 9 December 1016). Safe Work Australia, Work-Related Traumatic Injury Fatalities, Australia 2014 (2015) p 5. Safe Work Australia, Work-Related Traumatic Injury Fatalities, Australia 2014 (2015) p 23. [3.35]

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The law has now moved beyond vicarious liability to direct liability, but the MCCOC has suggested that the present state of the law does not go far enough. An additional framework for corporate criminal liability (the “corporate culture” model, which was suggested by the MCCOC) has now been adopted in the Australian Capital Territory and the Northern Territory, and may signal the way for future reforms to this area. 68 A corporation is considered a legal person 69 and may, therefore, be criminally liable to the same extent as a natural person. The main restriction to this principle is that, at common law, a corporation cannot be tried for an offence which can only be punished by imprisonment 70—therefore, it is arguable that a corporation cannot be held criminally responsible for the crime of murder. It appears, however, that legislation can depart from this principle. For example, s 161(2) of the Legislation Act 2001 (ACT) states that “a provision of law that creates an offence can apply to a corporation even though contravention of the provision is punishable by imprisonment (with or without another penalty)”. 71 Section 161(3) of the Legislation Act 2001 (ACT) then sets out the maximum penalty units that can be ordered by a court against a corporation where the penalty for the offence is a period of imprisonment only. Similarly, s 16 of the Crimes (Sentencing Procedure) Act 1999 (NSW) converts punishment by terms of imprisonment into fines and in Presidential Security Services of Australia Pty Ltd v Brilley, Allsop P stated that this “removes the foundation for the argument that companies cannot be responsible for crimes in respect of which the only punishment is physical punishment of a human, whether by incarceration or otherwise”. 72 Brent Fisse argues that, even if no suitable sentencing option is available for a crime such as murder, the stigmatic effect of a conviction would still support a corporation being found liable. 73 There is no reason, however, for a corporation to be exempted from prosecution for manslaughter. 74

68 69

70 71 72 73 74

See R Edwards, “Corporate Killers” (2001) 13 Australian Journal of Corporate Law 231, for a discussion of other possible frameworks. Acts Interpretation Act 1901 (Cth), s 2C; Legislation Act 2001 (ACT), s 160; Interpretation Act 1987 (NSW), ss 8(d), 21(1); Interpretation Act (NT), ss 17, 24AA; Acts Interpretation Act 1954 (Qld), ss 32D, 36; Acts Interpretation Act 1915 (SA), ss 4, 26; Acts Interpretation Act 1931 (Tas), ss 24A(2), 41(1); Interpretation of Legislation Act 1984 (Vic), s 38; Interpretation Act 1984 (WA), s 5. Section 1 of the Criminal Code (Qld) and s 1 of the Criminal Code (WA) also provide that the definition of “person” in relation to property includes corporations of all kinds. Section 1 of the Criminal Code (NT) provides a similar definition of the word “owner”. Section 161(1) of the Legislation Act 2001 (ACT), s 38B of the Interpretation Act (NT), s 46 of the Acts Interpretation Act 1954 (Qld), s 35 of the Acts Interpretation Act 1931 (Tas), and s 69(1) of the Interpretation Act 1984 (WA) also make it clear that every enactment relating to any offence applies to corporations as well as individuals. R v ICR Haulage Ltd [1944] KB 551; [1944] 1 All ER 691 at 556 (KB); R v Murray Wright Ltd [1970] NZLR 476 at 484 per McCarthy J. See also s 43BK(3) of the Criminal Code (NT). Presidential Security Services of Australia Pty Ltd v Brilley (2008) 73 NSWLR 241 at 245-246. B Fisse, Howard’s Criminal Law (5th ed, Sydney: Law Book Company, 1990) p 611. R v P & O European Ferries (Dover) Ltd (1991) 93 Cr App R 73; DPP (Victoria) (Reference No 1 of 1996) [1998] 3 VR 352; Presidential Security Services of Australia Pty Ltd v Brilley (2008) 73 NSWLR 241 at 245-246 per Allsop P.

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Corporate manslaughter [3.40] In R v Denbo Pty Ltd and Timothy Ian Nadenbousch, 75 the accused corporation pleaded guilty to manslaughter resulting from a workplace death. This was the first case of “corporate manslaughter” in Australia. One of the corporation’s truck drivers died in a truck accident after attempting to drive down a steep incline of which he had not been warned. The truck itself had faulty brakes and the manslaughter charge was based on the argument that the corporation had failed to set up an adequate maintenance system for its plant and vehicles, had failed to train its employees properly, and had allowed the truck to be used without proper maintenance. Teague J fined the corporation $120,000. Nadenbousch, one of the corporation’s two shareholders, pleaded guilty to two charges of wilful neglect under the Occupational Health and Safety Act 1985 (Vic) and was fined $10,000. The company, however, was wound up before sentencing and never paid the fine. 76

At common law, a corporation cannot be held criminally responsible for certain crimes which only an individual can commit, such as perjury or bigamy. It may, however, be held criminally liable for the offences of complicity, 77 conspiracy, 78 attempt 79 and incitement. 80 Because a corporation does not have a physical existence, it can only act or form an intention through its directors or employees. Currently, there are three ways in which corporate criminal liability may be established: • by holding a corporation vicariously liable for the conduct of its employees where those employees were acting within the scope of their employment (the agency model); or • by holding a corporation directly liable for the acts of certain persons, such as the corporation’s board of directors, its managing director or person to whom the functions of the board have been delegated, who are considered to be the embodiment of the company (the identification model); or • by holding a corporation directly liable for offences authorised or permitted through the procedures, operating systems or culture of the company (the corporate culture model). Vicarious liability [3.45] Borrowing from civil law principles, it is now well established that a corporation may

be held vicariously liable for the acts of its employees, providing that they acted within the scope of their employment. 81 The status of the employee is irrelevant for this purpose. However, a corporation will not be vicariously responsible for the conduct of an independent 75 76 77

78 79

80 81

Unreported, VSC, 14 June 1994. See S Chesterman, “The Corporate Veil, Crime and Punishment: The Queen v Denbo Pty Ltd and Timothy Ian Nadenbousch” (1994) 19(4) Melbourne University Law Review 1064. Lewis v Crafter [1942] SASR 30; Smith v Trocadero Dansant Ltd [1927] St R Qd 39; R v Robert Millar (Contractors) Ltd [1970] 2 QB 54; John Henshall (Quarries) Ltd v Harvey [1965] 2 QB 233; National Coal Board v Gamble [1959] 1 QB 11. Canadian Dredge and Dock Co Ltd v The Queen (1985) 19 DLR (4th) 314; 19 CCC (3d) 1. Trade Practices Commission v Tubemakers of Australia Ltd (1983) 76 FLR 455; RIL Aviation HL 7740 & HL 7741 Pty Ltd v Alliance & Leicester Plc [2011] NSWCA 423; Australian Competition and Consumer Commission v Australian Egg Corp Ltd [2016] FCA 69. Invicta Plastics Ltd v Clare [1976] Crim LR 131. Christie v Foster Brewing Co Ltd (1982) 18 VLR 292; R and Minister for Customs and Australasian Films Ltd (1921) 29 CLR 195; Morgan v Babcock and Wilcox Ltd (1929) 43 CLR 163; Alford v Riley Newman Ltd (1934) 34 SR(NSW) 261; Fraser v Dryden’s Carrying and Agency Co Pty Ltd [1941] VLR 103; Australian Stevedoring Industry Authority v Overseas and General Stevedoring Co Pty Ltd (1959) 1 FLR 298; ABC [3.45]

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contractor except where so provided by statute. 82 It is usually in respect of strict liability offences that corporations will be found vicariously liable for the acts of their employees: see below at [3.235]. In general, the prosecution needs to prove three elements for vicarious criminal liability to be established: 1. The relevant legislation must intend that legal liability be applied vicariously. In Mousell Bros Ltd v London and Northwestern Railway Co, 83 Lord Atkin stated: “Regard must be had to the object of the statute, the words used, the nature of the duty laid down, the person upon whom it is imposed, the person by whom it would in ordinary circumstances be performed, and the person upon whom the penalty is imposed.” 84

2.

3.

The employee must have committed the relevant act within the course of employment, or within the scope of his or her authority. In this regard, there is no requirement that the corporation authorise the employee to commit the offence. 85 Nor does it appear that there is a requirement that the employee act with the intention of benefiting the corporation. 86 Generally, a company will not be found guilty on the basis of vicarious liability for a criminal offence having a subjective fault element, but may for offences of strict or absolute liability. 87

Direct liability [3.50] Corporate criminal liability for serious offences such as manslaughter is based on direct

liability. Rather than holding the corporation criminally responsible for the acts of its employees, direct liability views the employees’ acts as those of the corporation. 88 The mere fact that an employee performed an act will not be sufficient to establish liability for a serious offence. It must be shown that an act or omission was performed by someone with authority to act as the corporation. That person must be said to embody the corporation and this is sometimes referred to as “the identification rule”, “the attribution rule” or “the alter-ego rule”. The leading authority in this area is that of Tesco Supermarkets Ltd v Nattrass. 89 In that case, Tesco, a company operating over 800 supermarkets throughout the United Kingdom, was charged under the Trade Descriptions Act 1968 (UK) with offering goods to consumers at a price for which they could not be bought. An assistant had placed normally priced soap powder on the shelf despite special packets of the same product having been advertised at a reduced price. The assistant had failed to notify the manager of the store that the special offer

89

Developmental Learning Centres Pty Ltd v Wallace [2006] VSC 171; Presidential Security Services of Australia Pty Ltd v Brilley (2008) 73 NSWLR 241; see, generally, J Clough and C Mulhern, The Prosecution of Corporations (Melbourne: Oxford University Press, 2002) pp 79–88. Allen v United Carpet Mills Pty Ltd [1989] VR 323. [1917] 2 KB 836. Mousell Bros Ltd v London and Northwestern Railway Co [1917] 2 KB 836 at 845 per Lord Atkin. Fraser v Dryden’s Carrying and Agency Co Pty Ltd [1941] VLR 103; Australian Stevedoring Industry Authority v Overseas and General Stevedoring Co Pty Ltd (1959) 1 FLR 298; Canadian Dredge and Dock Co Ltd v The Queen (1985) 19 DLR (4th) 314. An intent to benefit is not required under s 84 of the former Trade Practices Act 1974 (Cth): Walplan Pty Ltd v Wallace (1985) 8 FCR 27; Trade Practices Commission v Tubemakers of Australia Ltd (1983) 76 FLR 455. Presidential Security Services of Australia Pty Ltd v Brilley (2008) 73 NSWLR 241 at 267-269 per Ipp JA. R Tomasic, S Bottomley and R McQueen, Corporations Law in Australia (2nd ed, Sydney: Federation Press, 2002) Ch 11; J Clough and C Mulhern, The Prosecution of Corporations (Melbourne: Oxford University Press, 2002) pp 89–122. [1972] AC 153.

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82 83 84 85

86 87 88

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stock was unavailable, and the manager had failed to check that the soap powder was displayed at the advertised price. The manager gave evidence that he was waiting for the delivery of 50 cases of the special offer stock. It was held, both at first instance and by the Court of Appeal, that the company was vicariously liable for the manager’s lack of care. The House of Lords held, however, that the company was not liable as the manager was not of sufficient seniority within the company’s organisation for his lack of care to be attributable to the company. He did not, as it were, “embody” the company. The company’s conviction was therefore quashed. The Tesco principle limits the criminal liability of a company to the conduct and fault of those who may be said to embody the company such as the company’s board of directors, its managing director or a person to whom the function of the board has been fully delegated. 90 Brent Fisse and John Braithwaite write that this principle amounts to “vicarious liability for the fault of a restricted range of representatives exercising corporate functions”. 91 These authors go on to criticise the Tesco principle in the following way: “This compromised form of vicarious liability is doubly unsatisfactory because the compromise is struck in a way that makes it difficult to establish corporate criminal liability against large companies. Offences committed on behalf of large concerns are often visible only at the level of middle management whereas the Tesco principle requires proof of fault of a top-level manager. By contrast, fault on the part of a top-level manager is much easier to prove in the context of small companies.” 92

There appears to be some truth in this criticism. In R v AC Hatrick Chemicals Pty Ltd, 93 the corporation, a plant engineer and a plant manager were charged with manslaughter in relation to a tank which had exploded during a welding operation, causing the death of one worker and serious injury to another. The manslaughter charges against the individuals were withdrawn prior to committal and Hampel J directed a verdict of acquittal against the corporation on the basis of legal argument prior to the trial. One of the main arguments forming the basis of the direction was that the plant engineer and the plant manager were not “the guiding mind” of the company. 94 Despite criticisms of the Tesco principle, it has been widely followed in Australia. 95 Subsequent English cases, however, have been prepared to modify the Tesco principle somewhat. 90

91 92 93 94 95

See also Collins v State Rail Authority (NSW) (1986) 5 NSWLR 209; R v Roffel [1985] VR 511; Cook’s Hotel Pty Ltd v Pope (1983) 34 SASR 292; Brambles Holdings Ltd v Carey (1976) 15 SASR 270; Lamb v Toledo-Berkel Pty Ltd [1969] VR 343; Ex parte Falstein; Re Maher (1948) 49 SR(NSW) 133; Freeman v CT Warne Pty Ltd [1947] VLR 279; Ex parte Colonial Petroleum Oil Pty Ltd; Re Byrne (1944) 44 SR (NSW) 306; Fraser v Dryden’s Carrying & Agency Co Pty Ltd [1941] VLR 103; Stephens v Robert Reid & Co Ltd (1902) 28 VLR 82. B Fisse and J Braithwaite, Corporations, Crime and Accountability (Cambridge: Cambridge University Press, 1993) p 47. B Fisse and J Braithwaite, Corporations, Crime and Accountability (Cambridge: Cambridge University Press, 1993) p 47. Unreported, VSC, 29 November 1995. See also D Neal, “Corporate Manslaughter” (1996) 70(10) Law Institute Journal 39. Presidential Security Services of Australia Pty Ltd v Brilley (2008) 73 NSWLR 241; AC Hatrick Chemicals Pty Ltd (unreported, 29/11/1995, VSC, Hampel J); Hamilton v Whitehead (1988) 63 ALJR 80; Collins v State Rail Authority of New South Wales (1986) 3 NSWLR 209; S&Y Investments (No 2) Pty Ltd v Commercial Union Assurance Co of Australia Ltd (1986) 85 FLR 285; GJ Coles and Co Ltd v Goldsworthy [1985] WAR 183; R v Roffel [1985] VR 511; Cook’s Hotel Pty Ltd v Pope (1983) 34 SASR 292; Linehan v Australian Public Service Association (1983) 67 FLR 412; Trade Practices Commission v Tubemakers of Australia Ltd (1983) 47 ALR 719; Universal Telecasters (Qld) Ltd v Guthrie (1978) 18 ALR 531; Brambles Holdings Ltd v Carey (1976) 15 SASR 270; Kehoe v Dacol Motors Pty Ltd; Ex parte Dacol Motors Pty Ltd [1972] Qd R 59; Edelbrand Pty Ltd v H M Australia Holdings Pty Ltd [2012] NSWCA 31 at [58]; Electrolux Home Products Pty Ltd v Delap Impex Ltd [2013] FCA 600 at [41]. [3.50]

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In Director General of Fair Trading v Pioneer Concrete (UK) Ltd, 96 the House of Lords was prepared to attribute the actions of the executives of the company to the company itself, despite the board not knowing what the executives had done and, in fact, giving instructions that the employees should not do what the executives had in fact done. Lord Templeman stated that an uncritical transposition of the Tesco principle: “would allow a company to enjoy the benefit of restrictions outlawed by Parliament and the benefit of arrangements prohibited by the courts provided that the restrictions were accepted and implemented and the arrangements were negotiated by one or more employees who had been forbidden to do so by some superior employee identified in argument as a member of the ‘higher management’ of the company or by one or more directors of the company identified in argument as ‘the guiding will’ of the company.” 97

Similarly, in Meridian Global Funds Management Asia Ltd v Securities Commission 98 the Judicial Committee of the Privy Council held the company liable for the actions of its chief investment officer and its senior portfolio manager despite the actions being unknown to the board of directors and its managing director. The Privy Council found that knowledge of the employee’s actions could be attributed to the company, but were careful to point out that it will be a “matter of construction in each case as to whether the particular rule requires that the knowledge that an act has been done, or the state of mind with which it was done, should be attributed to the company”. 99 In DPP (Victoria) Reference (No 1 of 1996) 100 the Court of Appeal granted the Director of Public Prosecutions leave to withdraw a reference on a point of law arising from the AC Hatrick case. However, Callaway JA, with whom Phillips CJ and Tadgell JA agreed, stated that Lord Hoffman’s approach to direct responsibility in Meridian Global Funds Management Asia Ltd v Securities Commission 101 provides a framework for analysis of direct liability. 102 This involves deciding whether the corporation is capable of committing the offence, then identifying whose acts or omissions or state of mind are taken to be the acts or omissions or state of mind of the corporation itself. 103 The rule of attribution depends on the offence and on the facts of the case. 104 It should be noted that corporate liability, particularly in relation to manslaughter, is in a period of development, given the preparedness of the authorities to prosecute corporations in this regard and the readiness of the courts—at least in England—to modify the Tesco principle in certain circumstances. In relation to defences, where an employee whose conduct is attributable to a corporation has a personal defence such as mental impairment or self-defence, this defence may be available to the corporation. 105 That is, a corporation will not be held criminally liable if the employee’s conduct was excusable or justifiable. In relation to offences of strict liability, the defence of honest and reasonable mistake of fact may also be available: see [3.290]. 96 97 98 99 100 101 102 103 104 105

[1995] 1 AC 456. Director General of Fair Trading v Pioneer Concrete (UK) Ltd [1995] 1 AC 456 at 465. [1995] 2 AC 500. Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 at 511. [1998] 3 VR 352. [1995] 2 AC 500. DPP (Victoria) Reference (No 1 of 1996) [1998] 3 VR 352 at 355. DPP (Victoria) Reference (No 1 of 1996) [1998] 3 VR 352 at 354. DPP (Victoria) Reference (No 1 of 1996) [1998] 3 VR 352 at 355. Tesco Supermarkets Ltd v Nattrass [1972] AC 153; Brambles Holdings Ltd v Carey (1976) 15 SASR 270; GJ Coles and Co Ltd v Goldsworthy [1985] WAR 183; McKenzie v GJ Coles and Co Ltd [1986] WAR 224; Adams v Eta Foods Ltd (1987) 19 FCR 93; Woolworths Ltd v Luff (1988) 33 A Crim R 144.

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Corporate culture [3.55] A model of corporate liability based on “corporate culture” was first enacted in

Australia by ss 12.1 – 12.6 of the Criminal Code (Cth). Section 12.1 confirms that the Code applies to bodies corporate in the same way as for individuals, and that a body corporate may be found guilty of any offence, including one punishable by imprisonment. Section 12.2 states that the physical element of an offence may be attributed to a corporation where an employee, agent or officer committed the physical element whilst acting within the actual or apparent scope of his or her employment. This is similar to the principle of vicarious liability. However, if the relevant offence contains a fault element, s 12.3 requires that intention, knowledge or recklessness must also be attributed to the corporation. It is in relation to fault elements that the Code departs from the Tesco principle. Section 12.3(1) states that a fault element will be attributed where the corporation “expressly, tacitly or impliedly authorised or permitted the commission of the offence”. Section 12.3(2) then lists four situations whereby such permission or authorisation may be established: (a) “proving that the body corporate’s board of directors intentionally, knowingly or recklessly carried out the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence; or (b)

proving that a high managerial agent of the body corporate intentionally, knowingly or recklessly engaged in the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence; or (c) proving that a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to non-compliance with the relevant provision; or (d) proving that the body corporate failed to create and maintain a corporate culture that required compliance with the relevant provision.” The same approach has been adopted in the Australian Capital Territory and the Northern Territory. 106 The idea of “corporate culture” as a way of proving the authorisation of an offence is an innovative one, drawing on the work of Brent Fisse and John Braithwaite on corporate liability. 107 Section 12.3(6) of the Criminal Code (Cth) defines corporate culture as “an attitude, policy, rule, course of conduct or practice existing within the body corporate generally or in the part of the body corporate in which the relevant activities take place”. In its final report on Chapter 2 of the Model Criminal Code, the Model Criminal Code Officers Committee (MCCOC) explained that this idea would allow: “the prosecution to lead evidence that the company’s unwritten rules tacitly authorised noncompliance or failed to create a culture of compliance. It would catch situations where, despite formal documents appearing to require compliance, the reality was that non-compliance was expected. For example, employees who know that if they do not break the law to meet production schedules (eg by removing safety guards on equipment) they will be dismissed. The company would be guilty of intentionally breaching safety legislation.” 108

106 107

108

Criminal Code (ACT), ss 49 – 51; Criminal Code (NT), ss 43BK – 43BM. See, for example, B Fisse, “Corporate Criminal Responsibility” (1991) 15 Criminal Law Journal 166 at 173; B Fisse, “Criminal Law: The Attribution of Criminal Liability to Corporations: A Statutory Model” (1991) 13 Sydney Law Review 277 at 281ff; B Fisse and J Braithwaite, Corporations, Crime and Accountability (Cambridge: Cambridge University Press, 1993). Model Criminal Code Officers Committee, Chapters 1 and 2—General Principles of Criminal Responsibility, Final Report (1992) p 113. [3.55]

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Corporate culture and the destruction of evidence [3.60] In Victoria, a similar approach to attributing responsibility to a corporation based on the “corporate culture” model in the Criminal Code (Cth) has also been adopted, but thus far this only operates in relation to the specific offence of destruction of evidence. 109 This piecemeal adoption of the corporate culture model was introduced in response to the destruction of thousands of documents by the multinational tobacco company British American Tobacco during litigation brought against it by Rolah McCabe, who was dying of a smoking-related illness. 110 The reason for the destruction of the documents was disputed. After the Victorian Court of Appeal held that the destruction was not unlawful, the then Victorian Attorney-General, Rob Hulls, stated in his second reading speech for the Crimes (Document Destruction) Bill 2005 that there was a need to introduce a new criminal offence so that “corporations cannot intentionally destroy documents to prevent their use in judicial proceedings”. 111

The Criminal Code (Cth) also contains provisions dealing with negligent actions by a corporation. 112 Section 12.4(3) states that negligence by a corporation may be evidenced by: “inadequate corporate management, control or supervision of the conduct of one or more of its employees, agents or officers; or failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate.”

Both the Australian Capital Territory and the Northern Territory have adopted similar provisions dealing with negligent actions by a corporation, again modelled on the Commonwealth provision. 113

Perspectives Prosecuting Serious Cartel Conduct [3.65] The Visy and Amcor Groups are corporations competing in the market for the

supply of corrugated fibreboard packaging products in Australia. In 2005, the Australian Competition and Consumer Commission (ACCC) brought an action in the Federal Court alleging that, between January 2000 and October 2004, companies in the Visy Group and certain officers of those companies engaged in price-fixing and market sharing with companies in the Amcor Group, contrary to s 45 of the former Trade Practices Act 1974 (Cth). This behaviour is usually referred to as cartel conduct and it encompasses contracts, arrangements or understandings between competitors to fix prices, share markets, control the number of goods produced, or to rig bids. The ACCC decided not to proceed against those on the Amcor side of this cartel because, in late 2004, Amcor approached the Commission and admitted liability. At the time, there was a “leniency policy” which could be applied to the first party to disclose a cartel to the ACCC, provided it was not the “clear leader” of the cartel, that it made full 109 110 111 112 113

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Crimes Act 1958 (Vic), ss 253 – 255. McCabe v British American Tobacco Services Ltd [2002] VSC 73; British American Tobacco Australia Services Ltd v Cowell (Representing the Estate of McCabe (Deceased)) (2002) 7 VR 524. Hansard, Victorian Legislative Assembly, 16 November 2005, p 2181. Criminal Code (Cth), ss 5.5, 12.4. Criminal Code (ACT), ss 52, 55; Criminal Code (NT), s 43BN. For further analysis of the Criminal Code provisions, see T Woolf, “The Criminal Code Act 1995 (Cth)—Towards a Realist Vision of Corporate Criminal Liability” (1997) 21 Criminal Law Journal 257. [3.60]

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disclosure, and that it continued to cooperate with the Commission. This policy is generally referred to as the Immunity Policy for Cartel Conduct and while it is justified on the basis that cartel conduct is difficult to detect because documentary evidence is rarely available, it has been subject to debate in recent years 114 and was reviewed by the ACCC in 2013. 115 A revised policy was released in September 2014. 116 After a year of denying the allegations, the Visy Group eventually admitted liability. On 2 November 2007, Justice Heerey fined the Visy Group $36 million, the largest corporate fine in Australian history. 117 On 19 June 2008, the ACCC instituted proceedings against Richard Pratt, the Chairman of Visy, alleging a contravention of s 155(5) of the former Trade Practices Act 1974 (Cth) by having knowingly given false or misleading evidence to the ACCC. On 27 April 2009, these proceedings were abandoned on account of Richard Pratt’s poor health and impending death. Richard Pratt died on 28 April 2009. The publicity concerning the Visy and Amcor Groups cartel gave impetus to implementing the recommendations of the Review of the Competition Provisions of the Trade Practices Act 1974 in January 2003, chaired by retired High Court Justice, Sir Daryl Dawson (the Dawson Review). The Dawson Review recommended the introduction of criminal penalties for serious cartel conduct. 118 The Review considered some of the practical problems associated with criminalising such conduct, including problems with proving matters to the criminal standard of beyond reasonable doubt. It also considered problems with adequately defining serious cartel conduct, with giving a regulatory body such as the ACCC the option to prosecute a breach of the former Trade Practices Act 1974 in criminal proceedings, and with having the criminal law encroach upon matters of economic regulation. The main argument put forth in favour of criminalising serious cartel conduct was that this would provide an effective deterrent to such behaviour, given that civil regulation had failed to do so in the past. It was this argument that persuaded the Dawson Review to recommend the introduction of criminal penalties. The Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009 (Cth) introduced a parallel criminal and civil offence regime as ss 44ZZRF – 4ZZRK into the former Trade Practices Act 1974 (Cth) for both companies and individuals engaging in cartel conduct. These same provisions were retained as ss 44ZZRF – 4ZZRK of the Competition and Consumer Act 2010 (Cth), which replaced the Trade Practices Act 1974 (Cth). Under this regime, the acts of making a contract, arrangement or understanding containing a “cartel provision” and of giving effect to such a cartel provision, create two 114 115

116

117 118

See, for example, C Beaton-Wells, “The ACCC Immunity Policy for Cartel Conduct: Due for Review” (2013) 41 ABLR 171. Australian Competition and Consumer Commission, “Review of the ACCC immunity policy for cartel conduct”, Discussion Paper, (September 2013) http://www.f.datasrvr.com/fr1/713/15664/consultation.pdf (cited 9 December 2016). Australian Competition and Consumer Commission, “ACCC immunity policy & cooperation policy for cartel conduct”, Policy Document, (September 2014) https://www.accc.gov.au/publications/accc-immunitycooperation-policy-for-cartel-conduct (cited 9 December 2016). Australian Competition and Consumer Commission (ACCC) v Visy Industries Holdings Pty Ltd (No 3) (2007) 244 ALR 673. Trade Practices Review Committee, Review of the Competition Provisions of the Trade Practices Act 1974 (Canberra: Commonwealth of Australia, January 2003) Ch 10 (“The Dawson Review”) available at http://www.tpareview.treasury.gov.au/content/report.asp (cited 9 December 2016). [3.65]

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types of offences: they give rise to civil penalties, and they also constitute criminal offences where the requisite fault element of knowledge or belief exists. ACCC enforcement in the area of cartels remains rare. 119 A “cartel provision” is one which relates to price-fixing, restricting production, allocating customers, bid-rigging, and the like. Corporations in contravention of criminal offences under these provisions of the Competition and Consumer Act 2010 (Cth) are liable for financial penalties, whereas directors or officers of a corporation face imprisonment terms of up to 10 years or financial penalties. The Commonwealth Government’s Competition Policy Review, known as the Harper Review, has recommended that the provisions relating to cartel conduct be simplified. 120

THE ELEMENTS OF A CRIME [3.70] The traditional common law explanation of the elements of a crime is that the latter is

divided into two parts, both of which must be proven before a conviction can be made out. The first part encompasses the external or physical elements of the crime; the second refers to the fault element or requisite state of mind of the accused. In this section, we will outline the components of both physical and fault elements before turning to the rise of strict and absolute liability offences.

Physical Elements [3.75] The physical elements of an offence may refer to:

• a specified form of conduct such as: ~ an act; ~ an omission; or ~ a state of affairs; • conduct which occurs in specified circumstances; or • the results or consequences of conduct. Diagram 1: Physical Elements

119 120

M Ferguson and S Meacock, “Cartel Conduct: a Survey of the ACCC’s Enforcement Activity” (2014) 22(1) Australian Journal of Competition and Consumer Law 46 at 48. I Harper, P Anderson, S McCluskey, M O’Bryan, “Competition Policy Review”, Final Report (March 2015) http://www.competitionpolicyreview.gov.au/final-report (cited at 9 December 2016). For an overview of the review recommendations, see D Brewster and J Gunev, “Competition Policy ’Root and Branch’ Review Draft Report Released” (2014) 18(9) Inhouse Counsel 147.

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A specified form of conduct

An act [3.80] The physical element of most offences will consist of the commission of an act or series

of acts by the accused. The main issue here relates to identifying the relevant act, and voluntariness and causation are relevant in this regard. The latter principles will be explained at [3.105] and [3.110].

An omission [3.85] The early common law imposed a duty on individuals to “keep the King’s peace”. On

the duties and powers of individuals to prevent a breach of the peace, see Chapter 13, [13.65]–[13.75]. Also, failure to report a felony amounted to the offence of misprision of felony. In the modern law, there is no legal obligation for persons to act so as to prevent harm or wrongdoing. There is no general duty to prevent a crime, 121 nor does an individual commit a crime or become a party to it simply because he or she could reasonably have prevented it. 122 An omission to act may give rise to criminal liability in situations where a duty arises at common law or is imposed by statute. 123 At common law, a duty to act may arise as a result of a family relationship between the parties 124 or as a result of a person undertaking to care for another who is unable to care for him or herself. 125 In R v Miller 126 Lord Diplock also referred to there being “no rational ground for excluding from conduct capable of giving rise to criminal liability, conduct which consists of failing to take measures that lie within one’s power to counteract a danger that one has oneself created”. 127 Statutory examples of the imposition of a duty to act include a duty to provide necessities 128 in certain jurisdictions and, in the Northern Territory, a duty to rescue or provide help to a person urgently in need of it and whose life may be endangered if it is not provided. 129

A state of affairs [3.90] There are certain offences which criminalise a state of affairs—or perhaps, more

precisely, a state of “being”, rather than conduct. Examples include being drunk and disorderly in a public place or offences relating to vagrancy. 130 While these are usually 121 122 123 124 125

126 127 128

129 130

R v Instan [1893] 1 QB 450; (1893) 17 Cox CC 602; R v Russell [1933] VLR 59. R v Coney (1882) 8 QBD 534; 15 Cox CC 46; R v Russell [1933] VLR 59; Wilcox v Jeffery [1951] 1 All ER 464. See further, Chapter 7, [7.45]. See, generally, JP McCutcheon, “Omissions and Criminal Liability” (1993–1995) 28–30 Irish Jurist 56. R v Russell [1933] VLR 59; R v Clarke and Wilton [1959] VR 645. R v Instan [1893] 1 QB 450; (1893) 17 Cox CC 602; Lee v The Queen (1917) 13 Cr App R 39 at 41 per Darling J; Gibbins v The Queen (1918) 13 Cr App R 134; R v Stone and Dobinson [1977] QB 354; Taktak (1988) 34 A Crim R 334. [1983] 2 AC 161. R v Miller [1983] 2 AC 161 at 176. Crimes Act 1900 (NSW), s 44; Criminal Code (NT), s 183; Criminal Code (Qld), s 285; Criminal Law Consolidation Act 1935 (SA), s 30; Criminal Code (Tas), s 144; Criminal Code (WA), s 262. Ben White, Lindy Willmott and John Allen have argued that there is a tension in the law between criminalising a failure to provide the necessaries of life under s 285 of the Criminal Code (Qld) and the right to refuse treatment: “Withholding and Withdrawing Life-Sustaining Treatment: Criminal Responsibility for Established Medical Practice?” (2010) 17 Journal of Law and Medicine 849. Criminal Code (NT), s 155. Omission is further discussed in Chapter 9, [9.85] and [9.95]. Public order offences and powers dealing with public intoxication are reviewed in Chapter 13, [13.130]ff. [3.90]

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summary offences, other status offences—such as being “knowingly concerned” in the importation of illicit drugs—carry the maximum penalty of life imprisonment: see further, Chapter 14, [14.110]. Conduct which occurs in specified circumstances [3.95] A specified form of conduct may not be a crime unless it is performed in certain

specified circumstances. For example, in general, the crime of rape or sexual assault is defined by intentional sexual penetration (conduct) which occurs without the other person’s consent (the specified circumstance). See Chapter 11 for a detailed analysis of the offences of rape and sexual assault. Results or consequences of conduct [3.100] The physical element of an offence may sometimes refer to the results or consequences

of conduct, rather than the conduct itself. For example, what is prohibited in the crime of murder is the death of the victim rather than the conduct which caused the death. It is irrelevant what conduct was undertaken which caused the death; providing the conduct of the accused results in the death of the victim, the physical element of murder will be established. Where the physical element of a crime refers to the results or consequences of conduct, it will be necessary for the prosecution to prove that the conduct caused the requisite consequences: see [3.110] “Causation”.

Voluntariness [3.105] The requisite physical element of a crime must be performed voluntarily, in the sense

that it must be willed. 131 There are three ways in which an act may be considered at law to be involuntary: • when the criminal act was accidental; • when the criminal act was caused by a reflex action; or • when the conduct was performed whilst the accused was in a state of impaired consciousness. In the first two examples of involuntary conduct, the act is not “willed” in that it is not an intended action. To say that an act was caused by accident means that it was caused without intention, recklessness or criminal negligence of the accused’s part. An act caused by a reflex action is an act founded on an external cause rather than intention, as noted by Barwick CJ and Windeyer J in Ryan v The Queen. 132 The latter expressed misgivings about the use of the phrase “reflex action” to denote involuntary conduct. Humphreys J in Kay v Butterworth suggested that a driver would not be responsible if he or she were attacked by a swarm of bees or wasps while driving and his or her car went out of control, causing the death of a passerby. 133 Because of the connection between willing an action and intending it, the traditional division between external or physical elements and mental or fault elements becomes blurred. 131

132 133

Criminal Code (ACT), s 15; Criminal Code (NT), ss 31, 43AF; Criminal Code (Qld), s 23; Criminal Code (Tas), s 13(1); Criminal Code (WA), ss 23A, 23B; R v Vickers [1957] 2 QB 664; [1957] 3 WLR 326; [1957] 2 All ER 741 at 672 (QB) per Lord Goddard CJ; R v Scott [1967] VR 276 at 288–289 per Gillard J; R v Haywood [1971] VR 755; R v Tait [1973] VR 151; R v Dodd (1974) 7 SASR 151; Woolmington v DPP [1935] AC 462 at 482 per Viscount Sankey LC; Ryan v The Queen (1967) 121 CLR 205. Ryan v The Queen (1967) 121 CLR 205 at 215 per Barwick CJ, at 245 per Windeyer J. Kay v Butterworth (1945) 61 TLR 452 at 453.

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The third example of involuntary conduct is the one that has been the most discussed in case law. Automatism is the term generally used to refer to conduct performed in a state of impaired consciousness. Automatism is discussed in detail in Chapter 4, [4.85], where the divergent legal and psychological conceptions of voluntary conduct are explored.

Causation [3.110] When the physical element of a crime requires the occurrence of specified results or consequences, the prosecution must prove that the conduct caused those results or consequences. Alan Norrie points out that legal causation “involves an unstable interface between individualistic and political considerations”. 134 Causation is of particular relevance to the crimes of murder and manslaughter in which it must be proved that the accused’s conduct caused the death of the victim. It is in the context of these crimes that the tests of causation have been developed. Causation is a question of fact for the jury, 135 and whilst the members of the jury must be instructed as to the legal requirements for causation, they are expected to apply their “common sense” in determining whether an accused’s conduct caused the death of a victim. Indeed, a common jury direction, approved by the High Court in Royall v The Queen, 136 follows this approach which was first set out by Burt CJ in Campbell v The Queen: “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 enquiry is to attribute legal responsibility in a criminal matter.” 137

In ordinary speech and common usage, the notion of causation is used loosely. In the criminal law, causation has a distinctive legal meaning and the courts have developed a number of tests in order to assess whether an accused’s conduct caused the requisite result or consequence. These may be broadly defined as: • the reasonable foreseeability test; • the substantial cause test; and • the natural consequence test. Each test has found favour with different courts at different times. The more modern cases, however, favour the substantial cause test, but it is not unusual for the courts to refer to these tests interchangeably. What appears clear, however, is that another test (the “but for” test of causation) is well and truly out of favour, being resoundingly rejected by the High Court in Arulthilakan v The Queen. 138 The tests, and any potential differences between them, become apparent only in cases where it is alleged that there was a novus actus interveniens; that is, an external event that severed the 134 135 136 137

138

A Norrie, Crime, Reason and History (London: Weidenfeld and Nicolson, 1993) p 152. R v Evans and Gardiner (No 2) [1976] VR 523 at 527; R v Pagett (1983) 76 Cr App R 279 at 290–291. (1991) 172 CLR 378. [1981] WAR 286 at 290. This statement by Burt CJ was approved by the High Court in Royall v The Queen (1991) 172 CLR 378 at 387 per Mason CJ, at 411–412 per Deane and Dawson JJ, at 423 per Toohey and Gaudron JJ. (2003) 203 ALR 259 at 268 per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ, at 273 per Kirby J; discussed in M Plaxton, “Case and Comment” (2004) 6(1) Criminal Law Journal 381. [3.110]

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causal link between the accused’s conduct and the prohibited harmful consequence. 139 A word of warning in relation to this area was sounded by McHugh J in Royall v The Queen, when he stated: “Judicial and academic efforts to achieve a coherent theory of common law causation have not met with significant success. Perhaps the nature of the subject matter when combined with the lawyer’s need to couple issues of factual causation with culpability make achievement of a coherent theory virtually impossible.” 140

Royall v The Queen shows that there is no consensus as to which test should be used. In that case, a majority (Mason CJ, Deane and Dawson JJ) favoured applying the natural consequences test. Toohey and Gaudron JJ showed the greatest fidelity to the substantial cause test, while Brennan and McHugh JJ, in separate judgments, favoured a reasonable foreseeability test. McHugh J also referred to the “but for” test as being “a useful tool in criminal law for determining whether a causal link existed between an accused’s act or omission and the relevant injury or damage”. 141 Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ referred to this passage in Arulthilakan v The Queen; 142 however, they rejected the “but for” test on the ground that it brought with it the danger of indicating that a negligible causal relationship will suffice. All of the tests used by the courts are objective in the sense that they are not based on what the accused subjectively intended or foresaw. This objective requirement may be difficult to apply, particularly in relation to the reasonable foreseeability test. 143 In obiter statements in Royall v The Queen, Mason CJ, Brennan and McHugh JJ blurred the distinction between causation and the fault element of a crime. Mason CJ stated: “[I]n some situations, the accused’s state of mind will be relevant to that issue [causation] as, for example, where there is evidence that the accused intended that injury should result in the same way in which it did and where, in the absence of evidence of intention, the facts would raise a doubt about causation.” 144

How can intention be relevant to causation? Suppose a person has an unreasonable phobia concerning spiders. The accused knows of this person’s phobia and intends to cause injury by showing the person a spider. Suppose the victim is so frightened that she or he jumps out of a window and is seriously hurt. This reaction may not be a natural consequence of exposure to spiders, but causation may be established because of the accused’s intention. Brennan and McHugh JJ, in their separate judgments, agreed that in some “unusual cases”, intention may

139

144

See, generally, K Arenson, “Causation in the Criminal Law: A Search for Doctrinal Consistency” (1996) 20 Criminal Law Journal 189; S Yeo, “Blamable Causation” (2000) 24(3) Criminal Law Journal 144; M Plaxton, “On Scarlet Fever and Falling Trees: Blamable Causation and Mens Rea” (2001) 25(2) Criminal Law Journal 59. (1991) 172 CLR 378 at 448. (1991) 172 CLR 378 at 440. (2003) 203 ALR 259 at 267–268. D Lanham, “Principles of Causation in Criminal Law” in I Freckelton and D Mendelson (eds), Causation in Law and Medicine (Hampshire: Ashgate Publishing Ltd, 2002) pp 225–226. (1991) 172 CLR 378 at 390 per Mason J.

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be relevant to causation. 145 Causation as an issue rarely arises in practice, and it would seem that cases that blur intention and causation are likely to remain in the realm of the hypothetical. 146

Causation and blame [3.115] For crimes of strict or absolute liability—such as pollution offences—where proof of fault is no longer in issue, the concept of causation performs an important role in allocating blame. 147 In these cases, the judicial attention to the accused’s blameworthiness in assessing causation would ensure that strict and absolute liability does not operate in an unfair or unjust manner.

The reasonable foreseeability test [3.120] The reasonable foreseeability test involves examining whether the consequences of

the accused’s conduct were reasonably foreseeable. It is generally cast as an objective test in the sense of considering what a reasonable person would have foreseen rather than an inquiry into the accused’s appreciation of the consequences of his or her conduct. 148 In Royall v The Queen, the High Court considered that legal causation and foreseeability were closely connected, but the majority stated that juries should not be directed in terms of foreseeability because of the risks of confusion in foreseeability as an objective standard and as a subjective state of mind. 149 For example, Deane and Dawson JJ stated: “On occasions foreseeability may play some part in a jury’s inquiry into the cause of death, but in directing a jury, it is, for practical purposes, desirable to keep causation and intent separate as far as possible and to avoid the introduction of foreseeability in relation to causation.” 150

The minority in Royall did, however, favour the use of a reasonable foreseeability test, which suggests that it may not have been completely laid to rest. 151 The substantial cause test [3.125] The substantial cause test was developed in the earlier cases on causation and, in

particular, by the Supreme Court of South Australia in R v Hallett. 152 In that case, the accused had attacked the victim on a beach, rendering the latter unconscious. The forensic evidence 145

146 147 148 149 150 151 152

“[A]s causation requires proof that the taking of a final fatal step by a victim was objectively reasonable (or proportionate) and was foreseen by an accused or was reasonably foreseeable, the facts tendered to prove a specific mental element may be relevant in some cases to the existence of facts tending to prove causation”: Royall v The Queen (1991) 172 CLR 378 at 400 per Brennan J. McHugh J, in favouring a reasonable foreseeability test, also blurred the distinction between causation and intention: “[A]n accused should not be held to be guilty unless his or her conduct induced the victim to take action which resulted in harm to him or her and that harm was either intended by the accused or was of a type which a reasonable person could have foreseen as a consequence of the accused’s conduct”: at 451. For an exploration of the role of subjective fault in proving causation, see S Yeo, “Blamable Causation” (2000) 24 Criminal Law Journal 144 at 152–156. See N Padfield, “Clean Water and Muddy Causation: Is Causation A Question of Law or Fact, or Just a Way of Allocating Blame?” [1995] Criminal Law Review 683. R v Hallett [1969] SASR 141 at 149. Royall v The Queen (1991) 172 CLR 378 at 390 per Mason CJ, at 412 per Deane and Dawson JJ, at 425 per Toohey and Gaudron JJ. Royall v The Queen (1991) 172 CLR 378 at 412. Royall v The Queen (1991) 172 CLR 378 at 399 per Brennan J, at 449 per McHugh J. [1969] SASR 141. [3.125]

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suggested that the victim died from drowning in shallow water. The accused claimed that he had not drowned the victim, but had simply left him in what he thought was a position of apparent safety with the victim’s ankles in a few inches of water. The accused was convicted of murder and appealed to the Supreme Court of South Australia which posed the test as follows: “The question to be asked is whether an act or series of acts (in exceptional cases an omission or series of omissions) consciously performed by the accused is or are so connected with the event that it or they must be regarded as having a sufficiently substantial causal effect which subsisted up to the happening of the event, without being spent or without being in the eyes of the law sufficiently interrupted by some other act or event.” 153

Sometimes, this test is referred to as the significant cause test, 154 the operating and substantial cause test 155 or, in some statutory provisions, the substantial contribution test. 156 In R v Carter, 157 a medical witness at trial seemed to make a distinction between a “significant” and a “substantial” cause of death. McPherson JA, with whom Williams JA and White J agreed, stated that the jury had been perplexed by this distinction. 158 It was better to talk about a substantial or significant cause of death and this was not a philosophical or scientific question, but one of “common sense” for the jury. The Supreme Court held in Hallett that the accused’s original blow which rendered the victim unconscious started the events which led to the victim drowning. It could not be said that the tide coming in broke the chain of causation. The accused’s conduct need not be the sole cause of death in relation to the crimes of murder and manslaughter. 159 Death may result from several causes, but all that must be proved is that the accused’s conduct was a substantial cause. The natural consequence test [3.130] The natural consequence test may apply to situations where the victim has

contributed to his or her own death by seeking to escape or attempting to avoid being attacked by the accused. The main case that sets out this test is that of Royall v The Queen. The victim died after falling from the bathroom window of a sixth-floor flat. The victim had previously been assaulted by the accused and the prosecution argued that the victim had either been forced from the window or had fallen from the window in retreating from an attack, or had jumped in order to escape from an attack. Mason CJ stated the test as follows: “[W]here the conduct of the accused induces in the victim a well-founded apprehension of physical harm such as to make it a natural consequence (or reasonable) that the victim would seek to escape and the victim is injured in the course of escaping, the injury is caused by the accused’s conduct.” 160

153 154

157 158 159 160

R v Hallett [1969] SASR 141 at 149. Royall v The Queen (1991) 172 CLR 378 at 398 per Brennan J, at 411 per Deane and Dawson JJ; R v Cheshire [1991] 3 All ER 670 at 677; R v Pagett (1983) 76 Cr App R 279. R v Evans & Gardiner (No 2) [1976] VR 523 at 529. Some statutory provisions adopt a “substantial contribution” test of causation in relation to specific offences resulting in death: see, for example, Criminal Code (Cth), ss 71.23(2), 115.9, 146.2, 272.2, 471.11(4), 474.15(4), 476.2(3); Crimes Act 1900 (NSW), s 308B(3); Criminal Code (ACT), ss 363B, 400, 412, 422, 700; Criminal Code (NT), ss 149C, 240, 276(2); Criminal Law Consolidation Act 1935 (SA), s 21; Crimes Act 1958 (Vic), ss 247A(4), 247J(3). (2003) 141 A Crim R 142. R v Carter (2003) 141 A Crim R 142 at 147–148. R v Pagett (1983) 76 Cr App R 279. Royall v The Queen (1991) 172 CLR 378 at 389.

200

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Mason CJ, Deane and Dawson JJ in Royall applied this “common sense” natural consequence test of causation. 161 However, as stated above, the other members of the court differed in the test of causation to be applied. This is explored further in the next section. Examples of novus actus interveniens [3.135] If a subsequent event renders the prohibited consequence no longer reasonably

foreseeable, a substantial cause or a natural consequence of the accused’s conduct, the courts have held that this amounts to a novus actus interveniens which breaks the chain of causation. Some courts have stressed that the intervening act must be of an unexpected or extraordinary nature. In R v Hallett, 162 the Supreme Court of South Australia held that the incoming tide was not unexpected or an event which would break the chain of causation as opposed to, for example, an extraordinary tidal wave. While Hallett’s case was concerned with acts of nature as possible intervening events, in general the courts have been asked to consider human acts as breaking the chain of causation. There are two kinds of novus actus interveniens that have been considered by the courts: • the acts of the victim; and • the acts of a third party.

The acts of the victim [3.140] The case law deals with three different types of acts committed by the victim that may

break the chain of causation: • seeking to escape violence; • failing to take medical advice; and • suicide.

Seeking to escape violence [3.145] Where a victim is killed while seeking to escape the violence of the accused, the

victim’s actions may break the chain of causation. In Royall v The Queen, 163 the High Court unanimously held that the victim’s actions of falling or jumping from the bathroom window of her sixth-floor flat to avoid an attack was not to be regarded as a novus actus interveniens. The members of the High Court, however, were divided over the test of causation to be applied in such circumstances. As stated above, Mason CJ, Deane and Dawson JJ in the majority applied a natural consequence test to the victim’s reaction in preference to a reasonable foreseeability test. There is a question as to whether or not the victim’s act of self-preservation must be reasonable. The majority of judges believed that it should be, but came to this conclusion via different reasoning. Brennan J stated that the victim’s act of self-preservation must be reasonable, having regard to the nature of the accused’s conduct and the fear that it was likely to have induced 164—that is, the victim’s attempt at self-preservation must be proportionate to that conduct. According to Deane and Dawson JJ, the victim’s attempt at self-preservation does not break the causal link if (a) the victim’s fear or apprehension is well-founded or reasonable in all the circumstances, and (b) the victim’s act of escape or self-preservation was 161 162 163 164

Royall v The Queen (1991) 172 CLR 378 at 389 per Mason CJ, at 410 per Deane and Dawson JJ. [1969] SASR 141. (1991) 172 CLR 378. Royall v The Queen (1991) 172 CLR 378 at 398. [3.145]

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the natural consequence of the accused’s behaviour. 165 Toohey and Gaudron JJ followed the substantial cause test that originated in Hallett. 166 They stated that a “jury may be told that if the victim’s reaction to the act of the defendant … was quite disproportionate to the act or was unreasonable, the chain of causation was broken”. Mason CJ and McHugh J, however, concluded that the victim’s act of self-preservation need not be reasonable. Mason CJ considered the authorities and held that there was no requirement that the steps taken to escape be reasonable. 167 McHugh J took the most radical approach to causation. 168 He recognised the need to clarify and rationalise the relevant principles and was concerned with achieving a coherent theory of causation in both the criminal and civil law. He applied the test of reasonable foreseeability and criticised the substantial cause test that he viewed as nothing more than a disguised “but for” test which is used in tort law. He stated that persons subjected to violence or the threat of violence do not always think rationally or act reasonably. The instinct of self-preservation often causes them to flee or to take action which, while avoiding the immediate danger, places them in greater peril. According to McHugh J, if an unreasonable refusal to take medical treatment does not operate as a novus actus interveniens (explored in the next section), then neither should the unreasonable conduct of a victim in escaping an attack. 169

Failing to take medical advice [3.150] There have been some cases where injuries sustained by a victim might not have

resulted in death except for the fact that he or she failed to take medical advice. In these cases, the courts have been reluctant to find that the victim’s actions break the chain of causation. For example, in R v Bingapore, 170 the accused had assaulted the victim, causing injuries to the head. The victim left the hospital after treatment, against medical advice. About six hours later, he returned to the hospital by ambulance needing urgent attention and died the next day. The Supreme Court of South Australia held that there had been no novus actus interveniens; there had only been the loss of a possible opportunity of avoiding death. Similarly, in R v Holland, 171 the accused assaulted the victim and injured one of the latter’s fingers. The victim rejected the advice of a surgeon to have the finger amputated. Two weeks later, the victim died of lockjaw. Maule J rejected the accused’s submission that the cause of death was not the wound inflicted, but the victim’s refusal to have the finger amputated. The tort law principle that assailants must take their victims as they find them may also be relevant here. In R v Blaue, the victim who had been stabbed by the accused was a Jehovah’s Witness and refused to have a blood transfusion which would probably have saved her life. The English Court of Appeal held that the victim’s refusal to have a transfusion did not break the chain of causation: “It has long been the policy of the law that those who use violence on other people must take their victims as they find them. This in our judgment means the whole man [or woman], not just the physical man [or woman]. It does not lie in the mouth of the assailant to say that his victim’s religious beliefs which inhibited him from accepting certain kinds of treatment were unreasonable. The 165 166 167 168 169 170 171

Royall v The Queen (1991) 172 CLR 378 at 412–413. Royall v The Queen (1991) 172 CLR 378 at 425. Royall v The Queen (1991) 172 CLR 378 at 390. Royall v The Queen (1991) 172 CLR 378 at 449. Royall v The Queen (1991) 172 CLR 378 at 450. (1975) 11 SASR 469. (1841) 2 M & Rob 351; 174 ER 313.

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question for decision is what caused her death. The answer is the stab wound. The fact that the victim refused to stop this end coming about did not break the causal connection between the act and death.” 172

Suicide [3.155] There have been some rare cases where the victim has committed suicide after being

assaulted. Two American cases again show a reluctance by the courts to see the victims’ acts as breaking the chain of causation. In People v Lewis, 173 the victim cut his own throat to hasten his death after sustaining fatal injuries from an assault by the accused. The court held that the victim’s actions did not amount to a novus actus interveniens. In Stephenson v State, 174 the accused brutally raped the victim, biting her all over the body. While being held captive, she took a large dose of mercury bichloride tablets. The accused refused to get medical help for her, keeping her in a hotel for some hours before dumping her on the doorstep of her home. She died a month later, partly from bichloride poisoning and perhaps partly because of an abscess caused by the bites. The jury issued a special verdict which found that the victim had taken the poison as a result of pain and shame, and convicted the accused of murder. The Supreme Court of Indiana upheld the conviction on the basis that the consumption of poison was not a novus actus interveniens.

Acts of a third party—medical treatment [3.160] The act of a third party may, in rare instances, break the chain of causation. The main

circumstance in which this will arise is where a victim receives medical treatment which may be an independent cause of death. However, the case of R v Pagett 175 refers to acts of a third party in a wider sense and stands for the principle that the act of a third party will only be considered a novus actus interveniens when it is a voluntary act, in the sense that it is “free, deliberate and informed”. 176 In Pagett, the accused shot at armed police while using his ex-girlfriend as a shield. The police returned his fire and, in the course of doing so, a police officer shot and killed the ex-girlfriend. The accused was convicted of manslaughter. On appeal, he argued that the victim’s death was caused by her being shot by the police officer and that this was an act of a third party which was a novus actus interveniens. The English Court of Appeal rejected this argument. The court held that, in determining whether or not a homicide may be attributed to those cases where the immediate cause of death was the act of another, the ordinary principles of causation apply. The court pointed out that the trial judge had erred in directing the jury that it was a matter of law (and, therefore, a matter for the judge) to determine whether the accused’s conduct caused the death. The trial judge should have merely directed the jury as to the relevant principles relating to causation, leaving it to the jury to determine whether the causal connection between the accused’s conduct and the death had been established. The court reviewed the relevant principles of causation and, in particular, those external factors that may operate to break the chain of causation. The court unusually made reference to the treatise on causation by Herbert Hart and Tony Honoré, Causation in the Law. After a comprehensive review of the authorities, Hart and Honoré concluded that the intervention of a third party will have the effect of breaking the chain of causation only where the intervention 172 173 174 175 176

R v Blaue [1975] 1 WLR 1411 at 1415. 124 Cal 551 (1899). 179 NE 633 (1933). (1983) 76 Cr App R 279. R v Pagett (1983) 76 Cr App R 279 at 289. [3.160]

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was “free, deliberate and informed”. 177 The court concluded that the police officer’s actions were not free and deliberate. The shooting was an act performed for the purpose of self-preservation and in performance of a legal duty: “[A] reasonable act of self-preservation, being of course itself an act caused by the accused’s own act, does not operate as a novus actus interveniens.” 178

The court held that the chain of causation was not broken between the victim’s death and the accused’s unlawful and dangerous acts of both firing at the police and holding the victim as a shield in front of him when the police might fire shots at him in self-defence. Arguably, this case may stretch the bounds of causation too far, since here the accused is said to be causing the death of the victim by the unintended actions of another. Clearly, the court’s generous approach to causation in this case was influenced by the underlying criminal recklessness of the accused, which had placed the victim in a position of acute danger. The case law in this area is mostly concerned with whether or not medical treatment given by a third party may break the chain of causation. It appears that it will only be in the most exceptional circumstances that medical treatment, even if given negligently, will be held to be a novus actus interveniens. R v Jordan 179 is one of the rare cases where negligent medical treatment has been found to break the chain of causation. In that case, the victim, after being stabbed by the accused, was admitted to hospital where the wound was stitched up. The victim died a week later. There was evidence called on appeal that death had not been caused by the stab wound but by the administration of an antibiotic, Terramycin, after the victim had shown an intolerance to it, and also by the intravenous introduction of abnormal quantities of liquid which led to the onset of broncho-pneumonia. There is some controversy as to what was decided by the English Court of Criminal Appeal in this case. The headnote reads that “death resulting from any normal treatment employed to deal with a felonious injury may be regarded as caused by the felonious injury, but the same principle does not apply where the treatment employed is abnormal”. 180 This summary in the headnote is not supported by the judgment itself. The Court of Criminal Appeal quashed the accused’s conviction and held that whether or not medical treatment was sufficient to break the chain of causation was a question of fact for the jury. The court was convinced that if the jury had heard this evidence, they “would have felt precluded from saying that they were satisfied that death was caused by the stab wound”. 181 The court thought that treatment which was “palpably wrong” could be regarded as a novus actus interveniens which could break the chain of causation. Subsequent cases, however, have stated that Jordan should be regarded as a case which was decided on its own special facts. 182 In R v Smith, 183 the victim—a soldier in the Gloucestershire Regiment—received two bayonet wounds in the course of a fight with a private soldier in the King’s Regiment. Unknown to anyone, one blow pierced the victim’s lung and caused a haemorrhage. The victim was dropped twice, by accident, while he was being carried to a medical station. An unsuccessful attempt was made at the station to give him 177 178 179 180 181 182

183

H Hart and A Honoré, Causation in the Law (2nd ed, Oxford: Clarendon Press, 1985) pp 326ff. R v Pagett (1983) 76 Cr App R 279 at 289. (1956) 40 Cr App R 152. R v Jordan (1956) 40 Cr App R 152 at 152. R v Jordan (1956) 40 Cr App R 152 at 158. In R v Malcharek; R v Steel [1981] 1 WLR 690 Lord Lane CJ stated (at 696): “In the view of this court, if a choice has to be made between the decision in R v Jordan and that in R v Smith, which we do not believe it does (R v Jordan being a very exceptional case), then the decision in R v Smith is to be preferred”. [1959] 2 QB 35.

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a saline transfusion. He was then given oxygen and artificial respiration. The victim died about two hours after the stabbing. There was evidence that the treatment given to the victim was “thoroughly bad” and that if the victim had received a blood transfusion, there was a 75% chance he might not have died. 184 The accused was convicted of murder and appealed on the basis that the “abnormal” medical treatment broke the chain of causation. The English Courts Martial Appeal Court dismissed the appeal. Lord Parker CJ stated: “It seems to the court that if at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating … [O]nly if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound.” 185

Smith’s case was referred to with approval in several Australian cases. 186 In the Victorian case R v Evans and Gardiner (No 2), 187 the victim was stabbed in the stomach by two fellow prisoners at Pentridge prison. A successful bowel resection operation was performed. The victim resumed an apparently healthy life, but died 11 months later. The immediate cause of death was a fibrous ring that caused a stricture in the small bowel at the site of the resection operation. There was medical evidence that the stricture was not an uncommon occurrence after a resection operation. There was also evidence that the victim’s condition should have been diagnosed and an operation performed to rectify it. Despite this evidence as to the immediate cause of death, the Full Court of the Supreme Court of Victoria upheld the two accused’s convictions for manslaughter. The decision in Evans and Gardiner is difficult to reconcile with the earlier English decision in Jordan. The Supreme Court in Evans and Gardiner took a broad view of causation, approaching the issue in the following way: “The failure of the medical practitioners to diagnose correctly the victim’s condition, however inept or unskilful, was not the cause of death … the real question for the jury was whether the blockage was due to the stabbing.” 188 (emphasis added)

In R v Cheshire, 189 the English Court of Appeal reiterated that only in the most extraordinary circumstances will medical treatment, however negligent, break the chain of causation. In Cheshire, the victim was shot by the accused in the leg and stomach. He was admitted to an intensive care unit where he developed respiratory problems and a tracheotomy tube was placed in his windpipe for four weeks to assist breathing. The victim suffered further chest infections and other complications and, more than two months after the shooting, he died in hospital of cardio-respiratory failure. This was because his windpipe had been obstructed due to a narrowing where the tracheotomy had been performed. At the accused’s trial for murder, evidence was given by a surgeon that the victim’s wounds no longer threatened his life at the time of death, and that the death was caused by the negligent failure of the medical staff to diagnose and treat his respiratory condition. The accused was convicted of murder and an appeal against conviction was dismissed. The Court of Appeal held that the victim’s respiratory problems were a direct consequence of the accused’s act which remained a significant cause of death, despite the evidence of medical negligence. Beldam LJ in delivering the judgment of the court stated: 184 185 186 187 188 189

R v Smith [1959] 2 QB 35 at 42. R v Smith [1959] 2 QB 35 at 42–43. R v Hallett [1969] SASR 141 at 150 and followed in R v Evans and Gardiner (No 2) [1976] VR 523. [1976] VR 523. R v Evans and Gardiner (No 2) [1976] VR 523 at 534. [1991] 1 WLR 844. [3.160]

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“Even though negligence in the treatment of the victim was the immediate cause of his death, the jury should not regard it as excluding the responsibility of the accused unless the negligent treatment was so independent of his acts, and in itself so potent in causing death that they regard the contribution made by his acts as insignificant.” 190

The cases since Jordan show a marked reluctance on the part of the courts to break the chain of causation, even where medical negligence is an immediate cause of death. It will only be in the most extraordinary cases involving gross negligence that medical treatment may be considered a novus actus interveniens. As a matter of legal policy, it seems that accused individuals must take both their victims and their healthcare systems as they find them!

Withdrawing life-support [3.165] Another aspect of medical treatment which needs consideration in this area is the withdrawal of life-support machines. In R v Malcherek; R v Steel, 191 the English Court of Appeal considered this issue in relation to two similar fact situations. In the first case, the accused stabbed his wife in the stomach. She received treatment in hospital and appeared to be recovering, but several days later, while still in hospital, she collapsed and, shortly afterwards, her heart stopped beating. After surgery was performed to remove a blood clot from the pulmonary artery and some 30 minutes had passed, her heart started beating again. The victim was put on a life-support system because of the danger that brain damage might have occurred during the time her heart had stopped beating. Tests confirmed that she had suffered irreversible brain damage and the life-support system was disconnected. The victim died shortly afterwards. In the second case, the victim suffered head injuries after being attacked by the accused. She was taken to hospital and put on a life-support system. Tests showed that her brain had ceased to function and, two days later, the life-support system was disconnected. The victim died shortly afterwards. At each trial for murder, the judge withdrew the issue of causation from the jury on the basis that the infliction of the original injuries was the substantial cause of death. Both accused were convicted and both appealed on the basis that the jury in each case should have been allowed to consider the issue of causation. The appeals were dismissed. The Court of Appeal held that where competent medical treatment involved placing a victim on a life-support system, the decision to disconnect that system could not break the chain of causation between the infliction of the original injury and the victim’s death. 192 Since there was no evidence in either case that the original injury had ceased to be a substantial cause of death, the issue of causation had been correctly withdrawn from the jury.

Fault Elements [3.170] Traditionally, the fault elements of crimes have been divided into subjective and,

occasionally, objective elements.

190 191 192

R v Cheshire [1991] 1 WLR 844 at 852. [1981] 2 All ER 422. R v Malcherek; R v Steel [1981] 2 All ER 422 at 429.

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Diagram 2: Fault Elements

Perspectives Subjective Versus Objective Fault [3.175] The subjective components of fault are interconnected. For example, in

Giorgianni v The Queen, Wilson, Deane and Dawson JJ referred to intention as being based on knowledge. 193 Where the fault element for a particular crime is subjective, the prosecution must prove beyond reasonable doubt that, at the time of the commission of the crime, the accused possessed the requisite state(s) of mind. This may often be a difficult task. In the absence of an admission or confession, it is impossible to know beyond reasonable doubt what the accused was thinking at the time of the commission of the crime. The law in this area is based upon a “deeply entrenched” approach to mental state attribution known as “folk psychology”. 194 This “involves interpreting someone as a perceiver with beliefs and desires which lead him [or her] to act in the world”. 195 What the trier of fact is being asked to do in assessing a person’s intention, knowledge or recklessness, is to see whether one of these mental states can be attributed to the person, taking into account his or her behaviour and experiences. This model of mental state attribution relates to our everyday interpretation of others’ behaviour in which we attribute to them mental states which: “[they] ought to have, in light of [their] environment, perceptual capacities, interests, and past experiences. Moreover, we expect that [they] will act as … rational agent[s].” 196

As leading legal philosopher, Peter Cane, points out in his thoughtful essay on fleeting intentions, the folk psychology model (while attracting legal academic criticism) is reflected in the judicial practice of directing juries to determine the question of intention in a common, rather than scientific or philosophical, sense. Cane proposes that this tendency

193 194 195 196

Giorgianni v The Queen (1985) 156 CLR 473 at 505. PM Churchland, Matter and Consciousness (Cambridge, Mass: MIT Press, 1988) p 59. P Smith and O Jones, The Philosophy of Mind (New York: Cambridge University Press, 1986) p 172. R Dresser, “Culpability and Other Minds” (1992) 2(1) Southern California Interdisciplinary Law Journal 41 at 78. [3.175]

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should not be viewed negatively, but rather simply reflects the normative role which the mental states play in the social practice of allocating responsibility and blame. 197 The difficulty of proving subjective intention or knowledge on the part of the accused was recognised by Kirby J in Peters v The Queen: “Absent a comprehensive and reliable confession, it is usually impossible for the prosecution actually to get into the mind of the accused and to demonstrate exactly what it finds was there at the time of the criminal act. Necessarily, therefore, intention must ordinarily be inferred from all of the evidence admitted at the trial. In practice this is not usually such a problem. But the search is not for an intention which the law objectively imputes to the accused. It is a search, by the process of inference from the evidence, to discover the intention which, subjectively, the accused actually had.” 198 (footnotes omitted)

Despite the emphasis on “subjective” intention, it has been accepted that, in the process of attributing a mental state to an accused, jurors will often resort to a consideration of what a reasonable person might have intended or known or believed in the circumstances. This practice has been accepted by the courts as being unavoidable. 199 In earlier times, judges directed juries that a person may be presumed to have intended the natural consequences of his or her actions. The idea of this type of fault element being purely “subjective” is therefore questionable. What the notion of subjectivity in this context really means is that the trier of fact must make an assessment of fault in relation to the particular accused, taking into account his or her behaviour, experiences and characteristics such as age, social and cultural background. The difficulty in proving intention, knowledge or recklessness beyond reasonable doubt is one factor in the rise of offences where the fault element is expressed as an objective one. Some crimes incorporate an element of negligence as the basis upon which criminal responsibility is assigned. Negligent behaviour is usually assessed by reference to an external standard such as the behaviour of the reasonable person. In the common law jurisdictions, there are also a growing number of offences of strict and absolute liability where the prosecution need not prove any fault element—the establishment of the requisite physical element of the crime will be sufficient for a conviction: see below, [3.235]. The courts have generally shown a preference for subjective fault elements in relation to serious crimes. 200 This preference may be related to the liberal philosophical justification for criminal punishment in terms of “free will”: see Chapter 1, [1.110]. Herbert Hart posited that the principle of criminal punishment should be restricted to those who have voluntarily broken the law. 201 This principle suggests that a person should be punished when he or she recognises the harmful aspect of his or her conduct or its consequences. In other words, the accused must intend, know or at least be aware of the risk (that is, be reckless) as to the particular harm occurring. Significantly, Hart’s theorising about the

197 198 199 200 201

P Cane, “Fleeting Mental States” (2000) 59(2) Cambridge Law Journal 273. (1998) 192 CLR 493 at 551. See Pemble v The Queen (1971) 124 CLR 107 at 120 per Barwick CJ. See, for example, DPP v Morgan [1976] AC 182, discussed in Chapter 11, [11.145]. HLA Hart, Punishment and Responsibility (2nd ed, Oxford: Oxford University Press, 2008).

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conditions of punishment and responsibility did not exclude the possibility of imposing criminal blame on the basis of negligence, though he expressed some reservation in cases where the accused, due to physical or mental infirmity, could not attain the standard of the reasonable person. 202 The principle that a person should not be punished without proof of fault is at the heart of the criminal law, and it helps explain the modern judicial reluctance to countenance “no-fault” liability in this area of the law. Intention [3.180] The fault element of most serious crimes is generally expressed as an intention to

bring about the requisite physical element of the offence. Intention, a word used daily in legal practice, has evaded precise legal definition and has occupied the minds of both lawyers and philosophers. 203 In relation to the physical element as a specified form of conduct or conduct that occurs in specified circumstances, intention refers to the accused deciding to perform the conduct. In this sense of intentional conduct, it is closely connected with the requirement that conduct be voluntary in that it must be willed or consciously performed. In relation to the physical element regarding the results or consequences of conduct, the prosecution must prove that the accused’s purpose was to bring about the results or consequences of the conduct. 204 Where an accused has this purpose, he or she acts intentionally even where, to that person’s knowledge, the chance of him or her causing the result are small. 205 If an accused does not have this purpose, he or she does not act intentionally, even though to his or her knowledge the chances of causing the result are high. In this circumstance, however, recklessness may be made out. The difference in intention as it relates to conduct and as it relates to consequences is sometimes referred to as a distinction between basic and specific intent. This is discussed further in Chapter 4, [4.165] and [4.180]. In He Kaw Teh v The Queen, Brennan J drew a number of distinctions in the use of the term “intention” in criminal offences: “General intent and specific intent are … distinct mental states. General or basic intent relates to the doing of the act involved in an offence; special or specific intent relates to the results caused by the act done. In statutory offences, general or basic intent is an intent to do an act of the character prescribed by the statute creating the offence; special or specific intent is an intent to cause the results to which the intent is expressed to relate.” 206

Where a person intends to commit the requisite physical element, he or she may still be convicted even where the victim is not the intended victim, 207 or where the crime takes effect in a manner which is unforeseen or unintended. 208 Intention is not the same as motive, which is generally referred to as an emotion prompting an act. In Hyam v DPP, Lord Hailsham stated: 202 203

204 205 206 207 208

HLA Hart, Punishment and Responsibility (2nd ed, Oxford: Oxford University Press, 2008) Ch 9, pp 187–188. N Naffine, R Owens and J Williams (eds), Intention in Law and Philosophy (Aldershot: Ashgate, 2001); reviewed by A Norrie, “Intention, Responsibility and the ’Hermeneutics of Suspicion’” (2002) 23 Adelaide Law Review 329. La Fontaine v The Queen (1976) 136 CLR 62; R v Crabbe (1985) 156 CLR 464; Boughey v The Queen (1986) 161 CLR 10; R v Demirian [1989] VR 97. Leonard v Morris (1975) 10 SASR 528 at 531–532. He Kaw Teh v The Queen (1985) 157 CLR 523 at 569–570. R v Saunders (1575) Fost 371; R v Latimer (1886) 17 QBD 359. R v Michael (1840) 2 Mood 121; 169 ER 48; R v Evans (No 2) [1976] VR 523. [3.180]

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“The motive for murder … may be jealousy, fear, hatred, desire for money, perverted lust, or even, as in so-called ‘mercy killings’, compassion or love. In this sense, motive is entirely distinct from intention or purpose. It is the emotion which gives rise to the intention and it is the latter and not the former which converts an actus reus into a criminal act.” 209

Motive, however, may be relevant in attributing intention to an accused. It may form part of the circumstantial evidence that may establish that the accused did have the requisite state of mind. In some areas, such as the meaning of “dishonesty” for property offences (see [12.80]ff) and in relation to terrorism offences (see [15.190]ff), motive does become legally relevant. While the legal suppression of motive keeps the political, social and cultural explanations of offending out of the courtroom at the trial stage, motive is highly relevant at sentencing.

Direct and oblique intention [3.185] Brennan J stated in He Kaw Teh v The Queen 210 that intention “connotes a decision

to bring about a situation so far as it is possible to do so—to bring about an act of a particular kind or a particular result”. 211 This is a narrow interpretation of intention, sometimes referred to as “direct intention”. The most popular legal synonym for this form of intention is “purpose”. However, the courts have also developed a broader form of intention, which is commonly referred to as “oblique intention”. 212 This term relates to the situation where the outcome of the accused’s conduct was not directly linked to his or her intention, but emerges obliquely as the consequence of that conduct. The following hypothetical is often used to illustrate the point. Imagine that a person intends to collect the insurance on a plane by placing a bomb on the plane, timed to explode in mid-air. 213 The person does not have the direct intention to cause the death of the crew, but is aware that these deaths are virtually certain to follow from his or her action. Should that person’s awareness or belief that particular consequences are virtually certain be regarded as intention for the purposes of the criminal law? The English courts have grappled with this issue for more than 20 years in the context of the law relating to murder. 214 The facts of Hyam v DPP 215 provide a good example of the problems associated with implying a broader approach to intention. The accused, Hyam, poured petrol through a neighbour’s letter box and lit it in order, she claimed, to frighten a woman in the house. In the ensuing fire, two of the woman’s daughters died. Hyam claimed that she did not intend to kill them. The House of Lords defined intention broadly to include not only direct intention but also foresight of a probable consequence. Lord Hailsham took the view that to intentionally and deliberately commit an act which exposes a victim to the risk of probable grievous bodily harm or death is “morally indistinguishable” from intending to 209 210 211 212

215

Hyam v DPP [1975] AC 55 at 73. (1985) 157 CLR 523. He Kaw Teh v The Queen (1985) 157 CLR 523 at 569. See G Williams, “Oblique Intention” (1987) 46 Cambridge Law Journal 417; A Norrie, “Oblique Intention and Legal Politics” [1989] Criminal Law Review 793; I Kugler, Direct and Oblique Intention in the Criminal Law (Aldershot: Ashgate, 2002). A Pedain, “Intention and the Terrorist Example” [2003] Criminal Law Review 579. For an excellent review of the legal development of oblique intention, see N Lacey, “A Clear Concept of Intention: Elusive or Illusory?” (1993) 56(5) Modern Law Review 621, and A Norrie, “After Woollin” [1999] Criminal Law Review 532. [1975] AC 55.

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kill another person. 216 That is on the facts, if the accused foresaw that death was a probable consequence of her actions, then she had the relevant intent to kill. The effect of Hyam’s case was to introduce into the criminal law a broad definition of “intention” which overlaps with recklessness. As we shall explore in Chapter 9 (at [9.115]–[9.125]), in Australia, recklessness in relation to murder is defined as foresight of a probable consequence, and in relation to other offences, as foresight of a possible consequence. 217 Subsequent decisions have attempted to restrict the level of foresight required for oblique intention. The House of Lords reconsidered the Hyam decision in R v Moloney. 218 The accused shot his stepfather with a shotgun at close range, but claimed that he had not possessed any intention to kill or hurt his victim. The accused (and the victim) had been drinking alcohol, but this was not raised in defence. The accused gave evidence that he had argued with his stepfather about the former wanting to leave the army. They then started talking about guns, and his stepfather claimed that he was faster than the accused at loading, drawing and shooting a gun. The accused went upstairs and brought down two shotguns, presumably so that they could compete with one another. The accused loaded his shotgun faster than the stepfather who said, “I didn’t think you’d got the guts, but if you have, pull the trigger”. 219 Without expressly departing from the decision in Hyam, the House of Lords held that the degree of foresight has to be “little short of overwhelming before it will suffice to establish the necessary intent”. 220 According to Lord Bridge, the meaning of “intention” is best left to the jury to decide: “The golden rule should be that, when directing the jury on the mental element necessary in a crime of specific intent, the judge should avoid any elaboration or paraphrase of what is meant by intent, and leave it to the jury’s good sense to decide whether the accused acted with the necessary intent, unless the judge is convinced that, on the facts and having regard to the way that the case has been presented to the jury in evidence and argument, some further explanation or elaboration is strictly necessary to avoid misunderstanding.” 221

It would seem that, as a result of this case, the scope for giving a direction on oblique intention has been restricted quite substantially. 222 In practice, fact situations giving rise to an analysis of oblique intention in Australia can usually fall within the concept of recklessness, at least for the purpose of the law of homicide: see Chapter 9, [9.115].

Transferred intention [3.190] The doctrine of transferred intention (or “transferred malice” as it was previously

termed) generally applies where an accused intends a particular crime and commits the requisite physical element of that crime, but with a different victim to the one they had in mind. In these circumstances, the accused is still held criminally responsible for his or her conduct. As Sir Matthew Hale wrote in the 18th century: 216 217 218 219 220 221 222

Hyam v DPP [1975] AC 55 at 78. R v Crabbe (1985) 156 CLR 464; see also Chapter 10, [10.55]. [1985] AC 905. R v Moloney [1985] AC 905 at 916. R v Moloney [1985] AC 905 at 925 per Lord Bridge. R v Moloney [1985] AC 905 at 926. See also R v Hancock; R v Shankland [1986] AC 455; R v Nedrick [1986] 3 All ER 1; R v Woollin [1998] 4 All ER 103. In the latter case, the House of Lords clarified that foresight of the consequence (death or grievous bodily harm) as a “virtual certainty” was required to establish intent for murder. [3.190]

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“[I]f an accused strike at one and missing him [or her] kills another, whom he [or she] did not intend, this is felony and homicide, and not casualty or per infortunium.” 223

Transferred intention is usually considered in the context of murder, but it may apply to other crimes such as malicious wounding. 224 In recent years, there has been an exploration of whether or not the doctrine of transferred intention can apply to the situation where a child dies following antenatal injuries caused when the accused assaulted the then pregnant mother. Up until 1997, it was generally accepted that an accused who inflicts the injuries to the foetus may be guilty of murder or manslaughter depending on what fault element existed at the time of the action. 225 However, in Attorney-General’s Reference (No 3 of 1994), 226 the House of Lords unanimously held that only manslaughter, and not murder, may be committed in these circumstances. In Kwok Chak Ming v The Queen, 227 the Hong Kong Court of Appeal held that the doctrine may be used in assessing an accused’s liability for the death of a child from an antenatal injury. In that case, the accused stabbed a woman, who was nine months pregnant, in the abdomen and chest. Her child died three days after its birth as a result of the injuries sustained. The accused was convicted of the manslaughter of the child. On appeal, he argued that homicide could not be committed where there was no malice aforethought against the child. This argument was rejected by the Court of Appeal on the basis that it was immaterial that the malice aforethought may have been directed against the mother rather than the child: “The principle that where A, intending to kill or seriously injure B, unintentionally but, in pursuit of that purpose, kills C may be indicted for the murder of C, applies we think with equal force even where C was only an embryo or foetus at the time when the malice was manifested and the injury inflicted but is subsequently born alive and dies of the injury.” 228

This same argument was accepted by the English Court of Appeal in Attorney-General’s Reference (No 3 of 1994). 229 In that case, “B” stabbed his pregnant girlfriend, “M”, several times. B knew that M was almost six months pregnant and that he was the father of the child. There were several stab wounds, one of which punctured M’s uterus and entered the abdomen of the foetus. M made a good recovery from her wounds, but about two weeks after the stabbing, she went into labour and gave birth to the child, “S”. The medical evidence was that the period of gestation was around six and a half months and S had only a 50% chance of survival. S survived for four months, spending her entire life in intensive care. The injuries to her abdomen had been repaired and the evidence was that she died from the failure of her lungs to perform adequately due to her premature birth. While S was still alive, B pleaded guilty to wounding with intent to cause M grievous bodily harm and was sentenced to four years’ imprisonment. Although he knew M was pregnant, there was no evidence that he intended to destroy or cause injury to the foetus. B was then charged with the murder of S. The trial judge accepted that there was evidence that B had 223 224 225 226 227 228 229

Sir Matthew Hale, The History of the Pleas of the Crown (London: Professional Books Ltd, 1971) (original publication, 1736) p 38. See R v Latimer (1886) 17 QBD 359. R v West (1848) 2 Cox CC 500; Kwok Ming v The Queen (No 1) [1963] HKLR 349; Martin (1995) 85 A Crim R 587. [1997] 3 WLR 421. [1963] HKLR 349. Kwok Chak Ming v The Queen [1963] HKLR 349 at 354. [1996] QB 581.

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caused the child’s death, but acquitted him on the basis that he could not be found guilty of murder or manslaughter because when the stab wound was inflicted, there was an absence of a human being who could be killed. The Attorney-General then made a reference on this point of law to the Court of Appeal under s 36(1) of the Criminal Justice Act 1972 (UK). The question before the Court of Appeal was whether B could be guilty of the murder or manslaughter of the child. The Court of Appeal answered this question in the affirmative. In delivering the judgment of the court, Lord Taylor of Gosforth CJ stated that “we can see no reason to hold that malice can only be transferred where the person to whom it is transferred was in existence at the time of the act causing death”. 230 This argument was rejected on further appeal to the House of Lords: Attorney-General’s Reference (No 3 of 1994). Lord Mustill analysed the origins of the doctrine of transferred intention and found that, while it could be retained “notwithstanding its lack of any sound intellectual basis”, it was not broad enough to encompass the facts before the court. 231 To find otherwise, he continued, would require a double “transfer” of intent: “first from the mother to the foetus and then from the foetus to the child as yet unborn. Then one would have to deploy the fiction (or at least the doctrine) which converts an intention to commit serious harm into the mens rea of murder. For me, this is too much.” 232

It is unclear whether Australian courts will follow the approach of the House of Lords in holding that transferred intention cannot be used to hold an accused guilty of the death of a child who has suffered antenatal injuries. In Martin, 233 Owen J held that a conviction for “unlawful killing” under the Criminal Code (WA) could arise out of similar circumstances to those in Attorney-General’s Reference (No 3 of 1994). An appeal against this finding was dismissed by the Full Court of the Supreme Court of Western Australia in Martin (No 2). 234 Interestingly, the doctrine of transferred intention was not considered in Martin’s case—it may be that because the law of homicide in Australia has developed in a different way to that of England, the doctrine will have limited relevance in this area. 235 Knowledge [3.195] An accused may be held criminally responsible if he or she acts with the knowledge

that a particular circumstance exists, or with the awareness that a particular consequence will result from the performance of the conduct. The requirement for the existence of knowledge or awareness relates to the physical element of the crime as conduct that occurs in specified circumstances, and the physical element as the results or consequences of conduct. An accused may claim a mistaken belief in order to show that he or she did not possess the requisite knowledge. For example, the crime of rape occurs where a person intentionally penetrates another without that person’s consent while being aware that the person is not consenting or might not be consenting: see Chapter 11, [11.50]. An accused may claim that although the victim was not in fact consenting, he honestly believed she was. In certain jurisdictions, this mistaken belief has the effect of negating the requirement that the accused be aware that the victim was not consenting. See further Chapter 11, [11.140]ff “Fault elements for rape and sexual assault”. 230 231 232 233 234 235

Attorney-General’s Reference (No 3 of 1994) [1996] QB 581 at 594. Attorney-General’s Reference (No 3 of 1994) [1997] 3 WLR 421 at 434. Attorney-General’s Reference (No 3 of 1994) [1997] 3 WLR 421 at 435. (1995) 85 A Crim R 587. (1996) 86 A Crim R 133. B McSherry, “Homicide and Antenatal Injury” (1998) 5 Journal of Law and Medicine 204. [3.195]

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Knowledge and the role of wilful blindness [3.200] In some cases, an accused has been deemed to possess the requisite knowledge for an

offence where he or she deliberately refrained from making inquiries or wilfully shut his or her eyes for fear that he or she may learn the truth. This is sometimes referred to as “wilful blindness”. 236 Courts in Australia have shown a reluctance to equate wilful blindness with actual knowledge. In Kural v The Queen, 237 the High Court had to determine the meaning of “intention to import a prohibited import” in the Customs Act 1901 (Cth). The majority held that this intention did not require actual knowledge of what was being imported—a belief falling short of actual knowledge could sustain an inference of intention. 238 However, the majority pointed out that wilful blindness was not an alternative fault element for this offence, it was simply evidence that a jury could use to infer intention. 239 In Pereira v DPP, 240 the High Court considered the offence of possession of a prohibited import in contravention of the Customs Act 1901 (Cth). The accused was delivered a package from Bombay containing cricket balls and a jewellery case that contained a quantity of cannabis resin inside them. The accused had taken delivery of the package but had not opened it when the police raided her premises. The trial judge directed the jury as to the importance of proving knowledge, and that wilful blindness is the equivalent of knowledge. The jury was directed that the accused could be considered wilfully blind if her suspicions about receiving a parcel from overseas were aroused and she refrained from making any inquiries for fear that she would learn the truth. The High Court made some observations about the role of knowledge and wilful blindness. They referred to the previous High Court decision in Kural and held that, in contrast to the offence of importing a prohibited import, the offence of the possession of a prohibited import did require actual knowledge. 241 The High Court then went on to state that knowledge means actual knowledge and not imputed knowledge. A state of mind less than actual knowledge is not sufficient. However, the accused’s suspicion coupled with a failure to inquire may be evidence from which a jury can infer knowledge. 242 This reflects Kirby J’s comments in Peters v The Queen that intention must be inferred from the evidence, the focus being on discovering the intention which subjectively the accused had, rather than searching for an intention which the law objectively imputes to the accused. 243 The majority decisions in Kural and Pereira relegate wilful blindness to an evidential role. This seems to echo the restriction of the concept of oblique intention. For both intention and knowledge, there appears to be a tension between the technical rules governing the meaning of “intention” and “knowledge”, and the broad practical application of those rules by the jury.

236 237 238 239

240 241 242 243

D Lanham, “Wilful Blindness and the Criminal Law” (1985) 9 Criminal Law Journal 261. (1987) 162 CLR 502. Kural v The Queen (1987) 162 CLR 502 at 505. Giorgianni v The Queen (1985) 156 CLR 473; Kural v The Queen (1987) 162 CLR 502; Saad v The Queen (1987) 29 A Crim R 20; R v Crabbe (1985) 156 CLR 464; Pereira v DPP (1988) 82 ALR 217; Zakaria (1992) 62 A Crim R 259 at 266 per Crockett and Marks JJ; R v Dykyj (1993) 29 NSWLR 672; McConnell (1993) 69 A Crim R 39. (1988) 82 ALR 217. Pereira v DPP (1988) 82 ALR 217 at 220. Pereira v DPP (1988) 82 ALR 217 at 220. Peters v The Queen (1998) 192 CLR 493 at 93.

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Recklessness [3.205] The term “recklessness” describes the state of mind of a person who, while

performing an act, is aware of the risk that a particular consequence is likely to result from that act. Awareness of a risk is, thus, the essence of recklessness. However, this fault element is also formulated as one of knowledge, foresight or realisation that a consequence is likely to result. The usual shorthand for recklessness is foresight, in the sense of a person having foresight of the likelihood of a consequence or of a circumstance occurring. An accused is said to be reckless where he or she engages in conduct (either an act or omission) in the knowledge that a consequence is a probable or possible result of his or her conduct. 244 For example, under the common law a person who foresees death or grievous bodily harm as a probable consequence of his or her conduct is said to be reckless as to those consequences and may be convicted of murder if death results. 245 An accused may also be said to be reckless where he or she is aware of the possible existence of certain circumstances but acts regardless of their existence. For example, an accused who intentionally sexually penetrates another without that person’s consent whilst being aware that the other person might not be consenting is said to be reckless as to the absence of consent and may be guilty of rape: see Chapter 11, [11.160]ff. Recklessness is treated on the same scale as intention because of the notion of blameworthiness. This was explained in R v Crabbe as follows: “The conduct of a person who does an act, knowing that death or grievous bodily harm is a probable consequence, can naturally be regarded for the purposes of the criminal law as just as blameworthy as the conduct of one who does an act intended to kill or do grievous bodily harm.” 246

Whether couched in terms of probability or possibility, what is important is that recklessness relates to a subjective attribution of awareness of risks that are substantial and the “real and not remote” chance that the consequences will occur. 247 As stated previously, there is a similarity or overlap between recklessness and oblique intention, the latter referring to foresight of a particular consequence as a virtual certainty. Wilful blindness may also overlap with recklessness, in that individuals may close their eyes to a fact after becoming aware of the risk of that fact existing. However, Glanville Williams in Textbook of Criminal Law states that courts must be careful and that judges should not equate wilful blindness with recklessness, because there is a danger of inferring knowledge if a person has been reckless: “If knowledge is judicially made to include wilful blindness, and if wilful blindness is judicially deemed to equal recklessness, the result is that a person who has no knowledge is judicially deemed to have knowledge if he [or she] is found to have been reckless.” 248

Recklessness and indifference [3.210] In some statutes, recklessness is formulated as “reckless indifference”. For example,

s 18(1)(a) of the Crimes Act 1900 (NSW) states that: 244

245 246 247 248

Pemble v The Queen (1971) 124 CLR 107; La Fontaine v The Queen (1976) 136 CLR 62; Nydam v The Queen [1977] VR 430; R v Crabbe (1985) 156 CLR 464; R v Demirian [1989] VR 97; Filmer v Barclay [1994] 2 VR 269. La Fontaine v The Queen (1976) 136 CLR 62; R v Crabbe (1985) 156 CLR 464. R v Crabbe (1985) 156 CLR 464 at 469. Boughey v The Queen (1986) 161 CLR 10 at 21 per Mason, Wilson and Deane JJ. G Williams, Textbook of Criminal Law (2nd ed, London: Stevens and Sons, 1983) p 125. [3.210]

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“Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life.”

The High Court in R v Crabbe stressed that under the common law definition of “recklessness”, it was not necessary that an accused’s knowledge of the probable consequences of his or her actions be accompanied by indifference: “It is not the offender’s indifference to the consequences of his [or her] act but his [or her] knowledge that those consequences will probably occur that is the relevant element.” 249

The members of the High Court in Crabbe expressly stated that their interpretation of recklessness only applied to the common law. Notwithstanding this rider, the Federal Court has held that murder under the equivalent s 18 of the Crimes Act 1900 (NSW) should follow the common law position. 250 The Federal Court held that although s 18 refers to “reckless indifference to human life”, it is immaterial whether or not the accused was indifferent to the risk. The sole question is whether or not the accused, at the relevant time, foresaw the probability of causing death. 251 This approach to indifference in recklessness reflects the criminal law’s stance on the irrelevance of motive. Requiring indifference on the part of the accused would be tantamount to regarding motive as relevant to liability. If indifference is not required, as the High Court suggests, then how do we protect conduct that involves the high risk of harm to others, but is done for a legitimate reason? In Crabbe, the High Court referred to the example of a doctor who performs a surgical operation that involves a high risk of death to the patient. 252 Every day, doctors are aware that death or serious injury is a likely consequence of medical procedures. How does the law protect doctors from liability under the criminal law when their procedures fail? There are two ways to protect individuals who take risks for legitimate reasons. The first way is to allow them to raise the defence of necessity. Necessity or justification is a complete defence and would render the doctor’s conduct lawful; however, the onus is on the accused to raise some evidence that the conduct was justified. The scope of the defence of necessity is further explored in Chapter 6, [6.145]. Alternatively, the second way to protect individuals who take risks for legitimate reasons is to adopt a narrower definition of “recklessness” by requiring an accused’s risk-taking to be unjustifiable, with the burden of proving this quality of the conduct falling on the prosecution. In deciding whether an act is unjustifiable, its social purpose or social utility is important. 253 Recklessness, in this sense, could be defined as substantial and unjustifiable risk-taking. Doctors regularly foresee the risk of harm occurring, but as the risk is one that is socially justifiable, doctors are not considered to be reckless. This notion of requiring an accused’s risk-taking to be unjustifiable was first set out in the American Law Institute’s Model Penal Code 254 and found favour with some Australian 249 250 251

252 253 254

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R v Crabbe (1985) 156 CLR 464 at 470. R v Brown (1987) 78 ALR 368. Note that, with respect to reckless indifference to human life, R v Crabbe (1985) 156 CLR 464 is not followed in New South Wales: “Section 18 [of the Crimes Act 1900 (NSW)] departs from the common law in that it requires foresight of the probability of death; foresight of the probability of grievous bodily harm is not enough”: Royall v The Queen (1991) 172 CLR 378 at 395 per Mason CJ. See, further, Chapter 9, [9.120]. R v Crabbe (1985) 156 CLR 464 at 470. C Howard, Criminal Law (4th ed, Sydney: Law Book Company, 1982) pp 54–55, 357–359. Proposed Official Draft, s 2.02(2)(c): “A person acts recklessly with respect to a material element of an offence when he [or she] consciously disregards a substantial and unjustifiable risk that the material element exists or [3.210]

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commentators. 255 The formulation also found favour with the Model Criminal Code Officers Committee (MCCOC) and was adopted by the Criminal Code (Cth). Section 5.4(1) of the Code defines “recklessness” with respect to the physical element (of circumstance or result) of an offence as follows: A person is reckless … if: (a) he or she is aware of a substantial risk that the circumstance exists or will exist; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

Section 5.4(3) states that the question of whether the taking of a risk is unjustifiable is one of fact. Section 5.4(4) also provides that proof of intention or knowledge will also suffice for offences that require proof of recklessness. This Code definition of “recklessness” has been applied in the Australian Capital Territory, Northern Territory and South Australia. 256 Recklessness and wilful blindness [3.215] We have already noted that the High Court has relegated the concept of wilful

blindness to an evidential role and is wary of equating knowledge with wilful blindness. The High Court in R v Crabbe was similarly critical of the direction used by the trial judge with regard to wilful blindness and foresight of a particular consequence being likely to result. 257 The High Court in Crabbe’s case made it clear that the test of recklessness for murder at common law is the knowledge that death or grievous bodily harm will probably result from one’s actions. 258 This demonstrates the concern of the courts to ensure that the law of murder reflects distinctions of moral culpability. The High Court believed that punishing an accused for murder when death or grievous bodily harm was foreseen as a mere possibility would spread the scope of murder too far. However, this strict definition of recklessness does not apply for less serious offences. For offences other than murder, the courts have not applied the high level of recklessness based on foresight of probable consequence. In R v Coleman, 259 the New South Wales Court of Criminal Appeal considered the definition of recklessness with regard to the offence of maliciously inflicting actual bodily harm with intent to have sexual intercourse. 260 The term “maliciously” has been interpreted as meaning that intention or recklessness is required for this offence. The accused had appealed against conviction on the ground that the trial judge had misdirected the jury on the meaning of “recklessness” by not applying the Crabbe formulation. The New South Wales Court of Criminal Appeal held that for all statutory offences other than murder, recklessness is defined as the foresight of possibility not probability. 261 As a result of these cases, it is most important that the trial judge direct the jury as to the appropriate meaning of “recklessness”. In La Fontaine v The Queen, Gibbs J made two

255 256 257 258 259 260 261

will result from his [or her] conduct. The risk must be of such a nature and degree that, considering the circumstances known to him [or her], its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation”. See B Fisse, Howard’s Criminal Law (5th ed, Sydney: Law Book Company, 1990) pp 486ff. Criminal Code (ACT), ss 20(1), (2); Criminal Code (NT), ss 43AK(1), (2); Criminal Law Consolidation Act 1935 (SA), s 21. R v Crabbe (1985) 156 CLR 464 at 470–471. R v Crabbe (1985) 156 CLR 464 at 469. (1990) 19 NSWLR 467. Crimes Act 1900 (NSW), s 61C (now repealed). R v Coleman (1990) 19 NSWLR 467 at 476. [3.215]

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suggestions regarding recklessness. First, that in murder trials, a direction concerning the issue of recklessness should “only be given where the facts of the case make it a practical issue”. 262 Secondly, Gibbs J suggested that the term “reckless” should not be used in the trial judge’s direction to the jury, as it is liable to confuse. Rather, “it is enough to tell [the jury] that it is only if the accused actually knows that his [or her] act will probably cause death or grievous bodily harm that he [or she] can be convicted of murder”. 263 There is a great deal of merit in this second recommendation. In R v Williams, the New South Wales Court of Criminal Appeal considered the meaning of “recklessness” for the purpose of assault. Badgery-Parker J stated: “The word reckless is a word well-known in ordinary speech and a person is said to be reckless who acts without regard to the possible consequences of the act in question. In most contexts the law gives to the word the same meaning that it has in ordinary speech.” 264

However, the ordinary “common sense” use of the term “recklessness” is much broader than its legal use. A common synomym for recklessness is carelessness, though carelessness is generally understood to be an objective rather than a subjective standard. Without proper guidance on the meaning of “recklessness”, a jury would be likely to depart from a subjective standard and apply an objective standard of carelessness instead. This would mean that the division between recklessness and negligence would break down.

Caldwell Recklessness [3.220] It is necessary to emphasise that the concept of recklessness in Australia differs from

that under English law. In the early 1980s, the English courts developed a dual meaning for “recklessness”. In Commissioner of Police of the Metropolis v Caldwell, 265 the House of Lords broadened the interpretation of recklessness in statutory offences to include an objective standard. This second meaning of “recklessness” is often described in shorthand as Caldwell recklessness. The case concerned the meaning of “recklessly” under the statutory offence of criminal damage. The objective definition was also applied to reckless driving. 266 The House of Lords held that in interpreting the word “recklessly”, the courts must apply the ordinary meaning and usage of the word. 267 The House of Lords also held that recklessness has two meanings. It embraces a subjective awareness of a risk: the person who is aware of a risk but goes ahead in any case. But it also embraces an objective aspect: the person who fails to appreciate the risk when the risk would be obvious to the reasonable person. 268 The House of Lords concluded that inadvertence to an obvious risk was as morally culpable as subjective risk-taking. The decision in Caldwell was viewed as heresy in many parts of the academic community, with claims that the decision violated the cardinal principle that criminal fault should be assessed subjectively rather than objectively. After two decades of sustained academic attack, 262 263 264 265 266 267 268

La Fontaine v The Queen (1976) 136 CLR 62 at at 77 per Gibbs J. La Fontaine v The Queen (1976) 136 CLR 62 at 77 per Gibbs J. R v Williams (1990) 50 A Crim R 213 at 222. [1982] AC 341. R v Lawrence [1982] AC 510. Commissioner of Police of the Metropolis v Caldwell [1982] AC 341 at 353 per Lord Diplock. Commissioner of Police of the Metropolis v Caldwell [1982] AC 341 at 354 per Lord Diplock.

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and various judicial decisions limiting its application, the House of Lords revisited Caldwell recklessness in R v G. 269 Reviewing this extensive critique, their Lordships reinstated the purely subjective test of recklessness for the offence of criminal damage. 270 Not all legal scholars have accepted that objective concepts should be banished from the lexicon of criminal fault, and there is an argument that, for some offences, culpable inadvertence is an appropriate fault standard. 271 In Australia, the Caldwell approach to recklessness continues to be influential with some judges—an objective form of inadvertent recklessness applies to the statutory offences of sexual and indecent assault in New South Wales: discussed in Chapter 11. Negligence [3.225] Negligence is measured on an objective standard and therefore does not sit well with

the concept of the fault element of a crime as a “guilty mind” or a subjective state of mind. It is therefore sometimes placed in a separate category to that of intention, knowledge or recklessness. However, negligence shares with these other fault elements the fact that it is an element that determines criminal responsibility. Negligence may apply to any form of the physical element. The objective standard in negligence is generally that of reasonableness, often expressed by the term “reasonable person”. Generally, the accused’s behaviour is assessed by reference to what a hypothetical reasonable person would have known, foreseen or done in the circumstances. Often it will be difficult to distinguish reckless from negligent conduct, purely on an external basis. The distinction lies in the accused’s subjective awareness of the danger that he or she is creating. 272 Because of the general reluctance to use objective standards in the criminal context, the courts have developed a narrow meaning for negligence and have been concerned with drawing a distinction between criminal and civil concepts of negligence. Simple lack of care that may constitute civil liability is normally not enough for a crime to be committed negligently. 273 The leading case on criminal negligence is that of Nydam v The Queen. In that case, the accused threw petrol over two women and ignited it. He claimed that he only intended to take his own life. The trial judge directed the jury as to murder and also manslaughter by criminal negligence. The accused was convicted of murder. On appeal, the Supreme Court of Victoria considered the trial judge’s direction on the meaning of criminal negligence for manslaughter. In Nydam, the court stated that for manslaughter by negligence to be made out, it must be proved that the accused’s behaviour involved:

269 270 271

272 273

[2004] 1 AC 1034. R v G [2004] 1 AC 1034 at 1057 per Lord Bingham, at 1063 per Lord Steyn. For a general discussion of Caldwell recklessness, see R Card, Card, Cross and Jones: Criminal Law (15th ed, London: LexisNexis Butterworths, 2001) pp 75–84. For a commentary on the House of Lords decision in R v G and a defence of objective standards of fault, see K Amirthalingam, “Caldwell Recklessness is Dead, Long Live Mens Rea’s Fecklessness” (2004) 67(3) Modern Law Review 491. Andrew Hemming has argued that there is a place for objective tests In Australia: “Reasserting the Place of Objective Tests in Criminal Responsibility: Ending the Supremacy of Subjective Tests” (2011) 13 University of Notre Dame Australia Law Review 69. Andrews v DPP [1937] AC 576 at 583; Mamote-Kulang of Tamagot v The Queen (1964) 111 CLR 62 at 79. Andrews v DPP [1937] AC 576; R v Adomako [1995] 1 AC 171; Callaghan v The Queen (1952) 87 CLR 115; Nydam v The Queen [1977] VR 430; R v Buttsworth [1983] 1 NSWLR 658. [3.225]

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“such a great falling short of the standard of care which a reasonable [person] would have exercised and which involved such a high degree of risk that death or grievous bodily harm would follow that the doing of the act merit[s] criminal punishment.” 274

Sometimes the term “gross negligence” is used in this regard. The court found that the weight of authority favoured an objective rather than a subjective test. The irrelevance of the accused’s state of mind to “gross negligence” was confirmed by the House of Lords in the context of manslaughter in R v Adomako. 275 In R v Lavender, 276 Hulme and Adams JJ of the Supreme Court of New South Wales Court of Criminal Appeal were prepared to import an element of subjectivity, in the respective forms of the realisation of the possibility of some physical harm or an appreciable risk of really serious bodily injury, into the notion of negligence. 277 However, the irrelevance of the accused’s state of mind in relation to involuntary manslaughter by criminal negligence was confirmed, and the New South Wales decision was reversed by the High Court in R v Lavender. 278 This is discussed further in Chapter 9, [9.170]. The Nydam test found favour with MCCOC and formed the basis of the Model Criminal Code definition of “negligence”, which has been adopted in the Codes of the Commonwealth, the Australian Capital Territory and Northern Territory. 279 Section 5.5 of the Criminal Code (Cth) provides: Section 5.5 Negligence A person is negligent with respect to a physical element of an offence if his or her conduct involves: (a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and (b) such a high risk that the physical element exists or will exist; that the conduct merits criminal punishment for the offence.

There remain some uncertainties about the scope of negligence. In relation to the common law, it appears that a contextual standard may apply with the degree of negligence differing according to the nature of the offence. If the offence is a serious one, it has been held that the departure from the standard of reasonableness must be greater than if the offence is minor. 280 The Model Criminal Code, by contrast, adopts a uniform definition across all offences, though the legislature is always free to apply a different (lower) standard for particular crimes. Furthermore, in R v Osip, 281 the Victorian Court of Appeal held that the “defence” of an honest and reasonable mistake is subsumed within the elements of gross negligence and is not a superadded matter to be disproved by the Crown. 282 Under the Model Criminal Code, a similar position applies, where the defence of mistake or ignorance of fact is available only in relation to offences which have fault elements other than negligence. 283 If the test for negligence is to be purely objective, there still remains a problem with formulating an objective standard that is not overly punitive. This problem bedevils objective 274 275 276 277 278 279 280 281 282 283

Nydam v The Queen [1977] VR 430 at 445. [1995] 1 AC 171. (2004) 41 MVR 492. S Yeo, “Case and Comment: Lavender” (2004) 28 Criminal Law Journal 307. (2005) 222 CLR 67. Criminal Code (Cth), s 5.5; Criminal Code (ACT), s 21; Criminal Code (NT), s 43AL. New South Wales Sugar Milling Co-op Ltd v Environmental Protection Agency (1992) 59 A Crim R 6. (2000) 2 VR 569. See RC Evans, “Case and Comment: Osip” (2002) 26(1) Criminal Law Journal 56. Criminal Code (Cth), s 9.1.

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standards in law generally. Who precisely is the “reasonable person”? The reasonable person standard assumes a community consensus about what constitutes reasonable and unreasonable conduct. By using this hypothetical person to judge the accused’s conduct, the law is ignoring important personal characteristics of the accused such as race and gender. The standard is, in fact, highly discretionary because judges or juries will be constructing the standard of judgment according to their own values. 284 In a recent essay, Kumaralingam Amirthalingam observes that the law’s focus on the hypothetical fictive person—the “anthropomorphism” of the reasonable person—generates unnecessary conflict and tension in the law, diverting the focus of attention away from the moral blameworthiness of the accused and the reasonableness of their behaviour. 285 Even if the “reasonable person” norm can be identified, the objective standard poses severe problems for those people who are unable to reach the standards of the reasonable person because of some inherent physical or intellectual disability. For example, in R v Stone and Dobinson, the two accused, a 67-year-old man and a 43-year-old woman, both of whom suffered from physical and intellectual disabilities, were convicted of manslaughter by negligent omission. The deceased, the male accused’s sister, had been living with the two accused who had assumed responsibility for her care. There was evidence that the sister suffered from anorexia nervosa and, when she died, she weighed only five stone and five pounds. She died from toxaemia and prolonged immobilisation. The victim was found dead in bed in “a scene of dreadful degradation”. 286 She was soaked in urine and excreta and had ulcers on her legs that contained maggots. Both accused had made some ineffectual attempts to obtain medical attention for the sister, and the female accused had given her food. On appeal, the English Court of Appeal held that both accused had undertaken a duty of care for the woman and that they had been negligent in failing to give her proper care. This case and the principles governing manslaughter by criminal negligence are discussed in Chapter 9. 287 The facts of this case show that the objective standard can operate harshly against those who have a physical or intellectual disability. The Victorian Law Reform Commission was critical of the decision in Stone and Dobinson and recognised that special circumstances may exist where an accused is incapable of meeting a reasonableness standard. 288 The Commission proposed that any person charged with manslaughter by criminal negligence should be afforded a defence if, by reason of some physical or intellectual disability, he or she could not reach the standard expected from non-disabled persons. The Model Criminal Code Officers Committee (MCCOC), whilst not dealing specifically with the situation of an accused with a physical or intellectual disability, has suggested that the objective standard for negligence does “require the reasonable person to step into the shoes of the [accused] at the relevant time”. 289 This seems to have also been the position of the Victorian Court of Appeal in R v Osip. Batt JA, with whom Phillips CJ and Tadgell JA agreed, 284 285

286 287 288 289

This is because the standard is expressed as “objective” and it is given the veneer of legitimacy: see S Bronitt and K Amirthalingam, “Cultural Blindness and the Criminal Law” (1996) 21(2) Alternative Law Journal 58. K Amirthalingam, “Culture, Crime and Culpability: Perspectives on the Defence of Provocation” in M Foblets and A Dundes-Renteln (eds), Multicultural Jurisprudence: Comparative Perspectives on the Cultural Defense (Oxford: Hart Publishing, 2009) p 49. R v Stone and Dobinson [1977] 1 QB 354 at 359. See [9.170]. Victorian Law Reform Commission, Homicide, Report No 40 (1990), p 116. Model Criminal Code Officers Committee, Chapter 5—Fatal Offences Against the Person, Discussion Paper (1998), p 153. [3.225]

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stated that “the test of gross negligence is objective albeit that it is determined in the context of the circumstances in which the accused is placed”. 290 The problems associated with the “reasonable” or “ordinary person” will be taken up when we consider provocation in Chapter 5 and self-defence in Chapter 6 (see respectively [5.10]ff “Provocation”; and [6.10]ff “Self-defence”). The controversy surrounding the adoption of objective fault standards based on the “reasonable man/person” in the law of rape is explored in Chapter 11, [11.165].

Philosophical perspectives Moral Blameworthiness [3.230] Legal philosophers have debated the role of consequences and outcome luck in

relation to moral blameworthiness and the criminal law. To illustrate the topic, consider the following examples provided by Andrew Ashworth: “A and B each shoot at their victims, A hits and kills his victim but B misses. In both cases, A and B share the identical intention. D and E each throw a punch at someone, both punches are identical but in D’s case the victim sustains a bruised cheek, while in E’s case, the victim falls and sustains brain damage and dies.” 291

Whether A, B, D and E are considered guilty depends on two competing philosophical models for attributing blame: the subjectivist and objectivist models. According to the “subjectivist” view, harmful consequences of actions are strictly matters that are outside the control of the individual. Thus, blame should be ascribed on the basis of an individual’s intention, not consequences, accompanying such actions. Blame should depend on individual choices made, and not merely on luck or chance. Applied to the criminal law, consequences are relevant to culpability only where they are intended or foreseen. 292 Subjectivism has implications for the following debates in the criminal law: • Inchoate liability: Since subjective intention is the touchstone of liability, it does not matter if the offence is incomplete. A person should be held liable for criminal acts through the law of attempt, conspiracy or incitement, even where the acts are physically (or even legally) impossible to complete. This is taken up in Chapter 8, [8.195]. • Participation in an offence: A subjectivist model would hold that a person who assists or encourages another person to commit crime should be liable irrespective of whether the commission of the perpetrator’s crime actually occurred. This is explored in Chapter 7, [7.115]. • Constructive liability: Imposing criminal liability for consequences that are unforeseen or beyond the control of the accused would be incompatible with subjectivism. Thus, 290 291 292

R v Osip (2000) 2 VR 569 at 606. A Ashworth, “Taking the Consequences” in S Shute, J Gardner and J Horder (eds), Action and Value in Criminal Law (Oxford: Clarendon Press, 1993). As Ashworth points out in relation to risk-taking “if the harm did occur, this may provide evidence which assists in assessing magnitude and probability, but resulting harm does not alter the intrinsic seriousness of the risk-taking”: “Taking the Consequences” in S Shute, J Gardner and J Horder (eds), Action and Value in Criminal Law (Oxford: Clarendon Press, 1993) p 123.

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constructive crimes, such as felony murder or battery manslaughter, should be abolished. Such constructive crimes are considered in Chapter 9, [9.130]. Objectivists, on the other hand, argue that “outcome luck” ought to play a role in ascribing moral and criminal responsibility. 293 In their view, consequences have a role to play in determining questions of moral and legal blame, even where the actor has no control over them. Theorists like Antony Duff have explored this question in the context of criminal attempts. Analytically, Duff doubts whether consequences are truly severable from the action giving rise to them. 294 He also points to empirical evidence that people commonly tend to judge conduct by reference to consequences. From a moral perspective, the different sentiments expressed here are significant. Consider, for example, an act of careless driving that results in a “near miss” and an identical act of driving that results in the death of a child. The capacity to express moral relief at the “near miss”—which is not available to the driver causing the death of a child—suggests that these situations ought to be morally differentiated. Moreover, imposing strict equivalence of blame would not mark the effect of consequences on the driver. The driver who caused a “near miss” is provided with an opportunity to avoid occurrence of death in the future, an opportunity that is not available to the person who caused death. Most importantly, not taking account of consequences undermines the censuring function of the criminal law. It would convey the message that, morally speaking, causing actual harm is unimportant and there is no distinction between completed and attempted offences. 295 As explored in Chapter 1, 296 moral philosophy plays a significant role in shaping the criminal law. The tendency is to view these different approaches as competing models or paradigms and as explanatory and normative blueprints for the criminal law. As Ashworth concludes in “Taking the Consequences”: “If a subjectivist were drafting a new criminal code, all these cases would be made to depend on the defendant’s culpability rather than the outcome in a particular case. The effect of this on the form of the criminal law would be quite radical, since many offences are currently defined by reference to the result.” 297

Subjectivists must concede that the criminal law does not perfectly correspond to their ideal. Nevertheless, the fundamental importance of subjectivist ideals can be preserved by viewing the plethora of strict and absolute liability offences as both “exceptional” and “trivial”. 298 To borrow Doreen McBarnet’s phrase, this disjunction may be viewed as yet another “false dichotomy” in our system of criminal law. 299 Rather than view objective 293 294

295 296 297 298 299

RA Duff, Intention, Agency and Criminal Liability (Oxford: Oxford University Press, 1990) pp 184–192. RA Duff, “Acting, Trying and Criminal Liability” in S Shute, J Gardner and J Horder (eds), Action and Value in Criminal Law (Oxford: Clarendon Press, 1993). “If actions and outcomes were not ascribed to us on the basis of our bodily movements and their mutual accompaniments, we could have no continuing history or character”: T Honoré, “Responsibility and Luck” (1988) 104 Law Quarterly Review 530 at 543, quoted in A Ashworth, “Taking the Consequences” in S Shute, J Gardner and J Horder (eds), Action and Value in Criminal Law (Oxford: Clarendon Press, 1993) p 112. RA Duff, Intention, Agency and Criminal Liability (Oxford: Oxford University Press, 1990) pp 184–192. See Chapter 1 in general. A Ashworth, “Taking the Consequences” in S Shute, J Gardner and J Horder (eds), Action and Value in Criminal Law (Oxford: Clarendon Press, 1993) p 124. See A Ashworth and J Horder, Principles of Criminal Law (7th ed, Oxford: Oxford University Press, 2013) pp 163-164. D McBarnet, “False Dichotomies in Criminal Justice Research” in J Baldwin and AK Bottomley, Criminal Justice: Selected Readings (London: Martin Robertson and Company, 1978). [3.230]

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forms of liability as a deviation from the “true” principle of fault, the better view is that there is a perpetual tension between subjective and objective accounts of culpability in the criminal law. Fault in the criminal law lies on a spectrum between these subjective and objective models. The apparent instability of fault in the criminal law may simply be a reflection of the diversity of functions performed by the modern criminal law. At certain historical moments, for some crimes, intentions and not consequences are all-important, and vice versa. Our conclusion may simply be that the meaning of “fault” in the criminal law is historically contingent, and that any quest for the “grand universal theory” to account for all forms of culpability may prove to be elusive, if not illusory.

STRICT LIABILITY AND ABSOLUTE LIABILITY OFFENCES [3.235] The courts have recognised a tripartite classification of statutory offences. An offence

may: • involve a subjective fault element (or mens rea); • be a strict liability offence where no fault element needs to be proved, but evidence of honest and reasonable mistake of fact is open to the accused; or • be an absolute liability offence where no fault element needs to be proved. 300 At common law and in the Code jurisdictions of Queensland, Western Australia and Tasmania, it will be a matter of statutory interpretation as to the category in which the offence falls. In the common law jurisdictions, there is a range of matters that may be considered in construing the classification of an offence. However, in the Code jurisdictions, the type of offence is constructed solely by the provisions of the section creating the offence and the relevant Criminal Code. 301 If the section creating the offence does not contain a fault element, the provisions of the relevant Code relating to criminal responsibility apply. 302 As we will explore below, the Model Criminal Code has adopted a different approach which requires the legislature (rather than the courts) to determine in advance whether or not criminal offences dispense with fault elements. Crimes of strict and absolute liability share two distinctive features. First, they are creatures of statute. Secondly, these offences—like those satisfied by criminal negligence—depart from the paradigm offences that require a subjective fault element. The prosecution need only prove that the accused committed the physical element of the crime. In many textbooks, these types of offences are marginalised to the periphery of the criminal law and described as exceptional and regulatory in nature. In reality, in terms of numbers of offences, the bulk of crimes do not require proof of a subjective fault element—see, for example, the extensive derogation from the subjective fault element in drug offences, some of which carry the penalty of life imprisonment: Chapter 14, [14.135]–[14.140].

The Presumption of Subjective Fault at Common Law [3.240] The preference for a subjective fault element manifests itself in a judicial reluctance to

dispose of this requirement too readily for statutory offences. During the 19th century, in the 300 301 302

Chiou Yaou Fa v Morris (1987) 46 NTR 1 at 19 per Asche J; He Kaw Teh v The Queen (1985) 157 CLR 523. Pregelj v Manison (1987) 31 A Crim R 383 at 393 per Nader J; Bennett v The Queen (1991) Tas R 11. Thomas v McEather [1920] St R Qd 166; (1920) 14 QJPR 160; Bennett v The Queen (1991) Tas R 11; Vallance v The Queen (1961) 108 CLR 56; McPherson v Cairn [1977] WAR 28; Defiance Enterprises Pty Ltd v Collector of Customs (Queensland) (1990) 96 ALR 697; GJ Coles and Co Ltd v Goldsworthy [1985] WAR 183; Brimblecombe v Duncan; Ex parte Duncan [1958] Qd R 8; (1958) 52 QJPR 83; Smith v Le Mura [1983] Qd R 535.

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face of a growing number of statutory crimes that did not require proof of a subjective fault element, the courts developed a common law presumption that all crimes (common law and statutory) involve some form of subjective fault element. 303 This presumption does not apply to the Code jurisdictions. 304

Perspectives The Model Criminal Code and Default Fault Elements [3.245] Reflecting the common law presumption in favour of subjective mental states, the

Model Criminal Code introduced a default provision that deals with offences which do not specify fault elements. Section 5.6 of the Criminal Code (Cth) provides: Section 5.6 Offences that do not specify fault elements (1) If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element. (2) If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.

Under s 5.4(4), recklessness can be established by proving intention, knowledge or recklessness. Equivalent provisions have been enacted in the Australian Capital Territory and Northern Territory. 305 Fault elements do not apply where the offence is an offence of strict or absolute liability. 306 Rather than leave the question of whether an offence is properly characterised as mens rea, or strict or absolute liability, to the courts to determine as a matter of interpretation in the course of a trial or appeal, the Model Criminal Code approach requires the legislature to give a priori consideration to an appropriate fault element at the time of enactment. There is, however, a danger that Parliament will succumb to the clamour of the law-and-order lobby and opt for strict or absolute liability to assist with the successful prosecution of serious crime—with the inevitable result that no-fault liability, rather than intention, becomes the norm rather than the exception! 307 This presumption of subjective fault may, however, be rebutted. Gibbs CJ pointed out in He Kaw Teh v The Queen that there are four factors which need to be assessed in

303 304

305 306 307

Sherras v De Rutzen [1895] 1 QB 918. Thomas v McEather [1920] St R Qd 166; Vallance v The Queen (1961) 108 CLR 56; Martin v The Queen [1963] Tas SR 103; Pregelj v Manison (1987) 31 A Crim R 383; TTS Pty Ltd v Griffiths (1991) 105 FLR 255; Hogan v Sawyer; Ex parte Sawyer [1992] 1 Qd R 32; (1990) 51 A Crim R 46; Bennett v The Queen (1991) Tas R 11; McMaster v The Queen (1994) 4 NTLR 92. Criminal Code (ACT), s 22; Criminal Code (NT), s 43AM. Criminal Code (Cth), ss 6.1 – 6.2. For an examination of this tendency in the field of terrorism offences, see S Bronitt and M Gani, “Criminal Codes in the 21st Century: The Paradox of the Liberal Promise” in B McSherry, A Norrie, and S Bronitt (eds), Regulating Deviance: The Redirection of Criminalisation and the Futures of Criminal Law (Oxford: Hart Publishing, 2009). [3.245]

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determining whether or not the presumption of subjective fault has been displaced: • the language of the section creating the offence; • the subject matter of the statute; • the consequences for the community of an offence; and • the potential consequences for an accused, if convicted. 308 The language of the section [3.250] If the section creating the offence uses words such as “knowingly”, “dishonestly” or

“wilfully”, 309 it will be difficult to show that the presumption of subjective fault has been displaced. 310 The absence of such words, however, does not immediately imply that an offence will be one of strict or absolute liability. 311 Other factors must also be taken into account. The subject matter of the statute [3.255] Brennan J states in He Kaw Teh v The Queen that the “purpose of the statute is the

surest guide of the legislature’s intention as to the mental state to be implied”. 312 If the subject matter of the statute is to regulate behaviour in some way, and the prohibited acts “are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty”, 313 then it is likely that the presumption of subjective fault will be displaced. One of the factors behind the rise of strict liability offences is that of administrative efficiency. The presumption of subjective fault has been held to have been displaced in offences dealing with adulterated food 314 and serving liquor to certain people, 315 perhaps partly because it would lead to delays in the court system if subjective fault had to be proved for such offences on each occasion. The consequences for the community [3.260] This requirement is generally weighed directly against the potential consequences for

the accused if convicted. Consequences to the community have outweighed those for the accused in the case of environmental damage 316 and speeding offences, 317 and the presumption of subjective fault has been displaced. Potential consequences for the accused [3.265] In general, the more serious the potential consequences for the accused on conviction,

the less likely it is that the presumption of subjective fault will be displaced. In He Kaw Teh v 308 309

315 316 317

He Kaw Teh v The Queen (1985) 157 CLR 523 at 528–530. Environment Protection Agency v N (1992) 26 NSWLR 352 provides an example of interpretation of a provision containing the word “wilfully”. He Kaw Teh v The Queen (1985) 157 CLR 523 at 594 per Dawson J. He Kaw Teh v The Queen (1985) 157 CLR 523 at 594 per Dawson J; Lim Chin Aik v The Queen [1963] AC 160 at 176 per Viscount Radcliffe, Lord Evershed and Lord Devlin; Von Lieven v Stewart (1990) 21 NSWLR 52; Davis v Bates (1986) 43 SASR 149 at 150 per King CJ. He Kaw Teh v The Queen (1985) 157 CLR 523 at 576. Sherras v De Rutzen [1895] 1 QB 918 at 922. Parker v Alder [1899] 1 QB 20 (adulterated milk); R v Woodrow (1846) 15 M & W 404; (adulterated tobacco). Cundy v Le Cocq (1884) 13 QBD 207 (serving liquor to a drunken person). Allen v United Carpet Mills Pty Ltd [1989] VR 323. Kearon v Grant [1991] 1 VR 321.

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310 311

312 313 314

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The Queen, a majority of the High Court held that the severe penal provisions relating to the importation and possession of heroin enforced the presumption that subjective fault was required and should not be displaced. If, on the other hand, the potential consequences to the accused involve a financial penalty, it is likely that the presumption of subjective fault will be displaced. The implications of He Kaw Teh for the fault elements of drug offences, and its impact on drug law enforcement, are explored further in Chapter 14, [14.140].

Strict Liability Versus Absolute Liability [3.270] The courts have been reluctant to categorise offences as those of absolute liability in

the absence of a clear legislative intention that this be the case. Street CJ stated in R v Wampfler that “[t]here is a discernible trend in modern authorities away from construing statutes as creating absolute liability and towards recognising statutes as falling within the middle or second category [strict liability]”. 318 This appears to be because the courts are uneasy about punishing an accused on the basis of the physical element alone. With strict liability offences, the accused’s state of mind and lack of culpability may be raised by way of the defence of honest and reasonable mistake of fact. This defence is explored below. The prosecution need not prove a fault element in relation to strict liability offences. However, an accused may raise an honest and reasonable belief in a state of facts which, if they existed, would render the act innocent. 319 Provided the accused satisfies the evidential burden in this regard, the prosecution must prove beyond reasonable doubt that the accused did not have an honest or reasonable belief as to the facts asserted. 320 The courts have interpreted certain offences dealing with the regulation of social or industrial conditions or protecting revenue as imposing absolute liability. For example, the offence of exceeding 60 kilometres per hour in a 60-kilometre zone, contrary to cl 1001(1)(c) of the Road Safety (Traffic) Regulations 1988 (Vic) (now revoked and replaced by Rule 21, Road Rules (Vic)), was held to be an absolute liability offence. 321 Causing pollution to waters under s 39(1) of the Environment Protection Act 1970 (Vic) has also been considered an absolute liability offence. 322 In these two cases, the courts were persuaded that the beneficial consequences for the community overrode any potential negative consequences to the accused. Other “regulatory” offences that have been interpreted as absolute liability offences include: • publishing a name in breach of a suppression order under ss 69 and 71 of the Evidence Act 1929 (SA); 323 • selling alcohol to underage persons in breach of s 114 of the Liquor Act 1982 (NSW); 324 • failing to obtain and maintain a policy of insurance for workers’ compensation purposes under s 155 of the Workers Compensation Act 1987 (NSW); 325

318 319 320 321 322 323 324 325

R v Wampfler (1987) 11 NSWLR 541 at 547. Proudman v Dayman (1941) 67 CLR 536. He Kaw Teh v The Queen (1985) 157 CLR 523. Kearon v Grant [1991] 1 VR 321. Allen v United Carpet Mills Pty Ltd [1989] VR 323. Nationwide News Pty Ltd v Bitter (1985) 38 SASR 390. Hicking v Laneyrie (1991) 21 NSWLR 730. Llandilo Staircases Pty Ltd v WorkCover Authority of New South Wales (Inspector Parsons) [2001] NSWIRComm 64. [3.270]

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• producing child pornography contrary to s 63(a) of the Criminal Law Consolidation Act 1935 (SA) and inciting a child to commit an indecent act contrary to s 63B(1)(a) of the Criminal Law Consolidation Act 1935 (SA). 326 The effect of absolute liability is to place a legal obligation of extreme (not merely reasonable) care on individuals who are engaged in potentially hazardous or harmful activity. Empirical research into the enforcement of environmental offences (explored in Chapter 1, [1.30]) suggests that regulatory agencies only prosecute where there is evidence that polluters have known (after repeated warnings) that they were breaching the law. Prosecution discretion and policies, operating in the shadow of the law, ameliorate the coercive and potentially unjust nature of “no fault” liability. Because of the harshness of holding a person criminally responsible in the absence of any fault on his or her part, the courts may take into account whether any purpose will be served by characterising the offence as one of absolute liability, which could be just as effectively served by characterising the offence as one of strict liability. 327 Absolute liability will not be inferred “merely in order to find a luckless victim”. 328

Mistake of Fact and Strict Liability Offences [3.275] In most instances, an honest and reasonable mistake of facts which, if they existed,

would render the accused’s conduct innocent, may afford an excuse to statutory offences that allow for criminal responsibility to be established upon proof of the physical element alone. This “defence” may be excluded expressly or by implication. If it is excluded, then the offence is said to be one of “absolute liability”. If it still operates, the offence is said to be one of “strict liability”. Absolute liability offences are still rare in Australia, and the defence of honest and reasonable mistake of fact is usually available to qualify the literal reading of the statutory offence. 329 The “defence” of honest and reasonable mistake of fact is sometimes referred to as the Proudman v Dayman defence, after the name of the High Court case that first developed it. In that case, the accused was charged with allowing an unlicensed person to drive a motor vehicle on the road contrary to s 30 of the former Road Traffic Act 1934–39 (SA). She was convicted and appealed to the Supreme Court of South Australia on the basis that she believed that the person who drove her car held a current licence and that she had reasonable grounds for that belief. Cleland J set aside the conviction. On further appeal to the Full Court, her conviction was restored. Special leave to appeal to the High Court was refused. In the course of considering the application for special leave, the court accepted that an honest and reasonable mistake may exculpate an accused, but held that this had not been made out on the facts. Dixon J stated: 326 327 328 329

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R v Clarke (2008) 100 SASR 363. Hawthorn (Department of Health) v Morcam Pty Ltd (1992) 29 NSWLR 120 at 129–130 per Hunt CJ; Roads and Traffic Authority (NSW) v Jara Transport Pty Ltd (2005) 44 MVR 394 at 400. Lim Chin Aik v The Queen [1963] AC 160 at 174 per Judicial Committee of the Privy Council. CTM v The Queen (2008) 247 ALR 1; Hawthorn (Department of Health) v Morcam Pty Ltd (1992) 29 NSWLR 120; Pollard v DPP (Cth) (1992) 28 NSWLR 659; R v Wampfler (1987) 11 NSWLR 541 at 547; Strathfield Municipal Council v Elvy (1992) 25 NSWLR 745; Given v CV Holland (Holdings) Pty Ltd (1977) 15 ALR 439; Von Lieven v Stewart (1990) 21 NSWLR 52; Binskin v Watson (1990) 48 A Crim R 33; Darwin Bakery Pty Ltd v Sully (1981) 36 ALR 371; Universal Telecasters (Qld) Ltd v Guthrie (1978) 18 ALR 531; Schmid v Keith Quinn Motor Co Pty Ltd (1987) 47 SASR 96; Cooper v ICI Australia Operations Pty Ltd (1987) 31 A Crim R 67; Browning v Barrett [1987] Tas R 122; Minogue v Briggs (1987) 79 ALR 525. [3.275]

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“It is one thing to deny that a necessary ingredient of the offence is positive knowledge of the fact that the driver holds no subsisting licence. It is another to say that an honest belief founded on reasonable grounds that he [or she] is licensed cannot exculpate a person who permits him [or her] to drive. As a general rule an honest and reasonable belief in a state of facts which, if they existed, could make the defendant’s act innocent affords an excuse for doing what would otherwise be an offence.” 330

The “defence” at common law therefore has a number of components: • there must be a mistake and not mere ignorance; • the mistake must be one of fact and not law; • the mistake must be honest and reasonable; and • the mistake must render the accused’s act innocent. Mistake of fact is expressly referred to in the Criminal Code jurisdictions. 331 In Tasmania and the Australian Capital Territory, the defence is similar to that at common law in that it is available only where no offence would have been committed on the facts as they were believed to be. In Queensland and Western Australia, the defence operates somewhat differently to that at common law and in Tasmania and the Australian Capital Territory. In these jurisdictions, the defence is somewhat broader in that it enables a mistaken belief to lead to a conviction for a lesser offence as well as to an acquittal. If an accused honestly and reasonably believed in facts that would render him or her guilty of a lesser offence or to a lower penalty, then he or she can be convicted of that lesser offence or given a lower penalty. The fourth component set out at common law—that the mistake must render the accused’s act “innocent”—thus does not apply in Queensland and Western Australia. The Criminal Code (NT) at present has a dual system, whereby s 32 follows the Queensland and Western Australian approach, but s 43AX (which currently applies to certain specified offences) echoes that of s 36 of the Criminal Code (ACT) and s 9.2 of the Criminal Code (Cth). The other components of the defence, however, are very similar in both Code and common law jurisdictions and we will examine these in turn. The Criminal Law Officers Committee, in its final report on General Principles of Criminal Responsibility, supported the adoption of the defence of honest and reasonable mistake of fact in relation to strict liability offences. 332 Accordingly, s 9.2 of the Criminal Code (Cth) states: (1) A person is not criminally responsible for an offence that has a physical element for which there is no fault element if: (a) at or before the time of the conduct constituting the physical element, the person considered whether or not facts existed, and is under a mistaken but reasonable belief about those facts; and (b) had those facts existed, the conduct would not have constituted an offence. (2) A person may be regarded as having considered whether or not facts existed if: (a) he or she had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and (b) he or she honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.

330 331 332

Proudman v Dayman (1941) 67 CLR 536 at 540. Criminal Code (ACT), s 36; Criminal Code (NT), ss 32, 43AN, 43AX; Criminal Code (Qld), s 24; Criminal Code (Tas), s 14; Criminal Code (WA), s 24. Criminal Law Officers Committee, General Principles of Criminal Responsibility, Final Report (1992), p 55. [3.275]

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Mistake rather than ignorance [3.280] In all jurisdictions, there is a distinction made between a positive act of making a

mistake and simply not thinking about the matter at all. 333 In Proudman v Dayman, 334 the High Court refused the accused leave to appeal on the basis that she had not made a mistake, she had simply not adverted to the question as to whether or not the driver was licensed. A mistake can therefore only be made where there is a positive or affirmative belief present. 335 A positive belief is more than a mere absence of knowledge or ignorance. The accused must have turned his or her mind to the relevant facts. 336 For example, in Green v Sergeant, the accused was charged with killing native game on a proclaimed sanctuary. He claimed that he did not know that the area was a sanctuary. It was held by Martin J that there was no defence available because: “his ignorance of the nature of the area in which he was engaged does not necessarily mean that he had an honest belief in a state of facts which, if they existed, would make his action innocent … He really had no belief on the subject, for it never entered his head what was the nature of the property where he was.” 337

Inadvertence will, therefore, not amount to a mistake. 338 The belief must also relate to the elements of the particular offence. 339 In practice, however, there is reason to believe that the courts will take a flexible approach to the distinction between not turning one’s mind to the facts and making a mistake. In Mayer v Marchant, 340 the accused was the owner of a tanker that carried a load of distillate. The tanker was loaded and driven by the accused’s employee. The distillate was of an unusually high density, and the accused and his employee were both unaware of this. The tanker was found to be overloaded by one ton and the accused was charged with being the owner of an overloaded vehicle contrary to the then ss 144 and 146 of the Road Traffic Act 1961 (SA). Eighteen months previously, the accused had made a number of weighbridge checks of different samples of distillate to work out that 6,400 gallons was an appropriate limit. This amount of distillate would produce weights at or near the statutory limit and not more than two or three hundredweight in excess. The magistrate acquitted the accused of the charge and the prosecution then appealed to the Supreme Court of South Australia. A majority of the Supreme Court agreed that the accused should be acquitted, but on the basis that the appropriate defence was that of an act of a stranger. 341 In relation to the defence of honest and reasonable mistake of fact, the court considered that it was not necessary to show that the accused had thought about whether or not the particular load in question was overweight. The accused’s ignorance of the unusually high density of the distillate was 333

334 335

336 337 338 339 340 341

State Rail Authority (NSW) v Hunter Water Board (1992) 28 NSWLR 721 at 724–726 per Gleeson CJ: Australian Iron and Steel Pty Ltd v Environment Protection Authority (1992) 29 NSWLR 497 at 507–513 per Abadee J; Roads and Traffic Authority of New South Wales v O’Reilly (2009) 52 MVR 243. (1941) 67 CLR 536. State Rail Authority (NSW) v Hunter Water Board (1992) 28 NSWLR 721; Von Lieven v Stewart (1990) 21 NSWLR 52 at 66–67; Bergin v Stack (1953) 88 CLR 248 at 261 per Fullagar J; Maher v Musson (1934) 52 CLR 100. Gherashe v Boase [1959] VR 1; Bergin v Stack (1953) 88 CLR 248. Green v Sergeant [1951] VR 500 at 504–505. Von Lieven v Stewart (1990) 21 NSWLR 52 at 66 per Handley JA; State Rail Authority (NSW) v Hunter District Water Board (1992) 65 A Crim R 101. State Rail Authority (NSW) v Hunter Water Board (1992) 28 NSWLR 721. (1973) 5 SASR 567. Mayer v Marchant (1973) 5 SASR 567 at 590.

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irrelevant. Rather, the question concerned whether or not the accused had a general belief that a certain number of gallons of distillate would produce a load of a certain weight and whether this was an honest and reasonable belief. 342 Thus, the Supreme Court was prepared to look at whether a general mistake had been made, rather than assessing the accused’s ignorance of the actual weight of the load. This suggests that courts may take a rather flexible approach to the distinction between ignorance and mistake. Mistake of fact [3.285] The mistake at common law must be one of fact and not law. 343 Under s 14 of the

Criminal Code (Tas), the mistake must relate to a “state of facts”. Similarly, under s 36 of the Criminal Code (ACT) and s 43AX of the Criminal Code (NT), the mistake must relate to “facts”, whereas in the other Code jurisdictions, the words “state of things” is used. 344 These words have been interpreted as meaning a belief in relation to present facts, rather than future events or consequences. 345 It is often difficult to make a distinction between fact and law as there are no clear tests for determining the difference between the two. Glanville Williams in Criminal Law: The General Part stated that: “Generally speaking a fact is something perceptible by the senses, while law is an idea in the minds of [individuals] … the definition of a fact as something perceptible by the senses needs qualification in one respect. A state of mind is also a fact, though not directly perceptible by the senses.” 346

Thus, questions concerning, for example, the speed at which a car was travelling, or whether the accused stabbed the victim, can be considered questions of fact because the answers can be perceived by the senses. In Australian Fisheries Management Authority v Mei Ying Su, 347 the Federal Court held that the master of a foreign fishing boat had made a mistake of fact regarding the relative position of his boat—he had mistakenly believed that a red line on the boat’s global positioning system unit represented the Australian fishing zone. In comparison, questions concerning the effect of a statutory provision, the elements of an offence, or whether a person or thing falls within a statutory description, are said to be matters of law. 348 If there is some mixture between the two—that is, “a mistake as to the existence of a compound event consisting of law and fact”—the mistake will generally be treated as one of fact. 349 Thus, if a mistaken belief as to the law is flawed by an earlier mistake as to a relevant and important fact, the mistake will be taken to be one of fact. 350 342 343

344 345 346 347 348 349

350

Mayer v Marchant (1973) 5 SASR 567 at 588. He Kaw Teh v The Queen (1985) 157 CLR 523; Iannella v French (1968) 119 CLR 84 at 114–115 per Windeyer J; Strathfield Municipal Council v Elvy (1992) 25 NSWLR 745; Von Lieven v Stewart (1990) 21 NSWLR 52; Griffin v Marsh (1994) 34 NSWLR 104; State Rail Authority v Hunter Water Board (1992) 28 NSWLR 721. Criminal Code (NT), s 32; Criminal Code (Qld), s 24; Criminal Code (WA), s 24. R v Gould and Barnes [1960] Qd R 283; R v McCullough [1982] Tas R 43. G Williams, Criminal Law: The General Part (2nd ed, London: Stevens and Sons, 1961) p 287. (2009) 255 ALR 454. Iannella v French (1968) 119 CLR 84 at 114 per Windeyer J. R v Thomas (1937) 59 CLR 279 at 306 per Dixon J; Iannella v French (1968) 119 CLR 84 at 115 per Windeyer J; Power v Huffa (1976) 14 SASR 337 at 344–345 per Bray CJ, at 355 per Zelling J, at 356 per Jacobs J. Griffin v Marsh (1994) 34 NSWLR 104 at 118 per Smart J. [3.285]

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For example, in Thomas v The Queen, 351 the accused was convicted of bigamy. The High Court allowed an appeal and quashed his conviction on the basis that there had been an honest and reasonable mistake of fact. The accused argued that he had believed that he was an unmarried man—and therefore free to marry—because of a mistaken belief that his former marriage was void. The accused thought that his first wife was not validly divorced from her first husband, because of an erroneous belief that there had not been a “decree absolute” or final order made. This complex mixture of mistaken beliefs was treated as a compound event consisting of law and fact and, therefore, ultimately one of fact which could provide a defence. A mistake of law has been held to occur where the accused made a mistake as to the legal effect or legal significance of facts known to him or her, 352 and where the accused mistakenly believed that the act in question was lawful because it was unregulated or because the requirements of law had been satisfied. 353 In Roads and Traffic Authority of New South Wales v O’Reilly, 354 Schmidt AJ held that a mistaken belief as to the applicable speed limit was a mistake of law. Once all the facts are known, incorrect legal advice in relation to them has been taken to be a mistake of law. 355 The status of a mistake of law is examined below at [3.315]. Honest and reasonable mistake [3.290] The mistake made by the accused must not only be honestly held, it must also be

based upon reasonable grounds. 356 An honest belief is simply one that is held in fact. 357 Although the qualification “honest” or “genuine” is logically redundant, it draws the jury’s attention to the need to scrutinise claims of mistaken belief carefully. This function is further explored in the context of rape cases in Chapter 11, “Restricting the mistaken belief in consent defence”, [11.150]. A belief based on reasonable grounds is one that is based upon the accused’s “appreciation of primary objective fact that is in reason capable of sustaining the belief”. 358 A mistake made carelessly is not a reasonable one. 359 In Australian Fisheries Management Authority v Mei Ying Su, 360 the Federal Court accepted that s 9.2 of the Criminal Code (Cth) requires the accused’s belief to be objectively reasonable and that this may be “assessed by reference to the subjective circumstances in which the accused was placed, including the accused’s personal attributes and the information available to him or her at the time”. 361

351 352

359 360 361

(1937) 59 CLR 279. Pollard v DPP (Cth) (1992) 28 NSWLR 659 at 678 per Abadee J; Strathfield Municipal Council v Elvy (1992) 25 NSWLR 745; Khammash v Rowbottom (1989) 51 SASR 172; Griffin v Marsh (1994) 34 NSWLR 104. Von Lieven v Stewart (1990) 21 NSWLR 52. (2009) 52 MVR 243. Pollard v DPP (Cth) (1992) 28 NSWLR 659; Crichton v Victorian Dairies Ltd [1965] VR 49. Proudman v Dayman (1941) 67 CLR 536; He Kaw Teh v The Queen (1985) 157 CLR 523; Gherashe v Boase [1959] VR 1; Handmer v Taylor [1971] VR 308. GJ Coles and Co Ltd v Goldsworthy [1985] WAR 183 at 187 per Burt CJ. GJ Coles and Co Ltd v Goldsworthy [1985] WAR 183 at 187–188 per Burt CJ; Gibbon v Fitzmaurice [1986] Tas R 137 at 154 per Nettlefold J. GJ Coles and Co Ltd v Goldsworthy [1985] WAR 183 at 188 per Burt CJ. (2009) 255 ALR 454. Australian Fisheries Management Authority v Mei Ying Su (2009) 255 ALR 454 at 462.

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353 354 355 356 357 358

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Mistake must render the accused’s act innocent [3.295] At common law and in Tasmania, the Northern Territory and the Australian Capital

Territory, an honest and reasonable but mistaken belief in a set of facts will only exculpate an accused if the truth of the belief would mean that no offence was being committed, making the accused’s act innocent. 362 This reference to “innocent” in this regard has been taken to mean “not a breach of the criminal law”. 363 For example, in Bergin v Stack 364 the accused, who was employed by a club, was charged with selling liquor without a licence. The accused had not inquired whether the club had a liquor licence, but simply assumed that it did. In any case, the accused sold the alcohol after 6 pm when no club could be licensed to sell liquor. It was held that the accused’s mistake—if it could be called that—would not have rendered the act innocent as selling liquor after 6 pm was still a breach of the criminal law. Burden of proof [3.300] The prosecution bears the legal burden of disproving a mistake of fact. 365 The

defence bears the evidential burden of providing evidence of an exculpatory mistake of fact or pointing to evidence in the prosecution’s case from which such a mistake may be inferred. 366 Earlier cases seemed to suggest a higher burden be placed on the defence, but this is no longer correct. 367 Dawson J stated in He Kaw Teh v The Queen: “There is … no justification since Woolmington v DPP [[1935] AC 462] for regarding the defence of honest and reasonable mistake as placing any special onus upon an accused who relies upon it. No doubt the burden of providing the necessary foundation in evidence will in most cases fall upon the accused. But it is not inconceivable that during the case for the prosecution sufficient evidence may be elicited by way of cross-examination or otherwise to establish honest and reasonable mistake or to cast sufficient doubt upon the prosecution case to entitle the accused to an acquittal. The governing principle must be that which applies generally in the criminal law. There is no onus upon the accused to prove honest and reasonable mistake upon the balance of probabilities.” 368

Criminal negligence and due diligence [3.305] Occasionally, there are statements to the effect that there may be scope for developing

a defence of due diligence at common law, independent of a defence of honest and reasonable mistake. 369 However, such a defence does not currently exist at common law, although statutory provisions may recognise such a defence. 370 362 363 364 365 366 367 368 369 370

Proudman v Dayman (1941) 67 CLR 536 at 540 per Dixon J; Bergin v Stack (1953) 88 CLR 248 at 262 per Fullagar J; Criminal Code (Tas), s 14; Criminal Code (NT), s 43AX; Criminal Code (ACT), s 36. Bergin v Stack (1953) 88 CLR 248; R v Reynhoudt (1962) 107 CLR 381 at 389 per Kitto J; R v Iannazzone [1983] 1 VR 649 at 655 per Brooking J. (1953) 88 CLR 248. Proudman v Dayman (1941) 67 CLR 536. He Kaw Teh v The Queen (1985) 157 CLR 523. CTM v The Queen (2008) 247 ALR 1 at 13. He Kaw Teh v The Queen (1985) 157 CLR 523 at 592–593. See, for example, Australian Iron and Steel Pty Ltd v Environment Protection Authority (1992) 29 NSWLR 497 at 498–499 per Badgery-Parker J. Australian Iron and Steel Pty Ltd v Environment Protection Authority (1992) 29 NSWLR 497 at 510 per Badgery-Parker J. [3.305]

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It appears that the defence of honest and reasonable mistake of fact is not equivalent to an absence of negligence or the presence of due diligence. 371 This is because taking reasonable steps to avoid an event is not the same as making a reasonable mistake. One case that suggests otherwise is that of Allen v United Carpet Mills Pty Ltd, a decision of a single judge of the Supreme Court of Victoria. In that case, Nathan J was prepared to accept that a defence of taking all reasonable care and diligence could be subsumed within the concept of honest and reasonable mistake and should be available to offences of strict liability. 372 It should be noted, however, that this statement was obiter as the case concerned an offence that was classified as one of absolute liability.

Due diligence in Canada [3.310] In R v City of Sault Ste Marie, the Supreme Court of Canada held that a defence of honest and reasonable mistake would be established if the accused reasonably believed in a mistaken set of facts which, if true, would render the act innocent. This is the same position as the common law in Australia. However, the court went on to say that a defence would also be available if the accused took all reasonable steps to avoid the particular event. Dickson J, in delivering the judgment of the court, clarified that the burden is on the accused to prove on the balance of probabilities that he or she acted with reasonable care. 373 Placing the burden of proof on the accused has subsequently been held to be a reasonable limit on the guarantee to the presumption of innocence. 374

For regulatory offences imposing strict or absolute liability, the legislature often makes available the defence of “due diligence”. Due diligence is in law the converse of negligence. 375 The question of whether an accused has taken “reasonable care” is a question of fact for the jury or magistrate, and it seems that different standards of care have been applied for different types of offences. 376 In Australia, due diligence is a statutory defence for many consumer, corporate and environmental offences. 377 Reliance on legal advice, even if mistaken, may support a claim of due diligence. 378

371 372 373 374

375 376 377

378

234

Australian Iron and Steel Pty Ltd v Environment Protection Authority (1992) 29 NSWLR 497 at 509–510 per Badgery-Parker J. Allen v United Carpet Mills Pty Ltd [1989] VR 323 at 327. R v City of Sault Ste Marie (1978) 40 CCC (2d) 353 at 373. R v Wholesale Travel Group Inc [1991] 3 SCR 154; R v Ellis Don (1992) 71 CCC (3d) 63n. See, in general, A Tuck-Jackson, “The Defence of Due Diligence and the Presumption of Innocence” (1990) 33(1) Criminal Law Quarterly 11; NJ Stranz, “Beyond R v Sault Ste Marie: The Creation and Expansion of Strict Liability and the “Due Diligence” Defence” (1992) 30(4) Alberta Law Review 1233; J Keefe, “The Due Diligence Defence: A Wholesale Review” (1993) 35(4) Criminal Law Quarterly 480. Tesco Supermarkets v Nattrass [1972] AC 153 at 199 per Lord Diplock. D Parry, “Judicial Approaches to Due Diligence” [1995] Criminal Law Review 695. See, for example, the former Trade Practices Act 1974 (Cth), s 85; Environment Protection Act 1997 (ACT), s 153; Protection of the Environment Operations Act 1997 (NSW), s 118; Environment Protection Act 1970 (Vic), s 66B(4B)(c); P Lowe, “A Comparative Analysis of Australian and Canadian Approaches to the Defence of Due Diligence” (1997) 14(2) Environmental and Planning Law Journal 102; S Christensen, “Criminal Liability of Directors and the Role of Due Diligence in their Exculpation” (1993) 11(6) Company And Securities Law Journal 340. K Amirthalingam, “Mistake of Law: A Criminal Offence or a Reasonable Defence?” (1994) 18 Criminal Law Journal 271 at 279–280. See, generally, W Duncan and S Traves, Due Diligence (Sydney: Law Book Company, 1995). [3.310]

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Mistake of Law [3.315] At common law, a mistake of law or ignorance of law will generally not provide an

accused with a defence to a crime. 379 The origins of this doctrine can be found in the Latin maxim ignorantia juris non excusat which, it appears, was introduced into the English common law in the 18th century by Sir William Blackstone. 380 Policy reasons for the doctrine include: • the impossibility of ascertaining whether the accused was actually ignorant of the law and the difficulty in distinguishing between exculpatory and non-exculpatory mistakes of law; • the admission of the defence would encourage ignorance of the law; 381 • citizens have a legal duty to acquaint themselves with their legal obligations; 382 and • it would allow the substitution of a mistaken view of the law for what the law actually is. 383 There are, however, numerous exceptions to the doctrine that ignorance of the law is no excuse. The four main exceptions are: • knowledge of unlawfulness as a fault element; • the defence of claim of right; • the non-discoverability of laws; and • the statutory defence of “with lawful excuse”. We will examine these exceptions in turn. 384 But first, it is worthwhile considering the cultural implications of ignorance of the law being no excuse.

Multicultural perspectives Ignorance as No Excuse [3.320] The rule that “ignorance of the law is no excuse” purports to uphold the

principles of equality before the law: see Chapter 2, [2.200] “The principle of equality before the law”. However, the Australian Law Reform Commission (ALRC), in its report Multiculturalism and the Law, recognised that this rule has the potential to operate harshly in a multicultural society. It can unfairly penalise individuals who are unaware of the relevant prohibitions, and who are hindered from finding out by language and cultural barriers. The ALRC nevertheless concluded: 379 380 381 382

383

384

R v Coote (1873) LR 4 PC 599; Iannella v French (1968) 119 CLR 84; Pollard v DPP (Cth) (1992) 28 NSWLR 659; Khammash v Rowbottom (1989) 51 SASR 172. Sir William Blackstone, Commentaries on the Laws of England (first published 1765) Book IV, p 27. Available at http://www.avalon.law.yale.edu/subject_menus/blackstone.asp (cited 9 December 2016). O Holmes, The Common Law (Boston: Little, Brown and Co, 1881) p 48. A Ashworth and J Horder, Principles of Criminal Law (7th ed, Oxford: Oxford University Press, 2013) p 231. The duties of citizenship rationale has been criticised, see D Husack, “Ignorance of Law and Duties of Citizenship” (1994) 14 Legal Studies 105. J Hall, General Principles of Criminal Law (2nd ed, Indianapolis: The Bobbs-Merrill Company Inc, 1960) pp 382ff. For further discussion of the policy rationales for excluding such a defence, see K Amirthalingam, “Mistake of Law: A Criminal Offence or a Reasonable Defence?” (1994) 18 Criminal Law Journal 271; A Ashworth, “Excusable Mistake of Law” [1974] Criminal Law Review 652; P Brett, “Mistake of Law as a Criminal Defence” (1966) 5 Melbourne University Law Review 179; W Brookbanks, “Recent Developments in the Doctrine of Mistake of Law” (1987) 11 Criminal Law Journal 195. Other exceptions which are in the process of development are discussed in K Amirthalingam, “Mistake of Law: A Criminal Offence or a Reasonable Defence” (1994) 18 Criminal Law Journal 271 at 276–279. [3.320]

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“The basic principle of imposing responsibility on all members of the community to know what is and is not allowed should not be disturbed merely because it is difficult for some people to know what the law is. Instead, governments and responsible agencies should improve their efforts to communicate the substance of legal restrictions to those likely to be affected by them.” 385

This recommendation can be criticised on two grounds. First, a person who acts in ignorance of the law may technically commit a crime, yet not be viewed as morally blameworthy. The principle of individual justice requires that criminal liability should not be imposed unless individuals had a fair opportunity to conform their conduct to the law. Secondly, the ALRC’s recommendation that the responsibility to know the law should be applied equally to all members of the community is based on a flawed notion of equality. Culpability is measured against a standard determined exclusively by reference to the dominant culture—in this context, the ability and opportunity of members of the dominant culture to know and understand the applicable criminal laws. To ameliorate unfairness, the ALRC did recommend that ignorance of the law based on cultural factors should be taken into account in the exercise of the court’s sentencing discretion (including the discretion not to record a conviction) and the prosecutor’s discretion not to prosecute. 386 However, this is also problematic—it is widely acknowledged that minority groups are subject to a greater amount of discretionary justice and that discretion is often exercised in a discriminatory manner. The ALRC argued that the enactment of widespread cultural exemptions would mean that the obligations under the criminal law would be determined by reference to one’s membership of a particular cultural or ethnic group. It stated that drawing the parameters of such exemptions would be difficult and having such exemptions would violate the principle of equality. 387 However, as an alternative to the ALRC’s approach, some academic writers have called for the introduction of a defence based on justifiable ignorance of law. 388 Such a defence would have the qualification that the ignorance of law must be “reasonable in the circumstances” in order to counter frivolous claims and to ameliorate concern about the proliferation of specious defences. A defence of reasonable ignorance of law could apply in the situation where the accused, due to language or cultural barriers, did not know and could not reasonably be expected to know of the existence of the offence. This would demonstrate the legal system’s commitment to the fundamental principle of individual justice. There may be fears that the defence could be abused for serious offences like murder, but such fears are unfounded. Cross-cultural claims of ignorance of law are unlikely to be justifiable for many core offences, such as murder, assault, rape and theft, that are regarded as crimes by citizens everywhere. 389 Accordingly, an accused raising ignorance of law in these cases

385 386 387

389

Australian Law Reform Commission, Multiculturalism and the Law, Report No 57 (1992) p 179. Australian Law Reform Commission, Multiculturalism and the Law, Report No 57 (1992) pp 179–181. Australian Law Reform Commission, Multiculturalism and the Law, Report No 57 (1992) p 177. See Chapter 2, [2.200] “The principle of equality before the law”. D Husak, “Ignorance of Law and Duties of Citizenship” (1994) 14 Legal Studies 105 at 115; K Amirthalingam, “Mistake of Law: A Criminal Offence or A Reasonable Defence” (1994) 18 Criminal Law Journal 271; S Bronitt and K Amirthalingam, “Cultural Blindness—Criminal Law in Multicultural Australia” (1996) 21 Alternative Law Journal 58. See, further, N Lacey, State Punishment (London: Routledge and Kegan Paul, 1988).

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would find it extremely difficult to establish that his or her ignorance of law was “reasonable” in the circumstances. Indeed, in South Africa, the courts have developed a defence of mistake of law, negating the fault element, in S v de Blom 390. Although extending to “unreasonable” mistakes of law, this development has not opened the floodgates for unmeritorious defences. 391 Knowledge of unlawfulness as a fault element [3.325] Some offences require knowledge of unlawfulness as an element of an offence. For

example, perjury is an offence that requires not only that the accused swore to that which was not true, but that this was done “wilfully” and “corruptly”. 392 In this offence, the term wilfully means dishonestly, or at least with awareness that the behaviour is unlawful. A mistake of law may thus exculpate an accused in circumstances where knowledge of unlawfulness is an element of the offence. 393 This approach has also found its way into certain statutory provisions of the Criminal Codes of the Northern Territory, Queensland and Western Australia. 394 The defence of claim of right [3.330] A person who honestly believes him or herself to be entitled to do what he or she is

doing may be afforded the defence of an honest claim of right. 395 The defence is generally relevant to the situation where an accused has stolen, damaged or destroyed property and the fault element of the offence is negated by the existence of an honest claim of right to do the prohibited act. 396 The belief must be honest, but it need not be reasonable 397—what is essential is that the accused believed that there was a claim of right, regardless of whether or not one exists at law. For example, in R v Bernhard, 398 the accused was convicted of demanding money, with menaces, with intent to steal. The accused, who was Hungarian, had been the mistress of an Englishman who had agreed to pay her £20 a month for a year after their affair ended. He paid the accused £80 to cover a period of four months, but failed to pay her the balance of £160 on the due date. The accused threatened to tell the Englishman’s wife and the press about their affair if he did not pay her. On appeal against conviction, the accused argued that she had consulted a Hungarian lawyer and believed, when she had ventured to England and demanded the money, that she was entitled to the money owing. 390 391 392 393 394 395

396

397 398

(1977) (3) SA 513. See K Amirthalingam, “Distinguishing Between Ignorance and Mistake in the Criminal Law in Defence of the de Blom Principle” (1995) 8 South African Journal of Criminal Justice 12. R v Smith (1681) 2 Show KB 165. Jackson v Butterworth [1946] VLR 330. Criminal Code (NT), s 43AY(2)(a) (Sch 1 offences only) and s 30(1) (all other offences); Criminal Code (Qld), s 22(1); Criminal Code (WA), s 22. R v Cooper (1914) 14 SR (NSW) 426; R v Nundah (1916) 16 SR (NSW) 482; R v Pollard [1962] QWN 13 at 29 per Gibbs J. See W Brookbanks, “Colour of Right and Offences of Dishonesty” (1987) 11 Criminal Law Journal 153. R v Feely [1973] QB 530; R v Ghosh [1982] 1 QB 1053; R v Salvo [1980] VR 401; R v Love (1989) 17 NSWLR 608; Walden v Hensler (1987) 163 CLR 561; R v Sanders (1991) 57 SASR 102; Lenard v The Queen (1992) 57 SASR 164; Heywood v Canty (unreported, 21/1/1993, VSC, Harper J, 11109 of 1991); Criminal Code (Cth), s 9.5; Criminal Code (ACT), s 38; Criminal Code (NT), ss 30(2), 43AZ; Criminal Code (Qld), s 22(2); Crimes Act 1958 (Vic), s 73(2)(a); Criminal Code (WA), s 22. R v Bernhard [1938] 2 KB 264; R v Love (1989) 17 NSWLR 608. (1978) 40 CCC (2d) 353. [3.330]

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Her conviction was quashed on appeal. Charles J, in delivering the judgment of the Court of Criminal Appeal stated: “We are … bound by a series of long decisions … to hold that … a person has a claim of right, within the meaning of the section, if he [or she] is honestly asserting what he [or she] believes to be a lawful claim, even though it may be unfounded in law or in fact.” 399

The non-discoverability of laws [3.335] Ignorance or mistake of law may afford an excuse where an offence is committed

before publication of the law has been brought to the notice of the accused, or in circumstances in which acquisition of knowledge of the existence of the law is impossible. In R v Bailey, 400 the accused was charged under a statute within a few weeks of it having been passed, at which time he was on the high seas—it was therefore physically impossible for the accused to know the law. The accused was found guilty, but was given an absolute pardon. At that time, the only way to correct a trial judge’s erroneous ruling was to grant a pardon, and it is therefore arguable that the pardon was given on the basis that the accused’s conviction was wrong in law. In Burns v Nowell, 401 a similar fact situation occurred. In that case, a ship-owner sued a naval captain for damages for the illegal seizure of his ship. The latter had been seized under the Pacific Islanders Protection Act 1872 (Imp), which had come into effect during the voyage being made by the captain of the ship in question. The Act made it illegal to carry natives without a permit from the Solomon Islands. The natives were used as divers. The captain found out about the Act after the divers’ work was finished and when he was taking them back to their island homes. The shipowner failed in his claim for damages and his appeal was dismissed on the basis that the seizure of the ship had been made honestly and in good faith. While it was not necessary to decide the point, the Court of Appeal went on to state that the Act did not apply to the voyage because it was a continuous one and compliance with the legislation would have created “an act of cruelty in all probability as great as any which it was the avowed object of the act to prevent”. 402 In Lim Chin Aik v The Queen, 403 the accused was convicted of the offence of remaining in Singapore as a prohibited person. The Minister of Labour and Welfare had made an order prohibiting the entry of a person into Singapore from the Federation of Malaya. There was no requirement that the order be published. At the accused’s trial, there was evidence that he had entered Singapore from the Federation of Malaya after the Minister’s order had been made and that he lived in Singapore. There was no evidence that any step had been taken to bring the order to the attention of the accused nor of anyone else. The Judicial Committee of the Privy Council heard an appeal from the High Court of Singapore’s decision to dismiss the accused’s appeal against conviction. The Judicial Committee upheld the accused’s appeal, Lord Evershed stating: “[E]ven if the making of the order by the Minister be regarded as an exercise of the legislative as distinct from the executive or administrative function (as they do not concede), the maxim [ignorantia juris neminem excusat] cannot apply to such a case as the present where it appears that there is in the

399 400 401 402 403

R v Bernhard [1938] 2 KB 264 at 270. (1800) 168 ER 651. (1880) 5 QBD 444. Burns v Nowell (1880) 5 QBD 444 at 455. [1963] AC 160.

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State of Singapore no provision … for the publication in any form of an order of the kind made in the present case or any other provision designed to enable a man [or woman] by appropriate inquiry to find out what ‘the law’ is.” 404

The Judicial Committee therefore rejected the maxim that ignorance of the law is no excuse on the ground that non-publication of the order excluded the operation of the maxim. An argument based on the non-discoverability of law is difficult to establish in Australia, given that statutes are published by the government printer, are now available through the Internet, and there is usually a period of time before they come into effect. Subordinate legislation is also usually published in the relevant Government Gazette. Further, if an ordinance satisfies the necessary notification and publication requirements, it appears that the non-availability of the ordinance from the government printer or other appointed source will not postpone the operation of the statutory rule. 405

Regulatory zeal [3.340] A Productivity Commission report found that over 2,600 separate regulations were introduced by the Australian Government during 2005–2006, of which around 3% required the making of a Regulatory Impact Statement. 406

In the Northern Territory, Queensland and at the Commonwealth level, there is some recognition of a defence of mistake or ignorance of delegated or subordinate legislation, 407 and it may be that there is increasing support for such a defence to be recognised in other jurisdictions, particularly given the sheer number of regulations passed every year. The statutory defence of with lawful excuse [3.345] An accused may be afforded a defence if he or she mistakenly believes that there was

a lawful excuse to do what he or she did. This defence only applies to statutory crimes that require that the criminal act be performed “without lawful excuse”. In R v Smith, 408 the accused was charged under the Criminal Damage Act 1971 (UK) with destroying property belonging to another without lawful excuse. The accused claimed that he honestly believed the property belonged to him. The Court of Appeal held that the accused’s mistaken belief that he had a lawful excuse to destroy the property was a good defence. 409 This case shows the readiness of the courts to take into account a mistake in relation to the legality of an act where a statutory provision allows for this. The meaning and scope of “lawful” or “reasonable excuse” in relation to drug offences are explored in Chapter 14, [14.135]ff.

404 405 406 407 408 409

Lim Chin Aik v The Queen [1963] AC 160 at 171. R v Sheer Metalcraft Ltd [1954] 1 QB 586. Productivity Commission, Regulation and Its Review 2005–06 (November 2006) p xii. Criminal Code (NT), ss 30(3), 43AY(3); Criminal Code (Qld), ss 22(3) – (4); Criminal Code (Cth), s 9.4(2)(c). [1974] QB 354. This case could also be analysed in terms of claim of right, standing for the proposition that a mistaken belief that property is one’s own negates the fault element. R v Smith [1974] QB 354 at 360. [3.345]

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Ostrowski v Palmer: Reliance on Incorrect Advice from those in Authority [3.350] In Ostrowski v Palmer, 410 the High Court held that reliance on official advice does

not enable a defence or convert a mistake of law into one of fact. Jeffrey Palmer was a commercial fisherman who held a fishing licence that allowed him to fish for rock lobsters. On 11 November 1998, he went to an office of Fisheries Western Australia in order to determine where it was lawful to fish for rock lobsters. He asked for a copy of the relevant regulations which identified the areas where fishing for rock lobster was prohibited and an officer gave him a document entitled “West Coast Rock Lobster Limited Entry Fishing Notice 1993”, which included various manually inserted amendments, and a pamphlet entitled Fishing for Rock Lobster, which was published by Fisheries Western Australia. Palmer was told that this was all that he required. Palmer then decided to fish around Quobba Point, which was not mentioned in the materials as being a prohibited area. In fact, the materials that Palmer had been given by the officer were incomplete as they did not include a copy of reg 34 of the Fish Resources Management Regulations 1995 (WA), which prohibited fishing for rock lobster around Quobba Point. Palmer was charged under reg 34 with the strict liability offence of fishing for rock lobster in a prohibited area. Palmer sought to rely on s 24 of the Criminal Code (WA), which enables a defence of mistake of fact. This was held to be irrelevant and Palmer was found guilty in the Court of Petty Sessions. He was given the mandatory penalty of $27,600, together with a general penalty of $500 and $2,000 in costs. A majority of two judges to one of the Supreme Court of Western Australia allowed Palmer’s appeal against the conviction on the basis that he had made a mistake of fact rather than law. 411 The mistake was seen as Palmer having believed the materials provided to him were complete whereas they were in fact incomplete. This decision was then appealed to the High Court. All five judges agreed that Palmer had made a mistake of law rather than fact, set aside the decision of the Supreme Court of Western Australia and reinstated the conviction. McHugh J summarised Palmer’s mistake as follows: “His mistake was one of law: he erroneously believed that no law prohibited him from fishing for rock lobster in that area. It is irrelevant that his belief was induced by the conduct of a Fisheries WA employee.” 412

The members of the High Court made it clear that mistaken advice from an official could not convert a mistake of law into one of fact. However, there was certainly an awareness of the unfairness that could result from this. Callinan and Heydon JJ commented: “As well as raising that question [as to mistake of law or fact] the appeal provides an example of the way in which provisions for mandatory penalties can operate harshly and unfairly and, as has occurred here, generate time consuming and expensive appellate litigation.” 413 (footnote omitted)

The High Court offered some consolation to Jeffrey Palmer in the form of an order that the appellant pay his costs of the appeal. 410 411 412 413

(2004) 206 ALR 422. Palmer v Ostrowski (2002) 128 A Crim R 56. Ostrowski v Palmer (2004) 206 ALR 422 at 427. Ostrowski v Palmer (2004) 206 ALR 422 at 438.

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This raises the question as to whether reliance on incorrect advice should afford some form of defence to an accused. In Canada and New Zealand, the law is developing such that there may be a limited defence if a person relies on the advice of an official which purports to be definitive of the relevant law. 414 Ashworth argues that reasonable mistake of law should operate as an excuse. 415 He argues that this involves a form of “estoppel reasoning”, such that the state and the courts should not convict those who have received incorrect advice from the officers of these institutions. In practice, it is likely that those relying on incorrect advice from those in authority are not prosecuted or, if convicted, receive substantial mitigation in sentence. The dearth of appeal cases in this area points to this conclusion. 416 In Postermobile v Brent LBC, 417 Schiemann LJ ordered that a prosecution be stayed as an abuse of process. In that case, a company erected advertising boards after being advised by members of the local council that this did not require planning consent. The Council subsequently brought a prosecution. This case demonstrates that procedural measures may be taken to ensure that a reasonable mistake of law will afford some comfort to an accused despite such a “defence” not being currently available. The future of mistake of law [3.355] The Criminal Law Officers Committee in its final report on General Principles of

Criminal Responsibility recommended that ignorance or mistake of law should not be an excuse unless it is so provided in statute or negates a fault element of the offence. 418 This is simply reiterating the traditional view. The Committee was, however, prepared to enact a defence based on mistake or ignorance of subordinate legislation. Thus, s 9.4 of the Criminal Code (Cth) states: (2) Subsection (1) does not apply, and the person is not criminally responsible for the offence in those circumstances, if: (a) the subordinate legislation is expressly to the contrary effect; or (c) at the time of the conduct, the subordinate legislation: (i) has not been made available to the public (by means of the Register under the Legislation Act 2003 or otherwise); and (ii) has not otherwise been made available to persons likely to be affected by it in such a way that the person would have become aware of its contents by exercising due diligence.

Section 43AY(3) of the Criminal Code (NT) also enables a defence based on mistake or ignorance of a “statutory instrument”. The notion that there must be a general rule that ignorance of the law is no excuse is unsatisfactory. To avoid unfairness, the law has developed a number of exceptions. Unfortunately, these qualifications to the rule have developed in an ad hoc and unprincipled manner. It may be more useful for law reformers to move away from the strict approach towards a defence of reasonable mistake of law. A person who acts in the belief that conduct is not a crime or without knowing that it is a crime has made “a choice which is 414 415 416 417 418

See W Brookbanks, “Recent Developments in the Doctrine of Mistake of Law” (1987) 11 Criminal Law Journal 195 at 199–201. A Ashworth, “Excusable Mistakes of Law” [1974] Criminal Law Review 652; A Ashworth and J Horder, Principles of Criminal Law (7th ed, Oxford: Oxford University Press, 2013) pp 220-221. A Ashworth, “Excusable Mistakes of Law” [1974] Criminal Law Review 652; A Ashworth and J Horder, Principles of Criminal Law (7th ed, Oxford: Oxford University Press, 2013) pp 222-223. Unreported, 8/12/1997, Schiemann LJ, English Divisional Court (discussed at [1998] Crim LR 435). Criminal Law Officers Committee, General Principles of Criminal Responsibility, Final Report (1992) p 59. [3.355]

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so ill-informed as to lack a proper basis”. 419 Such conduct does not sit well with principles of criminal responsibility and moral blameworthiness. Nor does the criminal conduct of a person who relies on mistaken advice.

CONCURRENCE OF PHYSICAL AND FAULT ELEMENTS [3.360] In order for an accused to be convicted of an offence, it must be proved that the fault

element coincided with, or existed at the same time as, the physical element. 420 This model of criminal responsibility separates an accused’s thoughts from his or her actions. This dualist approach to responsibility has been criticised, most notably by the philosopher, Antony Duff, who points out that, in practice, ordinary people do not adopt such a refined notion of human behaviour which separates act from will. 421 Neither do philosophers. Ludwig Wittgenstein maintained that intending to do something is not a mental state dissociated from the act but rather part and parcel of the act. 422 People thus make a global judgment of behaviour that encompasses both act and attitude. This dualist approach to criminal behaviour also causes problems with separating voluntariness from the fault element of a crime. Occasionally, the dualist approach to criminal behaviour causes a problem with the concurrence of the fault and physical elements, and this has tested the ingenuity of the courts. The courts have occasionally stretched this requirement such that the fault element has been imposed upon a series of acts or a “continuing act”. 423

Fault Element Imposed Upon a Series of Acts [3.365] In Thabo Meli v The Queen, 424 in accordance with a preconceived plan, the accused

men took the victim to a hut, gave him beer so that he was partially intoxicated, then hit him on the back of the head. They then took the victim out of the hut and, believing him to be dead, rolled him over a cliff to create the appearance of an accident. The victim was, in fact, still alive at that stage and later died of exposure. At the trial, the defence took a “frame-by-frame” approach to concurrence and argued that there were two acts: the first act was the attack in the hut, and whilst the fault element coincided with this act, it was not the cause of death. The second act was the rolling of the victim off the cliff, and while this could be said to be the cause of death, it was not accompanied by the fault element. On appeal against conviction, the Judicial Committee of the Privy Council held that it was impossible to divide up what was really a series of acts in this way. Their Lordships preferred to regard the whole of the conduct as one indivisible transaction causing death or as one continuing act. On this reading, the fault element and physical element coincided because the accused possessed the requisite fault element at the time they started the series of acts. Lord Reid stated: “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 419 420

424

A Ashworth and J Horder, Principles of Criminal Law (7th ed, Oxford: Oxford University Press, 2013) p 219. Ryan v The Queen (1967) 121 CLR 205; R v Miller [1983] 2 AC 161; R v Demirian [1989] VR 97; Royall v The Queen (1991) 172 CLR 378 at 458 per McHugh J. RA Duff, Intention, Agency and Criminal Liability (Oxford: Oxford University Press, 1990). See G Fletcher, Rethinking Criminal Law (Boston: Little, Brown and Co, 1978) p 437. The main cases in which this has occurred are Thabo Meli v The Queen [1954] 1 WLR 228; Fagan v Metropolitan Commissioner [1969] 1 QB 439; R v Miller [1983] 2 AC 161 and Jiminez v The Queen (1992) 173 CLR 572. [1954] 1 WLR 228.

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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.” 425

This “series of acts” approach to the coincidence of the fault element and actus reus has been followed in R v Le Brun. 426 Thabo Meli does not contain a clear statement as to how the law overcomes the problem of concurrence, except that the criminal law will not be frustrated by an overly refined application of its general principles. Two later decisions do, however, attempt to provide a firmer conceptual basis for dealing with concurrence problems. These decisions are Fagan v Metropolitan Commissioner of Police 427 and R v Miller, 428 which are discussed immediately below in [3.370].

Fault Element Imposed Upon a Continuing Act [3.370] Another way of approaching concurrence is to view the physical element as a

continuing act. In Fagan v Metropolitan Commissioner of Police, 429 the accused drove his car onto the foot of a police constable (accidentally, he maintained) after being told to park his car in a particular space. When the victim told the accused to move the car which was on his foot, the accused said, “Fuck you, you can wait” and stopped the engine. The accused eventually moved the car off the victim’s foot. On appeal against a conviction for assault, the accused argued that the act of the wheel moving onto the police constable’s foot occurred without the fault element. A majority of the Court of the Queen’s Bench rejected this argument. James J, with whom Lord Parker LJ agreed, held that the relevant act was a continuing one which started when the wheel was driven onto the victim’s foot and ended when it was removed. 430 Viewed this way, the fault element could be super-imposed upon the physical element: “It is not necessary that [the fault element] should be present at the inception of the [physical element]; it can be superimposed upon an existing act. On the other hand the subsequent inception of [the fault element] cannot convert an act which has been completed without [the fault element] into an assault.” 431

The issue of concurrence also arose in R v Miller. 432 In that case, the accused (a homeless person) fell asleep in a derelict house while smoking and, whilst asleep, his bed caught fire. He awoke to find the mattress smouldering, but instead of extinguishing the fire, he arose and moved into another room of the house and went back to sleep. The house then caught fire and damage was caused. The accused was charged with and convicted of arson, an offence that requires a fault element of intention or recklessness as to damage to property. The problem of concurrence arose because at the time that the initial act of damage occurred, the accused lacked intention or recklessness as to damage. The prosecution relied on the accused’s recklessness after he had become aware that the bed was on fire. 425 426 427 428 429 430 431 432

Thabo Meli v The Queen [1954] 1 WLR 228 at 374. [1991] 4 All ER 673. See also R v Church [1966] 1 QB 59; R v McConnell, McFarland and Holland [1977] 1 NSWLR 714. [1969] 1 QB 439. [1983] 2 AC 161. [1969] 1 QB 439. Fagan v Metropolitan Commissioner of Police [1969] 1 QB 439 at 445. Fagan v Metropolitan Commissioner of Police [1969] 1 QB 439 at 445. [1983] 2 AC 161. [3.370]

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The English Court of Appeal took a “continuing act” approach to the problem of concurrence, but justified it on the basis of a duty arising from the creation of a dangerous situation. Lord Diplock stated: “I see no rational ground for excluding from conduct capable of giving rise to criminal liability, conduct which consists of failing to take measures that lie within one’s power to counteract a danger that one has oneself created, if at the time of such conduct one’s state of mind is such as constitutes a necessary ingredient of the offence.” 433

The Court of Appeal therefore held that once the accused became aware of the danger he created, a duty arose to take reasonable steps to counteract that danger. The High Court also took a relaxed approach to concurrence in Jiminez v The Queen. 434 This is an important decision because it demonstrates that concurrence problems are not restricted to crimes that contain fault elements. Jiminez also raises concerns about voluntariness. The facts were that the accused was driving from the Gold Coast to Sydney with three companions. He took over the driving at 3.30 am and, two and a half hours later, he fell asleep at the wheel of the car. The car went off the road and crashed into some trees, killing the front seat passenger. The accused claimed that he had not felt tired before the accident and that he had no warning of the onset of sleep. The accused was charged and convicted of causing death by culpable driving contrary to s 52A of the Crimes Act 1900 (NSW). The physical element of the offence is driving and causing death. There is no fault element required, although the prosecution must prove that the accused was driving the car in a manner dangerous to the public “at the time of the impact”. The principle of concurrence here requires the accused’s driving to be both dangerous and cause death. The facts of Jiminez posed a problem because at the time of the impact that caused death the accused had momentarily fallen asleep and he therefore argued that he was not driving. The High Court affirmed that a person who is asleep is not acting voluntarily and therefore such a person cannot be regarded as driving whilst asleep. However, the majority solved this problem of concurrence by focusing on the earlier conduct of the accused. 435 The court examined whether the accused was driving in a manner dangerous to the public before he fell asleep. This occasioned examining whether he was so tired that his driving was dangerous. This approach is an inversion of the continuing act approach: the court is looking at earlier conduct which is sufficiently culpable to ground criminal responsibility, rather than conduct occurring after a dangerous event, which was the situation in Miller’s case. In Jiminez, the High Court was prepared to relax the strict requirement of concurrence, to bridge the gap where the accused’s lapse of consciousness was momentary. In all, the courts have shown a willingness to construct concurrence by either imposing the fault element over a series of acts, or upon a continuing act. In Miller, the failure to act after awareness of a dangerous situation was enough to make out criminal responsibility. In Jiminez, the High Court was prepared to look at antecedent conduct in order to impose criminal responsibility. All these cases show that the courts are prepared to take a very flexible approach to the problem of concurrence. 436 433 434 435 436

R v Miller [1983] 2 AC 161 at 176. (1992) 173 CLR 572. Jiminez v The Queen (1992) 173 CLR 572 at 575–585. For further critical examination of Jiminez, see JP McCutcheon, “Involuntary Conduct and the Case of the Unconscious ’Driver’: Reflections on Jiminez” (1997) 21 Criminal Law Journal 71.

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CONCLUSION [3.375] In this chapter, we have considered criminal responsibility in two main ways. The first

part of the chapter outlined the principles dealing with who may be considered criminally responsible and the difficulties associated with corporate criminal responsibility. The second part dealt with the conditions that need to be fulfilled before an accused can be convicted of a crime. We outlined the traditional view of offences having a physical element and a fault element, before examining those offences that require no fault element and that may or may not be excused by the defence of honest and reasonable mistake. In Chapter 1, [1.10], it was pointed out that in order to promote certainty and coherence, the criminal law, both as a system of law and as a scholarly discipline, is a “rationalising enterprise”. 437 In terms of criminal responsibility, the law is “rationalised” or “legitimised” by relying on the idea of the criminal subject as a rational being and stressing the importance of both fault and physical elements as components of a crime. Examined more closely, however, these notions of individual agency and the importance of moral blameworthiness break down in relation to corporate responsibility and the rise of strict and absolute liability offences. The broadening of criminal offences to encompass corporate liability and offences displacing the fault element cannot be explained by reliance on traditional notions alone. It can be seen as a dynamic process which can partially be explained as a response to the rise in work-related deaths, the occurrence of major disasters caused by corporate negligence, and the growth of statutory offences in areas such as public health and safety. Even if a person can be considered criminally responsible, it may be that circumstances existed in which the person’s conduct can be considered justified or excusable. The next three chapters explore defences based on justifications and excuses for criminal behaviour.

437

A Norrie, Crime, Reason and History (3rd ed, Cambridge: Cambridge University Press, 2014) pp 9-10. [3.375]

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JUSTIFICATIONS AND EXCUSES Chapter 4: Mental State Defences .................................................................. 249 Chapter 5: Partial Defences ............................................................................. 305 Chapter 6: Self-Help Defences ......................................................................... 347

Chapter 4

Mental State Defences All my faults perchance thou knowest, All my madness none can know. 1 [4.05]

INTRODUCTION ........................................................................................................................ 249

[4.10] [4.25] [4.50] [4.55] [4.60] [4.65] [4.70] [4.75]

MENTAL IMPAIRMENT ............................................................................................................... Defining Mental Impairment ...................................................................................................... Knowledge and Understanding .................................................................................................. Nature and Quality of Conduct .................................................................................................. Wrong ....................................................................................................................................... Capacity to Control Conduct ..................................................................................................... Burden and Mode of Proof of Mental Impairment ...................................................................... Disposition .................................................................................................................................

[4.85] [4.95] [4.100] [4.110] [4.115] [4.140] [4.145] [4.150] [4.155] [4.170] [4.175] [4.210] [4.215] [4.220] [4.230]

AUTOMATISM ............................................................................................................................ 266 Conditions Giving Rise to Automatism ....................................................................................... 269 Consciousness and Automatism ................................................................................................. 269 Automatism and the Defence of Mental Impairment .................................................................. 273 Sane and Insane Automatism ..................................................................................................... 274 Presumption of Mental Capacity ................................................................................................ 281 Burden of Proof .......................................................................................................................... 281 Mental Impairment and Intention .............................................................................................. 282 INTOXICATION .......................................................................................................................... 283 Intoxication and Voluntariness .................................................................................................... 288 Intoxication and Fault Elements ................................................................................................. 290 Intoxication and Other Defences ................................................................................................ 297 Unintentional Intoxication ......................................................................................................... 299 Burden of Proof .......................................................................................................................... 300 CONCLUSION ........................................................................................................................... 302

250 253 257 257 258 260 263 265

INTRODUCTION [4.05] The concept of criminal responsibility is based on the notion that individuals possess

the capacity to make rational choices in performing or refraining from performing acts. A person will be considered to be criminally responsible for a criminal act which was made voluntarily and intentionally and where the individual understood the significance of the act. 1

Lord Byron, “Fare Thee Well”, Stanza 12 in WH Auden and NH Pearson (eds), Romantic Poets (New York: The Viking Press, 1973) p 259.

[4.05]

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However, some forms of mental impairment may exculpate an individual from criminal responsibility. For example, a person diagnosed with a severe form of mental illness may be found not guilty because of mental impairment and be liable to a supervision order on the basis that he or she could not understand the significance of the act. Further, if an individual commits a crime whilst in a state of automatism, he or she may be acquitted on the basis that the act was involuntary. It has also been accepted that severe intoxication may divorce the will from the movements of the body so that they are truly involuntary or, perhaps more frequently, prevent the formation of the requisite intention for the crime charged. The rules in relation to the burden of proof and who may raise evidence of mental impairment differ in relation to automatism, the defence of mental impairment and intoxication. There is some overlap between these three categories of mental impairment and this should be kept in mind when reading the following sections.

MENTAL IMPAIRMENT [4.10] In the criminal law, the notion that children and the insane lack the ability to reason

has long been found in laws excusing them from responsibility for criminal acts. This notion may be found in Roman law through Justinian’s codification in the sixth century that an “infant or a madman who kills a man is not liable under the lex cornelia, the one being protected by the innocence of his intent, the other excused by the misfortune of his condition”. 2 The same conclusion was reached in Henrici de Bracton’s first systematic treatise on the laws and customs of England in the 13th century, when he stated that the “lack of reason in committing the act” excused the madman and “the innocence of design” protected the infant from the boundaries of the criminal law. 3

The history of “madness” [4.15] English historian, Professor Roy Porter, wrote extensively on the history of medicine and the construction of madness. 4 Porter traces how madness has been understood in different eras as divine or demonic possession, as arising from organic conditions, as faulty associations in thought processes, and as a cultural construct. Catharine Coleborne and Dolly MacKinnon have edited a collection on the history of madness in Australia. 5 In that book, Mark Finnane examines legislation such as the Dangerous Lunatics Act 1843 (NSW), the Mental Defectives Act 1913 (SA) and the Backward Persons Act 1938 (Qld) and how they reflected social attitudes of the time to those diagnosed with mental illnesses and/or intellectual disabilities. 6

2 3 4 5 6

250

T Mommsen, P Kruger and A Watson (eds and translators), The Digest of Justinian (Pennsylvania: University of Pennsylvania Press, 1985) Book 48, 8.12. H de Bracton, De Legibus et Consuetudinibus Angliae (composed primarily before c. 1235), quoted in FB Sayre, “Mens Rea” (1932) Harvard Law Review 974 at 985–986. A Social History of Madness (London: Weidenfeld and Nicholson, 1987); The Faber Book of Madness (London: Faber and Faber, 1991); Madness, A Brief History (Oxford: Oxford University Press, 2002). C Coleborne and D MacKinnon, (eds), “Madness” in Australia; Histories, Heritage and the Asylum (Brisbane: University of Queensland Press, 2003). M Finnane, “From Dangerous Lunatics to Human Rights? The Law and Mental Illness in Australia” in C Coleborne and D MacKinnon, “Madness” in Australia; Histories, Heritage and the Asylum (Brisbane: University of Queensland Press, 2003) pp 23–33. [4.10]

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The modern conception of the defence of mental impairment follows this excusatory tradition in that it serves to exculpate an accused from criminal responsibility 7 because of the accused’s inability to know the nature and quality of the conduct or that the conduct was wrong. In some jurisdictions, there is an added component of the mental impairment causing an inability to control one’s conduct. Most jurisdictions follow the rules established in M’Naghten’s case in 1843. 8 While the name of the defence differs across jurisdictions, we will use the term “defence of mental impairment”, as this is the term used by the Model Criminal Code Officers Committee (MCCOC). The M’Naghten Rules arose out of the controversy surrounding the 19th century case of Daniel M’Naghten who was tried for the murder of Edward Drummond, the private secretary of the then Prime Minister of the United Kingdom, Sir Robert Peel. Evidence was led to show that M’Naghten suffered from the delusion that he was being persecuted by “the Tories” and that, in order to end this persecution, he shot and killed Drummond whom he supposedly mistook for Peel. Lord Tindal CJ instructed the jury that it could return a verdict of not guilty on the ground of insanity if it was of the opinion that the accused did not have the use of his understanding to know that he was doing a wrong or wicked act.

The spelling of M’Naghten [4.20] Daniel M’Naghten gave his name to the case that resulted in the traditional rules concerning the defence of mental impairment. But what is the correct spelling of his name? M’Naghten is the customary spelling in the English and American law reports, but other versions have emerged such as M’Naughten, McNaughton, Macnaghten and even a version in the original Gaelic, Mhicneachdain. Bernard Diamond spent some time attempting to discover the correct spelling, even examining a sample signature from the man himself but found the answer was out of reach. 9

M’Naghten was accordingly found not guilty on the ground of insanity by the jury. This led to a detailed debate that took place in the House of Lords concerning the question of whether or not the rules of law governing the defence of insanity were satisfactory. In June 1843, certain questions were placed before the common law judges on the existing law of insanity, with particular reference to the subject of delusions. With one dissent, the judges agreed on the answers and these have become known as the M’Naghten Rules. The most well-known rule states: “[T]o 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 defect of reason, from disease of the mind, as not to know the nature and quality of the act he [or she] was doing; or, if he [or she] did know it, that he [or she] did not know he [or she] was doing what was wrong.” 10

Many authors have criticised the emphasis in the M’Naghten Rules on cognitive factors (the effect on knowledge), rather than emotional and volitional factors (the effect on the ability to control conduct) which leads to the traditional insanity defence being very limited in its scope. Australian jurisdictions base the current defence of mental impairment on the M’Naghten Rules, but some broaden the scope of the defence by including a volitional component. Table 1 7 8 9 10

See A Loughnan, Manifest Madness: Mental Incapacity in Criminal Law (Oxford: Oxford University Press, 2012) for an account of criminal responsibility and conceptions of “insanity”. (1843) 10 Cl and Fin 200 at 210. BL Diamond “On the Spelling of Daniel M’Naghten’s Name” in D West and A Walk (eds), Daniel McNaughton: His Trial and the Aftermath (Kent: Gaskell Books, 1977) pp 86–90. M’Naghten’s case (1843) 10 Cl and Fin 200 at 210. [4.20]

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summarises the elements of the defence across Australian jurisdictions. Table 1 Elements of the defence of mental impairment Jurisdiction and relevant law

Name of defence

Cth Criminal Code

mental impairment

ACT Criminal Code

s 7.3(1) mental impairment

NSW Common law Mental Health (Forensic Provisions) Act 1990

NT Criminal Code

Qld Criminal Code

SA Criminal Law Consolidation Act 1935

Tas Criminal Code

Vic Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

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[4.20]

s 28 mental illness

s 38 (special verdict) mental impairment

s 43C insanity

Components of Mental Nature and State quality of conduct senility, intellectual did not know disability, mental the nature and illness, brain damage, quality of the severe personality conduct disorder s 7.3(8) s 7.3(1)(a) includes senility, did not know intellectual disability, the nature and mental illness, brain quality of the damage and severe conduct personality disorder s 27(1) s 28(1)(a) defect of reason caused did not know by a disease of the the nature and mind quality of the act he or she was doing

includes senility, intellectual disability, mental illness, brain damage and involuntary intoxication s 43A mental disease or natural mental infirmity

Knowledge that conduct is wrong did not know that the conduct was wrong

Inability to control conduct

s 7.3(1)(b) did not know the conduct was wrong

s 7.3(1)(c) could not control the conduct

s 28(1)(b) did not know that what he or she was doing was wrong

s 28(1)(c)

did not know the nature and quality of the conduct

did not know that the conduct was wrong

not able to control his or her actions

s 43C(1)(a) capacity to understand what the person is doing

s 43C(1)(b) capacity to know that the person ought not to do the act or make the omission s 27(1) does not know that the conduct is wrong

s 43C(1)(c) capacity to control the person’s actions

s 27 s 27(1) mental mental impairment incompetence includes: mental illness, intellectual disability or a disability or impairment of the mind resulting from senility ss 269C, 269E s 269A(1) insanity mental disease includes: “natural imbecility”

s 27(1) does not know the nature and quality of the conduct

s 269C(a) incapable of understanding the physical character of the act or omission

s 269C(b) incapable of knowing that the act or omission was one that he or she ought not to do or make

s 16 mental impairment

s 16(1)(a)(i) did not know the nature and quality of the conduct

s 16(1)(a)(ii) did not know that the conduct was wrong

s 16(1), (4) no definition

unable to control the conduct

–

s 27(1) is unable to control the conduct

s 269C(c) the act or omission was done or made under an impulse which he or she was in substance deprived of any power to resist s 16(1)(b)

–

Mental State Defences

Jurisdiction and relevant law

WA Criminal Code

Name of defence s 20 insanity

s 27

Components of Mental Nature and State quality of conduct s 20(1)(a) unsoundness of mind; capacity to state of mental understand impairment meaning what he or she intellectual disability, is doing mental illness, brain damage or senility ss 27, 1 s 27(1)

Knowledge that conduct is wrong s 20(1)(b) capacity to know that he or she ought not to do the act or make the omission s 27(1)

Ch 4

Inability to control conduct

capacity to control his or her actions

s 27

Defining Mental Impairment [4.25] Just what conditions will constitute mental impairment for the purposes of this defence

varies from jurisdiction to jurisdiction. The following section outlines some of the terms used and the conditions that have been held to fall within them. It should be noted that the Victorian legislation uses the term “mental impairment” without any definition. In a pre-trial ruling, Smith J of the Victorian Supreme Court ruled in R v Sebalj that the defence of mental impairment under s 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) was unavailable in the absence of a disease of the mind. 11 While this decision was criticised by the Victorian Law Reform Commission as being unnecessarily narrow, 12 it has subsequently been affirmed by both Bongiorno J in R v Martin (No 1) 13 and King J in R v Hopkins. 14 Disease of the mind [4.30] The traditional M’Naghten Rules referred to a “defect of reason” arising from a

“disease of the mind”. This is still followed in New South Wales. In Queensland and Tasmania, the term “mental disease” is used. This is a problematic term in that it has no medical relevance and is purely a legal construct. Under the old common law, conditions that have been held to fall within the insanity defence include psychotic disorders, 15 cerebral arteriosclerosis, 16 epilepsy, 17 and hyperglycaemia. 18 The common thread amongst these conditions is that they are seen as arising from an internal rather than an external cause. Martin JA explained this internal/external distinction in the Canadian case of R v Rabey as follows: “In general, the distinction to be drawn is between a malfunctioning of the mind arising from some cause that is primarily internal to the accused, having its source in his [or her] psychological or emotional make-up, or in some organic pathology, as opposed to a malfunctioning of the mind which is the transient effect produced by some specific external factor such as, for example, concussion.” 19

11 12 13 14 15 16 17 18 19

[2003] VSC 181; referred to in R v Sebalj [2004] VSC 212. Victorian Law Reform Commission, Defences to Homicide, Final Report (2004) p 214. (2005) 159 A Crim R 314. [2011] VSC 517. “The major mental diseases, which the doctors call psychoses, such as schizophrenia, are clearly diseases of the mind”: Bratty v Attorney-General (Northern Ireland) [1963] AC 386 at 412 per Lord Denning. R v Kemp [1957] QB 399. R v Cottle [1958] NZLR 999; R v Sullivan [1984] AC 156; R v Foy [1960] Qd R 225; R v Mursic [1980] Qd R 482; R v Meddings [1966] VR 306; Youssef (1990) 50 A Crim R 1. R v Hennessy [1989] 1 WLR 287. R v Rabey (1977) 37 CCC (2d) 461 at 477. [4.30]

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The problems in distinguishing between an internal malfunctioning of the mind and a condition caused by external factors will be discussed in the section dealing with automatism: see [4.115] “Sane and insane automatism”. There have been statements that a disease of the mind simply means mental illness. In R v Radford, King CJ of the Supreme Court of South Australia stated: “The expression ‘disease of the mind’ is synonymous, in my view, with ‘mental illness’ … The essential notion appears to be that in order to constitute insanity in the eyes of the law, the malfunction of the mental faculties called ‘defect of reason’ in the M’Naghten rules, must result from an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, which can be properly termed mental illness, as distinct from the reaction of a healthy mind to extraordinary external stimuli.” 20

This statement was accepted by the members of the High Court in R v Falconer. 21 What, however, is mental illness? The next section explores this further. Mental illness [4.35] According to The Oxford Textbook of Psychiatry: “Most psychiatrists begin by separating mental handicap and personality disorder from mental illness … they diagnose mental illness if there are delusions, hallucinations, severe alterations of mood, or other major disturbances of psychological functions. In practice, most psychiatrists allocate psychiatric disorders to diagnostic categories such as schizophrenia, affective disorders, organic mental states, and others; by convention, they agree to group these diagnostic categories together under the rubric mental illness.” 22

The modern psychiatric conception of mental illness views it as “a pervasive inability to engage reality: a failure of ‘reality testing’, to use the term of art favoured by psychiatrists”. 23 This is why psychotic disorders which involve the inability to engage reality are generally distinguished from neurotic and personality disorders. The term “mental illness” is defined in the Criminal Codes of the Australian Capital Territory, the Northern Territory, Western Australia and the Commonwealth: Criminal Code (ACT), s 27(2); Criminal Code (NT), s 43A; Criminal Code (WA), s 1; Criminal Code (Cth), s 7.3(9). In South Australia, it is defined in the Criminal Law Consolidation Act 1935 (SA), s 269A(1). The definitions of “mental illness” in these provisions follow the traditional legal rather than psychiatric conception of the term. For example, s 7.3(9) of the Criminal Code (Cth) relies on King CJ’s words in Radford’s case in defining mental illness as “an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary external stimuli”. Section 7.3(9) also goes on to state that “such a condition may be evidence of a mental illness if it involves some abnormality and is prone to recur”. The requirement of recurrence is echoed in s 27(3) of the Criminal Code (ACT), s 43A of the Criminal Code (NT) and s 269A(1) of the Criminal Law Consolidation Act 1935 (SA), but has been omitted from the Western Australian definition. 20 21

23

R v Radford (1985) 42 SASR 266 at 274. (1990) 171 CLR 30: at 53 per Mason CJ, Brennan and McHugh JJ, at 60 per Deane and Dawson JJ, at 85 per Gaudron J. M Gelder, D Gath, R Mayou and P Cowen, The Oxford Textbook of Psychiatry (3rd ed, Oxford: Oxford University Press, 1996) p 57. F McAuley, Insanity, Psychiatry and Criminal Responsibility (Dublin: The Round Hall Press, 1993) p 35.

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The vagueness of the legal concept of “underlying pathological infirmity of mind” has perhaps been necessary because the courts have traditionally been influenced by policy rather than medical reasons in determining which mental conditions fall within the defence of mental impairment. 24 The New South Wales Law Reform Commission and the Victorian Law Reform Commission have both recommended changing the definition of “mental impairment” from an “underlying pathological infirmity of mind” to a broad definition which includes substance-induced mental disorders that are more than temporary conditions. 25 This is on the basis that a broad and inclusive definition provides flexibility, while the “operational elements” of the rest of the defence will serve to limit its scope. 26 The Western Australian Department of the Attorney General, on the other hand, has recommended keeping the “underlying pathological infirmity of mind” definition of “mental illness” as set out in s 1 of the Criminal Code (WA) and in Part 3 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) which provides the framework for managing those who have been found not guilty by reason of insanity. 27 Intellectual disability and cognitive disorders [4.40] The fifth edition of the Diagnostic and Statistical Manual of Mental Disorders

(DSM-5) defines “intellectual disability (intellectual developmental disorder)” as “a disorder with onset during the developmental period that includes both intellectual and adaptive functioning deficits in conceptual, social, and practical domains”. 28 A number of disorders are classed within the general term “Major Neurocognitive Disorder” in the DSM-5. These disorders are classified as involving a “substantial impairment in cognitive performance″ where the ″cognitive defects interfere with independence in everyday activities”. 29 Dementia, Alzheimer’s disease, traumatic brain injury, Parkinson’s disease and Huntington’s disease fall within this “Major Neurocognitive Disorder” category. 30 When the M’Naghten Rules were formulated, there is some reason to believe that, at the time, intellectual disability and cognitive disorders were regarded as a form of insanity and therefore the defence was intended to encompass them. 31 Certain jurisdictions refer to terms that appear to encompass these conditions. Section 269A(1) of the Criminal Law Consolidation Act 1935 (SA) and s 1 of the Criminal Code (WA) include intellectual disability within their definition of “mental impairment”. The 24 25

26 27 28 29 30 31

B McSherry, “Defining What is a ‘Disease of the Mind’: The Untenability of Current Legal Interpretations” (1993) 1 Journal of Law and Medicine 76. New South Wales Law Reform Commission, People with Cognitive and Mental Health Impairments in the Criminal Justice System: Criminal Responsibility and Consequences, Report No 138 (2013) p 60; Victorian Law Reform Commission, Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, Report No 28 (2014) p 115. Victorian Law Reform Commission, Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, Report No 28 (2014) p 113. Department of the Attorney-General, Government of Western Australia, Review of the Criminal Law (Mentally Impaired Accused) Act 1996, Final Report (2016) pp 37–39. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, Arlington: APA, 2013) p 33. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, Arlington: APA, 2013) p 602. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, Arlington: APA, 2013) pp 591 and 603. S Hayes and G Craddock, Simply Criminal (2nd ed, Sydney: Federation Press, 1992) pp 140–141; G Williams, Criminal Law: the General Part (2nd ed, London: Stevens & Sons, 1961) p 447; J Clemens and J Bennett, “Historical Notes on the Law of Mental Illness in New South Wales” (1962) 4 Sydney Law Review 49 at 53. [4.40]

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South Australian definition also includes a “disability or impairment of the mind resulting from senility”, while the Western Australian definition refers to “brain damage or senility”. Section 27(1) of the Criminal Code (Qld) refers to “natural mental infirmity”. In the Criminal Codes of the Commonwealth, the Australian Capital Territory and the Northern Territory, mental impairment includes senility, intellectual disability and brain damage. 32 Although intellectual disability and cognitive disorders must be distinguished from mental illness – in that they concern restrictions in physical and cognitive abilities, rather than a failure in reality testing – they may affect a person’s ability to know what he or she is doing is wrong and therefore it is important that these conditions are included within the concept of mental impairment. For the purpose of law reform, “cognitive disorder” is probably a better term than “senility”. The latter is not a medical term and the former covers cognitive impairments due to head trauma, so that “brain damage” is encompassed. Personality disorders [4.45] The Criminal Codes of the Commonwealth and the Australian Capital Territory

include “severe personality disorder” within their definitions of mental impairment: Criminal Code (Cth), s 7.3(8); Criminal Code (ACT), s 27(1). This inclusion is problematic and it is interesting to note that, after intensive lobbying, the South Australian legislature omitted this term from its proposed defence. It has also been omitted from the definition of mental impairment in the Criminal Code (NT). The term “personality disorder” is very loose and what can be considered a “severe” personality disorder is unclear. The Diagnostic and Statistical Manual of Mental Disorders refers to a number of personality disorders, including “avoidant”, “dependent” and “histrionic” personality disorders. 33 Should severe manifestations of such disorders serve to excuse individuals from criminal responsibility? The term “antisocial personality disorder” and “psychopath” are often used as loose labels in order to diagnose an extremely broad range of people who have exhibited behaviour that may be classified as antisocial. 34 The category of antisocial personality disorder, as set out in various editions of the Diagnostic and Statistical Manual of Mental Disorders, has been criticised as contributing to an over-diagnosis of the disorder in criminal and forensic settings because it over-emphasises overt criminal acts to the neglect of personality traits. 35 Perhaps more importantly, the weight of psychiatric opinion appears to be that antisocial personality disorder, the disorder most “linked” to criminal conduct, should not be equated with mental illness or mental impairment. As stated earlier, modern psychiatrists see mental illness as leading to a failure in “reality testing”. Those with antisocial personality disorders have no problem dealing with reality. Robert Hart and Stephen Hare state that antisocial personality disorder is either unassociated with, or negatively associated with, most Axis 1 32 33 34

35

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Criminal Code (Cth), s 7.3(8); Criminal Code (ACT), s 27(1); Criminal Code (NT), s 43A. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, Arlington, 2013) p 645. There have, however, been attempts to delineate what is meant by these terms: RD Hare, The Hare Psychopathy Checklist—Revised (Toronto: Multi-Health Systems, 1991); B Dolan and J Coid, Psychopathic and Antisocial Personality Disorders: Treatment and Research Issues (London: Gaskell/Royal College of Psychiatrists, 1993). For an overview of such criticisms, see TA Widiger and EM Corbett, “Antisocial Personality Disorder” in WJ Livesey (ed), The DSM-IV Personality Disorders (New York: Guildford Press, 1995) p 103; RD Hare, “Comparison of Procedures for the Assessment of Psychopathy” (1985) 53 Journal of Consulting and Clinical Psychology 7; RD Hare, SD Hart and TJ Harpur, “Psychopathy and the DSM-IV Criteria for Antisocial Personality Disorder” (1991) 100(3) Journal of Abnormal Psychology 391. [4.45]

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Clinical Disorders in the Diagnostic and Statistical Manual of Mental Disorders. 36 Personality disorders are generally viewed in a separate category to neurotic or psychotic disorders because the former are manifested by a lifelong pattern of deviant behaviour as regards cultural norms rather than by mental or emotional symptoms. It is because those with antisocial personality disorders are able to “reason” that a number of Australian cases suggest that antisocial personality disorder cannot be put forward as an independent basis for the defence of mental impairment. 37 It is also paradoxical to allow the antisocial record of an accused to be used as an argument in his or her favour. 38 The concept of excusing an accused of an offence by virtue of his or her background is one that has not generally been accepted at law. This is because of the dominance of “free will” as a basis for explaining crime rather than “determinism”: see Chapter 1, [1.110]. For these reasons, it is concerning that the MCCOC’s conception of mental impairment has been so broadened as to excuse those suffering from severe personality disorders from criminal responsibility.

Knowledge and Understanding [4.50] To establish the defence of mental impairment, it must be proved that the mental

impairment had the effect that the accused did not know—or, in the Criminal Codes of Queensland, Tasmania and Western Australia, understand—the nature and quality of the conduct, or that the conduct was wrong. The word “know” may be interpreted in two ways. It may mean to know in a “verbalistic” sense; that is, in a sense akin to learning a mathematical formula by rote. The second interpretation of “know” connotes some deeper form of understanding as in the appreciation of the effect of conduct upon other people. The actual use of the term “understanding” rather than “know” in the Code jurisdictions reflects this idea of a deeper form of appreciation. In Willgoss v The Queen, 39 however, the High Court held that a mere intellectual apprehension of the wrongness of the act amounts to knowledge under the M’Naghten Rules. The court rejected an argument to the effect that “knowledge” requires a moral appreciation of the effect of conduct. The High Court’s decision in Willgoss therefore follows the narrow interpretation of the verb “to know”. Part of the rationale behind this decision may lie in the fact that the court did not wish to excuse a person with an antisocial personality disorder from criminal responsibility. If knowledge is said to require a moral appreciation of the effect of an act on others, a person with an antisocial personality disorder could be viewed as not having this requisite degree of knowledge, resulting in him or her being found not guilty because of mental impairment. Therefore, there appears to be some discrepancy between the Code States and other jurisdictions in relation to the scope of the effect of the mental impairment on the accused’s cognitive capacities.

Nature and Quality of Conduct [4.55] The first alternative for the establishment of the defence of mental impairment in the

Australian Capital Territory, New South Wales, the Northern Territory, South Australia, 36 37 38 39

RD Hare and SD Hart, “Psychopathy, Mental Disorder and Crime” in S Hodgins (ed), Mental Disorder and Crime (Newbury Park, CA: Sage Publications, 1993) p 104. Willgoss v The Queen (1960) 105 CLR 295; Jeffrey v The Queen [1982] Tas R 199; R v Hodges (1985) 19 A Crim R 129. B Wootton, Social Science and Social Pathology (London: Allen and Unwin, 1959) pp 249ff, 333–334. (1960) 105 CLR 295. [4.55]

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Victoria and at a federal level, is to show that the accused’s mental impairment had the effect that he or she did not know the nature and quality of the conduct. This is based on the first limb of the M’Naghten Rules which has rarely been used. There is some ambiguity in the case law as to the meaning of the words “nature and quality”. The English Court of Criminal Appeal in R v Codere 40 and a line of Canadian cases have held that “nature and quality” refers only to the physical character of the conduct. 41 However, other cases suggest that “nature and quality” not only refers to the physical character of the conduct, but also to the significance of the conduct itself. For example, the High Court of Australia in Willgoss v The Queen 42 states that the nature and quality of the conduct “refers to the physical character of the act, in this case, a capacity to know or understand the significance of the act of killing”. Similarly, in the Canadian case of Cooper v The Queen, 43 Dickson J stated that the test for appreciating the nature and quality of the conduct involved the “estimation and understanding of the consequences of the act”. It would seem that if the first—and narrower—interpretation of the words “nature and quality” holds sway, a smaller group of people will be afforded the defence of mental impairment. This proposition is exemplified by the English case of R v Dickie, 44 in which the accused was charged with arson. The accused had set fire to a wastepaper basket and sat watching a blank television screen while the fire burned the carpet and smoke filled the room. There was evidence that he was in the manic phase of manic-depressive psychosis and that he was not aware of the dangerousness of his conduct. The court found that the accused did know the nature and quality of his actions because he knew he was setting fire to a wastepaper basket; the fact that his psychosis prevented him from appreciating the dangerousness of his conduct was deemed irrelevant. The Criminal Codes of Queensland, Tasmania and Western Australia avoid using the words “nature and quality” and instead refer to the capacity to understand what the accused is doing. This appears to follow the broader approach to the question set out in Willgoss. Section 16(1)(a)(i) of the Criminal Code (Tas) refers to the capacity to understand the “physical character of the act or omission”. This may reflect the narrower approach set out in Codere. In practice, this branch of the defence is rarely used, so that this discussion is largely semantic. Most cases of mental impairment fall within the following branch.

Wrong [4.60] The second alternative for the establishment of the defence of mental impairment is to

show that the accused did not know that the conduct was wrong or, in Queensland, Tasmania and Western Australia, that he or she ought not do the act or omission. Again, this is based upon the M’Naghten Rules and, in particular, Dixon J’s interpretation of the term “wrong” in R v Porter: “What is meant by wrong is wrong having regard to the everyday standards of reasonable people … [T]he main question … is whether … [the accused] was disabled from knowing that it was a wrong act

40 41 42 43 44

(1916) 12 Cr App R 21. R v Barnier (1980) 51 CCC (2d) 193; R v Kjeldsen (1981) 64 CCC (2d) 161; R v Abbey (1982) 68 CCC (2d) 394; R v Kirkby (1985) 21 CCC (3d) 31; R v Landry (1991) 62 CCC (3d) 117. (1960) 105 CLR 295 at 300. (1979) 51 CCC (2d) 129 at 145. [1984] 3 All ER 173.

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to commit in the sense that ordinary reasonable [people] understand right and wrong and that he [or she] was disabled from considering with some degree of composure and reason what he [or she] was doing and its wrongness.” 45

This view was expressly approved in Stapleton v The Queen. 46 In R v Cox, 47 White J confirmed that knowledge that the conduct is wrong in s 269C of the Criminal Law Consolidation Act 1935 (SA) should be given the same meaning as in the common law. In the Australian Capital Territory, the Northern Territory, Victoria and at the federal level, the words in Porter’s case have now been summarised to read “he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong”: Criminal Code (Cth), s 7.3(1)(b); Criminal Code (ACT), s 28(2); Criminal Code (NT), s 43C(1)(b); Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s 20(1)(b). This interpretation of “wrong” makes it clear that there is more than just a legal component to the term. It is significant in fact situations like that of R v Hadfield. 48 In that case, the accused attempted to kill King George III. The accused was motivated by the belief that he (Hadfield) was destined, by dying, to save the world. He knew that killing was contrary to law and he therefore shot at the king in order to be hanged. Knowledge of the illegality of the act was his very reason for doing it. Under Dixon J’s interpretation of the word “wrong”, a person in Hadfield’s position would be found not criminally responsible; whereas if it only means contrary to law, a person in Hadfield’s position would not be afforded a defence of mental impairment. There will be little difficulty in most instances, as what is legally wrong will be perceived as morally wrong. However, there may be problems in attempting to measure popular morality in relation to offences such as abortion (see Chapter 9, [9.215]) or euthanasia (see Chapter 9, [9.45]); see, generally, Chapter 1, [1.205]. The Canadian authors, Edwin Tollefson and Bernard Starkman, in their book, Mental Disorder in Criminal Proceedings, have been particularly critical of this notion of the perception of reasonable people: “How is the appropriate moral standard to be proved in a socially diverse country …? Will it be necessary for the Crown and the defence to conduct polls to determine what people think is morally wrong? Is the court going to determine wrong in accordance with the view of the majority … or may the view of a significant minority also be used as the basis for determining what is ‘morally wrong.’” 49

There is also no guidance in the legislation or case law as to what is meant by the accused’s inability to “reason with a moderate degree of sense and composure” which seems to echo the “defect of reason” requirement in the M’Naghten Rules. It would seem that this is a matter which would be left to the jury to decide as a matter of fact after hearing expert evidence. The Victorian Law Reform Commission has recommended that it would be best to move away from the existing test towards one which states that the person “did not have the capacity to think rationally about whether the conduct, as perceived by reasonable people, was wrong”. 50 If enacted, it would seem that the notion of thinking rationally would again be a matter for the jury to consider. 45 46 47 48 49 50

R v Porter (1933) 55 CLR 182 at 190. Stapleton v The Queen(1952) 86 CLR 358, followed by Refshauge J in R v Barker (2014) 287 FLR 249 at 258. [2006] SASC 188 at [22]. (1800) 27 St Tr 1281. E Tollefson and B Starkman, Mental Disorder in Criminal Proceedings (Toronto: Carswell, 1993) p 31. Victorian Law Reform Commission, Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, Report No 28 (2014) p 121. [4.60]

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Capacity to Control Conduct [4.65] All jurisdictions, apart from Victoria and New South Wales, now include a third

alternative to the establishment of the defence of mental impairment. The New South Wales Law Reform Commission has recommended the inclusion of a volitional component in that State’s defence to be consistent with other jurisdictions, 51 but the Victorian Law Reform Commission has decided this is unnecessary. 52 Legislation containing a volitional component refers to the capacity to control the accused’s conduct or actions. Section 16(1)(b) of the Criminal Code (Tas) is a little different in referring to whether or not the act or omission was “done or made under an impulse which, by reason of mental disease, he [or she] was in substance deprived of any power to resist”. The MCCOC has also included a “volitional” component to its model defence: Criminal Code (Cth), s 7.3(1)(c). There is very little case law setting out what is meant by the lack of capacity to control one’s conduct. One way of interpreting this volitional limb is to see it as considerably broadening the defence so that it covers those who know that they ought not do the act but are unable to resist an impulse to act. This was referred to by McMillan J in R v Moore as follows: “This section [Criminal Code (WA), s 27] 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.” 53

This notion of “uncontrollable impulse” is reflected in the wording of the Tasmanian provision (Criminal Code (Tas), s 16) and is also reflected in Wray v The King. 54 Similarly, Justice White in R v Cox referred to an inability to control the relevant conduct as including “an uncontrollable impulse to carry out the actions which caused the fatal injuries to [the victim]” (but then went on to interpret the phrase in a slightly different manner, which is outlined below). 55 In the other jurisdictions that do not include a separate volitional component, the lack of capacity to control conduct can be taken into account in assessing whether or not the accused knew that the conduct was wrong. As Dixon J explained in Sodeman v The King: “[I]t is important to bear steadily in mind that if through disorder of the faculties a prisoner is incapable of controlling his [or her] relevant acts, this may afford the strongest reason for supposing that he [or she] is incapable of forming a judgment that they are wrong, and in some cases even of understanding their nature.” 56

Mason CJ, Brennan and McHugh JJ in R v Falconer appear to have interpreted the volitional component quite differently to the approach in Moore and the common law approach. They took the question of the capacity to control conduct as concerning the capacity to perform a voluntary or “willed” act. They stated: “Because we assume that a person who is apparently conscious has the capacity to control his [or her] actions, we draw an inference that the act is done by choice … The presumption that the acts of a 51 52 53 54 55 56

New South Wales Law Reform Commission, People with Cognitive and Mental Health Impairments in the Criminal Justice System: Criminal Responsibility and Consequences, Report No 138 (2013) p 69. Victorian Law Reform Commission, Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, Report No 28 (2014) p 118. R v Moore (1908) 10 WALR 64 at 66. (1930) 33 WALR 67 at 68–69; affirmed by Refshauge J in R v Barker (2014) 287 FLR 249 at 259. [2006] SASC 188 at [25]; followed by Refshauge J in R v Barker (2014) 287 FLR 249 at 260. Sodeman v The King (1936) 55 CLR 192 at 214–221.

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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 [or her] actions.” 57

Similarly, White J in R v Cox 58 asked whether there was evidence of “an inability to refrain from a willed action”, with the main question being “whether the accused lacked the capacity to exercise willpower to control his physical acts”. Justice White queried whether this approach to an inability to control conduct extended to states of dissociation, but, as this was not in issue, he did not think it necessary to “canvass the issue further”. 59 Extensively quoting from R v Cox, Refshauge J in R v Barker stated that this is how the question of whether the accused “has made out the defence of mental impairment” should be approached. 60 The problem, however, with this equation of the inability to control conduct with the inability to exercise willpower is that it overlaps with the question of voluntariness, which has traditionally fallen within the separate area of automatism. Gray J has pointed out, in R v King, 61 that there is an “important distinction between automatism and irresistible impulse”, with a lack of awareness or altered state of consciousness generally being attached to the notion of involuntary conduct under the concept of automatism. This is discussed later in this chapter at [4.100]. In order for this distinction to remain and for the third limb of the defence of mental impairment to have any relevance at all, it would seem that the approach in Moore and Wray should hold sway. In practice, the volitional arm of the defence of mental impairment has been used very rarely in the Australian jurisdictions in which it exists. In R v Cox, White J convicted the accused of murder after rejecting an argument that the accused was unable to control his conduct because he was suffering from a condition of “morbid jealousy with delusions of infidelity”. 62 Of the few reported cases in which the accused applied for leave to appeal against conviction on the basis that he or she was unable to control his or her conduct, the appeal court concerned has invariably dismissed the appeal. 63 Only in one reported case was an appeal against conviction upheld, and that was on the basis of uncontradicted medical evidence that the accused was suffering from dementia praecox, which deprived him of the capacity to control his actions. 64 The rarity of the use of the volitional component may be explained in part because the accused’s lack of capacity to control his or her actions must be a result of a “mental disease” or the like, which in the past has not been interpreted to include personality or impulse-control disorders. The one exception to this is the case of R v Telford, 65 in which Perry J was prepared to accept a “pathological gambling disorder” (which is generally viewed as an impulse-control disorder) as a form of mental impairment under the South Australian legislation, but held that the defence was not made out because the accused was still able to control his conduct in relation to fraud and forgery charges. Where the issue of the inability to control conduct has 57 58 59 60 61 62 63 64 65

R v Falconer (1990) 171 CLR 30 at 40–41. [2006] SASC 188. [2006] SASC 188 at [25]. R v Barker (2014) 287 FLR 249 at 260–261. (2004) 155 ACTR 55 at 75. [2006] SASC 188 at [95]. R v Moore (1908) 10 WALR 64; Hitchens v The Queen [1962] Tas SR 35; O’Neill v The Queen [1976] Tas SR 66; Jeffrey v The Queen [1982] Tas R 199. Wray v The King (1930) 33 WALR 67. (2004) 89 SASR 352. [4.65]

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been raised, its lack of success may be due to the fact that “it might be perceived as an ‘easy out’ for persons who are seeking an excuse for yielding to temptation”. 66 There are a number of specific criticisms that may be aimed at excusing persons from criminal responsibility on the basis of loss of control. First, the problem with loss of control tests in general is that it is impossible to devise an objectively verifiable test to determine when an accused could not control his or her conduct and when he or she would not. 67 Certainly, it can be argued that the question raised is really not so different from the questions of degree that arise throughout the law. It is impossible to draw absolute lines when considering other legal concepts such as “intention” or “knowledge” or “negligence”, or determining “loss of control” for provocation. However, there remains a further problem with loss of control tests, and that is that such tests are based on an abandoned system of faculty psychology which divided the mind into separate and unrelated compartments. According to James Chaplin’s Dictionary of Psychology, “faculty psychology” refers to “the discredited doctrine that the mind is constituted of a number of powers or agencies, such as intellect, will, judgment, and attentiveness, which produce mental activities”. 68 While introductory psychology texts may still separate “cognition” from “emotion”, 69 much contemporary research is based on a holistic model that explores the interaction between feelings and thought processes. Margaret Matlin, for example, states that “emotion is a complex topic because it involves three components: subjective, physiological and behavioral”. 70 According to the holistic model, there can be no serious impairment of one mental function without some form of impairment of the others. For example, modern psychological research implies that “typically, an emotion begins with a cognitive appraisal, a person’s assessment of the personal meaning of his or her current circumstances”. 71 The law relating to mental impairment stems from the notion that an individual must possess the ability to reason about the significance of conduct in order for the criminal law to apply. Loss of control tests assume that a person can know what he or she is doing is wrong, yet be unable to control his or her actions. In reality, such tests assume that cognition remains completely unaffected, and this contradicts not only the holistic standpoint of modern psychology but also the view that the ability to reason plays an essential part in controlling conduct. Jerome Hall writes: “What the proponents of ‘irresistible impulse’ are in effect telling us is that the most distinctive and potent function on earth—human understanding in its full amplitude—can be normal but nonetheless impotent even as regards killing or raping or robbing. That is the thesis they are advancing and do not forget that. It can only mean that intelligence is unrelated to the control of human conduct.” 72 66 67 68 69

70 71 72

EA Tollefson and B Starkman, Mental Disorder in Criminal Proceedings (Toronto: Carswell, 1993) p 41. AS Goldstein, The Insanity Defense (New Haven, CT: Yale University Press, 1967) pp 67–68. J Chaplin, Dictionary of Psychology (2nd revised ed, New York: Dell, 1985) p 174. For example, C Wade and C Tarris, Psychology (10th ed, New Jersey: Prentice Hall, 2011); H Gleitman, J Gross and D Reisberg, Psychology (8th ed, New York: WW Norton and Company, 2011); PO Gray and DF Bjorklund, Psychology (7th ed, New York: Worth Publishers, 2014); M Matlin, Psychology (3rd ed, Fort Worth: Harcourt Brace College Publishers, 1999); EE Smith, S Nolen-Hoeksema, B Frederickson and GR Loftus, Atkinson and Hilgard’s Introduction to Psychology (14th ed, Belmont CA: Wadsworth/Thomson Learning, 2003). Psychology (3rd ed, Fort Worth: Harcourt Brace College Publishers, 1999) p 386. EE Smith, S Nolen-Hoeksema, B Frederickson and GR Loftus, Atkinson and Hilgard’s Introduction to Psychology (14th ed, Belmont CA: Wadsworth/Thomson Learning, 2003) p 390. J Hall, “Mental Disease and Criminal Responsibility: M’Naghten Versus Durham And The American Law Institute’s Tentative Draft” (1958) 33 Indiana Law Journal 212 at 223.

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It appears to be more logical from a psychological viewpoint to take the approach of Dixon J in Sodeman v The King 73 and simply take into account an incapacity to control conduct as evidence that the accused did not know that what he or she was doing was wrong. If knowledge of wrongfulness is defined as the ability of a person to reason “with a moderate degree of sense and composure”, it is not necessary to prove the complete absence of a person’s ability to reason before that person can be excused from criminal responsibility. This liberalises the strict cognitive approach of the traditional M’Naghten Rules, while preventing those who are able to reason about their conduct from being so excused. Such a test sits far more readily with traditional concepts of criminal responsibility than does a strict test of volition. Having a separate volitional arm to the defence of mental impairment is therefore fraught with difficulties from a conceptual viewpoint. It is unfortunate that the MCCOC has recommended broadening the defence in such a way as to enable those whose ability to reason is not impaired to be found not guilty because of mental impairment on the ground that they could not control their actions.

Burden and Mode of Proof of Mental Impairment [4.70] The traditional defence of insanity has provided an exception to the general rule,

recognised by the House of Lords in Woolmington v DPP, 74 that the legal burden of proof in a criminal trial rests on the prosecution. There is a presumption in the Code jurisdictions and at common law that every person is presumed to be sane or “of sound mind”. 75 The party raising the defence of mental impairment bears the burden of rebutting this presumption on the balance of probabilities. 76 “It is difficult to justify why the burden and standard of proof differs in relation to the defence of mental impairment as opposed to other offences. The traditional explanation is that it developed simply as an historical anomaly. Glanville Williams writes that ‘[t]he defence … is an anomalous exception, explicable only as a survival from a time before the present rules of burden of proof were established’.” 77

The defence of insanity set out in the M’Naghten Rules was produced at a time when the distinction between the legal and evidentiary burdens of proof “was not so fully marked by the courts”. 78 It is highly unlikely that the words “it must be clearly proved” were intended to lay down a special rule for the insanity defence. 79 Indeed, historical research reveals that the placing of the burden of proof on the prosecution was a relatively recent innovation, and that before Woolmington the law regularly required the accused to establish general defences: see Chapter 2, [2.165]. 73 74 75

76

77 78 79

(1936) 55 CLR 192. [1935] AC 462. Criminal Code (Cth), s 7.3(3); Criminal Code (ACT), s 28(4); Criminal Code (Qld), s 26; Criminal Code (NT), s 43D(1); Criminal Law Consolidation Act 1935 (SA), s 269D; Criminal Code (Tas), s 15; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s 21(1); Criminal Code (WA), s 26. Criminal Code (Cth), s 7.3(3); Criminal Code (ACT), s 28(5); Criminal Code (NT), ss 43D(2), 43E; Criminal Law Consolidation Act 1935 (SA), s 269F; Criminal Code (Tas), s 381; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 21(2)(b), 21(3); R v Porter (1933) 55 CLR 182 at 183–184; Sodeman v The King (1936) 55 CLR 192; R v Ayoub [1984] 2 NSWLR 511; R v Falconer (1990) 171 CLR 30. G Williams “Offences and Defences” (1982) 2 Legal Studies 233 at 235. R v Bonnor [1957] VR 227 at 260 per Sholl J. See also D Reaugh, “Presumptions and the Burden of Proof” (1942) 36 Illinois Law Review of Northwestern University 703 at 706–713. TH Jones, “Insanity, Automatism and the Burden of Proof on the Accused” (1995) 111 The Law Quarterly Review 475 at 477. [4.70]

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The modern rationale for the standard of proof lies in the fear that if an accused only has to bear an evidentiary burden in relation to mental impairment, more individuals would be found not criminally responsible than should be the case. One author has described this as the fear of “swinging the jail door open to any individual who can stand up in court and claim insanity”. 80 It seems difficult to support this standard in relation to mental impairment and not in relation to other defences. There appears little support for the proposition that it may be easier to fake a claim of mental impairment than, say, duress or automatism, and Timothy Jones writes: “One would also have thought that the special disposal arrangements for those found not guilty by reason of insanity … made false claims of insanity rather less likely than those of more conventional defences.” 81

At common law, if the accused has put his or her state of mind at issue, such as in relation to the defence of diminished responsibility or automatism, the prosecution can then raise the issue of mental impairment against the wishes of the defence. 82 It cannot, however, give evidence of mental impairment as part of its initial case. If the prosecution raises mental impairment in such circumstances, the standard is still that of the balance of probabilities. 83 This position is codified in s 381 of the Criminal Code (Tas), but the other Code jurisdictions are silent on the matter. Section 7.3(3) of the Criminal Code (Cth) retains the main common law principles in relation to the presumption of sanity and burden and standard of proof. It states: “A person is presumed not to have been suffering from … a mental impairment. The presumption is only displaced if it is proved on the balance of probabilities (by the prosecution or the defence) that the person was suffering from such a mental impairment.”

The MCCOC, however, concluded that there should be a midway position in relation to who may raise the issue of mental impairment. Section 7.3(4) states that the prosecution can only rely on mental impairment if the court gives leave. This has also been incorporated into the Australian Capital Territory, the Northern Territory, South Australian and Victorian provisions. 84 In these jurisdictions, therefore, the prosecution may raise the defence of mental impairment without having the defence first put the accused’s state of mind at issue. While there is the rider that the court must give leave for this to be done, there is the possibility that an accused may be acquitted on the ground of mental impairment, contrary to his or her wishes, and “could be kept in some form of psychiatric detention for a longer period than [he or she] would serve if convicted and sentenced to prison”. 85 Before 1991 in Canada, the prosecution was able to raise the issue of mental impairment even against the wishes of the defence. However, in R v Swain, 86 the Supreme Court of Canada held that such a rule infringed the accused’s right to liberty and security of the person. It is to be hoped that in the relevant Australian jurisdictions, the requirement that the prosecution be given leave of the court to raise the issue of mental impairment will limit the prosecution’s power in this regard. 80

86

S Sundby, “The Reasonable Doubt Rule and the Meaning of Innocence” (1988) 40 Hastings Law Journal 457 at 500. TH Jones, “Insanity, Automatism and the Burden of Proof on the Accused” (1995) 111 The Law Quarterly Review 475 at 477. R v Joyce [1970] SASR 184; R v Ayoub [1984] 2 NSWLR 511; R v Walsh (1991) 60 A Crim R 419. R v Ayoub [1984] 2 NSWLR 511 at 516 per Street CJ, Slattery J concurring. Criminal Code (ACT), s 28(6); Criminal Code (NT), s 43F(1)(b); Criminal Law Consolidation Act 1935 (SA), s 269E(1)(b); Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s 22(1). S Verdun-Jones, “The Insanity Defense in Canada” (1994) 17 International Journal of Law and Psychiatry 175 at 183. (1991) 63 CCC (3d) 481.

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Disposition [4.75] Traditionally, those found not guilty on the basis of insanity were locked away in

secure mental health facilities or kept in prison “at the Governor’s Pleasure”. Legislation authorising indeterminate detention was adopted in the aftermath of M’Naghten’s case in New South Wales: Dangerous Lunatics Act 1843 (NSW). 87 The prospect of indeterminate detention for their clients has led to defence counsel shying away from the use of the insanity defence. The traditional justification for detaining those found not criminally responsible centres upon the notion of incapacitation to prevent further harm to the public. Occasionally, there is reference made to justifying such detention in order to provide “treatment”. 88 This notion is difficult to support, given that many who have been detained under traditional Governor’s Pleasure orders have been detained in prisons rather than hospitals, and many did not receive any treatment at all.

Governor’s Pleasure detainees and treatment [4.80] In 1988, 66% of Governor’s Pleasure detainees in Victoria were kept in G Division at Pentridge Prison. 89 In that same year, the Victorian Law Reform Commission found that a quarter of Governor’s Pleasure detainees had received no treatment since being detained. 90 Twenty years later, 70 individuals who had been found not guilty by reason of mental impairment, known as “forensic patients”, were receiving treatment at a purpose-built secure facility, Thomas Embling Hospital, with the aim of gradually being released into the community. 91

The system of detention following the special verdict is best described as a system of preventive detention. On the rationales behind incapacitation for the dangerous, see Chapter 1, [1.85]. There is a presumption that a person who has committed a crime once because of his or her mental impairment will be driven to do so again. In this sense, those found not criminally responsible have generally been detained on the basis of “dangerousness”. That is, they are perceived as dangerous individuals who may do harm again. The High Court has accepted the justification of “protecting society” as a legitimate factor to be taken into account in fixing an appropriate sentence. 92 Systems of preventive detention have been upheld for those with mental impairment or considered dangerous who have been found guilty of serious crimes. 93 In a perfect world, individuals would not be detained on the 87 88 89 90

91 92 93

Discussed in GD Woods, A History of Criminal Law in New South Wales (Sydney: Federation Press, 2002) pp 157ff. See, for example, C Williams, “Psychopathy, Mental Illness and Preventive Detention: Issues Arising from the David Case” (1990) 16(2) Monash University Law Review 161 at 169. A Freiberg, “The Disposition of Mentally Disordered Offenders in Australia: “Out of Mind, Out of Sight” Revisited” (1994) 1(2) Psychiatry, Psychology and Law 97 at 103. Victorian Law Reform Commission, Mental Malfunction and Criminal Responsibility, Discussion Paper No 14 (1988) discussed in J Van Groningen, “Detained at the Governor’s Pleasure: The Consequence of the Insanity Verdict and Unfitness to Stand Trial” in D Greig and I Freckelton (eds), Emerging Issues for the 1990s in Psychiatry, Psychology and Law, Proceedings of the 10th Annual Congress of the Australian and New Zealand Association of Psychiatry, Psychology and Law (Melbourne: ANZAPPL, 1989) p 149. Victorian Institute of Forensic Mental Health, Annual Report 2007-2008 (2008) p 29. Veen v The Queen (No 2) (1988) 164 CLR 465 at 472. R v Carr [1996] 1 VR 585; R v Moffatt [1998] 2 CR 229; McGarry v The Queen (2001) 207 CLR 121; Fardon v Attorney-General (Qld) (2004) 223 CLR 575; cf Kable v DPP (NSW) (1996) 189 CLR 51. See, in general, B McSherry and P Keyzer, Sex Offenders and Preventive Detention: Politics, Policy and Practice (Sydney: Federation Press, 2009). [4.80]

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basis that they might do harm in the future. However, it is also true that, in some instances, there may be a connection between previous mental impairment and the risk of future harm. Some studies suggest there is an association—though not necessarily a causal link—between having mental illness, particularly schizophrenia, and an increased risk of behaving in a violent manner. 94 The problem really lies in drawing up appropriate criteria which will lead to the detention of those who really may do harm in the future, while allowing for the absolute discharge of those who do not pose a risk to the public. Reforms to the legislation in most Australian jurisdictions have enabled a wider range of dispositional options other than indefinite detention. 95 For example, s 23 of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) states that on a finding of not guilty because of mental impairment, the court must make a supervision order or order that the accused be released unconditionally. A supervision order may commit the person to custody in an approved mental health service or residential service in a prison, or release the person on conditions decided by the court and specified in the order. There is some reason to believe that the courts will take a cautious approach to the disposition of those found not guilty on the ground of mental impairment. 96 Nevertheless, it is important that flexible dispositional options are available to ensure that the defence is in fact used where relevant. 97

AUTOMATISM [4.85] One of the fundamental principles of the criminal law is that an accused can only be

considered criminally responsible where he or she performed the criminal act voluntarily in the sense that it must be willed. 98 There is no practical difference between the Australian jurisdictions as to the law relating to voluntariness. Section 13(1) of the Criminal Code (Tas) states that “no person shall be criminally responsible for an act, unless it is voluntary”. Similarly, s 23 of the Criminal Code (Qld) and s 23A of the Criminal Code (WA) state that “a person is not criminally responsible for an act or omission which occurs independently of the exercise of the person’s will”. Sections 15 of the Criminal Code (ACT) and 43AF of the Criminal Code (NT) state that “[c]onduct can only be a physical element if it is voluntary”. There are three ways in which an act may be considered at law to be involuntary: • when the criminal act was accidental; • when the criminal act was caused by a reflex action; or 94

95

96 97 98

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For an overview of the literature in this regard, see P Mullen, “Schizophrenic Syndrome, Violent and Other Antisocial Behaviours” in W Brookbanks and S Simpson (eds) Psychiatry and the Law (Wellington: Lexis Nexis, 2007). Crimes Act 1914 (Cth), s 20BJ (the MCCOC has also circulated the Mental Impairment Bill 1994 (Cth)); Crimes Act 1900 (ACT), ss 323, 324, 328, 329, 331 and 334 (the court may defer to a mental health order by the ACT Civil and Administrative Tribunal); Mental Health (Forensic Provisions) Act 1990 (NSW), s 39; Criminal Code (NT), s 43I; Criminal Law Consolidation Act 1935 (SA), s 269O; Criminal Justice (Mental Impairment) Act 1999 (Tas), s 21; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s 23; Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 22. In Queensland, indefinite detention still applies: Criminal Code (Qld), s 647 (person dealt with pursuant to the Mental Health Act 2000 (Qld) which establishes the Mental Health Court). B McSherry “Criminal Detention of Those with Mental Impairment” (1999) 6 Journal of Law and Medicine 216. RD Mackay and G Kearns, “More Fact(s) About the Insanity Defence” [1999] Criminal Law Review 714. R v Vickers [1957] 2 QB 664 at 672 per Lord Goddard CJ; R v Scott [1967] VR 276 at 288–289 per Gillard J; R v Haywood [1971] VR 755; R v Tait [1973] VR 151; R v Dodd (1974) 7 SASR 151; Woolmington v DPP [1935] AC 462 at 482 per Viscount Sankey LC; Ryan v The Queen (1967) 121 CLR 205; Dover v Doyle (2012) 34 VR 295 at 298. [4.85]

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• when the conduct was performed whilst the accused was in a state of impaired consciousness. Automatism is the term most often used to refer to involuntary conduct in the sense of it being conduct performed in a state of impaired consciousness (the third point above). When it relates to involuntariness, automatism is not a “defence” in the same sense as the defence of mental impairment, because the burden of proof is always upon the prosecution to prove beyond reasonable doubt that an accused’s conduct was voluntary. There has been a great deal of confusion in the development of the law of automatism as it not only relates to involuntary conduct, but may also be subsumed within the defence of mental impairment. The concept of voluntariness itself is often difficult to separate from the fault element of intention. The notion of an act being willed often overlaps with the notion of intentional action. That is, voluntary conduct has generally been understood as under the mental direction of the accused who has the opportunity to choose not to perform the act. The main decision dealing with automatism is that of the High Court in R v Falconer. 99 The distinction between automatism as it relates to involuntariness and automatism as it relates to the defence of mental impairment can only be understood by reference to this case.

Evidence of Dissociation—R v Falconer [4.90] Falconer’s case concerns the law relating to voluntary action and the defence of

insanity in Western Australia, but has relevance to the law in other jurisdictions. The facts showed a long history of violence by Gordon Falconer towards his wife, Mary Falconer. The latter had obtained a non-molestation order against her husband and criminal proceedings had been preferred against him in relation to allegations that he had sexually abused two of their daughters over a period of years. Mary Falconer shot Gordon Falconer dead after he unexpectedly came to where she was staying and assaulted her. She claimed that she remembered nothing after he had reached out to grab her hair until she found herself slumped against an archway with a shotgun nearby. The latter had been kept in a wardrobe and Mary Falconer said she had no recollection of picking it up or loading it. At the trial, after the Crown case had closed and the accused and other witnesses had given evidence, counsel for the defence sought to call evidence from two psychiatrists to show that the accused’s conduct was consistent with a state of automatism which rendered her conduct involuntary. The Commissioner presiding at the trial conducted a voir dire to test the admissibility of the evidence. Both psychiatrists gave evidence to the effect that the circumstances leading up to and surrounding the shooting could have produced a dissociative state where, according to one of the psychiatrists, “part of her personality would be sort of segmented and not functioning as a whole and she became disrupted in her behaviour, without awareness of what she was doing”. 100 The Commissioner ruled the evidence inadmissible and the accused was convicted. On appeal, the Western Australian Court of Criminal Appeal held that the evidence was admissible on the issue of voluntariness, allowed the appeal against conviction and ordered a retrial. The Crown then sought special leave to appeal against that order, seeking restoration of the conviction and of the sentence of life imprisonment which accompanied it. 99 100

(1990) 171 CLR 30. Falconer (1989) 46 A Crim R 83 at 109. [4.90]

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All seven judges of the High Court agreed that leave to appeal should be granted because the case raised exceptionally important questions of law, but that the appeal should be dismissed because the Commissioner erred in rejecting the evidence of dissociation. All agreed that the evidence led raised no issue of insanity, but it did raise the question of whether or not the accused’s act of discharging the gun was involuntary. At the time, s 23 of the Criminal Code (WA) provided that “a person is not criminally responsible for an act or omission which occurs independently of the exercise of his [or her] will”. This has now been replaced by s 23A(2), which is couched in similar terms. The insanity defence is set out in s 27 of this Code: “A person is not criminally responsible for an act or omission on account of unsoundness of mind if at the time of doing the act or making the omission he [or she] is in such a state of mental impairment as to deprive him [or her] of capacity to understand what he [or she] is doing, or of capacity to control his [or her] actions, or of capacity to know that he [or she] ought not to do the act or make the omission.”

All seven members of the High Court were of the opinion that s 27 of the Code encompasses involuntary action where the automatism resulted from a mental disease, natural mental infirmity or disorder of the mind. If, however, it is shown that the automatism arose from a mental condition which could not be classified as a result of a mental disease, natural mental infirmity or disorder of the mind and the act occurred involuntarily because of this mental condition, the accused would be entitled to a complete acquittal. This distinction between automatism as relating to involuntariness and automatism as subsumed within the defence of mental impairment is well ingrained in the common law. 101 Section 4.2(3) of the Criminal Code (Cth) and the examples given in s 15(2) of the Criminal Code (ACT) and s 43AF(2) of the Criminal Code (NT) also make the traditional distinction between involuntary conduct arising from impaired consciousness and conduct which is willed but committed whilst mentally impaired. These three Codes give “an act performed [‘done’ in the ACT] during impaired consciousness depriving the person of the will to act” as an example of conduct that is not voluntary. After the High Court decision, the matter was set down for a retrial so that the issue of automatism could be put to the jury. However, Mary Falconer decided at that stage to plead guilty to manslaughter. The plea was heard on 19 March 1991 before Nicholson J. On 27 March 1991, Nicholson J passed a sentence of six years imprisonment, but after allowing for the time already served, he stated that a suspended sentence was the appropriate disposition. 102 Matthew Bell argues that Mary Falconer’s actions probably had nothing to do with a psychological blow, but rather physical blows causing concussion. This has led Bell to conclude that with Falconer “the courts have a case that never was.” 103 While the High Court decision in Falconer’s case has enabled automatism to be argued on the grounds of a “psychological blow”, the rules laid down have made it difficult for this to be established. 104 The Victorian Court of Appeal has since revisited the mental defence of automatism in R v Leonboyer 105 warning that the lack of conclusive science can tempt expert witnesses asserting 101

103 104 105

Rabey v The Queen [1980] 2 SCR 513 at 524 per Dickson J; R v Cottle [1958] NZLR 999 at 1007 per Gresson P; R v Falconer (1990) 171 CLR 30; R v Barker (2014) 287 FLR 249 at 259. B McSherry, “Automatism and Criminal Responsibility: The Position in Australia Since Falconer’s Case” in I Freckelton, D Greig and M McMahon (eds), Forensic Issues in Mental Health (Melbourne: ANZAPPL, 1991) pp 216–217. DS Bell, “Judgments Revisited: Falconer” (2011) 43(4) Australian Journal of Forensic Sciences 313 at 321. DS Bell, “Judgments Revisited: Falconer” (2011) 43(4) Australian Journal of Forensic Sciences 313 at 320. [2001] VSCA 149.

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the existence of psychological blow automatism to go beyond their expertise. 106

Conditions Giving Rise to Automatism [4.95] A state of automatism may be caused by concussion from a blow to the head, 107 sleep

disorders, 108 the consumption of alcohol or other drugs, 109 neurological disorders, 110 hypoglycaemia, 111 epilepsy 112 or dissociation arising from extraordinary external stress. 113 Evidence of some degree of control over bodily movements does not preclude automatism. 114 It does not matter what the cause of automatism is, providing that the accused’s actions are rendered involuntary. 115

Consciousness and Automatism [4.100] There are conflicting decisions relating to whether or not some degree of consciousness

on the part of the accused will defeat a claim of automatism. Some cases have equated automatism with a complete lack of consciousness. 116 This appears to be on the grounds that a lack of consciousness is more readily tested than a lack of volition and the “familiarity of consciousness as a test of liability”. 117 However, other cases have suggested that because

106 107

108

109

110 111

112

113

114 115 116 117

H Wells and P Wilson, “R v Leonboyer: The Role of Expert Witnesses in Psychological Blow Cases” (2002) 9(1) Psychiatry, Psychology and Law 167. R v Minor (1955) 112 CCC 29 (CA Saskatchewan); R v Stripp (1978) 69 Cr App R 318 at 323 per Ormrod LJ; Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; Re Wakefield (1958) 75 WN (NSW) 66; Cooper v McKenna; Ex parte Cooper [1960] Qd R 406; Re Budd [1962] Crim LR 49; R v Scott [1967] VR 276; Hall (1988) 36 A Crim R 368; Wogandt (1988) 33 A Crim R 31; Dover v Doyle & Anor (2012) 34 VR 295. R v Boshears, The Times, 18 February 1961; R v Cogdon [1951] Res Jud 29; R v Holmes [1960] WAR 122 at 125; R v Scarth [1945] St R Qd 38; R v Smith [1979] 1 WLR 1445; Cordwell v Carley (1985) 31 A Crim R 291; Kroon v The Queen (1990) 55 SASR 476; Jiminez v The Queen (1992) 173 CLR 572; R v Parks [1992] 2 SCR 871 (sane automatism); R v Burgess [1991] 2 QB 92 (insane automatism). R v O’Connor (1980) 146 CLR 64; Martin (1984) 16 A Crim R 87; Jeffs v Graham (1987) 8 NSWLR 292; R v Keogh [1964] VR 400; R v Meddings [1966] VR 306; R v Dodd (1974) 7 SASR 151; R v Daviault [1994] 3 SCR 63. Police v Bannin [1991] 2 NZLR 237 (Klein-Levin syndrome); Hughes (1989) 42 A Crim R 270 (myotonia). Watmore v Jenkins [1962] 2 QB 572; August v Fingleton [1964] SASR 22; R v Quick [1973] QB 910; R v Bailey [1983] 1 WLR 760; Broome v Perkins (1986) 85 Cr App R 321; R v Hennessy [1989] 1 WLR 287 (hyper-glycaemia viewed as insane automatism). Generally, epilepsy is viewed as insane automatism: R v Cottle [1958] NZLR 999; Bratty v Attorney-General (Northern Ireland) [1963] AC 386; R v Sullivan [1984] 1 AC 156; R v Foy [1960] Qd R 225; R v Meddings [1966] VR 306; Youssef (1990) 50 A Crim R 1; Battle v The Queen (unreported, 26/2/1993, WACCA, 149 of 1992). R v Tsigos [1964–5] NSWR 1607; R v K (1970) 3 CCC (2d) 84; Re Wiseman (1972) 46 ALJ 412; R v Sproule (1975) 26 CCC (2d) 92; R v Rabey (1977) 37 CCC (2d) 461 (approved in R v Rabey (1981) 54 CCC 1); R v Isitt (1978) 67 Cr App R 44; Williams v The Queen [1978] Tas SR 98; R v Radford (1985) 42 SASR 266; Radford v The Queen (No 2) (1986) 11 Crim LJ 231; R v Falconer (1990) 171 CLR 30; Milloy v The Queen [1993] 1 Qd R 298; R v M (unreported, 18/3/1994, VSC, Hampel J); R v Mansfield (unreported, 5/5/1994, VSC, Hampel J); R v Joudrie (unreported, 9/5/1996, Court of Queen’s Bench, Alberta, No 9501–1280–C6). R v Radford (1985) 42 SASR 266 at 275–276 per King CJ; R v Burr [1969] NZLR 736 at 745 per Turner J. Jiminez v The Queen (1992) 173 CLR 572 at 581. R v Joyce [1970] SASR 184; R v Burr [1969] NZLR 736; Broome v Perkins (1986) 85 Cr App R 321; R v Isitt (1978) 67 Cr App R 44; [1977] RTR 211; Haynes v MOT (1988) 3 CRNZ 587. D O’Connor and PA Fairall, Criminal Defences (3rd ed, Sydney: Butterworths, 1996) p 282. [4.100]

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automatism is related to the concept of involuntariness rather than consciousness, 118 a degree of awareness or cognitive function is not necessarily fatal to automatism being accepted by the trier of fact. 119 In Ryan v The Queen, Barwick CJ stated: “[I]t is important … not to regard [automatism] as of the essence of the discussion, however convenient an expression automatism may be to comprehend involuntary deeds where the lack of concomitant or controlling will to act is due to diverse causes. It is that lack of will which is the relevant determinant … It is of course the absence of the will to act or, perhaps, more precisely, of its exercise rather than lack of knowledge or consciousness which … decides criminal liability.” 120

Sections 15(2) of the Criminal Code (ACT) and 43F of the Criminal Code (NT) also emphasise the importance of “the will” in distinguishing between voluntary and involuntary conduct. Those sections state that conduct is voluntary “only if it is a product of the will of the person whose conduct it is”. Stanley Yeo makes the point that “expert evidence should be used to help determine whether the defendant’s alleged criminal conduct was involuntary, and not whether he or she lacked understanding of the nature of the conduct or its wrongness”. 121 The acceptance that some degree of consciousness is not fatal to a claim of automatism is of great importance in relation to dissociative states. An accused may claim that he or she was in a state of dissociation such that he or she could not control his or her conduct, but he or she was aware of events occurring as if they were in a dream. For example, in R v Mansfield, 122 the accused stated that the events leading up to his stabbing his wife were “like watching an Arnold Schwarzenegger movie or something”. 123 It is probably misleading to think of consciousness in terms simply of it being present or not. North P has stated that “one cannot move a muscle without a direction given by the mind”. 124 The main question is whether or not there was an absence of the exercise of the will such that the accused acted automatically. 125 While amnesia is often linked to a state of automatism, amnesia of itself is not a defence to a crime. 126

Psychological perspectives Conceptions of Voluntary Conduct [4.105] In law, conduct is viewed as either voluntary or involuntary. Psychological

conceptions of conduct, however, start from the premise that there is a continuum between involuntary and voluntary conduct and that conduct performed in states of impaired consciousness may be goal-directed. The broadening of the legal concept of involuntary conduct to include automatism has led to acquittals in circumstances where 118 119

120 121 122 123 124 125 126

Ryan v The Queen (1967) 121 CLR 205 at 214 per Barwick CJ; R v Pantelic (1973) 21 FLR 253 per Fox J; R v Dodd (1974) 7 SASR 151; Jeffs v Graham (1987) 8 NSWLR 292; Barker v Burke [1970] VR 884 at 891. R v Radford (1985) 42 SASR 266 at 275–276 per King CJ; R v Burr [1969] NZLR 736 at 745 per Turner J. Compare Kilmuir LC’s statement in Bratty v Attorney-General (Northern Ireland) [1963] AC 386 at 401: “[Automatism] means unconscious voluntary action and it is a defence because the mind does not go with what is being done”. Ryan v The Queen (1967) 121 CLR 205 at 217. S Yeo, “Clarifying Automatism” (2002) 25 International Journal of Law and Psychiatry 445 at 445. Unreported, acquittal 5/5/1994, VSC, Hampel J. See B McSherry, “Automatism in Australia Since Falconer’s Case” (1996) 6 International Bulletin of Law and Mental Health 3 at 6. R v Burr [1969] NZLR 736 at 742. R v Burr [1969] NZLR 736 at 745 per North P; Ryan v The Queen (1967) 121 CLR 205 at 214. R v Hartridge (1966) 57 DLR (2d) 332; R v Matchett [1980] 2 WWR 122 at 134 per Walker DCJ.

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the accused has performed goal-directed behaviour. 127 This is of particular concern, given that from the psychological viewpoint, it is questionable that acts performed in states of impaired consciousness can truly be termed “involuntary”. There are numerous ways of explaining human action. At the simplest level, there are bodily movements that result from the contraction or relaxation of muscles. Arthur Danto has described “basic actions” as those such as waving, walking, picking up objects and so on. 128 In relation to criminal conduct, the explanation for behaviour becomes much more complex. Michael Moore writes that “[s]ince in law and morals it is persons performing actions with which we are concerned, we may put aside the behaviourist sense of action, which reduces it without remainder to bodily motions”. 129 Certainly, behaviourism—as a psychological theory that emphasises the scientific study of observable behavioural responses—is limited in the assistance it can give to the complexities of criminal responsibility. The functional approach to the theory of behaviour is perhaps of more relevance given that it looks at sensory input, neural mechanisms and resulting behaviour as a complex set of interactions. 130 It also appears to have the most current support amongst cognitive psychologists and philosophers. 131 In the psychological literature, “automatism” is the term used to explain compulsive repetitive simple behaviours usually associated with a psychomotor epileptic attack. 132 There is thus an immediate difference in the language used in this area by lawyers and psychologists. Further, a clear-cut distinction between involuntary and voluntary behaviour is foreign to most philosophical and psychological thinking. Joel Feinberg, for example, refers to voluntariness as “a variable concept, determined by higher and lower cut-off points depending on the nature of the circumstances, the interests at stake, and the moral or legal purposes to be served”. 133 In his classic work on epilepsy in the 19th century, Hughlings Jackson posited that volitional and automatistic behaviours are not polar opposites, but part of a continuum. 134 From a clinical perspective it is therefore common to talk of the “most and least volitional, or least and most automatic”. 135 The functional approach to

127

128 129 130 131 132 133 134 135

B McSherry, “Automatism in Australia Since Falconer’s Case” (1996) International Bulletin of Law and Mental Health 3; B McSherry, “Getting Away with Murder? Dissociative States and Criminal Responsibility” (1998) 21(2) International Journal of Law and Psychiatry 163; B McSherry, “Voluntariness, Intention, and the Defence of Mental Disorder: Toward a Rational Approach” (2003) 21 Behavioral Sciences and the Law 581; B McSherry, “Criminal Responsibility, ‘Fleeting’ States of Mental Impairment and the Power of Self-Control” (2004) 27 International Journal of Law and Psychiatry 445. A Danto, “Basic Action” (1965) 2 American Philosophical Quarterly 141. M Moore, Law and Psychiatry: Rethinking the Relationship (New York: Cambridge University Press, 1984) p 70. P Churchland, Matter and Consciousness: A Contemporary Introduction to the Philosophy of the Mind (Cambridge, Mass: MIT Press, 1988) p 36. R Dresser, “Culpability and Other Minds” (1993) 2(1) Southern California Interdisciplinary Law Journal 41. J Pinel, Biopsychology (8th ed, Boston: Pearson Allyn and Bacon, 2011) p 248. J Feinberg, Harm to Self (Oxford: Oxford University Press, 1986) p 117. H Jackson, “Evolution and Dissolution of the Nervous System: Croonian Lectures Delivered at the Royal College of Physicians, March 1884” (1884) 1 British Medical Journal 591. EM Coles and S Armstrong, “Hughlings Jackson on Automatism as Disinhibition” (1998) 6 Journal of Law and Medicine 73. [4.105]

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the study of mind and behaviour thus views behaviour as much more complex than the legal concept of acts as either voluntary or involuntary, a notion which has its basis in Cartesian dualism. 136 Since the 1990s, “dissociative states” have clinically come to the fore, particularly in the context of individuals recovering from traumatic events such as physical and sexual abuse. The “essential feature” of dissociative disorders is defined in the Diagnostic and Statistical Manual of Mental Disorders as “a disruption of and/or discontinuity in the normal integration of consciousness, memory, identity, emotion, perception, body representation, motor control, and behavior”. 137 Marlene Steinberg has categorised five core symptoms of dissociation: amnesia, depersonalisation, derealisation, identity confusion and identity alteration. 138 She argues that all of these symptoms must be present before a diagnosis of dissociation can be made. She has also invented the Structured Clinical Interview for DSM-IV Dissociative Disorders, which may be useful in diagnosing and assessing the presence and severity of these dissociative symptoms. 139 Steinberg writes that “[d]uring a dissociative episode, the mental contents that are dissociated from full consciousness remain on some peripheral level of awareness; from this perspective, dissociation can also be defined as a fragmentation of consciousness”. 140 Michael Coles and Simon Armstrong agree that goal-directed behaviour can occur in states of impaired consciousness where some partial awareness exists. In their view, only reflex movements or well-learned “habits”, such as those explored in experimental psychology under the term “automaticity”, can truly be considered involuntary in the sense that they are not goal-directed behaviours. 141 Albert Bandura refers to “automatization” as not being akin to unconscious activity. He writes that “[d]ifferent activities can be performed simultaneously, if they are regulated by different subsystems”. 142 John Bargh and Tanya Chartrand have also argued that there is a complex interaction between automatic perceptual activity and conscious judgements. 143 It is at this point that the psychological and legal concepts of involuntary conduct may be able to converge. Imagine that involuntary behaviour in the legal context is confined to accidental acts and reflex actions. This can be justified in the sense that such behaviour is at the “least volitional” end of the act continuum. What then of those acts which are committed in a state of impaired consciousness? From a psychological perspective, it is difficult to view such acts as “involuntary” in the same sense as accidental or reflex actions. If current psychological thinking is correct, behaviour can still be purposeful or goal-directed even when performed in states of altered consciousness. This point was in issue in the Supreme Court of Victoria decision in R v Leonboyer. 144 The defence called 136 137

142 143 144

R Dresser, “Culpability and Other Minds” (1993) 2(1) Southern California Interdisciplinary Law Journal 41. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, Arlington: APA, 2013) p 291. M Steinberg, Handbook for the Assessment of Dissociation: A Clinical Guide (Washington: American Psychiatric Press, 1995) pp 8–13. M Steinberg, Structured Clinical Interview for DSM-IV Dissociative Disorders (Revised ed, Washington: American Psychiatric Press, 1994). M Steinberg, Structured Clinical Interview for DSM-IV Dissociative Disorders (Revised ed, Washington: American Psychiatric Press, 1994) p 23. EM Coles and S Armstrong, “Hughlings Jackson on Automatism as Disinhibition” (1998) 6 Journal of Law and Medicine 73. A Bandura, Social Foundations of Thought and Action (Englewood Cliffs, NY: Prentice-Hall, 1986) p 459. J Bargh and T Chartrand, “The Unbearable Automaticity of Being” (1999) 54(7) American Psychologist 462. [2001] VSCA 149.

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evidence from a psychiatrist and a psychologist that Leonboyer was in a dissociative state at the time of stabbing his girlfriend to death after she told him she had been seeing another man. In contrast, the two psychiatrists called by the prosecution gave evidence that “any complex, directed and purposeful action is difficult to conceive as being carried out by someone whose mind is so disorganised that they cannot will their actions”. 145 Professor Paul Mullen gave evidence that the act of opening the knife, aiming, directing and striking the victim numerous times all pointed to there being purpose, direction and will behind those actions. Leonboyer was convicted of murder and an appeal against conviction was dismissed by a majority of two judges to one. One alternative that is worth exploring is to move away from viewing these acts as “involuntary” and instead bring them within the realm of the defence of mental impairment. The Canadian Psychiatric Association has suggested that automatism be subsumed within the existing defence of not criminally responsible on account of mental disorder. 146 This suggestion was based on the view that automatism always involves some form of mental impairment. There certainly appears to be a difference between accidental and reflex actions and goal-directed behaviour performed in a state of impaired consciousness. In particular, a diagnosis of dissociation as a reaction to extreme stress does not fit well with legal requirements for holding an accused criminally responsible. If a major crime such as homicide has been committed, it may often be difficult to determine whether the accused was in a state of dissociation at the time of the killing or suffered a dissociative state as a reaction to the trauma of killing another person. Further, one of the symptoms of dissociation is amnesia, which can be easily simulated. 147 This means that it can be problematic for clinicians to diagnose this condition accurately and even more difficult for the prosecution to prove beyond reasonable doubt that the accused was not in a state of dissociation. The main benefit of subsuming automatism within a general defence of mental disorder is that once a person has been found not criminally responsible, a range of dispositional options can then become available. More flexible dispositional options apart from indefinite detention are gradually being enacted in common law jurisdictions along with the introduction of a reformulated defence of mental disorder or impairment. 148 This is ultimately a policy decision that may have resource and social justice implications. 149

Automatism and the Defence of Mental Impairment [4.110] If automatism arises from a condition that is not considered to be a form of mental impairment, the focus will be on whether or not the conduct was involuntary as a result of that condition. Impaired consciousness arising in this sense will be seen as depriving the accused of the will to act. If, however, automatism arises from a condition which may be viewed as a form of mental impairment, then the defence of mental impairment may be relevant and the issue of

145 146 147 148 149

R v Leonboyer [2001] VSCA 149 at 18 per Phillips CJ. Canadian Psychiatric Association, Brief to the House of Commons Standing Committee on Justice and the Solicitor General, Subcommittee on the Reform of the General Part of the Criminal Code, 9 November 1992. TA Kiersch, “Amnesia: A Clinical Study of Ninety-Eight Cases” (1962) 119 American Journal of Psychiatry 57. B McSherry, “Mental Impairment and Criminal Responsibility: Recent Australian Legislative Reforms” (1999) 23 Criminal Law Journal 135. On the issue of possible policy options, see A Carroll, B McSherry, D Wood and S Yannoulidis, “DrugAssociated Psychoses and Criminal Responsibility” (2008) 26(5) Behavioural Sciences and the Law 633. [4.110]

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voluntariness becomes irrelevant. This latter point is clarified in s 29(1) of the Criminal Code (ACT), which states that a person cannot rely on a mental impairment to deny voluntariness. Whether or not mental impairment exists is a question of fact for the jury to decide, but expert evidence in this regard will be of crucial importance. Traditionally, the term “disease of the mind” has been central to judicial considerations concerning whether or not to classify a condition as a form of mental impairment. The next section sets out the common law in relation to the division between what has been termed “sane” and “insane” automatism.

Sane and Insane Automatism [4.115] Under the common law, the traditional distinction between sane and insane automatism was based on the concept of a “disease of the mind”. This distinction has repercussions for both the substantive law and procedural matters. If an accused is acquitted on the basis of “sane” automatism, he or she is entitled to a complete acquittal because he or she had been deprived of the will to act. However, if the automatism arose from what has been termed a disease of the mind, it is considered “insane” automatism. Under the common law, the accused was then detained at the Governor’s Pleasure under a special verdict: see [4.75] “Disposition”. What conditions were legally determined to be a “disease of the mind” has been largely based upon policy considerations. 150 Three criteria or tests have been developed by the courts in order to define what should be considered a disease of the mind: • the recurrence or continuing danger test, which holds that if a mental condition is prone to recur, it should be considered to be a disease of the mind;

• the internal/external test, which provides that if the mental state is “internal” to the accused, as opposed to arising from an external cause, it should be defined as a disease of the mind; and • the sound/unsound mind test, which is a more sophisticated version of the second test and which has been used to categorise certain “dissociative” states. According to this test, disease of the mind is considered to be evidenced by the reaction of an unsound mind to its own delusions or external stimuli. In R v Parks, La Forest J stated that the internal/external test is “really meant to be used only as an analytical tool and not as an all encompassing methodology”. 151 The same may be said in relation to all these tests—they are really artificial means of deciding who should be set free and who should be subject to some form of detention. 152 In another Canadian case R v Stone, Bastarache J, in delivering the judgment of the majority, stated that the “continuing danger” test and the “internal/external” test are both relevant in determining whether the condition of automatism was a relevant factor. 153 He also pointed out that other policy factors may also be taken into account to provide a “holistic” approach. 154 Since most Australian jurisdictions now have a range of dispositional options available for those found not guilty by reason of mental impairment, the necessity of trying to pigeonhole 150

153 154

R v Rabey (1977) 37 CCC (2d) 461 at 473 per Martin JA; R v Parks [1992] 2 SCR 871; R v Stone [1999] 2 SCR 290. [1992] 2 SCR 871 at 902. See also R v Falconer (1990) 171 CLR 30 at 50–51 per Mason CJ, Brennan and McHugh JJ, at 77 per Toohey J, at 84 per Gaudron J. See B McSherry, “Defining What is a ‘Disease of the Mind’: The Untenability of Current Legal Interpretations” (1993) 1 Journal of Law and Medicine 76 at 89. R v Stone [1999] 2 SCR 290 at 396. R v Stone [1999] 2 SCR 290 at 398.

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mental conditions as “diseases of the mind” may not be as imperative as before. However, the tests do give some indication of what conditions could fall within the defence of mental impairment and it is therefore of some value to consider them in more detail. The recurrence or continuing danger test [4.120] In R v Kemp 155 it was stated that a mental disorder for the purposes of the common

law defence of insanity may be permanent or temporary, curable or incurable. In Bratty v Attorney General (Northern Ireland), Lord Denning MR attempted to put a rider on this by stating that: “[A]ny mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind. At any rate it is the sort of disease for which a person should be detained in hospital rather than be given an unqualified acquittal.” 156

This recurrence element found favour with Sholl J in R v Carter 157 and R v Meddings. In the latter case, Sholl J stated that: “[The] potentiality of repetition … might be regarded as a discrimen between cases of irrational behaviour due to some transient cause affecting the mind, other than disease of the mind, and cases of irrational behaviour due to defective reason from disease of the mind.” 158

This test has been criticised on the basis that it may unfairly hold that conditions such as epilepsy, sleepwalking, hypoglycaemia and hyperglycaemia must, of necessity, be diseases of the mind because they are likely to recur, despite such conditions lending themselves to control through medication and good health practices. 159 It does appear that this test is not used as often as the internal/external test. However, in R v Stone, 160 the Supreme Court of Canada referred to the possibility of continuing danger as one of the factors to be taken into account in categorising a condition as sane or insane automatism. The internal/external test [4.125] The internal/external test was developed by Martin JA in the Ontario Court of Appeal

case of R v Rabey in which he stated: “In general, the distinction to be drawn is between a malfunctioning of the mind arising from some cause that is primarily internal to the accused, having its source in his [or her] psychological or emotional make-up, or in some organic pathology, as opposed to a malfunctioning of mind which is the transient effect produced by some specific external factor such as, for example, concussion.” 161

The Court of Appeal decision in Rabey was affirmed on appeal by the Supreme Court of Canada. 162 The distinction between internally and externally caused “malfunctioning of the mind” is aimed at placing mental states—such as those caused by physical blows, hypnotic 155 156 157 158 159

160 161 162

[1957] 1 QB 399 at 407; R v Coleman [2010] NSWSC 177 at [25]. Bratty v Attorney General (Northern Ireland) [1963] AC 386 at 412. [1959] VR 105. R v Meddings [1966] VR 306 at 309. Quoted with approval by Hall J in R v Doolan [2010] NSWSC 147 at [128]. B McSherry, “Defining What is a ‘Disease of the Mind’: The Untenability of Current Legal Interpretations” (1993) 1 Journal of Law and Medicine 76 at 83; PA Fairall and S Yeo, Criminal Defences In Australia (4th ed, Chatswood: LexisNexis Butterworths, 2005) p 285. [1999] 2 SCR 290. R v Rabey (1977) 37 CCC (2d) 461 at 477. Rabey v The Queen (1980) 2 SCR 513. [4.125]

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influences or drugs—firmly in the camp of automatism as it relates to voluntary conduct. The rationale appears to be that an internal weakness may be more likely to lead to recurrent violence than automatism brought about by some intervening and usually external cause. Therefore, automatism caused by some internal factor should be subsumed within a defence of mental impairment in order that the accused may be detained rather than completely acquitted. The internal/external test can be criticised because it may lead to arbitrary results. For example, in R v Quick, 163 the English Court of Appeal held that hypoglycaemia, which was brought on by the accused’s use of insulin, amounted to sane automatism because it was brought on by an external factor. However, in R v Hennessy, Lord Lane CJ suggested that hyperglycaemia caused by a failure to take insulin is an “inherent defect” which could be subsumed within the defence of insanity. 164 The internal/external test may also lead to difficulties in assessing degrees of awareness. For example, in R v Clarke, 165 the central issue at trial was whether the accused had been aware he was suffering a hypoglycaemic episode when he began to drive erratically before his car struck two young boys, one of whom died in hospital two weeks later. 166 There was evidence by two experts led by the defence that Clarke was suffering from hypoglycaemic unawareness at the time of the collision, whereas the expert called by the prosecution maintained that Clarke was aware that he was suffering from a hypoglycaemic episode but had nevertheless continued to drive. A jury found him guilty of dangerous driving. Some conditions may not lend themselves to being easily classified as arising from internal or external causes. For example, Peter Fenwick writes that because sleepwalking is known to run in families and has a marked genetic component, it can be viewed as arising from internal factors. 167 At the same time, however, he points out that “external trigger factors such as tiredness, drugs, alcohol, stress, also often play a part”. 168 The English Court of Appeal, however, has taken the view that sleepwalking, because of its internal rather than external genesis, is a form of insanity rather than automatism. 169 The internal/external test may therefore be of assistance in relation to distinguishing between clear-cut cases as, for instance, a blow to the head producing concussion from severe mental disorders such as schizophrenia. However, it is of limited use in relation to complex medical conditions such as hyperglycaemia, hypoglycaemia and sleepwalking. The sound/unsound mind test [4.130] The sound/unsound mind test is a more sophisticated version of the internal/external

distinction aimed specifically at “dissociative states”. The latter may arise from external stress factors or as a result of some forms of neurological or other general medical conditions. Dissociative states are explained loosely in the Diagnostic and Statistical Manual of Mental Disorders as follows: 163 164 165 166 167 168 169

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[1973] QB 910. R v Hennessy [1989] 1 WLR 287 at 293. [2009] EWCA Crim 921. J Rumbold and M Wasik, “Diabetic Drivers, Hypoglycaemic Unawareness, and Automatism” (2011) 11 Criminal Law Review 863 at 877. P Fenwick, “Somnambulism and the Law: A Review” (1987) 5 Behavioural Sciences and the Law 343 at 350. P Fenwick, “Somnambulism and the Law: A Review” (1987) 5 Behavioural Sciences and the Law 343 at 350. See “Case Comment—R v Burgess: Sleepwalking—Whether Insanity or Non-Insane Automatism” [1991] Criminal Law Review 548. [4.130]

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“Dissociative disorders are characterized by a disruption of and/or discontinuity in the normal integration of consciousness, memory, identity, emotion, perception, body representation, motor control, and behavior. Dissociative symptoms can potentially disrupt every area of psychological functioning.” 170

In R v Radford, King CJ set out the test for determining whether dissociative states should fall within automatism as it relates to voluntary conduct or automatism subsumed within the defence of mental impairment as a “disease of the mind”. In that case, Radford shot and killed a woman whom he believed to have been the lover of his ex-wife. Radford had served in Vietnam and, at the time of the shooting, he claimed that he thought he was shooting a soldier dressed in army gear. He stated that he had become very detached from the situation as though he “had gone into a sort of cocoon”. 171 Psychiatric evidence was called by the defence to the effect that the accused had been in a “state of derealization”, which was closely akin to dissociation, and this had been brought about by the emotional stress of the accused’s marriage break-up. The psychiatrist was also of the opinion that this state was not caused by any disease, chronic disorder or disturbance of the mind. The trial judge ruled that this evidence did not raise the issue of involuntary action apart from insanity. Counsel for the defence did not wish to raise insanity and therefore confined the issue to whether or not intention had been proved. Radford was convicted of murder. On appeal, the Supreme Court of South Australia set aside the conviction and ordered a retrial on the basis that the question of automatism as it relates to voluntary conduct should have been left to the jury. In the course of his judgment, King CJ stated: “The significant distinction is between the reaction of an unsound mind to its own delusions or to external stimuli on the one hand and the reaction of a sound mind to external stimuli, including stress producing factors, on the other hand.” 172

After a retrial, Radford was convicted of murder and this was upheld by the Court of Criminal Appeal of South Australia. 173 In R v Falconer, Mason CJ, Toohey, Brennan and McHugh JJ all approved of this test for distinguishing between dissociative states which relate to voluntary conduct and those which are subsumed within the defence of mental impairment. Gaudron J adopted a similar test, but introduced the concept of states of mind experienced by a “normal” person: “[T]he fundamental distinction is necessarily between those mental states which, although resulting in abnormal behaviour, are or may be experienced by normal persons (as, for example and relevant to the issue of involuntariness, a state of mind resulting from a blow to the head) and those which are never experienced by or encountered in normal persons.” 174

Mason CJ, Brennan and McHugh JJ also proposed an objective standard gloss to the sound/unsound mind distinction. They stated: “[T]he law must postulate a standard of mental strength which, in the face of a given level of psychological trauma, is capable of protecting the mind from malfunction to the extent prescribed in the respective definitions of insanity. That standard must be the standard of the ordinary person: if the

170 171 172 173 174

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, Arlington: APA, 2013) p 209. R v Radford (1985) 42 SASR 266 at 268. R v Radford (1985) 42 SASR 266 at 276. R v Radford (No 2) (1987) 11 Crim LJ 231. R v Falconer (1990) 171 CLR 30 at 85. [4.130]

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mind’s strength is below that standard, the mind is infirm; if it is of or above that standard, the mind is sound or sane. This is an objective standard which corresponds with the objective standard imported for the purpose of provocation.” 175

The result of these statements appears to be that where a state of dissociation is in issue, King CJ’s test will be applied and the standard will be an objective one, that of the “ordinary” or “normal” person. The main difficulty with this test lies in distinguishing between the reaction of an unsound mind and that of a sound mind, given the vagaries of determining who is an “ordinary” or “normal” person. The distinction between the two may largely depend upon the susceptibility of the accused to emotional shock and stress. For example, if there is evidence that the accused was not normally affected by stress, then he or she may have a good defence if the psychological blow is severe. On the standard of the ordinary normal person, he or she would be displaying abnormal behaviour which an ordinary person might very well experience in the same circumstances. On the other hand, if the accused’s dissociative state is triggered by an “everyday” form of stress, then he or she is to be regarded as having an unsound mind on the basis that the reaction of a normal person would not be so severe. What is the real difference? In the latter case, the accused is simply more susceptible to stress. There is an added difficulty in determining what amounts to “stress-producing factors” for the purposes of assessing the external stimuli which may cause a sound mind to react. In R v Mansfield, 176 the accused was acquitted on the basis that he was in a dissociative state as a result of the external stress of a marital breakdown when he stabbed his estranged wife to death. It is debatable whether or not a relationship breakdown is sufficient external stimuli to cause an ordinary, normal person to act in an involuntary way. King CJ sounded this warning in R v Radford (No 2): “Feelings of jealousy and resentment over the breakdown of matrimonial and other sexual relationships and hatred of a rival lover are commonplace human emotions. The law must firmly repress any tendency for people harbouring such dark emotions to give in to them by way of murderous violence.” 177

The ordinary/reasonable person standard is confronted by similar challenges in the context of provocation and self-defence: see Chapter 5, [5.10]; Chapter 6, [6.45]. As stated earlier, the three tests used to distinguish between automatism as it relates to voluntary conduct and automatism which may be subsumed within the defence of mental impairment are artificial and should only be used as guides rather than rigidly followed. 178

Cases of “Psychological Blow” Automatism [4.135] Riza Yilmaz, 29, his wife and another were charged with the stabbing murder of

Saudi diplomat, Abdullah Al Ghamdi, 54, in Canberra on 13 October 1998. The events that led to the killing were connected with the deceased’s relentless harassment of Riza’s fiancée and later wife, Moussa (Melissa). Moussa had had a previous relationship with the diplomat 175 176 177 178

R v Falconer (1990) 171 CLR 30 at 55. Unreported, acquittal 5/5/1994, VSC, Hampel J. R v Radford (No 2) (1987) 11 Crim LJ 231 at 232. R v Falconer (1990) 171 CLR 30 at 50–51 per Mason CJ, Brennan and McHugh JJ, at 77 per Toohey J, at 84 per Gaudron J.

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in Canberra, but she ended it when she moved to Sydney to be with Riza. The deceased continued to phone her, harassing and threatening her. Moussa claimed that Al Ghamdi had been violent to her in the past, and there was independent evidence supporting his persistent harassment and boasts that the police could do nothing as he was a diplomat. He was overheard saying in a phone conversation: “You can’t get away from me, they can’t touch me. I’m going to kill you”. The prosecution did not dispute this evidence. Riza, with Moussa and two friends, drove to Canberra to put a stop to this harassment. The evidence was contradictory as to their precise plan. One of the accomplices, Kurt, who turned Queen’s Evidence, claimed that Riza planned to kill the deceased from the outset. (As the trial judge directed the jury, Kurt, as an informer, had an obvious interest to minimise his own role and to exaggerate Riza’s culpability.) The other accomplices, more credibly, said that the plan simply was to threaten Al Ghamdi, and that if he didn’t comply, to beat him up. An air-rifle was brought with them to intimidate the deceased. The group turned up to the apartment and Moussa buzzed the intercom. The deceased let her into the apartment and the door closed behind her. What then ensued is not clear, but Moussa was heard screaming from within the apartment. The door opened about 30 seconds later. Moussa ran out and Riza entered. Riza’s testimony at trial can be summarised as follows: • He did not recall entering the deceased’s apartment. • He felt scared when Moussa was alone in the apartment with the deceased. • After the door opened and Moussa ran past him, he entered the apartment and saw the deceased waving a large knife at him in the kitchen, directing his anger at him. • That was his last recollection until the following day; he had no recollection of the drive back to Sydney. The trial judge directed the jury: “The last vision [Riza] had before he wakes up in the morning effectively is Mr Al-Ghamdi in the kitchen with an island of memory in between”. 179 The defence called one expert witness, a psychiatrist, Robert Finlay-Jones, whose expertise and credibility was not contested by the prosecution. His evidence suggested, as a matter of probability, that the accused’s behaviour was consistent with a state of dissociation triggered by “psychological blows”. Riza’s following history was considered particularly significant: • He was subjected to significant childhood abuse at the hands of his father. • While doing military service in Turkey, he was involved in an incident in which he was provoked into hitting a sergeant and lost control of his actions. He was discharged as medically unfit on psychological grounds. • When he was a soldier in the Turkish army, he was ordered to shoot Kurds. At one time, over 30 soldiers were blown up by a bomb, including his friend, and he had to help pick up the pieces and put them into potato sacks. He said he felt like “a zombie”. • He had a history of anxiety, panic attacks and high blood pressure. • Riza also recounted instances where he left home and ended up somewhere else without being able to explain how that had happened. The psychiatrist gave evidence that Riza’s memory loss was consistent with a state of dissociation, precipitated by the “psychological blows” of hearing Moussa screaming and seeing Al Ghamdi with a red face, staring eyes, shouting and waving a knife. 179

R v Yilmaz, Trial Transcript, p 1234. [4.135]

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The prosecution did not contradict the expert evidence, but simply disputed the factual basis of the claim. The prosecution argued that the accused had duped the psychiatrist, that he did not have a memory lapse, and that he had not experienced a state of dissociation. The prosecution also claimed that the predominant emotion was anger, not fright as the psychiatrist had claimed. On 8 August 2000, the jury deliberated for only three hours and acquitted Riza of murder. There was a public outcry at the verdict and Riza was later charged with trespass with intent to commit actual bodily harm. This charge neatly sidestepped the question of dissociation as it was based on Riza’s conduct prior to the psychological blows that had caused him to dissociate. He pleaded guilty to this charge and was given a suspended jail sentence and good behaviour bond. An appeal against the sentence by the prosecution was dismissed on 31 October 2003. 180 Another case that raised evidence of “psychological blow” automatism occurred in South Australia. On 22 June 2001, after a two-and-a-half year separation, Dharmander Singh shot and killed his estranged wife, Linda Bartley. There was a history of acrimony during the separation, partly to do with Dharmander wanting more contact with his daughter who had been born in 1999 with cerebral palsy. Linda obtained an interim domestic violence restraining order on 5 January 2000 restraining Dharmander from entering her premises and from assaulting, harassing or threatening her. The Magistrates Court also ordered that any firearm in Dharmander’s possession be confiscated. During a contact visit at the Big Orange in Berri, the daughter started screaming as Dharmander put her in his car. Linda was talking on her mobile phone and when she saw her distressed daughter, she started abusing Dharmander and allegedly hit him with the telephone. Dharmander said that he had no recollection of what happened next, but came to the following day when he was standing outside a motel in Sydney. In fact, he had taken a rifle from his car (he said it had been in the car since December 2000) and shot Linda four times. He then drove to Bordertown, replaced the number plates on his car with New South Wales ones, and drove to Sydney. Dharmander Singh was convicted of murder and given a non-parole period of 24 years. In sentencing Dharmander, Justice Lander was quoted as stating that custody disputes “should never be resolved by physical violence and mothers must be assured the court will protect them from this violence”. 181 On appeal, the Supreme Court of South Australia held that the trial judge had misdirected the jury in relation to the burden of proof and ordered a retrial. 182 At his retrial for murder, the defence called a psychiatrist who testified that Dharmander was in a state of “dissociative amnesia” caused by external stress when he fired the shots such that his actions were involuntary. In the alternative, the defence relied on the partial defence of provocation. This time, the retrial resulted in a majority verdict acquitting the accused of murder, presumably on the basis of this psychiatric evidence. Dharmander was later deported to India after he was refused a bridging visa to pursue custody of his daughter. 183 Both these cases raise issues as to whether or not states of dissociation should serve to exculpate an accused

180 181 182 183

R v Yilmaz [2003] ACTCA 20. “Domestic Violence Group Applauds Murder Sentence”, ABC News Online, 18 February 2003. R v Singh (2003) 86 SASR 473. “Killer Sent Back to India”, The Advertiser, 20 May 2004.

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from criminal responsibility. 184

Presumption of Mental Capacity [4.140] There is a presumption of mental capacity in the common law that the accused acted

pursuant to an exercise of will. 185 This presumption may be displaced by evidence that leaves the jury in doubt as to whether or not the actions were voluntary. 186 The defence, therefore, has the evidential burden in relation to the issue of automatism. 187 The standard of the evidential burden of proof in relation to automatism appears to be sufficient evidence from which it may be inferred that the conduct was involuntary. 188 In Bratty v Attorney-General (Northern Ireland), Lord Denning MR referred to the requirement that the evidential burden would be fulfilled if the evidence amounted to a “proper foundation”. 189 Similarly, in Hill v Baxter, Lord Devlin referred to the requirement of “prima facie evidence”. 190 Just what amounts to a “proper foundation” or “prima facie evidence” will be a matter for the trial judge to determine.

Burden of Proof [4.145] If automatism is raised by the defence as a subset of the defence of mental

impairment, the burden will be on the accused to prove mental impairment on the balance of probabilities. If the defence raises automatism to show that the act was involuntary, the defence bears the evidential burden and the onus is on the prosecution to negate automatism beyond reasonable doubt. 191 The defence may wish to raise automatism as relating to involuntary conduct in order to gain a complete acquittal. The prosecution may then want to raise the issue of automatism as a form of mental impairment in order to have the option of detention or a supervision order available, rather than a complete acquittal. This complicates the procedure relating to the burden and standard of proof. 184

185 186 187

188 189 190 191

See, further, B McSherry, “Criminal Responsibility, ‘Fleeting’ States of Mental Impairment and the Power of Self-Control” (2004) 27 International Journal of Law and Psychiatry 445; B McSherry, “Men Behaving Badly: Current Issues in Provocation, Automatism, Mental Impairment and Criminal Responsibility” (2005) 12(1) Psychiatry, Psychology and Law 13; B McSherry, “It’s a Man’s World: Claims of Provocation and Automatism in “Intimate” Homicides” (2005) 29 (3) Melbourne University Law Review 905. R v Falconer (1990) 171 CLR 30 at 41–42 per Mason CJ, Brennan and McHugh JJ (approving R v Radford (1985) 42 SASR 266). R v Falconer (1990) 171 CLR 30 at 41–42 per Mason CJ, Brennan and McHugh JJ; followed by Bell J in Dover v Doyle (2012) 34 VR 295 at 299. See Chapter 2, [2.180] as to the meaning of the evidential burden. See also Wogandt (1988) 33 A Crim R 31; Ryan v The Queen (1967) 121 CLR 205 at 215–216 per Barwick CJ: Bratty v Attorney-General (Northern Ireland) [1963] AC 386 at 406 per Viscount Kilmuir LC; Hill v Baxter [1958] 1 QB 277 at 285 per Devlin J; Criminal Code (Cth), s 7.3(3); Criminal Code (ACT), s 28(5); Criminal Code (NT), s 43D(2); Criminal Law Consolidation Act 1935 (SA), s 269F(3); Criminal Code (Tas), s 381(3); Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s 21(3). Youssef (1990) 50 A Crim R 1 at 3 per Hunt J. Bratty v Attorney-General (Northern Ireland) [1963] AC 386 at 413. Hill v Baxter [1958] 1 QB 277 at 285. R v Falconer (1990) 171 CLR 30 at 61–62 per Deane and Dawson JJ, at 86 per Gaudron J. Compare the decision of the minority on this point (Mason CJ, Brennan and McHugh JJ at 56) who favoured placing both the evidentiary and legal burden of proof on the defence where automatism is raised. This latter approach has been taken up by a majority of the Supreme Court of Canada in R v Stone [1999] 2 SCR 290. [4.145]

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In R v Falconer, 192 the majority was of the opinion that there was no need to modify the ordinary rules as to the burden and standard of proof. The jury therefore needs to be instructed according to a five-step procedure. Deane and Dawson JJ added (at 63) further comments about the defence of mental impairment in general, concluding that if there is evidence that would support a verdict of not guilty because of mental impairment, the prosecution could rely upon it in asking for a special verdict of supervision as an alternative to conviction. They take the realistic approach that it is more often in the interests of the prosecution to raise the issue of mental impairment rather than in the interests of the accused, because of the attendant consequences of supervision orders. Diagram 1: Five-Step Procedure 193

Mental Impairment and Intention [4.150] Evidence of mental impairment may be raised not only for the purpose of the defence

of mental impairment, but also to show that there was not the requisite intention for the crime charged. In Hawkins v The Queen, 194 the High Court held that since evidence of intoxication may be led to negate intention, “it would be anomalous to exclude evidence of other forms of mental abnormality in determining the same issue”. 195 However, it cautioned that the use of 192 193

194 195

(1990) 171 CLR 30. This diagram is based on the procedure set out in R v Falconer (1990) 171 CLR 30 at 62–63 per Deane and Dawson JJ, at 77–78 per Toohey J and at 80 per Gaudron J. According to s 21 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), the legal burden is on the party raising the defence of mental impairment and the standard of proof is on the balance of probabilities. The prosecution can only raise this defence with the leave of the trial judge: Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s 22(1). (1994) 179 CLR 500. Hawkins v The Queen (1994) 179 CLR 500 at 514.

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such evidence should arise only in circumstances where “the accused’s mental condition at the time when the incriminated act was done fell short of insanity”. 196 In reaching this conclusion, the High Court relied upon a series of Canadian cases in which mental disorder falling short of “insanity” has been held to negate the fault element. 197 Ian Leader-Elliott has summarised the procedural effect of Hawkins as follows: “If the evidence of mental disease is supplemented by evidence of one or other of the elements necessary to the defence of insanity, the jury will be instructed to return an insanity verdict if satisfied, on the balance of probabilities, that the defence is made out. The issue of intention falls to be considered: (a) if the evidence of mental disease is not capable of supporting an insanity defence; or (b) if the jury is not persuaded on the balance of probabilities that the defence is made out. Evidence of mental disease is admissible on the issue of intention and the prosecution must establish intention beyond reasonable doubt.” 198

Hawkins’ case only deals with mental impairment as it relates to intention. If intention is not made out for the crime of murder, for example, the decision in Hawkins allows a fallback position for the accused to be convicted of manslaughter rather than be given a complete acquittal. It is unclear, however, whether or not evidence of mental impairment may be admissible in relation to recklessness or negligence. Leader-Elliott argues that mental impairment may be relevant to these fault elements as well as intention. 199 It could be argued that mental impairment prevented the accused from realising the probability of harm to the victim, or that the accused was incapable of meeting ordinary standards of care. In this sense, Hawkins may open the way for a complete acquittal if the requisite fault elements are not made out. This point is yet to be decided by the courts.

INTOXICATION [4.155] A research report prepared by Ian Leader-Elliott and Jason White for the National

Symposium on Alcohol Misuse and Violence found clear evidence that “police frequently deal with intoxicated suspects”. 200 Recent empirical studies on adult detainees have confirmed high levels of illicit drug use across a wide range of offences: see Chapter 14, [14.40]. Using evidence of such intoxication (whatever the drug) in court, however, is a double-edged sword. Intoxication is not in itself a defence to a criminal charge. 201 However, it may negate the elements of a crime if it causes a condition inconsistent with criminal responsibility. Evidence

196 197

198 199 200 201

Hawkins v The Queen (1994) 179 CLR 500 at 517. More v The Queen [1963] 3 CCC 289 at 291–292; R v Lacjance [1963] 2 CCC 14 at 17; R v Kirkby (1985) 21 CCC (3d) 31 at 61; R v Baltzer (1974) 27 CCC (2d) 118 at 141; R v Meloche (1975) 34 CCC (2d) 184; R v Browning (1976) 34 CCC (2d) 200 at 202–203; R v Hilton (1977) 34 CCC (2d) 206 at 208; R v Lechasseur (1977) 38 CCC (2d) 319; R v Allard (1990) 57 CCC (3d) 397 at 401; R v Stevenson (1990) 58 CCC (3d) 464 at 488. I Leader-Elliott, “Case note: Insanity, Involuntariness and the Mental Element in Crime” (1994) 18 Criminal Law Journal 347 at 351–352. I Leader-Elliott, “Case note: Insanity, Involuntariness and the Mental Element in Crime” (1994) 18 Criminal Law Journal 347 at 355. I Leader-Elliott and J White, Legal Approaches to Alcohol-Related Violence: A Summary, Report 6A for the National Symposium on Alcohol Misuse and Violence (Canberra: AGPS, July 1994) p 29. Viro v The Queen (1978) 141 CLR 88 at 109 per Gibbs J; R v O’Connor (1980) 146 CLR 64; R v Murray [1980] 2 NSWLR 526; Sullivan (1981) 6 A Crim R 259; R v Kamipeli [1975] 2 NZLR 610. [4.155]

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of intoxication may be damaging for the defence, as it may invite an inference of intention or motive from the very fact that the accused was intoxicated. 202 Evidence of intoxication may be used by the prosecution to explain the accused’s behaviour. 203 Murphy J in R v O’Connor described the use of evidence of intoxication as follows: “The inferences to be drawn from intoxication are not all one way: evidence of intoxication may result in absence of proof beyond reasonable doubt of the requisite fault element, or in a more ready acceptance that the fault element exists on the supposition that intoxication reduces inhibitions.” 204

Evidence of intoxication may also be used by the prosecution to show negligence or recklessness in relation to charges such as culpable or dangerous driving. 205 The history of intoxication and criminal responsibility is an interesting one. In early Anglo-Saxon law, no concession was made in practice to an intoxicated accused. 206 It was only in the 19th century that a line of cases began to emerge which allowed evidence of intoxication in relation to the material question as to whether the accused’s act was premeditated or done impulsively. 207 In 1849, Coleridge J mentioned the relationship between intoxication and specific intention. In R v Monkhouse, he stated: “[W]here [intoxication] is available as a partial answer to a charge … it is not enough that [the accused] was excited or rendered more irritable, unless the intoxication was such as … to take away the power of forming any specific intention.” 208

It was in DPP v Beard 209 that the House of Lords fully established the common law relating to intoxication. In general, that decision set out the rule that an accused can use evidence of self-induced intoxication to show that he or she did not have the intent for “specific intent” crimes, but is not allowed to use evidence of self-induced intoxication to show that he or she did not have the intent required for “basic intent” offences. This approach was further set out in the case of DPP v Majewski, 210 and the distinction is explained at [4.165]. The Australian common law has diverged from that of England. However, the Beard/ Majewski approach is still reflected in statutory provisions relating to intoxication. All Australian jurisdictions, with the exceptions of Victoria and South Australia, have followed the English approach of dividing crimes into those where intoxication may be taken into account and those where evidence of intoxication is irrelevant. In Queensland and Western Australia, intoxication may be considered in relation to crimes that have “an intention to cause a specific result” as an element of the offence. 211 The Tasmanian provision simply refers 202 203

204 205 206

207 208 209 210 211

Owens (1987) 30 A Crim R 59; R v Kingston [1994] 3 WLR 519; O’Leary v Daire (1984) 13 A Crim R 404 at 411 per White J. R v Stokes (1990) 51 A Crim R 25 at 33 per Hunt J; R v Hamilton (1985) 31 A Crim R 167; R v Perks (1986) 41 SASR 335 at 340–341 per White J; R v Leaf-Milham (1987) 47 SASR 499; O’Leary v Daire (1984) 13 A Crim R 404 at 411 per White J. R v O’Connor (1980) 146 CLR 64 at 114. R v Guthrie (1981) 52 FLR 171; R v McBride [1962] 2 QB 167. RU Singh, “History of the Defence of Drunkenness in English Criminal Law” (1933) 49 Law Quarterly Review 528 at 529: see also D McCord, “The English and American History of Voluntary Intoxication to Negate Mens Rea” (1992) 11 Journal of Legal History 372. F McAuley, “The Intoxication Defence in Criminal Law” (1997) 32 Irish Jurist 243. R v Monkhouse (1849) 4 Cox CC 55 at 56. [1920] AC 479. [1977] AC 443. Criminal Code (Qld), s 28(3); Criminal Code (WA), s 28(3).

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to the element of “specific intent essential to constitute the offence”. 212 Similarly, in New South Wales, self-induced intoxication may only be taken into account in relation to whether the accused “had the intention to cause the specific result necessary for an offence of specific intent”. 213 In the Australian Capital Territory and the Northern Territory, evidence of self-induced intoxication cannot be considered in relation to the fault element of basic intent, thereby indicating that it can be considered in relation to offences containing an element of specific intent. 214

The impetus for change in New South Wales [4.160] In New South Wales, the law relating to intoxication was amended following the controversial case of R v Paxman 215 where the accused, convicted of manslaughter, received a sentence of only three years’ imprisonment. The perceived leniency was (incorrectly) blamed by the media on the availability of intoxication as an excuse, pressuring the New South Wales government to introduce the reforms.

In South Australia, the intoxication provisions were amended following the passing of the Criminal Law Consolidation (Intoxication) Amendment Act 2004 (SA). The changes came into operation on 25 November 2004 and largely codify the common law position that self-induced intoxication is relevant to the accused’s capacity to form the requisite subjective fault element of an offence, but limit this to cases where the accused’s consciousness was (or may have been) impaired by such intoxication to the degree of “criminal irresponsibility”, and only where the offence involves foresight by the accused of the consequences of his or her conduct, or an awareness of certain circumstances surrounding his or her conduct. For all other offences, the requisite fault element is to be presumed. 216 Interestingly, the MCCOC rejected the division of crimes into those where intoxication is relevant and those where it is irrelevant. It recommended that the approach in O’Connor’s case be followed. 217 However, s 8.2(1) of the Criminal Code (Cth) was nevertheless enacted, stating that self-induced intoxication cannot be considered in determining whether a fault element of basic intent existed, resulting in self-induced intoxication only being relevant to offences involving specific intent.

Intoxication in the Australian Capital Territory [4.165] On 23 February 1997, a professional rugby player called Noa Nadruku was charged

with assaulting two women outside a Canberra nightclub. There was evidence that he had punched both women in the face. In the lead-up to the assaults, Nadruku had consumed so much alcohol that he was barely conscious. Magistrate Madden described Nadruku’s actions as follows: 212 213 214 215 216 217

Criminal Code (Tas), s 17(2). Crimes Act 1900 (NSW), s 428C. Criminal Code (ACT), s 31(1); Criminal Code (NT) s 43AS(1) (applying to certain offences only). Unreported, 21/6/1995, NSWDC. Criminal Law Consolidation Act 1935 (SA), s 268. MCCOC, Model Criminal Code, Chapter 2—General Principles of Criminal Responsibility, Final Report (1992) p 51. [4.165]

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“The two young ladies were unsuspecting victims of drunken thuggery, effectively being king hit. The assaults were a disgraceful act of cowardice … The behaviour is deplorable, intolerable and unacceptable.” 218

However, Magistrate Madden went on to acquit Nadruku on the grounds that “the degree of intoxication is so overwhelming to the extent that the defendant, in my view, did not know what he did and did not form any intent as to what he was doing”. 219 Nadruku’s acquittal was widely reported in the Australian media and many commentators expressed their outrage at the operation of the “drunks’ defence”. The then Federal Attorney-General, Daryl Williams, stated that he would ask the Victorian, South Australian and Australian Capital Territory Attorneys-General to adopt the approach of the Criminal Code (Cth). 220 In early December 1997, the then Federal Minister for Justice, Senator Amanda Vanstone, stated that the defence would be removed from Commonwealth criminal law and that “the use of the drunks’ defence has sent a disturbing message to those who get intoxicated and engage in violent behaviour”. 221 The South Australian and Victorian Parliaments subsequently conducted inquiries into the law relating to intoxication. 222 In 2000, the Australian Capital Territory introduced the most restrictive provision in Australia, making self-induced intoxication irrelevant to assessing intention (in whatever form) or voluntary behaviour. 223 However, this has since been superseded by s 31 of the Criminal Code (ACT), which makes self-induced intoxication irrelevant only to offences involving basic intent. This latter approach is echoed in s 43AS of the Criminal Code (NT). Section 15(5) of the Criminal Code (ACT) and s 43AF(5) of the Criminal Code (NT) also make self-induced intoxication irrelevant in deciding whether conduct is involuntary. The effect of these provisions is that self-induced intoxication will now only be relevant to crimes of specific intent in the Australian Capital Territory. The leading common law decision in Australia dealing with intoxication is R v O’Connor. 224 In that case, the accused was caught rifling through a car owned by a police officer. When the officer found the accused, the latter had removed a map and a knife from the car. The accused went to run away, but the officer caught him and arrested him. During the arrest, the accused opened the blade of the knife and stabbed the officer. There was evidence led that the accused had taken 14 Avil travel sickness tablets and had also drunk three or four glasses of Galliano liqueur as well as three bottles of beer that day. The accused was charged with theft and with wounding with intent to resist arrest. The trial judge directed the jury that these were crimes of specific intent and intoxication could be taken into account when considering these charges, but that it was irrelevant to an alternative charge of unlawful wounding. The jury accordingly found the accused not guilty of theft and wounding with intent to resist arrest, but guilty of unlawful wounding. 218

223 224

SC Small v Noa Kurimalawai (Unreported, 22/10/1997, Magistrates’ Court ACT, CC97/01904) at 11. Noa’s actual surname is Kurimalawai, but he is known generally as Noa Nadruku. SC Small v Noa Kurimalawai (Unreported, 22/10/1997, Magistrates’ Court ACT, CC97/01904) at 11. Hon Daryl Williams, Attorney-General of Australia, “States Urged to Dump Drunk’s Defence”, Media Release, 29 October 1997. Senator the Hon Amanda Vanstone, Australian Minister for Justice, “Government to Ensure Early Removal of Drunks’ Defence”, Media Release, 2 December 1997. Attorney-General’s Office (SA), Intoxication and Criminal Responsibility, Discussion Paper (July 1998); Victorian Law Reform Committee, Inquiry Into Criminal Liability for Self-Induced Intoxication, Report (May 1999). Crimes Act 1900 (ACT), s 339. (1980) 146 CLR 64.

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The accused appealed to the Supreme Court of Victoria. It allowed the appeal and entered a verdict of acquittal on the alternative charge of unlawful wounding. The Solicitor-General of Victoria applied for special leave to appeal to the High Court. Special leave was granted and a majority of the court, consisting of Barwick CJ, Stephen, Murphy and Aickin JJ, all delivered separate judgments dismissing the Solicitor-General’s appeal. The majority was of the opinion that evidence of intoxication may be tendered to assist in raising a doubt as to the voluntary character of the criminal conduct and that such evidence may be tendered even where the offence is one of strict liability. They also held that evidence of intoxication could be relevant to cast doubt as to whether or not the accused possessed the requisite fault element in relation to the unlawful act. The minority, consisting of Wilson, Gibbs and Mason JJ, preferred to follow the English approach to evidence of intoxication set out in DPP v Majewski. 225 In that case, the House of Lords drew a distinction between crimes of basic and specific intent and held that evidence of intoxication was only relevant to the latter. The judges in the minority in O’Connor were concerned with public policy in reaching their decisions. Mason J stated: “[T]here are two strands of thought whose thrust is to deny that drunkenness is an excuse for the commission of crime. One is essentially a moral judgment—that it is wrong that a person should escape responsibility for his [or her] actions merely because he [or she] is so intoxicated by drink or drugs that his [or her] act is not willed when by his [or her] own voluntary choice he [or she] embarked on the course which led to his [or her] intoxication. The other is a social judgment—that society legitimately expects for its protection that the law will not allow to go unpunished an act which would be adjudged to be a serious criminal offence but for the fact that the perpetrator is grossly intoxicated.” 226

The majority of the High Court refused to follow Majewski because: • the distinction between crimes of specific and basic intent lacks logic; and • the social policy arguments in favour of holding an accused liable for depriving himself or herself of the capacity to act voluntarily or intentionally would provide an unjustifiable exception to fundamental common law principles. Stephen J stated that the Majewski approach “operates by means of uncertain criteria, in a manner not always rational and which serves an end which I regard as doubtful of attainment”. 227 He pointed out that murder is generally characterised as a crime of specific intent, yet other serious crimes such as rape and manslaughter are generally characterised as crimes of basic intent. He stated that such a distinction is “neither clearly defined nor easily recognizable [and] … does not reflect or give effect to any coherent attitude either as to the relative wrongfulness of particular conduct or the degree of social mischief which that conduct is thought to involve”. 228 Barwick CJ stated that the blameworthiness which may be attached to the accused’s behaviour in becoming intoxicated in the first place should not be super-imposed over the criminal conduct so as to presume that the accused acted voluntarily or with the requisite state of mind. 229

225 226 227 228 229

[1977] AC 443. R v O’Connor (1980) 146 CLR 64 at 110. R v O’Connor (1980) 146 CLR 64 at 101. R v O’Connor (1980) 146 CLR 64 at 104. R v O’Connor (1980) 146 CLR 64 at 87. [4.165]

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While the majority’s approach to evidence of intoxication in O’Connor’s case caused political and media controversy, there is no evidence that it has given rise to an increase in acquittals on the ground of intoxication. 230 This is one area of the law where there are no easy answers as to how evidence of intoxication should be taken into account. In summary, evidence of intoxication may be used by the defence, depending upon the jurisdiction, to support a claim that: • the criminal conduct was performed involuntarily; • the conduct was not intended or the accused did not have the requisite fault element for the offence; • it caused mental impairment for the purposes of the defence of mental impairment; or • it helps substantiate a claim of self-defence or provocation. We will outline the present law relating to intoxication, then look briefly at the difference between principle and policy in guiding what the law should be.

Intoxication and Voluntariness [4.170] An accused can only be considered criminally responsible where he or she performed

the criminal act voluntarily in the sense that it was willed. 231 At common law, the High Court majority decision in R v O’Connor 232 affirms that evidence of intoxication in extreme cases may support the claim that the accused’s actions were involuntary. This was the position in Victoria prior to O’Connor’s case. 233 The situation in the Code jurisdictions, however, appears to differ. Only the Criminal Code (ACT) and the Criminal Code (NT) refer to the relevance of self-induced intoxication in relation to the question of voluntary conduct. However, the case law in the other Code jurisdictions appears to hold that evidence of self-induced intoxication cannot provide a foundation for a plea of involuntariness. 234 Sections 15(5) of the Criminal Code (ACT) and 43AF(5) of the Criminal Code (NT) clearly state that self-induced intoxication cannot be considered in determining whether the conduct was voluntary. However, ss 34 and 43AV of the ACT and NT Codes respectively state that an accused will not be criminally responsible for an offence if his or her conduct is the result of intoxication that is not self-induced. In R v Kusu, 235 the majority of the Supreme Court of Queensland held that intoxication was irrelevant to a consideration of s 23(1) of the Criminal Code (Qld). That section sets out that a person is not criminally responsible for an act that occurs independently of the exercise 230

235

See, for example, Victorian Law Reform Commission, Criminal Responsibility: Intention and Gross Intoxication, Report No 6 (1986), p 19; G Smith, “A Footnote to O’Connor’s case” (1981) 5 Criminal Law Journal 270 at 276–277. Criminal Code (ACT), s 15(2); Criminal Code (NT), ss 31, 43AF(2); Criminal Code (Qld), s 23; Criminal Code (Tas), s 13; Criminal Code (WA), s 23A(2); R v Vickers [1957] 2 QB 664 at 672 per Lord Goddard CJ; R v Scott [1967] VR 276 at 288–289 per Gillard J; R v Haywood [1971] VR 755; R v Tait [1973] VR 151; R v Dodd (1974) 7 SASR 151; Woolmington v DPP [1935] AC 462 at 482 per Viscount Sankey LC; Ryan v The Queen (1967) 121 CLR 205; Dover v Doyle (2012) 34 VR 295 at 298. See Chapter 3, [3.105] “Voluntariness”. (1980) 146 CLR 64. R v Keogh [1964] VR 400; R v Haywood [1971] VR 755. R v Martin [1979] Tas R 211; (1979) 1 A Crim R 85 at 213 (Tas); Arnol (1981) 7 A Crim R 291; Palmer v The Queen [1985] Tas R 138; Bennett (1989) 45 A Crim R 45; R v Kusu [1981] Qd R 136; R v Miers [1985] 2 Qd R 138; Cameron (1990) 47 A Crim R 397 at 410; R v Battle (1993) 8 WAR 449; Haggie v Meredith (1993) 9 WAR 206. [1981] Qd R 136.

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of the person’s will. Malcolm CJ in Cameron 236 expressed sympathy for the view that intoxication should be relevant to assessing whether conduct was voluntary, but accepted that the weight of authority supported the majority view in Kusu and there was no room for the question of s 23 in an intoxication case. Section 13(1) of the Criminal Code (Tas) requires an act to be voluntary and intentional in order for criminal responsibility to be made out. In Snow v The Queen, 237 the majority held that intoxication was irrelevant to this section unless it had caused a disease of the mind and brought into play the defence of insanity. In dissent, Crawford J stated that intoxication could, on rare occasions, be relevant as to whether the act of an accused was voluntary and intentional or to whether the act occurred by chance. The decision of the majority in Snow’s case was affirmed by the Supreme Court of Tasmania in Attorney-General’s Reference (No 1 of 1996): Re David John Weiderman. 238 Section 428G(1) of the Crimes Act 1900 (NSW) makes it clear that self-induced intoxication cannot be taken into account in determining whether the relevant conduct was voluntary. Evidence of intoxication is used most commonly in order to negate the fault element of a crime rather than as grounds for involuntary conduct. 239 This is perhaps partly because of the difficulty in getting a jury to accept that the accused could carry out often complicated conduct, yet claim that this conduct was unwilled due to intoxication. Indeed, the idea that the movements of the body can be divorced from the will has been the subject of debate in philosophical literature. 240 Because evidence of intoxication is used most often to negate the requisite fault element, a jury direction in relation to voluntariness will usually be unnecessary. King CJ has explained this in R v Tucker as follows: “If intent is proved, voluntariness is proved ipso facto. In all such cases a direction as to the effect of alcohol on the existence of volition is unnecessary and could well confuse the jury.” 241

On the other hand, if intent is not proved, a verdict of not guilty results irrespective of whether or not the conduct was involuntary. At common law, partial intoxication as well as total intoxication may be relevant to the issue of whether or not the criminal conduct was involuntary. 242 Paul Fairall and Desmond O’Connor write: “The effect of partial intoxication may be one of several discrete factors (for example, epilepsy, concussion, nervous shock) put forward by way of explanation for the accused’s involuntary conduct. Such factors should be viewed collectively, and not in isolation. The jury should be directed to take into account any evidence of intoxication (whether partial or total) in deciding whether the act was a product of the will.” 243

It should be pointed out that in O’Connor’s case, the majority of the High Court did not itself conclude that O’Connor’s actions were involuntary, but held that this matter should have 236 237 238

239 240

241 242 243

(1990) 47 A Crim R 397. [1962] Tas SR 271. Attorney-General’s Reference (No 1 of 1996): Re David John Weiderman(unrep, 26/2/1998, Tas SC CCA, No 12/98). See R Bradfield, “Case and Comment: Attorney-General’s Reference No 1 of 1996, Re Weiderman” (1999) 23 Criminal Law Journal 41. R v Tucker (1984) 36 SASR 135. See, for example, HLA Hart, Punishment and Responsibility (Oxford: Clarendon Press, 1968) pp 90–112; EM Coles and D Jang, “A Psychological Perspective on the Legal Concepts of ’Volition’ and ’Intent’” (1996) 4 Journal of Law and Medicine 60. R v Tucker (1984) 36 SASR 135 at 139. Martin (1983) 9 A Crim R 376 at 404. D O’Connor and P Fairall, Criminal Defences (3rd ed, Sydney: Butterworths, 1996) pp 232–233. [4.170]

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been left to the jury to decide. Chief Justice Barwick spent some time discussing the issue of voluntariness. The other judges did not discuss the issue in as much detail, and it is therefore unclear as to what level of importance they placed upon the issue.

Intoxication and Fault Elements [4.175] Subjective fault elements have traditionally been divided into intention, knowledge

and recklessness: see Chapter 3, [3.170]-[3.225] “Fault elements”. A further fault element is expressed in the objective element of negligence. Evidence of intoxication may be raised to negate some of these subjective fault elements depending upon the jurisdiction, but it will not afford any assistance to the defence in relation to casting a doubt with regard to negligent conduct. In the latter case, it may be used by the prosecution to show negligence in relation to charges such as culpable or dangerous driving. 244 This is discussed at [4.195]. Intoxication and intention, knowledge and recklessness [4.180] At common law, evidence of intoxication may be relevant to show that the accused

did not possess the requisite intention or knowledge for the offence or to negate recklessness. 245 This rule can be viewed as the logical consequence of fidelity to the principle of subjective fault. However, while the majority of the High Court in O’Connor’s case held that intoxication was relevant in assessing subjective fault, jury directions usually stress that evidence of intoxication will not preclude intent, but may serve to loosen inhibitions such that “a drunken intent is an intent nevertheless”. 246 Such a “mixed-message” jury direction as to intention has been described by Alan Norrie as “having one’s subjectivist cake and eating it”. 247 As outlined in Chapter 3, [3.180], the fault element of most serious crimes is generally expressed as an intention to bring about the requisite physical element of the offence. In relation to the physical element as a specified form of conduct or conduct that occurs in specified circumstances, intention refers to the accused meaning to perform the conduct. In relation to the physical element as the results or consequences of conduct, the prosecution must prove that the accused’s purpose was to bring about the results or consequences of the conduct. 248 Evidence of intoxication may therefore be raised to show that the accused did not mean to perform the conduct or did not act with the purpose of bringing about the results or consequences of the conduct. An accused may be held criminally responsible if he or she acts with knowledge that a particular circumstance exists or awareness that a particular consequence will result from the performance of the conduct. Evidence of intoxication may therefore be relevant here to show that the accused did not act with the requisite knowledge or awareness. An accused is said to be reckless where he or she acts in the knowledge that a consequence is a probable or possible result of his or her conduct. 249 Evidence of intoxication may be relevant here to show that the accused did not foresee the likelihood of a consequence or 244 245 246 247 248 249

R v Guthrie (1981) 52 FLR 171; R v McBride [1962] 2 QB 167. R v O’Connor (1980) 146 CLR 64 at 87–88 per Barwick CJ, at 105 per Stephen J, at 113–114 per Murphy J, at 125–126 per Aickin J; Martin (1984) 16 A Crim R 87. For model jury directions on intoxication in these terms, see J Glissan and S Tilmoth, Australian Criminal Trial Directions (Sydney: Butterworths, 1995) [5–1400–1], p 7601. A Norrie, Crime, Reason and History (2nd ed, London: LexisNexis Butterworths, 2001) p 53. La Fontaine v The Queen (1976) 136 CLR 62; R v Crabbe (1985) 156 CLR 464; Boughey v The Queen (1986) 161 CLR 10; R v Demirian [1989] VR 97. Pemble v The Queen (1971) 124 CLR 107; La Fontaine v The Queen (1976) 136 CLR 62; Nydam v The Queen [1977] VR 430; R v Crabbe (1985) 156 CLR 464; R v Demirian [1989] VR 97; Filmer v Barclay [1994] 2 VR 269.

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circumstance occurring. For example, in relation to a charge of murder, intoxication may be relevant where the mental element the prosecution must prove is reckless indifference to human life. 250 The test for recklessness which may satisfy the fault element of a crime involves an assessment of whether the accused was aware of the possible consequences of committing the criminal act, and whether he or she decided to disregard them and act without caring for the consequences. 251 In South Australia, ss 268(2) and 268(3) of the Criminal Law Consolidation Act 1935 (SA) provide that where an offence requires the accused to have had foresight as to the consequences of his or her conduct, or an awareness of circumstances surrounding the conduct, then self-induced intoxication will be relevant if it results in an accused’s consciousness being impaired to the point of criminal irresponsibility. Criminal irresponsibility for the purposes of this section is defined as the accused’s consciousness being “impaired to the extent necessary at common law for an acquittal by reason only of the defendant’s intoxication”. 252 Thus, it appears that in South Australia self-induced intoxication may be relevant to negate any of the subjective fault elements, including knowledge and recklessness. For any other offence not involving foresight of the consequence of conduct or awareness of certain circumstances surrounding the conduct, self-induced intoxication will not be relevant and the accused is to be treated as though his or her conduct had been voluntary and intended. 253 These provisions also codify the culpability of an accused who had formed the requisite intent and then consumed intoxicants to strengthen his or her resolve to so act. 254 The Code jurisdictions take a different approach to the question of intention. In Queensland and Western Australia, intoxication may be considered in relation to crimes that have “an intention to cause a specific result” as an element of the offence. 255 Similarly, in New South Wales, self-induced intoxication may only be taken into account in relation to whether the accused “had the intention to cause the specific result necessary for an offence of specific intent”. 256 Sections 31(1) of the Criminal Code (ACT) and 43AS(1) of the Criminal Code (NT) provide that self-induced intoxication may not be taken into account in determining whether “a fault element of basic intent exists”—by implication, these provisions allow its consideration for specific intent offences. Section 17(2) of the Criminal Code (Tas) states that evidence of intoxication may be relevant to whether the accused was “incapable of forming the specific intent essential to constitute the offence”. In Attorney-General’s Reference (No 1 of 1996); Re Weiderman, 257 the Supreme Court of Tasmania seems to imply that intoxication may be relevant to negate other fault elements such as knowledge. 258 The obvious question that arises in relation to intoxication and intention is what are crimes of basic as opposed to specific intent? Section 428B(2) of the Crimes Act 1900 (NSW) now provides a non-exhaustive list of 95 offences of specific intent, including murder and 250 251

252 253 254 255 256 257 258

R v Stones (1955) 56 SR (NSW) 25 at 34; R v Gordon [1964] NSWR 1024; Peterkin v The Queen (1982) 6 A Crim R 351. R v O’Connor (1980) 146 CLR 64 at 85 per Barwick CJ; R v Crabbe (1985) 156 CLR 464; R v Brown (1987) 78 ALR 368; R v Solomon [1980] 1 NSWLR 321; Stokes (1990) 51 A Crim R 25; R v Barker (2014) 287 FLR 249 at 252. Criminal Law Consolidation Act 1935 (SA), s 268(6). Criminal Law Consolidation Act 1935 (SA), s 268(2). Criminal Law Consolidation Act 1935 (SA), s 268(1). Criminal Code (Qld), s 28(3); Criminal Code (WA), s 28(3). Crimes Act 1900 (NSW), s 428C. (Unreported, 26/2/1998, Tas SC CCA, 12/98). See R Bradfield, “Case and Comment: Attorney-General’s Reference No 1 of 1996, Re Weiderman” (1999) 23 Criminal Law Journal 41. [4.180]

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wounding with intent to do bodily harm, where intoxication may be relevant. It will not be relevant to crimes such as assault, manslaughter and rape. The following table is based on the case law that has provided practical divisions between offences of basic and specific intent, but as we shall see, theoretically, the division is difficult to explain or justify. 259 In New South Wales where the statute is silent, the courts may consider case law from cognate jurisdictions, although these classifications will only be persuasive. Table 2 Division between Crimes of Basic and Specific Intent CRIMES OF BASIC INTENT (intoxication not relevant) manslaughter (R v Howell [1974] 2 All ER 806; R v Martin [1979] Tas R 211; Martin (1984) 16 A Crim R 87) assault and unlawful wounding* (R v O’Connor (1980) 146 CLR 64; DPP v Majewski [1977] AC 443; Duffy v The Queen [1981] WAR 72) rape (Holman v The Queen [1970] WAR 2; R v Thompson [1961] 1 Qd R 503; Snow v The Queen [1962] Tas SR 271 (CCA); R v Arnol [1980] Tas R 222. Compare R v Hornbuckle [1945] VLR 281.) unlawfully causing grievous bodily harm (Bennett (1989) 45 A Crim R 45 (Tas SC CCA)) unlawful use of a motor vehicle (R v Kaeser [1961] QWN 11) – – – –

CRIMES OF SPECIFIC INTENT (intoxication maybe relevant) murder (DPP v Majewski [1977] AC 443; R v O’Connor (1980) 146 CLR 64; R v Lovet [1986] 1 Qd R 52 at 57 per Kelly SPJ) wounding with intent to resist arrest (R v O’Connor (1980) 146 CLR 64)

stealing and larceny (R v O’Connor (1980) 146 CLR 64; R v Mathieson (1906) 25 NZLR 879) unlawfully entering premises (Police v Bannin [1991] 2 NZLR 237) robbery (Kaminski v The Queen [1975] WAR 143) inchoate offences such as attempts and conspiracy (R v Mohan [1976] QB 1) incest (R v O’Regan [1961] Qd R 78)

* It is important to note that while common assault is a crime of basic intent, this is not true for all assault related offences, and as such the wording of the provision should be examined carefully. Section 58 of the Crimes Act 1900 (NSW) is an example of such a provision, which itself creates three possible modes of assault, only two of which have “specific intent” as an element. Lord Simon in DPP v Morgan stated: “By ‘crimes of basic intent’, I mean those crimes whose definition expresses (or, more often, implies) a mens rea which does not go beyond the actus reus. The actus reus generally consists of an act and some consequence. The consequence may be very closely connected with the act, or more remotely connected with it: but with a crime of basic intent the mens rea does not extend beyond the act and its consequence, however remote, defined in the actus reus.” 260

This quotation appears to refer to the division between conduct as an element of an offence and the physical element as the results or consequences of conduct. It is relatively simple on 259 260

For a detailed criticism of the basic/specific intent distinction see T Quigley, “Specific and General Nonsense?” (1987) 11 Dalhousie Law Journal 75. DPP v Morgan [1976] AC 182 at 216.

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that division to see that murder is a crime of specific intent. What is prohibited in the crime of murder is the death of the victim rather than the conduct that caused the death. It is irrelevant what conduct was undertaken which caused the death; providing the conduct of the accused results in the death of the victim, the physical element of murder will be established. The other rationale for the distinction in Majewski is that crimes of basic intent are those satisfied by recklessness. 261 On this view, the reckless act of voluntary intoxication supplies the requisite blameworthiness to hold the accused responsible. The equation of fault is imperfect and, as a result, Lord Simon’s explanation—the “ulterior intent” test—has been preferred. But why should rape be a crime of specific intent? Rape is generally defined by intentional sexual penetration (conduct) which occurs without the other person’s consent (the specified circumstance). It is a crime that has, as its physical element, conduct that occurs in specified circumstances rather than a result or consequence of conduct. There are conflicting authorities in relation to the basic/specific intent classification for rape (see Table 2 above) though the preponderance of authority and academic opinion favours the basic intent classification. 262 It is significant that the offences of sexual assault (s 61I) and aggravated sexual assault (s 61J) are not listed as crimes of specific intent in the list provided under s 428B of the Crimes Act 1900 (NSW), whereas assault with intent to have sexual intercourse is (s 61K). In New South Wales, at least, self-induced intoxication will be irrelevant in relation to these offences. It is also very difficult to find any rationale for holding that intoxication is relevant to certain offences and not to others. For example, why should intoxication be taken into account in relation to an attempt to commit an offence of basic intent and yet not in relation to the offence of basic intent itself? The division is often arbitrary and inconsistent, without any guiding principles or rationale. Section 17(2) of the Criminal Code (Tas) sets out the requirement that evidence of intoxication is relevant to whether or not the accused was “incapable of forming the specific intent essential to constitute the offence”. Such evidence therefore goes to the question of capacity rather than the fact of intention. 263 In Queensland and Western Australia and at common law, it is clear that capacity is not in issue and it is a misdirection to suggest otherwise. 264 Where evidence of intoxication is raised by the defence to negate the requisite fault element, the prosecution may attempt to counteract this by claiming that the evidence showed that the accused became intoxicated in order to commit the crime or to strengthen his or her resolve to commit the crime. At common law, it is said that such self-induced intoxication—known as “Dutch Courage”—does not operate to excuse the accused. This is discussed at [4.185]. This position is now reflected in statute: see Crimes Act 1900 (NSW), s 428C(2).

261 262 263 264

G Orchard, “Drunkenness as a “Defence” to “Crime”” (1977) Criminal Law Journal 59 at 132. See Lawbook, The Laws of Australia (at 1 January 2017) 9 Criminal Law Principles, “3 Defences and Responsibility” [9.3.2250]. Bennett (1989) 45 A Crim R 45; Palmer v The Queen [1985] Tas R 138; McCullough v The Queen [1982] Tas R 43 at 50–51; Snow v The Queen [1962] Tas SR 271. R v Gordon (1963) 63 SR(NSW) 631; R v Kampeli [1975] 2 NZLR 610 at 616; R v Hart [1986] 2 NZLR 408; Viro v The Queen (1978) 141 CLR 88; Helmhout v The Queen (1980) 49 FLR 1 at 5–6; Herbert v The Queen (1982) 62 FLR 302 at 313 per Toohey and Sheppard JJ; R v Tucker (1984) 36 SASR 135; Summers (1986) 22 A Crim R 47 at 48 per King CJ; R v Coleman (1990) 19 NSWLR 467; Cameron (1990) 47 A Crim R 397 at 407 per Malcolm CJ; R v Ball (1991) 56 SASR 126. [4.180]

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The inculcation of “Dutch Courage” into the Law [4.185] The prosecution may claim that evidence of self-induced intoxication showed that the accused became intoxicated in order to commit the crime, alcohol being known as a disinhibitor. 265 In Attorney-General (Northern Ireland) v Gallagher, 266 Lord Denning MR referred to this by the expression “Dutch Courage”. We referred to this in a footnote in the first edition of this book and a law student of Dutch origin rightly pointed out that this expression has offensive overtones. Lord Denning did not invent this phrase, although his use of the term in the criminal law was probably novel. The term has much older origins. For the past two centuries, there has been a long-standing abuse of the Dutch in the English language. This particular phrase, “Dutch Courage”, was coined in the 17th century. The origins may not have been originally pejorative. The Dutch were one of the few Protestant States which, like England, struggled against the Catholic imperial might of France and Spain. It may, in fact, be a reflection that the English, to be as brave as the Dutch, had to consume alcohol. Of course, meanings are not fixed. Conflict between the Dutch and British empires increased over the course of the 17th century, each nation vying for naval supremacy. The Morris Dictionary of Word and Phrase Origins states: “Probably no nationality has come in for so consistent a torrent of verbal abuse from the English as their neighbors across the channel the Dutch … It was not always thus. Until well after Shakespeare’s time, the Dutch were usually well regarded in all literary references by British authors. But during the seventeenth century the two nations became rivals in international commerce. For a while, at least, the Dutch colonial empire loomed as a real challenge to Britain’s. So the disrespectful references began.” 267 It may be that the specific use of Dutch Courage came to be associated with the Royal Navy’s practice of issuing rum rations, especially before battle. One direct effect of the pejorative use of the “Dutch” label was that the people of Holland reinvented themselves as Netherlanders in the last century: “The Dutch people have been so offended by the English language over the past three centuries that in 1934 their government decided to drop the word Dutch and use Netherlands whenever possible.” 268 Language, both legal and conventional, has a historical context against which meanings surface. Phrases get fixed in their meaning, though the origins (whether based in respect or hostility towards national groups) gradually fade from communal consciousness. 269

Intoxication and Reckless Murder [4.190] In the second half of 1999, Robert Grant, then aged 43, was sacked from his job at

the Lightning Ridge Motor Village following an altercation when he had been intoxicated. On 27 November 1999, Grant spent most of the day drinking alcoholic cider until he was refused service at the Lightning Ridge Bowling Club because of his intoxicated state. He went to his caravan and, in the early hours of 28 November, emerged, armed with a rifle. Three men—Ross Shersingh, Daniel Bradford and Anthony Leeder—were standing in a nearby carpark, talking and drinking beer. Grant, while holding a rifle at his hip, first shot and killed 265 266 267 268 269

O’Leary v Daire (1984) 13 A Crim R 404 at 411 per White J. [1963] AC 349 at 379 and 382. The Morris Dictionary of Word and Phrase Origins (2nd ed, New York: Harper and Row, 1988) pp 196–197. Robert Hendrickson, The Encyclopedia of Word and Phrase Origins (New York: Fact on File, 1997) p 222. See also EC Brewer’s famous Dictionary of Phrase and Fable (Leicester: Blitz Editions, 1993), p 393.

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Ross Shersingh. He then chased and shot at Daniel Bradford, but Bradford managed to escape through a drive-in bottle shop. Anthony Leeder managed to roll under a car and made his escape across the caravan park to raise the alarm. Grant then returned to his caravan and went to sleep. Grant was charged with murder and shooting with intent to murder and, in the alternative, maliciously discharging a loaded firearm with intent to do grievous bodily harm. All of these charges require a specific intent according to the list of offences set out in s 428B(2) of the Crimes Act 1900 (NSW). At his trial, the defence raised evidence that Grant was so intoxicated he had been unable to form the specific intent required. The jury rejected this evidence and found Grant guilty of murder and shooting with intent to murder. Justice Hulme sentenced him to imprisonment for a period of 18 years with a non-parole period of 13 years for the murder, and to imprisonment for a fixed term of five years for shooting with intent to murder. On appeal, the defence argued that the trial judge had misdirected the jury as to intoxication and the fault element for murder. In New South Wales, the fault element for murder includes a specific intent to kill or to cause grievous bodily harm as well as reckless indifference to human life, defined as knowledge that death was a probable result: see Chapter 9, [9.115]-[9.125]. The trial judge directed the jury that intoxication could be taken into account in relation to an intention to kill or to cause grievous bodily harm, but for no other purpose. The New South Wales Court of Criminal Appeal upheld Grant’s appeal against his conviction for murder and ordered a retrial. 270 The appeal against Grant’s conviction for shooting with intent to murder was dismissed. The court was of the opinion that intoxication is relevant to murder by reckless indifference. In delivering the judgment of the court, Wood CJ at CL stated: “Bearing in mind … the potential complexity for a jury where a case is left upon the alternative bases of specific intent, and reckless indifference and/or manslaughter, the comparable degree of heinousness which attaches to murder however committed, the nature of the malice aforethought involved, and the terms in which s 428C is framed, I have reached the conclusion that the legislature should be taken as having intended that murder, in all of its forms, should come within the operation of s 428C.” 271

This decision therefore expands the relevance of intoxication to reckless murder as well as to intentional murder. At his retrial, the prosecution refused to accept a plea of guilty to manslaughter and Grant was convicted of murder. Justice Dunford sentenced him to imprisonment for 18 years, with a non-parole period of 13 years, the same sentence that had been imposed at the first trial. Intoxication and negligence [4.195] Evidence of intoxication may be raised by the prosecution to show that the accused

acted negligently. 272 In the case of serious offences based on negligence where death or serious injury has resulted, the prosecution must prove that the accused’s behaviour fell grossly short of the standard expected of a reasonable, sober person. 273 The only way in which evidence of intoxication may perhaps aid the defence in negligence-based crimes is where there is evidence 270 271 272 273

R v Grant (2002) 55 NSWLR 80. R v Grant (2002) 55 NSWLR 80 at 104. R v Guthrie (1981) 52 FLR 17. Nydam v The Queen [1977] VR 430. [4.195]

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that the accused became intoxicated accidentally. 274 This may occur by the stratagem or fraud of another person or the error of a physician or chemist. 275 Several jurisdictions have codified this requirement by applying the standard of a reasonable person who is not intoxicated. 276 For example, the Crimes Act 1900 (NSW) states that, in determining whether a person is guilty of an offence, the correct comparison is to be made between the conduct or state of mind of the person in question and “that of a reasonable person who is not intoxicated”. 277 Where the intoxication is not self-induced, some jurisdiction apply a more lenient standard. In those circumstances, the Criminal Code (Cth), the Criminal Code (ACT) and the Criminal Code (NT) state that “regard must be had to the standard of a reasonable person intoxicated to the same extent” as the accused. 278 The rationale behind this latter provision was that it would be unfair to hold an accused who had become involuntarily intoxicated to the standard of a sober reasonable person. 279 Presumably, expert evidence would have to be led in relation to the level of control that might be experienced by a reasonable person intoxicated to the same extent as the accused. Sections 268(4) and 268(5) of the Criminal Law Consolidation Act 1935 (SA) provide that an accused person whose conduct causes death or serious injury but who is impaired by self-induced intoxication to the point of criminal irresponsibility, may be convicted of manslaughter or causing serious harm by criminal negligence (respectively) when his or her conduct, “judged by the standard appropriate to a reasonable and sober person in the [accused’s] position, falls so short of that standard that it amounts to criminal negligence”. Intoxication and mental impairment [4.200] In all jurisdictions, if intoxication induces a condition such as delirium tremens or

permanent brain damage, then the defence of mental impairment may be raised. 280 It is unlikely that a temporary state of intoxication will be considered to be a form of mental impairment for the purpose of the defence. 281 Rather, there must be some continuing underlying condition caused by intoxication or exacerbated by it for the defence to apply. 282 For example, a pre-existing condition such as epilepsy may be exacerbated by intoxication. 283 In Queensland and Western Australia, the defence of mental impairment cannot be raised where the accused intentionally caused him or herself to become intoxicated. 284 This means that the effect of self-induced intoxication on a pre-existing condition is not recognised in these jurisdictions. In the Northern Territory, the definition of mental impairment for the purposes of the defence includes involuntary intoxication. 285 It is unclear whether this precludes 274 275 276 277 278 279 280

281 282 283 284 285

Flyger v Auckland City Council [1979] 1 NZLR 161; Rooke v Auckland City Council [1980] 1 NZLR 680; O’Neill v Ministry of Transport [1985] 2 NZLR 513; Ministry of Transport v Crawford [1988] 1 NZLR 762. Barker v Burke [1970] VR 884; Pearson’s Case (1835) 2 Lew CC 144 respectively. Criminal Code (Cth), s 8.3(1); Criminal Code (ACT), s 32(1); Criminal Code (NT), s 43AT(1). Crimes Act 1900 (NSW), s 428F. Criminal Code (Cth), s 8.3(2); Criminal Code (ACT), s 32(2); Criminal Code (NT), s 43AT(2). Legislative Assembly for the Australian Capital Territory, Criminal Code 2002, Explanatory Memorandum, Clause 32 (2002). Criminal Code (NT), ss 43A, 43C; Criminal Code (Qld), s 28(1); Criminal Code (Tas), s 17(1); Criminal Code (WA), s 28; Re Attorney-General’s Reference No 1 of 1996 (unreported, 26/2/1998, Tas SC CCA, Cox CJ, Underwood, Wright, Crawford and Zeeman JJ, No 12/98); DPP (UK) v Beard [1920] AC 479 at 500–501 per Birkenhead LJ; R v Stones (1955) 72 WN (NSW) 465 at 468 per the Court; R v Connolly (1958) 76 WN (NSW) 184; R v Meddings [1966] VR 306 at 310 per Sholl J. R v Davis (1881) 14 Coc CC 563; Dearnley v The King [1947] St R Qd 51 at 61 per Philp J. R v Falconer (1990) 171 CLR 30 at 49–56 per Mason CJ, Brennan and McHugh JJ. R v Meddings [1966] VR 306 at 310 per Sholl J. Criminal Code (Qld), s 28(2); Criminal Code (WA), s 28(2); See [4.215] “Unintentional Intoxication”. Criminal Code (NT), s 43A.

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self-induced intoxication from forming the basis of the defence. If there is “an underlying pathological infirmity of mind” stemming from alcohol or drug abuse, then it would seem that intoxication could fall within the definition of “mental illness” in that section. There is also s 43AV in the Criminal Code (NT), which states that a person “is not criminally responsible for an offence if the person’s conduct constituting the offence was as a result of intoxication that was not self-induced”. How this will tie in with the defence of mental impairment remains to be seen. In South Australia, “mental impairment” excludes “a temporary disorder, abnormality or impairment of the mind that results from the consumption or administration of intoxicants and will pass on metabolism or elimination of intoxicants from the body”. 286 This would appear to exclude both voluntary and involuntary intoxication from the defence. However, “mental illness” (a category of mental impairment) is defined to include a “pathological infirmity of the mind (including a temporary one of short duration)”. However a “condition that results from the reaction of a healthy mind to extraordinary external stimuli is not a mental illness, although such a condition may be evidence of mental illness if it involves some abnormality and is prone to recur”. 287 Again, this suggests that if there is an underlying “pathological infirmity of the mind” stemming from alcohol or drug abuse and involving some abnormality and recurrence, it would seem to fall within the definition. Evidence of intoxication may be considered in relation to an abnormality of mind for the purpose of the defence of diminished responsibility (see Chapter 5, [5.105]), providing it is protracted and has caused some injury to the accused’s brain. 288 A temporary state of self-induced intoxication has not been considered enough to constitute an abnormality of mind for the purpose of the defence. 289

Drug-associated psychosis [4.205] Sometimes individuals take certain drugs which give rise to symptoms similar to those experienced in psychotic states arising from mental illnesses such as schizophrenia. Courts have been reluctant to excuse individuals from criminal responsibility on the basis that such drug use is an “external” cause of the symptoms. However, it can be difficult for mental health experts to determine when an episode of psychosis is brought about by an external cause or by an underlying mental illness. 290

Intoxication and Other Defences [4.210] A mistake of fact resulting from intoxication may negate the fault element of an

offence. For example, in Gow v Davies, 291 on a charge of trespass, the accused claimed that due to his intoxicated state he had mistakenly entered the house of another, believing it to be

286 287 288 289

290 291

Criminal Law Consolidation Act 1935 (SA), s 269A(1). Criminal Law Consolidation Act 1935 (SA), s 269A(1). R v Chester [1982] Qd R 252; R v Whitworth [1989] 1 Qd R 437 at 457 per Derrington J. R v Nielsen [1990] 2 Qd R 578 at 582; R v Whitworth [1989] 1 Qd R 437; R v Tandy (1988) 87 Cr App R 45; (1987) 31 A Crim R 453 at 462; R v Morgan; Ex parte Attorney-General [1987] 2 Qd R 627; R v Miers [1985] 2 Qd R 138; Jones (1986) 22 A Crim R 42 at 44 per Street CJ; R v Gittens [1984] QB 698; R v Fenton (1975) 61 Cr App R 261; R v Kuzmenko [1968] QWN 49; R v Di Duca (1959) 43 Cr App R 167; R O’Regan, “Intoxication and Criminal Responsibility Under the Queensland Code” (1977) 10 University of Queensland Law Journal 70 at 81. For an exploration of this issue, see A Carroll, B McSherry, D Wood and S Yannoulidis, “Drug-Associated Psychoses and Criminal Responsibility” (2008) 26(5) Behavioural Sciences and the Law 633. (1992) A Crim R 282. [4.210]

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his own. Evidence of intoxication was held to be relevant to support the accused’s mistaken belief that he was not trespassing. Mistake was considered earlier in Chapter 3, [3.275]. In relation to self-defence at common law, the accused must have honestly believed on reasonable grounds that he or she was being threatened or attacked and that the force applied by him or her was necessary in self-defence. 292 Similar formulations exist in statutory provisions. 293 In general, these conceptions of self-defence entail an analysis of, first, what the accused believed, and, secondly, whether or not this belief was based on reasonable grounds. Section 46 of the Criminal Code (Tas) states that a “person is justified in using, in the defence of himself [or herself] or another person, such force as, in the circumstances as he [or she] believes them to be, it is reasonable to use”. Similarly, the South Australian provision allows an accused to use force if that person believes that the force is necessary and reasonable for self-defence. 294 Here the focus is on the accused’s belief about necessity and reasonableness, rather than on whether or not the accused’s belief was honest and based on reasonable grounds. The conduct of the accused must nonetheless be objectively reasonably proportionate, albeit this being determined by taking into account the circumstances as the accused genuinely believed them to be. 295 This is taken up further in Chapter 6. It is interesting to note that the requirement that the accused’s conduct be objectively reasonably proportionate is not required in cases of innocent defence against home invasion; however, a condition of waiving this requirement is that the accused’s mental faculties must not have been “substantially affected by the voluntary and non-therapeutic consumption of a drug” (including alcohol). 296 Evidence of intoxication may be relevant to the assessment of the accused’s belief that he or she was being threatened or attacked and that the force applied was necessary. 297 However, in those jurisdictions where the belief must be based on reasonable grounds, it may be difficult for juries to exonerate the accused on the basis that he or she was intoxicated. For example, in R v Dally, 298 the jury had rejected the accused’s defence of self-defence and convicted him of manslaughter. The Court of Criminal Appeal held that it was adequate, if not favourable, to direct the jury that it was bound to consider whether alcohol may have affected the reasonableness of the accused’s response to the perceived threat. 299 In McCullough v The Queen, the Tasmanian Supreme Court noted: “The criterion of reasonableness is in its nature an objective one, and in our view it would be incongruous and wrong to contemplate the proposition that a person’s exercise of judgment might be unreasonable if he [or she] was sober, but reasonable because he [or she] was drunk.” 300

These words relate to the Tasmanian provision that has now been replaced, but they indicate that juries may be reluctant to exonerate an accused where intoxication has affected the reasonableness of his or her belief. 292

293

294 295 296 297 298 299 300

Zecevic v DPP (1987) 162 CLR 645 at 651–652 per Mason CJ, at 656–657 per Wilson, Dawson and Toohey JJ, at 672–673 per Deane J, at 683 per Gaudron J; citing Zecevic v DPP, Buchanan, Ashley and Weinberg JJA in Carter v Walker (2010) 32 VR 1 at 25. Criminal Code (ACT), s 42; Criminal Code (Cth), s 10.4; Crimes Act 1900 (NSW), ss 418 – 423; Criminal Code (NT), s 43BD(2); Criminal Code (Qld), s 271 (reasonable apprehension); Criminal Law Consolidation Act 1935 (SA), s 15(1); Criminal Code (Tas), s 46; Crimes Act 1958 (Vic), s 322K; Criminal Code (WA), s 248(4)(c). Criminal Law Consolidation Act 1935 (SA), s 15(1). Criminal Law Consolidation Act 1935 (SA), s 15(1). Criminal Law Consolidation Act 1935 (SA), s 15C(2). Conlon (1993) 69 A Crim R 92; Criminal Code (ACT), s 33; Criminal Code (NT), s 43AU. [2000] NSWCCA 162. R v Dally [2000] NSWCCA 162 at [78] McCullough v The Queen [1982] Tas R 43 at 53.

298 [4.210]

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The elements of the defence of provocation are set out by the common law, which is followed in South Australia and reflected in the statutory provisions of the Australian Capital Territory, New South Wales and the Northern Territory. 301 It appears that the common law rules apply to the interpretation of provocation under s 304 of the Criminal Code (Qld). The defence of provocation was abolished in Tasmania by the Criminal Code Amendment (Abolition of Defence of Provocation) Act 2003 (Tas), in Victoria by the Crimes (Homicide) Act 2005 (Vic) and in relation to homicide in Western Australia by the Criminal Law Amendment (Homicide) Act 2008 (WA). Provocation is explored in Chapter 5 [5.10]-[5.75]. In general, the test for provocation consists of both subjective and objective elements. There must be some evidence that the accused was, in fact, acting under provocation. The content and extent of the provocative conduct is assessed from the viewpoint of the particular accused. This is the subjective element of the defence. In addition, however, there is an objective requirement that the provocation be of such a nature that could or might have moved an ordinary person to act as the accused did. Evidence of intoxication may be relevant to the subjective component of the defence of provocation, but it will be irrelevant to the consideration of the ordinary person test. 302

Unintentional Intoxication [4.215] In the Code jurisdictions and New South Wales, which restrict intoxication as an

excuse, special rules as to accidental or unintentional intoxication that are not present in the common law have been enacted. The Criminal Code (Tas) draws no distinction between self-induced and unintentional intoxication. In Snow v The Queen, Burbury CJ, Cox and Crawford JJ previously suggested that a common law defence of unintentional intoxication may operate in Tasmania by virtue of s 8 of the Criminal Code (Tas) which preserves common law defences. 303 However, as such a separate defence does not operate in the Australian common law, this seems to be no longer the case. In Queensland and Western Australia, an accused is not criminally responsible for an act if his or her mind is disordered by unintentional intoxication so as to deprive him or her of the capacity 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 or make the omission. 304 Section 1 of the Criminal Code (NT) defines “involuntary intoxication” as meaning: The person concerned is under the influence of an intoxicating substance caused by the involuntary ingestion of it, his [or her] honest and reasonable mistake as to the nature of it, some physical idiosyncrasy of which he [or she] was unaware or the coercion, mistake or deception of another.

Section 43A of the Criminal Code (NT) then includes involuntary intoxication within the definition of “mental impairment” for the purpose of the defence of mental impairment. As mentioned above, it is unclear why this has been specifically included within this definition and self-induced intoxication has been omitted. Presumably, the purpose behind the inclusion of involuntary intoxication is to enable an unconditional discharge for the person who has become intoxicated through no fault of his or her own—but why this has to be done through the defence of mental impairment is unclear. The matter is further complicated by the addition 301 302

303 304

Crimes Act 1900 (ACT), s 13(2); Criminal Code (NT), s 158; Crimes Act 1900 (NSW), s 23(2). R v Perks (1986) 41 SASR 335; R v Cooke (1985) 39 SASR 225; Censori v The Queen [1983] WAR 89; R v O’Neill [1982] VR 150; R v Webb (1977) 16 SASR 309; R v Croft [1981] 1 NSWLR 126; Taylor v The King [1948] 1 DLR 545. Snow v The Queen [1962] Tas SR 271 at 295. Criminal Code (Qld), s 28; Criminal Code (WA), s 28; R v Smith [1949] St R Qd 126 at 130 per Macrossan CJ (approved in Re Bromage [1991] 1 Qd R 1); R v Corbett [1903] St R Q 246 at 249 per Griffith CJ; R v Kusu [1981] Qd R 136 at 141 per WB Campbell J; Nosworthy v The Queen (1983) 8 A Crim R 270. [4.215]

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of Division 3 relating to circumstances in which there is no criminal responsibility. Division 3 includes a definition of “self-induced intoxication” which includes the circumstance where intoxication came about involuntarily. 305 Section 43AV then states that “a person is not criminally responsible for an offence if the person’s conduct constituting the offence was as a result of intoxication that was not self-induced”. At present, these provisions apply to certain specified offences and how they interact with s 43A remains far from clear. In the Crimes Act 1900 (NSW), it is stated that intoxication that is not self-induced may be taken into account in relation to offences other than an offence of specific intent (s 428D(b)) and in assessing whether the conduct was voluntary (s 428G). Intoxication that is not self-induced is defined as intoxication which is involuntary, or which results from fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force, or results from the administration of a prescription drug in accordance with the recommended dosage. 306 The New South Wales provisions echo those set out in the Criminal Code (Cth), although the interpretation of intoxication that is not self-induced is slightly broader in New South Wales. Section 34 of the Criminal Code (ACT) and s 43AV of the Criminal Code (NT) state that an accused will not be criminally responsible for an offence if his or her conduct is the result of intoxication that is not self-induced. Provisions that distinguish between unintentional and self-induced intoxication do so presumably on the basis that a person who becomes unintentionally intoxicated is not blameworthy, compared with the person who makes a free choice to become intoxicated.

Burden of Proof [4.220] The prosecution bears the legal burden of proving all the elements of the crime are

made out despite evidence of intoxication. 307 As to legal and evidentiary burdens, see Chapter 2, [2.180]. The standard of proof remains that of beyond reasonable doubt. The defence carries the evidential burden.

Perspectives Principle and Policy and Reform of the Law of Intoxication [4.225] Numerous law reform proposals have looked at how intoxication should be

taken into account in assessing criminal responsibility. The Law Reform Commission and the Law Reform Committee of Victoria, 308 the South Australian Mitchell Committee, 309 the New Zealand Criminal Law Reform Committee, 310 the Law Commission for England and Wales 311 and the MCCOC 312 have all recommended that the O’Connor approach to evidence of intoxication conforms best to general principles of criminal law. Andrew 305 306 307 308

309 310 311

300

Criminal Code (NT) s 43AR(1)(a). Crimes Act 1900 (NSW), s 428A. Stokes (1990) 51 A Crim R 25; Dearnley v The King [1947] St R Q 51. Law Reform Commission of Victoria, Mental Malfunction and Criminal Responsibility, Report No 34 (1990) [218]–[219]; Law Reform Committee of Victoria, Criminal Liability for Self-Induced Intoxication, Report (May 1999). South Australian Criminal Law and Penal Methods Reform Committee, The Substantive Criminal Law, Fourth Report (1977) p 48. New Zealand Criminal Law Reform Committee, Report on Intoxication as a Defence to a Criminal Charge (1984) [45]. Law Commission for England and Wales, Legislating the Criminal Code: Intoxication and Criminal Liability, Report No 299 (1995). [4.220]

Mental State Defences

Ch 4

Ashworth refers to this approach as a “simple solution compatible with the ordinary logic of the liability rules”. 313 The Supreme Court of Canada in R v Daviault 314 has departed from Majewski, though the majority opted for the middle-ground that permitted intoxication to be raised in relation to crimes of basic intent only where the intoxication was “extreme” and involved an absence of awareness akin to mental impairment or automatism. The decision caused a storm of controversy in the press, and has since been partially reversed by statute. 315 We have already outlined the problems with dividing offences into strict and basic offences for the purpose of evidence of intoxication. The main argument against the O’Connor approach is that it may lead to what are seen as undeserved acquittals. In 1995, the Law Commission for England and Wales noted: “We think it significant that on consultation many respondents concerned with the practical operation of the Majewski rule—namely the Bar and a significant minority of the Queen’s Bench Division judges—expressed support for … the abolition of the Majewski principle without replacement … We were, however, impressed by the practical considerations urged upon us by, in particular, the majority of judges of the Queen’s Bench Division. They expressed concern about the effect of even one high profile case where there was an acquittal because the alleged offender was too drunk to form the required intent. The majority believe that such an acquittal would be viewed by the public as another example of the law, and inevitably the judges who apply that law, being out of touch with public opinion and public perception of fault.” 316

There is a natural urge to want to punish a person for getting so intoxicated in the first place that he or she causes harm in circumstances where an ordinary person would have foreseen it as a likelihood. But if that is the case, why not simply create an offence of committing a dangerous act whilst under the influence of intoxication? Section 154 of the Criminal Code (NT) provided an example of such an offence, but has been repealed. While law reform bodies tend to concentrate on principles of criminal responsibility in assessing the law relating to intoxication, parliaments tend to look toward special rules to govern those who commit crimes whilst intoxicated. Matthew Goode writes referring to the Nadruku case discussed at [4.165]: “Parliaments tend to the opinion that letting defendants such as Mr Nadruku escape the criminal sanction is scandalous and should not be allowed to happen. In this they may well be representing the views of the public as a general proposition—certainly a vocal section of the general public. The courts and law reform bodies tend to say that letting the occasional defendant such as Mr Nadruku escape the criminal net is a small price to pay for keeping away any alternative which will be complex, confusing and unjust to others. If both views may be conceded to have some justice, taken from their particular perspective, what then?” 317

This tension between “principle” and “policy” explains why there is so much confusion about the effects of intoxication on criminal responsibility. Even some law reform bodies, 312 313 314 315 316 317

Criminal Law Officers Committee of the Standing Committee of Attorneys-General, Chapter 2—General Principles of Criminal Responsibility, Final Report (1992) p 51. A Ashworth, Principles of Criminal Law (6th ed, Oxford: Oxford University Press, 2009) p 204. See also G Orchard, “Surviving Without Majewski—A View From Down Under” [1993] Criminal Law Review 426. [1994] 3 SCR 63. Now see Criminal Code (Can), s 33.1. Law Commission for England and Wales, Legislating the Criminal Code: Intoxication and Criminal Liability, Report No 299 (1995) [5.20], [5.22], pp 45–46. Attorney-General’s Office (SA), Intoxication and Criminal Responsibility, Discussion Paper (July 1998) p 42, [6.2]. [4.225]

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whilst agreeing with the logic of O’Connor’s case, have used policy grounds to justify departures from the O’Connor approach. 318 Law and order politics have dictated that governments ignore legal principle in favour of policy. For example, in New South Wales, the Majewski approach was reintroduced into the law by the Crimes Legislation Amendment Act 1996 (NSW), which inserted ss 428A – 428I into the Crimes Act 1900 (NSW). In the second reading speech, Mr Whelan, the then New South Wales Minister for Police noted: “The preference for the Majewski approach is based on important public policy considerations. The Standing Committee of Attorneys-General, in particular, took the view that to excuse otherwise criminal conduct in relation to simple offences of basic intent—such as assault—because the accused is intoxicated to such an extent, is totally unacceptable at a time when alcohol and drug abuse are such significant social problems. The standing committee considered that if a person voluntarily takes the risk of getting intoxicated then he or she should be responsible for his or her actions. This Government agrees with and strongly supports this approach.” 319

This contrasts starkly with the views of law reform agencies, which have consistently favoured O’Connor. For example, the Law Reform Committee of Victoria recommended that O’Connor’s case continue to govern the law in Victoria: “The Committee believes that it is crucial that legal principles be applied consistently and simply on the basis of evidence available. The Committee concludes that the proposition arising from O’Connor’s case, that a person should not be held criminally responsible for an unintended or involuntary act is logical, easy to apply and makes good sense.” 320

While there is no consensus as to how intoxication should be taken into account, the Committee noted that it will be rare for an accused to be acquitted of a crime because of evidence of intoxication and that cases such as the Noa Nadruku case are exceptions to general practice. 321

CONCLUSION [4.230] In Chapter 3, [3.05], we pointed out that the principles that underlie the criminal law

are dependent upon the idea of a person as a rational being. In this chapter, we have outlined how those who are considered to lack the ability to reason through mental impairment, automatism or intoxication may be excused from responsibility for criminal acts. In relation to mental impairment, there is always a balance to be made between how broad or limited the defence should be. A comprehensive definition of the term “mental impairment” would give expert witnesses and juries some guidance as to what will serve to excuse an accused from criminal responsibility. The definition set out in the now obsolete s 300 of the Crimes Act 1900 (ACT) serves as a model in this regard. This section defined mental “dysfunction” as “a disturbance or defect, to a substantially disabling degree, of perceptual

318

319 320 321

The Gibbs Committee, Review of Commonwealth Criminal Law, Interim Report: Principles of Criminal Responsibility and Other Matters, Chapter 10, Intoxication (Canberra: AGPS, 1990) [10.21] and [10.24]; Law Commission of England and Wales, Legislating the Criminal Code: Intoxication and Criminal Liability, Report No 229 (1995) [5.19]–[5.28]. New South Wales Parliamentary Debates, Legislative Assembly, 6 December 1995. Law Reform Committee of Victoria, Criminal Liability for Self-Induced Intoxication, Report (May 1999) p 114. Law Reform Committee of Victoria, Criminal Liability for Self-Induced Intoxication, Report (May 1999) p 107.

302 [4.230]

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interpretation, comprehension, reasoning, learning, judgment, memory, motivation or emotion”. This legal definition accords with modern medical conceptions of mental disorder. We have pointed out the problems with broadening the defence to include personality disorders and the volitional component. The defence should be available only to those who experience a failure of “reality testing” and whose reasoning capacities are affected. In the past, because of the fear of being detained indefinitely at the “Governor’s Pleasure”, the defence was rarely used. With more dispositional options now available, it may be that this defence will be raised more often in the future. We have also explored how the “all or nothing” legal conception of conduct being either voluntary or involuntary does not sit well with the psychological view of a continuum between volitional and automatistic behaviours. Further, the attempts to distinguish between sane and insane automatism has led to the law becoming very complex in this area, and it may be time to subsume automatism within the broadened defence of mental impairment. The question of how intoxication should be taken into account in determining criminal responsibility is inherently problematic because of the tension generated between an approach based on principle and an approach based on policy. In assessing this debate, it should be kept in mind that, in practice, acquittals on the basis of intoxication are rare and there is some reason to believe that those accused who raise intoxication will show some elements of awareness of intention sufficient to warrant conviction. 322 Finally, an important theme underlying this chapter is the importance of taking into account recent developments in other disciplines, such as psychiatry and psychology, by those working toward law reform in the area of mental state defences. This also holds true of the partial defence of diminished responsibility that is discussed in the next chapter.

322

R Shiner, “Intoxication and Responsibility” (1990) 13 International Journal of Law and Psychiatry 9; C Mitchell, “The Intoxicated Offender—Refuting the Legal and Medical Myths” (1988) 11 International Journal of Law and Psychiatry 77. [4.230]

303

Chapter 5

Partial Defences The ruling Passion, be it what it will, The ruling Passion conquers Reason still. 1 [5.05]

INTRODUCTION ........................................................................................................................ 305

[5.10] [5.15] [5.40] [5.45] [5.70] [5.75]

PROVOCATION .......................................................................................................................... 307 Provocative Conduct .................................................................................................................. 310 The Accused’s Loss of Self-Control .............................................................................................. 315 The Ordinary Person Test ........................................................................................................... 316 The Burden of Proof ................................................................................................................... 327 Provocation and Intimate Partner Violence ................................................................................. 327

[5.80] [5.85] [5.90] [5.115] [5.120] [5.125] [5.130] [5.140]

DIMINISHED RESPONSIBILITY .................................................................................................... 329 Abnormality of Mind .................................................................................................................. 329 Causes of the Abnormality of Mind ............................................................................................ 331 Substantial Impairment of Capacity ........................................................................................... 333 Burden of Proof .......................................................................................................................... 335 INFANTICIDE ............................................................................................................................. 335 Physical Elements ....................................................................................................................... 336 Fault Elements ........................................................................................................................... 338

[5.145] [5.150] [5.165] [5.170] [5.175]

THE ABOLITION OF PARTIAL DEFENCES ..................................................................................... The Abolition of Provocation ...................................................................................................... The Abolition of Diminished Responsibility ................................................................................. The Abolition of Infanticide ........................................................................................................ CONCLUSION ...........................................................................................................................

338 338 343 344 345

INTRODUCTION [5.05] There are three defences that can be considered as partial defences in the sense that

they reduce a charge of murder to manslaughter. These are: • the defence of provocation, which exists in all States and Territories except Tasmania, Victoria, and Western Australia; • the defence of diminished responsibility, which exists in the Australian Capital Territory, New South Wales, the Northern Territory and Queensland; and 1

Alexander Pope, “To Lord Bathurst” (1733) in FW Bateson (ed), The Poems of Alexander Pope, Vol 111, Epistles to Several People I, 155–156 (London: Methuen & Co Ltd, 1951) p 106.

[5.05]

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• infanticide, which is both an offence and defence operating as an alternative verdict to murder (therefore, in effect, reducing murder to manslaughter) in New South Wales, Tasmania and Victoria. These partial defences do not operate to negate the fault element of the crime of murder. The accused will be potentially guilty of murder because both the physical and fault elements of the offence will exist. What these defences purport to do, instead, is to recognise and provide a “concession to human frailty”. Andrew Ashworth and Jeremy Horder point out that there is a symbolic function of the labels “murder” and “manslaughter” applied by the law and by courts to criminal conduct. 2 The availability of the lesser offence of manslaughter in certain circumstances is therefore available to mark significant differences in culpability, and is an application of, what Ashworth and Horder term, the principle of “fair labelling”. 3 The nature and role of provocation is best understood in its historical context. The early criminal law distinguished between the most serious types of killing which required proof of malice aforethought, and killings that were unpremeditated and occurred on the spur of the moment in response to an act of provocation. The early law mitigating the punishment of the latter type of killing and the evolution of provocation as a defence, rather than merely as a mitigating factor, emerged in the 17th and 18th centuries. This was an epoch where insults or attacks upon honour were expected to be avenged with resort to lethal weapons. As the distinguished legal historian, Sir William Holdsworth, observed: “[T]he readiness with which all classes resorted to lethal weapons to assert their rights, or to avenge any insult real or fancied, gave abundant opportunity for elaborating the distinctions between various kinds of homicide.” 4

The need to draw such distinctions followed from the fact that murder at this time was a capital felony. The accused could escape capital punishment only if he or she lacked malice aforethought. Manslaughter was only available where the killing had occurred “suddenly” and in “hot blood” in response to an act of provocation by the deceased. The defence of diminished responsibility is similar to that of provocation in that it takes into account the accused’s frailty in the sense of that being an “abnormality of mind”. This defence originated in the Scottish courts in the mid-18th century as a way of dealing with “mental weakness” falling short of insanity, by convicting the accused but with a recommendation to mercy. 5 It first began as a plea in mitigation, but became a defence in the mid-19th century case of HM Advocate v Dingwall. 6 Infanticide can be seen as closely allied to the defence of diminished responsibility in that it centres on the concept of a “mental imbalance” caused by the effects of childbirth. It only became a crime and a partial defence in England in 1922 7, but attempts had been made in previous centuries to curb the incidence of infanticide whilst showing some mercy to the accused because of the circumstances of the killing. 8 2 3

5

A Ashworth and J Horder, Principles of Criminal Law (7th ed, Oxford: Oxford University Press, 2013) p 251. A Ashworth and J Horder, Principles of Criminal Law (7th ed, Oxford: Oxford University Press, 2013) p 79–80. W Holdsworth, A History of English Law (AL Goodhart and HG Hanbury (eds)) (7th ed (revised), London: Sweet and Maxwell, 1966) (introductory essay and additions by SB Chrimes, 1956–66) Vol 8, p 302. G Gordon, The Criminal Law of Scotland (2nd ed, Edinburgh: Green, 1978) p 38.

6 7 8

(1867) 5 Irvine 446. Infanticide Act 1922 (UK). S Davies, “Child Killing in English Law” [1937] Modern Law Review 203 at 219.

4

306 [5.05]

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These three defences have been criticised on a number of grounds and the Model Criminal Code Officers Committee in its Discussion Paper on Fatal Offences Against the Person called for the abolition of all these partial defences. 9 We shall consider the abolition of partial defences at the end of this chapter.

PROVOCATION [5.10] Provocation operates as a partial defence to murder in that successful reliance on the

defence reduces the charge of murder to manslaughter. It is derived from the common law which still applies in South Australia, but which now finds statutory expression in the Australian Capital Territory, New South Wales, the Northern Territory and Queensland. 10 In New South Wales, the defence has been substantially recast with the term “defence of extreme provocation” now used. 11 The reforms in New South Wales came about in response to an inquiry into the partial defence by a select committee of the New South Wales Legislative Council. 12 The defence of provocation was also the subject of a report by the Legislative Review Committee of the South Australian Parliament, which in late 2014 recommended retaining the defence within the common law. 13 Tasmania and Western Australia formerly had statutory defences of provocation but these were abolished by the Criminal Code Amendment (Abolition of Defence of Provocation) Act 2003 (Tas) and the Criminal Law Amendment (Homicide) Act 2008 (WA) respectively. Western Australia however retains the provocation defence in relation to assault offences. 14 The common law defence was abolished in Victoria by the Crimes (Homicide) Act 2005 (Vic). 15 In the jurisdictions retaining the defence, it may be raised in relation to all forms of murder, including reckless murder. 16 It may not, however, be available to a charge of attempted

9 10 11 12

13

14

15 16

Model Criminal Code Officers Committee, Fatal Offences Against the Person, Discussion Paper (June 1998) pp 87–139. Crimes Act 1900 (ACT), s 13; Crimes Act 1900 (NSW), s 23; Criminal Code (NT), s 158; Criminal Code (Qld), s 304. Crimes Amendment (Provocation) Act 2014 (NSW). Select Committee on the Partial Defence of Provocation, New South Wales Legislative Council, The Partial Defence of Provocation (2013). See also New South Wales Government Response to the Select Committee on the Partial Defence of Provocation, New South Wales Legislative Council, 23 October 2013. There was significant academic commentary on retaining, abolishing or reforming the defence of provocation in New South Wales at the time of the Select Committee’s enquiry: see T Crofts and A Loughnan, “Provocation, NSW Style: Reform of the Defence of Provocation in NSW” (2014) 2 Criminal Law Review 109; T Crofts and A Loughnan, “Provocation: The Good, the Bad and the Ugly” (2013) 37(1) Criminal Law Journal 23; K Fitz-Gibbon, “Provocation in New South Wales: The Need for Abolition” (2012) 45(2) Australian and New Zealand Journal of Criminology 194; S Odgers, “Editorial: The Provocation Partial Defence to Murder” (2012) 36 Criminal Law Journal 263. Legislative Review Committee, Parliament of South Australia, Report of the Legislative Review Committee into the Partial Defence of Provocation (2014). See also K Toole, “Law Reform: South Australia and the Defence of Provocation” (2013) 38(4) Alternative Law Journal 270. See in relation to the scope of the provocation defence in relation to grievous bodily harm and wounding: T Nisbet, “The Scope of the Provocation Defence and Consent in Code Jurisdictions” (2012) 36 Criminal Law Journal 356. Crimes (Homicide) Act 2005 (Vic) s 3; Crimes Act 1958 (Vic), s 3B. Johnson v The Queen (1976) 136 CLR 619 at 634 per Barwick CJ; Cufley v The Queen (1983) 78 FLR 359. Evidence may also be raised in relation to “constructive murder” such as felony murder: Edwards v The Queen [1973] AC 648; R v Fry (1992) 58 SASR 424; cf R v Scriva (No 2) [1951] VLR 298 at 304 per Smith J. [5.10]

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murder. 17 Before provocation becomes a relevant defence in a murder trial, the prosecution must have satisfied the jury beyond reasonable doubt that the accused has otherwise committed murder. 18 As stated in the Introduction, provocation emerged as a partial defence to murder during the 17th century as a way of avoiding mandatory capital punishment. 19 This defence recognises that an individual may suffer a temporary loss of self-control in certain circumstances and attempts to distinguish between intentional killings which are committed in “cold blood” and those which occur in an extreme emotional state and which are unpremeditated. 20 The early decisions relating to provocation sought to identify the fact situations where the defence could operate. 21 A physical assault could amount to provocation. However, the gravest insult during this period would have been the discovery of a wife with a lover, adultery being considered both an offence and an attack upon both a gentleman’s honour and property. The common law defence was thus constructed around male conceptions of sexual jealousy, anger and revenge. The courts required a sudden violent retaliation. Where there was an opportunity for the “blood to cool”, the defence was not available. Aspects of this early law have survived through to the current law. Suddenness of response and the absence of delay or premeditation are no longer substantive rules, but they may provide evidence that an ordinary person, faced by that degree of provocation, could have acted in the way in which the accused did. The common law underwent significant changes, particularly in response to the philosophical currents of liberal theory in the 19th century. As explored in Chapter 3, that century witnessed many developments in the criminal law. The courts began to use the morally neutral terms to denote fault, such as “intention” and “recklessness” rather than “malice” or a “wicked” or “evil mind”, and the accused’s motive or reason for acting was no longer considered relevant to responsibility. This changed understanding of criminal responsibility made an impact on the defence of provocation in several ways. First, the focus of the defence became, and remains, the accused’s “loss of self-control” rather than morally excusable retribution. Secondly, as a means of controlling the scope of the defence, the courts developed and applied an objective test that manifested itself in the following ways. First, the “reasonable man” test emerged in R v Welsh. In that case, Keating J stated: “The law contemplates the case of the reasonable man, and requires that the provocation shall be such as that such a man might naturally be induced, in the anger of the moment, to commit the act.” 22

In recent times, the reasonable man has transmogrified into the ordinary person. Barwick CJ in Moffa v The Queen 23 noted that it is preferable to characterise the objective standard in 17 18 19

22 23

R v Farrar [1992] 1 VR 207 at 208–209 per Hampel J. Lee Chun-Chuen v The Queen [1963] AC 220 at 231 per Lord Devlin. Royley’s case (1612) Cro Jac 296; Nugget (1666) 18 Car 2; R v Mawgridge (1707) 84 ER 1107. See also G Coss, “God is a Righteous Judge, Strong and Patient and God is Provoked Every Day: A Brief History of the Doctrine of Provocation in England” (1991) 13 Sydney Law Review 570. A Reilly, “Loss of Self-Control in Provocation” (1997) 21 Criminal Law Journal 320 at 320. For a useful overview of the evolution of the defence, from its origins as mitigation for honour killings to a defence based on loss of self-control, see J Horder, Provocation and Responsibility (Oxford: Clarendon Press, 1992). See, for example, R v Mawgridge (1707) 84 ER 1107. See also the discussion in J Greene, “A Provocation Defence for Battered Women Who Kill” (1989) 12 Adelaide Law Review 145 at 147. R v Welsh (1869) 11 Cox 336 at 338. (1977) 138 CLR 601.

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terms of an ordinary rather than a reasonable person because the use of the term “reasonable” might be taken as excluding severe emotional reactions from consideration. 24 Secondly, the courts began to apply a test of proportionality that required a correlation or measured correspondence between the act of provocation and the accused’s retaliation. This is no longer a separate requirement under the common law, but it may be relevant to the question as to whether or not the provocation was sufficient to have induced an ordinary person to have lost self-control and acted in the way in which the accused did. Provocation is often raised in cases of homicide between adult sexual intimates. The difficulties faced by women who kill their partners, after years in an abusive relationship, in raising this defence is considered at [5.75]. The use of the defence of provocation by men who have killed their estranged partners has led to calls for its abolition. In Tasmania, the defence was abolished in 2003 by the Criminal Code Amendment (Abolition of Defence of Provocation) Act 2003 (Tas). The Victorian Law Reform Commission also recommended its abolition the following year, 25 and this was adopted in 2005 with the insertion of s 3B into the Crimes Act 1958 (Vic). Similarly, Western Australia abolished its statutory defence in 2008 on the recommendation of the Law Reform Commission of Western Australia. 26 The case for and against abolition of provocation is further explored at [5.150]. In Chapter 6, the traditional distinction in the common law between killings that were justified and those that were excused is examined. Suffice to say that defences “excusing” an accused from criminal responsibility are generally viewed as concentrating on the personal characteristics of the accused, whereas defences “justifying” a crime focus on the act of the accused rather than on any personal characteristics. 27 Provocation, however, can be viewed as containing elements of both excuse and justification. It is excusatory in its focus on the accused’s lack of self-control, and justificatory in its focus on the provocative conduct of the victim and the acceptability of the accused’s actions. Because of this combination of elements of excuse and justification, the conceptual basis for the defence of provocation is often confused. This in turn helps explain why there have been calls for its abolition, which will be discussed later in this chapter. The elements of the defence of provocation (“extreme provocation” in New South Wales) are set out by the common law, which is followed in South Australia and reflected in the statutory provisions of the Australian Capital Territory, New South Wales and the Northern Territory. 28 The common law has also been held to apply to the interpretation of provocation under s 304 of the Criminal Code (Qld), which sets out provocation as a partial defence to murder. 29 The leading High Court case dealing with the defence of provocation is that of Stingel v The Queen. 30 Stingel had made an unsworn statement that he had found his ex-girlfriend, with whom he was obsessed, engaging in sexual activities with a man, Taylor, in a car. According to Stingel, when he opened the car door, Taylor had said, “Piss off, you cunt, piss off”. Stingel fetched a butcher’s knife from his car and stabbed Taylor to death. Stingel stated that seeing his ex-girlfriend with Taylor and the latter’s words had caused him to lose self-control. The trial judge ruled that the evidence was not sufficient for a defence of 24 25 26

27 28 29 30

Moffa v The Queen (1977) 138 CLR 601 at 606. Victorian Law Reform Commission, Defences to Homicide, Final Report (2004) p xlv. Law Reform Commission of Western Australia, Review of the Law of Homicide: Final Report (2007); Criminal Law Amendment (Homicide) Act 2008 (WA), s 12. Significantly, the defence of provocation has been retained as a defence for assaults: Criminal Code (WA), ss 245 – 246. P Alldridge, “The Coherence of Defences” [1983] Criminal Law Review 665; S Yeo, “Proportionality in Criminal Defences” (1988) 12 Criminal Law Journal 209 at 212–213. Crimes Act 1900 (ACT), s 13(2); Crimes Act 1900 (NSW), s 23(2); Criminal Code (NT), s 158(2). Van Den Hoek v The Queen (1986) 161 CLR 158 at 168 per Mason J; R v Johnson [1964] Qd R 1. (1990) 171 CLR 312. This was followed by the High Court in Lindsay v The Queen (2015) 255 CLR 272. [5.10]

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provocation and this was, therefore, not left for the jury. An appeal to the Tasmanian Court of Criminal Appeal was dismissed, as was a subsequent appeal to the High Court. In the course of their unanimous judgment, the members of the High Court clarified the law relating to provocation. Although the case concerned provisions of the Criminal Code (Tas), the High Court observed (at 320) that there is a large degree of conformity in the law of provocation, whether it be common law or statutory. The High Court subsequently affirmed that the test in Stingel applied to the common law. 31 The role of the High Court in harmonising the criminal law across Code and common law jurisdictions was explored earlier in Chapter 2, [2.25]. In general, the test for provocation consists of both subjective and objective elements. There must be some evidence that the accused was, in fact, acting under provocation. The content and extent of the provocative conduct is assessed from the viewpoint of the particular accused. This is the subjective element of the defence. In addition, however, there is an objective requirement that the provocation be of such a nature that could or might have moved an ordinary person to act as the accused did. The defence can thus be divided into three fundamental requirements: • there must be provocative conduct; • the accused must have lost self-control as a result of the provocation; and • the provocation must be such that it was capable of causing an ordinary person to lose self-control and to act in the way the accused did. These three elements will be examined in turn.

Provocative Conduct [5.15] Before an accused can rely on the defence of provocation, there must be evidence of

some form of conduct that caused the accused to lose self-control. Under the New South Wales defence of extreme provocation, the provocative conduct must amount to a serious indictable offence directed “towards or affecting the accused”. 32 In the past, the case law referred to the existence of a clearly identifiable triggering incident or series of incidents. 33 As Gleeson CJ noted in one case, this requirement has been relaxed in recent years: “[T]imes are changing, and people are becoming more aware that a loss of self-control can develop even after a lengthy period of abuse, and without the necessity for a specific triggering incident.” 34

What is important is the cumulative effect of all the circumstances including the background and history leading up to the accused’s loss of control. For example, in Parker v The Queen, the Privy Council found that the victim’s provocative conduct included “hanging about” the accused’s wife, speaking of her in disparaging terms to the accused and ultimately persuading the accused’s wife to leave the accused and their six children. These circumstances were enough to form the basis for the defence of provocation. Lord Morris stated: “The jury might well have taken the view that the [accused] was tormented beyond endurance. His wife whom he loved was being lured away from him and from their children despite protests, appeals and remonstrances. In open defiance of his grief and his anguish his wife was being taken by one who had jeered at [the accused’s] lesser strength and who had spoken with unashamed relish of his lascivious intents. Though there was an interval of time between the moment when the [accused’s] 31 32 33 34

See Masciantonio v The Queen (1995) 183 CLR 58 at 66. This point was affirmed in Lindsay v The Queen (2015) 255 CLR 272 at 283. Crimes Act 1900 (NSW), s 23(2)(a) – (b). R v Croft [1981] 1 NSWLR 126 at 140 per O’Brien J. Chhay (1994) 72 A Crim R 1 at 13.

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wife and the deceased went away and the moment when the [accused] overtook them and then caused the death of the deceased a jury might well consider and would be entitled to consider that the deceased’s whole conduct was such as might ‘heat the blood to a proportionable degree of resentment and keep it boiling to the moment of the fact’.” 35

Similarly, an incident or words which of themselves may seem inoffensive may amount to provocation when placed in the context of an abusive relationship. In R v R, 36 the accused killed her husband with an axe after he had stroked her arm and cuddled up to her in bed telling her that they would be “one happy family” and two of their daughters would not be leaving home. The accused had recently been informed that her husband had sexually abused each of their five daughters. She gave evidence that, while he slept, she sat smoking one cigarette after another, thinking about her daughters before going to the shed and getting the axe. The court held that the victim’s conduct had to be placed against a background of brutality, sexual assault, intimidation and manipulation. Traditionally, the common law, reflecting conceptions of insult and honour, viewed the sight of a wife committing adultery as a grave provocation. Whether this is still the case is open to question. In Hart v The Queen, 37 the Court of Appeal of Western Australia held that the sight of the accused’s estranged wife kissing another man was not sufficient evidence of provocation to form the basis for the defence. Persistent homosexual advances have been held to amount to provocative conduct in the High Court decision of Green v The Queen. 38 A critique of the social assumptions behind the latter case is provided in “Perspectives: Critique of the ordinary person test” at [5.65]. Insulting words [5.20] While the law is uncertain in this regard, it appears that insulting words may amount

to provocation when accompanied by gestures or other conduct. The provisions in the Australian Capital Territory and the Northern Territory require the words to be “grossly insulting”. 39 There is a reservation on the part of the courts towards accepting insulting words on their own as provocation because it appears to be generally accepted that violent acts rather than insulting words are more likely to induce an ordinary person to lose self-control. Mason J in Moffa v The Queen pointed out: “[A] case of provocation by words may be more easily invented than a case of provocation by conduct, particularly when the victim was the wife of the accused. There is, therefore, an element of public policy as well as common sense requiring the close scrutiny of claims of provocation founded in words, rather than conduct.” 40

In Buttigieg, 41 the Queensland Court of Appeal held that words alone, no matter how insulting or upsetting, cannot amount to sufficient provocation to murder. Queensland’s Criminal Code was amended in April 2011 42 and again in 2017 43 to exclude the defence of provocation where “provocation is based on words alone, other than in circumstances of an 35 36 37 38 39 40 41 42 43

Parker v The Queen (1964) 111 CLR 665 at 679, quoting from East’s Pleas of the Crown (1803) p 238. (1981) 28 SASR 321. (2003) 27 WAR 441. (1997) 191 CLR 334 at 347 per Brennan CJ. Crimes Act 1900 (ACT), s 13(2)(a); Criminal Code (NT), s 158(3). Moffa v The Queen (1977) 138 CLR 601 at 620–621. (1993) 69 A Crim R 21. Criminal Code and Other Legislation Amendment Act 2011 (Qld). Criminal Law Amendment Act 2017 (Qld). [5.20]

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exceptional character”. 44 What words amount to being “grossly insulting” or what circumstances amount to being of “an exceptional character” will be a matter for individual judges to consider in assessing whether there is sufficient evidence of provocation for the defence to go to the jury.

Words Designed to Enrage [5.25] In Moffa v The Queen, 45 the accused, who was from an Italian migrant background,

killed his wife by striking her on the head and neck with a piece of iron piping. His defence of provocation was based on claims that she had rejected his sexual advances, told him that she was “screwing with everybody in the street” and that she was leaving him, called him a “black bastard”, and threw a telephone and photographs of herself naked (most of which the accused himself admitted having taken) at him. There was no evidence that the telephone hit the accused or that the victim had been violent towards him in any other way. The accused successfully appealed to the High Court against his conviction for murder. Gibbs J, in his dissenting judgment, held that the words of the victim may have been calculated to disturb or enrage but were not of a “violently provocative” character to amount to provocation. The conclusions of the majority that there was sufficient evidence of provocation were reached on different grounds, and it is therefore difficult to find support for the proposition that insulting words alone can amount to provocation from this case. Barwick CJ held that the insulting words of themselves were not enough to amount to provocation. However, he stated “the threat of physical violence to reinforce [the victim’s] rejection of [the accused], the throwing of the telephone as an expression of contempt and the use of the nude photographs, form part of the whole situation”. 46 The words in all these circumstances were enough to amount to provocation in Barwick CJ’s opinion. Stephen J agreed with this analysis, but placed emphasis on the victim having not simply admitted to adultery, but having “boasted of wholesale promiscuity with the men in the suburban street where she and her husband lived and had brought up their family”. 47 Mason J seems to have gone further than Barwick CJ and Stephen J in stating: “There is no absolute rule against words founding a case of provocation. The existence of such an absolute rule would draw an arbitrary distinction between words and conduct which is insupportable in logic.” 48

Murphy J was of the opinion that the question of whether or not certain words amounted to provocation reflected the attitudes of society, “or even of particular judges”. He saw this as a “by-product of the reasonable man test” which, according to Murphy J, was no longer part of the law of homicide. 49 Murphy J’s critique of the objective test is further explored at [5.65]. Perhaps all that can be gleaned from the majority judgments in Moffa is that insulting words may amount to provocation if they are violently provocative or of an “exceptional” 44 45 46 47 48 49

Criminal Code (Qld), s 304(2). (1977) 138 CLR 601. Moffa v The Queen (1977) 138 CLR 601 at 606. Moffa v The Queen (1977) 138 CLR 601 at 619. Moffa v The Queen (1977) 138 CLR 601 at 620. Moffa v The Queen (1977) 138 CLR 601 at 624.

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character. 50 This seems to have been followed in R v R, where the victim telling the accused that they would be “one happy family” and that two of their daughters would not be leaving home amounted to provocation when the history of their relationship was taken into account. King CJ stated: “Words or conduct cannot amount to provocation unless they are spoken or done to or in the presence of the killer … although, of course, such words or conduct may be important as part of the background against which what is said or done by the deceased to the killer is to be assessed.” 51

One older case that does lend some, albeit slight, support to the proposition that insulting words in themselves may amount to provocation is that of R v Dutton. 52 In that case, the 36-year-old accused injured his back in a work accident. This affected his general health and made sexual intercourse difficult with his 20-year-old wife. In the ensuing 10 months after the accident, the accused’s wife left him more than once. On the last occasion, she went to stay with friends and a week and a half later, after spending the night drinking, the accused went to where his wife was staying. In an unsworn statement, he stated that his wife taunted him with his inability to satisfy her sexually and that her last words were, “I can get paid for what you can’t give me”. The accused then said he lost self-control and shot the victim several times. The accused was convicted of murder. The Supreme Court of South Australia ordered a retrial on the basis that the trial judge had failed to adequately direct the jury on the law relating to the ordinary person test. However, all three judges did not question whether or not the victim’s alleged taunts were enough to amount to provocation. Cox J referred to Moffa’s case, regarding it as abolishing any distinction between conduct and words as the allowable cause for provocation. 53 It could be argued that the words in Dutton’s case were interpreted against a background of arguments in a relationship gone sour, but whether that should be enough to enable the defence of provocation to be considered by a jury is debatable. In R v Romano, 54 the accused shot his wife after she had called him a “useless man”. The Supreme Court of South Australia ordered a retrial on the ground that the trial judge should have left provocation for the jury to consider. King CJ referred to the victim’s words in the context of a background of alleged taunts concerning the accused’s mental health, as well as her interest in “a new boyfriend”. 55 The Court of Criminal Appeal of New South Wales in R v Lees pointed out that words which are “violent, threatening, or otherwise distressing … can be highly inflammatory”. 56 The Court emphasised that the question of whether there is sufficient evidence of provocation remains one of law for the judge. Judges thus have an important role in assessing whether “mere words” or what type of words, particularly in the context of a relationship breakdown, are enough to enable evidence of provocation to go before the jury. 57 The Law Commission for England and Wales has suggested a way of restricting reliance on “mere words” as founding the defence of provocation through legislation. 58 The Law Commission has proposed that there be a legislative provision to the effect that the accused must have acted in response to “gross provocation (meaning words or conduct or a 50 51 52 53 54 55 56 57 58

R v Kumar [2002] 5 VR 193. R v R (1981) 28 SASR 321 at 326. (1979) 21 SASR 356. R v Dutton (1979) 21 SASR 356 at 376. (1984) 36 SASR 283. R v Romano (1984) 36 SASR 283 at 287. R v Lees [1999] NSWCCA 301 at [32]. R v Lees [1999] NSWCCA 301 at [38]. Law Reform Commission for England and Wales, Murder, Manslaughter and Infanticide, Law Com No 304, (2006). [5.25]

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combination of words and conduct) which caused the defendant to have a justifiable sense of being seriously wronged”. 59 The latter part of this provision is aimed at denying the defence to men who lose their temper and respond violently to their partners’ words or conduct. 60 Provocative conduct and lawfulness [5.30] There is no requirement at common law that the provocative conduct or insult be

unlawful. 61 The Western Australian Criminal Code is now the only statute requiring that there be a “wrongful act or insult”, but this only pertains to provocation as a defence to assault under s 245. Provocative conduct may include an act that is wrong by the ordinary standards of the community. 62 A lawful arrest or a lawful restraint may not be classified as provocation. In R v Scriva (No 2), 63 the accused stabbed a person to death who had intervened to restrain him from attacking a motorist who had run down the accused’s daughter. The Full Court of the Supreme Court of Victoria held that where death was caused by the intentional use of force in resisting a lawful restraint, the fact that there was provocation from the other person cannot reduce murder to manslaughter. The court held that in any case, there was insufficient evidence of provocation on the facts. An unlawful arrest, on the other hand, may amount to provocation if the illegality was known to the accused. 64 Provocation in the presence of the accused [5.35] Some cases have referred to a requirement that the provocation take place in the sight

or hearing of the accused. For example, in R v Arden, the accused’s de facto wife (who was two months pregnant) told him that she had been raped by a man who was asleep in another room of the house. She showed the accused her torn pantyhose and pants. The accused confronted the man who denied the allegation. The accused attacked and killed him with an iron pipe. Menhennit J excluded the defence of provocation on the basis that being told by a third person of an incident is an insufficient basis for the defence: “The rationale of this rule appears to me to be as follows. If a person actually sees conduct taking place in respect to a third person and he [or she] is provoked thereby, it is understandable that he [or she] may be provoked to the extent of taking the other person’s life and in circumstances which would reduce murder to manslaughter. Where, however, all that happened is that the accused is told something by a third person there enters immediately the element of belief, and there is nothing tangible upon which the accused can be said to have acted.” 65

However, this requirement may have been altered somewhat by the move towards accepting a history of provocative incidents, many of which may not have occurred in the presence of the accused. 66 59 60 61 62 63 64 65 66

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Law Reform Commission for England and Wales, Murder, Manslaughter and Infanticide, Law Com No 304, (2006) p 78. Law Reform Commission for England and Wales, Murder, Manslaughter and Infanticide, Law Com No 304, (2006) p 91. R v R (1981) 28 SASR 321 at 327 per King CJ, at 341 per Jacobs J, cf at 339 per Zelling J; Stingel v The Queen (1990) 171 CLR 312 at 322–324 per the court; Roche v The Queen [1988] WAR 278. Roche v The Queen [1988] WAR 278 at 280 per Burt CJ; Jabarula v Poore (1989) 68 NTR 26 at 31. [1951] VLR 298. Hugget’s Case (1666) Kel 59; 84 ER 1082; Criminal Code (WA), s 245. R v Arden [1975] VR 449 at 452. Parker v The Queen (1964) 111 CLR 665; Moffa v The Queen (1977) 138 CLR 601; R v R (1981) 28 SASR 321; Gardner (1989) 42 A Crim R 279; Chhay (1994) 72 A Crim R 1. [5.30]

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In the situation where provocation occurs in the presence of the accused, it is unclear whether or not the victim must have been aware of the accused’s presence. 67 It is clear, however, that the provocation must have emanated from the victim. 68 However, the provocation need not be aimed at the accused, but may be indirect in the sense that it is aimed at a person with whom the accused has a familiar or close relationship. In R v Terry, Pape J held: “[T]he mere fact that provocation was not offered by the deceased to the accused, but was offered to the deceased’s wife and the accused’s sister, does not prevent the operation of the principle that provocation will reduce murder to manslaughter provided that the provocation was offered in the presence of the accused, and provided all the other elements of provocation are present.” 69

Pape J was of the opinion that provocation could be aimed at not only a relative of the accused but also at other persons in some form of relationship to the accused, but he did not go on to define the proximity of that required relationship. The defence of provocation does not apply where the provocation was self-induced by the accused. 70 In this regard, a distinction has been drawn at common law between inducing provocation as an excuse to kill and risking a provocative reaction from the victim. 71 In the latter case, provocation may still be applicable if the victim’s reaction was unexpected or unpredictable. 72

The Accused’s Loss of Self-Control [5.40] For the defence of provocation to be successful, the accused must have lost the power

of self-control as a result of the provocative conduct. In R v McGregor, North J held: “[I]t is of the essence of the defence of provocation that the acts or words of the dead man [or woman] have caused the accused a sudden and temporary loss of self-control, rendering him [or her] so subject to passion as to make him [or her] for the moment not master of his [or her] mind.” 73

The loss of self-control must have been caused by the provocation rather than another factor, such as intoxication. 74 When considering whether or not an accused actually lost self-control, the jury must consider all the relevant characteristics of the accused. 75 The “totality of the deceased’s conduct” is also relevant. 76 While anger is the usual response to provocation, the courts have taken into account other emotions, such as fear or panic, in causing a loss of self-control. 77 In Van Den Hoek v The Queen, Mason CJ held: 67 68 69 70

71 72 73 74 75 76 77

Gardner (1989) 42 A Crim R 279; cf R v Fricker (1986) 42 SASR 436 at 449 per Zelling J. Gardner (1989) 42 A Crim R 279; R v Davies [1975] 1 QB 691; Simpson (1915) 11 Cr App R 218; Roche v The Queen [1988] WAR 278 at 280 per Burt CJ. R v Terry [1964] VR 248 at 250–251. R v Voukelatos [1990] VR 1 at 19; Allwood (1975) 18 A Crim R 120 at 132–133 per Crockett J; R v Newman [1948] VLR 61 at 66. See A Ashworth, “Self-induced Provocation and the Homicide Act” (1973) Criminal Law Review 483. Edwards v The Queen [1973] AC 648; R v Voukelatos [1990] VR 1 at 19; R v Newman [1948] VLR 61 at 66; Allwood (1975) 18 A Crim R 120. Edwards v The Queen [1973] AC 648. R v McGregor [1962] NZLR 1069 at 1078. R v Perks (1986) 41 SASR 335 per White J; R v Cooke (1985) 39 SASR 225 at 235 per King CJ; Censori v The Queen [1983] WAR 89. Stingel v The Queen (1990) 171 CLR 312 at 326. Moffa v The Queen (1977) 138 CLR 601 at 606; Stingel v The Queen (1990) 171 CLR 312 at 326. R v Hunter [1988] 1 Qd R 663 at 667; R v Pangilinan [2001] 1 Qd R 56 at 64. [5.40]

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“[T]here can now be no convincing reason for confining the doctrine [of provocation] to loss of self-control arising from anger or resentment. The doctrine naturally extends to a sudden and temporary loss of self-control due to an emotion such as fear or panic … This extension … conforms … to the conceptual relationship between the doctrine and the mental elements in the offences of murder and manslaughter.” 78

Whether or not the accused was intoxicated may be a relevant factor. Peek J held in R v Lindsay that “[w]hile intoxication is not relevant to the objective limb, it is certainly relevant when considering the subjective limb as to whether the accused did in fact lose control”. 79 However, in New South Wales, evidence of self-induced intoxication cannot be taken into account. 80 The loss of self-control may vary in intensity from “icy detachment” to “going berserk”. 81 As Wood J held in Peisley: “More is required than anger or loss of temper or building resentment. There must, in my view, be a loss of self-control which I understand to include a state in which the blood is boiling or a state of fear or terror, in either case, to the point where reason has been temporarily suspended.” 82

The jury may consider the significance of any time delay in assessing whether or not the accused lost self-control. 83 There is no separate requirement that the accused lose self-control suddenly or immediately following the provocative conduct. 84 In the Australian Capital Territory, New South Wales and the Northern Territory, the legislation states that the defence of provocation can arise regardless of whether the conduct of the deceased occurred immediately before the conduct causing death or at an earlier time. 85 Any evidence of a “cooling-off period” will merely be a factor that the jury can consider. 86

The Ordinary Person Test [5.45] As noted by the majority of the High Court in Masciantonio v The Queen, the defence

of provocation will only be successful where the provocation was of such a nature as to be “capable of causing an ordinary person to lose self-control and to act in the way in which the accused did”. 87 The ordinary person test thus involves two questions: • Given that the accused actually lost self-control, was the provocation of such a nature as to be capable of causing an ordinary person to lose self-control? (This is usually referred to as assessing the gravity of the provocation.) • Given that the provocation was of such a nature as to be capable of causing an ordinary person to lose self-control, was the provocation capable of causing an ordinary person to act in the way in which the accused did?

78 79 80 81 82 83 84 85 86 87

Van Den Hoek v The Queen (1986) 161 CLR 158 at 168, per Mason CJ. [2014] SASCFC 56 at [117]. This point was not addressed in the High Court decision on appeal in Lindsay v The Queen (2015) 255 CLR 272. Crimes Act 1900 (NSW), s 23(5). Phillips v The Queen [1969] 2 AC 130 at 137 per the Court. Peisley (1990) 54 A Crim R 42 at 48. R v Fisher (1837) 8 Car and P 182; 173 ER 452; Albis (1913) 9 Cr App R 158. Parker v The Queen (1963) 111 CLR 610 at 655; Moffa v The Queen (1977) 138 CLR 601; R v Jeffrey [1967] VR 467; R v R (1981) 28 SASR 321. Crimes Act 1900 (ACT), s 13(2); Crimes Act 1900 (NSW), s 23(4); Criminal Code (NT), s 158(4). Parker v The Queen (1963) 111 CLR 610 at 630 per Dixon CJ. Masciantonio v The Queen (1995) 183 CLR 58 at 66 per Brennan, Deane, Dawson and Gaudron JJ.

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The first part of the ordinary person test involves an assessment of the content and the extent of the provocation; the second involves an assessment of whether the provocation could have caused an ordinary person to kill another or whether an ordinary person could have maintained self-control. As the majority in Masciantonio observed: “Since the provocation must be such as could cause an ordinary person to lose self-control and act in a manner which would encompass the accused’s actions, it must be such as could cause an ordinary person to form an intention to inflict grievous bodily harm or even death.” 88

Under s 23(2)(d) of the Crimes Act 1900 (NSW), there is a requirement that the conduct of the deceased could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm. Similarly, s 13(2)(b) of the Crimes Act 1900 (ACT) and s 158(2)(b) of the Criminal Code (NT) require that an ordinary person could be induced to form an intent to kill or could have been recklessly indifferent to the probability of causing the victim’s death. In Heron v The Queen, 89 the High Court held that the trial judge had misdirected a jury in New South Wales when he asked them to consider what an ordinary person “must” or “would” have done, instead of directing the jury to consider what an ordinary person “could” have done. However, on the facts, the accused’s application for special leave to appeal was dismissed on the basis that there had been no miscarriage of justice. Different personal characteristics may be taken into account in applying the ordinary person test in these two ways. These are explored below. The modern rationale for having an objective standard was expressed in the following terms by Canadian Supreme Court Justice, Madam Wilson: “The objective standard … may be said to exist in order to ensure that in the evaluation of the provocation defence there is no fluctuating standard of self-control against which accuseds are measured. The governing principles are those of equality and individual responsibility, so that all persons are held to the same standard notwithstanding their distinctive personality traits and varying capacities to achieve the standard.” 90

An ordinary person is not equivalent to the reasonable person in tort law, nor is the ordinary person to be construed as a juror in the position of the accused. 91 The South Australian Court of Criminal Appeal has thus held that jury directions asking jurors to “put themselves in the appellant’s position” when considering this objective standard could lead to jurors substituting their own personal standards for those of the ordinary person and that this is impermissible. 92 Just what does constitute the ordinary person is the subject of much debate and is considered further at [5.65]. Both trial judges and juries appear to struggle with the test as it is currently formulated, as Smart JA has pointed out in Mankotia: “In practice the gravity of the provocation/self-control distinction has proved hard to explain to a jury in terms which are intelligible to them … Many trial judges in this State give juries both verbal and written directions on provocation. Juries struggle with the distinction and find it hard to grasp. Many do not do so. The directions on provocation and the distinction frequently lead to a series of questions indicating that these issues are causing difficulty, prolonged deliberations by juries and, not infrequently, to juries being unable to agree whether the accused is guilty of murder or manslaughter.

88 89 90 91 92

Masciantonio v The Queen (1995) 183 CLR 58 at 66 per Brennan, Deane, Dawson and Gaudron JJ. (2003) 197 ALR 81. R v Hill [1986] 1 SCR 313 at 324. Stingel v The Queen (1990) 171 CLR 312 at 327–328. R v Lindsay [2014] SASCFC 56 at [159]-[179]. [5.45]

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This leads to a re-trial. I have been left with the firm impression that, despite extensive endeavours to explain the directions, the jury has had trouble appreciating their import. Other trial judges have had similar experiences.” 93

The gravity of the provocation [5.50] In assessing the gravity of the provocation, the High Court has held that any relevant

characteristics of the accused may be attributed to the ordinary person. 94 In Masciantonio v The Queen, the majority of the High Court articulated the rationale for this contextualisation as follows: “Conduct which might not be insulting or hurtful to one person might be extremely so to another because of that person’s age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history. The provocation must be put into context and it is only by having regard to the attributes or characteristics of the accused that this can be done.” 95

There is some debate concerning just what characteristics of the accused are relevant to the gravity issue. In the past, the courts have taken into account factors such as the accused’s physical disability, mental instability, delusions, intoxication, religious and ethnic background in assessing whether or not the conduct was of such a nature to be sufficient to deprive an ordinary person of the power of self-control. In R v Morhall, 96 the House of Lords held that the accused’s history of “glue-sniffing” could be relevant in determining the gravity of the provocation. Ian Leader-Elliott has argued there are limitations on the types of characteristics that may be attributed to the ordinary person for the purpose of assessing the gravity of the deceased’s conduct. 97 He states that “[w]hen gravity is in issue, the ordinary person is often a near double of the accused”, but that there are “limits to the process of attributing the peculiarities of the accused to this imagined being”. 98 He argues that provocation “is grave only if ordinary people would consider it grave”. 99 Leader-Elliott bases this view on the following passage in Stingel v The Queen: “The central question posed by the objective test—ie of such a nature as to be sufficient—obviously cannot be answered without the identification of the content and relevant implications of the wrongful act or insult and an objective assessment of its gravity in the circumstance of the particular case.” 100

Imbuing the ordinary person with all the characteristics of the accused would certainly seem to be moving away from an “objective assessment” of the gravity of the provocation. It has previously been stated by the House of Lords that the ordinary person will not be invested with “exceptional excitability or pugnacity or ill-temper”. 101 In the New Zealand case of R v McGregor, North J held:

93 94 95 96 97 98 99 100 101

Mankotia (2001) 120 A Crim R 492 at 495. Stingel v The Queen (1990) 171 CLR 312 at 325–327. Masciantonio v The Queen (1995) 183 CLR 58 at 67 per Brennan, Deane, Dawson and Gaudron JJ. [1995] 3 All ER 659. I Leader-Elliott, “Sex, Race and Provocation: In Defence of Stingel” (1996) 20 Criminal Law Journal 72. I Leader-Elliott, “Sex, Race and Provocation: In Defence of Stingel” (1996) 20 Criminal Law Journal 72 at 77. I Leader-Elliott, “Sex, Race and Provocation: In Defence of Stingel” (1996) 20 Criminal Law Journal 72 at 79. Stingel v The Queen (1990) 171 CLR 312 at 325. DPP v Camplin [1978] AC 705 at 726 per Lord Simon.

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“The characteristic must be something definite and of sufficient significance to make the offender a different person from the ordinary run of mankind, and have also a sufficient degree of permanence to warrant its being regarded as something constituting part of the individual’s character and personality.” 102

On the other hand, a little later in Stingel, the High Court appeared to be getting close to making the ordinary person a mirror image of the accused: “[T]he content and extent of the provocative conduct must be assessed from the viewpoint of the particular accused. Were it otherwise, it would be quite impossible to identify the gravity of the particular provocation. In that regard, none of the attributes or characteristics of a particular accused will be necessarily irrelevant to an assessment of the content and extent of the provocation involved in the relevant conduct. For example, any one or more of the accused’s age, sex, race, physical features, personal attributes, personal relationships and past history may be relevant to an objective assessment of the gravity of a particular wrongful act or insult. Indeed, even mental instability or weakness of an accused could, in some circumstances, itself be a relevant consideration to be taken into account in the determination of the content and implications of particular conduct.” 103

Perhaps the real limitation that occurs in relation to imbuing the ordinary person with the characteristics of the accused lies in the causal link that must occur between the provocative conduct and the accused’s characteristics. That is, the conduct and/or words must be gravely provocative to the individual because they relate to a personal characteristic. If a person is “exceptionally pugnacious” and the provocative conduct consists of words relating to that fact, then there appears to be no reason why the ordinary person cannot be imbued with that characteristic.

The Homosexual Advance “Defence” and the Gravity of Provocation [5.55] The term “homosexual advance defence” has been used to refer to evidence supporting

a claim of either provocation or self-defence by heterosexual males who violently respond to a non-violent homosexual advance. 104 In comparison, the term “homosexual panic defence” is used to refer to evidence that the accused had a latent homosexual tendency which caused him to “panic” and overreact with violence when faced with a homosexual proposition. 105 The use of the word “defence” is misleading in that there is no separate defence of homosexual advance or panic. The evidence led is simply used to bolster the existing defences of provocation or self-defence. Concerns about the use of evidence of homosexual advances arose in the early 1990s after a number of men accused of murder in New South Wales raised evidence that they had acted in self-defence or had been provoked by the sexual advance made by another male. 106 Criticisms of the use of evidence of a homosexual advance were particularly prominent after the High 102 103 104 105 106

R v McGregor [1962] NZLR 1069 at 1081 per North J. Stingel v The Queen (1990) 171 CLR 312 at 326. Attorney-General’s Department (NSW), Review of the “Homosexual Advance Defence”, Discussion Paper (1996) p 39. S De Pasquale, “Provocation and the Homosexual Advance Defence: The Deployment of Culture as a Defence Strategy” (2002) 26 Melbourne University Law Review 110 at 113. D Kiley, “I Panicked and Hit Him With a Brick” (1994) 1 Law/Text/Culture 81; S Thomsen, “Hatred, Murder and Male Honour: Gay Homicides and the Homosexual Panic Defence” (1994) 4(2) Criminology Australia 6; P Johnston, “More than Ordinary Men Gone Wrong” (1996) 20 Melbourne University Law Review 1152. Nathan Hodge provides an analysis of these early cases in “Transgressive Sexualities and the Homosexual Advance” (1998) 23(1) Alternative Law Journal 30. [5.55]

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Court decision in Green v The Queen. 107 The 22-year-old accused, Malcolm Green, killed the 36-year-old male victim, Donald Gillies—one of Green’s “best friends”—after the latter had gently touched the accused’s side, bottom and groin area. The accused punched the deceased about 35 times, banged his face against the wall and stabbed him with a pair of scissors about 10 times. Green rang his brother-in-law after the attack and told him to drive him to the police station. There he admitted killing Gillies, stating that he “did worse to me” and that he had killed him “because he tried to root me”. 108 In attempting to establish provocation at his trial, the accused sought to admit evidence that he was particularly sensitive to matters of sexual abuse as a result of being told by his sisters and mother that their father had sexually abused four of his sisters, and after witnessing violent assaults by his father upon his mother. The trial judge directed the jury that this evidence was not relevant to the issue of provocation and the accused was convicted of murder. On appeal to the New South Wales Court of Criminal Appeal, the Crown conceded that the trial judge had erred in law in determining that this evidence was not admissible in relation to the question of whether the accused had in fact been provoked, but a majority of the court (Priestley JA, Ireland J concurring, Smart J dissenting) dismissed the appeal on the basis that there was no miscarriage of justice. 109 On a further appeal to the High Court, all five judges agreed that there had been a misdirection. However, a majority of three judges, Brennan CJ, Toohey and McHugh JJ, with Gummow and Kirby JJ dissenting, held that there had been a miscarriage of justice and ordered a retrial. At his retrial, presumably the defence of provocation was accepted as the jury convicted Green of manslaughter. He was sentenced to imprisonment for 10 and a half years. An appeal against sentence was dismissed. 110 The majority decision of the High Court in Green and the minority decision in the New South Wales Court of Criminal Appeal were heavily criticised. Adrian Howe focused on Smart J’s judgment in the Court of Criminal Appeal decision in which he described the deceased’s actions as “revolting” and amounting to provocation of “a very grave kind”. 111 Howe remarked that “[t]hus is the ordinary man judicially inscribed as a violent homophobe”. 112 Graeme Coss, in a passionate critique of the majority decision of the High Court, stated: “The message is a simple one: unwanted homosexual overtures are an abomination and the perpetrators deserve everything they get—for which, read death.” 113

Rebecca Bradfield was careful to point out that, while sharing Coss’s concern about the message imparted by the case, only Brennan CJ accepted the use of evidence of a homosexual advance in relation to provocation. 114 She argued that Green was not a classic homosexual 107

108 109 110 111 112 113 114

(1997) 191 CLR 334. The Court of Criminal Appeal of the Supreme Court of South Australia in R v Lindsay [2014] SASCFC 56 dismissed an appeal against a conviction for murder after a homosexual advance had allegedly been made despite holding that the directions to the jury on provocation had been flawed. Peek J commented, at [238], that his conclusion “in no way supports some of the more extreme suggestions made in academic debate since the decision of the High Court in Green v The Queen”. The High Court in Lindsay v The Queen (2015) 255 CLR 272, however, allowed the appeal with French CJ, Kiefel, Bell and Keane JJ commenting at 286: “Whether the many critiques of the operation of the partial defence of provocation following Green are the ‘extensive academic literature’ which his Honour took into account in his conclusion as to the capacity of the evidence to raise provocation in this case is not known.” Green v The Queen (1997) 191 CLR 334 at 391 per Kirby J. (unreported, 8/11/1995, NSWCCA). Green v The Queen [1999] NSWCCA 97. Green v The Queen unreported, 8/11/1995, NSWCCA at 22. A Howe, “More Folk Provoke Their Own Demise” (1997) 19 Sydney Law Review 226 at 364. G Coss, Editorial, “Revisiting Lethal Violence by Men” (1998) 22 Criminal Law Journal 5 at 8. R Bradfield, “Green v The Queen” (1998) 22 Criminal Law Journal 296 at 301.

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advance case. Rather, it was focused on the accused’s sensitivity to matters of sexual abuse, which was accepted as being relevant to the assessment of the gravity of the provocation. 115 Tom Molomby, the accused’s solicitor in Green, referred to it being “a most exceptional case”. 116 He stated that the majority decision had nothing to do with homophobia. Rather, the majority judgments had taken into account the importance of Malcolm Green’s family history. Molomby stated that the “man whom Malcolm had come to regard as a substitute father unexpectedly behaved in a way which triggered all the pent up rage against his real father”. 117 In his reply to this defence of the majority decision, Graeme Coss took another view of the facts: “The tragedy of Green is not that Malcolm Green killed; the real tragedy of Green is that Don Gillies died, an act for which it would not be unreasonable for the law to impose the absolute label of murder.” 118

Adrian Howe and Graeme Coss both viewed the majority decision in Green’s case as adding impetus to their view that provocation should be abolished as a defence. 119 This view will be discussed at [5.150]. Since Green’s case, the legislative provisions relating to provocation have been amended in the Australian Capital Territory and the Northern Territory to exclude a non-violent sexual advance (or advances) in itself as a sufficient basis for the defence, but these provisions allow for such an advance to be taken into account together with other conduct of the deceased in deciding whether the defence has been established. 120 In New South Wales, the law of provocation was amended in 2014 to assert that a non-violent sexual advance to the accused does not constitute extreme provocation. 121 In Queensland, the s 304 of the Criminal Code was amended in 2017 such that an unwanted sexual advance cannot form the basis of the defence unless there are exceptional circumstances. 122 This amendment was made in response to considerable criticism. 123 The Queensland Parliament has since introduced a Bill which, If passed, will prevent an unwanted sexual advance from forming the basis of the defence unless there are exceptional circumstances. 124

115

116 117 118 119 120

121 122 123

124

R Bradfield, “Green v The Queen” (1998) 22 Criminal Law Journal 296 at 303. For an account of changing responses to the “homosexual advance defence” since Green’s case see S Tomsen and T Crofts, “Social and Cultural Meanings of Legal Responses to Homicide Among Men: Masculine Honour, Sexual Advances and Accidents” (2012) 45(3) Australian and New Zealand Journal of Criminology 423. T Molomby, ““Revisiting Lethal Violence by Men”—A Reply” (1998) 22 Criminal Law Journal 116 at 116. T Molomby, ““Revisiting Lethal Violence by Men”—A Reply” (1998) 22 Criminal Law Journal 116 at 116. G Coss, “A Reply to Tom Molomby” (1998) 22 Criminal Law Journal 119 at 120. A Howe, “The Provocation Defence: Finally provoking its Own Demise?” (1998) 22 Melbourne University Law Review 466; G Coss, “A Reply to Tom Molomby” (1998) 22 Criminal Law Journal 119. Crimes Act 1900 (ACT), s 13(3), amended by Sexuality Discrimination Legislation Amendment Act 2004 (ACT), Sch 2, Part 2.1; Criminal Code (NT), s 158(5), amended by Criminal Reform Amendment Act (No 2) 2006 (NT), s 17. Crimes Act 1900 (NSW), s 23(3). Criminal Law Amendment Act 2017 (Qld), s 10 of the D Mack, ““But Words Can Never Hurt Me”: Untangling and Reforming Queensland’s Homosexual Advance Defence” (2013) 35(1) Sydney Law Review 167 at 176. See also K Blore, “The Homosexual Advance Defence and the Campaign to Abolish it in Queensland: The Activist’s Dilemma and the Politician’s Paradox” (2012) 12(2) Queensland University of Technology Law and Justice Journal 36. Criminal Law Amendment Bill 2016 (Qld), cl 10. [5.55]

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It remains uncertain whether or not a mistaken belief in provocation is a matter that may be taken into account in assessing the gravity of the deceased’s conduct. In R v Voukelatos, 125 the majority of the Supreme Court of Victoria indicated that evidence of provocation should be left to the jury even where the accused’s belief in provocation was wholly the product of delusional beliefs. This appears to open the way for mistaken belief in provocation to be taken into account. However, in such circumstances, it would seem that the prosecution could prove beyond reasonable doubt that an ordinary person would not have been provoked by delusional beliefs. In R v Abebe, 126 Charles JA, with whom Coldrey AJA agreed, indicated that provocation that is mistakenly believed to have come from the victim should be available for consideration by the jury, provided, however, that the mistaken belief was reasonably held. 127 In R v Dib, 128 Hulme J remarked that the requirement for an honest and reasonable belief in a state of facts which, if they existed, would render the accused’s act “innocent”, seemed to preclude consideration of a mistaken belief that resulted in homicide. 129 The ordinary person and loss of self-control [5.60] The High Court considered the ordinary person test in Green v The Queen. 130

Brennan CJ confirmed that the ordinary person test set out in Stingel and Masciantonio also applied to the defence of provocation formerly set out in s 23 of the Crimes Act 1900 (NSW) (with the revised partial defence of “extreme provocation” now contained in s 23). 131 Section 23(2)(b) of the Crimes Act 1900 (NSW) as it then was 132 stated that the provocation must be such “as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased”. The appellant argued that the words “in the position of the accused” requires the ordinary person to be imbued with all the attributes or characteristics of the accused. Toohey J stated that these words simply mean that in determining the gravity of the provocation to the accused, it is relevant to take into account the accused’s own circumstances. 133 Both Toohey and Gummow JJ referred with approval to dicta in Baragith that: “[T]he words ‘in the position of the accused’ so far as they make relevant attributes or characteristics of a particular accused do so only in assessing the gravity of the alleged provocation and are to be ignored in deciding whether the accused’s response was or was not that of an ordinary person.” 134

Similarly, McHugh J stated that the words “in the position of the accused” “require that the hypothetical person be an ordinary person who has been provoked to the same degree of severity and for the same reasons as the accused”. 135 McHugh J took the opportunity to repeat his position in Masciantonio v The Queen in stating that there should be added

125 126 127 128 129 130 131 132 133 134 135

[1990] VR 1. [2000] 1 VR 429. R v Abebe [2000] 1 VR 429 at 445. (2002) 134 A Crim R 329. R v Dib (2002) 134 A Crim R 329 at 344. (1997) 191 CLR 334. Green v The Queen (1997) 191 CLR 334 at 339–340. Subsequently amended by the Crimes Amendment (Provocation) Act 2014 (NSW). Green v The Queen (1997) 191 CLR 334 at 673. Green v The Queen (1997) 191 CLR 334 at 693 referring to Baragith (1991) 54 A Crim R 240 at 244. Green v The Queen (1997) 191 CLR 334 at 682.

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“considerations of ‘ethnic or cultural background of the accused’ to age and maturity as relevant to any inquiry into the objective standard by which the self-control of an accused is measured”. 136 Kirby J appears to have taken a slightly different view of the meaning of the words “in the position of the accused”, holding not that they deal with the gravity of the provocation, but rather, the “consideration to be given to the age and maturity of the accused person”. 137 The end result of these judgments is that, in relation to the ordinary person test, the approach taken by the High Court in Stingel and Masciantonio still holds sway. This was also clarified in the Northern Territory in 2006, by the removal of the term “in the position of the accused” from s 158(2)(b) of the Criminal Code (NT) in order to ensure that the test was entirely objective. 138 With regard to the question of whether or not the ordinary person could lose control in the way the accused did, the High Court has ruled that no personal characteristic may be taken into account apart from age. 139 In Masciantonio v The Queen, Brennan, Deane, Dawson and Gaudron JJ spoke of the ordinary person test as follows: “The test involving the hypothetical ordinary person is an objective test which lays down the minimum standard of self-control required by the law. Since it is an objective test, the characteristics of the ordinary person are merely those of a person with ordinary powers of self-control. They are not the characteristics of the accused, although when it is appropriate to do so because of the accused’s immaturity, the ordinary person may be taken to be of the accused’s age.” 140

The “sole attribute” that should be taken into account in relation to this part of the ordinary person test has thus been described as “the possession of normal powers of self control, having regard to the age of the individual”. 141 There is no separate requirement that the retaliation be reasonably proportionate to the provocation offered. 142 Brennan, Deane, Dawson and Gaudron JJ referred with approval to Barwick CJ’s comments in Johnson v The Queen that “it is the formation of an intent to kill or do grievous bodily harm which is the important consideration rather than the precise form of physical reaction”. 143 Prior to Stingel’s case, there existed a line of cases in the Northern Territory that imbued the ordinary person with the accused’s Aboriginal background, and this “culturally adept” ordinary person was employed to determine both the gravity of provocation and the loss of self-control. 144 After Stingel’s case was decided, the Supreme Court of the Northern Territory stated that the ordinary person test was not “intended to be applied in a vacuum and without regard to such of the accused’s personal characteristics, attributes or history as served to identify the implications and to affect the gravity of the particular wrongful act or insult”. 145 The court then went on to speak of the ordinary 29-year-old “Aboriginal person”, but it is 136 137 138 139 140 141 142 143 144

145

Green v The Queen (1997) 191 CLR 334 at 682 referring to Masciantonio v The Queen (1995) 183 CLR 58 at 74. Green v The Queen (1997) 191 CLR 334 at 716. Dr Toyne, Second Reading Speech of the Criminal Law Reform Amendment Bill (No 2) 2006, Northern Territory, Parliamentary Debates, Tenth Assembly, First Session, 22 August 2006, Parliamentary Record No 9. Stingel v The Queen (1990) 171 CLR 312 at 326–327, at 330–331 per the Court. Masciantonio v The Queen (1995) 183 CLR 58 at 67. R v Margach (2007) 173 A Crim R 149 at 154. Masciantonio v The Queen (1995) 183 CLR 58 at 67 per Brennan, Deane, Dawson and Gaudron JJ; R v Margach (2007) 173 A Crim R 149; Crimes Act 1900 (ACT), s 13(4)(a); Criminal Code (NT), s 158(6)(a). Masciantonio v The Queen (1995) 183 CLR 58 at 67 referring to Johnson v The Queen (1976) 136 CLR 619 at 636. R v Patipatu (1951–1976) NTJ 18; R v MacDonald (1951–1976) NTJ 186; R v Muddarubba (1951–1976) NTJ 317; R v Jimmy Balir (1951–1976) NTJ 633; R v Nelson (1951–1976) NTJ 327; Jabarula v Poore (1989) 42 A Crim R 479. Mungatopi v The Queen (1992) 2 NTLR 1. [5.60]

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unclear whether it was applying this to both parts of the ordinary person test. The court did point out that the provisions of the Criminal Code (NT) (as they then existed) were different to those of the Criminal Code (Tas) (as they then existed) and seemed to suggest that ethnicity could be taken into account in assessing whether or not the requisite conduct was such as to provoke an ordinary Aboriginal person living in the environment and culture of a fairly remote Aboriginal settlement to retaliate “to the degree and method and continuance of violence which produces the death”. 146 However, in R v Miller, the Queensland Court of Appeal clarified that a judge must now direct the jury in terms of the “ordinary person” rather than an “ordinary Aboriginal person”. 147 Stanley Yeo has criticised the earlier line of cases on the basis that they regard Aboriginal people as possessing lesser capacity for self-control than other ethnic groups: “Doubtless, the judges who delivered these decisions had fairness and justice as their paramount aims. However, their decisions had the effect of promoting a great evil, namely, a negative stereotype of Aborigines being at a lower order of the evolutionary scale than other ethnic groups.” 148

This aspect of the ordinary person test has been the subject of debate and is examined in the following section.

Perspectives Critique of the Ordinary Person Test [5.65] The ordinary person test in provocation has drawn much criticism from both

judges and academic commentators. In Moffa v The Queen, Murphy J called for its abolition: “The objective test is not suitable even for a superficially homogeneous society, and the more heterogeneous our society becomes, the more inappropriate the test is. Behaviour is influenced by age, sex, ethnic origin, climatic and other living conditions, biorhythms, education, occupation and, above all, individual differences. It is impossible to construct a model of a reasonable or ordinary South Australian for the purpose of assessing emotional flashpoint, loss of self-control and capacity to kill under particular circumstances … The same considerations apply to cultural sub-groups such as migrants. The objective test should not be modified by establishing different standards for different groups in society. This would result in unequal treatment … The objective test should be discarded. It has no place in rational criminal jurisprudence.” 149

This reasoning was adopted by the Irish Court of Appeal, which abandoned the objective test in The People v MacEoin. 150 Peter Brett reviewed the sociological and physiological studies that demonstrate that the old common law was grounded on a number of fallacies about human nature. 151 He examined the judicial view of “controllable anger”, that is, the idea that individuals who have lost self-control are in a position to control the degree of retaliation. This conception was embodied in the requirement of proportionality between the insult and the retaliation. Brett noted that the human body under stress prepares for strenuous action, a phenomenon known as the “fight or flight” reaction. The changes that occur have 146 147 148 149 150 151

Mungatopi v The Queen (1992) 2 NTLR 1 at 6 affirming Holmes v DPP [1946] AC 588 at 597. [2009] QCA 11 at [15]. S Yeo, “Sex, Ethnicity, Power of Self-Control and Provocation” (1996) 18 Sydney Law Review 304 at 316. Moffa v The Queen (1977) 138 CLR 601 at 625-626. (1978) 112 ILTR 43. P Brett, “The Physiology of Provocation” [1970] Criminal Law Review 634.

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something of an all-or-nothing quality; the reaction is not nicely proportioned to the threat which is expected of the ordinary person. Brett concluded that “the all-or-none quality of the reaction makes it alike pointless to draw distinctions of nicety between different types of provocative act”. 152 He also argued that how individuals cope with stress varies much from one individual to another in that some individuals “are highly vulnerable to stress, others are strikingly resistant to it”. 153 This provides another reason why it is difficult to identify the response of an ordinary person. Another criticism of the defence of provocation concerns what characteristics should be taken into account in relation to the ordinary person. Alex Reilly refers to this as “[o]ne of the most intractable debates surrounding the defence”. 154 Some authors and judges have called for a modification of the ordinary person test so that further characteristics of the accused in addition to that of age be taken into account in assessing whether or not the ordinary person could or might have lost self-control in the same way as the accused did. In Masciantonio v The Queen, McHugh J recanted that with which he had concurred in Stingel’s case, and stated that: “[U]nless the ethnic or cultural background of the accused is attributed to the ordinary person, the objective test of self-control results in inequality before the law. Real equality before the law cannot exist when ethnic or cultural minorities are convicted or acquitted of murder according to a standard that reflects the values of the dominant class but does not reflect the values of those minorities.” 155

In reaching this conclusion, McHugh J stated that he was influenced by Stanley Yeo’s criticisms of the objective test. 156 Interestingly enough, Yeo subsequently altered his position after reading the work of Ian Leader-Elliott. 157 In 1996, Yeo wrote that imbuing the ordinary person with the accused’s ethnic or cultural background may give rise to essentialist views of various cultures and, consequently, to racism. 158 There are dangers associated with the present test in that, by excluding cultural and ethnic background as a relevant consideration, discrimination against minority groups may be concealed and perpetuated. When a tribunal of fact is called on to decide whether the accused’s conduct complies with the standards of reasonableness or ordinariness imposed by the law, whose standard is being applied? Objective standards are predicated on the existence of a “community consensus” about what constitutes reasonable and ordinary behaviour, but where minority groups are not adequately represented, either on juries or on the Bench, objective standards will be determined by the values of the dominant Anglo-Saxon-Celtic culture exclusively. 159 In

152 153 154 155 156 157 158 159

P Brett, “The Physiology of Provocation” [1970] Criminal Law Review 634 at 638. P Brett, “The Physiology of Provocation” [1970] Criminal Law Review 634 at 637. A Reilly, “Loss of Self-Control in Provocation” (1997) 21 Criminal Law Journal 320 at 326. Masciantonio v The Queen (1995) 183 CLR 58 at 74. Referring to S Yeo, “Power of Self-Control in Provocation and Automatism” (1992) 14 Sydney Law Review 3 at 12–13. See, for example, I Leader-Elliott, “Sex, Race and Provocation: In Defence of Stingel” (1996) 20 Criminal Law Journal 72. S Yeo, “Sex, Ethnicity, Power of Self-Control and Provocation Revisited” (1996) 18 Sydney Law Review 304. Australian Law Reform Commission, Multiculturalism and the Law, Report No 57 (1992), pp 183–184. [5.65]

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reality, each tribunal is constructing the standard of judgment according to its own values, and, though represented as an “objective” and “neutral” standard, it produces a highly discretionary system of regulation. 160 On the other hand, the adoption of an ordinary person standard that is sensitive to cultural variation may also be problematic for several reasons. First, there is a risk of fragmenting the law and exacerbating the unequal treatment of individuals. 161 Secondly, such a modified standard could accommodate cultural claims about the use of family violence to discipline women and children, providing a partial defence to murder in communities where violence is recognised as a culturally appropriate response to provocative acts of “domestic disobedience”. This conflict of moral imperatives, between multicultural and feminist claims to equality, is irreconcilable. There is a tendency to obscure this conflict by means of a judicial “sleight of hand”; namely, the law merely recognises but does not condone such cultural practices. Certainly, a multicultural model of provocation could legitimately refuse to recognise cultural claims which are discriminatory on the grounds of gender, sexuality or age. This limitation would be consistent with the protection offered under the law of assault, where violence inflicted for the purpose of “domestic discipline” is unlawful irrespective of the cultural practices or consent of the parties involved. 162 By contrast, the law still permits adults to use some force for the “reasonable chastisement” of children, though this has been challenged as a violation of international human rights law: Chapter 10, [10.135]. Moreover, it would conform to the position in international human rights law where, in cases of irreconcilable conflict, the right of minorities to enjoy their own culture, religion or language is qualified by individual rights to equality and non-discrimination. 163 Another danger with accommodating different cultural perspectives relates to proof. In determining the reactions of an ordinary person of a particular ethnicity, there is a risk (as Yeo acknowledges) that judges and juries may draw on discriminatory generalisations about the cultures of minority groups of which they have little or no understanding. These dangers can, however, be overcome by both “out of court” measures such as crosscultural training for judges and lawyers, better representation of minorities on juries, and “in court” assistance from independent witnesses who have expertise in cultural issues. 164 It may be that the difficulties associated with the ordinary person test are so intractable that it might be worthwhile considering other more radical solutions than simply attempting to modify it. The Model Criminal Code Officers Committee has recommended the abolition of the defence of provocation, a recommendation that has now been followed in Tasmania, Victoria and Western Australia, and this is discussed at [5.150].

160 161

162 163

164

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N Lacey, C Wells and O Quick, Reconstructing Criminal Law (4th ed, Cambridge: Cambridge University Press, 2010) p 113. K Amirthalingam, “Culture, Crime and Culpability: The Defence of Provocation” in AD Renteln and M Foblets, Multicultural Jurisprudence: Comparative Perspectives on Cultural Defense (Oxford: Hart Publishing, 2009) p 43. R v Watson [1987] 1 Qd R 440. See E Evatt, “Cultural Diversity and Human Rights” in P Alston (ed), Towards an Australian Bill of Rights, Centre of International and Public Law (Canberra: Australian National University and Human Rights and Equal Opportunity Commission, 1994). K Amirthalingam and S Bronitt, “Cultural Blindness—Criminal Law in Multicultural Australia” (1996) 21(2) Alternative Law Journal 58 at 60. [5.65]

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The Burden of Proof [5.70] The prosecution bears the legal burden of negating provocation beyond reasonable

doubt. 165 The legal burden may be discharged by proving that: • provocative conduct did not exist; or • the intention to kill or cause grievous bodily harm arose independently of the provocative conduct; or • the provocation was not such as to deprive the ordinary person of self-control in the way in which the accused did. The defence bears the evidential burden in relation to provocation. This is expressly stated in s 158(7) of the Criminal Code (NT). The trial judge should instruct the jury on provocation if there is material which suggests that the killing occurred when the accused lost self-control. 166 This is the case even where the defence has not raised the defence or where the defence has conceded that provocation was not an issue. 167 The trial judge should direct the members of the jury to return a verdict of manslaughter if they are not satisfied beyond reasonable doubt that one or more of the elements of the defence was not present. 168 The trial judge may withdraw provocation from the jury if there is no credible narrative supporting the defence obtainable from the evidence. 169 This power to withdraw the defence should be exercised with caution. 170 In Parker v The Queen, Dixon CJ stated: “[T]he issue before the Court of Criminal Appeal was whether by any possibility the jury might not unreasonably discover in the material before them enough to enable them to find a case of provocation. The selection and evaluation of the facts and factors upon which that conclusion would be based would be for the jury and it would not matter what qualifying or opposing considerations the Court might see: they would not matter because the question was, ex hypothesi, one for the jury and not for the Court.” 171

This implies that a trial judge should be careful not to replace his or her views for that of the jury in assessing whether or not to withdraw the defence of provocation. 172

Provocation and Intimate Partner Violence [5.75] In the past, the use of the defence of provocation proved difficult for women who had

killed their abusive partners. The common law traditionally required suddenness and a proportionate relationship between the provocation and the conduct undertaken. Since these two requirements are no longer separate rules but matters to be taken into account overall, there has been a freeing up of the availability of the defence. In the Northern Territory, the 165 166 167

168 169 170 171 172

Stingel v The Queen (1990) 171 CLR 312 at 333–334; Crimes Act 1900 (ACT), s 13(5); Crimes Act 1900 (NSW), s 23(7). Lee Chun-Chuen v The Queen [1963] AC 220 at 231; R v Anderson [1965] NZLR 29. Van den Hoek v The Queen (1986) 161 CLR 158 at 162 per Gibbs CJ, Wilson, Brennan and Deane JJ. Pemble v The Queen (1971) 124 CLR 107 at 117–118 per Barwick CJ; Wardrope (1987) 29 A Crim R 198 at 204 per Gray J; Hutton v The Queen [1986] Tas R 24 at 29 per Green CJ. Da Costa v The Queen (1968) 118 CLR 186 at 213 per Owen J; Parker v The Queen (1964) 111 CLR 665 at 681. Da Costa v The Queen (1968) 118 CLR 186; Sreckovic v The Queen [1973] WAR 85; R v Callope [1965] Qd R 456; R v Vassiliev [1968] 3 NSWLR 155; Pepler (1984) 13 A Crim R 476. Stingel v The Queen (1990) 171 CLR 312 at 334. Parker v The Queen (1964) 111 CLR 665 at 616. Moffa v The Queen (1977) 138 CLR 601 at 613–614 per Gibbs J. [5.75]

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suddenness requirement was specifically omitted with the aim of making the defence available to women who had killed their abusive partners. 173 In R v R, 174 the accused killed her abusive husband with an axe while he was sleeping: see [5.15]. The lack of suddenness in the provocative conduct was not a bar to provocation. The Supreme Court of South Australia accepted that the words and conduct of the deceased had to be seen in the context of the history of the relationship between the two. Similarly, in Hill, 175 the New South Wales Court of Criminal Appeal took a contextual approach to the traditional suddenness requirement and held that the accused’s loss of self-control had to be seen in the context of a history of violence. In that case, there was evidence that the husband had a propensity for violent conduct when he was drunk. On the day of the killing, he returned home intoxicated from the pub, swearing and “screaming his head off”. The accused, who had a rifle, warned him not to come near her. She claimed she fired three shots, trying to frighten him away. One of the shots hit and killed her husband. The Court of Criminal Appeal substituted a verdict of manslaughter and sentenced the accused to four and a half years in prison. The real stumbling block in relation to women who have experienced intimate partner violence using the defence of provocation lies in the context of the ordinary person test. How can the circumstances of a woman who has experienced such violence be taken into account if provocation depends upon whether or not an ordinary person would or could have lost self-control? Some have argued that the sexless ordinary person is really a male. 176 The challenge for the defence is to demonstrate that the male response to provocation is not necessarily the only reasonable response or ordinary reaction. Evidence of “battered woman syndrome”, which will be considered more fully in Chapter 6, [6.65], in relation to the defence of self-defence, may be relevant to the questions as to whether or not the accused lost self-control and the gravity of the provocation. However, such evidence has no bearing on the power of self-control expected of the ordinary person. Yeo points out: “[F]or the purposes of provocation, battered women are regarded as possessing normal levels of self-control and are not to be distinguished in this respect from the ordinary woman of the community. What the syndrome does do is to present the latest provocative incident in the light of a history of provocation, and contribute to the jurors’ comprehension of how a person with such a history could have viewed the latest provocation.” 177

Because of the difficulties of “fitting” the circumstances of women who have experienced intimate partner violence within the provocation defence, an accused who kills her partner after years of abuse may still be liable for murder. However, a man who kills his partner after discovering her in an act of adultery may be liable for manslaughter. In order to address this discrepancy, in 2010, Queensland introduced a “killing for preservation in an abusive domestic relationship” 178 defence which is examined further in Chapter 6, [6.65]. How best 173 174 175 176 177 178

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Dr P Toyne, second reading speech of the Criminal Law Reform Amendment Bill (No 2) 2006, Northern Territory, Parliamentary Debates, 10th Assembly, First Session, 22 August 2006, Parliamentary Record No 9. (1981) 28 SASR 321. (1981) 3 A Crim R 397. See, for example, E Sheehy, J Stubbs and J Tolmie, “Defending Battered Women on Trial: The Battered Woman Syndrome and Its Limitations” (1992) 16 Criminal Law Journal 369. S Yeo, “Battered Woman Syndrome in Australia” (1993) 143 New Law Journal 13 at 13. Criminal Code (Qld), s 304B. See H Douglas, “A consideration of the merits of specialised homicide offences and defences for battered women” (2012) 45(3) Australian and New Zealand Journal of Criminology 367 at 372-377. [5.75]

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to take into account the circumstances of women who kill who have experienced intimate partner violence continues to be the subject of debate. 179

DIMINISHED RESPONSIBILITY [5.80] Like the defence of provocation, diminished responsibility serves to reduce a charge of

murder to manslaughter. The defence of diminished responsibility is only available in the Australian Capital Territory, New South Wales (where it is labelled “substantial impairment by abnormality of mind”), the Northern Territory and Queensland. 180 Diminished responsibility began as a plea in mitigation in the Scottish courts in the mid-18th century as a way of dealing with “mental weakness” falling short of insanity and as a way of avoiding the death penalty. 181 It became a partial defence to murder in the mid-19th century case of HM Advocate v Dingwall, 182 and was later enacted in England under s 2 of the Homicide Act 1957 (UK). Despite differences in the wording of the defence in the four Australian jurisdictions, diminished responsibility consists of three elements: • the accused must have been suffering from an abnormality of mind; • the abnormality of mind must have arisen from a specified cause; and • the abnormality must have substantially impaired the accused’s capacity to understand his or her actions or to know that he or she ought not to do the act or to control his or her actions. The defence has been criticised both on conceptual grounds and on the basis of difficulties with each of these components. The criticisms dealing with the elements of the defence will be considered as each element is examined. That will be followed by consideration of whether or not the defence should be abolished at [5.165].

Abnormality of Mind [5.85] The defence requires that the accused was suffering from an “abnormality of

mind”. 183 Lord Parker CJ in R v Byrne defined an “abnormality of mind” as follows: “[A] state of mind so different from that of ordinary human beings that the reasonable [person] would term it abnormal. It appears … to be wide enough to cover the mind’s activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgment as to whether an act is right or wrong, but also the ability to exercise will power to control physical acts in accordance with that rational judgment.” 184

179

180 181 182 183

184

K Fitz-Gibbon and J Stubbs, “Divergent Directions in Reforming Legal Responses to Lethal Violence” (2012) 45(3) Australian and New Zealand Journal of Criminology 318; T Crofts and D Tyson, “Homicide Law Reform in Australia: Improving Access to Defences for Women Who Kill their Abusers” (2013) 39(3) Monash University Law Review 864. Crimes Act 1900 (ACT), s 14; Crimes Act 1900 (NSW), s 23A; Criminal Code (NT), s 159; Criminal Code (Qld), s 304A. G Gordon, The Criminal Law of Scotland (2nd ed, Edinburgh: Green, 1978) p 386; Lord Keith of Avonholm, “Some Observations on Diminished Responsibility” (1959) Juridical Review 109 at 110. (1867) 5 Irvine 446. See Crimes Act 1900 (ACT), s 14; Crimes Act 1900 (NSW), s 23A; Criminal Code (Qld), s 304A. The Northern Territory defence applies where “the defendant’s mental capacity was substantially impaired” which “arose wholly or partly from an underlying condition”: Criminal Code (NT), s 159(1). R v Byrne [1960] 2 QB 396 at 403. [5.85]

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The abnormality of mind need not be a permanent feature 185. However, it does not include emotions such as anger, jealousy, bad temper or attitudes or prejudices arising from upbringing. 186 In Queensland, there has been a suggestion that a narrow approach to what is an abnormality of mind should be followed. In R v Rolph, Hanger J referred to the broad approach set out in Byrne’s case and stated: “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 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.” 187

The term “abnormality of mind” has been criticised on the grounds that it is an ambiguous term that does not conform to medical concepts. In consultations with the New South Wales Law Reform Commission, several psychiatrists pointed out that almost everyone who kills could be said to be suffering from an “abnormality of mind”. 188 There has certainly been a wide range of conditions that have been held to fall within the term. For example, it has been held to encompass severe depression 189 and personality disorders. 190 Post-traumatic stress disorder has also fallen within the ambit of the term. 191 It is interesting to note that, on the advice of psychiatrists and psychologists, the New South Wales Law Reform Commission recommended changing the term to “abnormality of mental functioning”, but this term did not find its way into the amended defence. 192 Ultimately, what constitutes an abnormality of mind is a matter for the jury to decide. Thomas J in R v Whitworth explained this as follows: “There is no doubt that juries and judges alike look for a test that gives the defence to the harassed and the incapable, and denies it to the wicked and the callous. In the end it must be for the jury to draw the line from case to case.” 193

185 186

193

Tumanako (1992) 64 A Crim R 149; R v Whitworth [1989] 1 Qd R 437. R v Whitworth [1989] 1 Qd R 437; Hinz (1986) 24 A Crim R 185 at 187–188 per Vasta J; R v Purdy [1982] 2 NSWLR 964 at 966. On the difference between “morbid jealousy” and “normal jealousy”, see R v Christov [2006] NSWSC 972 at [143]–[156]. R v Rolph [1962] Qd R 262 at 288. New South Wales Law Reform Commission, Partial Defences to Murder: Diminished Responsibility, Report No 82 (1997) p 45. Chayna (1993) 66 A Crim R 178; R v Nielsen [1990] 2 Qd R 578; Seers (1984) 79 Cr App R 261; R v Morris [1961] 2 QB 237. R v Whitworth [1989] 1 Qd R 437; R v McGarvie (1986) 5 NSWLR 270; Turnbull (1977) 65 Cr App R 242; Fenton (1975) 61 Cr App R 261; McDermott v Director of Mental Health; Ex parte Attorney-General (Qld) (2007) 175 A Crim R 461. R v Nielsen [1990] 2 Qd R 578. New South Wales Law Reform Commission, Partial Defences to Murder: Diminished Responsibility, Report No 82 (1997) p 55. R v Whitworth [1989] 1 Qd R 437 at 447.

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187 188 189 190

191 192

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Causes of the Abnormality of Mind [5.90] For diminished responsibility to be made out, the abnormality of mind must arise from

a prescribed factor. 194 Table 1 summarises the different factors set out in the legislation. The table shows that the provisions in the Australian Capital Territory and Queensland are substantially the same as each other, but the requirements in New South Wales and the Northern Territory were amended by the Crimes Amendment (Diminished Responsibility) Act 1997 (NSW) and the Criminal Reform Amendment Act (No 2) 2006 (NT) respectively. In the Australian Capital Territory and Queensland, the abnormality of mind must arise from one of three general factors, each of which will be explored in turn. Table 1 Prescribed factors Crimes Act 1900 (ACT), s 14(1) a condition of arrested or retarded development of mind

any inherent cause induced by disease or injury

Crimes Act 1900 (NSW), s 23A(8) “underlying condition” means a pre-existing mental or physiological condition, other than a condition of a transitory kind – –

Criminal Code (NT), s 159 Criminal Code (Qld), s 304A “underlying condition” a condition of arrested or means a pre-existing retarded development of mental or physiological mind condition other than of a transitory kind – –

inherent causes induced by disease or injury

A condition of arrested or retarded development of mind [5.95] This provision is designed to take into account intellectual disabilities or organic brain

damage. In Queensland, a condition of arrested or retarded development of mind has been interpreted as encompassing “natural mental infirmity” which is referred to in s 27 of the Criminal Code (Qld), the section which sets out the defence of insanity. 195 This, in turn, has been interpreted as going beyond organic disorders, but how far this extends is unclear. 196 For example, it is uncertain whether natural mental infirmity extends to antisocial personality disorder. 197 Any inherent cause [5.100] Any inherent cause has been held to be something that is a natural feature of the mind

that has existed from birth or has developed by reason of an innate disposition or natural deterioration. 198 An inherent cause must have some degree of permanency. 199 However, an ephemeral manifestation of a permanent underlying condition may constitute an inherent

194 195 196 197 198 199

Fenton (1975) 61 Cr App R 261; R v Gittens [1984] QB 698; Jones (1986) 22 Cr App R 42; R v Miers [1985] 2 Qd R 138. R v Rolph [1962] Qd R 262. Hodges (1985) 19 A Crim R 129. PA Fairall and PW Johnston, “Antisocial Personality Disorder (APD) and the Insanity Defence” (1987) 11 Criminal Law Journal 78. R v Whitworth [1989] 1 Qd R 437 at 454 per Derrington J. Tumanako (1992) 64 A Crim R 149 at 162 per Badgery-Parker J; R v McGarvie (1986) 5 NSWLR 270 at 272 per Street CJ. [5.100]

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cause. 200 External factors, such as environmental influences or stress, cannot in themselves be considered inherent causes, but they may be taken into account if they have contributed to producing a pre-existing inherent cause. 201 The inclusion of abnormalities of mind stemming from inherent causes has attracted criticism. This is because of the anomaly of requiring the inherent cause to be permanent, yet the abnormality of mind need only be temporary. 202 In addition, there may be some overlap between an “abnormality of mind” and an “inherent cause”. Personality disorders are cited as common examples of where the abnormality and the inherent cause are considered indistinguishable. The courts appear to have accepted evidence of an “inherent abnormality” rather than an abnormality stemming from an inherent cause. 203 Induced by disease or injury [5.105] A “disease” has been held to include all forms of physical deterioration caused by, for

example, epilepsy 204 and delirium from fever. 205 “Injury” has been held to include injury caused either physically or psychologically, such as post-traumatic stress disorder. 206 It may also cover the situation of injury caused by protracted intoxication 207 and chronic alcoholism, but not by a temporary self-induced state. 208 Underlying condition [5.110] The New South Wales Law Reform Commission (NSWLRC) considered that the traditional causes of abnormality of mind were “quite arbitrary and may generate a high level of complexity and confusion in relation to the expert evidence which is led in diminished responsibility cases.” 209 Its proposal, which has been enacted in s 23A of the Crimes Act 1900 (NSW), is that an abnormality of mind must arise from an “underlying condition”. This is defined in s 23A(8) as “a pre-existing mental or physiological condition, other than a condition of a transitory kind”. Based on these recommendations of the NSWLRC, the same approach has been adopted in the Northern Territory: Criminal Code (NT), s 159. The NSWLRC explained the rationale for this terminology as follows: “The term ‘arising from an underlying condition’ is intended to link the defence to a notion of a pre-existing impairment requiring proof by way of expert evidence, which impairment is of a more permanent nature than a simply temporary state of heightened emotions. This does not mean that the 200 201 202 203 204 205 206 207 208

209

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R v McGarvie (198) 5 NSWLR 270 at 272 per Street CJ. R v Whitworth [1989] 1 Qd R 437 at 453 per Derrington J, qualifying R v McGarvie (1986) 5 NSWLR 270. R v McGarvie (1986) 5 NSWLR 270. For example, in Tumanako (1992) 64 A Crim R 149, Badgery-Parker J stated (at 162) that “[i]t will be sufficient that the abnormality of mind is itself shown to be inherent”. R v Dick [1966] Qd R 301; Campbell (1986) 84 Cr App R 255. R v Whitworth [1989] 1 Qd R 437 at 450 per Derrington J. R v Nielsen [1990] 2 Qd R 578 at 585 per De Jersey J. R v Chester [1982] Qd R 252; R v Whitworth [1989] 1 Qd R 437 at 457 per Derrington J; R v Tandy [1989] 1 WLR 350. R v de Souza (unreported, 20/10/1995, NSWSC, Dunford J) (abnormality of mind stemming from the use of anabolic steroids did not arise from any of the prescribed factors); R v Nielsen [1990] 2 Qd R 578 at 581 per Macrossan CJ, at 585–586 per de Jersey J; R v Whitworth [1989] 1 Qd R 437 at 453; R v Morgan; Ex parte Attorney-General [1987] 2 Qd R 627; R v Miers [1985] 2 Qd R 138; Jones (1986) 22 Cr App R 42; R v Gittens [1984] QB 698; Fenton (1975) 61 Cr App R 261; RS O’Regan, “Intoxication and Criminal Responsibility Under the Queensland Code” (1977) 10 University of Queensland Law Journal 70 at 81. New South Wales Law Reform Commission, Partial Defences to Murder: Diminished Responsibility, Report No 82 (1997) p 49. [5.105]

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condition must be shown to be permanent. It simply requires that the condition be more than of an ephemeral or transitory nature. So, for example, a severe depressive illness which is curable would still be considered to come within the definition of ‘underlying condition’, notwithstanding that it is not permanent. On the other hand, a transitory disturbance of mind brought about by heightened emotions, such as extreme anger in typical cases of ‘road rage’, would be excluded from the definition of ‘underlying condition’ and therefore could not form the basis of a plea of diminished responsibility.” 210

Substantial Impairment of Capacity [5.115] The abnormality of mind must have substantially impaired the accused’s capacity to understand events and the wrongness of the act or the ability to control his or her actions. In the old parlance, the term used was “mental responsibility”, a term still used in the Australian Capital Territory. Table 2 sets out the different terms describing substantial impairment of capacity.

Table 2 Terms describing impairment of capacity Crimes Act 1900 (ACT), s 14(1) mental responsibility – –

Crimes Act 1900 (NSW), Criminal Code (NT), s 23A(1)(a) s 159 capacity to understand events capacity to understand events capacity to judge whether the capacity to judge whether person’s actions were right or his or her actions are wrong right or wrong capacity to control himself or capacity to exercise herself self-control

Criminal Code (Qld), s 304A(1) capacity to understand what the person is doing capacity to know that the person ought not do the act or make the omission capacity to control the person’s actions

There has been some case law in relation to what is meant by “substantially impaired”. In R v Byrne, 211 Lord Parker CJ in delivering the judgment of the court, stated that substantial impairment was a matter of degree and that it signified more than “some impairment”. In R v Simcox the English Court of Criminal Appeal stated: “It is a matter for the jury approaching the matter in a broad commonsense way and taking into consideration all the circumstances, not only the medical evidence but the [accused’s] history, conduct, and the whole circumstances of the case.” 212

In R v Lloyd the English Court of Criminal Appeal stated that the jury should be directed that substantial “does not mean total … [but at] the other end of the scale substantial does not mean trivial or minimal”. 213 This direction was referred to by Hart J in R v Biess as “the most satisfactory I have seen, on the meaning of substantially”. 214 In McDermott v Director of Mental Health; Ex Parte Attorney-General (Qld), Williams JA pointed out that whether or not there is a substantial impairment of the accused’s capacity is “ultimately a legal question relating to the person’s responsibility under the criminal law” rather than a medical one. 215 However, Fryberg J stated that this should not ordinarily be

210 211 212 213 214 215

New South Wales Law Reform Commission, Partial Defences to Murder: Diminished Responsibility, Report No 82 (1997) p 56. [1960] 2 QB 396 at 404. R v Simcox [1964] Crim LR 402 at 403. R v Lloyd [1967] 1 QB 175 at 176. R v Biess [1967] Qd R 470 at 475. McDermott v Director of Mental Health; Ex Parte Attorney-General (Qld) (2007) 175 A Crim R 461 at 467. [5.115]

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taken to mean that there has been substantial impairment “in the complete absence of medical evidence to support such a finding”. 216 Medical evidence will, therefore, be of assistance to this part of the defence. The concept of substantial impairment is probably incapable of precise definition, yet its quantitative connotation appears sufficiently precise for the purposes of jury decision-making. In New South Wales, there is an added provision in s 23A(1)(b) of the Crimes Act 1900 (NSW) requiring that a person who would otherwise be guilty of murder is not to be convicted if the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. This provision was inserted to clarify that it is the jury that must determine the ultimate issue of whether the accused should be convicted of manslaughter rather than murder. 217 For the same reason, s 159(1)(c) of the Criminal Code (NT) requires a person not to be convicted of murder if, given the extent of the impairment, the defendant should not be convicted of murder. The traditional diminished responsibility provisions and, currently, the Australian Capital Territory provision, use the much-criticised term “mental responsibility”. In R v Byrne, it was held: “The expression ‘mental responsibility for his acts’ points to a consideration of the extent to which the accused’s mind is answerable for his physical acts which include a consideration of the extent of his ability to exercise will power to control his physical acts.” 218

But what exactly does this term mean? Is the question of mental responsibility akin to asking whether the accused’s physical acts were voluntary as the traditional approach to automatism defines it, or is it something different? The Butler Committee in the United Kingdom pointed out that: “It seems odd that psychiatrists should be asked to testify as to legal or moral responsibility. It is even more surprising that courts are prepared to hear that testimony.” 219

As noted above, the New South Wales, Northern Territory and Queensland provisions avoid the problems associated with the term “mental responsibility” by replacing it with three capacities: • the capacity of the accused to understand what he or she is doing; • the capacity to know that it was wrong; and • the capacity to control his or her actions. In the Northern Territory and Queensland, these categories of capacity are the same as those prescribed for the defence of mental impairment, see Chapter 4, [4.20] Table 1. 220 As discussed in relation to the defence of mental impairment, the inclusion of the capacity to control one’s actions is problematic. It is very difficult to assess whether or not an accused was incapable of controlling his or her actions, as opposed to being capable but choosing not to. There is also the risk that this component may afford a defence to those with an antisocial personality disorder who may argue that they were unable to control themselves because of their disorder. 216 217 218 219 220

McDermott v Director of Mental Health; Ex Parte Attorney-General (Qld) (2007) 175 A Crim R 461 at 509. New South Wales Law Reform Commission, Partial Defences to Murder: Diminished Responsibility, Report No 82 (1997) p 59. R v Byrne [1960] 2 QB 396 at 403 per Lord Parker CJ. This “definition” was accepted by the Judicial Committee of the Privy Council as authoritative and correct in Rose v The Queen [1961] AC 496 at 507. Committee on Mentally Abnormal Offenders (The Butler Committee), Report of the Committee on Mentally Abnormal Offenders (London: HMSO Cmnd 6244, 1975) para 19.5. R v Rolph [1962] Qd R 262 at 271 per Mansfield CJ.

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Burden of Proof [5.120] In the Australian Capital Territory, New South Wales, the Northern Territory and

Queensland, as with mental impairment, the accused bears the burden of proof in relation to the defence of diminished responsibility. 221 The standard of proof is on the balance of probabilities. 222 There has been concern that this burden of proof is inconsistent with the principle that the prosecution prove its case against the accused beyond reasonable doubt. It has been pointed out that where diminished responsibility and provocation are raised together, the jury may be confused by the distinctions in the burden and standard of proof of the two defences. 223 As discussed in Chapter 4, in relation to the defence of mental impairment, it may be preferable for the evidential burden to be placed on the accused, but have the prosecution bear the burden of disproving the defence beyond reasonable doubt. For further discussion of the burden and standard of proof in criminal trials, see Chapter 2, [2.180].

INFANTICIDE [5.125] The practice of infanticide has had a long and controversial history. In the time of

Plato and Aristotle, the exposure of weak and deformed infants was generally accepted—and occasionally encouraged—and the exposure of healthy infants was not regarded as a serious offence. 224 The general acceptance of infanticide in many different cultures appears to be related to the unavailability or ineffectiveness of contraception and some anthropologists have viewed it as a widely used method of population control. 225 It was not until the 17th century that An Act to Prevent the Destroying and Murthering of Bastard Children 226 was passed in England, making it an offence to conceal the death of an illegitimate child. This was repealed by Lord Ellenborough’s Act 227 when infanticide was put on the same footing as homicide, in that the prosecution had to prove that the child had been born alive and that someone, usually the mother, had killed it. Concealment of birth was subsequently made a separate offence in the 19th century. 228 This paved the way for a more compassionate approach to women who killed their infants. The offence of murder was reduced to manslaughter with the passing of the Infanticide Act 1922 (UK). Section 1(1) of that Act made infanticide a partial defence where a woman caused the death of her “newly born” child, “but at the time of the act or omission she [had] not fully 221 222 223

224

225

226 227 228

Crimes Act 1900 (ACT), s 14(2); Crimes Act 1900 (NSW), s 23A(4); Criminal Code (Qld), s 304A(2); Criminal Code (NT), s 159(4). R v Dunbar [1958] 1 QB 1; R v Ayoub [1984] 2 NSWLR 511. Criminal Law Revision Committee, Offences Against the Person, Report No 14 (1980), para 94; Victoria Law Reform Commissioner, Provocation and Diminished Responsibility as Defences to Murder, Report No 12 (1982), para 2.67. M Tooley, Abortion and Infanticide (Oxford: Clarendon Press, 1983) p 316; L Williamson, “Infanticide: An Anthropological Analysis” in M Kohl (ed), Infanticide and the Value of Life (New York: Prometheus Books, 1978) p 61; M Jackson (ed), Infanticide, Historical Perspectives on Child Murder and Concealment 1550–2000 (Aldershot: Ashgate, 2002). S Scrimshaw, “Infanticide in Human Populations: Societal and Individual Concerns” in G Hausfater and S Hardy (eds), Infanticide: Comparative and Evolutionary Perspectives (New York: Aldue Publishing Co, 1984) p 440. 21 James 1 c 27 (1624). 43 Geo 3 c 58 (1803). Offences Against the Person Act 1828 (UK), s XIV. This was amended by the Offences Against the Person Act 1861 (UK), s 60. [5.125]

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recovered from the effect of giving birth to such child, but by reason thereof the balance of her mind was then disturbed”. The Infanticide Act 1938 (UK) later changed the words “newly born” to “under the age of 12 months” and added the concept of a woman’s balance of mind being disturbed “by reasons of the effect of lactation consequent upon the birth of the child”. The Australian provisions follow this English model quite closely. 229 In New South Wales, Tasmania and Victoria, a woman may be charged with the offence of infanticide. 230 It is only in New South Wales and Victoria that it can be used as a partial defence in the sense that if a woman has been charged with the murder of her child, she may be convicted of the alternative offence of infanticide.

Physical Elements [5.130] Infanticide only applies to mothers who have caused their own infant’s death by an

act or omission. Adoptive mothers, fathers and other carers are excluded. The Model Criminal Code Officers Committee (MCCOC) has pointed out that this discriminates against carers other than natural mothers who kill their children in identical circumstances. 231 Except in Victoria, the victim must also be under the age of 12 months. This particular requirement has been criticised as leading to anomalous results. 232 In Victoria, the birth must have taken place within the two years preceding the death of the infant. 233 At the time of the killing, the accused’s state of mind must also have been disturbed by reason of the effect of childbirth or, in New South Wales, of lactation. In Victoria, the disturbance of mind can arise either because of not having fully recovered from birth or because of a disorder consequent on giving birth. 234 The medicalisation of infanticide has been criticised on the basis that it relies on antiquated medical opinion concerning the effects of lactation and childbirth. This is taken up in the following section.

The effect of childbirth on mental health [5.135] Some women experience some form of mood disorder after childbirth. The “maternal or baby blues” is estimated to affect between 25–85% of women, and gives rise to frequent and prolonged crying episodes which last for one to two days, and which appear within four days following the birth. Postpartum depression affects between 20% of women and symptoms resemble those of clinical depression. 235 It has been suggested that social and psychological causes, rather than biological causes, are the most plausible explanations for these states. 236

229 230 231 232 233 234 235

236

R Langer, ““Mother of Sorrows”: Post-partum mental disorder and the law across five jurisdictions” (2012) 19(3) Psychiatry, Psychology and Law 358. Crimes Act 1900 (NSW), s 22A(1); Criminal Code (Tas), s 165A; Crimes Act 1958 (Vic), s 6(1). Model Criminal Code Officers Committee, Fatal Offences Against the Person, Discussion Paper (1998) p 137. A Bartholomew, Psychiatry, the Criminal Law and Corrections (Bundalong: Wiseman Publications, 1987) pp 150–153. Crimes Act 1958 (Vic), s 6(1). Crimes Act 1958 (Vic), s 6(1). L De Bortoli, J Coles and M Dolan, “Maternal Infanticide in Australia: Mental Disturbance During the Postpartum Period” (2013) 20(2) Psychiatry, Psychology and Law 301. See, further, B McSherry, “The Return of the Raging Hormones Theory: Premenstrual Syndrome, Postpartum Disorders and Criminal Responsibility” (1993) 15 Sydney Law Review 292 at 293ff. M Sandler, Mental Illness in Pregnancy and the Puerperium (Oxford: Oxford University Press, 1978) pp 84–88.

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Postpartum disorders with psychotic features are estimated to occur from one in 500 to one in 1,000 births and are more common in those with a prior history of mood disorders. 237 In the 19th century, postpartum psychoses were thought to be specific entities distinct from other mental illnesses. 238 However, mental health professionals in the 20th century have treated the clinical features and the prognosis of postpartum psychosis no differently from other psychoses. 239 Those suffering from postpartum psychosis could clearly avail themselves of the defence of mental impairment. This is one of the reasons the defence was abolished in Western Australia. 240 There is little evidence to show that any of these postpartum disorders stem primarily from hormonal or chemical imbalances. Most researchers would in fact agree that all three types of postpartum disorders are associated with multiple factors, including psychological variables such as a low motivation for pregnancy and a low level of psychological health, demographic variables such as socio-economic status, stress, and previous psychiatric and genetic predispositions. 241 Kathy Laster has explored the historical development of infanticide and the biological/social assumptions about women who kill their children and its value in light of feminist criminological thinking. 242 It would appear that biological factors cannot be blamed; rather, it is a combination of external and internal factors that may give rise to such conditions. Lorana Bartels refers to three predominant policy responses to infanticide internationally: • safe haven laws, whereby a baby may be left at a hospital or other safe haven; • baby hatches, whereby special receptacles are installed in hospitals where babies may be left; and • anonymous birth; whereby women may give birth in hospital anonymously and then give their babies up for adoption. 243 An unsuccessful attempt to pass Australia’s first safe haven law occurred in South Australia in 2011 with the Children’s Protection (Lawful Surrender of Newborn Child) Amendment Bill (SA). Lorana Bartels points out that little is known about the effectiveness of safe haven and other such laws in relation to lives saved. 244

237 238 239

240 241

242

243 244

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed, TR, Washington DC: APA, 2000) p 422. M Gelder, D Gath, R Mayou and P Cowen, Oxford Textbook of Psychiatry (3rd ed, Oxford: Oxford University Press, 1996) p 396. M Gelder, D Gath, R Mayou and P Cowen, Oxford Textbook of Psychiatry (3rd ed, Oxford: Oxford University Press, 1996) p 396. See also M Bleuler, The Schizophrenic Disorders (New Haven: Yale University Press, 1972). Mr J McGinty, second reading speech, Criminal Law Amendment (Homicide) Bill 2008, Hansard, Legislative Assembly of Western Australia, 19 March 2008, pp 1210–1211. For an overview of research into such variables see NM Fedele, ER Golding, FK Grossman and WS Pollack, “Psychological Issues in Adjustment to First Parenthood” in GY Michaels and WA Goldberg, The Transition to Parenthood (New York: Cambridge University Press, 1988) p 88; A Wilczynski, Child Homicide (London: Greenwich Medical Media, 1997); C Alder and K Polk, Child Victims of Homicide (Cambridge: Cambridge University Press, 2001) Ch 4. “Infanticide and Feminist Criminology: ‘Strong’’ or ‘Weak’’ Women?” (1990) 2(1) Criminology Australia 14, and “Infanticide: A Litmus Test For Feminist Criminological Theory” (1989) 22 Australian and New Zealand Journal of Criminology 151. L Bartels, “Safe Haven Laws, Baby Hatches and Anonymous Hospital Birth: Examining Infant Abandonment, Neonaticide and Infanticide in Australia” (2012) 36(1) Criminal Law Journal 19. L Bartels, “Safe Haven Laws, Baby Hatches and Anonymous Hospital Birth: Examining Infant Abandonment, Neonaticide and Infanticide in Australia” (2012) 36(1) Criminal Law Journal 19. See also L Bartels and P Easteal, “Mothers Who Kill: The Forensic Use and Judicial Reception of Evidence of Postnatal Depression and Other Psychiatric Disorders in Australian Filicide Cases” (2013) 37(2) Melbourne University Law Review 297. [5.135]

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Fault Elements [5.140] The infanticide provisions in New South Wales and Tasmania require the existence of

a “wilful” act or omission. The adjective “wilful” has been interpreted as meaning intentional or reckless. 245 Section 6 of the Crimes Act 1958 (Vic) requires the same fault element for murder; that is, an intention to kill or cause grievous bodily harm, or recklessness as to causing death or grievous bodily harm: see further, Chapter 9.

THE ABOLITION OF PARTIAL DEFENCES [5.145] The partial defences of provocation, diminished responsibility and infanticide all

developed to provide a method of avoiding mandatory capital punishment for murder. They were then retained as a method of avoiding mandatory life imprisonment for murder. Given that there are now flexible sentencing options, is it timely to abolish these defences? There is a strong argument that considerations of loss of self-control or abnormalities of mind can be taken into account at the sentencing stage. Various law reform commissions have recommended the abolition of the three partial defences discussed in this chapter. The following provides a brief overview of the various rationales behind these recommendations.

The Abolition of Provocation [5.150] Because the defence of provocation contains elements of both justification and

excuse, its rationale is often confused. Perhaps because of this conceptual confusion, this defence in particular has attracted a great deal of criticism. The MCCOC in 1998 proposed that the defence of provocation be abolished on the following grounds: 246 • It engenders conceptual difficulties concerning intention. Those who rely on provocation intend to kill. Why does the fact that the accused lost self-control make a difference? • Following on from the first argument, the existence of provocation can be reflected in sentencing. There is no need for a separate defence. • Hot-blooded killers may be just as culpable as other killers. MCCOC has observed: “Why is a husband who kills his wife because he found her committing adultery morally less guilty than a murderer? Why is a conservative Turkish Muslim father partially excused when he stabs his daughter to death because she refuses to stop seeing her boyfriend?” [R v Dincer [1983] VR 460] “Why should a man who kills another man who has made a homosexual advance on him be partially excused?” [Green v The Queen (1997) 191 CLR 334] 247

• Provocation is gender-biased in the sense that “suddenness”, although no longer forming a separate (substantive) rule, may still be taken into account evidentially in assessing whether or not the accused lost self-control. This reflects male rather than female patterns of aggressive behaviour. • The abolition of the doctrine of excessive self-defence in most jurisdictions (see Chapter 6, [6.55]) has weakened the case for retaining a defence of provocation. 245

247

Iannella v French (1968) 119 CLR 84 at 94, 95 per Barwick CJ; Bergin v Brown [1990] VR 888; Gardenal-Williams v The Queen [1989] Tas R 62. Model Criminal Code Officers Committee, Fatal Offences Against the Person, Discussion Paper (1998) pp 87ff. Similarly, in 2001, the New Zealand Law Commission recommended abolishing the defence: Some Criminal Defences with Particular Reference to Battered Defendants, Report 73 (2001). Model Criminal Code Officers Committee, Fatal Offences Against the Person, Discussion Paper (1998) p 89.

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• Provocation is subject to abuse in that it may be difficult to separate those who lose their temper without provocation and those who lose self-control after being provoked. Often the accused’s version of events will be the sole source of evidence of provocation and this criticism is particularly relevant to cases of an alleged homosexual advance being the provocation claimed. • Provocation may be a legal anomaly in that it does not reduce attempted murder to attempted manslaughter in some jurisdictions. From time to time, there have been calls for abolition of the defence from the Bench. In R v Kumar, O’Bryan AJA stated that provocation was “anachronistic in the law of murder since the abolition of capital punishment and [I] would support its abolition as a so-called defence by parliament”. 248 On the other hand, as Andrew Ashworth and Jeremy Horder have observed, whether provocation should exist as a defence is closely related to issues of fair labelling, on the purported ground that most people believe provoked killings are less heinous. 249 The rationale for the defence lies in the recognition that there is a difference between intentional killings that are committed in “cold blood”, and those that occur in an extreme emotional state and which are unpremeditated. 250 The Law Commission for England and Wales was persuaded that the defence of provocation be retained, albeit in a revised form, because “the moral blameworthiness of homicide may be significantly lessened where the [accused] acts in response to gross provocation”. 251 Similarly, the Law Reform Commission for Ireland recommended that provocation remain, albeit in a revised form. 252 Yet this argument in favour of retaining the defence has not convinced other academics. For example, Luke Neal and Mirko Bagaric point out that “[a]nger does not reflexively lead to a desire to kill. There is always a meaningful element of choice involved”. 253 Another argument for retaining provocation is that, if it is abolished, judges would still have to ascertain the basis for the killing at the sentencing stage. This is examined further in “Procedural perspectives: Provocation at the sentencing stage” at [5.160]. There is now a wealth of academic literature supporting the abolition of the defence of provocation. 254 Many of the calls for abolition rest on critiques of the ordinary person standard and concerns that the defence embeds objectionable gendered and cultural 248 249 250 251

252 253 254

R v Kumar [2002] 5 VR 193 at 231. A Ashworth and J Horder, Principles of Criminal Law (7th ed, Oxford: Oxford University Press, 2013) p 251. See A Reilly, “Loss of Self-Control in Provocation” (1997) 21 Criminal Law Journal 320 at 320. Law Commission for England and Wales, Partial Defences to Murder, Final Report, Law Com No 290 (2004), p 45. See also O Quick and C Wells, “Partial Reform of Partial Defences: Developments in England and Wales” (2012) 45(3) Australian and New Zealand Journal of Criminology 337. Law Reform Commission for Ireland. Homicide: The Plea of Provocation, Consultation Paper (October 2003), p 129. L Neal and M Bagaric, “Provocation: The Ongoing Subservience of Principle to Tradition” (2003) 67 Journal of Criminal Law 237 at 256. J Horder, Provocation and Responsibility (Oxford: Clarendon Press, 1992); G Coss, “Lethal Violence by Men” (1996) 20 Criminal Law Journal 305; G Coss, “Revisiting Lethal Violence by Men” (1998) 22 Criminal Law Journal 5; G Coss, “A Reply to Tom Molomby” (1998) 22 Criminal Law Journal 119; A Howe, “The Provocation Defence: Finally Provoking its Own Demise?” (1998) 22 Melbourne University Law Review 466; A Howe, “Reforming Provocation (More or Less)” (1999) 12 Australian Feminist Law Journal 127; C Wells, “Provocation: The Case for Abolition” in A Ashworth and B Mitchell (eds) Rethinking English Homicide Law (Oxford: Oxford University Press, 2000); L Neal and M Bagaric, “Provocation: The Ongoing Subservience of Principle to Tradition” (2003) 67 The Journal of Criminal Law 237; C Ramsey, “Provoking Change: Comparative Insights on Feminist Homicide Law Reform” (2010) 100(1) Journal of Criminal Law and Criminology 33; A Hemming, “Provocation: A Totally Flawed Defence That Has No Place in Australian Criminal Law Irrespective of Sentencing Regime” (2010) 14(1) University of Western Sydney Law Review 1; G Kim, “Repeal of Provocation: Further Reform?” (2012) Aug New Zealand Law Journal 227; K Fitz-Gibbon, [5.150]

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stereotypes into the law to excuse gendered and racial violence. A less extreme alternative is to develop, in statutory form, a more enlightened ordinary person standard that invites the jury to consider whether the emotional state of the accused was warranted, “thereby excluding from the partial defence those such as the racist, the paedophile, and the male who expects female servility”. 255 The first Australian parliament to have abolished provocation was that of Tasmania. Interestingly, the then Tasmanian Attorney-General, Judith Jackson, did not seek advice as to whether or not the defence should be abolished. 256 Rather, the government echoed the arguments set out above by the MCCOC in support of its abolition. In her second reading speech, the Attorney-General outlined four reasons for abolishing the defence: (1) the existence of an intention to kill; (2) evidence of provocation can be considered in sentencing; (3) it is gender-biased; and (4) it can be subject to abuse. 257 The defence has since also been abolished in Victoria and Western Australia, following recommendations by the Victorian Law Reform Commission and the Law Reform Commission of Western Australia. 258

The Impetus for the Abolition of Provocation in Victoria [5.155] The case that seemed to galvanise popular reaction to the defence of provocation in

Victoria was that of the killing of Julie Ramage. 259 In May 2003, Julie Ramage and her daughter moved out of the family home in Melbourne’s middle-class suburb of Balwyn while her husband, James Ramage, was overseas. Julie and James Ramage had been married for almost 23 years and had two children together. There had been a separation of some months early in the marriage and some evidence of violence by James toward Julie (smashing glasses to intimidate her and pushing her off the bed) 18 months prior to the killing. (Other evidence relating to James “head butting Julie” in the early years of their marriage was excluded because of its prejudicial nature). 260 Since 2001, Julie had become increasingly unhappy in the marriage, complaining to her family that James’ behaviour was controlling and oppressive. For James, Julie’s moving out of the family home was totally unexpected and he tried desperately to re-establish their relationship, attending counselling sessions with Julie and meeting with her each week for meals. In the meantime, Julie met another man with whom she formed a relationship. She told James about this relationship in mid-June 2003. On 21 July 2003, around midday, Julie went to visit James at the family home. That morning, she had told her workmates how happy she was in the new relationship and that she wanted to bring things out into the open.

255

256 257 258 259 260

“Provocation in New South Wales: The need for abolition” (2012) 45(2) Australian and New Zealand Journal of Criminology 194; A Schloenhardt and EE Gluer, “Provocation and Assault: Retain, Reform, or Repeal ss 268 and 269 of Queensland’s Criminal Code?” (2013) 33(4) Queensland Lawyer 251. See A Ashworth, Principles of Criminal Law (6th ed, Oxford: Oxford University Press, 2009) p 262, discussing the influential work of US scholar, Victoria Nouse, “Passion’s Progress: Modern Law Reform and the Provocation Defense” (1997) 106 Yale Law Journal 1331. R Bradfield, “The Demise of Provocation in Tasmania” (2003) 27 Criminal Law Journal 322 at 323. Hansard, Tasmanian House of Assembly, 20 March 2003, pt 2, p 60. Victorian Law Reform Commission, Defences to Homicide, Final Report (2004); Law Reform Commission of Western Australia, Review of the Law of Homicide, Final Report (2007). R v Ramage [2004] VSC 508. R v Ramage [2004] VSC 391.

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James’ evidence was that, during this meeting, Julie told him “I’m over you. I should have left you 10 years ago” and that her new friend cared for her. She then allegedly said that sex with James repulsed her and implied how much better her new friend was. James said that he lost control and attacked Julie. He hit her at least twice in the face, knocking her to the ground where she struck her head severely. James then strangled her with his bare hands until she died. James cleaned the scene with detergent, and then drove Julie’s body to a remote area in the country where he buried it and concealed it with bush litter. He returned to Melbourne, washing his car on the way, and went to premises to order granite tops for kitchen benches. He then washed his clothes at home, told his daughter he didn’t know where Julie was, visited a lawyer friend, and finally handed himself in to the police. At James Ramage’s trial for murder, the main defence raised was that of provocation. A number of witnesses testified that James had been “extremely anxious, obsessed and emotionally fraught” at the disintegration of his marriage. 261 The jury found James Ramage guilty of manslaughter, presumably on the basis that the prosecution had failed to disprove the evidence of provocation beyond reasonable doubt. The trial judge sentenced him to 11 years imprisonment with a non-parole period of eight years. 262 The case was widely discussed in the Victorian media and there were calls for the defence of provocation to be abolished. 263 The Victorian Law Reform Commission had decided on its recommendation to abolish the defence of provocation prior to the verdict in Ramage’s case, but as the report did not come out until some weeks afterwards, the recommendation was often linked with this trial. 264 The Ramage case certainly raised issues about words alone being enough to amount to provocation, the role of the ordinary person test, and the inadmissibility of certain evidence relating to prior violence in the marriage. It set the scene for the Victorian Government’s announcement that the defence would be abolished. 265 The defence was subsequently abolished by the Crimes (Homicide) Act 2005 (Vic). An alternative approach to abolition that may take into account some of the criticisms set out by the MCCOC is to delineate the circumstances in which provocation may be raised. Helen Brown has proposed that the defence should not be available where an accused alleges provocation: • where the victim has left, attempted to leave or threatened to leave an intimate relationship; • because of suspected, discovered or confessed infidelity; or • due to a non-violent sexual advance. 266 The latter part of this suggestion has been adopted in the Australian Capital Territory and the Northern Territory, both of which exclude non-violent sexual advances as a basis for the

261 262 263 264 265 266

R v Ramage [2004] VSC 508 at [29]. The maximum penalty for manslaughter is 20 years imprisonment in Victoria: Crimes Act 1958 (Vic), s 5. See, for example, K Kissane, “Honour Killing in the Suburbs”, The Age, 6 November 2004, “Insight” section, pp 4–5. Victorian Law Reform Commission, Defences to Homicide, Final Report (2004). F Tomazin, “Provocation Defence to be Removed”, The Age, 21 January 2005, p 5. H Brown, “Provocation as a Defence to Murder: To Abolish or to Reform?” (1999) 12 Australian Feminist Law Journal 137 at 140. [5.155]

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provocation defence. 267 However, limiting the defence in such a way brings with it some definitional uncertainties, such as what is meant by an “intimate relationship” or a “non-violent” sexual advance. 268 Jenny Morgan has pointed out that the abolition of provocation is not “the end of the difficulties in this area”. 269 The main problem with the abolition of provocation is that it moves the consideration of explanations for violent conduct to the sentencing stage. The difficulties associated with this are discussed in the following “Procedural perspectives”. Overall, it may be more realistic to work towards circumscribing the scope of the defence and providing a workable objective component than to abandon it entirely.

Procedural perspectives Provocation at the Sentencing Stage [5.160] Abolishing provocation as a defence does not necessarily mean eliminating it

completely—rather, it means shifting any evidence of provocation to the sentencing stage. From a procedural perspective, this involves a reallocation of the burden of proof. In the context of a murder trial, the prosecutor bears the burden of showing that the accused was not provoked, whereas in the sentencing phase, the accused must show that he or she was provoked. 270 Shifting consideration of the issue of provocation from the trial stage to that of sentencing raises the possibility of offenders still receiving leniency, but at a different stage. Carolyn Ramsey points out that this occurred in Texas, which abolished voluntary manslaughter as a separate offence in 1993 and deferred consideration of “passion claims” until sentencing. 271 Leaving it to judges to ascertain the basis for the killing also raises the potential for inconsistent dealings with those who kill after losing self-control. In order to address this concern, in Victoria, the Sentencing Advisory Council has proposed standards for limiting provocation at the sentencing stage. 272 According to the Sentencing Advisory Council, provocation should be seen as a justifying doctrine, not as an excuse for loss of self-control, even at sentencing: “[T]he crucial question is whether the provocation gave the offender a justifiable sense of being wronged”. 273 Thus, as with the Law Commission for England and Wales’ suggestion (mentioned at [5.150]), a provocation claim at sentencing should only mitigate punishment if the offender had a justifiable moral basis for feeling outraged. According to the Sentencing Advisory Committee, any conduct on the victim’s part that demonstrated “personal autonomy”, such as the right to leave a relationship 267 268 269 270 271 272 273

See Crimes Act 1900 (ACT), s 13(3); Criminal Code (NT), s 158(5). Victorian Law Reform Commission, Defences to Homicide, Options Paper (September 2003) p 91. J Morgan, “Homicide Law Reform and Gender: Configuring Violence” (2012) 45(3) Australian and New Zealand Journal of Criminology 351 at 363. F Stewart and A Freiberg, Provocation in Sentencing, Research Paper (Melbourne: Sentencing Advisory Council, 2008) pp 25–26. C Ramsey, “Provoking Change: Comparative Insights on Feminist Homicide Law Reform” (2010) 100(1) Journal of Criminal Law and Criminology 33 at 73. F Stewart and A Freiberg, Provocation in Sentencing, Research Paper (Melbourne: Sentencing Advisory Council, 2008). F Stewart and A Freiberg, Provocation in Sentencing, Research Paper (Melbourne: Sentencing Advisory Council, 2008) p 94.

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or form a new one, “should not provide justification for an offender’s aggrievement”. 274 As few such cases have come before sentencing judges in Victoria, the impact of these recommendations is yet to be measured.

The Abolition of Diminished Responsibility [5.165] In New South Wales, the Law Reform Commission considered some of the criticisms

of the defence of diminished responsibility, but recommended its retention and set out recommended amendments. 275 These were largely echoed in the Crimes Amendment (Diminished Responsibility) Act 1997 (NSW). The Law Commission for England and Wales also recommended retaining the defence, but this must be seen in the context of a mandatory life sentence for murder in those jurisdictions. 276 In comparison, the former Law Reform Commission of Victoria considered and rejected the possibility of enacting the defence in Victoria in 1991, and the re-established Victorian Law Reform Commission rejected it again in 2004. 277 Similarly, the Law Reform Commission of Western Australia considered and rejected a proposal to introduce a defence of diminished responsibility in that state. 278 In 1998, the MCCOC also recommended its abolition. 279 The MCCOC considered a number of reasons as to why the defence should be abolished. First, because of the vagueness of the concept of “abnormality of mind” there is a difficulty in clearly defining the scope and operation of diminished responsibility. This has led to “a dichotomy of approaches” in attempting to distinguish this defence from that of the defence of mental impairment. 280 Secondly, there are practical problems associated with expert testimony relating to diminished responsibility. These include the problems with conflicting evidence and the possibility of “experts for hire”, as well as the tendency of experts to answer the ultimate issue as to the effect of the abnormality of mind—this is really a matter for the jury to decide. It should be noted, however, that s 80 of the Evidence Act 1995 (Cth and NSW) abolished the common law rule preventing the admissibility of expert opinion evidence on the ultimate issue. A further point, not mentioned by the MCCOC, is that psychiatrists and psychologists must of necessity rely on what the accused says. If the term “abnormality of mind” is given a broad definition as has occurred in the past, there is a danger that conditions may be fabricated, much more so than in the case of the defence of mental impairment. Thirdly, there is a difficulty in directing juries as concerns an accused having to prove that he or she is not fully sane and yet not mentally impaired for the purpose of the defence of mental impairment.

274 275 276 277 278 279 280

F Stewart and A Freiberg, Provocation in Sentencing, Research Paper (Melbourne: Sentencing Advisory Council, 2008) p 94. New South Wales Law Reform Commission, Partial Defences to Murder: Diminished Responsibility, Report No 82 (1997). Law Commission for England and Wales, Partial Defences to Murder, Final Report, Law Com No 290, (2004) p 83. Law Reform Commission of Victoria, Homicide, Report No 40 (1991); Victorian Law Reform Commission, Defences to Homicide, Final Report (2004). Law Reform Commission of Western Australia, Review of the Law of Homicide, Final Report (2007). Model Criminal Code Officers Committee, Fatal Offences Against the Person, Discussion Paper (1998) p 131. Model Criminal Code Officers Committee, Fatal Offences Against the Person, Discussion Paper (1998) p 123. [5.165]

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Fourthly, the need for the defence is questionable where there is flexibility in sentencing options. Susanne Dell explains that if “judges had discretion in sentencing murderers, the issue of diminished responsibility could be taken into account, as it is in all other cases, as a mitigating factor in sentencing”. 281 Finally, there may be difficulties in sentencing on the basis of manslaughter due to a successful defence of diminished responsibility where the accused presents a risk to the public. The MCCOC referred to the case of Veen v The Queen (No 1), 282 in which the accused had successfully raised diminished responsibility based on the effects of alcohol combined with high stress levels. The High Court rejected the prosecution argument that evidence that the accused was likely to kill again if exposed to the same conditions should offset any reduction in sentencing because of diminished responsibility. Subsequently, the accused did kill again on his release from prison. Diminished responsibility only has logical value if it serves to mitigate the severity of punishment otherwise thought appropriate. However, if those with antisocial personality disorders are considered to be suffering from an abnormality of mind, as has occurred in the past, 283 it suggests that the more “dangerous” the offender, the shorter the sentence has to be. If the MCCOC’s recommendation that provocation be abolished is followed, then more weight would be put on the defence of diminished responsibility, leading to its potential abuse. There are also conceptual difficulties with this defence. Diminished responsibility is, in essence, an artificial concept aimed at lessening the severity of punishment, without going so far as to completely acquit an accused. There are profound difficulties with the concept of being partially but not wholly criminally responsible, but apart from that, when the concept is explored more fully, it appears that the defence is not about responsibility at all. In fact, the primary emphasis seems to be on the question of sentencing or disposition, rather than on a finding of responsibility. In reality, the defence exists only where the essential elements of murder are present. In truth, it is the sentence that is being diminished, rather than the accused’s responsibility. That said, as with provocation, the defence also serves to differentiate between types of homicides (applying the principle of fair labelling). Because the defence is primarily concerned with issues of mitigating punishment and fair labelling rather than responsibility, the courts have interpreted “abnormality of mind” so broadly that a wide variety of extenuating circumstances have been taken into account. The better approach may be to concentrate on reformulating the defence of mental impairment and enacting more flexible dispositional options, rather than continuing with such a flawed defence: see Chapter 4, [4.105].

The Abolition of Infanticide [5.170] The infanticide provisions have been widely criticised. The Butler Committee in

England, the Law Reform Commission of Canada, the New South Wales Law Reform

281 282 283

S Dell, “Diminished Responsibility Reconsidered” (1982) Criminal Law Review 809 at 814. (1979) 143 CLR 458. Matheson (1958) 42 Cr App R 145; R v Byrne [1960] 2 QB 396; R v Clarke and King [1962] Crim LR 836; R v Harvey and Ryan [1971] Crim LR 664; Fenton (1975) 61 Cr App R 261; Turnbull (1977) 65 Cr App R 242.

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Commission and the MCCOC have all recommended its abolition. 284 The MCCOC pointed out that infanticide is ambiguous in terms of the fault element required. It also has an uncertain medical foundation, it is discriminatory in that it erroneously links women’s biology to criminal responsibility, and it is unnecessary in jurisdictions with a discretionary sentence for murder. On the other hand, the Criminal Law Revision Committee in England, for example, recommended that the link between lactation and mental imbalance be removed, but that the medical model remain, despite its inadequacies, in order to take into account the socioeconomic factors involved in child killing. 285 The Victorian Law Reform Commission has also recommended the retention of the defence, albeit in a revised form. 286 It has recommended that the defence apply to women who, at the time of killing their child or children, were suffering from “a disturbance of mind as the result of either not having recovered from the effect of giving birth or any disorder consequent on childbirth”. 287 It has been argued that, despite its conceptual flaws, having a gender-specific offence of infanticide enables special and sympathetic treatment for women unable to cope with the “onerous and unalleviated nature” of the responsibility of caring for infants. 288 There is no doubt that infanticide—like diminished responsibility—is conceptually flawed. The MCCOC points out that the “justification for infanticide lies in policy [and consequently], the defence is contrary to fundamental criminal law principles”. 289 However, having infanticide as an offence enables certain procedural advantages. It can operate to allow the accused to avoid a murder charge and the pressures associated with a trial for murder. In practice, it may also encourage the accused to plead guilty to the charge of infanticide rather than have to face the stigma and trauma of a trial for murder. Providing infanticide, like manslaughter, exists as an alternative verdict to murder, there is no reason why it is necessary for it to exist as a partial defence.

CONCLUSION [5.175] The partial defences of provocation, diminished responsibility and infanticide

currently exist in certain jurisdictions in order to recognise and provide a concession to “human frailty”. We have outlined how diminished responsibility and infanticide can be seen as conceptually flawed. The existence of an adequate defence of mental impairment and a wider range of dispositional options on a finding of not guilty on the basis of mental impairment would render diminished responsibility unnecessary. It would, therefore, seem more logical to concentrate on reformulating the defence of mental impairment than on reformulating that of diminished responsibility. There may, however, be good policy reasons 284

285

286 287 288 289

Committee on Mentally Abnormal Offenders (The Butler Committee), Report of the Committee on Mentally Abnormal Offenders (London: HMSO Cmnd 6244, 1975) p 245; Law Reform Commission of Canada, Homicide, Working Paper 33 (Ottawa: Supply and Services Canada, 1984) pp 75–77; New South Wales Law Reform Commission, Partial Defences to Murder: Provocation and Infanticide, Report 83 (1998) pp 107–113; Model Criminal Code Officers Committee, Fatal Offences Against the Person, Discussion Paper (1998) pp 135–139. Criminal Law Revision Committee, Offences Against the Person, 14th Report (London: HMSO Cmnd 7844, 1980) para 103. See also Law Reform Commission of Victoria, Mental Malfunction and Criminal Responsibility, 14th Report (1990) pp 54–62. Victorian Law Reform Commission, Defences to Homicide, Final Report (2004) p xli. Victorian Law Reform Commission, Defences to Homicide, Final Report (2004) pp 265–266. R Lansdowne, “Infanticide: Psychiatrists in the Plea Bargaining Process” (1990) 16(1) Monash University Law Review 41 at 61. Model Criminal Code Officers Committee, Fatal Offences Against the Person, Discussion Paper (1998) p 139. [5.175]

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for retaining infanticide as an offence but abolishing it as a partial defence. The circumstances surrounding women who kill their children are very different to men who do so. 290 The MCCOC’s bold call for the abolition of the defence of provocation appears to be gaining ground in Australia, with its subsequent abolition in Tasmania, Victoria and Western Australia. We have outlined the difficulties associated with formulating an objective test for provocation and the “intractable debate” concerning what characteristics the hypothetical “ordinary” person should have. Some would argue that it may be better to concentrate on developing a workable test that has a sharper normative focus for delineating between different forms of homicide rather than simply abolishing the defence entirely. This is because of the notion that the label of “murder” should only attach to the most serious forms of homicide and because of the danger that inconsistencies may result if excuses for killing can only be raised at the charging or sentencing stages. The alternate view is that a modern, consistent and principled approach towards homicide demands the abolition of all partial defences now that mandatory life imprisonment has been replaced with more flexible sentencing options in Australia.

290

C Alder and K Polk, Child Victims of Homicide (Cambridge: Cambridge University Press, 2001).

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Chapter 6

Self-Help Defences We hold these truths to be sacred and undeniable; That all men are created equal and independent, That from that equal creation they derive Rights inherent and inalienable, among which are The preservation of life. 1 [6.05]

INTRODUCTION ........................................................................................................................ 348

[6.10] [6.20] [6.25] [6.30] [6.45] [6.50] [6.55] [6.60] [6.65]

SELF-DEFENCE ........................................................................................................................... 349 Self-Defence and the Defence of Others ..................................................................................... 352 Self-Defence and the Protection of Property ............................................................................... 353 Nature of the Attack ................................................................................................................... 353 The Accused’s Belief ................................................................................................................... 356 Necessary Force ......................................................................................................................... 357 Excessive Self-Defence ................................................................................................................ 359 Burden of Proof .......................................................................................................................... 361 Intimate Partner Violence and Self-Defence ................................................................................ 361

[6.70] [6.75] [6.100] [6.105] [6.110] [6.115]

DURESS ..................................................................................................................................... 364 Elements of Duress ..................................................................................................................... 367 The Nexus Between the Threat and the Commission of the Crime ............................................. 372 Prior Fault and Duress ................................................................................................................ 372 Prevention of the Execution of the Threat .................................................................................. 372 Burden of Proof .......................................................................................................................... 373

[6.120] [6.125] [6.130] [6.135]

MARITAL COERCION .................................................................................................................. 374 Scope of the Defence ................................................................................................................. 375 Meaning of “Coercion” .............................................................................................................. 376 Burden of Proof .......................................................................................................................... 377

[6.140] [6.145] [6.160] [6.190]

NECESSITY ................................................................................................................................. 377 Scope of the Defence ................................................................................................................. 379 Elements of the Defence ............................................................................................................ 383 Burden of Proof .......................................................................................................................... 391

[6.195]

CONCLUSION ........................................................................................................................... 391

1

Thomas Jefferson, “Declaration of Independence” (original draft) in J Daintith (ed), Bloomsbury’s Thematic Dictionary of Quotations (London: Bloomsbury Publishing, 1991) p 198.

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INTRODUCTION [6.05] In the common law, there was a traditional distinction between killings that were

justified and those that were excused. A plea of justification was said to focus on the circumstances surrounding the act itself and, if accepted, led to a total acquittal, entailing no forfeiture of goods and requiring no pardon. Excuses, on the other hand, were said to focus on the actor’s state of mind and, if successful, involved a pardon and the forfeiture of goods. In 1828, forfeiture was abolished and therefore the division between justifiable and excusable homicide became obsolete. Nevertheless, academic writers have been drawn to a philosophical exploration of the distinction between justification and excuse. 2 Robert Schopp views the defences of self-defence, duress and necessity as falling within the category of “justification” defences. 3 This categorisation, however, has been questioned. For example, in Zecevic v DPP (Vic), Wilson, Dawson and Toohey JJ stated about self-defence: “[I]n scope and in practice nowadays the plea has a greater connection with excusable homicide being in most cases related to the preservation of life and limb rather than the execution of justice.” 4

The emphasis on what the accused believed in relation to self-defence may indeed place it in the category of an excuse. Similarly, the concepts of justification and excuse have both been used as rationales for the defence of necessity. However they are categorised, defences such as self-defence, duress, marital coercion and necessity all have in common the notion that the accused committed a crime in order to “help” himself or herself or another avoid serious harm. Christopher Clarkson has pointed out that the demarcation between these defences is not always clear and has argued that it is possible to collapse the distinctions between them into a single defence of necessary action. 5 This suggestion will be explored at the end of this chapter. The four defences of self-defence, duress, marital coercion and necessity that will be outlined in this chapter go beyond the realms of defences to unlawful killing. Self-defence, where successful, leads to acquittals on a range of charges from assault to murder. The other three defences are also available for a range of crimes including manslaughter, but controversy remains as to whether they should be available in relation to murder. In practice, these three defences are rarely raised. All Australian jurisdictions allow for the use of force in self-defence, defence of another or defence of property. The definition of self-defence differs between jurisdictions, but some common themes have emerged. In general, the use of force in defence of property is much more limited than in relation to the defence of persons, with clear limitations on using force involving the intentional infliction of death or really serious injury to protect property, to prevent criminal trespass, and to remove a person who is committing a criminal trespass. 6 There have also been legislative developments clarifying this defence in the Northern Territory, South Australia and Western Australia in relation to “home invasions”. 7 Defences such as duress, marital coercion and necessity are relevant where an accused admits that the criminal act was willed and intended, but claims that it was only performed because he or she was compelled by threats or by “natural exigencies” (situations of emergency) to do so. We will outline how these three defences have been limited in their scope 2 3 4 5 6 7

For example, GP Fletcher, Rethinking Criminal Law (Boston: Little, Brown and Co, 1978) pp 759ff. R Schopp, Justification Defenses and Just Convictions (Cambridge: Cambridge University Press, 1998). Zecevic v DPP (Vic) (1987) 162 CLR 645 at 658. C Clarkson, “Necessary Action: A New Defence” [2004] Criminal Law Review 81. Criminal Code (Cth), s 10.4(3)(a) – (c). Criminal Code (NT), ss 226A and 226B; Criminal Law Consolidation Act 1935 (SA), s 15C; Criminal Code (WA), s 244.

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because of public policy concerns that allowing acquittals will cause an increase in the use of “innocent” agents to commit crimes or will devalue the underlying principles of the criminal law, such as the sanctity of human life.

SELF-DEFENCE [6.10] The defence of self-defence is available for crimes involving the use of, or threat of,

force to the person, such as murder and assault, and, if successful, it results in a complete acquittal. The definition of self-defence varies across the Australian jurisdictions. In general, the accused may raise evidence that he or she committed the crime as a result of a personal attack upon himself or herself or another. It may also be raised in relation to the protection of personal property, although this is more restricted. The use of force in self-defence is closely allied to the right to use force in order to prevent the commission of a crime, to execute a lawful arrest and to escape false imprisonment. The defence of self-defence arose out of the regulation of duels and other forms of combat. It developed in the context of fights between two men, the traditional scenario being a bar room brawl or a one-off duel. 8 This scenario has made it difficult for some women to use the defence where they have killed a partner after experiencing years of abuse in the relationship. This point is taken up later in [6.65] “Intimate partner violence and self-defence”. The defensive use of force against personal attack has been accepted as an expression of personal autonomy. In Palmer v The Queen, the Privy Council stated: “It is both good law and good sense that a man [or woman] who is attacked may defend himself [or herself]. It is both good law and good sense that he [or she] may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances.” 9

Self-defence is open-ended in its formulation in the sense that there are not many substantive rules limiting its scope and it is very much a matter of fact for the jury to decide. 10

A Simplified Test for Self-Defence: Zecevic v DPP (Vic) [6.15] The leading case on self-defence at common law is that of Zecevic v DPP (Vic). 11 In

that case, the accused killed his neighbour after an argument about the latter leaving security gates open and parking his car outside the garage provided. The accused argued that he believed the victim had a knife and that he might have a shotgun in his car. The accused ran into his unit after the initial altercation, fetched his gun and went outside again where he shot the neighbour. At the accused’s trial for murder, the judge withdrew the issue of self-defence from the jury and the accused was convicted. On appeal to the High Court, all seven judges allowed the appeal and ordered a retrial. Wilson, Dawson and Toohey JJ set out the requirements for the defence as follows: “The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he [or she] did. If he [or she] had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the 8 9 10 11

I Leader-Elliott, “Battered But Not Beaten: Women Who Kill in Self-Defence” (1993) 15 Sydney Law Review 403 at 405. Palmer v The Queen [1971] AC 814 at 831. DPP Reference (No 1 of 1991) (1992) 60 A Crim R 43 at 46. (1987) 162 CLR 645. [6.15]

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matter, then he [or she] is entitled to an acquittal. Stated in this form, the question is one of general application and is not limited to cases of homicide”. 12

This statement was expressly approved by Mason CJ 13 and Brennan J 14 with the dissenting judges seemingly not objecting to it. 15 The decision in Zecevic greatly simplified the test for self-defence. Previously, in Viro v The Queen, Mason J had developed a six-stage test that the majority judges (including Mason CJ) found in Zecevic to be unworkable in practice. 16 The present test is an amalgamation of subjective and objective elements. It is not wholly subjective because the accused’s belief must be tested by reference to reasonable grounds. There is, however, no requirement that the accused’s belief be tested against that of the ordinary person; the question is what the accused might reasonably have believed in all the circumstances. There are no longer any separate requirements: • that the accused’s response be proportionate to the attack; or • that the victim’s attack be unlawful; or • that the accused retreat as far as possible before using force. 17 It is sufficient that the accused believed on reasonable grounds that it was necessary to do what he or she did. The statutory provisions (see Table 1) use slightly different wording to the Zecevic test, but the majority contain both requirements of necessity and reasonableness. The Criminal Code (Cth) contains a “simplified” test which also contains these two requirements. Section 10.4(2) of the Criminal Code (Cth) states: A person carries out conduct in self-defence if and only if he or she believes the conduct is necessary: • to defend himself or herself or another person; or • to prevent or terminate the unlawful imprisonment of himself or herself or another person; or • to protect property from unlawful appropriation, destruction, damage or interference; or • to prevent criminal trespass to any land or premises; or • to remove from any land or premises a person who is committing criminal trespass; and the conduct is a reasonable response in the circumstances as he or she perceives them.

This simplified version of the test of self-defence has been mirrored in the legislative provisions of the Australian Capital Territory, Northern Territory and New South Wales. Table 1 summarises the current tests of self-defence. As noted at [6.05], the defence does not apply, under s 10.4(3), where the person uses force that involves the intentional infliction of death or really serious injury: (a) to protect property; or (b) to prevent criminal trespass; or

12 13 14 15 16 17

Zecevic v DPP (Vic) (1987) 162 CLR 645. Zecevic v DPP (Vic) (1987) 162 CLR 645 at 654. Zecevic v DPP (Vic) (1987) 162 CLR 645 at 666. Zecevic v DPP (Vic) (1987) 162 CLR 645 per Deane J at 681, Gaudron J at 685. Viro v The Queen (1978) 141 CLR 88 at 146–147. Zecevic v DPP (Vic) (1987) 162 CLR 645 at 663–664.

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(c) to remove a person who is committing criminal trespass. 18

Table 1 Elements of self-defence Jurisdiction Cth

Section

Necessity requirement

Reasonableness requirement

Criminal Code, s 10.4

belief that conduct was necessary

ACT

Criminal Code, s 42

belief that conduct was necessary

NSW

Crimes Act 1900, s 418

belief that conduct was necessary

NT

Criminal Code, s 43BD (Sch 1 and declared offences); s 29 (all other offences) Criminal Code, s 271

belief that conduct was necessary

conduct is a reasonable response in the circumstances as the accused perceives them conduct is a reasonable response in the circumstances as the accused perceives them conduct is a reasonable response in the circumstances as the accused perceives them conduct is a reasonable response in the circumstances as the accused (“reasonably” for s 29) perceives them

Qld

SA Tas

lawful use of force that is reasonably necessary to make effectual defence

Criminal Law Consolidation belief that force was necessary and reasonable Act 1935, s 15(1) for self-defence Criminal Code, s 46 –

Vic

Crimes Act 1958, s 322K

belief that conduct was necessary

WA

Criminal Code, s 248

belief that harmful act was necessary

accused must believe, on reasonable grounds, that he or she cannot otherwise preserve the person defended from death or grievous bodily harm conduct was reasonably proportionate to the threat that the accused genuinely believed to exist force is justified where it is reasonable to use in the circumstances as the person believes them to be conduct is a reasonable response in the circumstances as the person perceives them belief is based on reasonable grounds and the person’s harmful act is a reasonable response in the circumstances as the person believes them to be

The Queensland Criminal Code contains the core element of “reasonable necessity” with additional rules that limit the use of permissible force. The Code distinguishes between self-defence as it relates to provoked and unprovoked attacks. In relation to an unprovoked attack, s 271(1) states: [I]t is lawful for [the accused] to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.

Here, the test is objective in determining whether or not the force used by the accused was reasonably necessary. In addition, the use of lethal force may be used in certain prescribed circumstances such as where the attack is of such a nature as to cause reasonable apprehension of death or grievous bodily harm: Criminal Code (Qld), s 271(2). As a defence to homicide, the jury must consider first whether the accused apprehended death or grievous bodily harm and, secondly, whether the apprehension was a reasonable one. The components of self-defence will be explored in more detail after its use in relation to the defence of others and the defence of property is outlined.

18

See further, S Odgers, Principles of Federal Criminal Law (3rd ed, Sydney: Thomson Reuters, 2015) pp 17–31. [6.15]

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Self-Defence and the Defence of Others [6.20] The actual term “self-defence” appears to imply that this defence can only be raised

when the accused himself or herself is under attack. This is not the case. Force may be used to defend other persons from harm. At common law, the traditional view has been that force may only be used in defence of another who falls within the relationships of “master and servant”, child and parent, and wife and husband. There are some indications, however, that these restrictions may be loosened. In R v Duffy the accused went to the defence of her sister. The Court stated: “It is established that [self-defence] is not restricted to the person attacked. It has been said to extend to ‘the principal civil and natural relations’. Hale’s Pleas of the Crown, Vol 1, p 484, gives as instances master and servant, parent and child and husband and wife who, if they even kill an assailant in the necessary defence of each other, are excused, the act of the relative assisting being considered the same as the act of the party himself [or herself]. But no reported case goes outside the relations indicated.” 19

In Duffy, the English Court of Criminal Appeal quashed the accused’s conviction on the basis that it should have been left for the jury to decide whether the accused had intervened with the sole object of restoring the peace by rescuing the person being attacked. The Court (at 67) side-stepped the “technical limitations of self-defence” by stating that “there is a general liberty even as between strangers to prevent a felony”. 20 Thus, in R v Williams (Gladstone), 21 self-defence was available where the accused intervened in defence of a youth who was being assaulted. The accused was unaware that the assault was part of an alleged arrest for stealing by a private citizen. It was pointed out in Duffy that there are limits placed on intervening to defend another: “That is not to say of course, that a newcomer may lawfully join in a fight just for the sake of fighting. Such conduct is wholly different in law from that of a person who in circumstances of necessity intervenes with the sole object of restoring the peace by rescuing a person being attacked.” 22

Where the attack is directed at another person, the accused may defend that person in the same way as he or she would defend himself or herself. 23 Apart from the law of self-defence, a person may intervene on another’s behalf to prevent a breach of the peace. 24 These powers are further explored in Chapter 13, [13.65]–[13.70]. In Queensland, there is a separate provision that allows the use of force to defend another where it would be lawful for that other person to use the same degree of force in self-defence. 25 This provision also allows the use of force to protect another who is a victim of an unprovoked assault, because the Code provides that it is lawful for such a person to use force in self-defence. 26 The self-defence provisions in all other jurisdictions specifically allow the use of force in defence of another. 27 19 20 21 22 23 24 25 26 27

R v Duffy [1967] 1 QB 63 at 67. See also Saler v Klingbeil [1945] SASR 171 at 173. (1984) 78 Cr App R 276. R v Duffy [1967] 1 QB 63 at 67–68. R v Chisam (1963) 47 Cr App R 130; R v Fennell [1971] 1 QB 428. R v Duffy [1966] 2 WLR 229; Lavin v Albert [1982] AC 546. Criminal Code (Qld), s 273. Criminal Code (Qld), s 271. Criminal Code (Cth), s 10.4(2)(a); Criminal Code (ACT), s 42(2)(a)(i); Crimes Act (NSW), s 418(2)(a); Criminal Code (NT), s 29(2)(a)(i), s 43BD(2)(a)(i); Criminal Law Consolidation Act 1935 (SA), s 15(3)(a); Criminal Code (Tas), s 46; Crimes Act 1958 (Vic), s 322K(3); Criminal Code (WA), s 248(4)(a).

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Self-Defence and the Protection of Property [6.25] The principles of self-defence also apply to situations where there is no attack as such,

but the accused acts in defence of property. Most cases of this nature may also fall within the principles relating to arrest or crime prevention. 28 In R v McKay 29, a poultry farmer shot and killed a man whom he believed to have been stealing fowls from his farm. The defence of property in this case was held to be an insufficient rationale for the use of lethal force. Indeed, it would seem that the use of lethal force to protect property cannot be justified under the test of self-defence set out in Zecevic v DPP (Vic). 30 The question is whether or not the accused honestly believed, on reasonable grounds, that it was necessary to do what was done in defence of property. Wilson, Dawson and Toohey JJ in Zecevic were of the opinion that lethal force could be justified only where a threat or an attack caused a reasonable apprehension of death or serious harm. It is difficult to imagine how an attack on property in the absence of an attack on a person could satisfy the Zecevic test and therefore the use of self-defence in this regard may be very limited. The statutory versions of self-defence in Queensland, Tasmania and Western Australia refer to the use of force to defend possession of property and to prevent entry onto property in certain circumstances where there is a disputed right of way or easement. 31 In these jurisdictions, the use of force to defend property reflects the common law in that the use must be reasonable and necessary. The use of force must not be intended and thus likely to cause death or grievous bodily harm. These Code jurisdictions have separate rules for the use of force in relation to the defence of real property and moveable property, and to the defence of property with and without a claim of right. There are also distinctions made between the degrees of defensive force which may be used. Subparagraph 15A(1)(a)(i) of the Criminal Law Consolidation Act 1935 (SA) refers to conduct to protect property from “unlawful appropriation, destruction, damage or interference”. In such a circumstance, the accused must have believed that the conduct was necessary and reasonable, and the conduct must be reasonably proportionate to the threat as perceived by the accused. Further, if the conduct resulted in death, the accused must not have intended to cause death nor have acted recklessly in realising that the conduct could result in death. 32 Similarly, in the Commonwealth, Australian Capital Territory, New South Wales and the Northern Territory, protection of property will not found a basis for a claim of self-defence where the accused has used force intending to cause death or really serious injury, with New South Wales extending the prohibition to force that involves the reckless infliction of death. 33 In Victoria, defence of property is not available in relation to the offence of murder. 34

Nature of the attack Pre-emptive strikes [6.30] At common law, self-defence may be raised not only where there was a physical attack

upon the accused, but also where the accused perceived that there was a danger that an attack would occur. In R v McKay, Lowe J stated: 28 29 30 31 32 33 34

See P Fairall and S Yeo, Criminal Defences in Australia (4th ed, Sydney: LexisNexis Butterworths, 2005) p 170. [1957] VR 560. (1987) 162 CLR 645. Criminal Code (Qld), ss 267, 274–279; Criminal Code (Tas), ss 40 – 45; Criminal Code (WA), ss 251 – 256. Criminal Law Consolidation Act 1935 (SA), s 15A(1)(b). Criminal Code (Cth), s 10.4(3); Criminal Code (ACT), s 42(3); Crimes Act 1900 (NSW), s 420; Criminal Code (NT), s 29(3), s 43BD(3). Crimes Act 1958 (Vic), s 322K(3). [6.30]

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“Reasonable self-defence is not limited to cases in which the life of the person committing homicide is endangered or grave injury to his [or her] person is threatened. It is also available where there is a reasonable apprehension of such danger or grave injury. There is such a reasonable apprehension if the person believes on reasonable grounds that such danger exists.” 35

The provisions at the Commonwealth level and in the Australian Capital Territory, the Northern Territory, New South Wales, South Australia, Victoria and Tasmania do not have any requirement that the attack should have actually commenced, leaving the way open for pre-emptive action. 36 While the Queensland provisions refer to defence against an “assault”, the term refers to threats of violence as well as its infliction. 37 There is therefore no need for the attack to have actually begun, but, if an attack is imminent, the accused may make a pre-emptive strike. 38 There is no separate requirement that the attack be imminent. This is expressly stated in the Western Australian provisions. 39 In the case of an offence that takes place in the context of family violence, the Victorian provisions clarify that action in response to a non-immediate threat may nonetheless constitute justifiable self-defence. 40 Section 322M of the Crimes Act 1958 (Vic), which deals with specific self-defence considerations in the context of family violence, enables self-defence to be raised in cases where women kill their partners despite no obvious immediate threat in the context of a history of family violence: see further, [6.65] “Intimate partner violence and self-defence”. Pre-emptive strikes have been held to satisfy the criteria for self-defence on the basis of the accused’s belief on reasonable grounds that it was necessary to so act. There is no clear definition in the case law of the kinds of physical injury suffered or threatened that will form the basis for the defence of self-defence. It appears that self-defence may be raised where the threats fall short of an apprehension of death or grievous bodily harm. 41 However, if the accused has killed by way of self-defence, then the attack must have involved a serious assault including threats of death or serious bodily harm, 42 rape or sexual assault 43 and continuous acute pain. 44 Unlawfulness [6.35] At common law, there is no legal requirement that the attack be an unlawful one.

According to Wilson, Dawson and Toohey JJ in Zecevic v DPP (Vic): “Whilst in most cases in which self-defence is raised the attack said to give rise to the need for the accused to defend himself [or herself] will have been unlawful, as a matter of law there is no requirement that it should have been so.” 45

There is also no requirement in the provisions of New South Wales, South Australia and Tasmania that the attack be unlawful. In Queensland, however, the self-defence provisions 35 36

45

R v McKay [1957] VR 560 at 562–563. A Guz and M McMahon, “Is Imminence Still Necessary? Current Approaches to Imminence in the Laws Governing Self-Defence in Australia” (2011) 13(2) Flinders Law Journal 79; M Campbell, “Pre-emptive Self-Defence: When and Why” (2011) 11(1) Oxford University Commonwealth Law Journal 79. Criminal Code (Qld), ss 245, 271, 272. Beckford v The Queen [1987] 3 WLR 611 at 619; Conlon (1993) 69 A Crim R 92. Criminal Code (WA), s 248(4)(a). Crimes Act 1958 (Vic), s 322M. R v Johnson [1964] Qd R 1 at 12 per Stanley J; Walden (1986) 19 A Crim R 444 at 447 per Street CJ. Viro v The Queen (1978) 141 CLR 88 at 146 per Mason J. R v Howe (1958) 100 CLR 448 at 460 per Dixon CJ; Zecevic v DPP (Vic) (1987) 162 CLR 645 per Deane J; R v Lane [1983] 2 VR 449; Walden (1986) 19 A Crim R 444 at 446. R v Lane [1983] 2 VR 449 at 451; Zikovic (1985) 17 A Crim R 396 at 401; Walden (1986) 19 A Crim R 444 at 447. Zecevic v DPP (Vic) (1987) 162 CLR 645 at 653.

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37 38 39 40 41 42 43 44

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refer to an “unlawful” assault. 46 In Western Australia, an act is not done in self-defence where it is intended to protect against a lawful harmful act. 47 Section 15(4) of the Criminal Law Consolidation Act 1935 (SA) states that, in the situation where an accused resists another who is purporting to exercise a power of arrest or who is acting in response to an unlawful act committed by the accused, self-defence will only be available if the accused believes on reasonable grounds that the other person is acting unlawfully. The Model Criminal Code Officers Committee (MCCOC) has followed the Queensland and Western Australian approach and suggested that self-defence should not be available if the attack is a lawful one. Section 10.4(4) of the Criminal Code (Cth) states that self-defence does not apply if the accused (a) is responding to lawful conduct, and (b) knew that the conduct was lawful. This is subject to an important qualification that conduct is not unlawful simply because the person engaging in the conduct is not criminally responsible for it; for example, because the defence of mental impairment is available. This approach was also adopted in the Australian Capital Territory, the Northern Territory and Victoria in relation to homicide offences. 48 Examples of lawful attacks suggested by the courts include an attack by a mentally impaired assailant or by an assailant who reasonably, but mistakenly, believes that the accused was about to attack him or her. 49 It will probably only be in rare situations that a lawful attack would provide reasonable grounds for self-defence. In Fry v The Queen, 50 the accused raised self-defence at his trial for stabbing a police officer who was in the course of effecting a lawful arrest. The Court of Criminal Appeal of South Australia dismissed an appeal against a conviction for murder. White ACJ stated that some passages in Zecevic indicated that “lawful arrest, even accompanied by some violence, is one of those situations where self-defence could hardly be said to arise—except perhaps in extreme cases of violence”. 51 Conversely, in relation to an arrest which is unlawful, citizens may use reasonable force to resist their apprehension and deprivation of liberty. 52 Provoked attacks [6.40] In Queensland, exceptionally, a distinction is drawn between provoked and

unprovoked attacks. If the attack is unprovoked, an accused may use such force as is reasonably necessary to make an effectual defence against the assault, and this can include lethal force where the attack is such as to cause reasonable apprehension of death or grievous bodily harm. In relation to the situation where the accused has originally provoked the attack, he or she can use such force as is reasonably necessary to preserve himself or herself from death or grievous bodily harm where the violence caused a reasonable apprehension of such injury and the accused believed on reasonable grounds that it was necessary to so act. 53 This rule as to provoked attacks does not apply where the accused began the assault with an intent to kill or to do grievous bodily harm to some person, nor where he or she endeavoured to kill or to do bodily harm before the necessity for self-defence arose. 46 47 48 49 50 51 52 53

Criminal Code (Qld), s 271. Criminal Code (WA), s 248(5). Criminal Code (ACT), s 42(3)(b); Criminal Code (NT), s 29(5), 43BD(3); Crimes Act 1958 (Vic), s 322L. See, for example, R v Lawson [1986] VR 515 at 527–528 per McGarvie J. (1992) 58 SASR 424. Fry v The Queen (1992) 58 SASR 424 at 443. McLiney v Minster [1911] VLR 347 at 351 per Madden CJ, discussed in Coleman v Power (2004) 220 CLR 1 at 58. Criminal Code (Qld), ss 271, 272. [6.40]

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To decide whether an attack is provoked or not, reference has to be made to the doctrine of provocation. 54 Unless the behaviour of the accused would be sufficient to enable the victim to rely on provocation if the latter were charged with an offence, then the assault is unprovoked. At common law, self-defence may only be relied on in such a situation if the accused’s original aggression had ceased at the time of the victim’s counter-attack. Wilson, Dawson and Toohey JJ in Zecevic v DPP (Vic) explained this as follows: “Where an accused person raising a plea of self-defence was the original aggressor and induced or provoked the assault against which he [or she] claims the right to defend himself [or herself], it will be for the jury to consider whether the original aggression had ceased so as to have enabled the accused to form a belief upon reasonable grounds, that his [or her] actions were necessary in self-defence. For this purpose, it will be relevant to consider the extent to which the accused declined further conflict and quit the use of force or retreated from it, these being matters which may bear upon the nature of the occasion and the use which the accused made of it.” 55

However, it seems that, in practice, a person who initiates an attack upon himself or herself may have difficulty in raising self-defence. This was recognised by Wilson, Dawson and Toohey JJ in the following passage: “[W]here an accused person has created the situation in which force might lawfully be applied to apprehend him [or her] or cause him [or her] to desist—where, for example, he [or she] is engaged in criminal behaviour of a violent kind—then the only reasonable view of his [or her] resistance to that force will be that he [or she] is acting, not in self-defence, but as an aggressor in pursuit of his [or her] original design. A person may not create a continuing situation of emergency and provoke a lawful attack upon himself [or herself] and yet claim upon reasonable grounds the right to defend himself [or herself] against that attack.” 56

The Accused’s Belief [6.45] At common law, the accused must have believed on reasonable grounds that it was

necessary in self-defence to do what he or she did. 57 Similarly, in relation to the use of lethal force in Queensland, the accused must believe on reasonable grounds that he or she cannot otherwise preserve himself or herself or another from death or grievous bodily harm. 58 This entails an analysis of, first, what the accused believed, and, secondly, whether or not this belief was based on reasonable grounds. It is important to note that the requirement that the accused’s belief be made on reasonable grounds does not mean a consideration of what a reasonable or ordinary person would have believed, but, rather, what the accused himself or herself might reasonably have believed in all the circumstances. 59 The focus on the accused’s belief, rather than that of an ordinary or reasonable person, is emphasised in s 10.4(2) of the Criminal Code (Cth), s 42(2) of the Criminal Code (ACT), s 418(2) of the Crimes Act 1900 (NSW), ss 29(2) and 43BD(2) of the Criminal Code (NT), s 46 of the Criminal Code (Tas), s 322K(2) of the Crimes Act 1958 (Vic) (in relation to homicide) and s 248(4) of the Criminal Code (WA). 60 These provisions stress that the accused’s conduct must be a reasonable response “in the circumstances as the accused 54 55 56 57 58 59 60

R v Muratovic [1967] Qd R 15 at 28; see Chapter 5, [5.10]. Zecevic v DPP (Vic) (1987) 162 CLR 645 at 663. Zecevic v DPP (Vic) (1987) 162 CLR 645 at 663. Zecevic v DPP (Vic) (1987) 162 CLR 645. Criminal Code (Qld), s 271(2). Conlon (1993) 69 A Crim R 92. See also R v McDougall [2011] ATSC 51 at [19]. Stella Tarrant has criticised the wording of s 248(4) of the Criminal Code (WA) as being ambiguous and complex: S Tarrant, “Self Defence in the Western Australian Criminal Code: Two Proposals for Reform” (2015) 38(2) University of Western Australia Law Review 1 at 13-14.

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perceives them”. This limb of the test has been held not to be importing a reasonable or ordinary person standard, but rather is an “entirely objective assessment of the proportionality of the accused’s response to the situation which the accused subjectively believed he or she faced … The jury is not assessing the response of the ordinary or reasonable person, but the response of the accused”. 61 It is also clear that the statutory formulation diverges from the common law in that it does not require that the accused’s belief in the necessity of his or her action be based on reasonable grounds. Stephen Odgers suggests that the following factors may be considerations relevant to the reasonableness of the response from the perspective of the accused: • the nature of the conduct to which the accused responded (as perceived by the accused); • any conduct on the part of the accused which caused the conduct to which the accused then responded (for example, provocative conduct by the accused); • the surrounding circumstances (as perceived by the accused), including the time available to make a decision as to how to respond; • the conduct of the accused in response (and its “proportionality” to the conduct responded to), and the availability of other possible responses to deal with the conduct to which the accused responded (“necessity”) bearing in mind, however, (if applicable) the stressful nature of the circumstances. 62 This list, while useful, does not limit judicial directions as to how jurors should consider the “reasonableness” of the accused’s conduct. This question may well be influenced by expert psychological evidence revealing how people assess and respond to particular types of threats. This may be particularly relevant in relation to self-defence in family homicide cases: see further, [6.65] “Intimate partner violence and self-defence”. Similarly, s 15(1) of the Criminal Law Consolidation Act 1935 (SA) requires that the conduct was reasonably proportionate to the threat that the accused genuinely believed to exist. This emphasis on the subjective belief of the accused allows the jury to take into account the accused’s personal attributes or characteristics such as age, gender or state of health. 63 The requirement of “reasonableness” allows for an objective gloss to be placed on the defence. If the accused’s belief is mistaken as to the threat proffered, self-defence may still be available providing that the reasonableness component is still present. In Conlon, Hunt J pointed out that it is necessary to take into account all the relevant characteristics of the accused and surrounding circumstances, including intoxication, in assessing the accused’s belief. 64 The accused’s mistaken belief must be “sane” and not the result of delusions. 65

Necessary Force [6.50] At common law, the force used in relation to a threat or an attack must be reasonably

necessary. 66 While the High Court in Zecevic’s case did not specify whether or not the 61 62 63

64 65 66

R v Katarzynski [2002] NSWSC 613 at [23] per Howie J. S Odgers, Principles of Federal Criminal Law (3rd ed, Sydney: Thomson Reuters, 2015) p 146. See R v Katarzynski [2002] NSWSC 613 at [25]–[26], where Howie J noted that “[w]hether or not some particular personal characteristic of the accused is to be considered will depend largely upon the particular facts of the case. … one matter that must be irrelevant to an assessment of the reasonableness of the accused’s response is his or her state of sobriety”. See also R v Burgess (2005) 152 A Crim R 100. R v Conlon (1993) 69 A Crim R 92 at 101. R v Walsh (1991) 60 A Crim R 419. Zecevic v DPP (Vic) (1987) 162 CLR 645 at 645 per Mason CJ, at 661 per Wilson, Dawson and Toohey JJ, at 666 per Brennan J, at 681 per Deane J, at 683 per Gaudron J. [6.50]

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requirement for necessity means a minimum necessary response or a reasonably necessary response, a reference to the Privy Council case of Palmer v The Queen indicates that necessity is used in the latter sense. 67 In Palmer, Lord Morris described the element of necessity as follows: “It is both good law and good sense that [the accused] may do, but may only do, what is reasonably necessary … If there has been an attack so that defence is reasonably necessary it will be recognised that a person defending himself [or herself] cannot weigh to a nicety the exact measure of his [or her] necessary defensive action.” 68

Section 271 of the Criminal Code (Qld) refers to force that is “reasonably necessary”. In R v Marwey, in relation to the use of fatal force in self-defence under the Queensland provision, Barwick CJ stated: “[W]hat the second paragraph of s 271 calls for is the actual belief by the accused on reasonable grounds of the necessity of the fatal act for his [or her] own preservation. That paragraph, it seems to me, when the occasion is appropriate makes the belief of the accused the definitive circumstances. As this belief must be based on reasonable grounds, there is no point in repeating the word ‘reasonably’ before the word ‘necessary’. That word—necessary—in the context of s 271 bears the sense ascribed to it by the Shorter Oxford Dictionary of ‘requisite’ or ‘needful’.” 69

Subparagraph 15(1)(a) of the Criminal Law Consolidation Act 1935 (SA) also refers to necessary conduct. At the Commonwealth level and in the Australian Capital Territory, New South Wales, the Northern Territory, Victoria (in relation to homicide) and Western Australia, the accused must have believed that the force was necessary. 70 However, there is no mention of the term in s 46 of the Criminal Code (Tas). This provision only refers to the accused’s belief that the force is reasonable to use. In relation to the Tasmanian provision before amendment in 1987, the Tasmanian Court of Appeal in Patterson was of the view that self-defence could be made out even if the force used was more than was necessary for the purpose of self-defence. 71 There is no separate legal requirement in the Australian jurisdictions that the accused must have retreated before attempting to defend himself or herself. 72 Whether or not the accused retreated is simply a factor that may be considered in assessing whether or not the accused’s conduct was reasonably necessary. That is, if an accused had the opportunity to retreat, the jury may find that the accused’s belief in the necessity to use the force he or she used was not based on reasonable grounds. However, Stanley J in R v Johnson posed the following warning on this point: “[A] jury should be warned against being wise after the event and that they must consider the matter from the point of view operative on the accused’s mind in the stress of the moment. By turning away from an aggressor one might obviously lead to one’s own destruction.” 73

There is also a rider in Queensland in relation to provoked assaults where the accused causes death or grievous bodily harm: under Criminal Code (Qld), s 272, self-defence is only available where the accused retreated as far as practicable before the necessity to use force arose. 67

73

Zecevic v DPP (Vic) (1987) 162 CLR 645 at 654 per Mason CJ, at 661 and 665 per Wilson, Dawson and Toohey JJ. Palmer v The Queen [1971] AC 814 at 831–832. R v Marwey (1977) 138 CLR 630 at 637. Criminal Code (Cth), s 10.4(2); Criminal Code (ACT), s 42(2)(a); Crimes Act 1900 (NSW), s 418(2); Criminal Code (NT), s 29(2)(a), s 43BD(2)(a); Crimes Act 1958 (Vic), s 322K(2)(a); Criminal Code (WA), s 248(4)(a). Patterson (1982) 6 A Crim R 331 at 341–342. Zecevic v DPP (Vic) (1987) 162 CLR 645 at 663 per Wilson, Dawson and Toohey JJ; Viro v The Queen (1978) 141 CLR 88 at 115–116 per Gibbs J; R v Howe (1958) 100 CLR 448 at 462–464 per Dixon CJ. R v Johnson [1964] Qd R 1 at 13.

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In all jurisdictions other than South Australia, there is no separate legal requirement that the force used be proportionate to the attack. 74 Proportionality will simply be a factor to take into account in assessing the accused’s belief that it was necessary to do what he or she did. In England, proportionality remains a separate element of self-defence. 75 This requirement has been introduced in South Australia. Under s 15(1)(b) of the Criminal Law Consolidation Act 1935 (SA), the accused’s conduct must have been, in the circumstances that the accused genuinely believed them to be, reasonably proportionate to the threat the accused genuinely believed to exist. If the conduct was not reasonably proportionate, the accused may still be afforded a partial defence to a charge of murder, which reduces the offence to manslaughter under s 15(2). This issue is taken up in the next section.

Excessive Self-Defence [6.55] Excessive self-defence has had an interesting history in Australian common law. For a

time, it was a partial defence akin to provocation in that it reduced murder to manslaughter. Excessive self-defence was introduced into Australian law by the High Court in R v Howe, which adopted the reasoning of the Victorian Supreme Court in R v McKay, decided the year before. It was then abolished by the Privy Council in Palmer v The Queen. 76 The issue came before the High Court again, in 1978, when the court decided that there was a requirement that the jury consider whether the force used by the accused was proportionate to the danger that he or she faced. 77 If the force used was disproportionate or excessive, the proper verdict should be manslaughter rather than murder. However, this doctrine was subsequently rejected by a five-to-two majority of the High Court in Zecevic v DPP (Vic). Wilson, Dawson and Toohey JJ stated: “[T]he use of excessive force in the belief that it was necessary in self-defence will not automatically result in a verdict of manslaughter. If the jury concludes that there were no reasonable grounds for a belief that the degree of force used was necessary, the defence of self-defence will fail and the circumstances will fall to be considered by the jury without reference to that plea. There is some force in the view, adopted by Stephen, Mason and Aickin JJ in Viro, that this may result in a conviction for murder of a person lacking the moral culpability associated with that crime. Experience would suggest, however, that such a result is unlikely in practice.” 78

As stated above, proportionality may now only be taken into account as a relevant circumstance of the case rather than as a separate rule of law or determinative element. Wilson, Dawson and Toohey JJ stated in this regard: “[I]t will in many cases be appropriate for a jury to be told that, in determining whether the accused believed that his [or her] actions were necessary in order to defend himself [or herself] and whether he [or she] held that belief on reasonable grounds, it should consider whether the force used by the accused was proportionate to the threat offered.” 79

Accordingly, in Lean and Aland, the New South Wales Court of Criminal Appeal held that the trial judge had erred in directing the jury to consider the question of proportionality as a separate requirement. It confirmed that there is “no rule of law that the use of excessive force necessarily establishes that the accused did not act in self-defence”. 80 74 75 76 77 78 79 80

Zecevic v DPP (Vic) (1987) 162 CLR 645 at 662. Oatridge (1992) 94 Cr App R 367. R v Howe (1958) 100 CLR 448; R v McKay [1957] VR 560; Palmer v The Queen [1971] AC 814. Viro v The Queen (1978) 141 CLR 88 at 147. Zecevic v DPP (Vic) (1987) 162 CLR 645 at 654. Zecevic v DPP (Vic) (1987) 162 CLR 645 at 653. Lean and Aland (1993) 66 A Crim R 296 at 298 per Hunt CJ. [6.55]

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Under the Criminal Codes, excessive force is unlawful and the accused’s belief as to the appropriateness of the degree of force used is irrelevant. The partial defence of excessive force was never part of the law in Queensland and Western Australia. 81 Under s 283 of the Criminal Code (Qld) and s 260 of the Criminal Code (WA), the use of more force than is justified by law under the circumstances is unlawful. Section 52 of the Criminal Code (Tas) provides that a person authorised by law to use force is criminally responsible for any excess, according to the nature and quality of the act that constitutes such excess. 82 South Australia, New South Wales and Western Australia have re-introduced variations of the excessive self-defence doctrine. In New South Wales and Western Australia, where a person uses force that causes death and the conduct was not a reasonable response in the circumstances as the accused perceived them, the accused will be criminally responsible for manslaughter, providing that all the other elements of manslaughter are made out. 83 In Victoria there is also a specific provision dealing with excessive force in circumstances of family violence. 84 In South Australia, self-defence is only made out where the force used was reasonably proportionate to the threat that the accused genuinely believed. 85 However, a partial defence of excessive force manslaughter has been statutorily introduced for those situations where the force used is not proportionate to the threat. 86 The abolition of the doctrine of excessive self-defence has been criticised by academic writers. 87 The main argument in support of excessive self-defence is based on a moral distinction between intentional killing and a killing based on an error of judgment. Mason J stated in Viro v The Queen: “The underlying rationale … is to be found in a conviction that the moral culpability of a person who kills another in defending himself [or herself] but who fails in a plea of self-defence only because the force which he [or she] believed to be necessary exceeded that which was reasonably necessary falls short of the moral culpability ordinarily associated with murder. The notion that a person commits murder in the circumstances should be rejected on the ground that the result is unjust. It is more consistent with the distinction which the criminal law makes between murder and manslaughter that an error of judgment on the part of the accused which alone deprives him [or her] of the absolute shield of self-defence results in the offence of manslaughter.” 88

The MCCOC, however, has recommended that excessive self-defence should not be re-introduced. 89 This was within the context of its recommendation that provocation be abolished, 90 but the Committee was also concerned that excessive self-defence is “inherently vague” and that a sufficient test has not been promulgated by the courts. The MCCOC stated that if excessive self-defence is re-introduced, it should be a subjective test along the lines suggested by Deane J in Zecevic. This test found favour with Brent Fisse in 81 82 83 84 85 86 87

88 89 90

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R v Johnson [1964] Qd R 1 at 7 per Philp J, at 11 per Stanley J; Aleksovski v The Queen [1979] WAR 1; McCullough (1982) 6 A Crim R 274. Masnec v The Queen [1962] Tas SR 354. Crimes Act 1900 (NSW), s 421; Criminal Code (WA), s 248(3). Crimes Act 1958 (Vic), s 322M(1)(b). Criminal Law Consolidation Act 1935 (SA), s 15(1)(b). Criminal Law Consolidation Act 1935 (SA), s 15(2). See, for example, B Fisse, Howard’s Criminal Law (5th ed, Sydney: Law Book Company, 1990) pp 102ff; L Waller and CR Williams, Criminal Law: Text and Cases (11th ed, Sydney: LexisNexis Butterworths, 2009) p 228. Viro v The Queen (1978) 141 CLR 88 at 139. Model Criminal Code Officers Committee, Chapter 5—Fatal Offences Against the Person, Discussion Paper (1998) p 113. Model Criminal Code Officers Committee, Chapter 5—Fatal Offences Against the Person, Discussion Paper (1998) pp 292–295. [6.55]

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Howard’s Criminal Law. 91 The MCCOC, in particular, mentioned the test set out by Menzies J in R v Howe which determines that it is manslaughter if the accused “used greater force than was reasonably necessary for his [or her] self-protection and in doing so killed his [or her] assailant”. 92 The South Australian provision changed from a purely subjective test of excessive self-defence to that of a partly objective one in 1997. 93 The New South Wales and Western Australian provisions contain both subjective and objective elements. It will be interesting to see how often these provisions are raised and whether or not they provide sufficient guidance to juries.

Burden of Proof [6.60] As with other defences such as duress, necessity and provocation, the accused bears the

evidential burden in relation to self-defence. The prosecution bears the legal burden in negating beyond reasonable doubt the accused’s assertion that he or she acted in self-defence. The meaning of the evidential and legal burdens of proof is discussed in Chapter 2, [2.175]. In Dziduch v The Queen, Hunt J described what is required as follows: “The fundamental question which a jury has to establish in relation to the issue of self-defence is whether the Crown has established that the accused did not believe on reasonable grounds that it was necessary in self-defence to do what he [or she] did. The Crown may establish either that the accused had no such belief or that there was no reasonable grounds for such a belief. If the Crown fails to establish one or the other of those two alternatives, the accused is entitled to be acquitted of the charge.” 94

Intimate Partner Violence and Self-Defence [6.65] The removal of the traditional legal requirements of proportionality (except in South

Australia, where the conduct must be reasonably proportionate to the threat) and the duty to retreat has meant that women who kill their abusive partners can successfully raise the defence of self-defence perhaps more easily than previously the case. 95 However, there are still some problems with the use of the defence in this regard. As mentioned earlier, the defence is based on “the paradigmatic case of a one-time bar-room brawl between two men of equal strength and size”. 96 It does not easily “fit” the scenario of violence between intimate partners. Nor does it recognise that women may experience and react to fear differently from men. In general, the law still qualifies a woman’s belief in the necessity of her actions with the requirement of reasonableness. The test is not whether a reasonable woman with all the characteristics of the accused would have acted in self-defence, but, rather, whether the accused’s belief was based on reasonable grounds. 91 92 93 94 95

96

B Fisse, Howard’s Criminal Law (5th ed, Sydney: Law Book Company, 1990) p 103. Model Criminal Code Officers Committee, Chapter 5—Fatal Offences Against the Person, Discussion Paper (1998) p 111 citing R v Howe (1958) 100 CLR 448 at 477. Section 15 of the Criminal Law Consolidation Act 1935 (SA) amended by the Criminal Law Consolidation (Self-Defence) Amendment Act 1997 (SA). Dziduch v The Queen (1990) 47 A Crim R 378 at 379. See also R v McDougall [2011] ATSC 51 at [25]. Marilyn McMahon has, however, questioned the presumption that women were historically disadvantaged by the traditional requirements for self-defence: M McMahon, “Homicide, Self-Defence and the (Inchoate) Criminology of Battered Women” (2013) 37 Criminal Law Journal 79. R v Lavallee [1990] 1 SCR 852 at 876 per Wilson J. See also T Crofts and D Tyson, “Homicide Law Reform in Australia: Improving Access to Defences for Women Who Kill Their Abusers” (2014) 39(3) Monash University Law Review 864 at 877. [6.65]

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This requirement of reasonableness has been criticised by many feminist legal scholars. Although clothed in the language of rationality and objectivity, the underlying standard is a male one. 97 The challenge has been to demonstrate that the male response to aggression is not necessarily the only reasonable response. The task, therefore, is to demonstrate to the jury that the fear and reactions of a woman who has previously experienced violence may indeed be reasonable in the circumstances. There have been different approaches taken as to how to take into account women’s experiences of intimate partner violence. One approach has been to introduce specific legislative provisions. In 2005, for example, Victoria introduced an offence of “defensive homicide” as an alternative verdict to murder with the aim of taking into account the situation of women who kill abusive partners. 98 The irony was that the vast majority of those subsequently convicted of defensive homicide were men 99 and after significant criticism 100 and a review by the Victorian Department of Justice, 101 the offence was repealed in 2014. 102 In 2010, Queensland introduced a partial defence of “killing for preservation in an abusive domestic relationship”. 103 Heather Douglas argues that this defence “may have a very narrow application” 104 and Michelle Edgely and Elena Marchetti have criticised it as creating “a serious risk that women will be unjustly convicted of manslaughter”. 105 Another approach has been to introduce expert evidence of “battered woman syndrome”. Madame Justice Bertha Wilson in the Canadian case of R v Lavallee, explained why expert evidence may be needed to describe the situation faced by women who have experienced intimate partner violence and who then kill their partner: “The average member of the public (or of the jury) can be forgiven for asking: Why would a woman put up with this kind of treatment? Why should she continue to live with such a man? How could she love a partner who beats her to the point of requiring hospitalization? We would expect the woman to pack her bags and go. Where is her self-respect? Why does she not cut loose and make a new life for herself? Such is the reaction of the average person confronted with the so-called ‘battered wife syndrome’. We need help to understand it and help is available from trained professionals.” 106 97

E Sheehey, J Stubbs and J Tolmie, “Defending Battered Women on Trial: The Battered Woman Syndrome and its Limitations” (1992) 16 Criminal Law Journal 369 at 372, 374; E Buckley, “Wilful Blindness: Law’s Disregard and the Deanne Bridgland Case” (2010) 33 The Australian Feminist Law Journal 102 at 105.

98

Crimes Act 1958 (Vic), s 9AD (now repealed). This provision was enacted following the Victorian Law Reform Commission’s Defences to Homicide, Final Report (2004). D Tyson, “Victoria’s New Homicide Laws: Provocative Reforms or More Stories of Women ’Asking for it’” (2011) 23(2) Current Issues in Criminal Justice 203 at 212; K Toole, “Defensive Homicide on Trial in Victoria” (2013) 39(2) Monash University Law Review 473. A Flynn and K Fitz-Gibbon, “Bargaining with Defensive Homicide: Examining Victoria’s Secretive Plea Bargaining System Post-Law Reform” (2011) 35 Melbourne University Law Review 905; K Fitz-Gibbon and S Pickering, “Homicide Law Reform in Victoria, Australia: From Provocation to Defensive Homicide and Beyond” (2012) 52(1) British Journal of Criminology 159; K Toole, “Self-Defence and the Reasonable Woman: Equality Before the New Victorian Law” (2012) 36 Melbourne University Law Review 250; K Toole, “Defensive Homicide on Trial in Victoria” (2013) 39(2) Monash University Law Review 473. Criminal Law Review, Department of Justice (Victoria), Defensive Homicide: Proposals for Legislative Reform, Consultation Paper (2013). Repealed by Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic), s 3(3). Criminal Code (Qld), s 304B. H Douglas, “A Consideration of the Merits of Specialised Homicide Offences and Defences for Battered Women” (2013) 45(3) Australian and New Zealand Journal of Criminology 367 at 372-377. H Douglas, “A Consideration of the Merits of Specialised Homicide Offences and Defences for Battered Women” (2013) 45(3) Australian and New Zealand Journal of Criminology 367 at 377. M Edgely and E Marchetti, “Women Who Kill Their Abusers: How Queensland’s New Abusive Domestic Relationships Defence Continues to Ignore Reality” (2011) 13(2) Flinders Law Journal 125 at 130. R v Lavallee [1990] 1 SCR 852 at 871–872.

99

100

101 102 103

104 105 106

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The role of this expert evidence is, therefore, to answer some of these common questions and help support the claim that the accused believed on reasonable grounds that it was necessary to do what she did. “Battered woman syndrome” can be traced back to a book published in 1979 by psychologist, Dr Lenore Walker. 107 In 1984, Walker published a follow-up book detailing a study she had done with 400 battered women. She stated that a “cycle of violence” was characterised by three stages: tension building, the acute battering incident and loving contrition. She defined a “battered woman” as one who had gone through the cycle at least twice. 108 Walker emphasised that a battered woman finds it difficult to break out of this cycle because of “learned helplessness”. This theory was based on experiments concerning the effect of electric shocks on two groups of dogs. 109 In Australia, evidence of battered woman syndrome has been used successfully in R v Kontinnen 110 and R v Hickey. 111 The use of battered woman syndrome, however, has been criticised. The “syndrome” and Walker’s research methodology have been the subject of much criticism. 112 Walker herself admitted in 1995 that there is a definitional vagueness in the syndrome. 113 One problem with it in relation to self-defence is that it may explain why the accused didn’t leave the relationship, but it is difficult to link “learned helplessness” with finally breaking out and killing an abusive partner. A further problem lies in medicalising women’s behaviour by the use of a “syndrome”. Ian Freckelton has pointed out that it is difficult to translate a field of endeavour that has therapy as its purpose into a forensic context. 114 Freckelton explains that, in the medical context, the term “syndrome” is used to denote a collection of symptoms that occur together where the cause of the symptom is not known. There is, therefore, some confusion between the medical use of the term “syndrome”, which means that the cause of the symptoms is not identifiable, and the legal and evidential use of the term, which assumes that a cause can be identified. The advantage for the defence of using the term “syndrome” is that it cloaks the social and psychological explanation of the accused’s conduct in a veneer of medical respectability to make it more acceptable to the jury. There are several dangers in this medicalisation of women’s experiences and behaviour. First, women who do not exhibit these symptoms will find it difficult to convince a jury that their reactions were reasonable. Although the legal rules of self-defence have moved away from the “bar-room brawl” model, the use of battered woman syndrome means that women must now conform to a medical model for their evidence to be credible. Secondly, in crude 107 108 109

110 111 112

113 114

L Walker, The Battered Woman (New York: Harper and Row, 1979). L Walker, The Battered Woman Syndrome (New York: Springer Pub Co, 1984). See also L Walker, The Battered Woman Syndrome (3rd ed, New York: SpringerPubCo, 2009). M Seligman and S Maier, “Failure to Escape Shock” (1967) 74 Journal of Experimental Psychology 1–9; M Seligman, Helplessness: On Depression, Development and Death (San Francisco: Freeman, 1975). See also L Walker, The Battered Woman Syndrome (3rd ed, New York: Springer Pub Co, 2009). (1992) 16 Crim LJ 360. (1992) 16 Crim LJ 271. See also S Yeo, “R v Hickey” (1992) 16 Criminal Law Journal 272. See, for example, P McDonald, “Helping with the Termination of an Assaultive Relationship” in B Pressman, G Cameron and M Rothery (eds), Intervening with Assaulted Women (Hillsdale: Eribaum, 1989); R Gelles and M Straus, Intimate Violence (New York: Simon and Schuster, 1988); D Faigman, “The Battered Woman and Self Defence: A Legal and Empirical Dissent” (1986) 72 Virginia Law Review 619; R Schuller and N Vidmar, “Battered Woman Syndrome Evidence in the Courtroom” (1992) 16(3) Law and Human Behavior 273; A Coughlin, “Excusing Women” (1994) 82 California Law Review 1; M McMahon, “Battered Women and Bad Science: The Limited Validity and Utility of Battered Woman Syndrome” (1999) 6(1) Psychiatry, Psychology and Law 23. L Walker, “Understanding Battered Woman’s Syndrome” (1995) 31(2) Trial 30. I Freckelton, “When Plight Makes Right: The Forensic Abuse Syndrome” (1994) 18 Criminal Law Journal 29. [6.65]

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terms, syndrome evidence suggests that the woman is not bad, but mad. This may suggest that the more appropriate defences are those of mental impairment or diminished responsibility. Again, this pathologises the experience of battered women and takes their situation out of a social context. 115 A similar debate has occurred in relation to the value of “rape trauma syndrome”. 116 While the debate about the gendered nature of self-defence will doubtless continue, Elizabeth Sheehy, Julie Stubbs and Julia Tolmie are correct in stating that: “Essentially [there] is not so much a problem with the doctrinal shape of the law on self-defence as the way it is applied in individual cases. Such offenders [women who kill their violent partners] have difficulties in getting the circumstances surrounding their killings realistically appraised by the agents of the criminal justice system.” 117

DURESS [6.70] The defence of duress, or compulsion as it is sometimes termed, operates to excuse an

accused from criminal responsibility where the accused has committed a certain offence under a threat of physical harm to himself or herself or to some other person should he or she refuse to comply with the threatener’s command. 118 In DPP (Northern Ireland) v Lynch, Lord Simon described the defence as denoting: “such (well-grounded) fear, produced by threats, of death or grievous bodily harm (or unjustified imprisonment) if a certain act is not done, as overbears the actor’s wish not to perform the act, and is effective, at the time of the act, in constraining him [or her] to perform it.” 119

There has been some confusion in the case law as to whether or not duress operates to negate the fault element or voluntariness, or is in fact an independent exculpatory factor which provides an excuse for conduct which would otherwise be criminal but for the presence of duress. It appears that the third way of approaching duress—that is, viewing it as an independent excuse—is gaining currency at common law. For example, Cox J stated in R v Palazoff:

115

119

E Sheehy, J Stubbs and J Tolmie, “Defending Battered Women on Trial: The Battered Woman Syndrome and its Limitations” (1992) Criminal Law Journal 369; P Easteal, “Battered Woman Syndrome: What is Reasonable?” (1992) 17 Alternative Law Journal 203. See also S Murphy, “Assisting the Jury in Understanding Victimisation: Expert Psychological Testimony on Battered Women Syndrome and Rape Trauma Syndrome” (1992) 25 Columbia Journal of Law and Social Problems 277; J Stubbs and J Tolmie, “Battered Woman Charged with Homicide: Advancing the Interests of Indigenous Women” (2008) 41(1) Australian and New Zealand Journal of Criminology 138. See S Bronitt, “The Rules of Recent Complaint: Rape Myths and the Legal Construction of the ‘Reasonable’ Rape Victim” in P Easteal (ed), Balancing the Scales: Rape, Law Reform and Australian Culture (Sydney: Federation Press, 1998) Ch 4. E Sheehy, J Stubbs and J Tolmie in “Defending Battered Women on Trial: The Battered Woman Syndrome and its Limitations” (1992) 16 Criminal Law Journal 369 at 394. See also E Sheehy, J Stubbs and J Tolmie, “Battered Women Charged with Homicide in Australia, Canada and New Zealand: How Do They Fare?” (2012) 45(3) Australia and New Zealand Journal of Criminology 383; E Sheehy, J Stubbs and J Tolmie, “Defences to Homicide for Battered Women: A Comparative Analysis of Laws in Australia, Canada and New Zealand” (2012) 34(3) Sydney Law Review 467. E Sheehy, J Stubbs and J Tolmie, “Securing Fair Outcomes for Battered Women Charged with Homicide: Analysing Defence Lawyering in R v Falls” (2014) 38(2) Melbourne University Law Review 666. R v Hurley [1967] VR 526 at 543 per Smith J; R v Lawrence [1980] 1 NSWLR 122; R v Palazoff (1986) 43 SASR 99; R v Darrington and McGauley [1980] VR 353; R v Dawson [1978] VR 536; Emery (1978) 18 A Crim R 49. DPP (Northern Ireland) v Lynch [1975] AC 653 at 686.

364

[6.70]

116

117

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“[I]n a case of duress, the actus reus is voluntary, or willed, and intended, but is, in a real and very relevant sense, undesired. The maxim is coactus volui, but the force is not compulsion, strictly so called, but persuasion created by a dilemma.” 120

The defence is recognised at common law in New South Wales and South Australia. The statutory provisions at the Commonwealth level and in the Australian Capital Territory, the Northern Territory, Queensland, Tasmania, Victoria and Western Australia reflect the common law with some variation. 121 If duress is successful, the accused will be acquitted. Limitations are, however, applied as to when duress can be raised. Table 2 refers to those crimes where duress cannot be raised. There are generally no limits to the availability of the defence of duress at the Commonwealth level and in the Australian Capital Territory, the Northern Territory and Western Australia. 122 In Victoria, the defence of duress only applies in the case of murder where the threat is to inflict death or really serious injury. 123 The one limitation to the availability of the defence in these jurisdictions relates to those who voluntarily became a party to a criminal or unlawful association. 124 See further [6.105] “Prior fault and duress”. The rationale for limiting the scope of the defence to crimes other than murder or attempted murder lies in the policy argument that human life must be preserved and the purpose of the criminal law is to set a standard of conduct with which ordinary people must comply. In R v Howe, Lord Hailsham described the situation: “where the choice is between the threat of death or a fortiori of serious injury and deliberately taking an innocent life. In such a case a reasonable [person] might reflect that one innocent human life is at least as valuable as his [or her] own or that of his [or her] loved one. In such a case a [person] cannot claim that he [or she] is choosing the lesser of two evils. Instead he [or she] is embracing the cognate but morally disreputable principle that the end justifies the means.” 125

In R v Gotts, 126 the House of Lords suggested that the scope of the defence should be further limited because of a climate of violence and rising terrorism. These remarks were made at a time when the Irish Republican Army had embarked on bombing campaigns in Northern Ireland and Great Britain, including mortar attacks on the British Prime Minister’s 10 Downing Street residence and London’s Heathrow Airport. In some jurisdictions, there is a further limitation in that duress is not available to accessories to the crimes listed in Table 2. In DPP (Northern Ireland) v Lynch, 127 a majority of the House of Lords held that duress should be available to an accessory to murder because an accessory bears a lesser degree of guilt than the person who actually commits the murder. In R v Darrington and McGauley, the Full Court of the Supreme Court of Victoria followed this decision and held that the defence of duress was only denied to the principal offender. 128 120 121 122 123 124 125 126 127 128

R v Palazoff (1986) 43 SASR 99 at 105. Criminal Code (Cth), s 10.2; Criminal Code (ACT), s 40; Criminal Code (NT), ss 40, 43BB; Criminal Code (Qld), s 31(1)(d); Criminal Code (Tas), s 20(1); Crimes Act 1958 (Vic), s 322O; Criminal Code (WA), s 32. Criminal Code (Cth), s 10.2; Criminal Code (ACT), s 40; Criminal Code (NT), s 43BB (relating primarily to offences against the person); Criminal Code (WA), s 32(1). Crimes Act 1958 (Vic), s 322O(4). Criminal Code (Cth), s 10.2(3); Criminal Code (ACT), s 40(3); Criminal Code (NT), s 43BB(3); Crimes Act 1958 (Vic), s 322O(3); Criminal Code (WA), s 32(3). R v Howe [1987] AC 417 at 433. [1992] 2 AC 412. [1975] AC 653. [1980] VR 353. See also R v McConnell [1977] 1 NSWLR 714. [6.70]

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Table 2 Crimes where duress is unavailable as a defence NSW and SA common law 129

murder attempted murder

NT Criminal Code, s 40 (s 43BB, which is the new duress provision applying to certain offences, does not have specific limitations) –

QLD Criminal Code, s 31

TAS Criminal Code, s 20

murder

murder attempted murder piracy and offences deemed to be piracy treason

–

– – –

crimes having the element of serious harm crimes having the element of intention to cause serious harm

crimes having the element of grievous bodily harm crimes having the element of intention to cause grievous bodily harm

–

–

–

–

–

–

causing grievous bodily harm, rape and forcible abduction aggravated armed robbery, armed robbery, aggravated robbery and robbery arson

The decision in Lynch’s case was overturned by the House of Lords in R v Howe on the basis that the law should “stand firm recognising that its highest duty is to protect the freedom and lives of those under it. The sanctity of human life lies at the root of this ideal”. 130 Prior to the decision in R v Darrington and McGauley, other Australian cases did not allow for the defence of duress to be used by a secondary party to murder. 131 While the situation remains to be decided in Australia, it may be that Howe’s case will be followed. It is unclear at common law as to whether the defence is open to an accessory in relation to a charge of attempted murder. The weight of opinion at present seems to be that it is unavailable. 132 In the Northern Territory and Queensland, duress is not available as a defence to accessories to an offence that falls within the exceptions listed in Table 2. 133 In contrast to this strict approach, duress is available to accessories to an offence that falls within the exceptions in the Criminal Code (Tas). 134 Duress may be raised by an accessory after the fact, including to the offence of murder. 135 Lords Bridge, Brandon and Griffiths, in R v Howe and various writers 136 have suggested that murder be reduced to manslaughter as a consequence of a successful defence of duress. The rationale for reducing murder to manslaughter lies in the similarity between duress and 129

131 132 133 134 135 136

R v Brown [1968] SASR 467; R v Harding [1976] VR 129; R v McConnell [1977] 1 NSWLR 714. See also R v Howe [1987] AC 417; Abbott v The Queen [1977] AC 755; R v Gotts [1992] 2 AC 412. R v Howe [1987] AC 417 at 443–444 per Lord Griffiths. For a critique of this decision, see A Reed, “The Need for a New Anglo-American Approach to Duress” (1997) 61(2) Journal of Criminal Law 209. R v Brown [1968] SASR 467 at 490; R v Harding [1976] VR 129. R v Gotts [1992] 2 AC 412. See also R v Howe [1987] AC 417 at 445. Criminal Code (NT), s 12 (relating to certain offences); Criminal Code (Qld), s 7. Smith v The Queen (unreported, 6/3/1979, Tas CCA, Cosgrove, Crawford and Nettleford JJ). R v Williamson [1972] 2 NSWLR 281. R v Howe [1987] AC 417 at 436, 438 and 445; B Fisse, Howard’s Criminal Law (5th ed, Sydney: Law Book Company, 1990) p 546; P Fairall and S Yeo, Criminal Defences in Australia (4th ed, Sydney: LexisNexis Butterworths, 2005) p 155; Victoria Law Reform Commissioner, Duress, Necessity and Coercion, Report No 9 (1980) [4.19]; Criminal Law and Penal Methods Reform Committee, South Australia, The Substantive Criminal Law, Fourth Report (1977) [12.5].

366

[6.70]

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provocation: both involve a killing by the accused whilst deprived of self-control or power to withstand an overwhelming threat. Others have argued that it should serve to exculpate an accused completely in certain circumstances. 137 The Criminal Law Officers Committee (CLOC) was of the view that there should not be any restrictions placed on the scope of the defence of duress. 138 It suggested that the objective element of duress is enough of a limitation as to its scope, and quotes with approval the following passage written by Stanley Yeo in “Private Defences, Duress and Necessity”: “Once a person is under the influence of a threat, whatever he or she does depends on what the threatener demands. The crime demanded might be trivial or serious but it has no necessary connection with the type of threat confronting the accused. Policy reasons would, however, insist on a requirement that the accused’s response was reasonably appropriate to the threat.” 139

The CLOC’s approach follows that of the Victoria Law Reform Commissioner, which recommended in 1990 that the defence of duress be available to a charge of murder. 140 The reasons listed in favour of this approach do seem convincing. As well as Yeo’s point, the following argument is significant: “Although someone who chooses to die rather than to kill another deserves praise, the criminal law should not require heroism on pain of conviction for murder.” 141

Disallowing the defence of duress to a charge of murder does not act as a deterrent since the threat of immediate death constitutes a greater threat than that of future punishment. The credibility of the accused’s claims should be assessed by a jury. The possibility of fabrication would not seem any greater than in other defences.

Elements of Duress [6.75] The Victorian Supreme Court analysed the requirements for the defence of duress to be

made out at common law in R v Hurley and Murray. Smith J stated that a defence of duress would be relevant if eight factors existed: • there was a threat that death or grievous bodily harm would be inflicted unlawfully upon a human being if the accused failed to do the act; • the circumstances were such that a person of ordinary firmness of mind would have been likely to yield to the threat in the way the accused did; • the threat was present, continuing, imminent and impending; • the accused reasonably apprehended that the threat would be carried out; • the accused was induced to commit the crime because of the threat; • the crime was not murder, “nor any other crime so heinous so as to be excepted from the doctrine”; • the accused did not expose himself or herself to the threat; and • the accused had no means of preventing the execution of the threat. 142 137

138 139 140 141 142

D O’Connor and P Fairall, Criminal Defences (3rd ed, Sydney: Butterworths, 1996) p 157; Victoria Law Reform Commissioner, Duress, Necessity and Coercion, Report No 9 (1980) [4.19]; Criminal Law and Penal Methods Reform Committee, South Australia, The Substantive Criminal Law, Fourth Report (1977) [12.5]. Criminal Law Officers Committee, Chapter 2—General Principles of Criminal Responsibility, Final Report (1992). The CLOC later became the Model Criminal Code Officers Committee. S Yeo, “Private Defences, Duress and Necessity” (1991) 15 Criminal Law Journal 139 at 143. Law Reform Commission of Victoria, Homicide, Report No 40 (1990) p 106. Law Reform Commission of Victoria, Homicide, Report No 40 (1990) p 104. R v Hurley and Murray [1967] VR 526 at 537. [6.75]

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In Emery, the Victorian Court of Criminal Appeal approved of this comprehensive analysis, but warned that the jury should not be directed in such terms, as this formulation wrongly implied that the burden of proof rested on the accused to establish the defence. 143 It is worthwhile, however, considering Smith J’s analysis in relation to the requirements of the defence in order to view how the Australian jurisdictions differ in regard to each factor. The sixth point listed concerning murder has already been outlined. Threats to inflict death, grievous bodily harm or other harm (or something else?) [6.80] The defence of duress is usually based upon threats of death or grievous bodily

harm. 144 The latter has been held at common law to mean really serious injury, 145 or—as in Queensland, Tasmania and Western Australia—bodily injury that endangers life or causes permanent injury to health or which is likely to do so. 146 Section 40 of the Criminal Code (NT) does not specify the type of threat, but contains the limitation that a reasonable person similarly circumstanced would have acted in the same or a similar way. At a Commonwealth level and in the Australian Capital Territory, the Northern Territory (in relation to certain offences), Victoria and Western Australia, the type of threat is not specified but it is necessary that the conduct of the accused is a reasonable response to the threat. 147 The position concerning threats of unlawful imprisonment is uncertain. Such threats have been held to amount to duress in a number of cases, 148 but in R v Foster, 149 Lee CJ, with whom Hunt and McInerney JJ concurred, held that they could not form the basis for the defence of duress under the common law. Threats of violence 150 and threats of a “belting” without any specified limits 151 may also form the basis for the defence. At common law, threats to property may not be sufficient to give rise to the defence of duress. 152 However, s 31(1)(d) of the Criminal Code (Qld) specifically includes threats against one’s own property or the property of another. Threats to expose sexual immorality will not be sufficient. 153 The

143 144

149 150 151 152 153

Emery (1978) 18 A Crim R 49 at 56. See [6.115] as to the burden of proof. Subramaniam v Public Prosecutor [1956] 1 WLR 965; R v Steane [1947] KB 997 at 1005 per Lord Goddard CJ; R v Valderrama-Vega [1985] Crim LR 220; R v Williamson [1972] 2 NSWLR 281; R v Lawrence [1980] 1 NSWLR 122; R v Brown (1986) 43 SASR 33; Criminal Code (NT), s 40 (reference to “threats”); Criminal Code (Qld), s 31(1)(d); Criminal Code (Tas), s 20; Crimes Act 1958 (Vic),. R v Perks (1986) 41 SASR 335 at 346–347 per White J; R v Smith [1961] AC 290; Pemble v The Queen (1971) 124 CLR 107. Criminal Code (Tas), s 1; Criminal Code (WA), s 1. The definition also encompasses serious disfigurement or the loss of a distinct part or an organ of the body: Criminal Code (Qld), s 1. In the Northern Territory, the term “serious harm” is defined as harms that endanger, or are likely to endanger, life, or harms that are, or are likely to be, significant and longstanding: Criminal Code (NT), s 1. Criminal Code (Cth), s 10.2; Criminal Code (ACT), s 40; Criminal Code (NT), s 43BB; Crimes Act 1958 (Vic), s 322O; Criminal Code (WA), s 32. R v Lawrence [1980] 1 NSWLR 122 at 133 per Moffitt P; R v Harding [1976] VR 129 at 169 per Murphy J; R v Steane [1947] KB 997 at 1005 per Lord Goddard CJ; DPP (Northern Ireland) v Lynch [1975] AC 653 at 686 per Lord Simon. (1990) 14 Crim LJ 289. R v Harding [1976] VR 129 at 169 per Murphy J; R v Steane [1947] KB 997 at 1005 per the Court. Goddard v Osborne (1978) 18 SASR 481 at 489 per the Court. DPP (Northern Ireland) v Lynch [1975] AC 653 at 686. R v Singh [1973] 1 All ER 122; R v Valderrama-Vega [1985] Crim LR 220.

368

[6.80]

145 146

147 148

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common thread for identifying which threats will be accepted as forming the basis for the defence of duress appears to be that they are capable of overbearing the mind of a person of ordinary firmness of character. 154 The threat at common law need not be directed at the accused but can be indirect in the sense that it is aimed at a third person, whether a member of the accused’s family 155 or not. 156 In R v Hurley and Murray, Smith J stated: “[O]nce one goes beyond threats to the accused himself [or herself] I can see no justification, either in logic or convenience, for the laying down of a list of relationships of attachments which will define the limits of the doctrine … I consider that the true view is that a threat made known to the accused to kill or do grievous bodily harm to any human being can be sufficient to found a defence of duress.” 157

The Commonwealth, Australian Capital Territory, Northern Territory, Tasmanian, Victorian and Western Australian provisions are silent as to this point, but the Queensland provision was amended in 1997 to include threats to another. 158 The objective element [6.85] At common law, the circumstances must have been such that a person of ordinary

firmness of mind would have been likely to yield to the threat in the way in which the accused did. 159 The Criminal Code (Cth), reflecting the MCCOC recommendation, identifies three elements in s 10.2(2) which must be satisfied. For duress to be operative, the accused must reasonably believe: (a) that the threat will be carried out unless the offence is committed; and (b) there is no reasonable way that the threat can be rendered ineffective; and (c)

the conduct is a reasonable response to the threat. 160

It has been held that this test, like self-defence, is not an ordinary or reasonable person test. 161 However, the courts have struggled with defining the precise scope of “reasonably believes” in s 10.2(2). Stephen Odgers has cast doubt on the correctness of the view, expressed in obiter by Spigelman CJ in Oblach’s case, that the test is whether the accused’s belief is one which is based on “reasonable grounds”. 162 In Queensland, the accused must have believed that he or she was unable to escape the carrying out of the threats into execution. 163 In Tasmania, the accused must have believed that the threats will be executed. 164 In Western Australia, the act or omission must have been necessary “to prevent the threat from being carried out”. 165 In Victoria, the conduct must 154 155

156 157 158 159 160 161 162 163 164 165

R v Abusafiah (1991) 24 NSWLR 531 at 545. R v Hurley and Murray [1967] VR 526 (de facto wife); Emery (1978) 18 A Crim R 49 (de facto wife); R v Brown [1968] SASR 467 at 498 (wife, children or parents); R v Abusafiah (1991) 24 NSWLR 531 at 537 per Hunt J (family members generally); Nguyen v The Queen (2008) 181 A Crim R 72 (son). R v Brown (1986) 43 SASR 33 at 55–56; DPP (Northern Ireland) v Lynch [1975] AC 653. R v Hurley and Murray [1967] VR 526 at 543. Criminal Code (Qld), s 31(1)(d). R v Hurley and Murray [1967] VR 526 at 543 per Smith J; R v Palazoff (1986) 43 SASR 99 at 108 per Cox J; R v Valderrama-Vega [1985] Crim LR 220. See also Criminal Code (ACT), s 40(2)(b); Criminal Code (NT), s 43BB. R v Oblach (2005) 195 FLR 212. S Odgers, Principles of Federal Criminal Law (3rd ed, Sydney: Thomson Reuters, 2015) pp 133–136. Criminal Code (Qld), s 31(1)(d). Criminal Code (Tas), s 20(1). Criminal Code (WA), s 32(2)(a)(iii), Quartermaine v Western Australia (2008) 180 A Crim R 501. [6.85]

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have been “the only reasonable way that the threatened harm [could] be avoided”. 166 In R v Palazoff, Cox J described the person of ordinary firmness of mind as having “the same age and sex and background and other personal characteristics (except perhaps strength of mind) as [the accused]”. 167 It is unclear whether imbuing the ordinary person with the characteristics of the accused is still good law, given that the High Court in R v Stingel 168 held that only age is relevant in determining the standard of mental courage to be expected of the ordinary person. It could be argued, however, that Stingel relates only to the defence of provocation and may be distinguished from the defence of duress. It is also unclear as to whether or not the degree of chance of an ordinary person yielding to the threat is one of possibility 169 or probability. 170 In Lanciana, the Victorian Court of Appeal stated that the standard charge in relation to duress should instruct the jury to consider whether a person of ordinary firmness of disposition “could or might have been compelled” by the threats to commit the criminal act. 171 In R v Runjanjic and Kontinnen, 172 the Supreme Court of South Australia held that evidence of “battered woman syndrome” may be relevant, first, to the question of whether or not a woman of ordinary firmness of mind would have been likely to yield to the threat in the way the accused did, and, secondly, to the question as to why such a woman would not choose to escape the situation rather than participate in criminal activity. (For an explanation of “battered woman syndrome” and evidence of family violence which can be taken into account in Victoria, see [6.65] “Intimate partner violence and self-defence”.) Continuing and imminent threats [6.90] The threats made to the accused must be continuing in the sense that they are effective

in acting upon the accused’s mind at the time the criminal conduct occurred. At the Commonwealth level and in the Australian Capital Territory, the Northern Territory, Queensland, Western Australia and Victoria, the threatener need not be physically present when the criminal conduct was carried out. 173 This is also the situation at common law. 174 However, in Tasmania, the threatener must be actually present at the time the offence is committed. 175 At common law, the threat of grievous bodily harm or death must generally be of an imminent nature in the sense that it will be carried out there and then, or within a short time thereafter. 176 This also appears to be the situation by implication at the Commonwealth 166 167 168 169 170 171 172 173 174

175 176

Crimes Act 1958 (Vic), s 322O(2)(a)(ii). R v Palazoff (1986) 43 SASR 99 at 109. See also R v Abusafiah (1991) 24 NSWLR 531; R v Oblach (2005) 195 FLR 212. (1990) 171 CLR 312. The expression “might have yielded” is used in: R v Palazoff (1986) 43 SASR 99 at 108 per Cox J; R v Brown (1986) 43 SASR 33 at 39 per King CJ; R v Runjanjic (1991) 56 SASR 114 at 123 per Legoe J. The expression “would have yielded” is used in R v Abusafiah (1991) 24 NSWLR 531 at 545 per Hunt J; R v Dawson [1978] VR 536 at 537; R v Hurley [1967] VR 526 at 543. Lanciana (1996) 84 A Crim R 268 at 268. (1991) 56 SASR 114. Applied in Artugrul v The Queen (2012) 247 CLR 170 at 200. Criminal Code (Cth), s 10.2(2); Criminal Code (ACT), s 40(2); Criminal Code (NT), ss 40, 43BB(2); Criminal Code (Qld), s 31(1)(d); Criminal Code (WA), s 32(2); Crimes Act 1958 (Vic), s 322O(2). R v Hurley and Murray [1967] VR 526 at 543 per Smith J; R v Hudson [1971] 2 QB 202 at 206 per the Court; R v Brown (1986) 43 SASR 33; Emery (1978) 18 A Crim R 49 at 57; Goddard v Osborne (1978) 18 SASR 481 at 490; R v Williamson [1972] 2 NSWLR 281; R v Valderrama-Vega [1985] Crim LR 220. Criminal Code (Tas), s 20; Clark [1980] 2 A Crim R 90. R v Hudson and Taylor [1971] 2 QB 202; R v Williamson [1972] 2 NSWLR 281; R v Dawson [1978] VR 536; R v Brown (1986) 43 SASR 33.

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level and in the Australian Capital Territory, the Northern Territory, Queensland, Western Australia and Victoria. 177 The Tasmanian provision uses the term “immediate” rather than “imminent”. 178 This requirement of immediacy was referred to by Stanley J in R v Pickard: “In my opinion the word ‘immediate’ qualifies the words ‘death’ or ‘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.” 179

The main question here in all jurisdictions is whether or not the threatened harm is too remote from the commission of the criminal conduct. In R v Hudson, the English Court of Appeal explained this as follows: “It is essential to the defence … that the threat shall be effective at the moment when the crime is committed. The threat must be a ‘present’ threat in the sense that it is effective to neutralise the will of the accused at that time … a threat of future violence may be so remote as to be insufficient to overpower the will at that moment when the offence was committed …” 180

When, however, there is no opportunity for delaying tactics, and the person threatened must make up his or her mind whether he or she is to commit the criminal act or not, the existence at that moment of threats sufficient to destroy his or her will ought to provide him or her with a defence, even though the threatened injury may not follow instantly, but after an interval. Reasonable apprehension that the threat would be carried out [6.95] Threats may often be factually demonstrable, but occasionally the matter will depend

upon a belief by the accused. In such a case, the common law requires that the accused believed on reasonable grounds that the threat would be carried out. 181 Lord Lane CJ in R v Graham put the question to be asked as follows: “Was the defendant, or may he have been, impelled to act as he did because as a result of what he reasonably believed [the threatener] had said or done, he had good cause to fear that if he did not so act [the threatener] would kill him?” 182

In the Northern Territory and Tasmania, the accused’s belief that the threat would be carried out is tested subjectively in that it need not be based on reasonable grounds: Criminal Code (NT), s 40(1)(b); Criminal Code (Tas), s 20. In Queensland, there is no reference to a belief that the threat would be carried out. Rather, the belief pertains to being otherwise unable to escape the carrying out of the threats, provided that this belief is reasonable. 183 At the Commonwealth level and in the Australian Capital Territory, the Northern Territory (in relation to certain offences), Victoria and Western Australia, the accused must have reasonably believed that the threat would be carried out, that there was no reasonable way to make the threat ineffective, and that the conduct was a reasonable response to the threat. 184 Although 177 178 179 180 181

182 183 184

Criminal Code (Cth), s 10.2(2); Criminal Code (ACT), s 40(2); Criminal Code (NT), s 40, s 43BB(2); Criminal Code (Qld), s 31(1)(d); Criminal Code (WA), s 32(2); Crimes Act 1958 (Vic), s 322O(2). Criminal Code (Tas), s 20(1). R v Pickard [1959] Qd R 475 at 476. R v Hudson [1971] 2 QB 202 at 206–207. R v Graham [1982] 1 WLR 294; [1982] 1 All ER 801; (1981) 74 Cr App R 235 at 300 (WLR) per Lord Lane CJ; R v Hurley and Murray [1967] VR 526 at 543 per Smith J. See also S Yeo, “The Threat Element in Duress” (1987) 11 Criminal Law Journal 165 at 176. R v Graham [1982] 1 WLR 294 at 300. Criminal Code (Qld), s 31(d)(ii). Criminal Code (Cth), s 10.2(2); Criminal Code (ACT), s 40(2); Criminal Code (NT), s 43BB(2); Crimes Act 1958 (Vic), s 322O(2); Criminal Code (WA), s 32(2). [6.95]

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there are no Australian cases directly on this point, it would seem that an honest and reasonable but mistaken belief may form the basis for a defence of duress. 185

The Nexus Between the Threat and the Commission of the Crime [6.100] The threat must have compelled the accused to commit the criminal conduct. 186 The

defence will not be made out in the situation where the accused independently decided to commit the offence. In R v Dawson, 187 the Victorian Supreme Court appears to have taken a restrictive approach in holding that the offence committed must have been ordered specifically by the threatener. This seems to be an unnecessary restriction. The focus is on whether or not the accused believed that unless he or she committed the crime, the threat would be carried out. The focus of the defence is not on whether or not the threatener happened to direct the accused to commit a specific offence.

Prior Fault and Duress [6.105] In New South Wales and South Australia at common law, the defence of duress is not

available to an accused who voluntarily enters a situation where duress may be predicted. 188 The situation usually envisaged here is that in which the accused joins a criminal association, the members of which subsequently threaten him or her in order to make him or her commit a crime. 189 The question here will be whether or not the accused knew that at the time of joining the association, that there was a risk of duress arising. This will be a matter of fact for the jury to decide. 190 In all other jurisdictions, there are statutory provisions stating that the defence is not available to a person who voluntarily became a party to a criminal or unlawful association. 191

Prevention of the Execution of the Threat [6.110] In all jurisdictions, there is a legal duty on the accused to escape from the person making threats should a reasonable opportunity to do so present itself. 192 185 186

187 188 189 190 191

192

372

R v Graham [1982] 1 WLR 294 at 300. R v Hurley and Murray [1967] VR 526 at 543 per Smith J; R v Abusafiah (1991) 24 NSWLR 531 at 535 per Hunt J; R v Brown (1986) 43 SASR 33 at 57; Nguyen v The Queen (2008) 181 A Crim R 72; Criminal Code (Cth), s 10.2; Criminal Code (ACT), s 40; Criminal Code (NT), ss 40, 43BB; Criminal Code (Qld), s 31(1)(d); Criminal Code (Tas), s 20; Crimes Act 1958 (Vic), s 322O; Criminal Code (WA), s 32. [1978] VR 536. R v Hurley and Murray [1967] VR 526 at 543 per Smith J. R v Sharp [1987] QB 853; R v Galderwood and Moore [1986] 2 WLR 294; R v Burke [1986] Crim LR 331. R v Shepherd (1987) 86 Cr App R 47. Criminal Code (Cth), s 10.2(3); Criminal Code (ACT), s 40(3); Criminal Code (NT), s 40(2), s 43BB(3); Criminal Code (Qld), s 31(2); Criminal Code (Tas), s 20(1); Crimes Act 1958 (Vic), s 322O(3); Criminal Code (WA), s 32(3). R v Abusafiah (1991) 24 NSWLR 531; R v Palazoff (1986) 43 SASR 99 at 106; R v Brown (1986) 43 SASR 33; R v Lawrence [1980] 1 NSWLR 122; R v Dawson [1978] VR 536 at 537; Goddard v Osborne (1978) 18 SASR 481 at 491; R v Williamson [1972] 2 NSWLR 281 at 285–286; R v Hudson [1971] 2 QB 202; Criminal Code (Cth), s 10.2(2)(b); Criminal Code (ACT), s 40(2)(b) and Criminal Code (NT), s 43BB(2)(b) (belief there is no reasonable way that the threat can be rendered ineffective); Criminal Code (NT), s 40(1)(b) (belief that there was no other way to ensure that the threat was not executed); Criminal Code (Qld), s 31(1)(d)(ii) (belief that unable otherwise to escape the carrying out of the threat); Criminal Code (Tas), s 20(1) (belief that the threat will be executed); Crimes Act 1958 (Vic), s 322O(2)(a)(ii) (belief that carrying out the conduct is the only reasonable way that the threatened harm can be avoided); Criminal Code (WA), s 32(2)(a)(iii) (belief that doing the act or omission is necessary to prevent the threat from being carried out). [6.100]

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At common law and in the Northern Territory (in relation to certain offences), there is also an expectation that the accused report the threat to a police officer. 193 However, the defence may be made out where the accused could have sought police protection but failed to do so because he or she thought that it would not be effective. 194 Evidence of “battered woman syndrome” has been accepted to explain why an accused did not escape the situation by seeking police protection. 195

Burden of Proof [6.115] The accused bears the evidential burden in relation to raising duress, while the prosecution has the legal burden of establishing that the accused did not act under duress. The meaning of these burdens of proof are explored in Chapter 2, [2.175]. In R v Smyth, Sholl J explained this as follows: “[O]nce evidence is given on which a jury may hold that duress in the necessary sense was exercised, or once evidence is given that raises a reasonable doubt whether duress in that sense was exercised against the accused, the onus is on the Crown to rebut that evidence because (subject to the special rule as to insanity) the onus is always on the Crown in the ultimate result to prove that the criminal act alleged against the accused person was the free and voluntary act of a responsible individual.” 196

In R v Abusafiah, 197 Hunt J set out a model direction for the use by New South Wales courts in relation to the burden of proof. According to Hunt J, the jury should be directed that the legal burden is on the prosecution to eliminate any reasonable possibility that the accused acted under duress. 198 In order to do this, the prosecution must establish either: • when the accused performed the criminal conduct, that there was no reasonable possibility that he or she did so by reason of a threat that death or grievous bodily harm would be inflicted; or • that there was no reasonable possibility that a person of ordinary firmness of mind would have yielded to the threat in the way in which the accused did. The burden of proof (and the allocation of the evidential and legal burdens) under s 10.2(2) of the Criminal Code (Cth) follows the common law position. 199 In Lanciana, the Victorian Court of Criminal Appeal generally approved of the direction in Abusafiah, but were of the opinion that the words “could” or “might” should be substituted for the word “would” in the latter direction above. 200 In Zaharias, Winneke P of the Victorian Court of Criminal Appeal remarked that the differences in wording “are more apparent than

193 194

195 196 197 198 199

200

Criminal Code (NT), s 40(1)(d). R v Brown (1986) 43 SASR 33 at 40 per King CJ; R v Dawson [1978] VR 536 at 539; Goddard v Osborne (1978) 18 SASR 481 at 491; R v Hudson [1971] 2 QB 202 at 207; Criminal Code (NT), s 40(1)(d) (duress available where the nature of the threat was such that an ordinary person similarly circumstanced would not have reported that threat). R v Runjanjic and Kontinnen (1991) 56 SASR 114 at 120 per King CJ. R v Smyth [1963] VR 737 at 738. (1991) 24 NSWLR 531. R v Abusafiah (1991) 24 NSWLR 531 at 544–545. See S Odgers, Principles of Federal Criminal Law (3rd ed, Sydney: Thomson Reuters, 2015) p 138, setting out the nine elements of the defence of duress, at least one of which the prosecution must disprove to rebut the defence. Lanciana (1996) 84 A Crim R 268 at 272 per Callaway JA with whom Phillips CJ and Southwell AJA concurred. [6.115]

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real in the context of the directions that the judge is required to give”. 201 In Lanciana, the court held that duress could be referred to as a “defence” as long as the true incidence of the burden of proof was made clear. 202

MARITAL COERCION [6.120] At common law, there was a presumption that certain offences committed by a

married woman in the presence of her husband were committed under his coercion. This presumption has been abolished in most Australian jurisdictions. 203 Section 20(2) of the Criminal Code (Tas) also abolished the defence of marital coercion. In South Australia and Victoria, it is nevertheless still open for a married woman to be acquitted of certain offences on the basis that she was coerced by her husband to commit the offence. 204 In both the Australian Capital Territory and New South Wales, while the common law presumption was abolished, the Crimes Act 1900 (ACT) and the Crimes Act 1900 (NSW) are silent as to the abolition of the common law defence of marital coercion and, therefore, it may still survive. There is no mention of the defence, however, in the current versions of the Criminal Code (NT) and Criminal Code (WA). This implies that the parliaments of the Northern Territory and Western Australia intended only the defence of duress to apply in those jurisdictions. The existence of a defence of marital coercion has been justified on the basis that wives may be particularly vulnerable to pressure from their husbands to commit crimes. The Victoria Law Reform Commissioner has stated: “Where a wife, as is still commonly the case, has to look to her husband for support and shelter, and especially when she has young children to care for, the pressure upon her of insistent demands, and of threats of abandonment, may in many cases be just as difficult for her to resist as threats of physical violence sufficient to found a defence of duress. Moreover, the duty and habit of loyalty and co-operation which arise from the special relationship of husband and wife will commonly make it more difficult for a wife to resist pressure from her husband than from a stranger.” 205

The abolition of the defence of marital coercion is occasionally called for on the basis that it unduly favours women over men and its underlying premise subjugates women under the will of men. 206 David Ormerod has referred to the defence as “a relic of the past which ought to have been abolished long ago”. 207 Sometimes when there are calls for the defence’s abolition, it is recommended that the defence of duress be broadened at the same time. 208 The rare use of the defence of marital coercion has supported calls for its abolition. 209 These arguments were considered by the Victorian Law Reform Commission, but abolition was rejected in favour of 201 202 203

204 205 206 207 208

209

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Zaharias (2001) 122 A Crim R 586 at 588. Lanciana (1996) 84 A Crim R 268 at 270 per Callaway JA. Crimes Act 1900 (ACT), s 289 (repealed); Criminal Law and Procedure Ordinance 1933 (NT) (repealed), s 55(2); Crimes Act 1900 (NSW), Sch 3, s 4; Criminal Code (Qld), s 32 (repealed); Criminal Law Consolidation Act 1935 (SA), s 328A; Criminal Code (Tas), s 20(2); Crimes Act 1958 (Vic), s 336(1); Criminal Code (WA), s 32 (replaced). Criminal Law Consolidation Act 1935 (SA), s 328A; Crimes Act 1958 (Vic), s 336. Victoria Law Reform Commissioner, Criminal Liability of Married Persons, Report No 3 (1975) [16]. Criminal Law Officers Committee, Principles of Criminal Responsibility and Other Matters, Interim Report (1990) [12.12]. D Ormerod, Smith and Hogan Criminal Law (12th ed, Oxford: Oxford University Press, 2008) p 356. Victoria Law Reform Commissioner, Duress, Necessity and Coercion, Report No 9 (1980) [5.03]; Criminal Law Officers Committee, Principles of Criminal Responsibility and Other Matters, Interim Report (1990) [12.21] and [12.38]. JC Smith, Smith and Hogan’s Criminal Law (10th ed, London: Butterworth LexisNexis, 2002) p 266; Law Commission of England and Wales, Defences of General Application, Working Paper No 55 (1974) [63]. [6.120]

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legislative changes to the Crimes Act 1958 (Vic). 210 The Victorian sections on marital coercion were duly introduced in 1977 by the Crimes (Married Person’s Liability) Act 1977 (Vic) and are now the most detailed in Australia. It is significant that the Criminal Code (Cth) does not include a defence of marital coercion. It would seem that if the defence of duress is broadened, as the Criminal Law Officers Committee suggested, 211 then there is no reason to retain the gender-specific defence of marital coercion. The defences of duress and marital coercion at present overlap in that a woman who commits a crime because of threats from her husband would be able to use either defence. Marital coercion is not a defence in substitution for the defence of duress. 212 However, the defence of marital coercion is broader than that of duress because the latter, in most jurisdictions, is confined to threats of death or grievous bodily harm, whereas coercion is defined more broadly.

Scope of the Defence [6.125] Section 336(2) of the Crimes Act 1958 (Vic) states: Where a woman is charged with an offence other than treason or murder, that woman shall have a complete defence to such charge if her action or inaction (as the case may be) was due to coercion by a man to whom she was then married.

This section places three limitations on the scope of the defence. It is unavailable where: • the charge is one of murder or treason; • there was no coercion or the coercion was not linked to the criminal conduct; or • the threatener was not the husband of the accused. “Coercion” is defined as pressure, whether in the form of threats or any other form. 213 The legislative provisions in the other jurisdictions are similar in context, although slight variations do occur and these will be explored in the following sections. As with the general defence of duress, the defence of marital coercion is not available on a charge of treason or murder. 214 The rationale for this is that public policy requires that human life must be preserved and the purpose of the criminal law is to set a standard of conduct with which ordinary people must comply: see [6.70]. The defence is only available to a lawfully married woman. 215 It is unavailable to a woman in a de facto marriage, a polygamous marriage or where the woman mistakenly believed she was legally married. 216 The Victoria Law Reform Commissioner, when considering the defence of marital coercion, received a submission that the defence be available for women living in de facto relationships. This was rejected on the ground that “the State does not have the same concern to preserve the stability of ‘de facto’ relationships as it has to preserve the stability of marriages”. 217 It could 210 211 212 213 214 215 216 217

Victoria Law Reform Commissioner, Criminal Liability of Married Persons, Report No 3 (1975). Criminal Law Officers Committee, Principles of Criminal Responsibility and Other Matters, Interim Report (1990). DPP (Northern Ireland) v Lynch [1975] AC 653 at 684 per Lord Wilberforce, at 713 per Lord Edmund-Davies. Crimes Act 1958 (Vic), s 336(3). Criminal Law Consolidation Act 1935 (SA), s 328A; Crimes Act 1958 (Vic), s 336(2). Brennan v Bass (1984) 35 SASR 311; R v Court (1912) 7 Cr App R 127 at 129; R v Ditta [1988] Crim LR 42; Criminal Law Consolidation Act 1935 (SA), s 328A; Crimes Act 1958 (Vic), s 336. Brennan v Bass (1984) 35 SASR 311; R v Ditta [1988] Crim LR 42. Victoria Law Reform Commissioner, Criminal Liability of Married Persons, Report No 3 (1975) [83]. [6.125]

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be argued that this reliance on the sanctity of heterosexual union is outdated, given the rise in de facto cohabitation, same-sex relationships and greater societal acceptance of the fact. Stanley Yeo argues: “It is highly contentious to confine the defence to legal marriages. Surely, a female partner of a de facto relationship would suffer just as much coercion as a legally married wife. The factors which create the possibility of coercion, namely, intimacy and gendered power imbalance, are found as much in de facto relationships as amongst legally married couples.” 218

In Victoria, there is no requirement in the legislation that the husband be present at the time in which the accused commits the offence. In South Australia, the husband’s presence is required, but this has been interpreted as the husband being close enough to influence the accused into doing what he wanted done. 219 In Goddard v Osborne, the Supreme Court of South Australia held that a woman’s failure to report her husband’s threats to the police would not preclude reliance on the defence of marital coercion. There is no legislative requirement in any of the jurisdictions that police protection first be sought.

Meaning of “Coercion” [6.130] Section 336(3) of the Crimes Act 1958 (Vic) defines “coercion” as follows: For the purposes of this section, “coercion” means pressure, whether in the form of threats or in any other form, sufficient to cause a woman of ordinary good character and normal firmness of mind, placed in the circumstances in which the woman was placed, to conduct herself in the manner charged.

This definition of “coercion” is broader than the requirements for threats in the defence of duress. The term “pressure” is used, which is a broader term than “threats” alone. It may, for example, encompass economic or moral pressure. 220 This could, for example, include claims that the husband would leave the accused and force her to bring up her children on her own or that he will cut off her access to income. For the defence of duress to be made out, the threat has to be one of death or grievous bodily harm. There is no such limitation in s 336(3). The South Australian provision does not specify the types of coercion that will form the basis for the defence. At common law, marital coercion has been interpreted broadly to include the application of moral pressure and threats of desertion. 221 In Victoria, the definition of “coercion” contains an objective element in that the gravity of the pressure will be measured according to its effect on a “woman of ordinary good character”. This requirement is not relevant in South Australia or at common law. In the common law defence of duress, the objective component centres solely upon the concept of a person of ordinary firmness of mind. The addition of the requirement in Victoria that the woman be of good character appears to inject a moral component into the defence of marital coercion. This has been criticised on the basis that the assumption underlying it—that a woman of bad character would be less hesitant in committing crimes than one of good character—is fallacious. 222 The other aspect to this objective element in Victoria is that the “woman of ordinary good character” must be placed in the position in which the accused was placed. Section 336(4) of the Crimes Act 1958 (Vic) is relevant here: 218 219 220 221 222

S Yeo, “Coercing Wives into Crime” (1992) 6 Australian Journal of Family Law 214 at 224. Goddard v Osborne (1978) 18 SASR 481 at 493. R v Richman [1982] Crim LR 507. “R v Pierce” (1941) 5 Journal of Criminal Law 124; R v White, The Times, 16 February 1974. S Yeo, “Coercing Wives into Crime” (1992) 6 Australian Journal of Family Law 214 at 222.

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Without limiting the generality of the expression “the circumstances in which the woman was placed” in sub-section (3), such circumstances shall include the degree of dependence, whether economic or otherwise, of the woman on her husband.

Taking into account the circumstances in which the accused was placed provides a balance between having a purely objective component and a purely subjective one. In all relevant jurisdictions, there must be a link between the pressure and the accused’s commission of the crime. 223 The defence will fail if the accused acted independently of the pressure placed upon her. 224

Burden of Proof [6.135] As with the majority of defences, in Victoria and at common law, the accused bears

the evidential burden in relation to the defence of marital coercion. Section 336(5) of the Crimes Act 1958 (Vic) states: The accused shall bear the burden of adducing evidence that she conducted herself in the manner charged because she was coerced by her husband, but if such evidence has been adduced, the prosecution shall bear the burden of proving that the action or inaction charged was not due to coercion by the husband.

This means that, as in the defence of duress, the accused bears the evidential burden in relation to raising coercion, while the prosecution has the legal burden of establishing that the accused did not act under coercion. The jury direction set out by Hunt J in R v Abusafiah 225 may be helpful here: see [6.115]. Taking into account what the Victorian Court of Appeal said about this direction in Lanciana, 226 the prosecution will need to prove beyond reasonable doubt that: • when the accused performed the criminal conduct, there was no reasonable possibility that she did so by reason of some form of pressure; or • there was no reasonable possibility that a woman of ordinary good character and normal firmness of mind would have yielded to the pressure in the way in which the accused did. However, s 328A of the Criminal Law Consolidation Act 1935 (SA) states that it is a defence “to prove that the offence was committed in the presence, and under the coercion, of the husband”. This implies that the accused bears the legal burden, rather than just the evidential burden, to establish the defence on the balance of probabilities. In Goddard v Osborne, the Supreme Court of South Australia stated that the effect of s 328A was “to remove the onus of disproving marital coercion from the shoulders of the Crown and to transfer it to those of the acccused”. 227 Why the legal burden should be on the accused in South Australia in relation to marital coercion appears to be an inexplicable anomaly, particularly since duress is not treated in the same way in that State.

NECESSITY [6.140] The defence of necessity involves a claim by the accused that he or she was compelled

to do what he or she did by reason of some extraordinary emergency. The concepts of justification and excuse have been used as rationales for the defence. The accused’s behaviour in a situation of necessity is sometimes described as justified because it is recognised that the 223 224 225 226 227

Criminal Law Consolidation Act 1935 (SA), s 328A; Crimes Act 1958 (Vic), s 336(2). R v Cohen (1868) 11 Cox CC 99; R v Torpey (1871) 12 Cox CC 45. (1991) 24 NSWLR 531. (1996) 84 A Crim R 268. Goddard v Osborne (1978) 18 SASR 481 at 495. [6.140]

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law can, on occasion, be broken to avoid a greater harm than would occur by obeying it. This is sometimes referred to as the “greater good” principle. For example, Mouse’s case 228 concerned an action for trespass for throwing the plaintiff’s goods overboard from a barge. It was held that not only the crew but also other passengers could do this in order to lighten the barge and prevent it capsizing in a storm. The rationale for this decision was that throwing the goods overboard was a lesser harm than the potential loss of lives. The accused’s behaviour in a situation of necessity is also said to be excused because of the situation of emergency confronting him or her. 229 Obedience to the law would impose an intolerable burden on the accused in such a situation. The Supreme Court of Canada in Perka v The Queen described the latter principle as follows: “Necessity rests on a realistic assessment of human weakness, recognizing that a liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impelled disobedience. The defence must, however, be strictly controlled and scrupulously limited to situations that correspond to its underlying rationale. That rationale is that it is inappropriate to punish acts which are normatively involuntary.” 230

As with the defence of duress, the defence of necessity is available where all the elements of the crime have been made out and the accused’s ability to choose is affected by the emergency situation. As with duress also, the accused’s ability to will the act remains unaffected—it is the accused’s ability to choose between the lesser of two evils which is affected. 231 In Perka v The Queen, the Supreme Court of Canada referred to this as “normative involuntariness”, but this terminology may be confusing as necessity does not render the accused’s actions involuntary in the usual legal sense. The common law governs the defence in New South Wales and South Australia. Interestingly, the common law also appears to apply in Tasmania. The Criminal Code (Tas) is silent as to the defence and, pursuant to s 8, it appears that the common law is applicable. The main two Australian cases on necessity are that of R v Davidson and R v Loughnan. 232 In the former case, the accused was charged with unlawfully using an instrument to procure a miscarriage. Menhennit J stated that the defence of necessity was applicable in determining whether or not a therapeutic abortion was lawful or unlawful within the meaning of the statutory offence. Menhennit J ruled that, for the defence to be made out, the accused must have believed on reasonable grounds that his actions were necessary to preserve the woman from serious danger to her life or her physical or mental health, and that they were not out of proportion to the danger to be averted. In Loughnan’s case, the accused was charged with escaping from prison. He raised the issue of necessity, claiming that he had committed the offence to avoid being killed by his fellow prisoners. The Victorian Full Court, comprising Young CJ, King and Crockett JJ, were prepared to recognise a defence of necessity, but held that it had not been made out on the facts. The common law of necessity has given ground in Australia to the statutory defence of sudden or extraordinary emergency. The defence, first included in the late 19th century Code drafted by Sir Samuel Griffith, has been adopted by the Commonwealth, the Australian Capital Territory, the Northern Territory, Queensland, Victoria and Western Australia. 233 228 229 230 231 232 233

(1608) 77 ER 1341. Moore v Hussey (1609) Hob 93; 80 ER 243; R v Loughnan [1981] VR 443. Perka v The Queen (1985) 14 CCC (3d) 385 at 386. R v Loughnan [1981] VR 443 at 448. R v Davidson [1969] VR 667; R v Loughnan [1981] VR 443. Criminal Code (Cth), s 10.3; Criminal Code (ACT), s 41; Criminal Code (NT), ss 33, 43BC; Criminal Code (Qld), s 25; Crimes Act 1958 (Vic), s 322R; Criminal Code (WA), s 25.

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This substantially covers the ground of the common law defence, although it diverges in respect of some of the key elements discussed below.

Scope of the Defence [6.145] Traditionally at common law, the defence of necessity was available to all offences

except murder. 234 By contrast, the statutory defence of sudden or extraordinary emergency that is available at the Commonwealth level and in the Australian Capital Territory, the Northern Territory, Queensland, Victoria and Western Australia, is not limited in this way. The “Perspectives” section at [6.155] also suggests that there may be some freeing up of the traditional common law approach. The rationale for why necessity is not available at common law to a charge of murder can be found in the 19th century case of R v Dudley and Stephens. 235 After the yacht, The Mignonette, which was sailing from England to Australia, 236 foundered, Thomas Dudley, Edward Stephens, a man referred to only as Brooks in the report, and a 17-year-old boy, Richard Parker, were cast adrift in an open boat, 1,600 miles from the Cape of Good Hope. On the 20th day, after nine days without food and seven without water, Dudley and Stephens agreed to kill Parker, who was the weakest of the four, and eat his flesh. Brooks refused to take part in the killing. Dudley then killed Parker and the three men survived by eating Parker’s flesh. When they were subsequently rescued, Dudley and Stephens admitted what had happened and were charged with murder. The jurors declined to give their view as to whether the facts amounted to murder and asked for the advice of the Court of Queen’s Bench. Lord Coleridge CJ, in delivering the judgment of the court, held that the accused were guilty of murder and sentenced them to death. This mandatory penalty was later commuted by the Executive to six months’ imprisonment.

Alexander Pearce—The cannibal from Van Diemen’s Land [6.150] For a detailed account of the case of Dudley and Stephens, 237 see AWB Simpson’s Cannibalism and the Common Law. 238 In this book, Brian Simpson explores the clash between the customs of the sea, which traditionally accepted cannibalism as a measure of last resort for shipwrecked sailors, and the common law, which sought to label such practices as uncivilised acts of murder. In 1822, Pearce and seven other convicts escaped from a prison settlement on the west coast of Tasmania. Pearce was the sole survivor of their nine-week escape. Two convicts died from exhaustion. The others were killed one by one with an axe to feed those remaining. When it was down to two survivors, Pearce was the one who kept awake long enough to grab the axe and kill Robert Greenhill after eight days of playing cat and mouse with each other. Pearce was recaptured and had some trouble persuading the authorities that his story of cannibalism was a true one. After he was returned to the prison settlement, Pearce escaped again, this time with a young man, Thomas Cox, whom he killed in a rage on finding out that Cox could not swim and was going to be a hindrance to him. When Pearce surrendered 11 days later, he was found with human flesh in his pocket. He was convicted of the murder of Cox and hanged on 19 July 1824. Pearce had no defence counsel and no defence of necessity was raised. In fact, there is no record that Pearce said anything on his own behalf. A song about Pearce’s exploits, “A Tale They Won’t Believe” has been recorded by the group Weddings, Parties, Anything. For those with strong stomachs, Paul 234 235 236 237 238

R v Dudley and Stephens (1884) 14 QBD 273; R v Howe [1987] AC 417. (1884) 14 QBD 273. Clifford Pannam recounts how the yacht had in fact been purchased by a Sydney barrister, John Henry Want and it was en route to Sydney in C Pannam, “Murder at Sea” (2015) 157 Victorian Bar News 64. (1884) 14 QBD 273. AWB Simpson, Cannabilism and the Common Law (Chicago: The University of Chicago Press, 1984). [6.150]

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Collins has written an entertaining account of Australia’s cannibal, Alexander Pearce. 239 There are also several recent movies on this topic, one called “Dying Breed” (released in 2008) which depicts fictional descendants of Pearce, and another called “Van Diemen’s Land” which was released in 2009.

In R v Dudley and Stephens, Lord Coleridge CJ outlined why the defence of necessity was not available to a charge of murder: “To preserve one’s life is generally speaking a duty, but it may be the plainest and the highest duty to sacrifice it. War is full of instances in which it is a man’s duty not to live, but to die … It is not correct, therefore, to say that there is any absolute or unqualified necessity to preserve one’s life … It is not needful to point out the awful danger of the principle which has been contended for. Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect, or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him deliberately taking another’s life to save his own … it is quite plain that such a principle once admitted might be made the legal cloak for unbridled passion and atrocious crime.” 240

This rationale for rejecting necessity as a defence for murder also underlies the House of Lords decision in R v Howe 241 that rejected duress as a defence to murder, either by a principal in the first or second degree. The Model Criminal Code Officers Committee (MCCOC) followed the approach of the Code jurisdictions rather than the common law in formulating a defence of sudden or extraordinary emergency that is available in relation to all offences. 242 As with duress, having an objective element to the defence (which subjects the necessity of the situation and the response to it to an objective test) appears to assuage the fear that the defence might become a “legal cloak for unbridled passion and atrocious crime”. The scope of the defence of necessity is also restricted at common law in that it may be denied to an accused who has created the situation of emergency himself or herself. The Supreme Court of Canada has held that necessity may also fail if the accused contemplated, or ought to have contemplated, that his or her conduct bore the risk of giving rise to the emergency. 243 The Court also held (at 386) that no other alternatives must be open to the accused. There are no such explicit restrictions placed on the defence in Australia at the Commonwealth level and in the Australian Capital Territory, the Northern Territory, Queensland, Victoria or Western Australia. Specific legal rules have been devised to cover the defence of necessity in medical emergency cases. 244 This defence will be examined at [6.180].

239 240 241 242 243 244

P Collins, Hell’s Gates (South Yarra: Hardie Grant Books, 2002). R v Dudley and Stephens (1884) 14 QBD 273 at 287–288. [1987] AC 417. Model Criminal Code Officers Committee, Chapter 2—General Principles of Criminal Responsibility, Final Report (1992), p 67; Criminal Code (Cth), s 10.3. Perka v The Queen (1985) 14 CCC (3d) 385 at 403 per Dickson J. R v Davidson [1969] VR 667; R v Wald (1971) 3 DCR (NSW) 25; K v Minister for Youth and Community Services [1982] 1 NSWLR 311; Re F (mental patient: sterilisation) [1990] 2 AC 1; R v Bourne [1939] 1 KB 687; Criminal Code (Qld), s 282; Criminal Code (Tas), ss 51, 149; Criminal Code (WA), s 259.

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Perspectives Necessity as an Excuse to Homicide [6.155] On 8 August 2000, “conjoined” twins, Jodie and Mary, were born on the Maltese

island of Gozo. They were joined at the pelvic bones and shared a single bladder, anus and vagina. They had a separate brain, heart, limbs and most vital organs. The parents travelled to England to get expert advice as to what could be done, if anything, to separate the twins. The parents were told that the twins could be separated, but the operation would kill the weaker twin, Mary, because her heart and lungs were too deficient to oxygenate and pump blood throughout her body. However, if there was no operation, both Jodie and Mary would die within three to six months because Jodie’s heart would fail under the strain of having to circulate life-sustaining oxygenated blood to Mary and herself. The parents were devout Roman Catholics and decided not to consent to the operation, but to leave the matter in God’s hands. The hospital in which the twins were being cared for went to the High Court of Justice in England seeking a declaration that the operation could be performed. Johnson J granted this. The parents then appealed to the English Court of Appeal. Separate legal representation was provided for the twins and the court allowed the Roman Catholic Archbishop of Westminster and the Pro-Life Alliance to make written submissions. The three judges dismissed the parents’ appeal and allowed the operation to proceed. Although leave to appeal to the House of Lords was granted, the parents elected to take the matter no further. As a result of the operation, Mary quickly died and Jodie survived, her recovery amazing the surgeons. The three judges of the Court of Appeal gave separate reasons for their decision. Lord Ward held that the killing of Mary was justified as it was akin to a form of “legitimate self-defence [by] the doctors coming to Jodie’s defence and removing the threat of fatal harm to her presented by Mary’s draining her life-blood”. 245 He also referred to family law principles as dictating that the parents or judge must make the best overall decision for the two babies. Given that Mary was “designated for death” and that the operation was likely to be successful in giving Jodie an ordinary lifespan, allowing the operation was the best decision overall. Lord Walker emphasised that the operation was in the “best interests” of each of the twins. He held that Mary’s death would not be the purpose of the operation, but that she would die because her body on its own was not and never had been viable. Lord Brooke, in comparison, relied on the “doctrine of necessity”, despite being faced with the dilemma that the House of Lords held in R v Dudley and Stephens 246 that necessity was unavailable to a charge of homicide. Lord Brooke distinguished the facts of Dudley and Stephens from those before him. He stated that the House of Lords in Dudley and Stephens did not have in mind “a situation in which a court was invited to sanction a defence (or justification) of necessity on facts comparable to those with which we are confronted in the present case”. 247 245 246 247

In Re A (children) (conjoined twins: surgical separation) [2001] 2 WLR 480 at 536. (1884) 14 QBD 273. In Re A (children) (conjoined twins: surgical separation) [2001] 2 WLR 480 at 558. [6.155]

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A similar fact situation to that of Re A occurred in Queensland v Alyssa Nolan (an infant). 248 The facts were that, without an operation to separate conjoined twins, Bethany and Alyssa Nolan, both would die, but if the operation proceeded, there was a good chance that Alyssa would survive. Chesterman J referred to the defence of sudden and extraordinary emergency set out in s 25, in conjunction with s 282, of the Criminal Code (Qld) as justifying the surgical separation of the conjoined twins. Chesterman J stated: “[Section] 282 abnegates criminal responsibility for a surgeon who performs an operation in good faith and with reasonable care if it is for the patient’s benefit and if the operation is reasonable having regard to all the circumstances of the case. The language is wide enough to encompass the relevant facts here.” 249

Chesterman J found that the stronger twin, Alyssa, was to be regarded as the patient for the purposes of s 282, as Bethany had developed severe pulmonary oedema and her death was an immediate prospect. Bethany died during the surgery, but Alyssa survived. Colleen Davis argues that neither Re A’s case nor the Nolan case provide a clear basis for exculpating doctors who perform conjoined twin surgery. 250 Lord Brooke in Re A approached necessity as a justification for a wrongful act on the basis that it focused on a choice between two “evils”. Jonathan Rogers refers to this as the “utilitarian” doctrine of necessity. 251 A utilitarian or consequentialist rationale for behaviour aims to identify conduct that will result in the greatest good for the greatest number in society. Necessity in this sense can be used to justify the killing of one person to save two or more persons. Take, for example, the following scenario. JC Smith refers to an emergency situation that was revealed in an inquest into the sinking of the ferry, “Herald of Free Enterprise”. 252 As the ferry was sinking, several passengers were trying to climb onto the deck by ascending a rope ladder. One young man was on the ladder and, suffering from shock, was unable to go up or down. The other passengers were shouting at him to no avail. Finally, he was pushed off the ladder and he fell into the water and was not seen again. Several other passengers then escaped up the ladder to safety. There may be a strong public interest in preserving the greater number of lives in such a situation. Compare, however, the scenario posed by Judith Thomson in Rights, Restitution and Risk: Essays in Moral Theory. 253 A surgeon is faced with five patients who will die unless they immediately receive organ transplants; two need one lung each, two need a kidney each and a fifth needs a heart. Their time is almost up when a young man appears for his annual check-up. He has the right blood type and is in excellent health. Is the surgeon justified in killing the young man in order to save five others? A utilitarian approach to necessity would say yes, but, as Thomson points out, everyone to whom this scenario is

248 249 250 251 252 253

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[2001] QSC 174. Queensland v Alyssa Nolan (an infant) [2001] QSC 174 at [24]. C Davis, “Criminal Law Implications for Doctors Who Perform Sacrificial Separation Surgery on Conjoined Twins in England and Australia” (2014) 4(1) Victoria University Law and Justice Journal 61. J Rogers, “Necessity, Private Defence and the Killing of Mary” [2001] Criminal Law Journal 515 at 521. JC Smith, Herald of Free Enterprise: Justification and Excuse in the Criminal Law (London: Sweet and Maxwell, 1989) pp 73–79. J Thomson, Rights, Restitution and Risk: Essays in Moral Theory (Cambridge: Harvard University Press, 1986) p 95. [6.155]

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put is of the view that the surgeon should not proceed. Thomson writes that this scenario shows that “not just anything is permissible on the ground that it would yield a net saving of lives”. 254 If necessity is seen as an excuse (rather than as a justification), then the focus shifts from a balancing act between two evils to the plight of the actor. In the scenario posed by JC Smith, the passengers can be “excused” because we can imagine their feelings of panic in an emergency situation and that they neither intended nor desired the death of their fellow passenger. It is harder to excuse a surgeon who calmly and deliberately chooses to kill a healthy young man, even where the motive is to save the lives of others. This situation does not give rise to the same feelings of empathy toward the surgeon as to those in extraordinary emergencies. Jeremy Horder argues that certain killing may be permissible in a “one-off emergency”. He writes: “The moral monstrosities threatened by unbounded consequentialism can, however, be avoided by confining the occasions on which such overridings (of the right to life of an innocent person) may take place to one-off emergencies, so that there can be no argument by analogy that would force such overridings on to a wider moral and political agenda.” 255

Section 10.3(1) of the Criminal Code (Cth) takes up Horder’s approach. The situation posed by JC Smith would certainly give rise to a defence of sudden or extraordinary emergency. In the scenario posed by Thomson, however, patients waiting for transplants could be viewed as a commonplace or ordinary occurrence rather than a sudden or extraordinary one. Lord Brooke’s decision in Re A and Chesterman J’s decision in the Nolan case pave the way for necessity to be available to a charge of homicide. Young CJ and King J also left this path open in R v Loughnan. 256 There are good reasons for circumscribing such a defence. The main rationale for not allowing necessity to be a defence to murder is the belief that human life must be preserved and the purpose of the criminal law is to set a standard of conduct with which citizens must comply. However, limiting the availability of necessity to one-off situations of emergency may provide a method of excusing those whose dilemma produces empathy amongst the public.

Elements of the Defence [6.160] In R v Loughnan, Young CJ and King J summarised the elements of the defence of

necessity as follows: “[T]here are three elements involved in the defence of necessity. First, the criminal act or acts must have been done only in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others whom he [or she] was bound to protect … The [second] element [is] that the accused must honestly believe on reasonable grounds that he [or she] was placed in a situation of imminent peril … Thus if there is an interval of time between the threat and its expected execution it will be very rarely if ever that a defence of necessity can succeed. The [third] element of proportion simply means that the acts done to avoid the imminent peril must

254 255 256

J Thomson, “Self-Defence” (1990) 20 Philosophy and Public Affairs 283 at 309. J Horder, “Self-Defence, Necessity and Duress” (1998) 11 Canadian Journal of Law and Jurisprudence 143 at 156. R v Loughnan [1981] VR 443 at 449. [6.160]

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not be out of proportion to the peril to be avoided. Put in another way, the test is: would a reasonable [person] in the position of the accused have considered that he [or she] had any alternative to doing what he [or she] did to avoid the peril?” 257

The defence of sudden or extraordinary emergency at the Commonwealth level and in the Australian Capital Territory, the Northern Territory, Queensland, Victoria and Western Australia is similar in that there must be an emergency and the situation must be such that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise. At a Commonwealth level and in the Australian Capital Territory, Northern Territory (in relation to certain offences), Victoria and Western Australia, evidence is required that the accused reasonably believed that, first, circumstances of sudden or extraordinary emergency existed; secondly, that committing the offence was the only reasonable way to deal with the emergency; and, thirdly, that the conduct was a reasonable response to the emergency. 258 The elements of the defence of necessity will be explored under the following categories: • the nature of the emergency; • the accused’s belief; and • the objective standard. The nature of the emergency [6.165] The origin of the emergency that exerts pressure upon the accused to commit a crime

may arise from a natural event or from threats by another. 259 The early case law held that necessity could not arise from threats from another as this was encompassed by the defence of duress. 260 This distinction has since been abandoned. The common law has recognised threats of death or serious physical harm, sexual assault and suicide as giving rise to the defence of necessity. 261 In the Criminal Codes of the Commonwealth, the Australian Capital Territory, the Northern Territory (under the s 43BC defence), Queensland and Western Australia, the provisions refer to a “sudden or extraordinary emergency” which is not further explained. The MCCOC had originally proposed to define the concept in terms of “an urgent situation of imminent peril”, but abandoned this recommendation in favour of leaving the definition to the jury as ordinary words in the English language. 262 Similarly, s 33 of the Criminal Code (NT) refers to a sudden and extraordinary emergency which is not defined. This seems to encompass all sorts of threatened harm. However, in Larner v Dorrington, 263 the Supreme Court of Western Australia referred specifically to the fear of “death or serious physical injury”. Section 322R(3) of the Crimes Act 1958 (Vic) clarifies that, in the case of murder, the emergency must involve a risk of death or really serious 257

263

R v Loughnan [1981] VR 443 at 448; applied in The Queen v Gardner [2012] QSC 73 at [8]; and in Ahmadi v The Queen [2011] WASCA 237 at [36]. Criminal Code (Cth), s 10.3(2); Criminal Code (ACT), s 41(2); Criminal Code (NT), s 43BC(2); Crimes Act 1958 (Vic), s 322R(2); Criminal Code (WA), s 25(3). R v Loughnan [1981] VR 443; Martin (1989) 88 Cr App R 343; R v Conway [1989] QB 290. See, for example, DPP (Northern Ireland) v Lynch [1975] AC 653; [1975] 2 WLR 641; [1975] 1 All ER 913 at 694 (AC) per Lord Simon. R v Loughnan [1981] VR 443; Martin (1989) 88 Cr App R 343; R v Potter (unreported, 16/10/1993, NSWDC, Judge Dent QC). Model Criminal Code Officers Committee, Chapter 2—General Principles of Criminal Responsibility, Final Report (1992) p 69. See, further, Nguyen v The Queen [2005] WASCA 22. (1993) MVR 75 at 79.

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258 259 260 261 262

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injury for the defence to apply. In relation to other offences, the nature of the emergency is not limited. In B v The Queen 264 the Court of Criminal Appeal of New South Wales held that a belief that a child was being abused by an ex-partner did not amount to an “extraordinary emergency” necessitating the taking of the child out of Australia in breach of a Family Court order. In R v Loughnan, Young CJ and King J stated that the range of threats forming the defence of necessity was a “matter of debate”. 265 Crockett J focused on the concept of the balancing of harms to discover what amounted to “irreparable evil”. 266 In his view, any type of threatened harm could be relevant provided that the threatened harm was greater than or at least comparable to the crime committed by the accused to avoid it. 267 The “irreparable evil” spoken of in Loughnan’s case may be aimed at a person other than the accused. It appears that this other person must bear a special relationship to the accused. In R v Loughnan, Young CJ and King J referred to the threat being inflicted “upon the accused or upon others whom he [or she] was bound to protect”. 268 This will not be a requirement in situations of necessary medical treatment. For example, in R v Davidson, 269 the accused successfully argued that he used an instrument to procure a miscarriage (which was, at the time, an offence contrary to s 66 of the Crimes Act 1958 (Vic)) because it was necessary to preserve the woman from serious danger to her life or physical or mental health. Menhennit J summarised the scope of necessity as a defence for abortion in the following terms: “For the use of an instrument with intent to procure a miscarriage to be lawful the accused must have honestly believed on reasonable grounds that the act done by him [or her] was (a) necessary to preserve the woman from a serious danger to her life or her physical or mental health (not being the normal dangers of pregnancy and childbirth) which the continuance of pregnancy would entail; and (b) in the circumstances not out of proportion to the danger to be averted”. 270

The law relating to abortion is considered further in Chapter 9. In all jurisdictions with a statutory defence, there is no express requirement of a special relationship between the accused and the person endangered. At common law, the emergency situation must be an imminent one. As Young CJ and King J pointed out in R v Loughnan “if there is an interval of time between the threat and its expected execution it will be very rarely if ever that a defence of necessity will succeed”. 271 In Re F (mental patient: sterilisation), 272 the House of Lords indicated, albeit in a civil matter, that there could be some relaxation of the imminence requirement. The defence of necessity was raised with regard to the non-consensual sterilisation of an intellectually disabled woman who was in a sexual relationship. There was medical evidence that she would not be able to cope with pregnancy and giving birth, but it is questionable that the “peril” of getting pregnant was, in fact, “imminent”. Lord Goff stated:

264 265 266 267 268 269 270 271 272

[2015] NSWCCA 103. R v Loughnan [1981] VR 443 at 448. R v Loughnan [1981] VR 443 at 460. See also R v White (1987) 31 A Crim R 194 at 198. R v Loughnan [1981] VR 443 at 448. [1969] VR 667. R v Davidson [1969] VR 667 at 670. R v Loughnan [1981] VR 443 at 448. [1990] 2 AC 1. [6.165]

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“[T]he relevance of an emergency is that it may give rise to a necessity to act in the interests of the assisted person, without first obtaining his [or her] consent. Emergency is however, not the criterion or even a prerequisite; it is simply a frequent origin of necessity which impels intervention. The principle is one of necessity not emergency.” 273

The statutory provisions do not refer to imminence but a “sudden or ‘and’ is used in s 33 of the Criminal Code (NT) extraordinary emergency”. A sudden emergency is one which is unexpected and this has been held to include a loud noise at the back of a car whilst it is being driven, 274 being told that one’s horses have escaped onto a public road thereby causing danger to passing cars, 275 and being chased at high speed by a car. 276 In R v Patel (No 7) 277 Fryberg J referred to the “requirement of immediacy” as being “quite critical” in relation to necessity in medical situations. 278 An extraordinary emergency, on the other hand, may not entail this notion of suddenness or unexpectedness. It may persist over a period of time such as living in a war zone. 279 It may also include the situation of being cast adrift on the high seas. 280 The accused’s belief [6.170] At common law, the accused must honestly believe on reasonable grounds that a

situation of imminent peril has arisen. If the accused is ignorant of circumstances of necessity, then the defence cannot be relied upon. In Limbo v Little, Martin J, with whom Kearney and Rice JJ concurred, stated: “[I]t is [not] relevant or permissible [in seeking to establish the defence of necessity] to attempt to prove facts which were not evident to the offender at the time of the offence.” 281

The situation of imminent peril may not, in fact, exist. It will be enough if the accused honestly and reasonably (but mistakenly) believed that the situation existed. 282 In Limbo v Little, 283 Lenin Limbo argued that it had been necessary for him to trespass at the Pine Gap nuclear facility as a way of taking action against the danger of imminent destruction of the human race from nuclear war or accident. His appeal against conviction was dismissed on the basis that imminent peril “bears the sense of inevitable, something bound to happen or which could not otherwise be avoided, as opposed to something not named or specified”. 284 The threat of nuclear war, while possible, was not viewed as inevitable in the sense of it being bound to happen. Limbo’s belief was therefore viewed as unreasonable. Similarly, the argument that it was necessary to enter the Pine Gap nuclear facility because of the extreme emergency in Iraq was held not to amount to a defence against a charge of trespass. 285 273 274 275 276 277 278 279 280 281 282 283 284 285

Re F (mental patient: sterilisation) [1990] 2 AC 1 at 75. R v Pius Piane [1975] PNGLR 52. McHenry v Stewart (unreported, 14/12/1976, WACA). R v Warner [1980] Qd R 207. [2013] QSC 65. [2013] QSC 65 at [14]. Pagawa v Mathew [1986] PNGLR 154. R v Dudley and Stephens (1884) 14 QBD 273. Limbo v Little (1989) 45 A Crim R 61 at 88. R v Loughnan [1981] VR 443 at 448 per Young CJ and King J; R v Conway [1989] QB 290; Nguyen v The Queen [2005] WASCA 22 at [17]; Johnson v Western Australia [2009] WASCA 71 at [61]–[67]. (1989) 45 A Crim R 61, cited with approval in R v Gardner [2012] QSC 73 at [10]. Limbo v Little (1989) 45 A Crim R 61 at 88 per Martin J. R v Law (2007) 176 A Crim R 350.

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The Criminal Codes of the Commonwealth, the Australian Capital Territory, the Northern Territory, Queensland and Western Australia all have general provisions relating to a mistake of fact 286 and reading these provisions together with the defence of sudden or extraordinary emergency, it would seem that the latter may still be relied upon even where an emergency does not, objectively speaking, exist. For example, in R v Pius Piane, 287 the accused was charged with dangerous driving causing death. He claimed that a loud noise at the back of his car which he was driving caused a momentary lack of attention. The Supreme Court of Papua New Guinea allowed the defence of emergency on the basis that “whether there was in fact a state of emergency or not, the situation was such that the driver could quite honestly and reasonably believe that there was an emergency in the back of the truck”. 288 Mistake of fact as a basis for the defence of sudden or extraordinary emergency is explicit in Western Australia. Section 25 of the Criminal Code (WA) provides that the question of the accused’s belief in the reasonableness of his or her response to the emergency is determined according to the “circumstances as the person believes them to be”. The objective standard [6.175] All of the jurisdictions impose an objective standard in relation to necessity. At

common law, the accused’s response to the situation of imminent peril is measured against the reaction of an ordinary person in the position of the accused. Section 33 of the Criminal Code (NT), which relates to certain offences, expressly refers to “an ordinary person similarly circumstanced”. In R v Martin, Simon Brown J, in delivering the judgment of the English Court of Appeal, expressed the test as: “Would a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the accused acted?” 289 The use of the word “would” in this test implies probability rather than possibility as the degree of chance. The Queensland provision refers to whether an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise. In relation to a similarly worded test in Western Australia prior to legislative reform, in Larner v Dorrington the Supreme Court of Western Australia referred to the ordinary person as possessing the “characteristics of the accused person”. 290 The use of the word “could” in this test seems to convey a possible rather than a probable response. It is unclear just what characteristics of the accused will be taken into account in relation to the ordinary person test. The Supreme Court of Victoria left this open in R v Loughnan 291 and other cases have not clarified the issue. In relation to the defence of duress, in R v Palazoff, Cox J described the person of ordinary firmness of mind as having “the same age and sex and background and other personal characteristics (except perhaps strength of mind) as the [accused]”. 292 If the common law relating to defence of necessity is to echo the defence of duress, then the ordinary person test may well be the same. 286 287 288 289 290 291 292

Criminal Code (Cth), ss 9.1, 9.2; Criminal Code (ACT), ss 35, 36; Criminal Code (NT), ss 32, 43AW, 43AX; Criminal Code (Qld), s 24; Criminal Code (WA), s 24. [1975] PNGLR 52. R v Pius Piane [1975] PNGLR 52 at 56 per Lalor J. R v Martin [1989] 1 All ER 652 at 653–654. Larner v Dorrington (1993) MVR 75 at 79. [1981] VR 443. R v Palazoff (1986) 43 SASR 99 at 109. [6.175]

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In some of the cases, a test of proportionality has been used in applying the ordinary person test. In R v Davidson, Menhennit J stated that an important element of the objective test was that the accused’s act was “not out of proportion to the danger to be averted”. 293 In this regard, Paul Fairall and Stanley Yeo write in Criminal Defences in Australia that: “By parallel reasoning with self-defence, it is submitted that proportionality is but an element to be considered in determining whether the accused acted out of necessity.” 294

Section 10.3 of the Criminal Code (Cth), s 41 of the Criminal Code (ACT), s 43BC of the Criminal Code (NT), s 322R of the Crimes Act 1958 (Vic) and s 25 of the Criminal Code (WA) avoid any mention of an ordinary person test by requiring that the accused reasonably believed that his or her conduct was a reasonable response to the emergency. The requirement of reasonableness imports an objective standard, but in these provisions, as with self-defence and duress, the focus is on the accused’s belief (and its reasonableness) rather than on that of a (hypothetical) ordinary person. This seems a workable way of simplifying the defence without losing an objective element. While recognising that the courts have not resolved the issue, Stephen Odgers argues that the reasonable belief for the purpose of all Chapter 2 defences in the Criminal Code (Cth) should be determined using the standard of a “reasonable person”. 295 This position has recently been endorsed by the Victorian Court of Appeal in Luong v DPP. 296 It has been suggested that, in the context of using force to counter terrorist threats, the defence of “sudden or extraordinary emergency” is preferable to relying on the common law defence of necessity from both a normative and explanatory perspective. As Simon Bronitt and Dale Stephens note: “Since decisions will be made in situations of factual uncertainty, it seems inappropriate to apply a defence based on the objective calculation of known or predicted risks. This highly pressured and stressful environment in which such decisions will be made suggests that it would be more appropriate to frame the defence in terms of ‘sudden or extraordinary emergency’, which is a general defence available under federal criminal law. A psychological state of emergency may ‘excuse’ wrongful action, but would also send a clear message that the deliberate taking of life cannot be justified through a process which weighs the relative importance or value of some human lives against others.” 297

Perspectives Necessity and Medical Treatment [6.180] Health professionals may be justified in performing emergency medical treatment

on the basis of either implied consent, or on the basis of the defence of necessity. 298 In relation to implied consent, it is presumed that the patient would have consented to the treatment because it was necessary to save his or her life, but was unable to. 293

298

R v Davidson [1969] VR 667 at 671. See also R v Loughnan [1981] VR 443 at 448 per Young CJ and King J, at 460 per Crockett J; Re F (mental patient: sterilisation) [1990] 2 AC 1 at 55 per Lord Brandon; White (1987) 31 A Crim R 194 at 198. P Fairall and S Yeo, Criminal Defences in Australia (4th ed, Sydney: LexisNexis Butterworths, 2005) p 104. S Odgers, Principles of Federal Criminal Law (3rd ed, Sydney: Thomson Reuters, 2015) pp 139–140. Luong v DPP (Cth) [2013] VSCA 296 at [88]. S Bronitt and D Stephens, ““Flying under the Radar”—The Use of Lethal Force against Hijacked Aircraft: Recent Australian Developments” (2007) 7(2) Oxford University Commonwealth Law Review 265 at 269. Malette v Shulman (1990) 67 DLR (4th) 321 at 328–329.

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In relation to necessity providing the legal justification for emergency medical treatment, Lord Goff stated in Re F (mental patient: sterilisation): “[N]ot only (1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also (2) the action taken must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted person.” 299

Lord Goff distinguished between emergency cases and those in which the disability is permanent. In relation to the former, he stated that the treatment should be confined to that which is necessary in the short term in the patient’s interests. 300 These restrictions, however, would not apply in the case of a patient with a permanent disability, such as an intellectual disability, as the patient is incompetent to consent. In that situation, the health professional must act in the patient’s best interests. It is uncertain whether this precise test applies in Australia, given that McHugh J in Department of Health and Community Services (NT) v JWB stated: “[T]he approach of their Lordships [in Re F] transfers the issue [of what medical treatment is appropriate] to the medical profession for determination … Whatever may be the position in England, the approach of their Lordships is not consistent with the common law of Australia.” 301

It would seem that, in practice, a surgeon exercising proper medical judgment is generally able to proceed without risk of prosecution. 302 In the Canadian case of Murray v McMurchy, Macfarlane J stated that the question to be determined is “whether [it] was necessary that the operation be done, not whether it was then more convenient to perform it”. 303 If there is no evidence that there is a danger to the patient if medical treatment is not performed, then unauthorised treatment is an assault. 304 Generally, the patient will bring a civil action in trespass, but assault in the criminal sense has also been committed. It appears that the defence of necessity will be irrelevant where emergency medical treatment is performed contrary to the patient’s prior instructions. In Malette v Shulman, Robins JA stated: “[A] doctor is not free to disregard a patient’s advance instructions any more than he [or she] would be free to disregard instructions given at the time of the emergency.” 305

There are separate provisions in the Criminal Codes of Queensland and Western Australia that provide for a defence of necessity to those carrying out surgical operations. Section 150 of the Criminal Code (NT) provides for a test of medical treatment in relation to some defences, but expressly excludes cases of necessity. It is therefore silent as to a separate defence of necessity for medical treatment. Section 282(1) of the Queensland Criminal Code provides: A person is not criminally responsible for performing or providing, in good faith and with reasonable care and skill, a surgical operation on or medical treatment of— (a) a person or an unborn child for the patient’s benefit; or (b) a person or an unborn child to preserve the mother’s 299 300 301 302 303 304 305

Re F (mental patient: sterilisation) [1990] 2 AC 1 at 75. Re F (mental patient: sterilisation) [1990] 2 AC 1 at 77. Department of Health and Community Services (NT) v JWB (1992) 175 CLR 218 at 322. P Skegg, “A Justification for Medical Procedures Performed Without Consent” (1974) 90 Law Quarterly Review 512. Murray v McMurchy [1949] 2 DLR 442 at 445. P Skegg, “A Justification for Medical Procedures Performed Without Consent” (1974) 90 Law Quarterly Review 512. Malette v Shulman (1990) 67 DLR (4th) 321 at 330, cited with approval in X v The Sydney Children’s Hospitals Network [2013] NSWCA 320 at [58]. [6.180]

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life; if performing the operation or providing the medical treatment is reasonable, having regard to the patient’s state at the time and to all the circumstances of the case.

Section 259 of the Criminal Code (WA) is similar, but extends the defence to cases of decisions not to administer, or ceasing to administer, surgical or medical treatment. These provisions pose a different objective test to the general defence of necessity in that whether the performance of an operation is reasonable will generally involve looking at a body of relevant professional opinion. However, this will not necessarily be determinative in relation to the objective standard used in the defence of necessity in this area. In Re F (mental patient: sterilisation), Lord Goff spoke of the health professional’s conduct being measured against a responsible and competent body of relevant professional opinion. 306 Rogers v Whitaker, although dealing with the objective standard in relation to the law of negligence, is also relevant here. In that case, Mason CJ, Brennan, Dawson, Toohey and McHugh JJ agreed that: “Whether a medical practitioner carried out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive role to play”. 307

Information about professional practices will therefore be relevant, if not determinative, in relation to the objective standard against which the health professional’s actions will be measured. The role of necessity in providing a legal justification for the medicinal/therapeutic use, possession and supply of cannabis is discussed in Chapter 14, [14.160].

The Limits of Necessity and 9/11: Dudley and Stephens Revisited? [6.185] The response to the September 2001 terrorist attacks (9/11) has prompted some re-evaluation of the limitations governing necessity and the refusal to extend the defence to the intentional infliction of death or serious injury. Some leading English scholars have argued that Dudley and Stephens should no longer apply, and have called upon the courts to extend the common law of necessity and “duress of circumstances” to novel hijacking scenarios. 308 Some have argued for statutory reform to clarify the availability of necessity and duress to murder. 309 German law, by contrast, flatly refuses to countenance laws which authorise the use of lethal force by police against hijacked aircrafts which contain innocent passengers and crew, even where the plane poses an imminent and serious threat to human life. The German Constitutional Court invalidated the Aviation Security Act (11th of January 2005) on the ground that authorising lethal force against the innocent passengers and crew violated Germany’s Basic Law’s constitutional guarantees relating to the right to human life and dignity as protected by Arts 1 and 2. 310 Australian law has opted for an express power to authorise the destruction of hijacked aircrafts under Pt IIIAAA of the Defence Act 1903 (Cth), a power which was introduced in 2006. Section 51SE contains the power to “take measures 306 307 308

309 310

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Re F (mental patient: sterilisation) [1990] 2 AC 1 at 78. Rogers v Whitaker (1992) 175 CLR 479 at 489–490. JC Smith and B Hogan, Criminal Law (10th ed, London: LexisNexis Butterworths, 2002) pp 273–274; JC Smith, B Hogan and D Ormerod, Criminal Law (11th ed, Oxford: Oxford University Press, 2005) p 322; M Bohlander, “In Extremis—Hijacked Airplanes, ’Collateral Damage’ and the Limits of Criminal Law” [2006] Criminal Law Review 579. See, generally, CMV Clarkson, “Necessary Action: A New Defence?” [2004] Criminal Law Review 81. See, further, K Moller, “On Treating Persons as Ends: The German Aviation Security Act, Human Dignity, and the German Federal Constitutional Court” [2006] Public Law 457, and S Hufnagel, “German Perspectives on the Right to Life and Human Dignity in the ’War on Terror’” (2008) 32 Criminal Law Journal 100. [6.185]

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(including the use of force) against a vessel or an aircraft, up to and including destroying the vessel or aircraft”. 311

Burden of Proof [6.190] As with the defences of duress and marital coercion, the accused bears the evidential

burden in relation to necessity, while the legal burden is placed on the prosecution to negate any evidence of necessity beyond reasonable doubt. This was described by the Supreme Court of Canada in Perka v The Queen as follows: “Where the accused places before the court evidence sufficient to raise an issue that the situation created by external forces was so emergent that failure to act could endanger life or health and that, upon any reasonable view of the facts, compliance with the law was impossible, then the Crown must be prepared to meet that issue and there is no onus of proof on the accused.” 312

A similar approach applies in Australia to the burden of proof under the equivalent Code provisions dealing with sudden or extraordinary emergency. 313

CONCLUSION [6.195] Self-defence, duress, marital coercion and necessity share the notion that the accused

committed a crime in order to “help” himself or herself or another avoid serious harm. They all combine a subjective and objective component, but differ substantially in how these are expressed. With self-defence, there is a growing emphasis on what the accused believed. Most jurisdictions require the belief to be based “on reasonable grounds”, but it is clear that the focus is on what the accused (rather than an ordinary person) might reasonably have believed in all the circumstances. With duress and necessity, the objective component has been phrased in certain jurisdictions according to a form of the ordinary person test. However, it is unclear whether the ordinary person should be imbued with the relevant personal characteristics of the accused or whether only age will be relevant. The MCCOC endorsement of the general defence of sudden or extraordinary emergency may be one way of simplifying the law relating to the objective component of necessity. Christopher Clarkson goes further in arguing that the differences between the self-help defences could be collapsed into a single defence of necessary action. 314 He argues that if an accused “acts reasonably and proportionately to avert a danger or disaster, a judgment of culpability and legal condemnation is inappropriate”. 315 Clarkson’s approach is an attractive one, given that self-help defences have developed in an ad hoc manner but share much common ground. It would also avoid the strains placed on the defence of duress, which, in the English context, has led to a new defence of “duress of circumstance”. As Clarkson states, “[w]hat matters to a person facing a threat/danger/crisis is not the specifics of duress or self-defence, but rather the broader picture that necessary action is permitted provided the test

311

312 313 314 315

For a critique of these powers, see S Bronitt and D Stephens, “’Flying Under the Radar’—The Use of Lethal Force Against Hijacked Aircraft: Recent Australian Developments” (2007) 7(2) Oxford University Commonwealth Law Review 265. For discussion of necessity in the context of torture, see Chapter 15, [15.130]. Perka v The Queen (1985) 14 CCC (3d) 385 at 386. See S Odgers, Principles of Federal Criminal Law (3rd ed, Sydney: Thomson Reuters 2015) p 142. C Clarkson, “Necessary Action: A New Defence” [2004] Criminal Law Review 81. C Clarkson, “Necessary Action: A New Defence” [2004] Criminal Law Review 81 at 88. [6.195]

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of reasonableness and proportionality is met”. 316 The benefit of having a single defence is that the law could be simplified while the main focus of self-help defences is emphasised. If that is too radical an approach for Australian parliaments, then the Commonwealth Criminal Code’s simplified versions of self-defence, duress, and sudden or extraordinary emergency certainly appear a step in the right direction toward providing a principled focus for the law in this area.

316

C Clarkson, “Necessary Action: A New Defence” [2004] Criminal Law Review 81 at 94.

392

[6.195]

PART III

EXTENDING CRIMINAL RESPONSIBILITY Chapter 7: Complicity ....................................................................................... 395 Chapter 8: Inchoate Offences .......................................................................... 457

Chapter 7

Complicity If two lives join, there is oft a scar. 1 [7.05] [7.10] [7.15]

INTRODUCTION ........................................................................................................................ 395 Historical Overview of Complicity .............................................................................................. 397 The High Court on Common Purpose and Acting in Concert ..................................................... 399

[7.20] [7.25] [7.30] [7.40] [7.55] [7.80] [7.85]

ACCESSORIAL LIABILITY ............................................................................................................. Aids, Abets, Counsels or Procures ............................................................................................... The Physical Element of Accessorial Liability ............................................................................... Accessorial Liability By Inactivity ................................................................................................. The Fault Element ...................................................................................................................... Principal and Joint Principal Offenders ........................................................................................ Withdrawal By An Accessory .......................................................................................................

[7.100] [7.105] [7.110]

INNOCENT AGENCY AND ACTING IN CONCERT ....................................................................... 421 Innocent Agency ........................................................................................................................ 422 Acting in Concert ....................................................................................................................... 425

[7.120] [7.125]

EXTENDING ACCESSORIAL LIABILITY: THE DOCTRINES OF COMMON PURPOSE AND EXTENDED COMMON PURPOSE ................................................................................................................. 435 Definition of the Common Purpose ............................................................................................ 439

[7.155] [7.160] [7.165]

ACCESSORIES AFTER THE FACT .................................................................................................. 451 The Physical Element ................................................................................................................. 452 The Fault Element ...................................................................................................................... 453

[7.185]

CONCLUSION ........................................................................................................................... 454

399 400 402 403 409 416 416

INTRODUCTION [7.05] The general rationale for the doctrine of complicity is that a person who promotes or

assists the commission of a crime is just as blameworthy as the person who actually commits the crime. There is a tension in this area of the law because of the need to discourage acts that assist the commission of crimes without imposing excessive sanctions on a much broader class of persons than those who directly commit offences. As a consequence, some of the areas

1

Robert Browning, “By the Fireside” (1855) Stanza 46.

[7.05]

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encompassed by the doctrine of complicity have developed in a rather haphazard and inconsistent fashion, causing a number of judges to call for the clarification of underlying principles. 2 Law reform bodies have given this area some attention. In 1993, the Law Commission for England and Wales first called for a new scheme of statutory offences to replace the common law of complicity in order to clarify this complex area. 3 A further report in 2006 by the Law Commission on inchoate and secondary liability led this reform, 4 and the adoption of new statutory inchoate offences of encouraging or assisting crime in Pt 2 of the Serious Crime Act 2007 (UK). More recently, the New South Wales Law Reform Commission has made a number of recommendations as to how best to deal with situations involving group criminal activity. 5 In Victoria, recommendations by Justice Mark Weinberg, the Judicial College of Victoria and the Victorian Department of Justice 6 led to the abolition of the common law doctrines of “acting in concert, joint criminal enterprise and common purpose (including extended common purpose)”. 7 While the trend in Australia appears to be against drastic reform of the general principles governing accessory liability for assisting or encouraging crime, the legislature has continued to legislate for a wide range of crime-specific statutory facilitation offences. For example, a commonly used formula is “being knowingly concerned” in the commission of another offence such as drug importation: Chapter 14, [14.150]. 8 In the field of terrorism, the legislature has recently enacted a raft of new offences that prohibit the financing, recruiting, training and supporting of, as well as the associating with, terrorists: Chapter 15, [15.200] and [15.230]. Recent reforms have extended the scope of terrorism offences to include urging violence for political purposes, and advocating the commission of terrorist acts or offences: Chapter 15, [15.230]. Though already broad, this type of statutory facilitation offence does not necessarily exclude the application of the general doctrines of complicity. Even in the modern law, unless expressly or impliedly excluded by the statute, the law governing complicity continues to perform a “gap-filling” function, potentially extending the reach of these facilitation offences even further. To understand the modern doctrine of complicity, considerable attention must be paid to its historical evolution.

2

3 4

5

6

7 8

R v Makin (2004) 8 VR 262 at 263 per Ormiston JA; Clayton v The Queen; Hartwick v The Queen; Hartwick v The Queen (2006) 231 ALR 500 at 522ff per Kirby J; R v Taufahema (2007) 228 CLR 232 at 275; Miller v The Queen; Smith v The Queen; Presley v DPP (SA) (2016) 334 ALR 1 at 3. Law Commission for England and Wales, Assisting and Encouraging Crime, Law Com No 131 (1993). Law Commission for England and Wales, Inchoate Liability for Assisting and Encouraging Crime, Law Com No 300 (2006). The background to these reforms is discussed in a special issue of the Criminal Law Review “The Law Commission Report on Participating in Crime”, Issue 1 (2008). New South Wales Law Reform Commission, Complicity, Report No 129 (2010), http:// www.lawreform.justice.nsw.gov.au/Documents/Publications/Reports/Report-129.pdf (cited 17 November 2016). M Weinberg, Judicial College of Victoria and Department of Justice, Simplification of Jury Directions Project: A Report to the Jury Directions Advisory Group (2012), http://www.supremecourt.vic.gov.au/home/ contact+us/publications/simplification+of+jury+directions+project+report (cited 17 November 2016). Crimes Act 1958 (Vic), s 324C, inserted by the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic), s 6. Other statutory offence provisions that impose direct liability on persons “knowingly concerned in”, or “knowingly party to”, or “knowingly involved in” breaches of offences are discussed in New South Wales Law Reform Commission, Complicity, Report No 129 (2010), http://www.lawreform.justice.nsw.gov.au/ Documents/Publications/Reports/Report-129.pdf (cited 17 November 2016), [8.18], p 257.

396 [7.05]

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Historical Overview of Complicity [7.10] The development of the substantive law of complicity is bound up with its “tortured

procedural history”. 9 The common law evolved distinctions between modes of complicity based on the nature of the offence assisted or encouraged. In relation to felonies, the law identified several “degrees” of participation: the perpetrator of the offence was designated “principal in the first degree”, whereas parties who were assisting or encouraging during the commission of the perpetrator’s crime were described as “principals in the second degree”. Parties who were not physically present during the commission of the offence were divided into “accessories before the fact” (assisting or encouraging before the commission of the perpetrator’s crime) or “accessories after the fact” (assisting after the commission of the perpetrator’s offence). It should be noted, however, that these refined distinctions did not plague complicity in misdemeanours or treason. Due to the respective trivial and serious nature of these offences, the law deemed all accessories, irrespective of their precise participation, to be principals. As a leading scholar of complicity, KJM Smith, has pointed out, the distinctions between different modes of participation emerged from early judicial manoeuvres to overcome the derivative effects of accessorial liability. 10 From the 13th century onwards, the common law developed a strict rule that an accessory to a felony could not be convicted unless there was proof that the perpetrator had been convicted and suffered punishment by way of “attainder”, that is, sentence of death: see Chapter 2, [2.95]. 11 To overcome its manifest impracticality, the English courts in the 16th century resorted to a legal fiction that deemed accessories, who were present at the scene aiding and abetting the commission of the offence, to be principals. 12 These accumulated rules governing accessorial liability were restated in statutory form in the 19th century. As well as confirming the distinctions above, the Accessories and Abettors Act 1861 (UK) affirmed the common law principle of equal eligibility for punishment for all parties; that is, a person who aided, abetted, counselled or procured an offence was liable to be tried, indicted, and punished as a principal offender. Similar statutory provisions have been enacted in all Australian jurisdictions. 13 In the modern context, the distinctions and terminology outlined above are largely of historical interest. Nevertheless, they continue to infect the language of lawyers and judges, notwithstanding that the felony-misdemeanour classification has been abolished in all Australian jurisdictions: see Chapter 2, [2.95] “Classification of offences and criminal proceedings”. Distinguishing between the different modes of participation does offer procedural advantages. As Sir William Blackstone observed in the 18th century, defining the mode of participation allows the defence to know precisely the nature of the charge against the 9 10 11

12

13

KJM Smith, A Modern Treatise on the Law of Criminal Complicity (Oxford: Clarendon Press, 1991) p 22. KJM Smith, A Modern Treatise on the Law of Criminal Complicity (Oxford: Clarendon Press, 1991) p 22. KJM Smith suggests that the derivative nature of accessorial liability was established at the time that Bracton’s Laws and Customs of England were published in 1250: KJM Smith, A Modern Treatise on the Law of Criminal Complicity (Oxford: Clarendon Press, 1991) p 22. For a discussion of these historical developments, see Callinan J in Osland v The Queen (1998) 197 CLR 316 at 399–402. R v Griffith (1553) 75 ER 152, discussed in KJM Smith, A Modern Treatise on the Law of Criminal Complicity (Oxford: Clarendon Press, 1991) pp 22-26. The requirement of proof of attainder persisted until abolished by the Criminal Law Act 1848 (UK). This history is outlined in the High Court decision of Likiardopoulos v The Queen [2012] HCA 37 at [26]. Criminal Code (Cth), s 11.2; Criminal Code (ACT), s 45; Crimes Act 1900 (NSW), s 346; Criminal Code (NT), s 12; Criminal Code (Qld), s 7; Criminal Law Consolidation Act 1935 (SA), s 267; Criminal Code (Tas), s 3; Crimes Act 1958 (Vic), ss 181, 323; Criminal Code (WA), s 7. [7.10]

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accused. 14 However, charging practices in cases of complicity involve tactical choices, and the prosecution may be reluctant to narrow the legal or factual basis upon which it constructs the case against the accused. The tactical issues are explored at [7.150]. While deeming accessories to be “principals” for procedural purposes circumvented an inconvenient common law rule, it did not alter the derivative nature of accessorial liability. Although the modern law no longer requires proof of conviction or punishment, the liability of the accessory is derivative in the sense that the prosecution must still prove that the offence aided or abetted was committed (or at least attempted) by the perpetrator. The modern law continues to replicate these derivative features. In the Criminal Code (Cth), which implements the recommendation of the Model Criminal Code, accessorial liability is stated in the following terms in s 11.2: Section 11.2 Complicity and common purpose (1) A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly. (2) For the person to be guilty: (a) the person’s conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and (b) the offence must have been committed by the other person.

This section is now also reflected in the Criminal Codes of the Australian Capital Territory and the Northern Territory. 15 While s 11.2 of the Criminal Code (Cth) states that offences by another person must have been committed, 16 it also states that there is no need for proof of conviction: (5) A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the principal offender has not been prosecuted or has not been found guilty. 17

The linking of accessorial liability to the perpetrator’s offence has had conceptual as well as procedural consequences. Rather than being viewed as an extension of criminal responsibility like the inchoate offences of incitement or conspiracy, accessorial liability is a mode of participation in the perpetrator’s offence. The ramifications of linking the culpability of the accessory to the perpetrator continue to plague the modern law. This connection between perpetrator and accessory has fuelled controversy over the fault required for complicity, in particular whether an accessory must possess the identical, or at least broadly equivalent, fault element as the perpetrator: see [7.75]. The doctrines of innocent agency and acting in concert have evolved, in part, to bypass the derivative nature of complicity. As KJM Smith has observed, this link has forced the courts to return frequently to basic principles: “Perhaps more than any other form of criminality, complicitous activity raises, in large measure and in complex combinations, questions relating to practically every stage of the imposition of criminal liability, most particularly: the moral basis of responsibility, with in-built issues concerning freedom of choice of action; the acceptability and operation of chance and risk; the meaning of ‘cause’; the nature and function of harm or wrongdoing; the relevance and relationship of such issues to the justifying aims of punishment.” 18

The historical development of complicity has been particularly sensitive to public concern over collective criminal activity. Like conspiracy, the imperative of devising “catch-all” forms of 14

18

Sir William Blackstone, Commentaries on the Laws of England (first published 1765) Book IV, pp 39–40. http://www.avalon.law.yale.edu/subject_menus/blackstone.asp (cited 17 November 2016). Criminal Code (ACT), s 45; Criminal Code (NT), s 43BG. Criminal Code (Cth), s 11.2(b). Criminal Code (Cth), s 11.2(5). Section 11.2 is echoed in s 45(6) of the Criminal Code (ACT) and s 43BG(6) of the Criminal Code (NT). KJM Smith, A Modern Treatise on the Law of Criminal Complicity (Oxford: Clarendon Press, 1991) p 64.

398

[7.10]

15 16 17

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criminal liability to deal with groups of individuals who jointly agree to commit offences (but who do not necessarily perpetrate them) underlies the historical evolution of the doctrines of “common purpose” and “acting in concert”. The doctrine of “common purpose” evolved to impose collateral liability for any offence committed pursuant to an agreement to commit another crime. The development of this doctrine is deeply implicated with the felony-murder rule: Chapter 9, [9.130] “Constructive murder”. Originally, the common law imposed harsh and draconian forms of constructive liability, recognising liability for consequences that were neither foreseen nor intended by the parties. Although constructive liability has been banished from the modern common law of complicity, 19 a survey of the authorities reveals continuing controversy over the nature and scope of the fault required of individuals who commit offences that were foreseen, but not necessarily intended, pursuant to a common purpose.

The High Court on Common Purpose and Acting in Concert [7.15] The High Court has reviewed the conceptual foundations and fault elements of the

doctrines of “common purpose” and “acting in concert” in a number of cases explored throughout this chapter. In relation to “acting in concert”, the High Court in Osland v The Queen held that individuals who jointly agree to the commission of an offence and are present during its commission, are liable as principal offenders, not as accessories. 20 As we shall explore later in this chapter, the conceptual basis for attributing the criminal acts of one person to another, raises significant questions concerning fault, causation and, most fundamentally, the derivative nature of complicity. In this chapter, we will examine the principal statutory and common law modes of complicity: • aiding, abetting, counselling or procuring; • acting in concert; and • common purpose. These modes are not exhaustive of the forms of complicity. 21 Indeed, as noted above, the modern trend is to graft ancillary forms of liability onto the core statutory offence definition, rather than rely on the general principles of complicity outlined below. Nevertheless, the principles developed and applied in the context of accessorial liability have relevance to the interpretation of these statutory forms of complicity.

ACCESSORIAL LIABILITY [7.20] In the previous section, we outlined how the common law evolved distinctions between

modes of complicity based on the nature of the offence assisted or encouraged. The common 19

20 21

KJM Smith notes that the authorities from the 16th to the 19th centuries suggest “movement from constructive liability for collateral offences through the qualifying guilt of complicity in the primary offence to the application of an objective probable consequences test and later, some form of subjective requirement”: A Modern Treatise on the Law of Criminal Complicity (Oxford: Clarendon Press, 1991) p 211. Osland v The Queen (1998) 197 CLR 316 at 342. The New South Wales Law Reform Commission, for the purpose of its review, grouped incitement and conspiracy within the law of complicity, noting that these inchoate offences often overlap with “more traditional forms of complicity”, such as accessory and joint enterprise liability: Complicity, Report No 129 (2010) [1.14]. We have not followed this extended conception of complicity. We adhere to the traditional view that inchoate offences should not be subsumed within complicity, which has a distinct history (procedural and substantive) and set of conceptual and policy challenges. The law governing inchoate offences is examined in Chapter 8. For an excellent article examining how the common doctrines of complicity also apply to extend the scope of private law, see J Dietrich, “The Liability of Accessories under Statute, in Equity, and in Criminal Law: Some Common Problems and (Perhaps) Common Solutions” (2010) 34(1) Melbourne University Law Review 106. [7.20]

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law terminology of principals in the first and second degree was replaced with statutory terminology of counsellors, procurers, aiders or abettors. Table 1 summarises the main differences in terminology across Australian jurisdictions. Table 1 Terminology across jurisdictions Jurisdiction and relevant law Cth Criminal Code Crimes Act 1914 ACT Criminal Code NSW Crimes Act 1900

NT Criminal Code

Those who promote a crime before it occurs

Those who promote or Those who carry out assist a crime and are the crime usually present when it occurs person who counsels person who aids or – or procures (s 11.2(1)) abets (s 11.2(1))

person who counsels or procures (s 45(1)) accessory before the fact (s 346)

person who aids or abets (s 45(1)) person who aids or abets (s 351B)

person who counsels or procures (s 351B) person who counsels, procures, solicits or incites (corrupt commissions) (s 249F(1)) person who counsels or procures (s 12(1)(c); s 43BG(1))

(corrupt commissions) (s 249F)

Qld Criminal Code

person who counsels or procures (s 7(1)(d))

SA Criminal Law Consolidation Act 1935 Tas Criminal Code

person who counsels or procures (s 267)

person who aids or enables another (s 12(1)(a), (b); s 43BG(1)) person who aids or enables another (s 7(1)(b), (c)) person who aids or abets (s 267)

person who instigates (s 3(1)(d))

person who aids or enables (s 3(1)(b))

Vic Crimes Act 1958

WA Criminal Code

person who counsels or procures (s 181) person who encourages or directs (ss 323, 324) person who counsels or procures (s 7(d))

person who abets (s 3(1)(c)) person who aids or abets (s 181) person who assists (ss 323, 324) person who enables or aids another (s 7(b), (c))

– principal offender (ss 346, 351B)

–

Those who assist another to escape punishment after the event

accessory after the fact (s 6 accessory after the fact (s 717) accessory after the fact (ss 347 – 350)

accessory after the fact (s 13)

principal offender (s 7) accessory after the fact (s 10) principal offender (s 267)

accessory (s 241)

–

accessory after the fact (ss 6, 161, 300)

_

accessory (s 325)

principal offender (s 7) accessory after the fact (s 10)

In this section, we will concentrate on what is meant by “aid, abets, counsels or procures”. After that, we will examine the concept of principal offenders and accessories after the fact.

Aids, Abets, Counsels or Procures [7.25] Traditionally, aiders and abettors refer to those persons present when the offence is

committed, while counsellors and procurers are those who are absent. 22 In AttorneyGeneral’s Reference (No 1 of 1975), it was suggested that these words, which were set out in 22

Thambiah v The Queen [1966] AC 37; Ferguson v Weaving [1951] 1 KB 814 at 818–819; Bowker v Premier Drug Co Ltd [1928] 1 KB 217; KJM Smith, A Modern Treatise on the Law of Criminal Complicity (Oxford: Clarendon Press, 1991) p 32.

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[7.25]

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s 8 of the Accessories and Abettors Act 1861 (UK), should be given their “ordinary meaning”. 23 Widgery LCJ for the court held that each term has a different shade of meaning and therefore describes a distinct form of accessorial liability. An “aider” is one who helps, supports or assists the principal offender. 24 An “abettor” has been held to be a person who incites or encourages the principal to commit the offence. 25 In R v Giorgi, Zelling J stated that “abet” requires encouragement whereas “aid” does not. 26 A “counsellor” is one who advises or encourages the principal offender prior to the offence. 27 A “procurer” is one who causes the offence to be committed. 28 Lord Widgery held in Attorney-General’s Reference (No 1 of 1975) that “procure” means to: “produce by endeavour. You procure a thing by setting out to see that it happens and [by] taking the appropriate steps to produce that happening.” 29

By contrast to the word “procure”, the term “aids” does not imply a causal connection between the assistance given and the commission of the crime. In other words, a person may aid the commission of the crime without the perpetrator being aware of the assistance offered. The word “abets” connotes encouragement, implying that the words or conduct must somehow influence the perpetrator’s decision to commit a crime. 30 This “ordinary meaning” approach to the phrase “aids, abets, counsels or procures” ignores the haphazard nature of 19th century drafting, and the wide range of terms and synonyms used to describe the various conduct giving rise to accessorial liability. Although in “ordinary language” each word may have a different shade of meaning, the preferable view is that the phrase “aids, abets, counsels or procures” is merely descriptive of a general concept. As Cussen ACJ stated in the Victorian decision of R v Russell: “All the words … are … instances of one general idea, that the person charged as a principal is in some way linked in purpose with the person actually committing the crime, and is by his [or her] words or conduct doing something to bring about, or rendering more likely, such commission.” 31

Similarly, as Mason J observed in the leading High Court decision of Giorgianni v The Queen: “While it may be that in the circumstances of a particular case one term will be more closely descriptive of the conduct of a secondary party than another, it is important that this not be allowed to obscure the substantial overlap of the terms at common law and the general concept which they embody.” 32

This view was echoed in R v Wong, by Kellam J, who noted that the four accessorial terms “should be considered descriptive of a single concept” and that any prior formal division

23 24 25 26 27 28 29 30

31

32

Attorney-General’s Reference (No 1 of 1975) [1975] QB 773 at 779. Thambiah v The Queen [1966] AC 37. Wilcox v Jeffery [1951] 1 All ER 464. R v Giorgi (1982) 31 SASR 299 at 311. R v Calhaem [1985] QB 808. R v Beck [1985] 1 All ER 571. Attorney-General’s Reference (No 1 of 1975) [1975] QB 773 at 779. The spectator liability decisions, discussed in [7.40] “Accessorial liability by inactivity”, raise the issue of causation. The general view expressed in these cases is that there does not need to be a causal link between the act of aiding and abetting and the offence committed. R v Russell [1933] VLR 59 at 66–67; Giorgianni v The Queen (1985) 156 CLR 473 at 493; Handlen v The Queen; Paddison v The Queen (2011) 245 CLR 282 at 287; Gray v Cash Converters International Ltd (2014) 100 ACSR 29 at 42. Giorgianni v The Queen (1985) 156 CLR 473 at 493. [7.25]

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between them was obsolete. 33 Kellam J concluded that while an aider and abettor must do something to bring about the commission of an offence, he or she does not have to be actually present at the commission of the offence. The terminology of “aid and abet etc” used in the statutes above to describe accessorial liability is outmoded. Sanford Kadish suggests that accessorial liability should draw a distinction between two forms of conduct: assistance or encouragement—a formulation that has found favour with scholars and law reformers in the United Kingdom 34 and New South Wales. 35 This “plain language” approach is preferable to the arcane terminology of the Accessories and Abettors Act 1861 (UK), and would greatly assist juries in understanding the types of conduct giving rise to accessorial liability.

The Physical Element of Accessorial Liability [7.30] An accessory’s influence on the commission of an offence may range from the minor

role of encouraging by words or supplying materials or information for use in committing an offence, 36 to a major active role such as driving the principal offender to the scene of the crime, keeping watch, or holding the victim so that the principal offender can commit the offence. 37 The main limitation to the liability of an accessory via the doctrine of complicity is that the prosecution must prove that the accessory manifested his or her assent to the principal offender’s actions in a manner that promoted their performance. The accessory’s promotion of, or assistance in, the crime must be given before or at the time it is committed. Promotion or assistance given after the principal offender has committed the offence does not attract criminal responsibility as an aider, abettor, counsellor or procurer. 38 Liability may, however, be made out in such a situation as an accessory after the fact: see [7.155] “Accessories after the fact”. At common law, there does not have to be a causal connection between the accessory’s assistance and the commission of the crime. 39 For example, if two persons are involved in a fight and a passer-by cheers them on, the passer-by cannot be said to have caused the fight, but may be criminally responsible in the sense that he or she has encouraged (or “abetted”) the fight. 40 In Howell v Doyle, the accused were charged with interfering with the transport of 33

40

R v Wong and Others (2005) 202 FLR 1 at 7. Buchanan, Ashley and Tate JJA similarly described these words as a “single, composite concept” in Likiardopoulos v The Queen (2010) 30 VR 654 at 679. See S Kadish, “Complicity, Cause and Blame: A Study in the Interpretation of Doctrine” (1985) 73 California Law Review 324; Blame and Punishment (New York: MacMillan, 1987). In “Criminal Liability of Accessories: Law and Law Reform” (1997) 113 Law Quarterly Review 453 at 453, fn 3, JC Smith speculates that it may be necessary to recognise a third category of conduct: causing another person to commit an offence. This is the formulation applied in the new inchoate offences of “encouraging or assisting an offence” contained in the Serious Crimes Act 2007 (UK), ss 44 – 46. The Act created three inchoate offences of intentionally encouraging or assisting an offence; encouraging or assisting an offence believing it will be committed; and encouraging or assisting offences believing one or more will be committed. These offences replace the common law offence of incitement. The New South Wales Law Reform Commission similarly recommended that replacing the archaic terms “aiding”, “abetting”, “counselling” and “procuring” with the plain English terms “encouraging” and “assisting”: New South Wales Law Reform Commission, Complicity, Report No 129 (2010) [Recommendation 3.1]. National Coal Board v Gamble [1959] 1 QB 11. R v Clarkson [1971] 1 WLR 1402; Betts and Ridley (1930) 22 Cr App R 148. R v Stally [1959] 3 All ER 814; R v Maybery [1973] Qd R 211. O’Sullivan v Truth and Sportsman Ltd (1957) 96 CLR 220; R v Calhaem [1985] QB 808. See also KJM Smith, “Complicity and Causation” [1986] Criminal Law Review 663; H Benyon, “Causation, Omissions and Complicity” [1987] Criminal Law Review 539. R v Coney (1882) 8 QBD 534; Wilcox v Jeffery [1951] 1 All ER 464.

402

[7.30]

34

35

36 37 38 39

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goods in trade with other countries contrary to s 30K of the Crimes Act 1914 (Cth). 41 They had moved resolutions calling on trade unionists, who were the principal offenders, to boycott certain ships. The principal offenders had been refusing to work on one of the ships before the accused’s actions and the accused argued that they had not caused the boycott of the ship. The magistrate dismissed the charge. The prosecution successfully appealed. Herring CJ found that there was evidence that the accessories had counselled, aided or abetted the boycott and that no causal link need to be shown between the counselling and the offence. 42 In relation to procuring, however, a causal link may be required. 43 The act of procuring need not be the sole or dominant cause of the commission of the offence. 44 In relation to statutory forms of complicity in the codes of the Australian Capital Territory, the Northern Territory and the Commonwealth, the prosecution must prove that the accused’s conduct in fact aids, abets, counsels or procures the commission of the offence by the other person. 45 This appears to add a causal element which may be difficult to prove to the requisite standard of proof in cases where the principal offender cannot be identified or has not been found guilty.

Causation and complicity: should causation be an element of accessorial liability? [7.35] While the common law has made it clear that there does not have to be a causal connection between the act of aiding and abetting and the offence committed, some criminal law philosophers have argued that causation is central to the concept of accessorial liability. Thus, distinguished legal theorist, John Gardner, has argued that the whole concept of wrongdoing in complicity is based on accomplices causally contributing to the harm done. Similarly, Joshua Dressler has recommended that an element of causation be used to distinguish between “critical” and “trivial” forms of assistance. 46 Other legal philosophers are more sceptical about the role of causation in complicity. 47 Redlich J in Lam pointed out that any requirement to prove a causal connection between the act of aiding and abetting and the offence committed would impose “an impossible burden upon the prosecution, who would rarely be in a position to place evidence before a jury on the effect of the secondary participant’s conduct on the principal offender’s state of mind”. 48

Accessorial Liability By Inactivity [7.40] The courts have grappled with the question as to whether or not a person can be liable

as an accessory by simply doing nothing. The individual who is present during the commission of a crime, but who does not intervene, poses a dilemma for the criminal law. The main factual circumstances that give rise to this dilemma concern accessorial liability for “mere presence” and omitting to act. 41 42 43 44 45 46 47

48

Howell v Doyle [1952] VLR 128. Howell v Doyle [1952] VLR 128 at 134. Attorney-General’s Reference (No 1 of 1975) [1975] QB 773. R v Solomon [1959] Qd R 123 at 129 per Philp J; Murray v The Queen [1962] Tas SR 170 at 199 per Crawford J; Attorney-General v Able [1984] 1 QB 795. Criminal Code (ACT), s 45(1); Criminal Code (NT), s 43BG(2)(a); Criminal Code (Cth), s 11.2(2)(a). J Gardner, “Complicity and Causality” (2007) 1 Criminal Law and Philosophy 127; J Dressler, “Reforming Complicity Law: Trivial Assistance as a Lesser Offence” (2008) 5 Ohio State Journal of Criminal Law 427. See also T Hörnle, “Commentary to ‘Complicity and Causality’” (2007) 1 Criminal Law and Philosophy 143; L Farmer, “Complicity Beyond Causality” (2007) 1 Criminal Law and Philosophy 151; and C Kutz, “Causeless Complicity” (2007) 1 Criminal Law and Philosophy 289. Lam (2005) 159 A Crim R 467 at 472. [7.40]

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Mere presence [7.45] The principles governing accessorial liability by “mere presence” have been developed

in a series of spectator-liability cases. In these cases, the courts have held that accessorial liability depends on whether the conduct amounts to encouragement. The courts have stressed the “non-accidental” nature of the presence that encouraged the illegal conduct of the perpetrator, and the spectator’s intention to encourage that conduct. In general, mere presence at the scene of the crime will not be sufficient for criminal responsibility. 49 For example, in the infamous 19th century prize-fighting case of R v Coney, Hawkins J stated: “It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime.” 50

This formulation of the principle was endorsed in 2005 by the Victorian Court of Criminal Appeal in Lam: “Whatever uncertainty may exist with respect to the limits of accessorial liability, it is crystal clear that simply being present at the scene of a crime being committed by another is insufficient to render an individual also guilty. Further, it is not enough that the person alleged to be aiding and abetting is present by reason of curiosity, a high level of interest or even because of the presence of strong approval of the principal’s conduct. The justification for rendering the individual liable arises from the contribution that he or she intentionally makes to the commission of the crime.” 51

Thus, it follows, in cases where a person is deliberately present at the scene of a crime, this may be taken as evidence that he or she intended to promote or assist the commission of the crime. 52 In R v Coney, 53 the accused was among a crowd of spectators who watched an illegal prize-fight. The prosecution was unable to prove that the accused took part in the management of the prize-fight, or that the accused said or did anything during the fight. The accused was tried for common assault as an accessory. At trial, the judge held that, as a matter of law, spectators attending the prize-fight were guilty of assault. The 8–3 majority of the Court of Crown Cases Reserved rejected the notion that voluntary presence was, as a matter of law, enough to be guilty as an accessory. Justice Hawkins held that the previous authorities established that “some active steps must be taken by word or action, with intent to instigate the principal, or principals”. 54 However, the court held that mere presence may, in certain circumstances, amount to proof of participation. Justice Cave distinguished between accidental presence at the scene of a crime and deliberate presence that might amount to evidence of aiding and abetting. 55 He observed that “[w]here presence is prima facie not accidental it is evidence, but no more than evidence, for the jury [of abetting the assault]”. 56 In Wilcox v Jeffery, 57 the accused attended a concert in which the principal offender, a celebrated saxophone player, gave a performance which was in breach of the Aliens Order Act 49 50 51 52

54 55 56 57

R v Russell [1933] VLR 59; Jones and Mirrless (1977) 65 Cr App R 250; R v Clarkson [1971] 1 WLR 1402. R v Coney (1882) 8 QBD 534 at 557–558. Lam (2008) 185 A Crim R 453 at 478. R v Coney (1882) 8 QBD 534; R v Russell [1933] VLR 59; R v Clarkson [1971] 1 WLR 1402; R v Bland [1988] Crim LR 41; R v Allan [1965] 1 QB 130; Lam (2008) 185 A Crim R 453. R v Coney (1882) 8 QBD 534. The decision played a key role in the demarcation between unlawful prize-fighting and the lawful sport of boxing, with the court, “by implication at least, to be promoting amateur exhibitions or sparring contexts of an athletic purpose only”: J Anderson, The Legality of Boxing—A Punch Drunk Love? (London: Birkbeck Press, 2007) pp 48–49. R v Coney (1882) 8 QBD 534 at 557. R v Coney (1882) 8 QBD 534 at 540. R v Coney (1882) 8 QBD 534 at 540. [1951] 1 All ER 464.

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1920 (UK). The accused, who owned a jazz magazine, knew that the principal offender was only permitted entry into the United Kingdom on condition that he would not take employment and the accused made no protest against the principal offender’s actions. On appeal, the King’s Bench Division of the High Court held that the accused’s presence was evidence of aiding and abetting the illegal performance. Here, presence was seen as more than accidental because the accused paid to go to the concert and he went there wanting to report it. In R v Clarkson, 58 the English Courts Martial Appeal Court considered whether or not presence during the commission of a rape could give rise to liability as an accessory. A young woman went to a party at an army barracks. At about midnight, she went to the room of a soldier whom she knew well. He was not there. The other soldiers in the room attacked her and subjected her to a gang rape. The two accused, Clarkson and Carroll, did not participate in the rapes. At first, they simply stood outside the room, listening to what was happening. Later, they entered the room and remained there while the girl was raped. There was no evidence that the accused had done or said anything to assist or encourage the perpetrators. The Courts Martial Appeal Court, affirming Coney, held that being voluntarily and purposely present, witnessing the commission of a crime and offering no opposition or dissent, provides cogent evidence that the accused wilfully encouraged the crime or activity and so aided and abetted. The Courts Martial Appeal Court stressed that it is important that the presence in fact encouraged the principal offenders and that this is a question of fact for the jury. The principles have been discussed and applied in Stokes and Difford 59 and Adam. 60 An omission to act [7.50] In general, an accessory must assist or encourage the principal offender through a

positive act. However, an omission to act may give rise to criminal responsibility if the person concerned is under a duty to prevent the crime committed by the principal offender, or if the person concerned has the power of control over the principal offender but deliberately refrains from preventing the principal offender committing the offence. 61 This extent to which a person may become an accessory by omission was addressed in the Victorian Supreme Court in the 1933 case of R v Russell. 62 The accused committed bigamy and told his wife of the bigamous relationship. The wife and two children were then found drowned in a public pool. The accused claimed that his wife had drowned the children and then committed suicide by drowning herself. The accused claimed that he tried unsuccessfully to save them and failed to report the drowning because he was frightened. The accused was charged with murder and convicted of manslaughter. The trial judge directed the jury on two possible scenarios. First, if the accused were merely a silent observer, who stood by and did nothing, then he would be guilty on the basis of manslaughter. His omission could give rise to liability because, as a parent, he was under a duty to care for his children and hence must prevent his wife murdering his children. 58 59 60

61

62

[1971] 1 WLR 1402. (1990) 51 A Crim R 25. (1999) 106 A Crim R 510. Note that mere presence during the commission of a crime is not prima facie evidence of aiding and abetting. To be liable as an accessory, there must be evidence of encouragement or some element of control: in this way, an accused person who cohabited with a drug dealer and was merely aware of illegal activity involving heroin possession was not an accessory to the crime of heroin possession: R v Bland [1988] Crim LR 41. Criminal Code (Qld), s 7(1)(b); Criminal Code (NT), s 12(1)(b); Criminal Code (WA), s 7(b); Criminal Code (Tas), s 3(1)(b). In the jurisdictions applying the Model Criminal Code, the same outcome is achieved though the extended definition that conduct includes omissions to perform an act: Criminal Code (Cth), s 4.1(2); Criminal Code (ACT), s 13; Criminal Code (NT), s 43AD. [1933] VLR 59. [7.50]

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Alternatively, if the accused actively encouraged or persuaded his wife to kill the children, he was guilty of murder in that he would be taking part in the crime of murder committed by her. The jury returned a verdict of manslaughter on all three charges. The first scenario based the accused’s liability on his own conduct (in this case, an omission). This approach meant that he was directly liable as a principal offender. The second scenario based his liability on his secondary participation in the killings committed by his wife. Cussen ACJ considered the liability on the basis of secondary participation, and so did not focus on the question of parental duty. He reviewed the authorities governing complicity by mere presence, and the earlier decision of Coney. Cussen ACJ stated that if a person was present at the scene of a crime, assent to the crime could sometimes be made out by the “absence of dissent, or the absence of what may be called effective dissent”. 63 Mann J agreed with Cussen ACJ, but went even further to say that the accused’s liability arose from a father’s duty to save his children. 64 McArthur J, however, stated that mere non-interference was insufficient for liability as an aider and abettor. Clearly, the requirement of assent (or acquiescence) is an aspect of the fault element for complicity. The requirement of “manifest assent” in cases where the person is present but does nothing to prevent the commission of a crime, may be criticised for blurring the physical and fault elements. However, the role of assent demonstrates the judicial reluctance to impose accessorial liability for inactivity unless there is evidence that individuals knew or intended that their conduct would assist or encourage the principal offender. The duty to prevent a crime may go beyond the bounds of family ties. In Ex parte Parker: Re Brotherson, 65 the accused was an employee who allowed the principal offender to steal property from the accused’s employer. There was some evidence of positive encouragement, but Walsh J stated that, in some circumstances, a failure to carry out a duty to protect his employer’s property arising from a contract could amount to encouragement of the commission of a crime. 66 The Law Commission for England and Wales recommended that accessorial liability should encompass “failing to take reasonable steps to discharge a duty”. 67 It gives the example of a “disgruntled security guard” failing to turn on a burglar alarm with the intention of assisting another to burgle the premises of the guard’s employer. 68 In certain circumstances, a person may also be convicted if he or she fails to exercise control over the principal offender. For example, the owner of a car may have the power to control the driver of his or her vehicle, and, if there is a failure to exercise that power, the owner may be liable. 69 The control principle was confirmed in Dennis v Pight, 70 although the accused was not convicted on the facts. The accused allowed the principal offender to drive his car. She drove it in a dangerous manner while the accused was a passenger. The accused was held not guilty because he did not have time to prevent the act of dangerous driving. In R v Harris, 71 the accused was supervising a learner driver. He failed to prevent the learner driver’s dangerous driving and the learner driver killed a pedestrian. The English Court of Appeal held 63 64 65 66 67 68 69 70 71

R v Russell [1933] VLR 59 at 67. R v Russell [1933] VLR 59 at 75. Ex parte Parker: Re Brotherson (1957) 57 SR (NSW) 326. Ex parte Parker: Re Brotherson (1957) 57 SR (NSW) 326 at 330. Law Commission for England and Wales, Participating in Crime, Law Com No 305 (2007) p 58. Law Commission for England and Wales, Participating in Crime, Law Com No 305 (2007) p 58. Du Cros v Lambourne [1907] 1 KB 40. See also Rubie v Faulkner [1940] 1 KB 571. (1968) 11 FLR 458. [1964] Crim LR 54.

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that the accused was under a legal duty to supervise the learner, and that his failure to control the learner’s driving would make him liable as an accessory to causing death by dangerous driving. 72 A person who owns or possesses land may also have a duty to control those persons on his or her premises, and failure to exercise that duty may lead to criminal liability. In Tuck v Robson, 73 the accused let the principal offender drink alcohol on the accused’s licensed premises after closing time. The accused was convicted on the basis that he had a duty to control the principal offender and was present when the offence was committed. The control principle may extend to property other than vehicles and land. In Dennis v Pight, Smithers J stated the principle in these general terms: “[K]nowledge of an actual or threatened criminal use of one’s chattel raises a natural obligation to take reasonable steps to prevent such use and … failure to take such steps is evidence of an intention to aid and abet the commission of that criminal offence.” 74

This statement has not as yet been tested in relation to a specific fact situation. The imposition of accessory liability on the basis of the mere “power to control” the acts of another is a cause for some concern. David Lanham has suggested that there are convincing policy reasons for retaining a modified “control principle”, but only where the right to control property derives from ownership. 75 However, the Law Commission for England and Wales proposed that accessorial liability should be further circumscribed. In an early report, it recommended the abolition of accessorial liability on the basis of the power to control property. 76 In 1993, the Law Commission called for a new structure of statutory offences to replace the common law of complicity, 77 suggesting that accessorial liability “by assistance” should be limited to positive acts. Encouragement, by contrast, could be offered by mere presence during the commission of the crime, provided that the presence is intended and does, in fact, encourage the crime. 78 In two subsequent reports, the Law Commission also proposed the introduction of a statutory scheme in which inchoate and secondary liability would support and complement each other. 79 These proposals coalesced into Pt 2 of the Serious Crime Act 2007 (UK), creating inchoate offences albeit in a form that did not completely implement the Law Commission’s recommendations: see [7.115] for further discussion. It has been suggested that abolishing or restricting accessorial liability by omission is not required in Australia where the fault requirements are more stringent than in England. 80 The requirement in Russell that the accessory’s presence or inactivity must amount to “assent” to 72

73 74 75 76 77 78 79

80

See also R v JJ Alford Transport Ltd [1997] Crim LR 745 where a similar duty was applied to a company, rendering it liable for offences committed by its employees. The English Court of Appeal held that the company and its managers could be guilty of aiding and abetting company drivers who illegally falsified tachograph readings. If they knew that this practice was occurring and took no steps to prevent this misconduct, it would be open to the jury to infer positive encouragement. [1970] All ER 1171. Dennis v Pight (1968) 11 FLR 458 at 460. D Lanham, “Drivers, Control and Accomplices” [1982] Criminal Law Review 419. Law Commission for England and Wales, General Principles, Parties, Complicity and Liability for the Acts of Another, Working Paper No 43 (1972) p 35. Law Commission for England and Wales, Assisting and Encouraging Crime, Consultation Paper No 131 (1993). Law Commission for England and Wales, Assisting and Encouraging Crime, Consultation Paper No 131 (1993) p 134. Law Commission for England and Wales, Inchoate Liability for Assisting and Encouraging Crime, Law Com No 300 (2006) and Participating in Crime, Law Com No 305 (2007). The justifications for abandoning its original 1993 proposal to abolish complicity liability are discussed in Law Com No 300 (2006) [2.20]-[2.26]. S Bronitt, “Defending Giorgianni—Part Two: New Solutions for Old Problems in Complicity” (1993) 17 Criminal Law Journal 305 at 311. [7.50]

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the commission of the offence is underscored in Giorgianni v The Queen, 81 the leading High Court decision reviewing the fault elements for accessorial liability: see [7.60]. The High Court stressed that an accessory must possess an intention to assist or encourage the principal offender’s conduct based on “knowledge of the essential matters”. Mere recklessness or wilful blindness will not suffice. This stringent fault element of intention based on knowledge narrows the scope of complicity by omission considerably. For example, a landlord who knows that a tenant is cultivating illegal drugs would not be an accessory unless the landlord’s failure to exercise his or her power to control the property is also intended to assist or encourage the commission of that offence. From the perspective of moral culpability, there are few objections to convicting, as an accessory, any person who, by failing to exercise a power within his or her control, intends thereby to facilitate the commission of an offence by another. Nevertheless, imposing liability for complicity on the basis of omissions remains controversial. It places a heavy burden on individuals to control the criminal conduct of individuals under their control, constituting “in one sense a policy of conscripting ‘controllers’ into the ranks of crime prevention authorities”. 82 From a public policy perspective, these incremental extensions to complicity offer benefits in terms of flexibility, for example, by developing new forms of “server liability” for individuals who supply alcohol but do not take steps to prevent intoxicated persons under their control from driving. 83 While such innovations pursue legitimate policy objectives in relation to the control or supply of intoxicating or dangerous drugs, they significantly extend the reach of the criminal law. Arguably, such reforms are better left to the legislature rather than the courts. A related question to that of accessorial liability by inactivity is whether or not a person may be guilty as an accessory for supplying goods or advice which subsequently facilitates the principal offender’s offence. The circumstances which have preoccupied academics concern a shopkeeper or shop assistant who supplies the “tools of the trade” while not actually intending to assist or encourage the commission of a crime. The shopkeeper or shop assistant is simply indifferent to the customer’s subsequent use of the goods or advice supplied. In the English decision of R v Lomas, 84 the accused returned a jemmy at the owner’s request, knowing that the owner intended to use the jemmy to commit a burglary. The accused, who was indicted as an accessory before the fact, was convicted of housebreaking. The Court of Criminal Appeal quashed his conviction. While the reasoning employed by the court is not explicit in the judgment, subsequent courts have extrapolated from the decision the principle that a person cannot aid or abet an offence merely by returning property belonging to the perpetrator. The person returning the property, having no lawful right to withhold that property, could not be an accessory, even though he or she knew that the perpetrator intended to use the property in the commission of an offence. 85 The precise status of the Lomas defence in Australia is unclear. It is rarely litigated and has tended to arise in England where the courts are prepared to incriminate accessories on the basis of recklessness rather than intention. It has been suggested that the Lomas defence is redundant in Australia, following Giorgianni. 86 That is, individuals who supply goods that 81 82 83 84 85 86

(1985) 156 CLR 473. KJM Smith, A Modern Treatise on the Law of Criminal Complicity (Oxford: Clarendon Press, 1991) p 46. HR Weinert, “Social Hosts and Drunken Drivers: A Duty to Intervene?” (1985) 133 University of Pennsylvania Law Review 867. (1913) 9 Cr App R 220. Note that the charges against the accused person in Lomas would now fall under the provisions of Pt 2 of the Serious Crime Act 2007 (UK). For a review of the English cases relevant to this topic, see S Bronitt, “Defending Giorgianni—Part Two: New Solutions For Old Problems in Complicity” (1993) 17 Criminal Law Journal 305 at 311–314.

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facilitate the commission of a crime will only be liable where they act with the intention of assisting or encouraging the perpetrator. Conduct, even that which is strictly required by the civil law, is deservedly criminal when provided with an intention to assist or encourage the commission of a crime by another.

The Fault Element [7.55] This section examines the fault element for accessorial liability. In relation to fault, it is

conceptually useful to distinguish between two aspects: those fault elements that concern attitude, and those that concern cognition. 87 The accessory’s attitude refers to the mental state that accompanies an accessory’s acts which assist or encourage the principal offender to commit the offence. The controversial question in this regard is whether criminal liability for complicity should be restricted to that which is intended to assist or encourage the commission of the principal offender’s crime. The cognition element is that mental state which relates to the accessory’s knowledge of the “essential matters”. In this context, the question arises as to whether complicity requires actual knowledge or whether some lesser cognitive state, such as recklessness or wilful blindness, will suffice. The main debate in England concerning the fault element has been focused around an exchange of articles by Ian Dennis and Robert Sullivan. Dennis argues that the fault element for complicity, in addition to knowledge, requires some element of purpose. Sullivan, on the other hand, regards knowledge as the exclusive basis for culpability. 88 The common law in England remains unclear; as Glanville Williams observed, “[t]he authorities do not state a consistent fault principle for accessories”. 89 High Court’s approach to the fault element [7.60] The principles governing fault in Australia are in a much better state of repair

following the High Court decision of Giorgianni v The Queen. 90 In that case, Giorgianni leased and operated a prime-mover and trailer. He employed a driver, Renshaw, who lost control of the prime-mover that suffered a brake failure while heavily laden with coal. The prime-mover crashed into two cars, killing five people and seriously injuring another. Giorgianni was charged with five counts of culpable driving causing death and one count of culpable driving causing grievous bodily harm contrary to s 52A of the Crimes Act 1900 (NSW). Section 52A is an offence of strict liability: see Chapter 3, [3.235] “Strict Liability and Absolute Liability Offences”. The prosecution argued that Giorgianni had procured the act of culpable driving and that he was aware of the prime-mover’s brake problems, following maintenance work on the truck that he had recently undertaken. The trial judge directed the jury that in order for Giorgianni to have procured the act of culpable driving, he must or ought to have known that the brakes were defective. The trial judge went on to direct that it would equally suffice if Giorgianni had acted recklessly, not caring whether or not the brakes were defective. Giorgianni was convicted, but he eventually appealed to the High Court on the basis of the trial judge’s directions to the jury. The High Court overturned Giorgianni’s convictions and the majority set out the test for the fault element of complicity. The particular facts of the case required specific consideration 87 88

89 90

S Bronitt, “Defending Giorgianni—Part One: The Fault Required for Complicity” (1993) 17 Criminal Law Journal 242 at 244. See IH Dennis, “The Mental Element for Accessories” in P Smith (ed), Criminal Law: Essays in Honour of JC Smith (London: Butterworths, 1987) p 40; GR Sullivan, “Intent, Purpose and Complicity” [1988] Criminal Law Review 641; IH Dennis, “Intention and Complicity: A Reply” [1988] Criminal Law Review 649. G Williams, “Complicity, Purpose and the Draft Code—1” [1990] Criminal Law Review 4 at 4. (1985) 156 CLR 473. [7.60]

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of the fault required of an accessory when assisting or encouraging an offence of strict liability. However, the High Court took the opportunity to clarify, in general terms, the fault required for all accessories, irrespective of the type of offence assisted or encouraged. We will first analyse the High Court’s decision relating to the fault element concerning attitude and, in particular, whether criminal liability for complicity should be restricted to that which is intended to assist or encourage the commission of the perpetrator’s crime. We will then turn to the element of cognition. Fault elements concerning attitude: intentional assistance or encouragement [7.65] All of the members of the High Court in Giorgianni v The Queen, apart from Mason J,

stated that an accessory must intentionally assist or encourage the principal offender. Wilson, Dawson and Deane JJ stated: “Aiding, abetting, counselling or procuring the commission of an offence requires the intentional assistance or encouragement of the doing of those things which go to make up the offence.” 91

This attitudinal aspect of fault for accessorial liability is extremely controversial. It is not entirely clear what is necessary to constitute intention in this regard. On the one hand, it may mean a “specific intent” in the sense of entertaining a conscious purpose to promote the commission of the offence. 92 On the other hand, however, an “oblique intent” may be sufficient in that the secondary party knows the certainty or likelihood that his or her conduct will encourage or assist the principal offender to commit the offence. 93 These different forms of intent have been explored in Chapter 3, [3.180]. A careful analysis of the judgment in Giorgianni reveals that intention is employed in its narrower sense, requiring the accessory’s assistance or encouragement to be accompanied by a specific intent that the principal offender will commit the offence. The majority in Giorgianni was cognisant that “intent” had a variable meaning in the criminal law. It stated: “For the purposes of many offences it may be true to say that if an act is done with foresight of its probable consequences there is sufficient intent in law even if such intent may more properly be described as a form of recklessness. There are, however, offences in which it is not possible to speak of recklessness as constituting sufficient intent. Attempt is one and conspiracy is another. And we think the offences of aiding and abetting and counselling and procuring are others. Those offences require intentional participation in a crime by lending assistance or encouragement.” 94

The majority clearly favoured a requirement of specific intent, requiring that the accessory’s acts of assistance or encouragement “be intentionally aimed at the commission of the acts

91 92

94

Giorgianni v The Queen (1985) 156 CLR 473 at 505. See also Gibbs CJ at 482. R v Russell [1933] VLR 59 at 66 per Cussen CJ; Dennis v Pight (1968) 11 FLR 458; Macpherson v Beath (1975) 12 SASR 174 at 178; R v Giorgi (1982) 31 SASR 299 at 310 per Zelling J; Scott v Killian (1984) 36 SASR 438; Mills (1985) 17 A Crim R 411 at 450 per Roden J; Gollan v Nugent (1987) 8 NSWLR 166; Salford Health Authority; Ex parte Jamaway [1988] 2 WLR 442; Attorney-General v Able [1984] 1 QB 795; R v Clarkson [1971] 1 WLR 1402; National Coal Board v Gamble [1959] 1 QB 11 at 25–28 per Slade J; R v Samuels [1985] 1 NZLR 350. DPP (Northern Ireland) v Lynch [1975] AC 653; DPP (Northern Ireland) v Maxwell [1978] 1 WLR 1350; Attorney-General’s Reference (No 1 of 1975) [1975] QB 773; R v Millar [1970] 2 QB 54; National Coal Board v Gamble [1959] 1 QB 11 at 19 per Goddard LCJ, at 22–24 per Devlin J; R v Miller (1980) 25 SASR 170 at 200–201 per King CJ; McLean (1981) 5 A Crim R 36 at 40–41 per Roden J; Annakin (1988) 37 A Crim R 131; R v Giorgi (1982) 31 SASR 299 at 302 per King CJ; Scott v Killian (1985) 40 SASR 37 at 47 per Matheson J; Nirta v The Queen (1983) 51 ALR 53 at 70 per Jenkinson J. Giorgianni v The Queen (1985) 156 CLR 473 at 506.

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which constitute [the principal offender’s offence]”. 95 Chief Justice Gibbs held that the natural meaning of the words “aiding, abetting, counselling or procuring” and of their synonyms (for example, help, encourage, advise, persuade, induce or bring about by effort) suggest a more restrictive fault standard based on intent. When handed down, Giorgianni was criticised as being too restrictive, prompting calls for its reversal by statute. 96 The Model Criminal Code Officers Committee initially proposed that Giorgianni be reversed, though this was not the position adopted in its final report. The Criminal Code (Cth), following the Model Criminal Code, formulated the fault element for “Complicity and Common Purpose” under s 11.2 as follows: (3) For the person to be guilty, the person must have intended that: (a) his or her conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; or (b) his or her conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed.

Similar provisions have been included in the Codes of the Australian Capital Territory and the Northern Territory. 97 What then does intention to aid, abet, counsel or procure mean? The meaning of intention in this provision is determined by the principles of responsibility in the Code. 98 As Stephen Odgers has noted, when read in conjunction with the general definition of “intention”, to be liable accessories must: “intend that [their] conduct will have the result that an offence of the type in fact committed is encouraged or assisted … [the accused] intends that result if [the accused] ‘means to bring it about or is aware that it will occur in the ordinary course of events.’ That is, [the accused] must either ‘mean’ to aid, abet, counsel or procure an offence of the type in fact committed or be aware that [their] conduct will result in an offence of the type in fact committed being ‘aided, abetted, counselled or procured’ in the ordinary course of events.” 99

On first glance, it appears that the scope of “intention” for accessories under the Code is much broader than the majority view in Giorgianni for a number of reasons. First, intention under the Code is not limited to purpose in its narrow sense, but extends to an awareness of conduct resulting in offences of the type in fact committed in the ordinary course of events that can give rise to liability. As Kellam J of the Supreme Court of Victoria in Re Pong Su 100 clarified, Giorgianni’s position against recklessness as a basis of accessorial intention is reflected in the “clear language of s 11.2(3)(a)” of the Criminal Code (Cth). 101 Justice Kellam further explained that s 11.2(3)(a) was intended to relate to “complicity”, whereas s 11.2(3)(b) was 95

96 97

98 99 100 101

Giorgianni v The Queen (1985) 156 CLR 473 at 506. The majority also observed that if an alternative, less stringent fault element is permitted, “a person might be guilty of aiding, abetting, counselling or procuring the commission of an offence which formed no part of his [or her] design”: Giorgianni v The Queen (1985) 156 CLR 473 at 507. See B Fisse, Howard’s Criminal Law (5th ed, Sydney: Law Book Company, 1990) p 336; B Fisse, “Proceeds of Crime Act” (1989) 13 Criminal Law Journal 5 at 12. Criminal Code (ACT), s 45(2)(b); Criminal Code (NT), s 43BG(3)(b). See A Hemming, “In Search of a Model Code Provision for Complicity and Common Purpose in Australia” (2011) 30(1) University of Tasmania Law Review 53. See Criminal Code (Cth), s 5.2(3); Criminal Code (ACT), s 18(2); Criminal Code (NT), s 43AI(2). S Odgers, Principles of Federal Criminal Law (3rd ed, Sydney: Thomson Reuters, 2015) p 178 (footnote omitted). Re Pong Su (2005) 159 A Crim R 300. Re Pong Su (2005) 159 A Crim R 300 at 310. [7.65]

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intended to relate to “common purpose”. 102 The distinction is important because s 11.2(3)(b) has a broader fault element based on recklessness, 103 whereas s 11.2(3)(a) does not. The doctrine of common purpose and extended common purpose (which is governed by s 11.2(3)(b)) is discussed at [7.120]. Significantly, the New South Wales Law Reform Commission, after its extensive review of the fault element for complicity, favoured a formulation which is much closer to the “intention plus knowledge” model adopted by the High Court in Giorgianni: “For D to be guilty, he or she must have intended to assist or encourage the commission of the offence or an offence of the same type, knowing or believing in the existence of the facts and circumstances that in law constitute respectively the offence or an offence of the same type.” 104

Turning from the attitudinal element of intention to assist or encourage the principal’s offence, in the next section we examine the level of knowledge (state of cognitition) about this offence that a person must possess to be liable as an accessory. Fault elements concerning cognition: knowledge of the essential facts of the offence [7.70] The question for the High Court in Giorgianni was whether or not an accessory to the offence of culpable driving under s 52A had to possess actual knowledge of the “essential matters” (in this case, knowledge of the defective state of the vehicle), or whether some lesser mental state would suffice. Prior to Giorgianni, the degree of awareness required of an accessory concerning the factual ingredients of the principal offender’s crime was unclear. The earlier authorities referred only to actual knowledge as being the fault required for complicity. In Johnson v Youden, Goddard LCJ described the fault element for complicity in the following terms: “Before a person can be convicted of aiding and abetting the commission of an offence he [or she] must at least know the essential matters which constitute that offence. He [or she] need not actually know that an offence has been committed, because he [or she] may not know that the facts constitute an offence and ignorance of the law is not a defence.” 105

Later decisions took a broader approach, supplementing actual knowledge with recklessness or wilful blindness. In R v Glennan, the New South Wales Court of Criminal Appeal held that: “[I]t must be shown that [the accessory] either knew or suspected the existence of facts which would constitute the commission of the offence or, perhaps, that he [or she] acted recklessly, not caring whether the facts existed or not.” 106

The Court of Criminal Appeal further explained that knowledge embraces wilful blindness; that is, “a failure to make an inquiry which is of such a kind as to suggest that the defendant has deliberately abstained from acquiring knowledge because he [or she] suspected the existence of a fact which would have been ascertained on inquiry”. 107 102 103

105 106 107

Re Pong Su (2005) 159 A Crim R 300 at 312; ACCC v Davies [2015] FCA 1017 at [31]. Criminal Code (Cth) s 11.2(3)(b): “For the person to be guilty, the person must have intended that … his or her conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed” (emphasis added). New South Wales Law Reform Commission, Complicity, Report No 129 (2010), http:// www.lawreform.justice.nsw.gov.au/Documents/Publications/Reports/Report-129.pdf (cited 17 November 2016) p 47, Recommendation 3.1(3). Johnson v Youden [1950] 1 KB 544 at 546. R v Glennan (1970) 91 WN (NSW) 609 at 614. R v Glennan (1970) 91 WN (NSW) 609 at 614.

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The High Court in Giorgianni considered the suggestion in Glennan that, as an alternative to actual knowledge, recklessness or wilful blindness would suffice. The majority (Wilson, Deane and Dawson JJ) emphatically rejected the notion that recklessness as to the existence of the factual ingredients which constitute the principal offender’s offence would suffice: “It is not sufficient if [the accessory’s] knowledge or belief extends only to the possibility or even probability that the acts which he [or she] is assisting or encouraging are such, whether he [or she] realizes it or not, as to constitute the factual ingredients of a crime.” 108

Gibbs CJ and Mason J agreed with the majority that actual knowledge was required, and that recklessness could never be enough to constitute a person as an accessory. 109 They were prepared, however, to equate wilful blindness with knowledge. 110 This approach has been rejected in subsequent decisions on the role and meaning of wilful blindness: see Chapter 3, [3.200]. Applied to the facts in Giorgianni, the accused would only be an accessory to the strict liability offence of culpable driving committed by his driver, if he had actual knowledge of the defective state of the vehicle. Since recklessness did not suffice, a belief that the brakes were possibly (or even probably) defective would be insufficient for liability as an accessory. Therefore, the trial judge’s direction to the jury in terms of recklessness amounted to a misdirection, and on that basis the majority of the High Court allowed the appeal. Fault and the problem of divergence [7.75] There is still some question as to what will constitute knowledge of the essential facts

of an offence. Is it knowledge of the factual elements of the crime? Will it be enough for an accessory to know that the principal offender will commit a type of crime rather than a specific crime? Or will knowledge of the principal offender’s intention to commit a crime suffice? What is the effect if the principal offender’s offence diverges from the crime within the accessory’s contemplation? This problem of divergence was considered in Stokes and Difford. 111 Stokes and Difford were inmates of the Malabar Prison Complex. They were jointly charged with maliciously inflicting grievous bodily harm on another inmate, with intent to inflict grievous bodily harm. At the conclusion of the Crown case, the trial judge ruled that there was no case to go to the jury against Difford upon the joint charge, but allowed the jury to consider the alternative charge of maliciously inflicting grievous bodily harm (without the specific intent). Stokes was convicted as a principal offender of maliciously inflicting grievous bodily harm with intent to inflict grievous bodily harm. Difford was convicted as an accessory of maliciously inflicting grievous bodily harm. On appeal, the New South Wales Court of Criminal Appeal quashed Difford’s conviction. Justice Hunt, in delivering the judgment of the court, stated: “In relation to [accessories] … it seems to me, it is usually more appropriate to speak of the accessory’s knowledge (or awareness) of the principal offender’s intention to do an act with a particular state of mind at the time when the accessory aids, abets, counsels or procures the principal offender to commit the crime in question than it is to speak of the accessory’s knowledge of the act done by the principal offender with that state of mind.” (emphasis in original) 112

On the facts, it was held that the prosecution had failed to establish, first, that Difford knew of Stokes’ intention to hit the victim and that Stokes intended to inflict some physical injury, or, 108 109 110 111 112

Giorgianni v The Queen (1985) 156 CLR 473 at 506–507. Giorgianni v The Queen (1985) 156 CLR 473 at 487 per Gibbs CJ, at 495 per Mason J. Giorgianni v The Queen (1985) 156 CLR 473 at 482 per Gibbs CJ, at 495 per Mason J. (1990) 51 A Crim R 25. Stokes and Difford (1990) 51 A Crim R 25 at 38. [7.75]

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second, that Difford realised the possibility that some such injury might result but nevertheless intended to go ahead and hit the victim. The case of Stokes and Difford therefore stands for the proposition that the knowledge of the principal offender’s intention will be enough to satisfy this limb of the fault element. 113 An alternative approach is that the prosecution needs only to prove that the accessory had the equivalent state of knowledge required of the perpetrator. On this approach, the fault required for liability as an accessory turns on statutory interpretation. For example, in Tabe v The Queen, 114 a majority of the High Court held that the mental element in relation to attempted possession of a dangerous drug, and aiding, counselling or procuring, the attempted possession were the same; namely, knowledge of the existence of the substance rather than knowledge that the substance was in fact a dangerous drug. 115 This decision has been criticised as fundamentally flawed, and a return to a requirement of “parallelism” of the fault element for principal offender and accessories, although the High Court were at pains to point out that the outcome in the case depended on the interpretation of specific sections of the Drugs Misuse Act 1986 (Qld). 116 The accessory need not have knowledge of the precise crime that the perpetrator intends to commit; it is sufficient if the secondary party had knowledge of the type of crime to be committed. In R v Bainbridge 117 the accused supplied oxygen-cutting equipment to others who used the equipment to break into a bank and steal cash. The English Court of Appeal held that the accused was liable as he knew, when supplying the equipment, that it would be used for a breaking and entry offence. The Court of Appeal held that a secondary party only needed to know the general type of crime to be committed rather than the specific crime for criminal responsibility as an accessory to be made out. Similarly, in DPP (Northern Ireland) v Maxwell, 118 the House of Lords held that it was sufficient for liability where the secondary party knew that the crime to be committed was one from a limited range of offences. In Ancuta, 119 the accused appealed against a conviction for various offences concerning organised car stealing, including three counts of unlawful possession of motor vehicles. The accused had supplied the principal offender with number plates, which were attached to a stolen white Commodore several weeks later. The accused argued that there was insufficient evidence to support the prosecution’s argument that he had enabled the principal offender to gain unlawful possession of the white Commodore. The Queensland Court of Criminal Appeal dismissed the accused’s appeal on the basis that it was sufficient for the prosecution to establish that the accused had aided or abetted the type or kind of crime committed by the principal offender. The prosecution did not have to prove that the accused aided and abetted the principal offender’s possession of the Commodore that was the subject of the charge. This process of broadening the knowledge requirement poses the risk of overcriminalisation. The effect of Bainbridge is that an accessory who assists or encourages a person to commit a particular crime is theoretically liable for all crimes subsequently committed by the principal offender, no matter how long after the accessory’s assistance or encouragement they occur, provided those subsequent crimes are of the same type as the crime 113 114 115

117 118 119

McCarthy and Ryan (1993) 71 A Crim R 395. (2005) CLR 418. (2005) CLR 418 per Callinan and Heydon JJ with Gleeson CJ in a separate judgment. McHugh and Hayne JJ dissenting. M Barrett and J Dietrich, “The Knowledge Element for Accessories to Strict Liability and Limited Cognition Offences: Revisiting Tabe v The Queen” (2014) 38(4) Criminal Law Journal 197 at 210. The authors note that applying this principle of parallelism overextends the reach of accessorial liability: at 216. [1960] 1 QB 129. [1978] 3 All ER 1140. (1990) 49 A Crim R 307.

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which the accessory originally contemplated. 120 The risk of over-criminalisation, however, may be exaggerated. As one leading English criminal law scholar, JC Smith, perceptively observed: “What of the Bainbridge problem? Ever since the decision in 1959 academic lawyers and students have been having sleepless nights worrying about the seller of a rather durable jemmy being convicted of endless burglaries, of which he [or she] knew nothing, years after the sale. But the issue of multiple convictions did not arise in Bainbridge nor, so far as I know, has it arisen in any reported case in 38 years which have elapsed since we were alerted to the existence of the problem. We do not know, of course, that it has not caused concern to prosecutors but it can hardly be seen as a pressing practical problem.” 121

This problem may be “academic”, but it does reveal the conceptual difficulties that arise from linking accessorial liability to the commission of the principal offender’s offence. The Law Reform Commission of Canada has suggested a simple and neat solution to the problem of divergence. It proposes that there should be no criminal liability as an accessory where there is a difference between the crime the accessory intends to promote and the crime actually committed by the perpetrator, except where that difference relates to the “identity of the victim or to the degree of harm”. 122 The precise relationship between these earlier English decisions and Giorgianni is difficult to determine. The problem lies in reconciling Bainbridge and Maxwell with the requirement established in Giorgianni that an accessory must assist or encourage with an intention that the perpetrator will commit the offence. 123 One interpretation of Giorgianni is that an accessory’s intention must relate to the actual offence that is subsequently committed by the principal offender. It remains unresolved as to whether a broad qualification, similar to that used in Bainbridge, applies to intention as well as to knowledge. Put another way, will it suffice that the accessory intended to assist or encourage the commission of a crime of the same type as that which is actually committed by the perpetrator? The obvious way to resolve this uncertainty, and to reconcile these earlier cases with Giorgianni, is to extend the qualifications in Bainbridge and Maxwell to cover intention. This would mean that an accessory need intend only to assist or encourage an offence of the type committed in due course by the principal offender. Indeed, this solution to the problem of divergence has been adopted in the Criminal Code (Cth). Subparagraph 11.2(3)(a) states that, for a person to be guilty, he or she must have intended that “his or her conduct would aid, abet, counsel or procure the commission of the offence (including its fault elements) of the type the other person committed” (emphasis added). This provision is also reflected in the Criminal Codes of the Australian Capital Territory and the Northern Territory. 124 In reviewing the problems that have flowed from the adoption of a broader fault element in England that extends to recklessness, Andrew Simester concluded

120

121 122

123 124

This problem was recognised by the Law Commission for England and Wales in an early Working Paper on secondary liability: General Principles, Parties, Complicity and Liability for the Acts of Another, Working Paper No 43 (1972) pp 73–77. JC Smith, “Criminal Liability of Accessories: Law and Law Reform” (1997) 113 Law Quarterly Review 453 at 465. Law Reform Commission of Canada, Secondary Liability: Participation in Crime and Inchoate Offences, Working Paper No 45 (1985) p 36. This principle is contained in cl 4(6) of the revised Criminal Code of Canada proposed by the Commission in the Report on Recodifying Criminal Law, Report No 31 (1987) p 47. This is further discussed in S Bronitt, “Defending Giorgianni—Part One: The Fault Required for Complicity” (1993) 17 Criminal Law Journal 242 at 256–257. Criminal Code (ACT), s 45(2)(b)(i); Criminal Code (NT), s 43BG(3)(a). [7.75]

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that, by adopting a more stringent approach to fault in Giorgianni, the “courts of the Commonwealth … have been the better custodians of the common law”. 125

Principal and Joint Principal Offenders [7.80] The term “principal offender” refers to the person who directly performs the physical

elements of the criminal offence. In most cases, there is little dispute over who is the principal offender. However, on occasion, there may be more than one perpetrator of a crime. Two or more persons can be joint principals if they are closely connected to the occurrence of the physical element of the offence. 126 For example, if a number of individuals attack another, intending to kill their victim, and the combined effect of their blows is to cause death, each may be said to be a joint principal. 127 In R v Macdonald, 128 the victim, a young girl, died of starvation and lack of medical care after the two accused brutally mistreated and neglected her. The accused were both convicted of wilful murder on the basis that they were jointly responsible for the victim’s death. Two or more persons may be joint principal offenders where each has the requisite fault element and together perform all the physical elements of the crime. 129 The Law Commission for England and Wales gave, as an example, the situation where, during a robbery, one party holds a gun or holds down the victim while the other grabs the victim’s property. 130 The use of force and stealing are two separate physical elements of the offence of robbery and both have been made out in this situation. A similar approach has been adopted in a statutory deeming provision that applies to cases where the tribunal of fact cannot determine which role a party performed, that of an accessory or principal offender. Under s 11.2(7) of the Criminal Code (Cth), since the accessory and principal offender would be amenable to the same punishment, a guilty verdict can be returned: (7) If the trier of fact is satisfied beyond reasonable doubt that a person either: (a) is guilty of a particular offence otherwise than because of the operation of subsection (1) [that is, as a principal offender]; or (b) is guilty of that offence because of the operation of subsection (1) [that is, as an accessory]; but is not able to determine which, the trier of fact may nonetheless find the person guilty of that offence [emphasis added].

A similar provision exists in the Australian Capital Territory, 131 but does not exist in the Northern Territory.

Withdrawal By An Accessory [7.85] There is a general principle at law that, once an offence is committed, nothing the

offender does afterwards will affect his or her criminal responsibility. Repentance or attempts to minimise the harm caused will only be relevant to sentencing. With complicity, however, 125

131

A Simester, “The Mental Element in Complicity” (2006) 122 Law Quarterly Review 578 at 588, noting that a similarly stringent approach had been adopted in New Zealand and Canadian case law. R v Bingley (1821) Russ & Ry 446. Macklin and Murphy’s Case (1838) 2 Lew CC 225. [1904] QSR 151. R v Clarke and Wilton [1959] VR 645; R v Wyles; Ex parte Attorney-General (Qld) [1977] Qd R 169; R v Webb; Ex parte Attorney-General [1990] 2 Qd R 275; Russell and Russell (1987) 85 Cr App R 388. Law Commission for England and Wales, Parties, Complicity and Liability for the Act of Another, Working Paper 43 (1972) p 33. Criminal Code (ACT), s 45(8).

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126 127 128 129 130

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there may be a period of time between the assisting or encouraging of the crime and its actual commission. Considerations of social policy have led to the acceptance of the proposition that if an accessory counters his or her assistance or encouragement with equally obstructive methods, he or she should be acquitted. The different approach to withdrawal in relation to accessorial liability is justified by reference to its derivative nature. 132 Liability as an accessory does not crystallise until a crime is, in fact, committed by the principal offender. Hence, as a matter of logic, if a person withdraws from assisting or encouraging the crime before its commission, then there is no accessorial liability. The courts, while recognising that withdrawal may preclude liability for complicity or common purpose in certain circumstances, rarely articulate its justifying rationale. This conceptual uncertainty explains the conflicting approaches to withdrawal adopted by the courts and why the contours of the defence remain open to challenge. KJM Smith argues that there are two possible rationales for denial of liability for complicity on the basis of withdrawal. 133 The first approach is that evidence of withdrawal negates key ingredients of accessorial liability. As such, withdrawal is not a defence per se, rather it is merely evidence that the physical and fault elements of accessorial liability are not satisfied. Effectively neutralising the effect of the assistance or encouragement offered to the perpetrator before the commission of the offence means that the accessory’s conduct had no causative influence on the subsequent criminal conduct of the principal offender. This evidence may also support the inference that the accessory lacked the intention to assist or encourage the principal offender. The alternative “excusing” rationale for withdrawal is based on crimeprevention or public policy, with the effect that withdrawal should be viewed as a true defence. Withdrawal provides a basis for exculpation because of the “reasonable steps” taken to frustrate the commission of a crime. [7.90] What then constitutes an effective withdrawal that would preclude accessorial

liability? Withdrawal generally requires some positive act that gives unequivocal notice of a complete withdrawal to the principal offender. A mere change of mind or secret repentance will not be enough. 134 Repentance without a positive act is insufficient because, although the accessory may not possess the requisite fault element at the time of the commission of the crime, he or she will have possessed it at the time of assisting or encouraging the principal offender. In White v Ridley, 135 the accused employed an airline carrier to unwittingly import cannabis from Singapore into Australia. Before the plane took off, the accused was questioned by customs officers and he tried to get the airline to cancel delivery of the box containing the drug. The case concerned the doctrine of innocent agency rather than complicity, but the accused claimed that he had withdrawn from the enterprise and therefore was not criminally liable. (For a discussion on innocent agency, see [7.100] “Innocent agency and acting in concert” and following.) This argument based on withdrawal was rejected by a majority of the High Court (Gibbs, Stephen and Aickin JJ; Jacobs and Murphy JJ dissenting). The four judges constituting the majority, however, differed as to the nature of withdrawal as an exculpatory factor. 132 133 134

135

KJM Smith, A Modern Treatise on the Law of Criminal Complicity (Oxford: Clarendon Press, 1991) Ch 10. KJM Smith, A Modern Treatise on the Law of Criminal Complicity (Oxford: Clarendon Press, 1991) pp 251–254. R v Jensen and Ward [1980] VR 194 at 201 per the Court; White v Ridley (1978) 140 CLR 342; Becerra (1975) 62 Cr App R 212; R v Menniti [1985] 1 Qd R 520; R v Saylor [1963] QWN 14; R v Solomon [1959] Qd R 123; R v Croft [1944] KB 295; Crimes Act 1958 (Vic), s 324(2). (1978) 140 CLR 342. [7.90]

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Stephen and Aickin JJ were of the opinion that withdrawal could not exculpate an accused from criminal responsibility unless it broke the chain of causation. 136 Gibbs J, on the other hand, held that withdrawal is a defence in its own right, requiring a timely countermand and such action as is reasonably possible to counteract the effect of the previous conduct. 137 Murphy J adopted a broader, more flexible test for determining liability, based on whether the accused had done all he reasonably could do to prevent the commission of the offence. 138 This test recognises that, in some circumstances, timely countermand may be impractical (indeed life-threatening) and that informing the police may provide the basis for a good defence of withdrawal. The New South Wales Court of Criminal Appeal in Tietie 139 followed the approach of Gibbs J in treating withdrawal as a defence in its own right. This approach requires both a timely countermand and action to counteract the effect of previous conduct. An example of the latter action is informing the police of the proposed crime. 140 On Gibbs J’s view in White v Ridley, the accessory’s withdrawal must be communicated to the principal offender. In R v Whitehouse, Sloan JA stated: “Where practicable and reasonable there must be a timely communication of the intention to abandon the common purpose from those who wish to dissociate themselves from the contemplated crime to those who desire to continue it. What is a ‘timely communication’ must be determined by the facts of each case but where practicable and reasonable it ought to be by communication, verbal or otherwise, that will serve unequivocal notice upon the other party to the common unlawful cause that if he [or she] proceeds upon it he [or she] does so without the further aid and assistance of those who withdraw.” 141

In R v Rook, 142 the accused agreed with two other men to kill the wife of the instigator of the crime in return for £20,000. The accused did not turn up on the day the killing occurred. He was convicted of murder and, on appeal, argued that he had withdrawn from the agreement. The English Court of Appeal dismissed his appeal on the basis that he had failed to communicate his withdrawal to the other men. The court relied on Dunn LJ’s statement in Whitefield 143 that where a secondary party advises or encourages another, he or she must communicate his or her change of mind to the other or others involved, and such communication must provide unequivocal notice that if the others proceed, they do so without the aid and assistance of the party who initially advised and encouraged them. 144 In Whitefield itself, the accused had helped plan a burglary with the principal offender, but subsequently informed him that he no longer wished to participate. The accused did not take any physical steps to prevent the principal offender from committing the crime. Nevertheless, the Court of Appeal held that the communication itself amounted to timely and unequivocal notice of withdrawal to the principal offender. Similarly, in Miller v Miller, 145 a 16 year-old girl, Danelle Miller, who had been part of a decision to steal a car for a joyride was taken to have withdrawn from the joint illegal 136 137 138 139 140 141 142 143 144 145

White v Ridley (1978) 140 CLR 342 at 354 per Stephen J, at 363 per Aickin J. White v Ridley (1978) 140 CLR 342 at 350–351. White v Ridley (1978) 140 CLR 342 at 363. (1988) 34 A Crim R 438. R v Jensen and Ward [1980] VR 194 at 201. R v Whitehouse (1941) 1 WWR 112 at 115–116. [1993] 2 All ER 955. (1983) 79 Cr App R 36. Whitefield (1983) 79 Cr App R 36 at 39–40. (2011) 242 CLR 446. For a commentary on this case, see T Kelman, “Miller v Miller: Case Note” (2011) 10(1) Canberra Law Review 183.

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enterprise after she asked the driver, her cousin Maurin, to slow down and then twice asked him to stop so that she could get out. The driver lost control of and crashed the car, which was carrying nine passengers, killing one passenger and seriously injuring Danelle. By a majority of six to one, the High Court held that Maurin owed a duty of care to Danelle because she had communicated her withdrawal from the illegal activity of using a car without the consent of the owner. In dissent, Heydon J found that in simply asking to be let out of the car, Danelle had not taken “all reasonable steps to prevent the commission of the crime”. There may indeed be a problem when the desistence is very close to the commission of the crime. For example, in Becerra, 146 the accused and two other men broke into a house with intent to steal. The accused gave one of the men a knife to use should they be interrupted by anyone. The accused heard the victim coming down the stairs and told the men to leave. The accused jumped out of the window and the man who had been given the knife stabbed the victim and killed him. The accused was convicted of murder. An appeal against conviction was dismissed by the English Court of Appeal on the basis that the accused’s countermand was ineffective and did not amount to withdrawal. The court followed Sloan JA’s approach in Whitehouse requiring “timely communication”. 147 Sloan JA’s formulation places a fairly heavy onus on the accessory. It would seem that, in such a situation, nothing short of a physical act on the part of the accused would have stopped the murder occurring. Further, it is unclear whether an accessory’s timely communication to the police or potential victim may amount to an effective act of withdrawal. 148 It appears that the degree and type of assistance rendered by the accessory, together with the proximity in time to the commission of the offence, will have a bearing on what will constitute an effective withdrawal. It will, for example, be somewhat easier to show withdrawal after counselling or procuring the commission of an offence than it will be to show aiding or abetting it. If the accessory has only encouraged or advised the principal offender, then it may be enough for him or her to tell the principal offender to desist in unequivocal terms. 149 For example, in R v Grundy, 150 the accused supplied information to the principal offender in relation to a burglary, but substantial attempts to stop the principal offender breaking in during the two weeks leading up to the offence were held by the English Court of Appeal to be sufficient evidence of a valid withdrawal for the jury to consider. 151 Far more will be required if the secondary party supplies the means for committing the crime as the situation in Becerra attests. It is also unclear as to whether or not the accused’s withdrawal must be voluntary. There is very limited case law in support of this proposition, 152 but it has been argued that for withdrawal to be effective, it should be voluntary, as it more readily shows “absolution” from

146 147 148

149 150 151 152

(1976) 62 Cr App R 212. Becerra (1976) 62 Cr App R 212 at 218. Due to the restrictive nature of the defence, it will be difficult, if not impossible, for suppliers of goods or advice to perpetrators to communicate effective withdrawal: S Bronitt, “Defending Giorgianni—Part Two: New Solutions for Old Problems in Complicity” (1993) 17 Criminal Law Journal 305 at 306–307. See, generally, D Lanham, “Accomplices and Withdrawal” (1981) 97 Law Quarterly Review 575. R v Saunders and Archer (1576) 2 Plowd 473; 75 ER 706; R v Croft [1944] 1 KB 295; R v Fletcher [1962] Crim LR 551. [1977] Crim LR 543. See also Whitefield (1983) 79 Cr App R 36. Wilton (1993) 64 A Crim R 359 at 364 per Zeeman J; R v Malcolm [1951] NZLR 470; Commonwealth v Doris, 135 A 313 (1926). [7.90]

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potential liability arising from past acts. 153 In Ngawaka v The Queen, 154 Hammond J provided the following summary of the elements of withdrawal: (1) “There must in fact be a notice of withdrawal, whether by words or actions. (2) The withdrawal must be unequivocal. (3) That withdrawal must be communicated to the principal offenders, though there is some debate as to whether the communication must be to all the principal offenders. (4) The withdrawal may only be effected by taking all reasonable steps to undo the effect of the party’s previous actions. As with any test of ‘reasonableness’, it is impossible to divorce that consideration from the facts of a given case. The accused’s actions may have been so overt and influential that positive steps must be taken by him to intercede, and prevent the crime occurring. There is at least one authority (Grundy [1977] Crim LR 534) which suggests that where the accused’s participation was in the form of counselling, attempts by the accused to dissuade the principal offenders from proceeding with the crime are sufficient.” 155

The Criminal Code (Cth) has included the following statutory definition of withdrawal in s 11.2(4), which draws on a range of the common law principles above: (4) A person cannot be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person: (a) terminated his or her involvement; and (b) took all reasonable steps to prevent the commission of the offence.

This provision is now mirrored in the Criminal Codes of the Australian Capital Territory, the Northern Territory and Western Australia. 156 Clearly, the defence leaves open how termination must occur, particularly in relation to communication to the other parties, and what are reasonable steps to prevent the commission of the offence. The New South Wales Law Reform Commission, after examining the various common law formulations and tests above, endorsed a more flexible, contextual approach to the defence of withdrawal. Following the Criminal Code (Cth), the Commission recommended that a person (D), in order to escape liability for assisting or encouraging the commission of a crime by another person (P), must, before the offence was committed: (a) “terminate his or her involvement; and (b) take whatever reasonable steps are available to prevent the offence occurring.” 157

The Commission noted that, in determining whether the steps taken by (D) were “reasonable” in a particular case, the following matters should be considered: • “the significance of the assistance or encouragement previously given; • the seriousness of the offence in contemplation and its likely consequence; • whether or not (D) can be satisfied, on reasonable grounds, by (P)’s response that the offence will not occur; • any element of risk or duress posed by (P); and 153

154 155 156 157

D Ormerod and K Laird, Smith and Hogan: Criminal Law (14th ed, Oxford: Oxford University Press, 2015) p 268. For criticisms of this approach, see B Fisse, Howard’s Criminal Law (5th ed, Sydney: Law Book Company, 1990) p 351; KJM Smith, “Withdrawal from Criminal Liability for Complicity and Inchoate Offences” (1983) 12 Anglo-American Law Review 200 at 213–214. Ngawaka v The Queen [2004] NZCA 249. Ngawaka v The Queen [2004] NZCA 249 at [14]. Note that Ngawaka v The Queen affirmed Hammond J’s summary in R v Pink [2001] 2 NZLR 860. Criminal Code (ACT), s 45(5); Criminal Code (NT), s 43BG(5); Criminal Code (WA), s 8(2). Section 324(2) of the Crimes Act 1958 (Vic) refers to withdrawal without defining it. New South Wales Law Reform Commission, Complicity, Report No 129 (2010) [3.116].

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• (D)’s age and maturity.” 158 [7.95] In terms of future reform, KJM Smith has argued for further clarification of the

principles underlying the defence of withdrawal. 159 Smith notes that much of the uncertainty about the scope of the defence in the authorities above stems from the fact that the rationale of the defence has not been settled. As outlined above, there are thus two possible rationales for the defence: (1) withdrawal provides a route enabling an accessory to extricate him or herself from a criminal enterprise and increase the chances of such a person doing so, thereby reducing the risk of the principal offence being carried out; or (2) withdrawal provides evidence of the accessory’s lack of culpability or future dangerousness.

The problem under the present law is that withdrawal is often confused with a denial of the physical or fault element of the accessorial offence. As Smith notes, viewed as a true defence, withdrawal can only be raised when all the standard elements of complicity liability are otherwise present. Differing from the academic views expressed above, Smith points out that irrespective of the ultimate rationale adopted, motive should be regarded as a relevant factor, and that the defence of withdrawal should only be allowed where it is “genuine” or “voluntary”. In cases where the defence of withdrawal fails at trial, evidence that the accused took steps (albeit ineffective) to withdraw from the enterprise may be considered as mitigating factors relevant to sentence. 160 In cases where the defence of withdrawal succeeds, the accused may still be liable for conspiracy or incitement, relating to the earlier involvement in the criminal enterprise, before the decision to terminate involvement had been taken. 161

INNOCENT AGENCY AND ACTING IN CONCERT [7.100] Because of the derivative nature of aiding, abetting, counselling or procuring, it seems

logical that a person cannot be guilty of participating in an offence as an accessory unless that offence is in fact committed by the other person. 162 Most of the Australian statutory formulations reflect this position. 163 However, the law has developed avenues by which participants may be held liable even where the principal offender’s conduct is not in itself criminal or subject to criminal proceedings. The prime way in which derivative liability may be bypassed is through the doctrine of innocent agency which converts an apparent “aider or abettor” into a principal offender. The law has also developed in such a way as to enable the conviction of an aider or abettor, even where the principal offender is unknown or has been

158 159 160 161

162

163

New South Wales Law Reform Commission, Complicity, Report No 129 (2010) [3.116]. KJM Smith, “Withdrawal in Complicity: A Restatement of Principles” [2001] Criminal Law Review 769. See R v Lew; R v Ng [2003] NSWSC 781. This case was overturned on appeal, but on separate grounds: Ng v The Queen [2011] NSWCCA 227. As the New South Wales Law Reform Commission noted, “It is accepted that D could be seen to have a Pyrrhic victory, if he or she were to escape conviction as an accessory, but be convicted of incitement or conspiracy”. In such cases, as the Commission pointed out, earlier unsuccessful efforts to withdraw from the venture may nevertheless be relevant to sentencing: New South Wales Law Reform Commission, Complicity, Report No 129 (2010) [3.118]. Morris v Tolman [1923] 1 KB 166; Thornton v Mitchell [1940] 1 All ER 339; Cain v Doyle (1946) 72 CLR 409; R v Williams (1932) 32 SR(NSW) 504; Walsh v Sainsbury (1925) 36 CLR 464; R v See Lun (1932) 32 SR(NSW) 363; R v Demirian [1989] VR 97; Osland v The Queen (1998) 197 CLR 316 at 324 per Gaudron and Gummow JJ, at 342 per McHugh J. Criminal Law Consolidation Act 1935 (SA), s 267; Crimes Act 1958 (Vic), ss 323, 324. [7.100]

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acquitted. The High Court majority decision in Osland v The Queen 164 went some way toward clarifying this somewhat controversial area of the law insofar as it relates to those acting in concert. These two methods of bypassing the concept of derivative liability will be discussed in turn.

Innocent Agency 165

[7.105] Innocent agency, known as commission by proxy under the Model Criminal Code, is a doctrine that attributes criminal responsibility to a person who has not personally performed the physical elements of a crime, but uses another person who lacks responsibility – the “non-responsible agent” – to perpetrate the offence. The doctrine holds the person liable as a principal offender regardless of whether he or she was present at the scene of the crime. 166 The Law Commission for England and Wales described the doctrine thus: “A person acts through an innocent agent when he [or she] intentionally causes the external elements of the offence to be committed by (or partly by) a person who is himself [or herself] innocent of the offence charged by reason of lack of a required fault element, or lack of capacity.” 167

The language of “agency” in this context is apt to mislead as it suggests that the innocent party has assumed some representative function on behalf of the principal. To avoid this implication, it has been suggested that it is preferable to speak of an “innocent instrument” rather than an “innocent agent”. 168 The term “innocent agency”, however, continues to be used by most judges and commentators to describe the doctrine. An innocent agent is one who is not considered criminally responsible by reason of infancy, duress, mental impairment, lack of knowledge of the true facts, or honest belief that the act is not unlawful. The requirement of “innocence” refers to the agent’s lack of criminal legal responsibility rather than lack of moral fault. 169 An extensive range of offences have been recognised as having been committed by an innocent agent, including murder, 170 administering poison, 171 forgery, 172 theft, 173 offences involving fraud, 174 libel 175 and rape. 176 164

(1998) 197 CLR 316.

165

175

It has also been described as “perpetration-by-means”: G Fletcher, Rethinking Criminal Law (New York: Oxford University Press, 2000) p 639. White v Ridley (1978) 140 CLR 342; Matusevich v The Queen (1977) 137 CLR 633; R v Demirian [1989] VR 97; R v Michael (1840) 9 Car & P 356. See also GF Orchard, “Criminal Responsibility for the Acts of Innocent Agents” (1990) 2 Criminal Law Forum 45; G Williams, “Innocent Agency and Causation” (1992) 3 Criminal Law Forum 289. Since the person who lacks responsibility may not always be “innocent” in a moral sense, it has been suggested that “non-responsible agency” is a better term: Osland v The Queen (1998) 197 CLR 316, per McHugh J at [85]-[86]. Law Commission for England and Wales, General Principles, Parties, Complicity and Liability for the Acts of Another, Working Paper No 43 (1972) p 11, which was approved by Gleeson CJ and Heydon J in Pinkstone v The Queen (2004) 219 CLR 444 at 465. Pinkstone v The Queen (2004) 219 CLR 444 at 466 per Gleeson CJ and Heydon J. Hewitt (1997) 1 VR 301 at 312 per Winneke P. Coombes (1785) 1 Leach 388; Tyler and Price (1838) 1 Mood CC 428; Michael (1840) 9 C & P 356. R v Harley (1830) 4 C & P 369. Palmer (1804) 2 Leach 978; Giles (1827) 1 Mood CC 166; Mazeau (1840) 9 C & P 676; Clifford (1845) 2 Car & K 202; Bull (1845) 1 Cox 281; Valler (1844) 1 Cox 84; Bannen (1844) 1 Car & K 295. Pitman (1826) 2 C & P 423; Manley (1844) 1 Cox 104; Welham (1845) 1 Cox 192; Bleasdale (1848) 2 Car & K 765; Flatman (1880) 14 Cox 396; Adams (1812) R & R 225; Kay (1857) Dears & B 231; Paterson [1976] NZLR 394. DPP v Stonehouse [1978] 168 ER 773; Mutton (1793) 1 Esp 62; Brisac and Scott (1803) East, PC iv 164, 102 ER 792; Butcher (1858) Bell 6; Dowey (1868) 11 Cox 115; Butt (1884) 15 Cox 564; Oliphant (1905) 2 KB 73. Johnson (1805) 29 St Tr 81; Cooper (1846) 8 QB 533.

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167

168 169 170 171 172 173

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The doctrine requires that the person (D) who assisted or encouraged the non-responsible person (P) to commit an offence acted with the relevant fault element for the principal offence. The degree of fault required of (D) was examined by the High Court in White v Ridley. 177 In this case, the accused employed an airline carrier to unwittingly import cannabis into Australia. On appeal against conviction, a majority of the High Court held that the accused could be found liable for the importation of drugs via an innocent agent (the airline). The majority found that a person can be properly convicted of an offence when an innocent agent is used to perform the physical elements of the crime, providing the requisite intent is present and no other cause has intervened to displace the accused’s actions as a continuing legal cause of the crime’s physical elements. 178 The High Court has, however, placed some limits on the doctrine. In Pinkstone v The Queen, 179 the court rejected the argument that law enforcement officials could engage in action to incriminate a suspect—in this case, delivering drugs to another person—and be regarded as the “innocent agents” of the suspect. In this case, the accused had used an airline carrier to consign a package (which was found to contain drugs) from one State to another. After the drugs had been transported by the airline, which was an innocent agent, the police intercepted and assumed control of the drugs. Disguised as employees of the airline carrier, the police supplied the drugs to the intended recipient. The accused was found guilty of “supplying drugs” to another. The question arising on the appeal was whether there had been a “supply”, with the police interception of the drugs and their controlled delivery having raised the issue as to whether the police can be regarded as an “innocent instrument” of the accused’s criminal plans. All members of the High Court agreed that the actions of the undercover police, in supplying the drugs to the intended recipient, could not be imputed to the accused via the doctrine of innocent agency. This was because the police officers were not truly “innocent agents”, but rather delivered the drugs in accordance with a pre-conceived plan to secure conviction of the appellant. 180 A majority of the court, however, were prepared to uphold the conviction on the ground that the statutory definition of “supply” in the Western Australian legislation was sufficiently wide to cover the accused’s conduct in this case. The law governing drug trafficking, and the extensive legislative immunities conferred on police who engage in controlled operations, are discussed in Chapter 14, [14.150]–[14.155] and [14.210]–[14.235] respectively. The doctrine of innocent agency may apply even where the accused is personally unable to commit the crime as a principal offender. For example, in R v Cogan and Leak, 181 the accused, Leak, persuaded Cogan, his “drunken friend”, to have sexual intercourse with Leak’s wife. The latter submitted to sex with Cogan out of fear of her husband. She did not struggle with Cogan, but sobbed throughout the ordeal and tried to turn away from him. Cogan was convicted of rape and Leak was convicted of aiding and abetting the rape. On appeal, Cogan argued that he honestly believed the victim had been consenting. His appeal was allowed and his conviction quashed. Leak then appealed on the ground that he could not be convicted of aiding and abetting Cogan because the latter had been acquitted of the crime of rape. When the case of Cogan and Leak was heard, a husband could not be found guilty of raping his wife. Nevertheless, the Court of Appeal upheld Leak’s conviction on the 176 177 178 179 180 181

R v Cogan and Leak [1976] 1 QB 217; Hewitt (1997) 1 VR 301. See G Hubble, “Rape by Innocent Agent” (1997) 21 Criminal Law Journal 104. (1978) 140 CLR 342. White v Ridley (1978) 140 CLR 342 at 354 per Stephen J, at 363 per Aickin J. (2004) 219 CLR 444. Pinkstone v The Queen (2004) 219 CLR 444 at 451–453 per Gleeson CJ and Heydon J, at 464–467 per McHugh and Gummow JJ, at 479–481 per Kirby J. [1976] QB 217. [7.105]

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basis that he had possessed the necessary fault element for raping his wife and had used Cogan as an “instrument” for the necessary physical act. The English Court of Appeal clearly viewed Leak as a principal offender rather than an aider and abettor. The Court stated: “The modern law allowed Leak to be tried and punished as a principal offender. In our judgment he could have been indicted as a principal offender. It would have been no defence for him to submit that if Cogan was an ‘innocent’ agent, he was necessarily in the old terminology of the law a principal in the first degree, which was a legal impossibility as a man cannot rape his own wife during cohabitation. The law no longer concerns itself with niceties of degrees in participation in crime; but even if it did Leak would still be guilty. The reason a man cannot by his own physical act rape his wife during cohabitation is because the law presumes consent from the marriage ceremony … There is no such presumption when a man procures a drunken friend to do the physical act for him.” 182

This decision has been criticised on the ground that the “bodily connotations” of rape are so strong that it is incongruous to hold that the offence can be perpetrated by another’s act. 183 The Victorian Court of Appeal has stressed, however, that the physical element of rape can be satisfied by an accused sexually penetrating a person who is not consenting or by causing such a person to be sexually penetrated. 184 Special provisions dealing with innocent agency have been enacted in the Criminal Codes of the Australian Capital Territory, the Northern Territory and the Commonwealth. 185 Known as “Commission by proxy”, s 11.3 provides that: A person who: (a) has, in relation to each physical element of an offence, a fault element applicable to that physical element; and (b) procures conduct of another person that (whether or not together with conduct of the procurer) would have constituted an offence on the part of the procurer if the procurer had engaged in it; is taken to have committed that offence and is punishable accordingly.

The Code clarifies that a person will be liable as the perpetrator where he or she possesses the relevant fault element for each physical element of an offence, and has procured another person to commit the physical elements of the offence. 186 If these elements occur, the person is deemed to have committed the offence and is punishable accordingly. Unlike the complicity provisions under the Criminal Codes of the Australian Capital Territory, the Northern Territory and Commonwealth (discussed at [7.30]), “commission by proxy” focuses on conduct of the procurer, without the need to prove the commission of an offence by the other person. 187 It should also be noted that, in relation to the “relevant fault element” for each physical element of the offence, the application of any relevant “general part” fault elements 188 will have to be flexibly applied, as the wording of these elements 182 183 184 185 186

187 188

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R v Cogan and Leak [1976] QB 217 at 223. G Williams, Textbook of Criminal Law (2nd ed, London: Stevens and Sons, 1983) p 371; see also D Omerod, Smith and Hogan Criminal Law (13th ed, Oxford: Oxford University Press, 2011) pp 234-235. Hewitt (1997) 1 VR 301. See, further, G Hubble, “Rape by Innocent Agent” (1997) 21 Criminal Law Journal 204. Criminal Code (ACT), s 46; Criminal Code (NT), s 43BH; Criminal Code (Cth), s 11.3. Applying a dictionary definition, Stephen Odgers suggests that “procures” means “to obtain or get by care … especially by unscrupulous or indirect means” but without a strict requirement of causation. Odgers argues that if X pays Y to undertake certain conduct that Y would have performed anyway, X has nonetheless procured the conduct of Y: S Odgers, Principles of Federal Criminal Law (3rd ed, Sydney: Thomson Reuters, 2015) p 207. S Odgers, Principles of Federal Criminal Law (3rd ed, Sydney: Thomson Reuters, 2015) p 206. Criminal Code (Cth), Div 5; Criminal Code (ACT), Pt 2.2, Div 2.2.3; Criminal Code (NT), Pt IIAA, Div 2, Subdiv 3. [7.105]

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assumes that the fault element being described is applicable to the accused themselves, rather than that of the procured innocent agent. For example, s 5.2(1) of the Criminal Code (Cth) refers to a person’s conduct in having an intention to commit an offence; that is, where they “mean to engage in that conduct”. In the context of innocent agency, Stephen Odgers argues that: “[T]he defendant should be regarded as ‘having’ the fault element of intention with respect to a conduct fault element if the defendant means that the person procured should engage in that conduct.” (emphasis added) 189

Similarly, Odgers argues that the elements of the fault element of negligence 190 should be applied to the conduct of the innocent agent, rather than the accused. 191 This is a sensible approach to ensure the relevance of the “general part” fault principles to the innocent agency provisions.

Acting in Concert [7.110] Occasionally, because of the evidential difficulties in identifying the precise role of each party, it will be difficult to distinguish between whether parties should be charged as joint principals, or alternatively, as principal offender and “aider or abettor etc”. The common law has developed another way of holding parties liable as an accessory through the doctrine of common purpose. This will be explored in the next section at [7.120]. However, it is important to distinguish between persons who are joint principal offenders and those who are aiding and abetting because: (1) of the different nature of the fault element involved in these doctrines; and (2) liability for aiding and abetting remains derivative in nature and thus requires the prosecution to establish a priori the guilt of the principal offender. In general, there are three ways in which a person may participate by being present at a crime. They are: • primary; • derivative; and

• acting in concert. To illustrate these distinctions, consider the following scenarios. First, Jack and Jill attack Mary, intending to kill her, and the combined effect of their blows causes death. Here, each is said to be a joint principal offender. Their liability is said to be “primary”. Secondly, Jill watches out for passers-by while Jack hits Mary on the head with an iron bar, causing her death. Here, Jack may be said to be the principal offender and Jill the aider and abettor. Jill’s liability is said to be “derivative” in that it is dependent on the offence being committed. Jill may be tried and punished as if she were the principal offender. Thirdly, Jack and Jill decide to kill Mary. According to a pre-conceived plan, Jill holds Mary down while Jack hits Mary over the head with a brick, causing her death. Here, both Jack and Jill are said to be “acting in concert” and each is responsible for the acts of the other in carrying out the crime. On this scenario, Jack and Jill’s liability is now considered in Australia to be “primary”, and it will be enough for the prosecution to prove that the acts were performed in the presence of both Jack and Jill and pursuant to a pre-conceived plan. 189 190 191

S Odgers, Principles of Federal Criminal Law (3rd ed, Sydney: Thomson Reuters, 2015) p 207. Criminal Code (Cth), s 5.5. S Odgers, Principles of Federal Criminal Law (3rd ed, Sydney: Thomson Reuters, 2015) p 207. [7.110]

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In relation to this third scenario, Smith J stated in R v Lowery (No 2): “The law says that if two or more persons reach an understanding or arrangement that together they will commit a crime and then, while that understanding or arrangement is still on foot and has not been called off, they are both present at the scene of the crime and one or other of them does, or they do between them, in accordance with their understanding or arrangement, all the things that are necessary to constitute the crime, they are all equally guilty of that crime regardless of what part each played in its commission.” 192

Sometimes, however, it may be difficult to draw a distinction between the second and third scenarios. The general rule appears to be that if it is unclear which party is the principal and which is the aider and abettor, both may nevertheless be convicted of the offence. 193 For example, the facts of Clayton v The Queen; Hartwick v The Queen; Hartwick v The Queen, 194 could be analysed in terms of either primary liability, in the form of acting in concert, or as a form of accessory liability, applying the doctrine of extended common purpose. Lisa Hartwick, her former husband, John Hartwick, and a friend, Celia Clayton, were convicted of the murder of Steven Borg and of intentionally causing serious injury to his girlfriend, Paula Rodwell. There had been a dispute between the offenders and the victims over money and property damage. The Hartwicks and Celia Clayton had gone to Paula Rodwell’s house armed with various weapons, including metal and wooden poles and a large carving knife. Paula Rodwell was assaulted and held at knifepoint while Steven Borg was severely beaten with the poles and stabbed a number of times. One of the stab wounds led to his death. The prosecution argued that, although it could not identify which of the three offenders inflicted the fatal stab wound, each of them was guilty of murder. The prosecution argued that this could be established either on the basis of the offenders “acting in concert”, according to a pre-conceived plan, or by way of the doctrine of extended common purpose, on the basis that each offender had agreed to assault Steven Borg and each offender had reasonably foreseen the possibility that death or grievous bodily injury might result. Six of the High Court justices were of the opinion that the doctrine of extended common purpose did not overly complicate the trial of the three offenders. The issues, they stated, were relatively simple: “What did the applicant agree was to happen; what did the applicant foresee might happen; what did the applicant do at the house?” 195 Similarly, in R v Demirian, McGarvie and O’Bryan JJ had taken the view that the theoretical distinction between primary liability for those acting in concert and derivative liability as an aider and abettor is of little practical significance. They stated: “When the evidence is that the accused were present acting in concert when the crime was committed it is seldom necessary for a jury to find, or to be concerned, whether individually they were principal offenders or accessories at the crime. They will all fall within one or other of those categories. They may all be convicted of the crime.” 196

A person may be found to have acted in concert even if he or she was not present at the scene of the crime. In Camilleri, 197 Phillips CJ and Brooking JA upheld a conviction of murder through the doctrine of acting in concert. The accused was not present at the scene of the murders, being several hundred metres away at the time. However, the evidence showed that the offenders had acted in agreement prior to and subsequent to the murders of the two 192 193 194 195 196 197

R v Lowery (No 2) [1972] VR 560 at 560. R v Clough (1992) 28 NSWLR 396 at 398–399; R v Swindall and Osborne (1846) 2 Car & Kir 230. (2006) 231 ALR 5003; Huynh v The Queen; Duong v The Queen; Sem v The Queen (2013) 295 ALR 624 at 632-633. Clayton v The Queen; Hartwick v The Queen; Hartwick v The Queen (2006) 231 ALR 500 at 507. R v Demirian [1989] VR 97 at 123. (2001) 119 A Crim R 1063.

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schoolgirls, and thus it was held that it could be inferred that the accused was acting in concert when the girls were murdered. Special leave to appeal to the High Court was refused. 198 The conceptual basis for the doctrine of acting in concert has been problematic. In England, the weight of academic opinion favours the view that common purpose or joint enterprise liability is a type of accessorial or derivative liability. 199 A clear conceptual distinction is drawn between the principal offender who actually commits the offence, and the accessories who jointly agree, expressly or impliedly, to its commission. The idea that a person who jointly agrees to the commission of an offence but does not actually commit the physical elements may be deemed to “participate” as a principal offender is viewed as illogical. JC Smith was strongly critical of the trend to view joint enterprise as a means of participating in another person’s offence, as opposed to simply being an application of ordinary principles of accessorial liability: “If D and P set out together to rape (or to murder), how does D ‘participate’ in P’s act of sexual intercourse with V (or P’s pulling of the trigger and shooting V) except by assisting him [or her] or encouraging him [or her] … It is submitted that there is no other way.” 200

In R v Demirian, McGarvie and O’Bryan JJ referred to the cases relating to accused persons acting in concert and stated: “In none of the other cases did the court decide that all persons present at the crime and acting in concert were to be treated as principals in the first degree. What was decided was that all were liable to be convicted of the crime.” 201

They therefore appear to be agreeing with the English approach. However, this statement was expressly disapproved of by Callinan J in Osland v The Queen, on the basis that those who act in concert are to be treated as being “causatively jointly responsible for the commission of the crime”. 202 Their responsibility is thus primary, rather than derivative. McHugh J also stated in Osland that McGarvie and O’Bryan JJ’s statement in Demirian was inconsistent with previous authority. 203 Australian academic opinion equally emphatically supports the view that acting in concert is a form of primary rather than derivative liability. For example, in their review of the authorities, Louis Waller and Bob Williams assert that R v Lowery (No 2) established the following principle: “[E]ven if only one participant performed the acts constituting the crime, each will be guilty as principals in the first degree if the acts were performed in the presence of all and pursuant to a preconceived plan. In this case, the parties are said to be acting in concert.” 204

Conceptually then, the first and third scenarios set out above are examples of primary liability. Each participant is jointly responsible for the commission of the crime. The second scenario, 198 199

200 201 202 203 204

Camilleri v The Queen (2002) 23(9) Leg Rep C5. See CMV Clarkson, “Complicity, Powell and Manslaughter” [1998] Criminal Law Review 556; JC Smith, “Criminal Liability of Accessories: Law and Law Reform” (1997) 113 Law Quarterly Review 453 at 462. Some judges, however, have viewed the “doctrine of joint enterprise” as being governed by principles distinct from accessorial liability: Stewart and Schofield [1995] 1 Cr App R 441 per Hobhouse LJ. JC Smith, “Criminal Liability of Accessories: Law and Law Reform” (1997) 113 Law Quarterly Review 453 at 462. R v Demirian [1989] VR 97 at 124. Osland v The Queen (1998) 197 CLR 316 at 402. Osland v The Queen (1998) 197 CLR 316 at 349. T Anthony et al, Waller and Williams Criminal Law—Text and Cases (12th ed, Sydney: LexisNexis Butterworths, 2013) p 671. This statement of law, which appeared in earlier editions, was approved by McHugh J in Osland v The Queen (1998) 197 CLR 316 at 343; see also D Lanham, “Primary and Derivative Criminal Liability: An Australian Perspective” [2000] Criminal Law Review 707 at 714. [7.110]

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however, provides an example of derivative liability. It is dependent upon the existence of criminal behaviour upon which the aider and abettor’s liability may be based. As stated before, because of the derivative nature of aiding, abetting, counselling or procuring, the principal offence must have been committed before a person falling into one of those categories may be found criminally responsible. 205 However, the concept of “acting in concert” has been used to hold such a person liable even where the perpetrator is not. 206 That is, a person who has assisted or encouraged a crime pursuant to a pre-conceived plan may be convicted even where the perpetrator has died, is unknown, has not been arrested or has even been acquitted. 207 A person acting in concert can still be held liable if the perpetrator is exempt from prosecution, 208 or where a defence is available to the perpetrator. 209 For example, in King v The Queen, 210 the accused, King, was jointly charged with another man, Matthews, as principal offenders in the murder of King’s wife. The prosecution claimed at the trial that Matthews had actually killed the victim. He was acquitted, presumably on the basis that there was a possibility that some other person had killed the victim. King, however, was convicted of murder. On appeal, the majority of the High Court stated that there was no inconsistency between the conviction of King and the acquittal of Matthews. On the facts, the accused had encouraged someone to kill the victim and the offence had been carried out. Dawson J stated: “[W]here two persons are tried jointly upon the one charge as participants in the same degree, it does not inevitably follow that both must be convicted or both must be acquitted … The evidence may be sufficient to prove the case against one accused beyond reasonable doubt, but be insufficient to prove the case against the other.” 211

In Matusevich v The Queen, 212 the accused, who had been jointly charged with murder, was found guilty despite the principal offender being found not guilty of murder on the ground of insanity. The members of the High Court, however, differed in their reasons for this conclusion. The majority appeared to have supported the principle that it is the acting in concert that extends liability. The accused could be found liable provided that the principal offender knew the nature and quality of the act but did not know that it was wrong. Aickin J specifically referred to acting in concert in this regard, 213 and Mason and Murphy JJ agreed with this. 214 Gibbs and Stephen JJ appear to have gone further in extending liability to a situation where the principal offender did not know the nature and quality of the act. Gibbs J, however, went on to say that this fact situation could also be analysed via the doctrine of innocent agency. 215 Gibbs J pointed out that the law on this issue was unsettled. 216 205

208 209 210 211 212 213 214 215

Morris v Tolman [1923] 1 KB 166; Thornton v Mitchell [1940] 1 All ER 339; Cain v Doyle (1946) 72 CLR 409; R v Williams (1932) 32 SR(NSW) 504; Walsh v Sainsbury (1925) 36 CLR 464; R v See Lun (1932) 32 SR(NSW) 363; R v Demirian [1989] VR 97; Osland v The Queen (1998) 197 CLR 316 at 324 per Gaudron and Gummow JJ, at 342 per McHugh J. King v The Queen (1986) 161 CLR 423; R v Humphreys and Turner [1965] 3 All ER 689; Sweetman v Industries and Commerce Department [1970] NZLR 139 at 148 per Richmond J; Andrews Weatherfoil Ltd, Sporle and Day (1971) 56 Cr App R 31 at 40. King v The Queen (1986) 161 CLR 423; R v Darby (1982) 148 CLR 668; Murray v The Queen [1962] Tas SR 170; R v Lopuszynski [1971] QWN 33; R v Daniels [1972] Qd R 323; O’Sullivan v Thurmer [1955] SASR 76. R v Austin [1981] 1 All ER 374. Bourne (1952) 36 Cr App R 125; Matusevich v The Queen (1977) 137 CLR 633. (1986) 161 CLR 423. King v The Queen (1986) 161 CLR 423 at 433–434. (1977) 137 CLR 633. Matusevich v The Queen (1977) 137 CLR 633 at 633–664. Matusevich v The Queen (1977) 137 CLR 633 at 645 per Mason J, at 648 per Murphy J. Matusevich v The Queen (1977) 137 CLR 633 at 638.

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206

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The High Court decision in Osland v The Queen 217 also deals with liability for complicity where the principal offender is not convicted. Heather Osland and her son, David Albion, were charged with the murder of Frank Osland, Heather Osland’s husband and David Albion’s stepfather. Frank Osland had a history of violence towards his wife and stepson. Both Osland and Albion dug a grave for the deceased during the day of 30 July 1991. Osland then gave the deceased sedatives in his dinner and was present when Albion struck the fatal blow. They then buried the body and acted as though Frank Osland had simply disappeared, including reporting the deceased as a missing person. At their trial for the murder of Frank Osland, both Osland and Albion relied on the defences of self-defence and provocation. A clinical and forensic psychologist, Dr Ken Byrne, gave evidence concerning “battered woman’s syndrome”. This was used in order to bolster the defences of self-defence and provocation in relation to Osland. On 2 October 1996, Osland was convicted, but the jury could not reach a verdict in relation to Albion. He was later retried and was acquitted on 12 December 1996. Osland’s application for leave to appeal to the Victorian Court of Appeal was dismissed. 218 She then appealed to the High Court. Just before the special leave application in the High Court, the High Court directed counsel for Osland that it wished to hear argument on the point as to the possible inconsistency of the verdicts. This had not been raised previously. Accordingly, counsel for Osland argued, first, that Osland’s conviction was inconsistent with the jury’s failure to convict her son and, secondly, that it was inconsistent with Albion’s subsequent acquittal. All the members of the High Court dismissed the second point, following the reasoning in King v The Queen, 219 that different evidence may lead to different outcomes. However, the members of the High Court were split 3–2 as to the first ground, concerning the alleged inconsistency between Osland’s conviction and the jury’s failure to convict her son at their joint trial. The prosecution argued at the trial that Osland and Albion were acting pursuant to an understanding or arrangement and that they were both liable as principal offenders. No issue was taken to this approach by the defence at trial. The defence accepted the prosecution case that Osland was equally responsible for the acts of Albion and never raised the argument that Osland’s conviction was dependent upon the conviction of Albion. McHugh, Kirby and Callinan JJ held that there was no inconsistency between the verdicts at trial. Where two or more people act in concert, the verdict in relation to each offender may differ. McHugh J said that because this was a case of presence at the scene and acting in concert, the jury were entitled to convict Osland and fail to reach a verdict on Albion because the issue of their criminal responsibility was independent. 220 The evidence supporting the defences differed in the case of each accused and was capable of giving rise to different verdicts. Kirby J expressly agreed with McHugh J on this point in relation to those acting in concert, and stated that there had not been the slightest suggestion raised at trial that Osland did not actively contribute to Frank Osland’s death. 221 Similarly, Callinan J said that where two or more people act in concert, they are causatively jointly responsible for the commission of the crime. 222 On the facts, Osland had made a 216 217 218 219 220 221 222

Matusevich v The Queen (1977) 137 CLR 633 at 638. (1998) 197 CLR 316. R v Osland [1998] 2 VR 636. (1986) 161 CLR 423. Osland v The Queen (1998) 197 CLR 316 at 360. Osland v The Queen (1998) 197 CLR 316 at 383. Osland v The Queen (1998) 197 CLR 316 at 402. [7.110]

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significant contribution to the killing by preparing the grave, drugging Frank Osland, being present at the killing, holding him down on the bed during his death throes, and planning the burial and concealment of the grave. Gaudron and Gummow JJ, in the minority, agreed that there is no necessary inconsistency between the conviction of a person who substantially contributed to the death of another and the acquittal of a person whose act is the immediate cause of death. 223 However, Gaudron and Gummow JJ went on to say that, on the facts, the only act done by Osland which might be thought to have contributed to the death of her husband was the mixing of sedatives into his dinner. 224 This was not a substantial contribution given that the judge directed the jury that it could only be the blow that was the operative and substantial cause of death. Gaudron and Gummow JJ then separated the causation issue from the question of whether or not Osland and Albion acted in concert. They stated that the only way in which Osland could be convicted was if Albion had acted pursuant to an understanding or arrangement that they would kill Frank Osland. 225 They were of the view that there could not have been any understanding or arrangement unless the prosecution had negatived self-defence and provocation in relation to Albion. Because these defences had not been negatived, there could not have been an agreement. This reasoning is very difficult to follow. As McHugh J points out, there is no inconsistency in finding that Albion was acting in self-defence or under provocation and at the same time acting pursuant to an understanding or arrangement to kill Frank Osland. 226 Nor does it seem logical to divorce the causation issue from that of acting in concert. It seems that Callinan J’s view—that where two or more people act in concert they are causatively jointly responsible for the commission of the crime—is to be preferred here. In all, the significant principles to be derived from Osland’s case are, first, that the doctrine of acting in concert is a form of primary, rather than derivative liability, and, second, where two or more people act in concert, the verdict in relation to each offender may differ.

Law reform perspectives The Future of Derivative Liability [7.115] Aiding, abetting, counselling or procuring another person to commit an offence is not, and never has been, a distinct offence because accessorial liability is conventionally conceived of as being derivative in nature, requiring the prosecution to prove that the person who was assisted, or encouraged, committed, or at least attempted to commit, the offence. The fault required for this mode of complicity is complex because it has “two points of reference rather than one—the wrongful act of the accessory as well as the wrongful act of the principal”. 227 The derivative nature of accessorial liability, which links the liability of the accessory to the guilt of the principal offender, has been a major source of academic dissatisfaction and has produced many conceptual strains. For example, the broad qualification to the knowledge rule in Bainbridge (see [7.75]) is an unfortunate consequence of tying the liability of the accessory to the commission of the perpetrator’s offence. In addition, John 223 224 225 226 227

Osland v The Queen (1998) 197 CLR 316 at 325. Osland v The Queen (1998) 197 CLR 316 at 325–326. Osland v The Queen (1998) 197 CLR 316 at 327. Osland v The Queen (1998) 197 CLR 316 at 360. I Dennis, “The Mental Element for Accessories” in P Smith (ed), Criminal Law: Essays in Honour of JC Smith (London: Butterworths, 1987) p 58.

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Spencer has pointed out that the lack of a non-derivative facilitation offence has caused distortion in the law of incitement and conspiracy. 228 The derivative nature of complicity has two main consequences. First, there is no liability as an accessory where the perpetrator does not commit the offence, or at least get as far as an attempt. Secondly, there is no liability as an accessory where the principal offender is not guilty of an offence because of the existence of a personal defence. These consequences represent serious shortcomings in the present law. In the text (see [7.100]ff), we have explored how the courts have prevented a person who assists or encourages a perpetrator who has a valid defence from escaping liability by resorting to the doctrine of “innocent agency”. Innocent agency is a useful legal fiction, although it does strain the notion of human agency and causation in the criminal law almost to breaking point. It is possible to view acting in concert as yet another doctrinal device for bypassing the derivative nature of accessorial liability. In Osland v The Queen, 229 the High Court held that persons acting in concert would be liable for the acts committed by each other. Under this doctrine, the physical acts of one person may be attributed to another person, which, in turn, may give rise to liability as a principal offender: see [7.110]. This is subject to the requirement that the party has agreed jointly to commit the acts constituting the offence and is present during the commission of the acts. Significantly, this form of liability was viewed by the High Court as a form of principal liability rather than accessorial liability; therefore, the availability of personal defences to the person who commits the physical elements are irrelevant to liability. Another, equally fictive yet pragmatic approach to this problem was suggested in Bourne, 230 where the English Court of Appeal held that the defence of duress, which was relied upon by the principal offender, did not relieve the accessory’s guilt. This notion that there are defences that do not relieve an accessory’s guilt has been criticised as introducing conceptual distortion into the law. 231 From the perspective of moral culpability, it has been strongly argued that it should be irrelevant to the liability of the accessory that the person who assisted or encouraged its commission did not commit the offence. By parity of reasoning, it is also irrelevant, in assessing the moral culpability of those who assist or encourage another to commit an offence, that the actual perpetrator has a personal defence. The disadvantages that flow from the derivative framework for complicity have prompted calls, from both academics and law reformers, for the creation of a non-derivative criminal facilitation offence. 232 Responding to this criticism, the Law Commission for England and Wales recommended the enactment of two new inchoate offences: 228 229 230 231

232

J Spencer, “Trying to Help another Person Commit a Crime” in P Smith (ed), Criminal Law: Essays in Honour of JC Smith (London: Butterworths, 1987) p 148. (1998) 197 CLR 316; Handlen v The Queen; Paddison v The Queen (2011) 245 CLR 282 at 287. (1952) 36 Cr App R 125. It has been argued that the conceptual strains apparent in Bourne, and placed upon the doctrine of innocent agency in Cogan and Leak, may be seen as a direct consequence of the derivative nature of complicity: SH Kadish, “Complicity, Cause and Blame: A Study in the Interpretation of Doctrine” (1985) 73 California Law Review 324 at 378. R Buxton, “Complicity in the Criminal Code” (1969) 85 Law Quarterly Review 252 at 268–269; JR Spencer, “Trying to Help Another Person Commit a Crime” in P Smith (ed), Criminal Law: Essays in Honour of JC Smith (London: Butterworths, 1987) p 159. The Law Commission for England and Wales has proposed the creation of the non-derivative crime of encouraging and assisting crime: Law Commission for England and Wales, Assisting and Encouraging Crime, Consultation Paper No 131 (1993). John Smith opposed the [7.115]

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(1) (2)

“encouraging or assisting the commission of an offence, intending to encourage or assist its commission; and encouraging or assisting an offence, believing that it will be committed.” 233

It recommended that these new offences could be committed whether or not the principal offence was committed, 234 but argued that a restricted form of derivative liability be retained in order that secondary parties be subject to being labelled in the same way, and subject to the same penalty, as the principal offender. 235 The Law Commission’s proposals, in part, 236 have been enacted in the Serious Crime Act 2007 (UK). Part 2 of this Act creates the new inchoate offence of encouraging or assisting an offence, and provides additional offences relating to offenders who believe an offence will be committed (despite the offence not actually being carried out) and where the encouragement or assistance is for only one of a number of offences that were carried out by a principal: Section 44 Intentionally encouraging or assisting an offence (1) A person commits an offence if— (a) he does an act capable of encouraging or assisting the commission of an offence; and (b) he intends to encourage or assist its commission. (2) But he is not to be taken to have intended to encourage or assist the commission of an offence merely because such encouragement or assistance was a foreseeable consequence of his act. Section 45 Encouraging or assisting an offence believing it will be committed A person commits an offence if— (a) he does an act capable of encouraging or assisting the commission of an offence; and (b) he believes— (i) that the offence will be committed; and (ii) that his act will encourage or assist its commission. Section 46 Encouraging or assisting offences believing one or more will be committed (1) A person commits an offence if— (a) he does an act capable of encouraging or assisting the commission of one or more of a number of offences; and (b) he believes—

233 234 235

236

replacement of accessorial liability with inchoate offences of assisting and encouraging crime, noting that linking the accessory’s conduct to the actual harm caused underscores the idea that an accessory is responsible (in a moral sense) for the harm caused: “Criminal Liability of Accessories: Law and Law Reform” (1997) 113 Law Quarterly Review 453 at 459–461. Law Reform Commission for England and Wales, Inchoate Liability for Assisting and Encouraging Crime, Law Com No 300 (2006) p 8. Law Reform Commission for England and Wales, Inchoate Liability for Assisting and Encouraging Crime, Law Com No 300 (2006) p 49. Law Reform Commission for England and Wales, Participating in Crime, Law Com No 305 (2007) p 13. For a critical analysis of these proposals, see GR Sullivan, “Inchoate Liability for Encouraging and Assisting Crime—The Law Commission Report” [2006] Criminal Law Review 1047. David Ormerod and Rudi Fortson argue that “[t]hese offences differ significantly from the Law Commission’s Report No 300, on which they were based. The willingness of successive governments to legislate selectively from carefully crafted Law Commission Bills is nothing new, and we could simply add our voices to the chorus that has criticised this technique in recent years”: D Ormerod and R Fortson, “Serious Crime Act 2007: The Part 2 Offences” [2009] Criminal Law Review 389 at 390 (footnotes omitted).

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(i) that one or more of those offences will be committed (but has no belief as to which); and (ii) that his act will encourage or assist the commission of one or more of them. (2) It is immaterial for the purposes of subsection (1)(b)(ii) whether the person has any belief as to which offence will be encouraged or assisted.

To temper these offences, a new defence of “acting reasonably” has been included in s 50 of the Act: Section 50 Defence of acting reasonably (1) A person is not guilty of an offence under this Part if he proves— (a) that he knew certain circumstances existed; and (b) that it was reasonable for him to act as he did in those circumstances. (2) A person is not guilty of an offence under this Part if he proves— (a) that he believed certain circumstances to exist; (b) that his belief was reasonable; and (c) that it was reasonable for him to act as he did in the circumstances as he believed them to be. (3) Factors to be considered in determining whether it was reasonable for a person to act as he did include— (a) the seriousness of the anticipated offence (or, in the case of an offence under section 46, the offences specified in the indictment); (b) any purpose for which he claims to have been acting; (c) any authority by which he claims to have been acting.

As David Ormerod and Rudy Fortson have observed, these reforms represent a “fundamental shift to looking at the harm threatened instead of the harm caused”. 237 As well as presenting a “stark risk of over-criminalisation”, 238 the provisions have been criticised for their poor expression, as well as failing to define “key words and phrases”. 239 The effect of the provisions is that they confer a wide discretion on prosecutors who no longer have to prove which offence the defendant has committed if it can be proven that the defendant “must have committed the inchoate offence or the anticipated offence”. 240 Moreover, prosecutors may choose to bring cases of assisting or encouraging crime under this new Act or continue to prosecute under the existing common law regime governing accessorial liability. 241 Under the new scheme, there is no consideration of whether the accused’s conduct actually affects the principal offender. Nor 237 238

239 240 241

D Ormerod and R Fortson, “Serious Crime Act 2007: The Part 2 Offences” [2009] Criminal Law Review 389 at 393. D Ormerod and R Fortson, “Serious Crime Act 2007: The Part 2 Offences” [2009] Criminal Law Review 389 at 395. They conclude: “[T]hese provisions are some of the worst criminal provisions to fall from Parliament in recent years, a view shared by others: Blackstone’s Criminal Practice (2009) describes them as containing ‘inordinately complex interpretative, evidential, procedural, limitational, jurisdictional, consequential and sentencing provisions, spread over 18 sections and two schedules’. These are offences of breathtaking scope and complexity. They constitute both an interpretative nightmare and a prosecutor’s dream”: at 414 (footnote omitted). D Ormerod and R Fortson, “Serious Crime Act 2007: The Part 2 Offences” [2009] Criminal Law Review 389 at 399. Serious Crime Act 2007 (UK), s 56(1)(a). D Ormerod and R Fortson, “Serious Crime Act 2007: The Part 2 Offences” [2009] Criminal Law Review 389 at 393. [7.115]

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are there any limitations on the amount of assistance that must be provided before an offence is committed under these sections, since even “[t]he most marginal acts might suffice”. 242 Richard Buxton has offered further criticism of the provisions, in particular, the deliberately “open-textured” drafting style in which they have been written; that is, in a simple manner without further definition or explanation of key terms. 243 The opentextured approach was adopted in order to enable courts to be guided in their interpretation by the Law Commission’s Report, as well as future specimen jury directions drafted by the Judicial Studies Board of England and Wales (now the Judicial College), which would allow the courts to “fill in the details in particular cases”. 244 In criticising this approach, Buxton concludes that “[t]he approach is contrary to principle: it is Parliament, not the Judicial Studies Board, that should make the law”. 245 Notwithstanding these limitations and criticism, the enactment of non-derivative statutory offences does resolve the conceptual strains clearly apparent in the present framework of complicity. John Spencer has drawn attention to a “theoretical gap” which exists in the present law, and the imperfect symmetry between the inchoate offences and complicity. 246 Although the present law in Australia contains an inchoate version of complicity by encouragement (namely, the inchoate liability for incitement), there is no inchoate equivalent of complicity by aiding. This is not simply a theoretical problem. The absence of an inchoate offence dealing with assisting another to commit a crime provides a powerful disincentive for the police to intervene to apprehend the person assisting until the principal offender has committed, or at least attempted to commit, the crime. Another reason for addressing this gap is the argument that the absence of an inchoate offence of aiding leads to the overuse of conspiracy. 247 Indeed, Pt 2 of the Serious Crime Act 2007 (UK) was enacted specifically to address this problem. 248 While there may be some support for a wider inchoate offence of “facilitation” in Australia, law-makers should learn from the experience in the United Kingdom. It would be preferable for reform to occur through “a simple provision comprising no more than a few lines of statute,” 249 rather than a complex Act of the type passed by the United Kingdom Parliament. While both academics and law reformers alike have canvassed the creation of a non-derivative form of accessorial liability for Australia, the courts here have not, until recently, considered it. There are signs that the judiciary, perhaps responding to the weight of academic criticism and legislative inertia, would be amenable to such a challenge. 242 243 244 245 246

247

248 249

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D Ormerod and R Fortson, “Serious Crime Act 2007: The Part 2 Offences” [2009] Criminal Law Review 389 at 391. R Buxton, “Joint Enterprise” [2009] Criminal Law Review 233 at 240. R Buxton, “Joint Enterprise” [2009] Criminal Law Review 233 at 240. R Buxton, “Joint Enterprise” [2009] Criminal Law Review 233 at 240. He also gives examples of how the broad wording of the relevant inchoate offences can give rise to injustice: at 240–242. JR Spencer, “Trying to Help Another Person Commit a Crime” in PF Smith (ed), Criminal Law: Essays in Honour of JC Smith (London: Butterworths, 1987) p 149. For a discussion of inchoate offences, see Chapter 9. Note that incitement has been abolished in the United Kingdom by the Serious Crime Act 2007 (UK), s 59. D Ormerod and R Fortson, “Serious Crime Act 2007: The Part 2 Offences” [2009] Criminal Law Review 389 at 397, citing Law Reform Commission for England and Wales, Inchoate Liability for Assisting and Encouraging Crime, Law Com No 300 (2006) [3.9]; JR Spencer, “Trying to Help Another Person Commit a Crime” in P Smith (ed), Criminal Law: Essays in Honour of JC Smith (1987) (London: Butterworths, 1987). R Buxton, “Joint Enterprise” [2009] Criminal Law Review 233 at 235. D Ormerod and R Fortson, “Serious Crime Act 2007: The Part 2 Offences” [2009] Criminal Law Review 389 at 397. [7.115]

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Callinan J in Osland v The Queen reviewed the history of accessorial liability. He concluded that the purpose of the statutory provisions dealing with accessorial liability adopted in England and Australian jurisdictions “seems to have been to do away with derivative liability”. 250 Callinan J further notes that the broad interpretation of the effect of these sections has significant import for the derivative nature of accessorial liability: “If it were necessary to decide the point I would be inclined to hold that the practical effect of the section [Crimes Act 1958 (Vic), s 323] is to make it irrelevant to decide whether the accused actually struck the blow or did a final act to complete a crime. The section appears to eliminate the need for a trial of a person formerly thought to be an accessory only, to await and depend upon the attainment or conviction of the principal. The one exception would be punishment which will always look to the particular role of an offender in carrying out a crime. No matter whether the section is to be taken as procedural or substantive, (a matter which it is not necessary to decide), there is no modern need for any difference in the test to determine the liability of a participant (as a principal in the first degree if that nomenclature still be appropriate) from that provided by Brennan J and McHugh J in Royall v The Queen [(1991) 172 CLR 378 at 398, 441]. Their Honours adopted a test of sufficient significant contribution.” 251

Callinan J’s opinion, which is strictly obiter, envisages that the statutory provisions dealing with complicity had substantive as well as procedural effects—an interpretation that could break the current derivative link between principal and accessorial liability. He further ventured that the true basis of liability for assisting and encouraging crime is causative: namely, whether assistance or encouragement caused another person to commit the offence, applying the standard principles of causation discussed in Chapter 3, [3.110]. 252 Unravelling many centuries of settled legal doctrine affirming the derivative nature of complicity may be pushing statutory interpretation to its limits. While Callinan J’s judgment misapprehends the historical significance of the 19th century reforms adopted in England and Australia (which were not intended to disturb the derivative foundations of accessory liability), it does signal the need for reform, particularly the necessity for a new statutory offence of criminal facilitation that incriminates individuals who assist or encourage others to commit crime, but does not require the commission of a principal offence.

EXTENDING ACCESSORIAL LIABILITY: THE DOCTRINES OF COMMON PURPOSE AND EXTENDED COMMON PURPOSE [7.120] Common purpose liability has long been regarded as a special form of accessorial

liability. 253 In England, the doctrine has been known as “joint enterprise” liability. In Australia, confusingly, the terms “common purpose”, “common design”, “acting in concert” and “joint criminal enterprise” are used interchangeably. 254 As Justice Mark Weinberg points out in this regard: 250 251 252 253 254

Osland v The Queen (1998) 197 CLR 316 at 402. Osland v The Queen (1998) 197 CLR 316 at 402–403. Osland v The Queen (1998) 197 CLR 316 at 403. See, generally, KJM Smith, A Modern Treatise on the Law of Criminal Complicity (Oxford: Clarendon Press, 1991) Ch 8. McAuliffe v The Queen (1995) 183 CLR 108 at 113; Miller v The Queen; Smith v The Queen; Presley v Director of Public Prosecutions (SA) (2016) 334 ALR 1 at 4. The High Court has noted, most recently, that this form of liability is “variously described as joint criminal enterprise, common purpose or concert”: Likiardopoulos v The Queen [2012] HCA 37, [19]. [7.120]

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“[T]he willingness of courts to use terms such as ‘common purpose’ and ‘joint criminal enterprise’ interchangeably, along with the term ‘acting in concert’, has led to confusion and uncertainty … [I]n addition, the doctrine of ‘extended common purpose’ does not sit well with orthodox principles of criminal liability. There is no sensible reason why the liability of an accessory before the fact should be potentially greater than that of a direct participant in the commission of an offence.” 255

Although conceptually distinct, it has been argued that common purpose or joint criminal enterprise liability should be regarded simply as another way of participating in crime as a secondary party or accessory. 256 It is a mode of secondary participation that renders individuals who embark on a joint criminal enterprise or plan to commit an offence (the foundational crime) liable for any further crime (the incidental crime) committed by other group members in the course of that joint criminal enterprise or plan. Whether conceived as a distinct form of complicity or simply another form of accessory liability, common purpose imposes liability in relation to the commission of crimes that: (1)

fall within the scope of original criminal agreement (the doctrine of “common purpose”); or alternatively

(2)

do not fall within the scope of that agreement but are foreseen as a possible consequence (the doctrine of “extended common purpose”).

The common law, where the focus in relation to extended common purpose has been on crimes that are (subjectively) foreseen as a possible consequence of the agreement, applies in New South Wales and South Australia. 257 The law differs in relation to the doctrine of extended common purpose in other Australian jurisdictions. The Commonwealth, Australian Capital Territory and Northern Territory Criminal Codes expressly provide for a “recklessness” test for common purpose. The relevant provisions state that a person must have intended that his or her conduct would “aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed”. 258 Stephen Odgers notes that this provision does not require consideration of the particular offence, or type of offence, that was sought to be aided, abetted, counselled or procured. 259 He also notes that the term “reckless”, as applied to s 11.2, is defined in s 5.4(2) of this Act, which states that a person is reckless about the commission of an offence if the person is “aware of a substantial

255 256

257

258 259

M Weinberg, “The Criminal Law – A “Mildly Vituperative” Critique”, Peter Brett Memorial Lecture, Melbourne Law School, 10 August 2011, (2011) Victorian Judicial Scholarship 1 at 20. JC Smith argues that it is not a special form of accessorial liability, but merely an application of the ordinary principles of “aiding, abetting, counselling or procuring” to a particular group-based scenario: see “Criminal Liability of Accessories: Law and Law Reform” (1997) 113 Law Quarterly Review 453 at 462–463. This modern rationalisation, however, takes no notice of the historical development of the doctrine or the enactment of distinct common purpose provisions in the 19th century Codes adopted in Australia and Canada. McAuliffe v The Queen (1995) 183 CLR 108 at 115; Clayton v The Queen; Hartwick v The Queen; Hartwick v The Queen (2006) 231 ALR 500; Huynh v The Queen; Duong v The Queen, Sem v The Queen (2013) 295 ALR 624 at 626; Miller v The Queen; Smith v The Queen: Presley v Director of Public Prosecutions (SA) (2016) 334 ALR 1 at 20; Sio v The Queen (2016) 334 ALR 57 at 63. Criminal Code (Cth), s 11.2(3)(b); Criminal Code (ACT), s 45(2)(b)(ii); Criminal Code (NT), s 43BG(3)(b). S Odgers, Principles of Federal Criminal Law (3rd ed, Sydney:Thomson Reuters, 2015) p 182.

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risk that the offence … would be committed” and “having regard to the circumstances known to [the person], it was unjustifiable to take the risk”. 260 The common purpose provisions in Queensland, Tasmania, Victoria and Western Australia depart from the common law and the Commonwealth and territory Code provisions in two respects. First, the fault element for common purpose is objective, rather than subjective; and, secondly, the degree of foreseeability is more stringent, based on the probability, rather than mere possibility, that another offence will be committed. The provisions dealing with extended common purpose in the Griffith’s Code, applied in Queensland, Tasmania and Western Australia, and in the recently reformed s 323(1)(d) of the Crimes Act 1958 (Vic), apply the 19th century approach to fault, adopting an objective test for assessing whether the crime committed by the principal offender was a probable consequence of carrying out the common purpose. 261 Justice Kiefel in R v Keenan (with whom Hayne, Heydon and Crennan JJ agreed) stated: “The test of probable consequence reflects the historical approach of the common law. The foundations for provisions such as s 8 may be traced to Sir Matthew Hale and reference to it is made in Foster’s Crown Law. Responsibility does not depend upon the foresight of the parties to the common purpose. Although the common law has come to embrace such a test, the test in s 8 [of the Criminal Code (Qld)] is an objective one.” (footnotes omitted) 262

Under this objective model, an accessory is liable on the basis that the crime committed by the principal offender was a probable consequence of the prosecution of the unlawful purpose. 263 In Darkan v The Queen, Deemal-Hall v The Queen and McIvor v The Queen, the High Court held that, for an offence to be a “probable consequence” of the original agreement, the commission of the offence must be “probable in the sense that it could well have happened in the prosecution of the unlawful purpose”. 264 The High Court held that the trial judge had erred in law in describing the meaning of “probable” in s 8 of the Criminal Code (Qld) as a “real possibility” or a “real chance”. In Brown, the Queensland Court of Appeal held that a trial judge’s substitution of the word “might” for “could” in a direction as to the meaning of probable consequence did not amount to a misdirection. 265 The common law in Australia (and elsewhere) has not been straitjacketed by the express wording of Griffith’s Code. Over the course of the 20th century, the common law governing common purpose was remodelled by the courts in two ways. First, with an increasing emphasis on subjective mental states in the criminal law generally—prioritising intention, knowledge or recklessness—the fault for common purpose was reformulated in terms of subjective agreement, authorisation, contemplation or subjective foresight of the parties. As the High Court in McAuliffe v The Queen, observed: 260

261

262 263 264 265

S Odgers, Principles of Federal Criminal Law (3rd ed, Sydney: Thomson Reuters, 2015) p 146. The definition of “recklessness” in s 5.4(2) of the Criminal Code (Cth) is repeated in s 20(1) of the Criminal Code (ACT) and s 43AK(1) of the Criminal Code (NT), suggesting that Odger’s analysis of the Criminal Code (Cth) provisions could be similarly applied to the Australian Capital Territory and Northern Territory Criminal Codes. Stuart v The Queen (1974) 134 CLR 426; Brennan v The King (1936) 55 CLR 253; Johns v The Queen (1980) 143 CLR 108 at 126–128, 131 per Mason, Murphy and Wilson J; R v Solomon [1959] Qd R 123; Murray v The Queen [1962] Tas SR 170; Borg v The Queen [1972] WAR 194; R v Tonkin [1975] Qd R 1; Saunders v The Queen [1980] WAR 183; Warren v The Queen [1987] WAR 314; R v Beck [1990] 1 Qd R 30. R v Keenan (2009) 236 CLR 397 at 428. Criminal Code (Qld), s 8; Criminal Code (Tas), s 4; Criminal Code (WA), s 8(1); Crimes Act 1958 (Vic), s 323(1)(d). Darkan v The Queen, Deemal-Hall v The Queen and McIvor v The Queen (2006) 227 CLR 373 at 398. Brown (2007) 171 A Crim R 345 at 354–355. [7.120]

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“Initially the test of what fell within the scope of the common purpose was determined objectively so that liability was imposed for other crimes committed as a consequence of the commission of the crime which was the primary object of the criminal venture, whether or not those other crimes were contemplated by the parties to that venture. However, in accordance with the emphasis which the law now places upon the actual state of mind of an accused person, the test has become a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose.” 266

The common law also broadened the basis for inculpation under the common purpose doctrine: criminal liability extended beyond criminal acts which had been authorised or jointly contemplated by the parties, to acts which were merely foreseen as a possible consequence of embarking on that joint criminal enterprise. As we shall explore below, it is this aspect of the doctrine—which incriminates on the basis of recklessness rather than intention or knowledge—that attracted both academic and judicial criticism. The modern rationale for preserving an extended and distinct form of group-based accessorial liability relates to the risk of joint criminal enterprises escalating into the commission of more serious offences and the need to provide effective protection to the public caused by criminals operating in gangs. 267 In Gillard v The Queen, Kirby J held that the legal justification for extending liability to co-offenders who did not perform the critical acts and shared no intention as to the consequences caused by those acts, was as follows: “Those who participate in activities highly dangerous to life and limb share equal responsibility for the consequences of the acts that ensue. This is because, as the law’s experience shows, particularly when dangerous weapons are involved in a crime scene, whatever the actual and earlier intentions of the secondary offender, the possibility exists that the primary offender will use the weapons, occasioning death or grievous bodily harm to others. The law then tells the secondary offender not to participate because doing so risks equal inculpation in such serious crimes as ensue.” 268

It is important to distinguish the doctrine of “acting in concert” from the doctrine of “common purpose”. The former doctrine states that it will be enough to establish liability as a principal if the acts were performed in the presence of all and pursuant to a preconceived plan. 269 In this way, the derivative nature of accessorial liability may be bypassed. The doctrine of common purpose, on the other hand, imposes secondary liability for foreseen, but unintended, offences committed by other members who are also participating in the original criminal agreement. There is clearly potential for these two doctrines to overlap on the same facts and juries will require careful direction on which basis of liability—primary or accessorial—the prosecution is relying upon. This is discussed later in [7.150] “Procedural perspectives: Tactical dilemmas in charging complicity”. Problems of divergence—where the crime committed by the principal offender differs in some material respect from the crime contemplated by the other parties—afflict both doctrines. The courts have resolved this problem by attributing or 266

267 268 269

438

McAuliffe v The Queen (1995) 183 CLR 108 at 114. John Smith suggests that the shift from objective foreseeability to subjective foresight is recent, emerging first as a submission on what the law ought to be in Russell on Crime (12th ed, London: Stevens 1964): JC Smith, “Criminal Liability of Accessories: Law and Law Reform” (1997) 113 Law Quarterly Review 453 at 456. This formulation was subsequently “incorporated” without acknowledgment into the common law in R v Smith [1963] 1 WLR 1200 and R v Anderson and Morris [1966] 2 QB 110. R v Powell [1997] 3 WLR 959 at 966 per Lord Steyn, at 976E per Lord Hutton. Gillard v The Queen (2003) 219 CLR 1 at 24. R v Clough (1992) 28 NSWLR 396; R v Sperotto (1970) 71 SR (NSW) 334; R v Lowery (No 2) [1972] VR 560; R v Demirian [1989] VR 97; Warren v The Queen [1987] WAR 314; Mohan v The Queen [1967] 2 AC 187. [7.120]

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“deeming” the acts of the person committing the crime to other participants in the joint criminal venture. However, the effect of this fiction differs for each doctrine. Acting in concert liability has reconceptualised group-based liability into a non-derivative form. In Osland v The Queen, 270 the High Court regarded these cases as an extended form of primary liability rather than accessorial liability. In relation to common purpose, however, the courts have not yet abandoned the accessorial principle. Rather, they have stretched the derivative link in order to accommodate differential verdicts in a narrow range of cases. For example, in Barlow v The Queen, 271 the majority of the High Court held that an accessory may be guilty of manslaughter, even though the perpetrator is guilty of murder, or vice versa. 272 The lack of conformity between the culpability of the parties to the common purpose, especially outside homicide cases, places conceptual strains on the derivative foundations of accessory liability. As Justice Weinberg notes “… the doctrine of ‘extended common purpose’ does not sit well with orthodox principles of criminal liability. There is no sensible reason why the liability of an accessory before the fact should be potentially greater than that of a direct participant in the commission of an offence”. 273

Definition of the Common Purpose [7.125] At common law, liability for incidental offences committed pursuant to a common

purpose is determined by reference to the subjective state of mind of the parties. Early decisions, such as R v Anderson and Morris, 274 focused on the agreement made between the parties. The English Court of Appeal held that individuals were liable for all offences committed in the course of a common purpose or joint enterprise, except where the crime committed went beyond that which was tacitly agreed to by the parties. In Anderson and Morris, the two accused set out to find the victim. Anderson was armed with a knife, though Morris denied knowledge of this fact. There was evidence that Anderson was seen punching the victim, while Morris stood behind him not taking part in the fight. Morris was convicted of manslaughter. The Court of Appeal accepted the following statement by counsel as a correct summary of the relevant principles: “[W]here two persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise, and that includes liability for unusual consequences if they arise from the execution of the agreed joint enterprise but (and this is the crux of the matter) that, if one of the adventurers goes beyond what has been tacitly agreed as part of the common enterprise, his [or her] co-adventurer is not liable for the consequences of that unauthorised act. … [I]t is for the jury in every case to decide whether what was done was part of the joint enterprise, or went beyond it and was in fact an act unauthorised by that joint enterprise.” 275

This summary of the law was subsequently affirmed by the High Court of Australia. 276 According to this formulation, the scope of the common purpose is determined by reference to the agreement, express or implied, between the parties. But is agreement exhaustive of the bases of liability in cases of common purpose? 270 271 272 273 274 275 276

(1998) 197 CLR 316. (1997) 188 CLR 13. See also Likiardopoulos v The Queen (2012) 247 CLR 265. M Weinberg, “The Criminal Law – A ‘Mildly Vituperative’ Critique”, Peter Brett Memorial Lecture, Melbourne Law School, 10 August 2011, (2011) Victorian Judicial Scholarship 1 at 20. [1966] 2 QB 110. R v Anderson and Morris [1966] 2 QB 110 at 118–119 per Parker LCJ. Varley v The Queen [1976] 12 ALR 347 at 353. [7.125]

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The High Court, following a line of Privy Council authorities in the 1980s, now recognises a wider principle of fault for incrimination under this doctrine. To adopt Kirby J’s recent classification in Gillard v The Queen, it is necessary to distinguish between types of common purpose: the traditional and extended doctrines of common purpose. 277 The traditional doctrine of common purpose [7.130] The traditional doctrine of common purpose, consistent with the approach in

Anderson and Morris above, requires the criminal act of the principal offender to be within the contemplation of the other parties. The paradigm form of common purpose—from whence the doctrine derives its name—was described by the High Court in McAuliffe v The Queen as follows: “[E]ach of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose.” 278

This form of common purpose is aptly illustrated by the High Court decision in Johns v The Queen. 279 The accused participated in a robbery. He waited in the car while two others entered the premises to commit the robbery. The accused knew that the others were armed with guns and expected the guns to be loaded. He also knew that one of the other two was quick-tempered and violent. In the course of the robbery, there was a struggle with the victim and the victim was shot. The accused was charged as an accessory before the fact to murder and the trial judge, in directing the jury, referred to the doctrine of common purpose. On appeal against conviction, the High Court reviewed the principles of common purpose and concluded that the question for the jury in cases of common purpose was whether the crime committed in furtherance of the criminal plan was contemplated by the parties as a possibility. The majority (Mason, Murphy and Wilson JJ) adopted the following summary of the law: “[A secondary party] bears … a criminal liability for an act which was within the contemplation of both himself [or herself] and the principal as an act which might be done in the course of carrying out the primary criminal intention—an act contemplated as a possible incident of the originally planned particular venture.” (emphasis added) 280

This statement suggests that the common purpose is a consensus between the parties as to the commission of the crime. This consensus may be expressly stated or it may be implied through the conduct of the parties. In Hui Chi-ming v The Queen, Lord Lowry stated: “It is not necessary that the understanding or arrangement be express. It can be tacit. It can be arrived at by means of actions or words.” 281

In the quotation from Johns above, the High Court seems to imply that the parties must jointly agree to the crime or contemplate the offence or one incidental to it. Later Privy Council and High Court decisions began to broaden the basis of common purpose, dispensing with the requirement of joint contemplation in every case.

277 278 279 280 281

Gillard v The Queen (2003) 219 CLR 1 at 24. McAuliffe v The Queen (1995) 183 CLR 108 at 114. (1980) 143 CLR 108. Johns v The Queen (1980) 143 CLR 108 at 130–131. Hui Chi-ming v The Queen [1991] 3 WLR 495 at 502; see also Bourne (1952) 36 Cr App R 125; Matusevich v The Queen (1977) 137 CLR 633.

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The doctrine of extended common purpose [7.135] The common law, which applies in New South Wales and South Australia, includes an

extended basis for common purpose. 282 In the early cases, the courts emphasised that liability of parties turned on whether the crime was “within the scope” of the original common purpose. Initially, this question was determined objectively; whether the offence was a probable consequence of the original common purpose, an approach still applied under the majority of Code jurisdictions and also in Victoria. 283 In Chan Wing-Siu v The Queen, 284 the Judicial Committee of the Privy Council reviewed earlier authorities. Relying on Australian authorities, including Johns v The Queen, 285 Sir Robin Cooke concluded that liability for the common purpose is not limited to crimes tacitly agreed, but extends to crimes which the parties foresee as a possible incident or consequence of their original enterprise: “The case must depend on the wider principle whereby a secondary party is criminally liable for acts by the primary offender of a type which the former foresees but does not necessarily intend. That there is such a principle is not in doubt. It turns on contemplation or, putting the same idea in other words, authorisation, which may be express or is more usually implied. It meets the case of a crime foreseen as a possible incident of the common unlawful enterprise. The criminal culpability lies in participating in the venture with that foresight.” 286

The use of the term “authorisation” caused some confusion, as this term is clearly not synonymous with “contemplation”, which is a much wider concept. This conflation of two distinct, albeit overlapping, states of mind by the Privy Council in Chan Wing-Siu was subsequently clarified in Hui Chi-ming v The Queen. 287 The Privy Council held that the fault element for common purpose is not confined to authorisation but includes foresight that the crime may be committed as a possible incident. In this case, the Privy Council specifically rejected a submission based on Johns that joint contemplation between the accessory and perpetrator was required. Although the direction in Johns was framed in these terms reflecting the facts of that case, it does not exhaust the basis for incriminating on the basis of common purpose. Lord Lowry stated that the fault for common purpose may be satisfied by examining the contemplation of the secondary party alone: “[T]he accessory, in order to be guilty, must have foreseen the relevant offence which the principal may commit as a possible incident of the common unlawful enterprise and must, with such foresight, still have participated in the enterprise.” (emphasis in original) 288

In 1995, the High Court in McAuliffe v The Queen 289 unanimously recognised an extended basis for common purpose, following the lead of the Privy Council. In a joint judgment, Brennan CJ, Deane, Dawson, Toohey, and Gummow JJ stated: 282

283

284 285 286 287 288 289

Johns v The Queen (1980) 143 CLR 108; McAuliffe v The Queen (1995) 183 CLR 108; Gillard v The Queen (2003) 219 CLR 1; Clayton v The Queen; Hartwick v The Queen; Hartwick v The Queen (2006) 231 ALR 500; Miller v The Queen; Smith v The Queen: Presley v Director of Public Prosecutions (SA) (2016) 334 ALR 1. JC Smith, “Criminal Liability of Accessories: Law and Law Reform” (1997) 113 Law Quarterly Review 453 at 456, discussing 18th and 19th century authorities. Criminal Code (Qld), s 8; Criminal Code (Tas), s 4; Criminal Code (WA), s 8(1); Crimes Act 1958 (Vic), s 323(1)(d). [1985] AC 168. (1980) 143 CLR 108. Chan Wing-Siu v The Queen [1985] AC 168 at 175. [1991] 3 WLR 495. Hui Chi-ming v The Queen [1991] 3 WLR 495 at 509. (1995) 183 CLR 108. [7.135]

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“There was no occasion for the Court [in Johns] to turn its attention to the situation where one party foresees, but does not agree to, a crime other than that which is planned, and continues to participate in the venture. However, the secondary offender in that situation is as much a party to the crime which is an incident of the agreed venture as he is when the incidental crime falls within the common purpose. Of course, in that situation the prosecution must prove that the individual concerned foresaw that the incidental crime might be committed and cannot rely upon the existence of the common purpose as establishing that state of mind. But there is no other relevant distinction. As Sir Robin Cooke observed [in Chan Wing-Siu v The Queen], the criminal culpability lies in the participation in the joint criminal enterprise with the necessary foresight and that is so whether the foresight is that of an individual party or is shared by all parties. That is in accordance with the general principle of the criminal law that a person who intentionally assists in the commission of a crime or encourages its commission may be convicted as a party to it.” 290

The decision in McAuliffe was applied by a majority of the High Court (with Kirby J dissenting) in Gillard v The Queen. 291 In Clayton v The Queen; Hartwick v The Queen; Hartwick v The Queen, 292 the High Court was invited to reconsider the doctrine of extended common purpose. In a joint judgment, six justices declined to do so and dismissed the applications for special leave to appeal. Only Kirby J was prepared to grant special leave to appeal. In a comprehensive judgment, he considered the criticisms of the doctrine and set out a way of rationalising it so that it more readily reflects the notion of derivative (rather than primary) liability. His analysis is considered in the next section. The weight of criticism against the continued application of extended common purpose liability increased significantly when the Supreme Court of the United Kingdom and the Judicial Committee of the Privy Council in R v Jogee; Ruddock v The Queen 293 revisited the principle in Chan Wing-Siu, concluding that this Privy Council decision had marked a ″wrong turn″, and that extended joint criminal enterprise liability should be reversed. The decision to apply a test of foresight based on possibility was viewed as a “serious and anomalous departure” from general principle. 294 The Supreme Court and the Privy Council held that acceptance of the doctrine had been “based on an incomplete, and in some respect erroneous, reading of the previous case law, coupled with generalised and questionable policy arguments”. 295 This dramatic reversal of settled law in Jogee in the United Kingdom, not surprisingly, precipitated a series of legal challenges to the doctrine of extended common purpose in Australia. In Miller v The Queen; Smith v The Queen; Presley v DPP (SA), 296 four men, Everard Miller, Wayne Smith, Johnas Presley and Joshua Betts were drinking alcohol at Presley’s home. Presley and Betts left to obtain some cannabis and on the way Betts urinated against a fence. When two neighbours, Clifford Hall and Wayne King remonstrated with Betts, 290 291 292 293

294 295 296

McAuliffe v The Queen (1995) 183 CLR 108 at 117–118. (2003) 219 CLR 1. (2006) 231 ALR 5003. [2016] UKSC 8; [2016] UKPC 73 (on appeal from the Court of Appeal of Jamaica). For commentaries on this case, see S Pitney, “Undoing a ‘Wrong Turn’: The Implications of R v Jogee; Ruddock v The Queen for the Doctrine of Extended Joint Criminal Enterprise in Australia” (2016) 40 Criminal Law Journal 110; S Odgers, “Editorial: McAuliffe Revisited Again” (2016) 40 Criminal Law Journal 55; Justice P Priest, “Crime and Evidence: United Kingdom Supreme Court Disavows the Doctrine of Extended Common Purpose” (2016) 90 Australian Law Journal 379; S Odgers, “Editorial: The High Court, The Common Law and Conceptions of Justice” (2016) 40 Criminal Law Journal 243. R v Jogee; Ruddock v The Queen [2016] UKSC 8; [2016] UKPC 7 at [83]. R v Jogee; Ruddock v The Queen [2016] UKSC; [2016] UKPC 7 at [79]-[80]. [2016] HCA 30.

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there was a heated exchange and Betts was punched in the face. Presley and Betts then returned to Presley’s home where Betts told the others he had been struck by some “white fellas”. The four of them went back to the scene of the altercation, Betts armed with a knife. A fight ensued and Betts stabbed and killed Hall. Miller, Smith and Presley were all convicted of the murder of Hall on the basis of joint criminal enterprise or extended joint criminal enterprise. There was evidence that Miller’s blood alcohol concentration was between 0.272 and 0.322, Presley’s would have been in the order of 0.2 and while Smith had not been breath tested for alcohol, a blood test indicated traces of prescription drugs and cannabis. On appeal, French CJ, Kiefel, Bell, Nettle and Gordon JJ delivered a joint judgment with which Keane J agreed. They held that it “was not appropriate for this court to abandon extended joint criminal enterprise liability”. 297 They referred to the previous statement by the majority of the High Court in Clayton that any change should only be as a result of examining “the whole of the law with respect to secondary liability for crime”, 298 and stated that “if any change were to be made, it should be made by Parliament”. 299 On the facts, the majority allowed the appeals and remitted the proceedings to the South Australian Court of Criminal Appeal to determine whether there was sufficient evidence for conviction, having regard to the accused men’s states of intoxication. Gageler J, in dissent, held that “[t]he doctrine of extended joint criminal enterprise is anomalous and unjust”. 300 He would have quashed the convictions on the following grounds: “The doctrine of extended joint criminal enterprise is neither deeply entrenched nor widely enmeshed in our legal system. The problem the doctrine has created is one of over-criminalisation. To excise it would do more to strengthen the common law than to weaken it. Where personal liberty is at stake, no less than where constitutional issues are in play, I have no doubt that this Court be ‘ultimately right’ than that it be ‘persistently wrong’.” 301

As outlined above, the provisions dealing with extended common purpose in Queensland, Tasmania, Victoria and Western Australia continue to retain the doctrine, and apply an objective test, focusing on whether the crime committed by the principal offender was a probable consequence of carrying out the original criminal venture. 302 As noted above, the common purpose provisions in the Criminal Codes of the Commonwealth, the Australian Capital Territory and the Northern Territory, require proof that the accused was reckless about the commission of the offence that the other person committed. 303 Criticisms of the extended complicity doctrine are considered further in the next section on law reform perspectives.

297 298 299 300 301

302

303

[2016] HCA 30 at [43]. [2016] HCA 30 at [40]. [2016] HCA 30 at [41]. [2016] HCA 30 at [129]. [2016] HCA 30 at [128]. Stephen Odgers similarly views that the reasons advanced by the majority in Miller for retaining the doctrine of extended common purpose were unpersuasive: “Editorial: The High Court, The Common Law and Conceptions of Justice” (2016) 40 Criminal Law Journal 243. Stuart v The Queen (1974) 134 CLR 426; Brennan v The King (1936) 55 CLR 253; Johns v The Queen (1980) 143 CLR 108 at 126–128, 131 per Mason, Murphy and Wilson J; R v Solomon [1959] Qd R 123; Murray v The Queen [1962] Tas SR 170; Borg v The Queen [1972] WAR 194; R v Tonkin [1975] Qd R 1; Saunders v The Queen [1980] WAR 183; Warren v The Queen [1987] WAR 314; R v Beck [1990] 1 Qd R 30. Criminal Code (Cth), s 11.2(3)(b); Criminal Code (ACT), s 45(2)(b)(ii); Criminal Code (NT), s 43BG(3)(b). [7.135]

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Perspectives Law reform [7.140] The doctrine of extended common purpose in Australia has been criticised as

going too far on a number of grounds. 304 The first basis for criticism is that the doctrine does not require any proof of the accessory’s intention to commit the crime that was carried out by the principal offender (unlike the usual standard for derivative liability set out in Giorgianni v The Queen 305). Rather, the extended common purpose sets out a very broad fault element; namely, that the crime performed by the principal offender was contemplated by the accessory as a possible consequence of the original criminal agreement, even though it was not within the scope of that agreement. In Clayton v The Queen; Hartwick v The Queen; Hartwick v The Queen, Kirby J described this as a “seriously unprincipled departure from the basic rule that is now generally reflected in Australian criminal law that liability does not attach to criminal conduct of itself, unless that conduct is accompanied by a relevant criminal intention”. 306 Similarly, the Supreme Court of the United Kingdom stated in Jogee’s case that setting a lower fault element of “foresight” or “contemplation” for the secondary party than for the principal introduces an “anomaly” into the law. 307 This view was shared by the New South Wales Law Reform Commission, which noted that there is an insufficient alignment with notions of moral culpability between the accessory and the perpetrator, with the effect that the net of liability for extended common purpose is cast too widely, “catching co-participants who did not perform the critical acts, and who shared no intention concerning their consequences.” 308 The following hypothetical offered by Robert Hayes and Fancine Feld illustrates the breadth of this extended liability: gang members who set out to commit a shoplifting spree will be guilty of a murder, committed by one of their members, during the course of that spree. “The relevant offenders in our examples are shoplifters, whose mistake is to carry out their joint purpose of shoplifting with a person they know to be quick-tempered and sometimes violent. Their liability for murder rests on the fact that they could foresee as a mere possibility that their companion might act violently with intent. But that possibility need not be a strong one, or one that is even at all likely. But as long as it is possible, they are liable. To put the problem colloquially: ‘anything is possible’.” 309

304

305 306 307 308 309

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See, in general, S Odgers, “Criminal Cases in the High Court of Australia: McAuliffe and McAuliffe” (1996) 20 Criminal Law Journal 43; L McNamara, “A Judicial Contribution to Over-Criminalisation? Extended Joint Criminal Enterprise Liability for Murder” (2014) 38 Criminal Law Journal 104; New South Wales Law Reform Commission, Complicity, Report No 129 (2010) [4.124], [4.140]; M Weinberg, Judicial College of Victoria and Department of Justice, Simplification of Jury Directions Project: A Report to the Jury Directions Advisory Group, (2012), http://www.supremecourt.vic.gov.au/home/contact+us/publications/ simplification+of+jury+directions+project+report (cited 18 November 2016) pp 74-78; PS Davies, Accessory Liability (Oxford: Hart Publishing, 2015) p 66. (1985) 156 CLR 473. Clayton v The Queen; Hartwick v The Queen; Hartwick v The Queen (2006) 231 ALR 500 at 534. See also K Amirthalingham, “Case Comment: Common Purpose and Homicide” (2007) 123 Law Quarterly Review 369. R v Jogee; Ruddock v The Queen [2016] UKSC 8; [2016] UKPC 7 at [84]. New South Wales Law Reform Commission, Complicity, Report No 129 (2010) [4.125]. R Hayes, and F Feld, “Is the Test for Extended Common Purpose Over-extended?” (2009) (2) University of New England Law Journal 17 at 29. [7.140]

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The second main ground for criticism of the doctrine of extended common purpose lies in the fact that, in Australia, the High Court has held that, under the doctrine, an accessory can be convicted of a more serious offence than the actual perpetrator. 310 The High Court in R v Barlow reviewed authority from various Commonwealth jurisdictions and concluded that an accessory participating in a common purpose may be liable for manslaughter even where the perpetrator is guilty of murder. Although the case concerned the interpretation of the statutory provisions dealing with the liability of secondary parties who share a “common intention to prosecute an unlawful purpose” contrary to s 8 of the Criminal Code (Qld), the majority (Brennan CJ, Dawson and Toohey JJ) held that s 8 operates in the same way as the common law. 311 The majority posed the question raised by the appeal thus: “Does Barlow avoid liability for manslaughter because the striker of the fatal and unjustified and unexcused blow had an intention that made him liable to punishment for murder?” 312 Such an interpretation, in the opinion of the majority, would be “perverse”. 313 The majority considered that the effect of s 8 is to “deem” the secondary party to have committed the acts of the principal offender. 314 A third criticism of the doctrine of extended common purpose is that there is now a disparity between the narrow fault element required for aiding, abetting, counselling or procuring an offence and that which is required for extended common purpose. In Clayton v The Queen; Hartwick v The Queen; Hartwick v The Queen, Kirby J posed a number of questions in relation to this point: “Why, especially (without the authority of statute), should the prosecution be able to rely on significantly divergent tests for convincing a jury that the same accused was guilty of the one offence? Why, in point of legal principle, should murder in consequence of acting in concert require proof by the prosecution of a specific intention on the part of the secondary offender when no specific intention at all was required for proof of murder in the course of carrying out a purpose held in common that did not include murder?” 315

A fourth criticism, pointed out by Kirby J, is that the doctrine of extended common purpose is now so broad, it leaves little scope for a jury to return a verdict of manslaughter. 316 Fifthly, identifying the “foundational crime” in trials involving extended common purpose may be very challenging for juries. This was revealed in R v Taufahema. 317 In that case, the accused was the unlicensed driver of a stolen car carrying his brother and two friends. All four men were on parole and all four were carrying loaded guns. A police patrol car began pursuing the stolen car, which was being driven erratically and at excessive speed. The stolen car struck a gutter and stopped. The four men fled the car and, as they did so, one of them fired five shots into the police car windscreen, causing the death of one of the police officers. At trial, the prosecution struggled to identify an agreement between the four men to commit a “foundational crime”. It proffered three different possibilities, which were that the accused had an agreement: (i) to evade lawful 310 311 312 313 314 315 316 317

R v Barlow (1997) 188 CLR 1. R v Barlow (1997) 188 CLR 1 at 10. R v Barlow (1997) 188 CLR 1 at 10. R v Barlow (1997) 188 CLR 1 at 10–11. R v Barlow (1997) 188 CLR 1 at 11. Clayton v The Queen; Hartwick v The Queen; Hartwick v The Queen (2006) 231 ALR 500 at 525. Clayton v The Queen; Hartwick v The Queen; Hartwick v The Queen (2006) 231 ALR 500 at 520. (2007) 228 CLR 232. The complexity of the jury instruction was noted by the New South Wales Law Reform Commission in Complicity, Consultation Paper 2 (January 2008) p 29. [7.140]

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arrest; or (ii) to hinder a police officer in the execution of their duty; or (iii) to participate in an armed robbery. The New South Wales Court of Appeal allowed an appeal by the accused against conviction, ordering that the verdict be set aside. The prosecution then appealed to the High Court. A majority of the High Court upheld the appeal and ordered a re-trial on the basis of the foundational offence of engaging “in an enterprise of armed robbery”. 318 Kirby J in R v Taufahema noted that, in a separate case, the New South Wales Court of Criminal Appeal had quashed the murder conviction of the accused’s brother based on a misdirection by the trial judge, the eminent jurist Wood CJ at CL, with respect to the elements of extended common purpose. 319 Finally, the inherent complexities of the current doctrine, outlined above, make directions to juries exceedingly complicated. 320 For Kirby J, this raised serious concerns about the complexity of extended common purpose liability: “If two such able and experienced judges as Sully J [who had presided over the Supreme Court trial of Taufahema] and Wood CJ at CL, both undoubted experts in the criminal law, could err in their directions to the jury on this subject, something appears to be needed to render the law simpler and more comprehensible. The majority in Clayton rejected the opportunity. I must accept that decision. But this Court will see many more cases of this kind until the underlying law is re-expressed either by the Court or by Parliament in a way that addresses the present defects and uncertainties.” (footnote omitted) 321

The New South Wales Law Reform Commission recommended the retention of the doctrine in order “to deal effectively with situations involving group criminality”. 322 It broadly endorsed the model adopted in the Criminal Code (Cth), based on foresight of a substantial risk, but with a modification in cases of homicide such that there be proof of the secondary party’s foresight of the probability of the commission of the offence. 323 These recommendations, thus far, have not been implemented in New South Wales. In Victoria, the review of complicity in 2012 recommended that the law of complicity should be placed on a statutory footing, 324 though expressed reservations about including provisions dealing with extended common purpose. This review found that “[s]erious thought needs to be given to whether [it] should be retained in any statutory reform of complicity” 325 and that if the doctrine were to be retained, it should be couched in terms 318 319 320

325

R v Taufahema (2007) 228 CLR 232 at 263 per Gummow, Hayne, Heydon and Crennan JJ. R v Taufahema (2007) 228 CLR 232 at 274. See, generally, G Eames, “Tackling the Complexity of Criminal Trial Directions: What Role for Appellate Courts?” (2007) 29 Australian Bar Review 161. R v Taufahema (2007) 228 CLR 232 at 275. Its retention was justified in the terms of expediency rather than principle: “Importantly, it will allow for the aggregation of conduct that, taken together, would amount to an offence and will be especially useful in situations where the precise role of each of the parties to the criminal activity is not clear”: New South Wales Law Reform Commission, Complicity, Report No 129 (2010) p xii, [Recommendation 4.1]. New South Wales Law Reform Commission, Complicity, Report No 129 (2010) pp 128-130, [Recommendation 4.3]. The proposal stated a person is liable as an accessory where that person “(a) intentionally assists, encourages [or brings about] the commission of the offence or an offence of the same general character; or (b) enters into an agreement, arrangement or understanding with another person to commit the offence or an offence of the same general character”: M Weinberg, Judicial College of Victoria and Department of Justice, Simplification of Jury Directions Project: A Report to the Jury Directions Advisory Group (2012) p 93, http:// www.supremecourt.vic.gov.au/home/contact+us/publications/ simplification+of+jury+directions+project+report (cited 17 November 2016). M Weinberg, Judicial College of Victoria and Department of Justice, Simplification of Jury Directions Project:

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321 322

323 324

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of probability rather than possibility in order to narrow its scope. 326 The Victorian Parliament, acting on these recommendations, abolished the common law of complicity in 2014. 327 The new complicity provisions identify distinct modes of involvement in another person’s offence, extending to situations which cover both “traditional” and “extended” forms of common purpose. Section 323(1) of the Crimes Act 1958 (Vic) now provides: For the purposes of this Subdivision, a person is involved in the commission of an offence if the person— (a) intentionally assists, encourages or directs the commission of the offence; or (b) intentionally assists, encourages or directs the commission of another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence; or (c) enters into an agreement, arrangement or understanding with another person to commit the offence; or (d) enters into an agreement, arrangement or understanding with another person to commit another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence.

However, simply attenuating the degree of foresight from “mere possibility” to “probability” does not address the fundamental criticism that incrimination under this extended doctrine does not require proof that the accessory’s involvement was intended to facilitate the commission of the other person’s offence. To avoid imposing “guilt by association” on the basis of reckless accessoryship, Kirby J in his dissenting judgement in Clayton endorsed an approach proposed by the distinguished English legal scholar, JC Smith. 328 On this view, the trial judge should direct the jury that it had “to be sure that the secondary offender either wanted the principal offender to act as he or she did, with the intention which he or she had, or knew that it was virtually certain that the principal offender would do so”. 329 Such a direction is simple, easy to understand and ensures that the doctrine of extended common purpose is aligned with the narrow view of derivative liability set out by the majority of the High Court in Giorgianni v The Queen, 330 which requires that the accessory intentionally assisted or encouraged the offender and that the offender actually knew the “essential matters” concerning the crime.

326

327 328 329 330

A Report to the Jury Directions Advisory Group, (2012) p 86, http://www.supremecourt.vic.gov.au/home/ contact+us/publications/simplification+of+jury+directions+project+report (cited 17 November 2016). M Weinberg, Judicial College of Victoria and Department of Justice, Simplification of Jury Directions Project: A Report to the Jury Directions Advisory Group, (2012) p 86, http://www.supremecourt.vic.gov.au/home/ contact+us/publications/simplification+of+jury+directions+project+report (cited 17 November 2016). Crimes Act 1958 (Vic), s 324C. See J Smith, “Criminal Liability of Accessories: Law and Law Reform” (1997) 113 Law Quarterly Review 453 at 465. Clayton v The Queen; Hartwick v The Queen; Hartwick v The Queen (2006) 231 ALR 500 at 532. (1985) 156 CLR 473. [7.140]

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A continuing common purpose? [7.145] A key requirement is that there must be a common purpose operating or subsisting

between the parties at the time that the principal offender commits the further offence. As Hayne J (with whom Gummow J agreed) observed in Gillard v The Queen: “Common purpose principles rightly require consideration of what an accused foresaw, not just what the accused agreed would be done. The accused is held criminally responsible for his or her continued participation in a joint enterprise, despite having foreseen the possibility of events turning out as in fact they did. It does not depend upon identifying a coincidence between the wish or agreement of A that an act be done by B and B’s doing of that act. The relevant conduct is that of A—in continuing to participate in the venture despite foresight of what may be done by B.” (emphasis in original) 331

What precisely does this requirement of “continued participation” mean when the modern doctrine is no longer confined to cases where there is an agreement or shared understanding between the parties as to the acts to be committed as part of their joint enterprise? Under the traditional doctrine, where the principal offender departed from the joint plan or shared understanding between the parties, the courts confirmed that there would be no liability for further offences committed by the principal offender. 332 The question arises whether this requirement of “continuing participation” applies in cases where the extended doctrine applies—that is, where the principal offender committed an offence that was not part of that joint agreement or understanding but which was based on the further incidental offence being foreseen as a possibility of the original joint venture. In relation to both the traditional and extended forms of common purpose, it may be argued that there continues to be a requirement of continuing participation of the parties in the original criminal enterprise (even if the principal offender has moved beyond what was originally planned by the parties). The reason for this requirement is rarely discussed; presumably, it relates to the rationale (see [7.120]) that the joint criminality between the parties in the group tends to escalate, provoking further criminality. Also, since the parties need not be present when the principal offence is committed, the requirement of continuing participation in the original venture is an important link to the principal offender. In light of these reasons, the requirement of continued participation in the original common purpose seems critical to this form of “parasitic liability”. Having established that this is a requirement, the original common purpose to commit a crime need not be worked out as a precise agreement or clear understanding between the parties. In R v Hung Duc Dang, 333 the New South Wales Criminal Court of Appeal held that crimes committed pursuant to a plan, even where that plan is neither explicit nor certain, could nonetheless be within the scope of common purpose. In this case, the appellant and his co-accused, Ton, went into the city armed with knives. They had no explicit plan to commit a crime, but had agreed that if the opportunity to steal someone’s handbag arose, they would do so. Such an opportunity did arise, and, in the events that followed, Ton stabbed a person who later died in hospital from blood loss. The appellant was convicted of robbery in company, use of an offensive weapon to prevent lawful apprehension, and manslaughter (a conviction secured on the basis of the doctrine of common purpose). The appellant’s appeal against conviction for manslaughter was dismissed, the Criminal Court of Appeal holding that the fact that the decision to rob the handbag from that particular person was impulsive and not pre-planned was not a barrier to finding that the appellant and Ton had a common purpose. 331 332

333

Gillard v The Queen (2003) 219 CLR 1 at 38. Heaney (1992) 61 A Crim R 241, where the Victorian Court of Criminal Appeal held that crimes committed after the original plan had been executed or where the party has effectively withdrawn from the original plan are not within the scope of the common purpose. [2001] NSWCCA 321.

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Further, it was open to the jury to infer that the appellant must have contemplated the possibility of the knife being used unlawfully, for there was no other feasible reason for him to carry the weapon. There is some doubt as to whether or not the foundational common purpose has to reveal an intention to commit a criminal offence. Would a joint intention to engage merely in dangerous or other antisocial conduct, combined with the relevant foresight etc, supply the requisite fault element? There is no authority directly on this issue, though the facts of Miller v The Queen 334 reveal the difficulties. In that case, the accused was close friends with Worrel and agreed to drive him around, looking for women Worrel could “pick up”. The typical modus operandi was that the accused then drove Worrel and a woman to some deserted place so that Worrel could have sex with her. This occurred many times without incident, but, on one occasion, Worrel killed his sexual partner. Notwithstanding the killing, the accused continued to drive for Worrel and on six further occasions Worrel murdered the woman they had picked up. The trial judge directed in terms of common purpose; that if it was within the contemplation of the accused that that particular woman might be murdered, he was guilty of murder. The High Court refused special leave to appeal, taking the view that after the first killing, the common purpose between the parties had altered and this would suffice for liability. Brent Fisse in Howard’s Criminal Law views Miller as a departure from the traditional view that there must be a common purpose to commit a criminal offence. Fisse suggests that in Miller the common purpose had not been to commit a particular crime, rather it was for “the object of satisfying the perpetrator’s sexual appetite in a situation of potential danger to the consenting sexual partner”. 335 As leave to appeal was refused, little weight may be attached to the discussion of the principles in the decision.

Procedural perspectives Tactical Dilemmas in Charging Complicity [7.150] Although liability for “aiding and abetting”, “common purpose”, “commission

by proxy” and “acting in concert” are conceptually distinct modes of complicity, they may nevertheless arise on the same facts. As an accused in either case may be charged and indicted as a principal offender, the precise mode of complicity being alleged by the prosecution may not be apparent to the defence. This can cause considerable confusion and unfairness. One solution to this difficulty is for the prosecution to specify the precise mode of complicity relied upon in the indictment. Indeed, in DPP (Northern Ireland) v Maxwell, the House of Lords stressed the desirability of the prosecution specifying in the indictment the mode of complicity alleged; that is, whether it was based on aiding and abetting or some broader principle of joint enterprise or common purpose. 336 In practice, however, this strategy may be difficult to follow in cases where the precise nature of the participation alleged is unclear or contested by the defence. Indeed, the practical difficulty of complying with these requirements has led to the direction in Maxwell being universally ignored. 337

334 335 336 337

(1980) 32 ALR 321. B Fisse, Howard’s Criminal Law (5th ed, Sydney: Law Book Company, 1990) p 324. DPP (Northern Ireland) v Maxwell [1978] 1 WLR 1350 at 1352G–H. See C Clarkson, “Complicity, Powell and Manslaughter” [1998] Criminal Law Review 556 at 561. [7.150]

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An alternative approach is to require the prosecution to outline the conceptual basis of the accused’s liability at the commencement of the trial. As Hunt CJ recognised in Tangye, this need to avoid conceptual confusion during the trial places a heavy responsibility on the prosecution, defence and trial judge: “The obligation of the Crown Prosecutor in opening the Crown case is not merely to outline the facts which the Crown proposes to establish in evidence. It is also to indicate, in conceptual terms, the nature of the Crown case. This is to assist both the trial judge and counsel for the accused, more so than the jury. It is essential that any doubt about the nature of the Crown case, conceptually, be removed at that early stage. If it is not done at that stage, or if there had been some change in its nature since the case was opened, it is vital that it be identified with some precision, in the absence of the jury, before counsel commence their final addresses. It becomes very difficult for the judge sensibly to make alterations to directions already given once it is learnt that the issues are different to those which had been assumed to exist.” 338

The tactical dilemmas created by the potential doctrinal overlap between aiding and abetting, common purpose and acting in concert were revealed in Osland v The Queen. As outlined in the text above, both the defence and prosecution had proceeded at the trial on the basis that this was a case of “acting in concert” rather than accessorial liability: see [7.110]. McHugh J did point out that, at the trial and in arguments put before the High Court, counsel for Osland had failed to distinguish between the situation of a principal offender, aider and abettor etc, and those acting in concert. 339 The conceptual basis chosen by the prosecution and defence in Osland had drastic consequences for the appeal. As Osland had been convicted as a principal offender on the basis of “acting in concert”, the acquittal of her son did not render the verdicts inconsistent nor her conviction unsafe. By contrast, had the case been argued on the basis of “aiding and abetting” murder or manslaughter, the jury’s failure to reach a verdict on his liability and his subsequent acquittal ought to have precluded liability as an accessory. 340 McHugh J did point out, however, that it would have been difficult to portray Osland as only an aider and abettor rather than a principal offender, given the evidence of her involvement in the crime. 341 Appeal courts in England have resorted to the doctrine of innocent agency to affirm convictions. 342 They have also suggested that the perpetrator’s conduct, though technically not criminal due to the existence of a defence, remained, in some sense, wrongful. 343 How the prosecution frames its charge of complicity is therefore a crucial issue. As Osland illustrates, the mode of complicity relied upon at trial not only affects the ingredients of liability, but it may also establish a conceptual framework for the case that may not be easily challenged on appeal. Indeed, the High Court’s licensing of “acting in concert” to combat criminal enterprises may prove to be attractive for prosecutors since it provides yet another means of circumventing the derivative nature and effects of accessorial liability. Nevertheless, as a matter of fairness, in cases where the prosecution can frame complicity as liability as a principal offender through acting in concert or as an accessory 338 339 340 341 342

343

Tangye (1997) 92 A Crim R 545 at 556. Osland v The Queen (1998) 197 CLR 316 at 341. R v Cogan and Leak [1976] 1 QB 217. Osland v The Queen (1998) 197 CLR 316 at 365. The appropriateness of this doctrine, and the conceptual confusion introduced into the law, has been strongly criticised: see G Williams, “Causing Non Crimes: The Procedural Questions” (1990) 140 New Law Journal 921. Bourne (1952) 36 Cr App R 125.

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(on the basis of aiding and abetting or common purpose), it is vital that the prosecution should disclose to the accused, before or at the commencement of trial, precisely the basis upon which the charge is to proceed. Such a course of action was endorsed by Kirby J in R v Taufahema 344 as “a matter of great importance” because of the very real advantage the prosecution possesses with regards to the use of extended common purpose liability. Kirby J describes how the prosecution may search the statutes for a “‘lowest common denominator’ foundational crime [which] permits the prosecution to rope participants to any anterior agreement to commit that foundational crime into liability for incidental crimes”. 345 The conceptual differences between the various modes of complicity in crime—aiding and abetting etc, common purpose and acting in concert—require careful elaboration to the jury. This is especially important in cases where the facts are contested and support alternative case theories. There is, however, a tendency for trial judges to play safe by offering a “universal complicity direction” which summarises to the jury all conceivable modes of participation in the crime, irrespective of whether they are applicable to the facts relied upon by the prosecution or the defence. The conceptual confusion caused by jury directions unsupported by the facts may cause unfairness to the accused. Notwithstanding periodic correction on appeal, the practice of trial judges offering unnecessary directions persists. In Tangye, Hunt CJ strongly criticised this practice, offering the following rebuke: “It will be seen from the passages quoted that the judge has referred—apparently interchangeably—to a joint criminal enterprise and to the so-called doctrine of common purpose which extends the concept of a joint enterprise. Where—as here—no such extended concept was relied upon, it was both unnecessary and confusing to refer to it. The Crown needs to rely upon a straightforward joint criminal enterprise only where—as in the present case—it cannot establish beyond reasonable doubt that the accused was the person who physically committed the offence charged. It needs to rely upon the extended concept of joint criminal enterprise, based on common purpose, only where the offence charged is not the same as the enterprise agreed. This Court has been making that point for years, and it is a pity that in many trials no heed is taken of what has been said.” (emphasis added) 346

ACCESSORIES AFTER THE FACT [7.155] Those who assist offenders after a crime has been committed are generally referred to

as accessories after the fact. The crime that the accessory commits is quite separate from the offence committed by the principal offender and any doctrine relating to participation in a crime. Each jurisdiction in Australia, apart from New South Wales and South Australia, has statutory provisions criminalising the conduct of accessories after the fact, 347 and there are certain provisions in New South Wales which deal with matters of penalty and procedure: for example, Crimes Act 1900 (NSW), ss 347 – 350.

344 345 346 347

(2007) 228 CLR 232. R v Taufahema (2007) 228 CLR 232 at 276. Tangye (1997) 92 A Crim R 545 at 556. Hunt CJ refers to similar criticisms offered in Stokes and Difford (1990) 51 A Crim R 25 at 33–37; Clough (1992) 64 A Crim R 451 at 455. Crimes Act 1914 (Cth), s 6; Criminal Code (ACT), s 717; Criminal Code (NT), s 13, Criminal Code (Qld), ss 10, 307, 544; Criminal Code (Tas), ss 6, 161, 300; Crimes Act 1958 (Vic), s 325(1); Criminal Code (WA), ss 10, 562. [7.155]

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Liability as an accessory after the fact only arises if the principal offence has been committed. 348 If the principal offender is acquitted, the accessory after the fact can only be convicted if there is sufficient evidence that the principal offence took place. 349 If the principal offender has been convicted, the accessory may still argue that the principal offence has not been proved as against him or herself. 350 Obviously, proof of the conviction of the principal offender is admissible and constitutes prima facie evidence that the accessory committed the offence. 351 The prosecution must prove all the elements of the offence that may be divided into: • the physical element; and • the fault element.

The Physical Element [7.160] The accessory must perform an act that assists or has the potential to assist the

principal offender escape from the administration of justice. 352 Examples of such acts include: • driving the principal offender away from the scene of the crime; 353 • impersonal assistance, such as altering the engine number and repainting a stolen car; 354 • helping dispose of stolen property; 355 • the removal of incriminating evidence after the principal offender has been arrested; 356 and • buying a car and clothes for the principal offender. 357 Indirect assistance may also be sufficient to found liability. 358 For example, a person who employs another to aid the principal offender may be convicted as an accessory. 359 Liability may also attach where there is no personal assistance given to the principal offender, but the accessory performs an act such as altering the engine number of a stolen car. 360 The accessory must perform a positive act. In R v Ready, 361 the accused passed on a message from an abortionist to the woman operated upon, returning the money paid for the operation in return for the latter’s silence. The Victorian Supreme Court held that passing on a message was not sufficiently active assistance to constitute the accused as an accessory. Similarly, merely enjoying the proceeds of the crime will not be sufficient, 362 nor will visiting a 348 349

350 351 352 353 354 355 356 357 358 359 360 361 362

Dawson v The Queen (1961) 106 CLR 1. R v Williams (1932) 32 SR (NSW) 504; Mahadeo v The King [1936] All ER 813; R v Dawson [1961] VR 773 (revised on other grounds: Dawson v The Queen (1961) 106 CLR 1); R v Carter [1990] 2 Qd R 371; Likiardopoulos v The Queen (2012) 247 CLR 265 at 277. Mahadeo v The King [1936] 2 All ER 813. R v Dawson [1961] VR 773; Carter and Savage; Ex parte Attorney-General (1990) 47 A Crim R 55. R v Tevendale [1955] VLR 95; R v McKenna [1960] 1 QB 411. R v Holey [1963] 1 All ER 106. R v Tevendale [1955] VLR 95. R v Butterfield (1843) 1 Cox CC 39; R v Williams (1932) 32 SR (NSW) 504. R v Levy [1912] 1 KB 158. R v Hurley [1967] VR 526. R v McKenna [1960] 1 QB 411. R v Jarvis (1837) 2 Mood & R 40. R v Tevendale [1955] VLR 95; R v Chapple (1840) 9 Car and P 355. [1942] VLR 853. R v Barlow (1962) 79 WN (NSW) 756.

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place where stolen property has been brought with a view to a possible purchase. 363 The special offences and powers dealing with money laundering and proceeds of crime are explored in Chapter 14, [14.175].

The Fault Element [7.165] In general, the prosecution must prove beyond reasonable doubt that the accessory:

• knew or believed the principal offender was guilty of the principal offence; and • intended to assist the principal offender to escape from the administration of justice. Knowledge or belief of the principal offence [7.170] In the past, it appears that the common law required the accessory to have knowledge

of the precise principal offence that had been committed before he or she could be found criminally responsible. 364 Most of the statutory provisions reflect this requirement. 365 However, the Australian Capital Territory, South Australian and Victorian provisions have extended the fault element such that it is not necessary for the prosecution to prove that the accessory knew the precise offence, or even the particular kind of offence. 366 In Victoria, it is sufficient if the accessory simply believes that the principal has committed a serious indictable offence. The Australian Capital Territory and South Australian provisions also extend to a belief that a related offence was committed, or that some other offence was committed in the same, or partly in the same, circumstances, respectively. Intention to assist the principal offender [7.175] The prosecution must further prove that the accessory intended to assist the principal

offender to evade justice in some way. This may be to impede the investigation of the offence 367 or to escape apprehension, 368 prosecution, 369 conviction 370 or punishment, 371 or to dispose of the proceeds of the offence. 372 If the accused does an act solely for his or her own benefit, he or she will not be held liable as an accessory. 373 If, however, the accused acts partly for his or her own benefit and partly in order to assist the principal offender, as may occur in 363 364 365 366 367 368 369 370 371 372 373

R v Rose [1962] 3 All ER 298. R v Tevendale [1955] VLR 95; R v Stone [1981] VR 737 at 741 per Crockett J. For a criticism of this approach, see B Fisse, Howard’s Criminal Law (5th ed, Sydney: Law Book Company, 1990) p 355. Crimes Act 1914 (Cth), s 6; Criminal Code (NT), s 13; Criminal Code (Qld), s 10; Criminal Code (Tas), s 6; Criminal Code (WA), s 10. Criminal Code (ACT), s 717; Criminal Law Consolidation Act 1935 (SA), s 241(2); Crimes Act 1958 (Vic), s 325(1). Criminal Law Consolidation Act 1935 (SA), s 241(1)(a). Criminal Code (ACT), s 717(1)(c)(i); Criminal Law Consolidation Act 1935 (SA), s 241(1)(b); Crimes Act 1958 (Vic), s 325(1). Criminal Code (ACT), s 717(1)(c)(i); Criminal Code (NT), s 13(1); Criminal Law Consolidation Act 1935 (SA), s 241(1)(b); Crimes Act 1958 (Vic), s 325(1). Crimes Act 1958 (Vic), s 325(1). Crimes Act 1914 (Cth), s 6; Criminal Code (Qld), s 10; Criminal Code (Tas), s 6; Crimes Act 1958 (Vic), s 325(1); Criminal Code (WA), s 10. Crimes Act 1914 (Cth), s 6; Criminal Code (ACT), s 717(1)(c)(ii); Criminal Law Consolidation Act 1935 (SA), s 241(1)(b). R v Jones [1949] 1 KB 194; R v Barlow (1962) 79 WN (NSW) 756; Middap (1992) 63 A Crim R 434. [7.175]

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the situation of receiving stolen goods, he or she will be liable as an accessory. 374 An accessory whose act fails to assist the principal offender may be convicted of an attempt. 375 The defence of lawful authority or reasonable excuse [7.180] In South Australia and Victoria, it is a defence that the accessory’s act was done with

lawful authority or reasonable excuse. 376 The term “lawful authority” was stated in the Gibbs Committee’s Review of Commonwealth Criminal Law, Interim Report: Principles of Criminal Responsibility and Other Matters as intending to cover executive decisions against prosecution, and “reasonable excuse” related to acts done in pursuance of a legitimate agreement to refrain from prosecuting in consideration of making good the loss caused by the offence. 377 These explanations for the terms appear to be relevant to the South Australian and Victorian provisions. However, the defence of lawful authority does not need statutory expression and an act done under lawful authority cannot be illegal. 378

CONCLUSION [7.185] This chapter has identified a number of problems associated with the present state of

the law of complicity. There are specific difficulties with details of the law, such as whether an omission to act should give rise to accessorial liability and what constitutes knowledge of the essential facts of an offence. There are also broader conceptual difficulties that exist in relation to the derivative nature of accessorial liability and the notion of acting in concert as being a form of primary liability, as well as whether the extended common purpose doctrine should be retained. In the “Perspectives” sections, we have pointed to a number of policy issues that need to be considered as this area of law develops. In particular, the question needs to be posed as to whether the current derivative link in accessorial liability should be broken so as to allow for a statutory inchoate offence of criminal facilitation in the absence of the commission of a criminal offence. The High Court in Barlow v The Queen, 379 in supporting differential verdicts in relation to the doctrine of common purpose, has certainly challenged the derivative nature of accessorial liability by viewing s 8 of the Criminal Code (Qld) as “deeming” the secondary party to have committed the acts of the principal offender. Questions about the impact of the statutory reformulation of complicity on the derivative foundations of the law are being raised. For example, s 11.2(5) of the Criminal Code (Cth) (and equivalent sections in the Australian Capital Territory, Northern Territory and Victoria legislation) 380 states: A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the principal offender has not been prosecuted or has not been found guilty.

On one view, this simply restates the existing common law and the procedural rule that proof of conviction of the principal offender is not required at the time of the trial of the accessory. An alternate view, which Callinan J would favour, is that provisions like s 11.2(5) were 374 375 376 377 378 379 380

R v Reeves (1892) 13 LR (NSW) 220. See also Leaman v The Queen [1986] Tas R 223 at 231 per Cox J. R v Maloney (1901) 18 WN (NSW) 96. However, the Criminal Code (ACT), s 717(4) states that “it is not an offence to attempt to commit an offence against this section”. Criminal Law Consolidation Act 1935 (SA), s 241(2)(b); Crimes Act 1958 (Vic), s 325(1). Review of Commonwealth Criminal Law (Gibbs Committee), Principles of Criminal Responsibility and Other Matters, Interim Report (1990) p 223. See Crafter v Kelly [1941] SASR 237 at 243 per Napier J. (1997) 188 CLR 13. Criminal Code (ACT), s 45(6); Criminal Code (NT), s 43BG(6); Crimes Act 1958 (Vic), s 324A.

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intended to break the derivative link; thus, a conviction as an accessory would be possible under the provision in cases where the perpetrator was acquitted. In our view, if such a fundamental reform should occur—as it did in the United Kingdom with the creation of inchoate offences of “encouraging or assisting an offence” in the Serious Crimes Act 2007 (UK)—it should be a matter for the legislature rather than the courts.

[7.185]

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Inchoate Offences The attempt and not the deed, Confounds us. 1 [8.05]

INTRODUCTION ........................................................................................................................ 457

[8.15] [8.20] [8.35] [8.75]

ATTEMPTS .................................................................................................................................. 459 What is an Attempt in Law? ....................................................................................................... 460 Physical Element ........................................................................................................................ 465 Fault Element ............................................................................................................................. 471

[8.85] [8.95] [8.150]

CONSPIRACY ............................................................................................................................. 474 Physical Elements ....................................................................................................................... 480 Fault Element ............................................................................................................................. 494

[8.175] [8.180] [8.185]

INCITEMENT ............................................................................................................................. 500 Physical Element ........................................................................................................................ 502 Fault Element ............................................................................................................................. 503

[8.195] [8.200] [8.205]

MISTAKE AND INCHOATE OFFENCES ......................................................................................... 505 Mistake and Legal Impossibility .................................................................................................. 506 Mistake and Physical Impossibility .............................................................................................. 508

[8.225]

CONCLUSION: THE FUTURE OF INCHOATE OFFENCES ............................................................. 516

INTRODUCTION [8.05] The term “inchoate” is not one that is in general use. It stems from the Latin

“inchoare” which means to start work on and it therefore can be defined as only partly formed or just begun. There are three “inchoate” offences, namely: attempts, conspiracy and incitement. In general, the common thread amongst these crimes is that they are committed even though the substantive offence that was intended is not completed and no harm is caused. We will explore a little later the various rationales that have been proffered as to why inchoate offences, and in particular, that of conspiracy exist. It is worthwhile noting here, however, that they share a crime prevention rationale. That is, inchoate offences exist to assist the police and law enforcement officials to intervene before the commission of the substantive offence. This is particularly important in the context of drug offences and this will be taken up further in Chapter 14, [14.215]. 1

William Shakespeare, Macbeth (1606) Act 2, sc 2, l. 12.

[8.05]

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All Australian jurisdictions treat inchoate offences as substantive crimes in themselves, separate from the completed offences at which they are aimed. As a result, they are defined broadly in abstract terms and have required a high degree of judicial interpretation. The doctrine of attempts is designed to punish those who intend to commit a crime and who do some acts that are “more than merely preparatory” to the crime, but are unsuccessful in carrying out the crime itself. Conspiracy serves to criminalise an agreement between two or more persons to commit an unlawful act where there is an intention to commit that unlawful act. Incitement is somewhat similar to conspiracy in its time-frame for criminalisation, but covers circumstances where one person tries to persuade another to commit a crime that the inciter wants and intends to have committed. The origins of attempts, conspiracy and incitement can be traced back to the authority of common law courts to create offences, but the treatment of them as substantive crimes in themselves is of comparatively recent origin. 2 Ira Robbins points out that “despite the independent origins and developments of the three offences, conspiracy and [incitement] can be viewed as early stages of an attempt to commit a completed offense”. 3 Thus, the time-frame of these offences can be visualised as follows:

The traditional division of crimes into “physical” and “fault” elements (see Chapter 3, [3.70]) does not sit well with the notion of inchoate crimes. In attempts, for example, there is a set fault element, but a loosely defined physical element and in conspiracy, the requirement that an agreement to commit an offence must be identified, may overlap with proving an intention to commit the substantive offence. As we explore these offences, it is worthwhile keeping in mind the difficulty in dividing conduct into no liability, inchoate liability and liability for the full offence.

Prosecutions for conspiracy [8.10] Although the courts have struggled with defining the element of all three offences, conspiracy, which appears to be charged more often than incitement, 4 is perhaps the vaguest and most problematic. This crime, unlike an attempt, does not require conduct that is proximate to the completion of the substantive offence. This enables criminal responsibility to be proved on the basis of a preliminary plan or consensus between the parties. This obviously has certain advantages to the prosecution, but there is a danger that the crime of conspiracy may be abused if there are unclear limitations on its scope. Gallop J observed in Nirta v The Queen that “[a]n indictment alleging conspiracy has become an increasingly important weapon in the prosecutor’s armoury”. 5

Robbins points out that a conceptual approach to inchoate crimes has been overtaken by a functional policy-oriented approach. He argues that the courts: 2 3 4

5

FB Sayre, “Criminal Attempts” (1928) 4 Harvard Law Review 821. IP Robbins, “Double Inchoate Crimes” (1989) 26(1) Harvard Journal on Legislation 1 at 9. The Criminal Law Officers Committee (now the Model Criminal Code Officers Committee) noted that incitement was rarely charged: Criminal Law Officers Committee of the Standing Committee of AttorneysGeneral, Chapter 2—General Principles of Criminal Responsibility, Final Report (1993) p 93. Nirta v The Queen (1983) 10 A Crim R 370 at 377.

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“look first to whether the policy of the criminal law indicates that an individual’s acts are sufficiently dangerous to society to warrant judicial intervention and punishment. Only then do they address the issue that the conceptual approach takes up first—whether the particular jurisdiction’s definition of attempt, conspiracy, or [incitement] allows a court to punish those acts.” 6

Certainly, a conceptual approach to inchoate crimes has not afforded great clarity or consistency. The following sections show that the way in which the three inchoate offences have developed has been very much on a case-by-case basis, causing difficulties with identifying underlying or consistent principles.

ATTEMPTS [8.15] General statutory provisions in all Australian jurisdictions establish that attempts to

commit certain offences are themselves offences. In this chapter, we will be concentrating on the general doctrine of attempt. There are, however, specific offences relating to attempted crimes such as attempted murder. 7 The law relating to attempt stems from the early common law. Generally, the English courts only punished conduct that resulted in harm, but there are some, albeit rare, 14th century cases where individuals were convicted of heinous felonies even though they had unsuccessfully attempted them. These convictions were based on the principle of voluntas reputabitur pro facto (the intention is to be taken for the deed). However, a mere intention was not enough. Some evidence was needed of an act toward the commission of the felony. 8 Attempt as a distinct substantive offence has its origins relatively more recently in the case of R v Scofield. 9 In that case, the court indicted the accused on a charge of placing combustible material together with a lighted candle near another’s house with intent to burn it down. The court established that it was unnecessary for the house to have caught fire and burnt down for a crime to have occurred. The facts of this case would today give rise to a conviction for attempted arson. The offence of attempt differs from substantive offences in that it combines the fault element of intention with a loosely defined physical element. Generally, no harm or damage will have occurred in relation to an attempt. Peter Glazebrook argued almost five decades ago that the primary objection to having an attempt as an offence in itself is that any “definition” is inescapably vague and uncertain: “No one has ever supposed that some single formula might, given a clever enough lawyer, be devised which would embrace the actus reus of, for instance, the offences of murder, obtaining property by deception, and the commission of acts of gross indecency between males. Why, then, should it be supposed that a single formula might, when combined with the definitions of those very different crimes, serve to identify the actus reus of such disparate offences as attempting to murder, attempting to obtain property by deception, and attempting to commit an act of gross indecency?” 10

Glazebrook proposes that instead of a general offence of attempt, the legislature should criminalise conduct that is intended to facilitate the future commission of an offence. An example of this approach is the preparatory offence relating to burglary, “going equipped with the instruments of housebreaking” enacted in most jurisdictions: see Chapter 12, [12.240]. Another example is provided by assaults with intent to commit another crime: see Chapter 10, [10.65]. 6 7 8 9 10

IP Robbins, “Double Inchoate Crimes” (1989) 26(1) Harvard Journal on Legislation 1 at 115. Crimes Act 1900 (NSW), ss 27 – 30; Criminal Code (NT), s 165; Criminal Code (Qld), s 306; Criminal Code (WA), s 283. IP Robbins, “Double Inchoate Crimes” (1989) 26(1) Harvard Journal on Legislation 1 at 9, fn 21; FB Sayre, “Criminal Attempts” (1928) 41 Harvard Law Review 821 at 822–827. (1784) Cald Mag Rep 397. P Glazebrook, “Should We Have a Law of Attempted Crime?” (1969) 85 Law Quarterly Review 28 at 35. [8.15]

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Turning to justifications for a general law of attempt, Chapter 1 outlined at [1.200] how liberal notions of harm have been used to justify what should or should not be criminal conduct. If no harm occurs in an attempt, why is punishment justified? Generally, there are three answers to this question. First, the “harm” of attempts and the other inchoate offences could be viewed broadly as the potential to cause harm. In Chapter 1, at [1.200], we noted, from a philosophical perspective, the “elasticity” of the concept of harm and its ability to accommodate indirect or remote harms. Inchoate crimes can thus be seen in terms of risk management rather than the prevention of harm. Secondly, Francis Bowes Sayre points out “[t]hat those should not be allowed to go free who attempt to commit some crime but fail, is a feeling deep rooted and universal”. 11 Take, for example, the following scenario from Frederick Forsyth’s fictional thriller, The Day of the Jackal: “Six floors up and a hundred and thirty metres away the Jackal held the rifle steady and squinted down the telescopic sight. He could see the features quite clearly, the brow shaded by the peak of the képi, the peering eyes, the prow-like nose. He saw the raised saluting hand come down from the peak of the cap, the crossed wires of the sight were spot on the exposed temple. Softly, gently, he squeezed the trigger … A split second later he was staring down into the station forecourt as if he could not believe his eyes. Before the bullet had passed out of the end of the barrel, the President of France had snapped his head forward without warning. As the assassin watched in disbelief, he solemnly planted a kiss on the cheek of the man in front of him … It was later established the bullet had passed a fraction of an inch behind the moving head.” 12

In terms of moral blameworthiness, one could say that the assassin (the “Jackal”), who tried to murder the President of France but failed, is not very different from a person who tried and succeeded. This example suggests that the criminal law should not concentrate on outcomes, but rather focus on culpability instead. 13 The third and final justification for criminalising and punishing attempts is the importance of crime prevention, as mentioned earlier. This is a criminal process argument that the police should be able to step in to prevent harm rather than have to wait until after harm has been done. The criminal law should thus punish those who are trying to commit harm as well as those who succeed in so doing.

What is an Attempt in Law? [8.20] The source of the definition of an attempt, its application and the penalty imposed

varies between Australian jurisdictions. This can be seen in Table 1. Despite these variations, the actual substance of the statutory definitions and the common law definition are similar. An attempt involves both physical and fault elements, but as pointed out above, there is great emphasis placed on the fault element. Indeed, without the requisite fault element, the conduct alone may appear inoffensive. Accordingly, the fault element for an attempt generally differs from that of the completed offence in that generally a higher standard must be satisfied. A definition of an attempt at common law was set out by Murphy J in Britten v Alpogut: “[A] criminal attempt is committed if it is proven that the accused had at all material times the guilty intent to commit a recognised crime and it is proven that at the same time he [or she] did an act or acts 11 12 13

FB Sayre, “Criminal Attempts” (1928) 41 Harvard Law Review 821 at 821. F Forsyth, The Day of the Jackal (London: Hutchinson and Co Ltd, 1971) pp 354–355. See HLA Hart, “The House of Lords on Attempting the Impossible” in C Tapper (ed), Crime, Proof and Punishment—Essays in Memory of Sir Rupert Cross (London: Butterworths, 1981).

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(which in appropriate circumstances would include omissions) which are seen to be sufficiently proximate to the commission of the said crime and not seen to be merely preparatory to it.” 14

The same requirements of an intention to commit the completed offence and conduct that is more than merely preparatory are common to all the various statutory definitions of attempt. We will set out the requirements for the physical and fault elements of attempts in turn.

Punishment of attempts [8.25] Table 1 shows that the punishment for an attempt varies across the jurisdictions. David Lewis has argued that it is difficult to find a rationale for leniency in punishing attempts as compared to the completed crime. Take the case of the assassin who fires a gun at a public figure and misses and one who fires a gun at a public figure and hits and kills her. Both assassins have the same intention to kill and their conduct is equally dangerous. Why should “failure” or “luck” mean a more lenient punishment? 15 Antony Duff argues that lesser punishment for such an attempt marks the fact that the assassin who missed the target failed to produce the intended effect in the real world. If the potential assassin had a gun in a public place and was caught prior to getting near the target, an argument can perhaps more strongly be made out for a lesser punishment. 16 Andrew Ashworth writes that an argument for leniency in such cases may be justified as “there remains the possibility that there would have been voluntary repentance at some later stage: after all, it may take greater nerve to do the final act which triggers the actual harm than to do the preliminary acts”. 17

Perspectives Criminalising Preparatory Acts [8.30] Inchoate crimes exist as substantive offences primarily on the basis of the need to

prevent harm occurring. But can the same rationale be used in relation to possessing certain items or preparing for a crime that may occur some time in the future? George P Fletcher objects to possession offences because “they sweep too wide … encompass[ing] cases where there is no potential social harm”. 18 Similarly, Andrew Ashworth and Jeremy Horder argue that such offences extend the boundaries of criminal law beyond the law of attempt and can be questioned on the basis that they “criminalize people at a point too

14 15 16 17

18

Britten v Alpogut [1987] VR 929 at 938. D Lewis, “The Punishment That Leaves Something to Chance” (1989) 18(1) Philosophy and Public Affairs 53 at 53. RA Duff, Criminal Attempts (Oxford: Oxford University Press, 1996) pp 351–354. A Ashworth, Principles of Criminal Law (6th ed, Oxford: Oxford University Press, 2009) p 440. What the punishment should be for attempt is explored in D Lewis, “The Punishment That Leaves Something to Chance” (1989) 18(1) Philosophy and Public Affairs 53; RA Duff, Criminal Attempts (Oxford: Oxford University Press, 1996) Ch 4 and pp 351–354. GP Fletcher, Basic Concepts of Criminal Law (New York: Oxford University Press, 1998) p 180. [8.30]

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remote from the ultimate harm”. 19 Table 1 Attempts across jurisdictions JurisdicDefinition tion and of attempt relevant law Cth statutory Criminal definition (s 11.1) Code ACT statutory Criminal definition (s 44) Code NSW offence Crimes (s 344A) Act 1900 scope: common law NT statutory Criminal definition (ss 4, 277) Code Qld statutory Criminal definition (ss 4, 535) Code SA offence Criminal (s 270A) Law Consolidation Act 1935 scope: common law Tas statutory Criminal definition (ss 2, 299) Code

Application to offences

Penalty

any offence except complicity, common purpose and conspiracy

same penalty as if offence completed (s 11.1)

any offence, except complicity, common purpose and conspiracy

same penalty as if offence completed (s 44(9))

Vic Crimes Act 1958

statutory definition (ss 321M, 321N)

WA Criminal Code

statutory any offence definition (ss 4, 552, 555A(1))

offences under the Crimes same penalty as if offence completed (s 344A) Act 1900

any offence

seven years where completed offence is 14 years or upwards; otherwise half of greatest punishment for completed offence (s 278)

indictable offences

seven years where completed offence is 14 years or upwards; otherwise half of greatest punishment for completed offence (ss 536 – 538)

any offence

life or some lesser period of imprisonment in case of attempted murder or attempted treason; maximum 12 years where completed offence is life (not being treason or murder); otherwise maximum is two-thirds of completed offence (s 270A(3))

any offence

no specific provision

indictable offences

according to table of prescribed penalties; where penalty for completed offence not mentioned in table, penalty is 60% of completed offence; where no fixed or legally prescribed penalty for completed offence, penalty is maximum five years (s 321P) same penalty as if simple offence completed; 14 years where completed offence is life; otherwise half that of completed indictable offence (ss 552(2), 555A(1))

On the other hand, this type of liability has a long pedigree in the criminal law—Jeremy Bentham described inchoate offences as “presumed” or “evidentiary” offences in his 18th century textbook, Principles of the Penal Code. These offences punish conduct not because it is wrong of itself, but rather because it is indicative of involvement in, or association with, criminal behaviour. Frederick Schauer and Richard Zeckhauser note that although this form of liability attracts criticism from theorists for often imposing “guilt by association”, it does reflect the fact that we live in a world of imperfect law enforcement. This form of “regulation by generalization”, as the authors describe it, is a necessary and ubiquitous aspect of the modern criminal law, and may be a desirable adjunct to other direct forms of regulation. They conclude that it is “less abhorrent to

19

A Ashworth and J Horder, Principles of Criminal Law (7th ed, Oxford: Oxford University Press, 2013) p 98.

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justice than numerous courts even to the present day have believed and more properly part of the regulatory repertoire than many people have appreciated”. 20 Markus Dubber states that expanding the boundaries of the criminal law to include offences beyond those of inchoate crimes reflects: “an approach to criminal law that emphasizes crime control over just punishment, application over definition, results over rules, and ultimately the protection of state authority over the prevention and vindication of personal harm.” 21

Such an approach to crime control, and the merits of it, has become increasingly more relevant given the proliferation of statutory offences of preparation to combat terrorism. Chief Justice Spigelman states in Lodhi v The Queen that: “Preparatory acts are not often made into criminal offences. The particular nature of terrorism has resulted in a special and, and in many ways unique, legislative regime. It was, in my opinion the clear intention of Parliament to create offences where an offender has not decided precisely what he or she intends to do. A policy judgment has been made that the prevention of terrorism requires criminal responsibility to arise at an earlier stage than is usually the case for other kinds of criminal conduct, eg well before an agreement has been reached for a conspiracy charge.” 22

Legislative responses to terrorism in Australia, building on the sort of policy reasons discussed by Spigelman CJ, led to the passage of the Anti-Terrorism Act 2005 (Cth) and the Anti-Terrorism Act (No 2) 2005 (Cth). The first Act inserted provisions into the Criminal Code (Cth) which set out that a person commits any of the preparatory offences (that is, “providing or receiving training connected with terrorist acts”, 23 “possessing things connected with terrorist acts”, 24 “collecting or making documents likely to facilitate terrorist acts”, 25 and “other acts done in preparation for, or planning, terrorist acts” 26) even where the thing, document or act, as the case may be, is not referable to a specific terrorist act or is referable to more than one terrorist act. The second Act provided for retrospective application of these amendments. 27 Mark Weinberg has raised the proposition that “some preparatory acts are so far removed from the actual commission of a terrorist act that without more, they should not give rise to criminal liability”. 28 George Williams has also queried whether current laws “give rise to lengthy jail sentences for preparatory acts too far removed from the actual commission of an act of

20 21

22 23 24 25 26 27 28

F Schauer and R Zeckhauser, “Regulation by Generalization” (2007) 1(1) Regulation and Governance 68 at 82. M Dubber, “The Possession Paradigm: The Special Part and the Police Power Model of the Criminal Process” in RA Duff and SP Green (eds), Defining Crimes: Essays on the Special Part of the Criminal Law (Oxford: Oxford University Press, 2005) p 117. For further discussion about the rise of preparatory offences, see J McCulloch and S Pickering, “Pre-Crime and Counter-Terrorism: Imagining Future Crime in the War on Terror” (2009) 49 British Journal of Criminology 628. Lodhi v The Queen (2006) 199 FLR 303 at 318. Cited with approval by Maxwell P, Nettle and Weinberg JJA in Benbrika v R (2010) 29 VR 593 at 615. Criminal Code (Cth), s 101.2. Criminal Code (Cth), s 101.4. Criminal Code (Cth), s 101.5. Criminal Code (Cth), s 101.6. See Criminal Code (Cth), s 106.3. M Weinberg, “Australia’s Anti-Terrorism Laws: Trials and Tribulations” (2012) 19 Victorian Judicial Scholarship 1 at 16. [8.30]

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terrorism”. 29 He refers to the five men in R v Elomar 30 who received sentences of imprisonment for between 23 and 28 years for a “conspiracy to commit acts in preparation for a terrorist act”. Preparatory terrorism offences may be justified under a “subjectivist” approach to criminalisation, but only if the prosecution proves an intention to commit a terrorist act on top of the preparatory conduct. 31 In Canada, an intent to aid a terrorist act was read into the federal offence of “facilitating terrorist activity”. 32 This offence was qualified by s 83.19(2) of the Criminal Code (Can), which states that a terrorist activity is facilitated whether or not “the facilitator knows that a particular terrorist activity is facilitated”, or whether or not “any particular terrorist activity was foreseen or planned at the time it was facilitated”, or whether or not “any terrorist activity was actually carried out”. This provision was considered by Rutherford J of the Ontario Superior Court of Justice in R v Khawaja. Rutherford J held that the prosecution must prove knowledge by the accused of his or her contribution to a terrorist group and that it was such a group and an intention to aid or facilitate the group’s terrorist activity. 33 He regarded the qualifications set out in s 83.19(2) as showing there was no need to prove knowledge of specific details (such as the manner in which the terrorist activity would be carried out). However, Rutherford J construed the word “knowledge” broadly in line with the need to maintain a high degree of subjective fault as an element of serious offences. This reasoning of Rutherford J was not contradicted by either the Court of Appeal for Ontario 34 or the Supreme Court of Canada 35 when the verdict was twice upheld on appeal. This extra fault requirement of an intention to aid a terrorist act is what is missing from the equivalent Australian provisions, causing considerable difficulty in interpreting the provisions and conferring on prosecutors a wide discretion to charge people, bring them to trial, and then place the burden on them to raise evidence showing there was no intention to facilitate the preparation of a terrorist act. 36 Ian Leader-Elliott refers to De Morgan’s rhyme to describe what he terms “parasitic extensions of liability to ever more remote preparations for crime”: “Great fleas have little fleas upon their backs to bite ’em, And little fleas have lesser fleas, and so ad infinitum.” 37

29 30 31

32 33 34 35 36

37

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G Williams, “A Decade of Australian Anti-Terror Laws” (2011) 35(3) Melbourne University Law Review 1136 at 1162. (2010) 264 ALR 759. See also E MacDonald and G Williams, “Combating Terrorism: Australia’s Criminal Code Since September 11, 2001” (2007) 16 Griffith Law Review 27. See B McSherry, “Expanding the Boundaries of Inchoate Crimes: The Growing Reliance on Preparatory Offences” in B McSherry, A Norrie and S Bronitt (eds), Regulating Deviance: The Redirection of Criminalisation and the Futures of Criminal Law (Portland: Hart Publishing, 2009). Criminal Code (Can), s 83.19. R v Khawaja (2006) 214 CCC (3d) 399 at [38]. R v Khawaja 2010 ONCA 862. R v Khawaja [2012] 3 SCR 555. B McSherry, “Expanding the Boundaries of Inchoate Crimes: The Growing Reliance on Preparatory Offences” in B McSherry, A Norrie and S Bronitt (eds), Regulating Deviance: The Redirection of Criminalisation and the Futures of Criminal Law (Portland: Hart Publishing, 2009) pp 150–151. I Leader-Elliott, “Framing Preparatory Inchoate Offences in the Criminal Code: The Identity Crime Debacle” (2011) 35 Criminal Law Journal 80 at 82. [8.30]

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Physical element [8.35] A distinction has generally been drawn between preparing to commit a crime and

attempting to commit it. Only the latter is considered punishable. In Britten v Alpogut, Murphy J spoke of conduct being “sufficiently proximate” and not “merely preparatory”. 38 The latter term is taken up in s 11.1(2) of the Criminal Code (Cth), s 44(2) of the Criminal Code (ACT), s 321N(1) of the Crimes Act 1958 (Vic), s 4 of the Criminal Code (WA) and s 43BF(2) of the Criminal Code (NT). The Victorian provision adds a requirement that the conduct be “immediately and not remotely connected” to the commission of the offence. In the Northern Territory and Queensland, the phrase used is “by means adapted to [the crime’s] fulfilment”. 39 What this means precisely is unclear, but the courts have applied common law decisions on proximity to the Queensland section. 40 Section 2 of the Criminal Code (Tas) states that the conduct must not be too remote and be part of a series of events that, if not interrupted, would constitute the actual commission of the crime. All of the statutory provisions and the common law are thus concerned with the notion of proximity. Whether conduct is considered sufficiently proximate to the actual offence is generally a matter of fact for the jury to determine. 41 In Tasmania, however, the question of whether or not conduct was too remote to constitute an attempt is a matter of law for the trial judge to determine. 42 Once the trial judge decides that the conduct was not too remote, then it is up to the jury to decide whether the accused would have committed the completed offence if not interrupted. The difficulty in all jurisdictions lies in determining when conduct is sufficiently proximate to qualify as an attempt. Visually, one has to determine where the accused’s act falls on the following continuum:

In determining where the accused’s conduct lies, the courts have developed a number of tests, none of which have proved entirely satisfactory. Lord Salmond described the problematic process in R v Barker: “[T]o constitute a criminal attempt, the first step along the way of criminal intent is not necessarily sufficient and the final step is not necessarily required. The dividing line between preparation and attempt is to be found somewhere between these two extremes; but as to the method by which it is to be determined the authorities give no clear guidance.” 43

In trying to work out whether conduct amounts to an attempt, the courts have referred to whether the conduct is “too remote”, “more than merely preparatory”, “sufficiently proximate”, “the last act”, “a substantial step”, “on the job” or “unequivocal”. We will look at three approaches in the following sections. 38 39 40 41

42 43

Britten v Alpogut [1987] VR 929 at 938. Criminal Code (NT), s 4; Criminal Code (Qld), s 4. R v Williams [1965] Qd R 86 at 102 per Stable J; R v Chellingworth [1954] QWN 35; R v Edwards [1956] QWN 16. Karakatsanis v Racing Victoria Ltd [2013] VSC 434 at [86]; DPP v Stonehouse [1978] AC 55; R v Gullefer [1990] 3 All ER 882 at 884 per Lane LCJ. Section 11.1(2) of the Criminal Code (Cth), s 44(3) of the Criminal Code (ACT), and s 43BF(3) of the Criminal Code (NT) provide that “the question whether conduct is more than merely preparatory [to the commission of the offence] is [a question] of fact”. Criminal Code (Tas), s 2(4). R v Barker [1924] NZLR 865 at 874. Cited with approval by Kaye J in Karakatsanis v Racing Victoria Ltd [2013] VSC 434 at [88]. [8.35]

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The “last act” test [8.40] In the 19th century, the courts took a fairly conservative approach to proximity,

requiring a “last act” to have been taken towards the commission of the offence. In R v Eagleton, 44 the accused made a contract with a local Poor Law authority to supply bread of an agreed weight to the poor. He was to be paid a certain amount per loaf by the authority. The accused supplied underweight loaves, but his conduct was discovered before he was paid. He was charged with attempting to obtain money by false pretences. The case went to the Court for Crown Cases Reserved on the question of law as to whether the accused’s activity constituted an attempt. The Court held that there had been an attempt. Parke B, in delivering the judgment of the Court, stated: “Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it; but acts immediately connected with it are … [O]n the statement in this case, no other act on the part of the defendant would have been required. It was the last act depending on himself towards the payment of the money, and therefore it ought to be considered as an attempt.” 45

Parke B here appears to be requiring that the accused do the very last act possible towards the completed offence. This test was taken up in R v Robinson. 46 In that case, the accused was a jeweller who insured his goods against theft. He faked a robbery by tying himself up and calling for help. He told the police that he had been knocked down and jewellery taken from the safe. The police later found the jewellery in the shop and the accused admitted he intended to put in a false claim to the insurers. The accused’s conviction for attempting to obtain money by false pretences was quashed by the English Court of Criminal Appeal on the basis that his acts were too remote in that he had not taken the last step of communicating with the insurers and making a false claim. The distinguished criminal law scholar, Glanville Williams, described the decision in Robinson as being “as favourable to the accused as any that could be found in English law; it seems to be too favourable”. 47 Another example of a very favourable result is that of R v Chellingworth. 48 In this case, the accused was found in a house at 5.30 am with a half-empty can of petrol. The walls and the floor of the house had been splashed with petrol. Other tins of petrol and bags soaked with petrol were also found. He was charged with attempted arson. The trial judge indicated that on the facts the accused had not shown his intention to carry out the offence of arson within the meaning of the Criminal Code (Qld). The prosecution then entered a nolle prosequi. The “last act” here would presumably be lighting a match. Here, the “last act” test seems to be unduly restricting the scope of attempts. The “last act” test subsequently fell into disfavour by the courts on the basis that some offences may be committed in stages over a period of time. 49 For example, a person may attempt to kill another by using increasing doses of poison, as was the case in R v White. 50 The “last act” test is also not useful in situations dealing with guns. If a person buys a rifle, loads it, aims it at the victim and is seized before firing it, this would seem to be sufficient 44 45 46 47 48 49 50

(1855) 6 Cox CC 559. R v Eagleton (1855) 6 Cox CC 559 at 571. [1915] 2 KB 342. G Williams, Criminal Law: The General Part (2nd ed, London: Stevens and Sons, 1961) p 627. [1954] QWN 35. DPP v Stonehouse [1978] AC 55 at 86 per Lord Edmund-Davies; Jones (1990) 91 Cr App R 351. [1910] 2 KB 124.

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conduct for attempted murder. 51 According to the “last act” test, the accused would have to pull the trigger as well, before an attempt could be made out. The Criminal Codes of the Northern Territory, Queensland and Western Australia expressly state that whether or not the accused has done all that is necessary on his or her part for completing the intended offence is immaterial. 52 The “last act” test, therefore, was developed to deal with those situations in which a person other than the accused has to do or omit to do something before the offence can be completed. The “unequivocality” test [8.45] This test is similar to the “substantial step” test and requires there to be conduct that

unequivocally indicates that the accused intended to commit the offence. Lord Salmond set out this test in R v Barker: “[An] act done with intent to commit a crime is not a criminal attempt unless it is of such a nature as to be itself sufficient evidence of the criminal intent with which it is done. A criminal attempt is an act which shows criminal intent on the face of it. The case must be one in which res ipsa loquitur [a Latin maxim meaning ‘the thing speaks for itself’] applies … That [an accused’s] unfulfilled criminal purposes should be punishable, they must be manifested not by his [or her] words merely, or by acts which are themselves of innocent or ambiguous significance, but by overt acts which are sufficient in themselves to declare and proclaim the guilty purpose with which they are done.” 53

This test enables an acquittal if the accused’s conduct can be associated with an innocent motive as well as an intention to commit an offence. It has received limited support in Australia. 54 In O’Connor v Killian, 55 the accused tried to cash bank cheques payable to another. When told they would have to be deposited into a bank account, she opened an account in the other person’s name. She was then told to return to the bank with appropriate identification. This she failed to do. She was later charged with attempting to obtain money by false pretences. Her appeal against conviction was unsuccessful. Prior J emphasised the accused’s admitted intention to obtain money fraudulently and this was treated as effectively lowering the threshold for conduct constituting an attempt. 56 The reasoning in this case has been criticised. 57 The “unequivocality” test was expressly rejected as a definitive test by the Tasmanian Court of Appeal in Nicholson. 58 However, an admitted intention or an act that unequivocally indicates an intention will be highly persuasive in establishing an attempt. The “substantial step” test [8.50] This test requires substantial steps to have been made towards the commission of the

crime. It looks at how much progress has been made and how much remains to be done. The 51 52 53 54 55 56 57 58

L Waller and CR Williams, Criminal Law—Text and Cases (11th ed, Sydney: LexisNexis Butterworths, 2009) p 648. Criminal Code (NT), s 4; Criminal Code (Qld), s 4; Criminal Code (WA), s 4. R v Barker [1924] NZLR 865 at 874. R v Williams [1965] Qd R 86 at 100 per Stable J; Karakatsanis v Racing Victoria Ltd [2013] VSC 434 at [69]. 38 SASR 327. O’Connor v Killian (1984) 38 SASR 327 at 329–330. See M Goode, “Case and Comment: O’Connor v Killian” (1985) 9 Criminal Law Journal 367. In cases where the accused is not dependent on another person, the test seems overly restrictive. Nicholson (1994) 76 A Crim R 187 at 190–192 per Underwood J and at 199 per Wright J. [8.50]

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main case exemplifying this approach is that of DPP v Stonehouse. 59 The accused, a well-known English politician and Privy Councillor, suffered severe financial difficulties. He decided to fake his own death by drowning and to start life afresh in Australia under a new identity. He took out life insurance with five different companies, naming his wife, who was unaware of the plan, as the beneficiary. The policies totalled £125,000 payable to Barbara Stonehouse upon the death of her husband within five years. The accused went to Florida and staged his apparent death in a drowning incident. He was later caught in Australia. 60 The accused was convicted of a number of dishonesty offences and, in relation to the life insurance, attempting to obtain property by deception. 61 On appeal to the House of Lords, the accused argued that his acts were too remote from the commission of the offence of obtaining property by deception to constitute an attempt. That is, the mere disappearance did not enable Barbara Stonehouse to obtain the property. She would have had to decide to make a claim and communicate that claim before the full offence could be carried out. Lord Diplock thought the remoteness point unarguable: “[T]he accused by November 20, 1974 [when Stonehouse faked his death in Florida], had done all the physical acts lying in his power that were needed to enable Mrs Stonehouse to obtain the policy moneys if all had gone as intended. There was nothing left for him to do thereafter except to avoid detection of his real identity. That was the day on which he crossed his Rubicon and burnt his boats.” 62

As Lord Edmund-Davies pointed out, not only did Stonehouse’s faking of his death go a substantial distance towards the attainment of the complete offence, it was also the final act that he could perform. 63 The “substantial step” test can be used to focus on what has been done as well as what remains to be done. For example, in Jones, 64 the victim was in a relationship with the accused’s ex-girlfriend. The accused got into the victim’s car with a loaded sawn-off shotgun. The victim managed to disarm the accused and the latter was charged with attempted murder. Taylor LJ, in delivering the judgment of the Court of Appeal, focused on the conduct that had already been committed: “Clearly his actions in obtaining the gun, in shortening it, in loading it, in putting on his disguise, and in going to the school could only be regarded as preparatory acts. But, in our judgement, once he had got into the car, taken out the loaded gun and pointed it at the victim with the intention of killing him, there was sufficient evidence for the consideration of the jury on the charge of attempted murder.” 65

In comparison, the Court of Appeal in R v Campbell, 66 focused on the steps that needed to be taken before substantial progress had been made. In that case, the police arrested the accused when he was close to a post office carrying an imitation firearm and a threatening note. His appeal against conviction for attempted robbery was successful on the basis that he had not entered the post office. This decision seems to imply that the police have to wait until a person 59 60

62 63 64 65 66

[1978] AC 55. An entertaining account of the circumstances of this case can be found in G Robertson, The Justice Game (London: Chatto and Windus, 1998) pp 62–73. Geoffrey Robertson was junior counsel for Stonehouse in the House of Lords Appeal. Section 15(2) of the Theft Act 1968 (UK) included “enabling another to obtain” as falling within the word “obtain”. DPP v Stonehouse [1978] AC 55 at 68. DPP v Stonehouse [1978] AC 55 at 87. (1990) 91 Cr App R 351. Jones (1990) 91 Cr App R 351 at 356. [1991] Crim LR 268.

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is inside a bank or post office and has shown a weapon before an arrest can be made. An alternative approach proposed by Peter Glazebrook, which would avoid this difficulty for the police, is to prosecute the accused for “going equipped with instruments for robbery or burglary”. 67 The “substantial step” test is necessarily vague, being adapted to the facts of each case and providing considerable leeway in determining criminal responsibility.

Legislative reformulations of the tests of proximity [8.55] In 1980, the Law Commission for England and Wales produced a report reviewing the law of criminal attempts. 68 The Commission concluded that the “last act” test fixed the point of intervention for criminal liability too late. In an earlier working paper, the Commission had provisionally favoured the adoption of a test based on a “substantial step” towards the commission of the offence. 69 In its 1980 report, and in the subsequent enacting legislation, 70 a formulation based on “acts more than merely preparatory to the commission of the offence” was adopted. The Commission rejected the use of the word “proximate” because of the danger that it would suggest that only the last act could be an attempt. Using the words “more than merely preparatory” avoids notions of unequivocality or substantial steps, but David Ormerod has pointed out that no substantial change in the law set out in Stonehouse was intended. 71 As with the other common law tests, this formulation has been criticised as being too imprecise. 72 Ian Dennis has also suggested that the statutory test could have included a further partial definition of “more than preparation” with suitable illustrations. 73 Nonetheless, the “more than merely preparatory” formulation has been adopted in s 11.1(2) of the Criminal Code (Cth), s 44(2) of the Criminal Code (ACT), s 43BF(2) of the Criminal Code (NT), s 321N(1) of the Crimes Act 1958 (Vic) and s 4 of the Criminal Code (WA). In 2007, the Law Commission for England and Wales revisited this question. 74 The Commission proposed enacting two offences: first, an offence of “attempt” confined to those who, “with intent to commit a substantive offence, were engaged in the last acts needed to commit it”, and, second, a new offence of “criminal preparation” which applied to those who, “with intent to commit the offence, were still only preparing to commit it but had proceeded beyond the stage of mere preparation”. 75 This proposal has also met with criticism, 76 with the Conspiracy and Attempts [Draft] Bill 2009 proposed by the

67 68 69 70 71 72 73 74 75 76

P Glazebrook, “Should We Have a Law of Attempted Crime?” [1969] 85 Law Quarterly Review 28; see Chapter 12, [12.240]. Law Commission for England and Wales, Attempt and Impossibility in Relation to Attempt, Conspiracy and Incitement, Report No 102 (1980). Law Commission for England and Wales, Codification of the Criminal Law. General Principles. Inchoate Offences: Conspiracy, Attempt and Incitement, Working Paper No 50 (1973). Criminal Attempts Act 1981 (UK), s 1(1). D Ormerod, Smith and Hogan’s Criminal Law (12th ed, London: LexisNexis Butterworths, 2008) p 389. I Dennis, “The Criminal Attempts Act 1981” [1982] Criminal Law Review 5. I Dennis, “The Law Commission Report on Attempt and Impossibility in Relation to Attempt, Conspiracy and Incitement: (1) The Elements of Attempt” [1980] Criminal Law Review 758. Law Commission for England and Wales, Conspiracy and Attempts: A Consultation Paper, Report No 183 (2007). Law Commission for England and Wales, Conspiracy and Attempts: A Consultation Paper, Report No 183 (2007) p 19. C Clarkson, “Attempt: The Conduct Requirement” (2009) 29(1) Oxford Journal of Legal Studies 25. [8.55]

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Commission not being taken up. 77 Ultimately, whatever words are used in legislation, a completely clear formulation for pinpointing the physical element of an attempt appears to lie in the realm of fantasy.

Desistance [8.60] When an accused “desists” or decides not to go ahead with an offence, he or she may

still be found criminally liable for an attempt if the conduct performed is considered sufficiently proximate to the completed offence. 78 For example, in R v Page, 79 the accused kept watch while another man, Partridge, put a lever under a window in order to break into a shop. Before opening the window, Partridge had a change of heart and decided that he would not “continue with the job”. He dropped the lever and descended, and the two men were arrested. The Full Court of the Supreme Court of Victoria held that what was done by Partridge amounted to an attempt and the fact that he had “desisted of his own volition” made no difference. 80 This may be contrasted with the approach taken to “withdrawal” in relation to accessorial liability, which operates as a complete defence: see Chapter 7, [7.85]. In Queensland, desistance may be taken into account in reducing the penalty for an attempt. 81 For example, in the case of R v BBF, 82 the Queensland Court of Appeal upheld the trial judge’s reduction of the sentence of a 20-year-old woman who had attempted to suffocate her three-month-old baby because she had desisted and called for an ambulance. The policy for allowing desistance to exculpate an accused obviously makes more sense the further back the conduct is from the substantive offence. If one takes the view that the fault element is the essential part of an attempt, then it follows that desistance shows that the original intent was not sufficiently firm. A change of mind may be seen as “undoing” the original blameworthy state of mind. Allowing desistance to be taken into account may also show the deterrent effect of criminalising an attempt. In practice, desistance is rarely raised presumably because of the difficulty in arguing that a change of mind was truly voluntary.

Attempt by omission [8.65] In Britten v Alpogut, 83 Murphy J referred to the physical element of attempts as including omissions “in appropriate circumstances”. 84 In 2007, the Law Commission for England and Wales released a consultation paper, Conspiracy and Attempts, in which it outlined a number of cases where an omission might reasonably constitute an attempt. This included the following example: “If D deliberately starves his or her baby to death, this is murder even though the death is achieved through ‘doing nothing’ rather than by a positive act of killing. Suppose, however, that someone overhears D admitting that he or she is endeavouring to starve his or her 77 78

79 80 81 82 83 84

Law Commission for England and Wales, Conspiracy and Attempts: A Consultation Paper, Report No 318 (2009). R v Page [1933] VLR 351; R v Collingridge (1976) 16 SASR 117; Criminal Code (NT), s 4(2); Criminal Code (Qld), s 4(2); Criminal Code (Tas), s 2(2); Criminal Code (WA), s 4. There is no mention of desistance in the Victorian provisions and it would seem that the common law still applies. [1933] VLR 351. R v Page [1933] VLR 351 at 355. Criminal Code (Qld), s 538. [2007] QCA 262. [1987] VR 929. Britten v Alpogut [1987] VR 929 at 938.

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baby to death and has already denied the baby food for a couple of days. We believe it would be wrong if D could avoid liability for attempted murder in such circumstances …” 85 Similarly, Michael Cahill considers that harmless inaction is a legally possible, empirically observable and normatively desirable attempt. As he says, “zero action plus zero harm can, and sometimes does, add up to a crime”. 86

Impossibility [8.70] An accused may attempt to commit a crime that is in fact impossible to commit due to

circumstances unknown to the accused. In a sense, the accused is making a mistake in believing that he or she will be able to accomplish or has accomplished the substantive offence. We discuss the law relating to impossibility and each of the categories of inchoate offences in turn at [8.195]–[8.220].

Fault Element [8.75] In all jurisdictions, the requisite fault element for an attempt is an intention to commit

the requisite offence. 87 We pointed out in Chapter 3 at [3.185] that the narrow interpretation of intention known as direct intention “connotes a decision to bring about a situation so far as it is possible to do so—to bring about an act of a particular kind or a particular result”. 88 This is the form of intention that is generally referred to in the context of attempts. Oblique intention or recklessness is not considered sufficient for attempts to commit offences where the physical element refers to the results or consequences of conduct. In Giorgianni v The Queen, the majority of the High Court observed in passing: “For the purposes of many offences it may be true to say that if an act is done with foresight of its probable consequences there is sufficient intent in law even if such intent may more properly be described as a form of recklessness. There are, however, offences in which it is not possible to speak of recklessness as constituting a sufficient intent. Attempt is one and conspiracy is another … Intent is required and it is an intent which must be based upon knowledge or belief of the necessary facts.” 89

This approach that only a direct intention will suffice for an attempted result crime has been followed in subsequent cases. In Knight v The Queen, the High Court held that, in relation to attempted murder, only an intention to kill would suffice. Mason CJ, Dawson and Toohey JJ stated: “[A]n accused is not guilty of attempted murder unless he [or she] intends to kill … An intention to cause grievous bodily harm may constitute the malice aforethought required for murder where death ensues, but for there to be attempted murder there must be an intention to cause the death which is an essential element of the completed crime of murder.” 90 85 86 87

88 89 90

Law Commission for England and Wales, Conspiracy and Attempts: A Consultation Paper, Report No 183 (2007) p 169. MT Cahill, “Attempt by Omission” (2009) 94 Iowa Law Review 1207 at 1211. Nguyen v The Queen [2013] VSCA 65; Britten v Alpogut [1987] VR 929; Knight v The Queen (1992) 175 CLR 495 at 501 per Mason CJ and Dawson and Toohey JJ; Criminal Code (Cth), s 11.1(3); Criminal Code (ACT), s 44(5); Criminal Code (NT), ss 4(1), 43BF(4); Criminal Code (Qld), s 4(1); Criminal Code (Tas), s 2(1); Crimes Act 1958 (Vic), s 321N(2); Criminal Code (WA), s 4. The classic definition provided by Brennan J in He Kaw Teh v The Queen (1985) 157 CLR 523 at 569. Giorgianni v The Queen (1985) 156 CLR 473 at 506 per Wilson, Deane and Dawson JJ. Knight v The Queen (1992) 175 CLR 495 at 501. [8.75]

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Brennan J also reinforced this approach in McGhee v The Queen: “[T]he crime of attempted murder at common law has uniformly been held to require an intent to kill … In principle, that must be so. Not because an intent to kill is a mental element in the crime of murder but because the causing of death is a physical element in the crime of murder and an attempt to commit that crime must have, as its mental element, an intention that death be caused.” 91

This high standard for the fault element in relation to result offences also carries over to strict and absolute liability offences. 92 Following Brennan J’s approach, the emphasis is on an intention to commit the physical element of the offence. The fault element, or lack thereof, for the completed offence is irrelevant. While the fault element therefore appears straightforward in relation to attempted result crimes, the position is less clear regarding attempted crimes where the physical element requires conduct to be performed in certain specified circumstances. In Chapter 11, we explore how, in general, the crime of rape is defined by intentional sexual penetration (conduct) that occurs without the other person’s consent (the specified circumstance). For attempted rape, does the fault element have to be an intention to sexually penetrate another knowing that the other person is not consenting? Or is it sufficient that the accused intended to sexually penetrate another, being reckless as to whether the other person is consenting or not? Subparagraph 321N(2)(b) of the Crimes Act 1958 (Vic) requires that the accused “intend or believe that any fact or circumstance the existence of which is an element of the offence will exist at the time the offence is to take place”. In R v Kalajdic and Italiano, Buchanan JA, with whom Vincent JJA and Byrne AJA agreed, interpreted the word “intend” in this subparagraph as embracing the “concepts of deliberate design and recklessness”. 93 The Criminal Codes of the Commonwealth, the Australian Capital Territory and (for certain crimes) the Northern Territory have a more restrictive approach to the fault element for attempt. The provisions dealing with attempt in those jurisdictions limit the fault elements to intention and knowledge, hence excluding recklessness and negligence. 94 “Intention” is defined in relation to a result where the person “means to bring [the result] about or is aware that [the result] will [occur] in the ordinary course of events”, and in relation to circumstance if the person “believes that [the circumstance] exists or will exist”. 95 The construction of these provisions provides that either intention or knowledge can be proved for an attempt offence to be made out, even where the fault element or elements for completed offences provide different fault elements. 96 Stephen Odgers provides the example of the federal offence of murder of a United Nations or associated person contrary to s 71.2 of the Criminal Code (Cth). 97 Under 91 92 93 94

95

96 97

McGhee v The Queen (1995) 183 CLR 82 at 85–86. Trade Practices Commission v Tubemakers of Australia Ltd (1983) 47 ALR 719 at 737 per Toohey J. For an explanation of strict and absolute liability offences, see Chapter 3, [3.235]. R v Kalajdic and Italiano (2005) 157 A Crim R 300 at 307. This was in relation to a charge of attempting to obtain property by deception. See Criminal Code (Cth), s 11.1(3); Criminal Code (ACT), s 44(5); Criminal Code (NT), s 43BF(4). Note that these provisions are subject to any special liability provisions provided for in particular offences (special liability provisions are those provisions that provide for absolute liability for one or more (but not all) of the physical elements of an offence, or that do not require a defendant to know or believe in a particular thing: see the Dictionary of each of these Criminal Codes). If provisions for special liability are applicable to an offence, the provisions are also applicable to attempts to commit the offence: Criminal Code (Cth), s 11.1(6A); Criminal Code (ACT), s 44(6); Criminal Code (NT), s 43BF(9). Criminal Code (Cth), s 5.2(2) – (3); Criminal Code (ACT), s 18(2) – (3); Criminal Code (NT), s 43AI(2) – (3). Knowledge means where the person “is aware that [the result or circumstance] exists or will exist in the ordinary course of events”: Criminal Code (Cth), s 5.3; Criminal Code (ACT), s 19; Criminal Code (NT), s 43AJ. S Odgers, Principles of Federal Criminal Law (3rd ed, Sydney: Thomson Reuters, 2015) pp 157–159. S Odgers, Principles of Federal Criminal Law (3rd ed, Sydney: Thomson Reuters, 2015) pp 158–159.

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s 71.2(1)(d), the fault element for this offence is intending to cause death or, alternatively, being reckless as to causing death. Recklessness is a less stringent standard than intention or knowledge. It follows, as Odgers noted, that a completed offence may have a less onerous fault element than the offence of attempting to commit that particular offence. 98 This reflects the fault element for conspiracy as established in R v LK 99 and Ansari v The Queen, 100 which is discussed at [8.165]. There are some cases that support a lower fault standard for attempted rape based on recklessness. In R v Bell, Neasey J stated that awareness of the possibility of non-consent would be sufficient for the purpose of attempted rape under the Criminal Code (Tas). 101 In R v Evans, 102 the South Australian Court of Criminal Appeal held that attempted rape may be committed when the accused intended to sexually penetrate another, being recklessly indifferent as to the absence of consent. King CJ pointed out that the difference between result crimes and crimes of circumstance led to a difference in fault elements: “The state of facts, the existence of which renders the act of sexual penetration criminal, is the non-consent of the person penetrated. The mental state of the accused in relation to that state of facts, required by the definition of the crime … includes reckless indifference to its existence. There cannot be an attempt to commit a crime involving particular consequences where those consequences are not intended, because the notion of unintended consequences is inconsistent with the notion of attempt to bring about those consequences. That reasoning does not apply, however, to an accused’s state of mind as to the existence of circumstances which render an act criminal.” 103

Special leave to appeal against Evan’s case was refused by the High Court, and the case was followed by the English Court of Appeal in R v Khan. 104 However, Russell LJ noted that the reasoning that explained the inclusion of recklessness in the fault element for attempted rape did not apply equally to all offences. 105 Whether the lower fault element applies to other crimes that include circumstances is unclear.

The fault standard for attempted rape [8.80] Jonathan Clough and Carmel Mulhern are of the opinion that a lower fault standard for attempted rape is difficult to reconcile with the clear requirement that the fault element of an attempt is an intention to commit an offence. 106 They are not convinced that the distinction between result crimes and crimes of circumstance set out in Evan’s case justifies a lower fault standard. Brent Fisse also points out that because there are no definitive tests for the physical element in attempts, relaxing the fault element may be “dangerous”. 107 On the other hand, Andrew Ashworth points out that if:

98

99 100 101 102 103 104 105 106 107

S Odgers, Principles of Federal Criminal Law (3rd ed, Sydney: Thomson Reuters, 2015) p 159. Odgers argues that the observation by Harrison J in O’Meara v The Queen [2009] NSWCCA 90 at [61] that recklessness could suffice for an attempt is wrong. (2010) 241 CLR 177. (2010) 241 CLR 299. R v Bell [1972] Tas SR 127 at 131–132. (1987) 48 SASR 35. R v Evans (1987) 48 SASR 35 at 41. [1990] 2 All ER 783. R v Khan [1990] 2 All ER 783 at 819. J Clough and C Mulhern, Butterworths Tutorial Series: Criminal Law (2nd ed, Sydney: LexisNexis Butterworths, 2004) pp 268–269. B Fisse, Howard’s Criminal Law (5th ed, Sydney: Law Book Company, 1990) pp 388–389. [8.80]

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“two men set out to have sexual intercourse with two women, not caring whether they consent or not, would it not be absurd if the one who achieved penetration was convicted of rape, whilst the other, who failed to achieve penetration despite trying, was not liable even for attempted rape.” 108 It would seem that this “absurdity” may well provide a policy exception to the general principle that only intention should suffice. 109

CONSPIRACY [8.85] We have explored how the physical element for attempts is loosely defined. Conspiracy

as an offence is even more uncertain in its ambit. In England, the first statutory reference to the crime of conspiracy dates back to the 13th century, during the reign of Edward I. James Wallace Bryan, in his book on the development of the law of conspiracy, refers to the first Ordinance of Conspirators, anno 21 Edward 1, as providing a remedy against “conspirators, inventors and maintainers of false quarrels and their abettors and supporters … and brokers of debates”. 110 Its non-statutory origins may, however, be much older. While the modern law simply requires an agreement to commit an offence, historically, there had to be some act that followed the agreement. 111 By the early 17th century, the law was altered to the more modern conception of simply requiring an agreement to be established. In the Poulterers’ Case, 112 the Court of Star Chamber held that mere agreement was enough to constitute the offence. Francis Sayre writes that, after the abolition of the Star Chamber, the Court of Kings Bench “began to extend the offense so as to cover combinations to commit all crimes of whatsoever nature, misdemeanours as well as felonies”. 113 Conspiracy was thus broadened to include a number of heads, such as conspiracy to commit a crime, conspiracy to defraud, conspiracy to pervert the course of justice and conspiracy to corrupt public morals. Until the decision in DPP v Withers, 114 which restricted the development of conspiracy, it seemed that this offence had the potential for continuous expansion. The House of Lords in Withers made it clear that only Parliament and not the courts can add new heads to the offence of conspiracy. The following section analyses the rationales for the crime of conspiracy, but it is interesting to note here that social factors have, at times, led to it being viewed as a substantive criminal offence in itself rather than an inchoate offence. This was particularly apparent in England in the 19th century, when conspiracy was used to criminalise agreements to engage in unlawful tortious, though not criminal, acts. As Andrew Ashworth and Jeremy Horder note, this was linked to the suppression of trade unionism: 108 109

111 112 113 114

A Ashworth, Principles of Criminal Law (6th ed, Oxford: Oxford University Press, 2009) p 441. See G Williams, “The Problem of Reckless Attempts” [1983] Criminal Law Review 365; R Buxton, “Circumstances, Consequences and Attempted Rape” [1984] Criminal Law Review 25. JW Bryan, The Development of the English Law of Conspiracy (New York: Da Capo Press, 1970) p 9. See also PH Winfield, The History of Conspiracy and Abuse of Legal Procedure (Cambridge: Cambridge University Press, 1921); P Gillies, The Law of Criminal Conspiracy (2nd ed, Sydney: Federation Press, 1990) for an historical overview of the offence. JW Bryan, The Development of the English Law of Conspiracy (New York: Da Capo Press, 1970) p 14. (1611) 77 ER 813. F Sayre, “Criminal Conspiracy” (1922) 35 Harvard Law Review 393 at 400. [1975] AC 842.

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“In the nineteenth century it was accepted that a conviction for criminal conspiracy could be based on an agreement to do any unlawful act, even though that act was not criminal but only a civil wrong, such as a tort or breach of contract. This gave the criminal law a long reach, particularly with regard to the activities of the early trade unions, and the courts upheld conspiracy convictions for what were, in effect, agreements to strike … In social terms, the criminal law lent its authority to those who wished to suppress organized industrial action.” 115

All Australian jurisdictions criminalise conspiracy to commit certain crimes. However, only Victorian, Australian Capital Territory and Commonwealth legislation attempt to define the scope of conspiracy. The common law is still relevant in the other jurisdictions—including the Code jurisdictions—in determining what constitutes conspiracy. In an attempt to limit charges for conspiracy, certain jurisdictions have statutory provisions which prevent the commencement of proceedings without the consent of the Director of Public Prosecutions or the Attorney-General. 116 Table 2 (over page) sets out the types of offences to which conspiracy may attach. In practice, conspiracy to defraud, conspiracy to commit crimes and conspiracy to pervert the course of justice are the usual forms of conspiracy charged in Australia. It is worthwhile noting here that there are certain evidential rules that are specific to conspiracy. For example, the statements of one co-conspirator are admissible in evidence against another where there is other reasonable evidence of the participation of the latter. 117 This is an exception to the general rule that admissions of one accused cannot be admitted in evidence against another and has been the subject of considerable debate. 118 The common law definition of “conspiracy” was provided by Willes J in Mulcahy v The Queen: “A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means.” 119

The first part of this definition subsumes the second. An agreement to use unlawful means is, in itself, an agreement to do an unlawful act. This definition therefore appears to be setting out two ways of saying the same thing. It has been endorsed in Australia by Blair CJ in R v Campbell, 120 and by Brennan and Toohey JJ in R v Rogerson. 121 At common law, then, there are in general four matters that must be established by the prosecution: • an agreement; • between two or more persons; • to commit an unlawful act; • with an intention to commit that unlawful act.

115

116 117 118 119 120 121

A Ashworth and J Horder, Principles of Criminal Law (7th ed, Oxford: Oxford University Press, 2013) p 468. See also, JV Orth, Combination and Conspiracy: A Legal History of Trade Unionism, 1721–1906 (Oxford: Clarendon Press, 1991). Criminal Code (Cth), s 11.5(8); Criminal Code (ACT), s 48(10); Criminal Code (Qld), ss 541(2), 542(2), 543(2); Crimes Act 1958 (Vic), ss 321(4), 321F(4); Criminal Code (NT), s 43BJ(10). Ahern v The Queen (1988) 165 CLR 87; R v Masters (1992) 26 NSWLR 450. See B Hocking, “Commentary on Dellapatrona and Duffield” (1995) 19 Criminal Law Journal 169. Mulcahy v The Queen (1868) LR 3 HL 306 at 317. [1933] St R Qd 123 at 133. (1992) 174 CLR 268 at 281. [8.85]

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Tas Criminal Code

SA common law

Qld Criminal Code

NSW common law; Crimes Act 1900 NT Criminal Code

ACT Criminal Code

Jurisdiction and relevant law Cth Criminal Code

Penalty

commit any indictable offence (s 282)—if no other punishment is provided, to imprisonment for 7 years; or, if the greatest punishment to which a person found guilty of the offence in question is liable is less than imprisonment for 7 years, then to such lesser punishment; commit a summary offence (s 283)—imprisonment for one year; deceive or defraud (s 284)—imprisonment for 7 years; lay false charge (s 285)—if the offence is such that a person found guilty of it is liable to be sentenced to imprisonment for life the offender is liable to imprisonment for life, in any other case the offender is liable to imprisonment for 7 years; pervert justice (s 286)—liable to imprisonment for 15 years; carry out seditious enterprise (s 288)—liable to imprisonment for 3 years; other conspiracies (s 289)—liable to imprisonment for 3 years. imprisonment for seven years for serious crime or lesser punishment if substantive offence merits less than seven years; imprisonment for three years for misdemeanour and offences under s 543 (ss 541 – 543)

imprisonment for life for conspiring to murder (Criminal Law Consolidation Act 1935, s 12(a)) kill; obstruct the due course of justice or administration of no specific provision the law; commit any crime; extort any property; inflict any injury or harm upon the public or person(s); facilitate the seduction of a woman; do any act involving public mischief; do any act with intent to injure (s 297) –

commit an indictable offence or do any act, make any omission or any event that is an offence (s 282) commit a summary offence (s 283) deceive or defraud (s 284) lay false charge (s 285) pervert justice (s 286) carry out seditious enterprise (s 288) other conspiracies—prevention of execution of statute law; prevent or obstruct free and lawful disposition of property; prevent or obstruct free and lawful exercise of trade, profession or occupation (s 289) commit any crime (s 541) any offence which is not a crime (ie misdemeanour) (s 542) prevention of execution of statute law; cause any injury to person or reputation of person; depreciate the value of any property; prevent or obstruct free and lawful disposition of property; injure any person in their trade or profession; prevent or obstruct the free and lawful exercise of a person’s trade, profession or occupation; effect any unlawful purpose; effect any lawful purpose by any unlawful means (s 543)

commit an offence punishable by imprisonment for more 10 years for various categories of defrauding (s 135.4) than 12 months or by a fine of 200 penalty units or more otherwise, same penalty as if offence completed (s 11.5(1)) (s 11.5(1)) defraud the Commonwealth (s 135.4) commit an offence punishable by imprisonment for longer same penalty as if offence completed (s 48(4)) than one year or by a fine of 200 penalty units or more (s 48(1)) imprisonment for 25 years for conspiracy to murder (s 26) –

Conspiracy to …

Table 2 Types of offences to which conspiracy may attach

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WA Criminal Code

Jurisdiction and relevant law Vic Crimes Act 1958 penalty not exceeding penalty for the relevant offence (s 321C)

commit an offence (s 321(1)) common law reserved for conspiracies to defraud (s 321F(2)) commit any indictable offence (s 558) commit any simple offence (s 560) imprisonment for 14 years where indictable offence is punishable by life (s 558) in any other case: punishment equal to one half of the greatest punishment for the indictable offence (s 558) otherwise, punishment equal to the greatest punishment afforded to the relevant simple offence (s 560)

Penalty

Conspiracy to …

Inchoate Offences Ch 8

[8.85]

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The Victorian, Australian Capital Territory, Northern Territory and Commonwealth provisions are stated in similar terms, although in the latter three jurisdictions it is additionally necessary that at least one of the parties to the agreement must have committed an overt act pursuant to the agreement. 122 This approach has elevated the common law evidential requirement of proof of an overt act into a substantive physical element of the offence. We will deal with these elements in turn. First, however, it is worthwhile considering the rationales for criminalising agreements to commit offences.

Perspectives Rationales for Criminalising Conspiracy [8.90] The first main rationale that has been given for criminalising conspiracy is the

same as for criminalising inchoate crimes in general: it is appropriate for the police to be able to step in to prevent the commission of a crime. This rationale appears to have gathered strength in light of governmental concerns about terrorism and the need to prevent acts that may result in harms of great magnitude (see Chapter 15, [15.130], in relation to offences concerning terrorism). The case of R (Cth) v Elomar 123 concerned five men who were convicted of participating in a conspiracy to do acts in preparation for a terrorist act or acts. Under s 11.5(1) of the Criminal Code (Cth), the penalty for conspiracy is the same as for the completed offence, which meant that the men involved could, under s 101.6, be sentenced to life imprisonment. In sentencing the five men to terms of imprisonment ranging from 23 years to 28 years, Whealy J stated: “The broad purpose of the creation of offences of the kind involved in the present sentencing exercises is to prevent the emergence of circumstances which may render more likely the carrying out of a serious terrorist act. Obviously enough, it is also to punish those who contemplate action of the prohibited kind. Importantly, it is to denounce their activities and to incapacitate them so that the community will be protected from the horrific consequences contemplated by their mindset and their actions. The legislation is designed to bite early, long before the preparatory acts mature into circumstances of deadly or dangerous consequence for the community.” 124

The offence of conspiracy is also viewed as useful in supplementing the law of attempt. For example, Lord Tucker stated in Board of Trade v Owen: “[I]t seems to me that the whole object of making such agreements punishable is to prevent the commission of the substantive offence before it has even reached the stage of an attempt, and that is all part and parcel of the preservation of the Queen’s peace within that realm.” 125

Ian Dennis rightly points out that this rationale in itself is not sufficient. He writes that “[b]y itself, it does not explain what it is about an agreement that permits the law to step in to prevent crime where it could not do so without such agreement”. 126 Sometimes it is claimed that it is necessary to intervene to prevent a crime occurring at such an early stage because members of a group will be more likely to go ahead with a crime than an individual given time to consider the implications. 127 There is also concern that the very act of collective agreement may lead to an escalation of the level of 122 123 124 125 126 127

Criminal Code (Cth), s 11.5(2)(c); Criminal Code (ACT), s 48(2)(c); Criminal Code (NT), s 43BJ(2)(c). [2010] NSWSC 10. R (Cth) v Elomar and Ors [2010] NSWSC 10 at [79]. Board of Trade v Owen [1957] AC 602 at 626. I Dennis, “The Rationale of Criminal Conspiracy” (1977) 93 Law Quarterly Review 39 at 41. See “Developments in the Law—Criminal Conspiracy” (1959) 72 Harvard Law Review 920 at 924.

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criminality involved. 128 There is some research into social psychology that suggests that people in groups will conform to normative pressure. 129 Whether this translates into two or more people carrying out a crime pursuant to an agreement is debatable. It could be argued that the larger the amount of people involved, the more likely the agreement will be leaked and dissension likely to grow. 130 A related rationale for criminalising conspiracy is the notion that a group enterprise is more worthy of punishment than an individual decision to commit a crime. An individual who states an intention to commit a crime will not be punished, but two or more people who agree to do the same thing may be. This ties in with the notion that conspiracy “is said to be a vital legal weapon in the prosecution of ‘organized crime’, however defined”. 131 As Lord Bramwell stated in Mogul Steamship Company v McGregor, Gow & Co: “It has been objected by capable persons, that it is strange that that should be unlawful if done by several which is not if done by one … I think there is an obvious answer, indeed two; one is, that a man may encounter the acts of a single person, yet not be fairly matched against several. The other is, that the act when done by an individual is wrong though not punishable, because the law avoids the multiplicity of crimes … while if done by several it is sufficiently important to be treated as a crime.” 132

This emphasis on the number of people involved has been criticised on the basis that it is the act or agreement that should be central to conspiracy rather than the number involved in the group enterprise. 133 However, this criticism is based on the notion of individual harm or wrongdoing rather than group harm or wrongdoing upon which the offences of conspiracy and complicity are based. In practice, conspiracy functions differently from its rationale as an inchoate offence. Usually some overt acts following the agreement have generally taken place before conspiracy is charged. This is because it may be difficult for the prosecution to prove what occurred in a private meeting between conspirators. Further, the prosecution can charge conspiracy where the substantive offence is impossible to commit or where it has in fact been committed. Andrew Ashworth and Jeremy Horder write: “Prosecutors … may prefer to charge conspiracy instead of the substantive crime even in a case where the substantive offence has been committed: it is bad practice for them to charge both conspiracy and the substantive crime, but it is no answer to a conspiracy charge alone that the substantive offence was in fact committed. In the terminology of English criminal procedure, a conspiracy does not ‘merge’ with the substantive offence. Thus the prosecution may defend the use of a conspiracy charge as giving a more rounded impression of the nature of the criminal enterprise, in terms of planning and the different roles of the various participants.” 134

128 129 130 131 132 133 134

Callanan v United States, 364 US 587, 593 (1961). GM Vaughan and MA Hogg, Introduction to Social Psychology (5th ed, Sydney: Pearson Education, 2008) pp 245ff. R Hazell, Conspiracy and Civil Liberties (London: Bell, 1974) p 94. PE Johnson, “The Unnecessary Crime of Conspiracy” (1973) 61(5) California Law Review 1137 at 1137 (footnote omitted). Mogul Steamship Company v McGregor, Gow and Co [1892] AC 25 at 45. F Sayre, “Criminal Conspiracy” (1922) 35 Harvard Law Review 393 at 411. A Ashworth and J Horder, Principles of Criminal Law (7th ed, Oxford: Clarendon Press, 2013) p 470 (references omitted). [8.90]

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Phillip Johnson agrees that conspiracy is more than an inchoate offence because it invokes several procedural and evidential doctrines. 135 Because of this, he argues that conspiracy only adds confusion to the law, proposing to the law reformers of the future that the crime should be abolished. 136

Physical Elements The agreement [8.95] As with the law relating to attempts, the traditional division of a crime into physical

and fault elements does not fit well with the notion of a conspiracy. The requirement for an agreement between two or more persons may be difficult to separate out from the requirement that there be an intention to commit an unlawful act. As Matthew Goode has observed: “[T]he concept of actus reus is an elusive one, particularly in the area of criminal conspiracy; so much so, in fact, that it may well be possible to say that the crime has no distinguishing mental and physical elements.” 137

There is no liability where two or more individuals are merely talking about the possibility of committing an unlawful act, unless they have reached the stage of agreeing to do that act. The courts distinguish between cases where the parties have agreed to do something and where the parties are merely negotiating. 138 This may involve drawing some subtle distinctions as Parker LCJ observed in Mills: “[I]t may be that those cases will be decided largely on the form of the reservation. If the reservation is no more than if a policeman is not there, it would be impossible to say that there had not been an agreement. On the other hand, if the matters left outstanding and reserved are of a sufficiently substantial nature, it may well be that the case will fall on the other side of the fence, and it will be said that the matter is merely a matter of negotiation.” 139

If there is an agreement, the crime of conspiracy has been committed. 140 While an agreement is required, there need not be evidence of any formal agreement. It is sufficient if there is evidence from which it may be inferred that two or more persons are pursuing the same unlawful purpose and doing so in combination (as opposed to acting completely independently of each other). As noted above, s 11.5(2)(c) of the Criminal Code (Cth), s 48(2)(c) of the Criminal Code (ACT) and s 43BJ(2)(c) of the Criminal Code (NT) require that one party must have committed an “overt act” pursuant to the agreement. This contrasts with the position in Victoria, where the courts have affirmed that an overt act is not an element of the offence itself. 141 In practice, evidence of overt acts will certainly aid the prosecution’s case in establishing that an agreement has been reached. For example, in O’Brien, 142 the accused was charged with conspiring to release two members of the “Luton Three” from Bedford Prison and the other member from Winson Green Prison. The “Luton Three”—Campbell, Mealey 135 136 137 138 139 140 141 142

P Johnson, “The Unnecessary Crime of Conspiracy” (1973) 61(5) California Law Review 1137 at 1139. P Johnson, “The Unnecessary Crime of Conspiracy” (1973) 61(5) California Law Review 1137 at 1139. M Goode, Criminal Conspiracy in Canada (Toronto: Carswell, 1975) p 16. Cussen J stated in R v Orton [1922] VLR 469 at 473 that an agreement for the purposes of conspiracy is satisfied where there is a “conscious understanding of a common design”. Mills (1963) 47 Cr App R 49 at 54–55. R v Gunn (1930) 30 SR (NSW) 336 at 338. Dickson v The Queen (2010) 241 CLR 491 at 505-6; R v Caldwell [2009] VSCA 41 at [63] per Weinberg J. (1974) 59 Cr App R 222.

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and Sheridan—had been jailed for robbery. It was alleged that they had robbed a bank to gain proceeds for their support of Irish nationalism. The evidence upon which the prosecution proceeded was that the accused was found taking photographs outside the Winson Green Prison. A search of his house in Luton found literature of a kind that might be associated with those supporting the cause of Irish nationalism. There were annotated maps of Bedford and the prison, and a drawing that may have been some crude attempt to prepare a plan of the interior of Bedford Prison. The English Court of Appeal held that there was insufficient evidence to entitle the jury to draw the inference that the accused had agreed with others to break into prison. The evidence at the most showed that he had been formulating a plan himself. 143 Withdrawal [8.100] Once the agreement has been made, a subsequent change of mind or withdrawal from

the agreement does not make a difference with respect to liability for conspiracy, though it can be taken into account during sentencing as a mitigating factor. 144 A statutory defence of withdrawal, however, has been adopted in the Commonwealth, Australian Capital Territory and Northern Territory Criminal Codes. 145 For example, s 11.5(5) of the Criminal Code (Cth) and s 43BJ(6) of the Criminal Code (NT) state: A person cannot be found guilty of conspiracy to commit an offence if, before the commission of an overt act pursuant to the agreement, the person: (a) withdrew from the agreement; and (b) took all reasonable steps to prevent the commission of the offence. 146

As stated at [8.95], s 11.5(2)(c) of the Criminal Code (Cth), s 48(2)(c) of the Criminal Code (ACT) and s 43BJ(2)(c) of the Criminal Code (NT) require evidence of the commission of an overt act pursuant to an agreement. Its inclusion explains why the defence of withdrawal should be available. As the drafters of the Model Criminal Code noted: “[I]f there was a requirement of an overt act, it was impossible to resist the conclusion that there should be a defence of withdrawal or disassociation, for there would be time between the agreement and the commission of the overt act for that to take place.” 147

The defence of withdrawal in relation to accessorial liability is further discussed in Chapter 7, [7.85].

143 144 145 146

147

O’Brien (1974) 59 Cr App R 222 at 226. R v Aspinall (1876) 2 QBD 48. Criminal Code (Cth), s 11.5(5); Criminal Code (ACT), s 48(6); Criminal Code (NT), s 43BJ(6). Section 48(6) of the Criminal Code (ACT) is essentially identical, providing as follows: A person must not be found guilty of the offence of conspiracy to commit an offence if, before the commission of an overt act under the agreement, the person— (a) withdrew from the agreement; and (b) took all reasonable steps to prevent the commission of the offence conspired. Criminal Law Officers Committee of the Standing Committee of Attorneys-General, Chapter 2—General Principles of Criminal Responsibility, Final Report (December 1992) p 101. [8.100]

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The common design [8.105] It is not necessary that all the parties to the agreement should have been in

communication with each other, provided they entertained a common design communicated at least to one other party, expressly or tacitly, in relation to the object of the conspiracy. 148 Sometimes, however, establishing a conspiracy of the alleged design, rather than a series of connected but separate conspiracies, may be problematic. In Meyrick and Ribuffi, 149 the accused were nightclub owners operating unlicensed nightclubs in London’s West End. They bribed a police officer to turn a blind eye to the operation of their respective nightclubs. The accused, together with the police officer, were convicted of conspiracy to contravene the provisions of the Licensing Acts and to effect a public mischief by obstructing and corrupting police officers. 150 There was no evidence that the two accused knew each other, or had met each other, or had consulted together. The Court of Criminal Appeal held that the accused had been rightfully convicted. The court held that the essential ingredient of conspiracy was the existence of a common design; the prosecution need not establish that the individuals were in direct communication with each other, or directly consulted together, but that they entered into an agreement with a common design. On the facts, the “common design” was to evade the licensing laws. Chief Justice Hewart stated: “[I]t was 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 … round whom the rest revolve. 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 conspirators. What has to be ascertained is always the same matter: is it true to say … that the acts of the accused were done in pursuance of a criminal purpose held in common between them.” 151

On the facts of the case, it could be said that the police officer was the person at the centre of the circle around whom the rest of the conspiracy revolved, and that without his coordination, there would have been no common design and, hence, no conspiracy. For example, this conspiracy scenario may be represented as follows:

The decision in Meyrick’s case may be questioned in the light of subsequent cases. For example, in R v Griffiths, 152 the two accused were convicted of conspiring to defraud a 148

151 152

Gerakiteys v The Queen (1984) 153 CLR 317; Lee (1994) 76 A Crim R 271; R v Griffiths [1966] 1 QB 589 at 597 per Paull J for the court; R v Chrastny (No 1) [1991] 1 WLR 1381. (1929) 21 Cr App R 94. The House of Lords subsequently held that there was no common law offence of conspiracy to effect a public mischief: DPP v Withers [1975] AC 842. Meyrick and Ribuffi (1929) 21 Cr App R 94 at 101–102. [1966] 1 QB 589.

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government department by claiming false agricultural subsidies on behalf of a number of farmers. The accused brought each farmer into the conspiracy, but none of the farmers knew one another. The prosecution charged one general conspiracy against the accused and the farmers. The English Court of Criminal Appeal held that the evidence disclosed not one general conspiracy but a number of them, 153 as represented in Diagram 2. That is, there was one general conspiracy between the two accused and several smaller conspiracies involving the accused and each farmer. Each of the accused’s appeals against conviction was therefore allowed on the basis that there was no evidence of a conspiracy between all those convicted as opposed to a number of separate conspiracies. 154

The importance of charging specific conspiracies rather than one general one was apparent in the High Court decision of Gerakiteys v The Queen. 155 In this case, the first accused, a doctor, was charged with conspiring with the second accused, an insurance agent, and nine others (the claimants) to defraud a number of insurance companies. The prosecution case was that the first and second accused had arranged the conspiracy. The different claimants had agreed with the first and second accused to defraud a particular insurance company with whom each claimant was insured. As Gibbs J stated: “The jury in this case could not have found that the applicant and [the insurance agent] and any one or more of the nine claimants were guilty of the conspiracy alleged, because the evidence did not show that the claimant had a common purpose with the applicant and [the insurance agent] to defraud divers insurance companies. Each claimant had only the purpose of defrauding his own insurer. The case resembles R v Griffiths [1966] 1 QB 589 … [A]ssuming the correctness of the Crown evidence, the claimants were parties to a number of different conspiracies, not to one common conspiracy.” 156

The first accused’s conviction was therefore quashed. It is essential for the prosecution to consider whether a general conspiracy has taken place, rather than a series of connected but separate conspiracies. This was heeded in the subsequent case of Georgiadis v The Queen, 157 where the prosecution made a number of charges concerning agreements to understate the weight of abalone in returns to the Minister of Sea Fisheries or to omit to lodge such returns. A number of accused were charged with conspiracy to defraud the Minister, but while the indictment specified a general conspiracy, it also went on to specify consequential conspiracies in detail. These charges were viewed by the Tasmanian Court of Criminal Appeal as detailing a number of different conspiracies, thereby avoiding the problem that occurred in Gerakiteys’

153 154 155 156 157

R v Griffiths [1966] 1 QB 589 at 599. R v Griffiths [1966] 1 QB 589 at 600. (1984) 153 CLR 317. Gerakiteys v The Queen (1984) 153 CLR 317 at 320. (2002) 11 Tas R 137. [8.105]

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case. In cases where there is a lack of consensus between the parties, it has been suggested that prosecutors should resort to charges of aiding and abetting a conspiracy. 158 Parties to conspiracy [8.110] The agreement must be between two or more parties. 159 While this rule appears

straightforward, there are a number of interesting situations that result from its application. First, at common law and under statute in Tasmania, a husband and wife cannot be criminally responsible for a conspiracy between themselves alone. 160 This rule has been abolished in the Northern Territory and Western Australia as a legal remnant of the discredited marital coercion defence. 161 In Victoria, a husband and wife can now be convicted for conspiracy to commit murder or treason. 162 The rationale for this rule is that, historically, a husband and wife have been viewed in law as forming one personality. This is, of course, highly questionable today and remains an anomaly in those jurisdictions where the rule has not been abolished. A husband and wife can nevertheless be liable for a conspiracy involving other persons. There may also be liability where one spouse enters an agreement with the other, knowing that he or she is conspiring with a third party. 163 Secondly, it has been held that, at common law, a corporation cannot be liable for conspiracy with a person who is acting as its “directing mind and will”, an inconvenient rule that has been abolished by statute at the federal level and in the Australian Capital Territory. 164 If a company director conspires with other persons in the course of company business, then criminal liability will exist. 165 The notion that there must be two or more parties to a conspiracy also raises a number of questions: • What if one party is exempt from liability? • What if the other(s) are acquitted? • What if one party is an undercover agent? • These questions will be examined in turn.

An exempt party [8.115] The general rule is that one party may be liable for conspiracy where the other party is exempt from liability for the substantive offence. In R v Duguid, 166 the accused agreed with a child’s mother to take the child from the possession of her lawful guardian. The child’s mother could not herself be convicted of child-stealing as the Offences Against the Person Act 1861 (UK) exempted parents who took their own children. It was held that the mother’s exemption 158 159 160 161 162 163 164 165 166

D Fitzpatrick, “Variations on Conspiracy” (1993) 143 New Law Journal 1180. Gerakiteys v The Queen (1984) 153 CLR 317 at 334 per Deane J; R v Alley; Ex parte Mundell (1886) 12 VLR 13; Phillips (1987) 86 Cr App R 18. DPP v Blady [1912] 2 KB 89; R v McKechie [1926] NZLR 1; Kowbel v The Queen [1954] 4 DLR 337; Mawji v The Queen [1957] AC 126; Criminal Code (Tas), s 297(2). Criminal Code (NT), s 291; Criminal Code Amendment Act (No 2) 1987 (WA), s 6. Crimes Act 1958 (Vic), s 339(1). R v Chrastny (No 1) [1991] 1 WLR 1381. See Criminal Code (Cth), s 11.5(3)(b); Criminal Code (ACT), s 48(5)(b). These provisions reverse the effect of the ruling in R v McDonnell [1966] 1 QB 233. R v ICR Haulage Ltd [1944] KB 551. (1906) 94 LT 887.

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from liability was no bar to the accused being convicted for conspiracy. This common law rule is reflected in s 292(e) of the Criminal Code (NT) for cases of conspiracy where the other person lacks the capacity to commit the substantive offence. This section, however, does not apply to Sch 1 offences which are currently subject to the new offence of conspiracy set out in s 43BJ. The rule relating to exemption is analogous to the Australian law relating to the doctrine of acting in concert. In Chapter 7, we explored how a person who has assisted or encouraged a crime pursuant to a pre-conceived plan can still be held liable if the perpetrator is exempt from prosecution or where a defence is available to the perpetrator: see [7.110]. There is also authority for the proposition that a person who may personally be exempt from liability can nevertheless be guilty of a conspiracy. In Burns, 167 a father agreed with others to steal his child from the mother. Again, the father was exempt from the substantive offence of child-stealing. The father was convicted of conspiracy and this was upheld on appeal to the English Court of Appeal. Watkins J stated: “We find [no authority] that leads us to say that it is in any way wrong or unjust for a person who is exempt, in the sense that [the father] was, from prosecution for the substantive offence to be proceeded against for the crime of conspiracy. The dangers of permitting a father of children to collect a posse of men and suddenly launch a siege of the home of his erstwhile wife, to break in and then snatch away sleeping children are surely self-evident. The criminal law does not in our view permit that sort of conduct. When a father who is exempt [from prosecution for the substantive offence of child stealing] behaves in that way, it is, in our judgment, not only lawful but right and just that the prosecution should be free to bring a charge of conspiracy against him.” 168

Obviously, policy reasons were persuasive in determining the Court of Appeal’s decision in Burns’ case. However, it does not deal with this question: if general principles operate to exempt certain people from liability, why should that legal incapacity be overridden solely in the case of conspiracy? For example, if a person has a serious mental illness, such as schizophrenia, why should he or she be considered not criminally responsible for substantive offences and yet, following the Burns approach, liable for conspiracy? This decision is highly questionable if conspiracy is viewed as being premised on the need to prohibit agreements between two or more responsible persons to commit a crime.

Acquittals [8.120] In Gerakiteys v The Queen, Deane J held that: “[A]s a matter of common law principle, an accused may be convicted of conspiring ‘with a person or persons unknown’ to commit an unlawful act.” 169

In R v Sayers, 170 it was held that one person could be convicted of conspiracy even where the other person was within the jurisdiction and was not charged. This ruling also covers those situations where one party has been given immunity from prosecution in exchange for giving evidence against the other: see also Criminal Code (NT), s 292(a). But what if the other person has in fact been acquitted of conspiracy? In England, a distinction was drawn at common law according to the number of persons involved in the alleged conspiracy. In O’Brien, 171 the trial judge failed to direct the jury as to the effect of one 167 168 169 170 171

(1984) 79 Cr App R 173. Burns (1984) 79 Cr App R 173 at 179. Gerakiteys v The Queen (1984) 153 CLR 317 at 334. [1943] SASR 146. (1974) 59 Cr App R 222. [8.120]

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party’s acquittal upon the accused’s liability for conspiracy between themselves and persons unknown. The English Court of Appeal held that the jury should have been directed that if it acquitted one party, it had to consider whether there was sufficient evidence that the accused had conspired with persons unknown. 172 However, in Dharmasena v The King, 173 where two persons were presented for trial on a single count of conspiracy between themselves and no other, the Privy Council held that the acquittal of one necessitates the acquittal of the other. The Privy Council held that where two accused were solely charged with conspiracy, the acquittal of one was inconsistent with sustaining the conviction of the other. Their Lordships stated: “It is well-established law that if two persons are accused of conspiracy and one is acquitted the other must also escape condemnation. Two at least are required to commit the crime of conspiracy; one alone cannot do so.” 174

The High Court in R v Darby 175 departed from the common law position set out in Dharmasena’s case. In that case, the accused, Darby, and another man, Thomas, were tried together on a charge of conspiring to rob. Both were found guilty, but Thomas successfully appealed to the Supreme Court of Victoria, which quashed his conviction and ordered that a verdict and judgment of acquittal be entered. Darby subsequently argued before the High Court for the continued existence of the rule in Dharmasena. This was based on the essence of conspiracy being an agreement of minds, and therefore the effect of an acquittal of one party is to deny the very existence of the conspiracy itself. This argument was rejected by a majority of the High Court. Gibbs CJ, Aickin, Wilson and Brennan JJ referred to Lord Salmon’s observations in DPP v Shannon, 176 quoting the following passage from the judgment: “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 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.” 177

The majority of the High Court explained that the phenomenon of inconsistent verdicts in joint trials for conspiracy resulted from the jury’s obligation to consider separately the guilt of the two accused on the basis of the evidence admissible against each. Gibbs CJ, Aickin, Wilson and Brennan JJ declared the common law of Australia as follows: “[T]he conviction of a conspirator whether tried together with or separately from an alleged co-conspirator may stand notwithstanding that the latter is or may be acquitted unless in all circumstances of the case his [or her] conviction is inconsistent with acquittal of the other person. In our opinion such a determination will focus upon the justice of the case rather than upon the technical obscurities that now confound this subject.” 178

This rule is now found in statutory form in several jurisdictions. 179 The majority of the High Court was undoubtedly influenced by s 5(8) of the Criminal Law Act 1977 (UK), which 172 173 174 175 176 177 178 179

O’Brien (1974) 59 Cr App R 222 at 225. [1951] AC 1. Dharmasena v The King [1951] AC 1 at 6. (1982) 148 CLR 668. [1975] AC 717. R v Darby (1982) 148 CLR 668 at 677, citing Lord Salmon in DPP v Shannon [1975] AC 717 at 772. R v Darby (1982) 148 CLR 668 at 678. Criminal Code (Cth), s 11.5(3)(d); Criminal Code (ACT), s 48(5)(d); Criminal Code (NT), s 43BJ(4)(d); Crimes Act 1958 (Vic), s 321B.

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provides that the acquittal of all the other parties is not a ground for quashing the conviction of the person accused of conspiring with them “unless under all the circumstances of the case his or her conviction is inconsistent with the acquittal of the other person or persons”. Gibbs CJ, Aickin, Wilson and Brennan JJ encouraged the practice of separate trials where the evidence against one party was significantly different from the evidence against the other. 180 There was a very strong dissent from Murphy J, affirming the old law in Dharmasena and arguing that the members of the majority were degrading the effect of an acquittal: “In Australia there are no degrees of acquittal. As between the State and the accused, either every judgment of acquittal is conclusive of evidence or none is. The doctrine that acquittal does not mean innocence is unacceptable in a free society. It is irrelevant that persons may hold private reservations about the acquitted person’s innocence. It is irrelevant that remedies may be available in tort or other branches of private law arising out of the conduct of the acquitted person. The relationship between the State and the accused is not to be assimilated to private law relations.” 181

Although the High Court’s ruling in Darby has been subsequently followed, 182 it has attracted academic criticism. Peter Sallmann and John Willis argue that the majority in Darby is “indubitably wrong”. 183 Like Murphy J, they emphasise that the essence of conspiracy is an agreement and that to try one accused for conspiracy when the other accused has been acquitted makes a mockery of the acquittal process. For both exempt parties and acquittals, then, the courts seem prepared to deviate from the group-based rationale for conspiracy.

Undercover agent [8.125] In Yip Chiu-Cheung v The Queen, 184 the Privy Council held that an accused may be

convicted of conspiracy even where the other person was an undercover drug enforcement agent. In that case, the accused was convicted in Hong Kong of conspiracy to traffic in heroin. He had agreed with another man, Needham, to take five kilograms of heroin from Hong Kong to Australia. Needham was in fact an American undercover drug enforcement agent. The plan was that Needham would fly to Hong Kong, pick up the heroin and fly to Australia. Needham had kept the authorities in Hong Kong and Australia informed of the plan. They agreed that he would not be prevented from carrying the heroin to Australia as this would allow him to identify both the suppliers and distributors of the drug. In fact, Needham’s original flight to Hong Kong was delayed and he missed the rescheduled flight. The accused was arrested at Hong Kong airport and admitted that he was there to meet Needham. The accused argued on appeal to the Privy Council that he should not have been convicted of conspiracy because Needham was not a co-conspirator since he lacked the fault element for the crime. Lord Griffiths, in delivering the judgment of the court, held that Needham had, in fact, the intention to commit the criminal offence of trafficking and therefore could be regarded as a co-conspirator. Lord Griffiths stated:

180 181 182 183 184

R v Darby (1982) 148 CLR 668 at 678. R v Darby (1982) 148 CLR 668 at 683. R v Brown [1990] VR 820; Catalano (1992) 61 A Crim R 323; R v Rogerson (1992) 174 CLR 268. P Sallman and J Willis, “Editorial: Criminal Conspiracy: Takes One to Tango?” (1982) 15 Australia and New Zealand Journal of Criminology 129 at 130. [1995] 1 AC 111. [8.125]

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“Naturally, Needham never expected to be prosecuted if he carried out the plan as intended. But the fact that in such circumstances the authorities would not prosecute the undercover agent does not mean that he did not commit the crime albeit as part of a wider scheme to combat drug dealing.” 185

Lord Griffiths distinguished 186 the facts of the case from the situation where the undercover agent has no intention of committing the offence but pretends to join a conspiracy in order to gain information that would frustrate it. 187 In the latter case, there would be no conspiracy. A similar outcome has been achieved, through a different doctrinal route, by the United States Supreme Court. Reflecting that the essence of the offence of conspiracy is the agreement to engage in a crime (irrespective of whether its objects are achieved), the Supreme Court held that there may be conspiracy, notwithstanding that the agreement objects have been frustrated or rendered impossible to commit because of the actions of undercover law enforcement officials. 188 Arguably, these decisions suggest that courts are prepared to strain legal principle and doctrine in order to facilitate undercover police operations. The law relating to entrapment and police illegality is discussed in Chapter 14, [14.210]–[14.235]. Unlawful act [8.130] Historically at common law, the definition of an “unlawful act” has been broadly

interpreted to include not only crimes, 189 but also agreements to defraud, 190 to commit a tort with intent to cause injury, 191 to corrupt public morals, 192 to commit a public mischief 193 and to pervert the course of justice. 194 In 1976, the Law Commission for England and Wales recommended that conspiracy be restricted to agreements to commit criminal offences. 195 As a consequence, the Criminal Law Act 1977 (UK) was enacted. Part I of the Act created a statutory offence of conspiracy which was linked to the commission of a criminal offence or offences if the agreement were to be carried out. However, conspiracy to defraud and conspiracy to corrupt public morals have remained offences at common law in England. The broadening of the scope of conspiracy that occurred in the 1960s and early 1970s was also judicially criticised as not being within the proper domain of the courts. 196 As mentioned earlier, in practice, conspiracy to defraud, conspiracy to commit crimes and conspiracy to pervert the course of justice are the usual forms of conspiracy charged in 185 186 187 188 189 190 191 192 193 194 195 196

Yip Chiu-Cheung v The Queen [1995] 1 AC 111 at 118. Yip Chiu-Cheung v The Queen [1995] 1 AC 111 at 117–118. R v Anderson [1986] AC 27. See United States v Jimenez Recio 537 US 270 (2003). R v Jones (1832) 4 B & As 345; Mulcahy v The Queen (1868) LR 3 HL 306; R v Kempley (1944) 44 SR (NSW) 416; R v Orton [1922] VLR 469. Scott v Metropolitan Police Commissioner [1975] AC 819; Wai Yu-Tsang v The Queen [1992] 1 AC 269; R v Horsington [1983] 2 NSWLR 72; R v Walsh [1984] VR 474. Kamara v DPP [1974] AC 104. Shaw v DPP [1962] AC 220; Knuller (Publishing and Printing Promotions) Ltd v DPP [1973] AC 435. These cases have not been followed in Australia: R v Cahill [1978] 2 NSWLR 453. R v Boston (1923) 33 CLR 386; R v Howes (1971) 2 SASR 293. In DPP v Withers [1975] AC 842, the House of Lords held that there was not a separate and distinct class of conspiracy to effect a public mischief. R v Grimes [1968] 3 All ER 179; R v Baba [1977] 2 NSWLR 502; R v Murphy (1985) 158 CLR 596; R v Rogerson (1992) 174 CLR 268; Question of Law Reserved (No 1 of 2008) (2008) 102 SASR 398. Law Commission for England and Wales, Criminal Law: Report on Conspiracy and Criminal Law Reform, Report No 76 (1976). DPP v Withers [1975] AC 842; R v Cahill [1978] 2 NSWLR 453.

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Australia. 197 While most of the legislative provisions set out in Table 2 (at [8.85]) deal with conspiracies to commit offences in general, specific statutory crimes such as conspiracy to commit murder also exist. 198 The law relating to conspiracy to defraud and conspiracy to pervert the course of justice is often seen as differing from the general law relating to conspiracy—these will be dealt with in the following sections. First, however, it is interesting to take a look at the controversy in England surrounding the development of conspiracy to corrupt public morals.

Perspectives Judicial Law-Making: Conspiracy to Corrupt Public Morals [8.135] The case of Shaw v DPP 199 caused much debate in England concerning the

breadth of conspiracy and the power of the courts to create new criminal laws. In that case, the accused published “The Ladies’ Directory” which advertised the names and addresses of prostitutes and the sexual acts they were willing to practise. He was convicted of conspiracy to corrupt public morals. On appeal to the House of Lords, the accused argued that he should only be convicted of conspiracy to commit a crime, and that corrupting public morals was not an established crime. The House of Lords upheld the accused’s conviction on the basis that conspiracy to corrupt public morals was an independent offence in itself. The court did not decide as to whether there was a substantive offence of corrupting public morals. Viscount Simonds, one of the majority judges, relied on a residual power in the courts to conserve the “moral welfare of the State” in holding that there was an offence of conspiracy to corrupt public morals. 200 Lord Tucker relied on several decisions that he viewed as implying an offence of conspiracy to corrupt public morals. 201 Lord Reid, in dissent, saw the majority as inventing an offence. He stated: “[T]here are wide differences of opinion today as to how far the law ought to punish immoral acts which are not done in the face of the public. Some think that the law already goes too far, some that it does not go far enough. Parliament is the proper place … to settle that. When there is sufficient support from public opinion, Parliament does not hesitate to intervene. Where Parliament fears to tread it is not for the courts to rush in.” 202

The decision in Shaw’s case was affirmed by the majority in the House of Lords case, Knuller (Publishing and Printing Promotions) Ltd v DPP. 203 In that case, the accused had agreed to publish advertisements to facilitate homosexual acts. At the time, homosexual 197

198 199 200 201 202 203

Gogswell DCJ of the District Court of New South Wales found that the offence of conspiracy to aid and abet other persons to commit a crime was part of the common law of New South Wales: R v Cagla Kucukeren (2008) 8 DCLR (NSW) 6 at [18]. He based his decision on “indirect” judicial authority from appellate level courts in Australia, specifically Gerakiteys v The Queen (1984) 153 CLR 317; Nirta v The Queen (1983) 10 A Crim R 370 (FCAFC); R v Skewes (1981) 7 A Crim R 276 (VCA): at [19]–[22]. See his judgment for fuller discussion. Criminal Code (Qld), s 309; Criminal Law Consolidation Act 1935 (SA), s 12(a). [1962] AC 220. Shaw v DPP [1962] AC 220 at 267. Shaw v DPP [1962] AC 220 at 286–289. Shaw v DPP [1962] AC 220 at 275. [1973] AC 435. [8.135]

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acts conducted in private between adult men were no longer considered criminal. Nevertheless, the House of Lords upheld the accused’s conviction for conspiracy to “outrage public decency”. The decision in Shaw’s case was widely criticised on a number of grounds. First, it was argued that if courts could declare new crimes without prior warning, how could individuals avoid being punished for such crimes? Lord Reid, in his dissenting judgment, stated that the criminal law “should be certain: that a [person] should be able to know what conduct is and what is not criminal, particularly when heavy penalties are involved”. 204 Similarly, HLA Hart argued: “The particular value which [their Lordships] sacrificed is the principle of legality which requires criminal offences to be as precisely defined as possible, so that it can be known with reasonable certainty beforehand what acts are criminal and what are not. As a result of Shaw’s case, virtually any cooperative conduct is criminal if a jury consider it ex post facto to have been immoral.” 205

Secondly, the court was criticised for usurping the role of the legislature. 206 This was particularly salient since Parliament had introduced the Street Offences Act 1959 (UK) a few years prior to Shaw being heard. This Act had made some limited reforms in the area of prostitution but had not criminalised the corruption of public morals. The importance of the principle of legality is discussed further in Chapter 1 at [1.25], as well as the controversy concerning whether or not the criminal law should be used to enforce moral or community standards: see [1.210]. Any further extension of conspiracy into the realms of immoral or antisocial behaviour was put an end to by the House of Lords in DPP v Withers. 207 In that case, the Court quashed convictions of conspiracy “to effect a public mischief” on the basis that no such general offence was known at law. The House of Lords was of the view that the scope of criminal conspiracy should not be extended any further than what was already established. This decision foreshadowed the recommendations of the Law Commission for England and Wales in its Criminal Law: Report on Conspiracy and Criminal Law Reform: 208 see [8.130]. The subsequent Criminal Law Act 1977 (UK) created a statutory offence of conspiracy, but did not completely abolish the existing common law heads. Thus, Shaw’s case and Knuller’s case still remain authorities in England for conspiracy to corrupt public morals and outrage public decency, despite persistent concerns being raised as to whether an offence based on notions of morality would survive a challenge under the non-retrospectivity provisions in the European Convention on Human Rights. 209 The criticism both of these cases generated was examined by Heydon J in PGA v The Queen 210 and they have not been followed in Australia. In R v Cahill, 211 an argument

204

209 210 211

Shaw v DPP [1962] AC 220 at 281. As Julius Stone noted in his book, decisions like Shaw were a salutary reminder that “ex post facto punishment is still a problem even in the legal order which was the progenitor of ‘the rule of law’”: J Stone, Social Dimensions of Law and Justice (Sydney: Maitland Publications, 1966) p 206. HLA Hart, Law, Liberty and Morality (Oxford: Oxford University Press, 1963) p 12. ATH Smith, “Judicial Lawmaking in the Criminal Law” (1984) 100 Law Quartery Review 46. [1975] AC 842. Law Commission for England and Wales, Criminal Law: Report on Conspiracy and Criminal Law Reform, Report No 76 (1976). D Ormerod, Smith and Hogan’s Criminal Law (13th ed, Oxford: Oxford University Press, 2011) p 457. (2012) 245 CLR 355 at 408–411. [1978] 2 NSWLR 453.

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was run that the agreements of three Chinese men and three Australian women to marry in order to increase the chances of permanent residency for the men were offensive to public morality. Street CJ made it clear that only Parliament should create new offences involving matters of public morality. He stated: “[R]eligious precepts do not in this country affect the application of the ordinary criminal law unless and until such precepts find expression through a validly made law of the Commonwealth or State.” 212

Section 321F(1) of the Crimes Act 1958 (Vic) also makes it clear that conspiracy to corrupt public morals or to outrage public decency are not offences in that State. In relation to the ability of the courts to make new offences, McHugh J stated categorically in R v Rogerson that they “are no longer able to create criminal offences”. 213 Conspiracy to defraud [8.140] The common law offence of conspiracy to defraud is well established. 214

Section 321F(2) of the Crimes Act 1958 (Vic) and s 133(2) of the Criminal Law Consolidation Act 1935 (SA) retain this head of the common law, and there are statutory provisions setting out this offence in the Australian Capital Territory, Queensland, the Northern Territory and at the federal level. 215 The common feature of these provisions and the offence at common law is that liability is extended to fraudulent acts that do not involve theft or any other crime. Conspiracy to defraud does not exist as a statutory offence in Western Australia or Tasmania. Instead, s 409 of the Criminal Code (WA) and s 253A of the Criminal Code (Tas) make it an offence for a person with the intent to defraud, by deceit or any fraudulent means, to gain property or any benefit pecuniary or otherwise. There need be no agreement as one person may be punished under this provision. The word “defraud” raises the question as to whether or not the prosecution has to prove a deception. In Scott v Metropolitan Commissioner of Police, 216 the accused paid the employees of a cinema to lend him films without the knowledge of the cinema owners. He made copies of the films and then distributed them commercially. He was convicted of conspiracy to defraud the owners of the copyright in the films. He argued on appeal that there could be no conspiracy to defraud without deception. This argument was rejected by the House of Lords. It held that “defraud” was equivalent to “dishonest” and stated, per Viscount Dilhorne: “[I]t is clearly the law that an agreement by two or more by dishonesty to deprive a person of something which is his [or hers] or to which he [or she] is or would or might be entitled and an agreement by two or more to injure some proprietary right of his [or hers], suffices to constitute the offence of conspiracy to defraud.” 217

The majority of members of the High Court in Peters v The Queen 218 have held that dishonesty is not a separate element of conspiracy to defraud, but is descriptive of the means 212 213 214

215 216 217 218

R v Cahill [1978] 2 NSWLR 453 at 455. R v Rogerson (1992) 174 CLR 268 at 305. Scott v Metropolitan Police Commissioner [1975] AC 819; R v Hersington [1983] 2 NSWLR 72; R v Walsh and Harney [1984] VR 474; Wai Yu-Tsang v The Queen [1992] 1 AC 269; Peters v The Queen (1998) 192 CLR 493; Chung v The Queen (2007) 175 A Crim R 579. Criminal Code (Cth), s 135.4; Criminal Code (ACT), s 334; Criminal Code (NT), s 284; Criminal Code (Qld), s 430. [1975] AC 819. Scott v Metropolitan Commissioner of Police [1975] AC 819 at 839. (1998) 192 CLR 493. [8.140]

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used in order to achieve the design of the conspiracy. This is explored further in the following section on the fault element for conspiracy to defraud: [8.160]. Conspiracy to defraud is not confined to causing economic loss. In Allsop, 219 the accused was a sub-broker for the victim, a hire-purchase finance company. The accused agreed with others to enter false particulars on the hire-purchase application forms so that the company would enter agreements with purchasers whom they would otherwise have rejected. The accused expected that the company would suffer no economic loss because the creditors would maintain payments. The Court of Appeal upheld the accused’s conviction for conspiracy to defraud on the basis that the hire-purchase company was being induced into taking a financial or economic risk that it would not have taken but for the false particulars. 220 It was no excuse that the accused believed the company would suffer no loss. 221 This may be compared to the position in relation to dishonesty for theft which is discussed in Chapter 12, [12.45]ff. The Model Criminal Code Officers Committee (MCCOC) considered whether conspiracy to defraud should form part of the Model Criminal Code. 222 Criticisms raised included the fact that allowing conduct to be rendered criminal after the event broadens the boundaries of criminal law too far, and the uncertainty surrounding the issue of dishonesty rendered “the criminal law applicable to a number of relationships previously thought to be in the realm of civil remedies”. 223 All the submissions received by the MCCOC, however, were in favour of retaining the offence. The MCCOC stated: “[I]t may not be that conspiracy to defraud is justified on the basis of gaps in the existing law (all of which could be addressed through specific legislation) but on the basis that human ingenuity is such that there is a need to have an offence which can be used in relation to newly-devised gaps. Addressing them with specific legislation after the event may be too late.” 224

Conspiracy to pervert the course of justice [8.145] Conspiracy to pervert the course of justice is an offence at common law. 225 It also

exists in statutory form at the federal level 226 and in the Code jurisdictions. 227 Interestingly, s 321F(1) of the Crimes Act 1958 (Vic) appears to abolish this head of conspiracy. In New South Wales, the common law offence has been abolished. 228 In its place, s 319 of the Crimes Act 1900 (NSW) creates an offence of doing an act with the intention of perverting the course of justice, and s 342 confirms that a person may be charged with conspiracy to commit this

219 220 221 222 223 224 225

228

(1976) 64 Cr App R 29. Allsop (1976) 64 Cr App R 29 at 32. See also R v McGrath and Simonidis [1983] 2 Qd R 54; Wai Yu-Tsang v The Queen [1992] 1 AC 269. Model Criminal Code Officers Committee, Chapter 3—Conspiracy to Defraud, Report (1997). Model Criminal Code Officers Committee, Chapter 3—Conspiracy to Defraud, Report (1997) p 25. Model Criminal Code Officers Committee, Chapter 3—Conspiracy to Defraud, Report (1997) p 27. R v Grimes [1968] 3 All ER 179; R v Baba [1977] 2 NSWLR 502; R v Murphy (1985) 158 CLR 596; R v Rogerson (1992) 174 CLR 268. See also Model Criminal Code Officers Committee, Chapter 7—Administration of Justice Offences, Discussion Paper (1997) p 89, and Model Criminal Code Officers Committee, Chapter 7—Administration of Justice Offences, Report (1998) p 111. Crimes Act 1914 (Cth), s 42. Criminal Code (NT), s 286; Criminal Code (Qld), s 132; Criminal Code (Tas), s 297(1)(b); Criminal Code (WA), s 135. Crimes Act 1900 (NSW), s 341 as amended by the Crimes (Public Justice) Amendment Act 1990 (NSW).

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offence. The MCCOC has noted that there is also a substantive offence of perverting the course of justice independent of conspiracy and has recommended that this be codified. 229 The rationale for retaining conspiracy to pervert the course of justice lies in the policy that “the purity and integrity of the course of justice” needs to be maintained. 230 Accordingly, the courts have taken a broad approach to applying this head of conspiracy. It has been held to cover: • interference with witnesses; 231 • fabricating evidence; 232 • bribing the police to hinder the prosecution; 233 and • making false statements to the police. 234 There may also be liability for a conspiracy to pervert the course of justice in relation to the conduct of committal proceedings. 235 In R v Rogerson, Mason CJ stated: “I agree with Brennan and Toohey JJ that an act which has a tendency to deflect the police from prosecuting a criminal offence or instituting disciplinary proceedings before a judicial tribunal, or from adducing evidence of the true facts, is an act which tends to pervert the course of justice…” 236

In R v Rogerson, the High Court held that there could even be a conspiracy to pervert the course of justice where no relevant police investigation had commenced or judicial proceedings contemplated. 237 There is also some authority that conspiracy to pervert the course of justice may apply to decisions after a sentence has been passed. In R v Machirus, 238 the New Zealand Court of Appeal held that conspiracy to pervert the course of justice encompassed an agreement to try to affect by deceit the decision of the Parole Board. Jeremy Finn writes that this case significantly extends the scope of the offence in New Zealand, “not merely by extending the ‘course of justice’ to include events occurring after sentence has been imposed, but in determining that the offending conduct need not be concerned with proceedings that are judicial in character”. 239

229 230 231 232 233 234 235

236 237 238 239

Model Criminal Code Officers Committee, Chapter 7—Administration of Justice Offences, Report (1998) pp 111–119. R v Baba [1977] 2 NSWLR 502 at 504 per Street J. R v Panayiotou [1973] 2 All ER 112; R v Kellett [1976] QB 372. R v Vreones [1891] 1 QB 360. R v Matthews [1972] VR 3. R v Andrew [1973] 1 QB 442; Field (1964) 48 Cr App R 335. R v Murphy (1985) 158 CLR 596. This case concerned primarily matters of law arising out of the conviction of the High Court Justice, the Honourable Lionel Keith Murphy, for attempting to pervert the course of justice. For background to this case, see AR Blackshield, “The Murphy Affair” in JA Scutt (ed), Lionel Murphy: A Radical Judge (Carlton: McCulloch Publishing, 1987) pp 231–257. R v Rogerson (1992) 174 CLR 268 at 278. Cited with approval by Bathurst CJ in Cunneen v Independent Commission Against Corruption [2014] NSWCA 421 at [11]. R v Rogerson (1992) 174 CLR 268 at 278 per Mason CJ, at 281, 284 per Brennan and Toohey JJ, at 294 per Deane J. [1996] 6 NZLR 404. J Finn, “Case and Comment: Machirus” [1997] 21 Criminal Law Journal 51 at 52. [8.145]

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Fault Element [8.150] In Churchill v Walton,

240

the House of Lords held that for conspiracy to be made out, there must be an intention to be a party to an agreement to do an unlawful act. 241 This raises the question as to whether there simply has to be an intention to be a party to the agreement (intentional participation in the conspiracy) or whether there must also be an intention to bring about the unlawful object. Many of the earlier decisions were not explicit as to whether an intention to achieve the unlawful object was required. It now appears clear that an intention to achieve the unlawful object must also be proved. Brent Fisse writes: “[I]f the orthodox meaning of the term agreement is accepted, there can be no conspiratorial agreement to commit an unlawful object unless there is a common intention or purpose to achieve that object.” 242

The High Court in Gerakiteys v The Queen 243 insisted upon proof of an intention, shared by all the parties, to commit the unlawful object alleged. In this case, as outlined at [8.105], the first accused (a doctor) was charged with conspiring with the second accused (an insurance agent) and nine others (the claimants) to defraud a number of insurance companies. Gibbs CJ, Wilson and Brennan JJ referred to there being a “common purpose” to commit the offence, occurring by implication where two or more persons have agreed to commit an offence. 244 On the facts, the accused’s conviction was quashed as the evidence failed to disclose that there was a common purpose to defraud because the claimants had only the purpose of defrauding their own insurance company. 245 In Giorgianni v The Queen, Wilson, Deane and Dawson JJ similarly stated: “There are … offences in which it is not possible to speak of recklessness as constituting a sufficient intent. Attempt is one and conspiracy is another.” 246

Thus, conspiracy will not be made out where an objective is seen as a probable or possible outcome of carrying out an agreement to achieve some other objective. The requirement of an intention that the offence be committed requires proof that the accused’s conduct was accompanied by intention, knowledge or belief with respect to each physical element of the target offence. 247 This contrasts with the position in England. The House of Lords in R v Anderson 248 held that a person is guilty of conspiracy under s 1 of the Criminal Law Act 1977 (UK) irrespective of whether he or she intended that the offence (the subject of the agreement) will be committed. 249 It is sufficient that the parties agree to embark on a course of conduct, being reckless as to whether or not the offence may occur.

240 241 242 243 244 245 246 247 248 249

[1967] 2 AC 224. Churchill v Walton [1967] 2 AC 224 at 237 per Viscount Dilhorne. B Fisse, Howard’s Criminal Law (5th ed, Sydney: Law Book Company, 1990) p 369. (1984) 153 CLR 317. Gerakiteys v The Queen (1984) 153 CLR 317 at 320 per Gibbs CJ, at 323 per Wilson J, at 330 per Brennan J. Gerakiteys v The Queen (1984) 153 CLR 317 at 320 per Gibbs CJ. Giorgianni v The Queen (1985) 156 CLR 473 at 473. R v LK (2010) 241 CLR 177 at 212 per French CJ, at 228 per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. [1986] AC 27. R v Anderson [1986] AC 27 at 38 per Lord Bride of Harwich.

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The Criminal Law Officers Committee (CLOC) recommended that intention must be established and recklessness should not suffice for the offence of conspiracy. 250 At present, s 321(2) of the Crimes Act 1958 (Vic) requires that there is an intention that the offence be committed, and an intention or belief that any fact or circumstance, the existence of which is an element of the offence, will exist. Section 11.5(2)(b) of the Criminal Code (Cth), s 48(2)(b) of the Criminal Code (ACT) and s 43BJ(2)(b) of the Criminal Code (NT) also require an intention that an offence will be committed pursuant to an agreement. The CLOC stated that the “concept of recklessness is foreign to an offence based wholly on agreement”. 251 As mentioned above, the fault element in conspiracy overlaps with the physical element of an agreement. Viscount Dilhorne remarked in Churchill v Walton: “In cases of this kind, it is desirable to avoid the use of the phrase ‘mens rea’, which is capable of different meanings, and to concentrate on the terms or effect of the agreement made by the alleged conspirators. The question is, ‘What did they agree to do?’” 252

In addition, the fault element does not sit easily with subjective notions of intention because liability does not depend solely on the accused’s state of mind, but also on that of the other parties to the conspiracy. As with attempts, the stringent fault standard for conspiracy means that an accused must act with an intention to commit the offence, even where it is one of strict liability, negligence or recklessness. 253 The fault element in conspiracy to pervert the course of justice [8.155] As with conspiracy in general, the fault element for conspiracy to pervert the course

of justice requires an intention to achieve the unlawful object. The leading High Court decision dealing with the fault element in conspiracy to pervert the course of justice is that of R v Rogerson. 254 Roger Rogerson, a police officer, Morris Nowytarger and Nicholas Paltros had been convicted of conspiracy to pervert the course of justice. The charge arose out of an alleged agreement to fabricate evidence in order to hinder a police investigation into the possible commission of a crime. The New South Wales Court of Criminal Appeal set aside the convictions. 255 The prosecution then applied to the High Court for special leave to appeal. Special leave to appeal was granted. The appeal was dismissed in relation to Nowytarger, but allowed for Rogerson and Paltros with orders that the matter be remitted to the Court of Criminal Appeal. Brennan and Toohey JJ stated: “The prosecution [has] to prove that the conspirators intended that, if the relevant act was done pursuant to the conspiracy and in the circumstances contemplated by the conspirators, it would have the effect of perverting the course of justice.” 256

250

251 252 253 254 255 256

Criminal Law Officers Committee, Chapter 2—General Principles of Criminal Responsibility, Final Report (1992) p 99. The CLOC’s name was changed to the Model Criminal Code Officers Committee (MCCOC) in 1993. Criminal Law Officers Committee, Chapter 2—General Principles of Criminal Responsibility, Final Report (1992) p 99. Churchill v Walton [1967] 2 AC 224 at 237. Giorgianni v The Queen (1985) 156 CLR 473; Kamara v DPP [1974] AC 104; Ansari v The Queen (2010) 241 CLR 299; R v LK (2010) 241 CLR 177. (1992) 174 CLR 268. Rogerson (1990) 51 A Crim R 359. R v Rogerson (1992) 174 CLR 268 at 281. [8.155]

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Mason CJ agreed that an intention to achieve the result of perverting the course of justice was necessary. 257 McHugh J went somewhat further in stating that the offence requires “not merely an intention to pervert the course of justice but an agreement to do something which has the tendency to pervert it”. 258 These judgments imply that recklessness will not be sufficient as a fault element. In the subsequent High Court decision of Meissner v The Queen, Brennan and Toohey JJ pointed out that an intention to do acts that have the effect of perverting the course of justice may be established even if the conspirator has never heard the expression “perverting the course of justice”. 259 The fault element in conspiracy to defraud [8.160] The MCCOC stated in its report, Chapter 3—Conspiracy to Defraud: “The fault element of common law conspiracy to defraud is an intent to defraud. As has been seen, this phrase has been interpreted to include within it the concept of dishonesty and an intent to cause a loss, imperil a person’s economic interests, or to influence the exercise of a public duty.” 260

In Peters v The Queen, 261 Toohey and Gaudron JJ were highly critical of this approach to the fault element for conspiracy to defraud. In that case, the accused was a solicitor who had been retained by his client, a drug trafficker, to launder money through a series of sham mortgage transactions. He was convicted of conspiracy to defraud the Commonwealth Commissioner of Taxation, but was acquitted of a charge of conspiracy to pervert the course of justice on the basis that he did not know his client’s source of income and was simply acting as his solicitor. All the members of the High Court dismissed the accused’s appeal against conviction, but on different grounds. Toohey and Gaudron JJ criticised the MCCOC’s approach and instead took the view that it was superfluous to have a separate direction to the jury as to the meaning of dishonesty. 262 Toohey and Gaudron JJ stated: “[T]he offence of conspiracy to defraud involves dishonesty at two levels. First, it involves an agreement to use dishonest means … And quite apart from the use of dishonest means, the offence involves an agreement to bring about a situation prejudicing or imperilling existing legal rights or interests of others. That too, is dishonest by ordinary standards.” 263

They went on to state: “[I]t will ordinarily be sufficient to instruct the jury as to the facts they must find if the agreed means are to be characterised as dishonest. Alternatively, it will be sufficient to instruct them that, if satisfied as to those facts, they will be satisfied that the agreed means were dishonest. Only in the borderline case will it be necessary for the question whether the means are to be so characterised to be left to the jury.” 264

In those borderline cases, Toohey and Gaudron JJ were of the view that “dishonesty” is a question of fact to be determined by the jury, applying the current standards of ordinary 257 258 259 260

261 262 263 264

R v Rogerson (1992) 174 CLR 268 at 278. R v Rogerson (1992) 174 CLR 268 at 311. Meissner v The Queen (1995) 184 CLR 132 at 144. Model Criminal Code Officers Committee, Chapter 3—Conspiracy to Defraud, Report (1997) p 33. Accordingly, the MCCOC recommended that the Model Criminal Code provision should include a fault element of dishonesty based on the test set out in R v Feely [1973] QB 530 at 537–538 per Lawton LJ and in R v Ghosh [1982] QB 1053 at 1064 per Lane LCJ. (1998) 192 CLR 493. Peters v The Queen (1998) 192 CLR 493 at 506–507. Peters v The Queen (1998) 192 CLR 493 at 509. Peters v The Queen (1998) 192 CLR 493 at 510.

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decent people. This was the test set out by Lawton LJ in R v Feely 265 and by Lane LCJ in R v Ghosh. 266 The test may be summarised as follows. R v Feely concerned a manager of a Ladbrokes betting branch office in Liverpool who borrowed £30 from a till in his branch to assist his father who had been ill. Several days beforehand, the manager’s employers had sent a circular to all staff stating that the borrowing of money from tills was to stop. Lawton LJ commented that: “We do not agree that judges should define what ‘dishonestly’ means. The word is in common use … Jurors, when deciding whether an appropriation was dishonest can be reasonably expected to, and should, apply the current standards of ordinary decent people.” 267

R v Ghosh concerned a surgeon claiming fees for medical services performed that were in fact carried out by another surgeon or were carried out under the National Health Service scheme in the United Kingdom. Relevantly, Lane LCJ said that: “In determining whether the prosecution has proved that the defendant was acting dishonestly, a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest … If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest.” 268

McHugh and Gummow JJ went further in holding that dishonesty was not a separate element of conspiracy to defraud, and no direction as to dishonesty need be given even in borderline cases. 269 McHugh J, with whom Gummow J agreed, held that dishonesty does not constitute a distinct or separate element of the offence, but is simply descriptive of the means used to accomplish the fraud. 270 The term “dishonesty” characterises the conduct and would be evidenced by an intention to prejudice another person’s right or interest or performance of public duty by (a) making or taking advantage of representations or promises which they knew were false or would not be carried out; (b) concealing facts which they had a duty to disclose; or (c) engaging in conduct in which they had no right to engage. 271 Dishonesty could be inferred from an intention to engage in any of these forms of wrongful conduct. McHugh J stated: “The authors of Archbold [Criminal Pleading, Evidence and Practice, (1996) Vol 2, [17–102]] seem to have been voices in the wilderness in robustly maintaining the view that it is ‘superfluous’ to direct a jury as to dishonesty. In my opinion, however, the authors of Archbold are right. A successful prosecution for conspiracy to defraud does not require proof that the accused knew that he or she was acting dishonestly either in a Ghosh sense or a wholly subjective sense.” 272

Kirby J regarded dishonesty as a separate fault element, but in order to provide “clear instruction to those who have responsibility for conducting criminal trials”, 273 he withdrew his own opinion and concurred with the views expressed by Toohey and Gaudron JJ; that is, that conspiracy involves dishonesty at two levels. In Kirby J’s opinion: 265 266 267 268 269 270 271 272 273

[1973] QB 530 at 537–538. [1982] QB 1053 at 1064. R v Feely [1973] QB 530 at 537–538. R v Ghosh [1982] QB 1053 at 1064. Peters v The Queen (1998) 192 CLR 493 at 527 per McHugh J. Peters v The Queen (1998) 192 CLR 493 at 526. Peters v The Queen (1998) 192 CLR 493 at 529. Peters v The Queen (1998) 192 CLR 493 at 527. Peters v The Queen (1998) 192 CLR 493 at 556. [8.160]

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“Dishonesty of its essential nature connotes conscious wrongdoing. It is not dishonesty by the standards of other persons but by the appreciation and understanding of the accused personally.” 274

It would seem then, as a result of Peters’ case, that there must be an intention to use dishonest means to prejudice another person’s right, interest or performance of public duty. There is no requirement for dishonesty to be a separate element above and beyond these concepts. 275 The intention to prejudice another person’s right or interest was interpreted by Lord Diplock in Scott v Metropolitan Commissioner of Police as meaning an intention to cause economic loss by depriving the other person of some property or right to which he or she was or might be entitled. 276 This interpretation limits the fault element quite substantially as, often, those involved in fraud want to make a profit for themselves rather than cause an economic loss to others. Toohey and Gaudron JJ pointed out in Peters’ case that there are difficulties associated with Lord Diplock’s approach, stating that the offence of conspiracy to defraud is not limited to an agreement involving an intention to cause economic loss. 277 It is therefore doubtful that Lord Diplock’s approach holds sway in Australia. The fault element for conspiracy to defraud also extends to an intention to prejudice another person’s performance of public duty. This is broader than an intention to prejudice another person’s right or interest in that no economic loss need be intended. 278

Conspiracy to commit money laundering offences under the Criminal Code (Cth) [8.165] The High Court cases of R v LK 279 and Ansari v The Queen 280 both “arose out of the Sydney underworld of organised crime”. 281 In the first case, RK and LK were brothers who were charged with conspiring with each other and third parties to deal with money to the value of $1 million or more being the proceeds of crime via moving it through various offshore accounts. The Crown’s case was that the accused were reckless as to the money being the proceeds of crime rather than that they knew this to be the case. The trial judge directed the jury to acquit on the ground that the indictment did not disclose an offence known to the law. An appeal by the Crown to the New South Wales Court of Criminal Appeal was dismissed, as was the further appeal by the Crown to the High Court. In Ansari’s case, the Ansari brothers were charged with conspiring with each other and third parties to deal with money to the value of $1 million or more being the proceeds of crime through arranging for deposits of $10,000 or less to be placed in various bank accounts over a period of seven months. This time the Crown’s case was that these deposits proved an intention to launder the money. The Ansari brothers were convicted and their convictions upheld on appeal both by the New South Wales Court of Criminal Appeal and the High Court. While the results differed, the essential principle arising from these cases is that the fault element of intention governs conspiracy and effectively replaces the fault elements of the substantive offences upon 274 275 276 277 278 279 280 281

498

Peters v The Queen (1998) 192 CLR 493 at 555. See also R Evans, “Peters” (1998) 22 Criminal Law Journal 230 and Chapter 12 ([12.45]) on the meaning of dishonesty. Scott v Metropolitan Commissioner of Police [1975] AC 819 at 841. Peters v The Queen (1998) 192 CLR 493 at 506–507. Welham v DPP [1961] AC 103; R v Howes (1971) 2 SASR 293; Scott v Metropolitan Police Commissioner [1975] AC 819; R v Horsington [1983] 2 NSWLR 72; R v Simonidis [1983] 2 Qd R 54. (2010) 241 CLR 177. (2010) 241 CLR 299. J McArthur, “Conspiracies, Codes and the Common Law: Ansari v The Queen and R v LK” (2012) 33 Adelaide Law Review 271 at 271. [8.165]

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which the conspiracy relies. 282 This is because it was thought that it was not logically possible to agree intentionally to be reckless. The members of the High Court were also prepared to import the common law meaning of “conspiracy” into the Criminal Code (Cth), which may have repercussions for future interpretation. 283

Perspectives A Double Inchoate: Attempted Conspiracy? [8.170] There is no consensus on the existence of the offence of attempted conspiracy

across the common law world. 284 In Australia, attempted conspiracy has been abolished by statute in the federal jurisdiction and a number of the States and Territories. 285 Gerry Ferguson and Benjamin L Berger discuss the Canadian Supreme Court case of R v Déry, 286 whereby it was held that there was no offence of attempted conspiracy except in the circumstances where the substantive offence itself was a conspiracy. 287 The rationale for this decision was based ostensibly on policy grounds: the Court noted that conspiracy comes into existence at a threshold before that of the crime of attempt, with the conspiracy offence normally satisfied even before mere preparatory acts are undertaken. This means that attempted conspiracy is not needed nor is there a sound rationale for the offence. 288 The Court also noted that the offence of incitement already captures, in practical terms, the hypothetical offence of attempted conspiracy, given that attempts by a person to inspire or procure agreements to commit criminal acts falls under the ambit of incitement. 289 Ferguson and Berger leave open the question whether this line of reasoning by the Supreme Court of Canada should also apply to the offence of attempted incitement,

282 283

284 285 286 287 288 289

J McArthur, “Conspiracies, Codes and the Common Law: Ansari v The Queen and R v LK” (2012) 33 Adelaide Law Review 271 at 272. S Odgers, “Conspiracy to Commit a Commonwealth Offence” (2010) 34 Criminal Law Journal 240; C Dobraszczyk, “Analysing Principles of Criminal Responsibility” (2010) 48(7) Law Society Journal 64; C O’Donnell, “Conspiracy under the Commonwealth Criminal Code” (2010–2011) Summer Bar News 28; J McArthur, “Conspiracies, Codes and the Common Law: Ansari v The Queen and R v LK” (2012) 33 Adelaide Law Review 271. G Ferguson and BL Berger, “Recent Developments in Canadian Criminal Law” (2009) 33 Criminal Law Journal 263 at 263. Criminal Code (Cth), s 11.1(7); Criminal Code (ACT), s 44(10); Criminal Code (NT), s 43BF(10); Crimes Act 1958 (Vic), s 321F(3). (2006) 213 CCC (3d) 289. See G Ferguson and BL Berger, “Recent Developments in Canadian Criminal Law” (2009) 33 Criminal Law Journal 263 at 263–264. G Ferguson and BL Berger, “Recent Developments in Canadian Criminal Law” (2009) 33 Criminal Law Journal 263 at 264 (footnote omitted). G Ferguson and BL Berger, “Recent Developments in Canadian Criminal Law” (2009) 33 Criminal Law Journal 263 at 264. [8.170]

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which academic commentators have recognised may exist in Australia, New Zealand and Canada, due to the traditional authority of English cases. 290

INCITEMENT [8.175] Except in Queensland, it is an offence to incite another person to commit an offence,

even if that offence is not carried out and even if the incitement has no effect on the other person. 291 The existence of the offence can be dated back to the case of R v Higgins, 292 where a conviction for inciting a person to steal another person’s property was upheld. At common law, incitement to commit any offence is a misdemeanour and this has been retained in New South Wales and South Australia. Statutory provisions now exist in the Australian Capital Territory, Tasmania, Victoria, Western Australia and at the Commonwealth level. An overview of these provisions is set out in Table 3. While incitement is not an offence in Queensland, it has (in addition to the Northern Territory and Western Australia) an analogous offence of attempting to procure the commission of an offence. 293 Table 3 shows that liability for incitement exists in relation to all offences, whether indictable or summary. Section 321G(1) of the Crimes Act 1958 (Vic) states that the offence is an indictable one, and this remains the case even where the offence intended is only a summary one. It seems anomalous that an incitement should be treated more seriously than the offence intended. The Western Australian approach of having different penalties for incitement to commit indictable as opposed to simple offences seems preferable. Incitement can be seen as analogous to aiding and abetting in complicity in the sense that both forms of liability depend upon the doing of an act in furtherance of a crime. However, incitement is viewed as a form of primary liability since the accused will be held liable for what he or she does, whereas aiding and abetting is a form of derivative liability because it depends partly on what another person has done. This leads to the peculiar situation that a person will be criminally responsible if he or she incites another who fails to commit the crime, but will not be criminally responsible for aiding another who fails to commit the crime. This asymmetry in the law is conceptually indefensible: see further at [8.225]. It is unclear whether a person can be held responsible for inciting another inchoate offence. David Ormerod points out that it may be technically possible to incite an attempt to commit an offence. 294 He refers to the example of an accused giving another person a substance that the accused knows to be harmless. The accused says that it is poison and urges the other person to give it to the “victim”. Smith states that the accused cannot be convicted of attempted murder, but may be guilty of inciting an attempt to murder. The complete dearth of case law on this point implies there is a consensus that there is no such offence as inciting an attempt and a belief that “double inchoate” offences extend the boundaries of the criminal law too far.

290

292 293 294

G Ferguson and BL Berger, “Recent Developments in Canadian Criminal Law” (2009) 33 Criminal Law Journal 263 at 264. R v Higgins (1801) 2 East 5; Criminal Code (Cth), s 11.4; Criminal Code (ACT), s 47; Criminal Code (NT), s 43BI; Criminal Code (Tas), s 298; Crimes Act 1958 (Vic), ss 321G – 321I, although s 321G(1) requires that the inciting be acted upon in accordance with the inciter’s intention; Criminal Code (WA), ss 553, 555A(2). Incitement in New South Wales and South Australia follows the common law. (1801) 2 East 5. Criminal Code (NT), s 280; Criminal Code (Qld), s 539; Criminal Code (WA), s 556. D Ormerod, Smith and Hogan’s Criminal Law (13th ed, Oxford: Oxford Univesity Press, 2011) pp 472-473.

500

[8.175]

291

incitement is in itself an indictable offence: penalty is generally the same as for substantive offence (s 321I)

any offence any offence, including those outside Victoria where the inciter is in Victoria (s 321H) incitement of indictable offence (s 553) incitement of simple offence (s 555A(2))

statutory definition (s 298) statutory definition (ss 321G – 321I)

statutory definition (ss 1, 553, 555A(2))

WA Criminal Code

any offence

incitement to commit an indictable offence where punishable for imprisonment for life: imprisonment for 14 years in any other case: punishment equal to one half of the greatest punishment for the indictable offence (s 553); punishment for simple offence: punishment as for substantive offence (s 555A(2))

discretionary penalty

any offence

offence: common law

SA scope: common law Criminal Law Consolidation Act 1935 Tas Criminal Code Vic Crimes Act 1958

10 years if offence incited punishable by life; seven years if offence incited punishable by 14 years or more; five years if offence incited punishable by 10 years or more; three years or equivalent to offence incited (whichever is the lesser) for any other offence punishable by imprisonment; equivalent penalty units where offence incited is a misdemeanor (s 43BI(7)) 3–5 years for offence of inciting act of gross indecency (s 58); 10 years (basic offence) to 12 years (aggravated offence) for inciting child to commit indecent act (s 63B); summary discretionary penalty

any offence excluding attempt, incitement or conspiracy

offence: common law statutory definition (s 43BI)

NSW scope: common law NT Criminal Code

any offence excluding attempt, incitement or conspiracy

statutory definition (s 47)

10 years if offence incited punishable by life; seven years if offence incited punishable by 14 years or more; five years if offence incited is punishable by 10 years or more; three years or equivalent to offence incited (whichever is the lesser) for any other offence punishable by imprisonment; equivalent penalty units where offence incited is a misdemeanor (s 11.4) 10 years and/or 1,000 penalty units if offence incited punishable by life; seven years and/or 700 penalty units if offence incited punishable by 14 years or more; five years and/or 500 penalty units if offence incited punishable by 10 years or more; three years or equivalent to maximum imprisonment of offence incited (whichever is the lesser) and/or 300 penalty units for any other offence punishable by imprisonment; equivalent penalty units where offence incited is a misdemeanour (s 47) summary discretionary penalty

any offence excluding attempt, incitement or conspiracy

ACT Criminal Code

Penalty

Application to offences

Definition of incitement statutory definition (s 11.4)

Jurisdiction and relevant law Cth Criminal Code

Table 3 Incitement across jurisdictions

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[8.175]

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Inciting a conspiracy, on the other hand, is perhaps more readily understandable. Section 321F(3) of the Crimes Act 1958 (Vic) specifically abolishes this offence, but it may remain an offence at common law. The Criminal Law Officers Committee (CLOC) has recommended that it should not be possible to incite a conspiracy or an attempt because “[t]here has to be some limit on preliminary offences”. 295 Section 11.4(5) of the Criminal Code (Cth), s 47(6) of the Criminal Code (ACT) and s 43BI(7) of the Criminal Code (NT) state that the offence of incitement does not apply to the inchoate offences of attempt, incitement and conspiracy. For incitement to be made out, there must be conduct amounting to incitement and an intention that the offence be committed. We will examine these elements in turn.

Physical Element [8.180] Incitement involves seeking to encourage or persuade another person to commit an

offence. 296 Section 1 of the Criminal Code (WA) refers to the word “incite” as encompassing “solicits and endeavours to persuade” and s 2A(1) of the Crimes Act 1958 (Vic) refers to “incite” as including “command, request, propose, advise, encourage or authorize”. The CLOC has suggested that the word “urges” should be used in preference to “incites”. 297 This term has been adopted in the Commonwealth, Australian Capital Territory and Northern Territory provisions. 298 In the CLOC’s opinion, the word “incites” could be interpreted as only requiring the accused to have caused rather than advocated the offence. Whatever word is used, it is clear that there must be proof of persuasion or encouragement; a mere intent to commit an offence is insufficient. 299 As well as positive encouragement, incitement encompasses negative threats or pressure. 300 The encouragement or persuasion must be communicated to the other person. 301 If it fails to be communicated, there may still be liability for attempted incitement. 302 The encouragement may be directed towards the world at large rather than a specified person. For example, in R v Most, 303 the accused published an article in a London newspaper encouraging readers to kill their Heads of State. The accused was convicted of incitement to murder and this was upheld by the Court for Crown Cases Reserved. Except in Victoria, the person incited does not need to have acted on the incitement for the physical element to be made out. 304 Providing the accused incited the other person, it is irrelevant that the latter is not influenced or unwilling to commit the offence. 305 However, s 321G(1) of the Crimes Act 1958 (Vic) makes it clear that an element of the offence is that “the inciting is acted on in accordance with the inciter’s intention”. This substantially narrows 295

296 297 298 299 300 301 302 303 304 305

Criminal Law Officers Committee, Chapter 2—General Principles of Criminal Responsibility, Final Report (1992) p 95; see, further, IP Robbins, “Double Inchoate Crimes” (1989) 26(1) Harvard Journal on Legislation 1. Invicta Plastics v Clare [1976] Crim LR 131. Criminal Law Officers Committee, Chapter 2—General Principles of Criminal Responsibility, Final Report (1992) p 93. Criminal Code (Cth), s 11.4(1); Criminal Code (ACT), s 47(1), Criminal Code (NT), s 43BI(1). R v Chrichton [1915] SALR 1; Invicta Plastics Ltd v Clare [1976] Crim LR 131. Race Relations Board v Applin [1973] QB 815. R v Krause (1902) 66 JP 1902. R v Ransford (1874) 13 Cox CC 9. (1801) 2 East 5. Dimozantos (1991) 56 A Crim R 345; Hudson v Entsch (2005) 216 ALR 188 at 197–198, per Dowsett J. R v Higgins (1801) 2 East 5; R v Krause (1902) 66 JP 1902.

502 [8.180]

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the scope of the offence. The CLOC pointed out that, while incitement is rarely charged, “circumstances may arise that are so serious that an appropriate offence is required”. 306 The Committee, therefore, rejected the Victorian approach. There is some lack of clarity as to the law concerning inciting a person, such as a child, who is exempt from criminal responsibility for the substantive offence. For example, in R v Whitehouse, 307 the Court of Appeal upheld the accused’s appeal against his conviction for two counts of inciting his 15-year-old daughter to commit incest with him. Under s 1(1) of the Sexual Offences Act 1956 (UK), a girl under the age of 16 could not be convicted of an offence by permitting a man to commit incest with her. This decision contrasts with the position taken in the law relating to conspiracy. 308 In contrast, in Burns, 309 it was held that there can be liability for conspiracy with a party excused from criminal responsibility. In addition, we explored in Chapter 7 at [7.110] how a person who has assisted or encouraged a crime pursuant to a pre-conceived plan may be convicted even where the perpetrator has died, is unknown, has not been arrested or has been acquitted. A person acting in concert can still be held liable if the perpetrator is exempt from prosecution or where a defence is available to the perpetrator. If the law relating to conspiracy and acting in concert is to carry over to incitement, then the decision in Whitehouse may not be good law in Australia.

Fault Element [8.185] The case law is silent as to the fault element for incitement. In Giorgianni v The

Queen, Wilson, Deane and Dawson JJ rejected recklessness in relation to complicity and the inchoate offences of attempt and conspiracy on the ground that: “[t]hose offences require intentional participation in a crime by lending assistance or encouragement.” 310

While strictly obiter, it may be inferred that the fault element for incitement will also be an intention to commit the substantive offence. Section 321G(2) of the Crimes Act 1958 (Vic) clearly sets out a strict fault element for incitement that is in line with the fault element for attempts: For a person to be guilty … of incitement the person (a) must intend that the offence the subject of the incitement be committed; and (b) must intend or believe that any fact or circumstance the existence of which is an element of the offence in question will exist at the time when the conduct constituting the offence is to take place.

The Law Commission for England and Wales has recommended that similar wording be used for the fault element of its proposed scheme of inchoate liability for encouraging and assisting the commission of offences. 311 The CLOC has pointed out that having a lesser fault element 306 307 308 309 310 311

Criminal Law Officers Committee, Chapter 2—General Principles of Criminal Responsibility, Final Report (1992) p 93. [1977] QB 868. Note that the decision in Whitehouse was applied by the English Court of Appeal in the context of incitement to commit buggery: Claydon [2006] 1 Cr App R 20. (1984) 79 Cr App R 173. Giorgianni v The Queen (1985) 156 CLR 473 at 506. Law Commission for England and Wales, Inchoate Liability for Assisting and Encouraging Crime, Law Com No 300 (2006) p 71. [8.185]

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of recklessness would be too great a threat to free speech. 312 Accordingly, s 11.4(2) of the Criminal Code (Cth), s 47(2) of the Criminal Code (ACT) and s 43BI(2) of the Criminal Code (NT) require an intention that the incited offence be committed.

Procedural perspectives The Link Between Inchoate and Substantive Offences [8.190] A conviction for an attempt as well as for the substantive offence is procedurally

impermissible. 313 A conviction for both an attempt and the substantive offence is said to be contrary to the rule against double jeopardy (that is, punishing a person twice for what is substantially the same offence). However, currently, there is no legal barrier to enabling a conviction both for conspiracy to commit a crime and actually committing the offence, although in the jurisdictions of the Commonwealth, the Australian Capital Territory and the Northern Territory, a court is entitled to dismiss a charge of conspiracy if it thinks that it is required to do so in the interest of justice. 314 The situation is unclear with respect to incitement, probably because it is rarely charged. In R v Hoar, Gibbs CJ, Mason, Aickin and Brennan JJ stated that it was “undesirable” for conspiracy to be charged when a substantive offence had been committed. 315 Nevertheless, the ability to charge both conspiracy and the intended crime may be attractive to the prosecution because it enables it to allege a wide-ranging scheme of criminal activity without having to pinpoint the accused’s precise role. It provides a “fall back” charge for the jury of the substantive elements if the full offence cannot be proven. That is, if both conspiracy and the substantive crime can be charged, the evidence at trial may establish the accused’s involvement in the conspiracy but not the commission of the substantive offence or vice versa. The Law Commission for England and Wales set out the traditional practical criticisms to allowing both conspiracy and the substantive offence to be charged as follows: ″(i) inclusion of a conspiracy count adds to the length and complexity of trials and, in particular, complicates the task of summing up to a jury; (ii) a conspiracy count tends to obscure questions of fact vital to a decision on the substantive charges; (iii) joinder of a conspiracy and substantive offences tends to produce inconsistent verdicts; (iv) evidence relevant to the conspiracy count may have, despite any warning against relying upon it, a prejudicial effect on an accused in relation to one or more of the substantive counts.” (case references omitted) 316

312 313

314 315 316

504

Criminal Law Officers Committee, Chapter 2—General Principles of Criminal Responsibility, Final Report (1992) p 95. Wesley-Smith v Balzary (1977) 14 ALR 681 at 685 per Forster J; R v Lee (1990) 1 WAR 411 at 426 per Malcolm J, at 434 per Kennedy J; Criminal Code (Cth), s 11.1(5); Criminal Code (ACT), s 44(8); Criminal Code (NT), s 43BF(7), Criminal Code (Tas), s 342(3). Criminal Code (Cth), s 11.5(6); Criminal Code (ACT), s 48(9); Criminal Code (NT), s 43BJ(7). R v Hoar (1981) 148 CLR 32 at 38. Cited with approval by Em Heenan J in Dunn v The Queen (No 7) [2013] WASC 305 at [39]. Law Commission for England and Wales, Codification of the Criminal Law: General Principles, Inchoate Offences. Conspiracy, Attempt and Incitement, Report No 76 (1976) pp 27–28. [8.190]

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In addition, there is a broader conceptual difficulty with this approach. There is a real danger that allowing conspiracy and the substantive offence to be charged amounts to double jeopardy. That is, convicting a person of both conspiracy and the substantive crime is akin to punishing a person twice for what is substantially the same offence. The argument that, unlike attempt, conspiracy involves additional harms to those of the substantive offence is not persuasive in this context. The principle should simply be that the inchoate crime and the substantive crime cannot be charged together. For a further discussion of the concept of fairness in the context of a criminal trial, see Chapter 2, [2.80].

MISTAKE AND INCHOATE OFFENCES [8.195] In relation to the inchoate offences of attempt, conspiracy and incitement, criminal

responsibility may be questioned in relation to situations where the accused makes a mistake about the commission of the substantive offence. Often dealt with under the title “impossibility”, there are many scenarios that may be envisaged here. Antony Duff and Eugene Meehan both give numerous examples in their respective books on criminal attempts. 317 We will outline four main scenarios. The accused may intend to commit an offence, but makes a mistake concerning: (1) the conduct itself which is not, in fact, a crime—for example, the accused may mistakenly believe that importing foreign currency is an offence or committing adultery is a crime. There is thus a belief in an “imaginary crime” and this is generally referred to as legal impossibility; (2) the means of carrying out the offence—for example, the poison used was too little to kill the victim, or the victim was out of range of the rifle; (3) the existence of the person or thing aimed at—for example, the accused stabs a corpse believing it to be a living person, or there is no money in the pocket or safe; (4) the circumstances or facts accompanying the conduct such that an element of the offence was absent—for example, the goods received were not stolen, or the sexual partner was not under 16 years of age.

The third and fourth categories are often referred to as factual or physical impossibility. In R v Donnelly, Turner J, concerning this category, stated: “[The accused] may find what he [or she] is proposing to do is after all impossible—not because of insufficiency of means, but because it is for some reason physically not possible, whatever means be adopted. He [or she] who walks into a room intending to steal, say a specific diamond ring, and finds that the ring is no longer there, but has been removed by the owner to the bank, is thus prevented from committing the crime which he [or she] intended, and which, but for the supervening physical impossibility imposed by events he [or she] would have committed.” 318

The first category of mistake has traditionally permitted the accused to escape criminal responsibility for inchoate crimes. Where the most debate has occurred is between the categories of insufficiency of means and physical impossibility. In England, there was a distinction drawn between these categories such that physical impossibility was a bar to conviction for attempts, conspiracy and incitement. This distinction no longer exists in Australian jurisdictions. Whether physical impossibility should be taken into account in exculpating an accused from criminal responsibility depends to a large extent upon whether one takes a fault-centred 317 318

RA Duff, Criminal Attempts (Oxford: Oxford University Press, 1996) Ch 3; E Meehan, The Law of Criminal Attempt—A Treatise (Calgary: Carswell Legal Publications, 1984) Ch 6. R v Donnelly [1970] NZLR 980 at 990–991. [8.195]

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or act-centred approach to inchoate crimes. On a fault-centred approach, both a mistake about insufficiency of means and physical impossibility will be irrelevant to criminal responsibility. If the accused believed that the offence could be committed in circumstances when it could not be, his or her state of mind is just as blameworthy as if the offence were able to be carried out. Andrew Ashworth and Jeremey Horder write: “[W]e are justified in convicting the person who smuggles dried lettuce leaves in the belief that they are cannabis, and the person who puts sugar in someone’s drink in the belief that it is cyanide, and the person who handles goods in the belief that they are stolen. In all these cases there is no relevant moral difference between their culpability and the culpability in cases where the substances really are cannabis, cyanide, and stolen goods.” 319

If one takes an act-centred approach, however, physical impossibility should act as a bar to conviction. This approach emphasises the lack of harm or danger in circumstances where an offence cannot be carried out. That is, the criminal law should not be used to criminalise conduct that does not have the potential to cause harm. 320 Liberal notions of the prevention of harm are explored in Chapter 1, [1.200]. The alternate “subjective” approach places great weight on the accused’s beliefs, with the resulting danger that convictions might be based on confessions that have been extracted through police pressure. This approach is taken up in “A criminal process perspective: Attempts and physical impossibility” at [8.210]. We will first outline why it is that “legal impossibility” acts as a bar to criminal responsibility, before dealing with the traditional distinction between insufficiency of means and physical impossibility.

Mistake and Legal Impossibility [8.200] Traditionally, the common law has drawn a distinction between “legal” and

“physical” or “factual” impossibility. Legal impossibility in relation to inchoate crimes refers to evidence of an intention to commit an imaginary crime, such as importing an object believing it to be illegal to do so when it is not in fact prohibited. Physical impossibility deals with evidence of an intention to commit a crime, but a circumstance unknown to the accused prevents it from being accomplished. In R v Taaffe, 321 the accused brought some packages into England, believing them to contain foreign currency and believing that this was prohibited. The packages actually contained cannabis, the importation of which was illegal; however, the importation of currency was not prohibited. He was convicted of being “knowingly concerned in [the] fraudulent evasion” of the prohibition of certain goods. The Court of Appeal in Taaffe upheld his appeal on the basis that he should be judged “against the facts that he believed them to be”. 322 That is, the accused believed he was importing currency and he mistakenly believed that was illegal. Lane LCJ said that the accused’s mistake of law: “no doubt made his actions morally reprehensible. It did not … turn what he … believed to be the importation of currency into the commission of a criminal offence.” 323

Antony Duff points out that: 319 320 321 322 323

A Ashworth and J Horder, Principles of Criminal Law (7th ed, Oxford: Oxford University Press, 2013) p 465. See J Temkin, “Impossible Attempts: Another View” (1976) 39 Modern Law Review 55. [1984] AC 539. Taaffe (1983) 77 Crim App R 82 at 85. Taaffe (1983) 77 Crim App R 82 at 85–86.

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[8.200]

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“Cases of purely imaginary crimes are unlikely to come to court; a repentant adulterer who walked into a British police station to give herself up for this supposed crime would be told to go home.” (emphasis in original) 324

But Taaffe’s case obviously goes further than believing in a purely imaginary crime. Taaffe intended to commit a crime and he would, in fact, have committed a crime had he believed he was carrying cannabis rather than currency. Why should a mistake of law excuse in this instance, when a mistake of law or ignorance of law will generally not provide an accused with a defence to a crime? Taking a subjectivist approach to criminalisation, Taaffe intended to break the law and, if caught early enough, should at least be convicted of attempting to commit a crime. As we pointed out above, the law of attempt is concerned with a set fault element—that of intention—but an undefined physical element. One could argue that this could be made out in the circumstances of Taaffe. Ashworth agrees that a subjective approach would convict someone like Taaffe, but the subjectivist approach is here “outweighed by the principle of legality”. 325 In addition, Nix CJ of the Supreme Court of Pennsylvania has pointed out in Henley that an “abstract inclination to violate the law must be concretized into an intent to engage in specific conduct which … would amount to a violation of the criminal law”. 326 Criminal responsibility should thus reflect a willingness to engage in conduct that the law actually prohibits, not crime in the abstract. Subparagraph 11.1(4)(a), s 11.4(3) and s 11.5(3)(a) of the Criminal Code (Cth) (which deal with inchoate offences) state that a person may be found guilty even if committing the substantive offence is impossible. Similarly, the provisions dealing with attempts and conspiracy in the Australian Capital Territory and Northern Territory enable a conviction where the substantive offence is impossible. 327 These provisions appear to go further than the usual statutory ones that refer to impossibility in relation to circumstances or facts. Legal impossibility would also seem to be encompassed by these provisions. In fact, in 1992, the Criminal Law Officers Committee (CLOC) stated, in relation to attempts, that “impossibility arising by reason of matters of fact or law should no longer be a bar to conviction”. 328 The CLOC, however, did not explain why a conviction would be appropriate in cases where it is legally impossible for the accused to commit the offence. In our view, charging individuals with imaginary crimes would extend the criminal law much too far. It would be oppressive and, ultimately, unworkable. For example, many people believe that trespassing is a crime rather than a tort and signs on property reinforce this. Would this conduct now be a criminal offence? How would the judge determine the sentence? Would it be on the basis of what the accused believed would have been the punishment for committing this imagined offence? Upon closer examination, this model of reform is simply unworkable and unjust.

324 325 326 327 328

RA Duff, Criminal Attempts (Oxford: Oxford University Press, 1996) p 93. A Ashworth, “Criminal Attempts and the Role of Resulting Harm under the Code, and in the Common Law” (1988) 19 Rutgers Law Journal 725 at 762. Henley 474 A 2d 1115 (1984) at 1120. Criminal Code (ACT), s 44(4)(a), s 47(4), s 48(5)(a); Criminal Code (NT), s 43BF(6)(a), s 43BI(4) and s 43BJ(4)(a). Criminal Law Officers Committee, Chapter 2—General Principles of Criminal Responsibility, Final Report (1992) p 81 (emphasis added). [8.200]

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Mistake and Physical Impossibility Attempts [8.205] In relation to attempts, all Australian jurisdictions, apart from South Australia,

criminalise all cases of mistaken beliefs apart from those relating to imaginary crimes, providing the accused’s conduct is sufficiently proximate to the offence. 329 Up until 1981, the English position was that only situations of mistake about the adequacy of means attracted criminal responsibility. The House of Lords decision that distinguished between mistake concerning the adequacy of means used and situations of “physical” impossibility was Haughton v Smith. 330 In that case, the police intercepted a van full of stolen corned beef. They allowed the van to proceed after two police officers installed themselves inside. They then arrested the accused when he met the van in order to unload the goods. Because the goods ceased to be stolen when the police intercepted them, the accused was charged with and convicted of attempting to handle stolen goods. This was on the basis of s 24(3) of the Theft Act 1968 (UK), which stated that goods were not considered stolen “after they have been restored to the person from whom they were stolen or to other lawful possession or custody”. The offence of handling is reviewed in Chapter 12, [12.245]. The House of Lords quashed the accused’s conviction on the basis that it was physically impossible for the accused to commit the completed offence as the goods were no longer stolen. Lord Morris, observing that the “goods that [the accused] had, in fact, handled were not stolen”, posed the question: “How then, can it be said that he attempted to handle stolen goods?” 331 Eugene Meehan writes of this: “The House answered this question ill-advisedly. The Lords confused liability for an attempt and liability for the completed crime, and in the process eliminated attempt. Smith did attempt to receive the stolen goods; he was not in London to see the sights, he was there to direct the distribution of the previously stolen corned beef, which he was actually doing.” 332

The decision in Haughton v Smith attracted much academic criticism 333 due to the difficulty of dividing situations into physical and other sorts of impossibility, and because of its lack of clarity between an attempt and the substantive offence. The Law Commission for England and Wales conducted a major review of impossibility and inchoate crimes, and recommended that physical impossibility should be irrelevant to criminal responsibility. 334 Subsequently, the Criminal Attempts Act 1981 (UK) was enacted. Section 1(2) of that Act provides that a person may be guilty of an attempt “even though the facts are such that the commission of the offence is impossible”. 329

330 331 332 333

334

508

Criminal Code (Cth), s 11.1(4)(a); Criminal Code (ACT), s 44(4)(a); Criminal Code (NT), s 4(3); Criminal Code (Qld), s 4(3); Criminal Code (Tas), s 2(2); Crimes Act 1958 (Vic), s 321N(3); Criminal Code (WA), s 4; Britten v Alpogut [1987] VR 929 at 938 per Murphy J; R v Mai (1992) 26 NSWLR 371 at 381–384 per Hunt CJ; R v Lee (1990) 1 WAR 411 at 423 per Malcolm CJ; R v Prior (1992) 91 NTR 53. [1975] AC 476. Haughton v Smith [1975] AC 476 at 501. E Meehan, The Law of Criminal Attempt—A Treatise (Calgary: Carswell Legal Publications, 1984) p 191. See, for example, G Williams, Textbook of Criminal Law (London: Stevens, 1978) pp 397–398; R Ribeiro, “Criminal Liability for Attempting the Impossible—Lady Luck and the Villains” (1974) 4 Hong Kong Law Journal 109 at 131; HLA Hart, “The House of Lords on Attempting the Impossible” (1981) 1 Oxford Journal of Legal Studies 149 at 164. Law Commission for England and Wales, Attempt and Impossibility in Relation to Attempt, Conspiracy and Incitement, Report No 102 (1980). [8.205]

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The House of Lords initially had some difficulty in accepting the intention of Parliament in Anderton v Ryan. 335 The accused had purchased a video cassette recorder believing it to be stolen, whereas in fact it was not. She was charged and convicted with attempted handling of stolen goods. The House of Lords held that she could not be guilty of attempt in these circumstances because her conduct was “objectively innocent”. This decision flatly contradicted the clear intention of Parliament. One year later, the House of Lords acknowledged its mistake in R v Shivpuri. 336 The accused believed that he was importing heroin and cannabis into the United Kingdom. He was arrested, but a chemical analysis proved that the substance imported was dried cabbage leaves. The House of Lords reversed the decision in Anderton v Ryan on the basis that the notion of “objective innocence” was unworkable. This case was one of factual or physical impossibility and the accused had been rightly convicted of attempt. Lord Bridge stated: “I am satisfied on further consideration that the concept of ‘objective innocence’ is incapable of sensible application in relation to the law of criminal attempts. The reason for this is that any attempt to commit an offence which involves ‘an act which is more than merely preparatory to the commission of the offence’ but for any reason fails, so that in the event no offence is committed, must … be ‘objectively innocent’. What turns what would otherwise, from the point of view of the criminal law, be an innocent act into a crime is the intent of the actor to commit an offence … These considerations lead me to the conclusion that the distinction sought to be drawn in Anderton v Ryan between innocent and guilty acts considered ‘objectively’ and independently of the state of mind of the actor cannot be sensibly maintained.” 337

The Victorian Supreme Court in Britten v Alpogut 338 decided that the reasoning in Shivpuri should apply in relation to s 233B of the Customs Act 1901 (Cth). In this case, the accused believed that he was importing cannabis, which is a prohibited drug. Upon analysis, the substance was discovered to be an anaesthetic, procaine, which is not prohibited. The magistrate dismissed the case, relying on Haughton v Smith. The prosecution claimed before the Full Court of the Supreme Court of Victoria that the magistrate had erred in law. The Supreme Court held that impossibility is no answer to a charge of attempt, unless it was the accused’s intent to commit an “imaginary crime”. 339 The same reasoning was applied to a charge of attempting to possess a prohibited import under the Customs Act 1901 (Cth) by the Supreme Court of Western Australia in R v Lee. 340 Murphy J in Britten v Alpogut described the rationale for holding that an attempt had been made as follows: “The criminality comes from the conduct intended to be done. That conduct intended must amount to an actual and not an imagined crime, but if it does, then it matters not that the gun is in fact unloaded, or the police intervene, or the victim is too far away, or in fact that the girl is over 16, or the pocket is empty, or the safe is too strong, or the goods are not cannabis.” 341

335 336 337 338 339

340 341

[1985] AC 560. [1987] AC 1. R v Shivpuri [1987] AC 1 at 21–22. Britten v Alpogut[1987] VR 929. Britten v Alpogut [1987] VR 929 at 938. The reasoning in Britten v Alpogut was approved by Murray J in the Court of Criminal Appeal of Western Australia in English (1993) 68 A Crim R 96; by the New South Wales Court of Criminal Appeal in R v El Hassan (2001) 126 A Crim R 477; and by the South Australian Court of Criminal Appeal in R v Irwin (2006) 94 SASR 480. R v Lee(1990) 1 WAR 411. Britten v Alpogut [1987] VR 929 at 935. [8.205]

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The Australian cases that followed the approach in Haughton v Smith have narrowed the category of physical impossibility considerably. For example, the decision in R v Gulyas 342 demonstrates the lack of clarity between a mistake as to insufficiency of means and physical impossibility. In that case, the accused, a husband and wife, attempted to perpetrate a fraud against a lottery. They filled in the original form but removed the carbon paper. This meant that the duplicate was blank so that it could be filled in at a later stage when the winning numbers were published. The accused asked for the original form to check something and retained it. In due course, the accused claimed they had won. The original form, of course, was never found. However, the blank carbon paper was discovered and it was evident that this was a fraudulent claim. The accused were charged with attempting to obtain money by false pretences. The question of impossibility arose because it was a condition of entry that without the original form no prize money would be paid. The New South Wales Court of Appeal agreed with the trial judge that this was a case of inadequate means rather than physical impossibility. The court held that in order for an attempt not to be criminal, there must be an element of unconditional impossibility. Lee J referred to physical impossibility as requiring “absolute impossibility not impossibility dependent upon conduct anticipated or otherwise”. 343 Grove J stated that it was an impossibility “unconditional upon human intervention”. 344 This appears to narrow the scope of factual impossibility to such a degree that it has no practical significance; only covering impossibility where there is no scope for human intervention, errors or frailties. A similar case arose in South Australia in Kristos. 345 The accused had presented a winning Lotto coupon but the receipt showed that he had not filled in that coupon when he paid for the game. The accused was convicted of attempting to obtain property by false pretences. On appeal to the South Australian Court of Criminal Appeal, the defence argued that the accused’s cheating was physically impossible because of the safeguards built into the Lotteries Commission’s computer system and the requirements of the Lotteries rules. Cox J rejected this submission on the basis that this was not a case of impossibility. At most, it was highly unlikely that the accused’s fraudulent claim would have succeeded. Cox J noted: “[T]here is a world of difference between impossibility and improbability, even great improbability, and the case for the appellant never really rose above the latter. It would be strange if the law were otherwise. It is hardly to be supposed, for example, that a defendant could escape a charge of attempted false pretences on the ground that his [or her] intended victim was so mean that the possibility of his [or her] responding favourably to a fraudulent claim on his [or her] charity could be dismissed as fanciful.” 346

The status of mistake and attempts in New South Wales had been uncertain until the decision of R v Mai. 347 The accused intended to smuggle a large quantity of heroin into Australia. The police intercepted his suitcase and discovered 6.9 kilograms of heroin inside it. The police substituted the blocks of heroin with blocks of plaster containing small quantities of heroin and listening devices. The accused was arrested in possession of a plaster block that in fact contained no heroin at all. He was charged with attempting to possess heroin. Hunt CJ conceded that it was physically impossible for the accused to complete the crime of possessing heroin. The main issue in the case was whether Haughton v Smith was good law in New South 342 343 344 345 346 347

(1985) 2 NSWLR 260. R v Gulyas (1985) 2 NSWLR 260 at 267. R v Gulyas (1985) 2 NSWLR 260 at 267. (1989) 39 A Crim R 86. Kristos (1989) 39 A Crim R 86 at 93. R v Mai(1992) 26 NSWLR 371.

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Wales. Several earlier New South Wales decisions, including R v Gulyas, 348 had affirmed the Haughton v Smith approach. However, as Hunt CJ pointed out, this dicta in Gulyas had been strictly obiter, since the court had concluded that the failure to complete the crime was due to the inadequacy of means rather than factual impossibility. 349 Hunt CJ was influenced by several factors that he referred to, in reaching the conclusion that factual or physical impossibility was no answer to an attempt: the decision in Haughton v Smith being reversed by statute, the House of Lords decision in Shivpuri, and the relevance of the decisions of the Supreme Courts of Victoria and Western Australia. 350 The decision in Mai was followed by the New South Wales Court of Criminal Appeal in R v El Hassan. 351 In that case, customs officers had removed 27 kilograms of cocaine from a machine that arrived in a crate and replaced it with an inert substitute powder. An appeal against conviction was dismissed in relation to the offence of attempting to obtain possession of a commercial quantity of cocaine. It was held that the fact that it was impossible to perform the completed offence was no bar to conviction and the prosecution did not have to prove that the accused knew the quantity of the drug which had been imported. 352 The Haughton v Smith approach thus no longer holds sway at common law in Australia. 353 The Code jurisdictions make it clear that physical impossibility is no bar to a conviction for attempt. For example, s 4 of the Criminal Code (WA) states that it is “immaterial that by reason of circumstances not known to the offender, it is impossible to commit the offence”. 354 Section 2(2) of the Criminal Code (Tas) states that an attempt may be committed whether under the circumstances it was possible to commit the crime or not. 355 Section 44(4)(a) of the Criminal Code (ACT) provides that a person may be guilty of attempt even though it was impossible to commit the offence attempted. Section 321N(3) of the Crimes Act 1958 (Vic) also enables a conviction despite the existence of facts that the accused is unaware of which make the commission of the substantive offence impossible. There is some evidence that legislatures wish to remove any defence of impossibility in relation to specific offences. For example, in relation to computer crimes, a defence of impossibility is not available in some jurisdictions. 356 Similarly, s 218A(6) of the Criminal Code (Qld) provides that impossibility of fact is not a defence to the offence of using the internet to procure children under 16 years of age, and ss 272.14(3) and 272.15(3) of the Criminal Code (Cth) provide that impossibility is not a defence to offences of procuring or grooming minors for sexual activity overseas. In 1990, the Gibbs Committee, which undertook a review of Commonwealth criminal law, recommended that future law should contain a statutory provision to the effect that a person may be convicted of an attempt, even though the facts are such that the commission of the 348 349 350 351 352 353 354 355

356

R v Gulyas(1985) 2 NSWLR 260. R v Mai (1992) 26 NSWLR 371 at 380. R v Mai (1992) 26 NSWLR 371 at 381. (2001) 126 A Crim R 477. R v El Hassan (2001) 126 A Crim R 477 at 483–484 per Howie J. Britten v Alpogut [1987] VR 929; R v Mai (1992) 26 NSWLR 371; R v Irwin (2006) 94 SASR 480. See also Criminal Code (NT), s 4(3); Criminal Code (Qld), s 4(3). It was thought that there was a conflict between s 2(1) and s 2(2) of the Criminal Code (Tas). This conflict has been resolved by reading s 2(1) as meaning an attempt will be committed if the accused’s acts form part of a series of events which, if the accused’s purpose were achieved, constitute the actual commission of the offence: Haas v The Queen [1964] Tas SR 1 at 27–28 per Neasey J, approved in McGhee v The Queen (1995) 183 CLR 82 at 106 per Toohey and Gaudron JJ. Criminal Code (Cth), s 477.1(7), s 478.3(2), s 478.4(2); Criminal Code (ACT), s 415(3)(a), s 418(3), s 419(3); Crimes Act 1900 (NSW), s 308C(4)(a), s 308F(3), s 308G(3). [8.205]

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offence is impossible. 357 This recommendation was followed by the insertion of s 7(3)(a) into the Crimes Act 1914 (Cth). This section has since been repealed. However, its terms are recreated in s 11.1(4)(a) of the Criminal Code (Cth), s 44(4)(a) of the Criminal Code (ACT) and s 43BF(6)(a) of the Criminal Code (NT). As discussed above, this provision appears broader than the others in not confining impossibility to that of physical impossibility. Under this section, legal impossibility would not seem a barrier to conviction either.

A criminal process perspective Attempts and Physical Impossibility [8.210] From a fault-centred perspective, there is little moral distinction between the

person who intends to commit a crime and succeeds, and the person who intends to commit a crime but is frustrated because of ineptitude or physical impossibility. The problem with criminalising impossible attempts relates not to culpability, but rather with the impact it has on police and prosecutorial practices. There is a real danger that the offence of attempt can be used to cure deficiencies in the prosecution case. In this sense, it can be a back-door method of convicting on the evidence of intention alone. As Andrew Ashworth and Jeremy Horder point out: “[I]t is argued that there is a risk of oppression if the law criminalizes people in objectively innocent situations. Part of the concern here is that convictions might be based on confessions which are the result of fear, confusion, or even police fabrication. Without the need to establish any objectively incriminating facts, the police might construct a case simply on the basis of remarks attributed to the accused person.” (footnotes omitted) 358

There is some evidence in the United Kingdom supporting this concern that the law relating to physical impossibility condones, or even facilitates, proactive policing methods such as entrapment. The propriety of entrapment from an evidential and procedural perspective is further explored in Chapter 14, [14.220]. In 1990, Paul Baines, Chief Inspector of the Merseyside Police wrote an article for Justice of the Peace, which is a professional journal aimed at the police and magistrates, called “Attempting the Impossible”. Baines wrote about a police operation carried out in the Merseyside area to deal with the problem of car radio thefts and their resale. In Baines’ words, the aim of the operation was to tackle “an Arthur Daley mentality about stolen car radios in that they were looked upon as nothing more than a bargain which had ‘fell off a lorry’”. 359 The police were instructed to identify suspect radios by noting, for example, a “top of the line” radio in an old car. (This decision would have had a disproportionate impact on policing of certain groups such as youths from the West Indian community.) The car owner would then be interviewed, and if the radio had been purchased in suspicious circumstances—for example, from someone in the pub—the radio was removed for examination. Where the police could not prove that the radio had been stolen, the suspect was charged with attempted handling. The fact that the owner had bought an expensive radio dirt cheap in suspicious circumstances provided circumstantial evidence of the suspect’s knowledge that the radio was stolen. 357

358 359

Review of Commonwealth Criminal Law (Gibbs Committee), Principles of Criminal Responsibility and Other Matters, Interim Report (1990), p 349. For commentaries on this report, see G Niemann, “Attempts” (1991) 2(3) Criminal Law Forum 549 and G Moloney, “Attempts” (1991) 15 Criminal Law Journal 175. A Ashworth and J Horder, Principles of Criminal Law (7th ed, Oxford: Oxford University Press, 2013) p 465. P Baines, “Attempting the Impossible” (1990) 154 Justice of the Peace 67 at 67.

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In jurisdictions where impossibility no longer bars a conviction for attempts or other inchoate crimes, prosecutorial discretion is assumed to play a significant role. In its report, Criminal Law: Attempt and Impossibility in Relation to Attempt, Conspiracy and Incitement, the Law Commission for England and Wales noted that physical impossibility could provide a fall back position for attempt to be charged. The report notes: “If it is right that an attempt should be chargeable (even though it is impossible to commit the crime intended) we do not think that we should be deterred by the fact that such a charge would also cover such extreme and exceptional cases … an example would be where a person is offered goods at such a low price that he [or she] believes they are stolen, when in fact they are not; if he [or she] actually purchases them … he [or she] would be liable for an attempt to handle stolen goods.” 360

Although in such cases the accused would be guilty in theory, the Commission concluded that it would be unlikely that a complaint would be made or that a prosecution would ensue. In relation to the Merseyside operation, Baines stated that a person who bought a radio which turned out not to be stolen, in the false belief that it was stolen, would not be charged. 361 Under the present law in the United Kingdom and Australia, however, such a person is clearly guilty of attempted handling. The Merseyside police regarded the operation as a success, as it led to a 22% drop in reported thefts from cars. Limiting criminal responsibility to mistake relating to insufficiency of means prevents the reliance upon proof of criminal intent alone, which in turn leads to reliance on confession evidence or other circumstantial evidence. The danger with the present law is that the police can use the offence of attempt to cure prosecutions that would otherwise fail for lack of evidence. Perhaps Haughton v Smith, though conceptually confused, did have some practical value after all: as a means of controlling police behaviour during criminal investigations. Conspiracy [8.215] It is clear that in Victoria, the Australian Capital Territory, the Northern Territory and

federally, there will still be liability for conspiracy in situations of insufficiency of means and physical impossibility. Section 321(3) of the Crimes Act 1958 (Vic) states that there will be liability where an accused enters an agreement to commit acts that, unknown to the person at the time of the agreement, make the commission of the offence impossible. Subparagraph 11.5(3)(a) of the Criminal Code (Cth) enables a conviction for conspiracy even if committing the offence is impossible. 362 As discussed above, legal impossibility does not appear a barrier to a conviction for the federal, Australian Capital Territory or Northern Territory offences. The common law is relevant in the other jurisdictions, including the Code jurisdictions, in determining what constitutes conspiracy. Just what the common law position is in relation to conspiracy and physical impossibility is unclear. In DPP v Nock, 363 the House of Lords affirmed Haughton v Smith’s division between insufficiency of means and physical impossibility, holding that there is no liability for conspiracy in the latter circumstances. In that case, the accused agreed to produce cocaine 360 361 362 363

Law Commission for England and Wales, Criminal Law: Attempt and Impossibility in Relation to Attempt, Conspiracy and Incitement, Report No 102 (1980) [2.97]. P Baines, “Attempting the Impossible” (1990) 154 Justice of the Peace 67 at 68. See also Criminal Code (ACT), s 48(5)(a); Criminal Code (NT), s 43BJ(4)(a). [1978] AC 979. [8.215]

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from a substance in their possession. Cocaine could not in fact be produced from the substance. They were convicted of conspiracy to produce a controlled drug contrary to the Misuse of Drugs Act 1971 (UK). The House of Lords quashed their convictions on the basis that physical impossibility in conspiracy should be treated in the same way as physical impossibility in attempt. The House of Lords viewed both conspiracy and attempt as being criminal because they allowed the police to intervene to prevent the substantive offence being committed. 364 In contrast, in R v Sew Hoy, 365 the Court of Appeal of New Zealand held that physical impossibility is not a bar to conviction for conspiracy. 366 In that case, the accused agreed to produce falsified documents in order to have customs officers wrongly classify men’s clothing as women’s clothing, the latter carrying a lower duty. There was evidence that this was bound to fail as customs officers did not rely on documents, but on inspections of the goods. In the District Court, the jury was directed to return a verdict of not guilty on the basis that there could be no liability in circumstances of physical impossibility. The Crown then appealed on a reserved point of law. The Court of Appeal ordered a retrial. While the court considered that the facts could be interpreted as insufficiency of means, its decision was justified on the broader basis that physical impossibility was not a “defence” to conspiracy. The Court of Appeal declined to follow Nock’s case because it was based on Haughton v Smith, which had been rejected in Australia and legislatively overturned in England. 367 The Court of Appeal was also of the opinion that conspiracy should not be viewed in the same way as attempt, but should be seen as “inherently culpable”. The court stated: “It is the making of the agreement itself that is seen as inimical to the public good, whether it proceeds further or not … It should not therefore be irrelevant that it may not be possible in fact to carry out the agreement.” 368

The position of the common law in Australia is still unclear. In R v Barbouttis, 369 the accused was charged with conspiracy to receive stolen property. It was alleged that he and others had agreed to buy 50 boxes of cigarettes, believing them to be stolen. In circumstances reminiscent of the facts in Haughton v Smith, the boxes were in fact in the lawful possession of the police for the purpose of an undercover operation designed to catch the accused. The person from whom the boxes were to be bought was in fact an undercover policeman. The indictment was quashed in the District Court on the basis that there could not be a conspiracy where it was physically impossible to commit the substantive crime. The prosecution appealed on a point of law. A majority of the Court of Criminal Appeal of New South Wales rejected the appeal. Dunford and Smart JJ in the majority based their decisions on the agreement being one to purchase cigarettes which in itself was not an unlawful act. The accused’s belief that the cigarettes were stolen was therefore irrelevant. Dunford J stated:

364 365 366 367 368 369

DPP v Nock and Alsford [1978] AC 979 at 997 per Lord Scarman. [1994] 1 NZLR 257. For a commentary on this case, see GF Orchard, “Impossibility and Inchoate Crimes—Another Hook in a Red Herring” [1993] New Zealand Law Journal 426. R v Sew Hoy [1994] 1 NZLR 257 at 264. R v Sew Hoy [1994] 1 NZLR 257 at 267. (1995) 37 NSWLR 256.

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“[T]he conspiracy alleged in this case was not an agreement to do an unlawful act because the act agreed to be done, that is, receive the cigarettes, was not an unlawful act; nor was it an agreement to do a lawful act by unlawful means; and so it was not, in my view, a criminal conspiracy.” 370

The reasoning employed here that supports an acquittal does not rest on physical impossibility. Gleeson CJ and Dunford J were in fact in agreement that physical impossibility could no longer be a bar to criminal responsibility for conspiracy. In contrast, Smart J appeared to suggest that there may still be room for a “defence” of physical impossibility. 371 The High Court refused an application by the New South Wales Solicitor-General for leave to appeal on the basis that no question of impossibility arose on the facts. 372 It would seem that the approach in Sew Hoy and the opinions of Gleeson CJ and Dunford J in Barbouttis should hold sway in order to bring the law relating to impossibility in conspiracy into line with that of attempt. In 1990, the Review Committee of Commonwealth Criminal Law recommended “for practical reasons” that physical impossibility should not defeat a prosecution. 373 It gave the following example: “A conspiracy to defeat the taxation laws or otherwise defraud the revenue may in fact be impossible to succeed because the Commissioner happens to know all the relevant circumstances; again the criminality of the conspiracy would seem to be just as great as if it had been possible of success.” 374

Since the weight of opinion in recent cases is that physical impossibility should not bar a conviction for attempt, it seems likely that the same opinion would be reached for conspiracy if such a case were to come before an appeallate court. Incitement [8.220] As with conspiracy, in Victoria, the Australian Capital Territory, the Northern

Territory and federally, physical impossibility is no bar to a conviction for incitement. 375 The Australian Capital Territory, Northern Territory and Commonwealth provisions enable conviction for incitement where committing the substantial offence is impossible. Again, legal impossibility does not appear to be a barrier in these jurisdictions. The situation at common law is still unclear. The early incitement cases held that physical impossibility was irrelevant to criminal responsibility for incitement. For example, in R v McDonough, 376 the accused was convicted of three counts of inciting another to receive stolen lamb carcasses. On one of the counts, there was no evidence that at the time of the incitement the carcasses existed. On the other two counts, there was clear evidence that there were no stolen lamb carcasses in existence. 377 370 371 372 373 374 375 376 377

R v Barbouttis (1995) 37 NSWLR 256 at 278. R v Barbouttis (1995) 37 NSWLR 256 at 277. R v Barbouttis, Dale and Single (unreported, 2/10/1996, HCA, Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ, S51/1996). Review of Commonwealth Criminal Law (Gibbs Committee), Principles of Criminal Responsibility and Other Matters, Interim Report (1990) p 398. Review of Commonwealth Criminal Law (Gibbs Committee), Principles of Criminal Responsibility and Other Matters, Interim Report (1990) pp 398–399. Criminal Code (Cth) s 11.4(3); Crimes Act 1958 (Vic), s 321G(3); Criminal Code (ACT), s 47(4); Criminal Code (NT), s 43BI(4). (1962) 47 Cr App R 37. See also R v Shephard [1919] 2 KB 125. For a commentary on these cases, see M Cohen, “Inciting the Impossible” [1979] Criminal Law Review 239. [8.220]

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However, in R v Fitzmaurice, 378 the English Court of Appeal held that physical impossibility may excuse an accused from criminal responsibility for incitement. In that case, the accused’s father thought up an elaborate scheme whereby he would be given a reward for informing a security firm that there was a plan to rob a security van. He asked the accused to arrange a robbery on a woman who was meant to be carrying wages from her company to the bank. The accused organised for three men to carry out the robbery. The accused and the three men did not know that the woman was part of the charade and that a security van was going to be in the vicinity at the time the three men were meant to be robbing the woman. On the accused’s father’s tip-off, the three men were arrested for conspiracy to rob and the father subsequently received payment from the security firm for his information. The accused was convicted at the Central Criminal Court of having incited the three men to commit a robbery. On appeal, he argued that he could not be convicted of inciting other men to commit a crime that in fact could not be committed. The Court of Appeal endorsed Lord Scarman’s opinion in DPP v Nock 379 that emphasis must be placed on evidence of the offence that was to be the outcome of the conspiracy or incitement, in order to see whether the offence was in fact impossible to achieve. 380 On the facts, the Court of Appeal held that the offence of robbery could have been achieved. Neill J, in delivering the judgment of the court, stated: “[T]he appellant believed that there was to be a wage snatch and he was encouraging Bonham [one of the three men] to take part in it … It is to be remembered that the particulars of offence in the indictment included the words ‘by robbing a woman in Bow’. By no stretch of the imagination was that an impossible offence to carry out and it was that offence which the appellant was inciting Bonham to commit.” 381

While the Court of Appeal therefore agreed that physical impossibility could bar a conviction for incitement, they were nevertheless able to find on the facts that this was not a case of physical impossibility. Given that physical impossibility is no bar to a conviction for attempt in all Australian jurisdictions, one would expect the common law in relation to incitement to develop in a similar manner. Section 11.4(3) of the Criminal Code (Cth), s 47(4) of the Criminal Code (ACT) and s 43BI(4) of the Criminal Code (NT) go further in holding that no form of impossibility (including legal) is a bar to conviction for incitement. As discussed above, this seems to be extending criminal responsibility too far.

CONCLUSION: THE FUTURE OF INCHOATE OFFENCES [8.225] In its final report on General Principles of Criminal Responsibility, the Criminal Law

Officers Committee (CLOC) only considered the possibility of abolishing conspiracy. It noted that incitement was rarely charged but did not consider abolishing it, presumably on the basis that “circumstances may arise that are so serious that an appropriate offence is required”. 382 There is, however, a need to rethink the conceptual basis of primary and derivative liability as it relates to incitement and aiding and abetting. It was previously pointed out (at [8.175]) that a person will be criminally responsible if he or she incites another who fails to commit the 378 379 380 381 382

[1983] QB 1083. [1983] QB 1083. DPP v Nock [1978] AC 979 at 995. R v Fitzmaurice [1983] QB 1083 at 1092. Criminal Law Officers Committee, Chapter 2—General Principles of Criminal Responsibility, Final Report (1992) p 95.

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crime, but will not be criminally responsible for aiding another who fails to commit the crime. A move to remodelling aiding and abetting as a non-derivative crime might very well make a separate offence of incitement redundant. The CLOC did consider limiting attempts to those relating to indictable offences, but ultimately dismissed this suggestion because of the “seriousness of offences which are classified as summary”. 383 It did not discuss abolishing attempts. Similarly, the Gibbs Committee in its Review of Commonwealth Criminal Law did not consider the abolition of attempts, but stated in relation to conspiracy: “Conspiracy is a crime which is regarded by many criminal lawyers with suspicion and distaste, not only because of the wide and imprecise scope of the offence itself, but also because the evidentiary rules peculiarly applicable to the offence may cause unfairness in particular cases. However, all the submissions received by the Review Committee express the opinion that the offence of conspiracy is one that must be retained, although one submission, that of the New South Wales Bar Association, reached this conclusion with reluctance. The Review Committee has no doubt that conspiracy should be retained in the law of the Commonwealth as an offence.” 384

The three inchoate offences thus remain firmly in place in Australian jurisdictions. The three offences do not “fit” neatly with the division of crimes into physical and fault elements. They are also exceptional in imposing criminal responsibility in circumstances that depart from, or simply ignore, fundamental principles. This deviation is undoubtedly related to the importance attached to crime prevention and the suppression of organised crime. Because the law in this area has often been developed on an ad hoc basis, there is perhaps a need for a more restrictive approach to be followed in the future as to the ambit of inchoate offences. Confining the fault element to an intention to commit the substantive offence has been one step in the right direction, although we recognise the policy reasons for enabling recklessness to be the fault element for attempted rape. Another way of restricting inchoate offences is to confine them to preparatory conduct for serious crimes rather than for serious and summary offences.

383 384

Criminal Law Officers Committee, Chapter 2—General Principles of Criminal Responsibility, Final Report (1992) p 85. Review of Commonwealth Criminal Law (Gibbs Committee), Principles of Criminal Responsibility and Other Matters, Interim Report (1990) p 361. [8.225]

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SPECIFIC CRIMES Chapter 9: Unlawful Killing ........................................................................... .. 521 Chapter 10: Offences Against the Person ................................................... .. 581 Chapter 11: Sexual Offences ............................................................................ 635 Chapter 12: Property Offences ..................................................................... .. 757 Chapter 13: Public Order ............................................................................... .. 859 Chapter 14: Drug Offences ............................................................................ .. 945 Chapter 15: International and Transnational Crimes ............................. .. 1029

Chapter 9

Unlawful Killing Other sins only speak; murder shrieks out. 1 [9.05]

INTRODUCTION ........................................................................................................................ 521

[9.20] [9.25] [9.40] [9.45] [9.50] [9.60] [9.75] [9.90]

CAUSING THE DEATH OF A HUMAN BEING ............................................................................... A Human Being .......................................................................................................................... Causation .................................................................................................................................. EUTHANASIA AND UNLAWFUL KILLING ..................................................................................... Voluntary Euthanasia—The Northern Territory Experiment ......................................................... Arguments in Favour of Voluntary Euthanasia ............................................................................. Arguments Opposing Voluntary Euthanasia ................................................................................ Non-voluntary Euthanasia ..........................................................................................................

524 525 530 531 532 534 536 538

[9.105] [9.110] [9.130] [9.135] [9.185]

THE FAULT ELEMENTS OF MURDER AND MANSLAUGHTER ........................................................ Murder ...................................................................................................................................... Constructive Murder .................................................................................................................. Manslaughter ............................................................................................................................ CULPABLE DRIVING ...................................................................................................................

542 542 548 552 562

[9.195] [9.200] [9.205] [9.210] [9.215] [9.235] [9.255] [9.260]

OFFENCES RELATED TO SUICIDE ................................................................................................ 566 Assisting or Encouraging Suicide ................................................................................................ 567 Suicide Pact ............................................................................................................................... 568 ABORTION, CHILD DESTRUCTION AND CONCEALMENT OF BIRTH ........................................... 568 Abortion .................................................................................................................................... 569 Child Destruction ....................................................................................................................... 575 Concealment of Birth ................................................................................................................. 577 CONCLUSION ........................................................................................................................... 578

INTRODUCTION [9.05] “Homicide” is a general term that has been used to refer to the unlawful killing of a

human being. It encompasses offences such as murder, manslaughter, infanticide, and culpable driving causing death. Other closely related offences include assisting and encouraging suicide, child destruction, abortion and concealment of birth. All these offences will be discussed in this chapter with the exception of infanticide, which has already been analysed in Chapter 5, [5.125]. 1

John Webster (1580–1625), The Duchess of Malfi, IV:2 Line 260 (London: Penguin Books Ltd, 1972) p 260.

[9.05]

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Sections 153, 154 and 156–159 of the Criminal Code (Tas) specifically use the term “homicide” or “culpable homicide”. In the Queensland and Western Australian Codes, the term “unlawful homicide” is used as a heading. All jurisdictions, apart from Tasmania, refer specifically to either “murder”, “manslaughter” or “unlawful killing”. There are no degrees of homicides, as is commonly found in the penal codes of the United States. 2 We will follow the general pattern in this chapter by referring to “unlawful killing” as a generic term, and “murder”, “manslaughter” and “culpable driving” as sub-categories of unlawful killing. All Australian jurisdictions distinguish between the various forms of unlawful killing, with the primary distinction being that which exists between murder and manslaughter. The physical elements of murder and manslaughter are the same, namely, causing the death of a human being. Murder generally involves, in addition, some form of specific fault element, while manslaughter is a residual category that contains a collection of disparate types of killing, such as causing death by negligence or intentional killing that involves mitigating circumstances. In this chapter, we will explore not only the difficulty associated with the types of unlawful killing that manslaughter should cover, but also the controversy concerning whether culpable driving causing death should exist as a sub-category of unlawful killing or be abolished. We will also spend some time looking at the political, social and legal debate concerning the criminalisation of abortion. Practice in this area does not fully accord with what the law prohibits, as criminal prosecutions for abortion and child destruction are rare. The various forms of unlawful killing are often referred to as “result crimes” in that the physical element refers to the results or consequences of conduct rather than the conduct itself, see Chapter 3, [3.100]. For example, what is prohibited in the crime of murder and manslaughter is the death of the victim rather than the conduct that caused the death. It is irrelevant what conduct was undertaken which caused the death; providing the conduct of the accused results in the death of the victim, the physical element will be established.

Statistics on unlawful killing [9.10] According to the Australian Institute of Criminology, there were 273 victims of murder and manslaughter recorded by the police in Australia in 2013, with 1.2 victims per 100,000 population. 3 The probability of being a victim of murder or manslaughter was greater for males aged 25 and above, but greater for females in the 15-24-year-old range. The probability was the same for children in the 0-9 years age bracket, with no murder victims in 2013 aged between 10 and 14. 4 In relation to the homicide of women, there is a significantly increased risk of victimisation by intimate partners. 5

There are important differences in relation to patterns of homicide for women and men. Jenny Mouzos found in her study of Australian homicides that female victims were more likely to be killed by an intimate male partner (15.3%), whereas male victims were more likely to be killed 2

3 4

5

The Law Commission for England and Wales, as part of its review of homicide law, published a comparative study (see Murder, Manslaughter and Infanticide, Law Com No 304 (2006), Appendix D): J Horder (ed), Homicide Law in Comparative Perspective (Oxford: Hart Publishing, 2007). This text contains useful summaries of the law in Australia, Canada, France, Germany, Scotland, Singapore and the United States of America. Ian Leader-Elliott authored an excellent section on homicide in Australia. Australian Institute of Criminology, Australian Crime: Facts & figures 2014 (2016) p 7. Australian Institute of Criminology, Australian Crime: Facts & figures 2014 (2016) p 8. See also J Dearden and W Jones, Homicide in Australia: 2006-07 National Homicide Monitoring Program Annual Report, Monitoring Report No 1 (Australian Institute of Criminology, 2008), p 8. See J Mouzos, Homicidal Encounters: A Study of Homicide in Australia 1989–1999 (2000) pp 115–116.

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by a friend or stranger (23%). 6 Other studies have indicated that cases of intimate partner homicides are commonly associated with some form of prior violence. 7 In a study conducted by Kenneth Polk, 70% of the men who killed in the context of sexual intimacy did so out of jealousy or for control reasons. 8 In comparison, when women killed their intimate male partner, they were most likely to do so in response to violence from them. This finding has consistently been reported in other studies. 9 As set out in Chapter 6 at [6.65], this has led to attempts to take into account intimate partner violence through legislative and evidential means, with varying degrees of success. 10 There still remain problems with enforcing and proving criminal offences in relation to family violence in general, 11 with civil protection orders being the most common response to intimate partner violence. 12 In the context of unlawful killing, there are a number of factors that may play a role in distorting the true rate in Australia. Many deaths are not constructed as unlawful killings, such as industrial or fatal sporting “accidents”. There have been moves in some jurisdictions to enact special industrial homicide offences. 13 In practice, it appears that the strengthening of occupational health and safety laws which create strict or absolute liability offences means that it is easier to prove breaches of such laws than prosecuting under the criminal law of manslaughter. 14

Corporate manslaughter in the United Kingdom: A precedent for Australia? [9.15] On 6 April 2008, the Corporate Manslaughter and Corporate Homicide Act 2007 came into effect in the United Kingdom. This Act created a new offence of “corporate manslaughter” in England, Wales and Northern Ireland and “corporate homicide” in Scotland. Section 1(1) provides that the requisite offence will be made out where an organisation’s management or organisation of activities causes a person’s death and amounts to a “gross breach of a relevant duty of care owed by the organisation to the deceased”. This liability is limited, however, by virtue of s 1(3), which states:

6 7 8 9 10 11

12 13

14

J Mouzos, Homicidal Encounters: A Study of Homicide in Australia 1989–1998 (Canberra: Australian Institute of Criminology, 2000) p 66. M Davies and J Mouzos, Homicide in Australia: 2005–06 National Homicide Monitoring Program Annual Report (Canberra: Australian Institute of Criminology, 2007) pp 23–25. K Polk, When Men Kill: Scenarios of Masculine Violence (Melbourne: Cambridge University Press, 1994) p 57. J Morgan, Who Kills Whom and Why: Looking Beyond Legal Categories (Melbourne: Law Reform Commission of Victoria, 2002) pp 25ff. H Douglas, “Do We Need a Specific Domestic Violence Offence?” (2015) Melbourne University Law Review 424. Victorian Law Reform Commission, Review of Family Violence Laws, Report No 185 (2006) [3.25]; Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence—A National Legal Response, Final Report No 114/128 (2010) vol 1, 563–565; See also, in general, State of Victoria, Royal Commission into Family Violence, Summary and Recommendations, Parl Paper No 132 (2014–2016). H Douglas, “Do We Need a Specific Domestic Violence Offence?” (2015) Melbourne University Law Review 424 at 437–438. Criminal Code (Cth), Pt 2.5; Crimes (Industrial Manslaughter) Act 2003 (ACT). For commentary on the ACT legislation, see R Sarre, “Penalising Corporate ’Culture’: The Key to Safer Corporate Liability?” in J Gobert and AM Pascal (eds), European Developments in Corporate Criminal Liability (Oxford: Routledge, 2011) p 84. K Wheelwright, “Corporate Operations Causing Death: The Legal Response Now and in the Future?” (2011) 102 Precedent 28; K Wheelwright, “Company Directors’ Liability for Workplace Deaths” (2011) 35(4) Criminal Law Journal 223. [9.15]

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An organisation is guilty of an offence under this section only if the way in which its activities are managed or organised by its senior management is a substantial element in the breach referred to in subsection (1). Des Taylor and Geraldine Mackenzie argue that although there have been only a few successful prosecutions under this legislation, there is a need for Australia to follow suit because occupational health and safety laws are insufficient. 15 They point out that corporate manslaughter is a broad term that encompasses situations where any person is killed in an activity carried out by a corporation and not just workplace incidents.

Andrew Ashworth and Jeremy Horder write that, for practical purposes, “the culpable causing of another person’s death may fairly be regarded as the most serious offence in the criminal calendar”. 16 However, the context in which the killing occurs, such as whether it is caused by culpable driving or in the context of employment, has traditionally affected just how seriously it is taken by police and prosecutors. The first sections of this chapter will concentrate on murder and manslaughter, then we will examine other specific offences closely related to unlawful killing.

CAUSING THE DEATH OF A HUMAN BEING [9.20] The crimes of murder and manslaughter only differ in Australian jurisdictions as to the

fault element required to establish the offence. The physical element for both is the same; that is, the accused must cause the death of a human being. Manslaughter is generally defined as an unlawful killing that does not constitute murder: see [9.135]. In this section we will concentrate on the physical element, then, after exploring the relationship between euthanasia and unlawful killing, we will provide an overview of the fault elements of murder and manslaughter. The federal extraterritorial offences of harming Australians, enacted to deal with killings of Australian citizens and residents abroad in the wake of the Bali bombings in 2002, are discussed in Chapter 15, [15.130]. Two questions, therefore, arise here: first, who is considered to be a human being, and, secondly, what tests need to be applied in establishing causation? The latter question has been dealt with in Chapter 3 at [3.110], and only a summary will be provided here. Table 1 sets out an overview of the physical and fault elements required for murder in Australian jurisdictions. Table 1 Physical and fault elements of murder Jurisdiction and relevant law

Physical element

Fault element

ACT

intending to cause death

Crimes Act 1900

causes the death of another person (s 12(1))

NSW Crimes Act 1900

act or omission causing death (s 18(1)(a))

15

(s 12(1)(a)) reckless indifference to the probability of causing death (s 12(1)(b)) intending to cause serious harm to any person (s 12(1)(c)) intent to kill or inflict grievous bodily harm

16

D Taylor and G Mackenzie, “Staying Focused on the Big Picture: Should Australia Legislate for Corporate Manslaughter Based on the UK Model?” (2013) 37 Criminal Law Journal 99. A Ashworth and J Horder, Principles of Criminal Law (7th ed, Oxford: Oxford University Press, 2013) p 236.

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Jurisdiction and relevant law

NT Criminal Code Qld Criminal Code

SA common law Criminal Law Consolidation Act 1935 Tas Criminal Code

Physical element

Fault element

constructive murder (s 18(1)(a)) conduct causing death (s 156(1)(a), (b)) causes the death of another (ss 291, 293, 300) constructive murder (s 302) unlawfully kills “any reasonable creature in being” constructive murder

reckless indifference to human life (s 18(1)(a)) intends to cause death or serious harm (s 156(1)(c)) intends to cause death or grievous bodily harm (s 302(1)(a))

common law Crimes Act 1958 WA Criminal Code

intention to cause death or grievous bodily harm foreseeability of death as a probable consequence of action

(s 12A)

act or omission causing death (ss 153, 156(2), 157, 158) constructive murder (s 157(1)(d))

Vic

Ch 9

unlawfully kills “any reasonable creature in being” constructive murder (s 3A) unlawfully causes the death of another by any means (ss 268, 270, 277, 279) constructive murder (s 279(1)(c))

intention to cause death (ss 156(2)(a), 157(1)(a)) intention to cause bodily harm which the offender knew to be likely to cause death (s 157(1)(b)) unlawful act or omission which the offender knew or ought to have known to be likely to cause death (s 157(1)(c)) intention to cause death or grievous bodily harm foreseeability of death or grievous bodily harm as a probable consequence of action (s 3A) intends to cause death (s 279(1)(a)) intends to cause bodily injury likely to endanger life (s 279(1)(b))

A Human Being [9.25] The concept of a human being encompasses questions concerning birth and death. Is a

foetus a human being for the purposes of the law? What about a person in a “persistent vegetative state”? Is he or she a human being capable of being killed? The rise of new medical technology that takes over the functions of breathing and circulation has meant that lives may be prolonged for substantial periods of time. The following provides a brief overview of the current law dealing with questions relating to the beginning and end of life, while the next section raises some of the ethical and legal questions relating to euthanasia.

[9.25]

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The beginning of life [9.30] The legal status of the human foetus has in recent years become the focus of debate in

bioethical and legal literature. 17 This is partly because of the discovery by medical researchers that human foetal tissue from aborted foetuses can be transplanted in order to treat a range of debilitating conditions and illnesses. 18 Just how to categorise the human foetus for the purposes of the law has proven to be very difficult. There is a division between those who argue that the foetus is akin to a body part of its mother, those who argue it is some form of separate entity, and those who have advocated a third model which sees the foetus and its mother as indivisibly linked. 19 In Attorney-General (Qld) (Ex rel Kerr) v T, Gibbs CJ (sitting alone) stated that “a foetus has no rights of its own until it is born and has a separate existence from its mother”. 20 Similarly, in English law, it has been held that the foetus acquires no legal rights prior to having a separate existence of its own. 21 However, Les Haberfield has argued that there has been some minimal recognition of the foetus as having some legal rights in both property law and torts. 22 The decision in R v Hutty confirmed that murder could only be committed on a person who is “in being” and “legally a person is not in being until he or she is fully born in a living state”. 23 In relation to the criminal law, it follows that the killing of a child in the womb or in the process of being born is not considered murder or manslaughter, but may give rise to other criminal offences such as abortion and child destruction (see [9.210]–[9.250]), and now, in New South Wales and Victoria, grievous bodily harm and serious injury (see [9.235]). This begs the question as to when a child can be considered “fully born”. Barry J in R v Hutty formulated the test of being fully born at common law as follows: “A baby is fully and completely born when it is completely delivered from the body of its mother and it has a separate and independent existence in the sense that it does not derive its power of living from its mother. It is not material that the child may still be attached to its mother by the umbilical cord; that does not prevent it from having a separate existence. But it is required, before the child can be the victim of murder or of manslaughter or of infanticide, that the child should have an existence separate from and independent of its mother, and that occurs when the child is fully extruded from the mother’s body and is living by virtue of the functioning of its own organs.” 24

This test is followed in the common law states of Victoria and South Australia. 25 The Criminal Codes of Queensland, Tasmania and Western Australia are very similar in setting out the requirement that the child be “completely proceeded” from the body of its mother and in a 17 18

23 24 25

See, in general, J Seymour, Childbirth and the Law (Oxford: Oxford University Press, 2000). On this issue, see L Haberfield, “The Transplantation of Human Fetal Tissue in Australia: Abortion, Consent and Other Legal Issues” (1996) 4(2) Journal of Law and Medicine 144 at 153. See also A Stuhmcke, “The Legal Regulation of Fetal Tissue Transplantation” (1996) 4(2) Journal of Law and Medicine 131. J Seymour, “The Legal Status of the Fetus: An International Review” (2002) 10 Journal of Law and Medicine 28. Attorney-General (Qld) (Ex rel Kerr) v T (1983) 57 ALJR 285 at 286. Paton v British Pregnancy Advisory Service Trustees [1979] QB 276; C v S [1988] QB 135. L Haberfield, “The Transplantation of Human Fetal Tissue in Australia: Abortion, Consent and Other Legal Issues” (1996) 4(2) Journal of Law and Medicine 144 at 153. See also B Bennett, “The Human Embryo as Property? Cyropreservation and the Challenges for the Law” (2000) 7(4) Journal of Law and Medicine 434; D Sullivan, “State-Sanctioned Intervention on Behalf of the Fetus” (2000) 8 Journal of Law and Medicine 44; A Burton, “Women, the Unborn, the Common Law and the State” (2001) 5 Southern Cross University Law Review 159. R v Hutty [1953] VR 338 at 339 per Barry J. R v Hutty [1953] VR 338 at 339 per Barry J. Barrett v Coroner’s Court (SA) [2010] SASCFC 70 at [23].

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“living state”. 26 Section 1C(1) of the Criminal Code (NT) defines birth as occurring “at the time the person is fully removed from the mother’s body and has an independent existence from the mother”. There is no requirement that the child should have breathed, perhaps because a child may be born alive, but not breathe for some time after birth. 27 Section 1C(2) of the Criminal Code (NT) states that the fact the person is breathing is “relevant, but not determinative, as to whether a person has been born”. The tests in the Australian Capital Territory and New South Wales are a little different in specifically requiring that the child has breathed. Section 20 of the Crimes Act 1900 (NSW) states: On the trial of a person for the murder of a child, such child shall be held to have been born alive if it has breathed, and has been wholly born into the world whether it has had an independent circulation or not.

This suggests that when a child is completely removed from the body of its mother, it is fully born even though it is still attached via the umbilicus. This test of breathing and being wholly born applies in the Australian Capital Territory not only to a charge of murder, but also to manslaughter and other offences against the person. 28 The reference to independent circulation is unnecessary given that a foetus has independent circulation for some months before birth. 29 In R v Iby, 30 the accused was convicted of manslaughter and aggravated dangerous driving causing grievous bodily harm. He had driven a stolen vehicle erratically and at excessive speed, which resulted in a head-on collision. The pregnant driver of the other car was rushed to hospital where an emergency caesarean was performed. The baby, Matthew, was delivered at 11.48 am and died exactly two hours later. On appeal, the accused argued that Matthew was not “born alive” because there was a lack of evidence that the baby had breathed independently, although there was evidence of a heartbeat. Chief Justice Spigelman, with whom Grove and Bell JJ agreed, in dismissing the appeal, stated that “live birth can be proven by many different overt acts including crying, breathing, heartbeat, etc” and that there was no support for the “contention that unassisted breathing must exist before a baby can be said to have been born alive”. 31 In Barratt v Coroner’s Court (SA), 32 Anderson and White JJ also found that pulseless electrical activity in an infant’s heart can in isolation be considered a sign of life for the purpose of the “born alive” rule. Such rulings suggest that “being born alive” is essentially a question of fact for the jury which, in “borderline” cases, may benefit from receiving expert medical testimony. The line between murder and manslaughter and other crimes is, therefore, very much a matter of timing. In jurisdictions other than New South Wales, Victoria and South Australia, the crime of child destruction has been created to overcome the difficulty that may arise where a child is killed in the process of being born. 33 This offence will be dealt with more fully later 26 27 28 29 30 31

32 33

Criminal Code (Qld), s 292; Criminal Code (Tas), s 153(4); Criminal Code (WA), s 269. R v Brain (1834) 6 C & P 349 at 350 per Park J. Crimes Act 1900 (ACT), s 10. See, generally, K Moore and TVN Persaud, The Developing Human—Clinically Oriented Embryology (6th ed, Philadelphia: WB Saunders Company, 1998) pp 350ff. (2005) 63 NSWLR 278. See also Whelan v The Queen (2012) 228 A Crim R 1 and Talbot v Norman (2012) 275 FLR 484. R v Iby (2005) 63 NSWLR 278 at 285. See, further, K Savell, “The Legal Significance of Birth” (2006) 29(2) UNSW Law Journal 200; and discussion by Anderson, White and Peek JJ In Barrett v Coroner’s Court (SA) [2010] SASCFC 70. Barratt v Coroner’s Court (SA)[2010] SASCFC 70. Crimes Act 1900 (ACT), s 42; Criminal Code (NT), s 170; Criminal Code (Qld), s 313; Criminal Code (WA), s 290. [9.30]

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in this chapter, but it is worthwhile noting here that one of the elements of the offence is that the child must be “capable of being born alive”. Section 82A(8) of the Criminal Law Consolidation Act 1935 (SA) sets out a statutory presumption that a foetus is capable of being born alive after a gestation period of 28 weeks. There is considerable difficulty, however, in establishing whether a foetus of less than 28 weeks is capable of being born alive. In Rance v Mid-Downs Health Authority, Brooke J held that a 27-week-old foetus was “capable of being born alive” if it was capable of “breathing and living by reason of its breathing through its own lungs alone”. 34 The difficulties of this approach have been overcome in New South Wales and Victoria through the extension of the definitions of “grievous bodily harm” and “serious injury” to expressly encompass the foetus. The issue was dealt with in R v King, 35 where the New South Wales Court of Criminal Appeal examined whether or not the death of a foetus is capable of constituting grievous bodily harm to a pregnant mother. In this case, the victim was pregnant with the accused’s child but the accused did not want the child. The victim had refused to terminate the pregnancy and the accused subsequently attacked her, kicking her stomach repeatedly. The foetus was delivered stillborn and at trial the accused was charged with intentional infliction of grievous bodily harm and procuring a miscarriage. The Supreme Court noted the divergent approaches taken in England, Canada and New Zealand, and concluded there was no binding Australian authority. Thus, the Court felt able to extend the definition of a “person” under s 33 of the Crimes Act 1900 (NSW) to include the foetus as connected to the mother. As Spigelman CJ noted, there were sound normative reasons for supporting an extended definition: “The close physical bond between the mother and the foetus is of such a character that, for purposes of offences such as this, the foetus should be regarded as part of the mother.” 36

To avoid uncertainty, the position in R v King was codified in the Crimes Amendment (Grievous Bodily Harm) Act 2005 (NSW), which expanded the definition of “grievous bodily harm” under s 4 of the Crimes Act 1900 (NSW) to encompass the destruction of the foetus of a pregnant woman. Section 4 Definitions Grievous bodily harm includes: (a) the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm, and (b) any permanent or serious disfiguring of the person, and (c) any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease).

The offences in the Crimes Act 1900 (NSW) affected by this widened definition include: • the intentional infliction of grievous bodily harm on a person (s 33); • reckless infliction of grievous bodily harm on a person (s 35); • dangerous driving occasioning grievous bodily harm (s 52A(3)); • aggravated dangerous driving occasioning grievous bodily harm (s 52A(4)); • dangerous navigation causing grievous bodily harm (s 52B(3)); • aggravated dangerous navigation causing grievous bodily harm (s 52B(4)); and • negligently causing grievous bodily harm (s 54). 34 35 36

Rance v Mid-Downs Health Authority [1991] 1 QB 587 at 621. R v King(2003) 59 NSWLR 472. R v King (2003) 59 NSWLR 472 at 491.

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In Victoria, the definition of “serious injury” under s 15 of the Crimes Act 1958 (Vic) has also been extended to include the destruction of the foetus of a pregnant woman for the purpose of numerous offences, including intentionally, recklessly or negligently causing serious injury. 37 It should be noted that the termination of pregnancies during a medical procedure is explicitly excluded from the definitions of “grievous bodily harm” and “serious injury”. The legal position governing abortion is discussed at [9.210]–[9.230]. As discussed in Chapter 3 at [3.190], until 1997, it was generally accepted that an accused who inflicts injuries to the foetus who is later born alive but subsequently dies from those injuries, may be guilty of murder or manslaughter depending on what fault element existed at the time of the action. However, in Attorney-General’s Reference (No 3 of 1994), 38 in discussing the law relating to transferred intention, the House of Lords unanimously held that only manslaughter and not murder may be committed in these circumstances. In Martin, 39 Owen J held that a conviction for “unlawful killing” under the Criminal Code (WA) could arise out of similar circumstances to those in Attorney-General’s Reference (No 3 of 1994). An appeal against this finding was dismissed by the Full Court of the Supreme Court of Western Australia. 40 Because the law of homicide in Australia has developed in a different way to that of England, it would seem that the approach in Martin’s case will probably hold sway. The end of life [9.35] Death was traditionally defined as the absence of breathing and circulation of the

blood. However, the advancement of medical technology that enables breathing and circulatory support means that this definition is no longer appropriate. Most jurisdictions now have legislation deeming a person dead where either irreversible cessation of all functions of the brain or irreversible cessation of the circulation of blood has occurred. 41 The requirement for the irreversible cessation of all functions of the brain is significant. The brain stem regulates reflex activities, such as heart rate and respiration, whereas the forebrain mediates the complex functions of voluntary movement, sensory input and cognitive processes. A patient may have severe damage to the forebrain, causing a lack of awareness, but if the brain stem is still functioning, then the patient is legally alive. The term “persistent vegetative state” (PVS) is generally used to refer to this clinical condition. In 1994, the Multi-Society Task Force on PVS set out a list of criteria for the diagnosis of the condition. 42 The criteria include: no evidence of awareness of self or environment and inability to interact with others; no evidence of sustained, reproducible, purposeful, or voluntary behavioural responses to visual, auditory, tactile or noxious stimuli; and no evidence of language comprehension or expression. In a PVS, the patient’s eyes remain open, but there are no detectable responses to visual, auditory or tactile stimuli. However, autonomic reflexes that are controlled by the brain stem such as breathing, coughing and even swallowing may be retained. 37 38 39 40 41

42

Crimes Act 1958 (Vic), ss 16, 17 and 24. [1997] 3 WLR 421. (1995) 85 A Crim R 587. Martin (No 2) (1996) 86 A Crim R 133. Criminal Code (Cth), s 4, Dictionary; Criminal Code (ACT), s 3, Dictionary; Transplantation and Anatomy Act 1978 (ACT), s 45; Human Tissue Act 1983 (NSW), s 33; Criminal Code (NT), s 1; Transplantation and Anatomy Act (NT), s 23; Transplantation and Anatomy Act 1979 (Qld), s 45(1) (applying only to the act and not generally); Death (Definition) Act 1983 (SA), s 2; Human Tissue Act 1985 (Tas), s 27A; Human Tissue Act 1982 (Vic), s 41; Interpretation Act 1984 (WA), s 13C. The Multi-Society Task Force on PVS“Medical Aspects of the Persistent Vegetative State Part One” (1994) 330(21) New England Journal of Medicine 1499 and “Part Two” (1994) 330(22) New England Journal of Medicine 1572. [9.35]

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There are some conditions that are similar to the PVS such as coma, the locked-in syndrome and akinetic mutism. 43 In 1996, Keith Andrews and colleagues published a controversial study in the British Medical Journal, which found that of 40 patients admitted over a three-year period to a single unit specialising in the rehabilitation of patients with profound brain damage, 17 of the patients (or 43%) were misdiagnosed as being in a PVS. 44 The 17 misdiagnosed patients were able to communicate consistently using eye pointing or a touch-sensitive buzzer. In Northridge v Central Sydney Area Health Service, O’Keefe J highlighted the problems associated with the fact that there is no adopted or recognised standard in Australia concerning the making of a diagnosis that a person is in a PVS. 45 Because those in a PVS have some function in the brain stem, they are not considered dead for the purposes of organ transplantation. However, it may not be necessary to keep such patients alive through artificial nutrition and hydration. This is explored more fully in “Euthanasia and unlawful killing” at [9.45]. The ability of modern medical technology to maintain respiration and circulation of the blood in the presence of brain death raises the importance of adequate tests to determine the difference between the cessation of all functioning of the brain, comas and PVS. It also raises important ethical questions about the nature of “personhood”. Those who are considered brain dead do not easily fit within our concept of a dead person, in that they are “pink and warm, their hearts beat and they continue to breathe with the aid of a ventilator”. 46 Some have argued that the pressing need for organs for transplantation should lead to the concept of death being redefined as the cessation of functioning of the forebrain or “higher brain”, which would enable those in a PVS to be considered legally dead. 47 Frank Shann points out, however, that “paradoxically some of the strongest opposition to change, or even discussion of the issues involved, comes from the transplant lobby—who fear that any suggestion of change will be misinterpreted as an attempt to snatch organs, and so undermine public confidence in the public system”. 48 The Model Criminal Code Officers Committee (MCCOC) recommended that there be no change to the legal definition of death because the ramifications of such a reform would impact on the law relating to euthanasia and “extend beyond the criminal law”. 49

Causation [9.40] As well as proving that the accused unlawfully killed a human being, the other physical

element required for both murder and manslaughter is that the accused caused the victim’s death. In Chapter 3 ([3.110]–[3.165]), we explored this requirement in detail. It will be recalled that the courts have developed a number of different tests to establish causation, such as the: • reasonable foreseeability test; • substantial cause test; and 43 44 45 46 47 48 49

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See “Post-Coma Unresponsiveness (Vegetative State) and Brainstem Death” in I Kerridge, M Lowe and J McPhee, Ethics and Law for the Health Professions (2nd ed, Sydney: The Federation Press, 2005) p 390. K Andrews, L Murphy, R Munday and C Littlewood, “Misdiagnosis of the Vegetative State: Retrospective Study in a Rehabilitation Unit” (1996) 313 British Medical Journal 13. Northridge v Central Sydney Area Health Service (2000) 50 NSWLR 549 at 567. “Post-Coma Unresponsiveness (Vegetative State) and Brainstem Death” in I Kerridge, M Lowe and J McPhee, Ethics and Law for the Health Professions (2nd ed, Sydney: The Federation Press, 2005) p 390. A Asai, “Should a Patient in a Persistent Vegetative State Live?” (1999) 18(2) Monash Bioethics Review 25. F Shann, “A Personal Comment: Whole Brain Death Versus Cortical Death” (1995) 23(1) Anaesthesia Intensive Care 14. Model Criminal Code Officers Committee, Chapter 5—Fatal Offences Against the Person, Discussion Paper (June 1998) p 21. [9.40]

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• natural consequence test. The more modern cases appear to favour the substantial cause test, but sometimes these tests are used interchangeably. Royall v The Queen 50 shows how seven judges applied three different tests to the facts, with the majority (Mason CJ, Deane and Dawson JJ) favouring the natural consequence test. Whilst much academic debate has surrounded the concept of causation, it should be kept in mind that the issue rarely arises in practice.

EUTHANASIA AND UNLAWFUL KILLING [9.45] At common law, a competent adult patient has the right to refuse medical treatment,

although this generally does not extend to palliative care. 51 The right to refuse treatment has now been recognised in some Australian jurisdictions. 52 But what of taking active steps to hasten death? Euthanasia has been the subject of intense debate in Australia and elsewhere in recent years. 53 Some confusion surrounds the use of the term and it is important to note that euthanasia may be divided into the categories of: • voluntary; • non-voluntary; and • involuntary. Euthanasia is said to be voluntary where there is an intentional taking of life to relieve suffering in response to the sufferer’s request. It is non-voluntary when the intentional taking of life occurs where the patient is incapable of communicating or forming an opinion as to euthanasia. The most common situation in which the question of non-voluntary euthanasia may arise is where a patient is in a persistent vegetative state. Involuntary euthanasia occurs where intentional killing is carried out against the known wishes of the patient. Closely connected to these forms of euthanasia is physician-assisted suicide, where a medical practitioner assists a patient to kill himself or herself by providing the means that allows the patient to take his or her own life, but where the practitioner does not actually administer any fatal treatment. Assisted suicide is illegal in Australia. Table 2 sets out the main provisions in this regard. Table 2 Assisting suicide offences in Australia Jurisdiction ACT Crimes Act 1900 NSW Crimes Act 1900 NT

50 51 52

53

Prohibition aid/abet/incite/counsel suicide or attempt (s 17)

Penalty 10 years

aid/abet suicide or attempt (s 31C(1)) incite/counsel (s 31C(2)) assist/encourage suicide or attempt (s 162)

10 years 5 years life

(1991) 172 CLR 378. Re T (adult: refusal of medical treatment) [1992] 4 All ER 649; Re C (adult: refusal of medical treatment) [1994] 4 All ER 819; Malette v Shulman (1990) 67 DLR (4th) 321. Medical Treatment (Health Directions) Act 2006 (ACT); Advance Personal Planning Act (NT); Powers of Attorney Act 1998 (Qld), Ch 3, Pt 3; Consent to Medical Treatment and Palliative Care Act 1995 (SA); Medical Treatment Act 1988 (Vic). For an overview of attempts to reform the law in this area, see L Willmott, B White, C Stackpoole, K Purser and A McGee, “(Failed) Voluntary Euthanasia Law Reform in Australia: Two Decades of Trends, Models and Politics” (2016) 39(1) University of New South Wales Law Journal 1. [9.45]

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Jurisdiction Criminal Code Qld Criminal Code SA

Prohibition

Penalty

procure/counsel/aid (s 311)

life

aid/abet/counsel/procure suicide (s 13A(5))

14 years

aid/abet/counsel/procure attempted suicide (s 13A(5)) instigate (counsel, procure, command) or aid (s 163)

8 years

incite/aid/abet suicide or attempt (s 6B(2))

5 years

procure/counsel/aid suicide (s 288)

life

Criminal Law Consolidation Act 1935

Tas Criminal Code Vic Crimes Act 1958 WA

max 21 years

Criminal Code

Voluntary and involuntary euthanasia are also illegal, although prosecutions of medical practitioners are rare. Prosecution of spouses or relatives is more common, though there is still evidence of leniency in relation to charging and sentencing practices. 54 Non-voluntary euthanasia may be permitted in narrow circumstances through the withdrawal of hydration and nutrition from patients in a persistent vegetative state, as established in Airedale NHS Trust v Bland: 55 see at [9.90] for a discussion of the Bland case and its implications for Australia. The ethical issues arising from voluntary and non-voluntary euthanasia are discussed below.

Voluntary Euthanasia—The Northern Territory Experiment [9.50] The debate concerning voluntary euthanasia and assisted suicide became prominent in

Australia with the passage of the Rights of the Terminally Ill Act (NT). That Act enabled an individual over the age of 18 and suffering from a “terminal illness” to request a physician to assist him or her to die. “Terminal illness” was defined in s 3 of the Rights of the Terminally Ill Act (NT) as “an illness which, in reasonable medical judgment will, in the normal course, without the application of extraordinary measures or of treatment unacceptable to the patient, result in the death of the patient”. A number of safeguards were built into the Act, including being assessed by a specialist in the illness and a psychiatrist. 56 The latter had to be satisfied that the individual was not suffering from a “treatable clinical depression in respect of the illness”. 57 A physician who acted in accordance with the Act could not be held guilty of any crime or professional misconduct, nor could he or she be liable in a civil action to any claim for damages. 58 54

55 56 57 58

H Palmer, “Dr Adams’ Trial for Murder” [1957] Criminal Law Review 365 at 375; R v Cox (1992) 12 BMLR 38; Airedale NHS Trust v Bland [1993] 2 WLR 316. For a review of these cases and prosecutions in England, see A Arlidge, “The Trial of Dr David Moor” [2000] Criminal Law Review 31; JC Smith, “A Comment on Moor’s Case” [2000] Criminal Law Review 41; M Otlowski, “Mercy Killing Cases in the Australian Criminal Justice System” (1993) 17 Criminal Law Journal 10. Airedale NHS Trust v Bland[1993] 2 WLR 316. Rights of the Terminally Ill Act (NT), s 7(1)(c). Rights of the Terminally Ill Act (NT), s 7(1)(c)(iv). Rights of the Terminally Ill Act (NT), s 20(1).

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Despite being upheld as valid by the Supreme Court of the Northern Territory in Wake v Northern Territory 59, the Rights of the Terminally Ill Act (NT) was repealed by the Euthanasia Laws Act 1997 (Cth). This federal legislation denied the Northern Territory, the Australian Capital Territory and Norfolk Island the power to make laws “which permit or have the effect of permitting (whether subject to conditions or not) the form of intentional killing of another called euthanasia (which includes mercy killing) or the assisting of a person to terminate his or her life”. 60 The former Australian Greens Senator Bob Brown attempted to repeal the Euthanasia Laws Act 1997 (Cth), but with little success. His first attempt via a Private Senator’s Bill, the Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill 2008, resulted in an inquiry by the Senate’s Standing Committee on Legal and Constitutional Affairs. 61 The Committee received over 1,800 submissions, resulting in a recommendation that the Bill should not proceed in its current form. Subsequently, the Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2008 (Cth) was introduced into the Senate on 17 September 2008, lapsing at the end of that Parliamentary term. Senator Richard Di Natale, also of the Greens, introduced into Parliament the Restoring Territory Rights (Voluntary Euthanasia Legalisation) Bill 2012 which lapsed at the conclusion of the Parliamentary term. This was followed by the Restoring Territory Rights (Dying with Dignity) Bill 2016 which similarly lapsed without passage at the end of the 2016 Parliamentary term. 62

Assisted suicide in the Northern Territory [9.55] In the short time that the Rights of the Terminally Ill Act (NT) was in force, Dr Phillip Nitschke used a computerised system that allowed patients to give themselves a lethal dose of medication to end their life. This was therefore a form of assisted suicide rather than active voluntary euthanasia. At the time of its repeal, four people were reported to have received assistance to die in accordance with the terms of the Act. 63 Bob Dent became the first person to die pursuant to the Northern Territory legislation on 22 September 1996. He was followed by South Australian cancer sufferer Janet Mills on 2 January 1997, a 69-year-old unnamed Darwin man on 20 January 1997, and a 72-year-old unnamed Sydney woman on 1 March 1997. 64

In the debate surrounding the enactment and subsequent repeal of the Rights of the Terminally Ill Act (NT), a number of ethical arguments surfaced in favour of and against voluntary euthanasia and assisted suicide. The following is a brief outline of the main arguments. 65

59 60 61 62 63 64 65

(1996) 124 FLR 298. Euthanasia Laws Act 1997 (Cth), Sch 1. Senate Legal and Constitutional Committee, Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill 2008 (2008). See L Willmott et al, “(Failed) Voluntary Euthanasia Law Reform in Australia: Two Decades of Trends, Models and Politics” (2016) 39(1) University of New South Wales Law Journal 1. Senate Legal and Constitutional Legislation Committee, Consideration of Legislation Referred to the Committee: Euthanasia Laws Bill 1996 (1997) pp 10–11. G Alcorn, “Euthanasia Law Assists New Death” The Age, 5 March 1997, A7. For an excellent study of the reality of assisted suicide by HIV-specialising health professionals, see R Magnusson, Angels of Death: Exploring the Euthanasia Underground (Melbourne: Melbourne University Press, 2002). [9.55]

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Arguments in Favour of Voluntary Euthanasia Human rights-based arguments [9.60] In 1914, Cardozo J stated that “every human being of adult years and sound mind has

a right to determine what shall be done with his [or her] own body”. 66 This stemmed from John Stuart Mill’s oft-quoted harm principle that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others”. 67 Proponents of voluntary euthanasia argue from this starting point that if an individual chooses to end his or her own life, the State has no business interfering with that choice or invoking criminal penalties to stop the individual acting on it. Further, “if the person who has made the decision needs the assistance of another to help him or her carry it out, and that other person is also an adult of sound mind, who after careful reflection is willing to assist the first person in carrying the decision out, the State also ought not to invoke criminal penalties against the person who assists”. 68 Some have also argued for the existence of a right to die as a corollary of the right to life. In his dissenting judgment in Rodriguez v Attorney-General (British Columbia), Cory J saw the right to die as an extension of a right to life which finds expression in s 7 of the Canadian Charter of Rights and Freedoms: “If, as I believe, dying is an integral part of living, then as a part of life it is entitled to the constitutional protection provided by s 7. It follows that the right to die with dignity should be as well protected as is any other aspect of the right to life. State prohibitions that would force a dreadful, painful death on a rational, but incapacitated terminally ill patient are an affront to human dignity.” 69

However, in Pretty v United Kingdom this expanded approach to the right to life was rejected expressly by the European Court of Human Rights (ECtHR) as being guaranteed by the ECHR: “Article 2 [the right to life] cannot, without a distortion of language, be interpreted as conferring a diametrically opposite right, namely a right to die; nor can it create a right to self-determination in the sense of conferring on an individual the entitlement to choose death rather than life.” 70

The right to life is not exhaustive of the human rights that may be asserted in relation to assisted suicide. As Brendon Murphy points out, in his review of the litigation before the House of Lords and the ECtHR, the “right to die” has been linked with the right to privacy, which is protected under Art 8 of the European Convention on Human Rights (ECHR). 71 In Pretty v United Kingdom, the ECtHR found that the private life of the individual necessarily included questions related to the quality of life. Although the ECtHR accepted that Art 8 of the 66 67

68

69 70 71

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Schloendorff v Society of New York Hospital 105 NE 92 at 93 (SCNY 1914). On Liberty (Harmondsworth, Middlesex: Penguin Books Ltd, 1987) (first published 1859) p 68; see Chapter 1, “Preventing harm” at [1.200]. The eminent philosophers Max Charlesworth and Ronald Dworkin have written about voluntary euthanasia in the context of an expression of autonomy, integrity and dignity: M Charlesworth, Bioethics in a Liberal Society (Cambridge: Cambridge University Press, 1993); R Dworkin, Life’s Dominion: An Argument About Abortion and Euthanasia (London: Harper Collins, 1993). H Kuhse and P Singer, “Active Voluntary Euthanasia, Morality and the Law” (1995) 3(2) Journal of Law and Medicine 129 at 130. See also, P Singer, Rethinking Life and Death (New York: St Martin’s Griffin, New York, 1994). Rodriguez v Attorney-General (British Columbia) [1993] 3 SCR 519 at 630. Pretty v United Kingdom (2002) 35 EHRR 1 at 39–40. B Murphy, “Human Rights, Human Dignity and the Right to Die: Lessons from Europe on Assisted Suicide” (2009) 33(6) Criminal Law Journal 341. [9.60]

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ECHR was engaged in cases of assisted suicide, the law in the United Kingdom criminalising assisted suicide was otherwise sufficiently clear and proportionate to be a lawful interference with the right to privacy under the ECHR. The decision of R (on the application of Purdy) v Director of Public Prosecutions 72 takes this line of reasoning one step further. In this case, the applicant (who was terminally ill) sought clarification of the DPP policy of prosecution in cases where a person travels overseas to a jurisdiction where assisted suicide is lawful, and the circumstances in which those assisting that suicide should be prosecuted. (The DPP had declined to provide an undertaking not to prosecute and the Prosecution Guidelines for Crown Prosecutors contained no guidance as to where the balance of public interests lay in such cases.) While affirming the fundamental importance of the prosecutor’s discretion, the House of Lords held that the DPP must “promulgate an offence-specific policy identifying the facts and circumstances which he [or she] will take into account in deciding … whether or not to consent to a prosecution [for assisting suicide]”. 73 The case, ultimately, made no finding in relation to the application of discretion, nor the potential liability of any individual. In response to the Purdy decision, the DPP released its assisted suicide prosecutorial policy in February 2010, which was updated in October 2014. 74 The law in England and Wales on assisted suicide and the DPP policy was subsequently considered by the United Kingdom Supreme Court in R (on the application of Nicklinson and another) v Ministry of Justice; R (on the application of AM) v Director of Public Prosecutions. 75 This case arose out of claims by three men who wished to end their own lives, but because of physical limitations could only do so if assisted by another person or by refusing all food and water. At issue was whether making assisted suicide a criminal offence amounted to an unnecessary and disproportionate restriction of the right to respect for private life under the ECHR. The court held that it had jurisdiction to consider the matter because the current law on assisted suicide fell within the concept of a “margin of appreciation” in international human rights law – that is, the law could be left to the discretion of ECHR Member States. In June 2015, the ECtHR agreed that assisted suicide does fall within this “margin of appreciation”. 76 In Nicklinson’s case, a majority of five justices held that the Supreme Court has the constitutional authority to make a declaration of incompatibility in relation to the prohibition on assisted suicide. However, of these five justices, Lord Neuberger, Lord Mance and Lord Wilson concluded that it would be inappropriate to make a declaration of incompatibility before giving Parliament the opportunity to consider the matter, whereas Lady Hale and Lord Kerr were prepared to grant such a declaration. The Purdy and Nicklinson cases arose primarily out of the conflict between a criminal statute and the requirement under the Human Rights Act 1998 (UK) to adhere to the ECHR. These decisions have implications for those Australian jurisdictions which have adopted 72 73

74

75 76

R (on the application of Purdy) v Director of Public Prosecutions [2009] UKHL 45. See also R (on the application of Nicklinson and another) v Ministry of Justice and others [2014] UKSC 38. R (on the application of Purdy) v Director of Public Prosecutions [2009] UKHL 45 at [56]. See also B White and J Downie, “Prosecutorial Guidelines for Voluntary Euthanasia and Assisted Suicide: Autonomy, Public Confidence and High Quality Decision-Making” (2012) 36(2) Melbourne University Law Review 656. This policy of the English DPP on assisted suicide is entitled “Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide”. The October 2014 update can be accessed at http://www.cps.gov.uk/ publications/prosecution/assisted_suicide_policy.html (cited 14 October 2016). R (on the application of Nicklinson and another) v Ministry of Justice; R (on the application of AM) v Director of Public Prosecutions[2014] UKSC 38. Nicklinson and Lamb v United Kingdom (Apps 2478/15 and 1787/15), Decision of 23 June 2015. On this case, see E Wicks, “Commentary: Nicklinson and Lamb v United Kingdom: Strasbourg Fails to Assist on Assisted Dying in the UK” (2016) Medical Law Review. [9.60]

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human rights legislation in similar terms to the English Act, namely, the Australian Capital Territory and Victoria. 77 As Brendon Murphy points out, these cases: “should send a signal to the various prosecution authorities that the need to incorporate offence-specific policy is on the horizon; especially where the jurisdiction contains or anticipates the introduction of express human rights enactments.” 78

Beneficence [9.65] Voluntary euthanasia has also been advocated where it is in “the best interests” of the

individual concerned. This stems from the ethical principle of beneficence that holds that there is a moral obligation to promote the welfare of individuals. 79 In this sense, it has been argued that if there is a choice between a long-drawn-out and painful death or a quick death by lethal injection, a person acts with beneficence by giving the appropriate injection. It is this argument that gives rise to voluntary euthanasia sometimes being referred to as “mercy killing”. 80 The notion of beneficence is also implicit in comparisons between the death of animals and humans, expressed in statements such as, “we should have been punished by the State if we kept an animal alive in a similar physical condition”. 81 Public support [9.70] International and Australian studies suggest there is strong support for the idea of

voluntary euthanasia. 82 However, there are often methodological problems associated with opinion surveys, not the least of which is the phrasing of the questions posed. It is also problematic relying on polls and questionnaires to determine what should be legally permissible: see further, Chapter 1, “Gauging the public interest” at [1.225]. As Ian Kerridge, Michael Lowe and John McPhee point out, there are plenty of instances in recent history “where both popular approval and the law approved major violations of human rights”. 83

Arguments Opposing Voluntary Euthanasia Sanctity of life [9.75] Those opposed to voluntary euthanasia often refer to the idea that human life has an

inherent value such that it is always ethically impermissible to intentionally end human life. Often, but not always, this argument is based on religious or moral principles: see further, 77 78 79 80 81 82

83

Human Rights Act 2004 (ACT); Charter of Human Rights and Responsibilities Act 2006 (Vic). B Murphy, “Human Rights, Human Dignity and the Right to Die: Lessons from Europe on Assisted Suicide” (2009) 33(6) Criminal Law Journal 341 at 356. TL Beauchamp and JF Childress, Principles of Biomedical Ethics (5th ed, Oxford: Oxford University Press, 2001) p 165. A Flew, “The Principle of Euthanasia” in AB Downing and B Smoker (eds), Voluntary Euthanasia: Experts Debate the Right to Die (London: Peter Owen, 1986) p 43. AB Downing, “Euthanasia: The Human Context” in AB Downing and B Smoker (eds), Voluntary Euthanasia: Experts Debate the Right to Die (London: Peter Owen, 1986) p 18. H Kuhse and P Singer, “Voluntary Euthanasia and the Nurse: An Australian Study” (1993) 4 International Journal of Nursing Studies 311; H Kuhse, P Singer, P Baume, M Clarke and M Rickard, “End-of-Life Decisions in Australian Medical Practice” (1997) 166(4) Medical Journal of Australia 191; P Baume and E O’Malley, “Euthanasia: Attitudes and Practices of Medical Practitioners” (1994) 161(2) Medical Journal of Australia 137; BJ Ward and PA Tate, “Attitudes Among NHS Doctors to Requests for Euthanasia” (1994) 308 British Medical Journal 1332; ME Suarez-Almazor, M Belzile and E Bruera, “Euthanasia and Physician-Assisted Suicide: A Comparative Survey of Physicians, Terminally-Ill Cancer Patients and the General Population” (1997) 15(2) Journal of Clinical Oncology 413. I Kerridge, M Lowe and J McPhee, Ethics and Law for the Health Professions (Katoomba, NSW: Social Science Press, 1998) p 468.

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Chapter 1, “Preserving morality” at [1.205]–[1.210]. In Airedale NHS Trust v Bland, 84 Lord Mustill explained that in circumstances where active steps are taken to end life—even with humanitarian motives—″the interest of the State in preserving life overrides the otherwise all-powerful interest of patient autonomy″. 85 Slippery slope [9.80] The “slippery slope” argument is that the legalisation of voluntary euthanasia will lead

to active non-voluntary and involuntary euthanasia in that it will open the way for killing individuals who are not competent to make end-of-life decisions. 86 Linked to this is the argument that legalising voluntary euthanasia will open the way for interpersonal, professional and institutional abuse. 87 It is, of course, difficult to prove or disprove consequentialist arguments such as these in the absence of legalised voluntary euthanasia. However, some authors point to the Remmelink Report, completed in 1990 by a government-appointed committee of inquiry into the Dutch experience of voluntary euthanasia, as supporting the “slippery slope” argument. 88 The report showed that 1,000 deaths occurred with the explicit purpose of ending life, but without an explicit request from the patient. These figures have been questioned, with some scholars arguing that in Australia, where voluntary euthanasia is illegal, the rate of ending a patient’s life without the patient’s explicit request was five times higher than in Holland. 89 Integrity of the medical profession and palliative care [9.85] Some doctors have argued that if they are allowed to end their patients’ lives, then “the

profession … will never again be worthy of trust and respect as healer and comforter and protector of life in all its frailty”. 90 There was evidence placed before the Senate Legal and Constitutional Legislation Committee that, after the enactment of the Rights of the Terminally Ill Act (NT), members of Aboriginal communities became reluctant to attend clinics or to go to hospital. 91 Health practitioners working in palliative care have also expressed concern about voluntary euthanasia. As Michael Ashby observes: “Palliative care practitioners believe that intentional ending of life is not a part of currently accepted palliative care practice. They are not persuaded by what well people say in opinion polls, nor by arguments which appear to intellectually undermine the doctrine of double effect or the sanctity of 84 85 86 87 88

89 90

91

Airedale NHS Trust v Bland [1993] AC 789. Airedale NHS Trust v Bland [1993] AC 789 at 893. For an exploration of this argument, see J Rachels, The End of Life (Oxford: Oxford University Press, 1986) pp 170ff. M Battin, The Least Worst Death (New York: Oxford University Press, 1994) p 173. These findings were reported in P van der Maas, J van Delden, L Pijnendorg, C Looman, “Euthanasia and Other Medical Decisions Concerning the End of Life” (1991) 338 The Lancet 669. See also P van der Maas, G van der Wal, I Haverkate, C de Graaff, J Kester, B Onwuteaka-Philipsen, A van der Heide, J Bosma and D Willems, “Euthanasia, Physician-Assisted Suicide and Other Medical Practices Involving the End of Life in the Netherlands, 1990–1995” (1996) 335 New England Journal of Medicine 1699. H Kuhse, P Singer, P Baume, M Clark and R Maurice, “End-of-Life Decisions in Australian Medical Practice” (1997) 166(4) Medical Journal of Australia 191. W Gaylin, LR Kass, ED Pellegrino and M Siegler, “Doctors Must Not Kill” in RM Baird and SE Rosenbaum (eds), Euthanasia: The Moral Issues (New York: Prometheus Books, 1989) p 27. See also P Mullen, “Euthanasia: An Impoverished Construction of Life and Death” (1995) 3 Journal of Law and Medicine 121 at 124; K Healey (ed), Euthanasia (Sydney: The Spinney Press, 1997) p 13. Senate Legal and Constitutional Committee, Consideration of Legislation Referred to the Committee: Euthanasia Laws Bill 1996 (1997) p 50, quoting Mr Mackinolty; Senate Legal and Constitutional Committee, Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill 2008 (2008) pp 57–60. [9.85]

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life. For many doctors, and particularly those who care for dying people, there is a profound moral intuitive objection to intentionally and actively causing the death of a patient.” 92

The MCCOC rejected the idea that the Model Criminal Code should permit voluntary euthanasia or assisted suicide, taking the view that the issue was too politically and morally contentious for a codification project: “Any such change would be radical, controversial and beyond the Committee’s brief to propose a uniform code which reflects a consensus on matters of legal principle.” 93

Non-voluntary Euthanasia [9.90] Anthony Bland was a victim of the 1989 Hillsborough Football Ground disaster in

England. At that time he was aged 17 and a half, and he suffered a severe crushed chest injury that gave rise to hypoxic brain damage. His condition deteriorated such that he was considered to be in a persistent vegetative state (PVS) with no hope whatsoever of improvement. His doctors, supported by his parents, formed the view that there was no useful purpose in prolonging his medical care and that it was appropriate to stop artificial feeding and other measures keeping him alive. Because of doubts about the legality of such conduct, the responsible hospital authority sought declarations from the High Court that the doctors could lawfully discontinue all life-sustaining treatment and medical supportive measures, including artificial hydration and nutrition. This was granted by the president of the Family Division and, later on appeal, by the Court of Appeal and, ultimately, the House of Lords in Airedale NHS Trust v Bland. 94 In assessing whether the withdrawal of nutrition and hydration could amount to a criminal offence, the House of Lords considered the extent of the duty owed by the hospital and the doctors to their patient. Where a legal duty exists to do a certain act that an accused failed to do, that omission may amount to the physical element for unlawful killing. The House of Lords considered there was no duty of care to provide Anthony Bland with medical care and food for an indefinite period. Bland relied upon a previous House of Lords decision In Re F (mental patient: sterilisation). 95 That case laid down the principle that, based on concepts of necessity, a doctor can lawfully treat a patient who cannot consent to treatment if it is determined to be “in the best interests” of the patient to receive such treatment: see Chapter 6, [6.180]. Following on from that principle, the House of Lords held in Bland’s case that the right to administer invasive medical care is wholly dependent upon such care being in the best interests of the patient. The critical issue therefore became whether it was in the best interests of the patient to continue the invasive medical care involved in artificial feeding. The medical evidence was such that continuance of medical treatment would confer no benefit on Anthony Bland and, accordingly, the House of Lords held that existence in a PVS was not in the best interests of the patient. Thus, there was no duty to provide Anthony Bland with medical care and food for an indefinite period of time, and the withdrawal of artificial nutrition and hydration would not amount to an unlawful killing. The United States Supreme Court has taken a different approach to a similar-fact situation. In 1983, Nancy Beth Cruzan was involved in a car accident that left her in a PVS. A gastronomy tube was implanted to allow for artificial feeding. After five years, the Cruzan 92

94 95

M Ashby, “Hard Cases, Causation and Care of the Dying” (1995) 3(2) Journal of Law and Medicine 152 at 152. Model Criminal Code Officers Committee, Chapter 5—Fatal Offences Against the Person, Discussion Paper (June 1998) p 187. [1993] AC 789. [1990] 2 AC 1.

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family requested removal of the feeding tube. The doctors involved refused to honour the request without a court order. The Missouri trial court held that Nancy Cruzan had a right to have “death-prolonging” procedures removed. The Supreme Court of Missouri reversed this decision, stating that it would only give permission for the discontinuance of artificial feeding if there was convincing evidence that Cruzan would have wanted to be allowed to die. No such evidence had been presented to the Court. On appeal, the United States Supreme Court, in a five-to-four decision, upheld the approach of the Supreme Court of Missouri. 96 The majority held that medical treatment, artificial nutrition and hydration must be continued unless there is clear evidence indicating that the patient would not have wished to be kept alive in the circumstances. The focus of this case, therefore, was not on the best interests of the patient, but on evidence of any advance directives as to withdrawal of treatment. Six months after the Supreme Court decision, three new witnesses testified as to Nancy’s prior wishes that medical treatment should cease if she were in such circumstances and the Missouri court then allowed Nancy Cruzan to die. The significance of the Bland case for Australian jurisdictions remains unclear. Ian Freckelton points out that Australian health professionals have not followed the English approach of applying to courts for declaratory orders in decision-making on cessation or withdrawal of treatment, but adds that “in circumstances that are unusual it may very well be that the English-style approach would be prudent for the treating doctor or responsible hospital”. 97 The issue of liability in relation to end of life decision-making has proven conceptually difficult for the criminal law, with medical practitioners often unclear about what is required of them. 98 The possibility of liability for homicide may result in medical practitioners being cautious in withdrawing treatment even in situations where patients have expressed this wish. In Brightwater Care Group v Rossiter, 99 Martin CJ of the Western Australian Supreme Court held that Christian Rossiter had the legal right to direct his healthcare provider to cease to provide him with nutrition and general hydration after he had received and considered medical advice as to the consequences that would follow. Martin CJ further directed that Brightwater would be legally obliged to comply with such a direction and would not be criminally responsible for Mr Rossiter’s resultant death. Mr Rossiter died on 21 September 2009, some five weeks after Martin CJ’s decision. Some patients and family members may, however, view continuing treatment as essential. In Northridge v Central Area Health Service, 100 the sister of a patient, John Thompson, who had been brought to the hospital in an unconscious state after a heroin overdose, made an urgent application to the duty judge of the Supreme Court of New South Wales for him to be provided with appropriate and necessary medical treatment. The hospital doctors had made a diagnosis of “chronic vegetative state” after a period of only six days, and had stopped feeding Mr Thompson and administering antibiotics. O’Keefe J made the order sought by Mr Thompson’s sister after hearing evidence from a number of expert witnesses who stated that the diagnosis was inappropriate and premature: 96 97 98

99 100

Cruzan v Director, Missouri Dept of Health 497 US 261 (1990). I Freckelton, “Withdrawal of Life Support: The ’Persistent Vegetative State Conundrum’” (1993) 1(1) Journal of Law and Medicine 35 at 46. M Blake, “Doctors Liability for Homicide under the WA Criminal Code: Defining the Role of Defences” (2011) 35(2) University of Western Australia Law Review 287; B White, L Willmott and J Allen, “Withholding and Withdrawing Life-sustaining Treatment: Criminal Responsibility for Established Medical Practice?” (2010) 17 Journal of Law and Medicine 849. Brightwater Care Group v Rossiter (2009) 40 WAR 84; On this case, see G Ellis, “The Right of Self-Determination: Brightwater Care Group Inc v Rossiter” (2010) 12 UNDALR 209. (2000) 50 NSWLR 549. [9.90]

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“There is an obvious need for clear and precise criteria for the diagnosis of permanent (or chronic) vegetative state in Australia, and for the circumstances in which conventional medical treatment, support and nutrition may be withdrawn from a patient in respect of whom a diagnosis of permanent (or chronic) vegetative state has been properly made.” 101

In South Australia and Queensland, the American approach has, to some extent, found its way into legislation. Part 3 of the Advance Care Directives Act 2013 (SA) and s 36(2) of the Powers of Attorney Act 1998 (Qld) allow a person to give an advance direction refusing treatment in the event that he or she is at some future time in the terminal phase of a terminal illness or in a persistent vegetative state.

Refusal of Nutrition and Hydration in the United States and Australia: Schiavo Ex Rel v Schiavo 544 US 945 (2005); Gardner; Re BWV (2003) 7 VR 487 [9.95] In the United States, the issue of whether or not nutrition and hydration should be

withdrawn from brain-damaged Terri Schiavo led to unprecedented responses from the executive and the legislature in relation to the right (or lack of it) to refuse medical treatment. In 1990, Terri Schiavo was diagnosed as being in a persistent vegetative state after suffering a heart attack. She was placed in a nursing home where she was given fluid and nutrition via a percutaneous endoscopic gastrostomy (PEG). By mid-1996, the CAT scans of her brain showed a severely abnormal structure with the cerebral cortex having been replaced by cerebral spinal fluid. At first, Terri’s husband, Michael, and her parents, Robert and Mary Schindler, had an amicable relationship, but this ended in 1993. In May 1998, Michael petitioned the guardianship court to authorise the termination of life-prolonging procedures. The Schindlers opposed the petition. The guardianship court found that Terri was in a persistent vegetative state and that she would elect to cease life-prolonging procedures if she were competent to make that decision. The court authorised the discontinuance of nutrition and hydration. 102 This was affirmed on appeal and a review denied by the Supreme Court of Florida. 103 The Schindlers continued to bring actions in the Guardianship Court, the Civil Division of the Circuit Court, and appealed numerous times to prevent the withdrawal of the supply of hydration and nutrition. The PEG was first removed on 26 April 2001, but was reinserted two days later due to an appeal being lodged. In October 2003, the final remaining appeal filed by the Schindlers was dismissed. On 10 October 2003, Terri’s PEG was removed for the second time. On 21 October, the Florida Legislature, in an emergency session, enacted Chapter 2003–418, which was known as “Terri’s Law”. This gave Florida Governor, Jeb Bush, the authority to intervene in the case. Governor Bush immediately issued Executive Order No 03–201 to stay the continued withholding of nutrition and hydration from Terri. Michael Schiavo then challenged the law’s constitutionality and on 23 September 2004, the Supreme Court of Florida ruled that the law violated the separation of powers doctrine and was therefore unconstitutional. 104 On 101

102 103 104

Northridge v Central Area Health Service (2000) 50 NSWLR 549 at 568 per O’Keefe J. It has been suggested that the Australian practice should be based on the British guidelines for such cases: E Geraghty, “What Price Uncertainty? The Persistent Vegetative State in New South Wales” (2002) 2 Macquarie Law Journal 185. In Re Guardianship of Schiavo 780 So 2d 176 (Fla 2d DCA 2001). In Re Guardianship of Schiavo 789 So 2d 348 (Fla 2001). Jeb Bush v Michael Schiavo 885 So 2d 321 (Fla 2004).

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24 January 2005, the Supreme Court refused to hear an appeal against that decision. 105 The final ruling came on 25 February 2005, when George Greer J of the Pinellas County Circuit Court ordered that the PEG be removed on 18 March 2005. A further application to the Supreme Court to stay that order was denied on 24 March 2005. 106 Terri Schiavo died on 31 March 2005. In Victoria, a similar case was considered by its Supreme Court in 2003, but without recourse to executive or legislative intervention. In the case of Gardner; Re BWV, 107 Morris J held that the supply of fluid and nutrition via a PEG is medical treatment which can be refused under the Medical Treatment Act 1988 (Vic). Section 5 of the Medical Treatment Act 1988 (Vic) enables a patient to make a refusal of treatment certificate. Section 5B of that Act enables an agent or guardian of a person to refuse medical treatment on a patient’s behalf. Gardner; Re BWV concerned a 68-year-old woman who suffered from a progressive and fatal form of dementia, probably Pick’s disease. For three years, she did not appear to be conscious or to have any cortical activity and only showed reflex actions. On 28 February 2003, the Victorian Civil and Administrative Tribunal appointed the Public Advocate, Julian Gardner, to be the woman’s guardian, with powers and duties to make decisions concerning her medical treatment. The Public Advocate sought declarations from the Supreme Court that the provision of nutrition and hydration via a PEG constituted medical treatment, and that the refusal of further nutrition and hydration administered via a PEG constituted a refusal of medical treatment rather than a refusal of palliative care. Morris J, after a careful consideration of the Medical Treatment Act 1988 (Vic) and the parliamentary debates that preceded its enactment, granted these declarations. BWV died on 21 June 2003, some three weeks after the declarations were made. Alan Rothschild describes the process of withdrawing artificial nutrition and hydration as “passive, non-voluntary euthanasia” because, in reality, the patient dies from dehydration rather than the disease. 108 This decision is important because it views the supply of fluid and nutrition via a PEG as medical treatment that is subject to the same process of consent or refusal as any other form of treatment. 109 It also indicates that there is no legal duty to provide artificial nutrition and hydration irrespective of the patient’s condition. 110 Many commentators have queried the distinction in Bland’s case between an omission to treat and active forms of non-voluntary euthanasia. 111 Lord Goff was careful to point out that an omission is not the same as the taking of positive steps to bring life to an end, because “the law 105 106 107 108 109 110 111

Bush, Governor of Florida v Schiavo 543 US 1121 (2005). Schiavo Ex Rel v Schiavo 544 US 945 (2005). (2003) 7 VR 487. A Rothschild, “Gardner; Re BWV: Resolved and Unresolved Issues at End of Life” (2004) 11(3) Journal of Law and Medicine 292 at 305. D Mendelson and M Ashby, “The Medical Provision of Hydration and Nutrition: Two Very Different Outcomes in Victoria and Florida” (2004) 11(3) Journal of Law and Medicine 282. A Rothschild, “Gardner; Re BWV: Resolved and Unresolved Issues at End of Life” (2004) 11(3) Journal of Law and Medicine 292 at 303. For example, M Bagaric, “Active and Passive Euthanasia: Is There a Moral Distinction and Should There Be a Legal Difference?” (1997) 5(2) Journal of Law and Medicine 143; C Favour, “Puzzling Cases about Killing and Letting Die” (1996) 1 Res Publica: A Journal of Legal and Social Philosophy 18; J Finnis, “Bland: Crossing the Rubicon?” (1993) 109 Law Quarterly Review 329; G Gillett, “Euthanasia, Letting Die and the Pause” (1988) 14 Journal of Medical Ethics 61; J Rachels, “Active and Passive Euthanasia” (1975) New England Journal of Medicine 78. [9.95]

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does not feel able to authorise [active] euthanasia, even in circumstances such as these; for once euthanasia is recognised as lawful in these circumstances, it is difficult to see any logical basis for excluding it in others”. 112 Lord Browne-Wilkinson posed the ethical question arising from Bland’s case as follows: “[S]hould society draw a distinction (which some would see as artificial) between adopting a course of action designed to produce certain death, on the one hand through the lack of food, and on the other from a fatal injection, the former being permissible and the latter (euthanasia) prohibited?” 113

The answer to this question will no doubt continue to be vigorously debated.

The philosophical debate about acts and omissions [9.100] In 1975, James Rachels, a bioethicist, set out two hypothetical cases to argue that there is no moral difference between passive and active euthanasia. 114 In the first case, Smith stands to gain a large inheritance if his six-year-old cousin dies. One evening, as the six-year-old is taking his bath, Smith goes into the bathroom and drowns his cousin, making it look like an accident. In the second case, Jones also stands to benefit if his six-year-old cousin dies. Like Smith, Jones goes into the bathroom intending to drown his cousin. However, as he enters, he sees the child slip, hit his head and fall face down in the bath. Jones watches and does nothing as the child drowns. According to Rachels, Jones’ conduct is no less reprehensible than Smith’s. From these cases, Rachels argues that there is no moral difference between killing and letting die. Tom Beauchamp and James Childress, however, argue that Rachels’ cases are not analogous to killing and letting die in the way that those acts relate to euthanasia. 115

THE FAULT ELEMENTS OF MURDER AND MANSLAUGHTER [9.105] We have previously explored the physical elements of unlawful killing, which are the

same for both murder and manslaughter. In relation to fault elements, murder involves some form of specific fault element, whilst manslaughter is a residual category that contains a collection of disparate types of killing such as causing death by negligence or intentional killing that involves mitigating circumstances.

Murder [9.110] According to the traditional English common law formulation, the requisite fault element for murder was “malice aforethought”. 116 This is no longer relevant, as murder may be established where the accused has not acted “maliciously” and where there is no pre-meditation. Malice, however, remains relevant in New South Wales, since the murder offence under s 18 of the Crimes Act 1900 (NSW) provides that “[n]o act or omission which was not malicious … shall be within this section”. 117 Its retention in the Crimes Act 1900 is 112 113 114

116 117

Airedale NHS Trust v Bland [1993] AC 789 at 865. Airedale NHS Trust v Bland [1993] AC 789 at 879. J Rachels, “Active and Passive Euthanasia” in T Beauchamp and L Walters (eds), Contemporary Issues in Bioethics (5th ed, Belmont, California: Wadsworth Publishing Company, 1999) pp 290–293. TL Beauchamp and JF Childress, “A Reply to Rachels on Active and Passive Euthanasia” in TL Beauchamp and L Walters (eds), Contemporary Issues in Bioethics (5th ed, Belmont, California: Wadsworth Publishing Company, 1999) pp 294–296. For an earlier article which adopts a similar philosophical position, see T Campbell, “Euthanasia and the Law” (1979) 17(2) Alberta Law Review 188. E Coke, Institutes of the Laws of England—Part 3 (London: Lee and Pakeman, 1644) 3 Inst 47. Crimes Act 1900 (NSW), s 18(2)(a).

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anomalous since, in 2007, the term “maliciously” was removed from the definition provision of the Act. However, s 65 of Schedule 11 does provide that the repeal of this definition does not affect the operation of any provision of this Act (including a repealed provision) that refers to “malicious” or “maliciously” or of any indictment or charge in which malice is by law an ingredient of the crime. In any event, the High Court has held that the concept of malice is redundant, adding nothing further to the fault element of recklessness. 118 Malice has been replaced by a statutory “recklessness” in the new s 4A of the Crimes Act 1900 (inserted in 2007). This provision does not apply the Model Criminal Code test of recklessness (namely, an awareness of a substantial and unjustifiable risk), a test which has been adopted in the Criminal Codes of the Commonwealth, the Australian Capital Territory and the Northern Territory, as well as in the Criminal Law Consolidation Act 1935 of South Australia. 119 The New South Wales amendment did, however, follow the Model Criminal Code by clarifying that statutory recklessness “may also be established by proof of intention or knowledge”. 120 These reforms in New South Wales reject a cardinal ideal of codification; namely, that there is, or ought to be, general definitions of fault elements (like recklessness) applicable to all offences. In New South Wales, the courts will continue to play a key role, applying the ordinary principles governing statutory interpretation to determine the (variable) meaning of statutory recklessness in specific contexts. As we shall explore below, the test for reckless murder (reckless indifference to human life under s 18(1)(a) of the Crimes Act 1900) differs significantly from the definitions applied for sexual assault (which extends to states of culpable inadvertence) and other offences. For a review of the objective test of recklessness based on culpable inadvertence in New South Wales sexual assault law, see Chapter 11, [11.160]. A motive for murder need not be proved, although evidence of motive is admissible to show the accused possessed the requisite fault element. 121 Australian jurisdictions vary in the fault elements required for murder. While all jurisdictions include an intention to kill within the fault elements, seven include an intention to cause some form of serious bodily harm, five include recklessness as to causing death and only two jurisdictions include recklessness as to causing grievous bodily harm: see Table 1. All jurisdictions, apart from the Australian Capital Territory and the Northern Territory, also include a category of murder known as “constructive murder” whereby a fault element is “constructed” out of a set of circumstances. We shall outline at [9.130] how this particular category of murder has been very difficult to justify in terms of a presumption of a subjective fault element for serious crimes. Intention to kill [9.115] An intention to kill satisfies the fault element for murder in all jurisdictions. This element is set out in legislation in all jurisdictions, 122 apart from South Australia and Victoria where the common law holds sway to the same effect. 123 In Chapter 3 at [3.180], we set out that intention in relation to the results or consequences of conduct requires the prosecution to 118 119 120 121 122 123

Royall v The Queen (1991) 172 CLR 378 at 416 per Deane and Dawson JJ, at 428–429 per Toohey and Gaudron JJ. Criminal Code (Cth), s 5.4(1), (2); Criminal Code (ACT), s 20(1), (2); Criminal Code (NT), s 43AK(1), (2); Criminal Law Consolidation Act 1935 (SA), s 21. Crimes Act 1900 (NSW), s 4A. Plomp v The Queen (1963) 110 CLR 234. Crimes Act 1900 (ACT), s 12(1)(a); Crimes Act 1900 (NSW), s 18(1)(a); Criminal Code (NT), s 156(1)(c); Criminal Code (Qld), s 302(1)(a); Criminal Code (Tas), s 157(1)(a); Criminal Code (WA), s 279(1)(a). R v Crabbe (1985) 156 CLR 464. [9.115]

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prove that the accused’s purpose was to bring about the consequences. In relation to murder, this requires proof that the accused intended death to ensue from the conduct. 124 This is sometimes referred to as specific intent. 125 However, the prosecution need not prove the accused intended the exact mode of death. 126 A significant controversy in relation to intention has been the problematic distinction between “direct” and “oblique” intention: see Chapter 3 at [3.185]. Brennan J in He Kaw Teh v The Queen defined intention, in its narrow sense, as a decision to bring about a particular result. 127 However, the English courts developed a broader approach to intention—oblique intent—to encompass a person’s awareness or belief that particular consequences are virtually certain to occur. This approach overlaps with the concept of recklessness and may be explained by the fact that the fault element for murder in England is restricted to an intention to kill or to cause grievous bodily harm and does not include a separate category for recklessness. 128 The scope of oblique intention in England has since been restricted to a high degree of foresight. The High Court of Australia has yet to comprehensively define the meaning of intention for the purpose of murder, though the Model Criminal Code approach applies in the federal jurisdiction. The Australian Capital Territory and the Northern Territory define intention in relation to results as including both direct and oblique intention: “A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events”. 129 The doctrine of transferred intention applies to the situation where an accused intends to kill a certain person and commits the required physical elements for murder, but kills another. In such a situation, the accused is still liable for the death of the person killed: see Chapter 3, [3.190]. Intention to inflict serious bodily harm [9.120] In all jurisdictions, the fault element for murder includes an intention to inflict some

form of serious bodily harm. 130 In New South Wales, Queensland and at common law, the term “grievous bodily harm” is used. In the Northern Territory and the Australian Capital Territory, the term used is “serious harm”, and in Western Australia and in Tasmania, an intention to cause “bodily harm” is sufficient where the accused knows either that the injury is likely to endanger life or that death is likely to be caused, respectively. What is meant by “grievous bodily harm” varies amongst the jurisdictions. At common law, it has been interpreted as meaning “really serious bodily injury”. 131 Section 4(1) of the Crimes Act 1900 (NSW) has an inclusive definition of the term in that it is defined as including “any permanent or serious disfiguring of the person”. In the Northern Territory, “serious harm” is defined as “any harm (including the cumulative effect of more than one harm) that endangers, or is likely to endanger, a person’s life or that is, or is likely to be, significant and 124 125 126 127 128

131

La Fontaine v The Queen (1976) 136 CLR 62; R v Crabbe (1985) 156 CLR 464. He Kaw Teh v The Queen (1985) 157 CLR 523 at 569–570 per Brennan J. R v Demirian [1989] VR 97; R v Willmot (No 2) [1985] 2 Qd R 413 at 415 per Campbell J. He Kaw Teh v The Queen (1985) 157 CLR 523 at 569 per Brennan J. See A Ashworth and J Horder, Principles of Criminal Law (7th ed, Oxford: Oxford University Press, 2013) pp 175ff, reviewing the arguments for extending English law to include some forms of reckless killings. Criminal Code (Cth), s 5.2; Criminal Code (ACT), s 18(2); Criminal Code (NT), s 43AI(2). Crimes Act 1900 (NSW), s 18(1)(a); Criminal Code (NT), s 156(1)(c); Criminal Code (Qld), s 302(1)(a); Criminal Code (Tas), s 157(1)(b); Criminal Code (WA), s 279(1)(b); Pemble v The Queen (1971) 124 CLR 107. Until 2009, the Australian Capital Territory fault element for murder did not extend to intention to inflict serious bodily injury. To promote consistency of approach, the Crimes (Murder) Act 2009 (ACT) added the fault element of intending to cause serious harm to any person: see Crimes Act 1900 (ACT), s 12(1)(c). DPP v Smith [1961] AC 290 at 334 per Viscount Kilmuir LC; Pemble v The Queen (1971) 124 CLR 107.

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longstanding”. 132 In Queensland, “grievous bodily harm” is defined as “any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health”. 133 Section 1 of the Criminal Code (Qld) extends the definition within that jurisdiction to include “the loss of a distinct part or an organ of the body, or serious disfigurement”. It is up to the jury to interpret whether the harm intended amounted to grievous bodily harm. 134 For the crime of murder, the Criminal Codes of Tasmania and Western Australia refer to “bodily harm” and “bodily injury” respectively rather than “grievous bodily harm”. 135 The term is defined in Western Australia as “any bodily injury which interferes with health or comfort”. 136 However, there is an added requirement that the bodily harm be “of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person”. 137 In Tasmania, the accused must have known that the bodily harm was “likely to cause death in the circumstances”. 138 In 1991, the Law Reform Commission of Victoria called for the abolition of the category of murder based on intent to do grievous bodily harm. 139 This was on the basis that there is a significant difference between the moral blameworthiness of someone who intends to kill and someone who intends to do serious injury but does not intend or foresee death. The Commission also pointed out that the outcome of cases based on grievous bodily harm might be arbitrary, given that it is up to the jury to decide whether the harm intended amounted to grievous bodily harm: “One jury might conclude, for example, that the intention of putting a pillow over someone’s mouth in order to render the victim unconscious amounts to an intent to do grievous bodily harm. Another jury might conclude on exactly the same facts, that it does not.” 140

The Law Reform Commission of Victoria proposed that such circumstances should be seen as manslaughter rather than murder. The inclusion of this fault element for murder also troubled Lord Edmund-Davies in R v Cunningham, when he stated: “I find it passing strange that a person can be convicted of murder if death results from, say, his [or her] intentional breaking of another’s arm, an action which, while undoubtedly involving the infliction of ‘really serious harm’ and, as such, calling for severe punishment, would in most cases be unlikely to kill.” 141

The definitions of “grievous bodily harm” or “bodily harm” in the Code jurisdictions do go some way in alleviating Lord Edmund-Davies’ concern, because they include the requirement for the likelihood of the injury endangering life. This was the view of the Law Reform Commission of Western Australia, which accepted that an intention to cause bodily injury likely to endanger life should be sufficient to constitute the fault element for murder. 142 A broken arm would not appear to fall within this particular definition, though such an injury may be seriously life-threatening if the victim is elderly or very frail. In this sense, what 132 133 134 135 136 137 138 139 140 141 142

Criminal Code (NT), s 1. Criminal Code (Qld), s 1; R v Lobston [1983] 2 Qd R 720 at 721 per Douglas J. R v Watson [1987] 1 Qd R 440 at 458 per Dowsett J; R v Miller [1951] VLR 346. Criminal Code (Tas), s 157(1)(b); Criminal Code (WA), s 279(1)(b). Criminal Code (WA), s 1(1). Criminal Code (WA), s 279(1)(b). Criminal Code (Tas), s 157(1)(b). Law Reform Commission of Victoria, Homicide, Report No 40 (1991) pp 53–56. Law Reform Commission of Victoria, Homicide, Report No 40 (1991) p 54. R v Cunningham [1982] AC 566 at 582–583. Law Reform Commission of Western Australia, Review of the Law of Homicide, Final Report (Sept 2007) p 48. [9.120]

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constitutes “serious injury” is context-dependent. For example, a common cold may amount to “serious injury” where the person infected is suffering from AIDS and has a dysfunctional immune system. 143 The MCCOC has recommended that this form of fault element for murder be abolished: “The serious harm category of murder diminishes [the] intent-based approach by allowing something less than an intention to kill to constitute murder. The Committee’s view is that murder should in some way be linked to death as the contemplated harm rather than merely serious harm.” 144

The MCCOC suggests that killing in such circumstances should be viewed as manslaughter rather than murder. Several other law reform bodies have also suggested the abolition of an intention to cause grievous bodily harm as a separate fault element for murder. 145 The Australian Capital Territory, New South Wales, South Australia, Tasmania and Victoria include recklessness as to causing death within the fault elements for murder. 146 The test is whether the accused knew that death was a probable (as opposed to possible) consequence of his or her conduct. 147 This test is subjective in that it must be proved that the accused, rather than an “ordinary” or “reasonable” person, knew of the likelihood of causing death. 148 This is despite the fact that the Criminal Code (Tas) uses the words “ought to have known”. 149 In Chapter 3, it was pointed out that this subjective test for recklessness differs from the English approach taken in Commissioner of Police of the Metropolis v Caldwell 150 which was overturned by R v G: 151 see Chapter 3, [3.220]. There are no statutory provisions in the Queensland, Northern Territory and Western Australian Criminal Codes dealing with recklessness as a fault element for murder. The Law Reform Commission of Western Australia rejected adopting recklessness as a separate fault element for murder, arguing that an intention to cause bodily injury that is likely to endanger life encompasses the most culpable type of scenarios involving recklessness. 152 If intention is defined broadly in the “oblique” sense to include awareness of likelihood, then the Criminal Code jurisdictions may indeed have a fault element that overlaps somewhat with the notion of recklessness. In Vallance v The Queen 153 a minority of the High Court took this broader approach to the term “intentional” in s 13 of the Criminal Code (Tas). However, as previously 143 144 145

146 147 148

149 150 151 152 153

S Bronitt, “Spreading Disease and the Criminal Law” [1994] Criminal Law Review 21 at 28. Model Criminal Code Officers Committee, Chapter 5—Fatal Offences Against the Person, Discussion Paper (June 1998) p 53. The Criminal Law and Penal Methods Reform Committee of South Australia (Mitchell Committee), Fourth Report: The Substantive Criminal Law (1977); Victorian Law Reform Commissioner, Criminal Procedure: Miscellaneous Reforms, Working Paper No 1 (1974); House of Lords Select Committee, Report of the Select Committee on Murder and Life Imprisonment (1989); Law Reform Commission of Canada, Homicide, Working Paper No 33 (1984) pp 85–86. Crimes Act 1900 (ACT), s 12(1)(b); Crimes Act 1900 (NSW), s 18(1)(a); Criminal Code (Tas), s 157(1)(b), (1)(c); R v Crabbe (1985) 156 CLR 464. R v Crabbe (1985) 156 CLR 464. See A Hemming, “Reasserting the Place of Objective Tests in Criminal Responsibility: Ending the Supremacy of Subjective Tests” (2011) 13 University of Notre Dame Australia Law Review 69. Andrew Hemming argues that there should instead be an objective test for recklessness as the underlying fault element, based on the natural and probable consequences test adopted in DPP v Smith [1961] AC 290. Boughey v The Queen (1986) 161 CLR 10 at 28–29 per Mason, Wilson and Deane JJ. [1982] AC 341. [2004] 1 AC 1034. Law Reform Commission of Western Australia, Review of the Law of Homicide, Final Report (Sept 2007) p 73. (1961) 108 CLR 56.

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stated, the High Court has yet to provide a definition for “intention” and it would seem that at present, recklessness is not sufficient in Queensland, the Northern Territory and Western Australia. 154 In the Australian Capital Territory and New South Wales, the statutory references to reckless murder refer to “reckless indifference to the probability of causing the death of any person” and “reckless indifference to human life”, respectively. 155 In Chapter 3 at [3.210], we outlined how the High Court in R v Crabbe was of the opinion that it was unnecessary that the accused’s knowledge of the probable consequences of his or her actions be accompanied by indifference. 156 The Federal Court has held that, in relation to the Australian Capital Territory position, the common law should apply and therefore it is immaterial whether or not the accused was indifferent to the risk. 157 It is unclear, however, whether the common law applies to the New South Wales provision, given that Mason CJ pointed out in Royall v The Queen that s 18 departs from the common law in not having a category of awareness of the probability of grievous bodily harm. 158 Ian Leader-Elliott argued that the common law should apply to the New South Wales provision, although this “flies in the face of conventional definitions of murder”. 159 The exact meaning of “knowledge that death was a probable consequence” is unclear. The risk of death must be more than a mere possibility, 160 but the courts have been loath to apply any form of statistical analysis to the notion of probability. In Boughey v The Queen, 161 it was argued that the words “likely to cause death” in s 157(1)(c) of the Criminal Code (Tas) meant that the likelihood of death was more likely than not. The High Court rejected this analysis and instead stated that the risk had to be “substantial” or “real and not remote”. The Court then went on to say that “likely” and “a good chance” were synonyms for “probable”. It could be argued that the words “likely” or “a good chance” lower the standard of the test somewhat. In the case of R v Faure, Brooking JA, with whom Winneke P and Ormiston JA agreed, stated that probability should not be approached in terms of “an ‘odds on’ chance”. 162 Faure’s case concerned a game of Russian roulette, where the accused claimed that his girlfriend had agreed that they would fire no more than two shots at each other from a six-shot revolver. The cylinder was spun each time before the trigger was pulled. The victim pulled the trigger first, then the accused, followed by the victim again. The fourth time, when the accused fired, the revolver discharged and the victim was killed. Brooking JA stated that the actual probability of the gun discharging was 671/1,296. 163 However, he took the view that the jury should be directed not in terms of percentages but that “probable” meant a substantial or real and not remote chance, whether or not it was more than 50%. 164 In ordering a retrial,

154 155 156 157 158 159 160 161 162 163 164

See, further, IG Campbell, “Recklessness in Intentional Murder Under the Australian Codes” (1986) 10 Criminal Law Journal 3. Crimes Act 1900 (ACT), s 12(1)(b); Crimes Act 1900 (NSW), s 18(1)(a). R v Crabbe (1985) 156 CLR 464 at 470. R v Brown (1987) 78 ALR 368. Royall v The Queen (1991) 172 CLR 378 at 395. I Leader-Elliott, “Recklessness in Murder” (1981) 5 Criminal Law Journal 84 at 84. R v Crabbe (1985) 156 CLR 464 at 469. (1986) 161 CLR 10. R v Faure [1999] 2 VR 537 at 547. R v Faure [1999] 2 VR 537 at 547. R v Faure [1999] 2 VR 537 at 547, 551. [9.120]

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Brooking JA commented that he would not expect a jury, if they believed the game took place, to have any difficulty in concluding that the accused’s act was dangerous in the sense necessary for reckless murder. 165 More recently, in Darkan v The Queen, 166 the High Court agreed that the term “a probable consequence”, as used in ss 8 and 9 of the Criminal Code (Qld) in relation to parties to offences, meant something more than “a real possibility”. Gleeson CJ, Gummow, Heydon and Crennan JJ referred instead to the term as one that implied “probable in the sense that it could well have happened”. 167 Whether this will amount to a workable definition in relation to recklessness as a fault element for murder remains to be seen. As explored in Chapter 3 at [3.215], the High Court in Crabbe’s case has relegated wilful blindness to an evidential role and it falls short of the fault element required for reckless murder. 168 Recklessness as to inflicting grievous bodily harm [9.125] Under the common law which applies in South Australia and Victoria, it is murder if

the accused killed another, knowing that his or her conduct would probably cause grievous bodily harm. 169 Reckless murder was justified in Crabbe’s case, on the basis that the “conduct of a person who does an act, knowing that death or grievous bodily harm is a probable consequence … [is] just as blameworthy as the conduct of one who does an act intended to kill or do grievous bodily harm”. 170 However, one can argue that knowing that grievous bodily harm will probably result from conduct is not in the same category of blameworthiness as intending to kill. The MCCOC has recommended this particular fault element be abolished and that a person who kills in such circumstances be convicted of manslaughter. 171

Constructive Murder [9.130] The other distinctive feature of the law of murder in Australia is the statutory

preservation of the “felony murder” rule—a form of constructive murder—in most jurisdictions. As we shall see below, felony murder was abolished more than 50 years ago by the United Kingdom Parliament, and declared by the Canadian Supreme Court 20 years ago to be in violation of the principle of “fundamental justice” in the Canadian Charter of Rights and Freedoms. However, all Australian jurisdictions, apart from the Australian Capital Territory and the Northern Territory, recognise a category of “constructive” murder. 172 This applies where a subjective fault element of intention or recklessness to kill or cause grievous bodily harm is not present, but the circumstances are such that a fault element is “constructed” or imputed to the accused. In general, this category of murder applies where the accused kills the victim during the course of a crime that endangers human life, or, in South Australia and 165 166 167 168 169 170 171 172

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R v Faure [1999] 2 VR 537 at 547, 552. (2006) 227 CLR 373. Darkan v The Queen (2006) 227 CLR 373 at 298. R v Crabbe (1985) 156 CLR 464 at 470–471. R v Crabbe (1985) 156 CLR 464. R v Crabbe (1985) 156 CLR 464 at 469. Model Criminal Code Officers Committee, Chapter 5—Fatal Offences Against the Person, Discussion Paper (June 1998) p 59. See A Hemming, “In Search of a Model Code Provision for Murder in Australia” (2010) 34(2) Criminal Law Journal 81 at 81. Andrew Hemming is critical of the removal of constructive murder from the Criminal Code (NT) in 2006. [9.125]

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Victoria, while resisting lawful arrest. 173 Table 3 sets out the differing requirements for this rule. Table 3 Constructive murder Jurisdiction and relevant law NSW Crimes Act 1900 Qld Criminal Code

SA Criminal Law Consolidation Act 1935, s 12A Tas Criminal Code

Vic Crimes Act 1958 WA Criminal Code

Commission of certain offences in the course or furtherance of a crime, punishable by penal servitude for life or for 25 years (s 18(1)(a)) act done in the prosecution of an unlawful purpose, where the act is of such a nature as to be likely to endanger human life (s 302(1)(b)) administering any stupefying or overpowering thing/wilfully stopping the breath of any person for the purpose of facilitating either the commission of a crime which is subject to arrest without warrant, or the flight of an offender who has committed, or attempted to commit any such crime (s 302(1)(d), (e)) an intentional act of violence while acting in the course or furtherance of a major indictable offence (except abortion) punishable by imprisonment for 10 years or more

any unlawful act or omission which the accused knew or ought to have known to be likely to cause death in the circumstances (s 157(1)(e)) administering any stupefying thing/wilfully stopping the breath of any person for the purpose of facilitating the commission of, or the flight of someone who has committed or attempted piracy, murder, escape or rescue from prison or lawful custody, resisting lawful apprehension, rape, forcible abduction, robbery, burglary and arson (s 157(1)(d) – (f), (2)) act of violence done in the course or furtherance of a crime the necessary elements of which include violence and which is punishable by imprisonment for life or for 10 years or more (s 3A) act done in the prosecution of an unlawful purpose, where the act is of such a nature as to be likely to endanger human life (s 279(1)(c))

The prime physical element for constructive murder is similar to that for murder and manslaughter in that the accused must have caused the death of the victim. However, there are further requirements in that the victim’s death must be connected in some way to the commission of a specified offence. In relation to the connection between the victim’s death and the commission of an offence, the law in South Australia and Victoria requires that the death be caused “in the course or furtherance of” a specified offence. 174 The New South Wales provision appears to be broader, requiring that the act causing death be done “in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years”. 175 However, in Mraz v The Queen, Williams, Webb and Taylor JJ required that there be more than just a temporal connection in that the act causing death should be “associated with or done in the furtherance of the commission of” of the commission of the offence. 176 A temporal connection alone also seems to be insufficient in the Code jurisdictions. The Queensland and Western Australian provisions use the expression “in the prosecution of” an

173 174 175 176

R v Ryan and Walker [1966] VR 553. Criminal Law Consolidation Act 1935 (SA), s 12A; Crimes Act 1958 (Vic), s 3A. Crimes Act 1900 (NSW), s 18(1)(a). Mraz v The Queen (1955) 93 CLR 493 at 505. [9.130]

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unlawful purpose. 177 In Tasmania, the act causing death must have been committed “for the purpose of facilitating the commission of” the specified offence. 178 The specified offences vary between jurisdictions as set out in Table 3. In South Australia, the conduct causing death must be violent or dangerous. 179 In Victoria, the words used in s 3A of the Crimes Act 1958 (Vic) are an offence “the necessary elements of which include violence”. The meaning of this expression was considered by the Full Court of the Supreme Court of Victoria in R v Butcher. 180 In that case, the accused had waved a knife at the victim whilst demanding money. The accused claimed the victim was stabbed when he ran at the accused. The victim died and the prosecution argued that this was a case of constructive murder in that the death occurred in the course of an armed robbery that was a crime, the necessary elements of which include violence. The accused argued, first, that there was no act of violence as he had only intended to scare the victim and, secondly, because robbery could be made out by a threat of force, it could not be said that violence was an essential element. The Court held that armed robbery was a crime, the necessary elements of which include violence for the purpose of s 3A. It reasoned that at common law “violence” had not been restricted to physical force, but included threats of force—and that therefore robbery, in having as its element a threat or use of force, must be a crime of violence. There is no equivalent requirement that the offence be violent in other jurisdictions. Subparagraph 18(1)(a) of the Crimes Act 1900 (NSW) states that the offence must be a crime punishable by life imprisonment or a maximum of 25 years in prison. Thus, in New South Wales, only a small number of crimes will be relevant to constructive murder. In Queensland and Western Australia, the act performed in the prosecution of an unlawful purpose must be of a nature likely to endanger human life. 181 In Tasmania, s 157(1)(d), (2) of the Criminal Code (Tas) states that the accused must have intended to inflict grievous bodily harm for the purpose of facilitating crimes such as murder, rape and robbery. In South Australia and Victoria, the common law rule that it is murder to cause death by a violent act whilst resisting arrest still remains. 182 The Victorian Supreme Court set out the rule as follows: “[T]he killing of a person by the intentional use of force, knowingly to prevent such a person from making an arrest which he [or she] is authorised by common law to make, is murder even if the person using the force did not intend to kill or do grievous bodily harm, and even if he [or she] did not foresee that he [or she] was likely to do so.” 183

The justification for dispensing with the subjective fault element for murder in the circumstances outlined is said to be that the blameworthiness accompanying the killing is supplied by the foundational offence, as illustrated in Mraz v The Queen: “If upon the evidence the jury was prepared to conclude that the crime of rape had been committed and that the acts of the appellant associated with or done in the furtherance of his purpose had caused the death, it was unnecessary that they should embark upon an independent inquiry to ascertain whether those acts were malicious. The very fact that they were so associated or so done established beyond question that they were done ‘of malice’. On the other hand unless the jury was satisfied that 177 178 179 180 181 182 183

Criminal Code (Qld), s 302(1)(b); Criminal Code (WA), s 279(1)(c). Criminal Code (Tas), s 157(1)(d). R v Van Beelen (1973) 4 SASR 353; Ryan v The Queen (1967) 121 CLR 205; R v Kageregere [2011] SASC 154. [1986] VR 43. Criminal Code (Qld), s 302(1)(b); Criminal Code (WA), s 279(1)(c). R v Ryan and Walker [1966] VR 553. R v Ryan and Walker [1966] VR 553 at 564.

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rape had taken place the appellant, as the learned trial judge pointed out, should have been acquitted for, in those circumstances, there was no evidence of any act of the accused amounting either to murder or manslaughter.” 184

There is some reason to believe that members of the general community view killing during the course of a serious offence as the most serious form of homicide. Barry Mitchell writes that the results of 822 interviews with adults conducted in England and Wales indicated that 53% rated the scenario of a killing which occurred during a burglary as the most serious form of homicide. 185 The most common reason for this rating was the fact that the killer was already committing a crime, with more than four in 10 remarking that the killer should not have been in the victim’s home in the first place. In follow-up interviews, participants did not lessen their criticism of the burglar when it was emphasised that he had only lashed out in a panic. 186 Despite public perceptions of this form of homicide, there has been a vast amount of criticism of constructive murder. 187 Constructive murder in the guise of the common law felony murder rule was repealed in England by s 1(2) of the Homicide Act 1957 (UK), following a recommendation by the Royal Commission on Capital Punishment. 188 Constructive murder provisions in the Canadian Criminal Code have also been struck down by the Supreme Court of Canada as unconstitutional. 189 In Vaillancourt v The Queen, Lamer J, writing for himself and three other judges, noted that murder is a serious crime with a corresponding “special stigma”. 190 He further stated: “I am presently of the view that it is a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight.” 191

This notion that constructive murder offends the fundamental principle of justice—that serious crimes require a subjective fault element—forms the basis for much criticism of the doctrine. The MCCOC echoed other law reform committees’ calls for its abolition. 192 The MCCOC has stated that: “The lack of intention or other culpable state of mind for murder on behalf of the person committing the felony or seeking to escape underlies the inappropriateness of this doctrine. To equate accidental killings with murder is contrary to the Committee’s fault-based approach to determining culpability. In as far as the law of fatal offences is concerned, persons who kill while committing a felony or attempting to escape should be treated in the same way as any other person. If they intended to kill or 184 185 186

187

188 189 190 191 192

Mraz v The Queen (1955) 93 CLR 493 at 505 per Williams, Webb and Taylor JJ. B Mitchell, “Public Perceptions of Homicide and Criminal Justice” (1998) 38(3) British Journal of Criminology 453 at 459. B Mitchell, “Further Evidence of the Relationship Between Legal and Public Opinion on the Law of Homicide” [2000] Criminal Law Review 814 at 824. For a cogent argument justifying the retention of this category of offence, against the tide of academic opinion, see P Bindon, “The Case for Felony Murder” (2006) 9(2) Flinders Journal of Law Reform 149. See, for example, D Lanham, “Felony Murder—Ancient and Modern” (1983) 7 Criminal Law Journal 90; J Willis, “Felony Murder at Common Law in Australia”(1977) 1 Criminal Law Journal 231; Law Reform Commission of Western Australia, Review of the Law of Homicide, Final Report (Sept 2007) p 57–63. Great Britain. Royal Commission on Capital Punishment, Royal Commission on Capital Punishment 1949–1953 (1953) [111]. Vaillancourt v The Queen [1987] 2 SCR 636; R v Martineau (1990) 58 CCC (3d) 353. See also I Grant, “The Impact of Vaillancourt v The Queen on Canadian Criminal Law” (1990) 28 (2) Alberta Law Review 443. Vaillancourt v The Queen [1987] 2 SCR 636 at 653. Vaillancourt v The Queen [1987] 2 SCR 636 at 654. Model Criminal Code Officers Committee, Chapter 5—Fatal Offences Against the Person, Discussion Paper (1998), p 65; Law Reform Commission of Victoria, Homicide, Report 40 (1991); The Criminal Law and Penal Methods Reform Committee of South Australia (the Mitchell Committee), The Substantive Criminal Law, Fourth Report (1977). [9.130]

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are reckless as to death they will be convicted of murder pursuant to the existing rules regarding intentional and reckless killing. In the absence of these circumstances—where the death is truly accidental—murder should not be an issue. In these cases, manslaughter by gross negligence may be an appropriate charge but in any event the defendant can be prosecuted for the offence he or she intended to commit.” 193

Manslaughter [9.135] Where an unlawful killing does not amount to murder, it may nevertheless constitute

manslaughter. 194 Traditionally, the two main categories of manslaughter have been divided into “voluntary” and “involuntary” manslaughter. “Voluntary” manslaughter here refers to the situation where an accused commits murder but is convicted of manslaughter, due to mitigating circumstances such as provocation, diminished responsibility, using excessive force in self-defence, or in pursuance of a suicide pact. “Involuntary” manslaughter refers to unlawful killing where the accused caused the death of the victim but did not possess the relevant fault element for murder. The terms “voluntary” and “involuntary” are highly misleading in regard to manslaughter. As outlined in Chapter 3 at [3.105], the term “involuntary” generally refers to conduct that is accidental or a reflex action because it is “unwilled”. This is not the case with involuntary manslaughter. We have already outlined those defences to murder that may lead to a finding of manslaughter: see Chapter 5. Labelling is critical to homicide charges, and juries may struggle with applying either the label of murder or manslaughter to some categories of killings. Killings that are committed in self-defence which involve excessive or unjustified force are a case in point. This section deals with two main categories of manslaughter: unlawful and dangerous act manslaughter, and negligent manslaughter. A third category, battery manslaughter, was abolished by the High Court in Wilson v The Queen. 195 Manslaughter at common law is broadly the same as under most of the Criminal Codes, which define manslaughter as unlawful killing not amounting to murder. 196 The Northern Territory, however, defines manslaughter as conduct causing death where the accused is reckless or negligent as to causing death. 197 The Northern Territory does not have a category of unlawful and dangerous act manslaughter. The two categories of unlawful and dangerous act manslaughter and negligent manslaughter may overlap. The accused may be charged with the one generic offence of manslaughter and then it is for the prosecution to produce evidence to show liability falling into one or both categories. Unlawful and dangerous act manslaughter [9.140] At common law, an unlawful and dangerous act causing death will render an accused

liable for manslaughter. 198 As noted by French CJ in Burns v The Queen 199 “[t]he requisite level of risk for the purposes of the common law in Australia is higher than that applied in the United Kingdom. There, liability for unlawful and dangerous act manslaughter requires ‘an act 193

195 196 197 198 199

Model Criminal Code Officers Committee, Chapter 5—Fatal Offences Against the Person, Discussion Paper (June 1998) p 63. Crimes Act 1900 (ACT), s 15(1); Crimes Act 1900 (NSW), s 18(1)(b); Criminal Code (NT), s 160; Criminal Code (Qld), s 303; Criminal Code (Tas), s 159; Criminal Code (WA), s 280. The common law exists in South Australia and Victoria. Wilson v The Queen (1992) 174 CLR 313 at 333–334. Criminal Code (Qld), s 303; Criminal Code (Tas), s 159; Criminal Code (WA), s 280. Criminal Code (NT), s 160. R v Larkin [1943] 1 All ER 217 at 219 per Humphreys J; Bedkinov (1997) 95 A Crim R 200. (2012) 246 CLR 334.

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likely to injure another person’.” 200 In comparison, in Australia, French CJ stated that “[a]n unlawful act for the purposes of unlawful and dangerous act manslaughter is one which is a breach of the criminal law”. 201 In practice, it is generally an assault leading to death that gives rise to liability under this head. 202 As French CJ in Burns went on to note: “The question whether an act is ‘dangerous’ involves an assessment of risk in the sense of an ex ante probability that the act will cause serious injury to a person. If no causal pathway with a requisite level of probability can be identified, then the act is not able to be characterised as dangerous.” 203

The early common law provided that, for a conviction of manslaughter, all that was required was that the accused caused the death of another by an unlawful act. In that respect it was similar to the felony murder rule, except that the unlawful act did not have to be a felony. The unlawful act doctrine may well have originated as a constructive form of liability. 204 However, in the 19th century, the English courts restricted its operation to unlawful acts causing death which were also dangerous in the sense of “likely to injure another person”. 205 The existence of this category of manslaughter by an unlawful and dangerous act was affirmed in England by the House of Lords in DPP v Newbury & Jones. 206 There is no separate category of unlawful and dangerous act manslaughter set out in the Criminal Codes. However, the provisions relating to unlawful killing in Queensland, Tasmania and Western Australia have been interpreted as including a class of manslaughter similar to that of unlawful and dangerous act manslaughter at common law 207—although the Western Australian Court of Appeal has made it clear that the relevant Code provision must be interpreted without resort to any presumption that it reflects the common law. 208 In Queensland and Western Australia, it is unlawful to kill any person unless the killing is “authorised or justified or excused by law”. 209 Subparagraph 156(2)(c) of the Criminal Code (Tas) states that it is culpable homicide to kill “by any unlawful act”. This has been interpreted along with s 159(1) as meaning that manslaughter arises where death is caused by an unlawful and dangerous act. 210 The common law tests for unlawfulness and dangerousness are relevant in this regard. 211 Section 31 of the Criminal Code (NT) appears to exclude this category of manslaughter. Instead, s 160 of that Code defines manslaughter as occurring where the person “is reckless or negligent as to causing” death. As with all unlawful killings, the prosecution must prove beyond reasonable doubt that the accused’s act caused the victim’s death: see

200 201 202 203 204 205 206 207 208 209 210 211

Burns v The Queen (2012) 246 CLR 334 at 340. Burns v The Queen (2012) 246 CLR 334 at 339. For example, R v Wills [1983] 2 VR 201; R v Holzer [1968] VR 481; R v Simpson (1959) 76 WN (NSW) 589; R v Larkin [1943] KB 174; R v Jarmain [1945] 2 All ER 613: Kwaku Mensah v The Queen [1946] AC 83. Burns v The Queen (2012) 246 CLR 334 at 340. Wilson v The Queen (1992) 174 CLR 313 at 319–323 per Mason CJ, Toohey, Gaudron and McHugh JJ. R v Larkin [1943] KB 174; R v Church [1966] 1 QB 59. DPP v Newbury & Jones [1977] AC 500[1977] AC 500. Pemble v The Queen (1971) 124 CLR 107 at 122 per Barwick CJ; Boughey v The Queen (1986) 161 CLR 10 at 40 per Brennan J; R v Van Den Bend (1994) 170 CLR 137. Roberts v Western Australia (2007) 34 WAR 1. An application for special leave was refused by the High Court: Roberts v State of Western Australia [2008] HCATrans 297. Criminal Code (Qld), s 291; Criminal Code (WA), s 268. R v Phillips (1971) 45 ALJR 467; R v Rau [1972] Tas SR 59; R v Davis [1955] Tas SR 52 at 55 per Crisp J; R v McCallum [1969] Tas SR 73. Boughey v The Queen (1986) 161 CLR 10 at 34, 40 per Brennan J; R v Rau [1972] Tas SR 59; R v McCallum [1969] Tas SR 73; Murray v The Queen [1962] Tas SR 170. [9.140]

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[9.40], and Chapter 3, [3.110]. This question generally precedes the exploration of whether or not the accused’s act was unlawful and dangerous.

Unlawful assault causing death: “One Punch” laws [9.145] In 2008, after a number of “one-punch” homicides resulted in acquittals on the basis of accidental death, Western Australia introduced a specific offence of unlawful assault causing death. 212 New South Wales, Queensland, the Northern Territory and Victoria subsequently introduced similar specific offences. 213 The Western Australian provision sets out that a person will be held responsible even if the death was not intended or reasonably foreseeable. The penalty is up to 10 years’ imprisonment. The then Western Australian Attorney-General, James McGinty, stated that the purpose of the provision was to ensure that the accused in “one-punch homicide cases” would not be able to claim that the death was an accident and to “[reinforce] community expectations that violent attacks, such as a blow to the head, are not acceptable behaviour”. 214 These “one punch” laws have been criticised as unnecessary 215 and as having the potential to weaken prosecutions and sentences for a range of intentional killings, including deaths arising from intimate partner violence. 216 However, Andrew Hemming argues that, if appropriately worded, a “third-tier homicide offence” may provide an alternative verdict in circumstances where manslaughter cannot be proved beyond reasonable doubt. 217

Unlawful act [9.150] The act must be unlawful in the sense that it is a criminal act rather than merely a civil

wrong. 218 As stated above, generally this has been an assault, but other offences which have been treated as unlawful for the purpose of this head of manslaughter include: • attempted assault; 219 • unlawful wounding; 220 212

219 220

Section 281 of the Criminal Code (WA) was introduced by the Criminal Law Amendment (Homicide) Act 2008 (WA). Crimes Act 1900 (NSW), ss 25A – 25B; Criminal Code (Qld), s 314A; Criminal Code (NT), s 161A; Crimes Act 1958 (Vic), s 4A. Criminal Law Amendment (Homicide) Bill 2008, Hansard, Legislative Assembly of Western Australia, Second Reading Speech, 19 March 2008, p 1210. For a review of the arguments relating to the reduced culpability of this category of homicide, see B Mitchell, “More Thoughts About Unlawful And Dangerous Act Manslaughter and the One-Punch Killer” (2009) 7 Criminal Law Review 502. L Burke, “One Punch Can Start Moral Panic: An Analysis of News Items about Fatal Assaults in Queensland Between 23 September 2006 and 28 February 2009” (2010) 10(1) Queensland University of Technology Law and Justice Journal 87. J Quilter, “The Thomas Kelly case: Why a ‘One Punch Law’ is Not the Answer” (2014) 38(1) Criminal Law Journal 16; J Quilter, “One-punch Laws, Mandatory Minimums and ‘Alcohol-Fuelled’ as an Aggravating Factor: Implications for NSW Criminal Law” (2014) 3(1) International Journal for Crime, Justice and Social Democracy 81; S Taylor, “The Implications of Uncertainty in the Law of Criminal Causation for the One-Punch Homicide Offence in Western Australia” (2015) 38(2) University of Western Australia Law Review 62. A Hemming, “Please Mind The Gap: An Assessment of Fatal ‘One Punch’ Provisions in Australia” (2015) 39(3) Criminal Law Journal 130 at 147. Pemble v The Queen (1971) 124 CLR 107 at 122 per Barwick CJ; R v Haywood [1971] VR 755; R v Bush [1970] 3 NSWR 500 at 504; R v Davis [1955] Tas SR 52; R v Lamb [1967] 2 QB 981; R v Nghia Trong Nguyen (Ruling No 2) [2010] VSC 442 at [19] per Lasry J; Burns v The Queen (2012) 246 CLR 334 at 339 per French CJ. Pemble v The Queen (1971) 124 CLR 107 at 123, 137. R v McCallum [1969] Tas SR 73.

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213 214

215

216

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• attempted robbery; 221 • burglary; 222 • arson; 223 • abortion; 224 and • discharging a firearm in a public place. 225 Offences of negligence or carelessness such as dangerous driving have, however, been excluded from the category of unlawful act. In Andrews v DPP, Lord Atkins stated: “There is an obvious difference in the law of manslaughter between doing an unlawful act and doing a lawful act with a degree of carelessness which the Legislature makes criminal. If it were otherwise a man [or woman] who killed another while driving without due care and attention would ex necessitate commit manslaughter.” 226

If a death occurs in such circumstances, it is generally charged as culpable driving or negligent manslaughter. Section 13(2) of the Criminal Law Consolidation Act 1935 (SA) clearly includes manslaughter where “the victim’s death was caused by … use of a motor vehicle”. It is important that the prosecution prove each element of the unlawful act, including the requisite fault element, if required by the offence. In R v Lamb, 227 the accused shot and killed his best friend while fooling around with a revolver. It was conceded that the accused was acting in jest, with no intention to harm the victim. Neither the accused nor the victim understood the operation of the revolver; that is, that a shot may be fired even though the firing chamber may be empty: the chamber rotates as the trigger is pulled. The trial judge was of the opinion that the pulling of the trigger amounted to an unlawful act even though there was no intent to alarm or intent to injure. On appeal, the English Court of Appeal held that there was no evidence of an assault of any kind because there was no intention to commit an assault. The courts have sometimes taken a broad approach to what may be considered unlawful. In R v Cato, 228 the English Court of Appeal appeared to find an act unlawful simply because it was dangerous. In that case, the accused and his friend injected each other a number of times with heroin. Both became very ill and the friend died. The accused was convicted of manslaughter. On appeal, it was argued that there was no unlawful act because the administration of a drug to another with consent did not of itself amount to an offence. The Court of Appeal upheld the accused’s conviction for manslaughter stating that “the unlawful act would be described as injecting the deceased … with a mixture of heroin and water which at the time of the injection and for the purposes of the injection the accused had unlawfully taken into his possession”. 229 This reasoning is difficult to follow given that the possession of the heroin did not cause the death and the actual administration of heroin was not a crime. It was perhaps the fact that the act was dangerous that influenced the court’s finding, though this approach is difficult to reconcile with the requirement that “unlawful” and “dangerous” are distinct requirements. 221 222 223 224 225 226 227 228 229

R v Dawson (1985) 81 Cr App R 150. R v Watson [1989] 1 WLR 684. R v Goodfellow (1986) 83 Cr App R 23. R v Creamer [1966] 1 QB 72. Pemble v The Queen (1971) 124 CLR 107 at 127. Andrews v DPP [1937] AC 576 at 585. R v Lamb [1967] 2 QB 981. R v Cato [1976] 1 WLR 110. R v Cato [1976] 1 WLR 110 at 118 per Lord Widgery. [9.150]

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Another case which shows disparate approaches to the “unlawfulness” element is Pemble v The Queen. 230 In that case, the accused had approached his ex-lover from behind while carrying a sawn-off rifle. The rifle discharged and the victim died of a wound to her head. The accused argued that he had only wanted to frighten the victim and that the rifle had accidentally discharged. The accused was convicted of murder. On appeal to the High Court, the Court held that the trial judge’s direction to the jury had been defective and a majority of three to two judges substituted a verdict of manslaughter. However, those three judges took different views as to what constituted the unlawful act. Barwick CJ categorised the unlawful act as an attempted assault (there was evidence that the victim had not been aware of the gun being pointed at her and so had not been assaulted). 231 Windeyer J agreed with the judgment of Barwick CJ that there should be a verdict of manslaughter, but saw it as manslaughter by gross negligence. 232 McTiernan J stated that the accused had committed the unlawful act of discharging a firearm in a public place. 233 The dissenting judges, Menzies and Owen JJ, held that a new trial should be ordered. They were of the opinion that no unlawful act had occurred, given that the accused had not committed an assault. Given the diversity of opinion in Pemble, it is questionable whether the requirement of unlawfulness is workable. The Law Reform Commission of Victoria has stated: “The requirement of unlawfulness has nothing relevant to add. Dangerousness is the key element here, and it is assessed by an objective test. This head of manslaughter is therefore already based on negligence.” 234

The Commission accordingly suggested merging the two categories of manslaughter into one category of “dangerous act or omission manslaughter”. Thus far, this recommendation has not been taken up.

Dangerous act [9.155] The act must not only be unlawful but also dangerous in order to ground a conviction

for manslaughter under this head. The High Court in Wilson v The Queen laid down the common law test of dangerousness as follows: “In the end the jury [has] to determine whether the [accused’s act in relation to] the deceased was, from the standpoint of a reasonable person, an act carrying with it an appreciable risk of serious injury to the deceased.” 235

This test departs slightly from the test set out by Smith J in the Victorian case of R v Holzer 236 in that “an appreciable risk of really serious injury” has been changed to the lesser standard of “an appreciable risk of serious injury” in Wilson. The majority considered that the inclusion of the qualifying term “really” brought the offence “perilously close to murder”, such as to be likely to cause confusion in the minds of a jury. 237 This lesser standard meant that the

230 231 232 233 234 235 236 237

Pemble v The Queen(1971) 124 CLR 107. Pemble v The Queen (1971) 124 CLR 107 at 122. Pemble v The Queen (1971) 124 CLR 107 at 137–139. Pemble v The Queen (1971) 124 CLR 107 at 127. Law Reform Commission of Victoria, Homicide, Report No 40 (1991) p 113. Wilson v The Queen (1992) 174 CLR 313 at 335 per Mason CJ, Toohey, Gaudron and McHugh JJ. R v Holzer [1968] VR 481 at 482. Wilson v The Queen (1992) 174 CLR 313 at 333.

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pre-existing category of “battery manslaughter”, whereby an accused could be convicted of manslaughter based on an intention to cause some physical injury not merely of a trivial or negligible nature, was no longer necessary. 238 The test for assessing dangerousness is an objective one. The prosecution, therefore, need not prove that the accused knew that the act was dangerous. 239 In R v Wills, Fullagar J stated that it is inappropriate to attach to the reasonable person “anything [that is] personal” to the accused. 240 The majority in Wilson did not go on to define what would amount to “serious injury”. There is a suggestion that psychiatric harm will not be sufficient. 241 The meaning of an “appreciable risk” of serious injury was also not defined in Wilson’s case. What appears to be required is a risk that is significant rather than remote. In Burns v The Queen 242 French CJ explained that “[t]he assessment of risk as ‘appreciable’ is qualitative. The judgment it requires is linked to the judgment of causation.” He went on to state that “it is for the jury to decide whether an unlawful act is dangerous in the sense explained in Wilson”. 243 Negligent manslaughter [9.160] A killing that occurs through gross negligence amounts to manslaughter in all

jurisdictions. 244 The wording differs slightly across jurisdictions, but the general gist of the crime is the same. At common law, the test is whether there was “a great falling short of the standard of care” that a reasonable person would have exercised, involving “such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment”. 245 In the Northern Territory, Queensland and Western Australia, a killing that occurs in breach of a statutory duty to avoid danger or preserve human life will constitute manslaughter if the breach is criminally negligent. The requirement of criminal negligence is not expressly stated in the Codes but has been implied. 246 Subparagraph 156(2)(b) of the Criminal Code (Tas) makes it culpable homicide where there is an omission amounting to “culpable negligence” to perform a duty to preserve human life. In general, negligent manslaughter requires the prosecution to prove that there was: • a duty of care owed by the accused to the victim; and • a breach of the high standard of care required.

Duty of care [9.165] Where the death of a victim is caused by an act of another, the prosecution must

prove that the accused was under a general duty to act in such a way as not to cause harm to 238 239 240 241 242 243 244

245 246

Wilson v The Queen (1992) 174 CLR 313 at 342. Coomer (1989) 40 A Crim R 417; Zikovic (1985) 17 A Crim R 396; R v Wills [1983] VR 201; R v McCallum [1969] Tas SR 73. R v Wills [1983] 2 VR 201 at 214. R v Dawson (1985) 81 Cr App R 150. Burns v The Queen (2012) 246 CLR 334 at 340. Burns v The Queen (2012) 246 CLR 334 at 341. Crimes Act 1900 (ACT), s 15; Crimes Act 1900 (NSW), s 18(1)(b); Criminal Code (NT), s 160(c); Criminal Code (Qld), s 303; Criminal Code (Tas), s 156(2)(b); Criminal Code (WA), s 280; Nydam v The Queen [1977] VR 430. Nydam v The Queen [1977] VR 430 at 445 per Young CJ, McInerney J and Crockett J (Full Court). Affirmed by French CJ, Hayne, Kiefel and Bell JJ in Patel v The Queen (2012) 247 CLR 531 at 538. R v Scarth [1945] St R Qd 38; Callaghan v The Queen (1952) 87 CLR 115; Patel v The Queen (2012) 247 CLR 531 at 538; King v The Queen (2012) 245 CLR 588 at 596. [9.165]

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others. A general duty not to cause harm exists at common law. 247 In the Northern Territory, Queensland, Tasmania and Western Australia, the accused must have breached the duty to avoid danger or to preserve life. 248 Where an accused omits to act, in a manner that causes the victim’s death, criminal liability will only be imposed where the accused was under a duty to act. As stated in Chapter 3 (see [3.85]), a duty to act may arise at common law as a result of a family relationship between the parties, 249 or as a result of a person undertaking to care for another who is unable to care for himself or herself. 250 In R v Miller, 251 Lord Diplock also referred to there being “no rational ground for excluding from conduct capable of giving rise to criminal liability conduct which consists of failing to take measures that lie within one’s power to counteract a danger that one has oneself created”. 252 Statutory examples of the imposition of a duty to act include a duty to provide necessities. 253 The English decision of R v Evans (Gemma) 254 provides an illustration of the application of the Miller principle. In that case, the Court of Appeal considered whether the accused owed a duty of care to her half-sister by having bought heroin from a dealer and then given it to her half-sister, who was a minor. While the accused was in the house, her half-sister had injected herself with the heroin, which led to a fatal overdose. The Court held that the duty sufficient to found gross negligence manslaughter was not confined to cases of a familial or professional relationship between the defendant and the deceased. As a matter of law, the Court held that the blood relationship between the accused and her half-sister did not give rise to a duty of care. That said, when a person had created or contributed to the creation of a state of affairs which she knew, or ought reasonably to know, had become life-threatening, a consequent duty on her to act by taking reasonable steps to save the other’s life would normally arise. This duty arose in this case, not from the act of supply per se, but rather from the accused’s awareness that the “heroin she procured for her was having a potentially fatal impact on her health”. 255 An important aspect of the decision was clarification of the respective roles of the trial judge and jury. The Court held that the question of whether or not a duty exists in a particular case is a question of law for the judge. 256

247 248 249 250

251 252

253 254 255 256

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R v Doherty (1887) 16 Cox CC 306 at 309 per Stephen J; implicit in Nydam v The Queen [1977] VR 430 at 445 per the Court. Criminal Code (NT), s 151; Criminal Code (Qld), s 289; Criminal Code (Tas), s 150; Criminal Code (WA), s 266. R v Russell [1933] VLR 59; R v Clarke and Wilton [1959] VR 645. R v Instan [1893] 1 QB 450; Lee v The Queen (1917) 13 Cr App R 39 at 41 per Darling J; Gibbins v The Queen (1918) 13 Cr App R 134; R v Stone and Dobinson [1977] QB 354; R v Taktak (1988) 14 NSWLR 226; R v Evans (Gemma) [2009] EWCA Crim 650. [1983] 2 AC 161. R v Miller [1983] 2 AC 161 at 176. Cited with approval by Gummow, Hayne, Kiefel and Bell JJ in Burns v The Queen (2012) 246 CLR 334 at 368. See, further, J Herring and E Palser, “The Duty of Care in Gross Negligence Manslaughter” [2007] Criminal Law Review 24. Crimes Act 1900 (NSW), s 44; Criminal Code (NT), s 183; Criminal Code (Qld), s 285; Criminal Law Consolidation Act 1935 (SA), s 30; Criminal Code (Tas), s 144; Criminal Code (WA), s 262. R v Evans (Gemma)[2009] EWCA Crim 650. R v Evans (Gemma) [2009] EWCA Crim 650 at [20]. For a useful commentary on this decision generally, see D Ormerod, “Case Comment: R v Evans (Gemma): Manslaughter—Gross Negligence—Deceased Supplied By Defendant With Heroin Which Proved Fatal” (2009) Criminal Law Review 661. [9.165]

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Standard of care [9.170] The standard of care for negligent manslaughter is an objective standard in that it is

based on the concept of a “reasonable” person in the same situation as the accused. 257 At common law, this is linked to the risk of causing death or grievous bodily harm, whilst in the Northern Territory, Queensland, Tasmania and Western Australia, it is linked to the failure to perform a relevant statutory duty. 258 There has been some confusion in the case law as to the emphasis that should be placed on whether or not the accused foresaw the likelihood or possibility of causing grievous bodily harm, thus importing a subjective element into the standard of care. Several cases seem to suggest that the state of mind of the accused is a relevant factor to be taken into account. In Andrews v DPP, Lord Atkin stated that “a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied ‘reckless’ most nearly covers the case”. 259 This reference to recklessness was picked up in several subsequent cases. In R v Lamb, Sachs LJ stated: “When the gravamen of a charge is criminal negligence—often referred to as recklessness—of the accused, the jury have to consider among other matters the state of his [or her] mind, and that includes the question of whether or not he [or she] thought that that which he [or she] was doing was safe.” 260

Similarly, in R v Stone and Dobinson, the English Court of Appeal referred to Andrews’ case and concluded that the accused’s failure to act must have been reckless: “That is to say a reckless disregard of danger to the health and welfare of the infirm person. Mere inadvertence is not enough. The defendant must be proved to have been indifferent to an obvious risk of injury to health or actually have foreseen the risk but to have determined nevertheless to run it.” 261

Mention of forseeability imports a subjective element into manslaughter by criminal negligence. This approach was rejected in England in DPP v Newbury and Jones. In that case, Lord Salmon stated that Lamb’s case should not be taken as supporting the idea that the correct test is anything but objective. He stated that “the test is not did the accused recognise that it was too dangerous but would all sober and reasonable people recognise its danger”. 262 The irrelevance of the accused’s state of mind to “gross negligence” was confirmed by the House of Lords in the context of manslaughter in R v Adomako. 263 In Australia, the High Court has confirmed that manslaughter at common law does not require any subjective appreciation by the accused that the conduct engaged in is unsafe. In R v Lavender, 264 Gleeson CJ, McHugh, Gummow and Hayne JJ stated that importing a subjective element was “erroneous in principle” 265 and quoted, with approval, Giles JA’s words in the New South Wales Court of Criminal Appeal decision of R v Lavender: 266 257 258 259 260 261 262 263 264 265 266

Nydam v The Queen [1977] VR 430 at 439–446; R v Lavender (2005) 222 CLR 67 at 87–88. Criminal Code (NT), ss 150, 151; Criminal Code (Qld), s 289; Criminal Code (Tas), s 150; Criminal Code (WA), s 266. Andrews v DPP [1937] AC 576 at 583. R v Lamb [1967] 2 QB 981 at 990. R v Stone and Dobinson [1977] 1 QB 354, the Court of Appeal at 363 per Lane LJ. DPP v Newbury and Jones [1976] 2 WLR 918 at 992. [1995] 1 AC 171. (2005) 222 CLR 67. R v Lavender (2005) 222 CLR 67 at 87. R v Lavender (2004) 41 MVR 492 at [121]. [9.170]

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“Appreciation of risk is not necessary for a sufficiently great falling short of the objective standard of care, and … the law would be deficient if grossly negligent conduct causing death could not bring criminal punishment unless the accused foresaw the danger.” 267

However, the approach in Stone and Dobinson still appears to hold sway in the Northern Territory where the accused must have foreseen death as a possible consequence of the breach of the duty of care. 268 There are signs that having a subjective element in offences of negligence has some support. For example, the criminal neglect offence in South Australia includes the element that the accused “was, or ought to have been, aware that there was an appreciable risk that serious harm would be caused to the victim”. 269 There is still another issue regarding the extent to which the particular characteristics and circumstances of the accused should be attributed to the reasonable person. In R v Lavender, Gleeson CJ, McHugh, Gummow and Hayne JJ pointed out that they had not been invited to reconsider or modify the common law of involuntary manslaughter and thus did not delve into the characteristics of the reasonable person. 270 In Chapter 3 at [3.225], we discussed how in R v Stone and Dobinson, 271 the objective standard posed severe problems for the accused who were unable to reach the standards of the reasonable person because of inherent physical and intellectual disabilities. In Tasmania, the age of the accused has been taken into account, 272 but it appears that other physical characteristics of the accused will be ignored. On the other hand, if the accused has specialist knowledge of some type, the test will become that of a “reasonable person with that knowledge”. 273 This area again shows the difficulties with applying a reasonable or ordinary person standard. The Law Reform Commission of Victoria has recommended that any person charged with manslaughter by criminal negligence should be afforded a defence if, by reason of some physical or intellectual disability, he or she could not reach the standard expected from non-disabled persons. 274 Justice Kirby in R v Lavender also commented that “it would not be rational to impute blame to a person who is physically or mentally incapable of achieving the standard of care expected by the criminal law”. 275 The Model Criminal Code Officers Committee (MCCOC) has suggested that the objective standard for negligence “require the reasonable person to step into the shoes of the [accused] at the relevant time”. 276

Breach of duty of care [9.175] The degree of negligence required to establish criminal liability is higher than that for

the civil law. 277 Lord Atkin in Andrews v DPP reviewed the 19th century cases that had defined this category of manslaughter using epithets such as “criminal misconduct” and “criminal inattention”. Lord Atkin conceded that the use of the “word ‘criminal’ in any 267 268 269 270 271 272 273 274 275 276 277

R v Lavender (2005) 222 CLR 67 at 87–88. Criminal Code (NT), s 31. This is the case except where s 155 applies and therefore still applies to negligent manslaughter under s 160(c). Criminal Law Consolidation Act 1935 (SA), s 14(1)(c), introduced by the Criminal Law Consolidation (Criminal Neglect) Amendment Act 2005 (SA). R v Lavender (2005) 222 CLR 67 at 82. R v Stone and Dobinson[1977] 1 QB 354. R v Holness [1970] Tas SR 74. R v Wills [1983] 2 VR 201. Law Reform Commission of Victoria, Homicide, Report No 40 (1991), p 116. R v Lavender (2005) 222 CLR 67 at 108. Model Criminal Code Officers Committee, Chapter 5—Fatal Offences Against the Person, Discussion Paper (June 1998), p 153. Callaghan v The Queen (1952) 87 CLR 115; R v White (1951) 51 SR (NSW) 188; Re Lamperd (1983) 63 FLR 470; Evgeniou v The Queen [1965] ALR 209; Mamote-Kulang of Tamagot v The Queen (1964) 111 CLR 62.

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attempt to define a crime is perhaps not the most helpful”. 278 He went on to remark that these early definitions had intended to convey that only a very high degree of negligence would suffice: “Simple lack of care such as will constitute civil liability is not enough: for the purposes of the criminal law there are degrees of negligence: and a very high degree of negligence is required to be proved before the felony is established.” 279

In Nydam v The Queen, the Full Court of the Victorian Supreme Court referred to “a great falling short of the standard of care” involving a high risk of death or serious harm. 280 Subparagraph 21(a) of the Criminal Code (ACT) and s 43AL(a) of the Criminal Code (NT) have adopted this approach in their definitions of the term negligence, in relation to the physical element of an offence, as conduct involving “such a great falling short of the standard of care that a reasonable person would exercise in the circumstances”. Just what will amount to “a great falling short” is unclear and is, perhaps, incapable of judicial definition.

Medical manslaughter by gross negligence: The case of Jayant Patel [9.180] In 2010, Dr Jayant Patel was convicted of three counts of manslaughter on the basis of gross negligence contrary to s 303 of the Criminal Code (Qld) and one count of unlawfully doing grievous bodily harm contrary to s 320 of the Code. The convictions centred upon his work as Director of Surgery at the Bundaberg Base Hospital. Dr Patel was convicted following a jury trial lasting 58 days in the Supreme Court of Queensland. 281 He was the first doctor in Australia since Dr William Valentine in 1843 to be found liable for the manslaughter of a patient. 282 The Queensland Court of Appeal dismissed an appeal against these convictions. 283 However, the High Court in Patel v The Queen, 284 unanimously overturned them, finding that a change in the Crown’s case late in the trial occasioned a substantial miscarriage of justice. After two re-trials failed to secure convictions, Jayant Patel subsequently pleaded guilty to four counts of fraud in relation to dishonestly obtaining registration and employment in Queensland and the Queensland Director of Public Prosecutions decided not to pursue manslaughter and grievous bodily harm charges. In May 2015, Queensland’s Civil and Administrative Tribunal banned Jayant Patel from practising medicine in Australia. 285 The case of Jayant Patel attracted much media attention and commentary. 286 It indicates the difficulty in prosecuting medical practitioners for manslaughter. French CJ, Hayne, Kiefel and Bell JJ pointed out that criminal liability for negligent manslaughter “attaches only if there has been ’criminal’ or ’gross’ negligence” 287 and it appears that it is easier to prove a lack of medical competence through disciplinary proceedings than to successfully prosecute medical practitioners under the criminal law. 278 279 280

281 282

283 284 285 286

287

Andrews v DPP [1937] AC 576 at 582. Andrews v DPP [1937] AC 576 at 583. Nydam v The Queen [1977] VR 430 at 445. Affirmed by Burns v The Queen (2012) 246 CLR 334 at 345 per French CJ; Patel v The Queen (2012) 247 CLR 531 at 538 per French CJ, Hayne and Bell JJ; King v The Queen (2012) 245 CLR 588 at 601 per French CJ, Crennan and Kiefel JJ; Wilson v The Queen (1992) 174 CLR 313 at 333 per Mason CJ, Toohey Gaudron and McHugh JJ. R v Patel [2010] QSC 199. I Dobinson, “Medical Manslaughter” (2009) University of Queensland Law Journal 101 at 101. See also DJ Carter, “Correcting the Record: Australian Prosecutions for Manslaughter in the Medical Context” (2015) 22(3) Journal of Law and Medicine 588. R v Patel; Ex parte Attorney-General (Qld) [2011] QCA 81. Patel v The Queen (2012) 247 CLR 531. Medical Board of Australia v Patel [2015] QCAT 133. See, in general, JA Dunbar, P Reddy and S May, “Introduction” in Deadly Healthcare (Brisbane: Australian Academic Press, 2011); H Thomas, Sick to Death: A Manipulative Surgeon and a Health System in Crisis – A Disaster Waiting to Happen (Sydney: Allen & Unwin, 2007). Patel v The Queen (2012) 247 CLR 531 at 538. [9.180]

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CULPABLE DRIVING [9.185] All Australian jurisdictions have created specific offences that deal with driving

causing death. Technically, where a driver causes a victim’s death in circumstances that amount to manslaughter at common law or under the Codes, he or she should be convicted of manslaughter. 288 However, the statutory culpable driving offences have been created because juries have traditionally been viewed as reluctant to convict drivers of negligent manslaughter. 289 Table 4 sets out the elements of culpable driving causing death or grievous bodily harm. In King v The Queen 290 the High Court held that the offence as set out in the Crimes Act 1958 (Vic) does not equate to culpable negligence and require that the manner of driving create a considerable risk of serious injury or death to members of the public, but is based on a manner of driving that is potentially dangerous to other road users. 291 The main question concerning culpable driving causing death as a sub-category of unlawful killing is whether or not it should exist at all. Section 318 of the Crimes Act 1958 (Vic), for example, provides four circumstances of culpability in relation to a victim’s death: driving recklessly, negligently (which now includes driving while fatigued (s 318(2A)) or while under the influence of alcohol or a drug so as to be incapable of having proper control of the car. In 1991, the Law Reform Commission of Victoria noted: “The main difficulty with retaining a separate offence of causing death by culpable driving is that it appears to give entirely the wrong message to the community—that killing while using a motor vehicle is not as serious as killing while using something else.” 292

The Commission proposed that this separate offence be abolished and situations of causing death by culpable driving be charged as reckless murder or manslaughter. 293 It also proposed a range of lesser alternative offences to cover cases where the accused’s liability was less than these offences. Instead of abolishing culpable driving, certain jurisdictions have added another level of culpability by introducing offences of dangerous driving causing death. 294 Peter Alldridge echoed the Law Reform Commission of Victoria in stating: “[I]t is not a principle of English jurisprudence that offences ought to be named palliatively so as to increase the conviction rate, nor is it just that one who kills with a car should be exposed to a lower maximum penalty than one who, no more culpably, kills otherwise.” 295

288 289 290 291 292 293 294 295

Model Criminal Code Officers Committee, Chapter 5—Fatal Offences Against the Person, Discussion Paper (1998) pp 160–161. Model Criminal Code Officers Committee, Chapter 5—Fatal Offences Against the Person, Discussion Paper (1998) p 161. King v The Queen (2012) 245 CLR 588. R v De Montero (2009) 25 VR 694; R v Buttsworth [1983] 1 NSWLR 658. Law Reform Commission of Victoria, Death Caused by Dangerous Driving, Discussion Paper 21 (July 1991) p 15. Law Reform Commission of Victoria, Death Caused by Dangerous Driving, Discussion Paper 21 (July 1991) p 21. Criminal Code (NT), s 174F, Crimes Act 1900 (NSW), s 52A; Criminal Code (Qld), s 328A; Crimes Act 1958 (Vic), s 319; Road Traffic Act 1974 (WA), s 59. P Alldridge, “Manslaughter and Causing Death by Driving Recklessly” (1980) 144 Justice of the Peace 569 at 571.

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The offence of dangerous driving causing death, on the other hand, goes further than simply making a “palliative” name change for negligent manslaughter. This offence is one of strict liability: Jiminez v The Queen. 296 That is, an accused will be guilty unless the defence of reasonable mistake of fact is made out. Departure from a reasonable person standard does not have to be proved as is the case for negligent manslaughter. Table 4 Culpable driving causing death Jurisdiction and relevant law ACT Crimes Act 1900 NSW Crimes Act 1900 NT Criminal Code Qld Criminal Code SA Criminal Law Consolidation Act 1935 Tas Criminal Code Vic Crimes Act 1958

WA Road Traffic Act 1974

Offence offence where motor vehicle is driven negligently or while under the influence of alcohol, or a drug, to such an extent as to be incapable of having proper control of the vehicle, where such driving causes death or grievous bodily harm (s 29) offence where motor vehicle driven by the accused causes death or grievous bodily harm and at the time of the impact, the accused is driving under the influence of alcohol, or a drug, or at a dangerous speed or in a dangerous manner (s 52A) offence of predatory driving (s 51A) offence where motor vehicle is driven dangerously causing death or serious harm (s 174F) offence where a person operates, or interferes with the operation of, a vehicle dangerously in any place causing death or grievous bodily harm (s 328A(4)) offence where a person drives a vehicle in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to the public, and by such conduct causes death (s 19A(1))

offence where any person causes the death of another by the driving of a motor vehicle at a speed or in a manner which is dangerous to the public (s 167A) offence where any person causes the death of another by driving a motor vehicle recklessly, negligently or whilst under the influence of alcohol, or a drug, to such an extent as to be incapable of having proper control of the vehicle (culpable driving causing death) (s 318) offence where a person who, by driving a motor vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case, causes the death of, or serious injury to, another person (dangerous driving causing death) (s 319) offence where motor vehicle driven by the accused is involved in an incident occasioning death or grievous bodily harm to another person and at the time the accused was driving the vehicle under the influence of alcohol, or drugs, to such an extent as to be incapable of having proper control of the vehicle, or in a manner dangerous to the public or any person (s 59)

The MCCOC, in assessing current law, has suggested the introduction of a general offence of “dangerous conduct causing death”. 297 It considered a special offence imposing strict liability, such as exists in New South Wales, but concluded that in “principle, a special offence that dispenses with any need for proof of fault and imposes a severe penalty is difficult to justify”. 298 An offence of “dangerous conduct causing death” could provide a logical rationale for manslaughter as a category of unlawful killing. It would also do away with any need for a special offence of culpable driving causing death, and go some way towards combating “a pervasive and unwarranted social tolerance for careless or dangerous driving practices”. 299 296 297 298 299

(1992) 173 CLR 572. Model Criminal Code Officers Committee, Chapter 5—Fatal Offences Against the Person, Discussion Paper (June, 1998) p 165. Model Criminal Code Officers Committee, Chapter 5—Fatal Offences Against the Person, Discussion Paper (June, 1998) p 171. Model Criminal Code Officers Committee, Chapter 5—Fatal Offences Against the Person, Discussion Paper (June, 1998) p 165. [9.185]

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Perspectives Omissions and Unlawful Killing [9.190] In most instances of unlawful killing, some form of conduct will have caused the

victim’s death. However, murder, manslaughter or culpable driving may occur where an accused has breached a legal duty to act. The Northern Territory is the only jurisdiction that establishes a general duty to act so as to avoid death or danger to another. 300 The other jurisdictions set out more specific duties. There has been a traditional reluctance to use the criminal law to punish those who omit to act in the absence of a legal duty. It has been thought that the criminal law should not be used to compel or encourage the doing of good and that it is too harsh a method of punishing the ignorant or neglectful. 301 Furthermore, a general duty to intervene means that a large number of people who fail to act in certain circumstances would be held responsible. The Indian Law Commissioners in the 19th century raised the question: If a beggar dies of starvation or neglect, how many people could be held criminally responsible? 302 The main legal duties to act arise from a special relationship between the accused and the victim, 303 as a result of a person voluntarily undertaking the care of another, 304 to act in order to avoid certain dangers 305 and where an accused has created a situation of danger. 306 Certain professionals such as doctors may also be under legal duties to act. In “Non-voluntary euthanasia” at [9.90], we outlined the facts in Airedale NHS Trust v Bland. 307 The House of Lords held that an omission to provide the invasive medical care involved in artificial feeding did not breach the duty owed by the hospital and the doctors to act in the best interests of the patient. An omission to act arises most commonly in the context of manslaughter by negligence. In relation to unlawful and dangerous act manslaughter, the unlawful act must be an act, not an omission. 308 However, negligent manslaughter encompasses a sub-category of negligence by omission. As with negligent act manslaughter, there must be a legal duty of care owed by the accused to the victim and a breach of the high standard of care required. In R v Russell, 309 the accused’s children and wife drowned. The prosecution case was that the accused had deliberately drowned them. On his version of the facts, his wife 300 301

306 307 308 309

Criminal Code (NT), s 155. JP McCutcheon, “Omissions and Criminal Liability” (1993–1995) 28–30 The Irish Jurist (New Series) 56 at 57ff; G Williams, “Criminal Omissions—the Conventional View” (1991) 107 Law Quarterly Review 86. A Penal Code Prepared by the Indian Law Commissioners (Birmingham, Alabama: Legal Classic Library, 1867, first published 1837), pp 53, 56. R v Russell [1933] VLR 59; Criminal Code (Qld), s 286; Criminal Code (Tas), s 145; Criminal Code (WA), s 263. R v Instan [1893] 1 QB 450; (1893) 17 Cox CC 602; R v Stone and Dobinson [1977] QB 354; R v Taktak (1988) 14 NSWLR 226; Criminal Code (NT), s 149; Criminal Code (Tas), s 147. Under the Codes, there is also a duty to provide the necessaries of life: Criminal Code (NT), s 183; Criminal Code (Qld), s 285; Criminal Code (Tas), s 144; Criminal Code (WA), s 262. For example, the duty to carry out dangerous acts with care: Criminal Code (NT), ss 150 – 151; Criminal Code (Qld), ss 288 – 289; Criminal Code (Tas), ss 149 – 150; Criminal Code (WA), ss 265 – 266. R v Miller [1982] 2 All ER 386. [1993] AC 789. R v Lowe [1973] 1 QB 702. R v Russell[1933] VLR 59.

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302 303 304

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drowned the children and he stood by helplessly as she drowned. His convictions for manslaughter of his two children were upheld on appeal on the basis that a parent has a legal duty to come to the assistance of a young child. McArthur J stated that no similar duty extended to safeguard the accused’s wife, as there was no duty to protect “adults who are not helpless, but are quite capable mentally and physically of looking after themselves”. 310 If the adult is “helpless” and the accused has voluntarily assumed responsibility for him or her, then the courts are prepared to establish a legal duty of care. For example, a woman was found guilty of manslaughter for failing to seek medical treatment for her aunt who had asked the accused to live with her at the aunt’s expense in return for her niece looking after her. 311 Even a person with no blood ties to the victim may be held responsible for negligence by omission. In R v Taktak, 312 the accused was an associate of a proprietor of a “dog shop” (who was also a drug dealer) who asked the accused to procure two prostitutes for him. The drug dealer rang the accused later that night, asking him to collect one of the girls who had taken too much heroin. The accused took the girl to his flat where he tried to awaken her by washing and slapping her face, pumped her chest and gave her mouth-to-mouth resuscitation. He said he did not call a doctor because he believed that the girl would recover. She subsequently died. At the accused’s trial for manslaughter, there was conflicting medical opinion as to the exact time of death. The accused was convicted and on appeal the court examined whether the accused, by his actions, had assumed a duty of care. Yeldham J held, “with some hesitation”, there was evidence to support the jury’s conclusion that the accused had assumed a legal duty to seek medical aid for the victim. 313 He focused on the fact that the accused had made an effort to care. Carruthers J had no difficulties recognising a duty to care for the victim, which “flowed from his [the accused’s] taking her [the victim’s] unconscious body into his exclusive custody and control and thereby removing her from the potentiality of appropriate aid from others”. 314 Both Yeldham and Carruthers JJ agreed that the conviction should be quashed since the inconsistent medical evidence made it impossible to determine whether the accused’s conduct had amounted to criminal negligence, and whether this conduct had caused the death of the victim. Chief Justice French in Burns v The Queen 315 outlined the “taxonomy of the duties of care that may support a charge of involuntary manslaughter”. This taxonomy includes situations where: • “A statute imposes the duty. • The duty arises from a certain relationship. • The duty arises from a contract. • The duty arises from a voluntary assumption of the care of another, so secluding a helpless person as to prevent others from rendering aid.″ 316 310 311 312 313 314 315 316

R v Russell [1933] VLR 59 at 83. See also R v Gorman (unreported, 15/5/1997, NSWCCA, Gleeson CJ, Hunt and Sperling JJ, 60373/95). R v Instan [1893] 1 QB 450. R v Taktak(1988) 14 NSWLR 226. See also French CJ in Burns v The Queen (2012) 246 CLR 334 at 346. R v Taktak (1988) 14 NSWLR 226 at 246. R v Taktak (1988) 14 NSWLR 226 at 250. (2012) 246 CLR 334. Burns v The Queen (2012) 246 CLR 334 at 346. [9.190]

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There is a question as to the extent to which the law should impose upon individuals a legal duty to come to the aid of others, particularly where the person concerned is actively refusing assistance. In the medical context, it is clear that health care practitioners are under a legal duty to treat their patients, and to use reasonable care and skill in the discharge of that duty. However, the law does not require medical treatment to be administered to competent patients who refuse treatment. Similarly, the law does not require prison authorities to force-feed prisoners who have decided to go on a hunger strike. 317 Hazel Biggs has highlighted the differing approach of the law in these contexts. She compares R v Stone and Dobinson 318 (where the two mentally and physically disabled accused were convicted of the manslaughter of Stone’s sister, Fanny, despite their ineffectual attempts to gain assistance) with the later decision of Airedale NHS Trust v Bland. 319 She states: “The duty of care … appears to adopt a different criminal significance depending on whether the potential defendant is a member of the public or a medical profession … Why is it that a professionally imposed duty extended only as far as determining the best interests of a patient who could not consent, while the scope of the voluntarily assumed duty in Stone and Dobinson included the obligation to overrule the autonomous wishes of the ‘patient’ [Stone’s sister, Fanny]. Smith [1979] Crim LR 251 suggests that a person who is capable of rational decision-making could relieve a relative of a common law duty of care, but this fails to reconcile conflicting dicta. Bland was incapable of making any decisions and his carers were absolved of responsibility, while Stone’s sister purposefully declined the provision of food and medical aid by her carers and they were culpable.” 320

OFFENCES RELATED TO SUICIDE [9.195] In modern times, it is difficult to understand why suicide at common law was

considered a felony and attempted suicide a misdemeanour. 321 How can a person who commits suicide be punished? The church viewed suicide as a mortal sin, and the person who committed suicide was punished by the denial of a Christian burial. 322 The criminal law became involved in punishing those who committed suicide through a process of forfeiture. One of the early criminal sanctions was that of “attainder”, the forfeiture of property and land when judgment of death was recorded against a person convicted of treason or felony: see Chapter 2, [2.95]. As early as 967 AD, attainder attached to suicide. 323 Because of this penalty, suicide became known as a felony. As Sir John Barry, distinguished judge and scholar, noted: 317

322 323

See the decision of Thorpe J in Secretary of State for the Home Department v Robb [1995] 1 Fam LR 127 and the New Zealand High Court decision in Chief Executive of the Department of Corrections v All Means All [2014] NZHC 1433. A similar principle was also upheld by Kourakis J in H Ltd v J (2010) 107 SASR 352 in the context of a refusal to take food, water and medication in an aged-care facility. [1977] QB 354. Airedale NHS Trust v Bland [1993] AC 789[1993] AC 789. H Biggs, “Euthanasia and Death with Dignity: Still Poised on the Fulcrum of Homicide” [1996] Criminal Law Review 878 at 883. W Hawkins, A Treatise of the Pleas of the Crown, Vol 1 (London: J Curwood, 1824) p 77. See also J Barry, “Suicide and the Law” (1965) 5 Melbourne University Law Review 1; GV Williams, The Sanctity of Life and the Criminal Law (London: Faber, 1958) Ch 7. WE Mickell, “Is Suicide Murder?” (1903) 3 Columbia Law Review 379 at 383. J Barry, “Suicide and the Law” (1965) 5 Melbourne University Law Review 1 at 2.

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318 319 320 321

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“There is good reason to believe that suicide became a felony by arguing backwards, thus: suicide attracts a forfeiture, forfeiture is a consequence of felony, therefore suicide is a felony.” 324

Barry points out that attempted suicide became an offence only in the middle of the 19th century: “The reasoning was simple: an attempt to commit a felony is a misdemeanour; suicide is a felony; an attempt to commit it is, therefore, a misdemeanour, and in 1854 the law was so declared.” 325

Assisting or Encouraging Suicide [9.200] While suicide is no longer an offence in Australia, 326 and attempted suicide is not

unlawful, assisting or encouraging another to attempt to commit suicide is an offence in all jurisdictions. 327 Further, in five jurisdictions, assisting or encouraging another to attempt to commit suicide is also an offence. 328 “Assisting” or “encouraging” is described in various ways, as set out in Table 5, and the meaning of these terms is the same as for the law set out in Chapter 7. In general, there must be a causal connection between the assisting and encouraging and the actual suicide. 329 The prosecution must also prove that the accused intended to assist or encourage another to commit or attempt to commit suicide. In Attorney-General v Able, 330 Woolf J held that the publication of material on euthanasia could only amount to an offence if the distributor had an intention to assist or encourage the reader to take or attempt to take his or her own life, and that the material actually did assist or encourage such an act. On the facts of that case, it was held that a booklet entitled “A Guide to Self-Deliverance” published by the Voluntary Euthanasia Society did not satisfy the elements of the offences of assisting or encouraging suicide or attempted suicide. The Model Criminal Code Officers Committee (MCCOC) has recommended that assisting or encouraging suicide should remain unlawful, with assisting suicide attracting a higher penalty than encouraging. 331

324 325 326

327

328 329

330 331

J Barry, “Suicide and the Law” (1965) 5 Melbourne University Law Review 1 at 2–3. J Barry, “Suicide and the Law” (1965) 5 Melbourne University Law Review 1 at 5. The common law offences of suicide and attempted suicide have been abrogated by Crimes Act 1900 (ACT), s 16; Crimes Act 1900 (NSW), s 31A; Criminal Law Consolidation Act 1935 (SA), s 13A(1); Crimes Act 1958 (Vic), s 6A. In the Code jurisdictions, unlawful killing requires the killing of another person: Criminal Code (NT), s 156(1)(b), s 160(b); Criminal Code (Qld), s 300; Criminal Code (Tas), s 153(1); Criminal Code (WA), s 277. Crimes Act 1900 (ACT), s 17; Crimes Act 1900 (NSW), s 31C; Criminal Code (NT), s 162; Criminal Code (Qld), s 311; Criminal Law Consolidation Act 1935 (SA), s 13A(5), (7); Criminal Code (Tas), s 163; Crimes Act 1958 (Vic), s 6B(2); Criminal Code (WA), s 288. Crimes Act 1900 (ACT), s 17; Crimes Act 1900 (NSW), s 31C; Criminal Code (NT), s 162; Criminal Law Consolidation Act 1935 (SA), s 13A(5); Crimes Act 1958 (Vic), s 6B(2). Crimes Act 1900 (ACT), s 17; Crimes Act 1900 (NSW), s 31C; Criminal Code (NT), s 162; Criminal Code (Qld), s 311; Crimes Act 1958 (Vic), s 6B(2)(a); Criminal Code (WA), s 288. No causal connection is required in Tasmania. No causal connection is required in South Australia for aiding, abetting or counselling, but s 13A(7) of the Criminal Law Consolidation Act 1935 (SA) requires a causal connection for murder or attempted murder to be proved where an accused procures a suicide or attempted suicide by means of “fraud, duress or undue influence”. [1984] 1 QB 795. Model Criminal Code Officers Committee, Chapter 5—Fatal Offences Against the Person, Discussion Paper (1998) p 181. [9.200]

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Even though suicide is no longer unlawful, there still exist some statutory provisions that enable the use of reasonable force to prevent suicide. 332

Suicide Pact [9.205] A “suicide pact” is an agreement between two or more persons where the purpose is

the death of all of them. 333 In New South Wales, South Australia and Victoria, if an accused kills another pursuant to a suicide pact, he or she may be partly excused. In South Australia and Victoria, the offence will be reduced from murder to manslaughter. 334 In New South Wales, the survivor of a suicide pact will not be guilty of murder or manslaughter, but of the lesser offence of assisting or encouraging suicide. 335 Section 13A(11) of the Criminal Law Consolidation Act 1935 (SA) states that an accused will be unable to rely upon a suicide pact where he or she induced another to enter the pact by way of fraud, duress or undue influence. The accused’s conduct must have been performed with the intention to die pursuant to the pact. 336 The MCCOC has recommended that participation in a suicide pact should not serve as a partial excuse. 337 In relation to a pact where all parties agree to commit suicide, the Committee stated: “The aspect of the [accused’s] conduct which attracts criminal sanction, and which is sought to be deterred, relates to being involved in another’s self-killing.” 338

Further, the MCCOC is of the opinion that it should still be murder where a survivor has killed another pursuant to a “consensual murder pact”. The circumstances of the killing may be taken into account in sentencing. 339 This approach is consistent with motive not being taken into account in establishing criminal liability for unlawful killing.

ABORTION, CHILD DESTRUCTION AND CONCEALMENT OF BIRTH [9.210] The criminal law in relation to abortion continues to attract political, social and legal

debate. In all Australian jurisdictions, save the Australian Capital Territory and Victoria, “procuring a miscarriage” (the term “abortion” is only used in Western Australia and the Northern Territory) remains a crime. This often surprises people because access to abortions

332 333 334 335 336 337 338 339

Crimes Act 1900 (ACT), s 18; Crimes Act 1900 (NSW), s 574B; Criminal Law Consolidation Act 1935 (SA), s 13A(2); Crimes Act 1958 (Vic), s 463B. Crimes Act 1900 (NSW), s 31B(2); Criminal Law Consolidation Act 1935 (SA), s 13A(10)(a); Crimes Act 1958 (Vic), s 6B(4). Criminal Law Consolidation Act 1935 (SA), s 13A(3); Crimes Act 1958 (Vic), s 6B(1). Crimes Act 1900 (NSW), ss 31B(1), 31C. Crimes Act 1900 (NSW), s 31B(2); Criminal Law Consolidation Act 1935 (SA), s 13A(10)(b); Crimes Act 1958 (Vic), s 6B(4). Model Criminal Code Officers Committee, Chapter 5—Fatal Offences Against the Person, Discussion Paper (June, 1998) p 184. Model Criminal Code Officers Committee, Chapter 5—Fatal Offences Against the Person, Discussion Paper (June, 1998) p 183. Model Criminal Code Officers Committee, Chapter 5—Fatal Offences Against the Person, Discussion Paper (June, 1998) p 183.

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appears relatively straightforward. This is perhaps the one area of law where practice does not fully accord with what the law prohibits, as criminal prosecutions for abortion and child destruction are rare. 340 The Australian Capital Territory and Victoria are the only Australian jurisdictions which have completely decriminalised abortion by the enactment of the Crimes (Abolition of Offence of Abortion) Act 2002 (ACT) and the Abortion Law Reform Act 2008 (Vic), respectively. Four other Australian jurisdictions have reformed their laws, but have not gone as far as decriminalisation. The Northern Territory, South Australia and Tasmania have retained the crime of procuring a miscarriage, but also have provisions relating to lawful medical terminations of pregnancy. Western Australia makes abortion a crime unless it is “performed by a medical practitioner in good faith and with reasonable care and skill”. The current law is examined in the next section. The offence of child destruction exists in all jurisdictions apart from Victoria, New South Wales and South Australia. This offence covers the gap between abortion and murder where a person unlawfully kills a child “capable of being born alive”. If there is insufficient evidence for a conviction for murder, manslaughter or infanticide, an accused may be charged with the offence of concealment of birth. These three offences will be discussed in turn.

Abortion [9.215] Much of the philosophical literature on abortion deals with competing “rights”. For

example, according to the Declaration on Procured Abortion by the Catholic Church, the rights of the unborn child justify State involvement in prohibiting abortion: 341 “It is true that it is not the task of the law to choose between points of view or to impose one rather than another. But the life of the child takes precedence over all opinions. One cannot invoke freedom of thought to destroy this life … It is at all times the task of the State to preserve each person’s rights and to protect the weakest.” 342

Liberal theorists, on the other hand, argue that a woman’s right to personal liberty in regard to reproductive decisions is the most important consideration. As Mary Anne Warren states, “there is no other case in which the law requires individuals (who have been convicted of no crime) to sacrifice liberty, self-determination and bodily integrity in order to preserve the lives of others”. 343 In recent times, philosophical debate has turned to the controls the State may place on women’s access to abortions. For example, the Western Australian government enacted legislation concerning the counselling of women who seek abortions. 344 Such steps followed the decision of the United States Supreme Court in Planned Parenthood v Casey. 345 In that case, the Court held that State governments can legitimately take steps to “enact rules and regulations designed to encourage [pregnant women] to know that there are philosophical and 340

341

342 343 344 345

For a historical review of these “reproduction” offences, see S Davies, “Captives of their Bodies—Women, Law and Punishment, 1880s–1980s” in D Kirkby (ed), Sex, Power and Justice (Melbourne: Oxford University Press, 1995) pp 105–110. See P Ferdinands, “How the Criminal Law in Australia Has Failed to Promote the Right to Life for Unborn Children: A Need for Uniform Criminal Laws on Abortion across Australia” (2012) 17(1) Deakin Law Review 43. Sacred Congregation for the Doctrine of Faith, Declaration on Procured Abortion (18 November 1974), http://www.newadvent.org/library/docs_df75ab.htm (cited 14 October 2016) [20], [21]. MA Warren, “Abortion” in P Singer (ed), A Companion to Ethics (Oxford: Blackwell, 1991) p 306. Health Act 1911 (WA), as amended by the Acts Amendment (Abortion) Act 1998 (WA). Planned Parenthood v Casey 505 US 833 (1992)505 US 833 (1992). [9.215]

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social arguments of great weight that can be brought to bear in favour of continuing the pregnancy to full term”. 346 The Court held that the Pennsylvania Abortion Control Act 1989 was not unconstitutional and did not impose an “undue burden” on a woman seeking an abortion. The Act required women seeking abortions to be provided with information about the nature and risks of abortion, and stipulated that an abortion could only be performed at least 24 hours after the woman had received the information. Some authors have argued that “forced contemplation” is unnecessary, given that the decision to have an abortion is usually seriously and carefully considered. 347 The issue of conscientious objection of medical practitioners in performing abortions and the proper balancing between the personal convictions of medical practitioners and access to the procedure has also been the subject of scholarly attention. 348 At present, there are three indictable offences connected with abortion (save the Australian Capital Territory and Victoria where these offences have been repealed): 349 • procuring one’s own miscarriage; 350 • procuring another’s miscarriage; 351 and • the supply of means for a miscarriage with knowledge that those means are intended to be used for that purpose. 352

The MCCOC pointed out that the last of these offences is redundant given the breadth of the existing law of complicity. 353 Accordingly, it will not be discussed in this chapter. In Victoria, the only remaining offence related to abortion is that of abortion by unqualified persons. 354

346 347

354

Planned Parenthood v Casey 505 US 833 (1992) at 872. L Cannold, The Abortion Myth (Sydney: Allen and Unwin, 1998); R Graycar and J Morgan, The Hidden Gender of Law (Sydney: Federation Press, 1990) Ch 9; K Luker, Abortion and the Politics of Motherhood (Berkeley: University of California Press, 1984). L De Crespigny, A O’Rourke and A Pyman, “Abortion and Conscientious Objection: The New Battleground” (2012) 38(3) Monash University Law Review 87. See R Sifris, “The Legal and Factual Status of Abortion in Australia” (2013) 38(2) Alternative Law Journal 108; D Mendelson, “Decriminalisation of Abortion Performed by Qualified Health Practitioners under the Abortion Law Reform Act 2008 (Vic)” (2012) 19(4) Journal of Law and Medicine 651; J Morgan, “Abortion Law Reform: the Importance of Democratic Change” (2012) 35(1) University of New South Wales Law Journal 142; M Rankin “The Disappearing Crime of Abortion and the Recognition of a Woman’s Right to Abortion: Discerning a Trend in Australian Abortion Law?” (2011) 13(2) Flinders Law Journal 1. Crimes Act 1900 (NSW), s 82; Criminal Code (Qld), s 225; Criminal Law Consolidation Act 1935 (SA), s 81(1). This offence does not appear to exist in the Northern Territory and Western Australia, as s 208A of the Criminal Code (NT) and s 199(2) of the Criminal Code (WA) only prohibit “a person” from procuring a woman’s miscarriage/performing an unlawful abortion. Sections 7, 8 and 9 of the Termination of Pregnancy Law Reform Act (NT), s 82A of the Criminal Law Consolidation Act 1935 (SA), s 334 of the Health Act 1911 (WA) deal with the medical termination of pregnancy. Crimes Act 1900 (NSW), s 83; Criminal Code (NT), s 208A; Criminal Code (Qld), s 224; Criminal Law Consolidation Act 1935 (SA), s 81(2); Criminal Code (WA), s 199 (perform an abortion). Crimes Act 1900 (NSW), s 84; Criminal Code (NT), s 208A; Criminal Code (Qld), s 226; Criminal Law Consolidation Act 1935 (SA), s 82. A similar provision was repealed in Western Australia by the Acts Amendment (Abortion) Act 1998 (WA). Model Criminal Code Officers Committee, Chapter 5—Non-Fatal Offences Against the Person, Discussion Paper (1996) p 80. Crimes Act 1958 (Vic), s 65.

570

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348 349

350

351 352

353

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Physical and fault elements [9.220] In general, the current abortion provisions are cast in terms of the pregnant woman or

other person unlawfully administering, or causing to be taken, any poison, drug or noxious thing, or using any instrument, force of any kind, or other means with an intention to cause a miscarriage. The terms “administer” and “causes to be taken” have been interpreted very broadly. For example, to constitute an administering, it is not necessary that there should be a “delivery by hand”. 355 The term “causing to be taken” can extend to instances where a woman consumes a substance when the accused is not present. 356 Failing to warn the victim of the need to take a safe dose has been taken to amount to “causing” the substance to be taken. 357 The substance used to procure an abortion, depending upon the jurisdiction, must be a poison, drug, or noxious thing. A poison has been held to be any substance calculated to destroy life. 358 A noxious thing is a substance that has a deleterious, as opposed to a minor, effect on the body. 359 A drug does not necessarily mean a noxious thing. 360 However, it is likely that its meaning will be linked to the terms “poison” and “noxious thing”, and some early cases have used these terms interchangeably. 361 O’Bryan J stated in McAvoy v Gray: “A common meaning of ‘drug’ is any organic or inorganic substance which, used as a medicine or as an ingredient in medicines especially, is a narcotic or poison.” 362

Where a substance which is harmless in small doses is administered in excessive doses which then makes it harmful, it will be considered to be a noxious thing. 363 The substance in question need not be an abortifacient. 364 The word “instrument” is used in its ordinary sense and it is immaterial whether or not the instrument was capable of causing a miscarriage. For example, in R v Doucette 365, a piece of tubing which was used to pump a chemical solution into the woman’s vagina was held to be an “instrument”. The term “means” connotes the doing of something that is capable of producing a miscarriage. 366

355 356 357 358 359

360 361

362 363 364 365 366

R v Harley (1830) 172 ER 744 at 745 per Park J. See also R v Dale (1852) 6 Cox CC 14 at 17. R v Wilson (1856) 169 ER 945; R v Farrow (1857) 169 ER 961. R v Turner (1910) 4 Cr App R 203 at 206. R v Haydon (1845) 1 Cox CC 184. R v Perry (1847) 2 Cox CC 223. The substance must be either a noxious thing in itself (R v Isaacs (1862) 169 ER 1371 at 1373 per Pollock CB; cf R v Coe (1834) 6 Car & P 1295), or it must have been administered in sufficient quantity to be noxious; R v Hennah (1877) 13 Cox CC 547 (cantharides); R v Cramp (1880) 5 QBD 307 (juniper oil); R v Turner (1910) 4 Cr App R 203 (bitter apple); R v Barton (1931) 25 QJPR 81 (Beecham’s pills, quinine and gin). R v Duffy (1901) 1 SR (NSW) 20. R v Farrow (1857) 169 ER 961; R v Isaacs (1862) 169 ER 1371; R v Turner (1910) 4 Cr App R 203. Heroin has been held to be a noxious thing in itself: R v Cato [1976] 1 All ER 260. Amphetamines have also been held to be noxious: R v Hill (1986) Cr App R 386. McAvoy v Gray [1946] ALR 459 at 460. R v Cramp [1880] 5 QBD 307 at 309 per Coleridge CJ; R v Bickley (1909) 2 Cr App R 53; R v Turner (1910) 4 Cr App R 203; R v Barton (1931) 25 QJPR 81. R v Marlow (1964) 49 Cr App R 49 at 55 per Brabin J. (1949) 93 CCC 202. R v Lindner [1938] SASR 412 at 415. [9.220]

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The term “miscarriage” in law is generally taken to refer to the premature ending of a pregnancy that is presumed to begin when the ovum is fertilised. 367 The use of modern techniques such as the intra-uterine device, prostaglandin, the morning-after pill and the drug RU-486, which do not prevent conception but which operate after the fertilisation of the ovum by the sperm has taken place, have raised doubts about the viability of this definition of miscarriage. It has been argued that the use of such techniques amounts to procuring a miscarriage. 368 However, there is some, albeit slight, support for the view that any technique used before implantation of the fertilised egg into the womb is not an abortifacient because conception actually occurs upon nidation 369 or implantation. 370 In relation to the fault element, the offences of procuring one’s own miscarriage and procuring another’s miscarriage both require an intention to procure such miscarriage. The intention must be genuine and not merely feigned. 371 The law relating to abortion was amended in Western Australia by the Acts Amendment (Abortion) Act 1998 (WA). Section 199 of the Criminal Code (WA) avoids the expression “procuring a miscarriage” and simply states that it is unlawful to perform an abortion unless it is “performed by a medical practitioner in good faith and with reasonable care and skill” and conforms with the provisions of the Health Act 1911 (WA). Section 334 of the latter Act requires the medical practitioner to offer the woman a referral to “appropriate and adequate counselling” and to explain the risks and matters associated with the termination of pregnancy. Unlawful abortions [9.225] In all Australian jurisdictions, the prosecution must prove that the abortion was

“unlawful”. In practice, this has meant looking at the extent to which medical terminations of pregnancy can be considered “lawful” on the grounds of necessity. In R v Sood, Dr Suman Sood was convicted of procuring a miscarriage on a woman who was 22–24 weeks pregnant. Dr Sood had failed to make the proper inquiries to satisfy herself that the abortion was necessary. Simpson J set out the following requirements for establishing unlawfulness: “Unlawfulness is … established if the Crown proves, beyond reasonable doubt, one or more of the following: (i) that the accused person did not honestly and genuinely hold the requisite belief (ie that termination of pregnancy was necessary in order to protect the mother from serious danger to her life or health, whether physical or mental); or

367

371

N Cica, “The Inadequacies of Australian Abortion Law” (1991) 5 Australian Journal of Family Law 37 at 50. See, further, K Martyn, “Technological Advances and Roe v Wade: The Need to Rethink Abortion Law” (1982) 29 UCLA Law Review 1194; N Rhoden, “Trimesters and Technology: Revamping Roe v Wade” (1986) 95 Yale Law Journal 639; J Rubenfeld, “On the Legal Status of the Proposition that ‘Life Begins at Conception’” (1991) 43 Stanford Law Review 599. V Tunkel, “Modern Anti-Pregnancy Techniques and the Criminal Law” [1974] Criminal Law Review 461 at 462. The embedding of the early embryo into the uterine mucosa. See Oxford English Dictionary (2nd ed, Oxford: Clarendon Press, 1988) Vol X, p 397. In R v Price [1969] 1 QB 541, the Court implied that the use of an intra-uterine device would not amount to an abortion merely because it operates after the ovum is fertilised by acting to prevent nidation or implantation. See, further, G Williams, Textbook of Criminal Law (2nd ed, London: Stevens and Sons, 1983) pp 294–295; R Cook, “Legal Abortion: Limits and Contributions to Human Life” in R Porter and M O’Connor (eds), Ciba Foundation Symposium 115—Abortion: Medical Progress and Social Implications (London: Pitman Publishing, 1985) p 212. R v A (1944) 83 CCC 94.

572

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368 369 370

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(ii) that, if and to the extent that, such a belief were held, it was not based upon reasonable grounds; or (iii) that a reasonable person in the position of the accused would have considered that the risk of termination was out of proportion to the risk to the mother of the continuation of the pregnancy.” 372

The main rationale for considering an abortion lawful thus depends upon the concept of necessity: see Chapter 6, [6.165]. South Australia, the Northern Territory, Tasmania and Western Australia have special provisions for the medical termination of pregnancy, but a broad concept of necessity forms an essential part of these provisions. In New South Wales, the defence of necessity is available at common law to abortionrelated offences. In R v Davidson, 373 Menhennit J defined the elements of necessity in terms of an honest and reasonable belief that the steps taken are required to preserve the woman from some serious danger and are proportionate to the need to preserve the woman from serious danger. 374 The requirement of proportionality may have been included to emphasise that the later the abortion takes place, the greater the danger for the health of the woman. 375 This part of the test, however, seems largely redundant—if the test of necessity is satisfied because the termination was needed to preserve the woman from serious danger to life or health, then it would seem that the termination was proportionate as well. The danger may be existing or potential and means serious danger to physical or mental health and not merely a normal danger associated with pregnancy and child birth. 376 Economic and social factors may be taken into account in assessing the question of serious danger, but they are not in themselves sufficient grounds for rendering a termination lawful. 377 As McGuire J noted in R v Bayliss, this test does not allow abortion on demand. 378 In the Code jurisdictions, an abortion will be lawful where the pregnancy is terminated by a registered medical practitioner in good faith and with reasonable skill. The performance of the operation must be reasonable and for the patient’s benefit, having regard to the patient’s state at the time and all the circumstances of the case. 379 In addition, in Queensland and Western Australia, a person is not criminally responsible for performing a surgical operation upon an unborn child for the preservation of the mother’s life. Again, the performance of the operation must be reasonable, having regard to the patient’s state at the time and to the circumstances of 372

373 374

375 376 377 378 379

R v Sood [2006] NSWSC 1141 at [17]. See, further, C Stewart, “Late Term Abortion Conviction in New South Wales” (2007) 4 Journal of Bioethical Inquiry 3, and T Brown, “The Carhart Case and Late-Term Abortions—What’s Next for Australia?” (2007) 15(1) Journal of Law and Medicine 23. [1969] VR 667. R v Davidson [1969] VR 667 at 671; R v Wald (1971) 3 NSWDCR 25 at 29; K v Minister for Youth and Community Services [1982] 1 NSWLR 311 at 318; CES v Superclinics Australia Pty Ltd (1995) 38 NSWLR 47. I Elliott, “Australian Letter” [1969] Criminal Law Review 511 at 524–525. R v Davidson [1969] VR 667 at 672 per Menhennit J; CES v Superclinics Australia Pty Ltd (1995) 38 NSWLR 47 at 59–60 per Kirby P. R v Wald (1971) 3 DCR (NSW) 25 at 29 per Levine J. R v Bayliss (1986) 9 QL 8 at 45. Criminal Code (Qld), s 282; Criminal Code (WA), s 259. These sections are not limited to the case where the accused believes the abortion necessary to preserve the woman’s life, but merely lays down the general requirement of reasonableness in all the circumstances. These provisions in the Criminal Codes of Queensland and Western Australia have been taken to incorporate the test set out in R v Davidson [1969] VR 667 at 671: R v Bayliss (1986) 9 QL 8 at 45 per McGuire J; Re Bayliss (unreported, 24/5/1985, QSC, McPherson J, 376 of 1985); K v T [1983] 1 Qd R 396 at 398 per Williams J. The Termination of Pregnancy Law Reform Act 2017 (NT) inserted a new s 208A into the Criminal Code (NT) to similar effect. [9.225]

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the case. 380 In Western Australia, s 334 of the Health Act 1911 (WA) sets out that an abortion will be lawful if serious danger to the physical or mental health of the woman concerned will result if the abortion is not performed, or the pregnancy of the woman concerned is causing serious danger to her physical or mental health. This section also seems to go further than the common law in stating that an abortion is justified if the woman has given informed consent or she will suffer serious personal, family or social consequences if the abortion is not performed. A statutory defence of necessity also applies in South Australia and the Northern Territory. Subparagraph 82A(1)(b) of the Criminal Law Consolidation Act 1935 (SA) requires that the termination be performed in good faith where immediately necessary to save the life, or to prevent grave injury to the physical or mental health, of the pregnant woman. In the Northern Territory, a medical practitioner may perform an emergency termination in order to preserve the life of the woman. 381 There is a duty to perform such an emergency termination eveen where the medical practitioner has a conscientious objection. 382 An abortion will also be lawful in South Australia where the termination of the pregnancy is carried out in a hospital and certain conditions are met. These are that, in the opinion of two medical practitioners, the termination is necessary either because the continuance of the pregnancy would involve a greater risk to the life, or physical or mental health of the woman than if the pregnancy were terminated, or because there is a substantial risk that if the pregnancy is not terminated, the child would suffer from such physical or mental abnormalities as to be seriously handicapped. 383 In the Northern Territory, a termination will be lawful where the medical practitioner considers the termination “is appropriate in all the circumstances”. 384 If the woman is more than 14 weeks pregnant, but not more than 23 weeks pregnant, the medical practitioner must consult with at least one other medical practitioner and each must consider the termination to be appropriate. 385 Section 164(2) of the Criminal Code (Tas) states that an abortion will be legally justified where two medical practitioners have certified that “the continuation of the pregnancy would involve greater risk of injury to the physical and mental health of the pregnant woman than if the pregnancy were terminated” and the woman concerned has given informed consent. The latter is defined in s 164(9) as consent where a medical practitioner has provided the woman with counselling about the medical risks concerned and referred her to counselling about other matters relating to the termination of pregnancy and carrying a pregnancy to term. In South Australia, in determining whether the continuance of a pregnancy would involve a risk of injury to the physical or mental health of a pregnant woman, account may be taken of the woman’s actual or reasonably foreseeable environment. 386

380 381 382 383 384 385 386

Criminal Code (Qld), s 282; Criminal Code (WA), s 259. Termination of Pregnancy Law Reform Act 2017 (NT), s 10. Termination of Pregnancy Law Reform Act 2017 (NT), s 13 Criminal Law Consolidation Act 1935 (SA), s 82A(1)(a). Termination of Pregnancy Law Reform Act 2017 (NT), s 7, 8, 9 Termination of Pregnancy Law Reform Act 2017 (NT), s 9 Criminal Law Consolidation Act 1935 (SA), s 82A(3).

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Procuring abortion through the use of drugs: The first case [9.230] In October 2010 the first case in Queensland to involve a woman charged with procuring her own abortion resulted in an acquittal in the Queensland District Court. 387 Tegan Leach and her partner, Sergie Brennan, were both found not guilty of importing and administering the drugs Mifepristone (sometimes referred to as RU-486) and Misoprostol to procure Leach’s abortion. A jury acquitted the two accused after not being satisfied that the combination of these drugs was a “noxious” substance as required under the offence. Professor Nicholas Fisk gave evidence that the drugs were not harmful to Leach. Kerry Peterson argues that preventing the importation of drugs such as RU-486 into Australia through the Internet and overseas networks is unrealistic and that a regulatory response is needed which will make it unnecessary for women to privately seek such abortion drugs. 388

Child Destruction [9.235] The offence of child destruction involves the killing, prior to birth, of a child capable

of being born alive. It exists in jurisdictions other than New South Wales, Victoria, Tasmania and South Australia. 389 There is, however, a related offence in s 21 of the Crimes Act 1900 (NSW) whereby a woman who is acquitted of the murder of a child she has delivered may be found guilty of an offence if she has wilfully contributed to the death of the child during delivery, or at or after its birth. Further, under s 4 of the Crimes Act 1900 (NSW) and s 15 of the Crimes Act 1958 (Vic), the definitions of “grievous bodily harm” and “serious injury” have been expanded to encompass the destruction of the foetus of a pregnant woman: see [9.30]. In Queensland, an assault on a pregnant woman that seriously injures or kills her unborn child may also give rise to the offence of “killing an unborn child”. 390 The offence deals with cases of a child being born dead because of acts that would have amounted to murder or manslaughter if the child died after birth. It differs from abortion in that it is linked to the killing of a viable foetus, or one that is “capable of being born alive”. Nevertheless, it is closely linked to abortion and, technically, those who commit late-term abortions may be liable for child destruction. Mark Rankin, for example, argues that the child destruction offence may apply to the foetus from early in the second trimester of pregnancy and therefore overlaps with the law relating to abortion. 391 The physical and fault elements differ between jurisdictions, but, in general, the prosecution must prove: • the foetus was capable of being born alive; • the act or omission must be linked to a certain time frame; • the killing must be unlawful; and • the requisite fault element, such as intention or recklessness, must be present. 387 388

389

390 391

R v Brennan and Leach (2010) (unrep, Dist Ct, Qld, Criminal Jurisdiction, Indictment 74 of 2010, DIS – 00000610/10). K Petersen, “Abortion Laws and Medical Developments: A Medico-Legal Anomaly in Queensland” (2011) 18(3) Journal of Law and Medicine 594. On the need to reform abortion laws, see also H Douglas and C de Costa, “Abortion Law Reform Needed” (2015) 40(4) Alternative Law Journal 280. Crimes Act 1900 (ACT), s 42; Criminal Code (NT), s 170; Criminal Code (Qld), s 313(1); Criminal Code (WA), s 290. On the situation in Western Australia, see L Finlay, “Foetal Homicide Law Reform in Western Australia” (2015) 40 The University of Western Australia Law Review 463. Criminal Code (Qld), s 313(2), as amended by s 47(2) of the Criminal Law Amendment Act 1996 (Qld). MJ Rankin, “The Offence of Child Destruction: Issues for Medical Abortion” (2013) 35(1) Sydney Law Review 1. [9.235]

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Physical elements [9.240] The victim must be a child capable of being born alive. 392 Section 82A(8) of the

Criminal Law Consolidation Act 1935 (SA) sets out a statutory presumption that a foetus is capable of being born alive after a gestation period of 28 weeks. There is no corresponding presumption in other jurisdictions. Where the child is less than 28 weeks old, it may be regarded as capable of being born alive if it could breathe independently without deriving any of its living or power of living by or through any connection with its mother. In Rance v Mid-Downs Health Authority, Brook J held that a foetus less than 28 weeks old was “capable of being born alive” if it was capable of “breathing and living by reason of its breathing through its own lungs alone”. 393 This opens the way (at least theoretically) for medical practitioners who perform late-term abortions to be prosecuted for child destruction. Gerard Wright argues that if the foetus is born alive in the course of an abortion, this may constitute murder should the foetus die. 394 In practice, however, prosecutions for child destruction are rare. 395 The timing of the act or omission causing death is expressed differently from one jurisdiction to another. Under s 42 of the Crimes Act 1900 (ACT), the act or omission must have occurred “in relation to a childbirth”. In the Northern Territory, Queensland and Western Australia, the fatal conduct must have occurred when a woman is “about to be delivered of a child”. 396 The offence is therefore linked to the process of birth of a viable foetus. In these jurisdictions, the offence extends to any act or omission during pregnancy that causes the death of a viable foetus. In the Australian Capital Territory, the common law defence of necessity in the context of abortion appears to apply equally to child destruction. Under s 33 of the Criminal Code (NT), the applicable defence is one of sudden and extraordinary emergency. Fault element [9.245] The fault element for the offence varies widely from one jurisdiction to the other, but,

in general, intention or recklessness is required. Section 42 of the Crimes Act 1900 (ACT) stipulates an intentional or reckless prevention of live birth or contribution to death of the child. In the Northern Territory, Queensland and Western Australia, the mental element is required to be the same as that for “an unlawful killing”. This means that any mental state 392

396

This is implied where the provisions impose criminal liability for an act or omission that prevents a child being born alive: Crimes Act 1900 (ACT), s 42; Criminal Code (NT), s 170; Criminal Code (Qld), s 313; Criminal Code (WA), s 290. Rance v Mid-Downs Health Authority [1991] 1 QB 587 at 621. G Wright, “The Legality of Abortion by Prostaglandin” [1984] Criminal Law Review 347. The question of the legal status of a foetus born alive in the course of an abortion is further explored by Michael Eburn in “The Legal Status of a Living Abortus” (1997) 4(4) Journal of Law and Medicine 373. See, further, L Waller, “Tracy Maund Memorial Lecture: Any Reasonable Creature in Being” (1987) 13 Monash Law Review 37; IJ Keown, “The Scope of the Offence of Child Destruction” (1988) 104 Law Quarterly Review 120; V Tunkel, “Late Abortions and the Crime of Child Destruction: (1) A Reply” (1985) Criminal Law Review 133; G Wright, “Late Abortions and the Crime of Child Destruction: (2) A Rejoinder” (1985) Criminal Law Review 140; K Norrie, “Abortions in Great Britain: One Act, Two Laws” (1985) Criminal Law Review 475; DPT Price, “How Viable is the Present Scope of the Offence of Child Destruction?” (1987) 16 Anglo-American Law Review 220; G Wright, “Capable of Being Born Alive?” (1981) 131 New Law Journal 188; DPT Price, “Selective Reduction and Feticide: The Parameters of Abortion” [1988] Criminal Law Review 199. Criminal Code (NT), s 170; Criminal Code (Qld), s 313; Criminal Code (WA), s 290.

576

[9.240]

393 394

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sufficient for murder or manslaughter will suffice. 397 Hence, intentional killings are sufficient, as are those which would have constituted reckless or constructive murder.

Child homicide [9.250] In 2007, Stuart McMaster was sentenced to 13 years’ imprisonment with a minimum of 10 years for the manslaughter of his five-year-old stepson, Cody Hutchings. 398 There was evidence that Cody had been repeatedly beaten with a heavy strap over a period of eight weeks, resulting in approximately 160 bruises over his body, a large gash to his forehead, and two fractures of his skull. As a result of the outcry concerning the sentence, the Victorian Parliament introduced a new offence of “child homicide” 399 into the Crimes Act 1958 (Vic) by the Crimes Amendment (Child Homicide) Act 2008 (Vic). The offence provides that a person who kills a child under the age of six in a context that would otherwise constitute manslaughter is guilty of “child homicide”. While the offence is liable to the same level of punishment as manslaughter, the then Victorian Attorney-General, Rob Hulls, pointed out that the new offence—by identifying the age and vulnerability of the victim—was intended to encourage courts to impose sentences closer to the maximum term. 400

Concealment of Birth [9.255] Concealment of birth is an offence that exists in all jurisdictions to cover cases where

there is insufficient evidence of the murder or manslaughter of a child. Most of the cases dealing with the offence date from the 19th century and it has fallen into disuse in recent times. One of the rare instances in which it has been prosecuted was in addition to a charge of murder. 401 While not an example of “unlawful killing”, it is closely tied to such offences and is best dealt with in this chapter. In relation to the physical elements of the offence, in most jurisdictions there must be a “secret disposition” of a child’s body for the offence to be made out, whereas the word “secret” is omitted in the Australian Capital Territory, Northern Territory and South Australian provisions. 402 The relevant New South Wales provision instead employs the words “wilfully conceals or attempts to conceal”. 403 The word “secret” implies some form of concealment. There was held to be no secret disposition where the child’s body was left in a toilet where the mother had been confined, 404 nor where the child’s body was covered with a petticoat on the bed where the mother lay. 405 However, a secret disposition was held to have occurred where the accused put the body under a bolster upon which she put her head. 406 397 398 399 400 401 402

403 404 405 406

Criminal Code (NT), s 170; Criminal Code (Qld), s 313(1); Criminal Code (WA), s 290. R v McMaster [2007] VSC 13. An appeal by the Director of Public Prosecutions against the sentence was later dismissed: DPP v McMaster (2008) 19 VR 191. Crimes Act 1958 (Vic), s 5A. Crimes Amendment (Child Homicide) Bill 2007, Hansard, Legislative Assembly of Victoria, Second Reading Speech, 6 December 2007, p 4413. R v Ali [2001] QCA 331. Crimes Act 1900 (ACT), s 47; Criminal Code (NT), s 163; Criminal Code (Qld), s 314; Criminal Law Consolidation Act 1935 (SA), s 83(1); Criminal Code (Tas), s 166(1); Crimes Act 1958 (Vic), s 67; Criminal Code (WA), s 291. Crimes Act 1900 (NSW) s 85(1). R v Derham (1843) 1 Cox CC 56; cf R v Hughes (1850) 4 Cox CC 447. R v Rosenberg (1906) 70 JP 264. R v Perry (1855) Dears CC 471; see also R v Veaty (1910) 74 JP Jo 352. [9.255]

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In R v Brown, Bovil CJ stated that leaving the child’s body fully exposed but in a secluded place, such as “on top of a mountain”, would amount to a secret disposition. 407 Leaving the dead body in a street, however, would not be sufficient. 408 Concealment does not mean from a particular individual, but from the world at large. 409 The disposition must be that of a dead body. 410 However, it is irrelevant whether or not the child was born dead. 411 The offence does not cover those cases of concealment of the body of a child born or aborted in the early stages of pregnancy. The child must have had “a fair chance of life when born”. 412 In the Australian Capital Territory and New South Wales, it is a defence if the child had issued from the body of the mother before the expiration of the 28th week of pregnancy. 413 Under s 166(2) of the Criminal Code (Tas), the offence does not apply to the situation where the child has not reached such a stage of maturity as would, in the ordinary course of nature, render it probable that such child would live. In relation to the fault element, the offence requires an intention to conceal the birth of a child from the world at large. This requirement is clearly set out in the Australian Capital Territory, Northern Territory and New South Wales legislation. 414 It is also implicit in the term “endeavours” in the appropriate sections of the other jurisdictions. 415 The offence is not made out where the accused simply intended to conceal the fact of birth from an individual or individuals. 416 The lack of use of this offence in recent times has led to calls for its abolition. As Peter English concludes: “The offence seems to be of only minor importance and it is submitted that it could be safely repealed, leaving the conduct presently covered by it to be dealt with by the general law on improper disposal of dead bodies.” 417

The MCCOC has also recommended that this offence be abolished and, given the lack of prosecutions under this head, we support this recommendation. 418

CONCLUSION [9.260] It is often said that murder is a paradigmatic offence at the core of criminal law

theory, a claim underscored by the universality of the offence across legal cultures and the 407 408

409 410 411

412

413 414 415 416 417 418

578

R v Brown (1870) 11 Cox CC 517 at 519. R v Clark (1883) 15 Cox CC 171. See also R v Sleep (1864) 9 Cox CC 559; R v Cook (1870) 11 Cox CC 542; R v Rosenberg (1906) 70 JP 264; R v George (1868) 11 Cox CC 41; R v Waterage (1846) 1 Cox CC 338; R v Mappin (1904) 6 WALR 161; R v Narden (1873) 12 SCR(NSW) 160. R v Morris (1848) 2 Cox CC 489; R v Higley (1830) 4 C & P 366; R v Jacob [1932] SASR 456. R v Turner (1846) 173 ER 704. Crimes Act (ACT), s 47(1); Crimes Act 1900 (NSW), s 85(1); Criminal Code (NT), s 163; Criminal Code (Qld), s 314; Criminal Law Consolidation Act 1935 (SA), s 83(1); Criminal Code (Tas), s 166(1); Crimes Act 1958 (Vic), s 67; Criminal Code (WA), s 291; R v Donoghue [1914] VLR 195. R v Hewitt and Smith (1866) 4 F & F 1101; R v Berriman (1854) 6 Cox CC 388. Cf R v Colmer (1864) 9 Cox CC 506 where Martin B held that a foetus not bigger than a finger, but having the shape of a child, could be considered to be a child for the purposes of the appropriate legislation. Crimes Act (ACT), s 47(2); Crimes Act 1900 (NSW), s 85(2). Crimes Act 1900 (ACT), s 47(1); Criminal Code (NT), s 163; Crimes Act 1900 (NSW), s 85(1). Criminal Code (Qld), s 314; Criminal Law Consolidation Act 1935 (SA), s 83(1); Criminal Code (Tas), s 166(1); Crimes Act 1958 (Vic), s 67; Criminal Code (WA), s 291. R v Jacob [1932] SASR 456 at 458 per Parsons J. P English, “Homicide Other Than Murder” [1977] Criminal Law Review 79 at 89. Model Criminal Code Officers Committee, Chapter 5—Fatal Offences Against the Person, Discussion Paper (June 1998) p 197. [9.260]

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serious moral condemnation and penalties that attach to findings of guilt in this regard. 419 For this reason, the topic of murder looms large in law school curricula as the primary offence—along with rape—through which the principles of responsibility (such as intention, recklessness and causation) are taught. Adopting a critical perspective, however, reveals a less ordered structure of criminal liability and the absence of any “true” core of culpability for these offences. In this overview of unlawful killing and associated offences, we have identified a number of enduring legal controversies relating to both criminalisation and culpability, including: • Should there be a category of murder based on intent to do grievous bodily harm? • Should there be a category of reckless murder? • Should there be a category of constructive murder? • Should there be a single category of dangerous act or omission manslaughter? • Should there be a separate offence of causing death through culpable driving? • Should assisting suicide be a crime, or participation in a suicide pact serve as an excuse? • What role should the criminal law play in relation to abortion? • Should advances in medical technology redefine the point of life (and death) for the purposes of unlawful killing and offences such as abortion and child destruction? Criminal law doctrine purports to embody a conception of the moral subject who reasons and responds in particular ways. As Ngaire Naffine points out, this presupposes a universal human nature, unaffected by time, place and culture. 420 While attractive to criminal law theorists, this model tends to be divorced from the messy lives of real-world offenders and the myriad of motivations that lie behind human behaviour. In her view, it is essential to recognise, rather than suppress, this complexity when discussing the making, breaking and enforcement of the criminal law, 421 and, as we attempted in this chapter, to encourage the exploration of the political, social and criminological contexts of unlawful killings.

419

420

421

See N Naffine, “Moral Uncertainties of Rape and Murder” in B McSherry, A Norrie and S Bronitt (eds), Regulating Deviance: The Redirection of Criminalisation and the Futures of Criminal Law (Oxford: Hart, 2008). See N Naffine, “Moral Uncertainties of Rape and Murder” in B McSherry, A Norrie and S Bronitt (eds), Regulating Deviance: The Redirection of Criminalisation and the Futures of Criminal Law (Oxford: Hart, 2008). In developing her critique, Naffine draws heavily on the work of distinguished Oxford philosopher, John Gardner, who examines culpability questions related to homicide through the Aristotelian ideas of “virtue” and good character. Rather than the law examine the psychology or social conditions of battered women who kill, the Aristotelian approach to culpability focuses on whether the accused “lived up to expectations in the normative sense”: at pp 218–219. N Naffine, “Moral Uncertainties of Rape and Murder” in B McSherry, A Norrie and S Bronitt (eds), Regulating Deviance: The Redirection of Criminalisation and the Futures of Criminal Law (Oxford: Hart, 2008) p 224. [9.260]

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Offences Against the Person Man’s inhumanity to man Makes countless thousands mourn 1 [10.05]

INTRODUCTION ........................................................................................................................ 581

[10.15] [10.20] [10.55] [10.60]

ASSAULT .................................................................................................................................... 584 Common Assault—Physical Elements ......................................................................................... 585 Common Assault—The Fault Element ......................................................................................... 590 Aggravated Assaults ................................................................................................................... 592

[10.110] [10.115] [10.120] [10.125] [10.130] [10.135] [10.140]

LAWFUL ASSAULT ....................................................................................................................... 607 Ordinary Social Activity .............................................................................................................. 608 Arrest ......................................................................................................................................... 608 Self-Defence ............................................................................................................................... 608 Provocation ............................................................................................................................... 609 Lawful Correction of Children .................................................................................................... 610 Consent ..................................................................................................................................... 613

[10.170]

THREATS .................................................................................................................................... 625

[10.180]

OFFENCES ENDANGERING LIFE OR PERSONAL SAFETY ............................................................. 628

[10.185]

FALSE IMPRISONMENT, KIDNAPPING AND ABDUCTION ........................................................... 630

[10.190]

CONCLUSION ........................................................................................................................... 632

INTRODUCTION [10.05] The criminal law relating to offences against the person is primarily statutory and

encompasses a wide range of offences, such as assault, unlawful wounding, kidnapping, stalking and female genital mutilation. In most Australian jurisdictions, offences against the person are based on modifications of the Offences Against the Person Act 1861 (UK). 2 This Act largely consolidated the common law together with a variety of statutory provisions. The structure of the offences in the Offences Against the Person Act 1861 leaves much to be desired. On 20 January 1877, Sir James Stephen wrote in a letter to Sir John Holker: 1 2

Robert Burns (1759–1796), “Man was Made to Mourn” in R Burns, Poems 1786 and 1787 (Menston: The Scholar Press, 1971). 24 & 25 Vict c 100.

[10.05]

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“Their arrangement is so obscure, their language so lengthy and cumbrous, and they are based upon and assume the existence of so many singular common law principles that no-one who was not already well acquainted with the law would derive any information from reading them.” 3

In 1985, the Victorian Parliament enacted a scheme of offences that departed quite dramatically from the 1861 statutory provisions. This scheme was based on a proposal originally put forward by the English Criminal Law Revision Committee in 1980. 4 The proposal was again recommended in a modified form by the Law Commission for England and Wales in Criminal Law: A Criminal Code for England and Wales? 5 and, again, in Legislating the Criminal Code: Offences Against the Person and General Principles. 6 The Victorian scheme sets out offences based on causing injury, thereby focusing on the degree of harm caused. The Model Criminal Code Officers Committee (MCCOC) suggested that a similar scheme based on degrees of fault and seriousness of injury should provide the basis for the Model Criminal Code. 7 This scheme has been enacted in South Australia and the Northern Territory. 8 At present, there is much overlap between offences and, accordingly, a great deal of discretion has been given to the police, prosecuting authorities, magistrates and judges in the trial process. Social attitudes toward particular types of violence can be highly persuasive in defining what constitutes offences against the person. Arlie Loughnan has observed that the creation of new offences is now a feature of parliamentary activity. 9 Historically, there has been a reluctance to prosecute assaults that occur in the context of the home. 10 Nicholas Seddon writes that this may partly be because of the shame felt by victims of family violence: “Though violence against a family member is undoubtedly criminal conduct, deep-seated beliefs about the privacy of the family and shame about exposing a failure in the family relationship to the outside world act as powerful deterrents. Resort to law is, therefore, often a sign of desperation.” 11

It has been exceptionally difficult to deal with family violence because of complex social attitudes toward the private realm. However, in the past two decades, there has been a growing awareness of the personal and social costs caused by family violence. This has elicited a range of legislative and policy responses. In the family law context, the enactment of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) has sought to reform the manner in which courts handle cases involving family violence and 3

4 5 6 7 8

9 10 11

Sir James Stephen, “Letter to Sir John Holker, 20 January 1877”, cited by R Cross, “The Reports of the Criminal Law Commissioners (1833–1849) and the Abortive Bills of 1853” in P Glazebrook (ed), Reshaping the Criminal Law (London: Stevens and Sons, 1978) p 10. Offences Against the Person, Fourteenth Report (Cmnd 7844, 1980). Law Commission for England and Wales, Criminal Law: A Criminal Code for England and Wales, Law Comm No 177 (1989). Law Commission for England and Wales, Legislating the Criminal Code: Offences Against the Person and General Principles, Law Comm No 218 (1993). Model Criminal Code Officers Committee, Chapter 5—Non Fatal Offences Against the Person, Discussion Paper (1996); Chapter 5—Non Fatal Offences Against the Person, Report (1998). Criminal Law Consolidation Act 1935 (SA), ss 20 – 29 (amended by the Statutes Amendment and Repeal (Aggravated Offences) Act 2005 (SA)); Criminal Code (NT), ss 149C, 174C – 174E (inserted by the Criminal Code Amendment (Criminal Responsibility Reform) Act 2005 (NT)). A Loughnan, “Drink Spiking and Rock Throwing: The Creation and Construction of Criminal Offences in the Current Era” (2010) 35(1) Alternative Law Journal 18. A Cretney and G Davis, “Prosecuting ‘Domestic’ Assault” [1996] Criminal Law Review 162 at 163. N Seddon, Domestic Violence in Australia (2nd ed, Sydney: Federation Press, 1993) p iv.

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child abuse. 12 In February 2012, the Australian Law Reform Commission tabled a report, 13 which makes 102 recommendations for responding to the continued prevalence of family violence in Australia. 14

Statistics on family violence [10.10] A report by the National Council to Reduce Violence against Women and their Children estimated in 2009 that family violence in Australia costs the economy $13.6 billion a year due to the health impacts of high rates of injury, depression, anxiety and drug abuse, amongst other factors. 15 A report by PriceWaterhouseCoopers (PwC) Australia estimated in 2015 that violence against women costs $21.7 billion a year, with victims bearing the primary burden of this cost. 16 These figures are, of course, just an estimate because it is very difficult to gather reliable statistics on the extent of family violence in Australia. One of the best indications of the level of violence to date remains the 1996 Australian Bureau of Statistics’ National Women’s Safety Study that involved interviewing 6,300 women. In that sample, 23% of women who had ever been married or had been in a de facto relationship had experienced violence. “Violence” was defined as any incident involving the occurrence or attempt or threat of either physical or sexual assault. 17 In 2005, an Australian Crime Victimisation Survey found that 2% of the 3,584 women surveyed by telephone had reported assaults or threats by partners over the five-year period. 18 However, the report on the survey’s findings points out that such surveys tend to underestimate the level of family violence “as the methodology or question wording is not designed specifically to measure sensitive experiences that victims may be reluctant to discuss”. 19 28% of those who reported being assaulted or threatened by an intimate partner feared retaliation on the part of the offender if they involved the police. 20 An Australian Crime Victimisation Survey conducted in 2013–2014 by the Australian Bureau of Statistics revealed that a significant number of victims of physical assault were female with women found more likely than men to have been physically assaulted by someone known to them 12

13 14

15

16 17 18 19 20

Inserting s 4AB into the Family Law Act 1975 (Cth). See P Parkinson, “The 2011 Family Violence Amendments: What Difference Will They Make?” (2012) 22(2) Australian Family Lawyer 1; A Sifris and A Parker, “Family Violence and Family Law: Where to Now?” (2014) 4(1) Family Law Review 3; Z Rathus, “Shifting Language and Meanings Between Social Science and the Law: Defining Family Violence” (2013) 36(2) University of New South Wales Law Journal 359. Australian Law Reform Commission, Family Violence and Commonwealth Laws—Improving Legal Frameworks, Report No 117 (2012). See “Report of the Australian Law Reform Commission (Report No 117) on Family Violence and Commonwealth Laws—Improving Legal Frameworks” (2012) 38(3) Commonwealth Law Bulletin 531. This final report built upon an earlier 2010 joint report between the Australian and also New South Wales Law Reform Commissions, Family Violence—A National Legal Response, ALRC Report No 114 (2010); see H Astor and R Croucher, “Family Violence Victims Seeking Clear Path to Help” (2010) 84(12) Law Institute Journal 75. National Council to Reduce Violence against Women and their Children. The cost of violence against women and their children, Report (2009), https://www.dss.gov.au/sites/default/files/documents/05_2012/vawc_ economic_report.pdf (cited 30 November 2016). PriceWaterhouseCoopers, A High Price to Pay: The Economic Case for Preventing Violence Against Women (2015), https://pwc.docalytics.com/v/a-high-price-to-pay (cited 30 November 2016). Australian Bureau of Statistics, Women’s Safety, Australia (Canberra: AGPS, 1996). See, further, P Parkinson and J Behrens, Australian Family Law in Context (3rd ed, Sydney: Lawbook Co, 2004) Ch 9. H Johnson, Crime Victimisation in Australia: Key Results of the 2004 International Crime Victimisation Survey, Report, Australian Institute of Criminology: Research and Public Policy Series No 64 (2005) p 24. H Johnson, Crime Victimisation in Australia: Key Results of the 2004 International Crime Victimisation Survey, Report, Australian Institute of Criminology: Research and Public Policy Series No 64 (2005) p 23. H Johnson, Crime Victimisation in Australia: Key Results of the 2004 International Crime Victimisation Survey, Report, Australian Institute of Criminology: Research and Public Policy Series No 64 (2005) p 44. [10.10]

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(74% compared with 52%). Intimate partners are the most common perpetrators of assaults against women (30%) followed by family members (14%). 21

In this chapter, we will outline the current law relating to the offences of assault, aggravated assault and the related offences of threats, offences endangering life or personal safety and false imprisonment, child abduction and kidnapping. We will also outline the different categories of lawful assault, paying particular attention to the issue of consent, as well as having separate sections on female genital mutilation, stalking and consent relating to sadomasochism. The final concluding section will deal with the proposals for reform put forward by the MCCOC.

ASSAULT [10.15] The term “assault” is now generally used to encompass two types of unlawful

interference with the person of another. In the first instance, an assault is any act committed intentionally or recklessly which puts another person in fear of immediate and unlawful personal violence. In addition, the term “assault” may be used to encompass the situation where a person causes force to be applied to the body or clothing of another. This type of assault was formerly referred to at common law as “battery”, but this distinction no longer applies as both statute and case law use the term “assault” to cover both putting another in fear and the use of force. 22 In this chapter, the first type of assault will be referred to as “assault by the threat of force”, and the second as “assault using force”. The various statutory provisions also draw a distinction between “common” assault and a number of more serious offences, generally termed “aggravated assaults”, which are built upon the proof of the commission of an assault. “Common” assault exists in statutory form in all jurisdictions apart from Victoria. 23 Common assault at common law was not abolished in Victoria when the statutory scheme was introduced. 24 However, there is now a prescribed maximum penalty of five years. 25 The structure of the more serious assaults divides them into common assaults aggravated by either the nature of the intent of the accused, the status of the victim or by the harm thereby done. Because these offences share the fact that they are built upon the occurrence of a common assault, an alternative verdict of common assault is generally available where the circumstances of aggravation or its accompanying mental state are not proven. For example, in the Australian Capital Territory, the Northern Territory, Queensland and Tasmania, common assault is an alternative verdict to wounding. 26

21 22 23

24 25 26

584

Australian Bureau of Statistics, Crime Victimisation, Australia–2014-15 (2016). R v Lynsey [1995] 3 All ER 654. See Ipp JA in Presidential Security Services of Australia Pty Ltd v Brilley (2008) 73 NSWLR 241 at 261. Crimes Act 1900 (ACT), s 26; Crimes Act 1900 (NSW), s 61; Criminal Code (NT), s 188; Criminal Code (Qld), s 335; Criminal Law Consolidation Act 1935 (SA), s 20; Criminal Code (Tas), s 184; Criminal Code (WA), s 313. R v Patton [1998] 1 VR 7. See Gummow, Hayne and Crennan JJ in White v Director of Military Prosecutions (2007) 231 CLR 570 at 599. Crimes Act 1958 (Vic), s 320. Crimes Act 1900 (ACT), s 49; Criminal Code (NT), s 315; Criminal Code (Qld), s 575; Criminal Code (Tas), s 334A. [10.10]

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Common Assault—Physical Elements [10.20] Common assault may occur either by the threat of force or through the use of force.

The common law definition of assault applies in the Australian Capital Territory, New South Wales and Victoria. The leading case setting out this definition is Fagan v Commissioner of Metropolitan Police, in which James LJ stated: “An assault is any act which … causes another person to apprehend immediate and unlawful personal violence … and the actual intended use of unlawful force to another person without his [or her] consent.” 27

The Code jurisdictions and South Australia offer statutory definitions of assault that are of similar effect. 28 As encapsulated by Refshauge J in R v Shankar Ramalingam: 29 “The ingredients or elements of the offence [are]: (1) the infliction of force or threat of the infliction of force on another to put them in fear; (2) the intention to do those acts or being reckless as to whether they will inflict force or engender fear; (3) the other person does not consent; and (4) the force is unlawful.” 30

The threat of force [10.25] An assault by the threat of force is any act committed intentionally or recklessly

which puts another person in fear of immediate and unlawful personal violence or, in the Code jurisdictions, indicates an actual or apparent present ability to apply force. 31 There are divergent views between jurisdictions as to the answers to the following four questions: • What sort of conduct is sufficient to amount to a threat of force? • Must the victim know of the accused’s act? • What constitutes the requirement of immediacy or actual or apparent present ability to commit force? • Will a conditional threat suffice?

Conduct constituting a threat of force [10.30] In relation to the first area of concern, an omission to act cannot constitute an

assault. 32 Some form of positive act is necessary, such as a threatening gesture. In Tasmania, the use of words alone cannot constitute an assault. 33 Section 245 of the Criminal Code (Qld) and s 222 of the Criminal Code (WA) use language appropriate only to physical gestures. In 27 28 29 30 31

32 33

Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439 at 444. See R v McGuckin [2014] ACTSC 242; Knight v The Queen (1988) 35 A Crim R 314; R v Cordell [2009] VSCA 128. Criminal Code (NT), s 187; Criminal Code (Qld), s 245(1); Criminal Law Consolidation Act 1935 (SA), s 20; Criminal Code (Tas), s 182; Criminal Code (WA), s 222. [2011] ACTSC 86. [2011] ACTSC 86 at [174]. Criminal Code (NT), s 187(b); Criminal Code (Qld), s 245; Criminal Code (Tas), s 182(1); Criminal Code (WA), s 222; Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439; R v Venna [1975] 3 All ER 788; Rozsa v Samuels [1969] SASR 205; Knight (1988) 35 A Crim R 314; R v Bruer (2012) 114 SASR 365. Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439 at 444 per James LJ. R v Cordell [2009] VSCA 128 at [83] per Nettle and Dodds-Streeton JJA and Coughlan AJA. Criminal Code (Tas), s 182(2). [10.30]

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contrast, in the Northern Territory and at common law, an assault by the threat of force may be evidenced either by bodily movement or threatening words by themselves. 34 Threatening words made over the telephone may amount to an assault at common law. 35 But what of silence? In the case of R v Ireland; R v Burstow, the House of Lords took a broad approach to the definition of a positive act in holding that the making of a series of silent telephone calls that caused fear of immediate and unlawful bodily harm amounted to assault. Lord Steyn held: “[T]he critical question [is] whether a silent caller may be guilty of an assault. The answer to this question seems to me to be ‘Yes, depending on the facts.’ … Take now the case of the silent caller. He intends by his silence to cause fear and he is so understood … As a matter of law the caller may be guilty of an assault: whether he is or not will depend on the circumstance and in particular on the impact of the caller’s potentially menacing call or calls on the victim.” 36

The victim’s mental state [10.35] The second divergent area concerns the victim’s mental state. At common law, the act

constituting assault must be such as to raise an apprehension of immediate bodily harm in the mind of the person threatened. 37 This requires the victim’s knowledge or perception of the threat so that pointing a gun at the back of a person’s head or holding a knife over a sleeping person would not amount to an assault. 38 As stated by Macaulay J in Brown v Spectacular Views Pty Ltd: 39 “An assault is any act of one person which directly, and either intentionally or negligently, causes another person to immediately apprehend unlawful contact with his or her person.” 40

An apprehension of personal violence may exist even where the accused is not in a position to carry out the threat. For example, if a victim reasonably believes that a firearm may be loaded and that he or she is within range, the accused’s actions may amount to an assault whether the gun is actually loaded or not. 41 In R v Everingham, 42 the accused pointed a toy gun at a taxi driver who thought that it was real. The New South Wales Court of Appeal held that these facts established “as clear a case of assault” as could be imagined. 43 At the opposite end of the scale, there may be no assault where the victim believes in facts that remove the apprehension. The facts of the following case illustrate this point. In R v Lamb, 44 the accused and the victim were playing “Russian Roulette” with a loaded revolver. In this case, the apprehension normally experienced by a person at whom a loaded gun is pointed was absent. This was due to a mistaken belief, shared by the accused and the victim, that neither of the two bullets in the chamber would be discharged because they were not opposite the firing pin. 34

42 43 44

Criminal Code (NT), s 187(b); R v Secretary (1996) 5 NTLR 96 per Mildren J; R v Tout (1987) 11 NSWLR 251 at 256–257 per Lee J; Knight (1988) 35 A Crim R 314 at 318 per Lee J. Barton v Armstrong [1969] 2 NSWLR 451 at 455 per Taylor J; R v Knight (1998) 35 A Crim R 31; Slaveski v Victoria [2010] VSC 441 per Kyrou J at [229]. R v Ireland; R v Burstow [1998] AC 147 at 162. R v McNamara [1954] VLR 137 at 138; Brady v Schatzel [1911] QSR 206. State v Barry (1912) 45 Mont 598; Pemble v The Queen (1971) 124 CLR 107 at 134 per Menzies J, at 141 per Owens J; R v Lamb [1967] 2 QB 981. [2011] VSC 197. [2011] VSC 197 at [85]. R v St George (1840) 9 Car & P 483; R v Everingham (1949) 66 WN (NSW) 122; Logdon v DPP [1976] Crim LR 121. (1949) 66 WN (NSW) 122. R v Everingham (1949) 66 WN (NSW) 122 at 122. [1967] 2 QB 981.

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In the Code jurisdictions, however, it appears possible for an assault to occur where a person has an actual ability to apply force to another regardless of whether or not the victim has knowledge of that ability. 45 Emphasis in these jurisdictions is placed on an actual present ability to apply force or an apparent present ability. Where there is an actual ability, it is irrelevant whether or not the victim has knowledge of that ability. 46 Where, however, there is an apparent present ability, the emphasis on the victim’s apprehension is similar as for the common law. The victim must believe that the accused has an ability to apply force. This belief, in Tasmania, must be based upon reasonable grounds. 47 The inquiry into the victim’s apprehension of the accused’s ability to apply force involves a subjective test. It does not depend upon what a reasonable person would have apprehended, but what the victim himself or herself apprehended. In Barton v Armstrong, 48 in the context of determining the civil liability for assault, the Supreme Court of New South Wales set out an objective test, but this has not been followed. 49 Perhaps because the inquiry into the victim’s apprehension is subjective, there is some confusion in the case law as to whether or not the prosecution must show that the victim was in fact put in fear. In Brady v Schatzel; Ex parte Brady, 50 the victim gave evidence that when the accused pointed a gun at him, he did not believe the accused would fire it. It was argued that because the victim was not afraid, there was no assault. This argument was rejected and it was held that there could be an assault even where the victim was not put in fear. Chubb J of the Queensland Supreme Court stated: “[I]t is not material that the person assaulted should be put in fear … 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.” 51

All that is needed on this view is the anticipation of the application of unlawful personal violence. Similarly, in Brown v Spectacular Views Pty Ltd, 52 Macaulay J stated: “It is clear that whilst a person must be placed in a reasonable apprehension of imminent unlawful contact, it is not necessary that they anticipate fear, however it is usually the case that they will.” 53

The case of Wilson v Kuhl; Ryan v Kuhl 54 provides an opposing perspective. The victim was in a cubicle in a public toilet at a railway station. The accused pushed a knife through a hole in the partition between the cubicles in order, he claimed, to stop the victim from annoying him. McGarvie J of the Supreme Court of Victoria held that there was no assault in these circumstances because the victim had not been put in fear: “[O]n the evidence it could not be inferred that the defendant’s conduct created in Matthews [the ‘victim’] a fear of violence. Matthews said that he realized at the time that the person in the next cubicle could not harm him with the knife while he remained in his cubicle. He also said that the sight of the knife had not scared him and said that he had not gone to the station master because he was 45 46 47 48 49 50 51 52 53 54

Criminal Code (NT), s 187(b); Criminal Code (Qld), s 245; Criminal Code (Tas), s 182(1); Criminal Code (WA), s 222. Criminal Code (NT), s 187(b); Criminal Code (Qld), s 245; Criminal Code (Tas), s 182(1); Criminal Code (WA), s 222. Criminal Code (Tas), s 182(1). [1969] 2 NSWLR 451. See, for example, MacPherson v Beath (1975) 12 SASR 174 at 177 per Bray CJ. [1911] St R Qd 206. Brady v Schatzel; Ex parte Brady [1911] St R Qd 206 at 208. [2011] VSC 197. [2011] VSC 197 at [86]. [1979] VR 315. [10.35]

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frightened. On the other hand he also gave evidence that the sight of the knife had shocked him, that he said out aloud, ‘Are you mad or something?’, then opened the door and walked quickly out of the toilet.” 55

The main benefit of focusing on the accused’s mental state is that it complies with the general principle of taking one’s victim as one finds him or her. This principle has certainly been at the forefront of the law relating to unlawful killing. 56 However, if the MCCOC’s approach is to be followed, the focus will be on the degree of harm caused and therefore the effect of the threat of force on the victim will be of central concern. 57

The notion of immediacy [10.40] There is a further lack of clarity as to what is meant by the requirement of immediacy

or actual or apparent present ability to commit force. At common law, there must be an apprehension of immediate bodily harm. 58 Instances where bodily harm has been considered to be immediate include: • where the accused was in another room; 59 • where the accused was on the other side of a locked door, apparently about to break it down; 60 • where the accused opened a drawer and showed the victim a gun declaring that he would hold her hostage; 61 and • where the accused peered in through a bedroom window at the victim who was wearing her night clothes. 62 The general rule is that where a threat is made, even in the most menacing fashion, of future violence, an assault will not be made out. For example, in Knight, 63 the accused had made a series of threatening phone calls. The New South Wales Court of Criminal Appeal held that since the calls were made from an appreciable distance away and the recipients of the calls were not in any danger of immediate violence, there was no conduct that could constitute an assault: “They were mere threats which may have been executed at anytime if at all.” 64 However, the requirement of immediacy has been criticised as being too restrictive. In Barton v Armstrong, which concerned a tort action for assault, Taylor J commented: “Being able to immediately carry out the threat or being thus perceived by [the victim] is but one way of creating the fear of apprehension, but not the only way. There are other ways, more subtle and perhaps more effective … If the threat produces the fear or apprehension of physical violence then I am of [the] opinion that the law is breached, although the victim does not know when that physical violence may be effected.” 65

In that case, a telephone threat of serious violence by a person in authority whom the victim feared was held to constitute an assault. 55 56 57 58 59 60 61 62 63 64 65

Wilson v Kuhl; Ryan v Kuhl [1979] VR 315 at 327. See, for example, Mamote-Kulang of Tamagot v The Queen (1964) 111 CLR 62; R v Blaue [1975] 1 WLR 1411; Hubert (1993) 67 A Crim R 181. Model Criminal Code Officers Committee, Chapter 5—Non-Fatal Offences Against the Person, Report (1998). Wilson v Pringle [1986] 2 All ER 440; Logdon v DPP [1976] Crim LR 121; Knight (1988) 35 A Crim R 314. R v Lewis [1970] Crim LR 647. Beech (1912) 7 Cr App R 197. Logdon v DPP [1976] Crim LR 121. Smith v Chief Superintendent Woking Police Station (1983) 76 Cr App R 234. (1988) 35 A Crim R 314. Knight (1988) 35 A Crim R 314 at 317 per Lee J. Barton v Armstrong [1969] 2 NSWLR 451 at 455.

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There is no requirement of immediacy in the Code jurisdictions. Rather, the emphasis is on the “present ability” of the accused to carry out the threat. 66 This term is said to bear its ordinary meaning. 67 Just what time period is appropriate for a “present” ability is unclear. There is some reason to believe that at common law the requirement for immediacy may be relaxed in some circumstances. For example, in Zanker v Vartzokas, 68 the victim accepted a lift from the accused. Once in the car, the accused offered the victim money for sex. The victim refused and demanded that she be let out of the car. The accused kept accelerating the car and stated: “I am going to take you to my mate’s house. He will really fix you up”. The victim then jumped out of the car. The Supreme Court of South Australia held that: “A present fear of relatively immediate imminent violence was instilled in her mind from the moment the words were uttered and that fear was kept alive in her mind, in the continuing present, by continuing progress with her as prisoner, towards the house where the feared sexual violence was to occur.” 69

However, in R v Gabriel, 70 Higgins CJ of the ACT Supreme Court expressed the view that Zanker was incorrectly decided. He stated that the words “imminent” and “immediate” should be given their ordinary meanings. Accordingly, he found a threat that physical violence might occur “in the more distant future” was neither imminent nor immediate and the fact the person threatened was unlawfully detained did not change this. 71

Conditional threats [10.45] Finally, there is some lack of clarity as to whether a conditional threat will suffice for

assault. This matter was raised in Rozsa v Samuels. 72 The accused was a taxi driver who was convicted of assaulting another taxi driver who had objected to his “queue jumping”. The victim had remonstrated with the accused and said he would punch the accused in the head. The accused produced a knife and said, “I will cut you to bits if you try it”. The question on appeal to the Supreme Court of South Australia was whether or not the threat to use force, accompanied by words which indicate the threat was conditional, constituted an assault. The Court held that the mere fact that the threat was conditional did not prevent it constituting one of the elements necessary to establish assault. The Supreme Court accepted that the common law draws a distinction between: • a conditional threat that is unlawful (one that the party has no right to impose) which constitutes an assault; and • a conditional threat that is lawful (one that the party has the right to impose) which is not an assault. An example of this would be where the threat is made to apply force unless the person threatened desists from some unlawful course of action. On the facts, the accused’s conditional threat was considered unlawful because it went beyond what was reasonable in self-defence and his appeal was, therefore, dismissed. It is unclear whether this interpretation carries over into the Code jurisdictions. It could be argued that it 66 67 68 69 70 71 72

Criminal Code (NT), s 187; Criminal Code (Qld), s 245; Criminal Code (Tas), s 182; Criminal Code (WA), s 222; Lees v Visser (2000) 9 Tas R 103. R v Secretary (1996) 5 NTLR 96 at 104–105. (1988) 34 A Crim R 11. Zanker v Vartzokas (1988) 34 A Crim R 11 at 14 per White J. (2004) 182 FLR 102. R v Gabriel (2004) 182 FLR 102 at 117; See discussion per Kyrou J in Slaveski v Victoria [2010] VSC 441 at [238]-[240]. [1969] SASR 205. [10.45]

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does, given there is no requirement for immediacy. In R v Secretary, 73 the Northern Territory Court of Criminal Appeal held that a threat can be of future violence and the issue of “present ability” is to be determined with reference to the circumstances at the time when the threat would supposedly be carried out. On this basis, a conditional threat can be assessed in relation to when it would be carried out. The use of force [10.50] An assault by the use of force occurs where a person, intentionally or recklessly,

causes force to be applied to the body or clothing of another. 74 An assault may occur not only where force is applied to the body of the victim, but also where clothing is slashed or rubbed. 75 The force used need not be violent, but can be as slight as a mere touch. 76 Thus, kissing or touching another who does not consent to such conduct may constitute an assault. If an injury results from the application of force and it is more than minor, then the accused may be charged with an aggravated assault. Usually, an assault is committed by delivering a blow with a limb or using a weapon of some kind. However, the Queensland and Western Australian provisions specifically define the use of force so as to include the application of heat, light, electrical force, gas or odour so as to cause injury or personal discomfort. 77 At common law, it appears that the application of force must be direct in that it must be aimed at the victim or an object on which the victim is supported. 78 In comparison, in the Code jurisdictions, indirect application of force is sufficient provided that there is adequate evidence of causation. 79

Common Assault—The Fault Element [10.55] In all jurisdictions, a common assault may be committed intentionally or recklessly. 80

Although the Queensland and Western Australian Criminal Codes do not specify the fault requirement for an assault, it has been accepted that the fault element is the same as for the common law. 81 Assault has been referred to as a crime of basic intent, 82 in that it is a crime involving a specified form of conduct and intention which is therefore indicative of the accused having meant to perform the conduct. Thus, for assault by the threat of force, the accused 73 74

82

(1996) 5 NTLR 96. Beal v Kelley [1951] 2 All ER 763; Fairclough v Whipp [1951] 2 All ER 834; DPP v Rogers [1953] 2 All ER 644; Rolfe (1952) 36 Cr App R 4; R v McCormack [1969] 2 QB 442; Fagan v Metropolitan Police Commissioner [1969] 1 QB 439; R v Venna [1976] QB 421; R v Spratt [1990] 1 WLR 1073; R v Parmenter [1991] 3 WLR 914; The Queen v Ramalingam [2011] ACTSC 86; Criminal Code (NT), s 187(a); Criminal Code (Qld), s 245(1); Criminal Code (Tas), s 182(1); Criminal Code (WA), s 222. R v Day (1845) 1 Cox 207; Thomas (1985) 81 Cr App R 331. Collins v Wilcock [1984] 1 WLR 1172. Criminal Code (Qld), s 245(2); Criminal Code (WA), s 222. R v Salisbury [1976] VR 452; Commissioner of Police v Wilson [1984] AC 242; R v Sheriff [1969] Crim LR 260. Criminal Code (NT), s 187(a); Criminal Code (Qld), s 245(1); Criminal Code (Tas), s 182(1); Criminal Code (WA), s 222. R v Spratt [1991] 2 All ER 210; Vallance v The Queen (1961) 108 CLR 56; Leonard v Morris (1975) 10 SASR 528; MacPherson v Brown (1975) 12 SASR 184; R v Bacash [1981] VR 923; R v Shankar Ramalingam [2011] ACTSC 86; Criminal Code (NT), s 31; Criminal Code (Qld), s 23; Criminal Code (Tas), s 182 (intentionally applying force); Criminal Code (WA), s 23. Hall v Fonceca [1983] WAR 309 at 314. However, Toby Nisbet argues that this case is not a binding authority on this point: T Nisbet, “The Mental Elements of Assault in Western Australia” (2015) 38(2) University of Western Australia Law Review 46. R v O’Connor (1980) 146 CLR 64; DPP v Majewski [1977] AC 443; Duffy v The Queen [1981] WAR 72.

590

[10.50]

75 76 77 78 79 80

81

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must have meant to create an apprehension of immediate and unlawful personal violence. Similarly, for assault using force, the accused must have meant to use force on the victim. If the MCCOC’s recommendation is followed in setting out a series of statutory crimes based on causing harm, 83 these crimes could be viewed as “result” rather than “conduct” crimes. In relation to the physical element, on this view, the prosecution must prove that the accused’s purpose was to bring about the results or consequences of the conduct. 84 In relation to a statutory crime of intentionally causing harm, the accused must be shown to have intended to cause that harm and not just the act that may have resulted in harm. However, the existing law in relation to assaults occasioning actual bodily harm views intention as relating to the use of force rather than the resulting bodily harm. 85 This offence is, therefore, viewed as a “conduct” rather than a “result” crime and the MCCOC made it clear that this should carry over to the scheme in the Model Criminal Code. 86 In keeping common assault as a conduct crime, a narrow, direct form of intention appears appropriate. 87 The concept of recklessness in relation to common assault is somewhat unclear. An assault will be made out if the accused foresaw unlawful force or the act causing an apprehension of immediate and unlawful personal violence. 88 However, the degree of foresight required is uncertain. Some authorities simply refer to the need for recklessness to be proven without further explanation. 89 However, other cases have held that it will be enough that the accused foresaw the possibility that force might be inflicted. 90 This ties in with the approach taken toward the New South Wales statutory provision of maliciously inflicting grievous bodily harm. 91 Apart from recklessness for murder, some courts have held that where an offence is satisfied by proof of recklessness, it is sufficient if the accused foresaw the possibility of some harm resulting from his or her own act. 92 The alternative is that the accused must have foreseen that force would probably be inflicted. In R v Campbell, 93 Hayne J and Crockett AJA spoke with approval of the High Court test of recklessness in relation to murder as set out in R v Crabbe. 94 Hayne J and Crockett AJA concluded, in relation to the offence of recklessly causing serious injury: 83 84 85 86 87

88 89 90

91 92 93 94

Model Criminal Code Officers Committee, Chapter 5—Non Fatal Offences Against the Person, Discussion Paper (1996) p 26; Chapter 5—Non Fatal Offences Against the Person, Report (1998) p 13. La Fontaine v The Queen (1976) 136 CLR 62; R v Crabbe (1985) 156 CLR 464; Boughey v The Queen (1986) 161 CLR 10; R v Demirian [1989] VR 97. See Model Criminal Code Officers Committee, Chapter 5—Non Fatal Offences Against the Person, Discussion Paper (1996) p 519. Model Criminal Code Officers Committee, Chapter 5—Non Fatal Offences Against the Person, Discussion Paper (1996) p 29. In this respect, it would seem appropriate to apply the definition of intention, as set out by Brennan J in He Kaw Teh v The Queen (1985) 157 CLR 523 at 569, which is defined as “a decision to bring about a situation so far as it is possible to do so—to bring about an act of a particular kind or a particular result”. Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439 at 444 per James LJ. Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439 at 444; Logdon v DPP [1976] Crim LR 121 at 122; R v Venna [1976] QB 421. MacPherson v Brown (1975) 12 SASR 184 at 187 per Bray CJ. See also Williams (1990) 50 A Crim R 213; R v Coleman (1990) 19 NSWLR 467 at 475–478 per Hunt J; R v Lovett [1975] VR 488 at 493–494 per Harris J; R v Savage and Parmenter [1992] 1 AC 699 at 752 per Lord Ackner. Crimes Act 1900 (NSW), s 33. R v Coleman (1990) 19 NSWLR 467 at 475; Stokes and Difford (1990) 51 A Crim R 25; Blackwell v The Queen (2011) 81 NSWLR 119. [1997] 2 VR 585. (1985) 156 CLR 464. [10.55]

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“We have no doubt that the appropriate test to apply is that it is possession of foresight that injury probably will result that must be proved.” (original emphasis) 95

Campbell’s case, however, applies to the statutory offence of recklessly causing injury and not to common assault. At common law, Diplock LJ stated in R v Mowatt 96 that the offence of inflicting grievous bodily harm required foresight that “some physical harm in some person, albeit of a minor character, might result”. 97 This seems to imply a lesser standard of foresight and the weight of common law authority does seem to be in favour of foresight in terms of possibility rather than probability. This requirement is also clearly set out in the Northern Territory where s 31(1) of the Criminal Code (NT) specifies that an assault is committed whether the harm is “intended or foreseen … as a possible consequence of [the accused’s] conduct”. This divergence in approaches as to the degree of foresight required is exemplified by the words of Beazely JA in Blackwell v The Queen before the New South Wales Court of Criminal Appeal, where her Honour states “where the mental element of an offence is recklessness, the Crown must establish foresight of the possibility of the relevant consequence … this Court should not follow the Victorian decision of Campbell. That decision is inconsistent with authority in the High Court, New South Wales and in England.” 98

Aggravated Assaults [10.60] A wide variety of statutory offences generally termed “aggravated assaults” authorise

the imposition of greater penalties than for common assault. These statutory offences can be divided into three classes: • assaults accompanied by an intention of a particular kind; • assaults committed on particular classes of people; and • assaults resulting in harm of a particular kind. Assaults accompanied by an intention of a particular kind [10.65] The most serious form of aggravated assault involving a particular intention is assault

with intent to commit murder. 99 The accused must intend to kill as opposed to intending to inflict grievous bodily harm, even though that would be sufficient to render the accused guilty of murder if death resulted. 100 It is not sufficient that the accused acted with recklessness as to the possibility of death. 101 There are also statutory provisions dealing with assaults with intent to commit another crime. 102 In all jurisdictions, it is an offence to commit an assault with intent to resist or 95 96 97 98 99

100 101 102

R v Campbell [1997] 2 VR 585 at 592–593. Phillips CJ agreed with this point at 586. [1968] 1 QB 421. R v Mowatt [1968] 1 QB 421 at 426, a proposition that was relied upon in R v Savage and Parmenter [1992] 1 AC 699 at 716. (2011) 81 NSWLR 119 at 133-134. Crimes Act 1900 (NSW), s 27; Criminal Code (NT), s 165; Criminal Code (Qld), s 306; Criminal Code (WA), s 283. In the other jurisdictions, the crime of attempted murder falls under the general law of attempt: see Chapter 8, [8.15]–[8.80]. Whybrow (1951) 35 Cr App R 141; R v Grimwood [1962] 2 QB 621; R v Bozikis [1981] VR 587 at 591. R v Belfon [1976] 3 All ER 46. Crimes Act 1900 (ACT), s 22; Crimes Act 1900 (NSW), s 58; Criminal Code (NT), s 193; Criminal Code (Qld), s 340(1)(a); Criminal Law Consolidation Act 1935 (SA), s 270B; Criminal Code (Tas), s 183(a); Crimes Act 1958 (Vic), s 31(1)(a); Criminal Code (WA), s 317A.

592 [10.60]

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prevent the lawful apprehension of the accused or of any other person for any offence. 103 The arrest that the accused was seeking to resist or prevent must have been in exercise of a legal right. The question is not whether the accused believed that the arrest was lawful, but whether such arrest was in fact lawful. 104 Assaults committed on particular classes of people [10.70] Assaults on particular classes of people are viewed as aggravated because of the special status of the people concerned. For example, it is an offence to assault a police officer in the execution of his or her duty. 105 Except in Victoria and South Australia, it is not necessary for the prosecution to prove that the accused knew that the person assaulted was a police officer. 106 In comparison, s 31(1)(b) of the Crimes Act 1958 (Vic) and s 5AA(c)(i) of the Criminal Law Consolidation Act 1935 (SA) require the prosecution to prove that the accused knew that the person was a police officer. The offence is committed only if the officer is acting in the execution of his or her duty. 107 This has been defined very broadly by the Federal Court, as follows: “[A] police officer acts in the execution of his [or her] duty from the moment he [or she] embarks upon a lawful task connected with his [or her] functions as a police officer, and continues to act in the execution of that duty for as long as he [or she] is engaged in pursuing the task and until it is completed, provided that he [or she] does not in the course of the task do anything outside the ambit of his [or her] duty so as to cease to be acting therein.” 108

The scope of police duties is not confined to the apprehension of crime, but extends to taking reasonable steps to prevent crime and disorder: see Chapter 13, [13.50] “Policing public disorder”. Moreover, the modern police perform further regulatory roles in many jurisdictions, and an assault committed on an officer in the course of discharging those functions would also be an aggravated offence. In New South Wales, further offences have been enacted that criminalise a wider range of conduct against police. These changes reflect growing concerns about violence against police. In 2002, the basic offence of assaulting a police officer (discussed above) was supplemented by the following graduated scheme of offences inserted into s 60 of the Crimes Act 1900 (NSW) (and amended in 2006, 2007 and 2012): Section 60 Assault and other actions against police officers (1) A person who assaults, throws a missile at, stalks, harasses or intimidates a police officer while in the execution of the officer’s duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 5 years. 103

104 105

106 107

108

Crimes Act 1900 (ACT), ss 27(4)(b), 32(1)(b), 32(2)(b); Crimes Act 1900 (NSW), s 58; Criminal Code (NT), ss 188(2)(h), 189A; Criminal Code (Qld), s 340(1)(a) – (d); Criminal Law Consolidation Act 1935 (SA), ss 5AA(1)(c), 20; Criminal Code (Tas), s 183(a); Crimes Act 1958 (Vic), s 31(1)(c); Criminal Code (WA), s 317A(c). R v Hoare & Heavey [1965] NSWR 1167; Williams v The Queen (1986) 161 CLR 278. Crimes Act 1900 (ACT), s 27(4)(c), s 32(1)(c), s 32(2)(c); Crimes Act 1900 (NSW), s 58; Criminal Code (NT), ss 188(2)(h), 189A,; Criminal Code (Qld), s 340(1)(b); Criminal Law Consolidation Act 1935 (SA), ss 5AA(1)(c), 20; Summary Offences Act 1953 (SA), s 6; Police Offences Act 1935 (Tas), s 34B(1); Crimes Act 1958 (Vic), s 31(1)(b); Criminal Code (WA), s 318(1)(d); Manton (2002) 132 A Crim R 249 (interpretation of s 60(1) of the Crimes Act 1900 (NSW)). R v Forbes & Webb (1865) 10 Cox CC 362; R v Reynhoudt (1962) 107 CLR 381; McBride v Turnock [1964] Crim LR 456; McArdle v Wallace [1964] Crim LR 467. R v Cumpton (1880) 5 QBD 341; Davis v Lisle [1936] 2 KB 434; Duncan v Jones [1936] 1 KB 218; R v Waterfield [1964] 1 QB 164; McArdle v Wallace [1964] Crim LR 467; Kenlin v Gardiner [1967] 2 QB 510; Donnelly v Jackman [1970] 1 All ER 987; Gardner (1979) 71 Cr App R 13; Coffin v Smith (1980) 71 Cr App R 221; Lindley v Rutter (1980) 72 Cr App R 1; Pedro v Diss [1981] 2 All ER 59; Collins v Wilcock [1984] 1 WLR 1172; Weight v Long [1986] Crim LR 746; Noordhof v Bartlett (1986) 31 A Crim R 417; Hayward-Jackson v Walshaw [2012] WASC 107. R v K (1993) 118 ALR 596 at 601. [10.70]

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(1A) A person who, during a public disorder, assaults, throws a missile at, stalks, harasses or intimidates a police officer while in the execution of the officer’s duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 7 years. (2) A person who assaults a police officer while in the execution of the officer’s duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years. (2A) A person who, during a public disorder, assaults a police officer while in the execution of the officer’s duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 9 years. (3) A person who by any means: (a) wounds or causes grievous bodily harm to a police officer while in the execution of the officer’s duty, and (b) is reckless as to causing actual bodily harm to that officer or any other person is liable to imprisonment for 12 years. (3A) A person who by any means during a public disorder: (a) wounds or causes grievous bodily harm to a police officer while in the execution of the officer’s duty, and (b) is reckless as to causing actual bodily harm to that officer or any other person, is liable to imprisonment for 14 years.

The reforms significantly extended the scope of violence committed against police officers acting in the execution of their duty. Section 60(4) of the New South Wales Act provides that an act against an officer in the execution of his or her duty occurs if the act is carried out “(a) as a consequence of, or in retaliation for, actions undertaken by that police officer in the execution of the officer’s duty, or (b) because the officer is a police officer”, even though the police officer is not on duty at the time the assault occurs. Similar provisions apply to actions against other law enforcement officers, and to assaults against the intimate partner of law enforcement officers. 109 Other classes of persons receive special protection from assault in some jurisdictions. These include: • women (if the offender is male); 110 • family members (specifically spouses, intimate partners, and children); 111 • those under a certain age; 112 • those unable to defend themselves by reason of infirmity, age, physique, situation or other disability; 113 • Members of Parliament where the assault is committed because of such membership; 114 • members of the public service or the judiciary; 115 • those serving court documents; 116 109 110 111 112 113 114 115 116

Crimes Act 1900 (NSW), s 60A, s 60B(1). Criminal Code (NT), s 188(2)(b). Criminal Law Consolidation Act 1935 (SA), s 5AA(1)(g). Crimes Act 1900 (NSW), s 43; Criminal Code (NT), s 188(2)(c); Criminal Law Consolidation Act 1935 (SA), s 5AA(1)(e). Criminal Code (NT), s 188(2)(d); Criminal Code (Qld), s 340(g) – (h); Criminal Law Consolidation Act 1935 (SA), s 5AA(1)(f), (j). Criminal Code (NT), s 188(2)(e); Criminal Code (WA), s 318(1)(e). Crimes Act 1900 (NSW), ss 58, 326; Criminal Code (NT), s 188(2)(f); Criminal Code (WA), s 318(1)(e). Criminal Code (NT), s 188(2)(g).

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• those executing any process against land or goods; 117 • those protecting wrecked vessels; 118 • members of a crew on board an aircraft; 119 • members of the clergy; 120 and • school students or members of school staff. 121 Some of these classes of assault reflect a degree of outmoded paternalism toward those perceived to need extra protection, such as women, and the law’s general abhorrence toward those who commit assaults on public officials. The MCCOC suggested that there be increased penalties for assaults where factors of aggravation exist. 122 A modified version of these classes of persons has been outlined, with the MCCOC proposing the following categories: • public officials, defined as including a Member of Parliament, a minister of the Crown, a judicial officer, a police officer, a person appointed by, or employed by, the government or a government agency; • a person involved in any capacity in judicial proceedings; • a child under the age of 10 years; and • those to whom the accused is in a position of trust. The MCCOC approach is to place circumstances of aggravation into the sentencing stage of procedure, rather than have separate statutory crimes of causing harm to certain classes of person. Assaults resulting in harm of a particular kind [10.75] We have already pointed out that the MCCOC suggested that a scheme of non-fatal

offences against the person based on degrees of fault and seriousness of injury should provide the basis for the Model Criminal Code. 123 While retaining the offence of assault, this scheme has been enacted in South Australia and the Northern Territory. 124 In all jurisdictions, except Tasmania, there exists a division between assaults causing harm, actual bodily harm or injury, and serious harm, grievous bodily harm or serious injury. There is also a related offence that exists in all jurisdictions, apart from Victoria, South Australia and the Northern Territory, of unlawful wounding. Section 183 of the Criminal Code (Tas) creates a separate crime of aggravated assault and describes it as assault with intent to commit a crime or to resist lawful apprehension and the assault of a person in the lawful execution of process against land and goods. However, s 172 provides that any person who “causes grievous bodily harm to any person by any means whatever is guilty of a crime”. Table 1 sets out some of the statutory terms used. 117 118 119 120 121 122 123 124

Criminal Code (Tas), s 183(b). Crimes Act 1900 (NSW), s 57. Civil Aviation Act 1988 (Cth), s 24; Crimes (Aviation) Act 1991 (Cth), s 21; Crimes Act 1900 (NSW), s 206; Criminal Code (NT), s 191; Criminal Code (Qld), s 338A; Criminal Code (WA), s 318A. Crimes Act 1900 (NSW), s 56. Crimes Act 1900 (NSW), s 60E. Model Criminal Code Officers Committee, Chapter 5—Non Fatal Offences Against the Person, Discussion Paper (1996), pp 92ff; Chapter 5—Non Fatal Offences Against the Person, Report (1998), pp 111ff. Model Criminal Code Officers Committee, Chapter 5—Non Fatal Offences Against the Person, Report (1998). Criminal Law Consolidation Act 1935 (SA), ss 20 – 29A; Criminal Code (NT), ss 149C, 174C – 174E. [10.75]

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Table 1 Terms used in relation to actual or grievous bodily harm Jurisdiction and relevant law ACT Crimes Act 1900

Causing

Inflicting

Occasioning

causing grievous bodily harm (s 25)

assault occasioning actual bodily harm (s 24)

–

NSW Crimes Act 1900

causing grievous bodily harm (s 54)

inflicting actual bodily harm (s 23) inflicting grievous bodily harm (ss 19, 20) setting trap capable of inflicting grievous bodily harm (s 49)

assault occasioning actual bodily harm (s 59)

–

NT Criminal Code

causes death or harm (s 149C) causes serious harm (s 174E) unlawfully causes bodily harm (s 328)

Qld Criminal Code

–

–

–

–

Doing

–

doing bodily harm (s 339) doing grievous bodily harm (ss 317, 320)

SA Criminal Law Consolidation Act 1935

Tas Criminal Code Vic Crimes Act 1958

WA Criminal Code

causes harm (s 24)

causes serious harm (s 23) assault that causes harm (s 20(4)) causing grievous bodily harm (s 172) causes injury (s 18) causes serious injury (ss 16, 17, 24) unlawfully causes bodily harm (s 304)

inflicting severe pain (s 5AA)

– –

–

doing grievous bodily harm (s 170) –

does bodily harm (s 317) does grievous bodily harm (ss 294, 297)

Definitions of types of harm [10.80] At common law, it has been held that the words “actual bodily harm” should be given

their ordinary and natural meaning. 125 The problem with the term “actual bodily harm” is that it appears to ignore the psychological harm that may result from an assault. The focus on physical harm implied within the term “actual bodily harm” would seem to exclude merely causing shock or an hysterical reaction. 126 The traditional focus of the common law on physical injuries has been challenged. In R v Chan-Fook, 127 the court held that actual bodily harm includes “psychiatric injury” but it does not include mere emotions such as fear or distress or panic, nor does it include states of mind that are not evidence of some “identifiable 125 126 127

R v Metharam [1961] 3 All ER 200. R v Miller [1954] 2 QB 282. [1994] 2 ER 552.

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clinical condition”. 128 This widening definition of bodily harm was affirmed by the House of Lords in R v Ireland; R v Burstow. 129 In this decision, their Lordships confirmed that bodily harm was no longer confined to physical harm and could include mental harm, provided that it amounted to a “recognisable psychiatric illness”. 130 In coming to this conclusion, Lord Steyn was influenced by the position in the law of negligence in relation to nervous shock cases where the common law, supported by advances in modern psychiatry, no longer drew a rigid distinction between the mind and body, concluding that the term “bodily harm” used in the Offences Against the Person Act 1861 (UK) should be interpreted in light of these legal and scientific developments: “The statute must be interpreted in the light of the best current scientific appreciation of the link between the body and psychiatric injury”. 131 This decision has serious implications for the scope of many offences against the person in Australia which employ identical definitions of bodily harm, modelled on the Offences Against the Person Act 1861 (UK). The judicial expansion of bodily injury to include psychiatric injury is arguably unnecessary in light of the statutory offences of stalking recently enacted in all Australian jurisdictions. 132 The MCCOC recommended that “harm” and “serious harm” are more appropriate terms. 133 This is now the case in South Australia and the Northern Territory. 134 In South Australia, “harm” is defined as “physical or mental harm (whether temporary or permanent)”. Physical harm is defined as including “unconsciousness”, “pain”, “disfigurement” and “infection with a disease”. 135 Similarly, s 1A of the Criminal Code (NT) states: (1) Harm is physical harm or harm to a person’s mental health, whether temporary or permanent. (2) Physical harm includes unconsciousness, pain, disfigurement, infection with a disease and any physical contact with a person that a person might reasonably object to in the circumstances, whether or not the person was aware of it at the time. (3) Harm to a person’s mental health includes significant psychological harm, but does not include mere ordinary emotional reactions such as those of only distress, grief, fear or anger. (4) Harm does not include being subjected to any force or impact that is within the limits of what is acceptable as incidental to social interaction or to life in the community.

The main difference between these forms of aggravated assaults and unlawful wounding lies in the definition of the relevant types of harm. In relation to the offence of unlawful wounding, 136 a wound at common law consists of an injury involving a breaking through of both the inner and outer skin. 137 The term is not defined in the Criminal Codes, but the common law definition has been applied to the Queensland Code. 138 The word “unlawfully”, 128 129 130

131 132 133 134 135 136 137 138

See R v Chan-Fook [1994] 2 ER 552 at 559. [1998] AC 147. For a critical review of the link between physical and psychological harm, see L Dunford and V Pickford, “Is There a Qualitative Difference Between Physical and Psychiatric Harm in English Law?” (1999) 7 Journal of Law and Medicine 36 at 42ff; J Horder, “Reconsidering Psychic Assault” [1998] Criminal Law Review 392. R v Ireland; R v Burstow [1998] AC 147 at 159. Model Criminal Code Officers Committee, Non Fatal Offences Against the Person, Report (1998), pp 538–539. Model Criminal Code Officers Committee, Non Fatal Offences Against the Person, Report (1998) pp 21ff. Criminal Law Consolidation Act 1935 (SA), ss 20 – 29A; Criminal Code (NT), ss 149C, 174C – 174E. Criminal Law Consolidation Act 1935 (SA), s 21. Crimes Act 1900 (ACT), s 21; Crimes Act 1900 (NSW), ss 33, 35; Criminal Code (Qld), s 323(1); Criminal Code (Tas), s 172; Criminal Code (WA), s 301. R v Wood and McMahon (1830) 1 Mood CC 278; Moriarty v Brooks (1834) 6 C & P 684; R v Beckett (1836) 1 Mood & R 526; Vallance v The Queen (1961) 108 CLR 56 at 77; Devine v The Queen [1982] Tas R 155. Jervis (1991) 56 A Crim R 374. [10.80]

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in relation to this offence, appears to be largely redundant in that it does no more than express the principle that certain uses of force may be lawful or justifiable if used in self-defence and arrest situations. The fault elements for this offence are the same as for assaults resulting in grievous bodily harm, which will be discussed later at [10.100]. In the Australian Capital Territory and New South Wales, the relevant provisions refer to “actual bodily harm” following the Offences Against the Person Act 1861 (UK). 139 The Code jurisdictions, apart from Tasmania, use the words “bodily harm” 140 or simply “harm”. 141 In Victoria, the word used is “injury”. 142 In Victoria, “injury” is defined in s 15 of the Crimes Act 1958 (Vic) as including “physical injury; or harm to mental health–whether temporary or permanent” with “physical injury” then defined as including “unconsciousness, disfigurement, substantial pain, infection with a disease and an impairment of bodily function”. Similarly, “harm to mental health” is defined as including “psychological harm but does not include an emotional reaction such as distress, grief, fear or anger unless it results in psychological harm”. 143 The Code jurisdictions’ definitions of “bodily harm” are similar. In Queensland and Western Australia, the definition is broader and means “any bodily injury that interferes with health or comfort”. 144 In Wayne v Boldiston, 145 Mildren J stated that an assessment of bodily harm required the tribunal of fact to focus on the injury and its immediate consequences. In that case, the victim had received two cuts to the face that, after medical treatment, resulted in a slight cosmetic disfigurement. In upholding a conviction of assault causing bodily harm, Mildren J held that the fact the victim was left with only cosmetic injuries was irrelevant if the immediate result of the injury temporarily interfered with health. 146 However, in R v Tranby, 147 De Jersey J held that “health” meant freedom from disease or ailment and an injury to body parts that have no function and do not cause disease or physical ailment would be insufficient. “Actual bodily harm” need not be permanent, but it must be more than merely “transient and trifling”. 148 The term excludes physical injuries which are slight or insignificant. 149 Interestingly, the original formulation of “transient and trifling” [emphasis added] in R v Donovan 150 appears to have shifted to “transient or trifling” [emphasis added] in later cases. 151 These terms are not synonyms, however. This later formulation suggests that there could be some forms of temporary bodily interference of a transient nature which nevertheless satisfy the definition of bodily harm. An example would be causing momentary sensations of asphyxiation through choking. While transient in its physical effects, the context of the actions suggests that bodily harm caused is significant and certainly non-trivial. Heather Douglas and 139 140 141 142 143 144 145 146 147 148 149

150 151

Crimes Act 1900 (ACT), s 24; Crimes Act 1900 (NSW), s 59. Criminal Code (Qld), s 328; Criminal Code (WA), s 304. Criminal Code (NT), s 186. Crimes Act 1958 (Vic), s 18. Crimes Act 1958 (Vic), s 15. Definition inserted by the Crimes Amendment (Gross Violence Offences) Act 2013 (Vic), s 3(c). Criminal Code (Qld), s 1; Criminal Code (WA), s 1. (1992) 85 NTR 8. Wayne v Boldiston (1992) 85 NTR 8 at 13–14. [1992] 1 Qd R 432. R v Donovan [1934] 2 KB 498 at 509 per Hewart LCJ, Swift and du Parcq JJ. There has been no explicit judicial consideration of this shift in formulation. In DPP v Smith [2006] 2 All ER 16 at 20, Sir Igor Judge P held that the term “‘[a]ctual’ means that the bodily harm must not be so trivial or trifling as to be effectively without significance”. [1934] 2 KB 498. R v Morris (Clarence Barrington) [1998] Cr App R 386 at 393.

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Robin Fitzgerald point out that non-fatal strangulation perpetrated by men against their female partners may be a risk factor for abuse and that “[g]iven the particularly high risks associated with non-fatal strangulation, it may be timely to consider the introduction of a specific strangulation offence.” 152 The question of whether the threshold for actual bodily harm is satisfied is ultimately for the jury. The issue of consent in relation to strangulation to enhance sexual pleasure is considered at [10.165]. In all jurisdictions, there exists an offence of assault resulting in some form of serious harm. The term “grievous bodily harm” is used in most jurisdictions, 153 while “serious harm” is used in the Northern Territory and South Australia and “serious injury” in Victoria. 154 “Grievous bodily harm” has been interpreted at common law as meaning bodily harm of a serious character. 155 It is a matter for the jury as to whether the injury complained of amounts to grievous bodily harm. 156 In the Australian Capital Territory and New South Wales, grievous bodily harm is defined as including “any permanent or serious disfiguring of the person”. 157 The Crimes Amendment (Grievous Bodily Harm) Act 2005 (NSW) expanded the definition of grievous bodily harm under s 4 to encompass the destruction of the foetus of a pregnant woman. “Serious injury” is defined in s 15 of the Crimes Act 1958 (Vic) as including “the cumulative effect of more than one injury”. The Code jurisdictions provide statutory definitions of the relevant terms. “Grievous bodily harm” is defined under s 1 of the Criminal Code (Qld) as the loss of a distinct part or an organ of the body, serious disfigurement or “any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health”. The Western Australian definition is similar to this latter quoted part. However, s 1(4) of the Criminal Code (WA) extends it to include a “serious disease”. The Tasmanian definition is also similar to the quoted part of the Queensland definition, but the words “serious injury” are used instead of “permanent injury”. 158 The definitions for “serious harm” under the Criminal Code (NT) and the Criminal Law Consolidation Act 1935 (SA) define serious harm as harm that endangers a person’s life or is longstanding or protracted. 159

Working definitions of bodily harm and grievous bodily harm [10.85] Whether an injury reaches the threshold of “actual” or “grievous” bodily harm or is merely “transient or trifling” is a factual matter for the jury. The victim’s own physiology and availability of medical treatment will play a determining role in how serious an injury will be for the victim. As Lord Mustill noted in R v Brown, 160 some of the sadomasochistic activities of the accused in that case involved a risk of genito-urinary infection and septicaemia, which, though grave in former times, had been greatly reduced by modern medical science. From a 152 153 154 155 156

157 158 159 160

H Douglas and R Fitzgerald, “Strangulation, Domestic Violence and the Legal Response” (2014) 36(2) Sydney Law Review 231 at 253-254. Crimes Act 1900 (ACT), ss 19, 20, 25; Crimes Act 1900 (NSW), ss 35, 35A, 54; Criminal Code (Qld), ss 317, 320; Criminal Code (Tas), ss 170, 172; Criminal Code (WA), ss 294, 297. Criminal Code (NT), s 181; Criminal Law Consolidation Act 1935 (SA), s 21; Crimes Act 1958 (Vic), ss 16, 17, 24. DPP v Smith [1961] AC 290 at 334 per Viscount Kilmuir LC; R v Metharam [1961] 3 All ER 200; R v Cunningham [1982] AC 566; R v Saunders [1985] Crim LR 230. R v Miller [1951] VLR 346 at 356-357; R v Van Beelen (1973) 4 SASR 353 at 404; R v Perks (1986) 41 SASR 335; R v Blevins (1988) 48 SASR 65 at 68; DPP v Smith [1961] AC 290 at 335; Hyam v DPP [1975] AC 55 at 68, 84, 94. Crimes Act 1900 (ACT), s 4; Crimes Act 1900 (NSW), s 4(1). Criminal Code (Tas), s 1. Criminal Code (NT), s 1; Criminal Law Consolidation Act 1935 (SA), s 21. [1993] 2 WLR 556 at 600. [10.85]

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practical perspective, the question of the seriousness of the injury (and thus the offence charged) will be determined when the charges are laid. In this regard, the police and prosecution play a significant role in determining the scope and content of concepts such as actual and grievous bodily harm. The discretion over the choice of charge will be influenced by substantive legal definitions, as well as “working definitions” that operate through internal guidelines or policy documents. A study of hospital admissions in England identified a wide range of factors that influence whether or not an assault will be criminalised. However, the researchers concluded that there was no relationship between offence seriousness (measured in terms of culpability and harm) and the likelihood of reporting, investigation, prosecution and punishment. 161 Since this research, the Crown Prosecution Service has published more extensive guidance on factors relevant to charging decisions on a wide range of matters, including guidance on the differences between categories of assault. 162

Perspectives Grievous Bodily Harm and HIV/AIDS [10.90] There is some question as to whether grievous bodily harm encompasses serious

diseases, particularly sexually transmitted diseases. In R v Clarence, 163 the communication of a venereal disease was held not to amount to an infliction of grievous bodily harm. This, however, was overturned by the English Court of Appeal in R v Dica: 164 see the discussion in Chapter 11, [11.120]. In the early 1990s, some jurisdictions decided to criminalise the spreading of a serious disease by enacting specific statutory provisions. For example, s 36 of the Crimes Act 1900 (NSW) was introduced by the Crimes (Injuries) Amendment Act 1990 (NSW). This criminalises causing or attempting to cause a “grievous bodily disease”. This has now been repealed in favour of an expanded definition of “grievous bodily harm” that includes “any grievous bodily disease”. 165 Subparagraph 317(b) of the Criminal Code (Qld) has been extended to cover the intentional transmission of a serious disease. A “serious disease” is defined in s 1 as: 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 to cause or be likely to cause permanent injury to health; whether or not treatment is or could have been available.

Section 294(8) of the Criminal Code (WA) (now section 294(1)(h)) was introduced by the Criminal Law Amendment Act (No 2) 1992 (WA). This makes it an offence to do any act that is likely to result in a person contracting a serious disease with intent to do that person grievous bodily harm. As stated above, s 1(4) of the Criminal Code (WA) now extends the meaning of “grievous bodily harm” to include a “serious disease”. This is 161 162 163 164 165

C Clarkson, A Cretney, G Davies and J Shepherd, “Assaults: The Relationship between Seriousness, Criminalisation and Punishment” [1994] Criminal Law Review 4. Crown Prosecution Service, Charging Standards (New York: Oxford University Press, 2005). (1888) 22 QBD 23. [2004] EWCA Crim 1103. Applied by the Victorian Court of Appeal in Neal v The Queen (2011) 32 VR 454. Crimes Act 1900 (NSW), s 4(1), as amended by Crimes Amendment Act 2007 (NSW), Sch 1.

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further defined in s 1(1) as a disease 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 19A of the Crimes Act 1958 (Vic) was introduced by the Crimes (HIV) Act 1993 (Vic). This made it an offence to cause another person to be infected with a very serious disease, which was defined to mean human immunodeficiency virus (HIV). The Victorian government repealed this offence in 2015 166 on the basis that it was “discriminatory and outdated” and in order to reduce “the stigma and discrimination faced by people living with HIV”. 167 The Victorian Attorney-General noted that in 22 years, there had “only been one successful case involving conviction of attempting to commit the offence based on the transmission of HIV during sexual intercourse.” 168 The definition of “physical injury” in the Crimes Act 1958 (Vic) now specifically includes “infection with a disease”, although this is not limited to any specific type of disease. 169 The Northern Territory and South Australian definitions of harm similarly also include “infection with a disease”. 170 These current and previous provisions raise the question as to whether the criminal law is the appropriate avenue for controlling such conduct. In 1992, the final report of the Legal Working Party on the Intergovernmental Committee on AIDS recommended: “A public health offence should exist where a person knows that he or she is HIV-infected and significantly exposes or infects another person without his or her consent … Special as opposed to existing general criminal law sanctions should be carefully considered by State and Territory governments because of the danger of stigmatising already alienated groups.” 171

Criminalising conduct that transmits HIV raises concerns about excessive government intervention into the private realm, the potential for selective prosecutions (why HIV and not other diseases?) and difficulties in proving the fault element of such an offence. In extra-curial writings, former High Court Justice Michael Kirby questioned the need for criminal offences in relation to the spread of HIV. 172 The small number of individuals actually charged gives rise to these offences being, in Kirby’s terms, a “sideshow” to the need to address the spread of HIV/AIDS through public health measures. 173 There is also the fear that criminalisation may act as a disincentive to HIV testing and disclosure to medical professionals. 174 Other criticisms have related to the problems associated with juries understanding statistical risks of infection and the complexity of the medical

166 167 168 169 170 171

172 173 174

Crimes Amendment (Repeal of Section 19A) Act 2015 (Vic). Victoria, Parliamentary Debates, Legislative Assembly, 15 April 2015, 954 (Martin Pakula, Attorney-General). Victoria, Parliamentary Debates, Legislative Assembly, 15 April 2015, 954 (Martin Pakula, Attorney-General). Crimes Act 1958 (Vic), s 15. Criminal Code (NT), s 1A; Criminal Law Consolidation Act 1935 (SA), s 21. Legal Working Party of the Intergovernmental Committee on AIDS, Legislative Approaches to Public Health Control of HIV Infection (1992), pp 21–22. See further, S Bronitt, “Criminal Liability for the Transmission of HIV/AIDS” (1992) 16 Criminal Law Journal 85; S Bronitt, “Spreading Disease and the Criminal Law” [1994] Criminal Law Review 21; J Godwin, J Hamblin, D Patterson and D Buchanan, Australian HIV/AIDS Legal Guide (2nd ed, Sydney: Federation Press, 1993). M Kirby, “HIV/AIDS Criminalisation—Deserved Retribution or Capricious Sideshow” (2007) 32(4) Alternative Law Journal 196. M Kirby, “HIV/AIDS Criminalisation—Deserved Retribution or Capricious Sideshow” (2007) 32(4) Alternative Law Journal 196 at 197. M Woodroffe and G Mitchell, “Time to Review Criminalisation of HIV” (2009) 47(6) Law Society Journal 68. [10.90]

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evidence needed to prove causation. 175 There are also extensive civil powers of detention relating to the spread of infectious diseases already in operation. 176 On the other hand, conduct resulting in harm to others is already criminalised and the transmission of HIV, with its potentially lethal consequences, should be seen as a criminal act. Alan Turner summarises the arguments for criminalising the transmission of HIV as follows: “The criminal law would be a valuable tool for assisting and reinforcing education in this area. The criminal law clearly defines the standards of behaviour which society deems to be unacceptable, and imposes sanctions on those persons whose conduct falls within these bounds. Knowingly transmitting HIV is a cruel, anti-social act that is deserving of stigmatisation by the criminal law. Criminalisation can also be justified on the basis that individuals, and society as a whole, are entitled to be protected from harmful behaviour.” 177

The MCCOC is of the opinion that the transmission of HIV should be criminalised. 178 It recommends, however, that a specific offence need not be enacted, but a general endangerment offence will suffice. 179

Causing or inflicting harm [10.95] The jurisdictions differ as to the verb used in relation to actual or grievous bodily

harm. It may be “causing”, “inflicting”, “occasioning” or “doing”. The verbs “causing” and, arguably, “occasioning” can be viewed as broader than “inflicting” or “doing”. The MCCOC points to the case of R v Nicholson 180 as an example of this distinction. 181 The accused entered a house with the purpose of removing two gas meters. He failed to properly plug the gas pipe in one meter. When the occupants of the house subsequently lit a lamp, the gas exploded and injured them. The accused was convicted of negligently “causing” injury. It was held that the accused indirectly “caused” the injury and an argument that “causing” was limited to “direct” injury was dismissed.

175

180 181

M Groves, “Risky Behaviour, Risk Assessment and the Criminal Prosecution of Positive People” (2008) 6(4) HIV Australia 13; S Cameron, “Criminalisation of HIV Transmission and Exposure—Risk, Negotiation and Consent” (2008) 6(4) HIV Australia 7. See B McSherry, ““Dangerousness” and Public Health” (1998) 23(6) Alternative Law Journal 276. For an essay examining the legal regulation of life-threatening disease, drawing on political theory and regulatory theory, see S Bronitt, “The Transmission of Life-Threatening Infections: A New Regulatory Strategy” in R Smith (ed), Health Care, Crime and Regulatory Control (Sydney: Hawkins Press, 1998). A Turner, “Criminal Liability and AIDS” (1995) Auckland University Review 875 at 887; see also S Bronitt, “Spreading Disease and the Criminal Law” [1994] Criminal Law Review 21; S Bronitt, “Criminal Liability for the Transmission of HIV/AIDS” (1992) 16 Criminal Law Journal 85. Model Criminal Code Officers Committee, Non Fatal Offences Against the Person, Report (1998) p 85. Model Criminal Code Officers Committee, Non Fatal Offences Against the Person, Report (1998) p 85. For a critical review of these proposals, see S Bronitt, “HIV/AIDS and the Model Criminal Code: Endangering Public Health?” (1997) 8(4) HIV/AIDS Legal Link 14. See also [10.180] as to offences of endangerment. The approach in the UK has been to use existing offences against the person coupled with detailed guidance to prosecutors on evidential, legal and public interest factors relevant to prosecution: http://www.cps.gov.uk/ publications/prosecution/sti.html (cited 30 November 2016). [1916] VR 130. Model Criminal Code Officers Committee, Non Fatal Offences Against the Person, Report (1998) p 17.

602

[10.95]

176

177

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“Inflicting” grievous bodily harm, in comparison, has been said to involve the direct or indirect application of force to the victim. For example, where a person does an act calculated to cause a panic in a public assembly, he or she may be guilty of the offence of inflicting grievous bodily harm if injury results. 182 However, in practice, little rides on the difference between these verbs because the word “inflict” has been interpreted broadly to include causing psychiatric illness. 183 The MCCOC recommends casting offences resulting in harm in terms of “causing” the prohibited consequences. 184

The fault element [10.100] The fault element required for assaults resulting in actual bodily harm is the same as

for common assault in that intention or recklessness will suffice. The intention or recklessness relates to the use (or threatened use) of force, rather than the actual bodily harm, rendering this a conduct rather than a result crime. 185 However, s 18 of the Crimes Act 1958 (Vic) may require an intention to cause injury rather than simply to engage in the conduct that had that result. 186 The fault element in relation to assaults resulting in grievous bodily harm varies between jurisdictions. All jurisdictions refer to intention as a fault element. 187 Recklessness is also mentioned as a fault element in the Australian Capital Territory, the Northern Territory, New South Wales, South Australia and Victoria. 188 The relevant Queensland, Tasmanian and Western Australian provisions contain no mention of recklessness. 189 Nonetheless, both intention and recklessness will be relevant to show that the act did not occur involuntarily or by accident. 190 It would seem that the intention required is the same as for the offences of assault and assault resulting in bodily harm. In Bennett, 191 the Tasmanian provision was viewed as a crime of basic rather than specific intent. The test for recklessness varies between jurisdictions. In R v Campbell, 192 Hayne and Crockett JJ in the Victorian Court of Appeal stated that the test for recklessly causing serious injury was foresight of the probability that injury would result. At common law, the offence of inflicting grievous bodily harm required the accused to “foresee that some physical harm to 182 183 184 185 186 187

188 189 190 191 192

R v Martin (1881) 8 QBD 54; R v Clarence (1888) 22 QBD 23 at 36 per Wills J; R v Chapin (1909) 74 JP 71; R v Salisbury [1976] VR 452. R v Ireland; R v Burstow [1998] AC 147. Model Criminal Code Officers Committee, Non Fatal Offences Against the Person, Report (1998) p 17. R v Venna [1975] 3 WLR 737 at 742 per James LJ; R v Percali (1986) 42 SASR 46; Coulter v The Queen (1988) 164 CLR 350; Williams (1990) 50 A Crim R 213; Savage v DPP [1991] 3 WLR 914 at 930. Westaway (1991) 523 A Crim R 336; James v The Queen (2014) 306 ALR 1. Crimes Act 1900 (ACT), s 19; Crimes Act 1900 (NSW), s 33; Criminal Code (NT), s 177; Criminal Law Consolidation Act 1935 (SA), s 23; Criminal Code (Tas), s 170; Crimes Act 1958 (Vic), s 16; Criminal Code (Qld), s 317; Criminal Code (WA), s 294. Crimes Act 1900 (ACT), s 20; Criminal Code (NT), s 174D; Crimes Act 1900 (NSW), s 35; Criminal Law Consolidation Act 1935 (SA), s 24(2); Crimes Act 1958 (Vic), s 17. Criminal Code (Qld), s 320; Criminal Code (Tas), s 172; Criminal Code (WA), s 297. Criminal Code (Qld), s 23; Criminal Code (Tas), s 13; Criminal Code (WA), s 23; Fitzgerald (1999) 106 A Crim R 215. (1989) 45 A Crim R 45. [1997] 2 VR 585. [10.100]

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some person, albeit of a minor character, might result”. 193 This approach was applied by the House of Lords in R v Savage and Parmenter. 194 However, Beazely JA, James and Hall JJ of the New South Wales Court of Criminal Appeal in Blackwell v The Queen expressly rejected the approach in Campbell’s case and held that where the mental element for occasioning harm against a person was recklessness, the Crown must establish foresight of the possibility (rather than probability) of the relevant consequence. 195 Under the new scheme in the Northern Territory, recklessness is defined as awareness of a substantial risk that the result or circumstance will happen and, having regard to the circumstances known to the accused, it is unjustifiable to take that risk. 196 Some jurisdictions also have statutory provisions relating to causing grievous bodily harm through a negligent act or omission. 197 In R v Shields, 198 the Full Court of the Supreme Court of Victoria held that the standard of negligence required was the same as for negligent manslaughter. The latter test is set out at common law in Nydam v The Queen 199 and is discussed in Chapter 9, [9.175]. The MCCOC recommended that an offence of negligently causing serious harm should form part of the Model Criminal Code, partly because it “is necessary in order to criminalise those instances of gross negligence that cause serious harm, such as the removal of safety equipment in the workplace”. 200

Perspectives Female Genital Mutilation [10.105] Female genital mutilation (FGM) is a term used to describe a variety of ritual

practices, ranging from scraping or cutting the clitoris to the excision of the clitoris, labia minora and parts of the labia majora. 201 FGM was first described as “female circumcision”, reflecting its religious significance in some cultures. In recent years, however, the language of human rights abuse has displaced the “traditional” language as 193 194 195 196 197 198 199 200 201

R v Mowatt [1968] 1 QB 421 at 426 per Diplock LJ. [1992] 1 AC 699 at 716. Blackwell v The Queen (2011) 81 NSWLR 119. Criminal Code (NT), s 43AK. For a further exploration of the fault element of recklessness, see Chapter 3, [3.205]–[3.220]. Crimes Act 1900 (ACT), s 25; Criminal Code (NT), s 174E: Crimes Act 1900 (NSW), s 54; Crimes Act 1958 (Vic), s 24. Section 328 of the Criminal Code (Qld) relates to bodily harm through negligent act or omission. [1981] VR 717; King v The Queen (2012) 245 CLR 588 at 604. [1977] VR 430 at 455; Wilson v The Queen (1992) 174 CLR 313 at 333. Model Criminal Code Officers Committee, Non Fatal Offences Against the Person, Discussion Paper (1996), p 33. See Queensland Law Reform Commission, Female Genital Mutilation, Report No 47 (1994), pp 7–8; O Nnamuchi, “‘Circumcision’ or ‘Mutilation’? Voluntary or Forced Excision? Extricating the Ethical and Legal Issues in Female Genital Ritual” (2012) 25(1) Journal of Law and Health 85. While “female genital mutilation” is the term most commonly used in legislation and by international bodies such as the United Nations, the term may “be offensive to women who have experienced the practice but do not consider themselves to be mutilated, and it can also be a barrier to engaging communities where female circumcision is traditionally practiced”: C Vaughan, N White, L Keogh, J Tobin, B Ha, M Ibrahim, and C Bayly, Listening to North Yarra Communities about Female Genital Cutting (University of Melbourne, 2014), http:// newsroom.melbourne.edu/sites/newsroom.melbourne.edu/files/ Listening%20to%20North%20Yarra%20Communities%20-%20Final%5B1%5D.pdf?_ga= 1.156371453.774396450.1463025084, p 6 (cited 30 November 2016).

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exemplified in the Australian Medical Association, Female Genital Mutilation, Position Statement (1994), and the renaming of the provisions in the United Kingdom, discussed below. Female genital mutilation is conceived as a form of torture, or as cruel, inhuman or degrading treatment. Its redefinition as “mutilation” denotes more clearly the physical, sexual and aesthetic boundary violations involved in these practices. 202 Although much has been written on the origins of the practice, primarily to dispute the authenticity of its basis in the Koran or religious law, 203 little attention has been paid to its therapeutic and experimental use by the medical profession in the United Kingdom throughout the 19th century. As Susan Edwards, in her book Female Sexuality and the Law, observed: “Contrary to popular belief, this ancient and primitive custom [clitoridectomy] is not just a ‘survival’ from the past that persists in peasant and pastoral societies; it was an advanced cure for a wide variety of female disorders in nineteenth-century gynaecological practice.” 204

In England, Wales and Northern Ireland, the Female Genital Mutilation Act 2003 makes it an offence if a person “excises, infibulates or otherwise mutilates the whole or any part of a girl’s labia majora, labia minora or clitoris” (s 1(1)), but makes it a defence if it is performed by a doctor and is intended to benefit the person in a therapeutic context: (s 1(2)). The offence, punishable by a maximum of fourteen years’ imprisonment, extends to individuals who aid, abet, counsel or procure the performance of the procedure (see ss 2, 3) and has extraterritorial effect over nationals or permanent residents who perform such an act overseas: (s 4). Similar legislation exists in Scotland and all Australian States and Territories. 205 This is despite the fact that the Australian Law Reform Commission rejected calls for special FGM offences, favouring the view that the practice constitutes an offence under the general law. 206 Female genital mutilation has been represented as a both a human rights and a health issue. When FGM is considered as a human rights issue, women’s rights have tended to trump the cultural and religious rights of minority groups. The Declaration on the Elimination of Violence Against Women, adopted by the United Nations, defined “violence” as including “female genital mutilation and other traditional practices harmful to women”. Anticipating the clash between cultural and feminist claims to equality, the Declaration states that States “should not invoke any custom, tradition or religious consideration to avoid their obligations with respect to [the elimination of violence against women]”. The Declaration draws on the rights contained in the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). The UDHR and ICCPR contain the right not to be subject to torture, or to cruel, inhuman or degrading treatment or punishment and the right to liberty and security of 202 203

204 205

206

M Douglas, Purity and Danger (London: Routledge and Kegan Paul, 1992). See Family Law Council, Female Genital Mutilation, Discussion Paper (January 1994); Female Genital Mutilation, Report (1994). For a commentary on the Report, see B Hughes, “Female Genital Mutilation: The Complementary Roles of Education and Legislation in Combating the Practice in Australia” (1995) 3 Journal of Law and Medicine 202. S Edwards, Female Sexuality and the Law (Oxford: Martin Robertson, 1981) p 87. Prohibition of Female Genital Mutilation (Scotland) Act 2005; Crimes Act 1900 (ACT), Pt 4; Crimes Act 1900 (NSW), s 45; Criminal Code (NT), Pt VI Div 4A; Criminal Code (Tas), ss 178A – 178C; Criminal Code (Qld), ss 323A, 323B; Criminal Law Consolidation Act (SA), Pt 3 Div 8; Crimes Act (Vic), ss 32 – 34A; Criminal Code (WA), s 306. Australian Law Reform Commission, Multiculturalism: Criminal Law, Discussion Paper No 48 (1991), p 23. For a critical review of its recommendations, see S Bronitt and K Amirthalingam, “Cultural Blindness and the Criminal Law” (1996) 21(2) Alternative Law Journal 58. [10.105]

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person. The ICCPR specifically protects ethnic and cultural rights under the guarantee of freedom of religion and the right of ethnic, religious or linguistic minorities to enjoy their own culture, religion or language. 207 The problem that occurs here is that imposing western human rights standards on individuals of other cultures may lead to FGM being driven “underground”. The Family Law Council points out: “Many people who practise female genital mutilation see western societies as sexually promiscuous, decadent and in the process of disintegration. They cite female genital mutilation as a defence against such corrupting influences. They see the attack on female genital mutilation as an attempt to disintegrate their social order and thereby speed up their Europeanisation.” 208

The health objections levelled at FGM raise the possibilities of a range of short-term and long-term complications. 209 While these objections are indeed significant, they overlook the broader cultural justifications that underlie some forms of surgical procedure. The law has never cast doubt on the legality of ritual circumcision performed on newly born male infants for religious or cultural reasons. Within Jewish and Islamic communities, these operations are often performed in non-sterile environments without anaesthesia by individuals who lack formal medical training. Post-operative complications do occur, although prosecution is rarely instituted even in cases where the infant suffers severe infection or permanent physical impairment. The changing social and medical attitudes to male circumcision for non-medical purposes have raised the question of whether the assumed legality of the religious circumcision could be challenged before the courts. This has been the subject of an inquiry by the Tasmanian Law Reform Institute, which recommended the enactment of a new offence prohibiting the circumcision of minors, with exceptions for well-established religious or “ethnicity motivated” circumcision. 210 Female genital mutilation and male circumcision can be viewed as qualitatively different procedures, the latter having no or only limited impact on sexual or reproductive functioning. While this may be true, the point revealed by this comparison is that the legal legitimacy of surgical interference does not rest exclusively on its medical utility. Indeed, it is important to recognise that justifications based on medical utility often blur with those derived from the patient’s religious, cultural and aesthetic beliefs. Further, compliance with deeply held beliefs is often claimed by the medical profession to yield therapeutic or psychological benefits for the patient. The present legal approach toward FGM fails to take seriously the rights relating to both individual and cultural autonomy. Clearly, arguments based on autonomy have less weight with respect to FGM performed on children. Indeed, FGM should never be performed on a child. As Art 24(3) of the Convention on the Rights of the Child states, parties must “take all effective and appropriate measures with a view to abolishing 207 208 209 210

International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171, arts 18, 27 (entered into force 23 March 1976). Family Law Council, Female Genital Mutilation, Report (1994) [5.10], p 31. Queensland Law Reform Commission, Female Genital Mutilation, Report No 47 (1994) pp 22–24. Tasmania Law Reform Institute, Non-Therapeutic Male Circumcision, Final Report No 17 (2012), p 71. See also D Richards, “Male Circumcision: Medical or Ritual” (1996) 3(4) Journal of Law and Medicine 371; G Boyle, J Svoboda, C Price and J Turner, “Circumcision of Healthy Boys: Criminal Assault?” (2000) 7(3) Journal of Law and Medicine 301; C Manson, “Exorcising Excision: Medico-Legal Issues Arising From Male and Female Genital Surgery in Australia” (2001) 9 Journal of Law and Medicine 58; R Narulla, “Circumscribing Circumcision: Traversing the Moral and Legal Ground Around a Hidden Human Rights Violation” (2007) 12 Australian Journal of Human Rights 89; JS Svoboda, PW Adler and RS Van Howe, “Circumcision is Unethical and Unlawful” (2016) 44(2) Journal of Law, Medicine and Ethics 263.

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traditional practices prejudicial to the health of children”. However, dismissing the consent of adult women who wish to undergo FGM may compound their lack of autonomy and sense of alienation. 211 A different approach to FGM is regulation rather than prohibition. Ian Patrick is one of the few authors who has argued for a “harm minimisation strategy” akin to that sometimes argued for in the field of substance abuse. 212 As with other controversial procedures, such as abortion, the law could impose restrictions relating to consent, such as requiring mandatory counselling before obtaining an “informed consent”, coupled with limits on the type of procedure permitted. This, together with education programs such as those run by the Ecumenical Migration Centre in Victoria, may provide a better alternative than criminalisation of the practice. 213 Indeed, in early 2010 Australian doctors briefly considered medically performed “surgical nicks to the female genitalia” as a means of preventing FGM being performed in the community. This proposal was however ultimately rejected by the Royal Australian and New Zealand College of Obstetricians and Gynaecologists. 214 As experience in drug law demonstrates, strict enforcement of prohibition can be counterproductive, resulting in less rather than more control. Realistically, the present strategy of global prohibition of FGM is unlikely to stamp out the practice. A policy of strict enforcement is much more likely to produce unintended consequences by driving the practice underground. For example, this may severely compromise the strategies in place to control the transmission of HIV and other blood-borne infections. 215 Policy in this area should pursue the “least worst solution”. The “unprincipled” but practical approach mooted here may seem abhorrent. However, resolving clashes between cultural, moral and political imperatives requires imaginative policy-making. By advocating effective regulation that is based on education and harm minimisation, medico-legal discourse could exert greater influence on these traditional practices, and perhaps, over time, transform these initiation rituals into symbolic covenants rather than surgical ones.

LAWFUL ASSAULT [10.110] As the law of assault and related offences has developed, a number of ways of avoiding criminal responsibility have also arisen. The use of force may be considered lawful if it: 211

212

213

214 215

S Pritchard, “The Jurisprudence of Human Rights: Some Critical Thought and Developments in Practice” (1995) 2(1) Australian Journal of Human Rights at 23, fn 87; L Manderson, “Local Rites and Body Politics” (2004) 6(2) International Feminist Journal of Politics 285. I Patrick, “Responding to Female Genital Mutilation: The Australian Experience in Context” (2001) 36(1) Australian Journal of Social Issues 15 at 24. For an earlier argument in a similar vein, see S Bronitt, “Female Genital Mutilation: Reflections on Law, Medicine and Human Rights” (1998) 5(1) Health Care Analysis—An International Journal of Health Care Philosophy and Policy 16. M Ierodiaconou, “’Listen to Us!’ Female Genital Mutilation, Feminism and the Law in Australia” (1995) 20 Melbourne University Law Review 562. See also C Vaughan, N White, L Keogh, J Tobin, B Ha, M Ibrahim, and C Bayly, Listening to North Yarra Communities about Female Genital Cutting (University of Melbourne, 2014) p 6, http://newsroom.melbourne.edu/sites/newsroom.melbourne.edu/files/ Listening%20to%20North%20Yarra%20Communities%20-%20Final%5B1%5D.pdf?_ga= 1.156371453.774396450.1463025084 (cited 30 November 2016). M Zerner, “Female Genital Mutilation—Recent UK Developments” (2011) 19(6) Australian Health Law Bulletin 78 at 78. See, generally, P Grabosky, “Counterproductive Regulation” (1995) 23 International Journal of the Sociology of Law 347. [10.110]

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• forms part of ordinary social activity; • forms the basis for an arrest or steps taken to prevent a breach of the peace; • is used in self-defence; • in some jurisdictions, is used as a result of provocation; or • is used reasonably and moderately to chastise children. Consent to a common assault renders the act lawful, but there is considerable debate about the role of consent in relation to aggravated assault. We will examine all these areas in turn.

Ordinary Social Activity [10.115] An act that is part of ordinary social activity is not an assault. 216 Physical conduct

that is generally acceptable in the ordinary course of everyday life includes the jostling that may occur on public transport or in a busy street, or handshaking at a party. 217 Similarly, it is not an assault to give a slight touch in friendship or to seek the attention of another by tapping on that person’s shoulder. 218

Arrest [10.120] A person exercising a lawful power of arrest is entitled to use reasonable force where

it is necessary in order to effect that arrest. 219 The old common law drew a distinction between the use of force in relation to resisting arrest and to fleeing from arrest. The provisions in the Queensland and Western Australian Criminal Codes still retain this distinction with more limitations being placed on the force used in relation to fleeing from arrest. Section 28 of the Criminal Code (NT) sets out the circumstances in which conduct by police and prison officers that causes death or grievous bodily harm will amount to justifiable force. What amounts to reasonable force is a question of fact that depends upon the circumstances of the particular case, including the nature of the resistance put up by the accused. 220 There is also a corresponding right to use reasonable force to resist unlawful arrest 221 and, again, what amounts to reasonable force is a question of fact. The use of force to prevent a breach of the peace is explored in Chapter 13, [13.65]–[13.70].

Self-Defence [10.125] The defence of self-defence is available to crimes involving the use of or threat of

force to the person such as assault and it results in a complete acquittal. As explored in 216 217 218 219

220 221

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Collins v Wilcock [1984] 1 WLR 1172; R v Boughey (1986) 161 CLR 10; Criminal Code (NT), s 187(e); Criminal Code (Tas), s 182(3). Collins v Wilcock [1984] 1 WLR 1172 at 1177–1178 per Goff LJ. Coward v Baddeley (1859) 4 H&N 478; Donnolly v Jackman [1970] 1 All ER 987; R v Phillips (1971) ALR 740 at 746; Boughey v The Queen (1986) 161 CLR 10 at 24 per Mason, Wilson and Deane JJ. R v Turner [1962] VR 30; Crimes Act 1914 (Cth), s 3ZC; Crimes Act 1900 (ACT), s 221; Criminal Code (NT), s 27(a) – (b), s 28; Criminal Code (Qld), ss 254, 257; Criminal Code (Tas), ss 26, 30 – 31; Criminal Code (WA), ss 231, 233. R v Turner [1962] VR 30. R v Ryan (1890) 11 LR(NSW) 171; McLiney v Minster [1911] VLR 347; R v Marshall (1987) 49 SASR 133; R v Fry (1992) 58 SASR 424; Criminal Code (NT), s 29(2)(a)(ii); Criminal Code (Qld), s 271; Criminal Code (WA), s 248. Section 15 of the Criminal Law Consolidation Act 1935 (SA) allows reasonably proportionate force for the purpose of preventing or terminating unlawful imprisonment. See also Chapter 6, [6.10] “Self-Defence”. [10.115]

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Chapter 6, [6.15], the test for self-defence varies across jurisdictions, but each test is a variation on the common law test set out by the lead judgment of Wilson, Dawson and Toohey JJ in Zecevic v DPP: “The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he [or she] did. If he [or she] had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he [or she] is entitled to an acquittal. Stated in this form, the question is one of general application and is not limited to cases of homicide.” 222

Table 1 in Chapter 6 at [6.15] sets out the elements of self-defence in each jurisdiction.

Provocation [10.130] Provocation in some jurisdictions is not only a defence to murder, but may also

apply as a defence to assault. In Queensland and Western Australia, provocation is also a complete defence to offences that have assault as a defined element. 223 It is, however, not applicable to offences such as doing bodily harm, grievous bodily harm or wounding where assault is not a defined element. 224 In the Australian Capital Territory, New South Wales and, it would seem, Victoria, provocation is a qualified defence to an assault which is defined to include the word “murder”, such as wounding with intent to murder. 225 In South Australia, provocation does not appear to apply, as there are no offences of assault defined to include the word “murder”. Mitchell J held in Duvivier v The Queen 226 that provocation could be a defence to an attempted murder in South Australia. However, a majority of the High Court cast doubt on this interpretation of the law in McGhee v The Queen. 227 In McGhee’s case, a majority of the High Court held that provocation was not a defence to attempted murder under the Criminal Code (Tas). 228 It is also highly unlikely that it exists as a defence to assaults in Tasmania given that the defence of provocation was abolished by the Criminal Code Amendment (Abolition of Defence of Provocation) Act 2003 (Tas). In the Australian Capital Territory, New South Wales and Victoria, the test for provocation appears to be the same as that applied for murder at common law, despite the fact that provocation has been abolished as a defence to murder in Victoria: see Chapter 5, [5.10]]. In Queensland and Western Australia, the definition of provocation as it applies to assault differs from that of the common law. 229 For example, s 268 of the Criminal Code (Qld) and s 245 of the Criminal Code (WA) provide that the term: “provocation”, used with reference to an offence of which an assault is an element, means and includes … 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 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 222 223 224 225 226 227 228 229

Zecevic v DPP (1987) 162 CLR 645 at 661. Criminal Code (Qld), s 269; Criminal Code (WA), s 246. The equivalent defence in the Criminal Code (NT) was repealed in 2006. Kaporonovski v The Queen (1973) 133 CLR 209. For a critique of this decision see T Nisbet, “The Scope of the Provocation Defence and Consent in Code Jurisdictions” (2012) 36(6) Criminal Law Journal 356. R v Newman [1948] VLR 61; Helmhout v The Queen (1980) 49 FLR 1. (1982) 29 SASR 217. (1995) 183 CLR 82. McGhee v The Queen (1995) 183 CLR 82 at 89 per Brennan J, at 96 per Dawson J, at 105 per Toohey and Gaudron JJ. Criminal Code (Qld), s 268; Criminal Code (WA), s 245. [10.130]

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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 …

The MCCOC, in its report on Non Fatal Offences Against the Person, recommended that provocation should not be a defence to assault: “[O]ne of the many conceptual problems with the doctrine of provocation is that it artificially forces attention to what is likely to be but one of the factors that precipitated the violence, and is to that extent misleading. In cases where there is no mandatory sentence (as with all offences under consideration here), the circumstances of provocation can be taken into account together with the other factors precipitating the offence in sentence.” 230

The criticisms of provocation discussed in Chapter 5 at [5.150] are equally applicable here. 231

Lawful Correction of Children [10.135] The common law enabled the lawful correction of certain classes of persons, such as

children, servants, the crew of ships, apprentices and—though subject to debate—wives. The lawful chastisement of wives was effectively ruled out in R v Jackson. 232 It appears that presently, under the common law, parents are entitled to use reasonable and moderate force to chastise their children, a position set out in legislation in some jurisdictions. 233 There is also some authority to the effect that teachers or those “in loco parentis” to the child may use some degree of force to correct a child as “lawful correction”. 234 This is reflected in legislation in some jurisdictions. For example, s 257 of the Criminal Code (WA) states: It is lawful for a parent or a person in the place of a parent, or for a schoolmaster, to use, by way of correction, towards a child or pupil under his [or her] care, such force as is reasonable under the circumstances.

Section 280 of the Criminal Code (Qld) is cast in similar terms. In Tasmania, Victoria and New South Wales, corporal punishment in State schools has been prohibited. 235 Section 14 of the former Education and Public Instruction Act 1987 (NSW) enabled discipline codes to be formulated for State schools after consultation with parents. This power continues to the present day under s 35(2) of the Education Act 1990 (NSW). In 1990, the National Committee on Violence recommended in Violence: Directions for Australia that corporal punishment in all schools be illegal. 236 There is scant authority defining the scope and degree of force implied by the words “reasonable correction” as it relates to parents or teachers. In R v Terry, Sholl J held: 230 231 232 233

234 235 236

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Model Criminal Code Officers Committee, Chapter 5—Non Fatal Offences Against the Person, Report (1998) p 141. See A Schloenhardt and EE Gluer, “Provocation and Assault: Retain, Reform or Repeal ss 268 and 269 of Queensland’s Criminal Code” (2013) 33(4) Queensland Lawyer 251. [1891] 1 QB 671. Crimes Act 1900 (NSW), s 61AA; Criminal Code (NT), s 11 (delegation of power); Criminal Code (Qld), s 280; Criminal Code (Tas), s 50; Criminal Code (WA), s 257; R v Hopley (1860) 2 F & F 202; Smith v Byrne (1894) QCR 252 at 253; R v Terry [1955] VLR 114 at 116–117. Cleary v Booth [1893] 1 QB 465; Mansell v Griffin [1908] 1 KB 160. Education Act 1994 (Tas), s 82A; Education and Training Reform Regulations 2007 (Vic), r 14; Education Act 1990 (NSW), s 35(2A). National Committee on Violence, Violence: Directions for Australia (Canberra: Australian Institute of Criminology, 1990); See also Australian Law Reform Commission, Seen and Heard: Priority for Children in the Legal Process, Report No 84 (1997), Recommendation 50, p 217. [10.135]

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“[T]here are exceedingly strict limits to that right [to use reasonable force on a child]. In the first place, the punishment must be moderate and reasonable. In the second place, it must have a proper relation to the age, physique and mentality of the child, and in the third place, it must be carried out with a reasonable means or instrument.” 237

In a discussion paper commissioned by the Commonwealth Department of Human Services and Health, Judy Cashmore and Nicola de Haas undertook an extensive examination of the existing law. They concluded that the law currently does not provide a clear and consistent guide as to what behaviour is and is not acceptable, and does not provide children with the protection available to other members of society. 238 When the Tasmanian Law Reform Institute released its Issues Paper No 3 entitled Physical Punishment of Children, it was inundated with responses from the community. 239 In its final report, the Institute decided by a majority to recommend that the defence of reasonable chastisement be abolished. 240 The fact that the Institute went on to provide two alternative recommendations, neither of which were unanimously approved, shows the difficulty in reaching community consensus in this area. Rochelle Urlich argues that the defence of lawful correction should be abolished because physical discipline is ineffective, is linked to child abuse, teaches children that violence is a legitimate means of problem-solving, and erodes children’s rights. 241 Similarly, Robin Grille states that “ordinary” spanking or smacking is harmful because it tends to make children more aggressive due to role-modelling. 242 The English common law governing lawful correction was challenged before the European Court of Human Rights (ECtHR) as violating Art 3 of the European Convention on Human Rights (ECHR). This states that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment”. 243 The ECtHR held in A v United Kingdom 244 that Art 3 imposes on the State an obligation “to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals”. 245 In that case, a nine-year-old boy was beaten repeatedly with a garden cane by his stepfather with “considerable force”, resulting in severe bruising. The stepfather was charged and acquitted of assault occasioning actual bodily harm and the child sought a ruling from the ECtHR that the common law defence of reasonable chastisement violated Art 3. The Court held, and the United Kingdom government conceded, that the notion of reasonable correction embodied in the common law exception to assault did not offer adequate protection against inhuman or 237 238 239 240 241 242

243

244 245

R v Terry [1955] VLR 114 at 116. J Cashmore and N de Haas, Legal and Social Aspects of the Physical Punishment of Children, Department of Human Services and Health (Canberra: AGPS, 1995). T Henning, “One Little Smack—Will You be in the Slammer?” (2003) 27 Criminal Law Journal 293. Tasmanian Law Reform Institute, Physical Punishment of Children, Final Report No 4 (2003) pp 3–4. R Urlich, “Physical Discipline in the Home” (1994) 7(3) Auckland University Law Review 851. R Grille, Parenting for a Peaceful World (Sydney: Longueville, 2005) Ch 17. See also MDA Freeman, “Upholding the Dignity and Best Interests of Children: International Law and the Corporal Punishment of Children” (2010) 73(2) Law and Contemporary Problems 211. See also Art 19(1) of the Convention on the Rights of the Child, which states that parties “… shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child”. (1998) 27 EHRR 611. A v United Kingdom (1998) 27 EHRR 611 at [22], p 2699. [10.135]

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degrading treatment or punishment contrary to Art 3. The law was subsequently amended, removing the reasonable chastisement defence for parents (or adults acting in loco parentis) where the accused is charged with wounding, causing grievous bodily harm, assault occasioning actual bodily harm or cruelty to persons less than 16 years of age. 246 The defence, however, remains available to charges of common assault. 247 To comply with the ECHR obligations, the reform has been supplemented by amendments to the Crown Prosecution Service (CPS) Charging Standards to assist prosecutors and police in investigating such cases. 248 As the MCCOC noted, the Australian Government has taken the view that the applicable international human rights obligations (including those in the Convention on the Rights of the Child) do not require the prohibition of reasonable correction. 249 The Supreme Court of Canada decided, by a majority of six to three, that s 43 of the Canadian Criminal Code, which excludes “[e]very schoolteacher, parent, or person standing in the place of a parent” from the offence of assault when “using force by way of correction toward a pupil or child … if the force does not exceed what is reasonable under the circumstances”, did not violate the Canadian Charter of Rights and Freedoms. 250 The MCCOC recommended the introduction of the following qualifications on “reasonable correction”. First, that reasonable correction be lawful when conducted by a parent or another person who takes care of the child where the parent has so consented. Secondly, in relation to what constitutes reasonable correction, the MCCOC proposed that: Conduct can amount to reasonable correction of a child only if it is reasonable in the circumstances for the purposes of the discipline, management or control of the child. The following conduct does not amount to reasonable correction of a child: (a) causing or threatening to cause harm to a child that lasts for more than a short period; or (b) causing harm to a child by use of a stick, belt or other object (other than an open hand). 251

This proposal, defining and limiting the scope of “reasonable correction”, addresses the concerns raised about the defence in A v United Kingdom, above. If adopted, it would be difficult to sustain an argument that the criminal law authorised or excused inhuman or degrading treatment or punishment contrary to international human rights law. It may be that clarification of the law rather than complete abolition will be more acceptable to legislatures. Terese Henning has observed that abolition “of the defence is probably an aspiration for a more heroic age”. 252 In New South Wales, the defence has been clarified rather than abolished. 253 The Crimes Amendment (Child Protection—Physical Mistreatment) Act 2001 amended s 61AA(1) of the Crimes Act 1900 (NSW), which now provides that any physical force applied by a parent of a child or a person acting for a parent of a child must be reasonable, taking into account the age, health, maturity or other characteristics of the child, the nature of the misbehaviour and other 246 247

249 250 251 252 253

Children Act 2004 (UK), s 58. Department for Children, Schools and Families (UK), Review of Section 58 of the Children Act 2004 (October 2007), p 6. The relevant CPS Charging Standard may be downloaded at http://www.cps.gov.uk/legal/l_to_o/offences_ against_the_person (cited 22 September 2016). Model Criminal Code Officers committeee, Non Fatal Offences Against the Person, Report (1998) p 135. Canadian Foundation for Children, Youth and the Law v Canada (Attorney General) [2004] 1 SCR 76. Model Criminal Code Officers committee, Non Fatal Offences Against the Person, Report (1998) p 130. T Henning, “One Little Smack—Will You be in the Slammer?” (2003) 27 Criminal Law Journal 293 at 302. See Crimes Amendment (Child Protection—Physical Mistreatment) Act 2001 (NSW).

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circumstances. Section 61AA(2) provides that physical force is not reasonable, unless it is trivial or negligible, if it is applied “to any part of the head or neck of the child, or to any other part of the body of the child in such a way as to be likely to cause harm to the child that lasts for more than a short period”.

Consent [10.140] Consent to a common assault renders the act lawful. 254 In Schloss v Maguire, the

Supreme Court of Queensland commented: “[T]he term assault of itself involves the notion of want of consent. An assault with consent is not an assault at all.” 255

Peter Young points out that “consent is not a defence in the strict sense of the word to an allegation of assault. This is because the element of assault and battery is the beating of another without their consent.” 256 The onus is on the prosecution to prove the absence of consent. Consent may be express or implied. 257 The rule that an act that is part of ordinary social activity is not an assault is sometimes justified on the basis of implied consent. 258 Consent must be freely given and not induced by fraud, force or threats. 259 The situation in relation to aggravated assaults differs quite markedly from consent as it relates to common assault. There are a number of English cases setting out the general rule that a victim cannot consent to an act that has the purpose of causing, or will probably cause, him or her actual bodily harm. 260 There are no decisions in Australian common law jurisdictions that directly address this point. In Lergesner v Carroll, 261 the Queensland Court of Criminal Appeal held that consent may in some cases be a “defence” to an assault occasioning actual bodily harm. However, consent does not appear to be relevant where the force applied amounts to grievous bodily harm or wounding. The rationale for the English rule—that consent is irrelevant where actual bodily harm occurs—lies in the notion that it is not in the public interest that a person should cause bodily harm to another for no good reason. 262 What constitutes a “good reason” for causing consensual bodily harm includes: • personal adornment such as tattooing, body piercing and branding; • surgery; and • rough “horseplay” and violent sports. 254

255 256 257 258 259 260

261 262

R v Donovan [1934] 2 KB 498; Attorney-General’s Reference (No 6 of 1980) [1981] QB 715; R v Brown [1993] 2 WLR 556; Criminal Code (NT), s 187; Criminal Code (Qld), s 245; Criminal Law Consolidation Act 1935 (SA), s 20(1); Criminal Code (Tas), s 182(4); Criminal Code (WA), s 222. Schloss v Maguire (1897) 8 QLJ 21 at 22. PW Young, “Is there any Law of Consent with Respect to Assault?” (2011) 85 Australian Law Journal 23 at 25. Beer v McCann [1993] 1 Qd R 25 at 28–29 per Derrington J; Collins v Wilcock [1984] 1 WLR 1172 at 1177–1178 per Goff LJ; Carroll v Lergesner [1991] 1 Qd R 206. Boughey v The Queen (1986) 161 CLR 10 at 24 per Mason, Wilson and Deane JJ. Criminal Code (NT), s 187; Criminal Code (Qld), s 245; Criminal Code (WA); s 222, Criminal Code (Tas), s 2A; Wooley v Fitzgerald [1969] Tas SR 65. R v Coney (1882) 8 QBD 534 (prize-fighting); Rex v Donovan [1934] 2 KB 498 (caning a 17-year-old girl for sexual gratification); Attorney General’s Reference (No 6 of 1980) [1981] QB 715; R v Brown [1993] 2 WLR 556. (1990) 49 A Crim R 51. See also Zijlstra v Northern Territory of Australia [2011] NTSC 46 at [49]; Davis v Chief of Army (2011) 278 ALR 199. Attorney-General’s Reference (No 6 of 1980) [1981] QB 715 at 719. [10.140]

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Hamish Stewart observes: “The law’s willingness to [recognise] consent to a risk of intentional infliction of serious bodily harm in the context of a lawful or socially valued activity can be understood as making possible a wide range of risky human activities that can be conducted within a structure of rules and practices, and that would otherwise be forbidden.” 263

Consensual sadomasochistic sexual activities, however, have been viewed as not providing such a “good reason” for the infliction of bodily harm. 264 This point is taken up later at [10.165] and also in Chapter 11, [11.15] “Reconstructing sexual crime: sexual violence or violent sex?”. Each of the justifications for consensual bodily harm listed above will be discussed in turn.

Consent to the risk of infection with HIV: The case of Michael Neal [10.145] The Victorian Court of Appeal considered the issue of whether it is possible to consent to the risk of infection with HIV or other sexually transmitted disease in the case of Neal v The Queen. 265 Michael Neal was diagnosed at being HIV-positive when he was aged 42. He was given anti-retroviral therapy and advised that it was his responsibility to practise safe sex and tell any sexual partners about his HIV status. His doctor became concerned that Mr Neal had not taken this advice and informed the Department of Human Services. Despite three letters and four orders from the Department, Mr Neal engaged in unprotected sex with a number of men while failing to disclose he was infected with HIV. He was convicted of multiple offences including reckless conduct endangering a person, attempting to cause another person to be infected with HIV and procuring sexual penetration by fraud. On some occasions, however, there was evidence that Mr Neal’s sexual partners had been advised, prior to penetration, that he had tested positive for the HIV virus. The Victorian Court of Appeal considered case law in England, Canada and New Zealand and concluded: “In our view, informed consent is capable of providing a defence to a charge of recklessly endangering a person with HIV through unprotected sexual intercourse, so long as the consent is communicated to the offender.” 266 However, the Court went on to state that consent could not be a defence to intentional infection with HIV: “[W]here the spread of sexual disease is merely incidental to sexual intercourse, the participants are not indulging in serious violence for the purposes of sexual gratification. They are simply prepared, knowingly, to run the risk – not the certainty – of infection, as well as all the other risks inherent and possible consequences of sexual intercourse. Contrastingly, where sexual intercourse is engaged in with intent to spread sexual disease it is, as a matter of public policy, just as unlawful as consensual violent conduct causing serious physical injury.” 267 In relation to consent as a defence to a charge of recklessly endangering a person with HIV, Kenneth Arenson observes that this appears to be based on the notion that consenting adults should be given the utmost freedom of choice in taking risks. 268 However, he points out: 263 264 265 266 267 268

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H Stewart, “The Limits of Consent and the Law of Assault” (2011) 24(1) Canadian Journal of Law and Jurisprudence 205 at 223. R v Brown [1993] 2 WLR 556. (2011) 32 VR 454. (2011) 32 VR 454 at 475, [72]. (2011) 32 VR 454 at 475-6, [73]. KJ Arenson, “Consent as a Common Law Defence to Non-Sexual Assaults: The Effect of Neal v The Queen” (2014) 33(2) The University of Tasmania Law Review 300. [10.145]

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“If the public interest in freedom of choice is truly sufficient to sanction informed consent to a genuine risk of being infected with a potentially fatal disease, it is difficult to envision any risk that cannot be the subject of informed consent, save for the caveats that it was not the offender’s intention to inflict the relevant harm and the victim’s informed consent was both present and communicated to the accused.” 269 The Court upheld Mr Neal’s appeal in relation to the trial judge’s jury direction in this regard and quashed some of his convictions and re-sentenced him on others. Ultimately, Michael Neal was sentenced to 12 years’ imprisonment with a non-parole period of nine years.

Personal adornment [10.150] Various cultures have sanctioned the infliction of harm upon the body in the form of

such conduct as tattooing, piercing, footbinding, headmoulding or genital rearrangement. 270 In Western society, body piercing has increased in popularity in recent years. 271 While tattooing and body piercing may seem to result from the quest for personal adornment, there is an argument that self-injurious behaviour may be sexual in nature. As stated by Ian Freckelton, the relationship between sadomasochistic behaviour and injurious behaviour is “difficult to define and as yet the subject of little analysis”. 272 Freckelton goes on to say: “Because of the emphasis that Western society places on health, idealised appearance and our abhorrence of suffering, the voluntary assumption of pain has a taboo or subversive aspect for most. It should not be surprising, therefore, that this status alone should provoke a sub-culture of limited and stylised self-harm, shared among the initiated and either revealed only to one another or brandished to the uninitiate as a statement of identity and ‘otherness’.” 273

The leading case dealing with bodily harm for “personal adornment” is that of R v Wilson. 274 In that case, the accused branded his initials on his wife’s buttocks with a hot knife. He was charged and convicted of assault occasioning actual bodily harm. He argued that the act was consensual. On appeal, the Court of Appeal quashed the conviction on the basis that what the accused did was on a par with tattooing, which did not involve an offence. Russell LJ in delivering the judgment of the Court, held: “For our part, we cannot detect any logical difference between what the appellant did and what he might have done in the way of tattooing. The latter activity apparently requires no state authorisation, and the appellant was as free to engage in it as anyone else. We do not think that we are entitled to assume that the method adopted by the appellant and his wife was any more dangerous or painful than tattooing.” 275

269 270 271 272 273 274 275

KJ Arenson, “Consent as a Common Law Defence to Non-Sexual Assaults: The Effect of Neal v The Queen” (2014) 33(2) The University of Tasmania Law Review 300 at 316. See, generally, A Favazza, Bodies Under Siege (Baltimore: John Hopkins University Press, 1992). I Freckelton, “Masochism, Self-Mutilation and the Limits of Consent” (1994) 2(1) Journal of Law and Medicine 48 at 50. I Freckelton, “Masochism, Self-Mutilation and the Limits of Consent” (1994) 2(1) Journal of Law and Medicine 48 at 51. I Freckelton, “Masochism, Self-Mutilation and the Limits of Consent” (1994) 2(1) Journal of Law and Medicine 48 at 55. [1996] 3 WLR 125. R v Wilson [1996] 3 WLR 125 at 128. [10.150]

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Just where the line is to be drawn between allowing consent to personal adornment by way of tattooing, body piercing and branding, and criminalising other conduct that causes bodily harm is very difficult. 276 This issue is taken up further in the ensuing section on consent and sadomasochism at [10.165]. Surgery [10.155] Surgery is viewed as lawful when performed with the patient’s consent, despite it

involving serious bodily harm. 277 Consent may be oral, written or implied. 278 Valid consent requires that the patient has the capacity to consent and is capable of understanding the treatment. 279 Consent must be voluntary. 280 It must also pertain to the act performed. 281 If a patient is unable to give consent, another person may be authorised to give consent on that person’s behalf. 282 In Queensland, Tasmania and Western Australia, surgical operations performed in good faith and with reasonable care and skill upon a person incapable of giving consent are lawful. 283 In the Northern Territory, Queensland and South Australia, doctors have statutory powers to give treatment without consent in an emergency, 284 and it appears that there is a common law doctrine of emergency that is applicable in other Australian jurisdictions. 285 An emergency situation is one where the treatment is essential to preserve the patient’s life or to prevent serious permanent injury. It does not extend to treatment that is convenient. For example, in Murray v McMurchy, 286 the patient was undergoing a Caesarean delivery when the doctor discovered fibroids in the patient’s uterus. The doctor performed a sterilisation on the basis that the patient should not undergo another pregnancy and it was more convenient to carry out the procedure at that time. The doctor was found liable for damages as there was “no evidence that these tumours were presently at the time of the operation dangerous to her life or health”. 287 Treatment may also be justified in the absence of consent on the basis of a common law doctrine of necessity or equivalent statutory defences such as sudden or extraordinary emergency. This was explored in Chapter 6 at [6.170]-[6.180].

276

286 287

See, generally, L Bibbings and P Alldridge, “Sexual Expression, Body Alteration and the Defence of Consent” (1993) 20(3) Journal of Law and Society 356; A Watkins, “Score and Pierce: Crimes of Fashion? Body Alteration and Consent to Assault” (1998) 28(2) Victoria University of Wellington Law Review 371. Department of Health and Community Services (NT) v JWB (Marion’s case) (1992) 175 CLR 218 at 232; Criminal Code (NT), s 26(3); Criminal Code (Qld), s 282; Criminal Code (Tas), s 51(1); Criminal Code (WA), s 259. Re T (Adult: Refusal of Treatment) [1993] Fam 95 at 102 per Lord Donaldson MR. Department of Health and Community Services (NT) v JWB (Marion’s case) (1992) 175 CLR 218. Re T (Adult: Refusal of Treatment) [1992] 3 WLR 782. Walker v Bradley (unreported, 15/12/1993, NSWDC, Kirkham J, 1919 of 1989); Murray v McMurchy [1949] 2 DLR 442. See B Bennett, Law and Medicine (Sydney: LBC, 1997) pp 21–29; L Skene, Law and Medical Practice: Rights, Duties, Claims and Defences (3rd ed, Sydney: LexisNexis Butterworths, 2008) Chs 4, 5. Criminal Code (Qld), s 282; Criminal Code (Tas), s 51(3); Criminal Code (WA), s 259. Emergency Medical Operations Act 1973 (NT), s 3(1); Law Reform Act 1995 (Qld), s 16; Consent to Medical Treatment and Palliative Care Act 1995 (SA), s 13(1). L Skene, Law and Medical Practice: Rights, Duties, Claims and Defences (3rd ed, Sydney: LexisNexis Butterworths, 2008) p 91. [1949] 2 DLR 442. Murray v McMurchy [1949] 2 DLR 442 at 445.

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277

278 279 280 281 282 283 284 285

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Rough horseplay and violent sports [10.160] The courts have permitted consent to operate as a defence to bodily harm in the

course of certain activities such as “rough horseplay” and violent sports. In R v Aitken, 288 the three accused and the “victim” were members of the Royal Air Force in the United Kingdom. They went to a party at the completion of their formal flying training and they consumed a “considerable quantity” of alcohol. Later that night, when two officers who were wearing fire-resistant flying suits fell asleep, some of the men set fire to their suits. The suits burned enough to wake the officers and they both treated this as a joke. After the party broke up, three of the men followed Flying Officer Gibson, caught him, poured spirits over his suit and set fire to it. This time, the flames engulfed Gibson and he suffered extremely severe burning. The three accused were convicted at a general court martial of inflicting grievous bodily harm. They appealed to the Courts-Martial Appeal Court, which quashed the convictions. The Court held that the judge advocate had failed to give any direction in relation to Gibson’s consent to “rough and undisciplined horseplay”. The Court went on to set out the direction that should have been given: “It is common ground that there was no intention to cause any injury to Gibson. In those circumstances, if Gibson consented to take part in rough and undisciplined mess games involving the use of force towards those involved, no assault is proved in respect of any defendant whose participation extended only to taking part in such an activity.” 289

It is uncertain what status this case has in Australia given the decision in Lergesner v Carroll 290 that implies consent will be irrelevant to a situation where grievous bodily harm is caused. The injuries suffered by Gibson would seem to fall within this category. There is more authority on the role of consent in relation to sports violence. Sports such as boxing, wrestling, football and ice hockey involve body contact that may lead to serious harm. The general rule is that, by engaging in sport, the participant accepts the inherent risks involved in that sport and that parties may validly offer consent. As Jack Anderson has pointed out, the accepted position in England, and comparable jurisdictions including Australia, is that: “Contact sports remain exempted from the usual scope of consent to assault not only on the public policy ground that they are good for the health of society, but also because their methods of self-regulation are, for the main part, satisfactorily drawn. That exemption is not a licence for thuggery and where the inflicted injury is clearly intentional and reckless, to the extent that it is beyond the rules and norms of the game in question, the criminal law’s threshold of toleration will be breached.” 291

In the absence of many prosecutions arising from sports violence, the legal space for contact sports has been carved out indirectly through the civil law torts of negligence or battery. Pallante v Stadiums Pty Ltd (No 1) 292 is one of the few cases examining the legal status of the contact sports. McInerney J held that: 288 289 290 291

292

[1992] 1 WLR 1006. R v Aitken [1992] 1 WLR 1006 at 1021, Cazalet J delivering the judgment for the court. (1990) 49 A Crim R 51. See J Anderson, The Legality of Boxing—A Punch Drunk Love? (Abingdon: Birkbeck Law Press, 2007) p 103ff; see Billinghurst [1978] Crim LR 553, where Rutter J reviewed the limited authorities governing consent, suggesting that the distinction which the jury may regard as decisive in relation to rugby is whether or not the force was used “in the course of play” or outside the course of play. The accused broke the jaw of an opponent during an “off the ball” brawl. He was convicted of inflicting grievous bodily harm, notwithstanding defence witness testimony from Mervyn Davies, a former Welsh international rugby player, that in the modern game of rugby punching is the rule rather than the exception! [1976] VR 331. [10.160]

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“[B]oxing is not an unlawful and criminal activity so long as, whether for reward or not, it is engaged in by a contestant as a boxing sport or contest, not from motive of personal animosity, or at all events not predominantly from that motive, but predominantly as an exercise of boxing skill and physical condition in accordance with rules and in conditions the object of which is to ensure that the infliction of bodily injury is kept within reasonable bounds, so as to preclude or reduce, so far as is practicable, the risk of either contestant incurring serious bodily injury, and to ensure that victory shall be achieved in accordance with the rules by the person demonstrating the greater skill as a boxer.” 293

Lord Mustill, however, in the later case of R v Brown, observed in relation to McInerney J’s decision: “I intend no disrespect to the valuable judgment of McInerney J [in Pallante] when I say that the heroic efforts of that learned judge to arrive at an intellectually satisfying account of the apparent immunity of professional boxing from criminal process have convinced me that the task is impossible.” 294

In some sports, such as Australian Rules Football, it is recognised that the rules will be breached on a regular basis and participants accept this within reasonable limits. 295 In R v Carr, 296 the New South Wales Court of Criminal Appeal upheld the accused’s conviction for assault occasioning actual bodily harm. In a particularly violent rugby league match, the accused had executed a head high swinging arm tackle that broke the victim’s jaw. The Court upheld the conviction on the basis that the tackle was in breach of the rules of the game and players did not consent to major breaches of the rules that led to injuries of the type sustained on the facts. 297 There has, however, been a marked reluctance in Australia to invoke the law of assault in relation to sports violence. Most disciplinary action is brought by way of the relevant governing bodies of the sports concerned, though, in recent times, some prosecution cases in Australia have seen the courts in two States impose prison sentences. These relatively rare invocations of the criminal law on the sporting field may be contrasted with the approach to

293

294

295

296 297

Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331 at 343. A review of older authorities reveals a somewhat different picture in which professional boxing was generally considered to be outlawed, exposing participants and promoters to prosecution. For an excellent monograph on this topic, see J Anderson, The Legality of Boxing: A Punch Drunk Love? (Abingdon: Birkbeck Law Press, 2007). In his review of the historical, legal, moral, ethical, philosophical, medical, racial and regulatory aspect of boxing, Anderson concludes that the immunity from the ordinary criminal law tends to be assumed, and may come under further legal challenge in the future. R v Brown [1993] 2 WLR 556 at 592. For a comparison of the differing approach of the law to consent between boxing and sadomasochism, with the author arguing that many of the justifications which exempt boxing from criminalisation should extend to sadomasochism, see A Kerr, “Consensual Sado-masochism and the Public Interest: Distinguishing Morality and Legality” (2014) 2(1) North East Law Review 51. See also KJ Arenson, “Consent as a Common Law Defence to Non-Sexual Assaults: The Effect of Neal v The Queen” (2014) 33(2) The University of Tasmania Law Review 300 at 316; J Anderson, “The Right to a Fair Fight: Sporting Lessons on Consensual Harm” (2014) 17(1) New Criminal Law Review 55 at 74. McAvaney v Quigley (1992) 58 A Crim R 457 at 459–460 per Legoe J, noting that “opposing players will not always abide by the rules and it cannot be said that every infringement of the rules resulting in physical contact that directly results in injury can amount to a criminal act”. Unreported, 17/10/1990, NSWCCA. See also Watherston v Woolven (1988) 139 LSJS 366; R v Stanley (unreported, 7/4/1995, NSWCCA, No 60554 of 1994); D Garnsey, “Rugby League Player Jailed for On-Field Assault” (1995) 5(2) Australian and New Zealand Sports Law Association Newsletter 7; Abbott v The Queen (unreported, 25/7/1995, WACCA, No 98 of 1995); H Opie, “Aussie Rules Player Jailed for Behind-Play Assault” (1996) 6(2) Australian and New Zealand Sports Law Association Newsletter 3.

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ice hockey in Canada, where more than 100 criminal convictions were made for offences involving violence between players in the 1970–1985 period. 298 All that can be drawn from the limited case law on sports violence is that the courts will focus on “the rules of the game, the degree to which the victim actually or could have consented to the behaviour and importantly its outcome, and the varying degrees of express or implied intention in the mind of the perpetrator at the time of the incident in question”. 299

Perspectives Consent and sadomasochism [10.165] In the course of an investigation into child pornography in England, the police

discovered a number of videotapes that were originally thought to be “snuff” movies. 300 The videotapes in fact showed a group of homosexual men engaging in sadomasochistic sex with one another. Some of the acts that were portrayed involved whipping, branding and the infliction of wounds to the genitals, including the insertion of safety pins and fish hooks into the penis, the dripping of hot wax into the urethra and the nailing of a penis into a bench. 301 These activities had taken place over a period of 10 years at a number of different locations, including rooms equipped as torture chambers. The activities were videotaped and the tapes then copied and distributed amongst members of the group. The men involved were charged with a number of offences, including charges of assault occasioning actual bodily harm. The men argued that they had committed no crimes as all the activities were consensual. They said that there was no permanent injury and no infection of the wounds, and that they used a code word to halt the infliction of pain if necessary. After a ruling by the trial judge that they could not rely on consent as an answer to the prosecution case, the men changed their pleas of not guilty to guilty. On 19 December 1990, they were sentenced. Some of them were given terms of imprisonment, one receiving a prison sentence of four and a half years. Six of the men appealed to the Court of Appeal. That Court reduced the sentences but upheld the convictions. 302 In a joint judgment delivered by Lord Lane CJ, the judges followed Attorney-General’s Reference (No 6 of 1980) in which the Court stated: “[I]t is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason.” 303

The Court of Appeal stated in Brown’s case that:

298

299 300 301 302 303

D White, “Sports Violence as Criminal Assault: Development of the Doctrine by Canadian Courts” (1986) 6 Duke Law Journal 1030 at 1034. In a similar period, only a handful of cases were brought in Australia: P Farrugia, “The Consent Defence: Sports Violence, Sadomasochism, and the Criminal Law” (1997) 8(2) Auckland University Review 472 at 485. I Warren, “Violence, Sport and the Law: A Critical Discussion” in D Hemphill (ed), All Part of the Game: Violence and Australian Sport (Melbourne: Walla Walla Press, 1998) p 99. S Edwards, “No Defence for a Sado-Masochistic Libido” (1993) 143 New Law Journal 406 at 406. Details of the activities are set out in the Court of Appeal judgment in R v Brown [1992] 2 WLR 441. R v Brown [1992] 2 WLR 441. Attorney-General’s Reference (No 6 of 1980) [1981] QB 715 at 719. [10.165]

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“[W]e agree with the trial judge that the satisfying of sadomasochistic libido does not come within the category of good reason nor can the injuries be described as merely transient or trifling.” 304

Five of the men then appealed to the House of Lords. A majority of three judges to two dismissed their appeal. 305 The judges in the majority stressed that consent could not be a defence to a charge of assault occasioning actual bodily harm unless the circumstances fell within pre-existing categories of exceptions, such as sporting contests or reasonable surgery. The words used by the majority judges display a degree of moral censure. For example, Lord Templeman held: “Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised.” 306

Similarly, Lord Lowry referred to the men suffering injury in order to: “satisfy a perverted and depraved sexual desire. Sadomasochistic homosexual activity cannot be regarded as conducive to the enhancement or enjoyment of family life or conducive to the welfare of society.” 307

These views echo the position of the distinguished English judge Lord Patrick Devlin, who in the 1960s argued that certain kinds of conduct ought to be prohibited and punished by the law simply because they are immoral according to the norms of a given society. 308 He argued that certain types of consensual conduct such as homosexual acts should be criminalised in order to preserve society, its essential institutions and what he termed as its “positive morality” from disintegration. The opposing view was taken up by Herbert Hart, who, following the tradition of John Stuart Mill, argued that conduct should only be criminalised if it caused harm to others. 309 What people did with consent in private was their business and not that of the criminal law. This view was followed by the dissenting judges in Brown’s case. Lord Mustill, in particular, observed that questions dealing with morally acceptable behaviour “are questions of private morality: the standards upon which they fall to be judged are not those of the criminal law”. 310 Three of the accused in Brown then took the matter to the European Court of Human Rights, arguing that the British justice system had violated their human rights, in particular, their right to privacy. 311 A unanimous nine-judge decision of the European Court held that it found no basis for allegations that the British courts were biased against homosexual men and that it had been necessary to delve into the men’s private lives “for the protection of health”. Should the acts done by the men in Brown’s case be punishable by the criminal law? A positive answer could be justified by recourse to Lord Devlin’s moralistic approach. A negative answer could be based on Professor Hart’s liberal approach. Interestingly, the 304 305 306 307 308 309 310 311

R v Brown [1992] 2 WLR 441 at 449. R v Brown [1993] 2 WLR 556. R v Brown [1993] 2 WLR 556 at 566. R v Brown [1993] 2 WLR 556 at 583. P Devlin, The Enforcement of Morals (London: Oxford University Press, 1965). See further, Chapter 1, [1.205] “Preserving Morality”. HLA Hart, Law, Liberty and Morality (Oxford: Oxford University Press, 1963). R v Brown [1993] 2 WLR 556 at 599. Laskey, Jaggard and Brown v United Kingdom (1997) 24 EHRR 39.

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European Court of Human Rights’ approach seems to fall somewhere in between. This approach could argue that such conduct should be criminalised because, even though consensual, it is likely to cause harm to health. Brown’s case was widely reported in the media and has been subject to a great deal of academic debate. 312 From a doctrinal perspective, the decision was criticised as representing a concealed shift in the approach to consent in the criminal law. For example, Nicola Padfield suggested that Brown represented a fundamental shift in philosophy: “In the past, consent had been seen as a defence in all but a few cases where the judiciary specifically ruled that it could not apply. Now the courts seem to be saying that consent can only be used in those few circumstances defined by the judiciary.” 313

Brown’s case also provided a focus for renewed discussion in England and Australia on the limits of consent in the criminal law, producing analyses of sadomasochism from various perspectives, including liberalism, feminism, critical theory and human rights. 314 A similar approach to the majority view in Brown’s case was expressed by the Ontario Court of Appeal in R v Welch. 315 In the course of consensual sadomasochistic activity, the “victim” suffered “obvious and extensive bruising” and (possible) injury to the rectum. The Court affirmed that the trial judge had been correct in withdrawing the issue of consent from the jury on the following basis: “Although the law must recognise individual freedom and autonomy, when the activity in question involves pursuing sexual gratification by deliberately inflicting pain upon another that

312

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314

315

See, for example, PJ Farrugia, “The Consent Defence: Sports Violence, Sadomasochism and the Criminal Law” (1997) 8(2) Auckland University Law Review 472; P Roberts, “Consent to Injury: How Far Can You Go?” (1997) 113 Law Quarterly Review 27; S Bronitt, “The Right to Sexual Privacy, Sadomasochism and the Human Rights (Sexual Conduct) Act 1994 (Cth)” (1995) 21(2) Australian Journal of Human Rights 59; Law Commission for England and Wales, Consent in the Criminal Law, Consultation Paper No 139 (1995); I Freckelton, “Masochism, Self-Mutilation and the Limits of Consent” (1994) 2(1) Journal of Law and Medicine 48; M Giles, “R v Brown: Consensual Harm and the Public Interest” (1994) 57 Modern Law Review 101; N Bamforth, “Sado-Masochism and Consent” [1994] Criminal Law Review 661; D Kell, “Social Disutility and the Law of Consent” (1994) 14 Oxford Journal of Legal Studies 121; D Kell, “Bodily Harm in the Court of Appeal” (1993) 109 Law Quarterly Review 199. N Padfield, “Consent and the Public Interest” [1992] New Law Journal 430 at 430. For a similar argument made in the context of the Criminal Code (Qld), see D Kell, “Consent to Harmful Assaults under the Queensland Criminal Code: Time for a Reappraisal?” (1994) 68 Australian Law Journal 363. For an analysis drawing on medico-legal perspectives and liberal theory, see I Freckelton, “Sado-Masochism, Repeated Self-mutilation and Consent” (1994) 2 Journal of Law and Medicine 48. For a feminist analysis, see S Edwards, Sex and Gender in the Legal Process (London: Blackstone Press, 1996) pp 77–89; S Jeffreys, “Consent and the Politics of Sexuality” (1993) 5(2) Current Issues in Criminal Justice 173; and C Smart, Law, Crime and Sexuality (London: Sage, 1995) pp 110–123. For a discourse analysis drawing on critical theory, see C Stychin, “Unmanly Diversions: The Construction of the Homosexual Body (Politic) in English Law” (1994) 32 Osgoode Hall Law Journal 503; S Chandra-Shekeran, “Theorising the Limits of the “Sado-Masochistic Homosexual” Identity in R v Brown” [1997] 21 Melbourne University Law Review 584. For a human rights analysis, see S Bronitt, “The Right to Sexual Privacy, Sado-Masochism and the Human Rights (Sexual Conduct) Act 1994 (Cth)” (1995) 2(1) Australian Journal of Human Rights 59. Other discussions of the case can be found in P Farrugia, “The Consent Defence: Sports Violence, Sadomasochism and the Criminal Law” (1997) 8(2) Auckland University Law Review 472; P Roberts, “Consent to Injury: How Far Can You Go?” (1997) 113 Law Quarterly Review 27; Law Commission for England and Wales, Consent in the Criminal Law, Consultation Paper No 139 (1995); M Giles, “R v Brown: Consensual Harm and the Public Interest” (1994) 57 Modern Law Review 101; N Bamforth, “Sado-Masochism and Consent” [1994] Criminal Law Review 661; D Kell, “Social Disutility and the Law of Consent” (1994) 14 Oxford Journal of Legal Studies 121; D Kell, “Bodily Harm in the Court of Appeal” (1993) 109 Law Quarterly Review 199. (1995) 101 CCC (3d) 216. [10.165]

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gives rise to bodily harm, then the personal interest of the individuals involved must yield to the more compelling societal interests which are challenged by such behaviour.” 316

A subsequent decision of the English Court of Appeal, R v Emmett, 317 confirmed the principle arising from Brown’s case and refused to draw a distinction between sadomasochistic activity on a heterosexual basis and that which is conducted in a homosexual context. In Emmett’s case, the accused was living with the “victim” at the time of the alleged assaults and, afterwards, they married. The evidence of injuries came from a doctor whom the victim had consulted. The victim herself did not give evidence at the trial. The accused was charged with five offences of assault occasioning actual bodily harm, but this was dropped to two at the trial. Emmett was convicted of assault occasioning actual bodily harm on one count and, in the light of the judge’s direction, the accused pleaded guilty to a further count of assault occasioning actual bodily harm. He was sentenced to nine months’ imprisonment on each count consecutive, the sentence being suspended for two years. The first incident that gave rise to the conviction concerned a process of partial asphyxiation through a plastic bag being placed over the victim’s head and tightly tied around the victim’s neck during the course of the accused engaging in oral sex with her. The victim lost consciousness due to loss of oxygen. The following day, her eyes became progressively bloodshot and when she went to her doctor, he found subconjunctival haemorrhages in both eyes due to the lack of oxygen and bruising around the neck due to the tight ligature holding the plastic bag in place. No treatment was given and, after about a week, the bloodshot eyes returned to normal. The second incident occurred a few weeks later when, during sexual activity, the accused poured lighter fuel on the victim’s breasts and set light to it. The accused said the victim had panicked and would not keep still, so he could not extinguish the flames immediately. She suffered a six centimetre by four centimetre third-degree burn that became infected. The doctor initially thought it might need a skin graft, but the burn eventually healed over without scarring. The accused appealed against conviction upon a certificate granted by the trial judge setting out the following question for the Court’s determination: “Where two adult persons consent to participate in sexual activity in private not intended to cause any physical injury but which does in fact cause or risk actual bodily harm, the potential for such harm being foreseen by both parties, does consent to such activity constitute a defence to an allegation of assault occasioning actual bodily harm contrary to s 47 of the Offences Against the Person Act 1861?”

The Court of Appeal held that consent could not amount to a defence in such circumstances. The accused relied upon R v Wilson, 318 in which Russell LJ observed that consensual activity between husband and wife, in the privacy of the matrimonial home, is not a proper matter for criminal investigation or prosecution. However, the Court of Appeal in R v Emmet drew a distinction between the type of harm in Wilson (branding for personal adornment) and the actual or potential damage suffered by the victim during the course of sexual activity on the facts: “The lady suffered a serious, and what must have been, an excruciating painful burn which became infected, and the appellant himself recognised that it required medical attention. As to the

316 317 318

R v Welch (1995) 101 CCC (3d) 216 at 239. [1999] EWCA Crim 1710. [1996] 3 WLR 125.

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process of partial asphyxiation, to which she was subjected on the earlier occasion, while it may … now be fairly known that the restriction of oxygen to the brain is capable of heightening sexual sensation, it is also, or should be, equally well-known that such a practice contains within itself a grave danger of brain damage or even death.” 319

The Court of Appeal found that the facts of Emmett were similar to those in Brown, observing that there was “no reason in principle … to draw any distinction between sadomasochistic activity on a heterosexual basis and that which is conducted in a homosexual context”. 320 The Court concluded by agreeing with the trial judge’s comments: “In this case, the degree of actual and potential harm was such and also the degree of unpredictability as to injury was such as to make it a proper cause for the criminal law to intervene. This was not tattooing, it was not something which absented pain or dangerousness and the agreed medical evidence is in each case, certainly on the first occasion, there was a very considerable degree of danger to life; on the second, there was a degree of injury to the body.” 321

It appears that these English decisions will now be followed in Australia. In R v McIntosh, 322 the accused pleaded guilty to manslaughter. His sexual partner died during bondage sex after the accused deliberately pulled on the rope around the deceased’s neck on the theory that near asphyxia can heighten sexual pleasure. There was no evidence that the deceased had not consented to the rope being placed around his neck, and there was evidence that the accused and the deceased had periodically engaged in bondage-type sex. In the course of sentencing the accused to five years’ imprisonment, Vincent J remarked in relation to whether the activity was unlawful for the purpose of unlawful and dangerous act manslaughter: “[I]t is not, of itself, and I repeat that expression, of itself, in the case of consenting adult persons, contrary to the law of this jurisdiction to engage in activities that could be described as bondage or sexual sadomasochism … In my opinion, if the sadomasochistic activity or bondage activity to which a victim consents involves the infliction of any such injury or the reckless acceptance of the risk that it will occur, then the consent of the victim will not be recognized.” 323

Here, like the English Court of Appeal in Emmett’s case, Vincent J appears to focus on the degree of harm involved in order to provide a threshold for consent to sadomasochistic activities. In R v Stein, 324 the Court of Appeal of Victoria applied Vincent J’s reasoning in dismissing leave to appeal from a conviction for manslaughter. There was evidence in Stein’s case that the victim had consented to a bondage session with the accused and a female prostitute, but that he had not consented to being gagged by the accused, which led to his death. In delivering the judgment of the Court, Kellam JA stated that Vincent J had accurately described the law in Australia, the United Kingdom and Canada. He went on to apply the reasoning to the facts as follows: “[E]ven though it might be accepted that the deceased had consented to bondage activity, the application of a gag to his mouth, whether or not he had consented, involved exposure to the risk of serious physical injury to him, just as did the placing of a plastic bag over the head of the complainant in the case of Emmett. There was a foreseeable risk of serious injury. Furthermore,

319 320 321 322 323 324

R v Emmett [1999] EWCA Crim 1710 at pp 7–8 of transcript. R v Emmett [1999] EWCA Crim 1710, p 6 of transcript. R v Emmett [1999] EWCA Crim 1710, p 8 of transcript. [1999] VSC 358. R v McIntosh [1999] VSC 358 at [11]–[14]. See also Neal v The Queen (2011) 32 VR 454. (2007) 18 VR 376. [10.165]

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the circumstances in which that foreseeable risk of serious injury arose included circumstances whereby the deceased was restrained and gagged. There was no possibility of his articulating his lack of consent, or indeed for that matter articulating his distress. Once the gag had been placed on him, he was totally in the hands of the applicant. Once that had occurred in circumstances where a risk of serious injury arose, the issue of consent became irrelevant.” 325

The regulation of sadomasochistic activities is particularly difficult because such activities combine sex with violence and, therefore, raise issues for the law relating to sexual offences as well as assault. As the feminist scholar Susan Edwards pointed out: “In our desire to preserve privacy, individual liberty, and freedom from state intervention we are in danger of missing what lies at the heart of sado-masochism—its potential for violence. Why is it that for some the prefix ‘sex’ functions as a protective shield? We need to recognise, as we move increasingly into a world of sexual violence, the dangers of placing this so-called ‘sex’ beyond the rule of law.” 326

The physical expression of sexuality takes many different forms, and this may include sadomasochistic violence. 327 The malleability of the distinction between “sex” and “violence”, and its scope for legal inversion, is explored in Chapter 11, [11.05]. The present law may offer some degree of protection by setting limits on the degree of harm to which a person can validly consent. An alternative framework for developing safeguards for those engaging in sadomasochistic activities may lie in the concept of consent rather than the degree of harm. 328 The law relating to consent for common assault at present offers little (if any) protection to those individuals who are especially vulnerable because of youth, inexperience or dependency. The general position is that, provided a person is sufficiently mature to understand the nature of the relevant act or risk, consent operates as a complete defence. By contrast, recent reforms to the law governing consent to sexual intercourse offer greater protection to vulnerable parties. However as Theodore Bennett argues, the general right to privacy enshrined in s 4 of the Human Rights (Sexual Conduct) Act 1994 (Cth) may protect a broad range of sadomasochistic activities. 329 In Chapter 11 we explore how free agreement to sexual intercourse may be negated by, for example, intoxication, the abuse of authority, threats or mental incapacity. In the context of offences against the person, similar rules should be developed to ensure that the consent of the parties is given freely, without constraint. This could involve the adoption of a positive consent standard for sadomasochistic activities that involve the risk of bodily harm to the participants. 330

325 326 327

328 329

330

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R v Stein (2007) 18 VR 376 at 381–382. See also Davis v Chief of Army (2011) 278 ALR 199. S Edwards, “No Defence for Sado-Masochistic Libido” (1994) New Law Journal 406. For a discussion of activities concerning the causing of pain to enhance sexual pleasure, see the Law Commission for England and Wales, Consent in the Criminal Law, Consultation Paper No 139, pp 133ff. See also A Houlihan, “When ’No’ Means ’Yes’ and ’Yes’ Means Harm: HIV Risk, Consent and Sadomasochism Case Law” (2011) 20 Law & Sexuality: A Review of Lesbian, Gay, Bisexual & Transgender Legal Issues 31 at 59. N Athanassoulis, “The Role of Consent in Sado-Masochistic Practices” (2002) 8 Res Publica 141; cf P Markwick, “Harming Consent” (2002) 8 Res Publica 157. T Bennett, “Sadomasochism under the Human Rights (Sexual Conduct) Act 1994” (2013) 35(3) Sydney Law Review 541. See also S Doherty, “Sadomasochism and the Criminal Law: A Human Rights Approach” (2012) 3(2) King’s Student Law Review 119. S Bronitt, “The Right to Sexual Privacy, Sado-Masochism and the Human Rights (Sexual Conduct) Act 1994 (Cth)” (1995) 2(1) Australian Journal of Human Rights 59 at 72. [10.165]

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THREATS [10.170] We have outlined how assault by the threat of force involves any act committed

intentionally or recklessly which puts another person in fear of immediate and unlawful personal violence. Threats independently of assault may also give rise to a criminal offence. The most serious of the threat offences that exist in all jurisdictions are threats to kill and threats to cause harm or injury. In New South Wales, Queensland and Tasmania, a threat to kill must be put in writing to constitute the offence. 331 In the other jurisdictions, the threat can be by words or conduct. 332 For example, s 19(3) of the Criminal Law Consolidation Act 1935 (SA) states that a threat may be “directly or indirectly communicated by words (written or spoken) or by conduct, or partially by words and partially by conduct”. All jurisdictions apart from Queensland require an intention to cause the victim’s fear that the threat will be carried out. In Queensland, it is enough that there is proof that the accused knew of the contents of any writing threatening to kill another. Some jurisdictions also contain recklessness as a fault element. 333 The Australian Capital Territory and the Northern Territory also impose an additional reasonable person test. Section 30 of the Crimes Act 1900 (ACT) states that the circumstances must be such that a reasonable person would fear that the threat would be carried out. Similarly, under s 166(1) of the Criminal Code (NT), the threat must be of such a nature as to cause fear to any person of reasonable firmness and courage. In the Northern Territory, it is a defence that the making of the threat was reasonable by the standards of an ordinary person in similar circumstances to the accused: s 166(2). It is also an offence in all jurisdictions to threaten harm or injury to another. 334 How that harm or injury is constituted varies between jurisdictions. In the Australian Capital Territory, the term is “grievous bodily harm” and in New South Wales, “bodily harm”. In the Northern Territory and Queensland, it is “any injury” or “any detriment” and in Victoria, “serious injury”. In South Australia, it is “to cause harm”. In Western Australia, the offence covers threats to “injure, endanger or harm”. In Tasmania, it covers threats “by any gesture to apply such force to the person of another”. The Model Criminal Code Officers Committee (MCCOC) recommended in its report that threats to kill and to cause serious harm remain offences. 335 The MCCOC was not certain as to whether to criminalise a threat to cause non-serious harm since “threats to cause minor harms are part of everyday life”. 336 It concluded that such an offence, if it is to be enacted, should be triable summarily. 337

331 332 333 334

335 336 337

Crimes Act 1900 (NSW), s 31; Criminal Code (Qld), s 308; Criminal Code (Tas), s 162. Crimes Act 1900 (ACT), s 30; Criminal Code (NT), s 166; Criminal Law Consolidation Act 1935 (SA), s 19; Crimes Act 1958 (Vic), s 20; Criminal Code (WA), s 338. Crimes Act 1900 (ACT), s 30; Criminal Law Consolidation Act 1935 (SA), s 19; Crimes Act 1958 (Vic), s 20. Crimes Act 1900 (ACT), s 31; Crimes Act 1900 (NSW), s 31; Criminal Code (NT), s 200; Criminal Code (Qld), s 359; Criminal Law Consolidation Act 1935 (SA), s 19(2); Criminal Code (Tas), s 182(1); Crimes Act 1958 (Vic), s 21; Criminal Code (WA), ss 338, 338B. Model Criminal Code Officers Committee, Non Fatal Offences Against the Person, Report (1998) p 48. Model Criminal Code Officers Committee, Non Fatal Offences Against the Person, Report (1998) p 49. Model Criminal Code Officers Committee, Non Fatal Offences Against the Person, Report (1998) p 51. [10.170]

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Perspectives Stalking [10.175] Queensland was the first State to pass stalking provisions in Australia in

1993 338 and it is now an offence in all jurisdictions. 339 In Queensland and New South Wales, stalking offences were introduced as a direct response to cases involving intimate partner violence. 340 From the legal viewpoint, stalking refers to a pattern of behaviour that results in some form of psychological harm. As Matthew Goode pointed out: “The essence of this behaviour is intentionally harassing, threatening, and/or intimidating a person by following them about, sending them articles, telephoning them, waiting outside their house and the like.” 341

The legal definition of stalking varies according to jurisdiction. In general, a pattern of predatory behaviour is criminalised providing that the accused intended the victim to fear personal injury. The Victorian legislation has the broadest fault element, which confuses the usual boundaries between subjective and objective fault elements. It defines intention to include the situation where the accused “knows” or “ought to have understood” that the course of conduct “would be likely to cause … harm or arouse … apprehension or fear”. 342 Paul Mullen and Michelle Pathé are two psychiatrists who have carried out substantial research into stalking behaviour. In 1997, they defined stalking as “a constellation of behaviours in which one individual inflicts on another repeated unwanted intrusions and communications”. 343 In a book written with Rosemary Purcell, the authors suggest that there are five primary types of stalkers: 344 • Intimacy Seekers, who respond to loneliness by attempting to establish a close relationship. They tend to be prolific letter-writers and gift-senders and are often impervious to legal sanctions, believing such sanctions to be the price of true love. 338

344

Section 3 of the Criminal Law Amendment Act 1993 (Qld) inserted new sections 359A and 359B into the Criminal Code (Qld). Crimes Act 1900 (ACT), s 35; Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13; Criminal Code (NT), s 189; Criminal Code (Qld), ss 359A – 359F; Criminal Law Consolidation Act 1935 (SA), s 19AA; Criminal Code (Tas), s 192; Crimes Act 1958 (Vic), s 21A; Criminal Code (WA), ss 338D, 338E. H Douglas, “Do We Need a Specific Domestic Violence Offence?” (2015) 39(2) University of Melbourne Law Review 434 at 451. M Goode, “Stalking: Crime of the Nineties?” (1995) 19 Criminal Law Journal 21 at 21. Crimes Act 1958 (Vic), s 21A(3). P Mullen and M Pathé, “The Impact of Stalkers on their Victims” (1997) 170 British Journal of Psychiatry 12; See also P Mullen and M Pathé, “The Pathological Extensions of Love” (1994) 165 British Journal of Psychiatry 614; P Mullen and M Pathé, “Stalking and the Pathologies of Love” (1994) 28 Australian and New Zealand Journal of Psychiatry 469; P Mullen, M Pathé, R Purcell and G Stuart, “A Study of Stalkers” (1999) 156 American Journal of Psychiatry 1244; R Purcell, M Pathé and P Mullen, “A Study of Women Who Stalk” (2001) American Journal of Psychiatry 2056; P Mullen and M Pathé, “Stalking” (2002) 29 Crime and Justice 273; R Purcell, M Pathé and P Mullen, “Stalking: Defining and Prosecuting a New Category of Offending” (2004) 27 International Journal of Psychiatry 157; R Purcell, M Pathé and P Mullen, “Association between Stalking Victimisation and Psychiatric Morbidity in a Random Community Sample” (2005) British Journal of Psychiatry 416; P Mullen, R Mackenzie, J Ogloff, M Pathé, T McEwan and R Purcell, “Assessing and Managing the Risks in the Stalking Situation” (2006) Journal of the American Academy of Psychiatry and the Law 439. P Mullen, M Pathé and R Purcell, Stalkers and Their Victims (Cambridge: Cambridge University Press, 2000).

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340 341 342 343

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• The Resentful, who respond to a perceived insult or injury by conduct aimed not just at revenge but at vindication. They are the most likely to threaten but the least likely to proceed to an actual assault. They are usually self-righteous and are difficult to engage in treatment, but will often withdraw from stalking when faced with legal sanctions. • The Rejected, who respond to an unwelcome end to a close relationship. They seek reconciliation or reparation or both. They use the widest range of stalking behaviours and are the most responsive to threats or the reality of legal sanctions. • The Predatory, who pursue sexual gratification and control both in and through their stalking. They concentrate almost exclusively on furtively following and maintaining surveillance of their victims, and their stalking behaviour is intended as preparatory to an assault—usually sexual—upon the victim. They form a small subset of stalkers and treatment may be difficult because of the existence of sexually aberrant behaviours. • The Incompetents, who are would-be suitors. They seek a relationship by methods that are, at best, counterproductive and, at worst, terrifying. They can usually be persuaded to abandon their stalking of a particular victim, but the challenge is preventing them latching on to a new victim. While Mullen, Pathé and Purcell point out that these different types of stalkers and stalking behaviour have existed for centuries, it was only in the late 20th century that the word “stalking” became one of general parlance in Western cultures. It was during the 1980s and 1990s that the media began to focus on the stalking of high-profile celebrities by their “fans” and the violence that occurred in the pursuit of ex-intimate partners. Novels, such as Ian McEwan’s Enduring Love (1997), and films, such as Adrian Lyne’s Fatal Attraction (1987) and Martin Scorcese’s remake of Cape Fear (1991), also served to bring stalking behaviours into the popular imagination. This increased focus on stalking behaviours highlighted the deficiencies in the law. For example, in New South Wales, there was an outcry concerning the murder of Andrea Patrick by an ex-lover after severe harassment that occurred in violation of a protection order. This was one of the catalysts for the enactment of stalking legislation in New South Wales in 1993. 345 While certain stalking behaviour could possibly have been prosecuted under existing law such as assault through the threat of force or general threat provisions, certain acts, when considered individually (such as sending flowers or letters), could seem innocuous to the uninvolved observer. Accordingly, stalking provisions were designed to cover a course of conduct that causes fear. Celia Wells writes that the introduction of specific stalking provisions arose from “two of the anxieties of the late 20th century—how to determine the boundaries of acceptable sexual behaviour and whether to admit psychiatric damage to the front row of significant personal harms”. 346 The types of stalkers set out above do suggest a sexual connection to the harassing behaviour. In Chapter 11 at [11.05]ff, we explore how the legal classification of conduct as sexual or non-sexual, violent or non-violent, criminal or non-criminal, depends on various factors including the age, consent, gender and/or sexuality of the parties. Further, the willingness of the courts to consider “bodily harm” as including pure 345 346

See Crimes (Domestic Violence) Amendment Act 1993 (NSW) (repealed); now see Crimes (Domestic and Personal Violence) Act 2007 (NSW). C Wells, “Stalking: The Criminal Law Response” [1997] Criminal Law Review 463 at 463. [10.175]

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psychiatric illness, as in the House of Lords decision in R v Ireland; R v Burstow, 347 has allowed the criminalisation of some forms of stalking as an assault occasioning actual bodily harm. Mullen, Pathé and Purcell would view “the rejected” as the mainstayers of family stalking. However, their types of stalkers show that there are added layers to stalking behaviour. Because of the differences in motives, psychiatric status and response to treatment amongst stalkers, it is very difficult to establish workable definitions and sanctions. Mullen, Pathé and Purcell sound the following warning: “The constellation of behaviours associated with stalking frequently involves legitimate and otherwise innocuous activities, such as telephone calls, letters, sending ‘gifts’, or approaches to the public. Requiring as few as two prohibited actions to constitute the offence will assist the proscription of behaviour prior to an escalation of violence. However, in the absence of sufficient safeguards, these laws increase the likelihood that inadvertent and legitimate behaviours will be regarded, and prosecuted, as ‘stalking’ … [T]here are natural limits to what the law can do to help to protect victims and prevent unwanted forms of conduct. It remains to be seen whether anti-stalking laws in their current form will prove an effective remedy to the problem of stalking, and, in many jurisdictions, in what form these contentious laws will eventually survive.” 348

OFFENCES ENDANGERING LIFE OR PERSONAL SAFETY [10.180] There are numerous miscellaneous statutory offences dealing with the concept of

endangering life or personal safety. There are, for example, provisions against administering drugs or poisons with intent to commit an offence, 349 setting traps 350 and offences relating to explosives. 351 There are also more general offences, such as conduct endangering life or personal safety and engaging in dangerous conduct. We will deal with these latter offences in this section. In South Australia and Victoria, there are provisions dealing with endangerment of life or personal safety. These provisions vary in their elements. In South Australia, it is an offence where a person does an act or makes an omission knowing that it is likely to endanger the life of another and intending to endanger the life of another or being recklessly indifferent as to whether the life of another is endangered. 352 In Victoria, s 22 of the Crimes Act 1958 (Vic) sets out the offence of recklessly engaging in conduct that places, or may place, another person in danger of death. Section 23 is similar, but deals with serious injury rather than death. The victim need not have suffered harm. It is enough that he or she was placed in danger of death or serious injury. 347 348 349

350

351

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[1998] AC 147. See R v Aubrey (2012) 82 NSWLR 748 at 755 and 760-1. P Mullen, M Pathé and R Purcell, Stalkers and Their Victims (Cambridge: Cambridge University Press, 2000) pp 277–278. Crimes (Internationally Protected Persons) Act 1976 (Cth), ss 8(2), 8(7)(c); Crimes Act 1900 (ACT), ss 27(3)(b), 28(2)(b); Crimes Act 1900 (NSW), ss 38, 38A, 39; Criminal Code (NT), ss 176, 176A; Criminal Code (Qld), ss 316, 316A, 322; Criminal Code (Tas), ss 169, 175; Crimes Act 1958 (Vic), s 19 (there is no requirement that there be an intent to commit an indictable offence); Criminal Code (WA), s 293. Crimes Act 1900 (ACT), ss 27(3)(f), 28(2)(d); Crimes Act 1900 (NSW), s 49(1); Criminal Code (NT), s 185; Criminal Code (Qld), s 327; Criminal Code (Tas), s 179; Crimes Act 1958 (Vic), ss 25, 26; Criminal Code (WA), s 305. Crimes Act 1900 (ACT), ss 27(3)(e), 28(2)(c); Crimes Act 1900 (NSW), ss 46, 47, 48, 55; Criminal Code (NT), ss 177(c), 182; Criminal Code (Qld), ss 317(g), 321, 540; Criminal Code (Tas), ss 170(c), 181; Crimes Act 1958 (Vic), s 317; Criminal Code (WA), ss 294(1)(c), 557. Criminal Law Consolidation Act 1935 (SA), s 29; Bedi v The Queen (1993) 61 SASR 269; R v Teremoana (1990) 54 SASR 30. [10.180]

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In R v Nuri, 353 the Supreme Court of Victoria held that s 22 involves proof of both subjective and objective elements. The prosecution must prove that a reasonable person in the accused’s position, engaging in the conduct of the accused, would have realised that his or her conduct had placed, or might place, another person in danger of death. The subjective element requires proof that the accused intended to engage in the relevant conduct, realising that the probable consequence of that conduct would be to place another in danger of death. This objective and subjective test has proved problematic in relation to prosecuting HIV-positive accused who have engaged in unprotected intercourse. In R v B, 354 Teague J held that the probability requirement in s 22 required proof of a “level of dangerousness” in the sense of an appreciable rather than a merely remote risk. In that case, there was uncontradicted expert evidence led to the effect that the risk of transmission of HIV arising from unprotected intercourse was around one in 200. The jury was accordingly directed to return a verdict of not guilty. 355 In Mutemeri v Cheesman, 356 the accused, who was HIV-positive, had been convicted by a magistrate of recklessly engaging in conduct that may place another in danger of death after he had unprotected intercourse on several occasions with the same woman. No evidence was led as to the statistical risk of HIV transmission. On appeal, Mandie J set aside the convictions, sentences and orders of the Magistrates’ Court. Mandie J was of the opinion that s 22 was concerned with foresight of the probability of the other person’s exposure to risk of death. Following Nuri’s case, he held that the test has both subjective and objective elements, namely, that: • the accused intended to do an act having realised the probable consequence of that act would be to place another in danger of death; and • a reasonable person in the accused’s position would realise that act had placed or may place another in danger of death. 357 Mandie J held that it was not open for the magistrate to find that the accused’s conduct placed his partner in danger of death without expert evidence directed to the risk associated with the particular conduct in issue. 358 As Matthew Groves observed in his commentary on the case: “[T]he essential issue for the magistrate concerned the level of risk of [the victim] contracting HIV by her contact with Mutemeri, and then dying as a result. It followed that the expert should have provided evidence on the chances of the survival of [the victim] if she had contracted HIV from Mutemeri, including the possible length of survival, during which a cure or further life prolonging treatments might be developed, and also her chance of outright survival.” 359

This subjective/objective test and the need for expert evidence seems unduly complicated, and it may be that having either a subjective or an objective test would provide greater clarity. 360 The law governing reckless sexual transmission of HIV and other life-threatening diseases, and the limits of consent, are discussed in Chapter 11, [11.120].

353 354 355 356 357 358 359 360

[1990] VR 641. Unreported, 19/7/1995, VSC. See also D (1997) 21 Crim LJ 40. (1998) 100 A Crim R 397. See also NOM v Director of Public Prosecutions (2012) 38 VR 618 at 637. Mutemeri v Cheesman (1998) 100 A Crim R 397 at 401. Mutemeri v Cheesman (1998) 100 A Crim R 397 at 406. M Groves, “Commentary” (1998) 22 Criminal Law Journal 357 at 359. See, further, D Lanham, “Danger Down Under” [1999] Criminal Law Review 960. [10.180]

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Some of the other jurisdictions impose duties on those engaging in conduct that may be dangerous to health, such as surgical or medical treatment. 361 In all jurisdictions apart from the Australian Capital Territory and Victoria, it is a criminal offence to fail to provide the necessaries of life where there is a duty to do so. 362 There are also a range of offences in jurisdictions other than South Australia and Victoria dealing with endangering the life of a child by abandonment or exposure. 363 The MCCOC recommended the enactment of a general endangerment provision, divided into recklessness as to the danger of death and recklessness as to the danger of serious harm. 364 The wording is similar to the Victorian provisions, but the MCCOC did not discuss the objective/subjective test and dismissed the criticism that a comprehensible test for recklessness is difficult to establish. 365 Instead, it quoted with approval Hampel J’s way of explaining the idea to the jury. In D, 366 Hampel J considered the test of recklessness in relation to the transmission of HIV: “[T]he question of whether the risk of danger involved is an appreciable risk is one for the jury. The jury is entitled to go beyond the population figure and consider the nature of the infection … the manner in which it is transmitted, and the various epidemiological studies … in order to determine, without relying on statistical or arithmetical calculations of probabilities, whether the risk of infection in respect of each act charged was an appreciable risk of danger or a mere remote possibility.”

This seems to relate to an objective measurement. The MCCOC, however, did not make any mention of a reasonable person test in this regard.

FALSE IMPRISONMENT, KIDNAPPING AND ABDUCTION [10.185] The offences of false imprisonment and kidnapping exist in certain jurisdictions.

There is some overlap between these offences, but false imprisonment refers to the deprivation of liberty of another, whereas kidnapping refers to the forcible taking away of another. Abduction generally refers to the taking or detaining of a person for a sexual purpose. At common law, every unlawful restraint of the liberty of one person under the custody of another, either in a prison, house or in the street, constitutes the tort of false imprisonment, which is also a misdemeanour. 367 The corresponding offence of unlawful deprivation of liberty exists in the Northern Territory, Queensland and Western Australia. In the Australian Capital Territory, it is an offence to unlawfully confine or imprison another person. 368

361 362 363 364 365 366 367

368

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Criminal Code (NT), s 150; Criminal Code (Qld), s 288; Criminal Code (WA), s 265. Crimes Act 1900 (NSW), s 44; Criminal Code (NT), s 183; Criminal Code (Qld), ss 285, 324; Criminal Law Consolidation Act 1935 (SA), s 30; Criminal Code (Tas), s 144; Criminal Code (WA), s 262. Crimes Act 1900 (ACT), s 39; Crimes Act 1900 (NSW), s 43; Criminal Code (NT), s 184; Criminal Code (Qld), ss 326, 364; Criminal Code (Tas), s 178; Criminal Code (WA), s 344. Model Criminal Code Officers Committee, Non Fatal Offences Against the Person, Report (1998) p 64. Model Criminal Code Officers Committee, Non Fatal Offences Against the Person, Report (1998) p 71. (1997) 21 Crim LJ 40 at 43. Emmett v Lyne (1805) 1 Bos & PNR 255; R v Lesley (1860) Bell CC 220; Hunter v Johnson (1884) 13 QBD 225; Mee v Cruickshank (1902) 20 Cox CC 210; MacPherson v Brown (1975) 12 SASR 184; Rahman (1985) 81 Cr App R 349. Criminal Code (NT), s 196; Criminal Code (Qld), s 355; Criminal Code (WA), s 333; Crimes Act 1900 (ACT), s 34. [10.185]

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The offence of false imprisonment is made out if a person is detained as a consequence of threats, whether or not those threats relate to the person detained or to another. 369 There is no imprisonment, however, if a person blocks the path of another so that he or she cannot go in a particular direction. 370 An imprisonment may occur even where the detained person is not aware that he or she is being detained. 371 The restraint of a child’s freedom of movement by a parent may amount to an unlawful imprisonment where the restraint extends to detention that is outside the realms of reasonable parental discipline. 372 It is an offence at common law to unlawfully take and carry away a person or hold a person in secret against his or her will. 373 All that must be proved is a deprivation of liberty and a taking away of the victim from the place he or she wishes to be. It is unnecessary to prove that the kidnapper took the victim to the place he or she intended. 374 A statutory offence of kidnapping a person for ransom or for any other advantage exists in all jurisdictions. 375 The Western Australian provision is the most extensive in that it covers the detention of a person where the accused intends to gain a benefit, pecuniary or otherwise, for any person, or cause a detriment, pecuniary or otherwise, to any person, as well as intends to prevent the doing of an act or to compel the doing of an act. 376 In the Northern Territory and Queensland it is also a statutory offence for a person to take, entice away or detain another person with the intention to compel that other person to work for him or her. 377 The offence of abduction exists in the Australian Capital Territory, South Australia, Tasmania and Victoria. 378 The offence was originally designed to protect the fortunes of heiresses. A statute was passed in the reign of Henry VII making it a felony to “taketh any woman against her will unlawfully” if she had land or goods or was heir to the same and the taking was for “motives of lucre”. 379 The current provisions do not refer to such motives, but rather to the taking or detaining of a person against his or her will with the intent to have sexual intercourse or to marry. Some States have specific provisions dealing with the abduction of children under the age of 16 or, in Tasmania, under the age of 17, 380 and child-stealing. 381 Section 65Y of the Family Law Act 1975 (Cth) also allows for imprisonment for up to three years if an accused takes a 369 370 371 372 373 374 375

376 377 378 379 380 381

R v Garrett (1988) 30 SASR 392. Bird v Jones (1845) 7 QB 742. Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44; cf Herring v Boyle (1834) 1 Cr M & R 377. Rahman (1985) 81 Cr App R 349. R v D [1984] AC 778. Wellard (1978) 67 Cr App R 364. Crimes (Internationally Protected Persons) Act 1976 (Cth), s 8(1); Crimes Act 1900 (ACT), s 38; Crimes Act 1900 (NSW), s 86; Criminal Code (NT), s 194; Criminal Code (Qld), s 354A; Criminal Law Consolidation Act 1935 (SA), s 39; Criminal Code (Tas), s 191A; Crimes Act 1958 (Vic), s 63A; Criminal Code (WA), s 332. Criminal Code (WA), s 332. A parent may be convicted of kidnapping his or her own child: R v D [1984] AC 778. Criminal Code (NT), s 195; Criminal Code (Qld), s 354. Crimes Act 1900 (ACT), s 63; Criminal Law Consolidation Act 1935 (SA), s 59; Criminal Code (Tas), s 186; Crimes Act 1958 (Vic), s 55. 3 Hen 7.2 (UK); Hawkins PC 109. Criminal Code (NT), s 202; Criminal Code (Qld), s 219(1), s 363A; Criminal Code (Tas), s 189; Criminal Law Consolidation Act 1935 (SA), s 80; Crimes Act 1958 (Vic), s 56. Crimes Act 1900 (NSW), s 87; Criminal Code (Qld), s 363; Criminal Code (WA), s 343; Crimes Act 1958 (Vic), s 63. [10.185]

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child outside Australia in breach of a residence, contact or care order of the court. A similar penalty can be imposed where the removal occurs when such proceedings are pending. 382 If a child is taken to another country, whether or not the child can be returned will depend upon whether the countries involved are contracting parties to the Hague Convention on the Civil Aspects of International Child Abduction. 383 If both countries are contracting parties, a child under the age of 16 may be the subject of an order to return to the country of origin. The Family Law Act provisions are of limited power in that the majority of child abductions occur when there are no family law proceedings pending. They also do not apply where a child has been taken overseas with consent, but one parent decides to keep the child there. The MCCOC recommended that an offence of child abduction be enacted, but specifically excluded parental child abduction from that offence. 384 In 1998, the Family Law Council considered whether or not child abduction by a parent should be criminalised and recommended that it should not. 385 The Council’s report set out a number of grounds for this conclusion, including that criminalisation would have negative effects on parent–child and parent–parent relationships, and that it might operate to the disadvantage of women fleeing family violence. In addition, it could also operate to the disadvantage of economically and socially weaker members of the community. 386

CONCLUSION [10.190] This exploration of the law of assault and related offences shows that there is much

left to be desired in terms of the existing structure because of the considerable overlap between offences. There remains an urgent need for the rationalisation and reform of the hierarchy of offences against the person. Andrew Ashworth and Jeremy Horder write in this regard: “How might the non-fatal offences be reformed? It is important to start by affirming the principle of maximum certainty, the principle of correspondence, and the principle of fair labelling, and in particular to ensure that the new scheme of offences is not so dominated by concerns about efficient administration (usually, prosecutorial convenience) as to produce wide, catch-all offences of the kind found in the public order legislation.” 387

The MCCOC was drawn to the scheme of offences against the person proposed by the English Criminal Law Reform Committee in its Fourteenth Report, Offences Against the Person, 388 upon which the Victorian, South Australian and Northern Territory provisions are based. 389 This scheme replaces assault provisions with provisions that focus on different types of injury accompanied by different fault elements. Similarly, the Home Office in England circulated a

382 383

384 385 386 387 388 389

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Family Law Act 1975 (Cth), s 65Z. The Hague, 25 October 1980 [1987] ATS 2, 19 ILM 1501. This is implemented in Australia by the Family Law (Child Abduction Convention) Regulations 1986 (Cth). See, further, D Chaikin, “International Extradition and Parental Child Abduction” (1993) 5 Bond Law Review 129. Model Criminal Code Officers Committee, Non Fatal Offences Against the Person, Report (1998) pp 88–91. Family Law Council, Parental Child Abduction, report to the Attorney-General (1998) p 32. Family Law Council, Parental Child Abduction, report to the Attorney-General (1998) p 33. A Ashworth and J Horder, Principles of Criminal Law, (7th ed, Oxford: Oxford University Press, 2013) p 334. English Criminal Law Reform Committee, Offences Against the Person, Cmnd 7844 (1980). Model Criminal Code Officers Committee, Chapter 5—Non Fatal Offences Against the Person, Discussion Paper (1996); Chapter 5—Non Fatal Offences Against the Person, Report (1998); Crimes Act 1958 (Vic), ss 15 – 18; Criminal Law Consolidation Act 1935 (SA), ss 20 – 29A; Criminal Code (NT), ss 149C, 174C – 174E. [10.190]

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draft Bill for comment in 1998. 390 This Bill again proposed a scheme based on the seriousness of the harm caused and the degree of the fault element involved. The MCCOC scheme recommends four divisions based on causing harm, threats and stalking, endangerment and, finally, kidnapping, child abduction and unlawful detention. The MCCOC term “causing harm” which is now used in South Australia 391 and the Northern Territory (“causing death or harm” 392) goes further than the Victorian provisions that refer to “causing injury”. 393 As explored above, the notion of causation here is broader than infliction and “harm” is used rather than “injury” in order to include “psychiatric harm” within the purview of the term. The MCCOC, South Australian and Northern Territory approach also differs from the Victorian one in defining more fully the scope of physical harm and harm to a person’s mental health. Section 5.4 of the Criminal Code (Cth) already defines the fault element of recklessness and this may go some way in avoiding the uncertainty that has surrounded the interpretation of the Victorian provisions using this term. The MCCOC scheme has much to recommend it. However, any reform to the law of offences against the person needs to be accompanied by reform to the public order offences, such as offensive conduct, affray and violent disorder, which are explored in Chapter 13. The traditional legal separation between “public” offences against the person and “private” family violence offences also needs continued review in order to ensure that violence against women and children is reported and charged because of the harm caused, rather than where it occurs. 394

390

391 392 393 394

Home Office, UK, Violence: Reforming the Offences Against the Person Act 1861, Consultation Document (1998). See also the subsequent report released in 2014, Law Reform Commission of England and Wales, Reform of Offences against the Person: A Scoping Consultation Paper, Consultation Paper No 217 (2014), http://lawcommission.justice.gov.uk/docs/cp217_offences_against_the_person.pdf (cited 30 November 2016). Criminal Law Consolidation Act 1935 (SA), s 24. Criminal Code (NT), s 149C. Crimes Act 1958 (Vic), s 18. H Douglas, “Do We Need a Specific Domestic Violence Offence?” (2015) 39(2) Melbourne University Law Review 434. [10.190]

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Sexual Offences A little still she strove, and much repented, And whispering “I will ne’er consent”—consented. 1 [11.05] [11.15] [11.20] [11.30] [11.35] [11.40] [11.50] [11.140] [11.165] [11.175] [11.185] [11.185] [11.200] [11.210] [11.210] [11.225] [11.255]

SEX, VIOLENCE AND THE CRIMINAL LAW .................................................................................. 635 Reconstructing Sexual Crime: Sexual Violence or Violent Sex? .................................................... 640 A Theory of Consent: Different Rules for Different Offences? ...................................................... 642 Sexual Consent, Privacy and Human Rights ................................................................................ 647 RAPE AND SEXUAL ASSAULT ....................................................................................................... 649 The Meaning of Sexual Intercourse ............................................................................................ 649 The Physical Element: Sexual Intercourse and Lack of Consent ................................................... 651 Fault Elements for Rape and Sexual Assault ................................................................................ 691 Aggravated Sexual Assault and Rape: Extension of Existing Doctrine .......................................... 708 Assessing Rape Law Reform: Accomplishment and Compromise? ............................................... 711 SEXUAL OFFENCES INVOLVING CHILDREN AND PERSONS WITH DISABILITIES .......................... 715 Sexual Offences Involving Children ............................................................................................ 715 Sexual Offences Involving Persons with Mental Disabilities ......................................................... 726 INDECENCY OFFENCES ............................................................................................................. 733 Regulating Sexual Decency ........................................................................................................ 733 Obscene and Indecent Publications: The Legal Regulation of Pornography ................................ 740 CONCLUSION ........................................................................................................................... 754

SEX, VIOLENCE AND THE CRIMINAL LAW [11.05] This chapter explores the relationship between sex, violence and the criminal law through an examination of selected sexual offences; namely, rape, sexual assault and indecency offences. From a legal perspective, the term “sexual violence”, while widely used by criminologists and sociologists, has no stable or consistent meaning. The legal classification of conduct as sexual or non-sexual, violent or non-violent, criminal or non-criminal depends on various factors, including the age, consent, gender and/or sexuality of the parties. There is considerable conceptual difficulty in identifying unifying characteristics, raising uncertainty as to whether activities involving pornography, prostitution, stalking and sexual harassment constitute sexual violence. This difficulty stems from the fact that “sexual violence” is more than a descriptive label. It performs a normative function that assists the police, prosecutors, judges, juries and lawmakers distinguish legitimate from illegitimate sexual behaviour. 1

Lord Byron, “Don Juan” (1819–1824) canto 1, st 92.

[11.05]

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From a technical perspective, efforts to categorise crimes as “sexual offences” pose similar difficulties. Leading criminal law scholar, Kate Warner, offered the following definition of “sexual offences” in Laws of Australia: “Sexual offences encompass a variety of sexual conduct which is prohibited because it is non-consensual, offensive or exploitative”. 2 Accordingly, her examination of sexual offences includes sexual assault and indecency as well as other “sexual offences against public morality”, such as prostitution. Interestingly, Warner views the transmission of a serious disease (such as HIV) by sexual intercourse as a sexual offence, rather than as a specie of assault. The difficulty with such a wide-embracing definition is that it obscures the highly differentiated nature of offences with a sexual dimension. Crimes of rape and sexual or indecent assault prohibit unwelcome or unwanted sexual conduct; the presence or absence of the victim’s consent, therefore, distinguishes between legitimate and illegitimate behaviour. Other types of sexual activity, such as prostitution, pornography and homosexual sadomasochism, may be unlawful, notwithstanding their apparently consensual and “victimless” nature. In some situations, the conduct may be legally constructed in terms that either suppress or conceal its sexual dimension altogether. In cases of stalking, for example, the sexual dimension of the accused’s conduct may be concealed behind charges of common assault or public order offences, or may be viewed as a “non-criminal” matter leaving victims to invoke civil remedies, such as restraining orders. See further, Chapter 13, [13.05]ff The law governing sexual offences does not merely regulate personal and interpersonal conduct. It also plays an important role in constituting sexual identities. This function of the criminal law is often overlooked since, according to traditional liberal accounts, the law is (or rather ought to be) concerned with regulating conduct, not criminal types. This point was explored in Chapter 1, [1.20] “Defining Crime and the Rule of Law”. The law governing sexual offences ostensibly fits this mould, prohibiting specific sexual conduct such as buggery or gross indecency rather than different types of sexuality such as homosexuality. Notwithstanding these powerful ideological claims of neutrality, the criminal law plays a role, together with other disciplinary discourses such as medicine, science and politics, in creating, sustaining and, ultimately, realigning the boundaries between sexual normalcy and sexual deviance.

Sexual pathology and sexual politics [11.10] In medical science, there is considerable controversy surrounding the role of psychiatry in constituting, diagnosing and treating homosexuality as a “sexual disorder”. In his monograph on the history of psychiatry, Edward Shorter traces the political controversy surrounding the inclusion of homosexuality as a “sexual deviation” in the illness list. In the 1970s, a sub-committee of the American Psychiatric Association (APA) reviewed the scientific data on homosexuals. Unable to agree on the issue, the matter was put to a referendum of members and, as a result, the APA removed homosexuality from the Diagnostic and Statistical Manual of Mental Disorders in 1974. As Shorter noted, “[a]t a stroke, what had been considered for a century or more a grave psychiatric disorder ceased to exist”. 3 Political discourse has also played a significant role in creating and sustaining homosexuality as a subversive sexual identity. The ambivalence toward homosexual reform in political texts is also apparent in the way decriminalisation is presented in parliamentary debates and legislative preambles. 4

2 3 4

Lawbook, The Laws of Australia (at 1 May 2009) 10 Criminal Offences, “3 Sexual Offences” [10.3.10]. E Shorter, A History of Psychiatry (London: Sage, 1995) p 304. E Henderson, “Of Signifiers and Sodomy: Privacy, Public Morality and Sex in the Decriminalisation Debates” (1996) 20 Melbourne University Law Review 1023. See, generally, J Weeks, Coming Out: Homosexual Politics

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Critical theorist Carl Stychin points out that “legal discourse is an important site for the constitution, consolidation and regulation of sexuality and, in particular, the hetero-homo sexual division”. 5 Transgressive sexuality clearly plays an important role in constituting and re-affirming the boundaries of “normal” (hetero) sexuality: “In order for heterosexuality to remain intact, it requires an intelligible conception of its boundaries and that which lies beyond its limits. Thus, homosexuality, as the counter-structure of heterosexuality, emerges as a desire that must be produced in order to be repressed. Far from being outside of discourse, the continuous exclusion of homosexuality is integral to the formulation of a dominant heterosexual identity.” 6

The production of sexual identities within the criminal law involves affirming or repressing sexuality. But some types of sexuality are considered so marginal or incomprehensible that their status as deviant is not even legally recognised. While male homosexuality has been the historical site of repressive religious and legal controls against buggery and gross indecency, female homosexuality or lesbianism has stood largely outside the sphere of legal regulation. Neither legitimate nor illegitimate, this aspect of female sexuality has been regarded simply as legally “unimaginable”. As Ruth Ford concludes in her historical examination of the legal treatment of lesbians in Australia in the mid-20th century: “The exclusion of lesbian sexual practices from the statutes provided most lesbian women with areas of silence and immunity, free from persecution and prosecution. That lesbian acts were not criminalised meant that there was less public discussion and little awareness of lesbianism. This created a space for women to have relationships unsuspected and often without intervention. Lesbian women did not experience the ongoing and direct persecution by the legal system that gay men did.” 7

Although lesbian women may not have experienced the same persecution at the hands of the legal system as gay men, the legal silence around their sexuality and identity has negative effects. As Anna Carline and Patricia Easteal point out, the criminal law’s failure to recognise the existence of women in lesbian relationships has had the effect of silencing and trapping lesbian women in violent relationships. 8 Women in same-sex relationships historically have been barred from complaining of rape “because of the language of rape laws that assumed male perpetrators”, 9 and a common theme in reports of emotional violence and manipulation

5 6

7

8 9

in Britain from the 19th Century to the Present (London: Quartet Books, 1977); M Kirby, “Psychiatry, Psychology and Law: Uncomfortable Bedfellows” (2000) 7(2) Psychiatry, Psychology and Law 139. For an essay on the decriminalisation of homosexual offences, and the competing ideologies at play in the reform debates, see K Amirthalingam, “Criminal Law and Private Spaces Regulating Homosexual Acts in Singapore” in B McSherry, A Norrie and S Bronitt (eds), Regulating Deviance: The Redirection of Criminalisation and the Futures of Criminal Law (Oxford: Hart Publishing, 2009) Ch 9. C Stychin, Law’s Desire: Sexuality and the Limits of Justice (London: Routledge, 1995) p 7. S Chandra-Shekeran, “Theorising the Limits of the “Sadomasochistic Homosexual” Identity in R v Brown” (1997) 21 Melbourne University Law Review 584 at 592. See also L Moran, The Homosexual(ity) of Law (London: Routledge, 1996). R Ford, “’Lady-friends’ and ’Sexual Deviationists’: Lesbians and Law in Australia, 1920s–1950s” in D Kirkby (ed), Sex, Power and Justice (Melbourne: Oxford University Press, 1995) pp 47–48. Although sexual conduct between women never constituted an offence under the common law or statute, Ford notes that police surveillance and harassment of “known” lesbians was not uncommon. A Carline and P Easteal, Shades of Grey—Domestic and Sexual Violence Against Women: Law Reform and Society (Abingdon, Oxon: Routledge, 2014). A Carline and P Easteal, Shades of Grey—Domestic and Sexual Violence Against Women: Law Reform and Society (Abingdon, Oxon: Routledge, 2014) p 248. [11.10]

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in same-sex relationships is that abusers convince their partners and former partners “that the legal system would not provide them with assistance given its homophobic character”. 10 Sexual offences have provided the focus for much philosophical discussion of the nature and functions of the criminal law. Liberalism and feminism have debated the purpose and scope of sexual offences, influencing both legislative reform and common law development. As discussed in Chapter 1, [1.200], the harm principle, together with the liberal values of privacy and autonomy, have played a significant role in reconstituting the boundaries between licit and illicit forms of sexuality. In the modern law, many of these theoretical discussions about the nature and scope of sexual offences law are framed in terms of human rights, which find expression in international treaties (such as the ICCPR), as well as in domestic human rights legislation. 11 The key human rights in this respect include: • the right to equality, which has informed debates about legal recognition of the marital rape immunity, the age of consent and doctrines governing implied consent and mistaken belief in consent; • the right to privacy and respect for family life, which has informed debates relating to “liberalising” laws repressing prostitution and homosexuality 12 as well as the right to engage in consensual sadomasochistic acts; • the right to human dignity, which has informed debates about the nature of fraud and consent in rape law, and the criminalisation of new forms of sexual misconduct that are not only offensive to the community, but furthermore degrading and humiliating to victims. This emerging legal discourse of human dignity is attracting increasing attention from scholars and judges alike. The right to human dignity is found in many preambles of international and constitutional bills of rights. 13 Its status as a paramount right which generates specific remedies is more recent, however, and owes much to its constitutional recognition as such under Article 1 of the German Constitution (Basic Law). 14 Indeed, the status of human dignity as a normative resource, capable of reshaping legal doctrine, occasionally surfaces in the reasoning of common law judges. As Justice Kirby observed more than two decades ago in 10

11 12

13

14

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A Carline and P Easteal, Shades of Grey—Domestic and Sexual Violence Against Women: Law Reform and Society (Abingdon, Oxon: Routledge, 2014) p 235 citing C Chan, Domestic Violence in Gay and Lesbian Relationships: An Overview (Sydney: Australian Domestic and Family Violence Clearinghouse, 2005) p 3. Human Rights Act 2004 (ACT); Charter of Human Rights and Responsibilities Act 2006 (Vic). See, for example, the Wolfenden Committee’s examination of homosexual offences and sex work in the United Kingdom: Report of the Committee on Homosexual Offences and Prostitution (London: HMSO, Cmnd 247, 1957). See, for example, Universal Declaration of Human Rights UNGA Res 217 A(III) (UDHR), Preamble and Articles 1, 23, 24; International Covenant on Civil and Political Rights 999 UNTS 171 (ICCPR), Preamble and Article 10; International Covenant on Economic, Social and Cultural Rights 993 UNTS 3 (ICESCR), Preamble and Article 13; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1465 UNTS 85 (CAT), Preamble; Convention on the Elimination of All Forms of Discrimination Against Women 1249 UNTS 13 (CEDAW), Preamble. Article 1, Grundgesetz, Basic Law for the Federal Republic of Germany in the revised version published in the Federal Law Gazette Part III, classification number 100-1, as last amended by the Act of 11 July 2012 (Federal Law Gazette I p 1478). Article 1(1) provides “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority”. For a collection of essays on the significance of the Basic Law, including Article 1, see J Brohmer (ed), The German Constitution Turns 60: Basic Law and Commonwealth Constitution – German and Australian Perspectives (Frankfurt am Main, Germany: Peter Lang, Internationaler Verlag der Wissenschaften, 2011) pp 77–88. The German contribution to the development of this jurisprudence in the aftermath of the Holocaust is examined in A Barak, Human Dignity: The Constitutional Value and the Constitutional Right (Oxford: Oxford University Press, 2015) Ch 13. [11.10]

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Kitchener, 15 the rights to human dignity and privacy were both relevant to how key concepts of criminal responsibility for rape should be understood: “Every individual has a right to the human dignity of his or her own person. Having sexual intercourse with another, without the consent of that other, amounts to an affront to that other’s human dignity and an invasion of the privacy of that person’s body and personality.” 16

It then followed that an accused who gave no thought to the desires, wishes or interests of the other person when engaging in sexual intercourse exhibited some degree of “culpable inadvertence”, which, in Kirby J’s view, fell within the statutory definition of “reckless indifference”. This departure in Kitchener from the traditional subjective common law conception of recklessness as the actual awareness of a risk that the other party may not be freely consenting is discussed at [11.160]. The potential use of the right to human dignity to reconstruct legal rules governing fraud and consent is further discussed at [11.60]. The extent to which such human rights are violated by new technologies and forms of sexual exploitation has been exposed by recent research suggesting that one in 10 Australians have had a nude or semi-nude photograph of them posted online or sent to others without their consent – the abusive distribution of intimate images over the internet, which may have transnational dimensions since servers are often located abroad, is colloquially known as “revenge porn”, though the term is not exhaustive of the range of abuses that can occur. 17 The increased vulnerability to such online abuses has led some jurisdictions to enact statutory protections for victims otherwise unprotected by existing sexual offence or privacy laws. 18 In Australia, only Victoria and South Australia have passed legislation providing legal remedies for victims of “revenge porn”, 19 enacting a range of new sexual offences. In New South Wales, the Standing Committee on Law and Justice recently published a report proposing that victims of revenge porn should be able to avail themselves of a new tort of invasion of privacy, though left open the question whether or not such conduct warrants criminalisation through a specific offence. 20 The growth of these new sexual crimes against human dignity is explored at [11.205]. To further explore the normative role of the criminal law in constituting and delineating “lawful sex” from “criminal violence”, the next section considers how the courts and common law have approached injuries arising from apparently consensual acts of sadomasochism 15

16 17 18 19

20

See, for example, the Wolfenden Committee’s examination of homosexual offences and sex work in the United Kingdom: Report of the Committee on Homosexual Offences and Prostitution (London: HMSO, Cmnd 247, 1957). R v Kitchener (1993) 29 NSWLR 696 at 697 (Kirby P). Commonwealth, Parliamentary Debates, House of Representatives, 17 October 2016, 2004 (T Watts). New South Wales, Parliamentary Debates, Legislative Council, 23 June 2015, 1609 (A Searle). See, for example, s 33 (Disclosing private sexual photographs and films with intent to cause distress) introduced by the Criminal Justice and Courts Act 2015 (UK). This provision commenced on 13 April 2015. However, certain provisions in existing legislation have been adapted in prosecutions relating to revenge pornography-type scenarios. See, for example, Usmanov v The Queen [2012] NSWDC 290 where s 578C, which makes it an offence to publish an “indecent article”, was applied. Notwithstanding the conviction, women’s organisations argue that the language of “indecency” in the provision may perpetuate victim-blaming attitudes. The range of existing criminal offences that could potentially apply to such cases is discussed in Standing Committee on Law and Justice, Parliament of NSW, Remedies for the Serious Invasion of Privacy in New South Wales (3 March 2016) pp 34–35. See the Standing Committee on Law and Justice, Parliament of NSW, Remedies for the Serious Invasion of Privacy in New South Wales (3 March 2016) pp 53–57. The Committee noted the support in a number of submissions for a new criminal offence of taking and disseminating intimate images without consent or threatening to do so. This issue fell outside the remit of the Committee’s inquiry, though it did conclude that the introduction of a statutory cause of action for serious invasions of privacy would provide an adequate remedy (and deterrent) for such behaviour in New South Wales. The Committee did, however, express support for the enactment of a new federal offence to deal with this harmful conduct. [11.10]

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(S&M). S&M practices involve the mutual infliction of pain to obtain sexual pleasure, it straddles the binary classification of conduct as either “sex” or “violence”. The inclusion of S&M in this chapter dealing with sexual offences and in Chapter 10 (offences against the person) recognises the instability of the categorisation of “sex” and “violence”. Traversing the conventional doctrinal lines drawn around S&M reveals the complex contradictory and contingent nature of legal categorisation. Consent, while purportedly fundamental to those doctrinal lines, is neither necessary nor sufficient to ensure sex will be lawful. Rather, as we will explore below, legality is contingent on a range of factors including the age, gender and sexuality of the participants, and the extent to which society has “normalised” certain sexual activities. The law inscribes—and, in some cases, saturates—legal subjects with sex. Legal discourse produces and subordinates sexual subjects in contradictory ways: Sadomasochistic groups of homosexual men participate in legally incomprehensible acts of “violence” rather than consensual sex, while heterosexual males engage in legitimate acts of “rough sex” with women who, it is assumed, gain sexual pleasure from the intentional infliction of pain. To achieve this legal contradiction, fundamental tenets of liberalism, such as autonomy and privacy, must be invoked albeit selectively. The decision to restrict or respect autonomy in an individual case is represented as a matter of weighing these liberal values against competing considerations of policy and public interest, as illustrated most clearly in the House of Lords decision of R v Brown, 21 discussed in the next section.

Reconstructing Sexual Crime: Sexual Violence or Violent Sex? [11.15] The controversy surrounding the limits of autonomy, privacy and human dignity in the context of S&M shadows the theoretical struggle between the principles of liberalism, morality and welfare as the appropriate markers for criminalisation. The influence of these principles and values on criminal law doctrine was explored in Chapter 1, [1.200]–[1.230]. The criminal law’s margin of sexual tolerance, though often couched in the language of liberalism, is highly contingent on prevailing social and cultural understandings of sexuality and sexual deviance. These understandings, which are neither fixed nor immutable, play a significant role in constituting and policing the borders between legitimate and transgressive forms of sexuality. The House of Lords decision in R v Brown was not merely a judgment about the legality of S&M for the purpose of the law of assault: see Chapter 10, [10.165]. The criminalisation of S&M in that case appeared to be tied to the construction and suppression of a distinct legal subject—the “sadomasochistic homosexual”. 22 Pathologised as both sexually deviant and a carrier of the “deadly” disease of HIV/AIDS, the sadomasochistic homosexual was viewed simultaneously as both a victim and perpetrator of violence. 23 The sexual dimensions of S&M were concealed behind the judicial depiction of the conduct as involving cruel violence, not merely sex. 24 As Lord Templeman concluded in Brown: “The violence of sadists and the degradation of their victims have sexual motivations but sex is no excuse for violence … Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised.” 25 21 22

24 25

R v Brown [1993] 2 WLR 556. S Chandra-Shekeran, “Theorising the Limits of the “Sado-masochistic Homosexual” Identity in R v Brown” [1997] 21 Melbourne University Law Review 584 at 586. The police cautioned 26 “victims” on the basis that their willing participation amounted to aiding and abetting offences against themselves: L Bibbings and P Allridge, “Sexual Expression, Body Alteration and the Defence of Consent” (1993) 20(3) Journal of Law and Society 356. R v Brown [1994] 1 AC 212 at 234 at 235. R v Brown [1993] 2 WLR 556 at 566.

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The European Court of Human Rights (ECtHR), in its review of the alleged violations of the privacy and equality rights of the accused in Brown, similarly constructed S&M as constituting acts of violence. The accused had argued that English law, as applied by the House of Lords, had discriminated against them on the grounds of sexuality and, therefore, had violated the European Convention on Human Rights (ECHR). In its 1997 decision, the ECtHR rejected this reading of the judgments in Brown, observing that “it is clear from the judgment of the House of Lords that the opinions of the majority were based on the extreme nature of the practices involved and not the sexual proclivities of the applicants”. 26 From both a domestic and international perspective, S&M is legally incomprehensible as sexual activity. What is the legal framework which constructed the conduct in Brown as criminal assaults rather than lawful consensual activity? The common law framework adopted by the House of Lords in Brown required the accused to establish that S&M fell within a recognised “public interest” exception to the rule that a person cannot ordinarily consent to the infliction or likely infliction of actual bodily harm. Cast in this way, the task of justifying S&M becomes legally impossible. Making little effort to understand the varied meanings and complexities of the rituals involved, the majority in Brown held that the accused had not established that inflicting pain for sexual gratification could be beneficial. The majority discounted precautions taken to respect the autonomy and welfare of the participants, such as code words, because, in the words of Lord Templeman “no one can feel the pain of another”. 27 The majority also took judicial notice that homosexual men were carriers of the deadly HIV virus, and that S&M posed an obvious risk of serious personal injury and blood infection, although there was no evidence that any of these practices had caused the infection. 28 As David Fraser concludes, the House of Lords could hardly validate a “contract for death”. 29 The majority did not consider that S&M might involve less serious injury, or that S&M practices were not restricted to groups of homosexual men. 30 Through this language of addiction, seduction and contagion, the majority in Brown constructed gay male sexuality exclusively in negative terms. 31 The majority did not consider whether the public interest would similarly override consent in other cases, such as unprotected heterosexual intercourse or body contact sports, which involve a similar risk of HIV infection. The instability of the categorisation of sadomasochism as “violence” rather than “sex” is apparent in the opening line of the lone dissenting speech of Lord Mustill: “My Lords, this is a case about the criminal law of violence. In my opinion, it should be a case about the criminal law of private sexual relations, if about anything at all.” 32 26 27 28 29 30

31

32

Laskey, Jaggard and Brown v United Kingdom (1997) 24 EHRR 39 at [47]. R v Brown [1993] 2 WLR 556 at 565. R v Brown [1993] 2 WLR 556 at 565. D Fraser, “Father Knows Best: Transgressive Sexualities (?) and the Rule of Law” (1995) 7(1) Current Issues in Criminal Justice 82 at 84. C Smart, Law, Crime and Sexuality (London: Sage, 1995) p 119. The legality of body piercing and performance art involving these practices was thrown into doubt following the decision in Brown. In England, performers were instructed by lawyers that while self-mutilation was not unlawful, individuals who assisted by inserting the needles would be guilty of aiding and abetting an assault: see C Armistead, “Piercing Thoughts”, Guardian Weekly, 17 July 1994. See further Chapter 10, [10.150]. C Stychin, “Unmanly Diversions: The Construction of the Homosexual Body (Politic) in English Law” (1994) 32 Osgoode Hall Law Journal 503. The Law Commission for England and Wales developed a more complex account of sado-masochism, drawing on public submissions from S&M enthusiasts and comparative research: The Law Commission for England and Wales, Consent in the Criminal Law, Consultation Paper No 139 (London: HMSO, 1995) Pt X. See also N H Stear, “Sadomasochism as Make Believe” (2009) 24 (2) Hypatia 1, where the author analogises engaging in BDSM with the process of engaging in make-believe when we read a book or watch a film, or the “quasi-fear” felt when we are emotionally invested in a horror movie. R v Brown [1993] 2 WLR 556 at 584. [11.15]

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Indeed, the charges initially contemplated were sexual offences involving gross indecency between males, though these were statutorily time-barred. The activities, which had occurred many years previously, only came to police attention through a videotape made at the time. This tape provided the basis for the charges against some of the accused involved, who pleaded guilty to the publication and possession of obscene or indecent articles, an offence that carried a longer sentence than assault. Others pleaded guilty to “keeping a disorderly house”, a charge usually reserved for brothel keepers. In practical as well as conceptual terms, the sexual and violent dimensions of conduct may be accentuated or concealed by the type of offence charged.

A Theory of Consent: Different Rules for Different Offences? [11.20] The criminal law, as Lord Mustill observed in R v Brown, does not possess a “general theory of consent and violence”. 33 While the consent of a group of sadomasochistic homosexual males in the context of assault and related offences is legally disregarded as “worthless” for reasons of public policy, consent remains contestable for the purposes of the law of rape even where the victim is subjected to very serious injury during sex—it is a live issue that the prosecution must disprove in every case. 34 This asymmetry in the criminal law is highly revealing, as Carol Smart observed shortly after the House of Lords’ ruling: “The Brown decision has left Britain with a law of sexuality which states—symbolically at least—that when women say No to rape they mean Yes, but when men say Yes to homosexual sex they mean No. In rape even the bruises and physical injuries sustained are typically subordinated to an understanding of the event as one of sexual passion, notwithstanding that neither aspects were consensual. In S/M the sexual gratification is subordinated to the physical harm, notwithstanding that the latter was consensual. It is hard to avoid concluding that the court’s response to such cases embodies a tolerance of non-consensual heterosex and a continuing desire to sanction consensual homosexual sex.” 35

The law of consent for indecent assault, like rape, has revealed a similar margin of tolerance towards heterosexual “rough sex”. The common law is well established that a person cannot ordinarily consent to actual bodily injury unless the injury falls within a recognised public interest exception. We explored in Chapter 10 at [10.150] how the law of assault may stretch these “recognised exceptions” to permit consent to operate as a defence to some “rougher” forms of sexual activity. For example, in R v Wilson, 36 decided after Brown, the English Court of Appeal examined whether buttock branding with a hot knife amounted to an assault, regardless of consent. The case was distinguished from sadomasochism by likening the buttock branding to the well-established practice of tattooing, with the effect that consent to the branding and the health risks involved was legally permissible. 37 In the Code states of Australia, it appears that there is a higher threshold of injury—namely, grievous bodily harm—to which a person may validly offer a consent, beyond which the activity must fall

33

35 36 37

R v Brown [1993] 2 WLR 556 at 591; R v Meachen [2006] EWCA Crim 2414, which noted the lack of coherent principle could be discerned from the cases: “[A]s is clear from the speeches in Brown [1994] AC 212 … and in particular that of Lord Mustill, there is no general theory of consent to violence and no step by step analysis of the cases can be sustained” at [32]. This lack of symmetry between the ordinary law of assault and rape is explored further in S Bronitt, “Rape and Lack of Consent” (1992) 16 Criminal Law Journal 289 at 303–305. C Smart, Law, Crime and Sexuality (London: Sage, 1995) pp 120–121. R v Wilson (1996) 2 Cr App R 241. R v Wilson (1996) 2 Cr App R 241.

642

[11.20]

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within a recognised public interest exception. 38 The definition of “actual bodily injury” also provides some margin of tolerance for rough sex, as it excludes “merely transient or trifling injuries”, see further Chapter 10, [10.80]. 39 The extent to which “rough sex” between heterosexuals may be legally tolerable is apparent in the English Court of Appeal decision of R v Boyea. 40 In this case, the accused was convicted of indecent assault arising from a violent attack in which he inserted his hand into the victim’s vagina and twisted it round inside, causing internal and external injuries. The accused raised consent as a defence but the trial judge directed the jury, in accordance with the case of R v Donovan, that an accused cannot raise consent where the conduct is intended or is likely to cause bodily injury unless the injuries are “transient or trifling”, concluding: “Two people in the course of sexual activity may agree to rough behaviour in the same way that people in sport may agree to behaviour which but for their agreement would constitute an assault.”

Lord Glidewell approved this direction, offering the following qualification to assist the jury in its determination of what would constitute “transient and trifling”: “The court must take into account that social attitudes have changed over the years, particularly in the field of sexual relations between adults. As a generality, the level of vigour in sexual congress which is generally acceptable, and therefore the voluntarily accepted risk of incurring some injury, is probably higher now than it was in 1934. It follows, in our view, that the phrase ‘transient or trifling’ must be understood in the light of conditions in 1992 rather than those nearly 60 years ago.”

These decisions were briefly reviewed in Brown, although Lord Jauncey distinguished the availability of consent as a defence in cases such as Donovan and Boyea on the ground that the injuries inflicted “could not have been described as in any way serious”. 41 The law in this field was reviewed yet again by the English Court of Appeal in R v Meachen, 42 in the context of whether consent operated as a defence to the offences of indecent assault and inflicting grievous bodily harm. In this case, the injuries were not trivial. The prosecution case was that the accused administered drugs to the victim, and then had anal intercourse involving the insertion of a large object into her anus whilst she was unconscious, causing very serious injuries. The defence sought to rely upon consent (both to the victim’s ingestion of the stupefying drug, and anal penetration), as well as the fact that the accused had neither intended nor foreseen the risk of injury. The trial judge as a matter of law held that consent was not available as a defence to indecent assault or inflicting grievous bodily harm. The Court of Appeal reviewed the authorities discussed above, and further cases involving 38

39

40 41 42

Carroll v Lergesner [1991] 1 Qd R 206. The effect is that the law may treat “consensual” acts of sadomasochism differently across Code and common law jurisdictions: the common law criminalises any consensual actual bodily harm (which potentially extends to include “noticeable bruising”), whereas jurisdictions based on the Griffith Code adopt a higher threshold of consensual injury that extends to free bleeding/wounding: see, further, T Bennett, “Sadomasochism Under the Human Rights (Sexual Conduct) Act 1994” (2013) 35(3) Sydney Law Review 541 at 557–558. This formulation first appears in R v Donovan (1934) 25 Cr App R 1, where the accused raised consent as a defence to a charge of indecent assault upon a young woman arising from an act of flagellation which had been perpetrated for his own sexual gratification. The English Court of Criminal Appeal held that the trial judge had failed to distinguish adequately between those activities to which consent could be raised as a defence, and those where consent was deemed to be immaterial. In its view, consent would be immaterial where the conduct is intended or is likely to cause actual bodily harm unless the conduct falls within a recognised exception. “Bodily harm” was also defined to include any hurt or injury calculated to interfere with the health or comfort of the victim, but excluded injuries that were “merely transient or trifling”: at 13. R v Boyea [1992] 156 JPR 505. See case commentary R v Boyea in [1992] Criminal Law Review 574. R v Wilson (1996) 2 Cr App R 241 at 244. [2006] EWCA Crim 2414. [11.20]

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consent to serious injuries arising from consensual “sex” games and reckless tackles causing injury in football. The Court formulated the relevant principles governing consent for indecent assault and grievous bodily harm as follows: “[40] On a charge of indecent assault, the prosecution has to prove that the touching of the complainant was without consent. It is sufficient for the issue that arises in this case to make clear that if the touching was with consent, then the fact that in the course of the consensual activity some bodily injury, even serious bodily injury, resulted accidentally and unintentionally, then as matter of principle no criminality can attach. … [43] … The fact that serious injury had in fact occurred, or was objectively likely, did not mean that there was no defence at the time the ruling was given, even though there was ample evidence on which the jury could have concluded that the appellant had the necessary intention to cause injury. The pleas were therefore made on a ruling which was incorrect and the convictions on [the above counts], given the assumption on which we have proceeded, have to be quashed.”

In the two decades since the House of Lords laid down the law governing consent in Brown (1994), there has been a gradual shift in public attitudes and tolerance towards S&M. Although the correctness of the decision has not been doubted, there appears to be growing interest in S&M in mainstream media. This has been spurred on by the normalising, yet controversial impact of the 2011 S&M-themed bestseller Fifty Shades of Grey (2011) by EL James. From a wider community perspective, the effect of this shifting attitude has been to make it more difficult for judges and juries to adhere to the absolutist position in Brown that the public interest denies the relevance of consent in such cases of otherwise consensual S&M assaults. In Australia, there appears to be little or no interest among law enforcement agencies and prosecutors to test the limits of Brown before the courts. There are even signs in the United Kingdom that in S&M cases, rather than withdraw consent from the jury, the trial judge should leave the matter for the jury to determine as a question of fact, focusing on whether consent was genuinely freely given, or whether the harm caused by, or likely to flow from, the activities fell within the scope of the person’s consent. In this way, the application of the public interest threshold in Brown may be bypassed, as revealed in two recent cases in England. While both cases did not dispute the correctness of the decision in Brown, the trial judges regarded the parties’ consent to S&M activity as a proper issue for the jury to determine, which in both cases resulted in acquittals. • R v Lock (unreported, Ipswich Crown Court, 22 January 2013). The accused was charged with occasioning actual bodily harm (ABH) after apparently “contracting” with a woman to engage in S&M activity. Mr Lock chained the woman to his bedroom floor and whipped her repeatedly, enacting a scene from the novel “Fifty Shades of Grey”. She had apparently signed a contract agreeing to act out a “master/slave” fantasy scenario and “promising Mr Lock free use of her body”. She also had the words “Property of Steven Lock” tattooed on her buttocks. In court, she testified “I knew that there would be pain involved and I knew I wasn’t going to like it but I’d agreed to do it and had to follow it through”. She suffered bruising to her buttocks and neck. She apparently cried and screamed throughout the act. Mr Lock was acquitted by the jury, presumably on the basis that there was insufficient evidence that the activity between adults took place without consent. 43 • R v Walsh (unreported, Kingston Crown Court, 8 August 2012). The accused, a barrister, was charged under s 63 of the Criminal Justice and Immigration Act 2008 with possession 43

See also R Easton, “Sadomasochism: Unleashed?” (15 April 2013) 157 (15) Solicitors Journal (online): http://www.solicitorsjournal.com/comment/sadomasochism-unleashed); B Kendall, “Gardener Cleared of Assault After Fifty Shades of Grey-Inspired Sadomasochistic Sex Session” (22 January 2013) The Independent (online): http://www.independent.co.uk/news/uk/crime/gardener-cleared-of-assault-after-fifty-shades-of-greyinspired-sadomasochistic-sex-session-8461714.html.

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of extreme pornographic images of anal fisting and urethral sounding. The images had been taken at an exclusive sex party involving consenting/willing adults. The defence argued that the images were not “extreme”, given that they portrayed relatively safe sexual acts which were common among the homosexual community. The issue of consent, being critical to this submission, was left to the jury, who duly acquitted the accused. A Crown Prosecution Service spokesperson stated that the rationale for prosecuting was “not about the practice itself, but was based on the evidence of medical experts who said the way the acts were performed was likely to cause serious injury or harm”. 44 Through this complex doctrinal web, the criminal law constitutes a diverse range of sexual identities and activities as either legitimate or deviant. The law is riddled with inconsistencies that are difficult to explain or justify. While transgressive sexual encounters between sadomasochistic homosexuals are criminalised as unlawful acts of violence, injuries deliberately inflicted during heterosexual encounters may be construed as trifling incidents of “rough sex”, consent to which negates liability for both rape and indecent assault. As a result, the criminal law entrenches dangerous stereotypes about gender and sexuality, such as women are masochistic and enjoy “rough sex” and that men may legitimately use force through “rough handling” as a means of sexual foreplay. Judicial directions to juries will reflect these legal understandings of sexuality, as revealed in the following case study.

Jury Directions on Sexual and Violence: Rougher than Usual Handling? [11.25] In 1992, South Australian judge Justice Bollen attracted national media scrutiny for

the following direction to the jury in a rape trial in R v Johns (unreported, 26/8/1992, SASC, No SCCRM/91/452). “‘Consent’ means free voluntary agreement to engage in an act of sexual inter-course at the relevant time. Submission is not consent. Of course, you may run into considering in this case the question of, shall I say, persuasion. There is, of course, nothing wrong with a husband, faced with his wife’s initial refusal to engage in intercourse, in attempting, in an acceptable way, to persuade her to change her mind, and that may involve a measure of rougher than usual handling. It may be, in the end, that handling and persuasion will persuade the wife to agree. Sometimes it is a fine line between not agreeing, then changing of the mind, and consenting.” 45

The infamous “rougher than usual handling” ruling attracted ire from feminist scholars, cited as evidence of entrenched gender bias in the judiciary and leading to a review of judicial training and introduction of gender-awareness programs. 46 A subsequent appeal by the Director of Public Prosecutions on a point of law provided an opportunity for the South Australian Court of Criminal Appeal to review the correctness of Bollen J’s jury direction. The majority pointed out that Bollen J’s remarks were a misdirection, since they wrongly suggested that men could use some degree of force against resistant women in order to persuade them to have sex. Not all judges agreed. The dissenting judge, King CJ, considered that Bollen J’s remarks may have been misleading, but they were not, strictly speaking, an error of law: “If sexual intercourse follows persuasion, whatever form the persuasion takes, the issue as to 44

45 46

DA Green, “The Shameful and Nasty Prosecution of Simon Walsh” (8 August 2012) The New Statesman (online): http://www.newstatesman.com/blogs/david-allen-green/2012/08/shameful-and-nasty-prosecutionsimon-walsh. R v Johns (unreported, 26/8/1992, SASC, No SCCRM/91/452) pp 12–13. Gender Bias and the Judiciary, Report by the Senate Standing Committee on Legal and Constitutional Affairs (1994) p 7. [11.25]

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consent is whether the wife freely and voluntarily consented to such intercourse and did not merely submit to force or threats.” 47 From a legal analytical perspective, the approach by the Chief Justice, a distinguished criminal lawyer, is unobjectionable legally. The difficulty with such directions is that they embody a paradigmatic experience of sex which permits forceful conduct to play some legitimate role in procuring consent, leaving the jury the complex task of determining whether the force induced consent freely or conversely vitiated consent. For policy reasons, it has been argued that the use of violence, threats or coercion is incompatible with modern statutory definitions of consent as free agreement and that, in such cases, the prosecution should be relieved of the burden of proving lack of consent. 48 The notorious “rougher than usual handling” direction emerges against a legal landscape that condones some degree of “roughness” as a prelude for normal (hetero)sexual encounters. The direction may be viewed not as a deviation from the law, but rather as recognition that the rules governing consent license the use of some degree of force (as in Donovan and Boyea and Meachen) as a legitimate part of sexual relations. As we shall explore at [11.95], this toleration of roughness as part of “normal sex” must be understood in the context of the prevailing model of sexual relations between men and women that is both penetrative/coercive and non-communicative. For feminists, “rough sex”, including S&M, raises controversial questions relating to the nature of autonomy, subordination and privacy. Liberal defences of S&M practices (which were considered in Chapter 10, [10.165] are based on traditional notions of privacy and autonomy, which have attracted criticism from both feminist and critical theorists. 49 The view that privacy is simply a cloak for legitimating sexual violence (including S&M) is not shared by all feminists. Carol Smart draws upon the ideas of ethical feminism to create a legal space for the legitimate expression of diverse sexualities including sadomasochism. 50 She reviews research that challenges the dominant conceptualisation of sadomasochism as a form of sexual oppression of the weak by the powerful. 51 Such research suggests that fantasy and theatre are essential to the understanding of these practices, and that masochists are not disempowered victims but rather possess power, through cues and signals, to control the behaviour of the sadist. 52 In her view, feminists who simply dismiss agency and consent in these cases are 47 48

49

50 51 52

Question of Law Reserved on Acquittal Pursuant to Section 351(1A), Criminal Law Consolidation Act (No 1 of 1993) (1993) 59 SASR 214. S Bronitt, “Rape and Lack of Consent” (1992) 16 Criminal Law Journal 289 at 308–310. Note that under the 2008 reforms to the Criminal Law Consolidation Act 1935 (SA), s 46(3)(a)(i) provides that a person does not consent (freely and voluntarily agree) to sexual activity if the person agrees because of “the application of force or an express or implied threat of the application of force or a fear of the application of force to the person or to some other person”. For an essay which critiques Brown from the perspective of liberalism arguing that consent should be a defence to S&M harms, see N Athanassoulis, “The Role of Consent in Sado-masochistic Practices” (2002) 8 Res Publica 2. S Edwards, “No Shield for a Sado-masochistic Libido” (1993) 143 New Law Journal 406 at 407; S Edwards, Sex and Gender in the Legal Process (London: Blackstone Press, 1996) pp 77–89. See also L Chancer, “From Pornography to Sadomasochism: Reconciling Feminist Differences” (2000) 571 The Annals of the American Academy of Political and Social Science 77; M Deckha, “Pain, Pleasure and Consenting Women: Exploring Feminist Responses to S/M and its Legal Regulation in Canada through Jelinek’s “The Piano Teacher”” (2007) 30 (2) Harvard Journal of Law and Gender 425. The Law Commission for England and Wales similarly argued that a right to privacy would not protect violence simply because it is sexual in nature and occurs in private: Law Commission for England and Wales, Criminal Law: Consent and Offences Against the Person, Consultation Paper No 134 (London: HMSO, 1994) [33.2]. C Smart, Law, Crime and Sexuality (London: Sage, 1995). C Smart, Law, Crime and Sexuality (London: Sage, 1995) pp 114–116. C Smart, Law, Crime and Sexuality (London: Sage, 1995) p 114.

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assuming that “women are cultural dupes just waiting to be saved or to see the light”. 53 The banishment of individual agency and consent simply replaces liberal concepts with the “public interest”, an amorphous legal category that empowers the judiciary, on a case-by-case basis, to determine whether dangerous activity should be lawful. Carol Smart concludes that the criminal law is capable of greater sexual tolerance in cases where the harm involved is not significant. As she notes, the injuries in Brown were not permanent and certainly no greater than the violence generated in football matches or boxing contests. The ordinary law of assault through its recognised public interest exceptions provides considerable scope for the legitimation of traditional forms of “homosocial” violence involved in sports, dangerous exhibitions and rough horseplay. The issue of the public interest in tolerating some degree of violence in sport has been explored in Chapter 10, [10.160]. Although accepting that privacy traditionally has offered few benefits for women, Smart concludes that it does provide a “private space which, if not absolutely inviolate, does prevent the criminal law exercising its remit overzealously”. 54

Sexual Consent, Privacy and Human Rights [11.30] We explored in Chapter 2 (at [2.245]) how the right to privacy under the International Covenant on Civil and Political Rights (ICCPR) was successfully invoked to challenge, and ultimately invalidate, homosexual offences in Tasmania that criminalised consenting sexual conduct between adult males in private. The effect of s 4 of the Human Rights (Sexual Conduct) Act 1994 (Cth) renders inoperative any law (statute or common law) in Australia that arbitrarily interferes with the sexual conduct of adults in private. However, this protective shield under federal law is not absolute, but may be subject to reasonable restrictions. Clearly, in giving effect to the sexual privacy shield under s 4, Australian courts may consider relevant international human rights jurisprudence. The difficulty is that the strength of such privacy arguments significantly weakens when the activity in question involves the infliction of serious, albeit consensual, physical harm. As the European Court of Human Rights (ECtHR) held in Laskey, Jaggard and Brown v United Kingdom: “One of the roles which the State is unquestionably entitled to undertake is to seek to regulate, through the operation of the criminal law, activities which involve the infliction of physical harm. This is so whether the activities in question occur in the course of sexual conduct or otherwise.” 55

That said, any interference with privacy must be necessary and proportionate to the objective of protection of health or public morals, though in this respect, the ECtHR held that the national authorities have a “margin of appreciation” in how they respond. The decision of the ECtHR to uphold the public interest limitations to consent in the House of Lords’ decision of Brown will undoubtedly influence the interpretation of the right to privacy created by s 4 of Human Rights (Sexual Conduct) Act 1994 (Cth), as well as the scope of the general privacy rights contained in the human rights legislation of the Australian Capital Territory and Victoria, discussed in Chapter 2 [2.150]. 56 In light of the ECtHR ruling, it is doubtful whether s 4 could be easily invoked as the legal basis for reframing the harm threshold for consent or the range of accepted public interest categories in cases where the 53 54

55 56

C Smart, Law, Crime and Sexuality (London: Sage, 1995) p 117. C Smart, Law, Crime and Sexuality (London: Sage, 1995) p 117. “Although boundaries are being drawn in new and imaginative ways, and denied under circumstances of abuse or hurt in the erstwhile private sphere, nevertheless some protection of the private life against totalitarianism is acknowledged”: K O’Donovan, “Book Review: Public and Private Feminist Legal Debates” (1996) 18(1) Adelaide Law Review 113. Laskey, Jaggard and Brown v United Kingdom (1997) 24 EHRR 39 at [43]. As s 4 of the Human Rights (Sexual Conduct) Act 1994 (Cth) gives effect to Australia’s international legal obligation under the ICCPR, Australian courts should give consideration to cognate international human rights [11.30]

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infliction of significant injury occurred for the purpose of sexual gratification. 57 Applying a proportionality test, the public interest in protecting people from injurious activity will typically outweigh privacy and personhood interests, such as the recognition that S&M plays an important role in fulfilling the sexual needs and desires within certain communities, and the risk that outlawing S&M would only place participants at further risk of harm, discouraging participants from seeking medical assistance if needed. We believe that the problem of negotiating and redressing power imbalances that potentially arise in sexual encounters is better addressed through redefining rather than eliminating consent from sexual offences. Rather than banish consent in situations of perceived inequality under the rubric of public interest, an alternate approach is to refurbish consent in terms of a positive obligation to communicate before and during sexual activity. A more communicative free agreement model of autonomy is emerging in the criminal law. For example, in many jurisdictions for the purposes of sexual assault (though not ordinary assault) consent is deemed not to be “freely given” where it is obtained through abuse of power or a position of trust or authority. 58 In New South Wales, South Australia, Tasmania, Victoria, Canada and the United Kingdom there have also been moves to redefine consent, embracing a positive communication standard that requires juries to consider what positive steps were taken to ascertain whether consent was freely given: discussed at [11.95]. The emergence of a positive consent standard challenges the passive consent standard recognised in legal doctrines such as “implied” consent. Indeed, international law may provide the basis for reforming laws that condone discriminatory stereotypes about female sexuality, as occurred in Canada in R v Ewanchuk, 59 where the Supreme Court, drawing inspiration from the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), held that the doctrine of implied consent had no application to sexual assault. 60 The role of international human rights law in reshaping the criminal law has been discussed in Chapter 2, [2.150]. Clearly, there is much scope to use these sources to challenge gender bias and dangerous stereotypes about sexuality embedded in the law. As this introduction has demonstrated, the reform of sexual offences should involve rethinking the values and interests protected by the law, particularly the meaning and scope of rights to autonomy, equality, privacy and human dignity in the sexual context.

57

58

59 60

jurisprudence, including cases before the ECtHR: S Bronitt, “The Right to Sexual Privacy, Sado-masochism and the Human Rights (Sexual Conduct) Act 1994 (Cth)” (1995) 2(1) Australian Journal of Human Rights 59 at 61–63. See also T Bennett, “Sadomasochism under the Human Rights (Sexual Conduct) Act 1994” (2013) 35(3) Sydney Law Review 541 at 545–547. A contrary position that s 4 and ECtHR privacy jurisprudence may support a more permissive approach to S&M has been advanced by S Bronitt, “The Right to Sexual Privacy, Sado-masochism and the Human Rights (Sexual Conduct) Act 1994 (Cth)” (1995) 2(1) Australian Journal of Human Rights 59; see also T Bennett, “Sadomasochism under the Human Rights (Sexual Conduct) Act 1994” (2013) 35(3) Sydney Law Review 541, who suggests, at 563, that the recognition of public interest restrictions for consensual S&M activities that do not involve grievous bodily harm would be arbitrary, and thus violate s 4. See Crimes Act 1900 (ACT), s 67(1)(h); Crimes Act 1900 (NSW), s 61HA(6)(c); Criminal Code 1899 (Qld), s 348(2)(d); Criminal Law Consolidation Act 1935 (SA), s 49(5); Criminal Code (TAS), s 2A(2)(e). Victoria has also clarified in s 36(2) Crimes Act 1958 (Vic) that “Circumstances in which a person does not consent to an act include, but are not limited to, the following … (l) the person does not say or do anything to indicate consent to the act”. R v Ewanchuk [1999] 1 SCR 330. Discussed further at [11.60].

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RAPE AND SEXUAL ASSAULT The modern law of rape generally rewards the strong male seducer for his absorption in his own sexuality. In law the man who can see only what he desires and needs, and who interprets a woman’s reactions as invariably congruent with his own, whatever she does, has sex with the law’s sanction. 61 [11.35] Modern statutory formulations of rape or sexual assault define the prohibited conduct as sexual intercourse without consent. Table 1 sets out the elements of this offence in Australian jurisdictions.

Table 1 Physical and fault elements for rape and sexual assault Jurisdiction MCC Model Criminal Code,

Offence unlawful sexual penetration

Physical element sexually penetrates another person without consent

Fault elements knowledge that the other person does not consent or reckless as to the lack of consent

ACT Crimes Act 1900, s 54

sexual intercourse without consent

sexual intercourse without consent

NSW Crimes Act 1900, s 61I NT Criminal Code, s 192(3)

sexual assault

sexual intercourse without consent

knowledge that the other person does not consent or reckless as to whether the other person consents knowledge that the other person does not consent.

sexual intercourse without consent

sexual intercourse without consent

Qld Criminal Code, s 349

rape

carnal knowledge or penetration with any thing or part of the body without consent sexual intercourse knowledge that the other person does not without consent consent or recklessly indifferent as to the withdrawal of consent

cl 5.2.6

SA Criminal Law rape Consolidation Act 1935, s 48 Tas Criminal Code, rape s 185 Vic Crimes Act 1958, rape s 38 WA Criminal Code, s 325

sexual penetration without consent

knowledge that the other person does not consent or reckless as to whether the other person consents. strict liability

sexual intercourse without consent

strict liability

sexual penetration without consent

intentionally sexually penetrates and does not reasonably believe that the other consents strict liability

sexual penetration without consent

The Meaning of Sexual Intercourse [11.40] Under the common law, the boundaries of rape were fixed by the narrow and the restrictive definition of sexual intercourse or penetration of the vagina by the penis. 62 The common law definition was gender-specific and excluded non-penile forms of sexual activity. 63 In Australia, these definitional limitations have been largely remedied by statute. 64 The United Kingdom, following a major reform of sexual offences, maintained a distinction between the offence of rape (by penile penetration) and assault by penetration (using any part of the body or object). 65 61 62 63 64

65

N Naffine, Feminism and Criminology (Sydney: Allen and Unwin, 1997) p 110. Papadimitropoulos v The Queen (1957) 98 CLR 249. L Tyler, “Towards a Redefinition of Rape” (1994) New Law Journal 860; DPP’s Reference (No 1 of 1992) (1993) 65 A Crim R 197 (CCA). Crimes Act 1900 (NSW), s 61H; Crimes Act 1958 (Vic), s 35(1); Crimes Act 1900 (ACT), s 50; Criminal Law Consolidation Act 1935 (SA), s 5; Criminal Code (WA), ss 319(1) and 325; Criminal Code (Qld), s 349(2); Criminal Code (Tas), s 1; Criminal Code (NT), s 1 (Schedule 1). See Sexual Offences Act 2003 (UK), ss 1 and 2 respectively. Though they are separate offences, both carry the same maximum penalty of life imprisonment. [11.40]

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By defining sexual intercourse in neutral terms of gender and sexuality, the offence of rape or sexual assault can encompass a wide variety of conduct. The Model Criminal Code proposed the definition of sexual penetration in the following terms: Clause 5.2.1 Sexual penetration (1) In this Part, sexually penetrates means: (a) penetrate (to any extent) the genitalia or anus of a person by any part of the body of a person or by any object manipulated by a person; or (b) penetrate (to any extent) the mouth of a person by the penis of a person; or (c) continue to sexually penetrate as defined in paragraph (a) or (b). (2) For the purpose of this Part, the genitalia or other parts of the body of a person include surgically constructed genitalia or other parts of the body of the person.

The Model Criminal Code Officers Committee (MCCOC) favoured the adoption of a core offence called “unlawful sexual penetration”, reflecting the fact that the offence may be committed by a wider range of violations than the present law. 66 An example of the modernised definition of sexual intercourse is s 61H of the Crimes Act 1900 (NSW), which defines “sexual intercourse” as the penetration of the genitalia (including a surgically constructed vagina) or the anus, fellatio and cunnilingus. 67 The Australian Law Reform Commission (ALRC), in a subsequent national review of the law relating to family violence in 2010, made recommendations in similar terms. 68 The ALRC concluded that the use of offence definitions that are neutral in terms of gender and sexual orientation avoids the need for specific homosexual offences. 69 The danger with gender neutrality or compendious definitions such as “unlawful sexual penetration” is that they conceal the fact that most sexual harm is gender-based, perpetrated by males against females. This argument does not deny the reality of “male rape” or child sexual abuse against boys. Indeed, as the recent Royal Commission into Institutional Responses to Child Sexual Abuse (2015) has revealed, male sexual abuse within institutional settings, such as prisons and schools, is a significant problem, requiring greater political, legal and scholarly attention. 70 However, on a symbolic and political level, definitional neutrality can have a negative impact on women, as well as other victimised groups, by rendering invisible the distinctive nature and causes of their sexual abuse.

66 67 68

69

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Model Criminal Code Officers Committee, Sexual Offences Against the Person, Report (1999) p 65. Australian Law Reform Commission, Family Violence—A National Legal Response, Report No 114 (2010) p 1136. Australian Law Reform Commission, Family Violence—A National Legal Response, Report No 114 (2010) Recommendation 25-1, p 1136. “State and territory sexual assault provisions should include a wide definition of sexual intercourse of penetration encompassing: (a) penetration (to any extent) of the genitalia (including surgically constructed genitalia) or anus of a person by the penis or other body part of another person and/or any object manipulated by a person; (b) penetration of the mouth of a person by the penis of a person; and continuing sexual penetration as defined in paragraph (a) or (b) above.” Australian Law Reform Commission, Family Violence—A National Legal Response, Report No 114 (2010), which recommended that “the definition of sexual intercourse or penetration should be broad and not gender-specific, and should be made more consistent across jurisdictions … in keeping with the shift away from historically gendered and restrictive definitions of sexual intercourse”: p 1135. This echoed the earlier recommendations of Model Criminal Code Officers Committee, Sexual Offences Against the Person, Report (1999) pp 15–19. For a recent collection of essays examining the legal, evidential and regulatory policy challenges in this field, see Y Smaal, A Kaladelfos and M Finnane (eds) The Sexual Abuse of Children: Recognition and Redress (Melbourne: Monash University Publishing, 2016). See also G Mezey and M King, Male Victims of Sexual Assault (Oxford: Oxford University Press, 1991).

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Sex with virgins and transsexuals [11.45] The law of rape and sexual assault exhibits a phallocentric focus, notwithstanding extensive redefinition of the physical element. Sexual intercourse requires the sexual penetration of a vagina, whether by a penis, other body part or an object. As pointed out by Nina Puren, a woman may be subject to sexual interference (by penis or finger) that does not, in fact, penetrate her vagina because of the elasticity of the hymen. The lack of proof of vaginal penetration would exclude rape as a matter of law. 71 Notwithstanding Puren’s submission, the narrow definition of penetration was not discussed in either the MCCOC’s discussion paper or final report. 72 In all state and territory jurisdictions excluding Western Australia, the definition of vagina includes a “surgically constructed vagina”. 73 While offering some protection for post-operative transsexuals, this extended definition does not extend to pre-operative transsexuals who may be excluded from the protection offered by rape and sexual assault laws. 74

The Physical Element: Sexual Intercourse and Lack of Consent [11.50] Within the present law of rape and sexual assault, consent occupies a central place. In every rape trial, the prosecution must prove, as an ingredient of the offence, that intercourse with another person occurred without consent. Consequently, as was pointed out in R v Olugboja, the state of mind of the other person before and during intercourse with the accused will always be relevant, not only in those cases where the issue of consent has been raised by the defence: “[T]he prosecution, in order to prove rape, must prove either that [the complainant] physically resisted, or if she did not, that her understanding and knowledge was such that she was not in a position to decide whether to consent or resist.” 75

Although the substantive law no longer requires evidence of resistance or an outward manifestation of lack of consent, 76 empirical research conducted by the Law Reform Commission of Victoria (LRCV) in the early 1990s suggested that obtaining conviction was harder without evidence that injuries had been sustained requiring medical treatment. 77 As LRCV concluded: “No matter what she says, if she ‘lies there’ during the assault, and does not injure the assailant or sustain extensive physical injury herself, that is considered to be 71 72 73

74

75 76

77

N Puren, “Defining the Hymen in the Model Criminal Code” (1997) 9 Australian Feminist Law Journal 96, discussing Holland v The Queen (1993) 67 ALJR 946. See Model Criminal Code Officers Committee, Chapter 5—Sexual Offences Against the Person, Report (1999). Crimes Act 1900 (NSW), s 61H(1)(a); Criminal Code (NT), s 1; Criminal Code (Qld), s 1; Criminal Code (Tas), s 1; Crimes Act 1958 (Vic), ss 35(1) and 37(C); Crimes Act 1900 (ACT), s 50; Criminal Law Consolidation Act 1935 (SA), s 5(3). For a review of the difficulties in invoking the criminal law to deal with the sexual abuse of transsexuals, see A Sharpe, “The Precarious Position of the Transsexual Rape Victim” (1994) 6 (2) Current Issues in Criminal Justice 303; A Sharpe, “Attempting the ’Impossible’: The Case of Transsexual Rape” (1997) 21 Criminal Law Journal 23. R v Olugboja [1982] QB 320 at 332. See also Chadderton (1908) 1 Cr App R 229; Harling (1938) 26 Cr App R 127; Lang (1975) 62 Cr App R 50 and Singh (unreported, 18/12/1990, VCA, No 226 of 1990) at pp 7–8. This is confirmed by legislation in some jurisdictions: Crimes Act 1900 (ACT), s 67(2); Criminal Code (NT), ss 192A(a) and (b); Crimes Act 1958 (Vic), s 36 and Jury Directions Act 2015 (Vic), ss 46(3)(c)(i) and (ii); Criminal Code (WA), s 319(2)(b); Crimes Act 1900 (NSW), s 61HA(7); Criminal Code (Tas), s 2A. Law Reform Commission of Victoria, Rape: Reform of Law and Procedures, Interim Report No 42 (1991) App, pp 95–95. [11.50]

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consistent with a woman’s part in ‘consensual’ sexual relations”. 78 Empirical studies have also revealed that the absence of physical injuries or evidence of victim resistance, though not part of the formal law of rape, has an influence upon the decisions of the police to investigate, lay charges and prosecute in light of the sufficiency of evidence. 79 Carol Smart concluded that it is the victim’s experience, rather than the accused’s behaviour, that lies at the heart of the rape trial: “The central concerns of the rape trial are consent and pleasure. Although the law is framed around mens rea and consent, the issue of mens rea only becomes relevant if consent/pleasure cannot be established. The man’s intentions are therefore not a priority, the whole focus is on the woman, her intentions and her pleasure.” 80

This focus upon consent as the forensic battleground over which guilt or innocence is contested is supported by empirical research suggesting that in many rape trials, the accused does not dispute that some form of sexual activity took place, but rather claims that the acts occurred with the other person’s consent. 81 Consent remains central to social understandings of sexual wrongfulness. Empirical studies of attitudes toward sexual violence have confirmed the centrality of consent as a defining concept for young people, government agencies and community services in Australia. 82 Lack of consent plays a dual role in rape, defining the physical element and the fault element. As Nicola Lacey pointed out: 78

79

Law Reform Commission of Victoria, Rape: Reform of Law and Procedures, Appendices to Interim Report No 42 (1991) pp 163–164. See discussion in A Powell, N Henry, A Flynn and E Henderson, “Meanings of ’Sex’ and ’Consent’: The Persistence of Rape Myths in Victorian Rape Law” (2013) 22(2) Griffith Law Review 456 at 459. See the study conducted by D Lievore (2005) Prosecutorial Decisions in Adult Sexual Assault Cases: Trends and Issues in Crime and Criminal Justice, Australian Institute of Criminology, which found that prosecutors were more likely to proceed where “victim complainant was injured, when the victim complainant physically or verbally expressed non-consent, when the assault was severe (for example, if it involved a level of force or a weapon) and where the offender was a stranger”: discussed in A Powell, N Henry, A Flynn and E Henderson, “Meanings of ’Sex’ and ’Consent’: The Persistence of Rape Myths in Victorian Rape Law” (2013) 22(2) Griffith Law Review 456 at 461. See also discussion in A Carline and P Easteal, Shades of Grey—Domestic and Sexual Violence Against Women: Law Reform and Society (Abingdon, Oxon: Routledge, 2014) p 179.

80

C Smart, “Law’s Truth/Women’s Experience” in R Graycar (ed), Dissenting Opinions (Sydney: Allen and Unwin, 1990) p 14.

81

See Law Reform Commission of Victoria, Rape: Reform of Law and Procedure, Interim Report No 42 (1991) App 3, p 86; New South Wales Department for Women, Heroines of Fortitude: The Experiences of Women in Court as Victims of Sexual Assault (1996) p 52; Australian Law Reform Commission, Family Violence—A National Legal Response, Report No 114 (2010), p 1147. See also A Carline and P Easteal, Shades of Grey – Domestic and Sexual Violence Against Women: Law Reform and Society (Abingdon, Oxon: Routledge, 2014) p 169: “Even though the mens rea has been the subject of heated debate … the extent to which it is a decisive factor in rape cases is debateable. Most defence lawyers argue that there was consent, as it is a dangerous strategy to argue mistaken belief”. In Victoria, there is some evidence suggesting that accused are shifting strategies, with one recent study of rape trial transcripts concluding: “Prior to the 2007 reforms in Victoria, the common response of an accused to a rape charge was to argue that the victim-complainant had consented. … The new jury directions have shifted the focus somewhat towards the accused person’s state of mind and their shared responsibility for the negotiation of consent, as opposed to solely focusing on what the victimcomplainant did or did not do to resist the sexual attack”: A Powell, N Henry, A Flynn and E Henderson, “Meanings of ’Sex’ and ’Consent’: The Persistence of Rape Myths in Victorian Rape Law” (2013) 22(2) Griffith Law Review 456 at 464. See the recent report, based on national survey data, A Harris, N Honey, K Webster, K Diemer and V Politoff (eds), Young Australians’ Attitudes to Violence Against Women: Findings from the 2013 National Community Attitudes Towards Violence Against Women Survey for Respondents Aged 16 – 24 years (Melbourne: Victorian Health Promotion Foundation, 2015) available online: https://www.vichealth.vic.gov.au/media-and-resources/ publications/2013-national-community-attitudes-towards-violence-against-women-survey. Community attitudes have not significantly changed since earlier studies in the 1990s: L Daws, J Brannock, R Brooker, W Patton, G Smeal and S Warren (eds), Young People’s Perceptions of and Attitudes to Sexual Violence (Hobart: National Clearinghouse of Youth Studies, 1995).

82

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“In definitions of offences such as rape, however, a ‘mental’ element is part of not only the mens rea but also the actus reus: whilst the defendant’s lack of belief in the victim’s consent is part of the mens rea requirement, the victim’s lack of consent itself is part of the actus reus.” 83

In the context of rape, the strict dualism between physical and fault elements which runs through the criminal law seems to break down. In many cases, defence claims of consent and belief in consent are inextricably meshed. An accused who says that the other party “consented” is invariably claiming simultaneously that sexual activity was consensual and was believed to be consensual. The MCCOC, in its review of sexual offences, noted the academic criticism levelled at the dual focus of the offence, but nevertheless affirmed that lack of consent on the part of the victim should ordinarily constitute the physical element. 84 The presumed centrality of consent to rape and sexual assault laws appears to be legally unassailable, with the Australian Law Reform Commission recommending that federal, state and territory sexual offence provisions jurisdictions in Australia should adopt a statutory definition of consent based on “free and voluntary agreement”. 85 Under the present law, the prosecution must prove that the other person did not consent even where there was evidence of serious injuries being inflicted during sex. The Supreme Court of Canada, however, adopted a different approach to consent under the statutory offence of sexual assault, limiting its availability as a defence in those cases where bodily harm was intended or likely to occur. 86 The idea that consent is deemed irrelevant where the accused engages in sexual conduct involving bodily harm to another is consistent with the approach taken in the law of assault. The public interest limitations on consent for offences against the person were previously considered in Chapter 10, [10.110] “Lawful assault”.

Comparative perspectives Reconceiving Rape: Sex Crime or Crime of Violence? [11.55] In the 1970s, pioneering reforms of rape law in Michigan in the United States dispensed with the requirement that the prosecution had to prove lack of consent in cases where sexual penetration was accomplished by “force or coercion”. 87 However, the Michigan legislation narrowly defined force or coercion as including circumstances where the accused uses actual physical force or violence, threatens to use force or violence, retaliation (including threats of physical punishment, kidnapping and extortion), engages in unethical and unacceptable medical treatment, or acts through concealment or surprise. 88 The legislative exclusion of consent was further undermined by judicial interpretation. While the prosecution no longer needed to prove lack of consent, the accused could always raise consent as a “defence” to an allegation of force. 89

83 84

85 86 87 88 89

N Lacey, Unspeakable Subjects (Oxford: Hart Publishing, 1998) p 112. MCCOC, Chapter 5—Sexual Offences Against the Person, Report (1999) p 31. The MCCOC rejected academic proposals that offences of rape or sexual assault should be defined without reference to lack of consent: see, for example, S Bronitt, “Rape and Lack of Consent” (1992) 16 Criminal Law Journal 289 at 307–310. ALRC, Family Violence—A National Legal Response, Report No 114 (2010) Recommendation 25-4. R v Welch (1995) 101 CCC (3d) 216. These reforms are discussed in S Bronitt, “Rape and Lack of Consent” (1992) 16 Criminal Law Journal 289 at 307–310. Criminal Conduct Act 1974 (Mich), s 520b(1)(f)(i) – (iv). People v Hearn Mich App 300 NW 2d 396 (1981). [11.55]

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In the 1980s in Australia, New South Wales and the Australian Capital Territory remodelled selected sexual offences following the Michigan model. In the Australian Capital Territory, the offence of rape was abolished and replaced with the statutory offence of sexual assault to reflect the violent, rather than the sexual, nature of the offence. Sections 51 – 54 of the Crimes Act 1900 (ACT) grade sexual assault into four degrees, which mirror the level of violence used by the perpetrator. On a theoretical level, this type of sexual assault law appears to be modelled around rape as violence, rather than sex. This approach draws on the work of US feminists such as Susan Brownmiller. 90 However, some feminists, notably Catharine MacKinnon, have disputed this interpretation of rape as violence. MacKinnon highlights the sexual, rather than violent, dimension of rape and the difficulty of distinguishing sex from rape in a situation where women are subordinated by male power: “The law of rape presents consent as free exercise of sexual choice under conditions of equality of power without exposing the underlying structure of constraint and disparity.” 91

In some respects, the introduction of degrees of sexual assault proved to be counterproductive. The added requirement of proving violence (actual or threatened) for sexual assault had the effect of prolonging rape trials and downgraded the perceived seriousness of non-violent rapes. As a result of these unintended effects, the New South Wales law was amended in 1989, and again in 2007. In 1989, lack of consent was reinstated as the central element of the principal offences of sexual assault and aggravated sexual assault. 92 Supplementary sexual offences did, however, retain some features of the Michigan reforms, such as “assault with intent to have sexual intercourse” and “sexual intercourse by means of a non-violent threat”. 93 Section 61K focused on the violence preparatory to sex, requiring proof of non-consent in relation to the basic element of inflicting actual bodily harm, not the intended sexual act. More drastically, s 65A(2) dispensed with the lack of consent element completely. To be guilty, the accused must have known that the person concerned submitted to intercourse as a result of the non-violent threat. 94 Reflecting the problem of proving the key elements of the offence of sexual intercourse by non-violent threat, s 65A was repealed in 2007. 95 Under the new provisions dealing with consent, threats of violence are covered by the general rules governing consent. Subsection 61HA(4) states that there is no consent to sexual intercourse, inter alia, “if the person consents to the sexual intercourse because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person)”. Non-violent threats, which were previously covered by s 65A, are included in s 61HA(6) as one of the grounds on which it may be established that a person does not consent to sexual intercourse which include, inter alia: “(b) if the person has sexual intercourse

90 91 92 93 94 95

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S Brownmiller, Against Our Will: Men, Women and Rape (New York: Simon and Schuster, 1974). C MacKinnon, Toward A Feminist Theory of the State (Cambridge, MA: Harvard University Press, 1989) p 175. Crimes Act 1900 (NSW), ss 61I, 61J. Crimes Act 1900 (NSW), ss 61K and 65A(2) (repealed), respectively. Section 65 was repealed by Crimes Amendment (Consent—Sexual Assault Offences) Act 2007 (NSW). Crimes Act 1900 (NSW), s 65A(3) (repealed). Only two successful convictions were obtained under this provision before its repeal in 2007: see I Dobinson and L Townsley, “Sexual Assault Law Reform in New South Wales: Issues of Consent and Objective Fault” (2008) 32 Criminal Law Journal 152 at 157. [11.55]

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because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or (c) if the person has sexual intercourse because of the abuse of a position of authority or trust”. The inclusion of non-violent threats as grounds for inferring non-consent is a significant change. Before this reform, as the case of Aickin 96 demonstrated, threats of a non-violent nature used to obtain sexual intercourse were incapable of vitiating consent. In that case, the accused was charged with the offence of sexual assault under s 61I. It was alleged that he had procured sex from a woman by threatening to disclose that she was a shoplifter. He pleaded guilty but successfully appealed his conviction on the basis that this type of threat (as it did not involve a threat of force) did not fall within the circumstances which vitiate consent under (the now repealed) s 61R(2)(c). The limited understanding of consent reflected in decisions like Aickin influenced the 2007 reforms and the policy decision to extend the rules governing vitiation of consent to include non-violent threats under 61HA(6)(b). 97 By its inclusion of non-violent threats as one of the grounds upon which non-consent to sexual intercourse may be inferred, s 61HA is consistent with the general trend away from the Michigan model as outlined above. It seems that the modern approach to the reform of sexual assault law is firmly centred on remodelling the legal definition of consent rather than removing the offence element entirely. By removing the separate offence which existed under s 65A, the 2007 reforms have simplified the New South Wales sexual assault law by avoiding the prospect of multiple, overlapping charges which would have significantly contributed to the length (and trauma) of trials. However, some uncertainty surrounding the scope of non-violent threats under s 61HA(6)(b) still remains. Section 61HA leaves the question of whether a particular act of intimidation, coercion or non-violent threat is sufficient to negate consent as a question of fact for the jury. For example, would economic sexual coercion, such as a threat of loss of employment or promotion prospects, constitute a basis for establishing non-consent? Is the characterisation of the gravity of the threat to be determined from the subjective perspective of the victim? Is there any role for an objective threshold which excludes acts or threats that would not have the same impact on the reasonable or ordinary person? The task facing the judge and jury in resolving this definitional uncertainty goes to the heart of consent under the existing law; in particular, the difficulty in identifying the precise circumstances in which consent may be vitiated. As we shall explore below, many of the core definitional questions in sexual offences are elusive because of the profound moral disagreement over whether particular behaviour is sufficient to warrant criminalisation. Juries may be considered well-qualified to resolve moral disagreements. However, sexual assault law reform in all Australian jurisdictions has been taking place against the understanding that lack of certainty in such core definitions (whether under statute or common law) provides considerable scope for discriminatory myths and stereotypes about female sexuality to continue to operate unchallenged. Excising lack of consent from rape law has the advantage of shifting the focus of the trial away from the complainant, but invariably leads to the accusation that sexual autonomy for women would be denied. This accusation, however, ignores the impoverished and restrictive notion of consent in the present law and that notions of autonomy for many women are highly 96 97

Aickin (2005) 157 A Crim R 515. I Dobinson and L Townsley, “Sexual assault law reform in New South Wales: Issues of consent and objective fault” (2008) 32 Criminal Law Journal 152 at 157. [11.55]

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constrained. 98 More recently, some feminists have sought to retrieve and reconstruct the concept of autonomy. 99 Nicola Lacey pointed out that sexual autonomy, as protected by the present law, is understood narrowly in terms of property or ownership over one’s own body. 100 As we shall explore below, it is possible to reconstruct the concept of sexual autonomy (and thus consent) in terms that protect a wider range of interests. The principle of sexual autonomy: from sex against her will to sex without consent [11.60] Law reform in Australia has largely proceeded on the basis that lack of consent must remain the key element of the sexual offences. The MCCOC’s recommendation to retain consent for the core sexual offences undoubtedly relates to the importance attached to the right to autonomy. The idea that violating sexual autonomy is the rationale for criminalisation is apparent from the novel title to the MCCOC’s Report, namely “Sexual Offences Against the Person”. In the Model Criminal Code, the Sexual Offences were subsumed as a Division within Chapter 5 dealing with Offences Against the Person, again emphasising the fact that sexual assault fundamentally is a crime against sexual autonomy. This autonomy model of rape law is reflected in the Australian Law Reform Commission report on family violence, which recommended that national laws dealing with sexual offences should be explicit in their statutory objectives: Recommendation 25–8: State and territory legislation dealing with sexual offences should state that the objectives of the sexual offence provisions are to: (a) uphold the fundamental right of every person to make decisions about his or her sexual behaviour and to choose not to engage in sexual activity and (b) protect children, young people and persons with a cognitive impairment from sexual exploitation. 101

But as Nicola Lacey observed almost two decades ago, rather than being a universal and timeless feature of sexual offences, the “discourse of sexual autonomy is, of course, a recent one”. 102 The notion of “consent” as a mediating concept for differentiating lawful from unlawful sexual activity emerged only in the mid-19th century. In medieval times, rape was concerned with the ravishment or abduction of unmarried women without paternal consent. By the 18th century, the English courts, drawing from various statutory sex crimes, had identified the felony of rape at common law. The capital felony of rape was narrowly defined

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C MacKinnon, Toward A Feminist Theory of the State (Cambridge, MA: Harvard University Press, 1989) Ch 9. See T Dougherty, “No way around consent: a reply to Rubenfeld on “Rape-by-Deception”” (2013) 123 Yale Online Law Journal Online 321; PJ Falk, “Not logic, but Experience: Drawing on Lessons from the Real World in Thinking About the Riddle of Rape-by-Fraud” (2013) 123 Yale Law Journal Online 353; see also D Tuerkheimer, “Sex Without Consent’” (2013) 123 Yale Law Journal Online 335 who suggests an alternative of constructing rape around “sexual agency”. N Lacey, Unspeakable Subjects (Oxford: Hart Publishing, 1998) Ch 4. ALRC, Family Violence—A National Legal Response, Report No 114 (2010) Recommendation 25-8. See also s 1, Crimes (Rape) Act 1991 (Vic), which states that the purpose of the Act is to “reaffirm the fundamental right of a person not to engage in sexual activity”. These reforms have been described as establishing a “communicative model of consent”: Victorian Law Reform Commission, Jury Directions—Final Report (2009) [3.112], p 53. N Lacey, Unspeakable Subjects (Oxford: Hart Publishing, 1998) p 104.

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as “carnal knowledge” (sexual penetration) of a woman “forcibly and against her will”. 103 With the relaxation of the death penalty in the mid-19th century, the English courts gradually reformulated the definition of rape in broader terms of “sexual intercourse without consent”. This occurred in order to criminalise cases where no force or fraud had been used against the victim, for example, in cases where she was insensible through drink or asleep. 104 The definitional shift to “without consent” in the 19th century was not merely a semantic change. It reflected the modernising influence of liberal values on the criminal law and the tendency of Enlightenment philosophy to view social relations between individuals in contractual or quasi-contractual terms. 105 While contractual concepts, like implied consent, have exerted some influence over legal development in this area, sexual offences have never been a perfect expression of liberalism. In some areas, such as homosexual and prostitution offences, the legal commitment to the liberal values of autonomy and privacy can be quite weak. The impact of the right to privacy on the criminal law is considered in Chapter 2. It would seem that sexual autonomy and privacy may be qualified by competing policy considerations. “Statutory rape” provisions criminalising sex with minors or other vulnerable individuals provide examples where the principle of autonomy is legally subordinated to overriding concerns about the moral and physical welfare of those individuals, as well as doubts about their legal capacity to give “true” consent. For the purpose of sexual offences, the common law does not recognise a uniform general age of majority that determines the capacity to consent. In the absence of any specific statutory provision on this issue, the validity of consent is determined solely by reference to the person’s understanding of the nature and character of the act. As we shall explore at [11.185]–[11.190], the rules governing consent laid down by statute for different offences are not consistent. The “age of consent” is contingent on diverse factors such as the sex and sexual orientation of the parties, the type of conduct involved and whether it occurred in public or in private. Andrew Ashworth characterised individual autonomy as a general principle that has “factual and normative elements”. 106 The principle of autonomy underlies the significance attached to free will, voluntariness and capacity in attributing criminal responsibility: see Chapter 3, [3.105] and [3.175] It also underwrites the role of consent as a “defence” in relation to offences such as assault and theft. However, the principle of autonomy is not absolute. Many liberal theorists, including Ashworth, are prepared to concede that there are limits to the principle of individual autonomy, and that while utmost respect should be accorded to the principle, it may be qualified by the principle of welfare and the interests of the community: see Chapter 1, [1.230] “Gauging the welfare of the community”. Within the sexual sphere, the principle of autonomy is typically conceived in terms of bodily ownership or control. As Lacey points out: “Sexual autonomy simply is proprietary autonomy: the choice to exclude another from access to bodily ‘property’”. 107 Sex, as a “thing” to be owned and controlled, must be protected from wrongful interference by others. Proprietary conceptions of sex and sexuality promote a contractual or quasi-contractual view of sexual relations. The commodification of sex as property that may be bargained and exchanged underscores many aspects of the law in this field, including the common law immunity for rape within marriage. Another example are the rules governing consent. Under 103 104 105 106 107

W Blackstone, Commentaries on the Laws of England (1769) Vol IV, p 210; Sir Matthew Hale, The History of the Pleas of the Crown (1736) Vol 1, pp 628–629. R v Camplin (1845) 1 Cox CC 220; R v Young (1878) 12 Cox CC 114. C Pateman, The Sexual Contract (Cambridge: Polity, 1988). A Ashworth, Principles of Criminal Law (6th ed, Oxford: Oxford University Press, 2009) p 23. N Lacey, Unspeakable Subjects (Oxford: Hart Publishing, 1998) pp 112–113. [11.60]

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the current law, juries are often directed that consent (rather like acceptance of an offer in contract law) need not be expressed through words, but may also be “implied” from conduct. 108 Such directions are premised on presumptions of (female) sexual access and that parties bear the risk of unwanted sex in cases where their conduct has been misunderstood as indicating consent by the other person. The Supreme Court of Canada held in R v Ewanchuk 109 that the doctrine of “implied consent” has no place in the modern law of sexual assault. The concept of implied consent suggests that the mind of the victim was severable from her conduct, a prospect that would operate to entrench and legitimate dangerous myths about female sexuality; in particular, that consent may be implied from appearance or prior sexual conduct and the like. By focusing on proprietary control over a person’s own body, the concept of sexual autonomy overlooks other values associated with sex, such as mutual respect, trust, love and pleasure. These values, which Lacey describes as “affective” and “relational” values, play a significant role in the wider social discourse of sexuality. Within the modern law of rape, however, the protection of these values has played a marginal role. At present, they are relevant only as sentencing factors to gauge the “seriousness” of harm caused to the victim. In Lacey’s view, there is little scope within the current legal framework structured around autonomy for victims to express the full range of interests harmed by the accused’s conduct. 110 More positively, Kathy Laster and Pat O’Malley have observed a general reassertion of emotionality in the legal discourse, which effectively displaces or qualifies traditional rationalist and positivist values. The authors cite developments in the laws of rape and domestic violence as evidence of greater legal sensitivity to emotions and other intangible interests. 111 Some authors have begun to rethink rape, not as a crime against personal autonomy, but rather as a crime against dignity. In a recent article, Ben McJunkin outlines a model of rape law in which the right to human dignity is presented as “rape law’s touchstone”. 112 McJunkin observes that rape law’s doctrinal shift from a crime against property to a crime violating a woman’s right to choose her sexual partner evolved contemporaneously with a construction of masculinity that located power in the ability to overcome a woman’s initial resistance. In his view, “[r]ape law’s systematic commitment to individual autonomy is itself contributing to the victimisation of women through the entrenched narratives of normative masculinity”. 113 McJunkin argues that the right to human dignity, unlike autonomy, “demands that our actions, practices, and institutions convey the appropriate respect to persons qua persons”. 114 Although McJunkin does not propose a specific formulation of rape law based on dignity, he imagines that the right to dignity would set a new standard of treatment, informed by contextual factors, one which would be dependent upon “individual understandings and shared social meanings”. 115 This would shift the focus of the legal inquiry away from the victim’s mental state toward the defendant’s conduct and mental state, critically requiring that 108

112 113 114 115

J Glissan and S Tilmouth, Australian Criminal Trial Directions (Sydney: Butterworths, 2014, looseleaf) Ch 5, [5-1100-25]. R v Ewanchuk [1999] 1 SCR 330. N Lacey, Unspeakable Subjects (Oxford: Hart Publishing, 1998) p 116. K Laster and P O’Malley “Sensitive New-Age Laws: The Reassertion of Emotionality in Law” (1996) 24(1) International Journal of the Sociology of Law 21. BA McJunkin, “Deconstructing Rape by Fraud” (2014) 28(1) Columbia Journal of Gender and Law 1 at 4. BA McJunkin, “Deconstructing Rape by Fraud” (2014) 28(1) Columbia Journal of Gender and Law 1 at 40. BA McJunkin, “Deconstructing Rape by Fraud” (2014) 28(1) Columbia Journal of Gender and Law 1 at 42. BA McJunkin, “Deconstructing Rape by Fraud” (2014) 28(1) Columbia Journal of Gender and Law 1 at 42

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the defendant “not intentionally subvert the conditions for another person’s exercise of autonomy”. 116 Ultimately, McJunkin concludes that a rape law based on dignity would have an important normative role in “constructing social sexualities and would express an unambiguous commitment to the integrity and full humanity of both potential victims and accused defendants”. 117 The extent to which an emerging rights discourse grounded in the right to human dignity can influence rape law doctrine—reshaping definitions of consent (moving towards a positive communication standard) or fault—are explored below. Rape within marriage: an implied and continuing consent [11.65] Consent is represented as an essential or fundamental concept for distinguishing between lawful and unlawful sex. Until recently, however, consent was deemed irrelevant to marital sex. The origin of the “marital rape immunity” is typically traced to the views of 18th century English judge and jurist, Sir Matthew Hale. The passage most widely cited stated that a husband could not be guilty of committing rape upon his wife because by “mutual matrimonial consent the wife hath given up herself in this kind unto her husband which she cannot retract”. 118 Although Hale cited no authority for the proposition, the immunity was clearly not his own invention. The idea that a husband could not be guilty of rape at that time was firmly supported by ecclesiastical law. 119 Hale is often accused of misogyny, though the idea of viewing sexual relations within marriage as being governed by “implied” terms of the marriage contract demonstrated a relatively liberal and modern outlook compared to the traditional ecclesiastical view that a husband had a “conjugal right” to extract a sexual debt from his wife. While recognising the immunity for rape, Hale doubted whether a husband could lawfully use force against a reluctant wife. As David Lanham concluded: “What is clear is that in selecting the marital contract theory, Hale turned his back on some of the more preposterous bases which have been suggested by others, like the fictional unity of the husband and wife, the theory that a wife is the property of the husband, or that the wife is under a duty to obey her husband.” 120

By the late 20th century, the immunity had become increasingly untenable, with judges placing limits on the immunity, for example, denying its application to cases where the husband and wife had revoked their consent by an act of separation pursuant to a court order. Yet, even in the 1980s, there were still legal scholars who were prepared to defend the immunity. Lanham concluded his excellent historical review of the immunity, which debunked many of the myths about Hale’s misogyny, with the following caution about the dangers of criminalising marital rape: “It is submitted that the law of rape is too blunt an instrument for dealing with the relationship between husband and wife and that marital immunity should be retained at least where the parties are living together. Where the marriage as a whole has become intolerable because of an act of unwanted

116 117 118 119 120

BA McJunkin, “Deconstructing Rape by Fraud” (2014) 28(1) Columbia Journal of Gender and Law 1 at 45. BA McJunkin, “Deconstructing Rape by Fraud” (2014) 28(1) Columbia Journal of Gender and Law 1 at 46. M Hale, The History of the Pleas of the Crown (1736) Vol 1, p 629. J Barton, “The Story of Marital Rape” (1992) 108 Law Quarterly Review 260. D Lanham, “Hale, Misogyny and Rape” (1983) 7 Criminal Law Journal 148 at 156. [11.65]

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intercourse the appropriate remedy is divorce or separation. Where force is used there is the possibility of criminal proceedings for crimes from assault to causing grievous bodily harm. In other cases the criminal law should keep out of it.” 121

Not surprisingly, this submission fell on deaf ears as the marital rape immunity became the focus of increasing feminist activism. By the late 1980s, the immunity had been abolished by legislation in every Australian State and Territory. The status of the immunity was further undermined by judicial decision, first in England and then in Australia. R v R 122 provided the House of Lords with its first opportunity to review the marital rape immunity. The accused did not dispute the fact that he had violently had sex with his wife who, at the time, was living separately from him, though not pursuant to a court order. Rather than infer a revocation of consent by de facto separation, the trial judge simply refused to recognise that the immunity existed in the modern law. The accused appealed against his conviction. The House of Lords, affirming the conviction, agreed with the Court of Appeal that the immunity was a “common law fiction which has become anachronistic and offensive”. 123 The decision in R v R to abolish the marital rape immunity was widely welcomed, although some concern was expressed over the process by which the courts, rather than parliament, had abolished the immunity, which in effect created a new crime of spousal rape arguably contrary to the principle against retrospectivity. 124 The latter question was considered in 1996 by the European Court of Human Rights (ECtHR) in SW v United Kingdom; CR v United Kingdom. 125 The ECtHR noted that the common law doctrine of precedent legitimately facilitated legal development. Offences may be broadened and defences narrowed by common law development. This would not violate the principle against retrospectivity provided that the development is consistent with the essence of the offence and could have been reasonably foreseen. 126 While the fate of marital immunity was being decided in England, the High Court was considering the same issue in Australia. In 1991 the High Court in R v L held that the immunity was no longer part of the common law of Australia. 127 In this case, the accused was charged and convicted with raping his wife. In South Australia the immunity had been 121

122 123 124 125 126 127

D Lanham, “Hale, Misogyny and Rape” (1983) 7 Criminal Law Journal 148 at 166. The marital rape immunity persists as an express defence in the Indian Penal Code. Notwithstanding a recent review of the law, there remains support for its retention, including among some prominent legal feminist activists. For example, Flavia Agnes has argued forcefully against criminalisation of marital rape on the ground that such conduct already falls under domestic violence provisions, and criminalisation would be counter-productive as it would place rape, even in the absence of violence, on a “higher pedestal than brute physical violence”: N Badhwar, “Can’t Compare Brutal Gang-Rape with Forced Oral Sex” Outlook India (online), 5 September 2016. Retrieved from: http://www.outlookindia.com/magazine/story/cant-compare-brutal-gang-rape-with-forcedoral-sex/297766. On the slow progress of reform in India, and use of cultural arguments to condone or excuse gendered violence, see S Bronitt and A Misra, “Reforming Sexual Offences in India: Lessons in Human Rights and Comparative Law” (2014) Vol 2(1) Griffith Asia Quarterly 37; see also Z Brereton, “Perpetuating Myths of Women as False Complainants in Rape Cases in India: Culture v The Law” (2016) 40(4) International Journal of Comparative and Applied Criminal Justice 1, http://www.tandfonline.com/doi/full/10.1080/ 01924036.2016.1233442. R v R [1992] 1 AC 599. R v R [1992] 1 AC 599 at 623. M Giles, “Judicial Law Making in the Criminal Courts: The Case of Marital Rape” [1991] Criminal Law Review 407. SW v United Kingdom; CR v United Kingdom (1996) 21 EHRR 363. SW v United Kingdom; CR v United Kingdom (1996) 21 EHRR 363 at 36. R v L (1991) 174 CLR 379.

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abolished by statute, and the accused argued on appeal that the South Australian provision conflicted with a provision of the Family Law Act 1975 (Cth). The Commonwealth provision allowed the Family Court to make an order relieving a party to a marriage from rendering conjugal rights. [When the Family Law Act was enacted in 1975, conjugal rights included the right, under the criminal law, to have marital intercourse without consent.] The accused submitted that there was an inconsistency between State and Commonwealth provisions. Section 109 of the Australian Constitution states that in the event of a conflict between State and Commonwealth law, the Commonwealth law prevails. The High Court rejected the appeal on a number of grounds, including that there was no inconsistency between the provisions. Nevertheless, in obiter, the High Court took the opportunity to clarify the status of the immunity. The majority doubted whether the immunity had been part of the common law, and concluded that it “would be justified in refusing to accept a notion that is so out of keeping with the view society now takes of the relationship between the parties to a marriage”. 128 An issue left open in R v L, however, was the precise time that the marital rape immunity ceased to be part of the common law of Australia. This question was ultimately addressed by the High Court two decades later in the decision of PGA v The Queen. 129 In this case, originating in South Australia, the accused was convicted of the rape of his wife relating to events that took place in 1963, prior to the statutory abolition of the immunity in that jurisdiction. The South Australian Court of Appeal ruled that, despite retrospectivity concerns, the charge of rape could be brought against the defendant. 130 The High Court upheld the conviction, the majority echoing earlier views in R v L that the marital rape immunity was not part of the common law of Australia, and even if it had existed at some point in time, that immunity ceased to exist by the time of the enactment of rape as an offence in the Criminal Law Consolidation Act 1935 (SA). 131 Thus, since the immunity did not exist at the time of the alleged offence, the defence’s objection to the prosecution on the ground of retrospectivity could not succeed. The half-century delay in prosecuting the accused in PGA v The Queen has been criticised by Kellie Toole as being inconsistent with the presumption against the retrospective application of the criminal law recognised under both international and domestic law. 132 Toole distinguished the ECtHR cases, discussed above, conceding that the decision in R v R could be viewed as a somewhat foreseeable continuation of “a perceptible line of case-law development dismantling the immunity” 133: By the time the House of Lords abolished the immunity in R v R, there had been a discernible change in judicial attitude reflected in a sequence of decisions before the English courts, and the 1990 Law Commission report had revealed widespread public support for the immunity’s abolition. 134 By contrast, Toole has 128 129 130 131 132

133

134

R v L (1991) 174 CLR 379 at 390. (2012) 245 CLR 355. R v GAP (2010) 109 SASR 1. PGA v The Queen (2012) 245 CLR 355 at 384. K Toole, “Case and Comment: Marital Rape in South Australia: R v P, GA” (2011) 35(4) Criminal Law Journal 237 at 238. The principle against retrospectivity is currently recognised under the ICCPR, Arts 6(2) and 15(1); the UDHR, Art 11(2); and the European Convention for Human Rights, Art 7(1). K Toole, “Case and Comment: Marital Rape in South Australia: R v P, GA” (2011) 35(4) Criminal Law Journal 237 at 247. As the Court noted in CR v United Kingdom (1995) 335 Euro Court HR (ser A) at [38], the “adaptation of the ingredients of the offence of rape was reasonably foreseeable, with appropriate legal advice”. Law Commission for England and Wales, Rape Within Marriage, Working Paper No 116 (London: HMSO, 1990) 83. [11.65]

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argued that in South Australia “[t]he impending abolition of the immunity [in the 1990s] was no more apparent in the courts than it was in the broader community”. 135 There is, however, a further problematic and fictional aspect to the position adopted by the majority of the High Court in PGA. While the decision manifestly delivers justice to women who otherwise would be denied legal protection if the immunity continued to apply, the majority’s ruling is not supported by the legal historical record. As the two dissenting High Court Justices (Heydon and Bell JJ) forcefully observed in separate but concurring judgments, the immunity was widely accepted as being settled law in Australia: Heydon J, for example, noted that Hale’s view of the common law had never been rejected as incorrect prior to 1991; and the immunity’s existence had been recognised through both Executive and Legislative actions in various official reports and its progressive statutory repeal. The division of opinion in the High Court in PGA has been represented as a clash of legal fictions: on the one hand, the fiction of the implied irrevocable sexual consent between husband and wife and, on the other hand, the fiction of the declaratory theory of adjudication, namely, that judges merely apply rather than make the common law. 136 There is a clear public interest in bringing prosecutions of sexual offences involving a serious violation of trust such as marital rape. 137 That said, although historic cases of rape within marriage are no longer barred by the immunity, the PGA decision is unlikely to open the prosecution floodgates due to the considerable evidentiary difficulty of proving the elements of the charge or difficulties in ensuring that the accused would receive a fair trial so many years after the event.

Feminist revisionism: re-writing PGA and ensuring justice for all [11.70] From a feminist perspective, the PGA decision has been criticised as a judicial denial of the law’s misogynistic history. As Ngaire Naffine, in a recent feminist critique of the PGA decision, noted, there “was no ‘Nuremburg moment’ when a court looks back at a form of behaviour once regarded as lawful and acceptable by a state, and now seen as inhumane, and so condemns it outright.” 138 While acknowledging the greater historical accuracy of Heydon and Bell JJ’s dissenting judgments, Naffine nevertheless levelled similar criticism against the dissentients for failing to express an appropriate condemnation of the common law’s misogynistic past. 139 The Australian Feminist Judgments Project has set out to remedy this deficiency through re-imagining the law through the eyes of a bench of feminist judges. Wendy Larcombe and Mary Heath, in offering their feminist revision of PGA, accepted the historical evidence that the marital rape immunity did in fact exist in 1963 when the alleged rape took place. Their honest accounting of the immunity’s existence at common law is followed with a judicial apology for the law’s failure to adequately protect women, concluding that it is better 135 136

137

138 139

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K Toole, “Case and comment: Marital rape in South Australia: R v P, GA” (2011) 35 Criminal Law Journal 237 at 249–250. S Bronitt, “Editorial: Rape Within Marriage: A Privilege Past its Use By Date?” (2011) 35 Criminal Law Journal 67; S Bronitt and W Kukulies-Smith, “Crime, Punishment, Family Violence, and the Cloak of Legal Invisibility” (2013) 37(3) Journal of Australian Studies 390 at 394–395. See J White and P Easteal, “Feminist Jurisprudence, the Australian Legal System and Intimate Partner Sexual Violence: Fiction over Fact” (2016) 5(11) Laws 1. This study of all cases heard before the District Court of New South Wales and County Court of Victoria between 30 June 2013 to 30 June 2015 identified only 3 matters in New South Wales and 11 matters in Victoria where the person accused of rape or sexual assault had been, or was currently, in an intimate relationship with the victim. N Naffine, “Admitting Legal Wrongs: PGA v R” in H Douglas, F Bartlett, T Luker and R Hunter (eds), Australian Feminist Judgments: Righting and Rewriting Law (Oxford: Hart Publishing, 2014) p 259 N Naffine, “Admitting Legal Wrongs: PGA v R” in H Douglas, F Bartlett, T Luker and R Hunter (eds), Australian Feminist Judgments: Righting and Rewriting Law (Oxford: Hart Publishing, 2014) p 259. [11.70]

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to acknowledge this injustice now, rather than ignore this reality in order to facilitate prosecution of a small number of historic marital rape cases. 140

Procedural perspectives Marital Rape: A Licence Revoked? [11.75] Although the immunity has been formally abolished, few prosecutions are initiated against husbands who commit rape on their wives. There is evidence that rape within marriage is viewed as a less serious form of rape by police, prosecutors and sentencing judges. 141 Many police officers are still reluctant to interfere, influenced by liberalism’s powerful claim that the family is, or at least should be, legally constituted behind a veil of privacy, a protected zone into which neither the state, public officials nor the law should intrude. This portrait of a zone of legal impunity for patriarchal violence, however, is misleading. Widening our historical lens reveals that, rather than immunising the family from legal scrutiny, the common law routinely intervened into family relations, albeit selectively, regulating and on occasion even disciplining patriarchal violence through arrest, prosecution and punishment. In Carolyn Ramsey’s recent comparative legal historical study of family violence in the American West and Australia 1860–1930, Ramsey reveals a pattern of sustained efforts by state officials (police, prosecutors and judges) to combat patriarchal violence against women. Ramsey’s detailed review of police, prosecution and court records reveals that legal action was routinely taken against abusive husbands in rates equal to violent assaults involving strangers. She concludes that the historical unwillingness of the police, prosecutors and courts to intervene has been significantly overstated: “[D]uring the late nineteenth century, and the first few decades of the twentieth, the public legal response to intimate-partner assault and homicides in both regions embodied the view that husbands ought to protect their wives and refrain from using violence against them. When men failed to live up to these prescriptive norms, state-imposed punishment and even self-defensive killings were considered justified.” 142

Marital rape is also grossly under-reported. This dearth of prosecutions may be contrasted with the scale of the crime reported through victimisation studies. Feminist criminologists Louise Plummer, Patricia Easteal and Jennifer Peck noted that “[b]y some estimates, as much as 60 per cent of abused women are … sexually assaulted by their partners”, pointing to similar findings published in a study by the British Home Office, which revealed that 45 per cent of rapes were committed by present partners. 143 Yet, victims are 140

141

142 143

W Larcombe and M Heath, “Judgment: PGA v The Queen” in H Douglas, F Bartlett, T Luker and R Hunter (eds), Australian Feminist Judgments: Righting and Rewriting Law (Oxford: Hart Publishing, 2014) pp 271-272. The Special Taskforce on Domestic and Family Violence in Queensland, in its report Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland (2015), noted that many victims of family violence expressed that their stories were not believed, that police sided with the perpetrator or found that the “victim’s story of abuse was too trivial and a waste of police resources”: p 251. CB Ramsey, “Domestic Violence and State Intervention in the American West and Australia, 1860-1930” (2011) 86 Indiana Law Journal 185 at 198. See “Introduction: The necessity of appropriate service response to intimate partner sexual violence” in L McOrmond-Plummer, JY Levy-Peck and P Easteal (eds), Intimate Partner Sexual Violence: A Multidisciplinary Guide to Improving Services and Support for Survivors of Rape and Abuse’ (London: Jessica Kingsley [11.75]

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often reluctant to disclose or report the matter to the police. 144 The incidents which are reported to police “continue to cluster almost entirely at the ‘genuine’ end of society’s rape continuum where there are serious injuries”. 145 When matters do proceed to court, they are most likely to be cases involving extreme violence. In White and Easteal’s recent study of cases of intimate partner violence before New South Wales courts, “ten of the 13 cases involved high levels of physical violence”. 146 This was thought to be indicative in part of the inability of police and prosecutors to recognise situations where consent is vitiated by factors other than physical force. 147 The inherent evidentiary difficulties of proving, beyond reasonable doubt, all of the elements of a crime “usually committed in private” 148 may further reduce the number of prosecutions for marital rape. 149 The corollary is that an offender is more likely to be prosecuted where the complainant’s account is corroborated. 150 Even where the complaint results in a guilty plea or conviction, the “domestic nature” of the rape has been taken into account by courts as a matter in mitigation of sentence. 151 Members of the judiciary have been known to refer to violent marriages as “special relationships”. 152 Recently, in DPP (Vic) v Warne, the judge explicitly stated that the defendant’s “culpability in regard to the charges [of rape] is mitigated … by the relationship”. 153 The working judicial assumption is that marital rape is less serious than rape by a stranger. 154 In the United Kingdom, Sue Lees’ empirical study of rape trials revealed that estranged husbands’ punishments were “frequently lower than in other rape

Publishers, 2013) p 20. Earlier victimisation studies are reviewed in P Easteal, “Rape in Marriage: Has the Licence Lapsed?” in P Easteal (ed), Balancing the Scales—Rape, Law Reform and Australian Culture (Sydney: Federation Press, 1998) p 113; P Easteal, Voices of the Survivors (Melbourne: Spinifex Press, 1994) p 56; New South Wales Sexual Assault Committee, Sexual Assault Phone-In Report (Sydney: Ministry for the Status and Advancement of Women, 1993). 144 145 146 147 148 149

150 151 152 153 154

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See discussion in A Carline and P Easteal, Shades of Grey – Domestic and Sexual Violence Against Women: Law Reform and Society (Abingdon, Oxon: Routledge, 2014) p 216. P Easteal and C Feerick, “Sexual Assault by Male Partners: Is the License Still Valid?” (2005) 8 Flinders Journal of Law Reform 185 at 204 (footnotes omitted). J White and P Easteal, “Feminist Jurisprudence, the Australian Legal System and Intimate Partner Sexual Violence: Fiction over Fact” (2016) 5(11) Laws 1 at 7. J White and P Easteal, “Feminist Jurisprudence, the Australian Legal System and Intimate Partner Sexual Violence: Fiction over Fact” (2016) 5(11) Laws 1 at 7. R v Bennett [2014] NSWDC 61 at [35]. See P Easteal and C Feerick. “Sexual Assault by Male Partners: Is the License Still Valid?” (2005) 8 Flinders Journal of Law Reform 185, recounting, at 204, the following view of a prosecutor: “I have a low expectation of conviction on partner rapes. If they’re separated but seeing each other, even when they haven’t had sex, he’ll still claim it was a romantic consensual event.” J White and P Easteal, “Feminist Jurisprudence, the Australian Legal System and Intimate Partner Sexual Violence: Fiction over Fact” (2016) 5(11) Laws 1 at 9. See R v Spencer; Ex parte Attorney-General (Qld) [1991] QCA 80, as discussed in S Kift, “That All Rape is Rape Even if Not by a Stranger” (1995) 4 Griffith Law Review 60 at 99. J White and P Easteal, “Feminist Jurisprudence, the Australian Legal System and Intimate Partner Sexual Violence: Fiction over Fact” (2016) 5(11) Laws 1 at 5. DPP (Vic) v Warne [2014] VCC 733 at [24] in J White and P Easteal, “Feminist Jurisprudence, the Australian Legal System and Intimate Partner Sexual Violence: Fiction over Fact” (2016) 5(11) Laws 1 at 12. See study of Victorian sentencing language in J Kennedy and P Easteal. “Rape Mythology and the Criminal Justice System: A Pilot Study of Sexual Assault Sentencing in Victoria” (2009) 23 ACSSA Aware 13. [11.75]

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cases”. 155 Although noting that not all judgments in cases of partner rape are distorted by the existence of a prior relationship, 156 Easteal cites similar attitudes by courts in Australia. 157 Kate Warner identified a growing trend against leniency on the ground that the rape or sexual assault was committed within or against the background of a sexual relationship with the victim. 158 Indeed, in White and Easteal’s study, the survey of cases revealed that some members of the judiciary recognise that partner violence may be an aggravating factor, since it involves a serious “breach of trust”. 159 Recently, in DPP (Vic) v Cook, Justice Mullaly was extremely critical of the defendant’s behaviour, stating that the complainant “was entitled to feel safe in her house with you, her partner. You put any sense of decency well behind your desire to dominate and degrade her, by raping her”. 160 To the same effect, in R v O’Connor aka Coble the trial judge stated that “[t]he sexual assault was demeaning and brutal. To inflict such violence and sexual violence on anyone let alone someone who invites you into their life as a lover is inexcusable.” The relative invisibility of these decisions, most of which are unreported, has meant that sentencing principles in rape cases are undeveloped, although Warner’s survey of the authorities reveals growing consensus on a range of issues such as the irrelevance of the victim’s sexual history, “provocative” dress and conduct, or the type of penetration involved (whether by penis or object). In a subsequent article, Warner argues that sentencing judges must not mitigate rape on grounds of the victim’s prior (consensual) sexual history with the accused, forgiveness by the victim, and the excessive seductive zeal or emotional stress of the accused. 161 Rather, the sentencing principles for rape should be guided by the desire to foster attitudes which conceive sexuality as an expression of equal and sharing relationships. In a thoughtful examination of these issues, Patricia Easteal and

155 156 157

158 159

160

161

S Lees, Ruling Passions: Sexual Violence, Reputation and the Law (Buckingham: Open University Press, 1997) p 123. J White and P Easteal, “Feminist Jurisprudence, the Australian Legal System and Intimate Partner Sexual Violence: Fiction over Fact” (2016) 5(11) Laws 1 at 12, see, for example, DPP (Vic) v Cook [2015] VCC 895. P Easteal, “Rape in Marriage: Has the Licence Lapsed?” in P Easteal (ed), Balancing the Scales—Rape, Law Reform and Australian Culture (Sydney: Federation Press, 1998) pp 118–119; P Easteal, Women and the Law in Australia (Sydney: Butterworths, 2010) p 91; J White and P Easteal, “Feminist Jurisprudence, the Australian Legal System and Intimate Partner Sexual Violence: Fiction over Fact” (2016) 5(11) Laws 1. K Warner, “Sentencing for Rape” in P Easteal (ed), Balancing the Scales (Sydney: Federation Press, 1998). R v S [1991] Tas R 273. Cf J White and P Easteal, “Feminist Jurisprudence, the Australian Legal System and Intimate Partner Sexual Violence: Fiction over Fact” (2016) 5(11) Laws 1 at 11 where the authors conclude that “[a] striking aspect to some of the sentencing remarks is what could be interpreted as their relaxed attitude toward the offenders”. DPP (Vic) v Cook [2015] VCC 895 at [23]. R v O’Connor aka Coble [2013] NSWDC 272 at [23]. These cases are discussed in J White and P Easteal, “Feminist Jurisprudence, the Australian Legal System and Intimate Partner Sexual Violence: Fiction over Fact” (2016) 5(11) Laws 1 at 12. K Warner, “Sentencing in Cases of Marital Rape: Towards Changing the Male Imagination” (2000) 20 Legal Studies 592. [11.75]

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Christine Feerick conclude that the laws in this area will remain ineffective: “unless accompanied by widespread education and efforts to increase community perceptions that partner sexual assault is of equal (if not more) seriousness to sexual assault by a stranger, and should be treated by the legal system in the same way.” 162

Clearly, there is scope for further guidelines on how judges should evaluate the seriousness of rape and sexual assaults to prevent the down-grading of “domestic rape”.

The problem of domestic rape: when rape is (not) rape [11.80] The reasons for treating marital rape as “less serious” than rape perpetrated by a stranger are explored in a series of articles by one of the most distinguished criminal law academics of his generation in Britain, Glanville Williams. In his 1991 article “The Problem of Domestic Rape”, 163 Williams proposed that while marital rape should be criminalised, it should be downgraded in seriousness to an offence in the nature of an assault punishable by fine or binding-over. The House of Lords’ subsequent refusal to recognise a defence of marital rape in R v R 164 provided him with the opportunity to revisit the topic in a rather misleadingly titled article, “Rape is Rape”. 165 In this piece, he identified “four powerful reasons” for treating the punishment of marital rape differently from stranger rape: (1)

The harm is less serious because of past sexual contact.

(2)

Strangers cause more fear in society than non-strangers.

(3)

Failure to provide sex on demand is a form of “unfaithfulness” that provokes men to lose control and they are, therefore, less culpable.

(4) Victims are often willing to forgive their partners. These arguments have been subject to extensive criticism. 166 Although Williams’ proposal has been dismissed by law reformers, his “common sense” continues to be evidenced in the attitudes (hopefully diminishing) of some police, prosecutors, jurors and judges.

Defining consent [11.85] Prior to 2003, the common law entirely governed the meaning of consent in England. In R v Olugboja, the English Court of Appeal held that consent is a question of fact for the jury and that, in the majority of cases, the jury need only be directed to adopt an “ordinary meaning” of consent for the purpose of determining rape: “[The jury] should be directed to concentrate on the state of mind of the victim immediately before the act of sexual intercourse, having regard to all the relevant circumstances; and in particular, the events leading up to the act and her reaction to them showing their impact on her mind.” 167

By requiring juries to apply their common sense, further judicial elaboration on the meaning of consent is limited only to unusual cases; for example, where guidance is needed on the distinction between consent and submission due to the effect of force or threats. This “ordinary meaning” approach mirrors the preferred direction for several fundamental 162

167

P Easteal and C Feerick, “Sexual Assault by Male Partners: Is the License Still Valid?” (2005) 8 Flinders Journal of Law Reform 185 at 207. G Williams, “The Problem of Domestic Rape” (1991) 141 New Law Journal 205. R v R [1992] 1 AC 599. (1992) 142 New Law Journal 11. See H Fenwick, “Marital Rights or Partial Immunity” (1992) 142 New Law Journal 831; S Kift, “That All Rape is Rape Even if Not by a Stranger” (1995) 4 Griffith Law Review 60. R v Olugboja [1982] QB 320 at 332.

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concepts of criminal responsibility, such as intention, causation, dishonesty, offensiveness and indecency. Attributing the “ordinary meaning” to fundamental concepts has the moral appeal that community standards are explicitly incorporated into the criminal law. The neutrality of these objective standards, and the role of morality and the community in sustaining them, is critically reviewed in Chapter 1, [1.220] “Promoting the Public Interest and Community Welfare”. In rape cases, the “ordinary meaning” approach permits the jury to scrutinise the quality of consent in each individual case, taking into account the subjective perceptual capacities of the complainant. This is particularly important where it is alleged that the accused obtained consent by pressure, fraud or abuse of power. The difficulty with this approach is that consent, like many fundamental concepts in the criminal law, does not possess a settled or shared meaning within the community. 168 In aligning the legal and moral understanding of consent, juries will be left to “legislate” the precise boundaries of rape in particular cases. They would be required to act “as a kind of sovereign legislature”, determining what constitutes the offence of rape on the facts of each case. 169 However, the advantage of Olugboja is that it comprehends consent in terms that demonstrate greater respect to the complainant’s perception of the situation, albeit “arguably at the expense of values such as determinacy and the wish to treat like cases alike”. 170 The decision in Olugboja set the law of consent on a new path. However, leaving the jury such a wide latitude to determine whether there is or is not consent raises concerns beyond consistency and predictability. There is a danger that discriminatory assumptions and myths about consent are simply removed from substantive definitions, only to resurface and reinstate themselves as the “ordinary meaning” of consent. Understood in its “ordinary” sense, consent will be determined by prevailing cultural stereotypes and myths about appropriate standards of female sexuality. An Australia-wide study on community attitudes towards violence against women highlights the enduring quality of myths and stereotypes, with survey results demonstrating that many attitudes that normalise or minimise sexual violence have increased over the past five years. The findings show that: • One in ten Australians endorsed the view that “[i]f a woman doesn’t physically resist – even if protesting verbally – then it isn’t really rape”. • A few more (12%) agreed that if a woman enters an empty room with a man at a party, it is her fault if she is raped. • One in six agreed that women say “no” when they mean “yes” • Just over four out of every ten people (41%) disagreed with the statement that “women rarely make false claims of rape”. • Just under one in ten (9%) agreed that “a woman cannot be raped by someone she is in a sexual relationship with”. 171 When consent is left to common sense, in each case juries must determine where the line between consent and non-consent must be drawn. Questions that would arise include whether: 168 169

170 171

A similar point was made in relation to intention in the context of murder in N Lacey, “A Clear Concept of Intention: Elusive or Illusory” (1993) 56 Modern Law Review 621. G Williams, Textbook of Criminal Law (2nd ed, London: Stevens and Sons, 1983) p 554. The Criminal Law Revision Committee rejected the suggestion in Olugboja that consent should simply be left as a question for the jury: Fifteenth Report, Sexual Offences (London: HMSO, Cmnd 9213, 1984) p 10. S Gardiner, “Appreciating Olugboja” (1996) 16(3) Legal Studies 275 at 275–276. VicHealth 2014, Australians’ attitudes to violence against women: Findings from the 2013 National Community Attitudes towards Violence Against Women Survey (NCAS) (Victorian Health Promotion Foundation, Melbourne, Australia) pp 10, 12–13. [11.85]

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• Lack of resistance or dissent was indicative of consent; • “Rough handling” by the accused was persuasion that induced consent; or • “No” meant “yes” or, perhaps, “maybe”. Without firmer definitions, contradictory meanings of consent can operate simultaneously in the law, leaving considerable scope for discriminatory myths about female sexuality to operate unchallenged. 172 Indeed, Bollen J’s infamous direction in R v Johns 173 that there was nothing wrong in a husband using “rougher than usual handling” to overcome a wife’s initial resistance was preceded by a direction that “[c]onsent means free voluntary agreement to engage in an act of sexual intercourse at the relevant time”. 174 Conscious of the need to address gender bias and to provide better jury directions, all Australian jurisdictions, except the Australian Capital Territory, 175 have adopted a positive definition of consent. Queensland and Western Australia define consent as “freely and voluntarily given”. 176 In line with the communicative model of sexual relations, the Victorian and Tasmanian legislation states that consent means “free agreement”. 177 The use of the word “agreement” reinforces that consent should be seen as a positive state of mind, and focuses the jury on the sexual autonomy and freedom of the complainant. 178 New South Wales, South Australia, the Northern Territory and the Commonwealth define consent as “free and voluntary agreement”. 179 The insertion of the word “voluntary” ensures that only active engagement in sexual activity will constitute consent and ensures that mere acquiescence will not suffice. 180 This particular definition was proposed for the Model Criminal Code. 181 The United Kingdom reviewed these various Australian models and subsequently adopted an amalgamated definition for the offence of rape and related offences in the Sexual Offences Act 2003 (UK). This emphasised both the capacity to consent, as well as the quality of consent: Section 74 Consent For the purposes of this Part, a person consents if he [or she] agrees by choice, and has the freedom and capacity to make that choice. 182

172

173 174 175

176 177 178 179 180 181 182

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A danger is that by allowing this open-ended evaluation of consent, the trier of fact is called upon to determine the boundaries of criminalisation in each case. Contrast, for example, the two recent English decisions of R v Ali [2015] EWCA Crim 1279 and Watson v The Queen [2015] EWCA Crim 559. While the court in R v Ali adopted a broad qualitative approach to the nature of “free” and “unfree” consent, the court in Watson v The Queen applied a much narrower formulation which bears a striking similarity to the old understanding that a grudging consent is a consent nonetheless. R v Johns (unreported, 26/8/1992, SASC, No SCCRM/91/452). R v Johns (unreported, 26/8/1992, SASC, No SCCRM/91/452), transcript p 12. Section 67 of the Crimes Act 1900 (ACT) only lists factors that negate consent. In 2001, the Australian Capital Territory (ACT) Law Reform Commission recommended the enactment of a statutory definition, which was supported by the ACT Government: ACT Law Reform Commission, Sexual Offences, Report No 17 (2001) p 71. Criminal Code (Qld), s 348(1); Criminal Code (WA), s 319(2)(a). Crimes Act 1958 (Vic), s 36(1); Criminal Code (Tas), s 2A(1). New South Wales Criminal Justice Sexual Offences Taskforce, Responding to Sexual Assault: The Way Forward (2005) p 34; R v Ewanchuk [1999] 1 SCR 330. Crimes Act 1900 (NSW), s 61HA(2); Criminal Law Consolidation Act 1935 (SA), s 46(2); Criminal Code (NT), s 192(1); Criminal Code (Cth), s 268.14(3) New South Wales Criminal Justice Sexual Offences Taskforce, Responding to Sexual Assault: The Way Forward (2005), 34. MCCOC, Chapter 5—Sexual Offences Against the Person, Report (1999) p 36. The offence of rape is gender-neutral, though the United Kingdom style of legislative drafting continues to rely on a presumption that the use of the term “he” includes “she”. [11.85]

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A statutory definition of consent not only provides legal clarity but also educates the general community about the “appropriate standards of sexual interaction”. 183 The Australian Law Reform Commission (ALRC) Report on Family Violence – A National Legal Response (2010), endorsing this position, recommended the legislative adoption of a communicative model of consent. Such a definition would play a normative role, encouraging a shift in the community perception that sexual assault is necessarily “committed forcibly and against the will of another person to an offence against a person’s agency”. 184 This model definition of consent would also accord with the recommendation of the United Nations’ Handbook for Legislation on Violence Against Women that domestic sexual assault laws should approach consent as “unequivocal and voluntary agreement” and that the accused should be required to prove the steps taken to “ascertain whether the complainant/survivor was consenting”. 185

From “no means yes”, to ONLY “yes means yes” [11.90] Dissatisfied with the present law governing consent, a number of feminist writers have sketched alternate models of sexuality constructed around mutuality and communication. These efforts raise the question whether the law should embody existing understandings of consent in the community, or strive to impose new standards of appropriate sexual conduct. Criminal law powerfully expresses ideas about sexuality and what constitutes appropriate sexual behaviour. In our view, the importance of promoting active dialogue between prospective sexual partners—ranging across their likes and dislikes, as well as possible sexual risks such STDs or unwanted pregnancy —must be relevant to the issue of consent. On this view, the law needs to move from its implied consent model, which is often based on outdated gendered stereotypes, to an informed consent standard. 186

Mandatory jury directions on consent [11.95] Rape myths develop against the background of community beliefs about what is considered normal and abnormal heterosexual behaviour. Normality in the context of sexuality is structured in the law around a “penetrative/coercive” model of sexuality. This model is based on two main assumptions about heterosexuality: the first is that sexuality is somehow centred upon the act of penetration, and the second is that women enjoy being

183 184

185

186

Victorian Law Reform Commission, Sexual Offences, Interim Report (2003) at [7.4]. ALRC, Family Violence – A National Legal Response, Report No 114 (2010) p 1148 at [25.81]. The ALRC also recommended that the legislative definition of consent be supplemented “with a provision that includes a list of circumstances where free agreement may not have been given, [that] will assist, in practice to clarify the meaning and expression of ‘agreement’”: at [25.87], p 1150. United Nations’ Department of Economic and Social Affairs Division for the Advancement of Women, Handbook for Legislation on Violence Against Women, (New York: United Nations, 2009) p 27, http:// www.un.org/womenwatch/daw/vaw/v-handbook.htm (cited 10 October 2016). Tasmania has legislated to require that the accused must have taken reasonable steps to ascertain whether the complainant had consented in order to raise a defence of belief in consent—see Criminal Code Act 1924 (Tas), s 14A(1)(c). See also s 36A Crimes Act 1958 (Vic), which allows the jury to look to “any steps that the person has taken to find out whether the other person consents” to assess reasonableness of belief. See R Wiener, “Shifting the Communication Burden: A Meaningful Consent Standard in Rape” (1983) 6 Harvard Women’s Law Journal 143; M Chamallas, “Consent, Equality and the Legal Control of Sexual Conduct” (1988) 61 Southern California Law Review 777; L Pineau, “Date Rape: A Feminist Analysis” (1989) 9 Law and Philosophy 217; L Remick, “Read Her Lips: An Argument For a Verbal Consent Standard in Rape” (1993) 141 University of Pennsylvania Law Review 1103; B McSherry, “Constructing Lack of Consent” in P Easteal (ed), Balancing the Scales (Sydney: Federation Press, 1998) Ch 3; N Lacey, Unspeakable Subjects (Oxford: Hart Publishing, 1998) Ch 4, pp 121–122. [11.95]

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“coerced” or persuaded to engage in sexual intercourse. 187 In relation to the latter assumption, there is a general belief that the art of “seduction” allows for any reservations on the part of the woman to be rightfully overcome by the persistence of the man. In this model of sexuality, women are viewed as submissive and as acquiescing to sexual intercourse unless they resist in some way. This is reflected in judicial comments that physical inaction on the part of the woman may signal consent. 188 The penetrative/coercive model also underlies much legal scholarship, surfacing in many authoritative academic analyses of the law. 189 The model presupposes that the presence of violence and resistance is indicative of “real rape” and this is reflected in the types of cases selected for prosecution. It has been noted that the vast majority of rape charges involve allegations of physical coercion. 190 Of course, the prevalence of coercion in rape prosecution figures is misleading. It ignores the filtering process at work that excludes from prosecution those types of rape, such as spousal or acquaintance rape, which do not involve physical violence or result in the infliction of injury. As well as this filtering by police and prosecutors, there is a general under-reporting of sexual violence where the accused is a current partner. 191 Indeed, Australian and international research confirms that most sexual assaults do not result in physical injury, that offenders are likely to be known to the victim, and that there are high levels of under-reporting to police. 192 The de facto presumption of consent that operates in rape law (in effect, a presumption of female sexual accessibility) may be contrasted with the approach taken in the civil law. In relation to potentially invasive medical procedures, the tort of trespass and negligence has moved strongly to a more positive “informed” standard of consent and disclosure of risk. 193 The positive consent standard attaches importance to mutuality and sexual pleasure during sexual encounters. As Lois Pineau points out: “If a man wants to be sure that he is not forcing himself on a woman, he has an obligation either to ensure that the encounter really is mutually enjoyable, or to know the reasons why she would want to continue the encounter in spite of her lack of enjoyment.” 194

Pineau writes that under the positive communicative model of sexuality, these burdens are of an ongoing and continuing nature. 195 They may be contrasted with the traditional contractual concept of consent as an agreement negotiated beforehand, a process where both the “offer” 187 188 189 190 191

192

193 194 195

B McSherry, “Constructing Lack of Consent” in P Easteal (ed), Balancing the Scales (Sydney: Federation Press, 1998) Ch 3. See, for example, R v Maes [1975] VR 541. B McSherry, “Constructing Lack of Consent” in P Easteal (ed), Balancing the Scales (Sydney: Federation Press, 1998) p 28. Law Reform Commission of Victoria, Rape: Reform of Law and Procedure, Interim Report No 43 (1991) Apps, p 41. C Coumarelos and J Allen, “Predicting Women’s Responses to Violence: The 1996 Women’s Safety Survey” in Contemporary Issues in Crime and Justice, No 47 (New South Wales Bureau of Crime Statistics and Research, 1999); P Easteal and C Feerick, “Sexual Assault by Male Partners: Is the License Still Valid?” (2005) 8 Flinders Journal of Law Reform 185; A Carline and P Easteal, Shades of Grey—Domestic and Sexual Violence Against Women: Law Reform and Society (Abingdon, Oxon: Routledge, 2014) p 216. B Cook, F David and A Grant, Sexual Violence in Australia—Research and Public Policy Series No 36 (Canberra: Australian Institute of Criminology, 2001) http://www.aic.gov.au/media_library/publications/rpp/ 36/rpp036.pdf (cited 10 October 2016). See also a review of the literature on international research commissioned by National Initiative to Combat Sexual Assault (NICSA): D Lievore, B Cook, F David and A Grant, “Non-Reporting and Hidden Recording of Sexual Assault: An International Literature Review” (2003) http://www.aic.gov.au/publications/reports/2003-06-review.html (cited 28 April 2005). B McSherry, “Constructing Lack of Consent” in P Easteal (ed), Balancing the Scales (Sydney: Federation Press, 1998) p 29. L Pineau, “Date Rape: A Feminist Analysis” (1989) 9 Law and Philosophy 217 at 234. L Pineau, “Date Rape: A Feminist Analysis” (1989) 9 Law and Philosophy 217 at 240.

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and “acceptance” may be implied rather than express. Subscribing to this transactional approach, Andrew Simester and Andreas Von Hirsch suggest that consent “is not a kind of password that P can simply choose whether to issue. It is not, in short, a thing. Consent is better thought of as a transactional process by which D’s and P’s (and frequently others’) normative relationship – their respective rights, duties and the like – is altered”. 196 The rules governing consent have been modified by statute, with most jurisdictions stating that failure to manifest physical resistance to a sexual assault does not of itself indicate consent. 197 As a matter of substantive law, resistance is not required. However, from an evidential perspective, the prosecution’s burden of proving “lack of consent” on the criminal standard of beyond reasonable doubt will be made easier in cases where there are signs of active dissent or physical resistance. Brent Fisse explained this tactical reality: “[A]lthough in theory D [the accused] is not entitled to make any presumption of consent, the fact that P [the prosecution] must prove non-consent as part of his case means in practice that if V [the victim] consciously submits with passive acquiescence, subject only to a mental reservation, D should be acquitted unless V’s acquiescence is explicable in the context as arising from fear of the consequences of resistance. V must make it clear to D, up to the moment of intercourse, that she does not consent, but in so doing she is not required to incur the risk of brutality.” 198

In 1991 the Victorian Parliament enacted the Crimes (Rape) Act 1991 (Vic) in an attempt to address this “covert” resistance standard through the adoption of mandatory jury directions. These laws were unique in Australia with the potential to replace the traditional penetrative/ coercive model of sexuality with a more positive communicative model. By far, the most significant aspect of the reform in Victoria related to the introduction of mandatory jury directions on consent. Victoria was the first Australian jurisdiction to adopt the positive consent definition where “consent means free agreement”. Moreover, the Crimes Act 1958 sets up a model where physical inactivity or passive acquiescence means non-consent rather than the opposite: s 36(2)(l). Mandatory jury directions aimed to counteract the informal and outmoded presumptions about female sexuality and clarify to a jury that responsibility falls upon “the person instigating the sexual act … to communicate with the other person” if there is any doubt as to whether consent is the result of a free agreement. 199 Instead, the introduction of mandatory jury directions was counter-productive, resulting in added complexity, numerous appeals and retrials, and further legislative reform to jury directions in 2014 and 2016: see, further, “Procedural perspectives”, at [11.155]. The statutory rules negating consent: a question of law or fact? [11.100] Both the courts and legislatures have been reluctant to permit the jury a completely free hand in determining whether the sexual conduct occurred “without consent”. Complex legal rules have been developed to identify those circumstances where the victim’s “apparent” or purported consent to intercourse has been negated. The approach of the common law and supplementary legislation has been to identify the problem cases where the victim was not regarded as having consented. As noted above, even the “ordinary meaning” approach to 196

197

198 199

In AP Simester and A von Hirsch, Crimes, Harms and Wrongs: On the Principles of Criminalisation (Oxford: Hart Publishing, 2011) p 174. The authors proposed the following “default” moral and legal position: “D is not free to have sex with P. But P can change that through her choice.” Crimes Act 1900 (ACT), s 67(2); Crimes Act 1900 (NSW), s 61HA(7); Criminal Code (NT), s 192A(a); Crimes Act 1958 (Vic), s 36(2)(l); Criminal Code (WA), s 319(2)(b). This rule is adopted in the case law in Queensland: see R v Pryor [2001] QCA 341 (31 August 2001). B Fisse, Howard’s Criminal Law (5th ed, Sydney: Law Book Company, 1990) p 179. Victoria, Parliamentary Debates, Legislative Assembly, 22 August 2007, 2859. (Hulls, Attorney-General). http://www.parliament.vic.gov.au/downloadhansard/pdf/Assembly/Jul-Dec%202007/ Assembly%20Extract%2022%20August%202007%20from%20Book%2012.pdf. [11.100]

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consent recognises that some cases may require further direction on consent; as, for example, where the person’s sexual submission was procured by non-violent threats: see [11.85]. In the 19th century, legislation simply disposed of problematic consent cases by “deeming” sexual intercourse in particular circumstances to be rape. For example, s 4 of the Criminal Law Amendment Act 1885 (UK) deemed cases of spousal impersonation to be rape. 200 Modern statutes have defined the circumstances not as rape or sexual assault, but rather as “circumstances” where there is “no consent” or consent is “negated”. In some jurisdictions, these common law rules governing vitiation of consent have been clarified and expanded by statute, which typically defines consent as being “free and voluntary” agreement, and provides a non-exhaustive list of the circumstances in which consent is negated or cannot exist. Drawing on various statutory models of consent and, particularly, the pioneering Victorian reforms, the MCCOC in 1999 recommended the following definition for the Model Criminal Code: Clause 5.2.3 Consent (1) In this Part, consent means free and voluntary agreement. (2) Examples of circumstances in which a person does not consent to an act include the following: (a) the person submits to the act because of force or the fear of force to the person or to someone else; (b) the person submits to the act because the person is unlawfully detained; (c) the person is asleep or unconscious, or is so affected by alcohol or another drug as to be incapable of consenting; (d) the person is incapable of understanding the essential nature of the act; (e) the person is mistaken about the essential nature of the act (for example, the person mistakenly believes that the act is for medical or hygienic purposes). 201

The proposed list of circumstances negating consent is an amalgam of common law and statutory rules. 202 However, the list is not exhaustive. Outside the listed circumstances, consent is defined as a “free and voluntary agreement”. As the MCCOC noted: “The only effect of the list is that, once the listed circumstances are established, then lack of consent is automatically established. It has no effect on unlisted circumstances”. 203 In cases where the jury finds that certain facts exist, consent is “irrebuttably” defined to be absent. 204 In the situations that fall outside the listed circumstances, the common law presumably applies. In that field, the rules governing vitiation of consent involve “mixed questions of law and fact”. 205 In that case, the trial judge should direct the jury as to the factors that are capable of vitiating consent, but leave it for the jury to determine whether those factors did, in fact, vitiate or negate consent. A middle-ground approach has been adopted in New South Wales. Some listed circumstances automatically negate consent, while others merely may provide grounds for inferring non-consent:

200

201 202 203 204 205

An example of a deeming provision is found in South Australian legislation that provides that no person under the age of 18 years shall be “deemed capable of consenting to any indecent assault committed by any person who is his or her guardian, teacher, schoolmaster or schoolmistress”: Criminal Law Consolidation Act 1935 (SA), s 57. MCCOC, Chapter 5—Sexual Offences Against the Person, Report (1999) p 30. A similar list was recommended by the Australian Law Reform Commission: ALRC, Family Violence—A National Legal Response, Report No 114 (2010) Recommendation 25–5, p 1158. MCCOC, Chapter 5—Sexual Offences Against the Person, Report (1999) p 41. MCCOC, Chapter 5—Sexual Offences Against the Person, Report (1999) p 51. S Bronitt, “Rape and Lack of Consent” (1992) 16 Criminal Law Journal 289 at 291–292.

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Section 61HA Consent in relation to sexual assault offences … (4) Negation of consent A person does not consent to sexual intercourse: (a) if the person does not have the capacity to consent to the sexual intercourse, including because of age or cognitive incapacity, or (b) if the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep, or (c) if the person consents to the sexual intercourse because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or (d) if the person consents to the sexual intercourse because the person is unlawfully detained. (6) The grounds on which it may be established that a person does not consent to sexual intercourse include: (a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or (b) if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or (c) if the person has sexual intercourse because of the abuse of a position of authority or trust.

Presuming non-consent in rape: reversing the presumption of innocence [11.105] In the United Kingdom, the various circumstances negating consent have been framed as “evidential presumptions”, so that a complainant is to be taken not to have consented to the relevant act (that occurs in specified circumstances) unless sufficient evidence is adduced to raise an issue as to whether he or she consented. 206 The use of intentional deception as to the nature or purpose of the act, or impersonation of someone known personally to the complainant in order to induce consent is framed as a “conclusive presumption” of non-consent. 207 Placing evidential burdens on the accused and then applying conclusive, non-rebuttable presumptions will undoubtedly be subject to careful judicial scrutiny for compatibility with the presumption of innocence, which is protected under the Human Rights Act 1998 (UK). Bearing in mind the fact that the offence of rape carries life imprisonment, it may be argued that these incursions into the presumption of innocence are disproportionate to their underlying policy objectives, which could equally be achieved through the mandatory jury directions adopted here. Cases from Europe, Australia and related common law jurisdictions reviewing the human rights implications of statutory reversals of the burden of proof are critically appraised in Chapter 2, [2.160]–[2.170].

Negating consent by violence, threats and fear [11.110] The English Court of Appeal in R v Olugboja 208 drew a critical distinction between

submission by force or fraud, and consent: “[E]very consent involves submission, but it by no means follows that a mere submission involves consent”. 209 Without further elaboration from the judge, the distinction between submission and consent would be difficult for the jury to comprehend. The Criminal Law Revision Committee (CLRC) (UK) concluded that the jury required guidance on the line between submission and consent, and recommended that the types of threats or frauds vitiating consent should be identified by statute. 210 As noted above, 206 207 208 209 210

Sexual Offences Act 2003 (UK), s 75. Sexual Offences Act 2003 (UK), s 76. R v Olugboja [1982] QB 320. R v Olugboja [1982] QB 320 at 332, citing Coleridge J in R v Day (1841) 9 C & P 722 at 724. CLRC (UK), Sexual Offences, Fifteenth Report (London: HMSO, 1984) pp 10–11. [11.110]

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the Sexual Offences Act 2003 (UK) has enacted a scheme of evidential presumptions against consent in specified circumstances, which include, inter alia, the use of violence against the complainant or causing the complainant to fear immediate violence. 211 Using violence or threats of violence to procure sexual submission cannot result in consent freely or voluntarily given. The difficulty with coercion, and therefore consent, is that it lies on a continuum. The principles have been summarised by King CJ in Case Stated by DPP (No 1): “The law on the topic of consent is not in doubt. Consent must be a free and voluntary consent. It is not necessary for the victim to struggle or scream. Mere submission in consequence of force or threats is not consent. The relevant time for consent is the time when sexual intercourse occurs. Consent, previously given, may be withdrawn, thereby rendering the act non-consensual. A previous refusal may be reversed thereby rendering the act consensual. That may occur as a consequence of persuasion, but, if it does, the consequent consent must, of course, be free and voluntary and not mere submission to improper persuasion by means of force or threats.” 212

It follows that the use of pressure, not amounting to coercion, will not vitiate consent. It has been said that consent may be “hesitant, reluctant, grudging or tearful”, but if he or she consciously permits it (provided his or her permission is not obtained by force, threat, fear or fraud) it is not rape. 213 On this view, the use of harassment or emotional pressure to procure consent falls outside the scope of rape or sexual assault. The difficulty in differentiating submission from consent is that some force by the male and reluctance by the female is viewed as a normal and legitimate part of seduction or foreplay: see [11.20]. There is some uncertainty over the scope of the common law rules governing negation of consent by force, threats and fear; in particular, whether vitiation of consent is confined to the application (or threatened application) of immediate force, and whether the force or threats may be directed at someone other than the victim. 214 The common law and statutory provisions were reviewed by the MCCOC in its 1999 report, 215 in which it concluded that the deeming provisions negating consent should be limited to force or threats of force, whether express or implicit. 216 The MCCOC felt that the comprehensive list of circumstances negating consent adopted in the Australian Capital Territory was inappropriate. Subparagraphs 67(1)(a) – (j) of the Crimes Act 1900 (ACT) provide that the consent of the victim is deemed to be negated if caused: (a) by the infliction of violence or force on the person, or on a third person who is present or nearby; or (b) by a threat to inflict violence or force on the person, or on a third person who is present or nearby; or (c) by a threat to inflict violence or force on, or to use extortion against, the person or another person; or (d) (e)

by a threat to publicly humiliate or disgrace, or to physically or mentally harass, the person or another person; or by the effect of intoxicating liquor, a drug or an anaesthetic; or

(f)

by a mistaken belief as to the identity of that other person; or

211 212 213 214

215 216

Sexual Offences Act 2003 (UK), s 75(2). Case Stated by DPP (No 1) (1993) 66 A Crim R 259 at 265. Holman v The Queen [1970] WAR 2 at 6 per Jackson CJ. J Scutt, “Consent Versus Submission: Threats and the Element of Fear in Rape” (1977) 13 University of Western Australia Law Review 52; G Syrota, “Rape: When does Fraud Vitiate Consent?” (1995) 25 Western Australian Law Review 334. MCCOC, Chapter 5—Sexual Offences Against the Person, Report (1999). MCCOC, Chapter 5—Sexual Offences Against the Person, Report (1999) p 47.

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(g)

by a fraudulent misrepresentation of any fact made by the other person, or by a third person to the knowledge of the other person; or

(h)

by the abuse by the other person of his or her position of authority over, or professional or other trust in relation to, the person; or

(i)

by the person’s physical helplessness or mental incapacity to understand the nature of the act in relation to which the consent is given; or

(j) by the unlawful detention of the person. Subparagraphs 67(1)(a) – (b) expressly state that the violence or force may be directed at the victim or a third person who is present or nearby. Subparagraph 36(2)(b) of the Crimes Act 1958 (Vic) similarly states that there is not free agreement where a person submits because of the “fear of harm of any type, whether to that person or someone else or an animal” (emphasis added). Potentially, these provisions could mean that the threat of economic harm, such as the loss of a job or blackmail, could negate free agreement. The MCCOC felt that these non-coercive circumstances should not automatically negate consent. However, since the definition of consent was non-exhaustive, it acknowledged that fear of economic harm could support a finding that there was no free and voluntary agreement. 217 Some feminists have argued that the law should recognise a wider range of conduct and situations where consent may be negated. 218 There is some doubt as to whether the victim’s response to the accused’s threats or intimidation must be “reasonable”. 219 Arguing that consent should be treated as a question of fact exclusively for the jury, Jocelynne Scutt argued strongly against the notion of “reasonable” fear: It would seem irrelevant that another person would not have been terrified or her reason overcome, by a threat of a similar nature. What might validly interfere with one person’s ability to consent may be of no moment to another. The definition of rape is not that it is “sexual intercourse without consent of the reasonable man”. 220

This subjective test was adopted in Queensland in R v Motlop, where the Court of Appeal held [at 42]: “The issue of consent is not determined by reference to the intention of the person inflicting the violence. The issue is whether consent was freely and voluntarily given by the complainant. That involves a consideration of whether the consent of the particular complainant was obtained or induced by the conduct in question. The issue the jury had to determine, beyond reasonable doubt, was whether any consent by the complainant was obtained or induced by the earlier force or the threat or intimidation of further force should she not comply with the request for sexual intercourse. In determining that question, it was

217 218

219 220

MCCOC, Chapter 5—Sexual Offences Against the Person, Report (1999) p 51. The concepts of fraud, duress and unconscionability used in contract and commercial law have been suggested as models for the law of consent: J Scutt, “Consent Versus Submission: Threats and the Element of Fear in Rape” (1977) 13 University of Western Australia Law Review 52 at 63–64. It has been suggested that the equitable doctrine of unconscionability in contract law could provide a new basis for vitiating consent in cases involving fraud, emotional abuse or economic blackmail: V Waye, “Rape and the Unconscionable Bargain” (1991) 16 Criminal Law Journal 94. For criticism of this approach and the danger of over-criminalisation, see S Bronitt. “Rape and Lack of Consent” (1992) 16 Criminal Law Journal 289 at 298–300. See, for example, Aickin (2005) 157 A Crim R 515 where the accused had threatened to disclose the victim’s shoplifting unless she submitted to sexual intercourse. B Fisse, Howard’s Criminal Law (5th ed, Sydney: Law Book Company, 1990) p 183. J Scutt, “Consent Versus Submission: Threats and the Element of Fear in Rape” (1977) 13 University of Western Australia Law Review 52 at 66. [11.110]

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irrelevant whether another may have ignored or resisted a similar threat or what was the intention of the appellant at the time of the infliction of actual violence.” 221

This entirely subjective approach to fear is consistent with the policy of “taking your victims as you find them”. Under this approach, the jury must consider, simply as a factual matter, whether or not the nature of the threat and the degree of fear engendered by the accused was sufficient to destroy the person’s free and voluntary consent. 222 Negating consent by fraud or mistake [11.115] There is similar uncertainty over the effect of fraud and mistakes on consent. The early common law was reluctant to recognise that fraud would vitiate consent. In 1883, James Fitzjames Stephen, a distinguished English judge and jurist, took the view that “where consent is obtained by fraud the act does not amount to rape”. 223 The English courts in the 19th century were however ambivalent as to whether having sexual intercourse by impersonating a married woman’s husband was rape: this doctrinal uncertainty was eventually resolved by legislation, which deemed intercourse in such circumstances to be rape. 224 While fraud operated generally to vitiate consent for other crimes such as larceny, a different approach was taken to rape. As rape was a serious felony, punishable by death until 1841, 225 the courts sought to keep the common law offence of rape within much tighter bounds: fraud would only vitiate consent in exceptional cases. The effect of fraud on consent in cases other than spousal impersonation remained contested and unresolved until R v Clarence in 1888. 226 The case actually concerned consent in the context of offences against the person (assault occasioning actual bodily harm), though the principles have been held to have general application to the common law governing rape. The accused knowingly infected his wife with gonorrhoea, which, in the 19th century, was a fatal disease. He was convicted of inflicting grievous bodily harm and assault occasioning actual bodily harm. The majority of the Court of Crown Cases Reserved quashed the conviction on the ground that the statutory offences of inflicting grievous bodily harm and assault occasioning actual bodily harm did not cover the accused’s behaviour; that is, the infection of another with a disease through sexual intercourse. Since lack of consent was an essential ingredient for both offences, the court also considered whether the wife’s consent had 221

226

R v Motlop [2013] QCA 301, per Boddice J (Fraser JA and Douglas J concurring). See also Michael v State of Western Australia [2008] WASCA 66, where the accused impersonated a police officer and threatened to use coercive police powers (e.g. arrest or a move on notice) against two prostitutes. Charged with rape, the trial judge considered the operation of s 319 of the Criminal Code (WA). After a review of the law in other jurisdictions, and various academic writings on the subject, Steytler P held [at 74]: “It seems to me that, 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 it is if it is one of physical violence. The same is true of a threat of substantial economic harm. However, there remains a question whether a line should be drawn and, if so, where.” Applying this approach to the term, the judge concluded [at 76]: “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.” S Bronitt, “Rape and Lack of Consent” (1992) 16 Criminal Law Journal 289 at 292–293. JF Stephen, Digest of the Criminal Law (3rd ed, London: Macmillan, 1883) p 185. Criminal Law Amendment Act 1885 (UK), s 4; now see Sexual Offences Act 2003 (UK), s 76(2)(b). JF Stephen, A History of the Criminal Law of England (3 vols., London 1883). Rape ceased to be a capital offence in 1841, which may help to account for the substantial increases in the prosecution of both rape and assault with intent to rape evident from the 1840s onwards: JA Sharpe, Judicial Punishment in England (London, 1990). R v Clarence (1888) 22 QBD 23.

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been vitiated by the accused’s failure to disclose the infection. In light of his earlier reservations about fraud, Stephen J rejected the simple idea that fraud would vitiate consent in criminal matters: “[I]f fraud vitiates consent, every case in which a man infects a woman or commits bigamy … [without informing the woman of his infection or the existence of the first marriage, respectively] … is also a case of rape. Many seductions would be rapes, and so might acts of prostitution procured by fraud, as for instance by promises not intended to be fulfilled.” 227

Based on his review of earlier authorities, Stephen J concluded that consent would only be vitiated where the fraud related to “the nature of the act itself, or as to the identity of the person who does the act”. 228 On the facts of the case, it was found that the husband could not be guilty of assault, and, by implication, rape, since the wife’s consent was “as full and conscious as consent could be. It was not obtained by any fraud either as to the nature of the act or the identity of the agent”. 229 Stephen J looked to the judicial understanding of the “nature” of the act and identified a dichotomy between types of frauds used to induce consent. A crucial distinction was drawn between a “deception or mistake as to the thing itself”, as opposed to “deception as to a matter antecedent or collateral thereto”. 230 The fact of the husband’s infection did not alter the nature of the physical sexual act itself, and as such, her lack of knowledge was held to be immaterial to a valid consent. Clarence dealt with vitiation of consent in the context of offences against the person, though it has been assumed that these general principles apply equally to rape and sexual assault. 231 In Papadimitropoulos v The Queen, 232 the accused fraudulently procured sexual intercourse from a young Greek woman, recently arrived in Australia, by tricking her into believing that she had gone through a marriage ceremony with him. In fact, the accused had simply given notice of his intention to marry at the Melbourne Registry Office. With this belief, she consented to sexual intercourse on their “honeymoon”. There was some evidence that the young woman never intended to consent to intercourse outside marriage. The accused deserted her shortly after the “honeymoon”. The matter was reported to the police, and he was charged and convicted of rape. The High Court in Papadimitropoulos traced the development of the principle governing vitiation of consent. The High Court held that consent to sexual penetration requires: “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.” 233

The High Court affirmed the formulation in Clarence that the mistake induced by the fraud must relate to the “nature and character of the act”. The High Court was not prepared to extend vitiation of consent beyond a mistake relating to “the identity of the physical act and the immediate conditions affecting its nature”. 234 This qualification provides a control mechanism for the courts. On the facts of Papadimitropoulos, the mistake made by the young woman was insufficient to destroy consent since it related to an “antecedent inducing 227 228 229 230 231 232 233 234

R v Clarence (1888) 22 QBD 23 at 43 per Stephens J. R v Clarence (1888) 22 QBD 23 at 44. R v Clarence (1888) 22 QBD 23 at 44. This distinction is elaborated in A Reed, “An Analysis of Fraud Vitiating Consent in Rape” (1995) 59 Journal of Criminal Law 310 at 311. Papadimitropoulos v The Queen (1957) 98 CLR 249; R v Mobilio [1991] 1 VR 339. (1957) 98 CLR 249. Papadimitropoulos v The Queen (1957) 98 CLR 249 at 261. Papadimitropoulos v The Queen (1957) 98 CLR 249 at 261. [11.115]

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cause—the existence of a valid marriage”. 235 As she had understood the physical act (the act of sexual intercourse), the accused could not be guilty of rape. The High Court recognised that the accused’s fraudulent conduct inducing consent, although not amounting to rape, could be punished as another less serious criminal offence; namely, procuring sexual intercourse by fraud or false pretences. 236 The members of the High Court in Papadimitropoulos emphasised that it was a victim’s mistake as to the nature and character of the act or identity of the accused, rather than the accused’s fraud, that vitiated consent. In their view, the focus on fraud in the earlier cases distracted attention from the essential inquiry; namely, “whether the consent is no consent because it is not directed to the nature and character of the act”. 237 This subtle shift in emphasis from fraud to mistake is significant. By giving greater weight to the victim’s perception of events, it widens the scope of the offence considerably. It means that any error or failure in appreciating the nature and character of the act or identity of the other party may negate consent, irrespective of whether the accused’s conduct had induced that mistake. This approach has been criticised for focusing the investigation and the trial upon the victim and his or her state of mind, rather than on the accused’s deception or misrepresentation in inducing that state of mind. As Jennifer Morgan observed, this may have consequences for how the offence of rape is perceived within the community: “By emphasizing the mistake (made by the woman) rather than the fraud (perpetrated by the man) we have surely lowered the perceived seriousness of the offence. A mistake is a human error, something minor; fraud is a deliberate decision. There are specific statutory offences of inducing sexual intercourse by fraud or false pretences; these are not rape but some lesser offence.” 238

Similar criticism may be levelled at the statutory formulations of consent in New South Wales and Victoria that identify particular mistakes by the victim, 239 rather than the accused’s fraud, as the circumstance where consent is negated. In other common law jurisdictions, such as Canada, the courts have continued to emphasise that the accused’s dishonesty and deception are the basis for negating consent to sexual intercourse, discussed at [11.115] – [11.120]. 240 (Dishonesty is generally the basis for the less serious offence of “procuring sexual acts by fraud” in various Australian jurisdictions.) 241 Recent reforms introduced by the Crimes (Sexual Offences) Amendment Act 2016 (Vic) have further expanded the procuring offence in (new) section 45 of the Crimes Act 1958 (Vic) to include making a “false or misleading misrepresentation”. This new offence extends liability to cases where the accused

235 236

237 238 239 240 241

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Papadimitropoulos v The Queen (1957) 98 CLR 249 at 261. Criminal Code (Qld), s 218; Criminal Law Consolidation Act 1935 (SA), s 60(b); Criminal Code (Tas), s 129(b); Crimes Act 1958 (Vic), s 45; Criminal Code (WA), s 192(2). Rather than enact a separate offence in the Australian Capital Territory, consent is deemed to be negated where it was obtained by “a fraudulent misrepresentation of any fact made by the other person, or by a third person to the knowledge of the other person”: Crimes Act 1900 (ACT), s 67(1)(g). This is similar to the situation in New South Wales: Crimes Act 1900 (NSW), s 61HA(5)(c). Papadimitropoulos v The Queen (1957) 98 CLR 249 at 260. J Morgan, “Rape in Medical Treatment: the Patient as Victim” (1991) 18 Melbourne University Law Review 403 at 413. Crimes Act 1958 (Vic), s 36(2)(h) – (k); Crimes Act 1900 (NSW), ss 61I, 61HA. R v Cuerrier [1998] 2 SCR 371. Criminal Law Consolidation Act 1930 (SA), s. 60(b) (“false pretences, false representations or other fraudulent means”); Criminal Code (Qld), s 218 (“false pretence”); Criminal Code (Tas), s 129 (“false pretence”); Criminal Code (WA), s. 192(1)(b) (“false pretence”); Crimes Act 1958 (Vic), s 45 (“false or misleading representation”). New South Wales abolished a similar provision in 2003. [11.115]

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knows that the misrepresentation is (or probably is) false or misleading, raising concern that the offence may criminalise many of the casual deceits (“I love you”) made before sexual activity. 242 Concern has been expressed that broadening the types of mistake that automatically negate consent beyond the narrow boundaries of “nature or character of the act” extends the scope of rape too far. 243 The MCCOC concluded that misunderstandings should be limited to cases where “the person is incapable of understanding the essential nature of the act”, or “the person is mistaken about the essential nature of the act”. 244 It rejected the idea that the facts arising in Papadimitropoulos automatically constituted the basic offence of rape or sexual assault, but confirmed that the jury would be at liberty to consider whether there had been “free and voluntary agreement” on these facts. 245 The judicial and legislative reforms of the law of consent have been piecemeal, tackling the symptoms rather than the cause of the problem. The cause of “consent problems” in the present law is that the victim is not required to possess an understanding or appreciation of the significance of those acts. To address these shortcomings, some academics have argued that consent to sexual intercourse requires an understanding of the purpose behind the accused’s act. 246 In her examination of the decision in R v Mobilio, 247 Morgan stressed the importance of understanding the context of the act. 248 No matter how the rule for consent is formulated (whether it is said to require an understanding of the significance, purpose or context of the act), the fundamental difficulty is the extent to which the “nature and character of the act” should take into account the wider moral dimension of the intercourse. Nearly four decades ago, leading feminist scholar, Jocelyne Scutt, forcefully argued that the nature and character of the act should have a moral dimension. 249 Drawing inspiration from Canadian authorities, she argued that the jury should be invited to consider the moral dimension of the intercourse because: “the moral aspect of sexual activity being as fundamentally important as it is, in terms of our current social and moral values, consent in the moral sense is equally important in any sexual transaction as is consent in the physical sense.” 250

Scutt suggested that the trial judge should direct the jury that it is simply a question of fact whether the mistake as to the moral significance of that act was sufficient to vitiate the victim’s consent. This approach raises concerns over the lack of certainty and predictability in fixing the boundaries of rape. It raises the spectre that many forms of sexual dishonesty, such as 242

243 244 245 246 247 248 249 250

The Victorian Scrutiny of Acts and Regulations Committee expressed concern that misrepresentations need not be dishonest: “Although similar provisions exist elsewhere in Australia, no provision criminalises sex obtained by misleading statements. New section 45 may make it a crime to tell lies or half-truths to a sexual partner, eg ‘I love you’, ‘this means nothing’, ‘I’m single’, etc”: Parliament of Victoria, 58th Parliament, Alert Digest, No 9 of 2016, 21 June 2016, p 11. Retrieved from: http://www.parliament.vic.gov.au/images/stories/committees/ sarc/Alert_Digests/Alert_Digest_No_9_of_2016.pdf (cited 13 October 2016). See MCCOC, Chapter 5—Sexual Offences Against the Person, Report (1999). This concern has been expressed in Michael v Western Australia (2008) 183 A Crim R 348, EM Jeenan AJ (dissent) at 373. MCCOC, Chapter 5—Sexual Offences Against the Person, Report (1999) p 38. MCCOC, Chapter 5—Sexual Offences Against the Person, Report (1999) p 49. G Roberts, “Dr Bolduc’s Speculum and the Victorian Rape Provisions” (1984) 8 Criminal Law Journal 296 at 300. R v Mobilio [1991] 1 VR 339. J Morgan, “Rape in Medical Treatment: The Patient as Victim” (1991) 18 Melbourne University Law Review 403 at 427. J Scutt, “Fraud and Consent in Rape: Comprehension of the Nature and Character of the Act and its Moral Implications” (1976) 18 Criminal Law Quarterly 312. J Scutt, “Fraud and Consent in Rape: Comprehension of the Nature and Character of the Act and its Moral Implications” (1976) 18 Criminal Law Quarterly 312 at 319. [11.115]

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bigamy and adultery, may give rise to liability for rape. This approach could leave the accused in Papadimitropoulos guilty of rape, since there was some evidence that the woman would not have consented to intercourse if she had known the truth. The question for the jury would be whether mistake in this case related to the moral significance of the intercourse. There was little evidence directly on this issue. Certainly a person with strong religious beliefs might regard intercourse outside marriage as having a different moral significance from intercourse within marriage. This approach would certainly require extensive examination and crossexamination in the trial as to the significance of the moral beliefs of the victim. The MCCOC in its report on Sexual Offences Against the Person, declined to elaborate further on the types of fraud that should automatically vitiate consent. An alternative approach is to require more elaborate and exhaustive specification of the types of mistakes that may vitiate consent and/or to create new offences of sexual dishonesty. Under both the present law and proposals for reform, the malleability of key legal definitions conceals the moral and political disagreement over the meaning and scope of consent. The jury will be left to resolve the question of rape or sexual assault by reference to the concepts of “free and voluntary” agreement and to decide whether the mistake related to the “essential nature” of the act. Within these boundaries, the offence of rape and sexual autonomy are legally constructed. Without further legislative guidance, there is a danger that judges and juries will draw heavily on discriminatory myths about female sexuality and their own notions of what constitutes “real rape”.

Informed Consent and Rape Law: Regulating Medical Fraud and Public Health Risks [11.120] As the following two cases reveal, the legal boundaries of consent for the purpose of rape law remain contested, often producing controversial decisions and generating piecemeal legislative reforms. R v Mobilio 251 was one such case. The accused, a radiographer, conducted a series of internal vaginal examinations upon several female patients using ultrasound transducers. These internal scans had no medical value and were done solely for the accused’s sexual gratification. He was charged and convicted with rape under the extended definition of sexual intercourse in Victoria. 252 The Court of Criminal Appeal considered whether the victims had consented to intercourse, focusing particularly on directions given on the vitiation of consent. Affirming Papadimitropoulos v The Queen, 253 the court held that, to vitiate consent, a person’s mistake must relate to the nature and character of the act or identity. Thus, a mere mistake as to the man’s purpose would not be sufficient: “It is established in Australia by the High Court that if the woman consented to an act knowing it to be an act of sexual intercourse, no mistake as to the man’s purpose deprives her consent of reality.” 254 Applied to the facts of Mobilio, as each patient had understood the nature of the physical act perpetrated upon them (the insertion of the ultrasound transducer into their vagina), their consent had not been vitiated. 251 252

253 254

R v Mobilio [1991] 1 VR 339. “Sexual penetration” was defined by s 35(1) of the Crimes Act 1958 (Vic) (since repealed), which includes “the introduction (to any extent) by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes”. The equivalent provision is now contained in s 48A of the Crimes Act 1958 (Vic). Papadimitropoulos v The Queen (1957) 98 CLR 249. Papadimitropoulos v The Queen (1957) 98 CLR 249 at 344.

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The problem arises from the critical distinction the law draws between understanding what is being done, and why it is being done. 255 The effect of this restrictive interpretation of the nature and character of the act is that the concept of consent in the criminal law is limited to a person’s appreciation of what is physically being done to them. 256 In Mobilio, the victims were not mistaken about what was physically happening to them. The physical act (the insertion of the ultrasound transducer) would be the same whether the act was done for a medical purpose or for sexual gratification. Clearly, however, the victims were not consenting to interference with their vaginas for the accused’s sexual pleasure. The common law has decided that a mistake as to the significance of the act is not sufficient to vitiate consent. Mobilio was subject to much detailed discussion and critical analysis. 257 The effect of Mobilio has been subsequently reversed by statute in several jurisdictions, providing that it is not consent where the person mistakenly believes the act serves a medical or hygienic purpose. 258 The MCCOC proposed a similar model provision in cl 5.2.3 clarifying that a mistaken belief that the act is for a medical or hygienic purpose is an “example” of a mistake about the “essential nature” of the act. This MCCOC approach was applied in South Australia, where s 46 of the Criminal Law Consolidation Act 1935 (SA) provides that a mistake about the “nature of the activity” includes a mistaken belief that the activity is necessary for “medical diagnosis, investigation or treatment”. Another controversial consent question impacting upon public health policy relates to the effect of a person’s failure to disclose his or her infection with a serious disease (such as HIV) prior to intercourse. Could such fraud or mistake vitiate consent, leading to possible charges of assault, sexual assault and/or rape? The leading19th century decision of R v Clarence 259 appeared to preclude prosecution in these circumstances, even where an accused had knowingly and dishonestly failed to disclose the infection to his or her sexual partner. 260 From a regulatory and policy perspective, the criminalisation of disease transmission in the context of otherwise lawful activity raises complex questions about the relationship between public health law and criminal law. 261 Concern that culpable instances of transmission of a deadly disease like HIV may not fall within the scope of the ordinary criminal law led to criticisms of Clarence, and calls for the courts, through common law development, to re-fashion the rules governing fraud and consent. 262 Clearly, it would be possible for the courts to depart from

255 256

257 258

259 260 261 262

B Fisse, Howard’s Criminal Law (5th ed, Sydney: Law Book Company, 1990) p 181. It is difficult to reconcile the old consent cases with this distinction. In R v Flattery (1877) 2 QBD 410 and R v Williams [1923] 1 KB 340, consent was held not to exist because the woman mistakenly believed that penetration was a medical treatment. Although the correctness of these decisions has not been doubted, they can only be reconciled with the distinction made in the present law if we accept that the victims’ complete naivety about sex prevented them from comprehending what was physically being done to them. See, for example, J Morgan, “Rape in Medical Treatment: the Patient as Victim” (1991) 18 Melbourne University Law Review 403. The original amendment to s 36 introduced by the Crimes (Sexual Offences) Act 1991 (Vic) provided that consent had no effect “if it was obtained by a false representation that the conduct was for medical or hygienic purposes”. The present section follows the approach in Papadimitropoulos (focusing on mistakes rather than fraud) and implements the recommendations of the Law Reform Commission of Victoria in Rape: Reform of Law and Procedure, Report No 42 (1991). See also Crimes Act 1900 (NSW), s 61HA(5)(c); Criminal Code (NT), s 192(2)(f). R v Clarence (1888) 22 QBD 23. S Bronitt, “Spreading Disease and the Criminal Law” [1994] Criminal Law Review 21. S Bronitt, “The Transmission of Life-Threatening Infections: A New Regulatory Strategy” in R Smith (ed), Health Care, Crime and Regulatory Control (Sydney: Hawkins Press, 1998). H Power, “Consensual Sex, Disease and the Criminal Law” (1996) 60(4) Journal of Criminal Law 412. [11.120]

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Clarence and develop the common law in a way which better reflects modern understandings of consent; in particular, the importance of disclosure of risks and obtaining an “informed consent”. Such a strategy has been adopted in Canada and the United Kingdom. In the Canadian decision of R v Cuerrier 263 the accused had unprotected sexual intercourse with two women without informing them that he was HIV-positive. Both complainants had consented to unprotected sexual intercourse. However, the complainants testified at trial that they would not have consented had they known the accused was HIV-positive. The accused was charged with several counts of aggravated assault. The Supreme Court of Canada, in a majority judgment, held that consent to sexual intercourse in such cases could amount to a fraud relating to the “nature and character” of the act: “Without disclosure of HIV status there cannot be a true consent. The consent cannot simply be to have sexual intercourse. Rather it must be consent to have intercourse with a partner who is HIV-positive.” 264

The majority stressed that the accused’s failure to disclose his HIV-positive status must: (1) (2)

be fraudulent in the sense of dishonesty; and have resulted in deprivation by putting the complainant at a significant risk of suffering serious bodily harm. 265 Although dealing with the interpretation of the Criminal Code (Can), the Supreme Court’s discussion and rejection of Clarence clearly has implications for the common law rules governing consent. The Court of Appeal in England has taken a similar approach in a number of recent cases dealing with individuals who recklessly infected others with diseases through otherwise consensual sexual intercourse. In R v Dica, 266 the court confirmed the diminishing authority of Clarence in two respects: first, it no longer supported the view that infecting someone with a serious disease could not fall within the offence of inflicting or causing grievous bodily harm; secondly, consent to sexual intercourse did not equate with consent to the risk of contracting HIV. The court recognised that in cases of reckless transmission, the accused could raise consent to the risk of infection; such a defence, however, was not available where the accused deliberately infected another person with HIV with intent to cause grievous bodily harm. 267 Allowing consent to operate in some cases—even where the risks involved death or serious injury—was considered part of the acceptable risks involved in heterosexual activity, whether within casual or committed relationships. 268 The court drew on the following two examples to support the necessity for this defence: “In the first, one of a couple suffers from HIV. It may be the man: it may be the woman. The circumstances in which HIV was contracted are irrelevant. They could result from a contaminated blood transfusion, or an earlier relationship with a previous sexual partner, who unknown to the sufferer with whom we are concerned, was himself or herself infected with HIV. The parties are 263 264 265

266 267 268

R v Cuerrier [1998] 2 SCR 371. R v Cuerrier [1998] 2 SCR 371 at [127]. R v Cuerrier [1998] 2 SCR 371 at [128] per Cory J delivering the judgment of the majority: “In my view, the Crown will have to establish that the dishonest act (either falsehoods or failure to disclose) had the effect of exposing the person consenting to a significant risk of serious bodily harm. The risk of contracting AIDS as a result of engaging in unprotected intercourse would clearly meet that test. In this case the complainants were exposed to a significant risk of serious harm to their health. Indeed their very survival was placed in jeopardy. It is difficult to imagine a more significant risk or a more grievous bodily harm.” R v Dica [2004] EWCA Crim 1103. R v Dica [2004] EWCA Crim 1103 at [58]. R v Dica [2004] EWCA Crim 1103 at [47].

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Roman Catholics. They are conscientiously unable to use artificial contraception. They both know of the risk that the healthy partner may become infected with HIV. Our second example is that of a young couple, desperate for a family, who are advised that if the wife were to become pregnant and give birth, her long-term health, indeed her life itself, would be at risk. Together the couple decide to run that risk, and she becomes pregnant. She may be advised that the foetus should be aborted, on the grounds of her health, yet, nevertheless, decide to bring her baby to term. If she does, and suffers ill health, is the male partner to be criminally liable for having sexual intercourse with her, notwithstanding that he knew of the risk to her health? If he is liable to be prosecuted, was she not a party to whatever crime was committed? And should the law interfere with the Roman Catholic couple, and require them, at the peril of criminal sanctions, to choose between bringing their sexual relationship to an end or violating their consciences by using contraception?” 269

The subsequent decision in R v Konzani 270 confirmed the approach in Dica, clarifying that in cases where the issue of consent to the risk of HIV infection could be left the jury, it had to be an informed consent. 271 Moreover, the mental state of the accused had to be concomitant with this; that is, there has to an honest belief that the sexual partner had given an “informed” consent. 272 In Australia, the test cases necessary to revise these general principles governing consent have not yet reached the higher courts—indeed the necessity for such revision has lessened since the legislature has enacted piecemeal changes to the definition of consent, as well as enacting a range of targeted offences criminalising individuals who intentionally or recklessly cause transmission of a serious disease. Such offences, as the recent High Court decision in Zaburoni v The Queen 273 reveals, do not require proof of non-consent. Put simply, the consent, or lack thereof, to the sexual act is legally speaking irrelevant. In that case, the High Court examined s 317(b) of the Criminal Code (Qld), which made it an offence to cause the transmission of a serious disease with intent. (In this case, there was evidence that the accused knew of his infection, and that he had lied and denied his HIV condition to his partner). The High Court held that the facts did not support this charge, and that courts below had unhelpfully conflated intention and recklessness. As Kiefel, Bell and Keane JJ pointed out, s 317(b) required proof of specific intent [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.”

For further exploration of the legal and policy issues raised by the case see D Kim and S Bronitt, “Case and Comment—Zaburoni v The Queen [2016] HCA 12” (2017) Criminal Law Journal 50.

269 270 271 272 273

R v Dica [2004] EWCA Crim 1103 at [49]. R v Konzani [2004] EWCA 706. R v Konzani [2004] EWCA 706 at [41]. R v Konzani [2004] EWCA 706 at [45]. For a commentary on these developments, see M Weate, “Criminal Law and the Sexual Transmission of HIV: R v Dica” (2005) 68(1) Modern Law Review 121. Zaburoni v The Queen (2016) 256 CLR 482. [11.120]

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Negating consent by mistake as to identity: gender and sexuality [11.125] Mistakes about identity in relation to the vitiation of consent have taken on a new dimension in a series of cases where an accused has failed to disclose or concealed some aspect of their true identity. In R v Tamawiwy (No 2), 274 Justice Refshauge of the ACT Supreme Court rejected the application for an acquittal in the course of a trial of Billy Bartolomeus Tamawiwy for engaging in sexual intercourse without consent contrary to s 54 of the Crimes Act 1900 (ACT). The prosecution case rested on the accused having fraudulently procured another person’s consent through an elaborate online fraud. It was alleged that between November 2013 and December 2014, the accused (a male) communicated with the complainant SJ (another male) through a fake Facebook profile, in which the accused represented himself to be a young bisexual woman named Taylah Edwards. Pretending to be Taylah, the accused invited SJ to have sexual intercourse with herself and two of her girlfriends. The invitation however was conditional upon SJ first engaging, in sexual intercourse with another male called “Christian”. [Christian was in fact the accused, Tamawiwy]. Although initially reluctant, SJ consented to sexual intercourse with Tamawiwy. He later discovered that he had been duped, and that Taylah Edwards and her girlfriends were fictional online personae of the accused. Following investigation, Tamawiwy was charged and convicted of engaging in sexual intercourse without consent, being reckless as to whether he (SJ) was consenting. 275 The ruling in this case hinged upon the precise wording of the ACT statutory definition of consent, and the interpretation of the fraud provisions contained in s 67(1)(g) of the Crimes Act 1900 (ACT), which stated that consent is negated if it is caused “by a fraudulent misrepresentation of any fact made by the other person”. In this case, the fact misrepresented by the accused was that, by engaging in sexual intercourse with “Christian”, the complainant would have “the opportunity to have sexual intercourse later with attractive young women”. 276 Refshauge ACJ reviewed the common law developments since Papadimitropoulos, various law reform reports, statutory revisions and scholarly critiques of the law. The defence had submitted that s 67(1)(g) should be subject to the qualification that the accused’s misrepresentations must be restricted (consistent with the common law position in Papadimitropoulos) to the nature or purpose of the particular sexual act, or the identity of the other person. In rejecting this submission, Refshauge ACJ was influenced by the fact that the ACT legislative acceptance of the wide operation of the provision was neither “unintended” nor “unacceptable”. This could be contrasted with the equivalent consent provision in Queensland, which applied only to “false and fraudulent representations about the nature or purpose of the act”. 277 On that basis, the question for the jury was simply whether the misrepresentation of fact was operative, and induced SJ to consent to sexual intercourse with the accused. The accused was ultimately convicted of engaging in sexual intercourse without consent. 278 The narrow legal understanding of the circumstances when a deception vitiates consent to sexual intercourse has been the subject of substantial feminist critique. 279 There is valid concern that the present law fails to uphold the ideals of autonomy upon which it is said to be 274 275 276 277 278

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The Queen v Tamawiwy (No 2) [2015] ACTSC 302. Crimes Act 1900 (ACT), s 54. The Queen v Tamawiwy (No 2) [2015] ACTSC 302 at [5]. The Queen v Tamawiwy (No 2) [2015] ACTSC 302 at [43]–[45], outling s 348(2)(e), Criminal Code (Qld). C Knaus, “Rape-Accused Used ’Elaborate Modus Operandi’ on Facebook: Prosecutors” Canberra Times, 25 September 2015: http://www.canberratimes.com.au/act-news/rapeaccused-used-elaborate-modusoperandi-on-facebook-prosecutors-20150924-gjty9z.html. See BA McJunkin, “Deconstructing Rape by Fraud” (2014) 28(1) Colombia Journal of Gender and Law 1; S Estrich, “Rape” (1986) 95 Yale Law Journal 1087 at 1182; T Dougherty, “No Way Around Consent: A Reply [11.125]

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based, 280 with legal feminists pointing to “deception’s profound impact on the voluntariness of sexual consent”. 281 Ben McJunkin argues that the current law accepts consent as legitimate where it has been obtained through persuasion, even when this persuasion relies upon certain falsehoods that we consider as immaterial to consent, such as a person’s profession, wealth, religion, or relationship status. McJunkin explains that these understandings, of which factors are, and are not, material to consent, are informed by heterosexual, sexual norms that have evolved to accept certain forms of deception as inherent to seduction (which itself is seen as desirable). By contrast, consent when given under the mistaken belief that the act serves a medical purpose, for example, or that the perpetrator is in fact a different person is not seen to have resulted from “legitimate” seductions, as the choice to allow penetration does not manifest the assailant’s masculine worth. Since gendered heterosexual norms governing sexual activity have informed the scope of consent, it is unsurprising, although no less concerning, to learn that a new category of “trans” rape based on gender fraud has emerged, 282 resulting in a number of prosecutions and convictions of transgendered persons in the United Kingdom. 283 These cases typically involve young transgender people, who engage in apparently consensual sexual intercourse, but did not disclose their gender history to sexual partners in advance of their acts of sexual intimacy. 284 Upon discovery of the transgender identity, the “deceived” partner informs the police, with charges being laid on the basis that this mistake/fraud had vitiated consent. In a review of these cases, Alex Sharpe expresses concern that these convictions are inconsistent with the established English jurisprudence governing fraud and consent. Sharpe points out that most of these charges related to factual scenarios involving no discrepancy between the mechanics of the physical act being undertaken (i.e. kissing, oral or digital penetration) and the acts that the complainants thought they were undertaking. This criminalisation of the non-disclosure of gender history is discriminatory, based on the assumption, shared by the prosecution and judiciary, that being transgendered equates with gender identity fraud or impersonation. This privileges the complainant’s cisgender understandings of gender (namely binary/hetero) over the transgender identity of the defendant. 285 Sharpe also considers the current legal position to be incompatible with the right to privacy under Art 8 of the European

280

281 282

283

284 285

to Rubenfeld on ’Rape-by-Deception’” (2013) 123 Yale Online Law Journal 321, retrieved from http:// yalelawjournal.org/forum/no-way-around-consent-a-reply-to-rubenfeld-on-rape-by-deception; PJ Falk, “Not Logic, but Experience: Drawing on Lessons from the Real World in Thinking about the Riddle of Rape-by-Fraud” (2013) 123 Yale Online Law Journal 353, retrieved from: http://www.yalelawjournal.org/ forum/not-logic-but-experience-drawing-on-lessons-from-the-real-world-in-thinking-about-the-riddleof-rape-by-fraud, cf SJ Schulhofer, Unwanted Sex: The Culture of Intimidation and the Failure of Law (Harvard University Press, 1998) p 158: “It may be preferable to leave to the individual the decision whether to believe, whether to rely, and whether to assume the risk of deception by trusting the other party”. See Crimes (Rape) Act 1991 (Vic), s 1 – “reaffirm the fundamental right of a person not to engage in sexual activity”. See also V Waye, “Rape and the Unconscionable Bargain” (1992) 16(2) Criminal Law Journal 94: “[T]he stated raison d’etre of rape law: to protect personal dignity and sexual autonomy.” BA McJunkin, “Deconstructing Rape by Fraud” (2014) 28(1) Colombia Journal of Gender and Law 1 at 3. A Sharpe, “The Dark Truth Behind the Convictions for ’Gender-Fraud’: It’s not about Justice, it’s about Witch Hunts”. The New Statesman (16 December 2015) [online]: http://www.newstatesman.com/politics/feminism/ 2015/12/dark-truth-behind-convictions-gender-fraud. See A Sharpe, “Sexual Intimacy, Gender Variance and Criminal Law” (2016) 33 (4) Nordic Journal of Human Rights 380 at 381, citing R v Mason [2015] (unreported); R v Newland [2015] (unreported); R v Wilson [2013] (unreported); R v McNally [2013] EWCA Crim R 1051; R v Barker [2012] (unreported); R v Saunders [1991] (unreported); Sexual Offences Act 2003 (UK), s 2; Scottish Sexual Offences Act 2009. A Sharpe, “Criminalising Sexual Intimacy: Transgender Defendants and the Legal Construction of Nonconsent” [2014] Criminal Law Review 207 at 208. A Sharpe, “Criminalising Sexual Intimacy: Transgender Defendants and the Legal Construction of Nonconsent” [2014] Criminal Law Review 207, 208. [11.125]

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Convention on Human Rights, which would protect transgender persons from a general duty to disclose details of their gender history to all prospective sexual partners. 286 There is a considerable difficulty in reconciling the desirability of upholding a meaningful “informed” understanding of consent in the criminal law, and the undesirability of perpetuating discrimination against transgender people and denying their rights to privacy in relation to this issue. The question appears for some commentators to turn on whether or not the mistake over gender identity is “material”, which, according to Jonathon Herring, should be assessed through the eyes of the complainant. 287 Sharpe rejects Herring’s approach, problematising the criminalisation of “gender fraud” by suggesting that a person’s gender history ought not to be considered a material fact, since this casts doubts upon the authenticity of gender identities. 288 The alternative approach to materiality would adopt an offendercentric perspective. Tom Dougherty, for example, has proposed that the focus of this inquiry must shift from the complainant’s mistake to the intentions of the accused, specifically whether the accused engaged in a deliberate, fraudulent misrepresentation to induce consent. On this latter model, the representations by the accused that they are a certain gender will not be fraudulent (and thus criminal) where it is based on an honestly held belief as to gender identity. 289 Consent would only be negated in situations where the accused gave a knowingly false or misleading representation, with an intention to procure consent to sexual intercourse, upon which the other person materially relied and the accused was aware of this reliance. Issues of fraud or mistakes as to identity are also shaped by culture. Culture and societal prejudices play a significant role in shaping what constitutes a “material” fraud or mistake sufficient to vitiate consent. In India, for example, there is significant social stigma surrounding pre-marital sex stemming from the prevailing ideology that a woman’s chastity is directly linked with the “integrity of the Indian family, culture and nation”. 290 Normative masculinity in this context is the heterosexual Hindu subject who engages in marital intercourse. The desire to protect vulnerable women from the severe social consequences of pre-marital sex has led to a considered expansion of “rape by fraud” by the judiciary to deal with the harms caused by men who lie and deceive women to induce pre-marital consent. 291 In Israel in 2010, Sabbar Kashur was sentenced to 18 months in prison, after being convicted of rape by deception. 292 In some communities, having sex with others who are outside the community or caste is highly transgressive. Deceptions about religious or caste status for such persons may be considered highly “material”. For example, in State of Israel v Kashur (2010) a Jewish woman was fraudulently induced to consent to sexual intercourse with a man who presented himself as a Jewish bachelor who was expressing “a ‘serious romantic’ interest in 286 287 288 289

290 291

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A Sharpe, “Criminalising Sexual Intimacy: Transgender Defendants and the Legal Construction of Nonconsent” [2014] Criminal Law Review 207 at 208. J Herring, “Mistaken Sex” [2005] Crim LR 511 at 517. A Sharpe, “Criminalising Sexual Intimacy: Transgender Defendants and the Legal Construction of Nonconsent” [2014] Criminal Law Review 207 at 218. See T Dougherty, “No Way Around Consent: A Reply to Rubenfeld on ’Rape-by-Deception’” (2013) 123 Yale Online Law Journal 321, retrieved from http://yalelawjournal.org/forum/no-way-around-consent-a-reply-torubenfeld-on-rape-by-deception. R Kapur, Erotic Justice: Law and the New Politics of Postcolonialism (London, Glasshouse Press, 2005) 36. See Deepak Gulati v State of Haryana (2013) 7 SCC 675; Yedla Srinivasa Rao v State of A.P (2006) 11 SCC 615; Pradeep Kumar Verma v State of Bihar & Anor (2007) AIR SC 3059; Dilip Kumar v State of Bihar (2005) AIR SC 203; Uday v State of Markataka (2003) AIR SC 1639. See discussion in Z Brereton, “Perpetuating Myths of Women as False Complainants in Rape Cases in India: Culture v The Law” (2016) 40(4) International Journal of Comparative and Applied Criminal Justice, http://www.tandfonline.com/doi/full/ 10.1080/01924036.2016.1233442. See commentary in J Rubenfeld, “The riddle of rape by deception and the myth of sexual autonomy” (2013) 122 Yale Law Journal 1372 at 1375. [11.125]

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her”. The accused was in fact Palestinian. 293 Although the ruling was framed in the language of protecting the public from men who lie to procure sex, it is important to note that Arabs in Israel are marginalised, inter-faith relationships are few, and some commentators have expressed scepticism over whether the same principle would have been developed had the test case been brought against a Jewish man who misrepresented himself as a Muslim. 294 Negating consent by intoxication [11.130] As noted at [11.100], intoxication by drugs or alcohol may provide grounds for negating or vitiating consent. However, there remain some significant challenges in applying these provisions. In 2003, Emily Finch and Vanessa Munro undertook a useful review of the legal policy issues raised by the intoxicated consent, albeit in the context of English law. They suggest three possible modes of drug-assisted rape, based the effects of Rohypnol and gamma hydroxybutyrate (GHB): (1) The victim becomes unconscious and remains so during intercourse.

(2)

The victim is unable to resist or object while intercourse occurs, due to the sedative-hypnotic effects of the drugs and the subsequent disassociation between mind and body. (3) The victim is induced by the drugs to be a willing participant in sexual activity that he or she would usually refuse or find repugnant. 295 In the first case, the crime of rape is clear; in the second, it is likely to be determined according to whether the accused knew the victim had ingested drugs; and, in the third, it is unlikely that there will be a conviction for rape. Finch and Munro argued that the current law does not adequately deal with the issues engendered by intoxicated consent: “The law struggles to deal with the uncertainties inherent in establishing when a person is ‘too intoxicated’ to consent [and] hence adopts an extreme position based upon insentience. Proposals for reform have sought either to maintain this position … or have taken a diametrically opposite approach that views any level of intoxication as having the potential to invalidate consent … but both positions are guilty of failing to engage with the complex middle ground that bridges the gap between sobriety and stupefaction in infinitesimal degrees.” 296

The authors make the important point that alcohol has similar effects to Rohypnol and GHB, and that there is evidence to suggest that the misuse of alcohol in relation to sexual offences is very widespread. 297 By focusing attention on how the intoxicant affects the capacity and quality of the victim’s decision-making, rather than on the type of intoxicant used, the authors conclude that “there seems to be little distinction between prototypical drug-assisted rape and 293

294

295 296 297

J Rubenfeld, “The riddle of rape by deception and the myth of sexual autonomy” (2013) 122 Yale Law Journal 1372 at 1375; State of Israel v Kashur (July 19, 2010—Jerusalem District Court) CrimC (Jer) 561/08 at [13]. “Arab Guilty of Rape after Consensual Sex with Jew”. The Guardian (online), 20 July 2010, https:// www.theguardian.com/world/2010/jul/21/arab-guilty-rape-consensual-sex-jew. The law in Israel criminalises a wider range of deceptions. In Saliman v State of Israel (17 August 2008) Israel’s Supreme Court upheld the conviction of a Jewish man who fraudulently held himself out to be a housing official who could procure apartments for women in exchange for sex: see J Rubenfeld, “The Riddle of Rape by Deception and the Myth of Sexual Autonomy” (2013) 122 Yale Law Journal 1372 at 1375. E Finch and V Munro, “Intoxicated Consent and the Boundaries of Drug-assisted Rape” [2003] Criminal Law Review 773 at 776. E Finch and V Munro, “Intoxicated Consent and the Boundaries of Drug-assisted Rape” [2003] Criminal Law Review 773 at 786 (references omitted). E Finch and V Munro, “Intoxicated Consent and the Boundaries of Drug-assisted Rape” [2003] Criminal Law Review 773 at 779. [11.130]

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the more commonplace scenario” of spiking drinks with alcohol. 298 That said, the spiking of drinks with alcohol does not seem to attract the same degree of community condemnation or concern as the use of “date rape” drugs. This might be related to the distinct legal status of (illicit) drugs and (licit) alcohol, as well as the fact, that for many males, plying women with alcohol is a socially acceptable means of encouraging sexual disinhibition and “procuring” consent. The authors suggest that the moral and legal line should be drawn on the basis of the accused’s contribution to the victim’s intoxicated state. A better approach, they propose, is that “the issue must be determined by reference to the victim’s state of mind at the time of the intercourse”. 299 Finch and Munro have also explored the impact of the 2003 reforms of sexual offences on this issue in the United Kingdom. 300 Section 75(2)(f) of the Sexual Offences Act 2003 (UK) created the following evidential presumption against consent if sexual intercourse occurs in circumstances whereby: “any person had administered to or caused to be taken by the complainant, without the complainant’s consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.”

The presumption of non-consent may, however, be rebutted by the defence: see [11.105].

Law reform perspectives Drink-Spiking and Drug-Assisted Rape: Crimes of the “Noughties” [11.135] Recent reform in Australia has responded to increasing community concern—indeed a moral panic—about the growing prevalence of drink-spiking. It also responded to the call in 2007 by the Model Criminal Law Officers’ Committee (MCLOC) that each jurisdiction review its criminal laws in relation to drink-spiking. 301 While the concern has been directed to the spiking of drinks with drugs, the conduct more broadly covers the field related to contamination of goods, the criminalisation of which is examined in Chapter 13, [13.15]. The effect of drugs and alcohol on a person’s capacity to consent to sex, as well as the quality of that consent, have become a matter of growing concern, due to media attention on the increasing use of “date rape” drugs, such as Rohypnol and GHB. The Australian Institute of Criminology (AIC) conducted a national study on drink-spiking in Australia in 2004. 302 The study’s report defines drink-spiking as the act of adding substances to a drink without the knowledge or consent of the person consuming it. It estimated that over a 12-month period (2002–2003), there were approximately 1,000–1,300 drink-spiking

298 299 300 301

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E Finch and V Munro, “Intoxicated Consent and the Boundaries of Drug-assisted Rape” [2003] Criminal Law Review 773 at 779. E Finch and V Munro, “Intoxicated Consent and the Boundaries of Drug-assisted Rape” [2003] Criminal Law Review 773 at 777. E Finch and V Munro, “The Sexual Offences Act 2003: Intoxicated Consent and Drug Assisted Rape Revisited” [2004] Criminal Law Review 789. MCLOC, Drink and Food Spiking, Discussion Paper (2006); Final Report (2007) p 41. MCLOC replaced the Model Criminal Code Officers’ Committee (MCCOC) in 2006, to reflect the wider role in reviewing the criminal law performed by the committee, http://www.scag.gov.au/lawlink/scag/ll_scag.nsf/vwFiles/Food_and_ Drink_Spiking.pdf/$file/Food_and_Drink_Spiking.pdf (cited 15 May 2010). N Taylor, J Prichard and K Charlton, National Project on Drink Spiking: Investigating the Nature and Extent of Drink Spiking in Australia (Canberra: Australian Institute of Criminology, November 2004). [11.135]

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incidents involving sexual assault. Of these, less than 15% were reported to the police. It also found that four out of five victims of drink-spiking were female and the majority were under 34 years of age. The AIC study was influential on the MCLOC’s examination of the subject. The MCLOC’s own report distinguished between the following categories of behaviour: (a) drink-spiking resulting in death; (b) drink-spiking causing, or with intent to cause, injury or harm; (c) drink-spiking with intent to commit a sexual offence, (d) drink-spiking to commit an offence, (e) drink-spiking with drugs (other than alcohol) without lawful excuse, and (f) drink-spiking with alcohol for a prank. 303 After reviewing the laws in each jurisdiction, the MCLOC came to the conclusion that, for most of the categories of behaviour listed above, there is no gap in the criminal law. For that reason, the MCLOC was, however, opposed to the idea of a single “drink-spiking” offence covering the whole spectrum of possible situations. It cautioned against the tendency to enact narrow offences in the following terms: It is not good social policy to end up with criminal legislation which resembles the complex mess that resulted in the consolidations of the early to mid nineteenth century. It is not good policy to recommend the enactment of a specific criminal offence merely “to raise the profile of the issue in the community”. The Committee has found that there appears to be no gap in the criminal law as it applies to very serious offences involving drink-spiking. There is, for example, no sensible reason why the existing law on homicide cannot deal satisfactorily with those cases in which drink-spiking ends in death. 304

Accordingly, spiking cases where the victim has been incapacitated or severely intoxicated by a drug or alcohol could be prosecuted as sexual assault or rape, with the prosecution relying on the deeming provisions relating to sexual intercourse with a person who is or becomes unconscious, or is so affected by alcohol or another drug as to be incapable of consenting: see [11.130]. The main perceived gap in the law related to a basic offence of spiking, which would apply irrespective of the ulterior motive of the accused and any harmful consequences that flowed from the spiking. The mere act of spiking is now a discrete crime in all Australian jurisdictions except the Australian Capital Territory and Tasmania. 305 As this section has demonstrated, the reform of the law relating to consent has been driven by a dialogue between the judge-made common law and legislative reforms. Developments in Canada and England demonstrate that the common law is not static and is capable of embracing a wider understanding of (more informed) consent and individual autonomy. The statutory trend towards a positive consent standard, combined with the judicial rejection of

303

304 305

MCLOC, Drink and Food Spiking – Discussion Paper (2006) and Final Report (2007) p 9, http:// www.scag.gov.au/lawlink/scag/ll_scag.nsf/vwFiles/Food_and_Drink_Spiking.pdf/$file/Food_and_Drink_ Spiking.pdf (cited 15 May 2010). MCLOC, Drink and Food Spiking, Final Report (2007) p 41, http://www.scag.gov.au/lawlink/scag/ll_scag.nsf/ vwFiles/Food_and_Drink_Spiking.pdf/$file/Food_and_Drink_Spiking.pdf (cited 15 May 2010). Criminal Code (NT), s 176A; Crimes Act 1900 (NSW), s 38A; Criminal Code (Qld), s 316A; Criminal Law Consolidation Act 1935 (SA), s 32C; Summary Offences Act 1966 (Vic), s 41H; Criminal Code (WA), s 305A. [11.135]

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doctrines such as implied or imputed consent, has significantly modernised the law and provides the legal means for addressing outdated assumptions and dangerous myths about female seduction and male sexuality.

Fault Elements for Rape and Sexual Assault [11.140] The principle of contemporaneity or correspondence suggests that physical and fault elements must be correlated. As “sexual conduct without consent” constitutes the relevant physical conduct for the purpose of rape or sexual assault, the fault element (intention, knowledge or recklessness) must relate to the sexual conduct and the lack of consent. In the majority of cases, there is no controversy over whether the accused intended to have sexual intercourse. As the Model Criminal Code Officers Committee (MCCOC) noted, the more controversial issue is whether the accused had the necessary fault with respect to lack of consent. 306

Belief in consent: the subjective versus objective approach [11.145] The fault element for the common law offence of rape is satisfied by an “intention to have sexual intercourse without consent”. This principle was established in DPP v Morgan, 307 where the House of Lords clarified that this intent will be satisfied by either knowledge that the victim is not consenting or by recklessness as to consent. The statutory formulations of rape adopted in the Australian Capital Territory, South Australia and Victoria (until 2016) have followed the common law. 308 By contrast, the Code States of the Northern Territory, Queensland, Tasmania and Western Australia have been less faithful to the principle of correspondence and “subjective” mental states. 309 In interpreting rape under their respective Codes, the courts have held that the mental state for rape is satisfied by a mere intention to have sexual intercourse and the prosecution is not required to prove knowledge of the victim’s lack of consent to intercourse or recklessness as to whether or not the victim was consenting. Rather, the accused may raise mistaken belief in consent as a “defence”. As a defence, the “belief in consent” must be both honest and reasonable. 310 (Until 2005, a different approach was taken in the Northern Territory. In DPP (NT) v WJI, 311 the majority of the High Court held that the relevant “act” to which the general fault provisions in the Code applied was not confined to the act of “sexual intercourse” as in other Code States, but extended to “sexual intercourse without consent”. Although the court interpreted the Northern Territory position as congruent with the common law, it emphasised that the decision turned on the interpretation of the particular sections in the Code, “which, in some respects, is unique”. 312 See further discussion below.) The different approaches to the fault element for sexual offences in the Code and common law jurisdictions may be understood in terms of the traditional controversy between “subjective” and “objective” liability. The common law approach demonstrates a high degree of fidelity to the principle of correspondence and the primacy of subjective mental states. In 306 307 308 309 310 311 312

MCCOC, Chapter 5—Sexual Offences Against the Person, Report (1999) p 67. DPP v Morgan [1976] AC 182. Crimes Act 1900 (ACT), s 54(1); Criminal Law Consolidation Act 1935 (SA), s 48(1); Crimes Act 1958 (Vic), s 38. Criminal Code (Qld), s 349; Criminal Code (Tas), s 185; Criminal Code (WA), s 325. R v Daniels (1989) 1 WAR 435. DPP (NT) v WJI (2004) 210 ALR 276. DPP (NT) v WJI (2004) 210 ALR 276 at 278.

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DPP v Morgan, 313 the House of Lords considered the legal effect of a mistaken belief by an accused that the victim was consenting. Morgan, a senior member of the Royal Air Force, invited three junior colleagues home to have sexual intercourse with his wife. On her evidence, she was woken and frogmarched into another room where she was restrained and forced to have sexual intercourse with each of the men. The three younger men were charged with rape and Morgan was charged with aiding and abetting these rapes. The three younger men claimed at trial that Morgan had urged them to ignore any protests or resistance, saying his wife was “kinky” and that these protests were merely simulations designed to increase sexual pleasure. The trial judge directed the jury that the accused would not be guilty if they honestly believed that the woman was consenting and that the belief was reasonably held. The majority of the House of Lords held this to be a misdirection. Nevertheless, the House of Lords dismissed the appeal on the ground that had the jury been properly directed, it was unlikely that there would have been a different verdict. The majority affirmed that the jury should have been directed that a man is not guilty of rape where he had sexual intercourse in the mistaken belief, however unreasonable, that the woman was consenting. The reasoning applied by the majority has been widely criticised. It was heralded by the English press as a “Rapist’s Charter”, precipitating a major review into the laws governing sexual offences. 314 The split decision in Morgan (5:3) revealed that there was serious uncertainty about the scope of the existing law and its future direction. Before Morgan, it was well established that mistake could be raised as a defence, but only where the mistake was reasonable: “An honest and reasonable belief in the existence of circumstances, which if true, would make the act of the prisoner an innocent act, has always been held to be a good defence.” 315 Indeed, this position at common law was reflected in the Australian Codes enacted in the 19th century. The majority in Morgan held that the Tolson defence had no application to these facts. Mistake was not a “defence” for rape, strictly speaking. Rather, mistake simply provided an evidential foundation for raising doubt over whether the accused possessed the requisite mental state. In cases of rape, the prosecution had to prove beyond reasonable doubt that the accused believed the other person was not consenting or was reckless as to consent. Since rape required the accused to either know or be reckless as to whether the woman was consenting, as a matter of “inexorable logic”, a mistaken belief in consent (however unreasonable) must negate liability for rape. 316 The principle identified in Morgan had previously been applied to the offence of rape in South Australia and Victoria without the media and political controversy that had ensued in England. 317 Morgan was subsequently affirmed as a correct statement of the common law in New South Wales in R v McEwan. 318 Moreover, Morgan has been approved by the High Court as a correct statement of law in relation to the effect of mistake for crimes requiring proof of a subjective mental state. 319 By contrast, the equivalent offences of rape and sexual assault in the Code jurisdictions of Queensland, Tasmania and Western Australia do not require proof of knowledge or recklessness as to the victim’s lack of consent: see Table 1. Consequently, the principle in Morgan has been held to have no application. In these Code jurisdictions, where the accused’s 313 314 315 316 317 318 319

DPP v Morgan [1976] AC 182. J Temkin, Rape and the Legal Process (London: Sweet and Maxwell, 1987) pp 79–82. R v Tolson (1889) 23 QBD 168 at 181 per Cave J. DPP v Morgan [1976] AC 182 at 214. R v Brown [1975] 10 SASR 139; R v Flannery [1969] VR 31; R v Maes [1975] VR 541. R v McEwan [1979] 2 NSWLR 926. He Kaw Teh v The Queen (1985) 157 CLR 523 at 592 per Dawson J. [11.145]

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belief in consent is raised as a defence, the Tolson principle applies and the mistake must be both honest and reasonable. In determining whether the mistake is reasonable, the courts have encouraged reference to the “reasonable person” test. In Daniels v The Queen, the Supreme Court of Western Australia (Criminal Court of Appeal) held that: “whether it was a reasonable mistake depended on whether an ordinary and reasonable man [or woman] would have made it in the circumstances which the jury found to have existed.” 320

The reasonable person is presumed to be sober and if the accused has “that belief [in consent] by reason of his [or her] state of intoxication at the time, it does not avail him [or her] if a reasonable man [or woman] would not have been mistaken.” 321

Until its amendment in 2005, the Northern Territory Code was interpreted consistently with the principle in Morgan. In DPP (NT) v WJI, the accused was charged under the old s 192(3) of the Criminal Code (NT) with sexual intercourse without consent. 322 The trial judge directed that the accused had to have intended to have sexual intercourse without consent, and that there is no such intention if the accused has a mistaken belief in consent. There was also an additional direction that the mistake need not be based on reasonable grounds in order to acquit. Although the subjective mental state of the accused was not an explicit element of the offence in s 192(3), the majority of the High Court (Hayne J in dissent) upheld the trial judge’s directions. Gleeson CJ, Kirby, Gummow and Heydon JJ in their joint judgment read s 192(3) together with s 31(1) to find that the state of mind of the accused was an element of the offence, imported from s 31. By contrast, Hayne J, in his dissent, remained faithful to the Code interpretation adopted in other Code jurisdictions where the mental state of the accused is not relevant, and the Tolson defence of honest and reasonable mistake is available. In his judgment, Kirby J commented that as the common law approach was the “established approach … of the Northern Territory courts to the operation of the NT code … it is more reasonable than otherwise to infer that [it] was deemed acceptable to the legislature.” 323 In direct response to this High Court decision, and citing Kirby J’s obiter dicta in the second reading speech, the Northern Territory Parliament enacted the Criminal Code Amendment (Criminal Responsibility Reform) Act (NT) introducing a new Pt IIAA outlining “general principles of criminal responsibility” and introducing a fault element into s 192 of the code. Not wanting to have “lower standards of criminal responsibility than other jurisdictions”, s 192 now sets out that “a person who has sexual intercourse with… another person, and who knows about or is reckless as to the lack of consent, is guilty of a crime…A defence of mistake as to consent will still be available; however, unlike the present situation, such a mistake must be a reasonable one”. 324 The principle in Morgan has not stood unchallenged in common law jurisdictions. As Table 1 notes, New South Wales, South Australia and Victoria have significantly amended the fault element for sexual offences, essentially adopting a “middle ground” between subjective 320 321 322

323 324

Daniels v The Queen (1989) 1 WAR 435 at 445. Daniels v The Queen (1989) 1 WAR 435 at 445. Although consistency in the interpretation of the Codes is preferred, the Northern Territory Criminal Code has been observed to be unique and different from other Criminal Codes: Charlie v The Queen (1999) 199 CLR 387 at 393 per Kirby J; DPP (NT) v WJI (2004) 210 ALR 276 at [2] per Gleeson CJ, at [88] per Kirby J. On the approach to interpretation of Codes, see, generally, Chapter 2, [2.15]ff. DPP (NT) v WJI (2004) 210 ALR 276 at [97] per Kirby J. Northern Territory, Parliamentary Debates, Legislative Assembly, 30th June 2005 (P Toyne, Attorney-General, Minister for Justice); See Criminal Code (NT), s 192.

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and objective fault standards. 325 In New South Wales, s 61HA(3) of the Crimes Act 1900 (NSW) broadened the definition of knowledge to include recklessness and absence of reasonable belief in consent: Section 61HA Knowledge about consent … (3) A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if: (a) the person knows that the other person does not consent to the sexual intercourse, or (b) the person is reckless as to whether the other person consents to the sexual intercourse, or (c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse.

For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case: (d) including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but (e) not including any self-induced intoxication of the person.

In introducing the above reforms, the then New South Wales Attorney-General, The Hon John Hatzistergos MLC, said the changes reflected the need to bring about “both a cultural shift in the response to victims of sexual assault by the community and by key participants within the criminal justice system”. 326 In justifying the move to include an objective fault element, the Attorney-General observed: The law does not adequately protect victims of sexual assault when the offender has genuine but distorted views about appropriate sexual conduct. The subjective test is outdated [and] reflects archaic views about sexual activity. It fails to ensure a reasonable standard of care is taken to ascertain [whether] a person is consenting before embarking on potentially damaging behaviour. An objective test is required to ensure the jury applies its common sense regarding current community standards. 327

A similar position was taken in South Australia, where proof of knowledge or reckless indifference is required, the latter fault element being defined as follows: 47—Reckless indifference For the purposes of this Division, a person is recklessly indifferent to the fact that another person does not consent to an act, or has withdrawn consent to an act, if he or she— (a) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but decides to proceed regardless of that possibility; or (b) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but fails to take reasonable steps to ascertain whether the other person does in fact consent, or has in fact withdrawn consent, to the act before deciding to proceed; or (c) does not give any thought as to whether or not the other person is consenting to the act, or has withdrawn consent to the act before deciding to proceed.

325 326 327

Crimes Amendment (Consent—Sexual Assault Offences) Act 2007 (NSW). New South Wales Legislative Council, Hansard, 7 November 2007, p 3584 (J Hatzistergos, Attorney-General, Minister for Justice). New South Wales Legislative Council, Hansard, 7 November 2007, p 3584 (J Hatzistergos, Attorney-General, Minister for Justice). [11.145]

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The offence of rape under section 38 of the Crimes Act 1958 (Vic) requires sexual penetration to occur (a) intentionally, (b) without B’s consent; and (c) when A does not reasonably believe that B consents. These reforms reflect the position that the principle of subjectivism, while fundamental, must give way on policy grounds. In her monograph on rape law, Jennifer Temkin framed the issue in terms of the following question: “The ultimate question which arises in this area of law is whether a commitment to subjectivism should override all other considerations regardless of circumstances or social cost. It is suggested that where a woman demonstrates her lack of consent, it is no hardship for a man to enquire whether her consent is present and that as a matter of policy the law should demand that he do so.” 328

Lord Simon, dissenting in Morgan, also alluded to this line of argument: “It can be argued with force that it is only fair to the woman and not in the least unfair to the man that he take care to ascertain that she is consenting to the intercourse and be at risk of prosecution if he fails to take such care.” 329

Shortly after Morgan, Celia Wells challenged the common law’s fetish for subjectivity. 330 Rather than view subjectivism as the default standard for fault, Wells proposed a framework of culpability for rape which encompasses both subjective and objective standards, which, in many ways, represents the model applied in New South Wales, South Australia and Victoria. It has been further argued that an objective standard is needed to protect women from those men who hold distorted views about sexual behaviour: “The subjective model reinforces male constructions of sexual relations which assumed women derive erotic pleasure from having their will overcome by a masterful male”. 331 This model left the way open for an accused to rely on notions such as “no” really means “yes” or that women enjoy being seduced and ravished. This viewpoint was relied upon by the accused in Morgan, who claimed they believed the victim was “kinky” and that her struggle and scream for help was a form of arousal. Also, it is argued that an accused can escape conviction simply by asserting an honest belief that there was consent. 332 It will sometimes be difficult for the prosecution to refute such an assertion, regardless of how unreasonable that belief is. It should be recalled that, once some evidence of a mistaken belief is adduced, it is incumbent upon the prosecution to disprove it beyond reasonable doubt. Rape convictions are therefore made more difficult to obtain due to the onerous task of disproving a wholly subjective fault element. 333 As Jennifer Temkin observed: “Whilst a requirement that mistake be reasonable might be quite inappropriate and unjust when applied to certain offences, it is perfectly proper when applied to rape. This is because it is possible for a man to ascertain whether a woman is consenting or not with minimal effort. She is there next to

328

329 330 331 332 333

J Temkin, Rape and the Legal Process (London: Sweet and Maxwell, 1987) p 84; J Temkin, “The Limits of Reckless Rape” [1983] Criminal Law Review 5 at 15–16, referring to T Pickard, “Culpable Mistakes and Rape: Relating Mens Rea to the Crime” (1980) University of Toronto Law Journal 75. DPP (UK) v Morgan [1976] AC 182 at 203. C Wells, “Swatting the Subjectivist Bug” [1982] Criminal Law Review 209. K Warner, “Sentencing for Rape” in P Esteal (ed), Balancing the Scales (Sydney: Federation Press, 1998). MCCOC, Chapter 5—Sexual Offences Against the Person (1999) p 81. N Naffin, An Inquiry into the Substantive Law of Rape (Adelaide: Department of the Premier and Cabinet (SA), 1984) at 26.

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him. He has only to ask. Since to have sexual intercourse without her consent is to do her great harm, it is not unjust for the law to require that he carefully inquire into consent and, it may be added, process that information carefully as well.” 334

Those who support the current subjective model argue that having a subjective fault element accords with the fundamental principles of criminal responsibility. An objective test would mean that punishment would be imposed not for what an accused actually believed but for what he or she should have thought or believed, according to some standard of reasonableness. However, the Model Criminal Code has already recognised that an accused person possesses the requisite fault element to have non-consensual intercourse when they have failed to turn their mind to the issue at all. This has been most eloquently justified by Justice Kirby in Tolmie, 335 then sitting as the President of the New South Wales Court of Criminal Appeal: “The criminal law, in its important function of controlling behaviour, should promote standards of acceptable consensual sexual behaviour of the community. Lack of the merest advertence to consent in the case of sexual intercourse is so reckless that it is also the criminal law’s business. In this, the law does no more than reflect the community’s outrage at the suffering inflicted on [victims] of sexual violence.” 336

Proposals to reverse Morgan are often rejected on the basis that a serious crime, such as rape, should not be made an offence of strict liability or negligence. Such reform would be an exception to the general principle of the criminal law that serious offences require proof of intention or recklessness. 337 Of course, these objections are persuasive only if the idea of “true fault” in the criminal law is conceived in purely subjective terms. Both as an explanatory and normative principle, subjective fault in the criminal law has never been the only basis for criminal responsibility: see Chapter 3, [3.170] – [3.175]. As we shall explore below, there are signs that some judges and law reformers are prepared to adopt an objective fault standard based on culpable inadvertence, where the accused has failed to advert to the question of consent completely. Merely moving to an objective standard for judging the accused’s mistaken belief in consent may not resolve the problems of Morgan. Not all feminists have embraced the “reasonable person” or objective “reasonableness” standards as the appropriate fault standard for rape. Jocelyne Scutt doubts whether the introduction of a reasonableness test would advance the situation for women at all, for the simple reason that “what a woman actually believes is reasonable, and what the law has traditionally regarded as reasonable are quite different”. 338 Drawing parallels with the difficulties of an objective standard for the defence of provocation, doubts have been expressed whether the reasonable person could play any significant role in shaping male attitudes toward female sexual autonomy and protecting a woman’s right to 334

335 336 337

338

J Temkin, “The Limits of Reckless Rape” [1983] Criminal Law Review 5 at 15–16, referring to T Pickard, “Culpable Mistakes and Rape: Relating Mens Rea to the Crime” (1980) University of Toronto Law Journal 75. R v Tolmie (1995) 37 NSWLR 660. R v Tolmie (1995) 37 NSWLR 660 at 672 per Kirby P. See Heilbron Committee, Report of the Advisory Group on the Law of Rape, (London: HMSO, Cmnd 6352, 1975); Criminal Law Revision Committee, Sexual Offences, Fifteenth Report (1984); Law Reform Commission of Victoria, Rape: Reform of Law and Procedure, Report No 43 (1991). J Scutt, Women and The Law (Sydney: Law Book Company, 1990) p 479. Catharine MacKinnon has doubted whether using subjective or objective perspectives for determining fault makes any significant difference: “Measuring consent from the socially reasonable, meaning objective man’s, point of view reproduces the same problem [as measuring consent from the assailant’s point of view] under a more elevated label”: Toward A Feminist Theory of the State (Cambridge, MA: Harvard University Press, 1989) p 181. [11.145]

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refuse to engage in sexual activity. 339 In applying a reasonableness test, the jury must consider whether a reasonable person in the position of the accused would have believed the victim was consenting. In those jurisdictions that apply a reasonableness test, juries have been directed to give this hypothetical person the personal attributes and characteristics of the accused that are capable of affecting his or her appreciation or perception of the circumstances in which he or she found him or herself. 340 This includes matters over which the accused has no control: for example, age, gender, ethnicity and any physical, intellectual and other disabilities. 341 A person’s values, whether they are informed by cultural, religious or other influences are not included. 342 Ultimately, it was concern that objective standards of fault would weaken perceptions of rape as a serious crime that led to its rejection by the MCCOC. 343 Even the less radical strategy of imposing a “reasonableness” standard to an accused’s belief in the victim’s consent might be less effective than presumed. This inevitably leads the judge to direct the minds of the jury to the “reasonableness” of the victim’s conduct, which provides considerable scope for the jury to apply its own standards of morality (or, indeed, the judge or lawyers) to evaluate the “contributory” behaviour of the victim, including the discriminatory rape myths considered at [11.95]. An objective standard would further maintain the legal focus, during the trial, on the victim’s conduct rather than the accused’s blameworthy conduct. Nicola Lacey has questioned the practical significance of introducing a “reasonableness-based standard of belief in consent” in the prevailing sexual culture. She stated that unless it was reinforced by other (non-legal) policies, such as professional legal education, it might not affect a shift in these cultural attitudes. 344 Restricting the mistaken belief in consent defence [11.150] An alternative compromise approach that cuts across the “subjective versus objective” debate is to retain the subjective fault standard but impose some restrictions as to when mistaken belief in consent may be raised by the accused. To some extent this middle-ground was already achieved by the common law approach in Morgan—the standard direction typically encouraged the jury to take a “hard look” at the evidence before accepting a claim of mistaken belief in consent. The first part of the direction instructs the jury on the central importance of a subjective mental state for criminal liability and that, as a matter of law, a belief in consent, however unreasonable, must lead to an acquittal. However, this direction is then qualified by the further instruction that, as a matter of evidence, the less reasonable the mistake is, the less likely it is that the accused actually held that belief. Even Lord Hailsham LC in Morgan recognised that the presence or absence of reasonable grounds for the accused’s belief in consent would be relevant evidence in determining the likelihood that the accused honestly believed the woman was consenting. 345 Several jurisdictions now

339 340 341 342 343 344 345

S Bronitt, “Rape and Lack of Consent” (1992) 16 Criminal Law Journal 289 at 306. R v Conlon (1993) 69 A Crim R 92; R v Mrzljak [2005] 1 Qld R 308. R v Mrzljak [2005] 1 Qld R 308. Aubertin v Western Australia (2006) 167 A Crim 1. MCCOC, Chapter 5—Sexual Offences Against the Person, Report (1999) p 75. N Lacey, “Beset by Boundaries: The Home Office Review of Sexual Offences” [2001] Criminal Law Review 3 at 12. DPP v Morgan [1976] AC 182 at 214.

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require judges to give a direction in these terms, 346 and the MCCOC has recommended that such a mandatory jury direction be given in a relevant case. 347 A further judicial qualification which is often incorporated into the standard direction is the requirement that the accused’s mistake must be “honest” or “genuine”. This qualification is logically redundant. Lord Edmund-Davies in Morgan described “honest” as a “superfluous, but convenient adjective”. 348 A person is either mistaken or not mistaken. A “dishonest mistake”, in relation to consent, is not a mistake; it is a lie. While simultaneously paying lip service to both individual justice and the central importance of subjective mental states, the judicial stress on honesty and genuine belief in this direction may be viewed as encouragement to the jury to apply a sceptical eye as regards claims of mistaken belief in consent. It is an example of “raising the judicial eyebrow”, or, as Alan Norrie might say, an instance of the law “having one’s subjectivist cake and eating it”. 349 A more overt restriction on the accused’s mistaken belief in consent was adopted in Canada in 1992. Bill C-49 did not dispense with the subjective fault element; however, it provided that the mistake defence is not available where “the accused did not take reasonable steps in the circumstances known to the accused at the time, to ascertain that the complainant was consenting”. 350 As we shall see below, this has been incorporated into the fault elements in both Australia and the United Kingdom. The Code also excludes the defence where the accused’s mistake arises from self-induced intoxication, recklessness or wilful blindness. 351 The Supreme Court of Canada has held that the Charter of Rights and Freedoms requires subjective foresight as a minimum fault standard for serious offences, like murder and theft, leading some commentators to doubt the constitutionality of these developments. 352 Charter challenges, however, have not invalidated these reforms. Emphasising the importance of the right to equality under Charter of Rights and Freedomss 15 of the Charter, the Supreme Court held that claims of mistaken belief in consent must have a real factual basis, and that courts were under a duty to filter out specious defences that have “historically victimized women and undermined their equal right to bodily integrity and human dignity”. 353

346

347 348 349 350 351

352 353

See Jury Directions Act 2015 (Vic), s 47(3); Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 73; Criminal Code (Can), s 265(4). In the United Kingdom, it is presumed that the accused did not reasonably believe that the complainant consented unless the accused adduced sufficient evidence to discharge their evidential burden of proof: Sexual Offences Act 2003 (UK), s 75. Unless the accused satisfies this burden, the jury will not be allowed to consider whether the accused did have a reasonable belief in consent. MCCOC, Chapter 5—Sexual Offences Against the Person, Report (1999) cl 5.2.43, p 263. DPP v Morgan [1976] AC 182 at 227. A Norrie, Crime, Reason and History (2nd ed, London: LexisNexis Butterworths, 2001) p 53. Criminal Code (Can), s 273.2. This dramatic departure from the common law, as expounded in Morgan, had previously been endorsed by the Supreme Court of Canada in Pappajohn v The Queen (1980) 52 CCC (2d) 481, which had endorsed an “air of reality” threshold for defence claims of mistaken belief in consent. See J Temkin, Rape and the Legal Process (2nd ed, Oxford: Oxford University Press, 2002) p 132. For a useful review of the Canadian case law, see J Gans, “When Should the Jury be Directed on the Mental Element of Rape” (1996) 20 Criminal Law Journal 247. D Stuart, “Sexual Assault: Substantive Issues Before and After Bill C-49” [1993] 35 Criminal Law Quarterly 241 at 259. See R v Park [1995] 2 SCR 836 at [38] per L’Heureux-Dube J. For a useful summary of the Canadian developments in this area, and the Charter arguments, see J Temkin, Rape and the Legal Process (2nd ed, Oxford: Oxford University Press, 2002) pp 131–136. [11.150]

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In 2007, Victoria amended its legislation, largely following the Canadian model of mistaken belief in consent. 354 The reforms implemented the 2004 recommendations of the Victorian Law Reform Commission (VLRC). 355 The VLRC found that the exclusively subjective test for the mental element of rape undermined the communicative model of consent introduced into the Crimes Act 1958 (Vic): see [11.95]. 356 It recommended that an accused must produce some evidence that he or she had an honest belief that the complainant consented, and that the trial judge must be satisfied of the sufficiency of this evidence before the defence of “honest but mistaken belief in consent” can be left to the jury. 357 As a result, s 37AA of the Crimes Act 1958 (Vic) required that, when assessing whether or not an accused had a mistaken belief in consent, the jury must be told to consider: (a) any evidence of that belief; (b) whether that belief was reasonable in all the circumstances having regard to— (i) in the case of a proceeding in which the jury finds that a circumstance specified in section 36 [negating consent] exists in relation to the complainant, whether the accused was aware that that circumstance existed in relation to the complainant; and (ii) whether the accused took any steps to ascertain whether the complainant was consenting or might not be consenting, and if so, the nature of those steps; and (iii) any other relevant matters.

Section 37AA has since been repealed, and s 36A Crimes Act 1958 (Vic) now states that (1) “[w]hether or not a person reasonably believes that another person is consenting … depends on the circumstances”, which include, (2) “any steps that the person has taken to find out whether the other person consents”. The current jury directions on “reasonable belief” are found in s 47(3) of the Jury Directions Act 2015 (Vic): For the purposes of subsection (2), the prosecution or defence counsel may request that the trial judge— (a) direct the jury that if the jury concludes that the accused knew or believed that a circumstance referred to in section 36 of the Crimes Act 1958 (Vic) existed in relation to a person, that knowledge or belief is enough to show that the accused did not reasonably believe that the person was consenting to the act; or (b) direct the jury that in determining whether the accused who was intoxicated had a reasonable belief at any time— (i) if the intoxication was self-induced, regard must be had to the standard of a reasonable person who is not intoxicated and who is otherwise in the same circumstances as the accused at the relevant time; and (ii) if the intoxication is not self-induced, regard must be had to the standard of a reasonable person intoxicated to the same extent as the accused and who is in the same circumstances as the accused at the relevant time; or (c) direct the jury that—

354 355 356 357

Crimes Act 1958 (Vic), s 37AA. VLRC, Sexual Offences, Final Report (2004). VLRC, Sexual Offences, Final Report (2004) p 417. VLRC, Sexual Offences, Final Report (2004) p 422. This new expanded fault element was a significant reversal of the earlier position of the LRCV in 1991, that favoured the retention of a subjective mental element for rape: LRCV, Rape: Reform of Law and Procedure, Report No 43 (1991) p 573.

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a belief in consent based solely on a general assumption about the circumstances in which people consent to a sexual act (whether or not that assumption is informed by any particular culture, religion or other influence) is not a reasonable belief; and a belief in consent based on a combination of matters including such a general assumption is not a reasonable belief to the extent that it is based on such an assumption; or (d) direct the jury that in determining whether the accused had a reasonable belief in consent, the jury must consider what the community would reasonably expect of the accused in the circumstances in forming a reasonable belief in consent; or (e) direct the jury that in determining whether the accused had a reasonable belief in consent, the jury may take into account any personal attribute, characteristic or circumstance of the accused.

The Act outlines situations where there may be a reason “for not giving the direction set out” above, including where the attribute did not affect the accused’s understanding of the circumstances, was something the accused was able to control, or was a subjective value or bias. As an example of an unreasonable “general assumption”, the Attorney-General stated that “stereotypical opinions about consent and sex (such as the assumption that women who wear provocative clothing are consenting to sexual activity) are not sufficient to establish reasonableness”. 358 The above provisions were also enacted to combat confusion caused by the operation of the mandatory jury directions around the “reasonableness” of the mistaken belief. The Victorian Court of Appeal repeatedly cautioned that these mandatory jury directions would need to be balanced by further directions to the effect that even if a belief is found to be unreasonable, the jury must acquit if the prosecution has not proved beyond reasonable doubt that the unreasonable belief was genuinely held. Without the additional direction, it was argued, there was significant danger the jury would misinterpret the provision, believing it to include an objective element. 359 Similarly, in the United Kingdom, following an extensive review of sexual offences by the Home Office, 360 the mental element for rape has been modified to include an objective qualification of the belief in non-consent. Section 1 of the Sexual Offences Act 2003 (UK) provides: Section 1 Rape (1) A person (A) commits an offence if— (a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis, (b) B does not consent to the penetration, (c) A does not reasonably believe that B consents. (2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents. 361

358

359

360 361

Victoria, Parliamentary Debates, Legislative Assembly, 9 June 2016, 2442 (Martin Pakula): http:// www.parliament.vic.gov.au/images/stories/daily-hansard/Assembly_2016/Assembly_Daily_Extract_ Thursday_9_June_2016_from_Book_8.pdf. R v Munday (2003) 7 VR 432; R v Zilm [2006] VSCA 72; R v Gose [2009] VSCA 66. Indeed, prior to the 2007 amendment, the misuse of the provision resulted in a number of mistrials: see R v Yusurf [2005] VSCA 69, in which the Court of Appeal set aside the defendant’s conviction, essentially because the trial judge had misinterpreted the provisions of the mandatory jury direction; discussed in J Willis, “Legislatively Mandated Jury Directions in Sexual Offences Cases” (2006) 30 Criminal Law Journal 357 at 369. Home Office (UK), Setting the Boundaries: Reforming the Law on Sex Offences (2000). For further discussion of the import of these reforms, see E Finch and V Munro, “The Sexual Offences Act 2003: Intoxicated Consent and Drug Assisted Rape Revisited” [2004] Criminal Law Review 789 at 792. [11.150]

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These reforms in Victoria and the United Kingdom represent a significant retreat from the subjectivist approach in Morgan, where, as a matter of substantive law, the reasonableness of an accused’s belief in consent was irrelevant. Although it is premature to make an assessment of the significance and impact of these legislative amendments, putting on the accused an obligation to ascertain whether or not the other person has freely agreed to sexual activity is a positive step to tackling discriminatory stereotypes of female sexuality in the law, as well as in the wider community. An empirical study of perceptions of the “reasonableness” standard under the Sexual Offences Act 2003 (UK) demonstrated that the barristers were critical of the wording of s 1(1)(c), which required jurors to take into account “all the circumstances” in determining the reasonableness of the belief. This raises concerns about the ease with which jurors can draw upon sexist views under this formulation in assessing reasonableness. 362

Procedural perspectives Unintended Adverse Effects of Mandatory Jury Directions [11.155] The Victorian reforms introduced in 2007 requiring mandatory jury directions

have presented significant challenges for the courts, attracting recent criticism in Worsnop v The Queen, 363 ultimately leading to a High Court challenge in The Queen v Getachew. 364 In Worsnop, the Victorian Court of Appeal held that the mandatory jury directions had not operated as the legislature intended, adding to the complexity of jury instructions and were potentially productive of unfairness to the accused. 365 The fundamental difficulty with the mandatory directions introduced by the 2007 reforms was that they did not fundamentally alter the subjective test for “belief in consent” that, consistent with the common law, applied in Victoria. From a substantive legal perspective, any belief in consent, no matter how objectively unreasonable, is inconsistent with the requirement that the accused be aware of the possibility that there is not consent. The mandatory direction, however, which must be given in cases where a belief in consent is raised by the defence, invited the jury to depart from this position. This conflict is apparent in the Victorian Criminal Charge Book “model” jury instruction on belief in consent: “You might find that the accused believed the complainant was consenting, but still be satisfied, beyond reasonable doubt, that the accused was aware of the possibility that the complainant was not consenting.” The Victorian Court of Appeal, in reviewing this direction in Worsnop, found this to be based on a legal error and quashed the conviction. This decision cast the safety of a large number of rape convictions, based on these flawed directions, into doubt. In 2011, rape convictions were regularly being overturned based on errors in giving jury directions relating to the mental element for rape. 362 363 364 365

700

A Carline and C Gunby, “’How an Ordinary Jury Makes Sense of it is a Mystery’: Barristers’ Perspectives on Rape, Consent and the Sexual Offences Act 2003” (2011) 32 Liverpool Law Review 237 at 248. Worsnop v The Queen (2010) 28 VR 187. The Queen v Getachew [2012] HCA 10. As Maxwell P observed, obiter dicta, in Wilson v The Queen (2011) 33 VR 340 at 2: “[T]he law governing the trial of sexual offences is now so extraordinarily complex as to throw into doubt the expectations on which the system of trial by jury is founded.” See, generally, W Larcombe, “Case Note: Worsnop v The Queen: Subjective Belief in Consent Prevails (Again) in Victoria’s Rape Law” (2011) 35 Melbourne University Law Review 697. [11.155]

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One such appeal, The Queen v Getachew, provided the High Court with the opportunity to review the impact of the 2007 reforms. The accused was charged with rape by sexually penetrating the complainant while she was sleeping. At first instance, the trial judge directed the jury that the prosecution bore the onus of proving that the accused was aware that the complainant was not, or might not have been, consenting. The trial judge directed that rape would be satisfied alternatively if the prosecution could prove that the accused was aware that the complainant was, or might have been, asleep, or unconscious, or so affected by alcohol as to be incapable of freely agreeing, or aware that she might be in one of these states enumerated in s 36. The trial judge directed that since the complainant did not protest when her skirt was pulled up, it was open for the jury on the facts to conclude that the accused believed that the complainant may be asleep, and that this would suffice for the offence of rape. The accused was convicted. The Victorian Court of Appeal, quashing the conviction, affirmed the traditional subjective model of fault, noting that the trial judge must direct that “the prosecution might fail to prove the mental element of the offence of rape even though a belief [in the] consent [of the complainant] on the part of the accused was unreasonable because the accused was aware that the complainant might be asleep”. The High Court, affirming the conviction in Getachew, rejected this approach of the Court of Appeal. Underscoring the “central statutory requirement” that the prosecution prove that the accused was aware that the complainant was not, or might not be, consenting, the High Court held that nothing revealed on these facts supported the accused’s asserted belief in the other person’s consent – indeed, the Court noted that the accused had throughout the investigation and trial remained silent. As the High Court unanimously concluded: “It is to be recalled that, since the 2007 Act, the fault element of rape has been identified as the accused being aware that the complainant was not or might not be consenting or the accused not giving any thought to whether the complainant was not or might not be consenting. The reference to an accused’s awareness that the complainant might not be consenting is, of course, important. An accused’s belief that the complainant may have been consenting, even probably was consenting, is no answer to a charge of rape. It is no answer because each of those forms of belief demonstrates that the accused was aware that the complainant might not be consenting or, at least, did not turn his or her mind to whether the complainant might not be consenting.” 366

Although Getachew did clarify the effect of the 2007 reforms, the High Court was not in a position to realign the substantive law with the terms of the mandatory directions, exposing that some of these “special” jury directions did not accurately reflect or conform with the present law in Victoria. 367 The confused state of the law following the 2007 reforms attracted strong and sustained criticism, 368 leading to a review by the Victorian

366 367 368

The Queen v Getachew [2012] HCA 10 at [26]–[27]. See discussion in K Arenson “The Chaotic State of the Law of Rape in Victoria: A Mandate for Reform” (2014) 78(4) Journal of Criminal Law 326 at 331. See Sibanda v The Queen [2011] VSCA 285 at [7] per Neave JA: “[T]he decision in Worsnop … demonstrate[s] the need for legislative change to clarify and simplify the mens rea for rape. The current provisions have failed to implement the recommendations made by the Victorian Law Reform Commission, which were intended to ensure that a person who sexually penetrates another person, whilst being aware that the latter is not or might not be consenting to penetration, is guilty of rape”, citing VLRC, Sexual Offences: Law and Procedure (2004) pp 426–431; see also the judgment of Harper JA in GBD v The Queen [2011] VSCA 437 at [28] stating that “the gap in the law which was identified in Worsnop cries out for the remedial intervention of the legislature”. [11.155]

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Department of Justice in 2013. 369 The Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (Vic) removed from the substantive law the obligation to give “special” jury directions. 370 The 2014 reforms also amended the fault element in s 38(1)(c): rather than requiring an “awareness” that the other person was not consenting or might not have been consenting, to be guilty of rape, the prosecution now must prove that the accused did not reasonably believe that the other person consents to the penetration. 371 Further directions on consent were inserted into the Jury Directions Act 2015 (Vic). These empowered the parties to “request, negotiate and settle” over the content and form of jury directions to be given by the trial judge, removing the ability to later challenge agreed directions on appeal. 372 Moreover, upon the request of the prosecution or defence, the judge can “inform the jury that … there are many different circumstances in which people do not consent to a sexual act” and, amongst other things that “people react differently to a sexual act to which they did not consent and that there is no typical, proper or normal response”. 373 The new directions on reasonable belief are further discussed at [11.150]. Multiple meanings of recklessness in rape and sexual assault [11.160] As noted above, under the common law, the fault element for rape may be satisfied by either knowledge or recklessness. But what does recklessness in the context of rape or sexual assault actually mean? Significantly, the term “recklessness” was not employed by Lord Hailsham LC in his summary of the requisite fault for the offence in DPP v Morgan: “I am content to rest my view of the instant case on the crime of rape by saying that it is my opinion that the prohibited act is and always has been intercourse without consent of the victim and the mental element is and always has been the intention to commit that act, or the equivalent intention of having intercourse willy-nilly not caring whether the victim consents or no. A failure to prove this involves an acquittal because the intent, an essential ingredient, is lacking. It matters not why it is lacking if only it is not there, and in particular it matters not that the intention is lacking only because of a belief not based on reasonable grounds.” 374

“Not caring whether the victim consents” suggests that carelessness or inadvertence as to the possibility that the other person is not consenting suffices for rape. Subsequent English decisions have explained this passage as meaning that to be convicted, the accused must appreciate the risk that the victim is not consenting; it will not suffice that the risk is obvious to the ordinary person. 375 Except for the Northern Territory, the provisions dealing with rape or carnal knowledge in the Codes, by contrast, make no reference to either knowledge or recklessness. 376 Liability is strict in these Code jurisdictions, requiring merely an intention to have sexual intercourse. As a leading textbook on the Code jurisdictions noted: “The question 369

373 374 375 376

Victorian Department of Justice, Review of Sexual Offences Consultation Paper (2013) p viii: http:// www.assets.justice.vic.gov.au/justice/resources/2b77afcd-3c35-4a89-913a-54ced67529c3/ reviewofsexualoffencesconsultationpaper2013.pdf. Victoria, Parliamentary Debates, Legislative Assembly, 17 September 2014, p 3392 This approach has been retained in the Crimes Amendment (Sexual Offences) Act 2016 (Vic) to amend the Crimes Act 1958 (Vic). E Henderson and K Duncanson, “A Little Judicial Discretion: Can the Use of Jury Directions Challenge Traditional Consent Narratives in Rape Trials?” (2014) 39(2) UNSW Law Journal 718 at 726. Crimes Amendment (Sexual Offences) Act 2016 (Vic). DPP v Morgan [1976] AC 182 at 215. Satnam and Kewal (1983) 78 Cr App R 149. Criminal Code (NT), s 192.

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becomes simply: Did the victim consent?” 377 In the Northern Territory however, a person will be guilty of “sexual intercourse … without consent” where they have sexual intercourse with another person and know about, or are reckless as to, the lack of consent. Setting out what is encompassed by “recklessness”, s 43AK Criminal Code (NT) states that: (1) A person is reckless in relation to a result if: (a) the person is aware of a substantial risk that the result will happen; and (b) having regard to the circumstances known to the person, it is unjustifiable to take the risk. (2) A person is reckless in relation to a circumstance if: (a) the person is aware of a substantial risk that the circumstance exists or will exist; and (b) having regard to the circumstances known to the person, it is unjustifiable to take the risk. (3) The question whether taking a risk is unjustifiable is one of fact. (4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness satisfies the fault element.

Recklessness is part of the statutory definitions of rape or sexual assault in several common law jurisdictions. 378 New South Wales expressly refers to knowledge or recklessness, but has added a further objective fault element for rape. Section 61HA(3) of the Crimes Act 1900 (NSW) provides: A person who has sexual intercourse with another person without the consent of the other person knows the other person does not consent to the sexual intercourse if: (a) the person knows the other person does not consent to the sexual intercourse, or; (b) the person is reckless as to whether the other person consents to the sexual intercourse; or (c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse.

In New South Wales and the Australian Capital Territory, the fault element of recklessness is not expressly defined in legislation, but the authorities suggest that it encompasses two distinct forms: • advertent recklessness: where the accused realised the possibility that the other person was not consenting but went ahead regardless; 379 or • culpable inadvertence: where the accused failed to consider whether or not the other person was consenting, notwithstanding that the risk that the other person was not consenting would have been obvious to someone with the accused’s mental capacity if they had turned his or her mind to it. 380 In 2008, South Australia added a definition of recklessness which expressly imports an objective element. Under s 47 of the Criminal Law Consolidation Act 1935 (SA), recklessness now includes instances where the accused “is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but fails to take 377 378 379 380

RG Kenny, An Introduction to Criminal Law in Queensland and Western Australia (5th ed, Sydney: LexisNexis Butterworths, 2000) p 248. Crimes Act 1900 (ACT), s 54; Crimes Act 1900 (NSW), s 61HA; Criminal Law Consolidation Act 1935 (SA), s 48. R v Hemsley (1988) 36 A Crim R 334 at 337–338; R v Murray (1987) 11 NSWLR 12 at 15; DPP Reference No 1 of 2002 [2002] NTCCA 11. R v Kitchener (1993) 29 NSWLR 696, 697; R v Tolmie (1995) 37 NSWLR 660; R v Milton [2002] NSWCCA 124; Banditt v The Queen (2005) 219 CLR 43. See Criminal Justice Sexual Offences Taskforce (NSW), Responding to Sexual Assault: The Way Forward (2005) p 43. [11.160]

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reasonable steps to ascertain whether the other person does in fact consent, or has in fact withdrawn consent, to the act before deciding to proceed”. In R v Tolmie, 381 Kirby P (as he was then) examined the cases on the meaning of recklessness, concluding that culpable inadvertence was sound, from both the point of view of authority and policy. Kirby P pointed to the dicta in Morgan that had originally used the language of carelessness and indifference to describe recklessness. He was careful to reconcile this concept with the key aspect of the decision in Morgan, noting that this concept of recklessness did not prevent an accused relying on a positive mistaken (albeit unreasonable) belief in consent: “In this sense if amounting to an inadvertent test, recklessness is limited to cases in which the accused did not consider the question of consent at all”. 382 In other words, the objective aspect of recklessness was not a standard of negligence based on the reasonable person standard, but rather a negative state of mind based on a complete failure to consider the autonomy interests of the other person. As Kirby P acknowledges, such cases would be rare, however, he accepted that “at least theoretically” such inadvertence could found recklessness in law. 383 In Kirby P’s view, the accused’s inadvertence to the other person’s autonomy provided the moral basis for legal culpability: “In the context of sexual activity the difference between someone who is put on conscious notice or who is forced by circumstances to actually consider the issue of consent of a sexual partner, is likely to be where that person is more sensitive to the other’s autonomy, dignity and value. The criminal law, at least in respect of conduct as seriously invasive as sexual intercourse, should not fall more heavily on those who exhibit some attention to the rights of others while exculping those who are so insensitive to the rights of others that they do not consider their wishes in respect of sexual intercourse although they are necessarily relevant and important in the process of initiation and continuation of sexual intercourse.” 384

Kirby P later concluded: “To allow accused persons to escape conviction merely because they do not realise the significance of what they have done, where they have completely ignored the requirement of consent as a prerequisite for sexual interaction, is completely antithetical to the attainment of the goals which the criminal law properly sets for itself in this area.” 385

The definition applied here has been applied to recklessness for the purpose of indecent assault in Fitzgerald v Kennard? 386 and, later, in the Australian Capital Territory case of Sims v Drewson. 387 While transcending the sterility of the subjective versus objective debate, the test of inadvertent recklessness is not without difficulties. First, the test requires proof that the accused failed completely to advert to the issue of consent. This excludes the situation in which the accused believes in dangerous rape myths such as “‘no’ means ‘yes’”, or that some “rough handling” is a legitimate means of persuasion or overcoming resistance. These states of mind demonstrate little or no respect for the other person’s sexual autonomy, though it would not be possible to say that these are cases of total inadvertence to the other person’s consent. Such individuals merely live their sexual lives according to a set of dangerous mythologies about 381 382 383 384 385 386 387

R v Tolmie (1995) 37 NSWLR 660. R v Tolmie (1995) 37 NSWLR 660 at 668 (emphasis added). Kirby P could only point to examples given by Carruthers J in Kitchener, where the inadvertence had been caused through intoxication or lack of intellect: R v Tolmie (1995) 37 NSWLR 660 at 669. R v Tolmie (1995) 37 NSWLR 660 at 671. R v Tolmie (1995) 37 NSWLR 660 at 672. Fitzgerald v Kennard (1995) 38 NSWLR 184. Sims v Drewson [2008] ACTSC 91.

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female sexuality and the types of behaviours that signify consent. Another difficulty with this extended definition of recklessness is that inadvertence to the issue of consent must also be shared by the reasonable or ordinary person. Kirby P traced the emergence of objective notions of recklessness to a series of decisions of the House of Lords, beginning with R v Caldwell, 388 where the English courts, resorting to the “ordinary meaning” of the concept, embraced, as a specie of reckless inadvertence, risks that would be “obvious” to the reasonable or ordinary person. Tolmie seems to be an aberrant decision, bucking the trend in recent common law decisions that have repudiated objective standards of recklessness. Caldwell itself has been overturned by the House of Lords in R v G, 389 reverting to a purely subjective test of recklessness for the offence of criminal damage. Not all legal scholars have accepted that objective concepts should be banished from the lexicon of criminal fault. Kumar Amirthalingam notes: “Criminal fault is a composite of subjective and objective elements. Orthodox theory however insists on an artificial bifurcation and the inquiry into blameworthiness is hijacked by the futile exercise of labeling fault as subjective or objective. R v G regretfully preserves this unhelpful predilection.” 390

Even leading liberal scholar, Andrew Ashworth, has argued that an objective version of recklessness, albeit exceptionally, would be justifiable for sexual offences. 391 The standard of fault based on inadvertent recklessness which was established in Tolmie attempts to avoid the worst aspects of the objective standards. The ordinary person is presumed to have the accused’s mental capacity. For the purpose of sexual assault, recklessness was defined as existing: “where the accused has not considered the question of consent and a risk that the complainant was not consenting to sexual intercourse would have been obvious to someone with the accused’s mental capacity if they had had turned their mind to it.” 392

The MCCOC recommended that the fault element for sexual assault and indecency offences should include a definition of recklessness that includes “not giving any thought to whether or not the other person is consenting”. 393 Like Tolmie, the provision preserves the positive mistaken belief in consent, and therefore is susceptible to the objections outlined above. Sharing the sentiments expressed by Kirby P above, the MCCOC concluded that it would be “absurd” not to criminalise the person “who is absolutely uncaring” about the other person’s sexual wishes and desires. In Victoria, prior to the 2007 reforms, recklessness for the purposes of rape required conscious advertence as to whether the complainant was consenting. 394 The 2007 reforms, as noted above, were intended to qualify this model, though, as Worsnop established, they did not achieve this intended effect. 395 This has since been addressed by legislative amendments. 388 389 390 391 392 393 394 395

R v Caldwell [1982] AC 341. R v G [2004] 1 AC 1034. K Amirthalingam, “Caldwell Recklessness is Dead, Long Live Mens Rea’s Feckleness” (2004) 67(3) Modern Law Review 491 at 495. A Ashworth, Principles of Criminal Law (6th ed, Oxford: Oxford University Press, 2009) pp 352–353. R v Tolmie (1995) 37 NSWLR 660 at 672. MCCOC, Chapter 5—Sexual Offences Against the Person, Report (1999) cl 5.2.6(3), p 88. R v Ev Costa [1996] VSC 27. As noted in GBD v The Queen [2011] VSCA 437. The accused had sex with two under-age girls, knowing that a friend had injected them with drugs. As the Court of Appeal held, at [22]–[28]: “Even assuming that the appellant was not endowed with the usual capacities of humankind, and believed that she was consenting, he must have known that she might not be giving her free consent to that act; that was the point of what must have been significant expenditure on the acquisition of speed, and of her subsequently being injected, by the [11.160]

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Section 38(1) of the Crimes Act 1958 (Vic) now simplifies the fault element for rape: all that is required is that a person (A) intentionally sexually penetrates another person (B); and A does not reasonably believe that B consents to the penetration. In many respects, the interminable controversy over subjective versus objective guilt has usurped debates over rape law reform. It has consumed a disproportionate amount of both academic and political attention. This focus on fault and mistake may be unjustified since there is empirical research which suggests that the dangers of acquittals from applying Morgan logic are overestimated. The Victorian Law Reform Commission (VLRC) conducted a comprehensive study of rape trials in 1989 (the DPP study) that considered the impact of Morgan. 396 This early study showed that, in most rape cases, the battle between the prosecution and defence centred on the issue of consent rather than the effect of mistake on the fault element. 397 It also suggested that mistaken belief in consent was not an attractive strategy for those accused of rape (it was raised in only 23% of cases); compared with other lines of defence, it is the one least likely to result in an acquittal. The reason that the Morgan principle in practice does not operate as a “Rapists’ Charter” may be related to the ambivalent nature of jury directions on the effect of a mistaken belief in consent: see [11.155]. The VLRC data has been supported by a subsequent study published by the Victorian Department of Justice. 398 The researchers, Melanie Heenan and Helen McKelvie, reviewed 27 jury directions offered in rape trials. Most of the directions involved cases where the primary issue in the trial was consent (37%), the accused’s belief in consent (7.4%), or a combination of consent and belief in consent (25.9%). 399 Empirical research has a valuable role to play in highlighting real, as opposed to perceived, problems with rape law. Law reform must broaden its methodological horizons beyond merely doctrinal and philosophical perspectives. Indeed, the rape trial studies in Victoria and New South Wales have demonstrated the limitations of law reform that solely addresses the structure and content of legal rules. A more communicative model of sexuality will not be promoted through merely changing the substantive definition of “consent” to “free and voluntary agreement”. The reform of sexual offences must aim to educate judges, juries and the community about the range of interests and values relevant to sexual integrity. Nicola Lacey’s idea of sexual integrity extends beyond the traditional legal idea of “individual autonomy as bodily property” to a “relational and embodied autonomy” based on values such as communication, trust, mutual respect, care, pleasure and so on. 400 Over the past two decades, the traditional penetrative/coercive model of sexuality has been challenged in Australia, England and Canada. Applying Lacey’s model, it

400

appellant’s friend and to the appellant’s knowledge, with methylamphetamine. Nevertheless, on the authority of Worsnop, the law cannot, so long as the Crown fails to prove the absence of his belief in her consent, convict him. … But, in my opinion, the gap in the law which was identified in Worsnop cries out for the remedial intervention of the legislature.” Law Reform Commission of Victoria, Rape: Reform of Law and Procedure, Interim Report No 42 (1991); Report No 43 (1991) App 3. D Brereton, “Real Rape, Law Reform and the Role of Research: The Evolution of the Victorian Crimes (Rape) Act 1991” (1994) 27 Australian and New Zealand Journal of Criminology 74. The ALRC notes that “There is some anecdotal evidence that the defence of honest belief is more likely to be raised in cases where there has been an intimate relationship and may be ‘treated as more credible’ in the family violence context than in other contexts”: ALRC, Family Violence – A National Legal Response, Report No 114 (2010) [25.158], p 1168. Department of Justice (Vic), Evaluation of the Crimes (Rape) Act 1991 (1997). Department of Justice (Vic), Evaluation of the Crimes (Rape) Act 1991 (1997) p 296. For a critical review of these empirical data, see J Gans, “Rape Trial Studies: Handle with Care” (1997) 30 Australian and New Zealand Journal of Criminology 27. N Lacey, Unspeakable Subjects (Oxford: Hart Publishing, 1998) p 121.

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seems that the courts and legislature have begun this task of normative reconstruction, with several positive steps having been taken toward realising a new vision of sexual integrity in the criminal law.

Aggravated Sexual Assault and Rape: Extension of Existing Doctrine [11.165] The meaning of the phrase “in company” in the context of sexual assault had not been subject to judicial elaboration until examined by the New South Wales Criminal Court of Appeal in R v Button; R v Griffen. 401 In that case, the court held that the phrase is not dependent on mere physical presence, which in any event is an “elastic” concept. 402 The offenders in this case were charged with aggravated sexual assault under s 61J of the Crimes Act 1900 (NSW). The relevant circumstances of aggravation were that the offenders had been in the company of each other and others at the time when they had sexual intercourse with the complainant without her consent: s 61J(2)(c). On appeal, it was not at issue that the two accused had raped the complainant; rather, the issue was whether they were “in the company” of anyone at the time, and thus liable for an aggravated penalty. Kirby J (with whom both Heydon JA and James J agreed), reviewed authority from Australia and New Zealand, and then formulated five propositions governing the meaning of “in company”:

1.

The statutory definition of s 61J(2)(c) requires the offender to be “in the company of another person or persons”. The accused and such person, or persons, in company must share a common purpose (here to sexually assault). The cases appear to assume that each participant is physically present. Participation in the common purpose without being physically present (for example, as a look-out or an accessory before the fact) is not enough. The perspective of the victim (being confronted by the combined force or strength of two or more persons) is relevant, although not determinative. If two or more persons are present, and share the same purpose, they will be “in company”, even if the victim was unaware of the other person. 403

2. 3. 4. 5.

Kirby J also determined that there were limits on when physical separation would mean that an offence could no longer be characterised as being in the presence of the group, but decided that the test was the coercive effect of the group: “There must be such proximity as would enable the inference that the coercive effect of the group operated, either to embolden or reassure the offender in committing the crime, or to intimidate the victim into submission.” 404

The accused, Button and Griffen, were part of a group of five males who each participated in sexually assaulting the complainant on a trip home from a party in remote New South Wales. The charges against Button and Griffen stemmed from separate incidents, but were similar 401 402 403 404

R v Button; R v Griffen (2002) 54 NSWLR 455. R v Button; R v Griffen (2002) 54 NSWLR 455 at 465. R v Button; R v Griffen (2002) 54 NSWLR 455 at 465. R v Button; R v Griffen (2002) 54 NSWLR 455 at 466. See FP v The Queen (2012) 224 A Crim R 82 where the NSW Court of Criminal Appeal held that physical presence is sufficiently proximate where it affords encouragement to the offender, or operates to intimidate or coerce the complainant. The Court also held that “it was open to the jury to find that while the applicant was in the adjoining bathroom during the time sexual penetration occurred, she was present in the actual room immediately before and immediately after, so the quality of her presence was still sufficient for her to be ‘in company’.” [11.165]

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because their actions took place when they and the complainant were 50 metres from the rest of the group. While it is clear that mere presence is not sufficient to be “in company”, it was unanimously held by the court that, in these circumstances, given the degree of participation of all the offenders and the common purpose they held, the physical separation of 50 metres did not affect the conclusion that this was an offence committed in the company of others. Table 2 Sexual assault “in company” Jurisdiction MCC ACT NSW

Provision Model Criminal Code, cl 5.2.36(c) Crimes Act 1900, s 54(2) Crimes Act 1900, s 61J(2)(c) (aggravated sexual assault); see also s 66C(5)(c) s 61JA(1) (aggravated sexual assault in company) Criminal Code, s 127(2)(a) Criminal Code, s 352(3)(a) Criminal Law Consolidation Act 1935, s 48A(1)(b) (for the offence of compelled sexual manipulation) – Crimes Act 1958, ss 39(1)(a)(iii) and (iv) (for the offence of “rape by compelling sexual penetration”) Criminal Code Compilation Act 1913, s 319(1)(a)(ii); s 326(1)

NT Qld SA Tas Vic WA

Penalty 20 years 14 years 20 years life imprisonment 20 years life imprisonment 15 years – 25 years 20 years

In New South Wales, in response to media attention and a public concern about gang rapes, a new and additional offence of “aggravated sexual assault in company”, carrying a penalty of life imprisonment, was created in 2001. 405 Subsection 61JA(1) of the Crimes Act 1900 (NSW) provides: (1) A person: (a) who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse, and (b) who is in the company of another person or persons, and (c) who: (i) at the time of, or immediately before or after, the commission of the offence, maliciously inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (ii) at the time of, or immediately before or after, the commission of the offence, threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or (iii) deprives the alleged victim of his or her liberty for a period before or after the commission of the offence, is liable to imprisonment for life.

This offence, unlike aggravated sexual assault in s 61J of the Crimes Act (NSW) discussed above, requires proof of either malicious infliction of actual bodily harm, threats to inflict actual bodily harm with an offensive weapon or instrument, or deprivation of liberty before or after the commission of the offence, in addition to the requirement that the offender have had sexual intercourse with another person, knowing they are not consenting, in the company of another person or persons. Kate Warner notes that the Greens political party, who did not support the amendment, argued that the amendment had nothing to do with making our 405

Crimes Amendment (Aggravated Sexual Assault in Company) Act 2001 (NSW).

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society safer as claimed, but everything to do with “political opportunism”. 406 In a historic decision, in the case of X, 407 Finnane J handed down a 55-year sentence with a non-parole period of 40 years under the new provision.

Criminological perspectives The Rise of “Ethnic” Gang Rape in Sydney [11.170] Gang rape in Sydney has acquired racial overtones. As Kate Warner noted in her sentencing review of 2001–2002, media reports of “pack rapes” in Sydney suggested that many rapes in 2000–2001 were “racially motivated”, in the sense that certain ethnic gangs were seen to be targeting Australian women. 408 While the media gave extensive coverage to ethnic minority youth in this regard, it is important, as Warner has strongly argued, to keep things in perspective. In a subsequent article, Warner described how the issue of gang rape by Lebanese Australians has become “linked with debates about asylum seekers and terrorism, exposing core fears of our borders being penetrated by Islamic refugees and our women being penetrated by Islamic youth”. 409 Media coverage of the rapes in Sydney in 2000–2001 led the public to believe that the incidence of ethnic rape was exceptionally high, and that, as one journalist asserted, “ethnic gang rape emanates from Muslim and Arab culture and was a global phenomenon, because it had been perpetrated earlier in the year in France by ‘urban immigrant poor’”. 410 Such attitudes toward ethnic groups and their criminality is not confined to Australia. Tim Newburn notes that in the United Kingdom, little rigorous, empirical research has been done on the topic given the “strong popular association between black youth and crime”. 411 Furthermore, as Warner noted in 2004, the New South Wales Bureau of Crime Statistics and Research had not recorded any change in recorded sexual assault in Bankstown (a Sydney suburb with one of the highest concentrations of Lebanese immigrants in Australia) over the previous 10 years. In fact, the highest rates of sexual assault in New South Wales in 2004 were recorded in areas where very few people of Arab background or Muslims lived. 412 The issue of gang rape, nevertheless, has also given police and the government the “right” to use racial descriptive terms such as “Lebanese” or “Middle Eastern” gang members to describe perpetrators, many of whom were born and raised in Australia. 413

406 407 408 409

410 411 412

K Warner, “Sentencing Review 2001–2002” (2002) 26 Criminal Law Journal 349 at 352. X (unreported, 15/8/2002, NSWDC). K Warner, “Sentencing Review 2001–2002” (2002) 226 Criminal Law Journal 351 at 355. K Warner, “Gang Rape in Sydney: Crime, the Media, Politics, Race and Sentencing” (2004) 37 The Australian and New Zealand Journal of Criminology 344 at 359. The author drew a parallel between the ethnic gang rapes in Sydney in 2000–2001 and the moral panic about “mugging” in the 1970s in the United Kingdom, where street crime was portrayed by the media as a new danger created by young Black males. See the discussion in K Warner, “Gang Rape in Sydney: Crime, the Media, Politics, Race and Sentencing” (2004) 37 The Australian and New Zealand Journal of Criminology 344 at 347. T Newburn, “Young Crime and Youth Culture” in M Maguire, R Morgan and R Reiner (eds), The Oxford Handbook of Criminology (4th ed, Oxford: Oxford University Press, 2007) p 589. K Warner, “Gang Rape in Sydney: Crime, the Media, Politics, Race and Sentencing” (2004) 37 The Australian and New Zealand Journal of Criminology 344 at 346. [11.170]

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Assessing Rape Law Reform: Accomplishment and Compromise? [11.175] Gail Mason has suggested that the history of rape law reform in Australia may be characterised in terms of both “accomplishment and compromise”. 414 The reform process began only 30 years ago, with the legislative move to replace rape under the common law with “sexual assault” in New South Wales. This legislative innovation, reflecting feminist scholarship of that time, sought to reconceptualise rape as an act of violence rather than an act of sex. 415 As previously noted, these early statutory reforms replaced the single common law offence of rape with a graded scheme of sexual assault and aggravated sexual assault crimes. Feminist legal scholarship has played a significant role in highlighting the inadequacies and discriminatory nature of substantive laws and procedures dealing with sexual offences. 416 The treatment of rape victims during cross-examination by the defence acquired considerable notoriety as a form of re-victimisation by the legal process. This led to the enactment of protective “rape shield laws” in many jurisdictions. The legal process, rather than directing attention towards the accused’s conduct, focused disproportionately on the conduct and character of the complainant. The substantive law reinforced this victimisation in a number of ways. As the prosecution bears the burden of proving lack of consent, the complainant’s state of mind before and during sexual intercourse is a central concern of the trial. Moreover, the rules governing consent and the fault element operate to entrench and legitimate dangerous stereotypes about female sexuality, such as “‘no’ means ‘yes’” and that women are (typically) sexually masochistic. These discriminatory aspects of the law have only begun to be addressed by reformers: see [11.95]. Feminist reformers have achieved some success in removing the most glaring examples of gender discrimination and injustice, such as the marital rape immunity: see [11.65]. The common law immunity from prosecution for husbands who raped their wives has been removed by legislation in all Australian jurisdictions. However, it remained part of the common law until it was formally abolished by the House of Lords and the High Court of Australia, in R v R? 417 and R v L, 418 respectively. Numerous official reports and studies examining the offences of rape and sexual assault have identified the need to reform substantive and procedural laws dealing with rape. 419

413

414 415 416 417 418 419

K Warner, “Gang Rape in Sydney: Crime, the Media, Politics, Race and Sentencing” (2004) 37 The Australian and New Zealand Journal of Criminology 344 at 352. See, generally, S Poynting, “Ethnic Minority Immigrants, Crime and the State” in T Anthony and C Cunneen (eds), The Critical Criminology Companion (Sydney: Hawkins Press, 2008) Ch 10. G Mason, “Reforming the Law of Rape: Incursion into the Masculinist Sanctum” in D Kirkby (ed), Sex, Power and Justice: Historical Perspectives on Law in Australia (Melbourne: Oxford University Press, 1995) p 50. S Brownmiller, Against Our Will: Men, Women and Rape (Harmondsworth: Penguin Books, 1975). See J Temkin, Rape and the Legal Process (2nd ed, Oxford: Oxford University Press, 2002); C Smart, Law, Crime and Sexuality (London: Sage, 1995). R v R [1992] 1 AC 599. R v L (1991) 174 CLR 379. Law Reform Commission of Victoria, Rape: Reform of Law and Procedure, Report No 43 (1991); J Bargen and E Fishwick, Sexual Assault Law Reform: A National Perspective (Sydney: Office of the Status of Women, 1995); MCCOC, Chapter 5—Sexual Offences Against the Person, Report (1999); Victorian Law Reform Commission, Sexual Offences, Final Report (2004); Criminal Justice Sexual Offences Taskforce, Responding to Sexual Assault: The Way Forward (Sydney: Attorney-General’s Department of New South Wales, December 2005).

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Although many changes to the law have occurred over the past 20 years, empirical studies of rape trials conducted in New South Wales and Victoria reveal that these reforms have not been completely effective. 420 The reason for the failure of rape law reform is complex and multi-layered. 421 Evidential and procedural reforms can be subverted by a legal culture where judges and lawyers continue to discredit women who allege sexual abuse. The attempts to reform the various “special” rules governing sexual offences trials are considered in the next section. At the broader level, legislative reforms have been qualified by the courts, which have jealously upheld competing values in the criminal justice system, such as the right to a fair trial. When feminist reforms are considered to undermine the right of the accused to a fair trial, the former necessarily gives way to the latter. In Chapter 2 (at [2.135]) we explored how feminists have challenged traditional (masculinist) notions of “fairness” that have excluded the interests of women as “victims” and members of the community demanding the protection of the criminal law. According to Gail Mason, the difficulty is that most rape law reform, while inspired by feminism, is “grounded in liberalism”. 422 Feminists who remain optimistic about the value of using legal strategies for promoting social change must divide their attention between a macro-analysis of general principles—such as fairness, equality and privacy—and a microanalysis of the specific legal rules, such as the rules of evidence and procedure, and the substantive definitions of consent and fault. Reform of sexual offences should not be limited to merely restructuring legal definitions. Although such changes may be symbolically important, there is a danger that substantive restructuring merely frees the trial judge to apply discriminatory myths and misconceptions about female sexuality to the remodelled definitions of consent, relevance and credibility. Behind such “ordinary” meanings, myths and misconceptions can be reinforced by the trial judge and accepted by the jury without challenge. 423 There is increasing awareness that an integrated or holistic approach to reform is required. Substantive definitions of sexual offences must be understood within their wider procedural and evidential context. In 1999, the Model Criminal Code Officers Committee (MCCOC) took the view that evidential provisions with regard to sexual offences were “inextricably bound up with the reform of the substantive law”. 424 Indeed, the common law rules governing mistaken belief in consent (which allow the defence to rely on dangerous myths about female sexuality) have a direct impact on the notion of legal relevance. Within this definitional framework, it would be unfair to deny the admissibility of evidence of the complainant’s sexual past with the accused, or other men, if this may legitimately be relevant to a “defence” based on an honest, albeit unreasonable, mistaken belief in consent. 425 The recent empirical studies of rape laws in Australia, as discussed above, highlight the importance 420

421 422 423 424 425

Department of Women (NSW), Heroines of Fortitude (1996); Department of Justice (Vic), Rape Law Reform Evaluation Project, The Crimes (Rape) Act 1991: An Evaluation Report (1997) Ch 1 at [2.2]. See also J Fitzgerald, “The Attrition of Sexual Offences from the New South Wales Criminal Justice System” in Contemporary Issues in Crime and Justice, No 92 (New South Wales Bureau of Crime Statistics and Research, 2006). P Easteal (ed), Balancing the Scales: Rape, Law Reform and Australian Culture (Sydney: Federation Press, 1998) p 1. G Mason, “Reforming the Law of Rape: Incursion into the Masculinist Sanctum” in D Kirkby (ed), Sex, Power and Justice: Historical Perspectives on Law in Australia (Melbourne: Oxford University Press, 1995) p 52. S Bronitt, “The Rules of Recent Complaint” in P Easteal (ed), Balancing the Scales (Sydney: Federation Press, 1998) pp 42–43. MCCOC, Chapter 5—Sexual Offences Against the Person, Report (1999) p 215. DPP v Morgan [1976] AC 182. [11.175]

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of legal culture in the reform process, and suggest that greater attention must be paid to non-legal strategies, such as legal education and gender-awareness training for judges and lawyers.

Procedural perspectives Special Procedural and Evidential Rules for Sexual Offences [11.180] In many respects, the procedural and evidential rules governing sexual offence trials are “exceptional”. Special rules, both common law and statutory, have been developed to regulate criminal trials involving sexual allegations. 426 Most of these rules share a central concern about the credibility (truthfulness) of complainants in sexual offences trials. The importance of the complainant’s reputation in evaluating an allegation of rape was apparent in the early substantive law. The law of rape did not aim to protect female sexual autonomy, but rather provided a remedy for the fathers and husbands of respectable women who had been devalued in social and economic terms. 427 William Blackstone could proudly proclaim in 1769 that even “common prostitutes” were protected under the laws of England, though he knew that reputation and prior sexual experience of the complainant were crucial factors in a successful prosecution. 428 Rape trials were transformed into pornographic morality plays, in which the sexual experience and morals of the complainant were intricately scrutinised by the lawyers and judges for the benefit of the jury and the prurient interest of the public. 429 In the context of rape trials in 19th century Australia, Jill Bavin-Mizzi suggests that the declining conviction rate over that century was not due to the reluctance of juries to condemn men to death for mere sexual transgression, but rather to the increasing legal attention being paid to the issue of the “bad character” of the complainant. 430 Sexual offences trials, then as now, fixated to an unusual degree on the moral character of the complainant. Respectable women who had physically resisted their attackers and promptly complained of their abuse were able to seek the protection of the criminal law. This standard of behaviour continues to shape assumptions in the modern law governing the admissibility of “recent complaint” and the warnings that should be given where the complaint is delayed. 431 Evidence of the complainant’s sexual reputation, although 426 427 428 429 430

431

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MCCOC, Chapter 5—Sexual Offences Against the Person, Report (1999) pp 215–288. J Carter, Rape in Medieval England: An Historical and Sociological Study (Lanham: University Press of America, 1985) Ch 6. W Blackstone, Commentaries on the Laws of England (1769) Vol IV, p 213. A Clarke, Women’s Silence, Men’s Violence: Sexual Assault in England 1770–1845 (London: Pandora, 1987) p 54. J Bavin-Mizzi, “Understandings of Justice: Australian Rape and Carnal Knowledge Cases 1876–1924” in D Kirkby (ed), Sex, Power and Justice: Historical Perspectives on Law in Australia (Melbourne: Oxford University Press, 1995) Ch 2, p 21. S Bronitt, “The Rules of Recent Complaint: Rape Myths and the Legal Construction of the “Reasonable” Rape Victim” in P Easteal (ed), Balancing the Scales (Sydney: Federation Press, 1998) Ch 4; cf Jury Directions Act 2015 (Vic), s 52: “Direction on delay in complaint or lack of complaint” where the trial judge (1)(a) must direct the jury that “experience shows that (4)(a) people may react differently to sexual offences and there is no typical, proper or normal response to a sexual offence; and (b) some people may complain immediately to the first person they see, while others may not complain for some time and others may not make a complaint; and (c) delay in making a complaint in respect of a sexual offence is a common occurrence”. [11.180]

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strictly hearsay, was admitted as relevant to the issues of consent and/or credibility. Concerns about female fabrication and fantasy in sexual matters were reflected in the customary warnings to juries about the dangers of relying on the complainant’s testimony in the absence of corroboration. Although often traced to 17th and 18th century institutional writers such as Hale and Blackstone, corroboration warnings only became formalised as a mandatory warning in sexual trials toward the end of the 19th century and into the early 20th century. 432 The judicial “experience” from which these corroboration warnings grew was bolstered by psychoanalysis; in particular, Sigmund Freud’s famous recantation, made in 1897, that female claims of “seduction” in childhood were not actual instances of sexual abuse, but rather the inventions of hysterical women. 433 Since the 1970s, rape law reform in Australia has targeted these discriminatory rules of evidence and procedure. The mandatory duty to offer a corroboration warning in sexual offences cases has been abolished in Australian jurisdictions. However, these reforms do not prevent judges from commenting on the reliability of particular testimony. As the High Court noted in Longman v The Queen, 434 a corroboration warning, tailored to the facts of the case, may be needed to avoid a miscarriage of justice. In this case, a warning was required because of the significant delays in bringing the complaints, the risk of sexual fantasy and the possibility of hatred as a motive to lie. The MCCOC regarded that any further restriction on the judge’s right to comment on the reliability of a particular complainant would be an unacceptable restriction on judicial discretion. 435 It seems that the solution lies not with increasingly prescriptive legal rules, but rather with judicial education to dispel the myths and stereotypes surrounding the nature of the offence and the “reasonable” behaviour of rape victims. “Rape shields” were enacted to restrict the admission of evidence of the complainant’s sexual reputation and sexual history. This was done in an effort to protect complainants from further victimisation by the legal process. In most jurisdictions, the shield is a structured discretion to exclude evidence in certain circumstances. 436 The strongest shield contains no discretion; it simply prohibits the admission of reputation and sexual history unless certain exceptions apply. 437 However, empirical research in New South Wales, Tasmania and Victoria suggests that the rape shields have not significantly improved the treatment of women during cross-examination. 438 In some instances, trial judges admitted evidence of sexual reputation and previous sexual history with scant regard to the statutory restriction or the “relevance” of the evidence to the issues in dispute in the case. In other cases, the trial judge, mindful of the overriding duty to ensure a “fair trial”, has given the provision a more restrictive interpretation than the drafters intended. 439 432 433 434 435

436 437 438 439

See, generally, Law Commission for England and Wales, Criminal Law: Corroboration of Evidence in Criminal Trials, Report No 202 (London: HMSO, 1991). J Astbury, Crazy For You: The Making of Women’s Madness (Oxford: Oxford University Press, 1996). Longman v The Queen (1989) 168 CLR 79. MCCOC, Chapter 5—Sexual Offences Against the Person, Report (1999) p 251. See also Law Commission for England and Wales, Criminal Law: Corroboration of Evidence in Criminal Trials, Report No 202 (1991) pp 15–16. Evidence Act 1929 (SA), s 34L; Evidence Act 2001 (Tas), s 194M; Evidence Act 1906 (WA), s 36BC; Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 51. See eg Criminal Procedure Act 1986 (NSW), s 293. T Henning and S Bronitt, “Rape Victims on Trial: Regulating the Use and Abuse of Sexual History Evidence” in P Easteal (ed), Balancing the Scales (Sydney: Federation Press, 1998) Ch 6. See, for example, Bull v The Queen (2000) 201 CLR 443; R v A (No 2) [2002] 1 AC 45. [11.180]

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As Therese Henning and Simon Bronitt conclude, the failure of the rape shield laws is a combination of deficient legislation and non-compliance and resistance within the legal profession. 440 Judges often strive for a “balanced” position between the feminist objectives of the reform and the overriding right of the accused to a fair trial. As noted in Chapter 2, [2.135] from a feminist perspective, this traditional balance may be structurally flawed when the concept of fairness is constructed in a manner that denies or minimises the legitimate interests of women as victims, witnesses and members of the community.

SEXUAL OFFENCES INVOLVING CHILDREN AND PERSONS WITH DISABILITIES “For over a century, no tactic for stirring up erotic hysteria has been as reliable as the appeal to protect children. The current wave of erotic terror has reached deepest into those areas bordered in some way, if only symbolically, by the sexuality of the young.” 441

Sexual Offences Involving Children [11.185] For the purpose of determining consent, the criminal law does not contain an “age of consent” as such. Rather, specific offences impose restrictions on certain types of sexual conduct depending on the age of the parties. Where the victim is below a certain age, proof of consent is no longer a defence. However, the criminal law is not consistent in its approach to sexual maturity. As Gayle Rubin points out, the laws governing sexual conduct have been shaped in response to successive moral panics about white sex slavery in the 1880s, the anti-homosexual campaigns of the 1950s and child pornography in the 1970s. 442 Even today, Australian sex laws continue to be reshaped by moral panics about the spread of HIV/AIDS, organised (homosexual) paedophile rings, child pornography on the Internet, and sexual trafficking. The criminalisation of sex with children first became a “law and order” issue in the 19th century. Statutory offences of carnal knowledge were enacted in all Australian jurisdictions to protect young girls from sexual exploitation. These laws dispensed with the need to prove lack of consent. The effect of these crimes of “statutory rape” was that the age for consensual sexual activity was set differently in the various Australian colonies at different times. 443 The political impetus for these new laws was “agitation by women’s groups and political liberals”. 444 Further offences of maintaining sexual relationships with minors were later added in some jurisdictions.

440 441 442 443 444

T Henning and S Bronitt, “Rape Victims on Trial: Regulating the Use and Abuse of Sexual History Evidence” in P Easteal (ed), Balancing the Scales (Sydney: Federation Press, 1998) p 93. G Rubin, “Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality” in C Vance (ed), Pleasure and Danger (London: Pandora, 1989) p 270. G Rubin, “Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality” in C Vance (ed), Pleasure and Danger (London: Pandora, 1989) p 296. J Bavin-Mizzi, “Understandings of Justice: Australian Rape and Carnal Knowledge Cases, 1876–1924” in D Kirkby (ed), Sex, Power and Justice (Melbourne: Oxford University Press, 1995) Ch 2. J Bavin-Mizzi, “Understandings of Justice: Australian Rape and Carnal Knowledge Cases, 1876–1924” in D Kirkby (ed), Sex, Power and Justice (Melbourne: Oxford University Press, 1995) p 20.

714 [11.185]

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Sexual servitude and trafficking offences [11.190] The issue of sexual trafficking has gained increased international and domestic attention. 445 In 1999, Div 270 was inserted into the Criminal Code (Cth) creating a range of offences dealing with slavery, sexual servitude and deceptive recruiting. These were supplemented by the Criminal Code Amendment (Trafficking in Persons Offences) Act 2005 (Cth) and by the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 which introduced further offences (Div 271) dealing with both international and domestic trafficking: see Ch 15, [15.115]

Interestingly, incest has never been an offence at common law, though the ecclesiastical courts exercised some jurisdiction over sex between family members because of the religious prohibition on consanguinity in relation to marriage and procreation. The criminalisation of incest by statute in the 19th century occurred as a result of the efforts of Victorian moral reformers. In all Australian jurisdictions, it is an offence to have sexual intercourse with someone who is related, irrespective of the age of the persons concerned: see Table 3. The severity of potential punishment varies significantly across jurisdictions, from a maximum of three years imprisonment in Western Australia, to life imprisonment in Queensland. 446 In New South Wales and Queensland, attempting incest is also an offence, punishable by up to two years and 10 years imprisonment respectively. 447 Reform of incest laws is discussed below. Table 3 Incest offences in Australia Jurisdiction and relevant law MCC Model Criminal Code ACT Crimes Act 1900

NSW Crimes Act 1900

NT Criminal Code

445

446 447

Offence incest (cl 5.2.34)

incest (s 62(3)) (s 62(2)) (s 62(1)) incest (s 78A) attempted incest (s 78B) incest (s 134(1)) (s 134(2)) (s 134(3))

Physical elements

Fault elements

Penalty

sexually penetrates a close family member; or is sexually penetrated by a close family member sexual intercourse with another person

knowledge that the person is a close family member

7 years

knowledge that related over 16 years under 16 years under 10 years sexual intercourse with not specified a close family member not specified above age of 16 years attempts to commit an offence under s 78A sexual intercourse with not specified a close family member not specified over 16 years not specified under 16 years under 10 years

10 years 15 years 20 years NSW 8 years 2 years

14 years 25 years 20 years

Parliamentary Joint Committee on the Australian Crime Commission, Inquiry into the Trafficking in Women for Sexual Servitude (June 2004) http://www.aph.gov.au/Senate/committee/acc_ctte/completed_inquiries/200204/sexual_servitude/index.htm (cited 20 May 2010), which made a number of recommendations leading to the 2005 reforms. For an early study of the enforcement problems, particularly relating to the treatment of victims, see K Carrington and J Hearn, “Trafficking and the Sex Industry: From Impunity to Protection”, Current Issues Brief No 28 (2002–03, Information and Research Services, Department of the Parliamentary Library) http://www.aph.gov.au/library/Pubs/CIB/cib02-03.htm (cited 20 June 2010). Criminal Code (WA), s 329; Criminal Code (Qld), s 222(1). Crimes Act 1900 (NSW), s 78B; Criminal Code (Qld), s 222(2). [11.190]

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Jurisdiction and relevant law Qld Criminal Code

SA Criminal Law Consolidation Act 1935 Tas Criminal Code

Vic Crimes Act 1958

WA Criminal Code

Offence

Physical elements

Fault elements

Penalty

incest (s 222(1)) attempted incest (s 222(2)) incest (s 72)

carnal knowledge with knows that related offspring or other knows that related lineal descendant attempts to commit incest sexual intercourse with not specified a close family member

life 10 years

incest (s 133(1)) permitting incest (s 133(2)) Incest (ss 50C, D) (s 50E) (s 50F)

sexual intercourse sexual intercourse

knowing that other person is his/her lineal ancestor, descendant or sibling

21 years

act of sexual penetration with lineal descendant or step child act of sexual penetration with lineal ancestor act of sexual penetration of a sibling/half sibling sexually penetrates person over 18 years sexual penetration or procuring sexual behaviour with child if under 16 years if over 16 years indecent dealing or procuring indecent dealing with child if under 16 years if over 16 years

knows that related (presumed in section) under 18 years if 18 years or older knows that related

25 years 5 years 5 years

knowledge that related (presumed in section)

3 years 20 years 10 years 10 years 5 years

incest (s 329)

10 years

Homosexual or “unnatural offences” similarly dispensed with the requirement of lack of consent. Although “unnatural” intercourse was policed under the capital offence of buggery, the “male homosexual”, as a distinct criminal identity, became one target of special laws in the late 19th century. Victorian concerns about homosexuality, in particular fears about the corruption of youth, led to the introduction of statutory offences of indecency between males: see [11.210]–[11.220]. These distinct “homosexual” offences were aggravated where the victim was a minor, or where the accused exercised authority over the child as a teacher, father or stepfather: Crimes Act 1900 (NSW), s 78N (now repealed). This inconsistency in the law was commented on by Adams J in R v Stringer: “What is really being said here [with reference to the distinct ‘homosexual’ offences noted] is that, even where a male aged 16 or 17 is induced or seduced to undertake sexual behaviour, then, if he consents in law, he suffers no harm if the other person is female but only if the other person be male. Indeed, such is the prejudice that, if the other party is female, many would regard the male as fortunate and as having proved his manhood.” 448

Over the past 20 years, many jurisdictions have abolished or reformed these homosexual offences in order to decriminalise homosexual conduct between adults in private. Until recently, in many jurisdictions, there were different “ages of consent” for homosexual and 448

R v Stringer (2000) 116 A Crim R 198 at 213.

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[11.190]

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heterosexual conduct. This was noted by the MCCOC who had difficulty reconciling the divergent positions, noting that public consultation revealed many respondents “had very little idea about what the age of consent was in their own State or Territory, let alone anywhere else”. 449 In the first edition of this book, the laws governing the ages below which it is unlawful to engage in sexual conduct were listed, highlighting the differences between jurisdictions. Commonly, the age of consent was fixed at 18 years for homosexual intercourse between males, whereas in relation to heterosexual intercourse, it was only an offence if the female was under 16 years. 450 Following significant reforms in New South Wales, the Northern Territory, Western Australia and Queensland, no distinction is now drawn between heterosexual and homosexual activity. In these jurisdictions, the age of consent for all sexual activity, except with a person in a position of authority, is 16 years. 451 Queensland was the last jurisdiction to maintain a distinction between heterosexual and homosexual activity. In September 2016, the Health and other Legislation Amendment Bill 2016 (Qld) passed, amending the Criminal Code (Qld) to lower the age of consent for anal intercourse from 18 to 16 years, in line with other consensual sexual activity. This is the same as the position in the Australian Capital Territory and Victoria. 452 In South Australia and Tasmania, although no distinction is drawn between homosexual and heterosexual activity, the age of consent is 17 years. 453 Except for the Australian Capital Territory, the age of consent for a child to engage in sexual intercourse and/or acts of indecency with “persons in positions of authority” – that is, step-parents, guardians, foster parents, school teachers and employers – has been raised to 18. 454 It is not necessary to prove that the consent of the child was causally linked to the person’s position over the young person. 455 This reflects the MCCOC recommendations. 456 The rationale for increasing the age of consent is to protect all young persons from being taken advantage of by persons in a position to influence them. As stated by Brooking JA in R v Howes, as children get somewhat older, the law must recognise that even those who seem willing participants in sexual activity must be protected “from themselves”. 457 The legislative power to enact laws interfering with sexual conduct in private is circumscribed by the Human Rights (Sexual Conduct) Act 1994 (Cth). The federal legislation renders inoperative any State or Territory law that constitutes an arbitrary interference with sexual conduct between adults in private. 458 The legislation was considered necessary following a decision of the Human Rights Committee that Tasmanian offences which criminalised intercourse “against the order of nature” and gross indecency between males violated the right to privacy under the International Covenant on Civil and Political Rights. 449 450 451 452 453 454

455 456 457 458

MCCOC, Chapter 5—Sexual Offences Against the Person, Report (1999) p 123. S Bronitt and B McSherry, Principles of Criminal Law (Sydney: LBC, 2001) p 635. Crimes Act 1900 (NSW), s 66C; Criminal Code (NT), s 127; Criminal Code (WA), ss 319, 321(2). Crimes Act 1900 (ACT), ss 55(2), 56(2); Crimes Act 1958 (Vic), s 49B. Criminal Law Consolidation Act 1935 (SA), ss 5, 49(3); Criminal Code (Tas), s 124. Crimes Act 1900 (NSW), s 73; Criminal Law Consolidation Act 1935 (SA), ss 49(5), 57(1); Criminal Code (WA), s 322; Crimes Act 1958 (Vic), s 49C. Section 50D of the Crimes Act 1958 (Vic), inserted by Crimes Amendment (Sexual Offences) Act 2016 (Vic), makes it an offence to sexually penetrate a step-child regardless of their age, subject to exceptions/defences in new ss 50G (medical or hygienic purposes), 50H (where accused did not consent) or 50I (where step-parent has never played the role of parent, and step-child is over 18). Crimes Act 1900 (NSW), s 73; Crimes Act 1958 (Vic), s 49C; Criminal Law Consolidation Act 1935 (SA), ss 49(5), 57; Criminal Code (WA), s 322. MCCOC, Chapter 5—Sexual Offences Against the Person, Report (1999) p 19. R v Howes [2000] VSC 159 at 162. Human Rights (Sexual Conduct) Act 1994 (Cth), s 4. [11.190]

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The litigation led to the Commonwealth intervention, and the creation of a right to privacy in relation to sexual conduct between adults in private. “Adult” is specifically defined as a person over the age of 18 years. The MCCOC found this area of law highly unsatisfactory. Its proposal for a “uniform” age of consent throughout Australia diverged from an earlier recommendation against the creation of separate homosexual offences. 459 It followed, therefore, that the age of consent should apply to males and females regardless of the nature of the sexual contact, or whether it be “straight, male homosexual or lesbian”. 460 As for the precise age of consent, the MCCOC made no firm recommendations, no doubt being mindful of the political implications of lowering the homosexual act of consent. The tenor of its report suggests that it favoured, without actually recommending, that the uniform age of consent should be either 16 or 17 years of age. These suggestions have since been implemented by New South Wales, the Northern Territory, Western Australia and Queensland. The trend in the modern criminal law, reflected in these proposals for reform, is to adopt a “neutral” stance between homosexual and heterosexual sex offenders. Indeed, the MCCOC has proposed that no special homosexual offences should be included in the Code. 461 By contrast, in relation to incest, a substantive distinction is drawn between sexual abuse within and outside the family. Although incest was an ecclesiastical crime in England, it was not recognised as a felony or misdemeanour under the common law. Following the lead from England, incest was criminalised by statute in all Australian States between 1876 and 1924. 462 The concerns underlying the offence have changed over time. The offence of incest was created to reinforce the moral and religious taboo against consanguinity, though in recent years the focus has been more associated with protecting children from sexual abuse within the family. 463 The legal distinction drawn between familial and non-familial sexual abuse has been criticised as anomalous. In relation to child sexual abuse, the offending conduct may be dealt with under existing laws. In relation to adult incest, there are concerns about the criminal law unduly interfering with the sexual activity of consenting adults in the absence of significant harm to others. 464 The countervailing argument is that there are harms associated with adult incest, such as an increased risk of genetic defects from inbreeding and the violation of basic moral and religious taboos. 465 A separate offence of incest signifies the different “family context” of the abuse and a serious breach of trust involved. The arguments for and against its retention are finely balanced, and the MCCOC tentatively recommended in a discussion paper

459 460 461 462

463 464 465

MCCOC, Chapter 5—Sexual Offences Against the Person, Report (1999) p 19. MCCOC, Chapter 5—Sexual Offences Against the Person, Report (1999) p 123. MCCOC, Chapter 5—Sexual Offences Against the Person, Report (1999) p 19. J Bavin-Mizzi, “Understandings of Justice: Australian Rape and Carnal Knowledge Cases 1876–1924” in D Kirkby (ed), Sex, Power and Justice: Historical Perspectives on Law in Australia (Melbourne: Oxford University Press, 1995) p 19. See also Y Smaal, “Keeping it in the Family: Prosecuting Incest in Colonial Queensland” (2013) 37(3) Journal of Australian Studies 316. This study of 46 criminal charges of lineal family sex crime in Queensland between 1870 and 1900 reveals that the special incest provisions introduced in 1891 did not radically alter prosecution practices of father-daughter rape. While the new law did bring more cases before the courts, the inviolability of the colonial family home continued to limit the use of the new statutory incest offences in the last decade of the 19th century. MCCOC, Chapter 5—Sexual Offences Against the Person, Report (1999) p 189. MCCOC, Chapter 5—Sexual Offences Against the Person, Report (1999) p 189. MCCOC, Chapter 5—Sexual Offences Against the Person, Report (1999) p 189.

718

[11.190]

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Ch 11

that incest should be abolished. 466 Unsurprisingly, this recommendation produced a strong adverse reaction within the community. Although the MCCOC was recommending the decriminalisation of adult incest only, most responses proceeded on the misunderstanding that it was proposing the legalisation of sexual abuse within the family. The adverse reaction was sufficient enough for the MCCOC to resile from its earlier tentative recommendation to abolish incest. In its final report, therefore, the MCCOC recommended that the Model Criminal Code should contain an offence of incest. 467 Although the law of sexual offences may adopt a formal stance of neutrality between different types of offenders and victims for the purpose of criminalisation, such distinctions continue to have practical significance within the criminal justice system. The offender’s sexual orientation and whether the abuse occurred within or outside the family continue to play a significant role in determining the perceived seriousness of the offence, and the level of available resources and methods of investigation used by law enforcement agencies. The practical significance of these distinctions is apparent in the findings and recommendation of an inquiry into paedophilia in New South Wales headed by Justice Wood. 468 In defining the scope of the inquiry, the Wood Royal Commission considered the range of classifications used by psychiatrists specialising in the area of child sex offenders. The Commission concluded that a distinction could be drawn between familial and extra-familial child sexual abuse on the ground that the latter type of offender could be regarded as more fixated and dangerous. This classification led the Commission to focus its paedophilia inquiry on the “homosexual, extra-familial offender”. However, as Annie Cossins points outs, the classification is not consistent with either psychological literature or data on sex abuse gathered by victim report studies. 469 She summarises her concerns with the Commission’s approach to research as follows: “In summary, a distinction based on the abuse of children inside and outside the home is problematic since it ignores the possibility that offenders may choose their victims merely because of access and opportunity and perpetuates the unsupported assumption that intrafamilial abuse of girls is less serious or less damaging than extrafamilial abuse of boys. Such a distinction also obscures the substantial body of empirical data that shows that a significant proportion of so-called regressed offenders do not confine themselves to the sexual abuse of children within the family and that some also abuse male children.” 470

Further criticisms have been levelled at the Wood Royal Commission for displacing the feminist argument that sexual abuse is the result of aggression, and a permutation of masculine sexual coercion, instead re-centring the Royal Commission’s inquiry on the proposition that

466

467 468 469

470

MCCOC, Chapter 5—Sexual Offences Against the Person, Discussion Paper (1996) made the tentative proposal that the offence should be repealed, taking the view that other offences in the Code prohibited sexual contact with children and other unwanted forms of sexual contact. The controversy which greeted the recommendation is reviewed in the MCCOC, Chapter 5—Sexual Offences Against the Person, Report (1999) p 193. MCCOC, Chapter 5—Sexual Offences Against the Person, Report (1999) p 197. Royal Commission into the New South Wales Police Service, Volume IV: The Paedophile Inquiry, Final Report (Sydney: New South Wales Government, 1997). A Cossins, “A Reply to the NSW Royal Commission Inquiry into Paedophilia: Victim Report Studies and Child Sex Offender Profiles—A Bad Match?” (1999) 32(1) Australian and New Zealand Journal of Criminology 42 at 46–54. A Cossins, “A Reply to the NSW Royal Commission Inquiry into Paedophilia: Victim Report Studies and Child Sex Offender Profiles—A Bad Match?” (1999) 32(1) Australian and New Zealand Journal of Criminology 42 at 54. [11.190]

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“sex offenders [are] fundamentally different from ‘normal’ men”. 471 The distinction between intra- and extra-familial abuse, drawn by the Royal Commission, while empirically dubious and strictly legally irrelevant, remains significant in both practical and political terms. The recommendations for new police powers and laws were directed primarily to child sexual abuse that occurred outside the family. As a result, specialised police units, such as the Child Protection Enforcement Agency in New South Wales, were established to investigate paedophiles, distinguishing their activities from “normal child abuse investigations” on the ground that (homosexual) paedophilia was more organised and that the threats were international as well as domestic. It was made clear that these investigative units would not ordinarily be concerned with child sexual abuse by family members. 472 As Cossins concludes, the moral panic about paedophilia and allegations of police involvement in protecting “known” paedophiles have resulted in law enforcement resources being channelled into investigating the “extra-familial homosexual offender”. This, in turn, has diverted resources and public attention from the most common form of child sexual abuse, namely, child sexual abuse against females. Such abuse remains protected within the private sphere of the family, left in the hands of the family and to be resolved by welfare services and social workers, rather than police and prosecutors. 473 Although the criminal law may remove the substantive distinctions between types of child sexual abuse based on either the sexual orientation of the offender or the familial relationship with the victim, Cossins’ research demonstrates that such distinctions remain crucial in practice for determining the availability of investigative resources and the likelihood of prosecution. 474

Reform and public policy perspectives A New Offence of Institutional Child Sexual Abuse Lessons from a Royal Commission [11.195] On Monday 12th November 2012, revelations of extensive and systemic cover-ups of child sexual abuse within the Catholic Church led the then Labor government to announce the creation of the national Royal Commission into Institutional Child Sexual Abuse (hereafter, the “ICSA Commission”). 475 Extending beyond faithbased sectors, the ICSA Commission’s landmark inquiry seeks to expose, acknowledge and remedy the historical and ongoing sexual abuse of children across a wide variety of institutional settings. 476 This inquiry into a wide range of “systemic issues” has been

471

472

473

474 475 476

720

M Salter, “The Privatisation of Incest: The Neglect of Familial Sexual Abuse in Australian Public Inquiries” in Y Smaal, A Kaladelfos and M Finnane (eds), The Sexual Abuse of Children: Recognition and Redress (Victoria: Monash University Publishing, 2015) p 114. A Cossins, “A Reply to the NSW Royal Commission Inquiry into Paedophilia: Victim Report Studies and Child Sex Offender Profiles—A Bad Match?” (1999) 32(1) Australian and New Zealand Journal of Criminology 42 at 55. A Cossins, “A Reply to the NSW Royal Commission Inquiry into Paedophilia: Victim Report Studies and Child Sex Offender Profiles—A Bad Match?” (1999) 32(1) Australian and New Zealand Journal of Criminology 42 at 56. These arguments are further developed in A Cossins, Masculinities, Sexualities, and Child Sexual Abuse (The Hague: Boston, Kluwer Law International, 2000). S Cullen, “Gillard Launches Royal Commission into Child Abuse” ABC News (online), 12 November 2013: http://www.abc.net.au/news/2012-11-12/gillard-launches-royal-commission-into-child-abuse/4367364 Royal Commission into Institutional Responses to Child Sexual Abuse (2014). “Terms of Reference” http://www.childabuseroyalcommission.gov.au/about-us/terms-of-reference. I Ceranic, “Hundreds of Child Sexual Abuse Complaints Referred to Police: Royal Commission Chair” ABC News (online) 15 July 2015: [11.195]

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informed by the testimony of individual witnesses recounting the institutional failures to prevent, report or remedy their abuse. 477 As editors of a recent collection of essays examining ICSA note, though sexual abuse of children has been recognised as a serious criminal act for more than 150 years, 478 the particular terms of “child sex abuse” and “institutional abuse of children” emerged in the latter half of 20th century, in 1969 and 1975 respectively. 479 The under-reporting of abuse and lack of corroboration of complaints limited the criminal justice system’s capacity to investigate and prosecute these crimes effectively. The prevalence and inadequate responses from the law enforcement have been revealed in a series of state-based inquiries in New South Wales and Victoria; 480 the ICSA Commission also found that reporting of abuse was rare, 481 policing inconsistent (often dependent on the social status and the identity of the complainant), 482 and the criminal justice system ill-suited to recognise the dynamics of institutional abuse. Beginning in the late 19th century, legislators across Australia recognised the potential for sexual abuse within schools, by criminalising sexual relationships between male teachers and female students. 483 That said, “[b]etween the late 1800s and the 1960s, very few revisions or amendments were made to Australia’s then enacted sexual offence legislation”. 484 In fact, the prevalence and impact of abuse was often marginalised and trivialised. A child’s fear and confusion were often dismissed as culturally based, 485 or fabricated by “promiscuous or aggressive children”. 486 The women’s movement in the 1970s and 1980s repositioned sexual abuse as a significant social and political issue, http://www.abc.net.au/news/2015-07-15/child-abuse-royal-commission-chair-speaks/6621742 477

478 479

480

481 482

483

484

485 486

P McClellan, “Address” (Speech delivered at the 14th International Criminal Law Congress, Melbourne, 9 October 2014). See, generally, Y Smaal, A Kalafeldos and M Finnane (eds), The Sexual Abuse of Children: Recognition and Redress (Victoria: Monash University Publishing, 2016). A Kaladelfos, Y Smaal and M Finnane, “Introduction” in in Y Smaal, A Kalafeldos and M Finnane (eds), The Sexual Abuse of Children: Recognition and Redress (Victoria: Monash University Publishing, 2016) pp 1, 2. K Daly, “Money for Justice?: Money’s Meaning and Purpose as Redress for Historical Institutional Abuse” in Y Smaal, A Kalafeldos and M Finnane (eds), The Sexual Abuse of Children: Recognition and Redress (Victoria: Monash University Publishing, 2016) pp 160, 162. M Salter, “The Privatisation of Incest: The Neglect of Familial Sexual Abuse in Australian Public Inquiries” in Y Smaal, A Kalafeldos and M Finnane (eds), The Sexual Abuse of Children: Recognition and Redress (Victoria: Monash University Publishing, 2016) pp 108, 117. See for example Royal Commission into Institutional Child Sexual Abuse. 30 June 2014, “Interim Report”: http://www.childabuseroyalcommission.gov.au/about-us/our-reports. Persons in authority, such as teachers and clergy, have been particularly difficult to sustain complaints of abuse against: see A Kaladelfos and L Featherstone, “Sexual Assault by Teachers: Historical Legislative, Policy and Prosecutorial Responses” in Y Smaal, A Kaladelfos and M Finnane (eds), The Sexual Abuse of Children: Recognition and Redress (Victoria: Monash University Publishing, 2016) pp 20, 28. A Kaladelfos and L Featherstone, “Sexual Assault by Teachers: Historical Legislative, Policy and Prosecutorial Responses” in A Kaladelfos, Y Smaal and M Finnane (eds), The Sexual Abuse of Children: Recognition and Redress (Victoria: Monash University Publishing, 2016) pp 20, 22. The South Australian provision, inserted by the Criminal Law Consolidation Amendment Act 1885 (SA), enacted the widest institutional sexual offence, criminalising sexual conduct with guardians, teachers or school masters with both male and female children under the age of 18. H Boxall, AM Tomison, and S Hulme, Historical Review of Sexual Offence and Child Sexual Abuse Legislation in Australia: 1788–2013, Special Report (Canberra, Australian Institute of Criminology, 2014) p 95, http://www.aic.gov.au/media_library/publications/special/007/Historical-review-sexual-offencechild-sexual-abuse.pdf. E Olafson, D Corwin and R Summit, “Modern History of Child Sexual Abuse Awareness: Cycles of Discovery and Suppression” (1993) 17 Child Abuse and Neglect 7. H Boxall, AM Tomison, and S Hulme, Historical Review of Sexual Offence and Child Sexual Abuse Legislation in Australia: 1788–2013, Special Report (Canberra, Australian Institute of Criminology, 2014) [11.195]

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leading to amendments and revisions to Australia’s sexual abuse legislation. 487 Legislatures have since sought to remove gendered language from sexual offence provisions, expand the definition of rape/sexual assault, decriminalise homosexual sexual acts, 488 introduce legislation criminalising the use and distribution of child abuse and pornography materials as well as create mandatory reporting laws. 489 Notably, Victoria and Western Australia were late to introduce mandatory reporting, passing legislation in 1993 and 2008 respectively. 490 Even with these specific legislative provisions, research demonstrates that proportionately fewer incidents of sexual abuse against children result in the commencement of proceedings, than offences involving adults. 491 One major obstacle to both prosecution and conviction is the fear of relying upon a child’s testimony. 492 This fear can be traced to both entrenched patriarchal assumptions that tend to suspect girls of making false accusations, 493 as well as the suggestibility and inaccuracies associated with a child’s memory. 494 Although reforms have been implemented in many jurisdictions to make the legal system more accessible and improve the reliability of a child’s testimony (e.g. the use of CCTV, support people and limiting delay in trials), these changes have generally targeted the way in which children are to give direct evidence to lawyers. 495 The processes governing cross-examination however, “described as a ‘how not to’ guide to interviewing children” have been largely without amendment. 496 p 95, http://www.aic.gov.au/media_library/publications/special/007/Historical-review-sexual-offence-childsexual-abuse.pdf. 487

H Boxall, AM Tomison and S Hulme, Historical Review of Sexual Offence and Child Sexual Abuse Legislation in Australia: 1788–2013, Special Report (Canberra, Australian Institute of Criminology, 2014) http:// www.aic.gov.au/media_library/publications/special/007/Historical-review-sexual-offence-child-sexualabuse.pdf.

488

A notable exception being Tasmania, which passed the relevant legislation in 1997: Criminal Code Amendment Act 1997 (Tas). H Boxall, AM Tomison and S Hulme, Historical Review of Sexual Offence and Child Sexual Abuse Legislation in Australia: 1788–2013, Special Report (Canberra, Australian Institute of Criminology, 2014) p 1, http://www.aic.gov.au/media_library/publications/special/007/Historical-review-sexual-offencechild-sexual-abuse.pdf. Children and Young Persons (Further Amendment) Act 1993 (Vic); Children and Community Services Amendment (Reporting Sexual Abuse of Children) Act 2008 (WA). K Richards, “Child Complainants and the Court Process in Australia” (2009) 380 Trends and Issues in Crime and Criminal Justice: Australian Institute of Criminology 1 at 2: http://www.aic.gov.au/publications/ current%20series/tandi/361-380/tandi380.html. JM Golding, KR Lynch, NE Wasarhaley and PS Keller, “Courtroom Perceptions of Child Sexual Assault” (2015) 42(7) Criminal Justice and Behaviour 763. A Kaladelfos and L Featherstone, “Sexual Assault by Teachers: Historical legislative, policy and prosecutorial responses” in Y Smaal, A Kalafeldos and M Finnane (eds), The Sexual Abuse of Children: Recognition and Redress (Victoria: Monash University Publishing, 2016) pp 20,28. JM Golding, KR Lynch, NE Wasarhaley and PS Keller, “Courtroom Perceptions of Child Sexual Assault” (2015) 42(7) Criminal Justice and Behaviour 763; A Kaladelfos and L Featherstone, “Sexual Assault by Teachers: Historical Legislative, Policy and Prosecutorial Responses” in Y Smaal, A Kalafeldos and M Finnane (eds), The Sexual Abuse of Children: Recognition and Redress (Victoria: Monash University Publishing, 2016). S O’Neill and R Zajac, “Child Sexual Abuse Complainants under Cross-examination: The Ball is in our Court” in Y Smaal, A Kalafeldos and M Finnane (eds), The Sexual Abuse of Children: Recognition and Redress (Victoria: Monash University Publishing, 2016) pp 132, 133. S O’Neill and R Zajac, “Child Sexual Abuse Complainants under Cross-examination: The Ball is in our Court” in Yorick Smaal, Andy Kalafeldos and Mark Finnane (eds), The Sexual Abuse of Children: Recognition and redress (Monash University Publishing, 2016) pp 132, 134.

489

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492 493

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It is important here to differentiate between the evidentiary problems associated with contemporary allegations of institutional abuse and the testimony of adults as to historical crimes (although it should be noted that the line between when an incident is historical or contemporary is confused by the delay inherent in most reports and prosecutions of child sexual offences). 497 This is important as most of the recent reports of abuse are as to incidents that occurred decades ago. 498 For all allegations of sexual offences, it is generally accepted that a detailed and complete account of the abuse should be obtained from the source at the earliest, to avoid any potential memory loss or contortion. 499 Studies have shown that even one piece of additional evidence, 500 corroborating the complainant’s testimony increases the chances not only of a jury reaching a guilty verdict, but of the accused themselves making a confession to the police. 501 Of course, in historical cases not only will obtaining an early account be impossible, but the prosecution case will often be weak as any corroborating evidence is likely to have been lost or destroyed, witnesses unavailable and memories fuzzy. 502 Additionally, a further concern in these cases is that the secrecy inherent in cases of institutional child sexual abuse, compounded by the reluctance of victims to report, means that offenders convicted in institutional contexts tend to be older than those convicted of offences generally. 503 Old age and the physical condition of the perpetrator are relevant to

497

498 499 500

501

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503

M Kebbell and Nina Westera, “Investigating Historical Allegations of Sexual Abuse: The Investigation of Suspected Offenders” in Yorick Smaal, Andy Kalafeldos and Mark Finnane (eds), The Sexual Abuse of Children: Recognition and redress (Monash University Publishing, 2016) pp 123, 124. K Terry, “Child Sexual Abuse in the Catholic Church” in Y Smaal, A Kalafeldos and M Finnane (eds), The Sexual Abuse of Children: Recognition and Redress (Victoria: Monash University Publishing, 2016) pp 78, 89. J Read and DA Connolly, “The Effects of Delay on Long-term Memory for Witnessed Events” in MP Toglia, JDon Read, DR Ross and RCL Lindsay (eds), Memory for Events (Lawrence Erlbaum Associates, Vol I, 2007). Additional evidence can be by way of a record of a previous complaint made by the victim; evidence of a defendant’s prior or subsequent misconduct; documentation of the complainant’s injuries; independent eye-witness accounts; circumstantial evidence such as family members who testify as to having witnessed certain grooming behaviours, etc. See for additional sources of corroborating evidence: M Kebbell and N Westera, “Investigating Historical Allegations of Sexual Abuse: The Investigation of Suspected Offenders” in Y Smaal, A Kalafeldos and M Finnane (eds), The Sexual Abuse of Children: Recognition and redress (Monash University Publishing, 2016), pp 123, 128. WA Walsh, LM Jones, TP Cross and T Lippert, “Prosecuting Child Sexual Abuse: The Importance of Evidence Type” (2010) 56(3) Crime and Delinquency 436 – “Cases with a child disclosure, a corroborating witness, an offender confession, or an additional report against the offender were more likely to have charges filed, controlling for case characteristics”. This is compounded by the fact that most jurisdictions require “that each separate act be identified with reasonable precision with reference to time, place or some other unique contextual detail”, a requirement difficult to meet where similar, repeated events occurred over a long period of time, a long time ago. See BL Guadagno and MB Powell, “A Qualitative Examination of Police Officers’ Questioning of Children about Repeated Events” (2009) 10(2) Police Practice and Research 61 at 61 citing S v The Queen (1989) 168 CLR 266; see also Podirsky v The Queen (1990) 3 WAR 128; see also M Kebbell and N Westera, “Investigating Historical Allegations of Sexual Abuse: The Investigation of Suspected Offenders” in Y Smaal, A Kalafeldos and M Finnane (eds), The Sexual Abuse of Children: Recognition and Redress (Victoria: Monash University Publishing, 2016) pp 123, 126. A Freiberg, H Donnelly and K Gelb, Sentencing for Child Sexual Abuse in Institutional Contexts: Report for the Royal Commission into Institutional Responses to Child Sexual Abuse (July 2015) p 83, https:// www.childabuseroyalcommission.gov.au/getattachment/8f9e5bb9-f560-408f-a5cc-de8700796a89/ Sentencing-for-Child-Sexual-Abuse-in-Institutional. [11.195]

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sentencing. 504 “General deterrence may be moderated if it is considered that the public might see it as unfair or unmerciful to send an elderly person to prison”. 505 A shorter sentence may be a sufficiently harsh penalty for the elderly due to the increased hardship of incarceration and the reduced likelihood of re-offending. 506 The evidentiary obstacles to prosecuting individual offenders, combined with the concerns as to the defendant’s circumstances, mean that a “just response” to ICSA should not only increase the chances of conviction, and the victim’s access to compensation, but importantly act to deter and prevent abuse in the first place. 507 Although there is an argument that targeting individual responsibility is more readily accepted by the public and jurors, focusing upon organisational responsibility recognises that the organisation itself, its cultures, policies and practices may have been criminogenic and that it is these which must change if individual behaviour is to change. 508 As such, in directing its inquiry, the Royal Commission took into account Professor Arie Freigberg’s question: “… if there are significant failures in an institution’s response to child sexual abuse, or if there is an institutional culture that encourages or tolerates abuse, should the institution be criminally liable, in addition to the individual abuser?” Constructing a new offence of institutional child sexual abuse

How the criminal law would successfully target institutions has been problematised in the report into Sentencing for Child Sexual Abuse in Institutional Contexts (hereafter, “Sentencing Report”), noting the current provisions’ narrow focus on the actions of individuals rather than on the enabling environment of institutions, 509 the limited precedents for such reforms, 510 and the significant difficulties historically in applying principles of corporate criminal responsibility to other contexts. 511 In response, the Sentencing Report proposes the enactment of a new organisational 504

505 506

507 508 509

510 511

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Age is a factor required to be taken into account by statute, see, for example, Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(j) (offender was not fully aware of the consequences of his or her actions because of … age …); Criminal Law (Sentencing) Act 1988 (SA), s 10(1)(l); Crimes Act 1914 (Cth), s 16A(2)(m). RLP (2009) VSCA 271 at [34]; Saw [2004] VSC 117; Austin (1996) A Crim R 570, 572. A Freiberg, H Donnelly and K Gelb, Sentencing for Child Sexual Abuse in Institutional Contexts: Report for the Royal Commission into Institutional Responses to Child Sexual Abuse (July 2015) p 83 citing fn 346: Sellen (1991) 57 A Crim R 313 at 318; York [2005] HCA 60; (2005) 225 CLR 466 at [23]; Tsiaras [1996] 1 VR 398; Smith (1987) 44 SASR 587, 589; Perez-Vargas (1986) 8 NSWLR 559 at 563; Cohen (No 2) [2007] WASCA 279; Houghton [2006] WASCA 143; (2006) 32 WAR 260; see also Crimes (Sentencing) Act 2005 (ACT), s 33(1)(r); Penalties and Sentences Act 1992 (Qld), s 9(6); Criminal Law (Sentencing) Act 1988 (SA), s 10(1)(l); see Australian Law Reform Commission, 2006, [6.114]ff (recommending that federal sentencing legislation should expressly recognise as a sentencing factor the likely impact of a particular sentence on the offender, including that the offender’s circumstances may result in imprisonment having an unusually severe impact on them). A Freiberg, H Donnelly and K Gelb, Sentencing for Child Sexual Abuse in Institutional Contexts: Report for the Royal Commission into Institutional Responses to Child Sexual Abuse (July 2015). A Freiberg, H Donnelly and K Gelb, Sentencing for Child Sexual Abuse in Institutional Contexts: Report for the Royal Commission into Institutional Responses to Child Sexual Abuse (July 2015) p 235. A Freiberg, H Donnelly and K Gelb, Sentencing for Child Sexual Abuse in Institutional Contexts: Report for the Royal Commission into Institutional Responses to Child Sexual Abuse (July 2015) p 219: “there are few, if any offences holding institutions directly or vicariously responsible for the commission of offences by their members, employees or associated persons”. A Freiberg, H Donnelly and K Gelb, Sentencing for Child Sexual Abuse in Institutional Contexts: Report for the Royal Commission into Institutional Responses to Child Sexual Abuse (July 2015) p 230. A Freiberg, H Donnelly and K Gelb, Sentencing for Child Sexual Abuse in Institutional Contexts: Report for the Royal Commission into Institutional Responses to Child Sexual Abuse (July 2015) p 219. [11.195]

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offence of “Institutional Child Sexual Abuse” based on civil liability models. This proposed offence would only apply to organisations (not individuals) in the following situation: (1) where a person associated with an organisation has been convicted of an offence of child sexual assault (CSA); and (2) that organisation (or high managerial agent) recklessly authorised or permitted its commission. Significantly, the fault element for this offence mirrors closely the principles of corporate criminal responsibility in the Criminal Code (Cth), criminalising the existence of a corporate culture that tolerated or led to the commission of a child sexual abuse offence. The concept of corporate culture, however, has been criticised as being unworkable as a basis for holding organisations to account; there are problems in proving the existence of a culture, difficulties in applying it to organisations that may be widely dispersed and which have fragmented management structures and varying sub-cultures, and the danger that “official” cultures may not reflect day-to-day “views, attitudes, habits and proclivities” within an organisation.

Sexual Offences Involving Persons with Mental Disabilities [11.200] The present law of rape and sexual assault provides only limited protection for adults who engage in sexual intercourse while suffering from some form of mental disability. Individuals with intellectual disabilities are especially vulnerable to sexual exploitation. Numerous studies have revealed that such individuals are prone to much higher rates of victimisation through sexual assault as well as other crimes generally. 512 The standard offences of rape, sexual assault and indecent assault are difficult to apply because of problems with proving lack of consent. In many cases, the victim, in lacking sexual experience, may simply acquiesce to the accused’s requests, unaware of the moral and social significance of the act. 513 As we have explored at [11.115], under the common law consent requires an understanding of the nature and character of the act. Fraudulent conduct by the accused or mistakes by the victim that relate to the nature and character of the act may negate consent. However, as previously noted, the law governing vitiation of consent does not require the person to understand the moral or social significance of the act. All that is required is comprehension of the physical nature and character of the act. This narrow legal standard of consent may be contrasted with the broader medical and ethical standard of informed consent that requires not only an understanding of the nature and quality of the act, but also an appreciation of the risks, harms and benefits of both allowing or refusing the act. 514 As noted above, this notion of consent under the common law has been replaced in some jurisdictions by a statutory positive consent standard based on free or voluntary agreement. In Victoria, this reform of the rules governing consent included an express provision that there is no free agreement where “the person is incapable of understanding the sexual nature of the act”: Crimes Act 1958 (Vic), s 36(2)(g). In similar terms, consent is negated in the Australian Capital Territory where it is caused “by the person’s physical helplessness or mental incapacity to

512

513 514

See M Carmody, Sexual Assault of People With an Intellectual Disability (Sydney: New South Wales Women’s Coordination Unit, 1990); B McSherry, “A Review of the New South Wales Law Reform Commission’s Report, People with an Intellectual Disability and the Criminal Justice System” (1999) 25(1) Monash University Law Review 166 at 166–167. See R v Beattie (1981) 26 SASR 481. B McSherry, “Sexual Assault Against Individuals with Mental Impairment: Are Criminal Laws Adequate?” (1998) 5(1) Psychiatry, Psychology and Law 107 at 109. See also B McSherry, “A Review of the New South Wales Law Reform Commission’s Report, People with an Intellectual Disability and the Criminal Justice System” (1999) 25(1) Monash University Law Review 166. [11.200]

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understand the nature of the act in relation to which the consent is given”. 515 Although such statutory provisions are an improvement, in each case the prosecution must prove that the victim completely lacked capacity in relation to consent. The alternative approach to relying on ordinary sexual offences, such as rape or sexual assault, is to enact special offences prohibiting sexual activity with a person suffering mental impairment irrespective of consent. These offences have the advantage of bypassing lack of consent and may relieve the victim of the burden and distress of testifying. Under these offences, the person with the mental disability is variously described as mentally ill or handicapped, or intellectually impaired or disabled. 516 These laws were enacted at a time when women with mental difficulties were routinely sterilised for their own protection, and where the rules governing the institutionalisation of the mentally ill prohibited any form of sexual activity. As these offences do not require proof of lack of consent, an accused may also be charged with the more serious crime of rape, providing the jury with a “fall back” offence. The difficulty is that special offences that dispense with consent as a defence deny the rights to sexual autonomy and privacy of persons with mental disabilities—rights that are recognised under numerous international treaties. Laws must demonstrate maximum respect for these rights and interference will only be justified where there is proven harm or the danger of exploitation. In its report Chapter 5—Sexual Offences Against the Person (1999), the MCCOC recommended the creation of three sexual offences against persons with mental disabilities: sexual penetration, indecent touching and indecent act. These specific assault and indecency offences have been implemented under the Crimes Act 1958 (Vic) to protect persons with a mental illness as “classes of persons who are particularly vulnerable to sexual exploitation and abuse”. 517 The Australian Law Reform Commission (ALRC) in its report, Family Violence—A National Legal Response (2010), subsequently considered this question of specific sexual offences against persons with cognitive impairment, but declined to make any recommendations in light of the lack of stakeholder input due to the barriers to reporting faced by persons with cognitive impairment, and the fact that their complaints are often shoehorned into administrative “rather than legal channels”. 518 Concerns about over-criminalisation were addressed by limiting the offences to individuals who are responsible for the care of a person with mental disabilities. 519 While lack of consent is not an element of these offences, it is a defence if the person with the mental disability consents and the giving of the consent was not unduly influenced by the fact that the person was responsible for the care of the person with the mental disability. 520 This approach aims to balance the needs of protecting vulnerable individuals from exploitation, while demonstrating respect for their sexual autonomy and privacy.

515 516

518 519 520

Crimes Act 1900 (ACT), s 67(1)(i). See Crimes Act 1900 (NSW), s 66F(3); Criminal Code (NT), s 130; Criminal Code (Qld), s 216; Criminal Law Consolidation Act 1935 (SA), ss 49(6), 51; Criminal Code (Tas), s 126; Criminal Code (WA), s 330. Crimes Amendment (Sexual Offences) Bill 2016 (Vic), Explanatory Memorandum, p 78; see Crimes Act 1958 (Vic) ss 52B (sexual penetration of a person with a cognitive impairment or mental illness), 52C (sexual touching, contrary to community standards of acceptable conduct), s 52D (sexual activity in the presence of a person with a cognitive impairment or mental illness), s 52E (causing a person with a cognitive impairment or mental illness to be present during sexual activity). ALRC, Report on Family Violence—A National Legal Response (2010) at [25.71], pp 1146–1147. Model Criminal Code, cll 5.2.29 – 5.2.31. MCCOC, Chapter 5—Sexual Offences Against the Person, Report (1999) p 180.

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Technological perspectives “Revenge Porn” and the Distribution of Intimate or Invasive Images [11.205] A study recently reported in federal Parliament found that one in 10 Australians have had a nude or semi-nude photograph of them posted online or sent to others without their consent. 521 Adam Searle MLC stated during the New South Wales Legislative Council debates that “police were investigating after hundreds of Australian women and teenagers had their nude images shared on a [United States-based] website”. 522 This abusive, non-consensual distribution of intimate images is colloquially known as “revenge pornography”. Depicting this conduct as motivated by revenge is however misleading. The Senate Legal and Constitutional Affairs References Committee recently heard submissions that the term not only fails to recognise that strangers may, and often do, unlawfully access and distribute these images, but the term infers that the distribution was “somewhat justified” since the victim had engaged in some provocative conduct such as infidelity. 523 The term “revenge porn”, although colloquially used in the new statutory provisions enacted in the United Kingdom, Canada and New Zealand, criminalises the distribution of intimate images by any person, not just the person involved in recording the intimate images. 524 In Australia, there are equitable and civil remedies (including breach of confidence) that may offer legal remedies for victims in certain circumstances. 525 Prosecutors may also apply existing federal telecommunications offences, as well as general indecency offences, to deal with this conduct. 526 To date, Victoria and South Australia are the only local jurisdictions to have enacted legislation targeting non-consensual distribution of 521

522

523

524

525

526

A Powell and N Henry, Digital Harassment and Abuse of Adult Australians: A Summary Report (RMIT University, Melbourne, 2015); cited in Commonwealth, Parliamentary Debates, House of Representatives, 12th October 2015, 10691-95 (T Watts). New South Wales, Parliamentary Debates, Legislative Council, 23 June 2015, 57 (A Searle), citing S Fewster, “US Website Exploits Hundreds of Adelaide Women and Girls—and Refuses Victims’ Pleas to Remove Nude Images”, The Advertiser (online), 17 June 2016: http://www.adelaidenow.com.au/news/south-australia/uswebsite-exploits-500-adelaide-women-and-girls--and-refuses-victims-pleas-to-remove-nude-images/ news-story/e05e415f9e53dee3c0c33acb16051bc4. Top End Women’s Legal Service (TEWLS), Submission No 1 to Senate Legal and Constitutional Affairs References Committee, Parliament of Australia, Phenomenon Colloquially Referred to as “Revenge Porn”, 18 December 2016, p 2. See Criminal Justice and Courts Act 2015 (UK), s 33 (Disclosing private sexual photographs and films with intent to cause distress); Protecting Canadians from Online Crime Act 2014 (Canada), s 162.1 (Publication, etc of an intimate image without consent); Harmful Digital Communications Act 2015 (NZ), s 41. This latter Act did not create a new offence relating to the distribution of intimate images, however, it extended the scope of the Privacy Act 1993 (NZ), under which s 56(1) exempted people from liability for the collection, distribution or use of information that related to domestic affairs, even if harmful. Section 41 of the amending Act provides that this exclusion applies where “collection, disclosure or use would be highly offensive to an ordinary reasonable person”. Giller v Procopets [2008] VSCA 236; Wilson v Ferguson [2015] WAS 15. A recent inquiry into sending and sharing sexually abusive material concluded that existing laws are insufficient to accommodate “the intent, magnitude, and range of harms committed through inappropriate sexting practices”: Parliament of Victoria, Law Reform Committee, Inquiry into Sexting (2013) (Finding 7), http://www.parliament.vic.gov.au/images/ stories/committees/lawrefrom/isexting/LRC_Sexting_Final_Report.pdf. An example of using indecency offences is Usmanov v The Queen [2012] NSWDC 290, where the accused was found guilty under s 578C of the Crimes Act 1900 (NSW) for uploading indecent photographs of his ex-girlfriend on Facebook. [11.205]

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“intimate” or “invasive” images as a distinct sexual offence. New South Wales, Western Australia, Queensland and the Australian Capital Territory are presently considering criminalisation, 527 and a bill was introduced into federal Parliament in October 2016, inserting a new offence into the Criminal Code (Cth). The Criminal Code Amendment (Private Sexual Material) Bill 2016 (Cth), proposes to criminalise the transmission, publication and distribution of “private sexual material” via a carriage service. The offences introduced share similar features to each other, though differ in scope and key terms used. 528 As the competence of the federal Parliament to legislate under s 51(v) of the Australian Constitution is limited to “postal, telegraphic, telephonic and other like services’”, which extends to telecommunications systems, the proposed federal offence is framed in terms of infrastructure protection, namely, the prevention of misuse of telecommunications systems, known as “carriage services” under the Act. Yet, as pointed out in the parliamentary debate discussing the federal legislation, the proposed offence would extend beyond this narrow purpose, seeking to prevent harms to personal dignity, protecting the reputation, autonomy and privacy of individuals. 529 The proposed federal offence requires that the defendant’s conduct cause distress or harm to the subject of the material (or present a risk thereof). 530 By contrast, the offences in Victoria and South Australia do not require the victim to suffer any added harm as a result of distribution. 531 While the Summary Offences Act 1966 (Vic) prohibits the distribution of, as well as the threat to distribute, “intimate images”, the Summary Offences (Filming Offences) Amendment Act 2013 (SA) made it an offence to distribute “invasive images”. The latter offence excludes images of children aged under 16 years, the rationale being to avoid overlapping with existing child exploitation offences in South Australia that criminalised dealing with explicit images, under the Criminal Law Consolidation Act 1935 (SA). The South Australian government recently extended the protection to minors and created a further offence of threatening to distribute these images. 532 Section 41DA of the Summary Offences Act 1966 (Vic) provides for the offence of “Distribution of intimate images” as follows: (1) A person (A) commits an offence if – (a) A intentionally distributes an intimate image of another person (B) to a person other than B; and

527

532

Restraining Orders and Related Legislation Amendment (Family Violence) Bill 2016 (WA) introduced to Parliament in September 2016; R Gredley “New WA Laws Criminalise Revenge Porn” News.Com.Au (Online) 11 September 2016, http://www.news.com.au/national/breaking-news/new-wa-laws-criminalise-revenge-porn/ newsstory/20996ad1d7359aa0d54b376eaed78724; L McNally, “Revenge Porn to be Criminalised in Response to NSW Privacy Inquiry” ABC News (online) 5 September 2016, http://www.abc.net.au/news/2016-09-05/ criminalising-’revenge-porn’-in-nsw-a-step-closer/7813446; Commonwealth, Parliamentary Debates, House of Representatives, 17th October 2016, 2005 (T Watts). J Clough, “Revenge porn: criminal law responses” (2016) 132 Precedent 30, 32. Commonwealth, Explanatory Memorandum and Statement of Compatibility with Human Rights, House of Representatives, 17th October 2016, (T Watts): This conduct amounts to “harmful and abusive behaviour of a sexual nature”. In his second reading speech to the earlier version of the Bill in 2015, it was suggested that this form of image based sexual exploitation is “a violation of a person’s autonomy, of a person’s control over their own body. It should be seen as a form of sexual assault”: Commonwealth, Parliamentary Debates, House of Representatives, 12th October 2015, 10691–95 (T Watts). Criminal Code Amendment (Private Sexual Material) Bill 2016 (Cth) sch 1, s 2. There is no added harm element in either the South Australian or Victorian offences: Summary Offences Act 1953 (SA) s 26C; Summary Offences Act 1966 (Vic), S 41DA. See discussion of the harm element: Law Reform Committee, Parliament of Victoria, Inquiry into Sexting (2013) p 150 [6.2.4.5]. Explanatory Memorandum, Summary Offences (Filming and Sexting Offences) Amendment Bill 2015 (SA), 2.

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(b) the distribution of the image is contrary to community standards of acceptable conduct. Example: A person (A) posts a photograph of another person (B) on a social media website without B’s express or implied consent and the photograph depicts B engaged in sexual activity. (2) A person who commits an offence against subsection (1) is liable to level 7 imprisonment (2 years maximum). (3) Subsection (1) does not apply to A if – (a) B is not a minor; and (b) B had expressly or impliedly consented, or could reasonably be considered to have expressly or impliedly consented, to – i. the distribution of the intimate image; and ii. the manner in which the intimate image was distributed.

The definitions in Victoria of “intimate images”, South Australia of “invasive images” and the proposed Commonwealth definition of “private sexual material” include moving or still images that depict sexual activities, a person in a sexual manner or context, and/or in a position that reveals their genital or anal regions and/or female breasts. 533 The Summary Offences Act 1953 (SA) includes these activities within the phrase “private act”, which extends to portraying a person using a toilet. 534 Under both the Commonwealth Bill and South Australian legislation, lack of consent is a central element of these offences, and applies irrespective of the age of the person who is the subject of the material. By contrast, in Victoria, consent is deemed irrelevant where the subject of the intimate image is a minor. The breadth of the above offence suggests that it could apply to any explicit social media postings of a minor, even where parties consent to the making and posting of images. The requirement that the distribution must also offend against an objective “community standard of acceptable conduct” was presented by the legislature as an essential “safeguard against overreach”. 535 Guidance issued by the Victorian government on the new laws, which is intended to assist judges, lawyers and police to apply the law, provides the following examples of “socially acceptable distributions”: a nude new born baby photo shared amongst friends and family, a school website portraying children in swimsuits at a sports carnival, or the Pullitzer Prizewinning photograph of the naked young girl fleeing a napalm attack during the Vietnam War. 536 These issues must be determined on a case-by-case basis, having regard to the following factors listed in s 40 of the Summary Offences Act 1966 (Vic): (a) the nature and content of the image; (b) the circumstances in which the image was captured; (c) the circumstances in which the image was distributed;

533 534 535

536

Summary Offences Act 1966 (Vic), s 40; Summary Offences Act 1953 (SA), s 26A; Criminal Code Amendment (Private Sexual Material) Bill 2016 (Cth), sch 1, s 2. Summary Offences Act 1953 (SA), s 26A. Criminal Law Review, Victorian Department of Justice and Regulation, Victoria’s New Sexual Offence Laws: an Introduction (2015) p 29, http://www.justice.vic.gov.au/home/justice+system/laws+and+regulation/ criminal+law/victorias+new+sexual+offence+laws+an+introduction. A further safeguard against overreach is the clarification in s 41DA(3) that no offence is committed where B “could reasonably be considered to have expressly or impliedly consented”. Criminal Law Review, Victorian Department of Justice and Regulation, Victoria’s New Sexual Offence Laws: an Introduction (2015) p 29, http://www.justice.vic.gov.au/home/justice+system/laws+and+regulation/ criminal+law/victorias+new+sexual+offence+laws+an+introduction. [11.205]

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(d) the age, intellectual capacity, vulnerability or other relevant circumstances of a person depicted in the image; (e) the degree to which the distribution of the image affects the privacy of a person depicted in the image.

Section 41DA(3), however, creates an exception where the parties are adults. The Commonwealth proposed offence explicitly requires knowledge or recklessness as to lack of consent of the subject of private intimate material. 537 The Victorian offence is silent about the requisite fault element (beyond requiring an intentional act of distribution), though the ordinary statutory presumption in favour of a subjective mental state suggests that the defendant must additionally know or be reckless that the other person did not consent to the distribution. Alternatively, if the offence is deemed to be one of strict liability, a mistaken belief in consent will preclude liability provided that this belief is based on reasonable grounds. As the application of s 26C applies to images of children (under the age of 17 years), this extended definition poses the danger of criminalising the distribution of otherwise “innocent” images of minors. Accordingly, the Summary Offences (Filming and Sexting Offences) Amendment Bill 2016 (SA) has excluded from its ambit “an image of a person that falls within the standards of morality, decency and propriety generally accepted by reasonable adults in the community”, 538 which, as the Explanatory Notes point out, is a familiar test in the criminal law. 539 Beyond criminalising the circulation of invasive images, s 26B of the Summary Offences Act 1953 (SA) targets the creation of images, provided that the filming is considered by the community to be “humiliating or degrading”. This offence covers the filming of an assault or acts of violence against the victim, or where the person filmed “is being subjected to, or compelled to engage in, a humiliating or degrading act”. 540 It is a defence if the offender reasonably believed that the victim consented to the filming. 541 The term “distribution” in the above offences is defined broadly; for example, “distribute” under the Victorian offence provision includes “publish, exhibit, communicate, send, supply or transmit to any other”, as well as to “make available for access by another”. 542 To be convicted of an offence by “distribution”, the offender does not have to have taken part in the creation of the original images. 543 For constitutional reasons, related to the head of power discussed above, the Federal legislature is constrained by the scope of s 51(v) of the Australian Constitution and as such applies to the “use of the Internet, email, SMS and other online applications or technological tools to engage in revenge porn”. 544 In terms of the types of distribution covered, the State protections are broader, extending to “offline” methods of circulation. 537

538 539 540 541 542 543 544

The Criminal Code Amendment (Private Sexual Material) Bill 2016 (Cth), sch 1, s 2. applies to any act of engaging with “private sexual material” (a) without consent of the subject of the material; and (b) with knowledge or recklessness as to the other person’s lack of consent. The offence has the additional requirement that for material to be “private sexual material”, a “reasonable person in the position of the subject would expect the material to be kept private”. Summary Offences Act 1953 (SA), s 26A(3). Explanatory Memorandum, Summary Offences (Filming and Sexting Offences) Amendment Bill 2015 (SA) 2. Summary Offences Act 1953 (SA), s 26A. Summary Offences Act 1953 (SA), s 26B(4)(d). Summary Offences Act 1966 (Vic), s 40. J Clough, “Revenge Porn: Criminal Law Responses” (2016) 132 Precedent 30 at 32. Explanatory Memorandum, Criminal Code Amendment (Private Sexual Material) Bill 2015 at 18.

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As far as the actual distribution of images is concerned, neither the Victorian, South Australian nor proposed federal offences require the accused to have intentionally caused harm. The rationale behind this approach is to recognise as criminal behaviour the distribution of images by a person unknown to the victim. 545 In Victoria, the Crown needs to prove that: “A intends that B will believe or believes that B will probably believe, that A will carry out the threat”. The South Australian and proposed federal offences contain defences relating to law enforcement activities, 546 as well as conduct engaged in for legal, medical or scientific purposes. 547 The South Australian offence also provides a defence for licenced private investigators. 548 The equivalent Victorian legislation, however, lists law enforcement activities as an exception to s 41C (distribution of intimate images), 549 and purports to exempt conduct engaged in for medical purposes (and presumably other legitimate purposes, i.e. legal, scientific or journalistic) only so far as the subject “expressly or impliedly consented to the distribution of the image for that purpose or a similar purpose”. 550 There is a nationwide trend towards enacting new offences to deal with new technology-enabled forms of sexual abuse and family violence. In relation to the latter, the Restraining Orders and Related Legislation Amendment (Family Violence) Bill 2016 (WA) was introduced into Parliament proposing, among other things, to include “distributing or publishing, or threatening to publish, intimate images” within the definition of family violence, and permitting the issuing of restraining orders against such conduct. 551 The problem with this approach to reform is that this type of sexual abuse does not always occur in the context of family or intimate relationships, leaving some victims unable to access much-needed protection or restraining orders unless the abuse triggers some other ground for justifying an order, such as a stalking or harassment etc. The scope and limits of existing protection orders are further discussed in Chapter 13, [13.20].

545 546

547

548 549 550

551

J Clough, “Revenge Porn: Criminal Law Responses” (2016) 132 Precedent 30 at 32–33. Summary Offences Act 1966 (Vic), s 41D; Summary Offences Act 1953 (SA), s 26C; Criminal Code Amendment (Private Sexual Material) Bill 2015 (Cth), clause 2, inserting s 474.24H(4) (Duties of law enforcement officer, or intelligence or security officer). Summary Offences Act 1953 (SA), s 26C(2)(a)(ii); Criminal Code Amendment (Private Sexual Material) Bill 2015 (Cth), clause 2, inserting s 474.24H(2)(d), which defines public benefit as including scientific, medical or educational research related. Summary Offences Act 1953 (SA), s 26C(2)(b). Summary Offences Act 1966 (Vic), s 41D. Summary Offences Act 1966 (Vic), s 41D(2)(a), which contains the following example: “Example 1: A patient gives consent to doctor A distributing an image of a mole in her genital region to another doctor for a second opinion. A distribution by doctor A of the image to a non-medical friend is not covered by the exception as the purpose of the distribution is different.” See Restraining Orders and Related Legislation Amendment (Family Violence) Bill 2016 (WA), cl 10G(2)(d), The Explanatory Memorandum notes that the purpose of the reform recognises “the role of technology in facilitating family violence and mirror the references in section 5A”. [11.205]

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INDECENCY OFFENCES Regulating Sexual Decency [11.210] Although autonomy is much vaunted in legal rhetoric, the vast majority of sexual offences, regardless of whether they require proof of lack of consent, function as a specie of public order offences. 552 This is particularly true of indecency offences. These offences range from “indecent assaults”, involving non-consensual physical interference in indecent circumstances, through to “acts of indecency” or “gross indecency” where there is no such interference, such as indecent exposure involving flashing or sexual activity in public and even nudism. 553 Indecent and obscene language and behaviour are also criminalised as minor public order offences: see Chapter 13. Though they are broad and nebulous offences which unreasonably interfere with freedom of expression, the majority of the High Court in Coleman v Power 554 held that these restrictions were justifiable on the implied constitutional freedom of expression, discussed in Chapter 13, [13.160]. 555 Indecency offences are statutory in origin, modelled on English reforms enacted in the 19th century. These laws were primarily enacted to protect females against sexual predation that did not constitute the full offence of rape or an attempt. With the adoption of extended definitions of “sexual intercourse” to include non-penile sexual interference in the modern law of rape and sexual assault, there is now a substantial overlap with indecency offences. As noted above, indecency offences come in many forms. The issue of consent is not dealt with uniformly. While consent cannot be raised as a defence to acts of indecency with minors or where the indecent conduct occurred in public, the prosecution must prove lack of consent for indecent assault. In relation to indecent assault, the elements of common assault must be proved. In most cases, the common assault element will be satisfied by a non-consensual touching of another person or the infliction of actual bodily harm: see R v Kimber 556 and R v Donovan, 557 respectively. As Lord Ackner noted in R v Court, 558 the authorities also established that an indecent assault “need not involve any physical contact but may consist merely of conduct which causes the victim to apprehend immediate and unlawful personal violence”. 559 In relation to common assault, consent ordinarily vitiates liability. This rule is subject to the public policy proviso that consent is no defence to conduct that is intended or likely to cause bodily harm unless it falls within a recognised exception, such as lawful sports 552 553

554 555

556 557 558 559

N Lacey, Unspeakable Subjects (Oxford: Hart Publishing, 1998) p 104. Reflecting this reality, textbooks may discuss indecency offences in the chapter dealing with public order rather than sexual offences. Indecency is an element of a wide range of offences: see Crimes Act 1900 (ACT), ss 48, 57 – 61, 64, 392, 393; Crimes Act 1900 (NSW), ss 61L, 61M, 61N, 61O, 61P, 81C, 578C; Criminal Code (NT), ss 125B, 125C, 127(1)(b), 128(1)(b), 130(2)(b), 131(1)(b), 132, 133, 140, 188(2)(k), 192, 201; Criminal Code (Qld), ss 210, 216(2), 219, 227, 228, 236, 352; Criminal Law Consolidation Act 1935 (SA), ss 56, 58, 58A; Criminal Code (Tas), ss 127, 127A, 137, 138, 139; Crimes Act 1958 (Vic), ss 49D(1), 49E, 49F, 49G, s 49I, s 52C, 52D, 52E; Criminal Code (WA), ss 203, 204, 214, 320, 321, 322, 323, 324, 329, 330. The Explanatory Memorandum to the Crimes Amendment (Sexual Offences) Act 2016 (Vic) states that new provisions replace to a large extent the outdated and ambiguous language of “indecency” with clearer wording describing sexual touching that is “contrary to the community standards of acceptable conduct”, p 24, http://www.legislation.vic.gov.au. Coleman v Power [2004] HCA 39. The ambit of the offences introduced by the Crimes Amendment (Sexual Offences) Act 2016 (Vic) is discussed in Parliament of Victoria, Scrutiny of Acts and Regulations Committee Report, Alert Digest No. 9/2016, (21 June 2016) pp 12–13, http://www.parliament.vic.gov.au/images/stories/committees/sarc/Alert_Digests/ Alert_Digest_No_9_of_2016.pdf (cited 13 October 2016). R v Kimber [1981] 1 WLR 1118. R v Donovan (1934) 25 Cr App R 1. R v Court [1989] 1 AC 28. R v Court [1989] 1 AC 28 at 42.

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or games, medical treatment and so on. 560 This public interest limitation would presumably be applied to indecent assault, and exclude consent as a defence for most forms of heterosexual or homosexual sadomasochism. The use of any physical force by an accused in this context may also raise the possibility that the consent to otherwise indecent conduct has been vitiated under the common law rules. These rules have been considered (at [11.110]) in the context of sexual offences. The key element of all offences of indecency, which places them within the framework of sexual offences rather than offences against the person, is the requirement that the accused’s conduct was objectively “indecent”. Indecency is a matter to be determined by reference to community standards, and must be accompanied by an indecent intent. This requirement is reflected in the 2016 amendments to the Crimes Act 1958 (Vic) where the “outdated and ambiguous” concept of indecency is replaced with touching “contrary to community standards of acceptable conduct”. As the Explanatory Memorandum points out, this merely reflects, rather than extends, the prevailing common law definition of “indecent”, examined further below. 561 Tests of sexual indecency [11.215] Two questions arise in regard to offences dealing with indecency. First, what constitutes an act of indecency? Secondly, must the accused know that the act committed is indecent? In other words, must the accused act with indecent motives? In R v Court, 562 the House of Lords considered the definition of indecency for the purpose of indecent assault. The accused had spanked a 12–year-old girl 12 times across her bottom. When asked by the police why he did it, he replied, “I don’t know, buttock fetish”. He was convicted of indecent assault. The questions on the appeal related to the meaning of indecency and whether the accused had to have an indecent purpose or intention. Lord Ackner, with whom the majority agreed, made the following points in this regard. On a charge of indecent assault, he stated, the prosecution must prove that: (1) the accused intentionally assaulted the victim; (2) the assault, or the assault and the circumstances accompanying it, are capable of being considered by right-minded persons as indecent; and (3) the accused intended to commit such an assault as is referred to in (2) above. 563

Lord Ackner noted that the trial judge defined indecent as meaning “overtly sexual”. 564 While a convenient shorthand, this definition did not encompass those cases where the conduct “may have only sexual undertones”. Consequently, Lord Ackner offered the following alternate definition of indecency: “A simpler way of putting the matter to the jury is to ask them to decide whether ‘right-minded persons would consider the conduct indecent or not.’ It is for the jury to decide whether what occurred was so offensive to contemporary standards of modesty and privacy as to be indecent.” 565

This objective test of indecency departs from the earlier view that a common assault combined with an indecent motive or intent constituted an indecent assault. Lord Ackner stressed that 560 561 562 563 564 565

R v Brown [1993] 2 WLR 556. Crimes Amendment (Sexual Offences) Bill 2016 (Vic), Explanatory Memorandum, p 27. R v Court [1989] AC 28. R v Court [1989] AC 28 at 45–46 per Lord Ackner. R v Court [1989] AC 28 at 42 applying a definition offered by Williams in Textbook of Criminal Law (2nd ed, London: Stevens & Sons, 1983) p 231. R v Court [1989] AC 28 at 42. [11.215]

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the conduct must also be indecent according to community standards, and that if the conduct was incapable of being so regarded, it could not be converted into an offence by the mere existence of an undisclosed or secret indecent intent. 566 This two-stage test for indecency is similar in its structure and function to the test of dishonesty applied to property offences, as discussed in Chapter 12, [12.45]. The majority in Court, in dismissing the appeal, held that on these facts, the assault was capable of being indecent since the accused’s “explanation” demonstrated that his conduct was intended to be indecent. Lord Ackner drew a distinction between two situations: ″1. The first related to conduct which was “inherently indecent”, where the facts of the case “devoid of any explanation, would give rise to an irresistible inference that the accused intended to assault his victim in a manner which a right-minded person would clearly think was indecent”. 2. The second related to conduct which was equivocal, where the facts of the case are consistent with both an innocent and an indecent interpretation.” 567

In the latter situation, in determining whether such conduct would be regarded as indecent, the jury may consider a range of factors, including: “the relationship of the defendant to his victim—were they relatives, friends or virtually complete strangers? How had the defendant come to embark on this conduct and why was he behaving in this way? Aided by such material, a jury would be helped to determine the quality of the act, the true nature of the assault and to answer the vital question—were they sure that the defendant not only intended to commit an assault upon the girl, but an assault which was indecent—was such an inference irresistible?” 568

An indecent intention was crucial in equivocal cases, such as buttock spanking of a child, which may be consistent with innocent conduct, namely, reasonable chastisement. Lord Ackner firmly rejected the view (which had been held by the Court of Appeal) that mere awareness or recklessness as to indecent circumstances could suffice. 569 Accordingly, the accused’s statement about his fetish was admissible as it revealed his sexual motives for spanking the girl, from which an indecent intention could be inferred. 570 While the majority emphasised the importance of a subjective intent and sexual motives, Lord Goff, dissenting, held that an intention to obtain sexual gratification should not be an element of the offence and that proof of indecent intent is not required. He pointed out that, under the majority’s view, a man who forcibly undresses a woman in public just because he is a misogynist, or because he wants to embarrass her, or because he is mischievous, is not guilty of indecent assault. 571 The “ordinary meaning” approach to indecency applied by the House of Lords has been followed by the New South Wales Court of Criminal Appeal in R v Harkin. 572 The accused was a “family friend” of two young girls who often came to stay with him during the school holidays. The accused took the girls, who were both 11, for a drive in his car to a nearby bush track. Each girl then had a turn at steering the car while sitting on his lap. While one of the girls was steering, the accused fondled her breasts and vagina. He fondled the breasts of the second girl in a similar fashion. The trial judge directed that indecency is to be determined by 566 567 568 569 570 571 572

R v Court [1989] AC 28 at 42. R v Court [1989] AC 28 at 43. R v Court [1989] AC 28 at 43 (emphasis in original). R v Court [1989] AC 28 at 44–45. R v Court [1989] AC 28 at 35 per Lord Griffiths. R v Court [1989] AC 28 at 49. R v Harkin (1989) 38 A Crim R 296.

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the “ordinary standards of morality of respectable people within the community”. The accused was convicted. On appeal to the New South Wales Court of Criminal Appeal, the defence claimed that it was a misdirection to use “morality” as the standard to determine indecency. Lee J approved the definition of indecency applied by Lord Ackner in Court. Defining indecency in terms of the “ordinary standards of morality of respectable people within the community” was not a misdirection, and, indeed, served to remind jurors of their task in maintaining the standards of decency in the community to which they belonged. 573 The second ground for appeal was that the trial judge had not directed that the accused’s acts were intended by him for his sexual gratification. The court held that for his acts to be rendered indecent assault, the assault must have a sexual connotation. This may be objectively determined by the “area of the body” of either the victim or the accused: “The genitals and anus of both male and female and the breast of the female are the relevant areas”. 574 Thus, intentionally touching the breast of a girl would be sufficient to give the assault the necessary sexual connotation and to render it capable of being indecent. For these cases, the purpose or motive of the accused is irrelevant and the intentional doing of the act is sufficient to put the matter to the jury. This formulation expands the test in Court: it omits Lord Ackner’s qualification that inherently indecent conduct gives rise to an irresistible inference of indecency only in cases “devoid of any explanation” and, thus, would preclude the accused raising an innocent explanation to negate the inference of indecency. In other cases where the sexual connotation of the alleged conduct was objectively “equivocal”, Lee J affirmed the approach in Court, noting that the assault must be accompanied by “some intention to obtain sexual gratification”. 575 The case law in this area draws a clear distinction between acts of indecency that are: (1) unequivocal, in which case an inference of indecency arises; or (2)

equivocal, in which case the conduct may become indecent if the accused has a sexual purpose or motive.

The tests of indecency in the existing law confer a wide discretion to juries in determining indecency. Lord Ackner in Court suggested that indecency was determined principally by whether “right-minded persons would consider the conduct indecent or not” and that it was for the jury to decide whether what occurred was “so offensive to contemporary standards of modesty or privacy as to be indecent”. 576 Harkin attempted to further limit this discretion by stipulating that deliberate interference involving “defined areas” of the body are presumed to have a sexual connotation. While the MCCOC endorsed the community standards approach to indecency in Court, it rejected the idea in Harkin of listing body parts or acts as “inappropriately inflexible”. 577 The fictional “right-minded person” that lies at the heart of the legal definition of indecency fixes the boundaries of sexual propriety and decency. Like the reasonable person standard applied elsewhere in the criminal law, the right-minded person provides the external objective assessment of the community standards. As we shall see below, while these standards purport to be neutral, they may be defined and applied in ways that perpetuate discrimination against sexual minorities. 573 574 575 576 577

R v Harkin (1989) 38 A Crim R 296 at 300. R v Harkin (1989) 38 A Crim R 296 at 301. R v Harkin (1989) 38 A Crim R 296 at 301. R v Court [1989] AC 28 at 42. MCCOC, Chapter 5—Sexual Offences Against the Person, Report (1999) p 107. [11.215]

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Perspectives Policing Homosexual and Heterosexual Decency [11.220] The trend in the modern criminal law, as reflected in the MCCOC’s recommendations, 578 is firmly against the enactment of distinct “homosexual offences”. This recommendation has now been adopted by all jurisdictions; there are now no indecency offences specifically aimed at sexual conduct between males. 579 This shift away from distinct “homosexual offences” occurred only recently. Indecency offences tend to operate as public order laws, overlapping with the offensive conduct or behaviour crimes. These public order offences are discussed in Chapter 13, [13.155] “Offensive conduct and language crimes”. A fundamental right to privacy in relation to sexual conduct between adults was created by the Human Rights (Sexual Conduct) Act 1994 (Cth). As noted above, the federal Act renders inoperative any State or Territory law that arbitrarily interferes with sexual conduct between consenting adults “in private”. 580 The limiting phrase “in private” is a significant restriction on the Act’s ability to protect important facets of human sexuality. 581 Framed in this way, the Act will not restrict the operation of indecency offences proscribing sexual conduct that occurs in public. These limitations, as well as restrictions on sexual acts with minors, would fall within the legitimate restrictions on the right to privacy recognised under international human rights jurisprudence. Engaging in explicit sexual activity (either homosexual or heterosexual) in a public place may cause serious affront and distress to others, and could therefore be regarded as a form of harm that would justify restriction. 582 Milder forms of sexual expression in public may not cause sufficient “offense to others” to justify criminalisation. Clearly, the tribunal of fact, in applying the community standards of decency, will be left to grapple with these boundaries with no guidance on the limits of sexual tolerance that should be demonstrated towards sexual minorities. Similar questions have arisen over racist insults and whether these are sufficiently harmful to warrant criminalisation: see further, Chapter 13, [13.80]. The boundaries between the public and private spheres, as well as the concept of harm itself, are both contingent and highly elastic. As we explored in Chapter 2, [2.245]–[2.250] the definitions of privacy in the criminal law have tended to reflect liberal and negative notions of privacy as the right to protection from arbitrary State interference with property or person, rather than the positive concept of privacy as the right to establish, develop and fulfil one’s own emotional needs. Indeed, a notion of indecency could be developed in the future that embraces an inclusive standard of sexual decency, which recognises the value of sexual expression and diversity as an aspect of the fundamental human right to privacy. 578 579

580 581 582

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MCCOC, Chapter 5—Sexual Offences Against the Person, Report (1999). For example, s 127 of the Criminal Code (NT), before being repealed by the Law Reform (Gender, Sexuality and De Facto Relationships) Act (NT), provided a penalty of seven years imprisonment for an act of gross indecency in public between males, while the equivalent general offence of gross indecency only attracts a penalty of two years. Human Rights (Sexual Conduct) Act 1994 (Cth), s 4. S Bronitt, “The Right to Sexual Privacy, Sado-masochism and the Human Rights (Sexual Conduct) Act 1994 (Cth)” (1995) 2(1) Australian Journal of Human Rights 59 at 64–65. In all jurisdictions in Australia it is an offence to engage in an act of indecency in public. Whether an act is indecent is determined according to ordinary standards of morality and decency within the community: see R v Harkin (1989) 38 A Crim R 296. [11.220]

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Although the modern approach to sexual offences, including indecency, does not distinguish between different types of sexuality for the purpose of offence description or punishment, there is clearly considerable scope for the repression of sexual minorities whose conduct would be considered “indecent” by “right-minded persons”. The legal standards of indecency are constructed by reference to a norm of sexual decency that is implicitly hetero-sexual, and thus discriminates against sexual minorities. As Lord Ackner indicated in R v Court, 583 the jury must evaluate the question of indecency by reference to the community standards of sexual propriety. In this regard, he noted that factors such as “modesty” and “privacy” will be relevant. A wide definition of indecency leaves homosexuals susceptible to arrest and prosecution for any sexual conduct that occurs in public. While a young girl and boy passionately kissing or engaged in “heavy petting” in public would not be considered indecent, a male couple kissing in a public street may be considered indecent conduct, possibly even insulting conduct, which is likely to provoke public disorder. 584 Of course, there are times within certain communities where these standards of sexual decency may be relaxed, as witnessed during the annual Sydney Gay and Lesbian Mardi Gras. Nevertheless, public expression of homosexual and other “transgressive” sexualities is usually tolerated only within the narrowly defined sphere of privacy. Stepping outside that metaphorical closet and strictly enforced zone of privacy will invite criminalisation through either indecency offences or public order crimes such as offensive conduct or behaviour. The implicitly heterosexual nature of decency not only affects the legal evaluation of conduct alleged to be indecent, it also influences law enforcement decision-making, particularly the exercise of police and prosecution discretion. Sexual conduct between homosexual males, in both public and private spaces, provokes hostile responses from the community (in some cases, leading to violence and gay-hate murder), as well as discriminatory policing and law enforcement. 585 Notwithstanding the removal of criminal prohibitions on homosexual conduct between adult males in private, the police continue to conduct widespread covert and proactive investigations against homosexual activity. 586 Undercover policing, including surveillance and entrapment, is often used against homosexual men who engage in sexual acts in public or semi-public spaces. To address concerns about discriminatory and unfair policing practices around public toilets (known as “beats”), guidelines have been developed by the police in New South Wales and South Australia to restrict the use of undercover operations. 587 Legal concepts, as well as judicial attitudes, can be slow to change. Even when formal definitions are modernised and specific “homosexual” offences repealed, policing practices and prosecutorial policy may continue to perpetuate discrimination. Police and prosecutors may choose to prosecute conduct committed under discriminatory laws that have long since been repealed. An example is R v Stringer, 588 where proceedings were launched 583 584

585 586 587 588

R v Court [1989] AC 28. Masterson and Cooper v Holden [1986] Crim LR 688 held that overt homosexual conduct could be insulting behaviour likely to cause a breach of the peace. This was a question for the decider of fact. In this case, two males kissed and fondled each other to the annoyance of passers-by. The conduct occurred at a bus stop in the early hours in Oxford Street, and the couple was unaware that anyone was watching them. The court held that this type of conduct could be insulting, even though it is not deliberately aimed at someone. G Mason and S Tomsen (eds), Homophobic Violence (Sydney: Hawkins Press, 1997). L Moran, The Homo-sexual(ity) of Law (New York: Routledge, 1996) Chs 6 and 7. For an evaluation of these police initiatives and reforms to eradicate discriminatory policing of homosexual males, see G Mason and S Tomsen (eds), Homophobic Violence (Sydney: Hawkins Press, 1997) Chs 9 and 10. R v Stringer [2000] NSWCCA 293. [11.220]

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against Rodney Stringer for six counts of indecently assaulting a male person and two counts of buggery. Each of the sexual acts allegedly committed were entirely consensual, taking place in private on several occasions in a 12-month period before 18 December 1980 (the date that Stringer turned 18). The complainant was 17 years old at the relevant time. The provisions under which Stringer was charged were repealed in 1984. Under the original offences of buggery and indecent assault, the consent and age of the parties was irrelevant. The trial judge had permanently stayed the trial on the grounds of unfairness, related to a lack of particularity regarding the dates of the alleged incidents. The Crown appealed and the stay was quashed by the majority (Groves J and Smart AJ), which held that these reasons were insufficient to warrant such a drastic remedy. In a lengthy, wide-ranging dissent, Adams J held that the prosecution was an abuse of process. In considering this question, he examined the breadth of the offence of indecent assault, noting that the offence applied to consensual gay and lesbian sexual behaviour in private, but not equivalent heterosexual conduct. 589 In his view, the offence of indecent assault was discriminatory and there was no legal authority which demanded that a distinction should be made between the decency or otherwise of heterosexual and homosexual acts. 590 Indecency was a question of law to be determined by community standards: “Community standards in this context are not the same as popular opinion or vulgar prejudice: they are the expression of standards that reflect the fundamental values of our society so far as the criminal law is concerned, including as particularly relevant here, the principle of equality before the law or equal justice.” 591

Adams J sourced these values in various international treaties, as well as the common law and constitutional jurisprudence of the High Court. 592 Another matter considered by Adams J was the operation of s 4 of the Human Rights (Sexual Conduct) Act 1994 (Cth), discussed above. The sexual privacy shield had not been raised by the defence to render inoperative the New South Wales offence, though he was prepared to express the tentative view that it could operate in this case. Even if s 4 did not render inoperative the New South Wales offences that were being prosecuted in this case, the judge was entitled to consider the Commonwealth Act as “a significant matter to be taken into account in determining the content, in law, of the community standard implicit in the element of indecency required to prove an offence”. 593 Adams J’s approach to indecency was highly innovative and clearly intended to provide suggestions to lawyers on how such matters might be argued in the future. It is, however, an exceptional approach, which, though commendable, is not supported by legal authority. Indeed, the decision in Coleman v Power? 594 suggests that Adams J’s approach would be rejected. In that case, the High Court considered a Queensland offence that prohibited the use of “insulting words”, and that also applied to “indecent” and “obscene” language and behaviour. In determining whether the offence was compatible with the implied constitutional freedom of political communication, Gleeson CJ was particularly hostile to the use of the International Covenant on Civil and Political Rights (ICCPR) in interpreting the offence provision, arguing that the Queensland provision must be interpreted by reference to the intention of the State legislature at the time the provision 589 590 591 592 593 594

R v Stringer [2000] NSWCCA 293 at [55]–[66]. R v Stringer [2000] NSWCCA 293 at [67]. R v Stringer [2000] NSWCCA 293 at [70]. R v Stringer [2000] NSWCCA 293 at [71]–[76]. R v Stringer [2000] NSWCCA 293 at [81]. Coleman v Power [2004] HCA 39.

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was enacted: “Of one thing we can be sure, the Queensland parliament, in 1931, did not intend to give effect to Australia’s obligations under the ICCPR”. 595 This approach would presumably also apply to a use of the Human Rights (Sexual Conduct) Act 1994 (Cth), which was enacted after these various provisions to give effect to the specific rights found in the ICCPR. The potential of these broad definitions to interfere with freedom of expression are discussed in Chapter 13, [13.160]. In these doctrinal discussions about the legal meaning of indecency and acceptable community standards, it is clear that morality and liberalism are engaged in a dialogue. As we examined in Chapter 1 at [1.210], this tension not only shapes the reform of the criminal law, but also informs the construction of the legal standards under which individuals are judged to be guilty.

Obscene and Indecent Publications: The Legal Regulation of Pornography I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [hardcore pornography]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it. 596

The legal definition of obscenity [11.225] An important subset of indecency laws regulates the production, supply and possession of pornography. Legal concepts such as obscenity, indecency and offensiveness play a key role in delineating between lawful and unlawful sexual material. Because obscenity laws raise concerns about freedom of expression and sexual privacy, they are generally examined in courses dealing with human rights rather than the criminal law. 597 This is unfortunate. From a criminal perspective, indecency offences provide further material upon which we may critically examine the function and values behind objective standards (in this case, decency standards) and the role of legal theory, particularly liberalism and feminism, in shaping legal policy. Under the common law, the crime of “obscene libel” prohibited any publication that had the tendency to deprave or corrupt those whose minds are open to immoral influences. 598 As we shall see below, this common law definition formed the basis of further statutory offences dealing with obscene and/or indecent publication or articles. Although the offence originated in the ecclesiastical jurisdiction, in the modern era it performs a secular function in suppressing publications perceived by the State to be politically, socially and morally subversive. In Australia, the history of these laws is bound up with state efforts to curb press freedom and impose censorship on political and literary radicals. 599 There has been a significant shift

595 596 597

598 599

Coleman v Power [2004] HCA 39 at [19]. Jacobellis v Ohio 387 US 184 (1964) at 197 per Stewart J. E Campbell and H Whitmore, Freedom in Australia (Revised ed, Sydney: Sydney University Press, 1973) Ch 13; G Flick, Civil Liberties in Australia (Sydney: Law Book Company, 1981) Ch 8; N O’Neill, S Rice and R Douglas, Retreat From Injustice (2nd ed, Sydney: Federation Press, 2004) Ch 14; B Gaze and M Jones, Law, Liberty and Australian Democracy (Sydney: Law Book Company, 1990) Ch 10. R v Hicklin (1868) LR 3 QB 360; Bremner v Walker (1885) 6 LR (NSW) 276. M Pollak, Sense and Censorship—Commentaries on Censorship Violence in Australia (Sydney: Reed, 1990); see also K Buckley, Offensive and Obscene—A Civil Liberties Casebook (Sydney: Ure Smith, 1970), which contains a series of cases (many unreported) dealing with offensive conduct and obscenity charges. [11.225]

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in the use of obscenity laws in the latter half of the 20th century. As political censorship of the theatre and novels became increasingly untenable, the focus of obscenity laws shifted to the regulation of sexually explicit material.

Blasphemy’s role in the secular state [11.230] Blasphemy or blasphemous libel is also an offence under the common law and statute, though there has only been one recorded prosecution in New South Wales. 600 The offence is constituted by published words or matters which are “scoffing” or “reviling” of the basic tenets of Christianity as defined by the Church of England. 601 The offence, though rarely used, discriminates against other religions and threatens freedom of speech. It is difficult to reconcile the offence with the secular nature of government in multicultural Australia. This view was shared by the Australian Law Reform Commission, which recommended that all references to blasphemy in federal legislation should be removed, with offences that protect personal and religious sensibilities recast in terms of “offensive material”. 602 There is of course some degree of overlap in relation to racial vilification, which may constitute an offence under certain state laws, as well as constituting an “unlawful” act giving rise of civil remedies under the Racial Discrimination Act 1975 (Cth), s 18C, discussed in Chapter 13, [13.80].

Pornography, as distinct from “the erotic”, emerges at a particular historical moment. During the revolutionary period in Europe, especially in France, pornography played a significant cultural role in constructing myths about women’s bodies and feminine sexuality, male domination and female submission. 603 With the advent of photography in the late 19th century, the objects of obscenity could be packaged and commodified, further distanced from the “erotic” art and literature of previous eras. Obscenity laws played a crucial role in regulating this emerging market in sexually explicit material, through concepts of decency based on community standards. The legal definition of obscenity is notoriously elusive. Justice Stewart’s famous dictum on pornography uttered from the United States Supreme Court bench—“I know it when I see it”—typifies the definitional difficulty confronting judges. 604 This fundamental indeterminacy not only affects the common law. Key statutory concepts in statutory offences are left to judges and juries with limited guidance. Like Stewart J, Barwick CJ in Crowe v Graham 605 doubted the wisdom of defining terms like “indecent” or “indecency”, concluding simply that material that offended “the modesty of the average man or woman in sexual matters” would be an indecent article for the purpose of the Obscene and Indecent Publications Act 1901 (NSW). 606 Until this landmark High Court decision, there was considerable confusion over the precise relationship between indecency and obscenity, with some courts suggesting that indecency was concerned 600 601 602

605 606

New South Wales Law Reform Commission, Blasphemy, Discussion Paper No 24 (1992) p 17. New South Wales Law Reform Commission, Blasphemy, Discussion Paper No 24 (1992) p 18. Australian Law Reform Commission, Multiculturalism and the Law, Report No 57 (Canberra: AGPS, 1992) Recommendation 28. A Orford, “Liberty, Equality, Pornography: The Bodies of Women and Human Rights Discourse” (1994) 3 Australian Feminist Law Journal 72 at 81–87. Jacobellis v Ohio 378 US 184 (1964) at 197. For a review of the law of obscenity and pornography, see S Rozanski, “Obscenity: Common Law and the Abuse of Women” (1991) 13 Adelaide Law Review 163. See also C MacKinnon, Only Words (Cambridge, MA: Harvard University Press, 1993). Crowe v Graham (1968) 121 CLR 375. Crowe v Graham (1968) 121 CLR 375 at 379.

740

[11.230]

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with protecting the general public from offensive content, whereas obscenity was concerned with protecting individuals from immorality. Windeyer J emphatically rejected that indecency was distinct from obscenity, even if the terms appeared disjunctively in a particular section. 607 The High Court’s judgment in Crowe signalled a fundamental shift from the approach taken to obscene libel in R v Hicklin, 608 which focused on the tendency of material to “deprave and corrupt”, to a forensic inquiry into whether the impugned material is acceptable by current community standards. 609 This modernisation of the law governing obscenity, however, offered limited guidance for those individuals entrusted with upholding these legal standards, namely, the censors (since replaced with classification boards), law enforcement officials and the courts. In the United States, obscenity laws were constrained by constitutional rights relating to freedom of speech and privacy. This jurisprudence on obscenity has had no impact on the development of the Australian common law. As Windeyer J held in Crowe v Graham, considerations of liberty, such as freedom of speech, were not relevant to the task of determining the community standard of decency: “Their Honours [in the court below] were wrong in invoking considerations of ‘private liberty as a basic right and need of modern man’ as an aid for the interpretation of a statute of the Parliament of New South Wales dealing with obscenity and indecency. And I think too that their references in this connexion to judgments delivered in courts of the United States were only remotely relevant.” 610

Judges and juries are left to determine the standards of indecency by reference to their understanding of prevailing sexual mores; in particular, the level of sexual tolerance that would be acceptable to the community. The inherently conservative values of judges (which can exert considerable influence on the jury) 611 may operate to discriminate against individuals or groups that hold unconventional views on sexual matters. In light of the significant statutory reforms in this area, the offence of obscene libel would rarely be prosecuted nowadays. It does not follow that the crime of obscenity is obsolete. Indeed, the potential breadth and indeterminacy of common law and statutory offences dealing with obscene and indecent material are fundamental to the effective operation of the national system of cooperative regulation and classification scheme, discussed below. The uncertainty surrounding the scope of Commonwealth, State and Territory offences encourages publishers and suppliers of potentially obscene or indecent material to submit to a “voluntary” National Code of Classification, compliance with which confers immunity from prosecution. These nebulous definitions of obscenity and indecency also empower informal censorship by law enforcement officials such as the police and customs officials, and encourage a high degree of self-censorship by publishers and suppliers.

Publishing and obscenity [11.235] The common law is supplemented by a wide range of statutory crimes prohibiting the publication, possession and supply of indecent articles and books, magazines, films and computer games. In addition to these State and Territory offences, the Commonwealth has powers over the sale and supply of obscene publications through its constitutional power to 607 608 609 610 611

Crowe v Graham (1968) 121 CLR 375 at 389. R v Hicklin (1868) LR 3 QB 360. A Blackshield, “Censorship and the Law” in G Dutton and M Harris (eds), Australia’s Censorship Crisis (Melbourne: Sun Books, 1970) p 23. Crowe v Graham (1968) 121 CLR 375 at 398–399. In Ch 3 of The Justice Game (London: Vintage, 1999), Geoffrey Robertson recounts how the trial judge in a famous obscenity trial swayed the jury by comments and body language that disparaged the accused and their defence expert witnesses. His blatant bias led to the reversal of the convictions on appeal: R v Anderson, Neville, Dennis and Oz Publications Ink Ltd (1972) 1 QB 304. [11.235]

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regulate postal services, broadcasting and the import/export of goods. 612 These offences are supplemented by extensive law enforcement powers of search, seizure and confiscation. Obscenity prosecutions are now rare. They are often selective prosecutions targeting members of subversive or anti-establishment groups. One of the most infamous obscenity prosecutions in England in the 1970s targeted three editors of a satirical magazine called Oz. The prosecution focused on a special “Schoolkids’ Edition” which contained allegedly obscene cartoons featuring the infamous “Rupert Bear Strip”. 613

The laws governing obscenity, particularly obscene publications, constitute a complex web of federal, State and Territory regulation. The censorship of publications in Australia (which include films, video tapes and computer games) is governed by a cooperative arrangement established by the Classification (Publications, Films and Computer Games) Act 1995 (Cth). Under this Act, the Classification Board (which is located within the Office of Film and Literature Classification) is empowered to make classification decisions for publications, films and computer games. Section 3 of the Act provides: The main purpose of this Act is to provide for the classification of publications, films and computer games for the Australian Capital Territory. This Act is intended to form part of a Commonwealth/ State/Territory scheme for the classification of publications, films and computer games and for the enforcement of those classifications. Note: Provisions dealing with the consequences of not having material classified and the enforcement of classification decisions are to be found in complementary laws of the States and Territories.

The Board also makes classification decisions on behalf of participating States and Territories, using a National Classification Code (NCC) that ensures the development of uniform and consistent standards. Different classifications apply to publications, films and computer games. With respect to films there are seven classification categories, while computer games have six classification categories. 614 These are set out in Table 4. Table 4 Commonwealth classification standards for films and computer games CLASSIFICATIONS G (General) All other films. All other computer games. PG (Parental Guidance) Films (except RC films, X 18+ films, R 18+ films, MA 15+ films and M films) that cannot be recommended for viewing by persons who are under 15 without the guidance of their parents or guardians. Computer games (except RC, R 18+, MA 15+ and M computer games) that cannot be recommended for viewing or playing by persons who are under 15 without the guidance of their parents or guardians.

612 613

614

742

N O’Neill, S Rice and R Douglas, Retreat From Injustice (2nd ed, Sydney: Federation Press, 2004) pp 405–408. Geoffrey Robertson QC appeared as junior counsel for the defence and has provided an insightful account of the trial and subsequent appeal in Ch 3 of The Justice Game (London: Vintage, 1999). For a review of the Australian prosecution brought against the editors in 1964 in Sydney, see K Buckley, Offensive and Obscene—A Civil Liberties Casebook (Sydney: Ure Smith, 1970) Ch 2. The magistrate’s initial convictions of the editors and publisher for obscenity were quashed on appeal—while the satirical magazine might be viewed to be offensive, rude and in bad taste, the magazine’s emphasis on sex was not “undue” within the meaning of the New South Wales Act, according to the judge hearing the appeal. Classification (Publications, Films and Computer Games) Act 1995 (Cth), s 7, as amended by the Classification (Publications, Films and Computer Games) Amendment Act 2004 (Cth), described in the Schedule to the Act. [11.235]

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M (Mature) Films (except RC films, R 18+ films, X 18+ films, MA 15+ films) that cannot be recommended for viewing by persons who are under 15. Computer games (except RC, R 18 +, MA 15+ and M computer games) that cannot be recommended for viewing or playing by persons who are under 15. LEGALLY RESTRICTED CLASSIFICATIONS MA 15+ (Mature Accompanied) Films (except RC films, X 18+ films and R 18 + films) that depict, express or otherwise deal with sex, violence or coarse language in such a manner as to be unsuitable for viewing by persons under 15. Computer games (except RC and R 18 + computer games) that depict, express or otherwise deal with sex, violence or coarse language in such a manner as to be unsuitable for viewing or playing by persons under 15. R 18+ (Restricted) Films (except RC films and X 18+ films) that are unsuitable for a minor to see. Computer games (except RC computer games) that are unsuitable for viewing or playing by a minor. X 18+ (Restricted) Films (except RC films) that: (a) contain real depictions of actual sexual activity between consenting adults in which there is no violence, sexual violence, sexualised violence, coercion, sexually assaultive language, or fetishes or depictions which purposefully demean anyone involved in that activity for the enjoyment of viewers, in a way that is likely to cause offence to a reasonable adult; and (b) are unsuitable for a minor to see. RC (Refused Classification) Films or computer games that: (a) describe, depict, express or otherwise deal with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should not be classified; or (b) describe or depict in a way that is likely to cause offence to a reasonable adult, a person who is, or who appears to be, a child under 18 (whether the person is engaged in sexual activity or not); or (c) promote, incite or instruct in matters of crime or violence.

The Commonwealth scheme provides for four types of classification for publications: Unrestricted, Category 1 Restricted, Category 2 Restricted, and Refused Classification (RC). 615 Individual States and Territories have adopted their own classification schemes that mirror, to a greater or lesser extent, the Commonwealth scheme, as discussed below. Classification provides protection from prosecution under Commonwealth, State or Territory laws, though the scope of this immunity is not uniform. Queensland has the most limited immunity, which only exempts publications classified as “unrestricted” from prosecution as indecent or obscene publications. 616 Moreover, not all classifications are recognised in every jurisdiction. In New South Wales, an unclassified film, or a film classified as X 18+ rated or RC is not immune from prosecution. 617 Only the Australian Capital Territory and the Northern Territory permit the exhibition and sale of X 18+ rated films in particular circumstances. 618 In Victoria, by contrast, possession of RC- or X 18+ rated films for the purpose of supply or exhibition is an offence. Subsection 23(1) of the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Vic) provides that: 615 616 617

618

Classification (Publications, Films and Computer Games) Act 1995 (Cth), s 7. Classification of Publications Act 1991 (Qld), Pt 3. Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW), s 6. The National Classification Code Guideline defines X 18+ rated material (except RC films) as “[f]ilms that (a) contain real depictions of actual sexual activity between consenting adults in which there is no violence, sexual violence, sexualised violence, coercion, sexually assaultive language, or fetishes or depictions which purposefully demean anyone involved in that activity for the enjoyment of viewers, in a way that is likely to cause offence to a reasonable adult; and (b) are unsuitable for a minor to see”. Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (ACT), ss 9(2)(c), 10, 22; Classification of Publications, Films and Computer Games Act 2002 (NT), ss 37(2), 49. [11.235]

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A person who possesses— (a) a film classified RC or X 18+; or (b) an unclassified film which would, if classified, be classified RC, X 18+, R 18+ or MA 15+—with the intention of selling or exhibiting the film is guilty of an offence.

Some jurisdictions, such as the Northern Territory and Victoria, have enacted specific provisions relating to “on-line” computer services. 619 In Victoria, for example, s 57(1) states: (1) A person must not use an on-line information service to publish or transmit, or make available for transmission, objectionable material. 620

The Broadcasting Services Amendment (Online Services) Act 1999 (Cth) goes further. If there has been a complaint to the Australian Broadcasting Authority, the Act requires Internet service providers and content hosts 621 to prevent access to materials hosted in Australia and classified RC. Section 11 of the Classification (Publications, Films and Computer Games) Act 1995 (Cth) (the Act) identifies the following matters to be taken into account in classification decisions: (a) the standards of morality, decency and propriety generally accepted by reasonable adults; and (b) the literary, artistic or educational merit (if any) of the publication, film or computer game; and (c) the general character of the publication, film or computer game, including whether it is of a medical, legal or scientific character; and (d) the persons or class of persons to or amongst whom it is published or is intended or likely to be published.

The National Classification Code, which is contained in a Legislative Instrument, provides that classification decisions are to give effect, as far as possible, to the following principles: (a) adults should be able to read, hear and see what they want; (b) minors should be protected from material likely to harm or disturb them; (c) everyone should be protected from exposure to unsolicited material that they find offensive; (d) the need to take account of community concerns about: (i) depictions that condone or incite violence, particularly sexual violence; and (ii) the portrayal of persons in a demeaning manner.

As reviewed in Chapter 2, interference with privacy in order to protect morals in the absence of any harm to others is controversial. Liberalism rejects the idea that the criminal law should be used to enforce a particular conception of private morality, and legal philosophers, such as Ronald Dworkin, have argued that there is a right to pornography as an exercise of the freedom of moral responsibility. 622 While the first principle contained in the National Classification Code demonstrates some commitment to individual freedom, classification (and, hence, legal availability) is also determined by reference to the community standards of morality, decency and propriety. 619 620

621

622

Classification of Publications, Films And Computer Games Act 1995 (NT), ss 50X, 50Z; Classification (Publications, Films And Computer Games) (Enforcement) Act 1995 (Vic), ss 56, 57, 58. Classification (Publications, Films And Computer Games) (Enforcement) Act 1995 (Vic), s 57(1). “Objectionable material” is defined in s 56 of the Act to include material which is or would be classified RC or X; definitions of “objectionable publication” and “objectionable film” are provided in s 3. “Internet content hosts” are broadly defined in Sch 1 of the Broadcasting Services Amendment (Online Services) Act 1999 (Cth). See B Scott, “The Dawn of a New Dark Age: Censorship and Amendments to the Broadcasting Services Act” (1999) 38 Computers & Law 39; K Koomen, “Illegal and Harmful Content on the Internet: Some Issues and Options” (1998) 35 Computers & Law 1. R Dworkin, “Is There a Right to Pornography” (1981) 1 Oxford Journal of Legal Studies 177.

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Under the existing legal framework, moral standards are applied in a number of ways—the decision-makers must reflect community standards in applying the standards of morality, decency and propriety of “reasonable adults”. 623 The Act requires that members of the Classification Board be “broadly representative of the Australian community”. 624 The Act and National Classification Code offer no guidance on how these conflicting communal and individual interests should be reconciled. Presumably, the tribunal determining the matter must engage in some form of a balancing exercise. In Chapter 2, we explored how the process of balancing rights tends to prioritise communal/majority interests over individual/minority interests: see [2.135]. Anne Orford noted that a review of international and comparative jurisprudence in this area revealed that the liberal principles of free speech and privacy are held not to be infringed by obscenity laws based on “community standards”. 625 The European Court of Human Rights (ECtHR) has held that the freedom of expression may be justifiably restricted in order to protect “public morals”. In Handyside v United Kingdom (1976) 1 EHRR 737, the applicant, an English publisher, was charged and convicted under the Obscene Publications Act 1959 (UK) and the Obscene Publications Act 1964 (UK) for having obscene books in his possession for publication or gain. Copies of the books were seized, forfeited and destroyed, and the applicant was fined and ordered to pay costs. The applicant argued that this action constituted a breach of Art 10 of the European Convention on Human Rights, which protects freedom of expression from “interference”. The ECtHR held that the interference with an individual’s rights under Art 10 was “necessary in a democratic society … for the protection of morals”. Accordingly, there had been no breach of Art 10. 626 This decision is significant because the freedom of expression is similarly protected under Art 19 of the International Covenant on Civil and Political Rights (ICCPR) and may be subject to restrictions in accordance with the law and, where necessary: (1)

for the respect of the rights or reputation of others; and

(2)

for the protection of national security, public order, public health or morals.

In Australia, the legal standards of decency are based on “the reasonable person” or “the community”. As in other areas of the criminal law, this raises questions about how tribunals construct objective standards – particularly those based on morality and decency – within a secular, multicultural and pluralistic society. As pointed out in Chapter 2, the stability of objective and neutral concepts has been challenged from both feminist and critical perspectives. While liberals object to the breadth and arbitrariness of legal definitions of obscenity, feminists and critical legal scholars raise concerns that the legal standards of indecency operate in discriminatory ways against women and sexual minorities, such as gay men and lesbians. As leading feminist Catharine MacKinnon noted, obscenity laws in the United States have rarely operated to prohibit the publication, sale and supply of sexually explicit material. She concludes that persistent judicial refusal in the case law to define obscenity is systematic and determinate. It is part of an epistemological process by which the legal standard of obscenity “is built on what the male standpoint sees”. 627 As well as being a gendered construct, the legal concept of decency is historically contingent. A comparison of “unrestricted” magazines freely available in Australia today with publications deemed to be “obscene” 50 years ago would 623 624 625

626 627

Classification (Publications, Films and Computer Games) Act 1995 (Cth), s 11. Classification (Publications, Films and Computer Games) Act 1995 (Cth), s 48(2). A Orford, “Liberty, Equality, Pornography: The Bodies of Women and Human Rights Discourse” (1994) 3 Australian Feminist Law Journal 72 at 79, discussing case law in the United States, Europe, New Zealand and Canada. Handyside v United Kingdom (1976) 1 EHRR 737 at 746 [59]. C MacKinnon, Towards A Feminist Theory of State (Cambridge, MA: Harvard University Press, 1989) p 197. [11.235]

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reveal radical changes to the standards of decency, particularly in relation to acceptable levels of female nudity in “lifestyle” magazines and “mainstream” advertising. Jurisdictional inconsistencies undermine the Commonwealth’s vision of a national scheme of classification applying consistent standards across Australia. Such variations are difficult to reconcile with the fact that the standards of decency applied to State and Territory indecency offences are constructed by reference to prevailing Australian community standards rather than those of individual States or Territories. 628 Redefining pornography laws: a right to equality? [11.240] As feminist scholars have pointed out, the debate about the regulation of pornography is deeply implicated in questions about gender; in particular, the role of the public/private dichotomy. 629 Feminist anti-pornography arguments are confronted with the assertion of both public and private rights. As Nicola Lacey observed: “The liberal analysis which constructs pornography as a matter of private sexual preference in one breath constructs it as a matter of public right to free expression in the next. In what might be called a ‘no-lose situation’ for the producers and consumers of pornography, the production of pornography is seen as a matter of public right, and hence protected, whilst its consumption is constructed as a matter of private interest, and hence also protected.” 630

Debates over the legal regulation of pornography produce a strange coalition between religious moralism and radical feminism. 631 While both seek to impose restrictions on the availability of sexually explicit material, the justifications for so doing are fundamentally different. Rather than focus on the perceived sinful or immoral nature of pornography, the feminist critique conceives it as a harmful social practice that both expresses and causes the subordination of women. For some feminists, pornography is viewed as sex discrimination. Viewing pornography in this way deftly avoids the intractable controversy over whether pornography causes or contributes to violence against women. The feminist critique does not necessarily compel the adoption of criminal prohibition as the regulatory solution. By focusing on discrimination and inequality, only certain forms of sexually explicit materials would be censured. Indeed, in the United States, Indianapolis enacted an anti-pornography ordinance based on a model law drafted by leading feminist legal academics, Catharine MacKinnon and Andrea Dworkin. This model conceptualised pornography as sex discrimination, creating a wide range of civil causes of action to individuals harmed by pornography. Ultimately, the law was held to be constitutionally invalid for unduly interfering with freedom of speech protected by the First Amendment. 632 Unlike the MacKinnon–Dworkin anti-pornography ordinance, the laws regulating pornography in Australia lack a clear, coherent and consistent philosophical basis. As noted above, decisions about classification (and, hence, legal availability) incorporate a wide range of interests, many of which potentially conflict with each other. The Classification (Publications, Films and Computer Games) Act 1995 (Cth) and the National Classification Code identify various and competing rights, values and interests as relevant considerations (in no particular hierarchy). Communal interests relating to morality and offensiveness must be 628 629 630 631 632

746

For a review of the statutory provisions and offences in all Australian jurisdictions, see N O’Neill, S Rice and R Douglas, Retreat From Injustice (2nd ed, Sydney: Federation Press, 2004) Ch 15. N Lacey, Unspeakable Subjects (Oxford: Hart Publishing, 1998) Ch 3. N Lacey, Unspeakable Subjects (Oxford: Hart Publishing, 1998) p 88. For a review of the conflicting perspectives—moral, feminist and liberal—on pornography, see H Potter, Pornography (Sydney: Federation Press, 1996). American Booksellers v William Hudnutt III, Mayor, City of Indianapolis 771 F 2d 323 (7th Cir, 1985). The background to the ordinance and the constitutional challenge are reviewed in R Graycar and J Morgan, The Hidden Gender of Law (Sydney: Federation Press, 1990) pp 375–390. [11.240]

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balanced against individual interests relating to privacy and freedom of moral choice. Sexual equality and, in particular, the interests of women play no visible role. It is only made obliquely relevant in the National Classification Code through “community concerns” about depictions that condone or incite violence, particularly sexual violence and the portrayal of persons in a demeaning manner. As Anne Orford pointed out, the process of building “community” in legal discourse continues to exclude women’s interests: “The silencing of the voices of women enables the construction of ‘community consensus’ in liberal theory, of a false universal which assimilates all difference in the public sphere. The idea of moral consensus has been used by liberal theorists and judges, both to uphold or propose regimes for criminalising or regulating ‘obscenity’, and to argue that anti-pornography ordinances based on feminist perspectives are an infringement of individual freedom.” 633

The present law seems ill-equipped to deal with the problematic aspects of pornography. The existing regulatory strategy strives for uniformity and consistency in decision-making on the question of indecency without any coherent philosophical or political principles guiding the content and scope of these standards. As with prostitution and the sex industry generally, law-makers have pragmatically adopted a policy of “harm minimisation”. This strategy aims to minimise the harms that would otherwise flow from strict prohibition. It has been influential in the reform of some drug laws, such as the possession of cannabis, discussed in Chapter 14, [14.10]. By creating a lawful market for obscene and indecent material, the State minimises the involvement of organised crime, corruption and threats to public health. It also profits through the imposition of substantial taxes on pornography. Rather than employ a “balancing” discretion for classification, a regulatory framework could be reconstructed around a different set of values. The liberal conceptions of equality and the idea of equality as mere sameness have failed to address the structural disadvantage of historically marginalised and disempowered groups. A more contextual approach to equality is emerging in some jurisdictions. In Canada, for example, depictions of degrading and dehumanising stereotyping of women have been held to constitute an interference with the right to equality and therefore may be justifiably restricted by obscenity laws. 634 We must be cautious about the liberal promise of equality. As explored in Chapter 2, [2.200], the principle of equality can have counterproductive effects and often works against legislative reforms designed to alleviate disadvantage. Indeed, for this reason, Lacey has expressed doubts about the value of reforms of pornography laws based on equality. This is because of the individuated nature of the anti-discrimination laws and its limited ability to redress group-based harms. 635 Debates about legislative strategy, including much feminist critique, seem trapped within a liberal dichotomy drawn between private and public interests. Rather than accept this dichotomy, Lacey argues that the dichotomy needs to be reconceptualised. While feminists have sought to relocate sexual harms against women from the private/unregulated sphere to the public/regulated sphere, they have largely overlooked the potential of privacy to maximise human autonomy through positive regulation. In Chapter 2, [2.250], we explored how privacy may be constructed as a positive right to personal and emotional development, rather than a negative right to be protected from interference; in other words, the right to be left alone. Lacey’s perspective provides the platform from which feminists may challenge serious 633 634

635

A Orford, “Liberty, Equality, Pornography: The Bodies of Women and Human Rights Discourse” (1994) 3 Australian Feminist Law Journal 72 at 97–99. This equality-based approach was taken to impose restrictions on obscene materials in Canada: R v Butler [1992] 1 SCR 452. See A Orford, “Liberty, Equality, Pornography: The Bodies of Women and Human Rights Discourse” (1994) 3 Australian Feminist Law Journal 72 at 97. N Lacey, Unspeakable Subjects (Oxford: Hart Publishing, 1998) pp 92–97. [11.240]

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autonomy-reducing sexual practices, ranging from rape to violent pornography. 636 She doubts the value of pursuing the legislative strategies of the sort adopted in the United States, placing greater emphasis on the power of feminist critique to transcend the public/private dichotomy and to raise consciousness. 637 Carol Smart, while recognising the importance of such feminist strategies, argues that “consciousness raising is a starting point not the finishing post”. 638 Law’s truths about women and female sexuality must be confronted within the legal as well as political and social arena. A republican analysis of pornography would be more optimistic about the instrumental and symbolic value of using law to challenge sexual oppression and inequality. As explored in Chapter 1, republican theorists would examine the extent to which a particular activity interferes with freedom, see [1.240]. While some regulation of pornography would be justifiable to protect the rights of those individuals involved in the industry and those members of the general public who did not wish to view such material, the prohibition of sexual material on the ground that it causes offense to the moral standards of a hypothetical “reasonable person” would not be justifiable. 639 However, material that sexualises domination, such as pornography that involves or depicts sexual violence against women and children, could be arguably limited on the ground that it condones sexual coercion and perpetuates inequality. This would be distinguished from pornography that promotes positive and empowering images of female sexuality. Admittedly, such a vision of pornography seems remote, bearing in mind the prevailing genre that sexualises dominance. Feminists have argued that pornography is a site of struggle against male colonisation of female sexuality. Strategies for confronting these truths about women and sexuality are not restricted to legal regulation. Some feminists have argued that the violence of pornography will only be eliminated by increasing women’s power as producers and consumers of sexual imagery. 640 The republican approach to regulation would counsel restraint in the use of criminal sanctions in favour of civil actions along the lines proposed by MacKinnon and Dworkin. To maximise freedom, including rights of sexual expression and privacy, republicanism would require clear articulation of the key definitions for distinguishing between lawful and unlawful material. With an increasingly regulated and, therefore, legitimated sex industry in Australia, pornography is no longer a serious cause for community concern. Public attention has shifted to problematic forms of pornography. Indeed, there is widespread moral panic about pornography and children. Principally, this concern is directed toward two distinct problems: 1. the unrestricted availability and access of sexually explicit material by children, particularly through the Internet; and 2. child pornography.

Technological perspectives Children, Pornography and the Internet [11.245] Australia and the wider international community are gripped by a moral panic about children and pornography. In the hierarchy of sexual deviance, sex involving 636 637 638 639 640

748

N Lacey, Unspeakable Subjects (Oxford: Hart Publishing, 1998) p 96. N Lacey, Unspeakable Subjects (Oxford: Hart Publishing, 1998) p 97. C Smart, “Law’s Truth/Women’s Experience” in R Graycar (ed), Dissenting Opinions (Sydney: Allen and Unwin, 1990) p 13. J Braithwaite and P Pettit, Not Just Deserts (Oxford: Clarendon Press, 1990) p 96. These views are discussed in A Orford, “Liberty, Equality, Pornography: The Bodies of Women and Human Rights Discourse” (1994) 3 Australian Feminist Law Journal 72 at 91. [11.245]

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children seems to generate the majority of this concern. Community panic is fuelled by sensational media stories about the existence of national and transnational paedophile networks that use sophisticated technologies, such as email and the Internet, to solicit victims and to disseminate child pornography or child sexual exploitation material. 641 Uncertainties bedevil the definitions used for obscenity laws which proscribe the description or depiction of sexual acts involving minors. The sexual maturity of young persons is made relevant to our obscenity laws in a number of ways. In fixing the community standards, the National Classification Code states that minors should be protected from material likely to harm or disturb them (see above). While this principle is central to determining the standards of decency within the community, the term “minor” is not defined. In relation to the classification “RC” (Refused Classification), the Code is more prescriptive. It states that classification should be refused to any publications that “describe or depict in a way that is likely to cause offence to a reasonable adult, a minor who is, or who appears to be, under 16 (whether the minor is engaged in sexual activity or not)”. 642 As previously noted, the effect of classification is crucial to the operation of various State and Territory offences relating to possession, or possession for sale or exhibition, copying, sale, or production or publishing of films, books or computer games. Child pornography has been addressed at the international level by the United Nations Convention on the Rights of the Child (1989), Art 34, which provides: Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:— … (c) The exploitative use of children in pornographic performances and materials. 643

As Australia is a party to the Convention, this provision could provide the constitutional basis for federal offences under s 51(xxix) of the Constitution: the “external affairs” power. The National Classification Code provides some evidence of compliance with Art 34 of the Convention; however, it arguably diverges from the Convention by fixing the age of majority at 16 rather than 18 years. 644 Child pornography may be dealt with under existing indecency offences. However, legislatures around Australia, responding to international and domestic pressures, have

641

642 643

644

See, generally, T Krone, “A typology of online child pornography offending” (2004) Australian Institute of Criminology,Trends & Issues in Crime and Criminal Justice No 279. See also M Henshaw, JRP Ogloff, and JA Clough “Looking Beyond the Screen: A Critical Review of the Literature on the Online Child Pornography Offender” (2015) Sexual Abuse: A Journal of Research and Treatment 1; the authors review the available research, concluding that “although some [child pornography offenders] do go on to commit sexual offences against children, child pornography offending does not inevitably lead to the direct sexual victimization of children”, at 17. Classifications (Publications, Films and Computer Games) Act 1995 (Cth), Sch. Adopted and opened for signature, ratification and accession by General Assembly Resolution 44/25 of 20 November 1989, entry into force 2 September 1990, in accordance with Art 49. See, generally, P Alston, S Parker, J Seymour, Children, Rights and the Law (Oxford: Clarendon Press, 1992). In Australia, see the Parliament of the Commonwealth of Australia: Joint Standing Committee on Treaties, United Nations Convention on the Rights of the Child, 17th Report (Canberra, ACT: CanPrint Communications, 1998). Article 1 of the United Nations Convention on the Rights of the Child provides that: “For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier”. [11.245]

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enacted new offences against child pornography carrying severe penalties. 645 These offences criminalise most dealing with material that indecently “describes or depicts persons under the age of 16”. 646 Structured in this way, these offences relieve the prosecution of the burden of proving the actual age of those involved. With the exception of Queensland and Victoria, these offences also do not require express proof of fault on the part of the accused. 647 Where strict liability is imposed, the accused may rely on the defence of reasonable mistaken belief that the person depicted was over the age of 16. In addition, specific defences to child pornography offences have been included. For example, possession in the line of duty for law officers or classifiers has also been exempted in some jurisdictions. 648 In other jurisdictions, it is a defence that the material possessed had “artistic merit” 649 or served some scientific, medical or educational purposes. 650 For example, the offence provision (s 58) of the Censorship Act 1996 (WA) states that: 645

646

647

648

649

650

Despite the increase in the maximum penalty for child pornography offences, there have been a number media reports highlighting the perceived leniency of sentences for child pornography offences: A Klan and M McKenna, “Outrage at Light Kid-porn Sentence”, The Australian, 27 June 2008. In 2008, Judge Berman of the New South Wales District Court commented on the inadequacy of the maximum penalty for the offence of possession of child pornography under s 91H(3) of the Crimes Act 1900 (NSW), and the need to increase sentences so as to “reduce the demand for such appalling acts of cruelty, and to mark in a very real way the community’s horror at such treatment of entirely innocent and defenceless children”: R v Saddler [2008] NSWDC 38 at [4]. Note that the relevant age in Commonwealth, Tasmanian, Victorian, and Australian Capital Territory law is 18. In New South Wales, Queensland, the Northern Territory and Western Australia “child” is defined as a person who appears to be under 16. In South Australia, “child exploitation material” describes or depicts a child who is, or appears to be, under the age of 17: see Criminal Law Consolidation Act 1935 (SA), s 62. The higher age is consistent with the UN definition of “child” in Art 1 of the United Nations Convention on the Rights of the Child. In Queensland, the offence requires that the accused “knowingly” possessed the prohibited material: Classification of Computer Games and Images Act 1995 (Qld), s 26(3); Classification of Films Act 1991 (Qld), s 41(3); Classification of Publications Act 1991 (Qld), s 14. See the similar position in Victoria under s 51G(1) of the Crimes Act 1958 (Vic); s 51G(3) provides that a person possesses child abuse material that is electronic material if that person controls access to the material, whether or not it is in their physical possession; s 51H(1) provides that a person commits an offence if (c) that person knows that the material is, or probably is, child abuse material. Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (ACT), ss 24, 32, 43; Crimes Act 1900 (NSW), s 91H(4); Crimes Act 1958 (Vic), s 51J(a)–(b). In R v Clark [2008] NSWCCA 122 at [227], the court confirmed the common law requirement for the “Crown to prove, when charging possession of some thing or some material, that the accused’s possession is intentional”. These jurisdictions are New South Wales, the Northern Territory, South Australia, Victoria and Western Australia. However, in Victoria, the defence of “artistic merit” applies to all of child abuse material offences (except s 51I), but does not apply if the person depicted is actually under 18: Crimes Act 1958 (Vic), s 51L. In New South Wales, the defendant’s conduct must be “reasonable”: Crimes Act 1900 (NSW), s 91H(4)(c). In Western Australia, there is an added “public good” requirement: Censorship Act 1996 (WA), s 58. In South Australia, there should not be “undue emphasis on—indecent or offensive aspects”: Summary Offences Act 1953 (SA), s 33(5). In the Northern Territory, with respect to computer services, the material must be of “recognised” literary or artistic merit: Classification of Publications, Films and Computer Games Act 1995 (NT), s 50Z(2). In the Commonwealth, “literary, artistic or educational merit” are some of the matters to be taken into account in deciding whether material is offensive: Criminal Code (Cth), s 473.4(b). See “Bill Henson affair” at [11.250]. It is a defence “if the defendant did not know, or could not reasonably be expected to have known, that he or she produced, disseminated or possessed (as the case requires) child pornography”: Crimes Act 1900 (NSW), s 91H(4)(a). In Victoria, it is a defence if the material “possesses artistic merit or the material is of public benefit” (s 51L). Public benefit includes, but is not limited to, genuine medical, legal, scientific or educational purposes: see s 51L(2) Crimes Act 1958 (Vic). Other defences are contained in ss 51M – U in the Crimes Act

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It is a defence … to prove that the article concerned is— (a) an article of recognized literary, artistic or scientific merit; or (b) a bona fide medical article; and that publishing the article is justified as being for the public good.

These defences provide some measure of protection to those involved in law enforcement activities, as well as protecting freedom of expression and facilitating legitimate research. The extent of this protection rests on the interpretation and values of the tribunal of fact, and there is a danger that the inclusion of this type of “defence” simply legitimates the sexualisation of children, provided that it is packaged with certain aesthetic conventions or scientific criteria in mind. There is however a legitimate concern about the over-reach of these laws by potentially criminalising consensual “sexting” between young persons (for example, where young persons create, send and receive nude or semi-nude images). To prevent non-exploitative acts of sexual exploration by children resulting in prosecutions and convictions for a serious sexual offence, a defence has recently been introduced in Victoria to exclude this type of conduct from ambit of child pornography offences. 651 Technology has posed new challenges for obscenity laws. 652 Significant advances in mobile phones, which contain in-built still and video cameras that can connect immediately to the Internet and upload to social networking sites, have generated new modes of indecency. One of these is “up-skirting”, which involves taking a picture or filming up the skirt of a female. This behaviour has been addressed in R v Drummond, 653 which held that the covert, “up-skirt” filming of a 14-year-old school girl was found “in all the circumstances” to constitute the making of child pornography. 654 With the ubiquity of online porn, a problem arises in relation to the physical aspect of “possession” of indecent material where it is stored in an electronic form. A “computer generated image” has been included within the scope of “publication” for the purpose of the Classifications (Publications, Films and Computer Games) Act 1995 (Cth). Similar broadened definitions apply under various State and Territory offences. However, it is unclear whether “possession” for the purpose of the offences extend to unsolicited images sent as an email attachment that have not yet been deleted from the hard drive of a computer (or have been “deleted” but remain stored in the computer’s recycling bin). This problem is resolved in some jurisdictions by enacting offences that do not require possession, but rather specifically criminalise the use of computer services or phone lines

651 652 653 654

1958 (Vic). See s 58 of the Censorship Act 1996 (WA): “It is a defence to a charge of an offence in this Division to prove that the article concerned is (a) an article of recognized literary, artistic or scientific merit; or (b) a bona fide medical article, and that publishing the article is justified as being for the public good”. See also Criminal Code (Cth), s 474.21; Criminal Code (NT), s 125B(4); Classification of Publications, Films and Computer Games Act 1995 (NT), s 50Z(2); Summary Offences Act 1953 (SA), s 33(5); Classification (Publications, Films and Computer Games) Enforcement Act 1995 (Tas), s 81(1). A prior written exemption is possible in Queensland: Classification of Publications Act 1991 (Qld), s 37; Classification of Computer Games and Images Act 1995 (Qld), s 59(1); Classification of Films Act 1991 (Qld), s 58. See Crimes Act 1958 (Vic), s 51N (Defence applying to children), s 51P (Defence—accused not more than 2 years older than 16 or 17-year-old child and acts with child’s consent). P Grabosky and R Smith, Crime in the Digital Age (Sydney: Federation Press, 1998) Ch 6. R v Drummond [2008] NSWLC 10. For a useful summary of the case law in this area and practical policing issues, see G Griffith and K Simon, Child Pornography Law (New South Wales, Parliamentary Library Briefing Paper 09/2008) (cited 20 June 2010). [11.245]

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to transmit objectionable material or child pornography. 655 There are also new offences relating to individuals who use the Internet to engage in “grooming”, discussed in Chapter 15, [15.260]. The question would remain, however, whether as a matter of policy, the legislature intended to penalise those visiting child pornography sites unwittingly, or those visiting or sending such material knowingly or for the purpose of viewing this material. Also, practical problems may exist with the efficacy of any “blocking” regime set up under the Broadcasting Services Amendment (Online Services) Act 1999 (Cth). 656 In an attempt to restrict the availability of restricted content material on the World Wide Web, in December 2009, the Australian Government put forward a broad-ranging proposal to improve safety on the Internet. 657 The proposal includes mandatory Internet service provider (ISP) level filtering for Refused Classification (RC) content, and extending grants to ISPs to block additional content as requested by households and an expanded cyber-safety outreach program. 658 The proposal has been met with criticism from many sectors of the community including civil liberties organisations and child protection groups who are sceptical of the ability of the ISP filter to protect children and would prefer money to be invested in child protection authorities and policing of child abuse. 659

Bill Henson affair: policing the borders of child porn and artistic licence [11.250] On 23 May 2008, police raided the Roslyn Oxley9 Gallery in Sydney to confiscate photographs of a naked 13-year-old girl exhibited by internationally renowned Australian artist Bill Henson. The raid (and the consequential pornography charges laid by the New South Wales Police) fuelled an intense public debate regarding the commercial sexualisation of children, and the appropriate portrayal and use of children for artistic, advertising and modelling purposes. Anti-child sexual abuse campaigner Hetty Johnston lauded the police action, viewing the images as pornographic and exploitative of the child involved. Prime Minister Kevin Rudd

655

656

657 658 659

Classification of Publications, Films and Computer Games Act (NT), s 50Z; Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Vic), ss 57, 58. See also Criminal Code (Cth), s 474.19. Criminal Law Consolidation Act 1935 (SA), s 63A(2) provides that it is a defence to the charge of possession of child exploitation material to prove that the material was unsolicited and that reasonable steps were taken to delete it “as soon as he or she became aware of the material and its pornographic nature”. Parliament of the Commonwealth of Australia, Senate Select Committee on Information Technologies, Report on the Broadcasting Services Amendment (Online Services) Bill 1999, at 18, quoting Mr Cheah, General Manager, Regulatory Framework and Bandwidth: National Office for the Information Economy, Department of Communications, Information Technology and the Arts: “The Government accepts that no blocking technology is going to be 100 per cent effective”. See also P Grabosky and R Smith, Crime in the Digital Age (Sydney: Federation Press, 1998) pp 133–134. For a review of the various regulatory approaches to cyber-porn generally, including possible counterproductive effects of prohibition and criminalisation, see P Grabosky and R Smith, Crime In the Digital Age (Sydney: Federation Press, 1998) Ch 6. Cybercrime and the challenges facing transnational enforcement are explored in Chapter 15. See Senator Stephen Conroy, “Measures to Improve Safety of the Internet for Families”, Media Release, http://www.minister.dbcde.gov.au/media/media_releases/2009/115/ (cited 16 February 2010). An example of the federal government’s existing awareness-raising and education campaign can be seen at http://www.netalert.gov.au/ (cited 16 February 2010). E Rogers, “Save the Children Opposes Internet Filter”, ABC News, (9 July 2009), http://www.abc.net.au/news/ stories/2009/07/09/2621354.htm (cited 16 February 2010).

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expressed his opinion that the photos were “absolutely revolting”, 660 an attitude supported by the then New South Wales Premier, Morris Iemma. 661 Many artists took a contrary position, decrying the raid as an attack on artistic freedom. They pointed to Henson’s prominent role as an internationally recognised artist who had explored similar themes previously, with no uproar. They said that Henson was known for acting ethically and professionally with young models, and had obtained the consent of the girl’s parents. 662 Although the New South Wales Director of Public Prosecutions eventually dropped the charges amid concerns that the case would be difficult to prove, the controversy prompted the New South Wales Government to call for the development of a more robust classification system with respect to children in art, for the purpose of achieving “greater clarity and consistency”. 663 The scandal was also the catalyst for the Rudd Government’s request to the Australia Council to develop, in consultation with the arts sector and the general community, a set of protocols covering the representation of children in art. 664 The final protocol, released in late 2008, applies to all recipients of Australia Council grants and includes requirements that artists obtain permission from the parents of a young person to pose naked, and that art galleries seek classifications of nude photos of children before exhibiting. 665

CONCLUSION [11.255] This chapter has examined how the criminal law responds to sexual wrongdoing. The process of criminalising sexual behaviour is contingent on a range of factors. Age, gender and sexual orientation of both perpetrators and victims, as well as the nature of the conduct itself, are relevant to criminalisation. An important function of sexual offences, often neglected in traditional legal analysis, is the role of the criminal law in the construction of sexual identities as either “deviant” or “normal”. Female and male sexuality, as well as homo/hetero and transsexuality, is constructed through legal discourse. The process is clearly historically contingent. A recent review of the High Court’s treatment of “sex” over the course of a century revealed an increasing focus on promoting liberal values such as autonomy, consent and privacy. 666 By contrast, the earlier jurisprudence placed greater emphasis on the protection of Christian values and morality. At the end of the 20th century, the reviewers concluded that the inherent liberalism of the High Court was always under legislative threat:

660

661 662 663 664 665

666

D Marr, “Henson Photo Not Porn, Says Censor”, Sydney Morning Herald, 6 June 2008, p 3. For a detailed analysis of the legal aftermath of the Henson affair, see G Griffith and K Simon Child Pornography Law Update (New South Wales, Parliamentary Library E-Brief 02/2008), http://www.parliament.nsw.gov.au/prod/ parlment/publications.nsf/key/ChildPornographyLawUpdate (cited 20 June 2010). C Perkin and M Pelly, “Henson Fight will Rage on Despite the Law”, The Australian, 7 June 2008, p 3. J McDonald, “Snapshot of a Small-minded People”, Sydney Morning Herald, 31 May 2008, p 16. A Wilson, “Push for Review of Child Art Classifications”, The Australian, 24 July 2008, p 7. R Higson, “Guidelines Plan in Nude Child Row”, The Australian, 7 July 2008, p 3. Australia Council, Protocol for Working with Children in Art (30 December 2008). For an excellent study of the controversy, including reprints of the “offending” images, see D Marr, The Henson Case (Melbourne: Text Publishing, 2008). S Bronitt and H Mares, “Sex” in T Blackshield, M Coper and G Williams (eds), Oxford Companion to the High Court of Australia (South Melbourne: Oxford University Press, 2001). [11.255]

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“The Court’s capacity to continue to shape the law of sexual offences and obscenity by reference to those liberal concepts may, however, be constrained by legislative changes arising more as a response to the political demands of radical feminism or moral conservatism than by reference to legal principle.” 667

Feminism has made the reform of sexual offences a core issue of its political agenda, exposing the way in which the criminal law has privileged male interests and perspectives. As we have explored, recent reforms of the substantive law, procedure and evidence have confronted this model of sexuality, with mixed results, by redefining key concepts such as consent, fault and relevance. An important part of the early feminist strategy was to apply the label of “sexual violence” to rape and other sexual wrongdoing. This performed an important symbolic function in challenging the traditional downgrading of the seriousness of sexual abuse against women and children. While politically necessary, conjoining “sex” with “violence” has had problematic legal consequences. The case studies in this chapter reveal the instability of the category “sexual violence”; in particular, the law’s difficulties in distinguishing between sexual coercion and sexual pleasure. Such demarcation is an evaluative and normative process in which the sexuality of parties, not merely their sex and the level of harm involved, plays a crucial role. As Nicola Lacey concluded, the symbolic dimensions of reform of sexual offences must be carefully considered: “Since one of the primary symbolic effects of criminal law is to define and underpin social assumptions of sexual normality, we should be extremely careful about what kinds of sexual normality we inscribe in criminal law: what kinds of subject criminal law makes possible and legitimates.” 668

Critical legal analysis reveals that the criminal law embodies multiple, often conflicting, discourses concerning sexuality. Liberalism has exerted considerable influence on the modern law of sexual offences, with individual rights of autonomy and privacy playing important roles in reshaping laws proscribing rape, homosexual conduct, indecency, pornography and prostitution. Paradigm sexual offences, such as rape and sexual assault, are structured around the principle of individual autonomy. Consent plays a central role in distinguishing between lawful and unlawful sexual conduct. It is important to note that liberal discourse has not always exerted such sway over rape law. Until this century, rape was not considered a sexual offence against the person. Under the common law, male privilege rather than (female) autonomy provided the basis for criminalisation, as reflected in the traditional immunity for rape within marriage. In the modern law, the concept of consent is entrenched and seemingly unassailable. Yet autonomy for the purpose of sexual offences is conceived narrowly as proprietary possession and control over one’s own body. Contractual understandings of consent are evident in the case law, reflected in notions of “implied consent” and the rules governing vitiation of consent on the grounds of “fundamental mistake” or fraud. This impoverished concept of consent, which reinforces a coercive/non-communicative model of sexual relations, has been rightly criticised by feminist legal scholars. Responding to these concerns, some jurisdictions, such as New South Wales, have removed lack of consent as an ingredient for certain sexual offences, focusing on the accused’s harmful conduct rather than the victim’s state of mind. In conjunction with other jurisdictions, it has also adopted a positive communication standard for sexual offences, redefining consent as a “free and voluntary agreement”. Though these reforms are significant, the law must address the underlying cultural and social assumptions that legitimate some degree of sexual coercion 667 668

T Blackshield, M Coper and G Williams (eds), Oxford Companion to the High Court of Australia (South Melbourne: Oxford University Press, 2001) p 622. N Lacey, “Beset By Boundaries: The Home Office Review of Sexual Offences” [2001] Criminal Law Review 3 at 13.

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in “normal” sexual relations. Outside the criminal law, the idea of sexual integrity rests upon a wide range of values beyond simple respect for personal autonomy—relational values such as trust, honesty, care, respect, love, communication (especially about sexually transmitted diseases) and pleasure. These are considered vital, and yet, under existing sexual offences, play a limited role in shaping our understanding of the requisite physical and fault elements. There are signs that courts, as well as legislatures, are prepared to promote a model of sexuality based on respect for human dignity. Kirby P, in R v Tolmie, 669 held that the complete failure to consider the consent of the other person was a blameworthy state of mind and, as such, constituted “recklessness” for the purpose of sexual assault. Although the decision concerned the interpretation of State legislation, a similar approach to fault could be adopted in the common law. A broadened notion of recklessness will undoubtedly raise the objection that serious sexual offences must not be converted into crimes of negligence or strict liability. However, such criticism is misdirected. In Tolmie, Kirby P firmly reiterated that penalising “culpable inadvertence” did not alter the general principle in Morgan that a mistaken belief (however unreasonable) in consent negated the requisite fault element. He also stressed that the fault element based on inadvertence was not founded on a hypothetical reasonable person standard, but rather on the accused’s complete failure to consider the issue of consent in circumstances where the risk of non-consent would have been obvious to someone with the accused’s mental capacity. Commendably, the approach to fault in Tolmie traversed the traditional binary opposition of subjectivism versus objectivism. While demonstrating fidelity to fundamental principles of individual justice in the process of fault attribution, the decision recognised that the criminal law, consistent with the objectives of rape law reform, must impose an ethic of care and responsibility on individuals who engage in acts of sexual intimacy. The law of sexual offences is also concerned with upholding and policing sexual decency. There is a tension within legal discourse between the principles of liberalism and welfare. This tension, which is evident in many compartments of the criminal law, has been explored in Chapter 1, [1.235]. Individual rights of autonomy and privacy compete with community interests. For some offences, maintaining community standards of sexual decency are dominant considerations, subordinating individual rights of autonomy and privacy. Sexual offences such as gross indecency and obscenity demonstrate little (if any) concern for individual rights of autonomy and privacy, functioning primarily as public order offences. Conceived as “offences against public morality”, these crimes protect the community from conduct or material considered offensive. In the modern context, the limits of sexual decency are fixed objectively by reference to “community standards” of decency. The notion of “community” plays an important symbolic and ideological function in drawing the boundaries between legitimate and deviant sexuality. However, a standard of decency based on the “right-minded” or “reasonable” person has potentially repressive consequences. This standard implicitly fixes male heterosexuality as the norm of comparison, significantly restricting the scope for sexual diversity and toleration. Community interests may trample upon individual autonomy and privacy, leading to accusations of moral and legal paternalism. In some cases, this paternalism is justified because the victim is vulnerable to sexual exploitation. Legislation has identified categories of vulnerable “victims” who are to be protected from sexual activity regardless of consent. For offences involving children or mentally impaired persons, concern about their impaired capacity to consent mingles with moral objections to the nature of the sexual attraction. For example, in the area of child sexual exploitation, the patterns of law enforcement and level of punishment are contingent both on the nature of the relationship between the offender and the 669

R v Tolmie (1995) 37 NSWLR 660. [11.255]

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victim (intra-familial/extra-familial) and the sexual orientation of the offender. Society is presently gripped in a moral panic about homosexual paedophilia, which is viewed with greater moral repugnance than other forms of child sexual abuse. This privileging is now being challenged by the sustained public focus upon institutional child sexual abuse generated by the Royal Commission, due to make its final report in late 2017. These differential responses to homo/heterosexual, intra-familial and institutional child sexual abuse reveal the political influences involved in the construction of sexual deviance, and how the private sphere continues to be implicated in concealing and downgrading some forms of sexual abuse. The law governing sexual offences is not a coherent or unified body of law. The level of diversification is a reflection of the fact that sexual offences perform a wide variety of functions in modern society. In symbolic terms, sexual offences have become an arena in which the claims of liberalism, morality and feminism are contested. This conflict, which is often suppressed in the technicality of legal discourse, reflects the pluralism of values and interests that legitimately impinge on the criminalisation of sexual behaviour. Sexuality is essential to human flourishing and a criminal law that acknowledges the value of sexual pluralism, rather than simply perpetuating sexual repression, would, in our opinion, provide a better blueprint for future legal development.

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Chapter 12

Property Offences A lawyer with his briefcase can steal more than a thousand men with guns. 1 [12.05]

INTRODUCTION ........................................................................................................................ 757

[12.15] [12.20] [12.35]

THE COMMON LAW OF LARCENY ............................................................................................. 761 The Physical Element: Taking and Carrying Away ........................................................................ 763 The Fault Element: Fraudulent Intent ......................................................................................... 767

[12.40] [12.45] [12.85] [12.120] [12.150] [12.200] [12.230] [12.255] [12.260] [12.270] [12.290] [12.295] [12.305] [12.315]

THEFT OFFENCES ....................................................................................................................... 769 Dishonesty ................................................................................................................................. 770 Appropriation ............................................................................................................................ 788 Property ..................................................................................................................................... 799 Belonging to Another ................................................................................................................. 810 Intention to Permanently Deprive .............................................................................................. 823 Related Offences: Robbery, Burglary and Receiving .................................................................... 831 FRAUD AND DECEPTION OFFENCES .......................................................................................... 838 Reforming Fraud: Passing Bad Cheques to Cyber-Scamming ...................................................... 838 Obtaining by Deception ............................................................................................................ 840 CORRUPTION: DOMESTIC AND TRANSNATIONAL BRIBERY OFFENCES ...................................... 848 Corruption Without Borders: Bribery at Home and Abroad ......................................................... 850 Foreign Bribery Offences: Extraterritorial Corruption .................................................................. 852 CONCLUSION ........................................................................................................................... 856

INTRODUCTION [12.05] This chapter examines a wide range of offences against property. At the State and

Territory level, the law is principally concerned with the protection of private property through offences such as larceny, theft and fraud. 2 At the federal level, the theft and fraud offences contained in the Criminal Code (Cth) aim to protect Commonwealth property, 3 as 1 2

3

M Puzo, The Godfather (G P Putnam’s Sons, 1969). The protection of property also relies on offences against criminal damage. While these offences overlap with the modern law of theft, they are beyond the scope of this chapter. Due to the conceptual differences between theft and criminal damage, it has been proposed that criminal damage should be included in a separate chapter of the Model Criminal Code: Model Criminal Code Officers Committee, Chapter 4—Damage and Computer Offences, Discussion Paper (2000). Property offences have extended to both the protection of public, as well as private, interests. Reflecting the approach of Roman law, the early common law of larceny in the 15th century was more concerned with

[12.05]

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well as giving effect to the obligations arising from Australia’s ratification of international treaties, for example, the adoption of offences against money laundering, cybercrime and foreign bribery. In the field of property crime, the criminal law has experienced acute difficulties in adapting existing offences to new situations. The industrial revolution in the 19th century heralded increasingly complex commercial dealings that relied upon cheques, credit and other negotiable instruments. Yet the common law of larceny, geared toward the physical taking and carrying away of portable chattels, found it difficult to accommodate novel forms of fraud involving intangible property. A plethora of statutory offences was enacted to plug the gaps in larceny. The common law also responded to the growth in commercial fraud by fashioning a “catch all” offence from the law of conspiracy. The inchoate offence of conspiracy to defraud has been examined in Chapter 8, [8.140]. At the end of the 20th century, the “information technology revolution” heralded yet another dramatic change in the nature of commercial activity, creating new opportunities for the fraudulent appropriation of property and challenges for the criminal law. Uncertainty over the nature of information as property and whether particular forms of dishonesty are covered by existing laws have led to new crimes against computer fraud. Similar questions have arisen over criminal damage and whether interference with intangible property in the form of computer data should be criminalised as a distinct offence. Cybercrime is not limited to fraud, and increasingly unauthorised use or access to data is viewed as a crime against national infrastructure, rather than a computer “trespass” or theft. These emerging types of criminality are increasingly falling within the province of our expanding federal criminal law. Due to the international and transnational dimension of cybercrime and its legal response, we examine these offences in depth in Chapter 15, [15.240]. In addition to these technological challenges to the law, the complexity of modern commercial transactions raises concern that the trial procedures for dealing with “serious commercial fraud” are inadequate. It has been argued that non-expert jurors may be less capable of evaluating financial impropriety, thereby increasing the costs and delays in prosecution, as well as the risk of unwarranted acquittals. As we shall explore at [12.50], the definition of dishonesty depends upon establishing and applying community standards, which can present difficulties for jurors (and judges) in the context of complex commercial transactions. Although these procedural and evidential questions are clearly related to the substantive law, they have usually been addressed as separate law reform projects. 4 In terms of law reform, this area of the criminal law has been subject to extensive refurbishment. In the 1960s, the Criminal Law Revision Committee (CLRC) in the United Kingdom recommended the abolition of the common law of larceny. Rather than continue an ad hoc and piecemeal approach to modernisation through statutory supplementation, the CLRC recommended that larceny and related offences be replaced with a comprehensive code dealing with property offences. This model was enacted by the Theft Act 1968 (UK). The

4

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keeping the peace than protecting private property. At that time, obtaining property by deception, fraud or breach of trust was not considered a public wrong. As we shall see at [12.25], private cheats were in due course brought within the framework of theft offences. George Fletcher in his history of larceny has distinguished two distinct patterns of criminality: the pattern of theft as evincing “manifest criminality”, which emerges as an objective reflection of the communities dealings with thieves; and the pattern of “subjective criminality”, which emerges from the 18th century onwards, which focused on the offender’s mens rea: G Fletcher, Rethinking Criminal Law (Boston: Little, Brown & and Co, 1978) Ch 3. In the United Kingdom, the obstacles to the investigation and prosecution of serious commercial fraud were examined by the Roskill Committee: Fraud Trials Committee Report (London: HMSO, 1986). Such reviews have led to the establishment of specialised multidisciplinary investigative bodies of accountants, police and lawyers empowered to investigate commercial fraud. For a review of these new investigators in Australia, see M Findlay, S Odgers and S Yeo, Australian Criminal Justice (4th ed, Melbourne: Oxford University Press, 2009) Ch 3. [12.05]

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United Kingdom Act has formed the basis of the property offences enacted by the Crimes (Theft) Act 1973 (Vic) and the Crimes (Amendment) Act (No 4) 1985 (ACT). It has also influenced the approach adopted to the offence of “stealing” enacted in s 209 of the Criminal Code (NT), and the theft offences enacted in South Australia by the Criminal Law Consolidation (Offences of Dishonesty) Amendment Act 2002 (SA), which abolished larceny, replacing it with a new Pt 5 titled “Offences of Dishonesty”. A quarter of a century ago, Brent Fisse doubted whether the United Kingdom Theft Act model would bring the “hoped for” simplification to property offences. 5 He examined the reforms enacted in the Australian Capital Territory and Victoria as a postscript to the examination of larceny. Our assessment of the Theft Act model in this chapter proceeds with greater optimism about the prospects for modernisation and codification in this area. Since Fisse’s somewhat pessimistic assessment, the Model Criminal Code Officers Committee (MCCOC) recommended that the Theft Act model, with minor modifications, be adopted in all jurisdictions. 6 While the process of codification has been slower than expected, as noted in Chapter 2 at [2.20], the Commonwealth government has passed the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (Cth), which enacts the Theft Act model for federal property crimes. Indeed, the movement towards uniformity in relation to property offences appears to be stronger than in other areas. There is a widespread perception that larceny, and its complex array of supplementary offences, is unable to cope with sophisticated fraud. Within a federal criminal system, there is considerable anxiety that jurisdictional differences mean that sophisticated crime and criminals will be drawn to those jurisdictions with the weakest criminal laws and powers of enforcement. As the MCCOC noted: “Whether a person gets convicted of theft, forgery or bribery or a related offence should not depend on those offences having different elements on one side of the River Tweed from the other. Justice and efficiency demand consistent if not uniform offence provisions.”

Later the MCCOC stated: 7 “More than most offences, fraud knows no jurisdictional boundaries and, in view of what has come to be termed ‘the excesses of the 80s’, the need for a uniform and principled approach to the problems of fraud and these related offences has never been greater.”

The MCCOC noted that there was overwhelming support from respondents for the Theft Act model and the goal of uniformity. Uniformity also offers administrative benefits in terms of simplification and streamlining. As the MCCOC noted, the 150 offences dealing with theft, fraud and related offences in New South Wales would be replaced by a Code of about 20 offences contained in Chapter 3 of the Model Criminal Code. 8 The administration of uniform laws offers practical advantages in terms of legal training, production of reference material, development of precedent and consistency of sentencing across jurisdictions.

Australian Institute of Criminology: property crime “facts and stats” [12.10] Property crime is very common, accounting for the bulk of the major crimes reported to the police. But, as recent data show, property crime rates in 2013 were the lowest on record in the past 17 years. Although certain brief periods have seen slight increases in the 5

6 7 8

B Fisse, Howard’s Criminal Law (5th ed, Sydney: Law Book Company, 1990) pp 197–198, 283–284. Fisse suggested (p 315) that “the task ahead may not be so much salvage of the Theft Act hulk as abandonment and laying a different keel”. MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 6. MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) pp vi–vii. MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 1. [12.10]

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prevalence of unlawful entry with intent (between 2010–2011) and motor vehicle thefts (between 2010-2012), the overall trend has been firmly downwards. From 1995 to 2013, there was an overall decline in the monthly number of unlawful entry offences (which includes burglary) across Australia. In 2013, “other theft” (which includes offences such as pickpocketing, bag snatching, and shoplifting) was the most commonly recorded property crime, accounting for 65% of property crime victims. From 2003 to 2013, there were 141,136 fewer victims of other theft. 9 While traditional property crime rates remain relatively stable or declining, there has been a significant shift towards online fraud. As the Australian Competition and Consumer Commission (ACCC) notes, many of the scams targeting consumers and small businesses are not reported to the police due to embarrassment or the relatively low level of losses. In 2015, 105,201 cases were reported to the ACCC: see Targeting Scams: Report of the ACCC on Scam Activity 2015 (2016). 10 However, as the ACCC notes, this number may be understated given that many scams are unreported and the ACCC is one of several agencies that receives reports on scams. Estimated losses resulting from scam-related activities reported to the ACCC were $84,941,766.

The Theft Act model offers the promise of greater certainty, consistency and predictability in the criminal law. The liberal promise of codification has been critically evaluated in Chapter 2 [2.25]. Simplification was an important aim of the original drafters. It was hoped that fundamental legal concepts, such as dishonesty, could be applied by the jury according to their “ordinary meaning” without complex technical directions from the trial judge. The statutory offence of theft tried to avoid the complexities of the civil law governing the transfer of ownership that had bedevilled larceny, especially in cases of mistake. This objective of simplification has remained illusive, as the MCCOC noted: “There is an irreducible level of complexity that comes with complex financial transactions and apparently straightforward transactions like writing a cheque can raise complex issues of civil law and the nature of intangible property and who owns it.” 11

While the common law of larceny centres on the physical element of taking property, the Theft Act model focuses to a greater degree on the fault element. As the MCCOC pointed out, the concept of dishonesty is crucial in distinguishing between a legitimate and illegitimate interference with another person’s property. 12 As we shall see below, the Model Criminal Code provisions dealing with dishonesty, which have been adopted in several jurisdictions, have brought significant clarification to the meaning of this term. In jurisdictions which have not yet adopted the MCCOC recommendations, the meaning of key terms like “fraudulently” and “dishonesty” have been substantially left to the courts to develop. A key controversy is whether the fault element of dishonesty should be determined by reference to the accused’s belief (subjective), community standards (objective), or some hybrid concept. For property offences where dishonesty is not expressly defined by statute, the meaning and scope of words like “fraudulently” and “dishonesty” have been subject to extensive judicial development over many decades. The High Court has played a significant role in promoting a common approach

9

11 12

See Australian Crime: Facts and Figures 2014 (Canberra: Australian Institute of Criminology, 2016), http://www.aic.gov.au/media_library/publications/facts/2014/facts_and_figures_2014.pdf (cited 14 November 2016). The ACCC report may be downloaded at http://www.accc.gov.au/publications/targeting-scams-report-onscam-activity/targeting-scams-report-of-the-accc-on-scam-activity-2015 (cited 14 December 2016). MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 5. MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 11.

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to the definition of the fundamental concept of property crime in the decisions of Peters v The Queen and Macleod v The Queen, see [12.65]. Notwithstanding the ambitions of the drafters to minimise reliance on case law to determine the meaning of key elements of theft, the Theft Acts have generated a steady stream of appeals in England and Australia. Like its predecessor, larceny, the modern law of theft is continually challenged by technological and commercial innovation. Property offences have particularly been tested by the criminal ingenuity involved in “white collar crime”. As the mafia in The Godfather could attest, and reflected in the introductory quote to this chapter above, professional groups such as lawyers, accountants and other advisers, can be employed to create complex “paper trails” which conceal the tainted origins of property or profits obtained from illegal activities. To combat these developments, the offence of “obtaining financial advantage by deception” has been introduced into several Australian jurisdictions. 13 “This new offence was intended not only to supplement but to extend the traditional concepts of property to deal with the increase in ‘white collar’ crime”. 14 Indeed, it is no coincidence that the High Court decision of Peters v The Queen, which reviewed the definition of dishonesty, arose from the conviction for fraud of a solicitor who had helped a client to launder money through a series of sham mortgage transactions. The elements of conspiracy to defraud are discussed in Chapter 8, [8.140]]. In addition to fraud offences, these activities may now be caught by money laundering offences and the wide-ranging powers to confiscate the proceeds of crime enacted in most jurisdictions. 15 Money laundering, which may be regarded as the “new property” crime, is further examined in Chapter 14, [14.180]ff.

THE COMMON LAW OF LARCENY [12.15] The common law of larceny applies in New South Wales. The common law is,

however, heavily qualified by statutory provisions that set out the procedures, penalties and circumstances of aggravation related to larceny. 16 That said, the offence of larceny has never been defined by statute in New South Wales. Larceny is one of the most complex common law offences, which, as Brent Fisse concluded, is “more distinguished perhaps than any other offence by its anomalies and irrationalities”. 17 The technical complexity of larceny may be explained by the array of overlapping statutory offences (fraud, embezzlement and misappropriation) enacted to plug gaps that appeared in the basic offence. 18 Larceny provided the basis, with minor amendment, for the statutory offences enacted in the Code jurisdictions of Queensland, Tasmania and Western Australia. It also formed the basis of the property offences that were inserted into the Crimes Act 1914 (Cth) to protect Commonwealth property. Federal property offences have recently been modernised, adopting

13

14 15 16 17 18

Crimes Act 1900 (NSW), s 178BA (now repealed); Crimes Act 1958 (Vic), s 81 amended by Crimes (Theft) Act 1973 (Vic), s 2(1)(b); Criminal Code Act 1924 (Tas), s 252A amended by Criminal Code Amendment (Financial Advantages) Act 1989 (Tas), s 4; Criminal Code (Cth), s 134.2; Criminal Code 2002 (ACT), s 332 and Criminal Law Consolidation (Offences of Dishonesty) Amendment Act 2002 (SA); Criminal Code (Qld), s 408C(1)(d). A Steel, “Money for Nothing, Cheques for Free? The Meaning of ’Financial Advantage’ in Fraud Offences” (2007) 31(1) Melbourne University Law Review 201 at 205–206. See, for example, Proceeds of Crime Act 2002 (Cth). Crimes Act 1900 (NSW), ss 116 – 163. B Fisse, Howard’s Criminal Law (5th ed, Sydney: Law Book Company, 1990) p 198. For an excellent socio-historical account of larceny, see J Hall, Theft, Law and Society (2nd ed, Bloomington, IN: Bobbs-Merrill, 1952). [12.15]

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the Theft Act model, and are now contained in the Criminal Code (Cth). 19 Table 1 Basic larceny and theft offences Jurisdiction Model Criminal Code

Offence theft

Fault elements dishonestly

Physical elements appropriates

intention to permanently deprive dishonestly (ss 130.3 and 131.2) intention to permanently deprive (s 131.10)

property belonging to another Appropriates (s 131.3) property (s 130.1) which belongs to a “Commonwealth entity” (see Code Dictionary) appropriates (s 304) property belonging to another (s 305) takes and carries away without consent of owner or person in possession or control

(cl 3.1.1) Cth Criminal Code

theft (s 131.1)

ACT Criminal Code

theft (s 308)

NSW Common law and Crimes Act 1900, Div 5

larceny (s 117)

NT Criminal Code

stealing (s 210)

Qld Criminal Code

stealing (s 398)

SA

Theft (and receiving)

Criminal Law Consolidation Act 1935

Vic

intention to permanently deprive unlawfully (s 209) intention of depriving (s 209) fraudulently (ss 391(1) and 391(2)) fraudulently requires intention to permanently deprive (s 391(2)) dishonestly

property belonging to another appropriates (s 209) property belonging to another (s 209) takes or converts (s 391(2)) anything that is the property of any person which is moveable or capable of being made moveable (s 390) deals with property (s 134)

(ss 131 and 134(1)(a))

(s 134)

Tas Criminal Code

dishonestly (s 303) intention to permanently deprive (s 306) fraudulently

stealing (s 234)

theft

intention to permanently deprive or to make a serious encroachment on the owner’s proprietary rights (s 134(1)(c)) dishonestly (s 226(1)) intention to permanently deprive (s 226(1))

dishonestly

without the owner’s consent (s 134)

take or converts without consent of owner, possessor or controller (ss 226(1) and 226(2)) every movable thing which is the property of any person, or a thing which is attached to or forms part of any real property as soon as it is completely severed (s 227) appropriates

19

The principal property offence in the Crimes Act 1914 (Cth) is s 29 (destroying or damaging Commonwealth property); the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (Cth) repealed the former offences of stealing Commonwealth property, false pretences defrauding the Commonwealth and false representation, and inserted Pt 7.2 “Theft and other property related offences” into the Criminal Code (Cth).

762

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Property Offences

Jurisdiction Crimes Act 1958

Offence (s 74)

WA Criminal Code

stealing (s 371(1))

Fault elements (ss 72(1) and 73) intention of permanently depriving (s 72(1)) fraudulently (ss 371(1), 371(2)) fraudulently requires an intention to permanently deprive (s 371(2))

Ch 12

Physical elements (s 72(1)) property belonging to another (s 72(1)) takes or converts (s 371(1)) every inanimate thing which is the property of any person and which is movable, or capable of being made moveable (s 370)

As Chapter 1 highlighted, it is also important to appreciate how changes in criminal procedure can have an impact on the development of substantive law: [1.105]ff. In England, “simple larceny” was distinguished from the more serious offence of “grand larceny” which applied where the stolen property was worth more than one shilling. With the effects of inflation over time, the scope of the offence grew wider and wider. To limit the scope of this capital offence, the courts drew elaborate and technical distinctions between different types of misappropriation. Parliament was often compelled to intervene, enacting a wide range of supplementary offences. Although larceny is no longer a capital offence, its irrational elements are considered too well established to be abolished except by way of legislation, which has occurred both in common law and code jurisdictions. 20 The common law of larceny and modern statutory offences of theft nevertheless share some common elements. This section contains an overview of the distinctive physical and fault elements of larceny. Since many of the provisions introduced by the Theft Act model address perceived deficiencies in the common law, the discussion of some aspects of the common law (such as the effect of mistake on transfer of property) will be deferred until the next section. Table 1 sets out the elements of larceny and theft offences across Australian jurisdictions.

The Physical Element: Taking and Carrying Away [12.20] The key element of larceny is “asportation”, that is, the physical taking and carrying

away of property. The courts took a generous view of this requirement, holding that the slightest movement of any part of the property could suffice. 21 The removal of the property had to occur against the owner’s will, which, in the modern law, is now understood as without the owner’s consent. 22 The common law also required that the initial taking of the property and the fraudulent intent must coincide. This requirement exposed major deficiencies in the law which, as we shall explore below, were remedied by postponing the moment of taking through the use of legal fictions such as the doctrine of “continuing possession” and “breaking bulk”. The general requirement of concurrence between the physical and fault elements precluded a conviction for larceny in cases where the accused innocently acquired property without committing a trespass. For example, a person who obtained possession by mistake could not be guilty of larceny. A subsequent fraudulent intention to retain or deal with the property did not convert the original innocent asportation into larceny. However, the 19th century courts in 20

21

22

See Crimes Act 1900 (NSW), s 116. The law of larceny that was received into the Australian colonies is summarised in GD Woods, A History of Criminal Law in New South Wales (Sydney: Federation Press, 2002) pp 15–17. This distinction between grand and petty larceny was abolished in 1828 in New South Wales: p 118. R v Lapier (1784) 168 ER 263; R v Walsh (1824) 168 ER 1166; R v Taylor [1911] 1 KB 674; Wallis v Lane [1964] VR 293. The principles developed in these cases is explored in B Fisse, Howard’s Criminal Law (5th ed, Sydney: Law Book Company, 1990) p 201. Kennison v Daire (1985) 38 SASR 404 at 412 per Jacobs J. [12.20]

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Australia were understandably reluctant to allow acquittals in these circumstances. There was a strong line of authority establishing that innocent acquisition of another person’s sheep or cattle would not preclude larceny in cases where the person continued in the unlawful possession (constituting a tort of trespass) in the knowledge that he or she was not entitled to that property. 23 There remained some uncertainty over the precise rationale and scope of this rule, including doubts as to whether it could be applied to inanimate as well as animate objects. 24 The 19th century judges resorted to the legal fiction of “continuing possession” to overcome the narrowness of the doctrines of asportation and concurrence. As Brent Fisse noted, “[t]he only purpose served by the idea of continuing trespass is the preservation of the old rule that there is no larceny unless the intention to steal coincides in time with the wrongful taking”. 25 The conceptual strains placed on larceny to accommodate cases of “fraudulent conversion” led to further modifications in the 19th century. Under the Codes enacted in Queensland and Western Australia, the statutory offence of stealing was extended to include the fraudulent taking or conversion of property. 26 Any subsequent dealing with the property inconsistent with the rights of the owner could constitute fraudulent conversion. 27 The statutory distinction between taking and conversion in the Code jurisdictions now assumes less significance following the gradual acceptance of the notion that taking may be a “continuing act”. 28 As we explore at [12.85], the Theft Act model has applied a similarly elastic approach to the physical element of dishonest appropriation, which extends to cases where a person innocently comes by property without stealing it and then subsequently decides to keep it or deal with the property as the owner. 29 Similar problems of conversion arose in relation to “larceny by bailee”. A bailment arises where the owner grants possession of property to another with specific instructions for its use or safekeeping. Since the initial possession was not a trespass against the will of the owner, there was uncertainty as to whether the employees who appropriated property entrusted to them by their employers could be guilty of larceny. Even before the doctrine of continuing possession emerged, the common law had held that a servant who received possession of a consignment of goods, and subsequently appropriated them, could be guilty of larceny. 30 The rationale for the decision came to be based on the fact that the servant only acquired possession when he or she “broke bulk” and took the contents of the consignment. To keep the scope of larceny by bailee within proper bounds, the courts carefully scrutinised the nature, scope and obligations imposed on the bailee. A number of uncertainties arose over whether larceny could be applied to the misappropriation of the proceeds of the property bailed or was limited to the property itself. Parliament also intervened in the 18th century, enacting special offences that targeted theft within the employment context. The statutory offence of embezzlement dispensed with the requirement of initial trespass to property and criminalised misappropriation of property (including money and other valuable securities) and 23

29 30

R v Finlayson (1864) 3 SCR (NSW) 301. A similar approach seems to have been taken to “larceny by finding” in early NSW law. In R v Gwillin [1823] NSWKR 5, the Court of Criminal Jurisdiction rejected “ingenious” argument that larceny by finding would exculpate the felonious intention, which the Court held in law alone effected the criminality. B Fisse, Howard’s Criminal Law (5th ed, Sydney: Law Book Company, 1990) pp 202–205. B Fisse, Howard’s Criminal Law (5th ed, Sydney: Law Book Company, 1990) p 204. Criminal Code (Qld), s 391; Criminal Code (WA), s 371. Ilich v The Queen (1987) 162 CLR 110 at 116 per Gibbs CJ. R v Johnston [1973] Qd R 303; R v Hennessey [1976] Tas SR (NC) 4; Coyne v Dreyer (1991) 13 MVR 540; R v McDonald [1992] 2 Qd R 634. Criminal Code (ACT), s 304(2); Criminal Code (NT), s 209(1); Crimes Act 1958 (Vic), s 73(4). Carriers Case (1473) YB 13 Edw.

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proceeds already in the possession of the servant. These offences were determined by reference to the occupational status of the accused, and tended to be restricted to individuals with special fiduciary obligations such as agents, clerks and servants, tenants and lodgers, company officers, trustees, public servants, partners and joint owners, and persons exercising a power of attorney. 31 As we shall explore in the next section, the Theft Act model has not recognised a separate species of “theft by bailee”, but contains general provisions dealing with individuals who receive property initially without stealing it, and are under a legal obligation to account for property or its proceeds in particular ways. Distinguishing between larceny and obtaining by fraud [12.25] In relation to larceny, another critical distinction emerged between taking property

without consent, and obtaining property with consent through trickery or deception. A number of legal questions arose in relation to “larceny by trick”. Originally, obtaining property by fraud was not considered to be larceny, but rather the less serious misdemeanour of public cheating. The offence distinguished between conduct that aimed to defraud “the public” and “private cheats” which only gave rise to civil liability. The misdemeanour of cheating has largely fallen into disuse in Australia. 32 Indeed, the statutory offences of cheating included in the 19th century Griffith Code have been abolished in Queensland and Western Australia. 33 At the end of the 18th century, there was considerable uncertainty as to whether larceny could be used against obtaining property by fraud or deception. The courts eventually resolved the uncertainty by recognising “larceny by trick”, but only in cases where the accused had used deception to obtain the initial possession. 34 The legislature also intervened to create a general offence of obtaining property by false pretences. Although there is an obvious overlap between the common law and statutory offences, the courts drew complex distinctions in an effort to preserve the conceptual unity of larceny and to avoid duplication of charges. Larceny by trick involved fraudulent conduct that had induced the victim to transfer possession of his or her property, whereas the statutory offence of obtaining property by false pretences involved conduct that induced the victim to transfer ownership as well. 35 This distinction preserved the idea that larceny under the common law was a crime against possession; since fraud was used to obtain possession, the victim’s consent to the taking by the accused was negated, leaving the accused guilty of larceny. This distinction between these two offences has been criticised as being artificial, since in both cases the accused acts with the same fraudulent

31 32

33

34 35

See Crimes Act 1900 (NSW), ss 155 – 163; Criminal Code (Qld), ss 398(5) – (8); Criminal Code (WA), ss 378(6) – (9). B Fisse, Howard’s Criminal Law (5th ed, Sydney: Law Book Company, 1990), pp 209–210. In the United Kingdom, the common law offence of public cheating has recently been revived to deal with tax evasion schemes not caught by existing theft and revenue offence, see D Ormerod, “Cheating the Revenue” [1998] Criminal Law Review 627. To facilitate more efficient prosecutions, a statutory offence of tax evasion triable in the Magistrates’ Court was enacted by the Finance Act 2000 (UK), D Ormerod, “Summary Evasion of Income Tax” [2002] Criminal Law Review 3. The statutory offences of cheating were enacted in s 429 of the Criminal Code (Qld) and s 411 of the Criminal Code (WA) (though these offences were abolished in 1997 and 1990 respectively). Cheating remains an offence under s 252 of the Criminal Code (Tas): “Any person who, with intent to defraud, by means of any trick or device, obtains from any person, or induces any person to deliver to any person, anything capable of being stolen, is guilty of a crime.” R v Pear (1779) 168 ER 208; see, further, G Ferris, “The Origins of ’Larceny by Trick’ and ’Constructive Possession’” [1998] Criminal Law Review 175. R v Ward (1938) 38 SR (NSW) 308 at 313. [12.25]

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intent and causes the same harm to the interests of the property owner. 36 A review of the available authorities reveals that the distinction was not always applied in a consistent or principled manner by the courts. 37 Since it was firmly established that an accused could not be guilty of both charges on the same facts, the uncertain relationship between larceny and the statutory offence of obtaining by false pretences has provided scope for appeals on technicalities often leading to unmeritorious acquittals. 38 In jurisdictions that draw this distinction, the prosecutor’s dilemma over which offence to charge has been addressed by special statutory rules allowing for alternate verdicts. 39 Another uncertainty in the common law is related to the definition of property. The common law was unprepared to adapt to the increasing credit-based economy of the 19th century. As the High Court in Croton v The Queen noted, 40 larceny did not extend to stealing intangible property such as debts. Such an extension, which was clearly needed, had to be effected by legislation rather than common law development. Even applying the law to the larceny of money presented problems, since money is an intangible and fungible property. Money is intangible in the sense that the true value of each note or coin lies in the fact that it represents a debt or chose in action, rather than in its tangible physical form (ie the metal coin or paper note). Fungible property, being substitutable by nature, presents difficulties in cases where a person obtaining the money has an intention to repay it in specie, that is, using notes of equivalent value. Does the inability to repay the exact notes originally obtained leave that person open to charges of larceny or obtaining by false pretences? 41 The approach to this problem of intangible property under the Theft Act model is discussed below.

Cheating on tax and welfare: same fraud, different outcome [12.30] David Brown and Russell Hogg in Rethinking Law and Order note that the majority of tax and Medicare fraud is dealt with by civil and administrative measures to recover losses, rather than by criminal prosecution. 42 Welfare fraud, by contrast, seems much more likely to be prosecuted as a summary offence. Indeed, in July 2015 the Australian Federal Police formed a new taskforce (“Taskforce Integrity”) to target welfare recipients who “intentionally try to defraud the welfare system”. 43 By August 2016, across Australia, 28 cases had been referred to the Commonwealth Director of Public Prosecutions. 44 The authors conclude that the distinction in levels of enforcement activity could be explained as a product of class bias, or that there exist sound organisational and economic reasons for not enforcing 36 37

38 39 40 41 42 43

44

CR Williams, Property Offences (3rd ed, Sydney: LBC, 1999) p 144 discussing the views of J Hall, Theft, Law and Society (2nd ed, Bloomington, IN: Bobbs-Merrill, 1952) p 45. The artificiality of the distinction is apparent in the cases involving “ringing the changes”, a common trick where in the course of a transaction, the accused asks for change, and then confuses the teller by producing further money and altering the request. Although the parties intend the ownership in the money to pass, the courts have always treated this case as larceny by trick. On the malleability of this distinction, see B Fisse, Howard’s Criminal Law (5th ed, Sydney: Law Book Company, 1990) p 222; CR Williams and M Weinberg, Property Offences (2nd ed, Sydney: Law Book Company, 1986) pp 123–124. R v Mark (1902) 28 VLR 610. Crimes Act 1900 (NSW), s 120; Criminal Code (Qld), s 581; Criminal Code (Tas), s 338(1). Croton v The Queen (1967) 117 CLR 326. The confusing position under the common law is discussed in B Fisse, Howard’s Criminal Law (5th ed, Sydney: Law Book Company, 1990) pp 217–219. D Brown and R Hogg, Rethinking Law and Order (Sydney: Pluto Press, 1998) pp 95–98. A Tudge, Minister for Human Services, “Media Release: Taskforce Integrity targets welfare fraud in Adelaide”, Australian Government, Department of Human Services, https://www.mhs.gov.au/media-releases/2016-08-29taskforce-integrity-targets-welfare-fraud-adelaide (cited January 2017). A Tudge, Minister for Human Services, “Media Release: Taskforce Integrity targets welfare fraud in Adelaide”,

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criminal sanctions in cases of tax and Medicare fraud. In relation to the latter, the lower level of enforcement may reflect the resources and powers available to investigators, as well as the capabilities of those accused of fraud to defend themselves. Whatever the reason, it is clear that the criminal law operates in a non-egalitarian manner. More significantly, this research reveals that “a private form of administrating justice” has grown up to replace the criminal law: regulatory agencies such as the Australian Taxation Office involved give priority to administrative “penalties” and debt recovery through civil courts. These processes can achieve the same educative and punitive outcome as the criminal law without incurring the cost of criminal litigation. A similar civil and administrative penalties scheme has been applied to deal with breaches of the Corporations Law (Cth). 45 Operating in the shadow of the criminal law, these processes are largely disinterested in moral evaluations of the offender’s conduct. This process of pervasive demoralisation, with its emphasis on cost-effectiveness and efficiency, is consistent with the “technocratic” model of criminal justice, discussed in Chapter 1, [1.160].

The Fault Element: Fraudulent Intent [12.35] The concept of fraudulent intent under the common law (and its statutory variant)

plays an important role in distinguishing between theft and other forms of taking that are not considered sufficiently morally objectionable to warrant criminalisation. The courts are vigilant not to apply the stigma of larceny or theft to conduct that lacks “moral obloquy”. As Lawton LJ noted in R v Feely, it is the fault element “whether it is labelled ‘fraudulently’ or ‘dishonestly’, which distinguishes a taking without consent from stealing”. 46 The common law requirement of fraudulent intent developed case-by-case, with the courts attempting to identify situations where the taking of property warranted criminal condemnation. In terms of fault, the early common law emphasised simply that the taking of property must be “without a claim of right”, that is, without a lawful right to the property. In the early 19th century, the word “fraudulently” was used interchangeably with “without a claim of right”. 47 By the middle of the 20th century, some courts emphasised that the fault element for larceny required proof of a positive, subjective mental state on the part of the accused. The requirement that the taking of property must be without claim of right was gradually refashioned into a subjective mental state based on the belief that the taking is without a claim of right. In R v Williams, 48 the English Court of Criminal Appeal considered the fault required for the statutory offence of larceny in the Larceny Act 1916 (UK). Goddard LCJ emphasised that the requirement that the property was taken “without claim of right” and “fraudulently” meant that individuals “knew that they had no right to take the money which they knew was not their money”. 49

45 46 47 48 49

Australian Government, Department of Human Services, https://www.mhs.gov.au/media-releases/2016-08-29taskforce-integrity-targets-welfare-fraud-adelaide (cited January 2017). V Comino, Australia’s “Company Law Watchdog”: ASIC and Corporate Regulation (Sydney: Lawbook Co. Thomson Reuters, 2015). R v Feely [1973] QB 530 at 541. R v Holloway (1849) 3 Cox 241 at 244. R v Williams [1953] 1 QB 660. R v Williams [1953] 1 QB 660 at 668. This decision was considered in R v Cockburn [1968] 1 All ER 466. In that case, the Court of Appeal emphasised that lack of moral obloquy was not a necessary element of larceny, though it may constitute substantial mitigation of sentence. The court stressed that larceny is the taking of property against the will of the owner without any claim of right, and with intent of taking it permanently to deprive the owner of it: at 468 per Winn LJ. The decision left the law in a state of uncertainty since it suggested that the term “fraudulently” did not require proof of a subjective requirement beyond an intent to permanently deprive. [12.35]

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Formulated as a subjective test, the courts have held that it does not matter whether that belief in the legal claim to the property is unfounded, either in fact or law, provided that the belief held is honest. 50 As we explore in the next section, the Theft Act model has retained a claim of right by incorporating the concept into the definition of dishonesty: an appropriation of property under a belief in a claim of right is deemed not to be dishonest. In addition to the development of a claim of right, the common law has identified a number of situations where there is a strong inference of fraud. The following statutory definition, which is generally considered an accurate summary of the existing common law, was adopted in s 391(2) of the Criminal Code (Qld) and s 371(2) of the Criminal Code (WA). Section 391(2) states that: A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if the person does so with any of the following intents, that is to say— (a) an intent to permanently deprive the owner of the thing of it; (b) an intent to permanently deprive any person who has any special property in the thing of such property; (c) an intent to use the thing as a pledge or security; (d) an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform; (e) an intent to deal with it in such a manner that it can not be returned in the condition in which it was at the time of the taking or conversion; (f) in the case of money—an intent to use it at the will of the person who takes or converts it, although the person may intend to afterwards repay the amount to the owner.

As we shall see below, these definitions of fraudulent intent form the basis of the statutory definition of dishonesty, though the fault elements are not identical. In R v Glenister, 51 the New South Wales Court of Criminal Appeal held that the meaning of “fraudulently” under s 173 of the Crimes Act 1900 (NSW) (since repealed) (an offence dealing with company directors who take or apply company property for their own use) had the same meaning as “dishonestly appropriates” under the Theft Act model. The court applied the leading English authorities, ruling that the term fraudulent could be used interchangeably with dishonesty, and that the jury should be directed that the question of dishonesty is to be determined by reference to the “current standards of ordinary decent people”. The High Court in Macleod v The Queen affirmed this approach to the meaning of “fraudulently” in s 173. 52 Gleeson CJ, Gummow and Hayne JJ emphasised that, in relation to statutory offences, the term “fraudulently” should be construed by reference to the terms, scope and purpose of the provision. 53 Consistent with the approach taken in Peters v The Queen, discussed at [12.65], it followed that there was no need for the trial judge to give a direction on “claim of right” separately from dishonesty. A claim that the accused had a belief, even if unreasonable and unfounded, that he or she was entitled by civil law to take or apply the property simply raises a reasonable doubt over whether the accused’s behaviour was fraudulent. 54 As in other areas of the criminal law where there is some degree of legislative variation, such as provocation, the courts are striving to develop uniformity in the interpretation of fundamental concepts of criminal responsibility: see Chapter 2, [2.25]ff. 50 51 52 53 54

R v Bernhard [1938] 2 KB 264 at 270; R v Powell [1962] QWN 123 at 129 per Gibbs J; R v Hancock [1963] Criminal Law Review 572. R v Glenister [1980] 2 NSWLR 597. Macleod v The Queen (2003) 214 CLR 230. Macleod v The Queen (2003) 214 CLR 230 at 241. Macleod v The Queen (2003) 214 CLR 230 at 244 per Gleeson CJ, Gummow and Hayne JJ, at 258 per McHugh J, at 266 per Callinan J.

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THEFT OFFENCES [12.40] The key elements of the theft offences in the various jurisdictions are the same, and

for the purpose of the following discussion we will look at the law in general terms, identifying jurisdictional differences as appropriate. We will then examine the provisions of the Model Criminal Code and the extent to which they diverge from existing approaches. The first Australian jurisdiction to adopt the Theft Act model based on the Theft Act 1968 (UK) was Victoria, in 1974. Victoria abolished the crime of larceny and replaced it with a statutory offence of theft. It also abolished related offences that had been enacted to plug gaps in the common law, such as embezzlement. The offences of obtaining by false pretences and receiving stolen property were replaced by new offences of obtaining property by deception and handling stolen property, respectively. 55 The Australian Capital Territory passed the Criminal Code (Theft, Fraud, Bribery and Related Offences) Amendment Act 2004 (ACT), which adopted most of the Model Criminal Code recommendations in regard to theft. 56 The Australian Capital Territory had been an early adopter of the Theft Act model, abolishing larceny and related common law offences in 1985. 57 Its 1985 reforms followed the same general pattern adopted in the United Kingdom and Victoria, though in one respect diverged by including obtaining property by deception within the basic offence of theft. Implementing the Model Criminal Code Officers Committee (MCCOC) recommendations in 2004, the Australian Capital Territory reinstated the distinction between “obtaining by deception” and theft offences: see [12.270]. The Northern Territory also remodelled its offence of stealing. 58 Although the offence is structured differently, the definitions used are substantially similar to those contained in the United Kingdom Theft Act model. In South Australia, the offence of larceny was abolished in 2002, and a range of new dishonesty offences were enacted. Although incorporating many of the MCCOC’s recommendations, the theft provisions are distinct in a number of respects and are best regarded as an adaptation (rather than adoption) of the Theft Act model. 59 The new chapter with regard to theft in the Criminal Code (ACT) includes a broad offence of “general dishonesty” directed at property offences committed against the Territory. 60 This provision bears analogy with Commonwealth fraud offences and with older common law offences against public cheating (which, as noted above, have fallen into disuse in Australia). It is questionable that a specific offence is needed to deal with behaviour that is intended to cause any degree of economic loss to the Territory. Under this scheme, taking a public road sign could be prosecuted as general dishonesty instead of the far less serious offence of minor theft. The offence is not limited to serious loss or gain, and therefore potentially applies to conduct that is intended to cause only negligible loss or gain. This residual offence of general dishonesty is more serious than minor theft despite having a broader and more nebulous physical requirement, namely, “doing something” with the relevant dishonest intent. This concept of “doing something” is vague, and does not adhere to the conventional categories of action typically used for property offences. The basic offence of theft under the Theft Act model is committed where a person dishonestly appropriates property belonging to another with an intention to permanently deprive the other of it. 61 The MCCOC identified the following six elements of theft: 55 56 57 58

Crimes Act 1958 (Vic), ss 71 – 93. See Criminal Code (ACT), ss 303 – 308. See Crimes Act 1900 (ACT), ss 83 – 114 (now repealed). Criminal Code (NT), s 209.

59 60 61

See Criminal Law Consolidation (Offences of Dishonesty) Amendment Act 2002 (SA). Criminal Code (ACT), s 333. Theft Act 1968 (UK), s 1(1); Criminal Code (ACT), s 308; Crimes Act 1958 (Vic), s 72. [12.40]

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″(1) dishonesty; (2) appropriation; (3) property; (4) belonging to another; (5) intention to deprive permanently; and (6) the requirement that all the elements exist at the same time.” 62

The South Australian model uses this formulation, but has avoided the term appropriation in favour of “dealing with property” without the owner’s consent. 63 The brevity and apparent simplicity of the basic formulation of theft is misleading. Each element is supplemented by an extensive definition section clarifying its meaning and scope, as well as case law examining its application in particular contexts, which we examine below.

Dishonesty [12.45] Reflecting its fundamental importance to the operation of the modern law of theft

and related offences, dishonesty is the first element defined in the Model Criminal Code. As the “core fault element” for the offences contained in Ch 3 of the Model Criminal Code, dishonesty replaced the common law requirement of fraudulent intent for larceny. The Theft Act 1968 (UK) did not define dishonesty, leaving the matter for the jury to decide as a question of fact. 64 However, the legislation offered a partial (negative) definition identifying those circumstances that are not to be regarded as dishonest. The definition sections, which have also been adopted in Australia, state that a person shall not be regarded as dishonest if he or she appropriates property: (a) in the belief that he or she has a lawful right to deprive the other person of the property on behalf of himself or herself or a third person; (b) he or she appropriates the property in the belief that the other person would consent to the appropriation if the other person knew of it and of the circumstances in which it was done; or (c) in the case of property other than property held by the person as trustee or personal representative—he or she appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps. 65

Recent reforms to dishonesty in Australia, implementing the MCCOC recommendations, have combined a positive definition for dishonesty with a list of circumstances where the conduct is taken not to be dishonest. The positive definition of dishonesty, for the purpose of theft and obtaining by deception offences, is a two-stage test, which has been enacted in the Criminal Code (Cth) in the following terms: Section 130.3 Dishonesty For the purposes of this Chapter, “dishonest” means: 62

63 64 65

770

The Model Criminal Code Officers Committee (MCCOC) (Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 31. The inclusion of the last element, namely the requirement of concurrence, followed the classification of the offence in B Fisse, Howard’s Criminal Law (5th ed, Sydney: Law Book Company, 1990) p 285. It should be noted that concurrence is a general requirement in the criminal law, not a specific element of theft. The principle of concurrence or contemporaneity is considered more generally in Chapter 3 [3.360]. In this chapter, we do not propose to devote a separate section to this requirement, but will examine the concurrence issues as they arise in the context of the specific elements, such as dishonesty, appropriation and property belonging to another. Criminal Law Consolidation Act 1935 (SA), s 134(1)(b). Criminal Law Revision Committee, Theft and Related Offences, Eighth Report (London: HMSO Cmnd 2977, 1966) [20]. See Theft Act 1968 (UK), s 2(1); Criminal Code (Cth), s 131.2; Criminal Code (NT), s 209(1); Criminal Law Consolidation Act 1935 (SA), s 131(4); Crimes Act 1958 (Vic), s 73(2). [12.45]

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(a) dishonest according to the standards of ordinary people; and (b) known by the defendant to be dishonest according to the standards of ordinary people.

A similar two-limb definition was enacted in the Australian Capital Territory, South Australia and New South Wales. 66 The South Australian reforms to theft, enacted in 2002, defined dishonesty in a comprehensive fashion, combining positive and negative elements, with examples. Section 131 of the Criminal Law Consolidation Act 1935 (SA) provides: Section 131 Dishonesty (1) A person’s conduct is “dishonest” if the person acts dishonestly according to the standards of ordinary people and knows that he or she is so acting. (2) The question whether a defendant’s conduct was dishonest according to the standards of ordinary people is a question of fact to be decided according to the jury’s own knowledge and experience and not on the basis of evidence of those standards. (3) A defendant’s willingness to pay for property involved in an alleged offence of dishonesty does not necessarily preclude a finding of dishonesty. 67 (4) A person does not act dishonestly if the person— (a) finds property; and (b) keeps or otherwise deals with it in the belief that the identity or whereabouts of the owner cannot be discovered by taking reasonable steps; and (c) is not under a legal or equitable obligation with which the retention of the property is inconsistent. (5) The conduct of a person who acts in a particular way is not dishonest if the person honestly but mistakenly believes that he or she has a legal or equitable right to act in that way. Example— A takes an umbrella violently from B honestly but mistakenly believing that B has stolen A’s umbrella and that A is entitled to use force to get it back. In fact, it belongs to B. A is charged with robbery. A cannot be properly convicted on this charge because of his honest but mistaken belief (however unreasonable). However, he may still be guilty of an assault. (6) A person who asserts a legal or equitable right to property that he or she honestly believes to exist does not, by so doing, deal dishonestly with the property. Example— A takes an umbrella violently from B honestly believing that the umbrella belongs to A and that A is entitled to possession of the umbrella (but knowing that she is not entitled to use force to get it back). The assertion of that possessory right (whether or not correctly founded in law) is not dishonest (and therefore cannot amount to theft) although the means used to get the umbrella back may well amount to some other offence. 68

The above definition sections clarify that dishonesty is a matter for the trier of fact. 69 On claim of right as a general defence, see Chapter 3, [3.330]. In relation to property offences where dishonesty is not subject to such exhaustive definition, there is some doubt as to whether further guidance on the concept should be offered beyond the terms used in the legislation. Appellate courts in England and Australia have grappled with the general or core meaning of dishonesty. The controversy over definition has centred on two issues, namely, whether the fault element of dishonesty is (i) a question of fact or law; and (ii) a subjective or objective test, or some hybrid version. 66 67 68 69

See also Criminal Code (ACT), s 300; Criminal Law Consolidation Act 1935 (SA), s 131; Crimes Act 1900 (NSW), s 4B. Similar provisions apply in the Theft Act 1968 (UK), 2(2); Criminal Code (Cth), s 131.2(3); Criminal Code (ACT), s 303(3); Criminal Code (NT), s 209(1); Crimes Act 1958 (Vic), s 73(3). See also Criminal Code (Cth), s 131.2 and Criminal Code (ACT), ss 300, 303. Criminal Code (ACT), s 300; Criminal Code (Cth), s 130.4. [12.45]

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The ordinary meaning approach to dishonesty: a question of fact? [12.50] The English courts in a series of cases in the 1970s and 1980s held that dishonesty

should be given its “ordinary meaning”, and that the tribunal of fact (jury or magistrate) should evaluate the accused’s alleged dishonesty by reference to the standards of ordinary decent people. 70 As a question of fact, no further direction elaborating on the meaning of the term should be given. This approach to dishonesty was endorsed by the MCCOC, and expressly incorporated into some statutory definitions. 71 As we shall see below, the Australian courts are generally reluctant to follow this ordinary meaning approach, viewing dishonesty as a legal rather than a moral question upon which the courts should give guidance to the jury or magistrate. 72 The first English case examining the general meaning of dishonesty under the Theft Act 1968 (UK) was R v Feely. 73 The accused was the manager of a betting shop. His employers issued a circular that the practice of employees borrowing money from the till was to stop. The accused took money, £30, from the till. When the deficiency was discovered, he provided an “IOU” and said that he intended to repay the money. He also said that, in any event, the employer owed him £70 in wages and commissions. The trial judge directed that it was no defence that the accused intended to repay the money or that his employer owed more than the sum taken. The accused appealed against his conviction. At trial, the jury had been directed that the accused would be acting dishonestly where he had intended to permanently deprive the owner of the specific notes taken and knew his employer (the owner of the money) did not permit that taking. This jury direction followed the earlier approach taken to larceny, confining the fault element to situations where the accused believed he or she had no legal right to appropriate the property. The Court of Appeal held that trial judges should not define the meaning of “dishonesty” for the purpose of s 1(1) of the Theft Act 1968 (UK). The issue of whether taking money from the till was dishonest was an issue for the jury. Lawton LJ, delivering the judgment of the court, held: “We do not agree that judges should define what ‘dishonestly’ means. The word is in common use … Jurors, when deciding whether an appropriation was dishonest can be reasonably expected to, and should, apply the current standards of ordinary decent people. In their own lives they have to decide what is and what is not dishonest. We can see no reason why, when in a jury box, they should require the help of a judge to tell them what amounts to dishonesty.” 74

The decision had two effects. It freed the mental element of theft from the exclusive focus on “claim of right” as had previously been the case for “fraudulently” under the law of larceny. It also restricted the judicial role in determining whether the accused was dishonest. 75

70 71 72 73 74 75

772

R v Feely [1973] QB 530; R v Ghosh [1982] 3 All ER 689. Criminal Law Consolidation Act 1935 (SA), s 131; Criminal Code 2002 (ACT), s 300; Crimes Act 1900 (NSW), s 4B. See interpretation of Peters v The Queen (1998) 192 CLR 493 in SAJ v The Queen (2012) 225 A Crim R 528 at [53]. See also R v Dillon [2015] QCA 155 at [30]. R v Feely [1973] QB 530. R v Feely [1973] QB 530 at 537-538. An “ordinary meaning” approach had similarly been adopted in Brutus v Cozens (1972) 56 Cr App R 799 where the House of Lords held that the question whether conduct was “insulting” under s 5 of the Public Order Act 1936 (UK) was a question of fact, not law, for the jury. In Chapter 13 at [13.170], we explore how the apparent objectivity and neutrality of the legal standard of “offensiveness” can operate in a highly discretionary and discriminatory fashion. [12.50]

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This ordinary meaning approach to dishonesty received strong criticism from legal academics. 76 The “ordinary meaning” approach leaves the question of dishonesty entirely to the unstructured discretion of a jury. As DW Elliot concluded: “No perverse verdict on the issue of honesty is possible. The jury have complete control of the question. The word does not mean what it ordinarily means. It means what a jury decides it means, which is not the same thing.” 77

The Law Commission for England and Wales also criticised this approach to dishonesty on the ground that the jury is not merely applying a standard set by the law, but constructing it. 78 Moral views will diverge on the questions of honesty in specific contexts (consider, for example, community attitudes towards pilfering stationery from work and fiddling tax), and different juries will come to different conclusions. The Law Commission concluded that this “endemic inconsistency” undermined the idea that “like cases should be treated alike”, an idea that is vital to principle of fairness and the rule of law. 79 This type of objection to the ordinary meaning approach stems from the overriding importance attached to the legal values of certainty, consistency and uniformity, as well as the importance of fundamental principles such as fairness and equality. We have explored the centrality of these liberal values to the criminal law in Chapter 2, [2.80] and [2.200]ff, respectively. For these reasons, the Supreme Court of Victoria in R v Salvo 80 refused to follow Feely. The majority rejected the ordinary meaning approach to dishonesty developed by the English Court of Appeal. Fullagar J defined dishonesty as meaning obtaining property “without any belief that [the accused] has any legal right to deprive the other of it”. 81 Murphy J also rejected the Feely approach. 82 He stated that regarding the question of dishonesty as a factual and moral matter was fraught with danger. Murphy J considered that determining guilt by reference to notions of abstract justice or current standards of honesty or morality would weaken confidence in both the courts and juries. 83 Allowing dishonesty to be determined on purely moral grounds would inevitably lead to different outcomes. Murphy J noted that if moral consensus on dishonesty could not be achieved among judges and academics, then it would be difficult to see how a jury would have

76

77 78 79 80 81 82

83

JC Smith, “Commentary on R v Feely” [1973] Criminal Law Review 192; DW Elliot, “Dishonesty in Theft: A Dispensable Concept” [1982] Criminal Law Review 395; E Griew, “Dishonesty: The Objections to Feely and Ghosh” [1985] Criminal Law Review 341; A Halpin, “The Test for Dishonesty” [1996] Criminal Law Review 283; see also D Lusty, “The Meaning of Dishonesty in Australia: Rejection and Resurrection of the Discredited Ghosh Test” (2012) 36 Criminal Law Journal 282. DW Elliot, “Law and Fact in Theft Act Cases” [1976] Criminal Law Review 707 at 711. Law Comm (Eng and Wales), Legislating the Criminal Code: Fraud and Deception, Consultation Paper No 155 (London: HMSO, 1999) [5.13] Law Comm (Eng and Wales), Legislating the Criminal Code: Fraud and Deception, Consultation Paper No 155 (London: HMSO, 1999) [5.15]. R v Salvo [1980] VR 401. R v Salvo [1980] VR 401 at 432. It is arguable that Murphy J did not go as far as Fullagar J in holding that dishonesty means without claim of legal right for the purpose of obtaining property by deception: CR Williams, Property Offences (3rd ed, Sydney: LBC, 1999) p 135. However, Young CJ, Crockett and Tadgell JJ in the subsequent case of R v Brow [1981] VR 783 interpreted Murphy J’s judgment as agreeing fully with that of Fullagar J. In R v Bonollo [1981] VR 633, McInerney and McGarvie JJ reluctantly joined with Young CJ in holding that dishonesty means without claim of legal right. CR Williams argues that this trilogy of cases has been significantly undermined by the High Court decision in Peters v The Queen (1998) 192 CLR 493: “The Shifting Meaning of Dishonesty” (1999) 23(5) Criminal Law Journal 275. R v Salvo [1980] VR 401 at 430–431. [12.50]

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any greater capacity for uniformity. 84 This liberal perspective, however, ignores the normative function of dishonesty in the modern law of theft, particularly its role in evaluating the moral wrongfulness of the accused’s conduct. Those who argue in support of Feely point out that the jury arguably is well placed to perform this normative evaluation. The jury is not constructing and applying its own standards, but rather standards accepted within the community. 85 Although there is always some room for difference of view on the meaning of dishonesty, in the majority of cases the jury will have no difficulty in deciding whether the act was done honestly or dishonestly. As McInerney J observed in his dissenting judgment in R v Salvo: “If or in so far as this requires the fact-finding tribunal to undertake the task of ascertaining and applying the standard of honesty, accepted in the community, it is complying with the will of Parliament which has imposed on it that very task. Nor is there any great novelty in judges or fact-finding tribunals assuming to act as judges of moral standards: such a task is commonly committed to them by legislation, as, in my opinion, by the provisions of the Theft Act.” 86

The use of “fact-finding tribunal” rather than jury in this passage recognises that dishonesty may be determined by magistrates or judges sitting without a jury. As we shall explore below, much of the discussion concerning the advantages and disadvantages of the “ordinary meaning” approach to dishonesty proceeds on the mistaken assumption that the construction of independent, objective standards is undertaken by a jury. The concerns about the legitimacy of judicial involvement in determining and applying moral standards of “the community” is critically examined at [12.70]. The question of dishonesty was again reviewed in R v Ghosh, 87 where the English Court of Appeal offered further guidance on the meaning of dishonesty. The Court of Appeal, mindful of the academic criticism levelled at the “ordinary meaning” and “objective standard” of dishonesty, redirected the inquiry to the dishonest mental state of the accused. The accused was a surgeon who worked as a locum in a hospital. He claimed payments for certain procedures that were not carried out by himself or which were covered by the National Health Service provisions. He was charged with obtaining money by deception. Obtaining by deception has the same requirement of dishonesty as the basic offence of theft. In accordance with Feely, the jury was directed by the trial judge that dishonesty was a matter for it to decide by applying contemporary standards of honesty and dishonesty. Jurors were told that dishonesty may include “getting something for nothing, sharp practice, manipulating systems and many other matters that may come to your mind”. The accused was convicted and appealed. One of the grounds of appeal was that the jury direction incorrectly adopted an objective rather than a subjective test of dishonesty. The Court of Appeal in Ghosh reviewed the authorities on dishonesty, noting that a distinction had emerged between an objective approach to dishonesty for theft and a subjective approach for conspiracy to defraud; in relation to the latter, proof of dishonesty in the mind of the accused was required. 88 The Court concluded that this difference in approach was unprincipled and that it was simply impossible to reconcile the two conflicting lines of authority. Having established the need for a uniform approach to dishonesty, the Court of Appeal in Ghosh returned to its earlier decision in Feely. While Feely was often treated as having laid down an objective test, Lane LCJ took the view that this decision had simply established the following propositions: 84 85 86 87 88

R v Salvo [1980] VR 401 at 431. This type of inquiry is applied in relation to sexual offences (indecency and obscenity) and public order crimes (offensive and insulting conduct): see Chapter 11, [11.85] and Chapter 13, [13.170] respectively. R v Salvo [1980] VR 401 at 408–409. R v Ghosh [1982] 3 All ER 689. See Scott v Commissioner of Police for the Metropolis [1975] AC 819.

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• “It is for the jury to determine whether the accused acted ’dishonestly’ and not for the judge. • The word ’dishonestly’ can only relate to the accused’s own state of mind. • It is unnecessary and undesirable for judges to define what is meant by ’dishonestly’.” 89

Feely did not establish a purely objective test for dishonesty: the requirement that dishonesty should be determined by reference to the “community standards” did not mean that dishonesty could be found independently of the knowledge or belief of the actual accused. It was not an independent inquiry into what the accused ought to have known, or whether the ordinary reasonable person would have known that the conduct was dishonest. Lane LCJ gave the following example to illustrate the pre-eminent importance of a subjective mental state: “Take for example a man who comes from a country where public transport is free. On his first day here he travels on a bus. He gets off without paying. He never had any intention of paying. His mind is clearly honest; but his conduct, judged objectively by what he has done, is dishonest. It seems to us that, in using the word ’dishonestly’ in the 1968 Act, Parliament cannot have intended to catch dishonest conduct in that sense, that is to say conduct to which no moral obloquy could possibly attach … If we are right that dishonesty is something in the mind of the accused (what Professor Glanville Williams calls ’a special mental state’), then if the mind of the accused is honest, it cannot be deemed dishonest merely because members of the jury would have regarded it as dishonest to embark on that course of conduct.” 90

Lane LCJ distilled the proper approach to dishonesty into a two-pronged test: “First, the jury must decide whether the accused’s conduct was dishonest according to the ’ordinary standards of reasonable and decent people’. If the accused’s conduct is not dishonest by that objective standard, then that is the end of the matter. Secondly, if it is dishonest, then the jury must consider whether the accused realised that his or her conduct was, by those standards, dishonest.” 91

In coming to its conclusion, the Court of Appeal rejected concerns that a subjective approach abandoned fault to the idiosyncratic standards of honesty of the accused. The subjective approach to dishonesty did not lead to a “Robin Hood” defence, as Lane LCJ concluded: “Robin Hood or those ardent anti-vivisectionists who remove animals from vivisection laboratories are acting dishonestly, even though they consider themselves to be morally justified in doing what they do, because they know that ordinary people would consider these actions to be dishonest.” 92

Legal academics have criticised the test as unduly complicated and as placing an onerous burden on the prosecution to prove that the accused believed that ordinary people in the community considered his or her conduct to be dishonest. 93

The two-stage Ghosh test: judicial innovation or academic “borrowing”? [12.55] Until the decision in R v Ghosh, 94 the precise scope of R v Feely was unclear. Some judges directed that the test of dishonesty should be exclusively determined by objective standards, while others persisted in definitions that stressed the importance of a dishonest mental state on the part of the accused. Martin Wasik reviewed the inconsistent judicial 89 90 91 92 93

94

R v Ghosh [1982] 3 All ER 689 at 695. R v Ghosh [1982] 3 All ER 689 at 696. R v Ghosh [1982] 3 All ER 689 at 696. R v Ghosh [1982] 3 All ER 689 at 696. See DW Elliott, “Dishonesty in Theft” [1982] Criminal Law Review 395; G Williams, “The Standard of Honesty” (1983) 133 New Law Journal 636; E Griew, “Dishonesty: Objections to Feely and Ghosh” [1985] Criminal Law Review 341. [1982] 3 All ER 689. [12.55]

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approaches in an article in the Criminal Law Review called “Mens Rea, Motive and the Problem of “Dishonesty” in the Law of Theft”. After reviewing the confusing state of the law, he proposed a “third way” to determine dishonesty, namely, “by reference to two standards: those of the accused and those of society at large”. 95 Wasik’s perceptive analysis and hybrid standard of dishonesty was not mentioned in Ghosh, though it bears an uncanny similarity to the two-stage test for dishonesty subsequently adopted by the English Court of Appeal.

The Model Criminal Code Officers Committee (MCCOC) examined the arguments for and against the Feely/Ghosh test in its report, Chapter 3—Theft, Fraud, Bribery and Related Offences. 96 The principal arguments against the test were that it was an abdication of legislative and judicial responsibility leading to a departure from the standards of precision and certainty that should characterise the criminal law. This approach would also lead to inconsistent verdicts. Although it was commonly claimed that the Feely/Ghosh test “casts the law forth into a sea of moral confusion and uncertainty”, the MCCOC found that “the cases where dishonesty is a genuine issue are few”. 97 The MCCOC rejected the approach to dishonesty applied in Victoria, which had limited the issue of dishonesty to the provisions expressly contained in the legislation. It finally recommended the adoption of the Feely/Ghosh test on the ground that: “it is necessary for the offence of theft to retain a broad concept of dishonesty in order to reflect the essential character of the offences in this chapter as involving moral wrongdoing.” 98

The MCCOC noted that leaving the residual notion of dishonesty for the jury or magistrate to determine by reference to community standards was consistent with the approach taken to negligence. Indeed, the prediction of inconsistent verdicts, and therefore loss of respect in the criminal law and its administration, has not been borne out by a large number of cases decided over the last 30 years in England and Australia. The MCCOC noted that, as a practical matter, dishonesty only arises as the issue infrequently in the very difficult cases. 99 In promoting the adoption of the Feely/Ghosh test, the MCCOC, pointing to the widespread support for it among judges and prosecutors, though ignored significant academic criticism. 100 To entrench the Feely/Ghosh test, the MCCOC recommended the inclusion of the following definition into the Model Criminal Code: Clause 14.2 Dishonesty (1) In this Chapter, “dishonest” means dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people. (2) In a prosecution for an offence, dishonesty is a matter for the trier of fact. 95 96 97 98 99 100

M Wasik, “Mens Rea, Motive and the Problem of Dishonesty” [1979] Criminal Law Review 543 (emphasis added). MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) pp 17–29. MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 19. MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 25. MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 27. For a different view on the “widespread” support for the Ghosh test, see D Lusty, “The Meaning of Dishonesty in Australia: Rejection and Resurrection of the Discredited Ghosh Test” (2012) 36 Criminal Law Journal 282 at 297: “It is apparent that adoption of the MCC/Ghosh definition of dishonesty in [Australian] jurisdictions … occurred in ignorance of the full extent to which it … had been criticized by academics and rejected by courts”. MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 29, noting that the Feely/Ghosh test was applied to determine the meaning of “fraudulently” in larceny offences in New South Wales and South Australia, as well as the meaning of “intent to defraud” and “dishonesty” within the Code jurisdictions.

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As noted at [12.45], the two-stage approach to dishonesty has been adopted in the Commonwealth, Australian Capital Territory, South Australia and New South Wales. For example, s 130.3 of the Criminal Code (Cth) defines dishonesty as follows: For the purposes of this Chapter, dishonest means (a) dishonest according to the standards of ordinary people; and (b) known by the defendant to be dishonest according to the standards of ordinary people.

Criminological perspectives White Collar Dishonesty: Normalising Deviant Cultures of the Market? [12.60] From the discussion above, it is apparent that the trial judge plays a significant

gatekeeper role, guiding jurors on how the relevant standards of honesty of “ordinary people” within the community should be constructed. A question arises whether, for example, in cases of complex commercial fraud, these standards of honesty should be determined by reference to specific values and practices (perceived to be legitimate) within a particular profession or market. This issue has acquired further significance following revelations about the systematic dishonesty that led to the Global Financial Crisis in 2007–08. The question of “which community is relevant to determining standards of honesty?” was recently examined in the English decision of R v Hayes. In this case, the accused, a derivatives trader, was charged with eight counts of conspiracy to defraud having attempted to manipulate foreign currency rates. 101 Although admitting to having engaged in this behaviour, he pleaded not guilty on the basis that he had not acted dishonestly. The defence submitted that not only were many others in the market undertaking the same practices, but his employers were aware of his actions. To pursue this line of defence, the defence sought to put forward evidence relating to the particular market practice and ethos of the banking system at the time, as relevant to the jury’s consideration of the objective limb of the Ghosh test, i.e. that reasonable and honest people in the market in which he operated would not have perceived his actions to be dishonest. In their commentary on the case, Nicholas Dent and Aine Kervick point out that: “There is a clear attraction to defendants for the first limb of the Ghosh direction to encompass evidence about the circumstances in which defendants found themselves. By introducing evidence of market practice into the objective standard, it arguably gives a greater possibility that the jury would conclude that what the defendant was alleged to have done was not dishonest by the standards of reasonable and honest people.” 102

The trial judge however held that this contextual approach would be inconsistent with the Ghosh test and directed the jury in the following terms: “In order for you to be sure of Mr Hayes’ guilt, you need to be sure that he was acting dishonestly. That means you will have two questions to resolve. First, was what Mr Hayes agreed to do with others dishonest by the ordinary standards of reasonable and honest people? I will say that again: Was what Mr Hayes agreed to with others dishonest by the ordinary standards of reasonable and honest people? Not by the standards of the market in which he operated, if different. Not by the standards of his employers or colleagues, if different. Not by the standards of bankers or brokers in that market, if different, even if many, or even all regarded it as

101 102

R v Hayes (Tom Alexander) [2015] EWCA Crim 1944. N Dent and A Kervick, “Ghosh: A Change in Direction?” (2016) Criminal Law Review 553 at 555. [12.60]

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acceptable, nor by the standards of the BBA [British Bankers’ Association] or the FXMMC [Foreign Exchange & Money Markets Committee], but by the standards of reasonable, honest members of society.” 103

Unsurprisingly, the jury found Mr Hayes to be guilty of conspiracy to defraud and he was sentenced to 14 years’ imprisonment. Although upon appeal, this sentence was reduced to 11 years’, the Court of Appeal rejected the defence submission that the jury should determine the objective standard of dishonesty (under the first limb of the Ghosh test) by reference to a “group of traders” 104 within the particular market. The Court held at [32]: “Not only is there no authority for the proposition that objective standards of honesty are to be set by a market, but such a principle would gravely affect the proper conduct of business. The history of the markets have (sic) shown that, from time to time, markets adopt patterns of behaviour which are dishonest by the standards of reasonable people; in such cases, the market has simply abandoned ordinary standards of dishonesty. Each of the members of this court has seen such cases and the damage caused when a market determines its own standards of dishonesty in this way. Therefore to depart from the view that standards of honesty are determined by the standards of ordinary reasonable and honest people is not only unsupported by authority, but would undermine the maintenance of ordinary standards of honesty and integrity that are essential to the conduct of business and markets.”

By precluding the jury from taking into account particular market practice and ethos for “policy reasons”, Dent and Kervick suggest that the trial judge has “usurped the function of the jury to establish what it considers to be the ordinary standards of reasonable and honest people”. 105 The effect of the ruling is that a trial judge may expand upon or modify the Ghosh direction where members of a particular profession or trade are prosecuted for dishonesty offences, leading to inconsistent directions, more appeals and undermining the assumption that “juries are inherently better placed to … [determine] moral issues than the bench.” 106 Rejecting Ghosh: Peters v The Queen and an emerging general dishonesty test in Australia [12.65] The MCCOC claimed widespread support for the Feely/Ghosh test among judges and

prosecutors, although it is clear that many judges had reservations about importing this “ordinary meaning” standard of dishonesty based on community standards. For example, in Victoria, in R v Bonollo, the Supreme Court refused to apply the test in Feely. 107 In McGarvie J’s view, dishonesty involves the offender consciously producing a consequence affecting the interests of the person deprived of the property; and the consequence is one that would be detrimental to those interests in a “significant practical way”. 108 In the ultimate analysis, McGarvie J did not apply his preferred test of dishonesty, holding that he was bound to follow previous authority in Victoria that had confined dishonesty to meaning “without belief in a claim of right”. 109 103 104 105 106 107 108 109

Quoted in R v Hayes (Tom Alexander) [2015] EWCA Crim 1944 at [24]. R v Hayes (Tom Alexander) [2015] EWCA Crim 1944 at [29]. N Dent and A Kervick, “Ghosh: A Change in Direction?” (2016) Criminal Law Review 553 at 555. N Dent and A Kervick, “Ghosh: A Change in Direction?” (2016) Criminal Law Review 553 at 557. MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 29. R v Bonollo [1981] VR 633 at 668. See R v Salvo [1980] VR 401; R v Brow [1981] VR 783; CR Williams, “The Shifting Meaning of Dishonesty” (1999) 23(5) Criminal Law Journal 275.

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The precise effect of McGarvie J’s “preferred” definition of residual dishonesty standard has remained uncertain. There is concern that, expressed as a general test, the definition has the capacity to operate as a “Robin Hood” defence, legitimating appropriation from others who are believed not to be disadvantaged by the loss of the property. It may be argued that the belief that there is no significant practical detriment must relate to the particular property appropriated, not to the general capacity of the owner of the property to withstand its loss. McGarvie J himself was conscious of the need to avoid a “Robin Hood” defence and so proposed dishonesty as a two-stage inquiry: (1)

The jury had to be satisfied that the accused believed that obtaining the property would produce a particular consequence affecting the interests of the person deprived of it; and

(2)

that the particular consequence was one which would be detrimental to those interests in a “significant practical way”. Framed in this way, the test of dishonesty was not determined exclusively by reference to the accused’s internal values. The accused must know that he or she is adversely affecting the interests of the victim. However, the jury must determine whether or not the detriment is “practically significant” in any particular case. In the latter inquiry, McGarvie J observed that the accused’s beliefs are tested against “the standard of whether an ordinary person would regard that consequence as one which would be detrimental in a significant practical way to the interests of the other person”. 110 Although this general test has attracted academic support including from the United Kingdom, 111 the MCCOC rejected McGarvie J’s approach to dishonesty as vague and unduly restrictive because of its narrow focus on activity believed to be detrimental or adverse to the rights of the owner. 112 The main criticism of the Feely/Ghosh test of dishonesty is that it imposes a high threshold of subjective awareness on the accused that their conduct is wrongful by reference to prevailing community norms, which may be difficult for the prosecution to establish beyond reasonable doubt. 113 Support for the Feely/Ghosh test has been weakened following its

110 111

112

113

R v Bonollo [1981] VR 633 at 657. McGarvie J compared this two-stage test to the bifurcated test applied to determine the standard of self-control for the defence of provocation: see Ch 5, [5.45]. Cf DW Elliot, “Dishonesty in Theft: A Dispensable Concept” [1982] Criminal Law Review 395, who considered McGarvie J’s approach as preferable to the test laid down in Feely: at 408. The author proposed that the term “dishonesty” could be removed entirely from the Act and could simply identify the beliefs which were inconsistent with theft. He remodelled McGarvie J’s test of “insignificance” into the definition of appropriation: “No appropriation of property belonging to another which is not detrimental to the interests of the other in a significant practical way shall amount to theft of property”: at 410. Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 25, endorsing the views of the Gibbs Committee, Review of Commonwealth Criminal Law, Interim Report (Canberra: AGPS, November 1991) pp 132–133; The former Chief Justice Murray Gleeson has criticised the Ghosh test in the following terms: “It is not necessary that the accused should have realised that his or her behaviour was dishonest according to [the standards of ordinary, decent people]. Being morally obtuse is not an advantage”: M Gleeson, “Australia’s Contribution to the Common law” (2008) 82 Australian Law Journal 247 at 249. The utility of this model of dishonesty to perform a normative function in property offences is questionable in light of psychological studies revealing the prevalence of routine deceits (among ordinarily honest people) and the complex rationalisations people use, often referenced by the perceived behaviour of others, to justify their misdeeds. For an excellent documentary examining these common rationalisations (aka “the fudge factor”), see (Dis)Honesty: The Truth About Lies (Directed by Yael Melamede, Bond/360, CNBC, Fourth and Twenty8 and SALTY Features, 2015). [12.65]

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rejection in an increasing number of appellate decisions, 114 as well as the significant criticisms levelled at the test by both academics and law reformers. 115 As David Lusty has noted, the retention and entrenchment of this “fundamentally flawed” test into the statutory definitions of dishonesty in the Commonwealth, Australian Capital Territory, South Australia and New South Wales, has been a “retrograde step” for Australia. 116 The Feely/Ghosh test of dishonesty was further circumscribed by Peters v The Queen (1998), a High Court case examining the meaning of dishonesty in the statutory offence of conspiracy to defraud the Commonwealth. 117 The High Court decision exposed the tensions between the competing conceptions of dishonesty outlined above, in relation to offences which did not include an exhaustive definition section. The implications of the Peters v The Queen decision for conspiracy to defraud, and the MCCOC’s proposals for reform of this offence, have been examined in Chapter 8, [8.160]. The accused was a solicitor who had helped a client to launder money through a series of sham mortgage transactions. At trial, directions were given in line with the decision of the English Court of Appeal in R v Ghosh. The jury was instructed that it had to be satisfied that what the accused agreed to do was dishonest by the current standards of ordinary and reasonable people and, if it was, that the accused must have realised it was dishonest by those standards. The question was whether those instructions were correct. The accused argued that the trial judge misdirected the jury as to the test of dishonesty. In this regard, he argued that the jury should have been instructed to apply a subjective test in accordance with the Victorian decision of Salvo and not the test adopted in Ghosh. Specifically, the accused argued that the jury should have been instructed that the prosecution had to prove that the accused had “an absence of belief that he had a legal right to do what he did”. All the members of the High Court dismissed the appeal, but did so on different grounds. McHugh J, with whom Gummow J agreed, held that dishonesty was not relevant to the charge of conspiracy to defraud. His reasoning was examined in Chapter 8, [8.160]. Toohey and Gaudron JJ adopted a different view, concluding that dishonesty was relevant to conspiracy to defraud “at two levels”. First, the agreement must be to use dishonest means; and, secondly, it must be to bring about a situation prejudicing or imperilling existing legal rights or interests of others. The means will be dishonest if the accused asserts as true something which is false and which is known to be false or not believed to be true, or if means are used that the conspirators know they have no right to use or do not believe that they have any right to use. If addressed in this way, a further direction that the accused must have acted dishonestly is “superfluous”. In all cases, other than those where the statutory definition of “dishonestly” requires consideration of the accused’s subjective belief, their Honours rejected the Ghosh approach as the appropriate test. In these rare cases “a direction in accordance with at least the first limb of 114

117

These criticisms are reviewed in D Lusty, “The Meaning of Dishonesty in Australia: Rejection and Resurrection of the Discredited Ghosh Test” (2012) 36 Criminal Law Journal 282; see, generally, Law Com (Eng and Wales), Legislating the Criminal Code: Fraud and Deception Consultation Paper No 155, (London: HMSO, 1999). Alex Steel in “The Appropriate Test for Dishonesty” (2000) 24 Criminal Law Journal 46 argued that the Model Criminal Code should reject the English tests of dishonesty, and should adopt instead the subjective test proposed by McGarvie J in Bonollo [1981] VR 633 at 653; see also A Steel, “Describing Dishonest Means: The Implications of seeing Dishonesty as a Course of Conduct or Mental Element and the Parallels with Indecency” (2010) 31 Adelaide Law Review 7. See, for example, Peters v The Queen (1998) 192 CLR 493; SAJ v The Queen [2012] VSCA 243; R v Dillon [2015] QCA 155. D Lusty, “The Meaning of Dishonesty in Australia: Rejection and Resurrection of the Discredited Ghosh Test” (2012) 36 Criminal Law Journal 282 at 282. Peters v The Queen (1998) 192 CLR 493.

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115 116

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the Ghosh test would be appropriate”, 118 and the trial judge should instruct the jury that “the question whether they are to be characterised as dishonest is to be determined by application of the standards of ordinary reasonable people”. 119 In most cases, the question of whether the accused was dishonest is usually not an issue. In an exceptional case where dishonesty is an issue, the judge should direct the jury on the importance of the proof of intent, knowledge or belief relied upon by the prosecution, and the question of whether that mental state is dishonest should be left to the jury. Kirby J agreed with Toohey and Gaudron JJ. Kirby J came to this conclusion by way of a dissenting opinion that had strongly favoured a subjective standard based on the actual intent of the accused rather than “a fiction based on objective standards”. 120 But since the other judges had intended to dismiss the appeal, he decided to endorse the judgment of Toohey and Gaudron JJ so as to constitute a technical majority view on the proper test of dishonesty. While Peters v The Queen brings some degree of certainty to the meaning of dishonesty for the purpose of conspiracy to defraud, its impact more broadly on property offences remains unclear. There is an emerging trend, supporting the view that the Peters test (in the absence of an express statutory definition) is the preferred default standard for dishonesty. Its status as a general definition applicable to property crimes was affirmed by the High Court in Macleod v The Queen (2003). 121 In this case, the High Court applied the Peters test of dishonesty to s 173 of the Crimes Act 1900 (NSW) (since repealed), an offence that criminalised company directors fraudulently taking or applying company property to their own use. 122 Recognising that trial judges needed further assistance in applying the “ordinary meaning” test of dishonesty laid down by Toohey and Gaudron JJ in Peters, McHugh J set out the following three-stage test: “Thus, in accordance with Peters, the trial judge in a case like the present must: (a) identify the knowledge, belief or intent which is said to render the relevant conduct dishonest; and (b) 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; and (c) direct the jury that, in determining whether the conduct of the accused was dishonest, the standard is that of ordinary, decent people.” 123

Emphasising that each statutory offence must be construed on its own terms, Gleeson CJ, Gummow and Hayne JJ held that, in relation to s 173, there was “no requirement that the appellant must have realised that the acts in question were dishonest by current standards of ordinary, decent people”. 124 This test in Peters/MacLeod was applied to dishonesty in relation to the offence of stealing (since repealed) under the Crimes Act 1900 (ACT) in R v Delly. 125 The application of Peters v The Queen to the definition of dishonesty for other dishonesty offences was again tested in SAJ v The Queen (2012) 269 FLR 390. In this case, the accused was charged with the offence of dishonestly using the position of a director with the intention 118 119 120 121 122 123 124

125

SAJ v The Queen (2012) 36 VR 435 at 443 [53]. Peters v The Queen (1998) 192 CLR 493 at 508. Peters v The Queen (1998) 192 CLR 493 at 552. Macleod v The Queen (2003) 214 CLR 230. Macleod v The Queen (2003) 214 CLR 230. Macleod v The Queen (2003) 214 CLR 230 at 256, McHugh and Callinan JJ concurring. Macleod v The Queen (2003) 214 CLR 230 at 245, affirmed in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 at [173]: “As a matter of ordinary understanding, and as reflected in the criminal law in Australia, a person may have acted dishonestly, judged by the standards of ordinary, decent people, without appreciating that the act in question was dishonest by those standards”. [2003] ACTSC 113 ([77]). As noted above, dishonesty is now exhaustively defined under the Criminal Code (ACT), in terms that mirror the Feely/Ghosh test. [12.65]

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of directly or indirectly gaining an advantage for another, contrary to s 184(2)(a) of the Corporations Act 2001 (Cth). Noting the distinction between the Peters/Macleod test, and the subjective test in Ghosh, Nettle JA observed that Parliament had specifically provided a particular test of dishonesty under the Corporations Act (Cth) and Criminal Code (Cth): for offences governed by s 130.3 of the Criminal Code, dishonesty should be interpreted in accordance with the Ghosh test. 126 For other offences of dishonesty, operating outside s 130.3, the legislature prescribed no particular test. 127 That said, as Nettle JA noted, “[l]ogically, it is difficult to imagine that Parliament intended the Ghosh test to apply the offences to which those sections are directed but not also the offence for which s 184(2) provides”, 128 especially in light of the “preference for the Ghosh test expressed in the Explanatory Memorandum” to the Bill. Nevertheless, in the final analysis Nettle JA did not apply the Ghosh test, concurring with Weinberg JA and Davies AJA, who had held that the trial judge was bound to apply the Peters test to the meaning of dishonesty under s 184(2). In favouring the Peters test of dishonesty, Weinberg JA and Davies AJA referred to judgments of Toohey and Gaudron JJ in the following terms: “their Honours essentially rejected Ghosh as the appropriate test, save in those comparatively rare cases where there was reliance upon some form of moral obloquy as an answer to the charge or charges laid…” 129 “Peters, it seems, holds that if there is a question as to whether an act was dishonest ‘according to ordinary notions’ (a somewhat unusual case) then the jury is to be instructed that that issue is to be determined by application of the standards of ordinary reasonable people. If, however, ‘dishonesty’ is used in a ‘special sense’ (as it often will be), the trial judge must direct the jury as to what is, or is not, meant by that word in the particular context in which it appears.” 130

Weinberg JA and Davies AJA then considered whether dishonesty under s 184(2) of the Corporations Act 2001 (Cth) was intended to be used in a “special sense”, or in accordance with the standards of ordinary reasonable people, noting that in the latter case “the approach taken by Toohey and Gaudron JJ [in Peters] must be applied”. 131 Their Honours examined the legislative history of the provision, as well as the legislative omission of a precise definition of “dishonesty” under s 184(2)(a), to conclude that “[t]here is nothing in the text or statutory context of s 184(2)(a) to indicate that the word ‘dishonestly’ is used in any ‘special sense’”. 132 Practice in the lower courts often significantly lags behind developments in the appellate courts. As David Lusty noted, in Queensland, for example, the discredited Feely/Ghosh test continued to apply to guide the meaning of dishonesty for decades, notwithstanding its repeated rejection by the High Court in Peters/MacLeod. 133 This common practice of offering a Feely/Ghosh direction on dishonesty was finally challenged in R v Dillon; Ex parte 126 127

128 129 130 131 132

133

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SAJ v The Queen (2012) 269 FLR 390 at 436 [3]. See commentary on dishonesty provisions in Corporations Act 2001 (Cth) in J Austin, “When Does Sharp Business Practice Cross the Line to Become Dishonest Conduct” (2010) 29(2) University of Queensland Law Journal 263 at 268. SAJ v The Queen (2012) 269 FLR 390 at 436 [4]. SAJ v The Queen (2012) 269 FLR 390 at 398 [53]. SAJ v The Queen (2012) 269 FLR 390 at 399 [56]. SAJ v The Queen (2012) 269 FLR 390 at 409 [124]. SAJ v The Queen (2012) 269 FLR 390 at 409 at fn 73. The court found further support for this conclusion in the policy reason that “[t]he problem of what to do with ‘Robin Hood’ is unlikely to loom large in the context of s 184(2)(a)”. D Lusty, “The meaning of dishonesty in Australia: Rejection and resurrection of the discredited Ghosh test” (2012) 36 Criminal Law Journal 282 at 293. [12.65]

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Attorney-General (Qld) (2015). 134 In this case, the respondent was a director and shareholder of companies who allegedly had issued false invoices to a finance company. The offence of fraud, contrary to s 408C of the Criminal Code (Qld), required proof that the stipulated physical elements were committed “dishonestly”. This appeal, arising from a referral from the Attorney-General, sought guidance on what the prosecution must prove in relation to dishonesty. The Court of Appeal noted that it had been standard practice in Queensland to direct juries in accordance with Ghosh, rather than the High Court’s approach outlined in Peters/Macleod. 135 Rejecting this approach, the Court of Appeal held that the test laid down in Ghosh was no longer appropriate, and that “dishonestly” in s 408C ought to be construed as requiring the prosecution to prove only that what the accused did was dishonest by the standards of ordinary honest people. McMurdo P noted the distinction drawn by Toohey and Gaudron JJ in Peters between the ordinary use of dishonestly (which attracted the objective test) and special use of the term in legislation (which required attention to what the particular statute required). Unlike the “special use” of dishonest in R v Salvo [1980] VR 401, which followed from the specific statutory inclusion of “dishonesty” and “deceit” in the offence, McMurdo P, with whom the other judges concurred, held that the Code’s use of “dishonestly” did not constitute a “special usage” with the consequence that the ordinary meaning approach should be applied: “As ‘dishonesty’ in s 408C has its ordinary meaning, this Court must follow the meaning given to ‘dishonesty’ by the High Court in Peters and Macleod. Despite the previously settled approach in Queensland since 1987, Queensland Courts must now construe the term ‘dishonestly’ in s 408C as requiring the prosecution to prove only that what the accused person did was dishonest by the standards of ordinary honest people. To secure a conviction, the prosecution need not prove that the accused person must have realized that what he or she was doing was dishonest by those standards.” 136

The effect of these cases is that there are two distinct approaches to dishonesty in Australia: while several legislatures have adopted the Model Criminal Code approach applying the Feely/Ghosh test, other jurisdictions have left the definition of dishonesty “at large” with potential application of the tests outlined in Peters/Macleod v The Queen. As David Lusty concludes: “It is now beyond question that in Australia the applicable test of dishonesty at common law, and in relation to any statutory offence requiring proof of dishonesty, is the Peters test, unless (in the case of a statutory offence) the term is used in a rare ‘special sense’, in which case its meaning will be determined by the wording of the statute. Any contention that the Ghosh test continues to apply in any particular Australian jurisdiction (in the absence of an applicable statutory definition adopting that test) is unsustainable.” 137

Alex Steel has argued that Peters itself is not beyond challenge particularly in relation to the distinction between offences that refer to dishonesty in its “general sense” and those that refer to it in its “special sense”. 138 The present formulation of the test does not assist in distinguishing between these “senses” of dishonesty. Steel suggests that the idea of two 134 135

136 137 138

R v Dillon; Ex parte Attorney-General (Qld) [2015] QCA 155. R v Dillon; Ex parte Attorney-General (Qld) [2015] QCA 155 at [45] citing the following cases: R v Laurie [1987] 2 Qd R 762; R v White (2002) 135 A Crim R 346; R v Ferreri [2006] QCA 443; R v Alwis [2012] QCA 308. R v Dillon; Ex parte Attorney-General (Qld) [2015] QCA 155 at [48]. D Lusty, “The Meaning of Dishonesty in Australia: Rejection and Resurrection of the Discredited Ghosh Test” (2012) 36 Criminal Law Journal 282 at 292. A Steel, “The Appropriate Test for Dishonesty” (2000) 24 Criminal Law Journal 46. [12.65]

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concepts of dishonesty reflects the different functions it performs for different offences. Drawing on ideas developed by the Law Commission for England and Wales, 139 Steel drew the following critical distinction between negative and positive dishonesty: “Negative dishonesty For offences involving conduct that is inherently objectionable, such as obtaining property by deception or without consent, dishonesty plays a less significant role. The deception or trespass to the property provides the wrongfulness necessary for criminal liability. In these cases, dishonesty is not a special requirement. It is a negative form of dishonesty since the accused is left to raise an honest belief or intention. Positive dishonesty For offences involving conduct that is inherently unobjectionable, such as conspiracy to defraud, dishonesty will be crucial. In relation to conspiracy to defraud, an agreement to prejudice the rights and interests of others was not intrinsically wrongful. 140 Since culpability cannot be inferred from the wrongfulness of the conduct, further direction on the dishonesty of the accused’s subjective mental state is required.”

The negative definition corresponds to dishonesty in its “general sense”, and the positive definition corresponds to dishonesty in its “special sense”.

Procedural perspectives Dishonesty Tests and Summary (In)Justice [12.70] Tests based on the ordinary meaning of dishonesty and on community standards

of honesty proceed on the assumption that these issues will be determined by a jury; that is, the relevant definitions and standards will be constructed by reference to the values and experiences of 12 jurors, acting as representatives of the wider community. This assumption fails to recognise that the task of judging conduct as dishonest is more likely to be performed by a magistrate or a judge sitting without a jury. R v Salvo [1980] VR 401 is one of the rare cases noting that the moral evaluation of the accused’s behaviour is more likely to be undertaken by a magistrate than by a jury of one’s “peers”. As Fullagar J observed at [430]–[431]: “It is simply not true to say that the statute in either country leaves it only to juries. Magistrates have to deal with prosecutions before them under the section and have to decide these questions of morals, and a very large number of cases come before them for decision. The reported cases in England since 1970 show the almost insoluble problems with which this legislation, as interpreted in England, has forced them to wrestle. In my opinion this is calculated to bring the courts into contempt by reason of different decisions being given on similar facts, because this is a field where quite demonstrably ‘all do not have the same intuitions’.”

Penny Darbyshire pointed out that much legal discussion of dishonesty is “unreal”, being modelled on the assumption that this element of the offence will be determined by a jury. In reality, as Darbyshire notes, the majority of theft cases are decided by magistrates, not juries:

139 140

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Law Com (Eng and Wales), Consultation Paper No 155, Legislating the Criminal Code: Fraud and Deception (London: HMSO, 1999) [3.15]. A Steel, “The Appropriate Test for Dishonesty” (2000) 24 Criminal Law Journal 46 at 58: “It is the stuff of competition and commerce. In such a crime dishonesty is a positive element and ‘does all the work’”. [12.70]

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“The overwhelming bulk of trials for offences of dishonesty are summary but because the precedents Feely and Ghosh lay down tests designed for jury trial, all academic discussion follows suit.” 141

While Darbyshire’s article highlights the invisibility of magistrates within legal discourse, the particular implications for dishonesty were not further explored. Would simply including references to summary jurisdiction in academic commentary and judicial decisions dealing with dishonesty address the “neglect of the magistracy”? Clearly, what needs to be examined is how (if at all) the task of determining dishonesty differs for a magistrate or judge sitting without a jury. An obvious difference is the discomfort at the prospect of judicial officers exchanging their legal mantle for a moral one, and the increased scope for public criticism of individual cases based on the individual moral values of the judges being applied. The role of “objective” community standards in determining the contours of criminal law is discussed in Chapter 1, [1.205]ff. The Law Commission for England and Wales raised similar concerns in its consultation paper Legislating the Criminal Code: Fraud and Deception. 142 The Commission doubted whether there existed a unified conception of honesty based on the ordinary standards of reasonable and honest people. Modern society is heterodox and pluralistic, and there may be difficulties in identifying a consensus on whether the conduct is dishonest. As Alex Steel has pointed out, this consensus will be absent in cases of white collar commercial fraud, because of the complexity and lack of experience of the transactions involved. 143 The constitution of the jury as randomly selected (if not representative) members of the community seems to provide some protective shield for this moralising function. Unlike magistrates, the jury is not required to reveal the reasoning supporting its verdict. However, it is important not to overemphasise the moral autonomy of the jury. While the Feely/Ghosh test grants the jury a wide latitude in determining dishonesty, it may be counteracted by judicial efforts to guide the jury to the “right conclusion” through careful direction on the facts and summing up. This shepherding may, in fact, explain why the Feely/Ghosh test has not led to wildly inconsistent verdicts in practice. Although much of the criticism of the Feely/Ghosh test is based on a concern over jury usurpation of legislative and judicial functions, available research reviewed in Chapter 2 at [2.190], suggests that the autonomy of jury deliberation (even in relation to fact-finding) is always exercised within the parameters fixed by the trial judge. We have explored in Chapter 1 at [1.30] how “benchbooks” and other professional manuals constitute a significant, though largely neglected, legal source that can promote uniformity in the administration of the law. The model of dishonesty emerging in the common law of Australia post-Peters transcends the conventional dichotomy drawn between subjective and objective fault in the criminal law. The “special use” definition of dishonesty is reserved for cases where a subjective inquiry into fault is most needed, namely, those cases where the conduct of the accused is not objectively or inherently wrongful. In cases that do manifest wrongfulness, objectively speaking, a “general test” based on the standards of ordinary decent people will suffice, with the additional 141

142 143

P Darbyshire, “An Essay on the Importance and Neglect of the Magistracy” [1997] Criminal Law Review 627 at 636. As explored in Chapter 1 [1.130], this observation supports Doreen McBarnet’s thesis that there are two tiers of criminal justice and that an “ideology of triviality” surrounds the lower tier of summary justice: Conviction: Law, The State and the Construction of Justice (London: MacMillan Press, 1981) Ch 7. London: HMSO, 1999, [5.17] A Steel, “The Appropriate Test for Dishonesty” (2000) 24 Criminal Law Journal 46, discussing the views of E Griew, “Dishonesty: Objections to Feely and Ghosh” [1985] Criminal Law Review 341. [12.70]

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safeguard that the accused may raise their positive honest belief in claim of right as a basis for exculpation. The combined effect of these tests will ensure the criminal law does not impose punishment on morally blameless conduct. For further discussion of the fundamental importance of this principle, see Chapter 3 [3.230]. Although Ghosh no longer applies as a matter of common law to guide the meaning of dishonesty in Australia, statutory formulations based on the Model Criminal Code continue to apply the two-step formulation of dishonesty, which requires, consistent with Ghosh, proof of the following: (1) the conduct is dishonest according to the standards of ordinary people, and (2) that the defendant knows the conduct is dishonest according to the standards to ordinary people. For example, this model was adopted as the general definition of dishonesty in New South Wales in 2009. Section 4B(1) provides that ″dishonest″, for the purposes of the offences in the Crimes Act 1900 (NSW), means “dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people”. Section 4B(2) provides that “dishonesty is a matter for the trier of fact”. This statutory definition in s 4B would appear to displace the extended “special sense” of dishonesty test developed in Peters v The Queen. However, it is interesting to note that the second reading speech introducing the 2009 amendments specifically mentioned the continuing usefulness of Peters in assisting juries to determine the meaning of dishonesty. 144 Assuming that the definition is not exhaustive in s 4B, the precise relationship between the common law test of dishonesty developed in Peters and s 4B remains unresolved.

Minor theft and summary justice [12.75] The penalties provisions for minor theft involving property below a prescribed value have been lowered in some jurisdictions to allow the matter to be tried summarily before a magistrate, for example, Criminal Code (ACT), s 321. In other jurisdictions, theft has been classified as an offence “triable either way” and so the accused may elect to be tried by a superior court judge sitting without a jury. The summary/indictable/hybrid distinction has been examined in Chapter 2, [2.105]. There are considerable pressures on police and prosecutors to underestimate the value of the property stolen, or to divide a single instance of theft into several counts of minor thefts of lower value in order to bring the matter within the summary jurisdiction. This downgrading of the accused’s conduct may follow charge negotiation between the Crown and the defence: the defence benefits from lesser penalties in the summary jurisdiction, while the prosecution can avoid the costs and delays associated with trial on indictment. The role of charge and plea-bargaining is discussed in Chapter 2 at [2.120].

Philosophical perspectives Dishonesty and the Relevance of Motive [12.80] In a classic article, “Mens Rea, Motive, and the Problem of ’Dishonesty’ in the

Law of Theft”, Martin Wasik argued that, notwithstanding the repeated articulation of the principle that motive is irrelevant in the criminal law, “motive really is admitted as

144

New South Wales, Parliamentary Debates Legislative Council, 12 November 2009, 19508 (John Hatzistergos Attorney General, Minister for Industrial Relations, Vice President of the Executive Council).

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relevant to responsibility in a significant, and increasing, number of cases”. 145 Wasik used theft as a case study to demonstrate how the concept of dishonesty allowed the accused to explain why the alleged offence occurred, not just how it occurred. He concluded that the difficulties in relation to dishonesty reflected the dilemma which is introduced by allowing an accused to call upon motive in support of a claim that he or she should be excused. Dishonesty provided the opportunity for the accused to offer explanations (and therefore excuses) for conduct that is “inherently disrespectful to the underlying assumptions of the criminal law”, in particular, respect for private property and ownership rights. In most cases, the jury will have no difficulties balancing the beliefs of the accused concerning the honesty of his or her standards, and the independent standards of the community. In extreme cases, however, Wasik suggested that the judge, as a matter of law, should have the power to declare whether certain explanations for conduct phrased in terms of “honest” motives are capable of founding a defence in law. In practice, judges tend to direct juries that motive is irrelevant to the issue of whether or not the defendant was dishonest, though motive may be relevant to sentencing. In the recent Queensland case of R v Stevens (2014) the Court of Appeal clarified the difference between motive and intent for the purpose of stealing under s 39 of the Criminal Code (Qld). 146 The prosecution arose from the appellant’s dealings with a stolen bobcat. The appellant had purchased the bobcat through an intermediary, but soon after discovered that it was on the “stolen list” when he tried to obtain finance. He returned the bobcat to the intermediary, demanding and receiving the return of his money, but also knowing that the intermediary had no interest in returning it to its owner. He was convicted of stealing by fraudulent conversion and appealed against his conviction. Muir JA, delivering the judgment of the Court of Appeal, held: “There is no doubt, as the appellant’s counsel contends, that the appellant was motivated in his actions by the desire to get his money back. It does not follow, however, that it was not open for the jury to conclude beyond reasonable doubt that the appellant had an intention to permanently deprive the owner of its right in the bobcat. ‘Intention’ is not to be confused with ‘motive’ or ‘desire’.” 147

As explored in Chapter 3, [3.180], the general rule of the criminal law is that motive is irrelevant to questions of fault, though may legitimately be considered relevant to sentencing. Critical scholars have observed that the exclusionary approach to motive in the criminal law seeks to suppress the socio-political context of the offending, but is rarely completely successful. While philosophers of the criminal law struggle to maintain this strict conceptual division between fault and motive, the law in relation to defences such as duress and provocation does recognise that motive (the reason for behaviour) is relevant to legal as well as moral blame. 148 Such insights suggest that a re-evaluation of the exclusionary approach to motive is required. Other theorists have sought to reconcile this apparent contradiction, arguing that the true principle is that motive, while ordinarily irrelevant to fault determination, may be morally and legally significant in some cases. 149 145 146 147 148 149

M Wasik, “Mens Rea, Motive, and the Problem of ’Dishonesty’ in the Law of Theft” [1979] Criminal Law Review 543. R v Stevens [2014] QCA 286, especially [12]–[18]. R v Stevens [2014] QCA 286 at [12]. A Norrie, Crime, Reason and History (2nd ed, London: Butt, 2001) Ch 3. A Duff, “Principle and Contradiction in the Criminal Law: Motives and Criminal Liability” in A Duff (ed), Philosophy and the Criminal Law: Principle and Critique (Cambridge: Cambridge University Press, 1998) pp 170–173. [12.80]

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Appropriation [12.85] Appropriation replaced the common law concept of asportation used in larceny,

namely, the taking and carrying away of property without the consent of the owner. The Theft Act model adopted in the United Kingdom and Victoria defines “appropriation” as “any assumption by a person of the rights of an owner”. 150 Section 209(1) of the Criminal Code (NT), basically adopting the Theft Act model, defines “appropriates” as meaning “assumes the rights of the owner of the property”. Reflecting the Model Criminal Code, the Commonwealth and the Australian Capital Territory have defined appropriation more restrictively, adding that the assumption of the rights of an owner to ownership, possession or control of property must occur without the consent of the person to whom it belongs. 151 In South Australia, the offence of theft uses the wider concept of dealing with property without the owner’s consent. 152 The difficulties experienced in larceny in cases where the initial possession occurred with consent or without fraudulent intent are expressly addressed in these sections, which define “appropriation” as including cases where the accused “has come by property (innocently or not) without committing theft, any later such assumption of rights without consent by keeping or dealing with it as owner”. 153 In South Australia, the theft offence expresses the same idea in simpler language: “a person may commit theft of property that has come lawfully into his or her possession”. 154 While this extended definition of appropriation overcomes the concurrence problems of larceny caused by the delayed formation of an intent to steal, Brent Fisse raised the concern that the provision carries the danger of “over-criminalisation”. 155 As we shall see below, the legislature has imposed limits on the concept by creating exemptions in favour of bona fide purchasers for value. Also, some courts have sought to define the concept of appropriation in a more restrictive way, so that it applies only to conduct which is inherently and unambiguously wrongful. Appropriation: assumption of the rights of an owner [12.90] The concept of appropriation is much broader than the requirement of “taking and

carrying away” in larceny. It extends to the assumption of rights in relation to the property that could be exercised by its owner. In addition to the “ordinary” case of theft based on taking property belonging to another, many other forms of property interference could fall within this definition of appropriation, including the: • use of property; • destruction or damage of property; • selling or pledging of property; • lending or borrowing of property; • retention of property or refusing to return property. 156

In jurisdictions that apply the concept of “dealing” rather than appropriation, such as South Australia, the physical element is defined as follows: 150 151 152 153 154 155 156

Theft Act 1968 (UK), s 3(1); Crimes Act 1958 (Vic), s 73(4). Criminal Code (Cth), s 131.3(1); Criminal Code (ACT), s 304(1). Criminal Law Consolidation Act 1935 (SA), s 134. Criminal Code (Cth), s 131.3(1); Criminal Code (ACT), s 304(2); Crimes Act 1958 (Vic), s 73(4). Criminal Law Consolidation Act 1935 (SA), s 134(3)(a). B Fisse, Howard’s Criminal Law (5th ed, Sydney: Law Book Company, 1990) p 205. This list of examples was provided in L Waller and CR Williams, Criminal Law—Text and Cases (10th ed, Sydney: Butterworths, 2005) pp 378–379.

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“deal”—a person deals with property if the person— (a) takes, obtains or receives the property; or (b) retains the property; or (c) converts or disposes of the property; or (d) deals with the property in any other way

The South Australian offence is similar to the Theft Act model since dealing must be “without the owner’s consent”. 157 The owner of property is defined broadly as “a person who is entitled to possession or control of the property” and “a person wholly entitled to the property both at law and in equity”. 158 The concept of “property belonging to another” is discussed at [12.150]. The question has arisen in the United Kingdom and Victoria as to whether an appropriation involves the assumption of any of the rights of an owner. As noted above, the legislation simply states that “any assumption by a person of the rights of an owner amounts to an appropriation”. As a preliminary matter, it should be noted that this provision does not require interference with rights that are currently being exercised by the owner. Rather, the rights that are interfered with must be rights exercisable by an owner. This formulation reflects the fact that the concept of appropriation relates to “property belonging to another person”. The breadth of the concept of appropriation is apparent from the following examples offered by the Model Criminal Code Officers Committee (MCCOC): pointing to another person’s car and offering it for sale, or simply sitting on a car bonnet, would amount to appropriation because these are some of the rights of an owner. 159 The Law Commission for England and Wales also noted that a person who selects a newspaper to buy at a newsagent has committed all the elements of theft except for dishonesty. 160 There is no requirement to establish ownership or lawful possession, thus a person may appropriate their own property or even appropriate property from a thief who lacks legal title to that property. Interference with “owner-like” rights, rather than the owner’s rights, is the essence of appropriation. The potential breadth of appropriation is apparent in Stein v Henshall (1976). 161 In this case, the accused was found by police officers near a stolen car in a street in Kensington, Victoria. He was charged with the theft of the car. The defence argued that he had not stolen the car and that someone else had done so. The accused, knowing that the car was stolen, had used the car on at least two occasions. The defence stated that the accused had only used the car on a few occasions and therefore had not interfered with all the rights of the owner. It was argued that the original thief had not given up all of his possessory rights in the car. Lush J held that whether the original thief had given up his possessory rights was irrelevant: “The question is—and is only—whether the defendant acted in relation to the car in a manner in which the owner would have the right to act”. 162 On these facts, this was clearly satisfied since the accused had used the car for his own purposes and “use” was one of the rights of the owner of the car. As we shall explore at [12.100], the House of Lords took a similar approach to appropriation in R v Morris. The breadth of the concept is also apparent in Wilson v Woodrow (1987), in which the Supreme Court of Victoria held that sitting on the backseat of 157 158 159 160 161 162

Criminal Law Consolidation Act 1935 (SA), s 134(1)(b). Criminal Law Consolidation Act 1935 (SA), s 84. MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) pp 35, 43. Law Commission of England and Wales, Legislating the Criminal Code—Fraud and Deception, Consultation Paper No 155 (London: HMSO, 1999) [3.17]. Stein v Henshall [1976] VR 612. Stein v Henshall [1976] VR 612 at 615. [12.90]

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a stolen car could be an appropriation. 163 The court referred with approval to Stein v Henshall and held that being a passenger in a motor vehicle was one of the rights of ownership. Whether or not there was an intention to permanently deprive in both the above cases is a more difficult question.

Joyriding: a special case of motor vehicle theft [12.95] In most jurisdictions, unlawful use of a motor vehicle is a summary offence carrying a lesser penalty than larceny or theft. In New South Wales, stealing a motor vehicle is an aggravated offence under s 154F, Crimes Act 1900 (NSW) carrying a maximum penalty of 10 years’ imprisonment, twice the penalty for simple larceny. In other jurisdictions, specific “joyriding” offences have been enacted to deal with the unlawful use of motor vehicles or other conveyances to catch those individuals who do not intend permanently to deprive the owner of the property. 164 To overcome the difficulty of proving this intention in the case of “joyriding”, the legislature in Victoria has enacted a special deeming provision. Section 73(14) of the Crimes Act 1958 (Vic) states that in any proceedings for stealing (or attempted stealing) of a motor vehicle or an aircraft, proof that the person charged took or, in any manner, used the motor vehicle or aircraft without the consent of the owner or person in lawful possession is conclusive evidence that the person charged intended to permanently deprive the owner of it. The empirical evidence suggests that the majority of car theft is committed by “joyriders” who have no intention of permanently depriving owners of the property. In 2012–13, the national recovery rate for stolen vehicles was 70%. 165

Appropriation: adverse interference with the rights of owners [12.100] Does appropriation require the assumption of rights of an owner to occur “without

consent”? The MCCOC reviewed this issue, concluding that the concept of “without consent” was vital for distinguishing between theft and fraud, and this has been implemented by legislation in the Commonwealth, Australian Capital Territory and South Australia. 166 This requirement of “adverse interference” is consistent with the requirement of the law of larceny that the taking and carrying away of property must be without the consent of the owner. In the absence of such statutory clarification, there was considerable uncertainty as to relevance of lack of consent to appropriation. The uncertainty stemmed from an irreconcilable conflict between dicta in the two House of Lords decisions. In Lawrence, the accused was a taxi driver. Occhi was an Italian student who spoke very little English and was on his first visit to England. At Victoria Station, Occhi went to a taxi driver (Lawrence) and showed him an address, indicating he wanted to go that address. Lawrence said that the place was very far and would be very expensive. Occhi offered Lawrence £1, but Lawrence said that was not sufficient. He took the £1 and a further £1 and £5 note from Occhi’s open wallet, which Occhi held out to Lawrence. The lawful fare was 10/6d. Lawrence was charged with theft of the £6 he had taken in excess of the lawful fare. On appeal to the House of Lords it was argued that there was no appropriation of the money since Occhi had consented to the money being taken. Dismissing the appeal, Viscount Lord Dilhorne, delivering the judgment of the House of 163 164

166

Wilson v Woodrow (1987) 26 A Crim R 387. Criminal Code (ACT), s 318; Crimes Act 1900 (NSW), s 154A; Criminal Code (NT), s 218; Criminal Code (Qld), s 408A; Criminal Code (WA), s 371A. See Australian Crime: Facts and Figures 2014 (Canberra: Australian Institute of Criminology, 2016), http://www.aic.gov.au/media_library/publications/facts/2014/facts_and_figures_2014.pdf (cited 09 November 2016). See MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995).

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Lords, held that the Theft Act should be construed as a new code, and that “without consent” should not be implied into the definition of the offence. 167 The question of “consent” in relation to appropriation was revisited in Morris. The case involved two appeals heard together. In the first case, the accused, Burnside, had been charged with theft of a joint of pork. He had switched the price labels and placed a lower price on a larger joint. He was caught at the checkout before he paid for it. In the second case, Morris had taken some goods from the shelves of a supermarket and replaced the price labels with lower prices. He paid the lower prices at the checkout and was charged with both theft and obtaining property by deception. Both were convicted and appealed. Counsel for the accused argued that there could not have been an appropriation until they had passed the checkout. On this view, Burnside had not committed theft, and Morris could only be guilty of obtaining property by deception. Counsel further argued that if swapping labels and removing the goods from the shelves was an appropriation, then Morris would effectively be obtaining by deception goods that he had already stolen. Lord Roskill, giving the judgment of the House of Lords, defined appropriation as an adverse interference with or usurpation of any of the rights of an owner. The House of Lords affirmed that an appropriation did not require an assumption of all the rights of an owner; any interference with any rights of the owner was sufficient. This point has been explored above. On these facts, the swapping of price labels was clearly an interference with the right of an owner to sell goods at the correct price. The House of Lords also affirmed that the assumption of rights had to be adverse to the rights of an owner. As Lord Roskill concluded, “the concept of appropriation in my view involves not an act expressly or impliedly authorised by the owner but an act by way of adverse interference with or usurpation of those rights”. He rejected the Crown’s submission that the Theft Act 1968 (UK) intended to treat as an appropriation the act of an honest shopper who removes goods from the shelf and places them in a trolley with the implied authority of the supermarket. In the instant case, the House of Lords was of the view that the actions of both accused constituted an appropriation. The combination of removing the items from the shelf and switching the prices was evidence of appropriation. Mere removal from the shelves would not be an appropriation, as this is something that the owner impliedly authorised. Lord Roskill also suggested that it would not be an appropriation to merely switch price labels—for example, as part of a practical joke—but not remove the items from the shelves. 168 It is difficult to draw a principled distinction between unauthorised touching and unauthorised label switching. Brent Fisse has suggested that label switching alone, as a form of unauthorised touching, does amount to an adverse interference, concluding that the concept of appropriation in Morris seemed “erratically elastic”. 169 The better view is that the prankster has technically “appropriated” the property, though may not be guilty of theft because of doubts about his or her dishonesty or intention to permanently deprive the owner of that property. We will examine the overlap of appropriation with obtaining property by deception at [12.270]. In South Australia, to clarify that price tag switching is criminal though not necessarily theft, a special offence of “dishonest interference with merchandise” was created by s 143 of the Criminal Law Consolidation Act 1935 (SA), which provides:

167 168 169

Lawrence v Metropolitan Police Commissioner [1972] AC 626 at 631–632. R v Morris [1984] AC 320 at 332. B Fisse, Howard’s Criminal Law (5th ed, Sydney: Law Book Company, 1990) p 288. [12.100]

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A person who dishonestly interferes with merchandise, or a label attached to merchandise, so that the person or someone else can get the merchandise at a reduced price is guilty of an offence. 1 Maximum penalty: Imprisonment for 2 years. Note— 1 Compare R v Morris [1984] AC 320.

Although Lawrence was not technically overruled, the decision in Morris was considered the correct approach to appropriation in England until the matter was again revisited by the House of Lords in R v Gomez. 170 By contrast, the Victorian courts, in the meantime, had adopted a middle course. Rather than simply ignoring Lawrence, the Supreme Court of Victoria in R v Roffel attempted to reconcile the two decisions. 171 Both Young CJ and Crockett J doubted whether the decisions were in conflict. 172 The starting point of the analysis of appropriation for both judges was the definition applied in Morris. Crockett J pointed out that absence of consent will often be relevant to a determination of whether there had been an adverse interference with or usurpation of some right of the owner. However, in some cases, this right does not appear to be usurped because the appropriation is “seemingly consensual, due to deception”. 173 In these cases of fraud or deception, the apparent consent of the victim from whom the property is obtained is vitiated. 174 Lawrence may be treated as a “special case” where fraud vitiates consent, leaving undisturbed the requirement in Morris that an appropriation is ordinarily an adverse (non-consensual) interference with or usurpation of the rights of an owner. The conflict between these authorities has since been authoritatively resolved by the House of Lords in R v Gomez. 175 The accused was an assistant manager at an electrical goods store. A friend of his asked him to supply some goods which would be paid for with stolen building society cheques. The accused agreed and prepared the goods for supply, and then sought the manager’s authorisation. The manager asked whether the cheques were good and the accused assured him they were. Authorisation was given and the transaction made. The cheques were later found to be stolen, and the accused and his friend were charged with theft and convicted. On appeal, the accused argued that there had not been any appropriation because the manager had authorised the transactions. The Court of Appeal agreed and quashed the conviction, but allowed the Crown to appeal the following point of law to the House of Lords: when theft is alleged and that which is alleged to be stolen passes to the accused with the consent of the owner, but that has been obtained by a false representation: (1) has an appropriation within the meaning of s 1 of the Theft Act taken place; or (2) must such a passing of property necessarily involve an element of adverse interference with or usurpation of some right of the owner?

R v Gomez provided an opportunity to decide whether Lawrence or Morris was the correct approach to appropriation. Unlike the Supreme Court of Victoria in Roffel, 176 the House of Lords held that Lawrence and Morris were irreconcilable, although the outcomes in each case were correct on the facts. The Lawrence position was that consent to the taking was not relevant to appropriation and was only relevant to dishonesty. The Morris position was that consent was relevant to appropriation, as well as dishonesty. Lord Keith of Kinkel, delivering the judgment of the court, held that Lawrence was the better approach, and that Morris was 170 171 172 173 174 175 176

R v Gomez [1993] AC 442. R v Roffel [1985] VR 511. R v Roffel [1985] VR 511 at 513 and 521, respectively. R v Gomez [1993] AC 442 at 521. See, for example, R v Baruday [1984] VR 685. R v Gomez [1993] AC 442. Roffel v The Queen [1985] VR 511.

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wrong and should no longer be followed. He referred to Lord Roskill’s example of the prankster who switched labels without removing the items and said that that was sufficient to be an appropriation because it was an assumption of the owner’s rights. As already noted, there would be no theft because there would be neither the element of dishonesty nor the intent to permanently deprive. Gomez may be criticised on the ground that it extends appropriation to cover any dealing (not merely unwanted interference) with property belonging to another. According to Morris, theft always required a trespass to property. This requirement differentiated theft from cases of obtaining property by deception in which the property was obtained with consent. Although the two are formally separate offences in the United Kingdom and Victoria, Gomez blurs the conceptual and practical distinction between theft and obtaining property by deception. Although this is a substantial criticism of the decision, Bob Williams concluded that the approach to appropriation in Gomez is correct and should be followed in Australia: “There is no good reason why an accused who has dishonestly obtained the property of another by deception should not be regarded as having appropriated that property. Any consent implicit in such a transaction is vitiated by fraud and is not true consent.” 177

Rationalising the decision in Gomez in terms of vitiation of consent begs further questions about the nature of the fraud that vitiates consent. As we explored in Chapter 10 at [10.140] and Chapter 11 at [11.115], the type of frauds vitiating consent for the purpose of assault and sexual offences has continued to preoccupy judges, legislatures and academics. To clarify these rules relating to consent and, particularly, that which is procured through fraud, s 132 of the Criminal Law Consolidation Act 1935 (SA) provides: Section 132 Consent of owner (1) A reference to the consent of the owner of property extends to— (a) the implied consent of the owner (or owners); or (b) the actual or implied consent of a person who has actual or implied authority to consent on behalf of the owner (or owners). (2) A person is taken to have the implied consent of another if the person honestly believes, from the words or conduct of the other, that he or she has the other’s consent. (3) However, a person who knows that another’s consent was obtained by dishonest deception is taken to act without consent.

Whether the approach to appropriation applied in Gomez will be followed by Australian courts remains open. While some overlap in property offences will be inevitable and tolerable, Gomez actually obliterates the distinction between theft and other forms of fraud. As Bob Williams himself conceded, all cases of obtaining property by deception, with the exception of land, may now be prosecuted as theft. 178 The extended definition of appropriation in Gomez leaves open the possibility of multiple charges arising out of a single transaction. The discretion of the police and prosecutor will be critical to prevent the overuse of charges in such cases. One advantage of Gomez is that it overcomes the obstacle to convictions for theft in cases where a company director has authorised the company to give him or her company assets. Under the earlier Morris approach, there is no appropriation where the company, as a separate legal entity, has authorised the (dishonest) transfer of property to the director. 179 Under the Gomez approach, the consent of the owner is irrelevant, and the only issue would be whether the assumption of the rights of an owner was dishonest. This had been the 177 178 179

CR Williams, Property Offences (3rd ed, Sydney: LBC, 1999) p 338. CR Williams, Property Offences (3rd ed, Sydney: LBC, 1999) p 188. R v Roffel [1985] VR 511 at 515 per Young CJ. [12.100]

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approach of the dissenting judge, Brooking J, who preferred Lawrence over Morris, and would have dismissed the appeal against conviction. 180 The High Court in Macleod v The Queen considered this type of argument in relation to a charge under s 173 of the Crimes Act 1900 (NSW) (since repealed), an offence dealing with company directors who fraudulently take or apply company property for their own use. 181 In this case, the accused was the sole director and shareholder of a film production company that applied funds provided by investors for his own benefit. Of the more than $6 million invested, nearly $2.2 million was applied to the accused’s personal use. The defence argued that the company had “consented” to the use of funds. Gleeson CJ, Gummow and Hayne JJ rejected this argument, noting that the “self-interested ‘consent’ of the shareholder, given in furtherance of a crime committed against the company, cannot be said to represent the consent of the company”. 182 Further, as a matter of proper construction of s 173, the court held unanimously that the prosecution did not need to prove that the dealing in company property had to be without consent. 183 Gleeson CJ, Gummow and Hayne JJ left open the question of the correctness of Roffel, noting that the Victorian decision did not assist the interpretation of the particular statutory provision under consideration. 184 Callinan J took a more robust approach, arguing that Roffel should be overruled. 185 He pointed to the fact that the decision had been trenchantly criticised by academics and its reasoning disapproved by the House of Lords in Gomez. Moreover, the decision had failed to consider the significant legal duties now placed on directors to act with honesty, care and due diligence. In his view, when considering whether a company “consented” to such transactions, it is vital to distinguish between the legal personality of the director (even where he or she is the sole shareholder and directing will of the entity) and that of the company. The defence argument that the company (by the director) could simply validate any transaction for the personal use of the director had to be rejected: It ignores the vital distinction which the law draws between separate legal personalities. It is a distinction which s 173 itself makes. The funds or property of a company can only be used or applied as the result of some act or conduct on the part of a natural person. The fact that the natural person so acting is in effective control of the company does not mean that he is the company, or that no distinction may be drawn between what he does and what the company may and should lawfully do. 186

The advantage of a single offence covering both theft and obtaining property by deception is that the prosecution is relieved of the burden of choosing between the charges at a time when the factual circumstances surrounding the alleged offence may not be revealed. Another way of overcoming this charging dilemma is the enactment of a provision allowing for an alternate verdict of obtaining property by deception in cases of theft. Provisions governing an 180

181 182 183 184 185 186

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Careful attention must be paid to the corporate structure and its legal authority to transfer property to directors. Roffel was distinguished in Clarkson and Lyon (1986) 24 A Crim R 54 on the basis that a building society was prohibited by legislation from entering into the particular transaction with the accused (the chairman of the building society) and therefore his assumption of rights had been without consent. Macleod v The Queen (2003) 214 CLR 230. Macleod v The Queen (2003) 214 CLR 230. Macleod v The Queen (2003) 214 CLR 230 at 246 per Gleeson CJ, Gummow and Hayne JJ, at 255 per McHugh J and at 264 per Callinan J. Macleod v The Queen (2003) 214 CLR 230 at 236. Macleod v The Queen (2003) 214 CLR 230 at 263–264. Macleod v The Queen (2003) 214 CLR 230 at 264 (emphasis in original). McHugh J took at similar view at 254. [12.100]

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alternative verdict have been included in the Model Criminal Code. 187 The expanded approach to appropriation also obviates the need for the development of complex rules governing vitiation of consent, as noted above. The effect of an expanded definition of appropriation is to place greater emphasis on dishonesty as a means of distinguishing between wrongful and non-wrongful dealing in property. As the MCCOC noted, “if virtually any dealing with goods counts as an appropriation, the more work dishonesty has to do to distinguish theft from innocent transactions”. 188 While dishonesty performs an important control function, the MCCOC expressed preference for the development of “clear-cut criteria” for this purpose. In this regard, the MCCOC was highly critical of the approach taken to appropriation in the English cases of Lawrence and Gomez. The MCCOC sought to limit the concept of appropriation in two ways. First, the MCCOC imposed a requirement that the assumption of rights of an owner had to be “without consent”. 189 Secondly, the MCCOC recommended that the rights of an owner had to relate to “ownership, possession or control of property”. The MCCOC had noted that English courts had recently sought to place limits on the concept of appropriation by excluding trivial interference, such as picking up property in a supermarket and reshelving it. 190 The parameters and principles underlying this de minimis rule are not clear. However, the MCCOC recommended that a similar effect may be achieved legislatively by limiting the assumption of rights to those relating to “ownership, possession or control”. It is unclear how this formulation in fact excludes trivial interference with property. Control is a broad term that extends to any physical dealing with property (apart from accidental touching) however brief. The breadth of appropriation under the present law potentially renders redundant many other property and damage offences, and confers upon the police and prosecution a wide and unstructured discretion in framing charges. The formulation of assuming rights of ownership, possession or control was adopted in the Commonwealth and Australian Capital Territory, while in South Australia, the legislature adopted a unique formulation of “dealing” in property without the owner’s consent: see at [12.85].

Technology perspectives ATM Fraud and Deceiving Machines [12.105] In Kennison v Daire, 191 the High Court considered an appeal from a conviction

of larceny contrary to s 131 of the Criminal Law Consolidation Act 1935 (SA). The accused closed his bank account but continued to use his card to withdraw funds from an automated teller machine (ATM). He was still able to withdraw funds when the ATM was “offline” because the computer was programmed to allow the withdrawal of up to $200 by any person who placed a card in the teller machine and gave the correct personal identification number (PIN). The defence argued that, as the bank had consented to the 187

188 189

190 191

See cl 17.2(6), MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 39; see, for example, Criminal Code (Cth), s 132.1(9); Criminal Code (ACT), ss 370 – 372. A similar provision exists in relation to larceny and fraud in s 183 of the Crimes Act 1900 (NSW) (since repealed). MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 37. The MCCOC was persuaded to drop the formulation “adverse interference or usurpation” applied in Morris and the Crimes Act 1900 (ACT) in favour of “any assumption of the rights of an owner without consent”. In reaching this conclusion, the MCCOC was persuaded by a submission received from Ian Leader-Elliott who had argued that the key concept “consent” (or lack thereof) was “a robust concept which provides a base for vigorous and intelligible argument”: p 39. Gallasso [1993] Criminal Law Review 459. (1986) 160 CLR 129. [12.105]

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taking, the accused was not guilty of larceny. The defence argued that the ATM was like a bank teller who had intended the property in the money to pass to the accused. The High Court unanimously dismissed the appeal. In a remarkably brief judgment, the High Court held (at [132]) that merely because the bank programmed the ATM in a way that facilitated the fraud by the customer does not mean that the bank consented to the withdrawal. A machine cannot give consent, and it is not appropriate to treat a machine as though it were a person in authority. The bank did not give consent to withdrawing money beyond the balance in the account or (as in this case) where there was no account. The scope of consent would be inferred from the conditions of use supplied by the bank with the ATM card. The High Court specifically left open the question of whether the person who withdrew funds in excess of their balance or approved overdraft limit would be guilty of larceny. Later cases, applying Kennison v Daire, established that a bank does not consent to money obtained from an ATM where the customer has overdrawn in excess of their credit limit, or withdrawn funds against a cheque that has not cleared. 192 It would also follow that a person who obtained funds from an ATM using another person’s card is also acting without the consent of the bank. Although obtained by the consent of the cardholder, the notes are obtained without the consent of the bank, which imposes a strict condition that the ATM card and PIN are not to be used by persons other than those who are authorised to do so by the bank. (In these situations, it is the bank, not the cardholder, who owns and possesses the notes in the machine). However, an appropriation of funds in this situation may not be dishonest if the person believes that the owner has consented to the taking. Remarkably, the High Court in Kennison v Daire did not consider whether the property in the money belonged to the bank or whether it had passed to the accused at the moment of taking. At this time, cases involving the question of whether or not property had passed in mistake had not been authoritatively resolved by the court. The law remained in an uncertain and controversial state, particularly in relation to the overpayment of money. The High Court in Kennison v Daire deftly avoided the issue of computerised mistakes, leaving the principles governing fundamental mistakes negating passing of property to be developed in a more typical case of overpayment involving human rather than computer error. 193 Many forms of ATM fraud may be prosecuted as obtaining property by deception. The deception is that the customer has the authority to use the card and is operating the account in accordance with the terms and conditions of use (which include that the cardholder has sufficient funds in the account to cover the amount requested). Using another person’s ATM card and PIN would similarly constitute a deception. This raises the question as to whether a deception may be practised on a machine or is limited to human beings. There is dicta in Kennison v Daire (1985) suggesting that a machine cannot be deceived—this was strictly obiter, since the accused was charged with theft not obtaining property by deception. O’Loughlin J in the Supreme Court of South Australia observed (at [348]): “There is no question of deception to be considered; deception, as a concept, can only arise when a human being is the subject of the deceit … Simply expressed, one would not equate an automatic [teller] machine, and its computerised functions, with the conduct of a human being who is capable of being deceived—who is capable of being the victim of a false pretence or a fraud.”

192 193

Evenett (1987) 24 A Crim R 330; Munjunen (1993) 67 A Crim R 350. See Ilich v The Queen (1987) 162 CLR 110, discussed at [12.185].

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In addition to obtaining property by deception, ATM fraud may involve the commission of other offences relating to forgery and computer trespass. 194 The question of ATM fraud was briefly examined by the Model Criminal Code Officers Committee (MCCOC), which recommended that the Model Criminal Code adopt the Victorian extended definition of deception in preference to the enactment of a general offence against computer fraud. 195 Responding to this potential gap in the law, some legislatures have broadened the definition of deception to include “conduct by a person that causes a computer, a machine or an electronic device to make a response that the person is not authorised to cause it to do”. 196 The South Australian legislature has enacted specific offences dealing with the “dishonest manipulation of machines”, s 141 of the Criminal Law Consolidation Act 1935 (SA) providing that: (1) A person who dishonestly manipulates a machine in order to— (a) benefit him/herself or another; or (b) cause a detriment to another, is guilty of an offence. (2) A person who dishonestly takes advantage of the malfunction of a machine in order to— (a) benefit him/herself or another; or (b) cause a detriment to another, is guilty of an offence. Maximum penalty: Imprisonment for 10 years.

Since 2001, there have been significant reforms to computer-related offences. The Cybercrime Act 2001 (Cth) implemented the recommendations of the MCCOC’s report, Chapter 4—Damage and Computer Offences, see Chapter 15, [15.240] “Cybercrime”. Appropriation: bona fide purchasers for value [12.110] The rights of purchasers who acquire interests in property in good faith for value are given considerable protection by the law of property, equity and contracts. 197 A similar concession has been incorporated into the Theft Act model, exempting from the law of theft the person who purchases property in good faith and for value. Mirroring the provisions in the Theft Act 1968 (UK), s 73(5) of the Crimes Act 1958 (Vic) provides:

194

195 196 197

See DPP v Murdoch [1993] 1 VR 406. The issues of computer trespass and fraud in relation to ATMs are further explored in I Leader-Elliott and M Goode, “Criminal Law” (1993) An Annual Survey of Australian Law 181 at 221–226. See also C Sullivan, “The Response of the Criminal Law in Australia to Electronic Funds Transfer Abuse” in G Hughes (ed), Essays on Computer Law (Melbourne: Longman Professional, 1990) Ch 14. On the legal policy and regulatory issues surrounding ATM misuse, see P Grabosky and R Smith, Crime in the Digital Age (Sydney: Transaction Publishers/Federation Press, 1998) Ch 8, especially pp 161–169. MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) pp 137–139. Criminal Code (Cth), s 133.1; see also Criminal Code (ACT), s 325; Crimes Act 1900 (NSW), s 178BA (now repealed); Crimes Act 1958 (Vic), s 81(4). See, generally, E Sykes and S Walker, The Law of Securities (5th ed, Sydney: Law Book Company, 1993) pp 527–529. As R Meagher, W Gummow and J Lehane, Equity: Doctrines and Remedies (3rd ed, Sydney: Butterworths, 1992) observe (p 256), “The doctrine of ‘bona fide purchaser for value without notice of the legal estate’ applies as much to personality as to realty”. Denning LJ in Bishopsgate Motor Finance Corp v Transport Brakes Ltd [1949] 1 KB 332 held (at 336–337): “In the development of our law, two principles have striven for mastery. The first is for the protection of property; no one can give a better title than [that person] possesses. The second is for the protection of commercial transactions; the person who takes in good faith and for value without notice should get a better title. The first principle has held sway for a long time, but it has been modified by the common law itself and by statute to meet the needs of our time”. [12.110]

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Where property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by him [or her] of rights which he [or she] believed himself [or herself] to be acquiring shall, by reason of any defect in the transferor’s title, amount to theft of the property.

These provisions counterbalance the extended definition of appropriation, which, as noted above, includes cases where the person who initially comes by property innocently and subsequently keeps or deals with it as an owner. 198 Under the common law, such cases did not amount to larceny because of the requirement that the initial taking of possession had to coincide with a fraudulent intent. While innocent purchasers of stolen goods who, on discovering the truth, decide to keep or sell the stolen property would not be guilty of larceny under the common law, they may now be liable for theft under the extended statutory definition of appropriation. 199 Questions have arisen as to whether this exemption confers too much protection for bona fide purchasers of stolen property. As Bob Williams has pointed out, the scope of the protection is quite limited because of the operation of the separate offence of obtaining property by deception. 200 The exemption provides protection from liability for theft in relation to purchasers for value who retain or transfer property upon which there is a defect in the title. However, where the purchaser sells the property to a third party, that transaction is not protected. In that situation, the purchase money has been obtained by an untrue representation (express or implied) that the vendor has good title to the property offered for sale, and thus gives rise to potential liability for the offence of obtaining property by deception. Moreover, if the second purchaser is aware of the true facts, then that person will also be guilty of theft, and the first purchaser will be guilty as a party to that crime on the ordinary principles of accessorial liability, discussed in Chapter 7, [7.20]ff. The MCCOC reviewed the scope of this exemption related to bona fide purchasers and concluded that the protection should not be limited to transfers for value. The MCCOC recommended that the defence should provide protection to all persons who receive property in good faith, not just bona fide purchasers, because “in both these cases the defendant initially believed he or she had become the owner of the goods”. 201 This expansion of the good faith defence has been implemented in the Commonwealth and the Australian Capital Territory. 202

Mis-appropriation: a supplement to larceny [12.115] The term “appropriation” has a different meaning in jurisdictions that retained larceny as the basis for property offences. These jurisdictions supplemented the basic forms of larceny with provisions that included within the offence any property misuse by individuals who were entrusted with money or valuable security. 203 Thus, for example, the Queensland fraud offence applies to any person who dishonestly “(a) applies to his or her own use or to 198 199

200 201 202 203

Criminal Code (ACT), s 304(2); Criminal Law Consolidation Act 1935 (SA), s 134(3)(a); Crimes Act 1958 (Vic), s 73(4). Wheeler (1990) 92 Cr App R 279. It may also be stealing by “fraudulent conversion” under the extended definitions in those jurisdictions which have not applied the Theft Act model: see R v Stevens [2014] QCA 286, discussed at [12.80]. CR Williams, Property Offences (3rd ed, Sydney: LBC, 1999) p 124. MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 43. Criminal Code (Cth), s 131.3(2); Criminal Code (ACT), s 304(3). Criminal Code (Qld), s 408C(1); Criminal Code (Tas), s 261. This equivalent offence in New South Wales was repealed in 2009: Crimes Act 1900 (NSW), s 178A (now repealed).

798 [12.115]

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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.” This provision punishes dishonest (not necessarily unauthorised) use of property (including property owned by the accused but controlled by another). It applies to temporary use of property and there is no requirement of obtaining gain or inflicting loss. The offence was considered broad enough to catch computer hacking, obviating the need for special computer offences in Queensland, 204 though computer hacking offences were subsequently enacted as “offences analogous to stealing”. 205

Property [12.120] The common law of larceny was originally limited to tangible property capable of

being taken and carried away. It followed that the common law excluded larceny of land and intangible property. For these reasons, larceny is usually described as a crime against possession, and is contrasted with modern statutory offences that establish crimes against the rights of an owner. 206 Not surprisingly, legislation has made a number of significant changes to the definition of property to overcome the limitations of the common law. Statutory definitions of “property” [12.125] Although significantly extended by legislation, the precise definition and scope of

“property” varies from one jurisdiction to another. Section 71 of the Crimes Act 1958 (Vic) defines property as including “real property” subject to the following qualifications in s 73(6): A person cannot steal land, or things forming part of land and severed from it by him [or her] or by his [or her] directions, except in the following cases, that is to say— (a) when he [or she] is a trustee or personal representative, or is authorized by power of attorney, or as liquidator of a company, or otherwise, to sell or dispose of land belonging to another, and he [or she] appropriates the land or anything forming part of it by dealing with it in breach of the confidence reposed in him [or her]; or (b) when he [or she] is not in possession of the land and appropriates any thing forming part of the land by severing it or causing it to be severed, or after it has been severed; or (c) when, being in possession of the land under a tenancy, he [or she] appropriates the whole or part of any fixture or structure let to be used with the land.

This narrower formulation of property was recommended for adoption in the Model Criminal Code. 207 The MCCOC noted that these restrictions were based on the concept of theft as involving property that can be taken and carried away, and that appropriation of land should be dealt with under a separate fraud offence. It also noted that trespass to land was adequately protected by the law of property and that it would be anomalous if a person who lawfully acquired property by the doctrine of adverse possession (say by uninterrupted possession for 15 years) could be charged with theft. Although not addressed in the report, the general exclusion of land would also preclude Indigenous communities claiming that the wrongful dispossession of their property constituted theft. 204 205 206 207

The initial reluctance to enact special computer offences in Queensland is discussed in G Hughes, Data Protection in Australia (Sydney: Law Book Company, 1991) p 286. Criminal Code (Qld), s 408E. Parsons v The Queen (1999) 195 CLR 619 at 625. See cl 14.4, which is discussed in Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) pp 47–49. [12.125]

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Intangible property has also raised vexed problems for the law of larceny and theft. Funds held in bank accounts have posed particular difficulties for the law of larceny since, from a strict legal perspective, “money in the bank” is intangible property, namely, a debt owed by the bank to the account holder. In Croton v The Queen (1967), the High Court affirmed that, apart from special statutory provisions, larceny can only be committed in relation to property that is capable of physical possession and removal. 208 While paper money or coin was properly the subject matter of a charge of larceny, appropriating funds from a joint bank account was not. A majority of the High Court held that a conviction for larceny was not open in these circumstances since a chose in action (in this case, a debt owed by the bank to the account holder, as represented by the bank balance) was not property capable of being stolen. Legislation has cured the defect in Croton in all jurisdictions, and the definition of “property” has been broadened to include choses in action or “things in action”, as well as intangible property more generally. Indeed, the MCCOC recommended the following non-exhaustive definition of property: “property” includes all real or person property, including: (a) money; and (b) things in action or other intangible property; and (c) electricity; and (d) a wild creature that is tamed or ordinarily kept in captivity or that is reduced (or in the course of being reduced) into the possession of a person.

There is legitimate concern about the role and limits of the criminal law in the protection of commercial secrets and intellectual property rights. The courts have been grappling with the changing nature of “property”; in particular, whether appropriation of intangible property, such as confidential information or computer data, may constitute theft. As we shall explore at [12.135], there is little legislative consensus on whether “online fraud” (identity theft) should be brought within the framework of existing property offences or should be dealt with by special computer crimes. The meaning of “intangible property” [12.130] While most statutory definitions extend to “intangible” property or things, the

boundaries of this concept remain hazy. It is particularly difficult in the digital age to determine whether intangible property has been appropriated or is simply an identical copy or reproduction. As Jacqueline Lipton has pointed out: “The problem with these offences based on ‘property belonging to another’ is that, with many forms of intangible property, it is difficult to establish that the property in the hands of the wrongdoer is actually the same as that which was lost by the victim. In other words, it is difficult to prove that what the defendant actually received was ‘property belonging to another’ as opposed to some other forms of financial gain which happens to correspond with that loss.” 209

As a consequence, fraud involving electronic funds transfers has posed considerable difficulties for the law of theft. The question arises whether the obtaining of data, which allows the accused to access and transfer electronic funds, should be “squeezed” within the basic theft offence or dealt with under specific offences related to cybercrime or identity crime.

208 209

Croton v The Queen (1967) 117 CLR 326. J Lipton, “Property Offences in the Electronic Age” (1998) 72 Law Institute Journal 54 at 54.

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Technology perspectives Identity Theft and Credit Card “Skimming” [12.135] While the Theft Act model strived to simplify the law relating to property

offences, particularly to reduce the range of separate offences, some forms of dishonest dealing with property do not fit comfortably within the framework of the existing provisions. Roza Lozusic notes that “identity theft” broadly refers to using a pre-existing person’s personal information, distinguishable from “identity fraud” which refers to creating or using any false identification. 210 The April 2007 Council of Australian Governments (COAG) Agreement to a National Identity Security Strategy (NISS) included the following definitions: • Identity crime is a generic term used to describe activities/offences in which a perpetrator uses a fabricated identity, a manipulated identity or a stolen/assumed identity to facilitate the commission of crime. • Identity fraud is the gaining of money, goods, services or other benefits, or the avoidance of obligations, through the use of a fabricated identity, a manipulated identity or a stolen/assumed identity. • Identity theft is the theft or assumption of a pre-existing identity (or a significant part thereof), with or without consent, and whether, in the case of an individual, the person is living or deceased. 211 The theft of personal identity and credit card “skimming” is increasingly prevalent. The act of “skimming”, which involves obtaining someone else’s credit card or payment card details and using them in transactions, is an identity crime. Skimming is dealt with in most jurisdictions under fraud and forgery-type offences. The Model Criminal Law Officers’ Committee (MCLOC) (the renamed MCCOC, as of July 2006) concluded that the act of skimming and possession of that skimmed data alone are not covered by these offences, with the effect that law enforcement officials cannot intervene or prosecute until the information has been used to commit an existing crime. 212 The Model Criminal Code included the following proposed offence to deal with credit card skimming specifically: Clause 3.3.5 Credit card skimming and related offences (1) In this section: personal financial information means information relating to a person that may be used (whether alone or in conjunction with other information) to access funds, credit or other financial benefits. (2) A person who dishonestly obtains or deals in personal financial information without the consent of the person to whom it relates is guilty of an offence. Maximum penalty: imprisonment for 5 years.

In addition, clause 16.7 of the Model Criminal Code criminalised possession of a device with intent to use it to obtain property by deception, while clause 19.6 criminalised the 210

211 212

R Lozusic, “Fraud and Identity Theft”, NSW Parliamentary Library Briefing Paper 8/2003, http:// www.parliament.nsw.gov.au/prod/parlment/publications.nsf/0/08ACDBBA372ED89DCA256ECF0007C146/ $File/08-03.pdf (cited May 2010). MCCOC, Identity Crime, Final Report (2008) p 8. The review was undertaken in several stages: MCCOC, Model Criminal Code: Chapter 3—Credit Card Skimming Offences, Discussion Paper (2004) and Final Report (2006) and MCCOC, Model Criminal Code: Chapter 3—Identity Fraud, Final Report (2008). [12.135]

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making or possession of a device for making a false document. The offence in clause 3.3.5 conceived credit and payment card skimming as behaviours distinct from identity theft; however, the MCLOC also endorsed the alternative approach taken by South Australia, which incorporated the elements of the skimming offence into its general identity theft provisions. South Australia was the first jurisdiction in Australia to specifically criminalise card skimming as credit card theft. The Criminal Law Consolidation (Identity Theft) Amendment Act 2003 (SA) inserted Pt 5A “Identity Theft” into the Criminal Law Consolidation Amendment Act 1935 (SA), which makes it an offence to: • knowingly assume a false identity, even with the consent of the person whose identity is assumed (s 144B); • use that identity to commit a serious offence (s 144C); • knowingly produce, possess or sell personal identification information and produce, possess or sell document-making equipment intending to produce or obtain unauthorised means of personal identification information (s 144D). Queensland enacted similar legislation, criminalising credit card skimming in 2007. Section 408D was inserted into the Criminal Code (Qld) to address both skimming and identity fraud. Despite claiming to be based on the MCLOC’s specific skimming provision, which categorises skimming as a specific fraud rather than identity theft offence, 213 s 408D uses the South Australian “identification information” instead of the MCLOC’s “financial information”. The Queensland provision also follows the South Australian fault element requirement that the defendant’s conduct be done “for the purpose of committing, or facilitating the commission of, an indictable offence”: see s 408D(1). New South Wales subsequently introduced identity theft provisions into the Crimes Act 1900 (NSW) in 2009. Sections 192J and 192K criminalise the activities of anyone that “deals in” identity information and the possession of another person’s identification information respectively. 214 Identification information is broadly defined to include any personal information that could be used to identify that person: s 192I. Again, similar to the offence in South Australia, the fault element requires an intention to commit or facilitate a serious indictable offence. The use of the broad term “deals” is closely based on the recommendation of the MCLOC’s final report, Identity Crime (2008), which was intended to cover information that had been “captured, used or transferred”. 215 In Western Australia, the Criminal Code Amendment (Identity Crime) Act 2010 (WA), inserted a new chapter into the Criminal Code (WA) dealing with “Identity crime”. The offence definition is virtually identical to the one used in South Australia. 216 In 2014, the Northern Territory introduced specific identity theft offences in ss 228C, D and E of the 213 214

215 216

802

See MCCOC, Identity Crime, Discussion Paper (2007) and Final Report (2008). For further discussion of identity theft laws in Australia see P Gillies, R Islam and N Selvadurai, “Identity Theft: Aligning law and evolving technologies” (2010) 34 Criminal Law Journal 33. For a useful bibliography of online material relating to identity crimes prepared by the Australian Institute of Criminology see http://www.aic.gov.au/crime_types/economic/idfraud.html (cited 20 December 2016). New South Wales, Parliamentary Debates, Legislative Council, 12 November 2009, 19507 (John Hatzistergos Attorney General, Minister for Industrial Relations, Vice President of the Executive Council). Western Australia, Parliamentary Debates, Legislative Assembly, 14 October 2009 (John Quigley) p 1: “The bill for which I am introducing for a second reading to the chamber today is a replication of the South Australian legislation, which has not been the subject of any judicial criticism in that state … Accordingly, I have drafted the bill almost word for word from the South Australian legislation”. [12.135]

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Criminal Code (NT) targeting those who deal in and possess identification information, and “equipment used to deal in identification information or identification documentation”. Similar to the Queensland provisions, despite representing that the amendments are “largely based on the Model Criminal Code provisions”, 217 the new offences were framed as a form of identity crime, preferring the terminology “identification information” over “financial information”. Identification information is defined in s 228A to mean “information that can be used (whether alone or in conjunction with other information) to identify or purportedly identify, a person (whether living, dead, real or fictitious)…”. Similar to the South Australian fault element, the Northern Territory offences require “the offender to intend to commit or facilitate the commission of a crime”. 218 Unlike the Model Criminal Code provisions, “[i]t is also not a defence under sections 228C and 228D for the victim to have consented to their identification information being possessed or dealt with.” 219 Although recognising the importance of uniformity in this area, the Commonwealth was one of the last jurisdictions to enact identity-related crimes in Australia. 220 The Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Act 2011 (Cth) inserted new offences dealing with “identity crime” into Part 9.5 of the Criminal Code (Cth). In light of the constitutional limitations of federal power in the field of criminal law, the federal identity crimes were framed around dealing in “identity information” for the purpose of committing a Commonwealth offence or foreign indictable offence (s 372.1) and dealing in identification information using a “carriage service”, which includes both internet and telecommunications systems (s 372.1A). The latter constitutional “peg”—requiring use of a carriage service—is related to the head of power in the Australian Constitution that grants federal parliament the power to enact legislation regulating postal and telegraphic systems (and the like). The ubiquity of the Internet means that federal identity offences have a very wide scope of operation. Although the provisions are intended to operate concurrently with State and Territory offences (s 370.3), the scope of the offences effectively federalise most forms of technology-enabled scams. The diversity in the approaches to identity crime (including in relation to penalties) between jurisdictions is regrettable. As Alex Steel notes: “NSW has by far the most punitive regime. Identity crime is a national and international crime, rather than one that is likely to occur with different intensities and in different guises in local areas. Given this, there is no justification for such a disparity between maximum sentences. It strongly suggests that the setting of penalties is based on local political factors rather than any reasoned national approach.” 221

Data from the Australian Bureau of Statistics (ABS) Personal Fraud Survey for 2014-15 revealed that Australians lost an estimated total of $3 billion as a result of personal fraud, including credit card fraud, scams and identity theft. This has risen from the estimated 217 218 219 220

221

Explanatory Statement, Criminal Code Amendment (Identity Crime) Bill 2014 (NT). Northern Territory, Parliamentary Debates, Legislative Assembly, 19 February 2014 (John Elferink, AttorneyGeneral). Northern Territory, Parliamentary Debates, Legislative Assembly, 19 February 2014 (John Elferink, AttorneyGeneral). Commonwealth, Parliamentary Debates, Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2010, Senate, Debates, 19 September 2010 (J Ludwig) p 255: The second reading speech referred to the importance of promoting national uniformity in this area, asserting that the existing legislation in place was failing to “cover the varied and evolving types of identity crime”. A Steel, “The True Identity of Australian Identity Theft Offences: A Measured Response or an Unjustified Status Offence?” (2010) 33(2) University of New South Wales Law Journal 503 at 529. [12.135]

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total of $1.1 billion reported for the period 2010-11. A rising proportion of Australians are reportedly becoming victims of personal fraud, with card fraud being the most common type (1.1 million persons), while an estimated 126,300 Australians were victims of identity theft. 222 In 2013, the Australian Institute of Criminology (AIC) conducted a national survey to “determine the extent and impact of identity crime and misuse in Australia.” 223 The survey confirmed “high levels of victimisation” relating to the misuse of personal information. 224 Several groups experienced “significantly high rates of victimisation” including “Indigenous Australians and those with higher income levels”. 225 20.8% of those persons surveyed had experienced identity misuse at some time in their lives. 226 The survey results indicated that, in addition to “out-of-pocket losses”, victims of identity theft often experienced an emotional toll. 227 Identify theft has also been identified by the Australian Crime Commission as playing an increasing role in the commission of organised crime. 228 Police have admitted to significant challenges in mounting investigations and prosecutions against skimmers due to the complex fault element and the fact that the preparatory offence of skimming only is revealed when the subsequent fraud has been committed. 229 Criminalisation and law enforcement may not be the primary or, indeed, best means of addressing this problem. As Lozusic emphasised, criminalisation must be supplemented by a preventative framework which includes self-regulation and enforcement by the private sector (such as banks and insurance companies), as well as measures to increase domestic cross-border and international cooperation, and information-sharing between the private sector. 230 The status of “electronic money” has been considered in the English House of Lords decision of R v Preddy (1996). 231 In this case, the accused obtained mortgage advances on properties from a number of lending institutions by providing false information. The accused claimed that obtaining property by deception had not been committed because they intended to repay the money when the properties were resold. The accused were convicted. The convictions were quashed on appeal. The House of Lords held that since the deception involved the debiting of one person’s bank account and the corresponding crediting of another’s account, there was no 222

231

See Personal Fraud Survey 2014-15 (Canberra: Australian Bureau of Statistics, 2016) http://www.abs.gov.au/ AUSSTATS/[email protected]/Latestproducts/4528.0Main%20Features12014-15?opendocument&tabname= Summary&prodno=4528.0&issue=2014-15&num=&view (cited 10 November 2016). R Smith and A Hutchings, Identity Crime and Misuse in Australia: Results of the 2013 online survey—Research and Public Policy Series 128 (Canberra: Australian Institute of Criminology, 2013) p xi. R Smith and A Hutchings, Identity Crime and Misuse in Australia: Results of the 2013 online survey—Research and Public Policy Series 128 (Canberra: Australian Institute of Criminology, 2013) p xii. R Smith and A Hutchings, Identity Crime and Misuse in Australia: Results of the 2013 online survey—Research and Public Policy Series 128 (Canberra: Australian Institute of Criminology, 2013) p xii. R Smith and A Hutchings, Identity Crime and Misuse in Australia: Results of the 2013 online survey—Research and Public Policy Series 128 (Canberra: Australian Institute of Criminology, 2013) p 15. R Smith and A Hutchings, Identity Crime and Misuse in Australia: Results of the 2013 online survey—Research and Public Policy Series 128 (Canberra: Australian Institute of Criminology, 2013) p 21. Australian Crime Commission, Annual Report 2015-2016, p 16. https://www.acic.gov.au/about-us/corporatedocuments/annual-reports (cited 14 November 2016). As noted by the South Australian Police in its Submission to the Model Criminal Code Officers’ Committee Identity Crime Discussion Paper (2007) 2. R Lozusic, “Fraud and Identity Theft”, NSW Parliamentary Library Briefing Paper 8/2003, http:// www.parliament.nsw.gov.au/prod/parlment/publications.nsf/0/08ACDBBA372ED89DCA256ECF0007C146/ $File/08-03.pdf (cited May 2010). R v Preddy [1996] AC 815.

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223 224 225 226 227 228 229 230

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obtaining of property belonging to another. The property belonging to the lenders was a debt owed by the bank to them. The property ultimately received by the accused was a new chose in action, a debt owed by their own bank to them. Although the two debts corresponded in value, they were distinct and separate items of property. The House of Lords also noted that the cheques that had been obtained by the accused were not property belonging to another since, from the moment they were drawn in their favour as the payee, they could not be regarded as property belonging to another. Lord Goff, whose reasons were adopted by the other judges, held: “I start with the time when the cheque form is simply a piece of paper in the possession of the drawer. He [or she] makes out a cheque in favour of the payee, and delivers it to him [or her]. The cheque then constitutes a chose in action of the payee, which he [or she] can enforce against the drawer. At that time, therefore, the cheque constitutes ‘property’ of the payee within section 4(1) [of the Theft Act 1968].” 232

Lord Goff held that at the crucial time that the cheque was obtained by deception, the property in the cheque (that is, the debt or chose in action) belonged to the payee with the consequence that “there was no chose in action belonging to the drawer which could be the subject of a charge of obtaining by deception”. 233 He also noted that while the tangible piece of paper on which the cheque drawn still belongs to the drawer, a charge of theft of the “cheque form” would also fail because “there can have been no intention on the part of the payee permanently to deprive the drawer of the cheque form, which would on presentation of the cheque for payment be returned to the drawer via his [or her] bank”. 234 As Jacqueline Lipton observed, Preddy leads to an apparent inconsistency between payments in cash and those made by electronic transfers or cheques. 235 The decision creates a legal distinction based on the mode of transfer with the result that fraud involving electronically-registered shares (as distinct from actual share certificates) may be immune from charges of theft or obtaining property by deception. This anomaly has been rectified in the United Kingdom by the enactment of a statutory offence of obtaining a money transfer by deception. 236 The decision in Preddy was trenchantly criticised by academics. JC Smith argued that Preddy was wrong and ignored the practical realities of the situation, submitting that a cheque may be regarded as “(i) a piece of paper which (ii) creates a thing in action but it is also … (iii) a valuable security”. 237 As such, a cheque may be regarded as a special form of property belonging to both the drawer and the payee simultaneously. The implications of Preddy were considered by the High Court in Parsons v The Queen (1998). 238 In this case, which arose in Victoria, the defence unsuccessfully argued, based on Preddy, that cheques drawn in favour of the accused (as a result of a deception) could not be regarded as property belonging to another. The High Court unanimously upheld the conviction, substantially endorsing the reasoning of the Victorian Court of Appeal below. 239 Winneke ACJ, delivering the judgment of the Victorian Court of Appeal below, had rejected Lord Goff’s reasoning in Preddy on a number of grounds. First, he noted that, prior to Preddy, obtaining cheques by deception (even those drawn in favour of the fraudster) had been 232 233 234 235 236 237 238 239

R v Preddy [1996] AC 815 at 835. R v Preddy [1996] AC 815 at 835. R v Preddy [1996] AC 815 at 836–837. J Lipton, “Property Offences in the Electronic Age” (1998) 72 Law Institute Journal 54 at 55. Theft Act 1968 (UK), s 15A. JC Smith, “Obtaining Cheques by Deception or Theft” [1997] Criminal Law Review 396 at 400. Parsons v The Queen (1999) 195 CLR 619. R v Parsons [1998] 2 VR 478. [12.135]

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successfully prosecuted as obtaining property belonging to another in Victoria and other jurisdictions. Winneke ACJ also noted that Lord Goff’s comments on the nature of cheques were strictly obiter since the facts of Preddy concerned electronic funds transfer, not cheque fraud. Winneke ACJ found persuasive the arguments in JC Smith’s article, concluding: “If a person, by deception, induces another to make out a cheque and deliver it to him [or her], the fraudster has obtained an instrument of value at the expense of the victim … These sentiments seem to me to accord with practical reality. In my view the courts of this State have regarded cheques as instruments of inherent value which are capable of being stolen or obtained, and not simply as intangible property or choses in action.” 240

The High Court endorsed this reasoning. It also relied on the law governing negotiable instruments, including provisions of the Cheques Act 1986 (Cth), to find that cheques possessed: “various legal characteristics giving them then a value beyond what otherwise was their quality as mere pieces of paper. The cheques, being complete in form, contained a mandate by the respective drawer to its bank to reduce the credit of its account by payment in favour of a person answering the statutory description of a holder … It follows that both the bank cheques and the cheques, at the time they were, by a deception, dishonestly obtained by the appellant, were property within the meaning of the definition in s 71(1) of the Crimes Act.” 241

The High Court’s decision in Parsons could be summarised as follows: a cheque is a special kind of tangible property which embodies valuable intangible characteristics, and is capable of being “owned”, “controlled” or “possessed” by both the drawer and the payee for the purposes of the relevant property offences. Although the High Court resolved the legal status of cheques for property offences, the facts of that case did not require an examination of whether the narrower ratio in Preddy relating to electronic funds transfer should also be followed. As Lipton pointed out, the uncertainties over the requirement of “property belonging to another” in relation to fraudulent electronic funds transfers may be avoided in Victoria by relying on alternate offences such as obtaining a financial advantage by deception, 242 or procuring the execution of a valuable security by deception. 243 The Australian Capital Territory Supreme Court decision in R v Jack (2002) suggests that the ordinary offence of theft may not fail in every case involving electronic funds transfers. 244 The accused, who was a bank officer, had created new accounts in the names of the customers and had transferred into those accounts funds that had been standing to their credit in existing accounts. She then issued to herself transaction cards linked to the new accounts, allocated a PIN to those cards and withdrew sums of money from the accounts. The defence argued that her conduct did not constitute a theft of the debts as the bank continued to be indebted to the customers to the extent of the amounts that would have been due to them had the alleged thefts not occurred. Crispin J found that it was open to a jury to find that the accused had usurped the rights of the customers to maintain and operate their accounts, that the debts were choses in action within the extended definition of “property”, and that it would be open to a jury to find that the accused intended to treat choses in action as if they were her own to 240 241

242 243 244

R v Parsons [1998] 2 VR 478 at 487–488. R v Parsons [1998] 2 VR 478 at 632–633; Lipton has further explored the problems posed by electronic fraud in “Property Offences into the 21st Century” (1999) 1 The Journal of Information Law and Technology, http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1999_1/lipton (cited 5 November 2016). Crimes Act 1958 (Vic), s 82. Crimes Act 1958 (Vic), s 86(2). [2002] ACTSC 90.

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dispose of regardless of the customers’ rights (thereby satisfying the intention to permanently deprive). Since 2002, this conduct has been prosecuted as obtaining by deception under the special provision enacted to deal with fraudulent money transfers. 245 A similar broad approach to property and electronic forms of credit was taken in R v Seymour (2004), 246 where the Queensland Court of Appeal held that while “Keno” bets or wagers (a gambling system similar to bingo) are not property under s 408C of the Criminal Code (Qld), they could be conceived of as “credit”, which did fall within the definition of “property” under this section. The accused, in this case, was an employee of a club that provided gambling services who had dishonestly convinced other employees to allow him to use the club’s Keno “credit” to gamble on the machines. The court held that “Keno wagers” were not the property of the club in which the Keno system operated—the wagers in fact belonged to the accused—but that he had dishonestly obtained the “credit” used to pay Keno winners and that this constituted property under the Act. A case from Western Australia suggests that the courts will be reluctant to permit technical arguments about the digital nature of “money” to defeat the operation of theft or stealing charges. In Kingdon v Western Australia (2012) the accused was the partner of a member of a motorcycle club, for which money had been collected for the families of club members who had died. 247 The accused had opened bank accounts in her own name for the purpose of holding those funds “on trust” for those families. She subsequently transferred funds from the accounts and applied them for her own purposes. The accused was charged with stealing. Appealing her conviction, the appellant argued that transferring funds between accounts did not constitute stealing since funds in the bank were not “money” within the definition in the Criminal Code (WA), but were choses in action. The matter turned on the characterisation of the property stolen. Martin CJ, Pullin and Mazza JJA dismissed the appeal, holding that the definition of “money” in the Criminal Code (WA), s 1, is not “exhaustive or exclusive”, at [34], and should be construed in accordance with “common usage”, which would have the effect that it includes “proprietary interests arising from the deposit of funds at a bank”, at [35]. Jurisdictions may be tempted to address these uncertainties by redrafting traditional property offences in more general terms, substituting offences based on dishonest appropriation or obtaining of property from one person to another with general offences of dishonestly procuring gain for oneself or causing loss to others. While this approach may be considered necessary to keep pace with crime in the digital age, it presents clear dangers of overcriminalisation. Indeed, it was precisely for this reason that the MCCOC rejected proposals for a general dishonesty offence. 248 As explored above, the MCCOC considered that the inherent wrongfulness of the conduct was as important as its dishonesty. Within capitalist economies, where so much commercial activity is directed toward inflicting loss or obtaining gain from competitors, dishonesty should not be the sole concept for distinguishing innocent from criminal conduct. The rise of the digital economy has exposed a number of gaps in the law governing property offences, particularly in relation to the concepts of “property” and “belonging to another”. Legislatures and the courts should be cautious in expanding the frontiers of the criminal law without considering any potential counterproductive effects. While information is considered a valuable and tradeable commodity in the digital age, particularly in the form of computer 245 246 247 248

Criminal Code (ACT), s 330; see also Criminal Code (Cth), s 134.1(9), (10). R v Seymour [2004] QCA 19. Kingdon v Western Australia [2012] WASCA 74. MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 171. [12.135]

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data, traditional property offences may not be an appropriate legal route for vindicating these proprietary interests. In this regard, the civil law clearly has an important regulatory role to play. As Lipton has noted: “It may be that the most effective forms of protection for such assets will develop in the civil law context as remedies for misuse of intellectual property or associated rights, rather than as a matter of criminal law”. 249

“Fiddling the books”: the doctrine of general deficiency [12.140] The law of larceny required misappropriation or conversion of specific property. To overcome the difficulties of proof in relation to minor alterations of financial accounts, the courts developed a doctrine that the prosecution need only prove a general deficiency of accounts, rather than larceny of specific sums. 250 This rule has been enacted into legislation in most jurisdictions. 251 The MCCOC recommended the retention of this doctrine in the form of an evidential provision applicable to “money or other property”. 252

Technology perspectives Theft of Intangible Property [12.145] Technology seems destined to outstrip the capacity of the criminal law to keep

pace. The criminal law has struggled with the meaning of “property”, especially intangible things that cannot be taken or carried away. Earlier this century, the uncertainties surrounding whether electricity was property capable of being stolen led to the enactment of statutory offences dealing with the illegal abstraction of electricity in many jurisdictions. 253 In other jurisdictions, the definition of property expressly includes electricity. There are similar uncertainties surrounding the application of the concept of property to “information”. Although statutory definitions of property expressly include “intangible things”, the question remains as to whether information (which is clearly intangible) should be regarded as “property” or a “thing” capable of being stolen. An early case examining this issue question, which is often cited, is Oxford v Moss (1979). 254 In this case, a university student obtained a proof copy of an examination paper. The student was charged with theft of the information in that paper. The magistrate found that the confidential information in the paper was not “property” within the definition in the Theft Act 1968 (UK), and dismissed the matter. The prosecution challenged this ruling before the Divisional Court, Queens Bench Division, which concurred with the magistrate, 249

252 253 254

J Lipton, “Property Offences into the 21st Century” (1999) 1 The Journal of Information Law and Technology, http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1999_1/lipton (cited 5 November 2016). For a further examination of criminal justice and regulatory issues surrounding “electronic funds transfer crime”, see P Grabosky and R Smith, Crime in the Digital Age (Sydney: Transaction Publishers/Federation Press, 1998) Ch 8. The case law is reviewed in B Fisse, Howard’s Criminal Law (5th ed, Sydney: Law Book Company, 1990) p 213. Criminal Code (ACT), s 307; Crimes Act 1900 (NSW), s 161; Criminal Code (Qld), s 568(1); Criminal Law Consolidation Act 1935 (SA), s 136; Criminal Code (WA), s 586(1) [repealed by Act No 59 of 2006 s 26]. Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 77. See, for example, Criminal Code (NT), s 221; Criminal Code (Tas), s 233; Criminal Code (WA), s 390. (1978) 68 Cr App R 183.

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250 251

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ruling that confidential information could not be regarded as property capable of being stolen in the Theft Act 1968 (UK), notwithstanding that the statutory definition in s 4(1) appeared to apply to “other intangible property”. The Divisional Court also noted that proving theft of the proof copy itself (rather than the information contained therein) would prove impossible because the student had merely “borrowed” the proof copy intending to return it, and therefore lacked an intention to permanently deprive the owner of that property. The courts in Canada have similarly grappled with the question as to whether confidential information could be regarded as property for the purpose of theft. The uncertainty of whether information could be property capable of being stolen was finally resolved by the Supreme Court of Canada in Stewart v The Queen (1983). 255 In this case, the services of the accused, a consultant, had been enlisted by the union, frustrated by the hostile management of a hotel, to obtain information about the staff of the hotel. The accused approached a security guard of the hotel with a view to obtaining the names, addresses and other relevant information about the hotel’s staff. The information was contained on the hotel’s personnel files and payroll print-out, which was regarded as confidential and protected under the hotel’s security arrangements. The security guard reported the approach to the police, and the accused was charged with the statutory offence of counselling theft (an inchoate offence equivalent to incitement). He was acquitted of the offence and the Crown appealed. The majority of the Court of Appeal of Ontario upheld the appeal and substituted a conviction for counselling theft specifically rejecting the approach in Oxford v Moss, and holding that confidential information could fall within the scope of theft. Section 283 of the Criminal Code (Can) did not use the term “property” and extended to any fraudulent taking or conversion of “anything whether animate or inanimate”. The majority noted that not all forms of information were property, but that confidential information gathered through the expenditure of time, effort and money by a commercial enterprise for the purpose of its business should be protected by the criminal law. 256 The Supreme Court, however, disagreed. Lamer J, giving the judgment of the court, allowed the appeal against conviction for counselling theft on a number of grounds. First, the criminal law should not recognise information as property because the civil law had not yet recognised that proprietary rights existed in information. The protection of information in the modern law derived from intellectual property law or from the equitable nature of the relationship (a relationship of good faith or confidence) rather than from the idea of a proprietary right in information. Secondly, the physical elements of theft required the property to be “taken or converted”. If information is property, it is intangible property. As such, intangible property cannot be “taken”. It is only possible to take an intangible thing if it is embodied in a tangible form, such as a document. Conversion may be satisfied (interference with the rights of the owner), but there must be deprivation of the use and possession of the property. In this case, there was no deprivation of the use or possession of the information. Copying did not deprive the hotel of the information itself. The Ontario Court of Appeal held that the hotel would have been deprived of the “confidentiality” of the information. But as Lamer J pointed out in the Supreme Court, there can be no property in confidentiality: “One cannot be deprived of confidentiality, because one cannot own confidentiality. One enjoys it”. 255 256

(1983) 149 DLR (3d) 583. For a critique of this decision, see G Hammond, “Theft of Information” (1984) 100 Law Quarterly Review 252. Significantly, the Alberta Court of Appeal refused to follow Stewart, favouring the approach taken in Oxford v Moss (1978) 68 Cr App R 183: see R v Offley (1986) 51 CR (3d) 378. [12.145]

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On the basis of the decision in Stewart, in an early assessment of the application of property offences to cybercrime, Gordon Hughes suggested that the unauthorised extraction of data from a computer may not constitute theft, stealing or larceny in Australia. 257 Where information has been stored as data on a computer, special computer offences relating to unauthorised access and damage may apply. The Northern Territory contains an offence of “unlawfully abstract[ing] confidential information from any register, document or computer, or other repository of information”. 258 These cybercrime offences are discussed in Chapter 15, [15.240]. For an excellent article arguing that the offence of theft should not be extended to cover intangible property, but rather should be dealt with by specific tailored offence provisions, see A Steel, “Problematic and Unnecessary? Issues with the Use of the Theft Offence to Protect Intangible Property” (2008) 30(4) Sydney Law Review 575.

Belonging to Another [12.150] The Theft Act model aimed to avoid the complexity of the civil law relating to

ownership and possession by resorting to the concept of “belonging to another”. While the legislature and the courts have promoted the ordinary meaning approach to key definitions for theft, it is impossible to free the law entirely from the complexity of the civil law. In many cases, particularly those involving complex commercial transactions, the courts will be under a duty to explain and apply complex civil law concepts that affect the possession of and control over property. Although the definition of “belonging” avoids the use of the term “ownership”, it still resorts to traditional proprietary concepts. Section 71(2) of the Crimes Act 1958 (Vic) provides: In this Division property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest).

See also s 301(1) of the Criminal Code (ACT) in this respect. Indeed, the rights of ownership clearly fall within the broad umbrella of “any proprietary right or interest”. Scope of possession, control and other proprietary rights or interests [12.155] Since property is regarded as belonging to any person having “possession or control

of it, or having in it any proprietary right or interest”, a single item of property may belong to more than one person for the purposes of theft. 259 While theft of joint property is not controversial, the definition is more problematic in cases where the legal owner is alleged to have appropriated his or her own property by adversely interfering or usurping the rights of others who have (for the time being) the right to possess or control that property. In practical terms, cases of owners “stealing their own property” are unlikely to succeed because of the requirement of dishonesty, and the inevitable reliance upon a defence of claim of right. As discussed at [12.100], in some jurisdictions it is not clear whether an appropriation must be “without consent of the owner”. Where lack of consent of the owner is expressed or implied as an essential requirement, the conviction of owners who appropriate their own property is precluded. 257 258 259

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G Hughes, “Computers, Crime and the Concept of ’Property’” (1990) 1 Intellectual Property Journal 154 at 158. Criminal Code (NT), s 222; see Snell v Pryce (1990) FLR 213. Criminal Code (Cth), s 131.9; Criminal Code (ACT), s 305(1); Criminal Law Consolidation Act 1935 (SA), s 130 (definition of owner). [12.150]

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The potential breadth of “belonging to another” was revealed in the English case of R v Turner (No 2) (1971). 260 The accused took his car to a garage for repairs, and following a dispute with the garage, removed his car without paying for the repairs. At the trial, the trial judge considered the nature and scope of the repairer’s proprietary interests in the accused’s car to be irrelevant, specifically whether or not the repairer had a lien (security) over the property. (Under the civil law, a creditor may have the right to hold property as a security until a debt is discharged.) The sole question was whether the owner of the garage had “possession or control” of the car. The accused was convicted of theft of his own car and appealed to the Court of Appeal. At the appeal, the defence argued that, in the absence of proof of a lien over the car, the repairer had no right to retain the property as against the owner. The Court of Appeal examined the relevant section dealing with property belonging to another. The court held that the words “possession and control” required no qualification in this case. 261 Accordingly, it is sufficient if the person from whom the property was taken had, at the time of the appropriation, “possession” or “control” of the property. Conceivably, an owner who removed his or her property from the possession or control of a thief may be appropriating property belonging to another. While the judicial desire to avoid introducing complex questions of civil law is understandable, a preferable approach is to impose a requirement that the possession, control or proprietary interest in the property must be lawful in the circumstances. This may require the courts to address incident questions of civil law and to determine the priority of interests in the property in cases of conflict. The need to determine the legal nature of the interests in property will occur only rarely, as in the case of Turner (No 2). This requirement is consistent with the idea that the conduct of the accused must be wrongful, and that the fault element of dishonesty, while important, should not perform “all the work” in relation to distinguishing between innocent and criminal dealings in property. Regrettably, this question was not addressed by the Model Criminal Code, which largely accepted the existing statutory definition. The definition of “belonging to another” proposed by the MCCOC contained one significant change from the Theft Act model. The MCCOC recommended that the exemption in relation to equitable interests should be extended expressly to cover interests in or arising from a constructive trust. 262 The MCCOC considered that this equitable exemption (which included constructive trusts) was justified because of the existence of a wide range of civil law remedies for unjust enrichment and unconscionable dealing. The MCCOC considered that any extension of the law of theft to deal with the appropriation of equitable interests would “stray too far from the common conception of theft and the much more culpable sort of dishonesty involved in theft”. 263 This has been implemented in the Criminal Code (Cth), s 130.2(1); Criminal Code (ACT), s 301(1). A similar definition of ownership has been incorporated into

260 261 262 263

R v Turner (No 2) [1971] 2 All ER 441. R v Turner (No 2) [1971] 2 All ER 441 at 443. Model Criminal Code, cl 14.5, discussed in MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) pp 50–51. MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 53. This position reflected the approach taken in Attorney-General Reference (No 1 of 1985) [1986] 1 QB 491 at 503, where the English Court of Appeal refused to extend the law of theft in aid of constructive trusts. See further ATH Smith, “Constructive Trusts in the Law of Theft” [1977] Criminal Law Review 395. [12.155]

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the South Australian theft definition, requiring that the owner’s interests cover both legal and beneficial interests: the owner of property is defined as “a person wholly entitled to the property both at law and in equity”. 264

Equitable solutions for property passing by mistake [12.160] Another route to solving the problem of property passing under a mistake is to take an expansive approach to the definition of proprietary interest. Thus, an owner who passes property to another by mistake may retain some equitable proprietary (beneficial) interest in that property once the recipient is aware of the mistake. This approach was adopted in the English Court of Appeal in Shadrokh-Cigari. 265 As noted above, the MCCOC recommended against stretching the definition of “proprietary interest” to encompass interests arising under equitable remedies, such as constructive trusts or tracing, on the grounds of complexity and the availability of civil remedies. It should be noted that such an extension is also unnecessary since many of these cases will trigger the statutory provisions that deem the property passed by mistake to belong to the person entitled by law to restoration.

The deeming provisions: property with special obligations [12.165] The common law has had difficulties with the person who, receiving property

subject to a legal obligation to deal with it in a particular manner (for example, through a bailment), then fraudulently appropriates or converts it for his or her own benefit. The Theft Act model addressed this problem of “larceny by bailee” in a number of ways. As explored at [12.85], the concept of appropriation was extended to cases where the accused initially received the property innocently, but later kept or dealt with it as an owner. The other problem arising in these cases was that the legal ownership, possession or control of the property had passed to another person at the time of the subsequent keeping or dealing. The Theft Act model addressed this obstacle by “deeming” that the property belonged to another for the purposes of theft. Following the provisions in the Theft Act 1968 (UK), s 73(8) and (9) of the Crimes Act 1958 (Vic) provides: (8) Where property is subject to a trust, the persons to whom it belongs shall be regarded as including any person having a right to enforce the trust, and an intention to defeat the trust shall be regarded accordingly as an intention to deprive of the property any person having that right. (9) Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or proceeds shall be regarded (as against him [or her]) as belonging to the other.

See also s 305(2) and (4) of the Criminal Code (ACT) and s 130 of the Criminal Law Consolidation Act 1935 (SA), which define “owner” as follows: [I]n relation to property received from or on account of another by a person who is under an obligation to deal with the property or its proceeds in a particular way—the person from whom, or on whose account, the property was received …

In other jurisdictions, there are provisions that deal with funds held under direction. 266 264

265 266

Criminal Law Consolidation Act 1935 (SA), s 84; See also Criminal Code (Qld) where, for the purposes of fraud, s 408C(3)(d) provides: “persons to whom property belongs include … [inter alia] any person having a legal or equitable interest in or claim to the property.” Shadrokh-Cigari [1988] Criminal Law Review 465. See Criminal Code (NT), s 209(4); Criminal Code (Qld), s 393; Criminal Code (WA), s 373.

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Property subject to a trust [12.170] Section 73(8) of the Crimes Act 1958 (Vic), deals with the trustee who appropriates

property held in trust. The legal ownership vests in the trustee, who has an obligation to hold the property in trust for the benefit of other persons. As the beneficiaries have equitable rights in the property subject to the trust, their interests may fall within the broad definition of “property”, as discussed above. It may also be deemed to be property belonging to the beneficiaries by virtue of the obligation imposed on the trustee to deal and retain the property in a particular way, as discussed below. In reality, this section deals with residual cases where property is held on trust, but there is no ascertained beneficiary as in the case of “purpose trusts”. In these cases, special provisions deem that the trust property belongs to any person who has a right to enforce the trust. Property received on account of another [12.175] A person may receive money or other property in circumstances in which he or she

falls under an obligation, either to the person from whom it is received or to some other person, to deal with that property in a particular way. The Criminal Law Revision Committee (CLRC), which drafted the Theft Act 1968 (UK), gave the example of the treasurer of a holiday fund who is the legal owner of the fund but is under an obligation to retain the money received as agreed. 267 The Theft Act 1968 (UK) simply provided that the recipient of the property had to be under an “obligation” to deal with the property or its proceeds in a particular manner. It is not clear from this formulation whether the issue should be treated as one of law or fact, or whether the obligations imposed on the accused are confined to those recognised and enforceable under the civil law. There is also uncertainty over the nature and scope of the obligations arising in relation to money and other fungibles. The obligation to retain and deal with money received for particular purposes was considered by the English Court of Appeal in R v Hall (1972). 268 The accused was a partner in a firm of travel agents in Manchester. He received money from clients for trips to America and deposited this money into the firm’s general trading account. The flights did not materialise. The accused was charged with theft of the money received and was convicted. The question on appeal was whether, at the time of the appropriation, the property belonged to another person. The problem with this case was that, at the time of the appropriation, the accused had possession of the money, raising the question of whether the deeming provisions in s 5(3) of the Theft Act 1968 (UK) applied. (This section is identical to s 73(9) of the Crimes Act 1958 (Vic).) The Court of Appeal considered whether the accused was under an obligation to account for money provided by the clients. The accused had argued that he was not under any obligation to his clients to retain or deal with the money in a particular way. Edmund-Davies LJ, delivering the judgment of the court, held that the obligation was determined by examining the expectation of the party handing over the money. 269 The manner in which the accused subsequently dealt with the property (paying it into a general trading account rather than holding it separately) would not be determinative of the issue. In this type of case, the expectation of the clients after making payment was that they would receive, in due course, air tickets and other documents necessary for their holiday. The travel firm was under an obligation to fulfil this expectation, but there was no expectation on the part of the client that the accused would “retain and deal with that money in a particular way”. Therefore, the situation did not attract the operation of s 5(3). Edmund-Davies LJ made it clear that each case turned on its own facts, and that there may be “special arrangements” where the client could 267 268 269

CLRC (UK), Theft and Related Offences (London: HMSO Cmnd 2977, 1966) p 127. R v Hall [1972] 2 All ER 1009. R v Hall [1972] 2 All ER 1009 at 1101. [12.175]

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impose an obligation to retain the money in a particular way, but this would require proof preferably evidenced by documents. In this case, the prosecution had not established that the clients expected the accused to deal with the property (the money) in a particular way, nor had the prosecution shown that the accused had assumed such an obligation. Although the accused’s conduct was scandalous, it could not be regarded as theft. By focusing the inquiry on the particular expectations of the clients when depositing the property, R v Hall skirted over whether the obligation to account should be confined to those arising under the civil law. Edmund-Davies LJ did allude to this issue indirectly. He noted that, in the present case, the issue as to whether the property was entrusted for and on account of another could be regarded as a question of fact for the jury. 270 In more complex cases, he conceded that the question of whether an obligation to account existed would be a “mixed question of law and fact”. 271 The legal basis for the obligation to account was further explored in R v Meech (1973). 272 McCord, a second-hand car dealer, owed the accused £40. McCord had obtained a cheque for £1,450 from a hire-purchase company by means of a forged document. McCord asked the accused, Meech, to cash the cheque, retain his £40 and return £1,410 to McCord. Before drawing against the sum, Meech became aware that the cheque was obtained by fraud. Meech then decided to double-cross McCord. He withdrew £1,410 and then, with the assistance of two accomplices, Parslow and Jolliffe, staged a fake robbery with a view to keeping the balance of the money. Meech reported the fake robbery to the police who got suspicious and investigated. The trio was charged and convicted of theft of £1,410. The Crown had argued, applying s 5(3), that at all material times there was an obligation on Meech to McCord to deal with the cheque in a particular way. The defence argued that the section did not apply—since the cheque had been obtained by a forged instrument, that illegality meant that there was no legal obligation on the accused enforceable at civil law to retain or deal with that property in a particular way. The defence pointed to the authorities and academic commentary that supported the contention that the “obligation” means “legal obligation”. While accepting this premise, the Court of Appeal nevertheless held that the submission was unsound in principle. 273 Roskill LJ, delivering the judgment of the court, held that the question must be viewed from the accused’s point of view and not the victim’s point of view. From Meech’s point of view, at the time he took the cheque he clearly considered that he was under an obligation to McCord to deal with the cheque in a specific way. The fact that under the civil law, the obligation to account would be unenforceable due to public policy or illegality was irrelevant. The existence of the obligation was determined at the time of the creation or acceptance of that obligation, and not at a subsequent stage where there may be legal obstacles to its performance. The accused raised a second argument: if he accepted that initially he was under an obligation to account for the proceeds to McCord, once he became aware that the cheque was obtained by a forged instrument, he was no longer under an obligation to account for the property or proceeds. The court rejected this argument too. The time at which to determine the obligation was the time of the assumption of the obligation, not the time of the performance of the obligation. In most cases, the question as to whether there is an obligation to account is a straight-forward matter determined by examining the intention of the person transferring the 270 271 272 273

In support of this approach, Edmund-Davies LJ cited R v Sheaf (1927) 134 LT 127, a case decided under the Larceny Act 1916 (UK). R v Hall [1972] 2 All ER 1009 at 1101 at 1012. On the malleability of the fact/law distinction, see Chapter 2 [2.190]. R v Meech [1973] 3 All ER 939. R v Meech [1973] 3 All ER 939 at 942.

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property. For example, in Wakeman v Farrar (1974), 274 the accused made a claim for a benefit from the Department of Health and Social Security. He was sent a cheque that never arrived. The accused informed the Department, which then asked him to sign a declaration that if the cheque subsequently arrived, he would return it to them. The money was then given to the accused over the counter. Later, the cheque arrived and the accused cashed it. He was charged with theft. The magistrates dismissed the charge on the ground that the property did not belong to the Department at the time it was cashed. The prosecution appealed and the Queen’s Bench Divisional Court reinstated the charges on the ground that the deeming provisions in s 5(3) of the Theft Act 1968 (UK) applied on these facts. By virtue of the signed declaration, the accused had been placed under a legal (not merely moral) obligation to deal with the cheque in a certain way. The Divisional Court also noted that the Department retained a proprietary interest in the cheque, even though it had been drawn in favour of the accused—this aspect of the ruling diverges from dicta in the House of Lords relating to the ownership of cheques in R v Preddy, though it is consistent with the High Court approach in Parsons v The Queen, discussed at [12.135]. Subsequent cases have established that the deeming section is confined to “legal obligations”, the precise scope of which is properly a matter for the courts. 275 It has also been firmly established that these legal obligations to retain and deal with property imposed on the accused are not necessarily identical to those arising under the civil law. 276 By treating this question of legal obligation as sui generis (in a category all of its own), the courts have attempted to prevent the complexities of the civil law unnecessarily intruding into the law of theft. The courts have remained mindful of the danger of judges usurping the fact-finder’s function, stressing that the question of whether the “obligation” (as judicially interpreted) has arisen on the particular facts is for the jury or magistrate. 277 However, in complex cases, as suggested by Edmund-Davis LJ in R v Hall, this issue should be regarded as a mixed question of law and fact. The Model Criminal Code Officers Committee (MCCOC), in its review of the law, recommended that the recipient of the property must be under a “legal obligation” to that person to retain and deal with the property in a particular way, though the MCCOC provided no further explanation or clarification of the meaning of “legal obligation”, or, in particular, the relevance of the civil law to this question. The simple formulation of “legal obligation” to account for property has been adopted in s 131.6(b) of the Criminal Code (Cth) and s 305(4) of the Criminal Code (ACT). By contrast, s 130 of the Criminal Law Consolidation Act 1935 (SA) defines “owner of property” as meaning a person who is under an “obligation” to deal with the property or proceeds in a particular way, presumably inviting argument on whether such an obligation is restricted to those recognised under the civil law. Property received by mistake [12.180] One of the most perplexing areas of the law of theft relates to property obtained by

mistake and the effect of mistake on whether the property “belongs to another”. As in cases of receiving property on account of another, the question whether or not property has passed to the accused before the act of appropriation involves some examination of civil law concepts and obligations. The common law of larceny lacked a clear consensus on whether property transferred by mistake vitiated the consent of the owner to that transaction. If it was held that 274 275 276 277

Wakeman v Farrar [1974] Criminal Law Review 136. R v Mainwaring (1981) 74 Cr App R 99 at 107 per Lawton LJ. See Widgery LCJ in R v Hayes (1976) 64 Cr App R 82 at 85. For an attempt to reconcile the seemingly contradictory dicta in this area, see R v Dubar [1994] 1 WLR 1484 at 1492 per McKinnon J. [12.180]

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legal ownership of the property had already passed to the accused, then there could be no larceny by any subsequent taking or conversion. To avoid this unsatisfactory outcome, the common law developed complex rules governing the effect of “fundamental mistakes” on consent and the intent to pass property. The English common law governing the effect of mistake, following two conflicting 19th century cases of R v Middleton 278 and R v Ashwell, 279 remained in a highly confused state. It seemed that both consent and intent in relation to transfers of property could be negated where the accused was aware of the mistake before or during the transaction, as well as in cases where the accused having received the property by mistake, subsequently became aware of the error. The difficulties in extrapolating a workable principle from the available authorities are apparent in R v Potisk (1973) 280 where the Supreme Court of South Australia simply declined to apply the English decisions. The uncertainty over the effect of mistake for larceny under the common law was finally resolved by the High Court decision of Ilich v The Queen (1987). 281 The fundamental question in mistake cases is whether the property that passed by mistake “belongs to another” at the critical moment of appropriation. As the MCCOC noted, “there are a number of routes to the conclusion that it does”! 282

Common law mistake doctrine [12.185] The principal route under the common law for resolving “mistake problems” in

relation to property offences was identified in Ilich v The Queen (1987). 283 In Ilich, the High Court approached the issue by examining the effect of the mistake on the transfer of possession and ownership of property. Though this case concerned the offence of stealing under the Criminal Code (WA), in the absence of legislative guidance on the effect of mistake, the High Court applied the common law. As such, the principles identified by the High Court have application to offences based on the common law concept of larceny, codified variants, and even “new” offences based on the Theft Act model in situations where the particular statutory deeming provisions in relation to mistake have no application. As we shall see below, the principles in Ilich have also been influential in developing new mistake provisions for the Model Criminal Code. In this case, the accused was a locum vet who worked for another vet, Brighton, while he was away. On his return, Brighton was upset with the way the accused had run the practice and sacked him. The accused said that Brighton gave him a packet of money and that he was told to sign for it without counting it. He did so and went home and found there was extra money in the packet. The accused claimed that he kept the extra money separately in his car. The police were called to investigate and the accused denied having any extra money. The excess money was found in his car. The accused claimed that he did not intend to take it, but was waiting for Brighton to call him so that he could have the upper hand. The High Court considered the effect of mistake in terms of its impact on the intention of the person passing the property. The accused had argued that the owner of the money, Brighton, notwithstanding his mistake, had intended the property in the envelope to pass to him. The accused argued that since the property had passed on receipt of his envelope, the money did not “belong to another” and therefore could not be stealing. (It should be noted that “lack of consent” to the taking or conversion was not a requirement of the statutory offence under the Criminal Code 278 279 280 281 282 283

(1873) LR 2 CCR 38. (1885) 16 QBD 190. (1973) 6 SASR 389. Ilich v The Queen (1987) 162 CLR 110. MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 61. Ilich v The Queen (1987) 162 CLR 110.

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(WA).) The sole issue in this case was whether, at the latter stage of fraudulent conversion, the property in the money had already passed to the accused. According to the majority of the High Court (Wilson and Dawson JJ, with whom Deane J agreed), there are only three kinds of mistake of a “sufficiently fundamental kind” that would negate the apparent consent and prevent property passing: • a mistake as to the identity of the transferee; or • a mistake as to the identity of the thing delivered; or • a mistake as to the quantity of the thing delivered, though there is an exception relating to money where property passes with the change of possession. 284 In cases where the error cannot be classified as “fundamental”, consent is not vitiated and thus possession and ownership passes in accordance with the apparent intention of the owner. In Ilich, the overpayment involved a mistake that was of a non-fundamental kind; it related to the quantity of money passed. As the property in the money passed with possession, there was neither a fraudulent taking nor subsequent conversion when the accused realised Brighton’s mistake.

Theft Act model mistake doctrine [12.190] The approach based on vitiation of consent in Ilich is not the only legal route

whereby a mistake may be held to prevent the passing of possession and ownership of property. As noted above, the Theft Act model and Model Criminal Code contain provisions that deem property not to belong to another where it is received by mistake. Mirroring the Theft Act 1968 (UK), s 73(10) of the Crimes Act 1958 (Vic) deals with the effect of property received by mistake in the following way: Where a person gets property by another’s mistake, and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to the extent of that obligation the property or proceeds shall be regarded (as against him [or her]) as belonging to the person entitled to restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds. 285

Unlike the common law approach in Ilich, the mistake does not vitiate or negate possession or ownership. However, it achieves the equivalent effect by deeming the property in the possession of the person who received it by mistake to belong to the person legally entitled to restoration. The section also provides that an intention not to make restoration amounts to an intention to permanently deprive the owner of it. The precise relationship between the statutory provisions and the common law remains unclear. The statutory provisions are clearly broader than the common law since they are not confined to mistakes of a “fundamental character” as defined by the High Court in Ilich. As we shall see below, the breadth of the statutory provisions obviate reliance on the principles in Ilich, though the common law may continue to have relevance to the interpretation of these statutory provisions and provide guidance in cases where the mistake does not fall squarely within the terms of statute. As we shall explore below, the MCCOC recommended that the Theft Act provisions should be remodelled (subject to minor qualifications) to incorporate the concept of “fundamental mistake” established by the High Court in Ilich. 286 284 285 286

Ilich v The Queen (1987) 162 CLR 110 at 126. See also s 305(5) of the Criminal Code (ACT). MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 65. [12.190]

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It has been established that the obligation to make restoration must be a legal obligation, not merely a moral or social one. In R v Gilks (1972), 287 the accused placed a number of bets with a bookmaker. When the accused collected his winnings, he was overpaid £106 by the bookmaker. The accused kept the money, although he was aware at the time that the bookmaker had made a mistake. The accused was convicted of theft of this sum. The question on appeal was whether, at the time of the appropriation, the property belonged to another. The accused argued that s 5(4) of the Theft Act 1968 (UK) dealing with mistake did not apply. This provision is equivalent to s 73(10) of the Crimes Act 1958 (Vic). The accused relied on a civil case which held that debts arising through gambling were not legally enforceable. Under the common law, gaming contracts are not legally enforceable; winnings are regarded simply as gifts of money. Although the money had passed under a mistake, the accused was not under a legal obligation to make restitution, and therefore the property could not be deemed to belong to the bookmaker. The English Court of Appeal held that s 5(4) only applied to cases where there was a legal obligation to make restoration. 288 The court rejected the view taken by the magistrate that the section includes obligations to restore property that are moral or social, as distinct from legal. Notwithstanding this restrictive interpretation of the phrase “an obligation to make restoration”, the Court of Appeal in Gilks nevertheless affirmed the conviction for theft. The accused was guilty of theft because the property had never passed to the accused. The Court of Appeal affirmed the rule in the earlier case of Middleton, discussed above, that property does not pass from the owner where the accused receives an overpayment of money if he or she is aware of the mistake at the time of its receipt. The principle in Gilks—that is, that the obligation to make restoration must be “legal”—was accepted by the MCCOC and included in cl 15.5(3) of the Model Criminal Code. 289 On this view, the Theft Act provisions on mistake only apply to cases of mutual mistakes; that is, where the recipient of the property is unaware of the mistake made by the transferee. This aspect of the law of mistake was not specifically addressed in Ilich and there remains some uncertainty over this question. It may be argued that the distinction between mutual and unilateral mistakes should have no legal bearing on whether property passes. This is consistent with dicta in Ilich that the characterisation of the mistake as “fundamental” determined whether or not property passed, not the knowledge or intention of the transferee. The MCCOC reviewed the complex rules governing mistake and concluded that the law should not distinguish between unilateral and mutual mistakes except in “special cases” of overpayment by cash, cheque or direct credit. In this situation, a distinction should be drawn between individuals who are aware of the overpayment at the time of the receipt of the property, and individuals who became aware of the overpayment at a later stage. In the former case, the MCCOC noted that “the absence of the inertia factor” made the situation sufficiently like the “theft by finding cases” to warrant criminalisation as theft. 290 In the latter case, the imposition of liability for theft would place an onerous duty on the person innocently receiving the property to rectify the mistake on pain of committing theft. In such circumstances, it was more appropriate that victims seek recovery of the overpayment through the civil law. Earlier in the Report, the MCCOC had noted that the criminal law should not be used to relieve businesses of their responsibility to establish and maintain reliable payment systems and that, in any event, the culpability was much reduced in cases where the accused “has had temptation thrust upon him or her”. 291 287 288 289 290 291

R v Gilks [1972] 1 WLR 1341. R v Gilks [1972] 1 WLR 1341 at 1345. MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 61. MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 67. MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 63.

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While it is clear that the obligation to make restoration is a “legal obligation”, there are doubts whether the duty to make restoration is identical and restricted to those imposed under the civil law. Another case where s 5(4) of the Theft Act 1968 (UK) was held to apply was Attorney-General’s Reference (No 1 of 1983). 292 The accused was a police officer and her salary was paid into her bank account by a direct debit system. She was wrongly credited £74.74 in her wages and overtime for a day on which she did not work. There was evidence that she became aware of the overpayment, but decided to do nothing about it and simply left the money in the account. She was charged with theft of £74.74. The trial judge directed an acquittal and the Attorney-General made the following reference to the Court of Appeal. The Attorney-General asked the Court of Appeal whether a person who was overpaid, who becomes aware of that mistake and then fails to repay that debt, is guilty of theft. The first question addressed by the court was what property the accused had appropriated. Lane LCJ, delivering the judgment of the court, rejected the prosecution view that the accused had appropriated £74.74. He held that it was not money, but rather the debt due to the accused from her own bank (a chose in action) that was the property subject of the charge. 293 As a logical consequence, the accused had appropriated a debt which, in fact, belonged to herself. The court further examined whether the deeming provision dealing with mistake could be applied to the facts in this case. The court considered that the obligation of “making restoration” of property or proceeds under s 5(4) of the Theft Act was the same as “making restitution”. The law of restitution provided a wide range of rights and remedies under civil law to prevent unjust enrichment. In cases of overpayment, the court turned to the following general principles of restitution: “Generally speaking the respondent [the accused], in these circumstances, is obliged to pay for a benefit received when the benefit has been given under a mistake on the part of the giver as to a material fact. The mistake must be as to a fundamental or essential fact and the payment must have been due to that fundamental or essential fact. The mistake here was that this police officer had been working on a day when she had been at home and not working at all.” 294

As a result of s 5(4), the property, which was obtained by a mistake, was deemed to belong to the person entitled to restoration: in this case, the Metropolitan Police. Under the section, the accused’s intention not to make restoration is regarded as an intention to permanently deprive. The preparedness of the Court of Appeal in mistake cases to use the civil law principles of restitution may be contrasted with its reticence in using the civil law to resolve the nature of the obligations in cases where property has been received from or on account of another: see [12.175]. The MCCOC expressed general concern over leaving the effect of mistake “at large” for judges to determine using civil law principles. The MCCOC concluded that “civil law distinctions—while appropriate to the context of determining civil recovery—are too obscure on the whole to define the boundaries of an offence as serious as theft”. 295 The MCCOC decided to define and limit the principles governing mistake to the existing law as stated by the High Court in Ilich, subject to some modifications. 296 These are, most significantly, an express requirement that there be a legal obligation to make restoration of the property or proceeds, and that an intention not to make restoration is deemed to be both an intention to permanently deprive and an appropriation of the property or proceeds without the consent of the person entitled to restoration. The relevant draft provisions in the Model Criminal Code were framed as follows: 292 293 294 295 296

Attorney-General’s Reference (No 1 of 1983) [1984] 3 WLR 686. Attorney-General’s Reference (No 1 of 1983) [1984] 3 WLR 686 at 690. Attorney-General’s Reference (No 1 of 1983) [1984] 3 WLR 686 at 691. MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 65. MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 50. [12.190]

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Clause 15.5 Belonging to another—interpretation … (3) If a person gets property by another’s fundamental mistake, and is under a legal obligation to make restoration (in whole or in part) of the property or its proceeds, then to the extent of that obligation the property or proceeds belongs (as against the person) to the person entitled to restoration. Accordingly, an intention not to make restoration is an intention to deprive the person so entitled of the property or proceeds, and an appropriation of the property or proceeds without the consent of the person entitled to restoration. (4) For the purpose of subsection (3), a fundamental mistake is: (a) a mistake about the identity of the person getting the property or a mistake as to the essential nature of the property; or (b) a mistake about the amount of any money, direct credit into an account, cheque or other negotiable instrument if the person getting the property is aware of the mistake at the time of getting the property.

These draft provisions of the Model Criminal Code were enacted in ss 131.7 of the Criminal Code (Cth) and 305(5) of the Criminal Code (ACT). These provisions are purportedly exhaustive. However, in determining the proper boundaries of the legal obligation to make restoration, it is unrealistic to suppose courts may exclude reliance on civil law concepts. These sections will undoubtedly continue to require judicial interpretation. The rule governing mistake as to the “essential nature of the property” is conceptually similar to the rules governing vitiation of consent in offences against the person and sexual offences. Chapter 11, [11.125], explores the complexity and continuing controversy surrounding the meaning and scope of mistakes as to the “nature and character of the act”. Like autonomy, the concept of property belonging to another is amenable to competing and contestable interpretations.

Regulatory perspectives Self-Service Operations, Drive-offs and Evasion of Payment [12.195] The requirement that the property must belong to another at the moment of the

dishonest appropriation presents difficulties in cases where it is intended that the customer takes possession of the goods or receives a service prior to purchase. In supermarkets and department stores, for example, the property taken by the customer from the shelves still “belongs to another” at the moment of the appropriation, since the shop-owner maintains both control and a proprietary interest in those goods. Different considerations apply in cases of fungible property, where possession and, indeed, all the proprietary interests in that property are intended to pass to the customer. Indeed, the only legal interest of the person who has passed the property is the contractual right to obtain payment from the customer. Common examples of this situation include property or services obtained in self-service situations such as petrol stations, restaurants, taxis and hotels. The obstacles to obtaining a conviction for theft in cases where the customer received possession of the property innocently but then dishonestly seeks to evade payment were revealed in the English case of R v Greenberg (1972). 297 The accused had filled up his car at a self-service petrol station intending to pay, but then later decided not to pay and drove off. He was convicted of theft and appealed. The Court of Appeal held that this was not a case of theft; the accused’s act of filling his car with petrol was not an “appropriation” 297

[1972] Criminal Law Review 331.

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since the rights in the petrol were assumed with the owner’s consent. Nor was the accused acting “dishonestly” at the time that he took possession of the petrol. The Theft Act 1968 (UK) defined “appropriation” as including the person who innocently comes by property without stealing it, and then later decides to keep it or deal with the property as the owner. While the subsequent act of keeping the petrol and driving off could constitute a dishonest appropriation, the Crown had to establish that the property belonged to another at that time. The obstacle to conviction when the accused drove away was that the petrol had already been transferred to his possession. The service station owner retained no identifiable proprietary interest in the petrol transferred, which had now mingled with the accused’s petrol in his tank. Moreover, none of the deeming provisions discussed above applied; the property had not been received on account of another or under a mistake. Since the petrol “belonged to the accused”, he could not be guilty of theft. It should also be noted that the accused could be guilty of obtaining property by deception only if, at the outset, he had intended to make off without payment. In such a case, the act of entering into a self-service station and filling up with petrol would constitute the operative deception: a false implied representation that he was willing to pay for the petrol received. If a person formed the intention to keep the property after receiving the petrol, as in Greenberg, he or she could not be guilty of obtaining property belonging to another by deception. The property was not initially obtained by a deception and, moreover, at the critical moment, the property did not belong to another. To plug these obvious gaps in the law, the Theft Act 1968 (UK) was amended in 1978, and an offence of “making off without payment” was enacted. 298 The MCCOC recommended the inclusion of a similar provision into the Model Criminal Code. This recommendation has been accepted by some, but not all jurisdictions. For example, s 322A of the Criminal Code (ACT) provides: Section 322A Making off without payment (1) A person commits an offence if— (a) the person knows he or she is required or expected to make immediate payment for goods or services supplied by someone else and; (b) the person dishonestly makes off— (i) without having paid the amount owing; and (ii) with intent to avoid payment of the amount owing. Maximum penalty: 200 penalty units, imprisonment for 2 years or both. (2) This section does not apply in relation to a supply of goods or services that is contrary to law. (3) In this section: Immediate payment includes payment when collecting goods in relation to which a service has been supplied. 299

Similar provisions exist in South Australia where the legislature enacted supplementary property offences of “dishonest interference with merchandise” and “making off without payment”, contrary to ss 143 and 144 of the Criminal Law Consolidation Act 1935 (SA) respectively. Under s 38A of the Police Offences Act 1935 (Tas) “making off without payment” is a summary offence, providing penalties for those who know that “on-thespot” payment is required, but dishonestly make off without paying. There are no 298 299

Theft Act 1973 (UK), s 3. See Model Criminal Code: cl 16.6, discussed in MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) pp 99–101. [12.195]

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equivalent making-off provisions in Victoria, though a recent inquiry is currently examining the need for reform, including whether the police should have option to issue an infringement notice in cases of fuel drive-offs. 300 The critical issue remains, whichever offence or mode of enforcement is applied, whether the defendant is acting dishonestly at the relevant time. 301 Data reported in the Victorian inquiry revealed that fuel drive-offs in Australia were a relatively common, low value, form of fraud, with an average cost of $62.10 per incident. Due to difficulties in charging theft in such cases, the inquiry noted that Victoria Police had issued a Police Commissioner’s Instruction in 2013, directing that fuel drive-offs were to considered civil in nature, and should only be investigated where there is reliable and credible evidence to establish a prima facie case. 302 Establishing the fault elements of the “making off without payment” offence will be challenging in most drive-off cases: the prosecution must prove (a) knowledge that immediate payment is due (which is not usually problematic) and (b) dishonesty. Dishonesty bears the same meaning (and, therefore, uncertainties) as for the basic offence of theft, and the case law, discussed above, will be relevant to the determination of this element of the offence. There has been only one appellate decision examining the meaning of the term “intent to avoid the amount due”. In R v Allen, 303 the accused stayed at a hotel for 10 days and left without paying the bill of £1,286. He telephoned two days later and said that he was having financial difficulties, but promised to return within two days to collect his belongings and to leave his Australian passport as security. Upon his return, he was arrested. The accused was convicted of making off without payment under s 3 of the Theft Act 1978 (UK), discussed above. The appeal to the House of Lords considered whether “intent to avoid payment” is satisfied by an intent to avoid payment at the place when payment was expected. The accused argued that the prosecution had to prove an intent permanently to avoid payment, and not just an intent to avoid payment when it was expected. The House of Lords agreed with the accused’s analysis and allowed his appeal. Their Lordships referred to the Criminal Law Revision Committee (CLRC) report that had led to the section and noted that the Committee took the view that the “making off” offence should only cover individuals who leave without paying and never intending to pay. “Making off without payment” therefore requires proof that the accused had formed an intention to avoid payment altogether and excludes the customer who intends merely to delay or defer payment. As the MCCOC observed: “The need to prove intent to avoid payment altogether parallels the requirement of intent to permanently deprive in theft”. 304

300

301

302

303 304

Law Reform, Road and Community Safety Committee, Inquiry into fuel drive-offs (Parliament of Victoria, March 2016), http://www.parliament.vic.gov.au/images/LRRCSC_Inquiry_into_Fuel_Drive-Offs.pdf (cited 14 November 2016). In relation to the ACT experience, the Australian Federal Police (AFP) noted it was “investigating proposals for [the ACT] government to amend the current ‘making off without payment – minor offence’ so that it attracts strict liability (for goods or services worth less than $500) and may therefore be included within the infringements system”. Law Reform, Road and Community Safety Committee, Inquiry into fuel drive-offs (Parliament of Victoria, March 2016) p 64, http://www.parliament.vic.gov.au/images/LRRCSC_Inquiry_into_ Fuel_Drive-Offs.pdf (cited 14 November 2016). Law Reform, Road and Community Safety Committee, Inquiry into fuel drive-offs (Parliament of Victoria, March 2016) p 47, http://www.parliament.vic.gov.au/images/LRRCSC_Inquiry_into_Fuel_Drive-Offs.pdf (cited 14 November 2016). [1985] 1 AC 1029. MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 101.

822 [12.195]

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Intention to Permanently Deprive [12.200] The Theft Act model, in addition to dishonesty, requires an intention to permanently

deprive the other person of the property. Drawn directly from the common law, this requirement draws a distinction between theft and other forms of dishonest dealing in property, such as unauthorised borrowing. As noted at [12.95], this requirement has presented obstacles to conviction for larceny and theft in relation to the taking of motor vehicles. Removing a vehicle without the consent of the owner could not be larceny or theft because the “joyrider” lacked an intention to deprive permanently the owner of the vehicle. To deal with this type of “dishonest borrowing” most jurisdictions have enacted statutory offences prohibiting the unauthorised use of a motor vehicle or other conveyance. In Victoria and Western Australia, rather than enact a special offence, the basic offence of theft has dispensed with the requirement of an intention to permanently deprive in cases involving vehicles. 305 The Theft Act model has addressed the problem by expanding the definition of “intention to permanently deprive” to include an intention to borrow or lend property, but only in circumstances where it is equivalent to an outright taking or disposal. The MCCOC examined whether this fault element was redundant in light of the role played by dishonesty. 306 In favour of abolition, it could be argued that the intention to permanently deprive had grown less significant: the requirement had been abolished in specific situations (as in the case of motor vehicle theft) and the deeming provisions in the Theft Act had stretched the concept to encompass many forms of dishonest borrowing. In favour of retention, it could be argued that the offence of theft should be restricted to permanent deprivations; a person who intends to return the property should not be regarded as a thief. Also, that the deeming provisions relating to intention to permanently deprive in the Theft Act were simply “fair extensions of the concept”. While the dishonest borrowing of another’s property could clearly interfere with the enjoyment of rights of ownership and possession, the civil remedies available in tort provided more than adequate remedies for such temporary deprivations of property. Reflecting the majority of submissions, the MCCOC recommended the retention of the concept. The reforms recommended by the MCCOC are considered below. Rather than deeming these intentions to temporarily deprive to be with the intention to permanently deprive, the South Australian Theft Act model in the Criminal Law Consolidation Act 1935 (SA) sensibly broadens the intention requirement to include two alternate fault elements. Section 134 Theft (and receiving) (1) A person is guilty of theft if the person deals with property— … (c) intending— (i) to deprive the owner permanently of the property; or (ii) to make a serious encroachment on the owner’s proprietary rights. … (2) A person intends to make a serious encroachment on an owner’s proprietary rights if the person intends— (a) to treat the property as his or her own to dispose of regardless of the owner’s rights; or (b) to deal with the property in a way that creates a substantial risk (of which the person is aware)— (i) that the owner will not get it back; or (ii) that, when the owner gets it back, its value will be substantially impaired.

305 306

Crimes Act 1958 (Vic), s 73(14); Criminal Code (WA), s 371A. MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 73. [12.200]

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The alternate form of intention under sub-section 134(1)(c)(ii) combines with subsection 134(2) to extend the fault element to include recklessness based on the creation of a substantial risk of which the defendant is aware. Intention to dispose of property regardless of the rights of the other person [12.205] Mirroring the approach in the Theft Act 1968 (UK), s 73 of the Crimes Act 1958

(Vic) provides: (12) A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his [or her] intention is to treat the thing as his [or her] own to dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal. (13) Without prejudice to the generality of sub-section (12) where a person, having possession or control (lawfully or not) of property belonging to another, parts with the property under a condition as to its return which he [or she] may not be able to perform, this (if done for purposes of his [or her] own and without the other’s authority) amounts to treating the property as his [or her] own to dispose of regardless of the other’s rights.

The proposed definition of this intention contained in the Model Criminal Code largely follows these provisions. 307 With some changes, this provision has been enacted in s 131.10(2) of the Criminal Code (Cth) and s 306(2) of the Criminal Code (ACT). The above definition requires proof of an actual intention on the part of the accused to permanently deprive the other person of the property. This fault element is based on the subjective state of mind of the accused, and arguably is restricted to intention in the narrower sense of purpose. The uncertain and variable meaning of intention in the criminal law, including the controversy over “oblique intent”, has been examined in Chapter 3, [3.185]. There is no need to rely on the common law to extend the scope of intention since the legislation expressly expands the concept to include an intention to treat the property as one’s own to dispose of regardless of the rights of the other person. Although an accused may lack an intention to permanently deprive, the section deems that intention to exist where he or she has an intention to treat the property as his or her own to dispose of regardless of the rights of the other person. Thus, destroying the property, if it meets this standard, may satisfy this fault element. In the Queensland decision of R v Stevens (2014) 308 the accused purchased a bobcat from an intermediary only to later discover that it was stolen. Evidence at trial indicated that although the accused returned the bobcat and received a refund, he did so knowing that the intermediary had no interest in returning the bobcat to its owner. He was convicted of stealing by fraudulent conversion. The Queensland Court of Appeal, affirming the conviction, held, at [12], that while: “the appellant was motivated by the desire to get his money back… [i]t [did] not follow, however, that it was not open for the jury to conclude beyond reasonable doubt that [he] had an intention to permanently deprive the owner of its right in the bobcat.”

As explored at [12.80], Muir JA was at pains to distinguish between motive and intention. It has been argued that the expanded definition of “intention to permanently deprive” imports the notion of negligence or inadvertence into the law of theft. As the MCCOC 307 308

See Clause 15.6(1), (2) discussed in MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) pp 70–75. R v Stevens [2014] QCA 286.

824

[12.205]

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observed, an intention to dispose of property “regardless” of the rights of the other person should not be understood as an objective standard of fault based on negligence. Rather, it involves a sort of recklessness about permanent deprivations and is consistent with the general principles of criminal responsibility in Ch 2 of the Model Criminal Code, which makes recklessness the basic fault element. Regrettably, the type of recklessness implicit within this expanded definition of intention is not specified either in the existing legislation or the provisions proposed for the Model Criminal Code. Since the concept of recklessness, like intention, bears different meanings for different offences, there is clearly a need to clarify whether this species of recklessness is restricted to actual foresight of the probability of deprivation, or extends, more broadly, to culpable states of inadvertence. This meaning of recklessness has caused interminable controversy in the United Kingdom, though the House of Lords has committed English law firmly in favour of subjective recklessness: see Chapter 3, [3.220]. As noted above, the South Australian theft provisions expressly incorporate within “intention to permanently deprive” an extended fault element based on subjective recklessness – this is expressed as an intention to make a “serious encroachment on the owner’s proprietary rights”, which is defined as an intention to deal with the property in a way that creates a substantial risk (of which the person is aware): (1)

that the owner will not get it back; or

(2)

that, when the owner gets it back, its value will be substantially impaired.

It has also been suggested that deeming sections relating to borrowing and lending, and parting with property on conditions as to its return that the accused may not be able to perform, add little to the concept of permanent deprivation. The deeming provisions are not exhaustive and simply extend or clarify the meaning of “intention to permanently deprive”. As the MCCOC noted, these provisions are simply “examples” of disposing of property regardless of the other person’s rights. 309 The sections do not limit or otherwise restrict the general definition contained in that section. This point has been made by Edmund-Davies LJ in R v Warner, 310 and is now reflected expressly in s 306(4) of the Criminal Code (ACT). The scope of the definition and the effect of the sections above were considered by the English Court of Appeal in R v Lloyd (1985). 311 The accused, a cinema projectionist, and a number of others were charged and convicted of conspiracy to steal. The charge related to the projectionist’s removal of feature films and lending them to two other men for the purpose of making master copies from which “pirate” video tapes were produced. The films were removed for a few hours on each occasion, and then returned before their absence was noticed. The principal question on appeal was whether the accused had an intention to permanently deprive the other person of the feature films. Lane LCJ, delivering the judgment of the court, characterised the above section dealing with borrowing or lending as “abstruse”. In his view, the section must mean: “if nothing else, that there are circumstances in which a defendant may be deemed to have the intention permanently to deprive, even though he [or she] may intend the owner eventually to get back the object which has been taken.” 312

309 310 311 312

MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 75. (1970) 55 Cr App R 93 at 96–97. R v Lloyd [1985] QB 829. R v Lloyd [1985] QB 829 at 834. [12.205]

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Lane LCJ held that the deeming provisions should only be invoked in “exceptional cases” where the accused did not have an intention to permanently deprive. 313 In the majority of cases, the question of intent could be resolved without resort to these sections. In Lloyd, the sections were relevant since the accused had only an intention to deprive the owners of the films temporarily. The court considered whether the deeming provision applied; specifically, whether the borrowing in this case was for “a period or in such circumstances as to make it equivalent to an outright taking or disposal”. Lane LCJ noted that an intention to borrow is never enough for theft unless the intention is to return the property in such a changed state that it can truly be said that all its goodness or virtue has gone. 314 He gave the example of the nineteenth century decision of R v Beecham, 315 where the accused had appropriated a railway ticket intending that it should be returned to the railway company at the end of the journey. In this case, the accused was rightly convicted of larceny. Applied to the facts in Lloyd, it was clear that the feature films did not fall into this category as “the goodness, the virtue, the practical value of the films to the owners has not gone out of the articles”. 316 The films could still be shown to audiences and were not diminished in value. Although the copyright swindle clearly caused damage to the owner’s commercial interests, the borrowing was not for a period that made it equivalent to an outright taking. There was, in the words of Lane LCJ, “still virtue in the film”. 317 The remedies in this case were limited to those available in intellectual property law for infringement of copyright, rather than the law of theft.

Intellectual property perspectives Piracy and Theft of Copyright [12.210] In R v Lloyd,

318

considered above, the defence submitted that the charges against the accused related to the appropriation of the “value” or “virtue” of the feature film. The defence argued that this “value” could not properly be regarded as “property” for the purpose of the Theft Act 1968 (UK). Since the appeal was allowed on other grounds, the Court of Appeal did not address this submission. The defence had specifically relied on Rank Film Distributors Ltd v Video Information Centre, 319 where several members of the House of Lords had expressed the view that copyright could not be regarded as “property” for the purpose of theft. These comments were made in the context of an appeal reviewing an order obtained by Rank Films to search for and seize any infringing “pirate” copies of films and any related documents in the possession of the respondent. The Court of Appeal had quashed the orders on the grounds that it would violate the respondent’s privilege against self-incrimination. The House of Lords, agreeing with the Court of Appeal, dismissed the appeal on the ground that a charge of conspiracy to defraud was a real possibility in this case. In the course of the judgment, the court considered, strictly obiter, whether the respondent might also be guilty of theft of 313 314 315 316 317 318 319

R v Lloyd [1985] QB 829 at 835. R v Lloyd [1985] QB 829 at 836. (1851) 5 Cox CC 181. R v Lloyd [1985] QB 829 at 837. R v Lloyd [1985] QB 829 at 837. [1985] QB 829. [1981] 2 All ER 76.

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[12.210]

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copyright. Lord Wilberforce took the view that the risk of prosecution was remote since “[i]Infringement of copyright is not theft”, and Lord Fraser noted that under the Theft Act 1968 (UK) property is “defined in a way that does not appear to include copyright”. The issue of theft of copyright has also been considered by the Supreme Court of Canada in Stewart v The Queen. 320 This case considered whether the act of copying confidential information could be theft. Although copying information may be an infringement of the rights of the copyright owner, it was not theft because the owner would never suffer any deprivation of the copyright: “Whether or not copyright is property, it cannot be the object of theft”. 321 In Australia, appropriation does not require actual deprivation of property; copying material may be properly regarded as usurping, interfering or dealing with one of the rights of the owner. Even if video or software “pirating” was held to constitute a dishonest appropriation (or dealing in South Australia), there remains doubt as to whether the person pirating films or software has an intention to permanently deprive the owner of that copyright. As the Model Criminal Code Officers Committee (MCCOC) concluded: Mere breach of a copyright or use of a trade secret might involve breach of the copyright or the trade secret but would not be theft (assuming a trade secret amounts to intangible property) because there is no intent to permanently deprive the owner … MCCOC has decided not to deal with this issue in the context of theft. 322

The uncertainty over the application of theft to copyright may be avoided by resorting to the offences contained in Div 5 of the Copyright Act 1968 (Cth). These offences prohibit a wide range of dealing in infringing copies, which cover the manufacture, sale, hire, exhibiting, importing, distributing and even possessing an infringing copy for commercial purposes. 323 It is also an offence to make or possess a device that is used for making infringing copies of the work. 324 These offences are directed to those who profit from pirating, rather than consumers who purchase infringing copies. Although copyright offences, particularly the aggravated offences, carry significant penalties (including a maximum of five years of imprisonment), most of these offences are summary. There are a number of indictable offences dealing with commercial pirating—these offences apply the default provisions governing the fault elements in the Criminal Code (Cth), while applying intention in relation to the “conduct” element of the offence and recklessness as to the “circumstance or a result” elements: see Chapter 3, [3.245]. For example, s 132AD of the Copyright Act 1968 (Cth) makes three distinct offences: an indictable offence, supplemented by two summary offences, with graded lesser penalties, which are satisfied by negligence or strict liability. These offences also apply to corporations, which apply the Criminal Code (Cth) provisions dealing with corporate liability, discussed in Chapter 3 at [3.30]ff: Section 132AD Making infringing copy commercially Indictable offence (1) A person commits an offence if: (a) the person makes an article, with the intention of: (i) selling it; or

320 321 322 323 324

(1988) 41 CCC (3d) 481; see [12.145]. (1988) 41 CCC (3d) 481 at 495, per Lamer J. Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 47. Sections 132AD – AJ. Section 132AL. [12.210]

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(ii) letting it for hire; or (iii) obtaining a commercial advantage or profit; and (b) the article is an infringing copy of a work or other subject-matter; and (c) copyright subsists in the work or other subject-matter when the article is made. (2) An offence against subsection (1) is punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both. … Summary offence (3) A person commits an offence if: (a) the person makes an article, with the intention of: (i) selling it; or (ii) letting it for hire; or (iii) obtaining a commercial advantage or profit; and (b) the article is an infringing copy of a work or other subject-matter and the person is negligent as to that fact; and (c) copyright subsists in the work or other subject-matter when the article is made and the person is negligent as to that fact. Penalty: 120 penalty units or imprisonment for 2 years, or both. (4) An offence against subsection (3) is a summary offence, despite section 4G of the Crimes Act 1914. Strict liability offence (5) A person commits an offence if: (a) the person makes an article in preparation for, or in the course of: (i) selling it; or (ii) letting it for hire; or (iii) obtaining a commercial advantage or profit; and (b) the article is an infringing copy of a work or other subject-matter; and (c) copyright subsists in the work or other subject-matter when the article is made. Penalty: 60 penalty units. (6) Subsection (5) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

There is a clear trend in Australia, following pressure from the United States, to enact specific copyright infringement offences, with toughened penalties. 325 But, as Alex Steel noted, although there is a “parliamentary intention to increase the use of criminal law in protecting copyright, there is a clear choice to do so with specific offences that are said to take account of competing interests, and that resort to general theft laws is not intended to be a part of this legislative scheme.” 326

325

326

828

For a review of the legal, evidential and policy issues around copyright enforcement, including some useful case studies, see G Urbas, “Copyright Offences” (2005) No 3 Australian High Tech Crime Brief and “CrossNational Investigation and Prosecution of Intellectual Property Crimes: The Example of “Operation Buccaneer”” (2007) 46 Crime, Law and Social Change 207. A Steel, “Problematic and Unnecessary? Issues with the Use of the Theft Offence to Protect Intangible Property” (2008) 30(4) Sydney Law Review 575 at 601. [12.210]

Property Offences

Ch 12

Deemed intention: pawning, pledging and borrowing another’s property [12.215] Under the Theft Act model, a person who, having possession or control of property

whether innocently or not, parts with it under a condition as to its return which he or she may not be able to perform, is deemed to have disposed of that property regardless of the rights of the other person. This provision has been replicated in the Model Criminal Code, and adopted in s 131.10(3) of the Criminal Code (Cth) and s 306 of the Criminal Code (ACT). It was included to resolve the uncertainty over whether the accused who dishonestly pledged or pawned property belonging to another would possess the intent to permanently deprive at the relevant time. An example would be the person who took jewellery from the victim (whether innocently or not) and pawned it in exchange for cash with an intention to redeem and return the jewellery to the owner. In this case, there is no intention, strictly speaking, to permanently deprive the owner of the property. However, the section provides that the parting with the property under a condition that may not be performed (that is, the future redemption of the pawned property) is deemed to be a disposal regardless of the rights of the other. By virtue of this provision, an intention to part with the property may be equated with an intention to permanently deprive. The requirement of intention to permanently deprive has also presented difficulties in cases involving the appropriation of fungible property; namely, goods which are interchangeable, such as money, petrol or milk. The person appropriating this type of property may intend to replace the goods taken with equivalent, though non-identical, property. Although this conduct is popularly regarded as “borrowing”, in legal terms it amounts to an appropriation (taking or conversion) with an intention to permanently deprive the owner of those particular goods. This feature of appropriation of fungibles is apparent in the English decision of R v Cockburn (1968), 327 where the accused took £50 from his employer’s till with an intention to replace it with equivalent notes or a cheque. The English Court of Appeal, upholding the conviction for larceny, held that the accused had an intention to permanently deprive the owner of those notes taken, notwithstanding his intention to replace it with equivalent sums. The court held that the accused’s intention to repay the money, while constituting good mitigation of sentence, did not preclude a conviction of larceny. A conditional intention to deprive [12.220] The term “conditional intent” is used to describe the state of mind of a person who

intends to deprive the victim of property only in certain circumstances. The problems presented for the law of theft in such cases were revealed in the English decision of R v Easom (1971). 328 In this case, the accused rifled through a woman’s handbag in a darkened cinema. The woman was, in fact, an undercover police constable. The bag was placed at her feet and attached to her wrist by a piece of string. The accused examined the contents of the bag and, finding nothing of value to take, replaced it. The accused was arrested, charged and eventually convicted of theft of the handbag and its contents. In this case, the English Court of Appeal held that this could not constitute theft since the appropriation was not accompanied by an intention to permanently deprive. Edmund-Davies LJ, delivering the judgment of the court, held as follows: “In every case of theft the appropriation must be accompanied by the intention of permanently depriving the owner of his [or her] property. What may be loosely described as a ‘conditional’ appropriation will not do. If the appropriator has it in mind merely to deprive the owner of such of his

327 328

R v Cockburn [1968] 1 All ER 466. R v Easom [1971] 2 QB 315. [12.220]

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[or her] property as, on examination, proves worth taking and then, finding that the booty is valueless to the appropriator, leaves it ready to hand to be repossessed by the owner, the appropriator has not stolen.” 329

If the accused was guilty of a crime, the appropriate charge was attempted theft of unspecified items. Yet attempting to steal property that does not in fact exist raises the problem of impossibility. The common law relating to impossible attempts and statutory modifications has been considered in Chapter 8 at [8.205]. In jurisdictions where physical or factual impossibility is no longer a bar to a conviction, the accused in Easom could be convicted of attempted theft. In this case, the police had set a trap for the accused. Entrapment is not a defence in England or Australia. 330 Consequently, police methods of investigation have no bearing on the question of guilt or innocence of the accused. While not a substantive defence, illegal or improper conduct by the police may provide a basis for excluding evidence and/or granting a stay of proceedings. As we shall explore in relation to drug investigation in Chapter 14, some forms of undercover policing and proactive investigation pose a serious threat to the rule of law and the right to a fair trial. A distinction is emerging, fostered by international human rights jurisprudence, between, on the one hand, actively inciting an offence, which infringes the right to a fair trial, and, on the other hand, passively creating an opportunity to commit that offence, which does not. The strict approach to “intention to permanently deprive” adopted by the court in Easom may have been, in part, a reaction to the covert methods of policing. As entrapment was not raised at trial, there is uncertainty as to whether the accused was a suspected thief specifically targeted by the police or an ordinary citizen being subject to “random virtue-testing” by the police.

Here’s your junk back [12.225] R v Easom did not escape academic criticism. Glanville Williams regarded the decision as a “Rogues’ Charter”, providing a defence to thieves who intend to return goods to the owner if they are insufficiently valuable. He suggested that the rule would apply even in cases where the person drove off with property and, upon subsequently finding that they were valueless, dumped them at the police station. 331

Perhaps mindful of the criticisms of Easom as a “Rogues’ Charter”, a more restrictive approach to the scope of “intention to permanently deprive” was adopted by the Supreme Court of Victoria in Sharp v McCormick (1986). 332 The accused took a starter coil from his employer, which he intended to fit to his car. He claimed that if the coil did not fit, he intended to return it. The magistrate held, applying Easom, that there was no case to answer because the accused only had a “conditional intention”. The prosecution sought an order to reinstate the charge. Murray J held that, in the present case, it was unnecessary to decide whether Easom was correctly decided since it was “plainly distinguishable in a critical respect”. 333 He 329 330

332 333

R v Easom [1971] 2 QB 315 at 319. See S Bronitt, “Entrapment” in P Cane and J Conaghan (eds), The New Oxford Companion to Law (Oxford: OUP, 2008) p 381. G Williams, “Three Rogues’ Charters” [1980] Criminal Law Review 263 at 264. See also L Koffman, “Conditional Intention to Steal” [1980] Criminal Law Review 463; G Williams, “Temporary Appropriation Should Be Theft” [1981] Criminal Law Review 129. Sharp v McCormick [1986] VR 869. Sharp v McCormick [1986] VR 869 at 871.

830

[12.225]

331

Property Offences

Ch 12

pointed out that in Easom, the accused never intended to steal the handbag and it was this fact that made it difficult for the Court of Appeal to sustain a conviction for theft of the handbag. In this case, by contrast, the accused took the starter coil and was caught in the process of taking it home to see if it fitted his car when he was apprehended. The intent is determined by looking at the state of mind of the accused at the time of the appropriation of the property. Murray J held that the accused had the necessary intent for theft if, at the time of appropriation, he intended to keep the coil unless he later decided to return it. If the mental state is posed the other way as an intention to return the coil unless he later decided to keep it, this could fall within the expanded definition contained in s 73(12): “His reservation of the probability or possibility of keeping it would amount to an intention to treat the coil as his own to dispose of regardless of the owner’s rights”. 334 On these facts, at the moment of the appropriation, the accused did not intend to return the property unless it proved to be not suitable. His subsequent intent to return the property was simply a matter of choice on his part, and there was clearly evidence on these facts that he intended to dispose of the property regardless of the rights of the owner.

Related Offences: Robbery, Burglary and Receiving [12.230] There are a wide range of related offences, many of which carry harsher penalties

than the basic offence of theft or larceny. As discussed above, those jurisdictions that base their laws on the common law of larceny have enacted special offences with increased penalties depending on factors such as the type of property stolen or the relationship of the accused to the victim. The Theft Act model largely avoids this complexity, though these factors may be taken into account in sentencing. In this section, we examine the related offences of robbery, burglary and receiving. Robbery [12.235] At common law, robbery is defined as taking property by force or threat of force. 335

As a form of aggravated larceny, the offence is more severely punishable than simple larceny. 336 The offence of robbery under the Theft Act model does not significantly alter the structure of the common law offence. Section 75(1) of the Crimes Act 1958 (Vic) provides: (1)

A person is guilty of robbery if he [or she] steals, and immediately before or at the time of doing so, and in order to do so, he [or she] uses force on any person or puts or seeks to put any person in fear that he [or she] or another person will be then and there subjected to force.

(2)

A person guilty of robbery, or of an assault with intent to rob, is guilty of an indictable offence and liable to level 4 imprisonment (15 years maximum). 337 Although not clear from its structure, the Victorian section creates two offences of robbery and assault with intent to rob. There are further aggravated offences of armed robbery, which apply where the person committing the robbery also has possession of a firearm, imitation firearm, offensive weapon, explosive or imitation explosive. 338 For the purpose of these offences, and the related offences of armed robbery, stealing is defined by reference to the 334 335 336 337 338

Sharp v McCormick [1986] VR 869 at 872. The Code States have enacted offences in similar terms to the common law: Criminal Code (NT), s 211; Criminal Code (Qld), s 409; Criminal Code (Tas), s 240; Criminal Code (WA), s 392. See Crimes Act 1900 (NSW), ss 94, 95. See also s 132.2 of the Criminal Code (Cth), s 309 (robbery) of the Criminal Code (ACT) and s 137(1) of the Criminal Law Consolidation Act 1935 (SA). Criminal Code (Cth), s 132.3; Criminal Code (ACT), s 310; Crimes Act 1900 (NSW), ss 95 – 98; Criminal Law Consolidation Act 1935 (SA), s 137(2); Crimes Act 1958 (Vic), s 75A. [12.235]

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offence of theft, the elements of which have been discussed above. The requirements of taking and carrying away in larceny have been replaced by appropriation; this avoids the difficulties faced when the accused interfered with property but did not actually physically remove it. The key element of the offence of robbery is the application of force or threatened or apprehended application. The force must be used to steal, but it is not necessary that it is directed at the victim of the theft. A threat to hurt another person unless property is handed over would suffice. The ingredients of assault, which are clearly relevant to the definition of robbery and assault with intent to rob, were explored in Chapter 10. Burglary and related offences [12.240] The Theft Act model avoided the complex body of law that developed around the

common law felony of burglary which was defined in terms of “break and enter”. At common law, the offence did not apply to “break-ins” committed during the daytime, which were punishable by the lesser misdemeanour of house-breaking. These offences are now defined by statute in all jurisdictions, though in South Australia the offence is framed as one of serious criminal trespass. 339 The offences of burglary enacted in Victoria mirror the reforms to burglary enacted by the Theft Act 1968 (UK). Section 76 of the Crimes Act 1958 (Vic) defines the offence of burglary as follows: (1) A person is guilty of burglary if he [or she] enters any building or part of a building as a trespasser with intent— (a) to steal anything in the building or part in question; or (b) to commit an offence— (i) involving an assault to a person in the building or part in question; or (ii) involving any damage to the building or to property in the building or part in question— which is punishable with imprisonment for a term of five years or more. (2) References in sub-section (1) to a building shall apply also to an inhabited vehicle or vessel, and shall apply to any such vehicle or vessel at times when the person having a habitation in it is not there as well as at times when he is. (3) A person guilty of burglary is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).

The offence of burglary recommended by the MCCOC is similarly based on trespass rather than breaking and entering. Although burglary is popularly understood as a species of aggravated theft, the offence does not require proof of theft or even an attempt. At common law, the offence of breaking and entering merely required proof of an intent to commit any felony. The offence of burglary in Victoria, following the Theft Act 1968 (UK), is limited to trespass with an intent to commit an unlawful assault or criminal damage. The MCCOC proposed that the offence of burglary should be limited to trespassers who enter or remain in any building with the intent to commit (1) theft, or (2) an offence punishable by five years’ imprisonment and that involves harm to person or damage to property. 340 The basic offence is punishable by 12 years’ imprisonment. Following the structure of existing burglary offences, the MCCOC also recommended the inclusion of an offence of aggravated burglary, which would apply where burglary is committed in the company of others or with an offensive 339

340

See Criminal Code (ACT), s 311; Crimes Act 1900 (NSW), s 109(1); Criminal Code (NT), s 213; Criminal Code (Qld), s 419; Criminal Law Consolidation Act 1935 (SA), s 168; Criminal Code (Tas), s 244; Crimes Act 1958 (Vic), s 76; Criminal Code (WA), s 401. Model Criminal Code, cl 16.3.

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weapon, punishable by 15 years of imprisonment. This graduated offence structure has been implemented in sections 132.4 and 132.5 of the Criminal Code (Cth), and ss 311 and 312 of the Criminal Code (ACT). A similar scheme has been recently enacted in Western Australia. The Criminal Law Amendment (Home Burglary and Other Offences) Act 2015 (WA) introduced enhanced penalties for certain types of aggravated burglary. 341 The key element of the modern offence of burglary is a trespass to property, a concept which is determined by the civil law. Whether or not a person’s presence constitutes a trespass will be determined by examining the scope of the licence granted by the owner to enter and remain on the premises. Although this element is straightforward in most cases, the High Court decision of Barker v The Queen (1983) 342 reveals the potential complexities surrounding trespass in the context of burglary offences. The accused had been convicted of burglary contrary to s 76 of the Crimes Act 1958 (Vic). He had been given the key of a neighbour’s house for the purpose of caring for the property while they were away on holiday. He used the key to enter the house and steal property while the owners were away. The accused was charged with and convicted of burglary. The question on appeal turned on the scope of the accused’s licence or authority to enter the premises. The majority held that the accused entered the property beyond the purpose of the licence granted to him by the owners, therefore committing a trespass and, therefore, burglary. Brennan and Deane JJ distinguished the case where the owners had placed no restrictions on entry, either expressly or by necessary implication. In such cases, it would not be appropriate to limit the licence or authority on the grounds that the owner would have objected to entry if they had known that it was for an illegal purpose. They concluded: “The answer to the question [of who is a trespasser] is not complicated by artificial notions that permission must be qualified by reference to authorised purpose or by artificial doctrines of relation back … If the permission was not subject to any express or implied limitation which excluded the entry from its scope, the entry was not as a trespasser. If permission was subject to an actual express or implied limitation which excluded the actual entry, the entry was as a trespasser.” 343

This refinement avoids the possibility that shoplifters who enter shop premises for the purpose of stealing would be rendered trespassers, and therefore guilty of burglary rather than merely theft. By contrast to the majority, Murphy J expressed concern that this approach to trespass was too complicated and could convert pilfering cleaners, employees and shoplifters from thieves into burglars depending on the terms (express or implied) of the licence to enter the premises. This dissenting view has found favour with the Model Criminal Code Officers Committee (MCCOC). In a case like Barker, the MCCOC reasoned that the rights to restrict entry had not been violated since the owner had agreed to the accused being on the premises, though not for the purpose of theft. Although not guilty of burglary, the accused may be liable for other offences, such as theft or criminal damage or assault. 344 To avoid the complexities of Barker, the MCCOC proposed the inclusion of the following draft provision in clause 16.3(2) of the Model Criminal Code: A person is not a trespasser merely because the person is permitted to enter or remain in the building for a purpose that is not the person’s intended purpose, or as a result of fraud, misrepresentation or another’s mistake. 341

342 343 344

The amendment included introducing mandatory minimum sentences for “serious” and “serial” aggravated home burglaries (imposing 75% of the statutory maximum term of imprisonment), which apply where acts of physical and sexual violence are committed in the course of an aggravated home burglary, or the case involves repeat offending. The reforms introduced a distinction between aggravated home burglaries and aggravated burglaries of places other than dwellings. Barker v The Queen (1983) 153 CLR 338. Barker v The Queen (1983) 153 CLR 338 at 364-365. MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995). [12.240]

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The MCCOC also recommended that the offence of burglary should be extended to “break outs”; that is, where the accused obtains entry to premises with consent, but remains on premises after the initial consent has been revoked. An offence of “serious trespass” modelled along these lines has been enacted in South Australia, though it is limited to cases where the initial entry was with an intent to commit an offence. 345 To address the perceived gap in the law, the MCCOC recommended that the offence of burglary should be extended to a person who “enters or remains in any building as a trespasser with intent”. 346 Most jurisdictions contain preparatory offences related to burglary that criminalise the possession of implements or equipment used for housebreaking. These offences were needed because of the narrow test of proximity developed in the law of criminal attempts. As we have discussed in Chapter 8 at [8.40], under the early common law, individuals would only be liable for attempts where they had committed an act immediately and not remotely connected to the substantive offence. The legislature has enacted a wide range of offences punishing the possession of implements and other equipment capable of use in the commission of burglary or related offences. 347 These offences criminalise preparatory acts not constituting the offence of criminal attempt. The offence has been held to apply to cases where the accused had not yet formed an intention in relation to a specific offence; it suffices that the accused had a general intention to use the implements for some burglary, theft or cheat. 348 In New South Wales, the offence includes a qualification that the possession of implements must be “without lawful excuse”. The legislation generally casts the burden of proving the excuse on to the accused. 349 In the context of a similar offence, the English Court of Appeal has held that where the accused is found in possession of implements capable of use in housebreaking, the burden is cast on the defence to prove on the balance of probabilities that there was a lawful excuse for the possession of the implements. 350 Bearing in mind the breadth of the physical element (which applies to the possession of articles that have other legitimate uses), the state of mind of the accused is crucial in terms of culpability. In this context, shifting the legal burden to the accused in relation to such a fundamental element of the offence (albeit on a lower civil standard of proof) is unfair and oppressive. The Theft Act model did not modify the burden of proof in this way, although it contained a section which stated that being found in possession of an instrument “adapted” for housebreaking constitutes evidence of intent to use that article for burglary, theft or cheat. 351 The MCCOC recommended that no special evidential provision should be retained for this offence. 352 The MCCOC pointed out that such provisions constituted an averment of a fault element, which is expressly prohibited under cl 13.6 of the Model Criminal Code. Inferences from the possession of adapted implements may be drawn in the ordinary way without the need to resort to any special provisions. The MCCOC also recommended that the offence should be extended to the possession of equipment for use in robbery and taking a motor vehicle without authority. 345 346 347

348 349 350 351 352

Criminal Law Consolidation Act 1935 (SA), s 168. Model Criminal Code, cl 16.4, see Criminal Code (Cth), ss 132.4, 132.5; Criminal Code (ACT), ss 311, 312. Criminal Code (Cth), s 132.7; Criminal Code (ACT), s 315; Crimes Act 1900 (NSW), s 114(1)(b); Criminal Code (NT), s 215; Criminal Code (Qld), s 425; Criminal Code (Tas), s 248; Criminal Code (WA), s 407. See, further, CR Williams, Property Offences (3rd ed, Sydney: LBC, 1999) pp 221–226 and pp 224–243. R v Ellames [1974] 1 WLR 1391 at 1397. Crimes Act 1900 (NSW), s 417. R v Patterson [1962] 2 QB 429. Crimes Act 1958 (Vic), s 91(3). MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 103.

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Receiving and handling stolen property [12.245] Offences prohibiting individuals from dealing in stolen property exist in every

jurisdiction. Statutory offences against receiving stolen goods were enacted in the 19th century. These laws overcame the difficulties of applying accessorial liability to this type of activity, and aimed to remove the financial incentives for theft by punishing individuals who profited from, and thus sustained, the illicit market in stolen goods. 353 The Theft Act model reconceived the offence as one of handling, rather than receiving. The term “handling” was intended to denote the wider scope of the offence. Section 88 of the Crimes Act 1958 (Vic) defines the offence of handling stolen goods as follows: (1) A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he [or she] dishonestly receives the goods or brings them into Victoria, or dishonestly undertakes or assists in bringing them into Victoria or in their retention, removal, disposal or realization by or for the benefit of another person, or if he [or she] arranges to do so. (2) A person guilty of handling stolen goods is guilty of an indictable offence and liable to level 4 imprisonment (15 years maximum). There are four elements of the offence: • dishonesty; • handling; • stolen property; and • knowledge or belief that the property is stolen. Handling grafts a variety of modes of complicity onto the basic offence. As Bob Williams has pointed out, there at least 23 ways in which this offence may be committed. 354 Notwithstanding the differentiated structure of the offence, the physical element of handling may be performed in one of two ways: receiving stolen goods or dealing in stolen goods independently of the initial receiving. The MCCOC recommended that the offence definition should not be further expanded or complicated by the inclusion of these ancillary forms of receiving. In its view, these forms of receiving are better dealt with by applying the ordinary principles of complicity. The MCCOC proposed the following streamlined definition of the offence: A person who dishonestly receives stolen property knowing or believing the property to be stolen, is guilty of the offence of receiving. 355

The MCCOC recommended that the offence should be described as “receiving” rather than handling stolen goods, since the former is the more common terminology in Australia. 356 Victoria remains the only jurisdiction to apply the Theft Act model terminology, describing the offence as handling stolen goods. 357 The breadth of receiving offences also raises concern about the potential overlap with theft. It should be noted that many instances of receiving and handling stolen property could amount to an appropriation or dealing in property under the broad definitions discussed at [12.85]ff. Indeed, the retention of separate offences of receiving or handling could be viewed 353 354 355 356

357

For a review of the historical development of the receiving offences, see J Hall, Theft, Law and Society (2nd ed, Bloomington, IN: Bobbs-Merrill, 1952) pp 164–189. CR Williams, Property Offences (3rd ed, Sydney: LBC, 1999) p 293. MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 109. The term “receiving” is used in the Criminal Code (Cth), s 132; Criminal Code (ACT), s 313; Crimes Act 1900 (NSW), ss 188, 189, 189A; Criminal Code (NT), s 229; Criminal Code (Qld), s 433; Criminal Code (Tas), s 258; Criminal Code (WA), s 414. Crimes Act 1958 (Vic), s 88. [12.245]

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as redundant. Although acknowledging the overlap, the MCCOC concluded that a separate offence of receiving should be retained, since this conduct was commonly understood within the community as denoting a form of criminality distinct from theft. 358 In South Australia, the legislature has adopted a middle ground, preserving the distinct language and chargeable offence of receiving, though expressly deeming receiving to be a “species of theft”. This is enabled by the broad definition in s 130 of the Criminal Law Consolidation Act 1935 (SA), which extends the physical element of “dealing” to a person who “takes, obtains or receives the property”. Section 134 then provides: (5) Theft committed by receiving stolen property from another amounts to the offence of receiving but may be described either as theft or receiving in an instrument of charge and is, in any event, punishable as a species of theft.

This has the effect that where the accused is found in possession of stolen goods, but it is unclear whether the accused was the actual thief or receiver, the jury may nevertheless convict of theft. Section 134 of the Criminal Law Consolidation Act 1935 (SA) makes explicit provision for an alternate verdict as follows: (6) If a person is charged with receiving, the court may, if satisfied beyond reasonable doubt that the defendant is guilty of theft but not that the theft was committed by receiving stolen property from another, find the defendant guilty of theft.

A different approach is taken in Victoria, where theft and handling are enacted as separate offences, following the approach of the Theft Act 1968 (UK). The Crimes Act 1958 (Vic) provides that both handling and theft offence may be jointly charged on the same indictment, with provision for alternate verdicts. 359 As a matter of strict logic, however, evidence that the accused had stolen the goods would constitute a valid defence to a charge of handling, and vice versa. 360 The High Court in Gilson v The Queen (1991) held that in cases where the jury is satisfied beyond reasonable doubt that the accused committed either theft or handling, but is unsure which one, then the jury should return the less serious offence. 361 However, the MCCOC recommended that the Model Criminal Code should make provision for alternate verdicts in prosecutions of theft and handling, and that in cases of uncertainty where both offences have been charged (as in Gilson) the trier of fact should return a conviction for the offence which is more probable, rather than the offence which is less serious. 362 To assist juries deliberate these issues of proof, s 88A of the Crimes Act 1958 (Vic) provides that, if the jury is satisfied beyond reasonable doubt that the accused is guilty of theft or guilty of handling stolen goods, but is unable to agree on which offence the accused should be found guilty, “the jury must acquit the accused of handling stolen goods and find the accused guilty of theft and the accused is liable to punishment accordingly”. 363

358 359 360 361 362 363

MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 107. Crimes Act 1958 (Vic), s 88A. CR Williams, Property Offences (3rd ed, Sydney: LBC, 1999) p 301. Gilson v The Queen (1991) 172 CLR 353. MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) pp 111–113. Crimes Act 1958 (Vic), s 88A(b).

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Criminological perspectives The Regulation of Illicit Markets in Stolen Goods [12.250] There is empirical evidence that the bulk of household theft is carried out in

order to sell the goods either to consumers directly or through an intermediary “fence” who trades professionally in stolen goods. 364 Russell Hogg and David Brown explore the complex relationship between illegal and legal markets, pointing out that patterns of property crime are highly responsive to market demand. 365 The authors note that while national victim survey data suggests that burglary is perceived to be a major crime threat, the market in stolen goods is sustained by a widespread community tolerance towards goods that have, euphemistically, “fallen off the back of a lorry”. The authors speculate that the doubling in the rates of reported burglary and motor vehicle theft in Australia over the last 20 years is due not only to higher levels of ownership of consumer items, but also to the increasingly depersonalised nature of property and economic activity in modern capitalist societies. The prevalence of insurance (and the contractual obligation imposed on customers to notify police) explains the increased levels of reporting of burglary and motor vehicle theft, as well as the moral indifference toward the market in consumer goods of dubious provenance. Hogg and Brown also observe that the market in stolen goods is often connected with organised crime, leading the police to participate in elaborate “sting” operations that target weak links such as “fences”. One such example is the Queensland case of D’Arrigo. 366 In this case the police conducted an undercover operation against a group of individuals suspected of involvement in a scheme where motor vehicles were stolen and then disguised or dismantled for the purpose of resale. An informer, guided by the police and granted complete immunity, participated in the theft of 68 motor vehicles from innocent citizens. On the basis of the informer’s evidence, the group was charged with a wide range of property offences. The Queensland Court of Criminal Appeal held that the informer’s evidence should have been excluded on the basis of public policy. In addition to illegality, the strategies in D’Arrigo raise questions about the limits of entrapment and the prejudice to the principle of fairness in the criminal process. The evidential and procedural remedies for entrapment are further discussed in relation to covert drug investigation in Chapter 14, [14.210]–[14.235]. The police use of a decoy in undercover operations targeting receiving may mean that the accused is found in possession of goods that are no longer technically stolen. Under common law, the doctrine of impossibility would seem to preclude a conviction. 367 In jurisdictions where this doctrine is no longer a bar to conviction, individuals may be convicted of an attempt for receiving or handling goods that they mistakenly believed were stolen. The practical implications for law enforcement and the recent reforms to the law governing impossible attempts are further considered in Chapter 8 at [8.205]ff.

364 365 366 367

R Jochelson, “Household Break-ins and the Market for Stolen Goods” in Crime and Justice Bulletin, No 24 (Sydney: NSW Bureau of Crime Statistics and Research, 1995). Russell Hogg and David Brown in Rethinking Law and Order (Annandale: Pluto Press, 1998) pp 82–85. (1991) 58 A Crim R 71. Haughton v Smith [1975] AC 476. [12.250]

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FRAUD AND DECEPTION OFFENCES [12.255] As the above section reveals, the legislature has plugged many of the gaps that have

emerged in the law of larceny and theft. We have explored how specific loopholes arising in cases of dishonest use of computers, cheques and motor vehicles and making off without payment have been remedied by specific provisions or the creation of new offences. The process of gap-filling has not been entirely legislative. The courts have also fashioned a common law offence of conspiracy to defraud to deal with a wide range of fraudulent conduct not caught by larceny or theft. The concerns about the breadth of conspiracy to defraud have been explored in Chapter 8, [8.140]. In this section, we now examine the principal fraud offences relating to obtaining by deception. Other fraud offences relating to blackmail, forgery, bribery, extortion and secret commissions have also been enacted. The MCCOC grouped these offences together with theft and fraud in its proposed structure for the Model Criminal Code. 368 In many respects, these disparate offences bear few conceptual or analytical similarities to theft and fraud beyond the common concern to punish conduct displaying some form of “moral obloquy”. As Peter Alldridge provocatively argued in Relocating Criminal Law, it is more useful to conceive offences of forgery, bribery and corruption as a “criminal law of markets” rather than as offences of dishonesty. 369 The essence of the harm common to all these activities is that they “prevent the market functioning in accordance with its professed objectives”. 370 In Alldridge’s analysis, the criminal law of markets may be divided into the following categories: • crimes to guarantee the unit of exchange; • crimes to prevent manipulation and exploitation of markets; • crimes to establish borders to markets; and • crimes to prevent commodification of specific areas of human activity. This framework provides conceptual coherence and a clear set of goals and policies (beyond simply punishing blameworthy conduct) for these disparate offences. Within these categories fall many important though “anomalous” offences such as money laundering, insider-dealing and sexual trafficking offences. For these conceptual reasons, as well as the practical limitations of space, the offences of blackmail, forgery, extortion and secret commissions lie beyond the scope of this chapter. Building on these insights offered by Alldridge, it is possible to reconceptualise some of the property offences examined here as crimes as offences against critical infrastructure. This would be similar to the designation of offences in Ch 10 of the Criminal Code (Cth) dealing with offences relating to “National Infrastructure” (which include money laundering, postal and telecommunications offences and cybercrime). As we shall explore below, the MCCOC has generally resisted moves to reshape property offences into “offences of dishonesty”—a nebulous and potentially over-reaching category.

Reforming Fraud: Passing Bad Cheques to Cyber-Scamming [12.260] The principal fraud offence is obtaining property by deception. In several

jurisdictions, this conduct is subsumed within a general omnibus fraud offence that does not require proof of deception. 371 There is concern that these offences are vague and overbroad. 372 368 369 370 371

MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) pp 195–314. P Alldridge, Relocating Criminal Law (Aldershot: Ashgate, 2000). P Alldridge, Relocating Criminal Law (Aldershot: Ashgate, 2000) p 167. See s 409 of the Criminal Code (WA), which punishes a wide range of conduct and is not limited to dishonest dealings in property.

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The MCCOC has recommended against the adoption of general offences of dishonesty on the ground that, while flexible and adaptable, they would offend the principle that criminal offences should be certain and knowable in advance: The Theft Act offences are already expressed in a more general or abstract way than the preceding law. To take the further step of dispensing with the need to prove an appropriation without consent or that there was a deception is to go too far. Problems in specific areas like tax and social security can and have been dealt with under specific legislative provisions. 373

For similar reasons, the MCCOC recommended that the Model Criminal Code should not include an organised fraud offence. 374 Heeding the MCCOC’s concerns, the earlier omnibus offence of “defrauding the Commonwealth” contrary to s 29D of the Crimes Act 1914 (Cth) has been replaced with a range of specific offences. 375 The Australian Capital Territory, recognising the value of this “catch-all” crime to combat frauds aimed at government and public officials, has recently enacted a range of “general dishonesty” offences that apply to dishonestly obtaining a gain from or causing loss to the Territory. 376 The offence aims to deter fraud perpetrated against the Territory, though the accused need not know that they are, in fact, dealing with the Territory (absolute liability is deemed to apply to this element of the offence). In South Australia, there are a range of dishonesty offences relating to dealing with documents, manipulating machines and exploiting positions of advantage. 377 In 2009, New South Wales modernised and simplified its laws relating to forgery and fraud to account for the increased opportunities afforded by advancing technologies to criminals to exploit gaps in the law. 378 The new offences are intended to cover the creation and cashing of false cheques, the creation of false documents (including those that affect computers), the creation and sale of counterfeit items, pyramid schemes and inducements to invest in falsely presented schemes. Section 192E makes it an offence for a person who, by any deception, dishonestly obtains property belonging to another or obtains any financial advantage or causes a financial disadvantage. “Dishonesty” is defined for the purpose of these offences as follows: “In this Act: dishonest means dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people.” 379 The test is based on the discredited English decision of Ghosh, which has been subject to extensive academic and judicial criticism, and is widely viewed as a retrograde step for Australia: see [12.65]ff.

Defrauding the Commonwealth: dealing with tax cheats, visa and welfare fraud [12.265] Significant investigative and police resources are devoted to prosecuting fraud against the Commonwealth. A monitoring program by the Australian Institute of Criminology 372 373 374 375 376 377 378 379

See G Syrota, “Criminal Fraud in Western Australia: A Vague, Sweeping and Arbitrary Offence” (1994) 24 Western Australian Law Review 261. MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 169. MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 183. Pt 7.3 “Fraudulent Conduct”, Criminal Code (Cth), inserted by the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (Cth). Criminal Code (ACT), s 333. Criminal Law Consolidation Act 1935 (SA), ss 140 – 142. New South Wales, Parliamentary Debates, Legislative Council, 12 November 2009, 19507 (John Hatzistergos Attorney General, Minister for Industrial Relations, Vice President of the Executive Council). Crimes Act 1900 (NSW), s 4B(1). [12.265]

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recently reported that in relation external fraud the proportion of entities experiencing such frauds have increased from 18% in 2010–11 to 21% in 2012–13. The largest number of external fraud incidents related to government entitlements, with a large increase in 2011–12 of 170,756 incidents, followed by a decline to 90,773 incidents in 2012–13. This type of fraud most often involved three main types—revenue fraud, visa/citizenship fraud and social security fraud. 380 Enforcement action against welfare overpayments has particularly intensified in 2016/2017: see recent data at [12.30]

Obtaining by Deception [12.270] The offence of obtaining property by deception overlaps with theft. As these two

offences share common elements, the statutory definitions and authorities discussed above are relevant. In the United Kingdom and Victoria, the offences of obtaining property by deception are distinct from theft. The common law relating to “larceny by trick” and the offences of obtaining property by false pretences have been examined at [12.25]. The Code jurisdictions similarly maintain a distinction between the basic offence of stealing/larceny and fraud/ deception. 381 The MCCOC considered that the “fundamental question” in this area was whether the two offences should be amalgamated, an approach that had the support of legal academics and an earlier Commonwealth review. 382 The MCCOC resolved the question in favour of the retention of a separate fraud offence. 383 In its view, the essence of theft was appropriating property without consent, which could be distinguished from obtaining property with consent by deceptive conduct. The distinction mirrored the community’s understanding of different types of dishonesty. Although the distinction has been blurred by the House of Lords in R v Gomez, fraud should not be labelled as theft. The MCCOC concluded that the distinction was necessary as a matter of “fair labelling”: The law should employ terms which communicate the nature of the proscribed conduct unless there are strong reasons to the contrary. Artificially collapsing categories is as bad as artificial distinctions. It undermines public acceptance of the law and confuses juries by lumping disparate forms of behaviour together. 384

An amalgamated offence covering theft and obtaining property by deception also poses dangers of unfairness. This is because the prosecution is not obliged to disclose before trial which form of “appropriation” is being alleged against the accused. This would clearly hamper the preparation of the defence, and could only be remedied by the adoption of 380

381

382

383

384

P Jorna and R Smith, Fraud against the Commonwealth Report to Government 2010–11 to 2012–13: Monitoring Report No 24 (Canberra: Australian Institute of Criminology, July 2015), http://www.aic.gov.au/ publications/current%20series/mr/21-40/mr24.html (cited 16 November 2010). The fraud offences in the Code jurisdictions cover a wide range of conduct including inter alia obtaining by deception, procuring financial advantage/detriment, and making off without payment: Criminal Code (Qld), s 408C; Criminal Code (WA), s 409. See discussion in RG Kenny, An Introduction to Criminal Law in Queensland and Western Australia (5th ed, Sydney: Butterworths, 2000) pp 280–281. Gibbs Committee, Review of Commonwealth Criminal Law, Interim Report (Canberra: AGPS, November 1991) pp 128–131 and CR Williams and M Weinberg, Property Offences (2nd ed, Sydney: Law Book Company, 1986) p 413. Williams has since recanted on this earlier view on the ground that the “two crimes are principally aimed at different activity”: Property Offences (3rd ed, Sydney: LBC, 1999) p 339. This was the approach originally taken in the Australian Capital Territory, in Crimes Act 1900 (ACT), s 86(1) where the two offences were merged into a single offence of “stealing”. This was repealed in 2002 by the Criminal Code (ACT) and replaced by two separate offences of theft (s 308) and obtaining by deception (s 326). MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 131.

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procedural rules requiring the prosecution to provide further particulars where the appropriation being relied upon was a deception. The MCCOC concluded that the charging dilemmas experienced by the prosecution, caused by the overlap between theft and obtaining property by deception, were better addressed by provisions allowing for alternate verdicts. 385 The existing rules governing alternate verdicts, and the MCCOC’s recommendations for reform, have been discussed at [12.245]. In South Australia, the deception offence is not limited to obtaining property. 386 It applies to deceptions by which the accused: (1)

dishonestly benefits him/herself or a third person; or

(2)

dishonestly causes a detriment to the person subjected to the deception or a third person. The offence carries the same maximum penalty as theft, namely, 10 years’ imprisonment. In this section, we focus on the Theft Act model offence of obtaining by deception, which has the following elements: • dishonestly • obtaining by deception • property • belonging to another • with intent to permanently deprive. The offence of obtaining property by deception shares its elements and definitions with the basic offence of theft. Many of the cases discussed above examining the meaning of dishonesty and other elements have also involved charges of obtaining property by deception. We have examined the definition of dishonesty developed in Victoria in a succession of cases involving obtaining property by deception. 387 In the following section, we will focus on the elements that are specific to this offence: obtaining by deception. The meaning of “obtaining property by deception” [12.275] The Victorian offence of obtaining property by deception mirrors the offence

contained in the Theft Act 1968 (UK): Section 81 Obtaining property by deception (1) A person who by any deception dishonestly obtains property belonging to another, with the intention of permanently depriving the other of it, is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum). (2) For purposes of this section a person is to be treated as obtaining property if he [or she] obtains ownership, possession or control of it, and “obtain” includes obtaining for another or enabling another to obtain or to retain. (3) Sub-sections (12) and (13) of section 73 shall apply for purposes of this section, with the necessary adaptation of the reference to appropriating, as it applies for purposes of section 72.

385 386 387

MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 133. Criminal Law Consolidation Act 1935 (SA), s 139. For a comprehensive discussion of the elements of obtaining property by deception, see CR Williams, Property Offences (3rd ed, Sydney: LBC, 1999) pp 171–191. [12.275]

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A similar offence has been enacted in s 134.1 of the Criminal Code (Cth), s 326 of the Criminal Code (ACT) and s 227 of the Criminal Code (NT). In Queensland, the equivalent fraud offence includes dishonestly obtaining property, though it does not require any deception on the part of the accused. 388 Obtaining property by deception replaced the earlier concept of obtaining by false pretences. The reformulation was intended to refocus the inquiry on the effect on the mind of the victim rather than simply on the accused’s conduct. 389 The element of obtaining is wider than the predecessor offence of false pretences, which only applied to obtaining ownership by deception. Like theft, the offence of obtaining property by deception is extended to obtaining ownership, possession or control of property. Furthermore, it extends to obtaining for the benefit of another, or enabling another to obtain or to retain, the property. Uncertainties over the meaning of deception led to the insertion of s 81(4) into the Victorian Crimes Act 1958. The subsection extends the scope of deception to address the perceived difficulties in deceiving machines, particularly ATMs (discussed at [12.105]), by providing: For the purposes of this section, “deception”— (a) means any deception (whether deliberate or reckless) by words or conduct as to fact or as to law, including a deception as to the present intentions of the person using the deception or any other person; and (b) includes an act or thing done or omitted to be done with the intention of causing— (i) a computer system; or (ii) a machine that is designed to operate by means of payment or identification— to make a response that the person doing or omitting to do the act or thing is not authorised to cause the computer system or machine to make.

Deception is defined in similar terms in s 133.1 of the Criminal Code (Cth), s 325 of the Criminal Code (ACT) and s 130 of the Criminal Law Consolidation Act 1935 (SA). The alternative approach to tackling ATM misuse is to enact a distinct offence of dishonest manipulation of machines: see, for example, s 141 of the Criminal Law Consolidation Act 1935 (SA). Recklessness for the purpose of the above definition of deception is not defined, though has been construed as applying a subjective conception of recklessness. Reckless has been defined as including knowledge or awareness of a “substantial risk” that the words or conduct were untrue. 390 The statutory formulation of awareness of “substantial risk” applied under s 5.4 of the Criminal Code (Cth) and s 20 of the Criminal Code (ACT) is suggestive of a high degree of foresight based on probability rather than possibility. 391 The variable meaning of recklessness in the criminal law has been explored in Chapter 3, at [3.205]–[3.215]. The deception may relate to matters of law, as well as fact. The High Court has held that a statement of claim in a 388

389 390 391

Under the Criminal Code (Qld), the general fraud offence in section 408C provides: “(1) A person who dishonestly… (b) obtains property from any person commits the crime”. In this offence, “obtain” includes, to “get, gain, receive or acquire in any way”: s 408C(3)(e). The Code also contains specific forms of obtaining, such as passing bad cheques: s 427A (Obtaining property by passing valueless cheques). CLRC (UK), Theft and Related Offences (London: HMSO Cmnd 2977, 1966) [87]. R v Smith (1982) A Crim R 437; Mattingley v Tuckwood (1988) 88 ACTR 1; now see Criminal Code (ACT), s 20, and Criminal Code (Cth), s 5.4 which defines reckless as awareness of a “substantial risk”. In those jurisdictions without a statutory definition of recklessness, it is not clear that the common law would follow this interpretation. Bob Williams has argued that “substantial risk” should be interpreted as imposing a less stringent standard than that applied in “reckless murder”, suggesting that “foresight of ‘substantial risk’ is lower on the scale of probabilities than probable or more likely than not”: CR Williams, Property Offences (3rd ed, Sydney: LBC, 1999) pp 172–173.

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civil action which contained a false assertion would not constitute a making of a false representation for the purposes of obtaining by deception. 392 Obtaining property, services and financial advantage [12.280] The above offence is limited to obtaining “property” by deception, which bears the

same meaning as property for the purpose of theft. We have also considered, at [12.260], the difficulties of applying “obtaining property by deception” to individuals who have dishonestly used false representations to obtain cheques, negotiable instruments and electronic funds transfers. Some jurisdictions have enacted separate fraud offences relating to obtaining services or a pecuniary or financial advantage by deception, as well as evading a liability. 393 In South Australia, the offence is framed more broadly as the dishonest exploitation of a position of advantage (not limited to financial advantage). 394 Obtaining a pecuniary or financial advantage by deception is broader than the other obtaining offences since it does not require an intention to permanently deprive. As the MCCOC noted, the offence is broad enough to encompass virtually all cases of obtaining property by deception. As we shall explore below, some cases where the accused obtained property by deception have been charged as obtaining a financial advantage. 395 In some situations, this offence offers certain tactical advantages to the prosecution. As the MCCOC noted, the breadth of the offence is often controlled by prosecution guidelines, as in Victoria, where the offence is limited to cases not involving property; that is, where the accused has obtained credit or other financial services by deception. 396 For the offence of obtaining a pecuniary or financial advantage, there is no requirement that the person deceived must suffer any loss arising from the deception. All that is required is that there is a causal relationship between the deception and the pecuniary advantage. This feature of the offence is important in cases of cheque fraud where the deception is often directed at the supplier of goods, but the financial advantage is obtained from the bank or credit provider. 397 Obtaining financial advantage is a flexible “back-up” fraud offence. 398 This is because its terms include “valuable thing”, which can encompass both traditional concepts of property and obtaining advantage, and use the modern “deception” element rather than the outmoded element of “false pretences”. 399 The courts have declined to further elaborate on the definition of “valuable thing” beyond the rather vague requirement that it must be “capable of being obtained”. 400 A pecuniary or financial advantage to the accused must be proved, not assumed. This element plays a significant role in controlling the scope of an offence that may be applied to cases where the financial advantage obtained by deception is only temporary. The importance of this element was firmly reiterated by the Supreme Court of the Australian Capital Territory 392 393

394 395 396 397 398 399 400

Jamieson and Brugmans v The Queen (1993) 177 CLR 574. For example, see Criminal Code (Cth), s 134.2; Criminal Code (ACT), s 332; Crimes Act 1958 (Vic), s 82. See also obtaining credit by false pretences, Crimes Act 1900 (NSW), s 178C (now repealed); Criminal Code (Qld), s 408C(1)(d). Criminal Law Consolidation Act 1935 (SA), s 142(2). MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 149. MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 149. R v Kovacs [1974] 1 WLR 370. A Steel, “Money for Nothing, Cheques for Free? The Meaning of “Financial Advantage” in Fraud Offences” [2007] 31 Melbourne University Law Review 201. A Steel, “Money for Nothing, Cheques for Free? The Meaning of “Financial Advantage” in Fraud Offences” [2007] 31 Melbourne University Law Review 201 at 207-208. R v Love (1989) 17 NSWLR 608 at 617. [12.280]

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in Fisher v Bennett (1987). 401 The accused required some money to enter into a business transaction. He asked a friend to make out a cheque for $10,000 in his favour. The friend obtained an overdraft on his own account in order to make out the cheque. The agreement was that the accused would pay the amount borrowed, plus interest and bank charges. The accused did not repay for a while. He then paid some interest, but delayed on the capital repayments. The friend demanded the money and the accused made out a cheque for $10,000 which was dishonoured by the bank because of insufficient funds. He was charged and convicted of obtaining a financial advantage by deception contrary to s 178C of the Crimes Act 1900 (ACT) (now see s 332 of the Criminal Code (ACT)). The section provided: A person who, by any deception, dishonestly obtains for himself [or herself] or any other person any money or valuable thing or any financial advantage is guilty of an offence punishable, on conviction, by imprisonment for a term not exceeding 5 years.

The question on appeal was whether the accused had obtained a financial advantage. Miles CJ held in Fisher v Bennett that there could be cases, admittedly rare, where, despite the proffering of a valueless cheque, there was no financial advantage. Miles CJ held that “financial advantage” bears the following meaning: “When one speaks of obtaining a financial advantage by deception there is imported in my view the notion of improving a financial situation by means of that deception”. 402 The accused in this case had not improved his financial situation by means of the deception; he had obtained no forbearance to sue from the cheated creditor, and there was no reducing or forgiving the debt. Interest continued to accrue on the amount borrowed. The accused was no better off than when he started. He had merely retained a continuing benefit, not obtained a new financial advantage. This decision clearly demonstrated the difference between obtaining a financial advantage and unilateral evasion of a financial liability. In the subsequent case of R v Vasic (2005) the Supreme Court of Victoria (Court of Appeal) refused to follow the approach taken in Fisher v Bennett. 403 The accused was a plasterer who had established a credit account with a supplier and ordered products amounting to $32,701. Eventually embarrassed into paying his debt, the accused told the supplier that he would provide a cheque for the amount. The cheque was dishonoured as the bank account upon which it was drawn had previously been closed. The accused then agreed to pay the amount in two separate amounts by cheque, though these were also dishonoured. At trial, the submission following Fisher v Bennett was based on the argument that (notwithstanding evidence of the accused’s dishonesty and deception) the accused had not, in fact, obtained a financial advantage by passing these cheques: as the accused was without financial means, gaining more time in which to pay, or forbearance of part of the debt, accrued no advantage to an indigent accused. 404 This was framed as the “penniless man [sic] exception” to the offence of obtaining a financial advantage. 405 This argument was rejected by the trial judge and the Court of Appeal, which upheld the conviction. As to the “penniless debtor” argument, the court held 401 402 403 404 405

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Fisher v Bennett (1987) 85 FLR 469. Fisher v Bennett (1987) 85 FLR 469 at 472, per Miles CJ, approving dicta in Mathews v Fountain [1982] VR 1045. R v Vasic (2005) 155 A Crim R 26; [2005] VSCA 38. The judgment was delivered by Nettle JA, Vincent JJA and Cummins AJA concurring. R v Vasic (2005) 155 A Crim R 26 at 28. As Nettle JA pointed out, the idea of the exception emerged in part as a response to questions raised by Lord Widgery in Turner [1973] 1 WLR 653 at 656, and explored by David Lanham in his article “Obtaining a Financial Advantage by Deception in Victoria – The Meaning of Financial Advantage” [1977] 1 Criminal Law Journal 193. [12.280]

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that the “‘penniless man’ [sic] exception is as flawed as a matter of economic theory as it is intractable in practice.” 406 The court supported the view that there are no penniless people in society because: “as a matter of economic theory a debtor can always borrow money. In theory it is all just a matter of price, and so everyone can borrow—at a price—no matter what the level of their credit risk.” 407

The approach taken in this case has been academically criticised, not least for the most obvious point (echoing Miles CJ above) that, by evading a debt, the penniless debtor will be no better off financially in the long run, in legal terms. 408 Deception by conduct: implied representations [12.285] The UK Criminal Law Revision Committee (CLRC) favoured the use of the term

“deception” because, unlike false pretences, the concept seemed “more apt in relation to deception by conduct”. 409 As noted above, the property, service or financial advantage must be obtained as a result of the deception; there must be a causal nexus between the accused’s deception and the thing obtained. Therefore, there must be evidence that the deception affected the mind of the victim. In many cases, the deception is a false representation by the accused that induces another person to provide property or services. Difficulties have commonly arisen in cases involving representations by conduct and whether such implied representations actually operated on the minds of the victims, inducing them to provide property, service or a financial advantage to the accused. The boundaries of implied representation have been expanded by the decisions recognising that an implied representation may be “continuing” in nature. The limits of implied representations by conduct were explored by the House of Lords in DPP v Ray (1974). 410 The accused had dinner at a restaurant with some friends. At the time of ordering the food, the accused intended to pay for it. After the meal, he decided not to pay and ran off. The accused was not charged with obtaining property or services by deception, presumably because the prosecution accepted that, at the moment the meal was obtained, there was no deception being practised by the accused. The accused was charged with dishonestly obtaining a pecuniary advantage by deception contrary to s 16(1) of the Theft Act 1968 (UK). The Divisional Court held that there was no deception in this case and quashed the conviction. The prosecution appealed. The questions which certified the appeal to the House of Lords were, first, whether the accused had practised a deception, and, secondly, if he had, whether his evasion of the debt was obtained by that deception. The majority upheld the appeal and restored the conviction. In this case, the deception was that the accused had impliedly represented by his conduct in ordering the meal that he was an ordinary customer intending to pay for it. By continuing in that same role, he continued with his original representation. This constituted a deception on the waiter because the accused’s intention had, in fact, changed. As Lord Morris noted, the representation could be regarded as a continuing one that “remained alive and operative and had already resulted in the accused being taken on trust and treated as ordinary, honest customers”. 411 According to Lord MacDermott, the representation covered “the whole transaction up to and including payment and must therefore be considered … as continuing and still active at the time of the 406 407 408 409 410 411

R v Vasic (2005) 155 A Crim R 26 at 30. R v Vasic (2005) 155 A Crim R 26 at 31. R Evans, “Case and Comment” (2006) 30 Criminal Law Journal 47 at 48. CLRC (UK), Theft and Related Offences (London: HMSO Cmnd 2977, 1966) [87]. DPP v Ray [1974] AC 370. DPP v Ray [1974] AC 370 at 386. [12.285]

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change of mind”. 412 Lords Reid and Hodson dissented on the basis that there was no deception practised in this case. The accused’s continuing act of sitting in the restaurant after he had changed his mind had not exercised any influence on the mind of the waiter. The concept of continuing representations by conduct was applied in R v Benli (1998). 413 The accused, a driving instructor, had had his license to drive, and therefore to instruct, suspended. He continued to conduct lessons and obtain fees. He was charged with obtaining property by deception. Evidence was given at trial that the students had believed he was a licensed instructor and that they would not have used his services if they had known that he was not licensed. The Victorian Court of Appeal, dismissing the appeal against conviction, held that although there was no express representation that he was a licensed instructor, this was implied by his conduct. Both decisions raise doubts as to whether there was sufficient evidence that the victims had been misled by the accused. Strictly speaking, the prosecution must prove that the false representation acted on the mind of the victim. In early cases, the courts suggested that this element had to be proved by direct evidence, though recent decisions have relaxed this requirement, emphasising that the operative nature of the inducement may be inferred from the totality of evidence. 414 This inferential approach is particularly necessary in cases where the fraud is directed toward a government department, statutory authority or company, rather than a specific individual. 415 Indeed, in cases like DPP v Ray and R v Benli, it is only by resorting to hindsight and putative beliefs that it is possible to say that the implied representation operated on the minds of the victims, causing them to part with their property or services. Rather than rely on the somewhat nebulous concept of implied continuing representations, the facts of the case may suggest that the statutory offence of making off without payment is the more appropriate charge, discussed at [12.195]. There has been some uncertainty as to whether a deception is operative on the mind of the victim in cases where the property, services or financial advantage have been dishonestly obtained using cheques, credit cards or charge cards. We have explored the problems of ATM misuse and the special provisions enacted to deal with deception of computers, at [12.105]. In cases of credit card fraud, there may be difficulty in establishing an operative deception in relation to an actual employee. In many cases, there may be no reliance by the employee conducting the transaction on any express or implied representation of the customer. This is because the employee knows that the bank operating the particular payment system (for example, credit card or cheque guarantee card) will honour the debt, even in cases where the card is stolen. However, in the MCCOC’s report on credit card skimming, it was argued that merchants would be less likely to process the transaction if they knew the card was forged and, thus, the deception might have been operative. 416 This question of operative deception was explored by the House of Lords in R v Lambie (1982). 417 The accused had a bank credit card (Barclaycard), with a limit of £200. She exceeded that limit and was asked by the bank to return the card. She did not, and continued to incur expenditure on the card amounting to £1,005. The last use was at a shop where she made a purchase of around £10. She was then charged with and convicted of obtaining a 412 413 414 415

416 417

DPP v Ray [1974] AC 370 at 382. R v Benli [1998] 2 VR 149. See R v Laverty [1970] 3 All ER 432; cf “Collis-Smith” [1971] Criminal Law Review 716. See Low v The Queen (1978) 23 ALR 616, where the Western Australian Court of Criminal Appeal noted that the failure of the prosecution to call direct evidence of the state of mind of the employee within the Health Insurance Commission who processed the (false) claim submitted by the accused, a medical practitioner, for services not rendered, did not preclude appropriate inferences being drawn. MCCOC, Chapter 3: Credit Card Skimming Offences, Final Report (2006) p 9. R v Lambie [1982] AC 449.

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pecuniary advantage by deception. The prosecution decided not to charge her with obtaining property by deception, a decision which was criticised by the House of Lords. On appeal, the House of Lords considered whether or not the store manager had been induced or parted with the property because of the deception. In other words, had the deception been operative? The problem in relation to payment systems such as credit cards is that the merchant has an arrangement with the bank that it will transact with any customer who presents the bank’s credit card; in this case, a Barclaycard. Indeed, the manager’s deposition clearly stated that before and during the transaction she had made no assumptions about the customer’s credit standing with the bank. The Court of Appeal accepted the defence submission that the accused’s deception had not consequently induced the manager to part with the property. The manager had simply relied on the agreement with the bank and not on any representation made by the accused. The House of Lords disagreed with this approach. Lord Roskill, delivering the judgment of their Lordships, held that the Court of Appeal below had attached too much emphasis to the evidence of the manager. Lord Roskill held that presenting a credit card is not an implied representation as to the customer’s credit standing, but rather a representation of actual authority to make a contract with the store on the bank’s behalf, a contract which the bank will honour when the transaction voucher is presented. Since this is the implied representation, the only question remaining in this case was whether it had induced the manager to proceed with the transaction and allow the accused to remove the goods. Undoubtedly, had the manager known that the accused lacked the authority to use the card, then she would not have allowed the transaction to proceed. As the MCCOC noted, any sales assistant who admits that they knew that the card was not authorised would probably be guilty of conspiracy with the customer to defraud the merchant. 418 The offence of obtaining by deception requires evidence that the deception caused the other person to part with the goods or services. As Lord Roskill conceded, in most cases it will be either difficult or impossible for an employee to remember individual transactions and whether the actions of a particular customer had induced them to part with the goods or services. However, the absence of direct evidence will not be fatal to a prosecution. 419 The question of proof should be simply left to the jury (or magistrate) to resolve in light of the totality of evidence, drawing inferences as appropriate. The difficulties in establishing an operative deception in cases involving credit cards may be overcome by the application of “common sense” and careful directions to the jury. In reality, many victims of credit card fraud pay no attention or are simply ignorant of the implied legal representations underlying these commercial transactions. In such cases, the question of whether a deception was operative on the mind of the victim can only be resolved evidentially by resorting to the fiction of what that person would have done, or rather be assumed to have done, had the truth been known about the customer’s lack of authority to use the card. Hindsight is being equated for the state of mind of the victim at the time of the deception. By this evidential sleight of hand, the law is reconstructing the deception, imputing (objectively) rather than inferring (subjectively) the victim’s reliance upon the implied representation that the customer has authority to use the card. While this judicial creativity avoids unmeritorious acquittals, there are significant theoretical objections to the strains being placed on the causal requirement that lies at the heart of criminal deception. ATH Smith suggested that the courts in Ray and Lambie were developing a law of “constructive deception” rather than confining the concept to what actually passes through the mind of the victim. 420 He concluded that the law governing 418 419 420

MCCOC, Chapter 3—Theft, Fraud, Bribery and Related Offences, Final Report (1995) p 141. R v Lambie [1982] AC 449 at 460. ATH Smith, “The Idea of Criminal Deception” [1982] Criminal Law Review 721 at 726. [12.285]

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deception “is beginning to drift off course, and that it is for the courts to re-assert the basic principle that deception exists not just in the acts of the cheats, but also in the minds of his [or her] victim”. 421 Difficulties in applying the offence of obtaining by deception in relation to payment cards or cheques can be avoided by prosecuting other statutory fraud offences. In Queensland, for example, there is a specific crime of obtaining property by passing a valueless cheque that does not require proof of deception. 422 It places the burden on the accused (see s 427A(2) – defences) to establish that at the time the cheque was presented he or she (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.

CORRUPTION: DOMESTIC AND TRANSNATIONAL BRIBERY OFFENCES Corruption is an insidious plague that has a wide range of corrosive effects on societies. It undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life and allows organised crime, terrorism and other threats to human security to flourish…corruption is a key element in economic under-performance and a major obstacle to poverty alleviation and development. 423 [12.290] Corruption is like obscenity, it is hard to define, but we know it when we see it. 424

Although corruption is one of the earliest crimes known to law, its structural contours and legal meaning have changed over time. 425 From its inception in medieval times, corruption of public officials was considered to be a serious crime against the state—an abuse of the sovereign’s trust. Good governance rationales have been supplemented by economic rationales in the late 20th century, particularly the importance of protecting the efficient functioning of markets. 426 This shift explains the shifting patterns of criminalisation, extending punishment to both the bribe giver, as well as bribe recipient. But governmental and market integrity—the twin liberal values of upholding the rule of law and the free market—are not the only interests at stake. Increasingly, global anti-corruption efforts are being linked to human rights. The destructive effect of corruption on human rights is undeniable and well-documented: the United Nations Human Rights Council has documented the “manifold negative impacts” of corruption on the enjoyment and realisation of human rights, particularly human rights-relevant goods and services, both in reduced access to governmental services and stolen funds being siphoned off from public finances which could

421 422

423

424 425 426

ATH Smith, “The Idea of Criminal Deception” [1982] Criminal Law Review 721 at 731. Criminal Code (Qld), s 427A; Criminal Code (ACT), s 336. Under s 336(1) a person commits an offence “if – (a) the person obtains property, a financial advantage or other benefit …. without (b)(i) reasonable grounds for believing that the cheque will be paid… or (ii) intends to dishonestly obtain the property, financial advantage or benefit from someone else”. United Nations Secretary-General Kofi Annan, “Secretary-General Lauds Adoption by General assembly of United Nations Convention Against Corruption” (31 October 2003), http://www.un.org/press/en/2003/ sgsm8977.doc.htm (cited 15 November 2016). Adapted from Stewart J of the United States Supreme Court in Jacobellis v Ohio 378 US 184 (1964). B Buchan and L Hill, An Intellectual History of Political Corruption (Basingstoke: Palgrave MacMillan, 2014). As the G20 has noted, corruption “undermines good governance, erodes the trust that people place in public institutions, corrodes decision-making, impedes economic development and facilitates organised crime” G20 Anti-Corruption Action Plan 2016-2017 (2016), http://www.g20.utoronto.ca/2016/160905anticorruption.html (cited 15 November 2016).

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meet development needs. 427 But is there a human right to live in a society free of corruption? 428 Anti-corruption treaties do not speak in terms of human rights, and conversely human rights conventions do not identify “freedom from corruption” as a fundamental right. Whatever the modern rationale for corruption, there is a global trend to intensify and coordinate national efforts to prevent corruption. While there has been widespread ratification of international conventions against corruption, successful domestic anti-corruption regulatory systems remain few, and their effectiveness have been often called into question. 429 The emphasis on the domestic drivers of corruption in foreign “corrupt” nations means the regulatory deficits in “clean” jurisdictions, including the United States, United Kingdom and Australia, which tolerate or excuse foreign bribery by multi-national corporations (MNCs), are often overlooked. In an era of globalisation, with increased international business and trade, the corruption of foreign officials by MNCs poses a serious threat to the health of global economics, markets and governance structures. 430 The bribery of foreign public officials, commonly known as “foreign bribery”, by Australian citizens and corporations has acquired more media and policy attention following several high profile corruption scandals involving Australian government-owned corporations. Most notoriously, during the 1990s, the Australian Wheat Board (AWB) paid more than $US200 million in “kickbacks” to Iraq in contravention of the UN Oil-for-Food Program. 431 No charges were brought against AWB or its employees, though the subsequent Royal Commission (Cole Commission) precipitated amendments strengthening Australia’s antibribery laws in 1999, and modifying the scope of the defences. More recent scandals, which continue to unfold, involve two subsidiaries of the Reserve Bank of Australia (RBA) (Note Printing Australia Pty Ltd and Securency International Pty Ltd) and their employees, who have been prosecuted for bribery offences related to corruption in securing banknote-printing contracts with Indonesia, Malaysia and Vietnam. These matters are ongoing. 432 Australia’s “clean” reputation, based on its consistently high rankings in global corruption indexes, is now in doubt, with growing concerns voiced over the lack of national political and law enforcement priority attached to the investigation and prosecution of foreign bribery

427

428

429

430 431

432

United Nations Human Rights Council, Summary Report of the Human Rights Council Panel Discussion on the Negative Impact of Corruption on the Enjoyment of Human Rights, A/HRC/23/26, 18 April 2013. See International Council on Human Rights Policy, Corruption and Human Rights: Making the Connection (Versoix, Switzerland: 2009). See, generally, A Ramasastry, “Is There a Right to Be Free from Corruption?” (2015) Vol. 49: University of California Davis Law Review 703; D Augenstein and D Kinley, “When Human Rights “Responsibilities” become “Duties”: The Extra-Territorial Obligations of States that Bind Corporations” in S Deva and D Bilchitz (eds), Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect (Cambridge: Cambridge University Press, 2013); for an exploration of arguments in favour of enacting a right to live in a society free from “official corruption”, see M Murray and A Spalding “Freedom from Official Corruption as a Human Right” (2015) Governance Studies At Brookings 1. For an excellent collection of papers assessing national, regional and global efforts see A Graycar and R Smith, (eds), Handbook of Global Research and Practice in Corruption (Cheltenham & Northampton: Edward Elgar, 2011); see also C Davids and G Schubert, “Criminalising Foreign Bribery: Is Australia’s Bark Louder than its Bite?” (2011) 35 Criminal Law Journal 98. K Stanley, E Loredo, N Burger, J Miles, C Saloga, Business Bribery Risk Assessment (Santa Monica, CA: RAND Corp, 2014), http://www.rand.org/pubs/research_reports/RR839.html (cited 15 November 2016). L Botterill, “Circumventing Against Iraq in the Oil-for-Food Programme” in A Graycar and R Smith (eds), Handbook of Global Research and Practice in Corruption (Cheltenham & Northampton: Edward Elgar, 2011). Commonwealth Director of Public Prosecutions (CDPP), Annual Report 2015–16, p 45. [12.290]

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case. 433 Current low-levels of enforcement have been attributed to various causes including the serious challenges of securing evidence from overseas (though it should be noted that counterpart agencies in the United States and the United Kingdom make more visible and high-profile efforts to pursue cases of foreign bribery across both the public and private sectors). 434 There is also concern that the enforcement deficit may have a “honeypot effect”, leading organised crime groups and corrupt foreign officials to view Australia as a safe haven for laundering ill-gotten proceeds; indeed, this has led a senior anti-corruption official from Papua New Guinea, Sam Koim, to label Australia as the “Cayman Island of the Pacific”! 435 In the next section, we examine the federal criminal laws governing corruption, focusing on how corruption is defined in the criminal law, and highlighting the key distinctions between domestic and transnational forms of bribery.

Corruption Without Borders: Bribery at Home and Abroad [12.295] Domestic reforms in Australia have been shaped by local concerns and scandals, but

also by its international legal obligations to combat transnational corruption, as well as influential domestic legislative models from the United States and the United Kingdom. Although there is growing international consensus that corruption is harmful to good governance, rule of law, human rights and the effective functioning of markets, globally and domestically, defining the concept has proved elusive. As George Gilligan and Diana Bowman point out there are significant jurisdictional and sectoral differences in how corruption is defined in various legal instruments, leading to the conclusion that the legal quest for a universally accepted template must be seen as something of a “definitional holy grail”. 436

Perceptions of corruption in Australia: corruption free or corruption free-for-all? [12.300] The problem of definition also impacts upon how the problem of corruption is perceived. As noted above, Australia has been consistently long-rated as a “clean” economy. According to Transparency International, Corruption Perception Index 2015, Australia ranks among the least corrupt nations of the world - ranked equal 13th with Iceland. 437 This ranking, however, is misleading. There are significant caveats to the validity of perception 433

434

435

436

437

850

See, generally, Organization of Economic Cooperation and Development (OECD) Working Group on Bribery, Phase 3 Report on Implementing the OECD Anti-Bribery Convention in Australia (October 2012). For a critical assessment of Australia’s national anti-corruption efforts, see S Bronitt, “Policing Corruption and Corporations in Australia: Towards a New National Agenda” (2013) 37 Criminal Law Journal 283. See J Jordan, “Recent Developments in the Foreign Corrupt Practices Act and the New UK Bribery Act: A Global Trend towards Greater Accountability in the Prevention of Foreign Bribery” (2011) 7 NYU Journal of Law and Business 845 at 853. Prosecution performance in Australia has been defended by the Commonwealth DPP, who has noted that prosecutions were commenced in 23 of 31 bribery-related police briefs since 2011, and that the eight matters were dropped due to the lack of reasonable prospects of conviction, in line with the prosecution policy: J Lee, “Federal Prosecutors Defend Record on Foreign Bribery”, Sydney Morning Herald (online), (19 November 2015), http://www.smh.com.au/federal-politics/political-news/federal-prosecutorsdefend-record-on-foreign-bribery-cases-20151118-gl22sr.html (cited 15 November 2016). See S Bronitt, “Policing Corruption and Corporations in Australia: Towards a New National Agenda” (2013) 37 Criminal Law Journal 283 at 285, noting this comparison is unfair on the Cayman Islands, which have made significant efforts to tackle money laundering in recent years. G Gilligan and D Bowman “Countering Corruption: An Australian Perspective” in L Holmes (ed) Terrorism, Organised Crime and Corruption: Networks and Linkages (Cheltenham: Edward Elgar Publishing Limited, 2007) p 174. Transparency International, Corruption Perceptions Index 2015, p 7, https://www.transparency.org/ whatwedo/publications (cited 15 November 2016). Perceptions that Australia has no corruption problem may be shaped by under-policing and under-enforcement of existing laws against foreign bribery. For a conceptual [12.295]

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studies on both conceptual and methodological grounds. Foremost is the focus on visible “petty” forms of corruption, which are more easily perceived, as opposed to “grand corruption” schemes, facilitated by corporate executives and “white collar” professionals. The perception that Australia is “clean” is further reinforced by the negligible levels of domestic enforcement activity, and the relative invisibility of “white collar” crime generally.

In 2010, the Organisation of Economic Cooperation and Development (OECD) Working Group on Bribery reported that Australia was one of a group of 21 countries consistently rated as exhibiting “little or no enforcement activity”. 438 While Australians do not routinely encounter “petty” corruption in their daily lives, Australia has a venerable history of “grand corruption” involving political and corporate elites. 439 Transnational foreign bribery, involving these elites, presents a serious vulnerability for Australia, particularly in light of the involvement of local corporations in “at risk” sectors, such as the agricultural, information technology, and oil and gas industries. 440 Over the past two decades, the federal parliament has enacted a suite of new offences implementing Australia’s international obligations in the field, including the Organisation for Economic Co-operation and Development Convention on Combating Bribery of Foreign Public Officials (OECD Convention); the United Nations Convention Against Corruption (UNCAC), and the United Nations Convention Against Transnational Organised Crime (UNCTOC). 441 Before the reforms enacted in 1999, the corruption offences under the Criminal Code (Cth) were limited to those contained in Part 7.6, Bribery and related offences. The core offences of bribery of a Commonwealth public official covered both the giving and receiving of bribes. Section 141.1. made it an offence for: (a)

any person dishonestly to give a benefit to a Commonwealth public official; 442 or

(b)

a Commonwealth public official dishonestly to receive a benefit; 443

438

439

440

441

442 443

and methodological critique of perception studies, see F Heinrich, and R Hodess, “Measuring Corruption” in A Graycar and R Smith (eds), Handbook of Global Research and Practice in Corruption (Cheltenham: Edward Elgar, 2011). See Organization of Economic Cooperation and Development (OECD) Working Group on Bribery, Phase 3 Report on Implementing the OECD Anti-Bribery Convention in Australia (October 2012), http:// www.oecd.org/daf/anti-bribery/Australiaphase3reportEN.pdf (cited 15 November 2016). In Queensland, between 1987 and 1989, a royal commission (the Fitzgerald Inquiry) exposed widespread police and political corruption: Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct. Following the Fitzgerald Inquiry, the Crime and Misconduct Commission was established under the Crime and Misconduct Act 2001 (Qld). The Commission led to profound changes to governance in Queensland, including the establishment of an independent anti-corruption agency: see, generally, C Lewis C, J Ransley and R Homel (eds), The Fitzgerald Legacy: Reforming Public Life in Australia and Beyond (Brisbane: Australian Academic Press, 2010). This is confirmed in global business surveys revealing the scale of “grand” corruption (bribes paid to high-ranking public officials by foreign corporations and employees) sector-by-sector: see Bribe Payers Index 2011 (Transparency International 2011) p 18, http://www.transparency.org/bpi2011 (cited 15 November 2016). In relation to UNCAC, Australia was found to be fully compliant with its obligations in relation to criminalisation and law enforcement and international cooperation: https://www.ag.gov.au/ CrimeAndCorruption/AntiCorruption/Pages/Globalleadershipincombatingcorruption.aspx (cited 15 November 2016). Criminal Code (Cth), s 141.1(1). Criminal Code (Cth), s 141.1(3). [12.300]

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The giving or receiving of a benefit above must be made with an intention of influencing the exercise of the duties of that official. 444 There are also related offences of giving and receiving a “corrupting benefit”, as well as “abuse of public office”, the latter prohibiting Commonwealth public officials exercising influence, engaging in conduct or using information, gained in the exercise of official duties, with the intention to obtain dishonestly a personal benefit (or for another) or cause a detriment to another person. 445 The fault elements of the bribery and related offences are narrowly drawn, requiring proof of both intention and dishonesty. However, the prosecution need not prove that the defendant “knew that the official was a Commonwealth public official” or that the duties were “duties as a Commonwealth public official”. 446 In relation to the dishonesty, the Criminal Code (Cth) applies the definition in s 130.3: “dishonest means (a) dishonest according to the standards of ordinary people; and (b) known by the defendant to be dishonest according to the standards of ordinary people”. As noted at [12.65], this two-limb test of dishonest, based on the discredited test in Ghosh, is a significant barrier to proving the act of giving or receiving benefits was corrupt, which may explain the rarity of prosecutions under these sections.

Foreign Bribery Offences: Extraterritorial Corruption [12.305] The foreign bribery offences, inserted into the Criminal Code (Cth) by the Criminal

Code Amendment (Bribery of Foreign Public Officials) Act 1999 (Cth), implemented Australia’s obligations under the OECD Convention. The offence of bribing a foreign public official is contained in s 70.2 of the Criminal Code (Cth), which provides: 70.2 Bribing a foreign public official (1) A person commits an offence if: (a) the person: (i) provides a benefit to another person; or (ii) causes a benefit to be provided to another person; or (iii) offers to provide, or promises to provide, a benefit to another person; or (iv) causes an offer of the provision of a benefit, or a promise of the provision of a benefit, to be made to another person; and (b) the benefit is not legitimately due to the other person; and (c) the first-mentioned person does so with the intention of influencing a foreign public official (who may be the other person) in the exercise of the official’s duties as a foreign public official in order to: (i) obtain or retain business; or (ii) obtain or retain a business advantage that is not legitimately due to the recipient, or intended recipient, of the business advantage (who may be the first-mentioned person).

A person is guilty of the offence even where the benefit is, or is perceived to be, necessary or customary, and regardless of the value of the benefit or the attitude of the official relating to the benefit. Unlike its domestic counterpart, the foreign bribery does not additionally require proof of dishonesty, which significantly simplifies prosecution. The fault element remains 444

446

Criminal Code (Cth), ss 141.1(1)(b) and 141.1(3)(b)(i) and (ii), respectively. Commonwealth public official is very broadly defined in the Code Dictionary, and includes members of the Australian Public Service, Government ministers, judges, parliamentarians, as well as contractors who provide services to the Commonwealth. Criminal Code (Cth), s 142.2(1). It is also an offence for a Commonwealth public official to use their influence or information possessed by them in their capacity as such officials, or after they have ceased to be Commonwealth officials, with the intention to dishonestly obtain a benefit or to cause harm to another person: s 142.2(2). Criminal Code (Cth), s 142.1(2).

852

[12.305]

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fundamental, though has been tailored to the specific context of punishing benefits given or received that are illegitimate, done for the specific intention or purpose of influencing the conduct of the official. This “dishonesty-free” formulation of fault for foreign bribery provides a template for rethinking other property offences, and casts doubt on whether dishonesty should continue to be viewed as the omnibus fault element for all property-related crimes in the Criminal Code (Cth). The breadth of the offence, combined with its extraterritorial operation, presents a difficulty for businesses operating in countries where such “grease payments” are lawful, and customarily paid to foreign officials to expedite government approvals or services. To address this problem, two special defences apply to the foreign bribery offence: (1) the defence of conduct lawful in foreign public official’s country (known as “foreign law defence”); and (2) the facilitation payment defence. 447 In respect of the foreign law defence, where the offering of a benefit to a foreign public official is lawful in the public official’s country, the person making the offer is not guilty of bribing a foreign public official. Following doubts raised in the AWB case whether the benefits paid were permitted under the unwritten customary law in Iraq, the defence was amended: benefits provided must be compliant with written laws of the foreign country, with the evidential burden for establishing this fact resting with the defendant. 448 In respect of the facilitation payment defence, s 70.4 of the Criminal Code (Cth) similarly provides for an exemption to foreign bribery in cases where the benefit provided to a foreign public official was of a “minor nature”, and “the conduct was engaged in for the sole or dominant purpose of expediting or securing the performance of a routine government action of a minor nature”. 449 Under the terms of the defence, the facilitation payment must be recorded. The defence is modelled on a similar provision in the United States Foreign Corrupt Practices Act of 1977 (FCPA), which had been enacted as a concession to American corporations that feared being placed at an economic disadvantage compared with competitors in jurisdictions that did not legally restrain such payments. Although at the time the FCPA placed the United States at the forefront of the global movement to stamp out foreign bribery, 450 the preservation of the exception for minor routine facilitation payments has been viewed as a serious weakness, with one commentator recently noting that: “The United States has lost some of its global anti-corruption leadership status because of this exception, and it is time for an amendment to the FCPA removing it”. 451

447 448

449 450

451

Criminal Code, ss 70.3 and 70.4, respectively. Criminal Code (Cth), s 70.3 includes a table of cases outlining different categories of public officials, and indicates what degree of legal compliance is required. This is discussed in C Davids and G Schubert, “Criminalising Foreign Bribery: Is Australia’s Bark Louder than its Bite?” (2011) 35 Criminal Law Journal 98 at 110. Criminal Code (Cth), ss. 70.4(1)(c), 70.4(3). Additionally, the defence requires that the person making or receiving the payment must make a record of the conduct as soon as practicable after the conduct occurred. C Bonstead, “Removing the FCPA Facilitation Payments Exception: Enforcement Tools for a Cleaner Business as Usual” (2014) 36(2) Houston Journal of International Law 503, noting, at 505, that the passage of the FCPA was a “clear statement of leadership for the United States in the international fight against corrupt payments to government officials”. C Bonstead, “Removing the FCPA Facilitation Payments Exception: Enforcement Tools for a Cleaner Business as Usual” (2014) 36(2) Houston Journal of International Law 503 at 506. [12.305]

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There is no official guidance in Australia on what constitutes a facilitation payment of a “minor nature”. 452 Unlike the FCPA, the Australian regulatory model does not prospectively “vet” the legality of facilitation payments. The effect is that Australian corporations must make their own assessment as to whether any proposed payment satisfies the two limbs of the defence, namely, that (a) the payment is of a “minor nature”, and (b) serves the sole or dominant purpose of facilitating “routine government action”. There is a risk that, in the absence of judicial consideration of the defence, corporations and their advisors may adopt a self-serving approach, assessing the “significance” of the proposed payment relative to the overall value of the international transaction. 453 This approach fails to acknowledge that even low-value payments can have significant distorting effects on the decision-making of foreign officials, especially from developing countries where officials are often poorly paid. 454 The OECD Working Group on Bribery in International Business Transactions has urged the abolition of the facilitation payment defence. 455 The Australian Government is actively considering its repeal and in 2015, the Senate referred a federal parliamentary inquiry into foreign bribery to the Senate Economics Reference Committee to examine whether the defence should be reformed or repealed. 456 [12.310] The continued availability of a defence for facilitation payments – a legalised form

of bribery – shapes perceptions of what counts as corruption (and conversely what does not) within both the regulatory and business communities. Even in jurisdictions where facilitation payments have been prohibited by the criminal law, such the United Kingdom, prosecution guidelines, policies and practices continue to operate to moderate the potential adverse impacts of their strict enforcement. 457 For example, in the United States and the United Kingdom, prosecutors have a discretion to enter into deferred prosecution agreements (DPAs) with corporate offenders, under which the prosecution is stayed on certain conditions which may include, inter alia, payment of a financial “penalty”, compensation to victims, agreement to cooperate with any investigation (including reimbursing investigation costs), disgorging profits and implementing compliance programs. 458 DPAs, which operate for two to three 452

453 454

455

456

457

458

854

See R Buckley and M Danielson, “Facilitation Payments in International Business: A Proposal to Make Criminal Code, s 70.4, Workable” (2008) 82 Australian Law Journal 92; C Davids, “Facilitation Payments in International Business Transactions: Law, Accounting and the Public Interest” in S Mintz (ed), Accounting for the Public Interest: Perspectives on Accountability, Professionalism and Role in Society (Dordrecht: Springer, 2014). S Bronitt, “Policing Corruption and Corporations in Australia: Towards a New National Agenda” (2013) 37 Criminal Law Journal 283 at 289. The Criminal Code (Cth) includes detailed guidance on what constitutes routine government activity with a lengthy (non-exhaustive) list of examples: s 70.4(1). In the US context, “routine services are generally regarded as ‘ministerial’, or those for which the government official has no discretion”: C Bonstead, “Removing the FCPA Facilitation Payments Exception: Enforcement Tools for a Cleaner Business as Usual” (2014) 36(2) Houston Journal of International Law 503 at 507. Working Group on Bribery in International Business Transactions, Recommendation of the Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions, adopted by the Council on 26 November 2009, Recommendations VI and VII, https://www.oecd.org/daf/anti-bribery/ 44176910.pdf (cited 16 November 2016). The committee is to report by 30 June 2017; Attorney-General’s Department, Divisions 70 and 141 of the Criminal Code Act 1995: Assessing the “Facilitation Payments” Defence to the Foreign Bribery Offence and Other Measures, Public Consultation Paper (2011), http://www.ag.gov.au/agd Serious Fraud Office, Bribery Act 2010: Joint Prosecution Guidance of the Director of the Serious Fraud Office and the Director of Public Prosecutions (2011), https://www.sfo.gov.uk/publications/guidance-policy-andprotocols/bribery-act-guidance (cited 15 November 2016). See, generally, J O’Brien, “The Sword of Damocles: Deferred Prosecutions and the Search for Accountability” in J O’Brien and G Gilligan (eds), Integrity, Risk and Accountability in Capital Markets: Regulating Culture (Oxford: Hart Publishing, 2013). [12.310]

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years, offer an attractive alternative to the uncertainties and high costs that flow from the prosecution of large corporations, including in some cases, the risk of damage to both national and even global economies. The Australian Government and Senate Committee are currently considering the introduction of deferred prosecution agreements (DPAs) to improve the efficiency and effectiveness of Australia’s response to serious corporate crime, including in relation to bribery of foreign officials by corporations and corporate officials. 459 However, the policy rationale for using DPAs is often confused at best, if not entirely absent, 460 and there have been calls for the purposes and principles to be clearly defined by legislation in any DPA scheme introduced in Australia. 461 A criticism of DPA schemes, like the legal toleration of facilitation payments, is that they send “mixed messages” about corruption and foreign bribery, 462 permitting corporate counsel to exploit legal loopholes, and enabling senior executives to factor future settlement penalties under DPAs into the “costs of doing business”. Post-GFC there is a compelling argument that the strong and consistent message that “serious corporate crime does not pay” should prevail, and ought to cause government regulators and prosecutors to pause before embracing these regulatory innovations. 463 That said, the global trend seems to favour diversionary justice for both individuals and corporations, as well as the use of civil remedies (such as enforceable undertakings and settlements). 464 Provided such schemes are grounded on clearly articulated rationales, guided by principles, policies and practices promoting prevention and restorative justice ideas, there is scope for significant progress in tackling corruption, as well as corporate and “white collar” crime more generally. 465 This strategy is consistent with research on corporate compliance suggesting that, rather than the threat and costs of punishment, many other factors come into play in promoting compliance, including social and cultural mores, concern about reputation and maintaining legitimacy “in the eyes of government, industry peers, and the public”. 466 459

460 461

462 463

464 465

466

Senate Standing Committee on Economics Committee, An Inquiry into the Measures Governing the Activities of Australian Corporations, Entities, Organisations, Individuals, Government and Related Parties with Respect to Foreign Bribery (2015), http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/ Economics/Foreign_Bribery (cited 15 November 2016). Attorney-General’s Department, Improving Enforcement Options for Serious Corporate Crime: Consideration of a Deferred Prosecution Agreements Scheme in Australia, Public Consultation Paper (Australian Government, March 2016), https://www.ag.gov.au/ Consultations/Pages/Deferred-prosecution-agreements-public-consultation.aspx (cited 16 November 2016). D Uhlmann, “Deferred Prosecution and Non-Prosecution Agreements and the Erosion of Corporate Criminal Liability” (2013) 72 Maryland Law Review 1295 at 1315. For an essay examining the regulatory and policy issues relating to the use of DPAs, and a proposal to remodel DPA schemes around preventive justice goals, see S Bronitt, “Regulatory Bargaining in the Shadows of Preventive Justice: Deferred Prosecution Agreements” in T Tulich, R Ananian-Welsh, S Bronitt and S Murray (eds), Regulating Preventive Justice: Principle, Policy and Paradox (Abingdon, Oxon: Routledge, 2017). S Bronitt, “Policing Corruption and Corporations in Australia: Towards a New National Agenda” (2013) 37 Criminal Law Journal 283. For the argument that there is a need for more, not less, criminal prosecution activity against corporate crime, see B Garrett, Too Big To Jail: How Prosecutors Compromise with Corporations (Cambridge: Harvard University Press, 2014). V Comino, Australia’s “Company Law Watchdog”: ASIC and Corporate Regulation (Sydney: Lawbook Co. Thomson Reuters, 2015). J Braithwaite, “Cultures of Redemptive Finance” in J O’Brien and G Gilligan (eds), Integrity, Risk and Accountability in Capital Markets: Regulating Culture (Oxford: Hart Publishing, 2013); C Parker, “Restorative Justice in Business Regulation? The Australian Competition and Consumer Commission’s Use of Enforceable Undertakings” (2004) 67 Modern Law Review 209. C Parker and J Braithwaite, “Regulation” in P Cane and M Tushnet (eds), The Oxford Handbook of Legal Studies (Oxford: Oxford University Press, 2007) p 131. [12.310]

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CONCLUSION [12.315] Property crimes have undergone significant transformation over the past two

decades. As recent data reveal, across the board, over the past 15 years Australia has experienced significant declines of up to 70% in rates of theft, burglary and robbery. 467 Does this mean that society is more honest than before? Or does this mean that illicit markets operate differently? The ubiquity of electronic commerce, target hardening through the use of improved surveillance systems for homes and vehicles, has changed the opportunity structures for offending. Another explanation is that 21st century fraud is harder to detect and, as discussed in Chapter 15, cybercrimes are not always identified or reported by victims. This chapter identified a number of recurrent themes. The first theme is that there is a complex array of social, political, economic and, increasingly, global and technological forces, shaping the development of property offences. From larceny’s origins as a simple crime against possession, the offences dealing with stealing have been significantly remodelled to capture new forms of fraudulent and dishonest dealings in property. The modern law of theft protects a wide range of proprietary interests beyond simple possession. This evolution has required the courts and legislatures to adapt the law to reflect the changing nature of property and ways of doing business: from protecting coins and tangible chattels, to credit cards and intangible interests and global markets, the law governing property offences has been subject to a constant cycle of legislative reform and judicial development. Another theme is the consensus that dishonesty is the hallmark of culpability for all property offences. Much of the academic discussion in this area of the criminal law is devoted to resolving authoritatively the meaning and scope of dishonesty. However, dishonesty in Australia is not understood uniformly: the discredited Ghosh test still retains legislative support, notwithstanding academic and judicial critiques directed to this two-limbed test – a test that, in the words of former Chief Justice Gleeson, indulges “morally obtuse” members of society since it demands proof that the accused is aware that their conduct is dishonest according to the community standards. 468 The preoccupation—perhaps even obsession—with the fault element for property offences distracts attention from examining the wrongfulness of the physical elements of the offence. As dishonesty becomes the principal criterion for wrongfulness, the physical elements (such as the trespass to property or deception) appear increasingly redundant. This is reflected in the broad, all-encompassing definition of appropriation for theft, which punishes any dishonest dealing in property without proof of a trespass, and the enactment of general fraud offences which dispense with the requirement of an operative deception. Another theme running through this chapter, and others, is the impact of technology on property crimes, such as theft and fraud. In the 1980s and 1990s, the difficulties in using existing property offences against computer fraud led to the enactment of remedial provisions and/or specialised computer offences analogous to unlawful trespass and criminal damage. From being an adjunct to property offences, cybercrime is now considered a discrete field of the criminal law, raising its own legal and policy issues: see Chapter 15, [15.240]ff. This approach reflects the recommendation of the Model Criminal Code Officers Committee (MCCOC) that computer offences should be confined to damage to computer systems, while 467

468

The dramatic falls in both victimisation and reported crime rates are examined in G Clancey and R Lulham, “The New South Wales Property Crime Decline—Contemporary Comment” (2015) 25(3) Current Issues in Criminal Justice 839. These trends are global, and, as the authors note at p 847, contrary to popular opinion, changes in economic conditions, illicit drug markets and policing strategies (such as zero tolerance) are not likely to be causally significant. Rather, for property crime, it appears that changes to “opportunity structures”, specifically improvements in vehicle immobilisers and home security, may explain the strong and growing evidence of declining crime rates across different jurisdictions. M Gleeson, “Australia’s Contribution to the Common law” (2008) 82 Australian Law Journal 247 at 249.

856

[12.315]

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“computer fraud” should be dealt with under general offences of theft and related offences, amended where necessary to cover computers. This template for reform provides conceptual coherence to the legal response to cybercrime, and overcomes the erratic and piecemeal approach to reform that previously characterised this area of the criminal law. The Cybercrime Act 2001 (Cth) provided a new conceptual approach to the problem, as well as marking yet another significant expansion in the scope of federal criminal law. Technological advances facilitate global trade and commerce, but also expose the limitations of territoriality in the criminal law. The MCCOC’s reminder that in the digital age “fraud knows no boundaries” creates further challenges for law enforcement, as well as raising legitimate concerns over the proper reach of the criminal law. With increasing concern about the global nature of organised crime—in particular, “white collar crime”—there will be concerted pressure at the international level to create new laws, supported by specialised investigative agencies, to combat emerging forms of transnational property crime.

[12.315]

857

Chapter 13

Public Order Good order is the foundation of all good things. 1 [13.05] [13.10]

INTRODUCTION ........................................................................................................................ 859 The Politics of Public Order ........................................................................................................ 860

[13.20] [13.20] [13.30] [13.50] [13.55] [13.95] [13.125]

PUBLIC ORDER POWERS ............................................................................................................ 864 Preventive Justice, Keeping the Peace and Binding Over ............................................................ 864 Defining Public Order: Policing Across Public and Private Spheres .............................................. 868 Policing Public Disorder ............................................................................................................. 878 Breach of the Peace ................................................................................................................... 879 Selected Statutory Public Order Powers ...................................................................................... 896 Public Order and the Centrality of Police Discretion ................................................................... 907

[13.130] [13.135] [13.145] [13.150] [13.200] [13.215] [13.220] [13.225] [13.240]

PUBLIC ORDER OFFENCES ......................................................................................................... 910 Making Public Order Crimes: Prosecutorial, Judicial and Legislative Development ...................... 910 The Territory of Public Order Offences: General Acts and Local By-Laws ..................................... 912 Offensive Conduct and Language Crimes ................................................................................... 913 Unlawful Assembly ..................................................................................................................... 931 Affray and Fighting in Public Places ............................................................................................ 935 Rout and Violent Disorder .......................................................................................................... 938 Sedition and Riot ....................................................................................................................... 939 CONCLUSION ........................................................................................................................... 942

INTRODUCTION [13.05] The scope of public order law is broad and overlaps with many other areas of the

criminal law. For example, stalking spans both offences against the person and public order law. Although stalking is now a distinct offence, it may also trigger the exercise of a wide range of public order powers. In New South Wales, for example, stalking is both an offence as well as one of the grounds for granting an apprehended violence order. 2 Moreover, offences against “public morals”, such as gross indecency and prostitution, function more like public order offences than sexual offences: see Chapter 11, [11.210]. 1 2

E Burke, Reflections on the Revolution in France (Hammondsworth: Penguin, 1970) p 372. In 2007, the offence of stalking in the Crimes Act 1900 (NSW) was repealed and inserted into the Crimes (Domestic and Personal Violence) Act 2007 (NSW) along with provisions relating to granting apprehended personal violence and apprehended domestic violence orders, now being combined into one Act: s 8 (definition of stalking); s 13 (stalking or intimidation offence).

[13.05]

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Public order law is also highly diversified. Crimes range from relatively minor nuisance-type offences, such as drunkenness, urination and use of offensive language in public, to some of the most serious crimes against the State, such as unlawful assembly and riot. Minor public order offences, which form the bulk of summary prosecutions, are routinely dealt with by way of summons, infringement or penalty notices. As with traffic infringements, “on the spot” penalty notices for public order crimes avoid clogging lower courts with minor matters, promoting system efficiency. It can however impact negatively and disproportionately on the socially and economically disadvantaged, who may not be in a position to pay the prescribed penalty, leading to an increased risk of charges being laid and conviction following in due course. 3 For an explanation of infringement notices and expiation schemes, see Chapter 1, [1.160].

The Politics of Public Order [13.10] Moral panics about hooliganism and juvenile delinquency produce demands for new

offences and wider police powers to deal with disorderly elements. 4 David Garland in his examination of trends of crime control identified a “new collective experience of crime and insecurity”, which he attributes to several factors, including the increased salience of crime due to social and spatial changes and the rise of mass media. 5 As a consequence, public order reform is highly susceptible to an “uncivil politics of law and order”, with debate about reform directed by law and order common sense rather than informed expert opinion. 6 The criminal justice system would be an excellent candidate for an “evidence-based approach” to reform. 7 Yet, the reform of public order law has been strikingly resistant to the value and insights offered by empirical research. There has, for example, been little or no evaluation of whether existing public order offences or policing strategies have reduced or prevented crime in Australia. The expansion of police powers in Australia in the 1990s was a political response to the perceived problem of “gangs” and “knives on the streets”. However, these reforms were neither based on empirical nor public policy research on the incidence of crime and disorder or the effectiveness of proposed crime prevention strategies and legal reforms. 8 Basing reform on common sense or public opinion is likely to produce only wider and more coercive police powers. A study of public attitudes on policing revealed that around 61% of the respondents

3

4

5 6 7 8

860

A recent study of public nuisance offences in Queensland notes that the advent of infringement notices led to an increase of 50% in police charging public nuisance offences, despite a decrease in court attendances for such offences: T Walsh, “Ten years of public nuisance in Queensland” (2016) 40(2) Criminal Law Journal 59 at 67. The term “moral panic” was coined by Stanley Cohen in a famous book, Folk Devils and Moral Panics: The Creation of the Mods and Rockers (St Albans, Herts: Paladin, 1973) as explored in Chapter 1, [1.225]. For an excellent article applying the work of Stanley Cohen and David Garland to the local law and order reform context, see G Coss, “The Politics of Reaction” (2009) 32(6) Criminal Law Journal 329. D Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Chicago: University of Chicago Press, 2001) p 139. R Hogg and D Brown, Rethinking Law and Order (Sydney: Pluto Press, 1998) Ch 1. See D Weatherburn, Law and Order in Australia (Sydney: Federation Press, 2004). Indeed, national community safety studies, conducted in 2005 and 2008, revealed that public concern about crime and public disorder in local neighbourhoods was generally declining. The Crime and Safety Survey 2008, undertaken by the ABS, found that 55% of people aged 15 and over perceived no crime and/or public nuisance problems in their neighbourhood, which dropped from 70% in 2005: http://www.abs.gov.au/ausstats/ [email protected]/mf/4509.1 (cited 20 October 2016). [13.10]

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agreed that “police don’t have enough powers to do their jobs properly”. 9 As this chapter reveals, police possess a surplus of powers, both common law and statutory, to respond to public disorder. Potentially, any conduct that causes public alarm or community disquiet may justify a legislative response. Law and order campaigns tend to generate hastily drafted criminal laws that pay only scant attention to the adequacy or potential overlap of existing police powers and offences. While the criminalisation of stalking throughout Australia directly responds to community fears, these new offences are open to the accusation of redundancy on the ground that existing public order laws and offences against the person are more than adequate for the task. As Celia Wells noted, public order legislation responding to public fears tends to follow the same pattern of “addressing a narrowly conceived social harm with a widely drawn provision, often supplementing and overlapping with existing offences”. 10

Law reform perspectives Public Panic, Hoaxes and Consumer Terrorism [13.15] The emergence of new threats to public order, such as contamination of goods,

illustrates the historical and political contingency of criminalisation. The issue of “product tampering” and “consumer terrorism” seized the imagination of the media, the general public and law-makers as a result of a series of cases in the 1990s. Following a highly publicised threat of contamination targeting Arnott’s biscuits in February 1997, the company recalled all of its products in Australian supermarkets with devastating financial consequences for shareholders and employees. As a direct result of this case, the Commonwealth Attorney-General referred the issue to the Model Criminal Code Officers Committee (MCCOC) for consideration. In its discussion paper and final report, the MCCOC concluded that existing criminal laws were inadequate and inappropriate, and proposed that special offences dealing with contamination of goods should be enacted. 11 Concerns about the inadequacy of existing penalties and territorial jurisdiction raised general questions distinct from criminalisation. These perceived inadequacies could have been addressed without creating new offences. The report gave no consideration to the designation of the proposed offences as public order offences, and only briefly examined their relationship to existing criminal laws. The political imperative to adopt a legislative response to community concern (from both business and consumer sectors) about contamination of goods overcame the objection that this conduct could be adequately addressed through existing offences such as offences against the person, endangerment, administering poisons/noxious substances, public nuisance, extortion, blackmail and conspiracy to defraud and so on. 12 The MCCOC report concluded that new offences were needed because of the special nature of the harm and the need to adopt tougher penalties and rules for extra-territorial jurisdiction. 13 The political dimension of “consumer terrorism”, both at a domestic and international level, played a significant role in the process of criminalisation. The proposed offences were modelled directly on 9

10 11 12 13

Crime and Misconduct Commission, Public Perceptions of the Queensland Police Service (2011), http:// www.ccc.qld.gov.au/research-and-publications/publications/research/public-perceptions/publicperceptions-of-the-queensland-police-service-findings-from-the-2010-public-attitudes-survey.pdf (cited August 7 2016) p 25. C Wells, “Stalking: The Criminal Law Response” (1997) Criminal Law Review at 464. MCCOC, Chapter 8—Public Order Offences: Contamination of Goods, Report (1998). MCCOC, Chapter 8—Public Order Offences: Contamination of Goods, Report (1998) p 3. MCCOC, Chapter 8—Public Order Offences: Contamination of Goods, Report (1998) p 5. [13.15]

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contamination of goods legislation enacted in the United States and the United Kingdom. 14 Even before the MCCOC report had been released, offences had been enacted in New South Wales, Queensland and Victoria. South Australia and Tasmania have since followed suit. 15 The political consensus and speed of reform stand in stark contrast to the usual difficulties of achieving uniformity for the criminal law within our federal system. Another example of the use of public order laws to quell public fear are the range of anti-hoax offences to deal with individuals who falsely induce panic in the community, which have acquired new salience and particular statutory form in the post-9/11 environment: see Chapter 15, [15.155]. Offences against public order must be understood in the context of their enforcement. The extensive powers under common law and statute to prevent and suppress disorder are examined in “Public order powers”, [13.20]ff. The policing of public order situations does not always result in formal intervention such as arrest or prosecution. This emphasis on order-maintenance and prevention of crime and disorder explains its relative invisibility in official statistics and reported decisions. Indeed, public order offences tend to operate primarily as a resource that police may draw upon to negotiate situations with a potential for disorder. As Denis Galligan noted: The law may have little impact, being more in the nature of a resource to be used as a last resort in ensuring compliance with the police’s conceptions of good order. 16

The threat of formal intervention, such as arrest, is merely one resource that police may draw upon. There are also wide-ranging “quasi-criminal” powers, falling short of arrest, available to citizens, police and magistrates to prevent crime and disorder. As we shall explore in the next section, the exercise of these powers may have serious implications for the exercise of fundamental human rights, including the right to privacy, as well as civil and political rights, such as freedom of expression, assembly and association. The paramount duty of the police is to prevent crime and disorder. This responsibility formed part of the original mandate of modern policing in the 19th century, and is now incorporated into police service codes of conduct and statements of values. It has been recognised by the courts and is now reflected in legislation in some jurisdictions. 17 The law has imposed few formal constraints on operational police decision-making, especially in public order situations. The frontline police often claim in their interactions with citizens that they have minimal discretion. The myth of full enforcement identifies the police with the rule of law, giving their authority both moral and political legitimacy. However, it has been empirically demonstrated that, in the execution of their duties, police possess a wide discretion 14 15

16 17

862

Public Order Act 1986 (UK), s 38. See Criminal Code (Qld), Ch 24; Crimes Act 1900 (NSW), Pt 3A (Div 3); Criminal Law Consolidation Act 1935 (SA), Pt 7A; Criminal Code Act (Tas), Ch XXXIIB; Crimes Act 1958 (Vic), s 251. In Queensland, Tasmania and Victoria, the legislation makes no distinction between contamination which does or does not cause harm. In New South Wales and South Australia, the legislation additionally includes aggravated offences for contamination which causes harm or threatens public health. D Galligan, “Preserving Public Protest: the Legal Approach” in L Gostin (ed), Civil Liberties in Conflict (London and New York: Routledge, 1988) p 49. See, for example, Police Act 1990 (NSW), s 6 where the mission of the NSW Police Force is described as “to work with the community to reduce violence, crime and fear” and “to provide police services” which are framed as “(a) services by way of prevention and detection of crime, and (b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and (c) the provision of essential services in emergencies, and (d) any other service prescribed by the regulations”. The duty to keep the peace is further restated in regs 8 and 9 of the Police Regulation 2000 (NSW), discussed in Kuru v State of New South Wales (2008) 236 CLR 1 at 17-18. See also Australian Federal Police Act 1979 (Cth), s 8. [13.15]

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in how to enforce (or not enforce) the law. 18 Moreover, from a normative legal perspective, the ideal of full enforcement has been rejected in favour of a discretionary approach to policing. Both the courts and legislatures have imposed only minimal fetters on the exercise of police discretion. The modern perspective is that police officers are legitimately authorised to exercise discretion in discharge of their duties; discretion is not something to be curbed—for example, by policies of strict enforcement or mandatory arrest—but, rather, police discretion should be guided by transparent principles and policies and thus amenable, in appropriate cases, to judicial review. The wide discretion recognised by the courts in relation to public order should not be viewed as a deviation from legality, but rather is condoned by the courts both as a necessary and legitimate feature of modern policing. The standards of legality and fairness that should constrain police decision-making (through the substantive law and judicial review) are, in reality, far from the minds of those police confronted with the practical task of maintaining order. As we shall explore below, it is invariably police culture, rather than legal standards, that determine how situations with potential for disorder, such as “political protests” or “domestic disputes”, will be managed. Police have considerable leeway in how to respond to threats to public order. This discretion is supported by broad and nebulous definitions that lie at the core of many powers and offences, such as “breach of the peace” or “offensive conduct”. The summary nature of these offences has meant that there has only been limited appellate clarification of key concepts. As Lawrence Lustgarten observed: A key characteristic of all preventative public order offences, is that the police are a complainant, judge, and, in all but a few cases, jury as well. This is because the vast bulk of prosecutions are conducted using summary trial, in which the accused is denied the protection of a jury verdict and in which magistrates are notorious for accepting police officers’ versions of key facts. 19

As in other areas of the criminal law, the summary nature of most public order offences reinforces an “ideology of triviality” around this field of law and policing. 20 This invisibility of public order law must be resisted by legal scholars and criminal lawyers; not only does public order law loom large in the daily lives of the citizens, the police, criminal lawyers and magistrates, it also reveals important perspectives on the process of criminalisation, the nature and structure of criminal liability, and the political, social and cultural context of law enforcement.

18

19 20

See S Bronitt and P Stenning, “Understanding discretion in modern policing” (2011) 35(6) Criminal Law Journal 319 at 320 and P Stenning, “Discretion” in A Wakefield and J Fleming (eds), The SAGE Dictionary of Policing (London: Sage, 2009) p 85. L Lustgarten, “The Police and the Substantive Criminal Law” (1987) British Journal of Criminology 24 at 29. D McBarnet, Conviction: Law, the State and the Construction of Justice (London: Macmillan, 1981), discussed in Chapter 1 [1.130]. [13.15]

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PUBLIC ORDER POWERS [P]reventive Justice is upon every principle, of reason, of humanity, and of sound policy, preferable in all respects to punishing justice. 21

Preventive Justice, Keeping the Peace and Binding Over [13.20] The common law dealing with breach of the peace has an ancient pedigree dating

back to 10th century Norman England. 22 From the 14th century onwards, English statutes granted Justices of the Peace (the forerunner of the modern magistrate) wide powers to prevent, and later to punish, threats to the “King’s peace”. Justices of the Peace were empowered to require a person to enter into a recognisance (a written undertaking), with or without sureties (a pledge of money), to “keep the peace and/or be of good behaviour”. The practice of binding over to ensure “good behaviour”, as distinct from keeping the peace, derives from the Justices of the Peace Act 1361 23 and the nature of the oath-taking by Justices of the Peace. 24 The High Court has confirmed that the common law and 14th century English statutes broadening these powers were received into the common law of Australia and are exercisable by Justices of the Peace or any court that has inherited its jurisdiction. 25 Blackstone venerated binding over as an example of “preventive justice” (as exemplified in the above quotation). From an 18th century perspective, preventive justice was clearly preferable to punishing justice. In the absence of a professional, disciplined police force, responsibility for law enforcement was shared between local citizens, constables and lay Justices of the Peace. Though administered by amateurs, the criminal justice system was not benign. Felonies were routinely punishable by death. Against this backdrop, binding over became an indispensable aspect of local summary justice. As a crime control measure administered by local Justices, it was a more merciful alternative to prosecution and conviction before the itinerant judges of the Royal courts. From a 21st century perspective, these feudal powers to bind over to obtain a promise from individuals to keep the peace and/or be of good behaviour seem anomalous and quaint. That said, these original “peace orders” have been refashioned into modern restraining and protection orders to combat a wide range of anti-social, domestic/family violence, harassment or stalking, and other nuisance-type conduct. Binding over orders, and their modern analogues, straddle the border between the criminal and civil law. Although binding over carries the risk of imprisonment, if a person refuses to enter into, or breaches, the recognisance, it is not in the nature of punishment. Rather, binding over is “a precautionary measure to prevent a future crime, and is not by way of punishment

21

23 24 25

W Blackstone, Commentaries on the Laws of England (9th ed, London: Garland, 1978), (first published 1765) Book IV, p 251. D Feldman, “The King’s Peace, The Royal Prerogative and Public Order: The Roots and Early Development of Binding Over Powers” (1988) 47(1) Cambridge Law Journal 101. 34 Edw 3 c 1. Forbutt v Blake [1981] 51 FLR 465 at 473. Devine v The Queen (1967) 119 CLR 506 at 514 per Windeyer J; see also Forbutt v Blake [1981] 51 FLR 465 at 474. For a detailed discussion of the history and evolution of the magistracy in Australia, see J Lowndes, “The Australian Magistracy: From Justices of the Peace to Judges and Beyond—Part I” (2000) 74 Australian Law Journal 509; J Lowndes, “The Australian Magistracy: From Justices of the Peace to Judges and Beyond—Part II” (2000) 74 Australian Law Journal 592; H Golder, High and Responsible Office: A History of the NSW Magistracy (Sydney: Sydney University Press, 1991).

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for something past”. 26 Binding over may be applied to any conduct likely to cause a breach of the peace. 27 Binding over may also be used to restrain peaceful and perfectly lawful conduct on the ground that it provoked or was likely to provoke others to violence. Binding over orders have been used in a wide variety of situations, including cases where the person to be bound over had: • obstructed the highway; • obstructed the police in the execution of their duty; • used threatening, abusive or insulting words; or • engaged in conduct which caused, or was likely to cause, a breach of the peace. The potential for these laws to operate as a “prior restraint” on individuals engaged in peaceful political protest is explored at [13.85]. A binding over order may be imposed on the court’s own initiative, or where legislation provides, following the laying of a complaint, information or summons. Before requiring the accused to enter into a recognisance, the magistrate must be satisfied that the alleged apprehension of a breach of the peace was “reasonable”. Since a binding over order is not the equivalent of a criminal conviction, the standard of proof in making the order and determining whether an alleged breach has been established is the civil standard of balance of probabilities, although it has been suggested that, in evaluating the strength of the evidence to establish the basis of an order, the court must take into account the seriousness of the allegation against the person against whom the complaint is made. 28 Although the obligation to keep the peace and be of good behaviour is imprecise, the High Court has established “that most conduct which justifies the making of a binding over order can also serve as the basis for forfeiture”. 29 In all jurisdictions in Australia, the common law relating to binding over has been codified and/or supplemented by legislation creating a range of “protection orders”. This term, though not applied by all jurisdictions, was developed by the Domestic Violence Legislation Working Group in its Report, Model Domestic Violence Laws (1999), discussed at [13.45] “Preventive perspectives on family violence: the use of protection orders”. Such legislation has preserved the key features of the common law, including its anomalies. For example, s 19B of the Crimes Act 1914 (Cth) allows a court of summary jurisdiction to release an offender on a binding over order without having to proceed to a conviction. As we shall examine below, the historic lineage of these preventive powers obscures the significant role that the modern courts and parliaments have played in developing and expanding the common law to meet the needs of public order policing in the late 20th century. Binding over also provided a template for specialised statutory protection orders to restrain domestic violence, as well as other forms of apprehended violence such as stalking, intimidation and molestation. In some jurisdictions, hybrid orders that meld the common law into statutory schemes have been adopted. In the Australian Capital Territory, for example, the 26 27

28

29

Ex parte Davis (1871) 24 LT 547. See P Power, ““An Honour and Almost a Singular One”: A Review of the Justices’ Preventive Jurisdiction” (1982) 8 Monash University Law Review 69. In Forbutt v Blake [1981] 51 FLR 465 at 475, Connor ACJ held that “a binding over order may be available against a person who has not committed any offence in circumstances where the consequence of his [or her] lawful conduct is likely to produce a breach of the peace by other persons”. Hulett v Laidlaw (1996) 89 A Crim R 240 (QCA) at 243 per Fitzgerald P, following the modified civil standard developed by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336: see further Chapter 2, [2.185]. By contrast, the English courts have applied the criminal standard of proof, requiring the facts upon which the order is granted to be proved beyond reasonable doubt: R v London Quarter Sessions; Ex parte Metropolitan Police Commissioner [1940] KB 670. Devine v The Queen (1967) 119 CLR 506 at 516 per Windeyer J. [13.20]

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magistrate has the power to order an accused to “keep the peace … in every case of apprehended violence by any person to the person of another, or of his or her domestic partner or child, or of apprehended injury to his or her property”. 30 The common law binding over powers theoretically remain available in jurisdictions that have not expressly repealed them, though there is increasing preference for applying new statutory protection orders. 31 Under these statutory regimes, unlike the common law, breach of the order is made a distinct offence. Such orders, whether founded on the common law or statute, offer many advantages for defendants, police, prosecutors and judges. The avoidance of prosecution and conviction for a criminal offence may be attractive to defendants. From the “official” perspective, the power to bind over “provides a flexible way to deal with cases arising out of disputes between neighbours and minor public order problems without the need for a full hearing. It saves time and money”. 32

Human rights perspectives Binding Over and Quasi-Criminal Laws [13.25] Summary preventive powers, while not entailing conviction or punishment, are

neither benign nor lacking in punitive force. The European Court of Human Rights (ECtHR) has considered whether the common law power to arrest and bind over individuals who are likely to commit a breach of the peace violates the right to liberty and security of the person, contrary to Art 5 of the European Convention on Human Rights (ECHR). Article 5 contains exceptions where the deprivation of liberty will be justified, and these include: • detention after conviction; • lawful arrest or detention for the non-compliance of a lawful order of a court (e.g. contempt); or • lawful arrest or detention for the purpose of bringing a person, reasonably suspected of having committed an offence, to court or to prevent a person committing an offence or fleeing. In Steel v United Kingdom, the ECtHR held that breach of the peace, whatever its domestic characterisation, must be regarded as an “offence” for the purpose of Art 5 of the ECHR. 33 As such, any deprivation of liberty and detention must comply with domestic law and procedures and must not be arbitrary. 34 Although the scope of the “breach of the peace” concept had been unclear, the court observed that recent decisions over the past two decades had resolved much uncertainty. It concluded that the powers and procedures governing the breach of the peace were sufficiently clear to comply with the requirements of the ECHR. Since the International Covenant on Civil and Political Rights (ICCPR), to which Australia is a signatory, also contains a right to liberty and 30 31

33 34

Crimes Act 1900 (ACT), s 397(1), (2). See N O’Neill, R Handley and R Douglas, Retreat From Injustice (2nd ed, Sydney: Federation Press, 2004) pp 292ff; R Alexander, Domestic Violence in Australia—The Legal Response (3rd ed, Sydney: Federation Press, 2002) pp 77ff. D Feldman, “The King’s Peace, The Royal Prerogative and Public Order: The Roots and Early Development of Binding Over Powers” (1988) 47(1) Cambridge Law Journal 101 at 101. Steel v United Kingdom (1999) 28 EHRR 603 at [49]. Steel v United Kingdom (1999) 28 EHRR 603 at [54].

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security of person and immunity from arbitrary arrest and detention (Art 9), this decision is similarly relevant to the common law and statutory powers of arrest and binding over to prevent a breach of the peace in Australia. This has even direct legal relevance in the Australian Capital Territory and Victoria since the enactment of Art 9 into domestic law under their respective human rights legislation: see Chapter 2, [2.150]. The finding that binding over orders were sufficiently clear to satisfy the provisions of the ECHR is surprising in light of the earlier criticism offered by the Law Commission for England and Wales. After reviewing the authorities on binding over, the Law Commission recommended its abolition on the following grounds: “These objections are, in summary, that the conduct which can be the ground for a binding over order is too vaguely defined; that binding over orders when made are in terms which are too vague and are therefore potentially oppressive; that the power to imprison someone if he or she refuses to consent to be bound over is anomalous; that orders which restrain a subject’s freedom can be made without the discharge of the criminal, or indeed any clearly defined, burden of proof; and that witnesses, complainants or even acquitted defendants can be bound over without adequate prior information of any charge or complaint against them.” 35

That said, there is little sign that these powers will be abolished. Indeed, they have been supplemented in the United Kingdom through legislation which permits the granting of anti-social behaviour orders (ASBOs). 36 These preventative orders, obtained by way of civil proceedings before magistrates, may be imposed for a minimum of two years, backed up with a provision that a breach constitutes a distinct criminal offence with a maximum of five years’ imprisonment. 37 They are not benign measures and it must be recalled, as Andrew Ashworth has noted, that the “ASBO was devised in order to avoid the safeguards applicable under the criminal justice model”. 38 Indeed, the compatibility of the orders with the basic procedural rights now guaranteed by the Human Rights Act 1998 (UK), specifically those contained in the right to a fair trial, was reviewed by the House of Lords in R v Manchester Crown Court. 39 The House of Lords held that the proceedings in which anti-social behaviour orders were granted were civil, though, reflecting their quasi-criminal character, concluded that the relevant standard of proof should be higher than in ordinary civil proceedings (namely, the criminal standard of beyond reasonable doubt) because of the “seriousness of the matters to be proved and the implications of proving them”. 40 In Australia, legislation expressly specifies that the standard of proof to be applied by the magistrate granting the order is the balance of probabilities rather than the criminal standard beyond reasonable doubt. 41 In the Australian Capital Territory, where the right to a fair trial is similarly protected by s 21 of the Human Rights Act 2004 (ACT), it may be

35 36

37 38

39 40 41

Law Commission for England and Wales, Binding Over, Report 222 (London: HMSO, 1994) [6.27]. See, generally, A Ashworth, “Criminal Law, Human Rights and Preventative Justice” in B McSherry, A Norrie, and S Bronitt (eds), Regulating Deviance: The Redirection of Criminalisation and the Futures of Criminal Law (Oxford: Hart Publishing, 2009) Ch 5. Crime and Disorder Act 1998 (UK) c 27, s 1. See, generally, A Ashworth, “Criminal Law, Human Rights and Preventative Justice” in B McSherry, A Norrie, and S Bronitt (eds), Regulating Deviance: The Redirection of Criminalisation and the Futures of Criminal Law (Oxford: Hart Publishing, 2009) p 95. R v Manchester Crown Court [2002] UKHL 39. R v Manchester Crown Court [2002] UKHL 39 at [83] per Lord Hope. For example, Domestic Violence and Protection Orders Act 2008, s 16. See Australian Law Reform Commission, Family Violence – A National Legal Response, Report No 114 (2010) p 193 at [5.14]. [13.25]

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argued, in light of this House of Lords decision, that the Territory legislation is incompatible with the right to a fair trial. A similar argument might be advanced in Victoria, by invoking the Charter of Human Rights and Responsibilities 2006 Act (Vic). Alternatively, the courts may seek to avoid such a declaration of incompatibility by interpreting s 19 as imposing the higher civil standard that has developed by the High Court in Briginshaw v Briginshaw 42: see Chapter 2, [2.185]. As well as raising concerns about the rule of law and due process, binding over and protection orders raise concerns about imposing unjustified restrictions on the right to peaceful assembly. The decision in Steel v United Kingdom explored this question; specifically, whether the power to arrest and bind over individuals engaged in political protest interferes with freedom of speech, assembly and association protected by the ECHR: see [13.90].

Defining Public Order: Policing Across Public and Private Spheres [13.30] The law governing public order traverses both the public and private spheres. The

common law powers and offences dealing with public order are not confined to public places, but may be applied to disorder that occurs on private premises. In an effort to limit the intrusive exercise of police powers, statutory powers and offences are sometimes restricted to “public places”, such as the police power to request individuals to “move on”, as well as public nuisance, public indecency and offensive conduct or language crimes. The statutory definition of “public place” is broad, expressly covering places to which members of the public ordinarily have access. 43 The scope of “public place” is determined by its habitual use by members of the public, rather than by strict legal rights. By adopting this extended definition, public order powers and offences are extended to “semi-private” places, such as public lavatories and clubs, as well as commercial spaces, such as shopping malls and night-time entertainment precincts. Indeed, a police “lock-up” has been claimed as a public place in a prosecution for using offensive language in the presence of a police officer. The discriminatory effect of these laws against young people and minority groups is considered at [13.140] and [13.175]. Not all statutory public order offences and powers are limited to public spaces. In New South Wales, the statutory offences of riot, affray and violent disorder “may be committed in private as well as in public places” 44 respectively. It may be argued that the public interest in preventing and suppressing serious disorder trumps rights of ownership and private property. The strength of such an argument is weakened by the fact that the offence of violent disorder, as reflected in its summary nature and penalties, was enacted to deal with minor cases of disorder not resulting in actual injury or property damage.

42 43 44

(1938) 60 CLR 336. For an excellent commentary on the legal contours of public place, see M Blackmore and G Hosking, New South Wales Criminal Law (Sydney: Law Book Co, 2010) at [9.7920]. Crimes Act 1900 (NSW), ss 93B(5), 93C(5); Summary Offences Act 1988 (NSW), s 11A(4).

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Reconstructing privacy: protecting family life and personhood [w]here a woman is the subject of family violence, the protection of the family requires the family to be open to some public scrutiny—notwithstanding the right to privacy and the protection of the home 45 [13.35] The legal boundary between the public and private spheres is malleable and

contingent. At the domestic level, the courts and legislatures have imposed restrictions on the intrusion of public order laws into the private sphere, though not always consistently. As the Australian Law Reform Commission noted above, it is important to recall that the right to privacy (which includes the protection of family and home life) is not absolute: domestic law must strike a “balance” between respect for privacy and the legitimate interests in preventing disorder and crime. Privacy cannot create a zone of impunity for family violence: as the European Court of Human Rights recognised, any interference with privacy or property rights through the exercise of public order powers must be justified by law, and be necessary, reasonable and proportionate. 46 As we reveal below, the balance struck between privacy, public order and crime prevention is not always consistent across the common law and statute. The powers of police officers to enter and remain on private property to prevent disorder have been placed on a statutory footing in many jurisdictions. 47 For example, s 50 of the Police Powers and Responsibilities Act 2000 (Qld) provides: Dealing with breach of the peace (1) This section applies if a police officer reasonably suspects— (a) a breach of the peace is happening or has happened; or (b) there is an imminent likelihood of a breach of the peace; or (c) there is a threatened breach of the peace. (2) It is lawful for a police officer to take the steps the police officer considers reasonably necessary to prevent the breach of the peace happening or continuing, or the conduct that is the breach of the peace again happening, even though the conduct prevented might otherwise be lawful. Examples for subsection (2)— • The police officer may detain a person until the need for the detention no longer exists. • A person who pushes in to the front of a queue may be directed to go to the end of the queue. • Property that may be used in or for breaching the peace may be seized to prevent the breach. (3) It is lawful for a police officer— (a) to receive into custody from a person the police officer reasonably believes has witnessed a breach of the peace, a person who has been lawfully detained under the Criminal Code, section 260; and

45 46

47

See Australian Law Reform Commission, Family Violence – A National Legal Response, Report No 114 (2010) p 117. See, generally, McLeod v United Kingdom (1999) 27 EHRR 493. Indeed, the Australian Law Reform Commission recommended that Australian family violence law give express consideration to these fundamental human rights in framing their respective legislation: “Recommendation 7–1 State and territory family violence legislation should contain guiding principles, which should include express reference to a human rights framework, drawing upon applicable international conventions”: See Australian Law Reform Commission, Family Violence – A National Legal Response, Report No 114 (2010) p 19. This reflected proposals made by the Domestic Violence Legislation Working Group, Model Domestic Violence Laws, Report (1999): https://www.ag.gov.au/Publications/Pages/ModeldomesticviolencelawsreportApril1999 .aspx (cited 10 August 2016). [13.35]

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(b) to detain the person in custody for a reasonable time. 48

These statutory powers, however, were not intended to limit or replace those available under the common law. The key term, “breach of the peace”, is not however defined, so in applying these powers, police must give due consideration to the common law definition, and relevant authorities, discussed above. Feminists have pointed out that the public–private dichotomy is both functional and ideological. Women have been largely excluded from the rights enjoyable in the public sphere, and conversely denied legal protection within the (unregulated) private sphere. For a critical review of privacy from a feminist perspective, see Chapter 2, [2.135] “Feminist perspectives—The fair trial principle: a flawed balance?”. The liberal conception of privacy is a negative right (freedom from State interference, in effect, the individual’s right to be left alone). However, this concept of private life is not immutable and there are indications that privacy may be remodelled into a positive right to establish, develop and fulfil one’s own emotional needs. Viewed in relational terms, the concept of privacy could provide a basis for empowering rather than disempowering victims of family violence. Article 17 of the ICCPR could provide a warrant for legal intervention to secure for women a positive right to enjoy a secure home and healthy family life without fear of physical and emotional abuse. In this respect, different aspects of privacy collide (the right to property versus the right to family life). Sometimes resort to balancing metaphors cannot resolve this clash of moral imperatives, and the legislature and the courts simply must choose between these competing interests. This broader normative vision, however, does not undermine the powerful feminist critique that privacy as presently conceived creates and sustains an unregulated “private sphere” that renders invisible and condones violence against women and children. In the next section, we examine how family privacy has traditionally impeded the use of the criminal law as a remedy for violence against women and children within the home. It is important to appreciate that the privacy zone that conceals and legitimates family violence is not solely a matter of legal rules. As we shall explore in the next section, the policies and culture of the police play a crucial and determinative role in sustaining the legal invisibility of family violence. Policing violence against women and children: “Just another domestic”? [13.40] The reluctance of the police to intervene in “domestic disputes” has a long history. 49

Non-intervention by the State in such disputes has left generations of women and children vulnerable to serious physical and emotional abuse. The reasons for non-intervention by law enforcement officials in cases of family violence are many and complex. 50 As noted in Chapter 10 at [10.10], the available statistical data drawn from victimisation studies demonstrate that significant violence is inflicted on women and children by family members or 48

49 50

Crimes Act 1900 (ACT), ss 188 – 190; Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 9, 82 and 83. Under s 4 of the Act, unless express or by implication, the restatements of police powers “do not limit the functions, obligations and liabilities that a police officer has as a constable at common law”. The overlapping nature of the statutory and common law powers to enter private premises in emergencies in New South Wales were discussed by the High Court in Kuru v NSW (2008) 236 CLR 1. M Finnane, Police and Government (Melbourne: Oxford University Press, 1994) pp 104–110. See, generally, J Stubbs (ed), Women, Male Violence and the Law (Sydney: The Institute of Criminology, 1994); S Cook and J Bessant (eds), Women’s Encounters with Violence—Australian Experiences (Thousand Oaks, CA: Sage Publications Inc, 1997); and S Bronitt and W Kukulies-Smith, “Crime, punishment, family violence, and the cloak of legal invisibility” (2013) 37(3) Journal of Australian Studies 390.

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persons known to them. 51 Nevertheless, this abuse remains under-reported and underprosecuted. The foremost reason for non-intervention is the concern about unduly interfering with private family business. From the inception of modern policing in the mid-19th century, police standing orders prohibited officers from unnecessarily interfering in family quarrels between a husband and his wife unless required to prevent disorder or serious violence. As Mark Finnane has pointed out, such instructions and policies formally persisted in some Australian States until the 1980s, and continue, informally, to reflect the attitudes of many police officers called to attend “domestics”. 52 Even where the police are willing to intervene in domestic situations, their mandate is conflicted between the duty to respect private property on the one hand, and the duty to prevent disorder and crime on the other. The duties of the police are discussed in the next section at [13.50]. Non-intervention by the State is not merely a matter of under-enforcement of the law: violence perpetrated within the family has been legitimated by the law itself, which has sustained invisibility. 53 The common law historically authorised the use of violence against wives in a number of ways: the longstanding immunity for husbands to perpetrate marital rape is discussed in Chapter 11 at [11.65]. Moreover, the common law of assault provided a defence where the force was necessary to discipline or correct the behaviour of wives and children, and at earlier times, even servants. The limits of “reasonableness” under the rubric of “reasonable chastisement” were notoriously vague, licensing often brutal punishments. The defence of reasonable chastisement in relation to wives was ruled out in the late 19th century, 54 though it took nearly a century before the common law rejected the immunity for rape within marriage. The modern law still authorises reasonable chastisement of children, though there is considerable uncertainty surrounding the limits of parental discipline and others exercising powers locus parentis. As pointed out in Chapter 10 at [10.135], there have been some challenges to this area of law on the grounds that it violates the right not to be subjected to torture or inhuman or degrading treatment or punishment. Even in cases resulting in prosecution and conviction, family violence traditionally has also been regarded as less serious from a sentencing perspective, with the “domestic” context sometimes justifying a more lenient penalty or the imposition of good behaviour bonds instead of conviction. From the law enforcement perspective, police officers traditionally claimed that their “hands were tied” in many family violence cases. Prior to the advent of protection orders in the 1980s, police often claimed that they lacked sufficient legal authority to intervene unless an actual offence had been committed, and the victim or at least another witness was willing to testify against the alleged abuser. Police complained that they had to rely on a mixture of bluff, subterfuge and ignorance of the offender’s rights in order to gain entry to private premises. 55 The true legal position, as distinct from the police misperception about their powers to deal with “domestics”, is somewhat different. In the next section, we examine the wide powers available under the law to take necessary and reasonable steps to prevent crime and disorder, including powers of arrest without warrant and the power to enter and remain on private 51

52 53 54 55

National Council to Reduce Violence against Women and their Children, Background Paper to Time for Action: The National Plan to Reduce Violence against Women and their Children, 2009–2021 (2009) p 25. The National Council notes however that “data relating to violence against women and their children in Australia is poor”, p 49. M Finnane, Police and Government (Melbourne: Oxford University Press, 1994) p 104. S Bronitt and W Kukulies-Smith, “Crime, Punishment, Family Violence, and the Cloak of Legal Invisibility” (2013) 37(3) Journal of Australian Studies 390. The case commonly cited as authority for this proposition is R v Jackson [1891] 1 QB 671. R Alexander, Domestic Violence in Australia—The Legal Response (3 rd ed, Sydney: Federation Press, 2002) p 34. [13.40]

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property. The current law provides a broad basis for police intervention before actual harm has been inflicted through stalking and assault-type offences, supporting the view that police claims of insufficient or ineffective powers are unfounded, or, at least, overstated. It is perhaps fairer to say that the police prefer to rely on specific statutory provisions, rather than on the general common law powers, which are more difficult to access and often misunderstood by the police. 56 Upon closer inspection, the traditional reluctance of officers to intervene is largely the product of police culture and entrenched attitudes that view violence within the family as a less serious type of violence. There is an ongoing debate about the use of terminology, specifically whether “domestic violence” should be replaced with “family violence”. The Australian Law Reform Commission (ALRC), consistent with its terms of reference, applied language of family violence, though conceded that there is ongoing debate over nomenclature, and that the prefixes “domestic” and “family” have the potential to downgrade the perceived seriousness and conceal the true gendered nature of this type of violence. 57 The more substantive question is, as the ALRC noted, what types of conduct fall within this legal category. Conscious of the failed efforts at drafting model domestic violence laws in the 1990s, the ALRC report in 2010 did not propose the adoption of a national definition of family violence. For reasons of both “pragmatism” and “feasibility”, it recommended that Australian States and Territories should be free to develop their own definitions, based on a non-exhaustive list of examples of specific types of physical and non-physical types of conduct that may fall within the concept of family violence. 58 To assist this process, the ALRC/NSWLRC recommended the following “common definitional framework” for family violence legislation: State and Territory family violence legislation should provide that family violence is violent or threatening behaviour, or any other form of behaviour, that coerces or controls a family member or causes that family member to be fearful. Such behaviour may include but is not limited to: (a) physical violence; (b) sexual assault and other sexually abusive behaviour; (c) economic abuse; (d) emotional or psychological abuse; (e) stalking; (f) kidnapping or deprivation of liberty; (g) damage to property, irrespective of whether the victim owns the property; (h) causing injury or death to an animal irrespective of whether the victim owns the animal; and (i) behaviour by the person using violence that causes a child to be exposed to the effects of behaviour referred to in (a)–(h) above. 59

This approach to reform based on “framing principles” provides States and Territories with a “margin of appreciation” in the implementation of reform recommendations, allowing 56 57

58 59

D Dixon, Law in Policing: Legal Regulation and Police Practices (Oxford: Oxford University Press, 1997) p 205. See Australian Law Reform Commission, Family Violence—A National Legal Response, Report No 114 (2010) p 110, discussing the views of leading feminist family law scholars, Belinda Fehlberg and Juliet Behrens. These authors note that the designation “family violence” conceals the gendered nature of the harms, and proposed instead the formula “violence and abuse in families”. See Australian Law Reform Commission, Family Violence—A National Legal Response, Report No 114 (2010) p 17. See Australian Law Reform Commission, Family Violence—A National Legal Response, Report No 114 (2010) Recommendation 5-1, p 17.

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jurisdictions to preserve distinctive features of local innovation, and achieve consistency with definitions applied in other existing legislation. 60

Preventive perspectives on family violence The Use of Protection Orders [13.45] Although family violence may involve breaches of the ordinary criminal law

(such as assault, sexual assault, stalking, criminal damage and so on), legislation has been enacted in all jurisdictions to provide a range of preventive and protective measures for those affected. These laws were enacted to address perceived inadequacies of existing police powers and offences, and to both assist and educate the community and encourage police to take action against family violence. 61 Protection orders granted under State and Territory laws are overlaid by a national system created by the Family Law Act 1975 (Cth). Under this legislation, the Family Court may issue an injunction for the personal protection of a party to the marriage (s 114(1)) or of a child directly (s 68B). From an enforcement perspective, the family law jurisdiction is not as effective as the equivalent regimes established under State and Territory laws. While there is a power of arrest under the Family Law Act 1975 (Cth) for breach of an injunction, persons protected by the injunction must institute contempt proceedings on their own initiative. As a result, this rarely happens in practice. The weakness of the injunction under the Family Law Act 1975 (Cth) has been summed up as follows: “Enforcement is therefore not a police or State matter. The burden of enforcement invariably falls on the applicant. This is to be contrasted with breaches of protection orders under State or Territory legislation which are criminal offences prosecuted by the State. This is the main fault of the Family Law Act injunction. Enforcement is an expensive and slow procedure.” 62

More commonly, victims of domestic violence will obtain a protection order under State or Territory legislation. These orders are variously described as “apprehended violence orders”, “domestic protection orders”, “protection orders”, “restraint or restraining orders” and “intervention orders”. 63 The criteria and scope of these protection orders also significantly differ between jurisdictions, 64 particularly in relation to who may apply for an order. In most jurisdictions, the persons protected by an order are restricted to spouses, de facto spouses and other family members. However, in the Australian Capital Territory, New South Wales, Tasmania and Western Australia, the orders are not restricted to family or family-like relationships. Breach of these orders is made a discrete offence, 60

61 62 63 64

This conceptual approach to law reform is elaborated by ALRC President, Rosalind Croucher AM in her speech, “Conceptualising law reform references”: Australasian Law Reform Agencies Conference, Melbourne Law School, 2-4 March 2016: http://www.alrc.gov.au/news-media/podcast-video/conceptualising-law-reformreferences (cited 20 October 2016). Australian Law Reform Commission, Domestic Violence, Report No 30 (1986) at [110]. R Alexander, Domestic Violence in Australia—The Legal Response (3rd ed, Sydney: Federation Press, 2002) p 72. These differences between Australian State and Territory, and New Zealand schemes are outlined in a report by the Australian Government Solicitor (AGS), Domestic Violence Laws in Australia (2009). See S Jeffries, C Bond and R Field, “Australian Domestic Violence Protection Order Legislation: A Comparative Quantitative Content Analysis of Victim Safety Provisions” (2013) 25(2) Current Issues in Criminal Justice 627. The authors undertake a cross-jurisdictional review of the protection order legislation across the States and Territories, noting that over the past decade, the types of relationships and abuse have been widened to include economic abuse: at 630–631. See Table of Findings, outlining the various schemes, at 638. [13.45]

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therefore expanding the regulatory reach of the criminal law and, as noted below, potentially displacing the use of criminal charges. Protection order laws, when introduced in the 1980s, were not intended to be a substitute for the use of the ordinary criminal law and prosecution. 65 Indeed, proceedings to obtain protection orders could be maintained concurrently with criminal prosecutions for offences arising out of the same conduct. 66 Protection orders were designed to have a gap-filling function, to restrain conduct that fell outside the scope of the criminal law either in terms of the formal offence definition, or because there was insufficient evidence to discharge the criminal standard of “beyond reasonable doubt”. 67 The protection order also offered greater flexibility than binding over since the court may impose prohibitions or restrictions on behaviour as appear necessary and desirable to the court. 68 Protection orders, unlike criminal offences, are based on concepts like harassment, and as a result are highly context-dependent. This enables them to be tailored both to the subjective character, sensitivities and perceptions of the parties. 69 Protection orders commonly restrain respondents from contacting specified persons and entering or remaining in specified places. They may also require positive action, such as the return of specific property, and so can perform restitutionary as well as protective functions. Although protection orders are civil rather than criminal law measures, parties themselves “do not draw fine lines between civil and criminal proceedings. If the police are involved in protection order proceedings, the State is seen to be acting to stop the violence”. 70 The schemes also authorise “on the spot” intervention in emergency situations, either by issuing an interim court order, or provisional order issued by an authorised officer, rather than judicial officer. 71 Breach of the order is an arrestable offence and, without further proof of actual or apprehended violence, is punishable by fine or imprisonment. 72 However, as a review by the Australian Government noted, “there is very significant variation between the maximum penalties [for breach offences], in terms of both fines and imprisonment, applying in the different jurisdictions”. 73 As breach is a discrete offence, it must be proved to the criminal standard of beyond reasonable doubt. There is also 65 66 67

68 69

70 71 72

73

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ALRC 30, Domestic Violence (1986) [90]. See, for example, Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 81; Domestic and Family Violence Protection Act 2012 (Qld), s 138. In the 1980s, the criminal standard was viewed as a significant hurdle in the way of victims of domestic violence invoking the ordinary criminal law and was believed to have caused a “lower strike rate”: Australian Law Reform Commission, Domestic Violence, Report No 30 (1986) at [80]. Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 35. See P Ramsay, “What is Antisocial Behaviour?” [2004] Criminal Law Review 908 at 911. For an extended essay reviewing the rise of the antisocial behaviour order in the United Kingdom, see P Ramsay, “The Theory of Vulnerable Autonomy and the Legitimacy of Civil Preventative Orders” in B McSherry, A Norrie and S Bronitt (eds), Regulating Deviance: The Redirection of Criminalisation and the Futures of Criminal Law (Oxford: Hart Publishing, 2009). R Alexander, Domestic Violence in Australia—The Legal Response (3rd ed, Sydney: Federation Press, 2002) p 90. Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 25(1). Under the Crimes (Domestic and Personal Violence) Act 2007 (NSW), a person who knowingly contravenes a prohibition or restriction specified in an apprehended domestic violence order (ADVO) made against the person is guilty of an offence: s 14. The maximum penalty is imprisonment for two years or 50 penalty units, or both. Australian Government Solicitor (AGS), Domestic Violence Laws in Australia (2009) [1.18], p 14. https://www.dss.gov.au/sites/default/files/documents/05_2012/domestic_violence_laws_in_australia_-_ june_2009.pdf (cited 26 February 2017). [13.45]

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evidence that breach offences are charged, even though the incident involved the commission of more serious breaches of the criminal law. 74 From a legal perspective, protection orders offer some improvement on binding over and the reliance on the ordinary criminal law. The principal advantages of protective orders relate to their clarity (and hence educative function) and “streamlined” enforcement procedure. By comparison to binding over, protective orders can be tailored to particular circumstances, imposing specific rather than vague prohibitions on the accused. The real difficulty faced by women victimised by domestic violence is not the absence of adequate laws, but rather the unwillingness of the police or magistrates to take strong action against family violence. With respect to protection orders, the Special Task Force on Domestic and Family Violence in Queensland found that there was a deficiency within the magistrates courts with inconsistent rulings and practices and a common problem of not fully considering evidence of past abuse in their decision-making. 75 Even in relation to protective orders designed to deal with domestic violence, police attitudes are a key factor in their effectiveness. Three decades ago, Ngaire Naffine observed in an evaluation of the protection orders scheme in South Australia: “[A] common theme … is that whenever the police are committed, enthusiastic and conscientious, victims of domestic violence receive justice.” 76

Research from other jurisdictions, such as Queensland, reached the similar conclusion that the provision of express powers to deal with domestic violence has significantly changed police attitudes to intervening in these cases. 77 Some jurisdictions have directly addressed the reluctance of police to intervene through legislation or policies mandating investigation of such cases has been introduced in some jurisdictions. “Mandatory policing” is a radical deviation from the doctrine of police independence that is reflected in the judicial reluctance to interfere in the ordinary exercise of the police discretion not to intervene in a particular case. In some jurisdictions, the legislature enacted a statutory duty to investigate whether an act of domestic violence has been committed in cases where the police officer believes or suspects that domestic violence has been, is being or is likely to be, committed. 78 The Australian Law Reform Commission and the New South Wales Law Commission in its joint report on Family Violence recommended the adoption of a similar statutory duty on police officers to investigate cases of family violence, and to record and provide reasons when they decline to take further action. 79 This statutory duty may be contrasted with the wide discretion 74 75

76

77 78 79

H Douglas, “The Criminal Law’s Response to Domestic Violence: What’s Going On?” (2008) 30 Sydney Law Review 439 at 444. Special Task Force on Domestic and Family Violence in Queensland, Not Now, Not Ever, Report (2015), p 268; A symptom of the failure to understand the dynamics of family violence is that police and prosecutors instituting charges of aiding and abetting breach offences in circumstances where women resume cohabitation with their abusive partner contrary to the terms of protection order. See discussion in S Bronitt and B McSherry, Principles of Criminal Law (3rd ed, Sydney: Thomson Reuters, 2010) p 809 at [13.55]. N Naffine, “Domestic Violence and the Law: A Study of s 99 of the Justices Act (SA)” (Adelaide: Women’s Adviser’s Office, Dept of the Premier and Cabinet, 1985) p 94. Naffine’s research is discussed in Australian Law Reform Commission, Domestic Violence, Report No 30 (1986) at [61]. This research is reviewed in M Finnane, Police and Government (Melbourne: Oxford University Press, 1994) p 109. See, for example, Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 27; Domestic and Family Violence Protection Act 2012 (Qld), s 100; Restraining Orders Act 1997 (WA), s 62A. See Australian Law Reform Commission, Family Violence—A National Legal Response, Report No 114 (2010), Recommendation 9-2, p 389, echoing the earlier recommendations of the Domestic Violence [13.45]

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granted to police in relation to operational decision-making for other offences. The centrality of discretion to public order policing generally is reviewed at [13.50]. Domestic violence in Australia is often a cross-border crime, particularly where victims seek to relocate to escape ongoing abuse. Efforts to develop a national domestic violence protection order scheme have however faltered. In the late 1990s, a national joint working group – the Domestic Violence Legislation Working Group (DVLWG) – was established to develop model protection order laws in Australia. The DVLWG proposed detailed rules governing the scope and conditions upon which these protection orders may be granted, as well as provisions governing the mutual recognition of orders across all Australian jurisdictions and New Zealand. 80 The proposal to establish a national registration scheme—based on automatic national enforceability of orders as soon as they are made—was never implemented: mutual recognition of orders has proved to be elusive, though each jurisdiction has the power for external orders to be registered and recognised in that jurisdiction. The National Plan to Reduce Violence Against Women and Children (Second Action Plan 2013–16) has identified as a key priority the implementation of a national scheme for family and domestic violence protection orders and to promote more effective cross-border information-sharing through CrimTrac. 81 The increased reliance on civil protection orders to deal with domestic violence has been criticised in an empirical study of how domestic violence is treated in Queensland. 82 The study, by Heather Douglas and Lee Godden, concluded that: “The effect of domestic violence legislation has been to separate ‘intimate partner’ violence out from other forms of assault. The repositioning of violence between intimate partners within the civil, less publicly accountable, sphere has been to subtly construct it against the ‘more serious’ categories of criminally vilified violence.” 83

This research was based on a five-month study of all domestic violence matters in Magistrates courts in Brisbane and Ipswich. During this period, only one male accused appeared before the court charged with a violent offence against his spouse, though over this same period 694 domestic violence order applications were made. In relation to these domestic violence orders, less than half of all the applications were taken out by police, suggesting to researchers “the violence, or threat of violence, is often not perceived to be sufficiently ‘serious’ to warrant State

80

81

82 83

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Legislation Working Group, Model Domestic Violence Laws, Report (1999) pp 38–41. “State and territory family violence legislation and/or police codes of practice should impose a duty on police to: (a) investigate family violence where they believe family violence has been, is being, or is likely to be committed; and (b) record when they decide not to take further action and their reasons for not taking further action”. Domestic Violence Legislation Working Group, Model Domestic Violence Laws, Report (1999) p 27. In all jurisdictions, orders obtained in “external” jurisdictions (which extend to all Australian jurisdictions and New Zealand) may be registered, and given equivalent force as orders issued in that jurisdiction: see, for example, Crimes (Domestic and Personal Violence) Act 2007 (NSW), Pt 13. The terms and procedures governing registration of these orders, however, differ across jurisdictions: discussed in Australia’s National Research Organisation for Women’s Safety (ANROWS), Domestic and Family Violence Protection Orders in Australia: An Investigation of Information Sharing and Enforcement (December 2015). (Cited http:// www.anrows.org.au/publications/landscapes, 20 October 2016), Table 2, p 11. For an excellent study examining protection order law and obstacles to an effective national scheme, see Australia’s National Research Organisation for Women’s Safety (ANROWS), Domestic and Family Violence Protection Orders in Australia: An Investigation of Information Sharing and Enforcement (December 2015): http://www.anrows.org.au/publications/landscapes (cited 20 October 2016). H Douglas and L Godden, “The Decriminalisation of Domestic Violence: Examining the Interaction between the Criminal Law and Domestic Violence” (2003) 27 Criminal Law Journal 32. H Douglas and L Godden, “The Decriminalisation of Domestic Violence: Examining the Interaction Between the Criminal Law and Domestic Violence” (2003) 27 Criminal Law Journal 32 at 42. [13.45]

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intervention”. 84 Despite the incidence of violence revealed in the study, few domestic violence applications resulted in criminal prosecution. This chronic under-utilisation of the criminal law was not linked to the legislation or police policy, which, as noted above, imposes on police a mandatory duty to investigate domestic violence in the jurisdiction. Heather Douglas and Lee Godden identified the following reasons for the lack of criminal prosecutions: • women being unaware they have a right to make a criminal charge (despite police policy that police should actively canvass the possibility of criminal charges in conjunction with domestic violence orders); • women believing that they must choose between making a criminal or civil response to domestic violence; • women fearing their engagement with the criminal justice system would exacerbate current levels of violence; and • a fear that a criminal record or incarceration of the offender would have a negative impact on the family in the longer term. 85 Diagram 1: Example of a Domestic Violence Enforcement Pyramid

Source: J Braithwaite, “Inequality and Republican Criminology”, J Hagan and R Peterson (eds), Crime and Inequality (Stanford, CA: Stanford University Press, 1995) p 301.

84 85

H Douglas and L Godden, “The Decriminalisation of Domestic Violence: Examining the Interaction Between the Criminal Law and Domestic Violence” (2003) 27 Criminal Law Journal 32 at 36. H Douglas and L Godden, “The Decriminalisation of Domestic Violence: Examining the Interaction Between the Criminal Law and Domestic Violence” (2003) 27 Criminal Law Journal 32 at 39–40. In recent work, Douglas has argued for the introduction of a distinct domestic violence offence, modelled on the offence of “controlling and coercive conduct” recently enacted in England and Wales: H Douglas, “Do we need a specific domestic violence offence?” (2015) 39(2) Melbourne University Law Review 434. [13.45]

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Rather than view the question of the appropriate legal response in terms of mutually exclusive alternatives (criminal versus civil remedies), some researchers have advocated an integrated regulatory strategy based on the “enforcement pyramid”, discussed in Chapter 1 at [1.245]. John Braithwaite has conceptualised the enforcement pyramid for domestic violence as illustrated above. Consistent with Braithwaite’s republican principles, criminal sanctions would only be used as a “last resort” and greater attention would be given to strengthen community-based crime prevention programs.

Policing Public Disorder [13.50] More than any other area of the criminal law, public order law delimits the function

of the police in modern society. Public order laws reinforce the mission of the police as one of “order maintenance” rather than “law enforcement”. As reflected in the founding Commissioner Instructions for police forces established in 19th century England and Australia, the paramount duty of the police was the prevention of disorder and crime rather than law enforcement. As Mark Finnane points out, policing in the 19th century was an exercise in the governance of drunks, prostitutes, vagrants and other disorderly elements for the benefit of the respectable classes. 86 Keeping the peace demarcated the “respectable” from the “rough” classes, and thus played a crucial role in “reproducing inequalities in society or even in enhancing them”. 87 In modern policing, the primary task assigned to police remains “moral street-sweeping”. 88 Indeed, the primacy of peacekeeping has been further reinforced in the 20th century by hiving off crime detection as a “specialised” function of non-uniformed detectives working within the Criminal Investigation Department or Bureau (CID or CIB). As we shall see at [13.100]ff, a large part of general policing duties in the Australian context is concerned with surveillance and management of young people in public places. 89 Public order duties have been revolutionised in the period since 1945. As Mark Finnane points out, the increases in car ownership in the post-war period, and the significant resulting threats to public safety, reoriented policing duties towards the routine surveillance and management of highways. 90 Order maintenance shifted away from beat policing and patrols to more reactive styles of policing. In the context of public order, this led to the introduction of specialised public order training, equipment and even the establishment of special “tactical response” groups, which encouraged more paramilitary-style policing in dealing with public order situations in the 1980s. 91 Although this trend is not as strong or centralised in Australia as it has been in the United Kingdom, more confrontational or assertive styles of policing have emerged during some industrial and political protests especially in the era of heightened

86 87 88 89 90 91

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M Finnane, Police and Government (Melbourne: Oxford University Press, 1994) Ch 1. M Finnane, Police and Government (Melbourne: Oxford University Press, 1994) p 103. R Reiner, “Policing and the Police” in M Maguire, R Morgan and R Reiner (eds), The Oxford Handbook of Criminology (Oxford: Oxford University Press, 1994) p 742. R White and C Alder (eds), The Police and Young People in Australia (Cambridge: Cambridge University Press, 1994). M Finnane, Police and Government (Melbourne: Oxford University Press, 1994) pp 100–104. T Jefferson, The Case Against Paramilitary Policing (Milton Keynes: Open University Press, 1990); J McCulloch, Blue Army: Paramilitary Policing in Victoria (Carlton South, Vic: Melbourne University Press, 2001). [13.50]

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security around mega events post-9/11. 92 Countering this trend, as we observe in the context of policing the G20 meeting in Brisbane, some jurisdictions have embraced a “dialogue” or “human rights” model for policing mega events, which seek to recognise, respect and facilitate rights to peaceful protest. Under the common law, there is no exhaustive definition of the legal powers and duties of the police. The courts have observed that the police, as well as being under a duty to detect crime and apprehend offenders, are also under a duty to keep the peace, to prevent crime and to protect private property. In the context of a review investigating inner city riots in England in the 1980s, Lord Scarman argued that the primary duty of the police was the maintenance of the Queen’s Peace, a duty that is more fundamental than upholding the law. 93 A similar view has been expressed by judges in Australia. 94 The importance of public order to modern policing is reflected in the National Code of Ethics for the Police in Australia, which identifies the following objectives for the police: • the preservation of the peace; • the protection of life and property; and • the prevention and detection of crime. 95 In most jurisdictions, the common law powers to prevent and suppress public disorder are supplemented and extended by a wide range of statutory powers reserved exclusively for the police. These statutory powers cover a vast terrain, empowering the police to “move on” individuals in public places; to stop, question and search suspected persons; to enter and remain on property to prevent disorder; to summon or arrest individuals involved in disorderly conduct not involving actual or threatened violence. Moreover, special “noncriminal” powers have been granted to the police to deal with particular threats to public order, such as family violence, and individuals whose state of intoxication or mental illness makes them a threat to themselves or others. It is important, when reviewing public order law, to recognise that these specific statutory police powers and offences supplement the extensive powers to prevent crime and disorder under the common law. 96

Breach of the Peace [13.55] The common law concept of “breach of the peace” remains central to public order

law in Australia. Breach of the peace provides the basis for exercising the common law powers to prevent disorder. It is not an offence of itself, though engaging in conduct that causes or is likely to cause a breach of the peace may involve the commission of other offences, such as 92

93 94 95

96

There is little research examining why some public demonstrations draw tough responses from police, while similar events can be policed without incident: J Earl, S Soule and J McCarthy, “Protest under Fire? Explaining the Policing of Protest” (2003) 68(4) American Sociological Review 581. L Scarman, The Brixton Disorders 10–12 April 1981 (London: HMSO, Cmnd 8427), pp 62–63. As Wright J observed in North Broken Hill; Ex parte Commissioner of Police (Tas) (1992) 61 A Crim R 390 at 396, the “peacekeeping powers of the police are of supreme importance”. The evolution of a national code of ethics is discussed in D Bradley, “Policing” in K Hazlehurst (ed), Crime and Justice (Sydney: Law Book Company, 1996) pp 353–354. Over the past three decades there has been little progress in adopting or modernising a common national code, based on human rights principles. As a result, local police forces have been left to develop their own individual statements of ethics, values and professional standards. The recently created Australian New Zealand Policing Advisory Agency (ANZPAA) has published broad integrity principles, though they do not address the objectives of modern policing: http:// www.anzpaa.org.au/about/general-publications/principles (cited 20 October 2016). S Bronitt, “Rethinking Police Use of Force: Linking Law Reform with Policy and Practice” (2012) 36(2) Criminal Law Journal 71 at 72. [13.55]

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assault, affray, or criminal damage. Breach of the peace is also an ingredient of other offences, such as unlawful assembly and riot. As noted at [13.35], the concept of breach of the peace has been incorporated into the statutory powers available to the police to enter onto private premises in situations of emergency. 97 The concept will also be relevant to determining whether a person has breached an order by a magistrate to “keep the peace”. 98 Although the police often prefer to rely on statutory powers, the common law remains a residual source of powers when the former do not cover the particular situation confronting the police. Meaning and scope of “breach of the peace” [13.60] The leading authority on breach of the peace is the English Court of Appeal decision

in R v Howell. In this case, Watkins LJ held that the concept should be defined as follows: “There is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his [or her] presence to his [or her] property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.” 99

The definition of “breach of the peace” in Howell included apprehended as well as actual harm to persons or property. The inclusion of harm to property constituted a significant extension of the common law. Prior to this “clarification”, a review of the available precedents on breach of the peace revealed a lack of authoritative definition, though the courts seemed to suggest that breach of the peace must involve “some danger to the person”. 100 Significantly, in providing an authoritative definition of breach of the peace, the Court of Appeal in Howell attached little weight to these older authorities: “The older cases are of considerable interest but they are not a sure guide to what the term is understood to mean today, since keeping the peace in this country in the latter half of the 20th century presents formidable problems which bear upon the evolving process of the development of this [branch] of the common law.” 101

The social forces at work in shaping public order law in England in the mid-1980s were high levels of unemployment coupled with poor community-policing relations that had sparked large-scale inner-city riots across the country. These riots produced major changes to the traditional reactive style of policing public disorder, as subsequently witnessed in the coordinated and pro-active policing of disorder during a protracted miners’ strike. 102 Although the public order problems in Australian society have been less serious, the broad definition of breach of the peace in Howell has been accepted as a correct statement of the common law in Australia. 103 97 98 99 100 101 102

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For example, Crimes Act 1900 (ACT), ss 188 – 190. Crimes Act 1900 (ACT), s 397(1) and (2). R v Howell [1982] QB 416 at 427. G Williams, “Arrest for Breach of the Peace” [1954] Criminal Law Review 578 at 579. R v Howell [1982] QB 416 at 426. B Fine and R Millar (eds), Policing the Miners’ Strike (London: Lawrence and Wishart, 1985); S McCabe and P Wallington, The Police, Public Order and Civil Liberties: Legacies of the Miners’ Strike (London: Routledge, 1988). Innes v Weate [1984] Tas SR 14 at 22 per Cosgrove J; Panos v Hayes (1987) 44 SASR 148 at 151 per Legoe J. In State of NSW v Tyszyk [2008] NSWCA 107, there is a lengthy and detailed examination of breach of the peace and the common law in the context of a civil case examining the scope of police duties owed to members of the public. Campbell JA indicated at [85]–[105], strictly obiter, that Howell may not be correct and be unduly narrow. The approach in Howell was reviewed and affirmed in Nilsson v McDonald [2009] TASSC 66. [13.60]

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Academic discussion of public order law in the 1970s and 1980s focused on public order offences such as riot, rout, unlawful assembly and obstruction offences. 104 Because of the uncertainty around the concept, breach of the peace was considered largely of historical interest. 105 Following this clarification of the concept of breach of the peace in R v Howell, 106 the police became more confident in the exercise of their common law powers and, as noted above, the concept of breach of the peace continues to provide a reservoir of flexible powers to deal with disorder, and remain directly relevant through their integration into a wide range of statutory police powers, such as s 50, Police Powers and Responsibilities Act 2000 (Qld) discussed above. Powers to prevent a breach of the peace: necessary and reasonable steps [13.65] Under the common law, any citizen is empowered to take any necessary steps to

prevent or suppress a breach of the peace. In the 20th century, the courts imposed the further condition that these steps must be reasonable in the circumstances. In Albert v Lavin, Lord Diplock held that: “[E]very citizen in whose presence a breach of the peace is being, or reasonably appears to be about to be, committed has the right to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so; and those reasonable steps in appropriate cases will include detaining him [or her] against his [or her] will. At common law this is not only the right of every citizen, it is also his [or her] duty, although, except in the case of a citizen who is a constable, it is a duty of imperfect obligation.” 107

The common law has conferred both criminal and civil immunity for individuals who take necessary and reasonable steps to prevent or suppress a breach of the peace. These steps have included trespass, assault, dispersal, detention, confiscation of property, erecting roadblocks and even controlling the numbers of individuals on a picket line. 108 As a measure of last resort, the common law confers on individuals, including police, the power to arrest without warrant any person whose conduct is causing or is likely to cause a breach of the peace. This power may be contrasted with the general power of arrest without warrant which only permits apprehension and detention where the person has committed, or is in the act of committing, an offence for the purpose of bringing that person before a court to answer charges. 109 In relation to breach of the peace, a power of arrest without warrant has been granted for the purpose of preventing crime and disorder rather than as a forensic tool for commencing proceedings against persons suspected of a criminal offence.

Preventing a breach of the peace: a citizen’s right or duty to assist? [13.70] In Albert v Lavin, Lord Diplock suggested (strictly obiter) that it was the duty of every citizen to assist preventing breaches of the peace. 110 Is this duty placed on citizens to assist police to suppress disorder a moral or legal one? In earlier times, the obligation to assist 104 105 106 107 108

109 110

A Hiller, Public Order and the Law (Sydney: Law Book Company, 1983) pp 149ff. E Campbell and H Whitmore, Freedom in Australia (Revised ed, Sydney: Sydney University Press, 1973) pp 139–144; G Flick, Civil Liberties in Australia (Sydney: Law Book Company, 1981) pp 15–18 and Ch 4. [1982] QB 416. Albert v Lavin [1982] AC 546 at 565 per Lord Diplock. For a useful review of the older cases where breach of the peace was invoked to deal with public protests and industrial picketing, see B Gaze and M Jones, Law, Liberty and Australian Democracy (Sydney: Law Book Company, 1990) pp 134–152. Williams v The Queen (1986) 161 CLR 278. Albert v Lavin [1982] AC 546 at 565. [13.70]

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suppressing a breach of the peace could be viewed as a legal duty since failure to do so was a misdemeanour. In R v Brown, the accused refused to help quell a riot arising from an illegal prize-fight and was convicted of refusing to assist a person who was taking action to prevent a breach of the peace. This offence has been codified in Tasmania, where it is an offence to neglect to aid the police in suppressing a riot or arresting an offender or in preserving the peace. 111 In South Australia and Western Australia, the Commissioner of Police has power to issue directions for regulating traffic, preventing obstructions and maintaining order. It is an offence not to comply with the request of police officers to observe directions if acquainted with directions. 112 In common law jurisdictions, the offence of refusing to assist the police in preserving the public peace, though technically extant, has fallen into disuse. 113

The formula of “necessary and reasonable steps” to prevent a breach of the peace is highly permissive, providing a wide range of police powers to prevent disorder. As Simon Bronitt and George Williams have concluded: “The list of measures available to prevent a breach of the peace is not closed … Within this broad and open-ended framework, the only limit upon the further development of preventive measures is the ingenuity and imagination of the police and the judicial acceptance that the steps taken are ‘reasonable’ in the circumstances.” 114

Because of their potential breadth, the courts have counselled restraint in the exercise of these preventive measures. The use of arrest is discouraged except as a “measure of last resort”. 115 In Forbutt v Blake, Connor ACJ held that preventive powers, such as dispersal and arrest, may be exercised only where there is a reasonable apprehension or belief that a breach of the peace is imminent. Connor ACJ stressed that the belief in the imminence of disorder must be reasonable: “A mere statement by a police constable that he [or she] anticipated a breach of the peace is not enough to justify his [or her] taking action to prevent it; the facts must be such that he [or she] could reasonably anticipate not a remote, but a real, possibility of a breach of the peace.” 116

The requirement that a breach of the peace be reasonably anticipated as a real possibility reinforces the conditional authority of the power of arrest. But how is imminence of disorder to be determined under this formula? Imminence may be measured both in temporal terms as well as physical proximity. However, as Connor ACJ acknowledged, the test could not be defined with precision, and imminence must be a “relative concept”. 117 On these facts, he accepted that the risk of disorder occurring within five to 10 minutes could be an imminent breach of the peace. 111 112 113 114

117

R v Brown (1841) Car & M 314, Criminal Code (Tas), ss 116 – 117. Summary Offences Act 1953 (SA), s 59; Criminal Investigation Act 2006 (WA) s 38C(2). See, further, D Nicolson, “The Citizen’s Duty to Assist the Police” [1992] Criminal Law Review 611. S Bronitt and G Williams, “Political Freedom as an Outlaw: Republican Theory and Political Protest” (1996) 18(2) Adelaide Law Review 289 at 322. Commissioner of Police (Tas); Ex parte North Broken Hill Ltd (1992) 61 A Crim R 390 at 396 per Wright J held (at 397) that police on duty at the picket line had at their disposal a wide range of “transitory preventive measures” falling short of arrest to prevent a violent confrontation, including persuasion and physical removal of the person. Forbutt v Blake (1981) 51 FLR 465 at 469 per O’Connor ACJ, approving the test applied in the English decision of Piddington v Bates [1961] 1 WLR 162. Forbutt v Blake (1981) 51 FLR 465 at 471.

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115

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Notions of imminence have tended to be excessively deferential to the police assessment of the likelihood of disorder. 118 In Forbutt v Blake, considerable evidential weight was attached to the assessment and experience of the police in determining imminence. Not only were police able to rely on their own observation at the scene to determine the imminence of disorder, Connor ACJ accepted that the police could legitimately consider media reports, including reports of the protestors’ own fears that their conduct may provoke a hostile response. 119 Concerned about the flexibility of these tests, some academics have argued that prior restraint of peaceful and otherwise lawful exercise of civil and political rights requires substantial evidence of the nature and likelihood of the threat to public order. 120 The elasticity of “reasonable anticipation” and “imminence” in English and Australian law may be contrasted with the more stringent approach taken in the United States. Mindful that prior restraint of conduct may unduly interfere with freedom of speech and peaceful assembly constitutionally protected by the Bill of Rights, the Supreme Court held that there must be a “clear and present danger” of violence before these rights may be justifiably restricted. 121 It has been suggested that the implied freedom of political discussion under the Commonwealth Constitution “might be applied, in a case involving a restriction upon political discussion, to achieve a common law concept of imminence much closer to that developed in the United States”. 122 Provoking a breach of the peace: a subjective or objective test [13.75] Preventive powers of arrest, detention and dispersal may be exercised against peaceful

and otherwise lawful conduct on the ground that it causes, or is likely to cause, others to commit a breach of the peace. Questions have arisen whether the test for determining whether such conduct is likely to cause a breach of the peace should be judged subjectively or objectively. If an entirely subjective approach is taken, breach of the peace can operate as a “Hecklers’ Charter”. A subjective approach to this question was adopted in Jordan v Burgoyne. 123 In this case, the accused, a speaker for a political party called The National Front, attempted to address a rally in Trafalgar Square in London. In the course of his speech, he directed racially inflammatory remarks, such as “Hitler was right”, at a small group of hecklers within the audience who were attempting to disrupt his speech. The group was described in the headnote as comprising “many Jews, CND [Campaign For Nuclear Disarmament] supporters and communists”. The Divisional Court had to determine whether the speaker’s conduct constituted offensive conduct likely to provoke a breach of the peace contrary to s 5 of the Public Order Act 1936 (UK). Delivering the judgment of the court, Lord Parker CJ held that the test of whether conduct is likely to provoke a breach of the peace is a subjective one: “[T]here is no room here for any test as to whether any member of the audience is a reasonable man [or woman] or ordinary citizen … [the accused] must take his [or her] audience as he [or she] finds 118 119 120 121 122 123

See, for example, Moss v McLachlan [1984] IRLR 76. Forbutt v Blake (1981) 51 FLR 465 at 470. SA de Smith and R Brazier, Constitutional and Administrative Law (8th ed, Harmondsworth: Penguin, 1998) pp 495–496. Whitney v California 274 US 357 (1927). S Bronitt and G Williams, “Political Freedom as an Outlaw: Republican Theory and Political Protest” (1996) 18(2) Adelaide Law Review 289 at 324. [1963] 2 WLR 1045. [13.75]

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them, and if those words to that audience or that part of the audience are likely to provoke a breach of the peace, then the speaker is guilty of an offence.” 124

Lord Parker CJ attached no significant weight to the importance of freedom of speech or assembly. The decision affirmed that peaceful and otherwise lawful conduct may be criminalised simply because of its offensive impact on members of the audience and its tendency to provoke them to violence. Lord Parker CJ adopted a subjective or natural consequence approach to causation, adapting the principle of causation used in tort and criminal law that “defendants must take their victims as they find them”. 125 This approach has serious ramifications for those individuals who wish to express unpopular political ideas to a potentially hostile audience. The alternative approach would apply an objective standard based on the likely reaction of the reasonable or ordinary person, and whether that hypothetical person would be provoked to violence. There is some support for an objective test at first instance, though the matter has not yet been fully argued before an appellate court. An objective approach would also be consistent with the test for offensive conduct, where offensiveness is determined by reference to the reasonable person who is presumed to be broadminded and politically tolerant. 126 The freedom to engage in peaceful protest is regarded by police and judges as a question of balancing the legitimate aims of protecting civil and political liberties on the one hand, with the importance of preventing and suppressing crime and disorder on the other. 127 The weakness of the “balancing approach” is that the exercise of civil and political rights is not accorded any fundamental status under the common law. As Bronitt and Williams observed: “Both the police and the courts are required to make decisions about the importance of competing interests within a legal framework which does not attach a relative weighting or significance to each of the interests in competition.” 128

The scope for balancing is limited within legal regulatory frameworks that do not recognise an express right to protest, and where the residue of political freedom is constantly under siege from an expanding range of police powers and public order offences. 129 This is particularly evident in the special legislation enacted to facilitate policing and security at major or “mega” events. The most recent of mega event legislation is the G20 (Safety and Security) Act 2013 (Qld), enacted for the G20 meeting held in Brisbane in November 2014. 130 Its statutory objects are contained in s 2: (1) The objectives of this Act are to provide police officers, non-State police officers and appointed persons with special powers— (a) to promote the safety and security of persons attending any part of the G20 meeting … (b) to ensure the safety of members of the public from acts of civil disobedience in relation to any part of the G20 meeting; and 124 125 126 127 128 129

130

884

Jordan v Burgoyne [1963] 2 WLR 1045 at 1047–1048. For further discussion of this principle of causation, see Chapter 3, [3.110]. See [13.150] “Offensive conduct and language crimes”. Commissioner of Police v Allen (1984) 14 A Crim R 244, discussed at [13.200] “Unlawful assembly”. S Bronitt and G Williams, “Political Freedom as an Outlaw: Republican Theory and Political Protest” (1996) 18(2) Adelaide Law Review 289 at 294. For a critique of this utilitarian approach to balancing rights and interests in the context of public order powers, see B Gaze and M Jones, Law, Liberty and Australian Democracy (Sydney: Law Book Company, 1990) p 168. The G20 (Safety and Security) Act 2013 (Qld) was modelled on special legislation that had been developed in other States for previous international meetings, such as the 2007 Asia-Pacific Economic Cooperation (APEC) event and the 2011 Commonwealth Heads of Government Meeting (CHOGM) held in New South Wales and Western Australia respectively. [13.75]

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(c) to protect property from damage from civil disobedience in relation to any part of the G20 meeting; and (d) to prevent acts of terrorism directly or indirectly related to any part of the G20 meeting; and (e) to regulate traffic and pedestrian movement to ensure the passage of motorcades related to any part of the G20 meeting is not impeded.

The absence of any express recognition of the right to engage in peaceful protest is apparent, reflecting the fact that the Peaceful Assembly Act 1992 (Qld), which would ordinarily have governed any protest activity, was suspended for the duration of the G20. The legislative privileging of safety and security, and lack of any balancing process that could accommodate peaceful protest, attracted criticism both before and after the event. 131 A post-event review undertaken by the Queensland Crime and Corruption Commission recommended that this type of legislation should include a reference to the Peaceful Assembly Act 1992 (Qld): Notwithstanding the efforts of the QPS to incorporate elements central to the idea of peaceful assembly into their approach, the absence of explicit legal protections may have had a “chilling” effect on protest activity. Explicitly including these elements in law will strengthen the commitment to the right of peaceful assembly. 132

Although the review has identified some major weakness in the G20 Act, the legislation provided the template for standing major event legislation, which avoids the need for the legislature to enact special legislation for future declared events. 133 The priority accorded to prevention rather than remedial intervention in public order situations raises concern about the prior restraint of peaceful and otherwise lawful processions, assemblies and demonstrations on the ground that they are likely to provoke a violent or hostile response from opposing groups. As Denis Galligan observed: “The trouble with this approach is that it gives insufficient importance to the freedom of protest; if it is vulnerable to the disruptive tactics of opposing groups, that freedom is of slight weight. It means that any protest, no matter how peaceful and orderly itself, may be the subject of intervention by the police merely because those hostile to its aims are able to create disruption amounting to a threat to the peace.” 134

131

132

133

134

See, generally, D Baker, S Bronitt and P Stenning, “Policing Protest, Security and Freedom: The 2014 G20 Experience” (2017) Police Practice and Research: An International Journal online version (Scopus (Elsevier BV) 15 February 2017) pp 1-24. A post-event review of the G20 Act by the Queensland Police Service, assisted by the Crime and Corruption Commission (CCC), was tabled in the Queensland Parliament in 2015: http://www.parliament.qld.gov.au/documents/tableOffice/TabledPapers/2015/5515T1672.pdf (cited 20 October 2016). This recommendation by the CCC was not, however, accepted by the Queensland Police, which cited potential conflict with federal law and Australia’s international legal obligations relating to diplomatic privileges and immunities: http://www.parliament.qld.gov.au/documents/tableOffice/TabledPapers/2015/5515T1672.pdf (cited 20 October 2016). The Major Events Act 2014 (Qld) contains extensive powers for the effective management and safety of declared events, although makes no provision for balancing these interests with the right to engage in peaceful assembly, speech or association. D Galligan, “Preserving Public Protest: The Legal Approach” in L Gostin (ed), Civil Liberties in Conflict (London and New York: Routledge, 1988) pp 54–55 (references omitted). [13.75]

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Perspectives on hate crimes Free Speech or Psychic Injury [13.80] The legal protection accorded to peaceful yet provocative speech cases like

Jordan v Burgoyne 135 may depend on the nature of the accused’s motivations. Under international human rights law, the prohibition of racist speech is considered a justifiable restriction on the freedoms of expression and assembly. Article 20(2) of the International Covenant on Civil and Political Rights (ICCPR) provides that “[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law”. Indeed, the Convention on the Elimination of All Forms of Racial Discrimination (CERD) goes further, and requires member states to declare as an offence punishable by law all dissemination of ideas based on racial superiority or hatred: see Art 4(a). At the time of ratification, the Australian Government noted that such conduct was not presently treated as an offence, though it was the intention to enact such legislation “at the first suitable moment”. On 6 November 1984, Australia withdrew its reservations and declarations to the ICCPR with the exception of reservations that included a reservation to Art 20. 136 The reservation states that “Australia interprets the rights provided for by Article 19, 21 and 22 as consistent with Article 20; accordingly, the Commonwealth and States having legislated with respect to the subject matter of the Article in matters of practical concern in the interests of [the] public, the right is reserved not to introduce any further legislative provision on these matters”. Racial vilification was not made an offence under the Racial Discrimination Act 1975 (Cth), an Act that implements Australia’s obligations in the CERD. Rather, in 1995, the federal Act was amended to make it “unlawful” to engage, otherwise than in private, in offensive conduct because of race, colour or national or ethnic origin: s 18C. This particular provision has been the cause of much recent political controversy, with calls for its repeal sparked by the case of Eatock v Bolt. 137 In this case, the high profile journalist, Andrew Bolt, was found to be in breach of s 18C for comments made about Indigenous Australians in his newspaper column. Many of the complaints revolved around the section prohibiting speech which is “reasonably likely to offend [and] insult”, though concerns about penalties for “hurt feelings” are misplaced in that the test under the legislation is an objective one, 138 requiring that the impugned conduct have “profound and serious effects, not to be likened to mere slights”. 139 Racial vilification provided a ground for making a complaint to the Human Rights and Equal Opportunity Commission (HREOC) for conciliation. The federal legislation does not exclude the operation of State and Territory anti-discrimination provisions (including offences) prohibiting racial vilification: s 6A. The Commonwealth did modify its approach in response to concerns about

135 136 137 138 139

[1963] 2 WLR 1045. Convention on the Elimination of All Forms of Racial Discrimination (ATS 1984, No 1), p 12. [2011] FCA 1103. M Iskander, “Balancing Freedoms And Creating A Fair Marketplace Of Ideas: The Value Of 18C Of The Racial Discrimination Act” (2014) 8(10) Indigenous Law Bulletin 19 at 20. Creek v Cairns Post Pty Ltd [2001] FCA 1007 at [16] per Kiefel J.

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incitement of terrorist acts, and remodelled the federal offence of sedition. 140 These reforms introduced in 2005 into the Criminal Code (Cth) are discussed in Chapter 15, [15.215]. In many jurisdictions, the racial insults hurled in Jordan could now be prosecuted under special offences prohibiting incitement to racial hatred or the federal offence of sedition based on urging violence between groups. 141 Typical of these offences is the offence contained in the Racial Vilification Act 1996 (SA): Section 4 Racial vilification A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of their race by (a) threatening physical harm to the person, or members of the group, or to property of the person or members of the group; or (b) inciting others to threaten physical harm to the person, or members of the group, or to property of the person or members of the group. Maximum penalty: If the offender is a body corporate—$25,000. If the offender is a natural person—$5,000, or imprisonment for 3 years, or both.

In New South Wales, the offence is framed as one of “serious racial vilification”, contained in s 20D of the Anti-Discrimination Act 1977 (NSW). The vilification likewise must manifest itself by a “public act” (s 20B) and occur by means which include threats of physical harm towards persons or groups of persons or property or inciting others to perpetrate such threats: s 20D. Clearly, such threats and incitement could be prosecuted under the general criminal law, though the racial motivation behind such conduct should be deemed legally irrelevant by the court. 142 Some empirical evidence suggests that racial motivation may lead to more lenient treatment by police and prosecutors, operating as a mitigating rather than aggravating factor. 143 Unlike the general criminal law which tends to suppress the political motivation for conduct, racial vilification offences direct legal attention towards the motives of the accused. HREOC recommended that Australia implement the CERD without reservation. In its report, Racist Violence, HREOC proposed 144 that specific federal offences should be enacted proscribing: (1) racist violence and intimidation; and (2) incitement to racial violence. These proposals were rejected at the time by the government. This reticence may have been due to the concern that laws against racial vilification may violate the implied freedom of political discussion under the Commonwealth Constitution recognised by the 140

141

142 143 144

See S Bronitt, “Hate Speech, Sedition and the War on Terror” in K Gelber and A Stone (eds), Hate Speech and Freedom of Speech in Australia (Sydney: Federation Press, 2007) Ch 7; S Bronitt and J Stellios, “Sedition, Security and Human Rights: “Unbalanced” Law Reform in the “War on Terror”” [2006] 30(3) Melbourne University Law Review 923. In the United Kingdom, it is an offence to use threatening, abusive or insulting words or behaviour that is intended to, or likely to, stir up racial hatred: Public Order Act 1986 (UK), s 18. The various legislative models for vilification offences enacted in Canada, Europe, New Zealand, New South Wales, United States and the United Kingdom are reviewed in Human Rights and Equal Opportunity Commission, Racist Violence (Canberra: AGPS, 1991) Ch 11. Human Rights and Equal Opportunity Commission, Racist Violence (Canberra: AGPS, 1991) p 276. Human Rights and Equal Opportunity Commission, Racist Violence (Canberra: AGPS, 1991) p 277. Human Rights and Equal Opportunity Commission, Racist Violence (Canberra: AGPS, 1991) pp 296–302. [13.80]

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High Court in Australian Capital Television Pty Ltd v Commonwealth. 145 However, it has been suggested that these constitutional concerns are overstated since “there is no basis for concluding that racial vilification is ‘political speech’ in terms relevant to the implied constitutional freedom recognised by the High Court”. 146 In his study of these laws, Luke McNamara argues that “free speech sensitivity has had a profound impact on the form, substance and practical operation of Australian racial vilification laws”. 147 He cites the example of debate in the Queensland Parliament in the lead-up to the Anti-Discrimination Amendment Act 2001 (Qld)—which added racial and religious vilification provisions to the Anti-Discrimination Act 1991 (Qld)—during which free speech sensitivity underpinned the Opposition’s refusal to support the legislation. From a normative philosophical perspective, the outlawing of racial vilification may be viewed as a justifiable restriction on freedom of speech, assembly and association because of the “harm” that it causes to others. Wojciech Sadurski identified three harms associated with racist hate speech: (1)

harm results from violent reactions by the victims;

(2)

others are incited to commit violence;

(3) victims suffer psychic injury. 148 In Sadurski’s view, (1) and (2) pose little difficulty for liberal theory and may be accommodated fairly easily within the present law. In the absence of violence, however, interference with racist speech poses greater difficulties in terms of justification. Rather than seeking to justify prohibition on the grounds of affirmative action, Sadurski argues that offensive speech may be prohibited where it constitutes a form of “psychic injury”. The implications of this approach are further explored in “Offensive conduct and language crimes”, at [13.150]. Other theorists have linked and limited these antivilification offences to the subordinated position of disadvantaged minorities, thus limiting their legitimate operation to restrain vilification on the grounds of heterosexuality and Anglo-Australian identity. 149

145 146 147

148 149

(1992) 177 CLR 106. L McNamara and T Solomon, “The Commonwealth Racial Hatred Act 1995: Achievement or Disappointment?” (1996) 18(2) Adelaide Law Review 259 at 281. L McNamara, Regulating Racism: Racial Vilification Laws in Australia (Sydney: Sydney Institute of Criminology, 2002) p 304. See also K Gelber, “Hate Speech and the Australian Legal and Political Landscape” in K Gelber and A Stone (eds), Hate Speech and Freedom of Speech in Australia (Sydney: Federation Press, 2007) Ch 1. W Sadurski, “Racial Vilification, Psychic Harm and Affirmative Action”, T Campbell and W Sadurski (eds), Freedom of Communication (Aldershot: Dartmouth, 1994). A Zanghellini, “Jurisprudential Foundations For Anti-Vilification Laws: The Relevance Of Speech Act And Foucauldian Theory” (2003) 27 Melbourne University Law Review 458. See also K Gelber, Speaking Back: The Free Speech versus Hate Speech Debate (Philadelphia: John Benjamins Publishing Company, 2002) who advocates for a statutory definition of hate speech that focuses on whether discrimination has been “enacted” in the speech.

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Racial vilification offences perform an important symbolic role in outlawing racist violence. However, there is a contrary argument that it would be far better, symbolically and practically, to promote the rigorous enforcement of the existing offences (of which there are no shortage) and forthright punishment of such conduct. 150 A range of similar issues has arisen in relation to the criminalisation of hate speech targeting gays and lesbians, and whether such vilification may be legitimately prohibited by the criminal law. 151 Provoking a breach of the peace: prior restraint of peaceful protest [13.85] Some judges have sought to impose restrictions on public order laws that have the

potential to operate as a prior restraint on political protest. In Forbutt v Blake, the police took action to prevent members of an organisation called “Women Against Rape” from participating in the annual ANZAC parade in Canberra. Dressed in black and carrying placards stating “Soldiers are Phallic Murderers”, “Patriots Kill” and “Heroes Rape”, the group of women assembled to march about 500 metres (five or six minutes’ walk) from the Australian War Memorial. The police stopped them marching on the ground that their behaviour was likely to provoke a breach of the peace. When the group refused to disperse, the women were arrested, charged and convicted with obstructing a police member in the execution of his duty contrary to s 64 of the Australian Federal Police Act 1979 (Cth). Similar offences of obstructing or hindering police exist in all jurisdictions. 152 The use of the offence of “obstructing police” provided the Supreme Court of the Australian Capital Territory with an opportunity to examine the common law powers to prevent a breach of the peace. Connor ACJ noted that the sole basis for the police intervention in this case “was that some members of the public might be provoked into committing acts against the group which would constitute a breach or breaches of the peace”. 153 The issue raised at the appeal was whether the police had the power to stop lawful and peaceful conduct merely because it was likely to provoke violence by others. Connor ACJ declined to follow an earlier English decision, Duncan v Jones, 154 that had supported a conviction for obstruction on similar facts. By drawing a distinction between those powers that derived from the common law preventive jurisdiction (breach of the peace) and those that are conferred by statute (obstructing police), he concluded that the police “in executing their duty to keep the peace, were restricted to the means recognised in that jurisdiction”. 155 He acknowledged that any concerns about conceptual purity were subsidiary to the dangers of adopting any alternative construction of the offence. In the opinion of Connor ACJ, the alternative (broader) construction of obstruction could lead to “quite 150 151 152

153 154 155

P Gordon, “Racist Harassment and Violence” in E Stanko (ed), Perspectives on Violence (London: Quartet Books, 1994) p 51. For a review of hate crime generally, see C Cunneen, D Fraser and S Tomsen (eds), Faces of Hate—Hate Crime in Australia (Sydney: Hawkins Press, 1997). Criminal Code (ACT), s 363; Crimes Act 1900 (NSW), s 546C; Police Administration Act 1978 (NT), s 159; Police Powers and Responsibilities Act 2000 (Qld), s 790 (assault or obstruct), s 791 (contravene direction or requirement); Summary Offences Act 1953 (SA), s 6(2); Police Offences Act 1935 (Tas), s 34B; Summary Offences Act 1966 (Vic), s 52; Criminal Code (WA), s 172; For the offence of failure to comply with an order given by the police to prevent a gathering “from becoming an out-of-control gathering”, see Criminal Investigation Act 2006 (WA), s 38C(2). Forbutt v Blake [1981] 51 FLR 465 at 469. [1936] 1 KB 218. Forbutt v Blake [1981] 51 FLR 465 at 475. [13.85]

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extraordinary results”, including that Members of Parliament could be forbidden to address hostile audiences during election campaigns. Having regard to the seriousness of the offence of obstruction, Connor ACJ concluded: “I am quite unable to attribute an intention to the legislature to expose a person to such a penalty for disobeying a police order to cease a lawful activity in circumstances where the only relevant police duty is to prevent a breach of the peace by other citizens against him [or her].” 156

The imaginative interpretive strategy employed by Connor ACJ in Forbutt offers some protection against prior restraint of peaceful and otherwise lawful forms of protest. In these cases, policing should not be directed against those who are being threatened, but rather at those who are threatening violence. 157 The rejection of Duncan v Jones and the attempt to impose limits on the offence of obstruction in Forbutt have been commended by English commentators. 158 Notwithstanding this resounding caution against prior restraint in Forbutt, the decision hardly provides a secure legal foothold for freedom of expression, assembly and association. Although disobedience of the police in such situations cannot constitute the offence of obstruction, Connor ACJ affirmed that a demonstrator who is engaged in peaceful and other lawful protest may still be liable to other types of intervention, including arrest, to prevent a breach of the peace. 159 Also, the limitation on obstruction applies only where the police are exercising common law powers. Thus, a charge of obstruction is presumably available against persons involved in peaceful conduct that interferes with statutory powers, such as the power to enter and remain on premises to prevent the commission of an offence, to prevent a breach of the peace, or to protect life or property under ss 188 – 190 of the Crimes Act 1900 (ACT): see at [13.35]. The scope of Forbutt has been further restricted by legislation in many jurisdictions that imposes on police statutory duties to keep the peace and prevent crime and disorder. A person who obstructs or hinders police while exercising these statutory duties would be guilty of obstruction. As Roger Douglas observed in relation to Forbutt, “its reasoning is not so persuasive as to suggest that it will be followed in other jurisdictions”. 160 The judicial concern about prior restraint in Forbutt resonates with the approach taken in the classic English civil liberties case of Beatty v Gillbanks. In this case, members of the Salvation Army were bound over to keep the peace for participating in a parade on the ground that their conduct was likely to provoke a tumultuous assembly by an opposing group, the Skeleton Army. An appeal against the binding over was allowed on the grounds that an assembly of Salvationists pursuing a lawful and peaceful activity could not constitute an unlawful assembly merely because of the presence of others who caused or threatened to cause a breach of the peace. The judges affirmed that the assembly of the Salvationists was lawful, that it had not intended to provoke violence and that the violence threatened stemmed entirely from the hostile members of the opposing group. In upholding the appeal, Field J concluded 156 157

158 159 160

Forbutt v Blake [1981] 51 FLR 465 at 475. Connor ACJ endorsed judicial dicta in R v Londonderry Justices (1891) 28 LR Ir 440 at 450 per O’Brien J: If danger arises from the exercise of lawful rights resulting in a breach of the peace, the remedy is the presence of sufficient force to prevent the result, not the legal condemnation of those who exercise those rights. DGT Williams, “Criminal Law and Administrative Law: Problems of Procedure and Reasonableness” in P Smith (ed), Criminal Law: Essays in Honour of JC Smith (London: Butterworths, 1987) p 179. Forbutt v Blake [1981] 51 FLR 465 at 476. R Douglas, Dealing with Demonstrations: The Law of Public Protest and its Enforcement (Sydney: Federation Press, 2004) p 108. This assessment has largely been borne out with Forbutt v Blake being rarely cited outside the ACT; cf Edwards v Raabe [2000] VSC 471 and, subsequently, Temoannui v Ford [2009] ACTSC 69.

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that the justices had wrongly based their decision on the idea “that a man may be convicted for doing a lawful act if he knows that his doing it may cause another to do an unlawful act. There is no authority for such a proposition”. 161 Beatty v Gillbanks provided a glimmer of hope that the courts, without the assistance of an entrenched Bill of Rights or statutory right of peaceful assembly, can resist the prior restraint of peaceful political protest. Unfortunately, the decision has been confined to its facts and distinguished in subsequent cases. In Duncan v Jones, Lord Hewitt CJ described the case as “unsatisfactory” and affirmed that a person who refused to comply with a police request to desist in peaceful and otherwise lawful conduct may quite properly be guilty of the statutory offence of obstructing the police. 162 Although Duncan v Jones has not been followed in Australia (Forbutt v Blake being the most prominent example), the residual legal space for engaging in peaceful protest is limited, and under constant threat from further statutory incursion. As David Williams has pointed out, the protective scope of Beatty is limited “as those who seek to protest in public can very easily run foul of the battery of laws and powers available to the police and prosecutors”. 163 Notwithstanding this limitation, Williams argues that Beatty v Gillbanks may still have a role to play as a direction to judges (rather than to the police) cautioning against any peremptory exercise of public order powers or offences against peaceful and otherwise lawful conduct. In Williams’ view, a distinction should be drawn between “prior control” and “instant response”. In relation to the latter, restriction of peaceful and otherwise lawful conduct may be justifiable in situations where the police “on the spot” reasonably anticipate that a breach of the peace is imminent. 164 In cases involving hostile audiences, the appropriate response is the presence of sufficient numbers of police to ensure that the individuals threatening violence can be contained. Although this is a desirable outcome, in operational terms such an approach may place intolerable financial and human resource burdens on the police. This was apparent in the situation confronting police attending the Associated Pulp and Paper Mill (APPM) picket line at Burnie, Tasmania, in the early 1990s. In that case, police intervention against the hostile elements obstructing individuals who wished to return to work required one of the largest police operations ever mounted in Tasmania and resulted in a serious escalation in the tension and violence on the picket line. 165 Galligan states that the authorities on hostile audiences reflect “two different and conflicting approaches, one more protective of public protest than the others, but neither developed adequately”. 166 The principle in Beatty v Gillbanks, though more protective of political freedom at one level, offers no guidance to the police or the courts in situations where both groups of protestors legitimately claim to be exercising lawful rights. The principle proves difficult, if not impossible, to apply where the opposing groups are comprised of both peaceful and hostile elements. 161 162 163

164

165 166

Beatty v Gillbanks (1882) 9 QBD 308 at 314. Duncan v Jones [1936] 1 KB 218. T Daintith, “Disobeying a Policeman: A Fresh Look at Duncan v Jones” [1966] Public Law 248 at 249–251. DGT Williams, “The Principle of Beatty v Gillbanks: A Reappraisal” in A Doob and E Greenspan (eds), Perspectives in Criminal Law: Essays in Honour of John Edwards (Ontario: Canada Law Book Inc, 1985) p 117. DGT Williams, “The Principle of Beatty v Gillbanks: A Reappraisal” in A Doob and E Greenspan (eds), Perspectives in Criminal Law: Essays in Honour of John Edwards (Ontario: Canada Law Book Inc, 1985) p 116. See also R v Chief Constable of Sussex; Ex parte International Traders Ferry Ltd [1999] 2 AC 418. D Galligan, “Preserving Public Protest: the Legal Approach” in L Gostin (ed), Civil Liberties in Conflict (London and New York: Routledge, 1988) p 55. [13.85]

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The lack of guidance on how the police and judges should prioritise the exercise of conflicting lawful rights is apparent in the judgment of Wright J in Commissioner of Police (Tas); Ex parte North Broken Hill Ltd. 167 In reviewing the legality of police action at a picket line in Burnie, Wright J directed the police to break through the picket line on the ground that workers, who were exercising their lawful right to work, were being obstructed by picketers. In support of his decision, Wright J approved the dicta in R v Londonderry Justices 168 also cited in Forbutt’s case, discussed at [13.70]. In his view, it made no difference that the picketers were acting in a peaceful and lawful manner: an obstruction involving face-to-face confrontation is conduct likely to provoke violence on the part of the workers who were exercising their lawful right to work. No special weight was attached to the fact that the picketers were exercising their right to freedom of expression, assembly and association protected under the ICCPR. Wright J dismissed an argument that the protestors on the picket line had lawful rights, concluding that “persons picketing in furtherance of an industrial dispute have no special rights in the eyes of the law”. 169 The judicial attention to the fundamental human rights in conflict is inadequate as Bronitt and Williams conclude: “What is remarkable is that three fundamental human rights, namely the freedoms of expression, assembly and association, can be ‘lost’ within the interstices of the common law. To ensure that this does not occur, the law ought to provide explicit guidance (both to the police and the courts) as to how the exercise of competing lawful rights should be accommodated and how those rights should be prioritised.” 170

The law in this area has tended to suppress political and human rights questions, resolving the legitimacy of peaceful conduct provoking disorder through legal technicalities such as subjective or objective tests. As in other areas of the criminal law, the courts have reiterated the formal irrelevance of the (political) motives of participants: see Chapter 3, [3.180]. Though these powers to prevent disorder are represented as value-neutral, it is impossible to avoid the highly politicised context within which they are often exercised. The suppression of politics in public order law can only be partial. Indeed, the political, social and moral context of the disorder is often simply displaced to the less visible arena of police discretion and operational policies on arrest and prosecution. “Legal categories encapsulate the authoritative view of what constitutes illegitimate disorder, and moreover, do so in a way which is not overtly political. The traditional doctrinal story about clear and general rules that are promulgated and applied as announced allows the political sting to be taken out of the suppression of disorder. Political power is exercised with a low profile by means of a wide discretionary power at all stages of the criminal process, leaving the law clean of political taint.” 171

167 168 169 170 171

892

(1992) 61 A Crim R 390. (1891) 28 LR Ir 440. Commissioner of Police (Tas); Ex parte North Broken Hill Ltd (1992) 61 A Crim R 390 at 395. S Bronitt and G Williams, “Political Freedom as an Outlaw: Republican Theory and Political Protest” (1996) 18(2) Adelaide Law Review 289 at 320. N Lacey, C Wells and O Quick, Reconstructing Criminal Law (3rd ed, London: LexisNexis Butterworths, 2003) pp 175–176. [13.85]

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Human rights perspectives Public Order and the Right to Protest [13.90] I support your right to protest provided you exercise that right within the law. 172

Under the common law, the freedom to engage in political protest is not a positive legal or constitutional right, but rather is a residual and negative liberty. Freedom of speech, assembly and association is nothing more than the liberty of individuals, alone or in combination with others, to engage in conduct that is not prohibited by law. 173 As the Community Law Reform Committee of the Australian Capital Territory concluded in 1994, the right to assembly under the common law is nothing more than “the residue of freedom remaining when the restrictions imposed by law are taken into account”. 174 Under this common law model, the freedom to protest, rather than being protected by positive rights in legislation or a constitutional Bill of Rights, rests on interpretive presumptions or implications in favour of individual liberty. 175 The position has of course changed in the Australian Capital Territory and Victoria, which have enacted human rights legislation, discussed in Chapter 2 at [2.150]. This model of civil liberties requires judicial vigilance since the “residue” of personal liberty is under constant threat from legislative incursion. As Connor Gearty and Keith Ewing have observed: “Freedom retreats in the face of laws that are constantly emerging, evolving and accumulating—but very rarely disappearing. They originate not only in parliament but also in the courts. The residual nature of liberty means that it can never fight back.” 176

The legislative expansion of public order powers and offences in the late 20th century has dramatically reduced the residual sphere of freedom within which fundamental freedoms may be exercised. In many cases, the presumption of liberty is overlooked by the courts, or, where it is considered relevant, it is outweighed by the legitimate interest in preventing crime and disorder. In the absence of an express legal right to engage in peaceful protest, political freedom in Australia depends upon policing restraint, in particular the benevolent exercise of discretion not to use public order powers and offences. Mary Heath notes that the wide range of offences that potentially apply to public protest and the creative approach enforcement officials take to non-specific laws (including antiquated or infrequently used offences) ensures a substantial breadth of control over public dissent.

172 173

174 175 176

A statement commonly given by police to protesters, noted in M Heath, “Policing and Self-Policing in the Shadow of the Law: Negotiating Space for Public Dissent” (1999) 17(1) Law in Context 15 at 15. AV Dicey, Introduction to the Study of the Law of the Constitution (10th ed, London: Macmillan, 1959). For a thorough discussion of public order offences in relation to demonstrations, see R Douglas, Dealing with Demonstrations—The Law of Public Protest and its Enforcement (Sydney: Federation Press, 2004) Ch 3. Community Law Reform Committee of the Australian Capital Territory, Public Assemblies and Street Offences, Issues Paper No 10 (Canberra: ACT Government, 1994) p 6. Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 523 per Brennan J. C Gearty and K Ewing, Freedom Under Thatcher: Civil Liberties in Modern Britain (Oxford: Clarendon Press, 1990) p 11. [13.90]

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She concludes that legitimate space available for public protest is limited, and that “[t]he supposedly stable border between lawful and unlawful protest also emerges as a fiction”. 177 Unlike the common law, peaceful assembly and the related rights of free expression and association are expressly protected under Arts 19 and 20 of the Universal Declaration of Human Rights (UDHR) and Arts 19, 21 and 22 of the ICCPR. However, these rights are not unqualified. Restrictions may be imposed on the right of peaceful assembly in accordance with the law and where necessary in a democratic society in the interests of national security or public safety, public order, protection of public health or morals or the protection of the rights and freedoms of others: Art 21. The common law powers to prevent a breach of the peace have been challenged on the ground that they violate the right to freedom of expression (Art 10) and assembly and association (Art 11) protected under the European Convention on Human Rights (ECHR). In Steel v United Kingdom, 178 the European Court of Human Rights held that laws governing breach of the peace, while impinging on the exercise of the freedom of expression, may be justified for the legitimate aim of preventing disorder and protecting the rights of others. 179 In this case, the applicants had engaged in various acts of protest ranging from physical disruption of a grouse shoot and construction of a motorway, to the peaceful distribution of leaflets protesting arms sales outside a conference venue. The court held that the arrests and detention of the applicants for interference or obstruction of lawful activities on the ground that it may provoke a breach of the peace had to satisfy the proportionality principle. That is, the interference with freedom of expression had to be proportionate to the legitimate aim pursued, due regard being had to the importance of freedom of expression. 180 The court held that the arrest and detention of the applicants who were interfering with the grouse shoot and motorway construction could be justified on the ground that it was “dangerous conduct”. The further imprisonment of one applicant for refusing to accept the binding over order was upheld by the European Court on the ground that it was likely that she would have continued with the protest and that it was necessary for the maintenance of the rule of law and the authority of the judiciary 181. By contrast, the arrest and detention of the applicants who were peacefully distributing leaflets was not in accordance with law and was disproportionate. 182 Public order laws in Australia similarly impinge on freedoms of expression, association and assembly protected under the ICCPR. Until the enactment of the Australian Capital Territory Human Rights Act 2004, Queensland was the only jurisdiction that expressly protected the right to peaceful assembly under the ICCPR through legislation. The Queensland reforms occurred as a reaction to the repressive public order laws and policies

177 178 179 180 181 182

M Heath, “Policing and Self-Policing in the Shadow of the Law: Negotiating Space for Public Dissent” (1999) 17(1) Law in Context 15 at 19. (1999) 28 EHRR 603. Steel v United Kingdom (1999) 28 EHRR 603 at [96]. Steel v United Kingdom (1999) 28 EHRR 603 at [101]. Steel v United Kingdom (1999) 28 EHRR 603 at [107]. Steel v United Kingdom (1999) 28 EHRR 603 at [110].

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adopted in the 1970s. 183 Section 5(1) of the Peaceful Assembly Act 1992 (Qld), with the equivalent provisions under the Human Rights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities 2006 (Vic), guarantee a right of peaceful public assembly, drawing expressly on the right to peaceful assembly and the grounds for restriction contained in Art 21 of the ICCPR. To protect the statutory right of peaceful assembly, the Queensland legislation provides immunity from liability for various laws that would otherwise prohibit or restrict the exercise of that right, such as laws governing the movement of traffic and pedestrians, as well as loitering and obstruction offences. The immunity is available only where the assembly has been subject to prior police approval, though participation in an assembly that is not approved does not of itself constitute an offence. Organisers and protesters participating without approval simply forfeit their immunity from prosecution under prescribed offences. 184 This framework regulating public assemblies in Queensland conforms to the ICCPR since the grounds for restricting assemblies precisely mirror the restrictions applied in Art 21. The Peaceful Assembly Act 1992 (Qld) aims to balance the rights of those participating in the assembly against the legitimate interests in maintaining public order, decency and amenity. The legislative objectives contained in s 2(1)(c) provide that the existence of the right to participate in public assemblies is subject only to such restrictions as are necessary and reasonable in a democratic society in the interests of: (1)

public safety;

(2)

public order; or

(3)

protection of rights and freedoms of other persons.

By contrast, the Human Rights Act 2004 (ACT) does not expressly guarantee immunity from prosecution for individuals exercising the right to peaceful assembly. Rather, the protection operates indirectly: the judiciary is under an obligation to interpret Territory legislation to be consistent with that right, or where such an interpretation is impossible, to make a declaration of incompatibility. This procedure is discussed in Chapter 2, [2.150]. In the domain of public order law, this interpretive obligation has the potential to limit the scope of existing statutory offences (such as obstruction and offensive language and move-on powers) providing a broader foundation for the protection of freedom of expression, assembly and association than the rather narrow decision in Forbutt v Blake, 185 discussed above. The challenge to the ACT move-on powers under the Human Rights Act 2004 (ACT) is discussed at [13.105]. While stronger legislative or judicial recognition of the rights under the ICCPR would be a positive step, it is important to recognise the importance of cultural attitudes of tolerance towards political protest. As Denis Galligan concludes: “The proclamation of a right to protest might go some way towards establishing a more secure legal footing, but it is surely folly to think that that in itself is the final solution. The real problem

183

184 185

F Brennan, Too Much Order With Too Little Law (St Lucia, Qld: University of Queensland Press, 1983); see also T Legrand and S Bronitt, “Policing the G20 protests: “Too much order with too little law” revisited” (2015) 22(1) Queensland Review 3. Peaceful Assembly Act 1992 (Qld), ss 3, 6(1). [1981] 51 FLR 465. [13.90]

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lies in the attitudes of officials—legislators, judges, police and others; those attitudes have produced the present position, and it is only if they change that the value of public tumults will be secured.” 186

Mary Heath suggests that community attitudes are intentionally drawn upon in the rhetoric that seeks to justify and legitimise protest offences. 187 Over and above the criminalisation of protest behaviours, deviant constructions are applied to demonstrators themselves in an attempt to shift their activities outside accepted community norms and thus undermine the validity of their dissent. Public order laws also potentially raise questions of constitutional validity where they interfere with the implied freedom of political communication under the Commonwealth Constitution. 188

Selected Statutory Public Order Powers [13.95] The powers to prevent crime and disorder under the common law have been

supplemented by a wide range of statutory powers. In this section, we examine two powers commonly used by the police to deal with minor threats to public order: • the power to remove individuals who are causing disturbances in public places; and • the power to deal with individuals who are drunk in a public place. As examined at [13.35], there are extensive statutory powers available for preventing family violence which include authorising entry onto private premises and obtaining a protection order. Statutory move-on powers [13.100] Statutory move-on powers are triggered by a wide range of disorderly conduct,

including violence (actual or threatened), property damage, harassment or intimidation. These powers supplement and extend the existing powers to disperse individuals to prevent a breach of the peace under the common law, and the rarely exercised statutory powers of dispersal to prevent a riot, which are considered at [13.230]. In relation to move-on powers, it is only an offence where the person directed to leave an area by the police refuses to comply. Such move-on powers exist in New South Wales, Queensland, Northern Territory, Victoria, Western Australia and South Australia, though the terms and conditions governing their use vary significantly. 189 Section 197 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) has a wide reach, enumerating a wide range of specific behaviours: Directions generally relating to public places (cf Summary Offences Act 1988, s 28F) 186 187 188

189

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D Galligan, “Preserving Public Protest: the Legal Approach” in L Gostin (ed), Civil Liberties in Conflict (London and New York: Routledge, 1988) p 62. M Heath, “Policing and Self-Policing in the Shadow of the Law: Negotiating Space for Public Dissent” (1999) 17(1) Law in Context 15 at 20–21. See S Bronitt and S Ford, 10.10 “Public Order” in Title 10 CRIMINAL OFFENCES, The Laws of Australia (Sydney: Law Book Company, 1993–) [4]–[11]; and R Douglas, Dealing with Demonstrations—The Law of Public Protest and its Enforcement (Sydney: Federation Press, 2004) pp 35–42. See also S Bronitt and G Williams, “Political Freedom as an Outlaw: Republican Theory and Political Protest” (1996) 18(2) Adelaide Law Review 289, in which the authors examine freedom of protest from constitutional and public order law perspectives. Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 197 – 200; Summary Offences Act (NT), s 47A(1); Police Powers and Responsibilities Act 2000 (Qld), ss 36 – 41; Summary Offences Act 1953 (SA), s 18; Summary Offences Act 1966 (Vic), s 6; Criminal Investigation Act 2006 (WA), s 27. [13.95]

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(1) A police officer may give a direction to a person in a public place if the police officer believes on reasonable grounds that the person’s behaviour or presence in the place (referred to in this Part as relevant conduct): (a) is obstructing another person or persons or traffic, or (b) constitutes harassment or intimidation of another person or persons, or (c) is causing or likely to cause fear to another person or persons, so long as the relevant conduct would be such as to cause fear to a person of reasonable firmness, or (d) is for the purpose of unlawfully supplying, or intending to unlawfully supply, or soliciting another person or persons to unlawfully supply, any prohibited drug, or (e) is for the purpose of obtaining, procuring or purchasing any prohibited drug that it would be unlawful for the person to possess. (2) A direction given by a police officer under this section must be reasonable in the circumstances for the purpose of: (a) reducing or eliminating the obstruction, harassment, intimidation or fear, or (b) stopping the supply, or soliciting to supply, of the prohibited drug, or (c) stopping the obtaining, procuring or purchasing of the prohibited drug. (3) The other person or persons referred to in subsection (1) need not be in the public place but must be near that place at the time the relevant conduct is being engaged in. (4) For the purposes of subsection (1)(c), no person of reasonable firmness need actually be, or be likely to be, present at the scene. 190

New South Wales legislation contains no guidance on how the reasonableness of these powers should gauged. Powers are not confined to giving directions to leave the vicinity and, in some cases, have been applied to impose a form of de facto curfew on individuals. For example, in one case, the police direction took the form of an exclusion zone: a woman suspected of buying drugs was directed not to be within a 3km radius of Cabramatta Railway Station for 7 days. 191 This direction was held on the facts not to be “reasonable” by the magistrate, who dismissed the charge on the ground that the prosecution had failed to provide evidence supporting the geographical scope or duration of the police direction, and accepting the defence concern that a blanket approach would interfere with the accused’s access to drug referral centres and public transport. This was one of the rare cases where the reasonableness of the direction given was subjected to independent review. In 90% of cases, persons simply comply with the direction issued. 192 The lack of detailed legislative guidance or regular judicial review of these police decisions means that the range and scope of possible “reasonable directions” are limited only by police ingenuity. The equivalent Queensland legislation provides some guidance (albeit limited) on what constitutes a “reasonable direction” through the use of legislative examples. Section 48 of the Police Powers and Responsibilities Act 2000 (Qld) provides: Direction may be given to person (1) A police officer may give a person or group of persons doing a relevant act any direction that is

190

191 192

The second reading speech (Hansard, New South Wales Legislative Assembly, 17 September 2002) stated that the new Act repealed and re-enacted “without amendment” the s 28F powers in the Summary Offences Act; but added that “a police officer may be ‘a person affected by the relevant conduct’ for the purposes of issuing a direction”. Police v Saysouthinh (unreported, 10/5/2005, NSW Local Court, Liverpool, Brydon LCM, M619/02, BBH-F2/H1). NSW Ombudsman, Policing Public Safety (1999) p 37. [13.100]

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reasonable in the circumstances. Examples for subsection (1)— 1 If a person sitting in the entrance to a shop is stopping people entering or leaving the shop when it is open for business and the occupier complains, a police officer may give to the person a direction to move away from the entrance. 2 If a group of people have been fighting in a night club car park, a police officer may give the people involved in the fight a direction to leave the premises in opposite directions to separate the aggressors. 3 If a person has approached a primary school child in circumstances that would cause anxiety to a reasonable parent, a police officer may give the person a direction to leave the area near the school. 193

The breadth of the New South Wales directions may be contrasted with the more confined form of move-on powers in other jurisdictions; for example, in the Australian Capital Territory and Queensland, the equivalent powers are limited to directions to leave the vicinity and not return for a specified time period. In Western Australia, s 28(2)(b) of the Criminal Investigation Act 2006 (WA) sets out that the period must not be longer than 24 hours. In addition, when deciding whether to make a “move-on” order, the “likely effect of the order on the person” must be taken into account. Relevant considerations identified in s 28(3) include “the effect on the person’s access to the places where he or she usually resides, shops and works, and to transport, health, education or other essential services.” Move-on powers were ostensibly enacted to deal with a range of minor incidents of public disorder. In New South Wales, however, the powers have been enlisted in the “War on Drugs” to combat drug dealing in public spaces. Subsection 197(1)(d) and (e) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) were introduced in 2001 to permit directions to be issued against persons suspected of participating in street level drug dealing. The aim of these amendments was to bolster zero tolerance policing around drug “hot spots”, discussed below. As the second reading speech noted, the amendment was intended: “specifically to assist the police in places such as Cabramatta where it is known that persons congregate to supply and possess prohibited drugs, to clear an area.” 194

The effectiveness of toughening public order laws in reducing or preventing crime is hard to measure, though increased levels of police activity may have contributed to declines in some types of criminal activity. 195 The danger is that “effective” policing of the streets may simply result in displacement of drug dealing to adjacent areas. This strategy, in the absence of arrests leading to successful prosecutions, will do little to address the underlying demand or reduce supply of illegal drugs. Moreover, these powers may be counterproductive, interfering with public health programs based on harm minimisation. Data collected and published by the NSW Ombudsman in 1999 revealed that during the first year of operation these powers were being disproportionately invoked against young persons, with nearly half of the directions being issued to children; that is, persons under the 193

194 195

In its review of these laws, the Crime and Misconduct Commission (CMC) called for a further threshold requirement to be inserted into s 48 of the Police Powers and Responsibilities Act 2000 (Qld) “to guide the type of move-on direction that a police officer may issue”: Crime and Misconduct Commission (Qld), Police Move-on Powers – A Review of their Use (December 2010) p 41, http://www.ccc.qld.gov.au/research-andpublications/publications/ (cited 6 March 2017). Second reading speech, Hansard, New South Wales Legislative Assembly, 30 May 2001, p 31. NSW Ombudsman, Policing Public Safety (1999) Ch 13.

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age of 17 years. 196 The data also showed that 22% of the directions were being given to persons identified by police as Aboriginal or Torres Strait Islanders, although this group constituted less than 2% of the total population of New South Wales. Furthermore, 50% of persons identified by police as Aboriginal or Torres Strait Islanders were under the age of 17 years. It was also clear from that data that move-on powers were being used more regularly in geographical areas with high proportions of Aboriginal inhabitants. 197 The creation of new powers for the police to crack down on street crime and disorder has important symbolic dimensions. Beyond concerns about youth gangs and knives, the powers also serve to reinforce police authority on the streets. In relation to move-on powers, the failure of a person to comply with the direction is made a distinct offence, which undoubtedly promotes the high levels of compliance noted above. Although the offence is committed only where the person fails to comply with the direction and persists in the relevant conduct (obstruction, harassment, etc), empirical research reveals that the latter requirement of persisting in the conduct was often overlooked by police and that persons were wrongly issued directions even though they had desisted in their disorderly conduct. 198 From a policing perspective, it is defiance of police directions, rather than the disorderly conduct itself, that lies at the heart of the offence. These developments are suggestive of a wider trend towards “policing by law”, where citizens are compelled or coerced to comply under threat of sanction, displacing the traditional model of “policing by consent” where citizens are encouraged to cooperate voluntarily. At common law, individuals, while under a moral or social duty to help police, were not under a legal duty to do so. In the absence of statutory compulsion, a failure to assist the police does not constitute the offence of obstruction of a police officer in the execution of his or her duties. 199 However, the common law has been extensively modified by statute. See, for example, s 11 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), which states that: A police officer may request a person whose identity is unknown to the officer to disclose his or her identity if the officer suspects on reasonable grounds that the person may be able to assist in the investigation of an alleged indictable offence because the person was at or near the place where the alleged indictable offence occurred, whether before, when, or soon after it occurred.

It is an offence to refuse to comply without reasonable excuse under s 12. Although limited to persons able to assist investigation of serious crimes, empirical research suggests that police identification checks are used widely: though outside the legislative power, young people tend to “voluntarily” submit to police requests. 200 Criminalising such disobedience through statutory provisions may be viewed as a further derogation from that policing model where officers are viewed as “citizens in uniform” exercising powers to prevent crime and disorder available to any person. 196

197

198 199 200

NSW Ombudsman, Policing Public Safety (1999) [10.24]. Similar patterns of selective enforcement are revealed in various empirical studies of the move on powers in Queensland. These data are reviewed in H Punter, “Move-on Powers: New Paradigms of Public Order Policing in Queensland” (2011) 35 Criminal Law Journal 386. NSW Ombudsman, Policing Public Safety (1999) [10.53]. For a review of the discriminatory impact of these laws on marginalised and disadvantaged groups, see T Walsh and M Taylor, ““You’re Not Welcome Here”: Police Move-On Powers and Discrimination Law” (2007) 30(1) University of New South Wales Law Journal 151; H Punter, “Move-on Powers: New Paradigms of Public Order Policing in Queensland” (2011) 35 Criminal Law Journal 386 at 391. NSW Ombudsman, Policing Public Safety (1999) [10.104]. Rice v Connolly [1966] 2 QB 414. NSW Ombudsman, Policing Public Safety (1999) [11.30]. [13.100]

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Not all jurisdictions have attached offence and penalty provisions to their equivalent move-on powers. In Queensland, for example, the powers of the police in relation to move-on directions are expressly defined, though a refusal or failure to comply is not an offence per se. The emphasis in this part of the Act is on crime prevention and order maintenance, not on criminalisation. This does not mean that the move-on powers are incapable of “hardening” when needed. When persuasion has failed and a person refuses to comply, police in Queensland naturally resort to their ordinary powers; typically, the question would turn on whether the conduct or presence would justify an arrest to prevent a breach of the peace. There is certainly no shortage of ordinary powers and offences, such as obstruction, that may be legitimately invoked to promote compliance with the direction. The escalating interaction between the use of statutory move-on powers and ordinary criminal offences is revealed in Rowe v Kemper, 201 where the refusal to comply with the direction to move on under the Police Powers and Responsibilities Act 2000 (Qld) led to arrest for the more serious offence of police obstruction. In this case the defendant, an elderly man, was using a public toilet to change his clothes and wash himself. [The defendant claimed that the cleaner had closed the toilet after he had entered to use the toilet.] He refused to leave when asked to do so by the cleaner, who summoned the police. The subsequent resistance by the defendant to the police direction to leave under the move-on powers led to an arrest and charge of obstructing a police officer in the performance of his or her duty. The Queensland Court of Appeal quashed the conviction. Although there was a lawful basis for issuing the order (on the ground that the defendant’s behaviour in the toilet had caused “anxiety” to the cleaner), the order to leave for eight hours was not reasonable in the circumstances. 202 The Rowe decision led to a review of these powers by the Queensland Crime and Misconduct Commission (CMC) in 2010. 203 The CMC recommendations included, inter alia, to preclude the use of move-on powers where fears are based solely on “presence”; the CMC also recommended repealing the “causing anxiety” ground in s 46, limiting these powers to behaviour which causes or is likely to cause fear to a reasonable person and that police have received a complaint about the person’s behaviour. These CMC recommendations were not implemented. Victoria undertook a similar review of its move-on powers, which has led to a significant narrowing of the scope of move-on powers. Amendments in 2015 now restrict move-on powers to cases where the officer suspects on reasonable grounds that— (a)

the person is or persons are breaching, or likely to breach, the peace; or

(b)

the person is or persons are endangering, or likely to endanger, the safety of any other person; or

(c)

the behaviour of the person or persons is likely to cause injury to a person or damage to property or is otherwise a risk to public safety. 204

201 202

[2008] QCA 175. Rowe v Kemper [2008] QCA 175 at [22]. The Court of Appeal found that the direction to leave the mall for 8 hours was unreasonable, and that merely directing the accused to leave while the toilet was being cleaned would have sufficed. See discussion in H Punter, “Move-on Powers: New Paradigms of Public Order Policing in Queensland” (2011) 35 Criminal Law Journal 386 at 393. Crime and Misconduct Commission (Qld), Police Move-on Powers – A Review of their Use (December 2010): http://www.ccc.qld.gov.au/research-and-publications/publications/ (cited 20 October 2016). Introducing this amendment, the Attorney-General Martin Pakula observed that “Victoria doesn’t need Bjelke-Petersen-style laws designed to silence dissent and outlaw peaceful protests”: Attorney-General “Labor Government To Repeal Draconian Move-On Laws” Media Release, 10 February 2015, http:// www.premier.vic.gov.au/media-centre/ (cited 20 October 2016).

203 204

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Move-On Powers: Lawful Protest, Dissent and other Reasonable Excuses [13.105] The broad powers conferred on the police by such move-on powers have the

potential to interfere with persons engaging in peaceful and otherwise lawful protest. Unlike the common law, these statutory powers are not tied to protests that are likely to provoke a breach of the peace. Cognisant of the potential for these powers to inhibit legitimate protest and otherwise lawful conduct, legislatures have placed limitations on their applicability to industrial disputes, picketing, demonstrations or protests, processions or assemblies, 205 and some jurisdictions have included a general “reasonable excuse” defence. 206 Under s 47(2) of the Police Powers and Responsibilities Act 2000 (Qld), a police officer must not give a direction that interferes with a person’s right of peaceful assembly unless it is reasonably necessary in the interests of: • public safety; • public order; or • the protection of the rights and freedoms of other persons. These limitations are consistent with the permissible restrictions on the right to peaceful protest under the ICCPR considered above. Indeed, in Temoannui v Ford, 207 the ACT Supreme Court examined the compatibility of a move-on direction given under the Crime Prevention Powers Act 1998 (ACT) with the rights to freedom of movement protected under the Human Rights Act 2004 (ACT). Higgins CJ held that although the move-on provision interfered with the freedom of movement, it could be justified if the measures were necessary and reasonable to prevent disorder. In this case, however, directing someone away from a particular vicinity in general terms did not give sufficient respect to the freedom of movement. The level of protection afforded by such provisions should not be overstated. In cases where the participants are involved in protest activity, the police may still intervene using their extensive array of common law powers to prevent a breach of the peace. Furthermore, it is clear that the police also have a margin of discretion in how to interpret the scope of these protections. In New South Wales, the power to issue reasonable directions cannot be applied to “an apparently genuine demonstration or protest” or “an organised assembly”. 208 In the absence of legislative guidance, it is unclear whether the determination of a protest as being “genuine” or “organised” is objective (to be undertaken by the courts) or subjective (to be determined by the police). Since matters involving public order powers are rarely brought to court, in practice the immunity from move-on powers will be determined by a subjective assessment of the officers on the ground. In this context, the police may well fall back on the traditional distinctions in policing between “respectable” and “rough” classes: see at [13.110]. Smaller and less orderly protests comprised of “persons of interest” are less likely to be regarded as participating in “genuine” or “organised” protests which fall within s 200. Such groups, often described in the media as “rent-a-crowd”, are likely to be subject to peremptory directions to disperse or be arrested for failing to comply. In determining the legitimacy of protest, police may attach undue significance to the presence of an official permit to hold a public assembly or procession. The New South Wales Ombudsman identified one case where 205 206 207 208

See, for example, Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 200; Summary Offences Act 1966, s 6(5). In New South Wales, for example, a person must comply with the direction, unless they have a reasonable excuse: Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 199(1). [2009] ACTSC 69. Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 200 (emphasis added). [13.105]

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the person had been engaged in an unauthorised march and was seen loitering around afterward by police: the police directed him to move on, recording his relevant activity as involvement in an “illegal march”. 209 The Ombudsman pointed out, quite rightly, that the protection conferred by the Act for peaceful protest should have applied here as a public assembly or procession is not unlawful simply because it has not been granted a prior authorisation.

Criminological perspectives Public Order Policing: Broken Windows and Zero Tolerance [13.110] Historically, the police mandate required officers to distinguish between the “rough” and “respectable” classes. Police attention necessarily focused on the poorer, more disadvantaged communities, thus entrenching discriminatory patterns of policing. This was not just an expression of “police culture”; it was also grounded expressly in positive law. Until 2000, cl 7 of the New South Wales Police Service Regulation 1990 required police officers to enforce the law with strict impartiality, with the following caveat: Police officers must be strictly impartial in the discharge of their duties towards all persons. While required to zealously carry out their duties, officers must exercise forbearance and discretion in dealings with minor offences committed inadvertently or in ignorance, or without evil intent, by respectable and law abiding citizens. A caution or warning is all that is necessary on many occasions.

It should be apparent that there is an inherent and obvious contradiction in this directive. The regulation is an expression of the importance of equality before the law. Yet, simultaneously, the regulation institutionalises derogation from equality before the law through the pragmatic exercise of discretion to caution rather than prosecute “respectable” rule-breakers. Clearly, the modern police mandate can no longer legitimately be expressed in terms of social control over the “immoral” or “disreputable” classes. Increasingly, the rationale for public order policing is being grounded more explicitly in “scientific” theories of crime prevention and community policing. The theories from the United States relating to “broken windows” and “zero tolerance” have been particularly influential in shaping the reform and enforcement policies of public order law, providing a new vocabulary, if not empirical plausibility, for the traditional role of policing as a form of “moral street-sweeping”. As David Garland notes, such new theories give greater prominence to the role of the police and police activity in preventing crime, with social and psychological interventions receding into the background. 210 Some criminologists, and, increasingly, the police themselves, have sought to justify wider police powers and tougher law enforcement policies by reference to theories of crime prevention. These arguments are usually grounded in the ideas of two American criminologists, James Q Wilson and George Kelling, who advocated the “broken windows” theory. 211 The simple hypothesis behind broken windows is that a failure to 209 210 211

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NSW Ombudsman, Policing Public Safety (1999) [10.249]. D Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Chicago: University of Chicago Press, 2001) p 187. J Wilson and G Kelling, “Broken Windows: The Police and Neighbourhood Safety” (1982) 249(3) The Atlantic Monthly 29. [13.110]

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address public disorder on the streets is a sign that no one cares, and that this neglect necessarily invites further disorder and crime. As Bernard Harcourt notes: “The basic plot is simple: fighting minor disorder deters serious crime”. 212 While widely credited by politicians, media and some academics for solving crime problems in large cities, including New York and Chicago, Harcourt and others note that there is a pervasive lack of empirical data to support the broken windows hypothesis. 213 “Broken windows” provided the theoretical foundation for a tougher stance on public order policing, creating the political environment for law and order politicians to advocate “zero tolerance” for street crime and public disorder. 214 Jayne Marshall 215 has identified three elements to zero-tolerance policing: • being “tough on crime”, including the enforcement of all applicable laws; • strict, non-discretionary law enforcement; • police action against minor offences and disorder. 216 Zero tolerance, as applied by politicians and the media in relation to street level drug dealing and gang-related crime, misleadingly suppresses the important and valuable role played by discretion in policing. As Cunneen noted in a report commissioned for the (since abolished) Aboriginal and Torres Strait Islander Commission (ATSIC) in 1999: “Zero tolerance policing rests on a spurious assumption that the law is neutral and can be enforced in all situations—that complete enforcement is a possibility. However, public order and the actions which constitute disorder are broadly defined and open to constant interpretation and discretionary decisions by police. By pretending that zero tolerance is possible, the more important question of who gets arrested is obscured.” 217

The role of discretion in public order policing is discussed at [13.125]. In the Australian context, zero tolerance allows police officers to depoliticise public order powers and to deflect attention away from the fact that these powers are disproportionately enforced against young people and minorities. Even assuming that crime prevention policies based on the “broken windows theory” or “zero tolerance” policing can be proven to be effective, they may still generate objections on the grounds of their unintended negative effects. These effects include increased levels of complaints against police, violations of human rights, and damage to 212 213

214 215 216 217

B Harcourt, Illusion of Order: The False Promise of Broken Windows Policing (Cambridge, Mass: Harvard University Press, 2001) p 27. B Harcourt, Illusion of Order: The False Promise of Broken Windows Policing (Cambridge, Mass: Harvard University Press, 2001) p 8. Evidence subsequently emerged that police in New York systematically falsified data using its COMPSTAT system to provide evidence that its controversial zero-tolerance strategies, such as stop and frisk, had been effective in reducing crime: J Eterno and E Silverman, Crime Numbers Game: Management by Manipulation (Boca Raton, Fl: CRC Press, 2012). P Grabosky, “Zero Tolerance Policing” (1999) Australian Institute of Criminology Trends and Issues in Crime and Criminal Justice, No 9 (Canberra: Australian Institute of Criminology, 1999). J Marshall, “Zero Tolerance Policing”, Information Bulletin, Issue No 9 (March 1999), South Australian Office of Crime Statistics. J Marshall, “Zero Tolerance Policing”, Information Bulletin, Issue No 9, South Australian Office of Crime Statistics (March 1999) p 2. C Cunneen, Law and Justice Issues: Zero Tolerance Policing (Canberra: Aboriginal and Torres Strait Islander Commission, 1999). The above quote from the report appears in a summary published by the editors of the Australian Indigenous Law Reporter, “Zero Tolerance Policing: Implications for Indigenous People” [1999] Australian Indigenous Law Report 35. On Aboriginal-police relations see, generally, Cunneen, Conflict, Politics and Crime—Aboriginal Communities and the Police (Sydney: Allen and Unwin, 2001). [13.110]

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public confidence in the administration of justice that inevitably flow from this aggressive style of law enforcement. David Garland notes that zero tolerance practices “tend to be associated with low-level repression, discriminatory use of police powers, and violation of the civil liberties of the poor and minorities”. 218 Although it has been claimed that move-on powers have broad support within the community, this research suggests that greater attention needs to be paid to their wider regulatory impact, including potential counterproductive effects. 219 Zero tolerance policing, whether or not actually deterring crime, has been politically effective in creating the appearance of order within communities. In America, more than half of the States have passed anti-gang ordinances. 220 Similar reforms, such as move-on powers, have been adopted in Australia without any serious consideration of possible unintended effects. As Bernard Harcourt, a prominent critic of broken windows, observed: “These policing practices have created, under the cover of law, something that may look like order to many residents. But that order may contain a lot of disorder. And the disorder may contain a lot of order; the disorderly, after all, are not chosen by lot. The orderliness of broken windows policing may be an illusion of order.” (emphasis added) 221

There are many dimensions to the illusion of order. As Harcourt notes, pro-active public order policing, while promoting an ideal of order, is based on laws and practices that are inherently “disordered”. Anti-gang laws enacted to achieve the goals of order-maintenance deviate from otherwise valued ideas of legality and due process of law. Not only are police targeting suspects for “who they are” rather than “what they have done or threaten to do”, but the usual safeguards governing police–citizen interactions are invariably dispensed with. Both the review of move-on powers in Queensland and New South Wales revealed poor levels of compliance with the procedural requirements before giving a direction. 222 At the level of practice and policy, police conduct which is either unlawful, or of dubious legality, may be considered tolerable, at least in the eyes of Wilson and Kelling, if they otherwise promote the goals of crime prevention. 223 The danger is that the aggressive policing of minor offences can have serious unintended consequences, including damaging the trust and perceived legitimacy upon which effective policing rests and, in the Australian context, exacerbating levels of over-representation of Indigenous people in the criminal justice system. As Cunneen noted in his report above, the adoption of zero-tolerance policing for Aboriginal people would significantly increase the level of 218 219

220 221 222

223

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D Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Chicago: University of Chicago Press, 2001) p 183. “Zero tolerance initiatives should also be evaluated in terms of their long-term impacts on persons arrested, as well as their short-term effects on the incidence of crime in the community”: P Grabosky, “Zero Tolerance Policing” (1999) Australian Institute of Criminology Trends and Issues in Crime and Criminal Justice, No 102 (Canberra: Australian Institute of Criminology, 1999) p 4. K Strosnider, “Anti-Gang Ordinances After City of Chicago v Morales: The Intersection of Race, Vagueness Doctrine and Equal Protection in the Criminal Law” (2002) 39 American Criminal Law Review 101. See B Harcourt, Illusion of Order: The False Promise of Broken Windows Policing (Cambridge, Mass: Harvard University Press, 2001) p 19. NSW Ombudsman, Policing Public Safety (1999) [10.84]; Crime and Misconduct Commission (Qld), Police Move-on Powers – A Review of their Use (December 2010), pp 41–42, http://www.ccc.qld.gov.au/researchand-publications/publications/police/move-on/police-move-on-powers-a-cmc-review-of-their-use.pdf (cited 26 February 2017). See B Harcourt, Illusion of Order: The False Promise of Broken Windows Policing (Cambridge, Mass: Harvard University Press, 2001) p 20. [13.110]

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criminalisation among such people, and would be incompatible with the recommendations of the Royal Commission into Aboriginal Deaths in Custody (1991). As noted above, tougher public order policing based on zero-tolerance strategies may also undermine other public policies, such as the public health strategy of “harm minimisation” for illicit drugs. Perhaps the most illusory aspect of zero tolerance is that it never actually constituted the official strategy of the police in the United States or Australia. Indeed, it is truly remarkable that in New York, which is most closely associated with zero tolerance, the police commissioner (1994–96) and principal exponent of broken windows, William Bratton, rejected the language of zero tolerance in favour of “quality of life” initiatives and community policing. 224 Politicians seem less inhibited at acknowledging its influences. In the Northern Territory in 1998, after a visit to New York, the chief minister announced the adoption of zero-tolerance policing. 225 Bob Carr, former Premier of New South Wales, in the launch of the 1998 reforms to police powers, claimed that the legislation marked a shift to “zero tolerance for knives”. In 1999, the Aboriginal Justice Advisory Committee in New South Wales noted that the drugs operation “Puccini” in Cabramatta (1998–1999) was a “process of saturation policing along zero tolerance lines”. In September 2002, the New South Wales police released details of “Operation Titus” which suggested that current policing strategies draw directly from zero tolerance and FBI expertise. Local area commanders were required to set weekly targets for “frontline” police to verbally confront and, where possible, move on persons suspected of engaging in petty offences. 226 Zero tolerance is more than mere political rhetoric or media spin: it has instrumental effects. In New South Wales, the policy provided the impetus for toughening police powers in 1998 and boosting the numbers of “frontline” police. It has led to a policy, used in State-wide and local command areas, of aggressive “in your face” policing that combines wider powers to demand name and address, stop and search for weapons, and issue directions to “move on”.

Public order law and due process: importing an unconstitutional American model [13.115] The City of Chicago municipal anti-gang ordinance enacted in 1992, which provided police with powerful move-on powers, lay at the heart of the city’s zero-tolerance policing strategy. The Chicago anti-gang ordinance focused on the person’s status rather than the underlying conduct, with criminalisation being triggered only where the person refused to submit to police authority: persons congregating in public places for no apparent purpose who were reasonably believed to be a member of a gang could be ordered to disperse, refusal constituting an offence punishable by a $500 fine, community service or six months’ imprisonment. Although the Chicago ordinance was widely copied around the United States, the reception of these laws divided the community. The laws were ultimately struck down by the United States Supreme Court as being constitutionally void for vagueness under the due process clause of the Fourteenth Amendment. 227 The principal concern of Stevens J, to which the 6:3 majority concurred, was that the ordinance conferred too much discretion on the 224 225 226 227

J Greene, “Zero Tolerance: A Case Study of Police Policies and Practices in New York City” (1999) 45(2) Crime and Delinquency 171. C Cunneen, Conflict, Politics and Crime—Aboriginal Communities and the Police (Sydney: Allen and Unwin, 2001) pp 102–105. “In-Your-Face Policing Drives Criminals Off City Streets: Verbal Assault”, Daily Telegraph, 20 September 2002, p 1. Chicago v Morales 527 US 41 (1999). [13.115]

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police, failing to establish “minimal guidelines to govern law enforcement”. 228 Legal scholars are divided over these powers and the Morales decision, with some arguing that they are necessary legal reforms to address the “real” crime problems afflicting disadvantaged communities. 229 Rather than abandon the ordinance, the City of Chicago quickly introduced new—“constitution-proof”—legislation. The new legislation sought to confine these powers to “hot spots”, that is, to specific areas where police intelligence could justify intervention. As one legal academic noted, the revised ordinance still presents the same set of constitutional objections as the first ordinance, but “promises to inflame racial tensions over the already sensitive issue of gangs, which tend to be concentrated in poor and minority neighbourhoods”. 230 Community fear and legislative reaction in America tend to reflect the fact that many cases of homicide and violence are gang-related, and that guns are carried by criminal gangs and law-abiding citizens alike. Homicide levels have remained stable in Australia in recent decades, with a homicide rate three to four times lower (per 100,000 population) than the United States’ rate. 231 Bearing in mind Australia’s significantly lower levels of crime and gang-related violence, it is surprising that these unsubstantiated and unconstitutional experiments in policing have been so influential!

Drunk and disorderly: criminalisation versus welfare models [13.120] From early colonial times, managing public drunkenness has been a major concern

and preoccupation of law enforcement officials in Australia. 232 The policing role in relation to drunk and disorderly individuals has continued, and even intensified, through the course of the 20th century. As Peter Grabosky has noted, between 1943 and 1970, arrests for drunkenness steadily increased from 32% to 54% of all arrests, excluding traffic violations. 233 Chris Cunneen points out, even in relation to serious disorder at public events—such as the Bathurst race riots in the 1980s—the police most commonly used offences against drunkenness

228 229

232 233

Chicago v Morales 527 US 41 (1999) at 60. T Meares, and D Kahan, “The Wages of Antiquated Procedural Thinking: A Critique of Chicago v Morales” [1998] University of Chicago Legal Forum 197, cf D Cole, “Discretion and Discrimination Reconsidered: A Response to the New Criminal Justice Scholarship” (1999) 87 Georgetown Law Journal 1059. K Strosnider, “Anti-Gang Ordinances After City of Chicago v Morales: The Intersection of Race, Vagueness Doctrine and Equal Protection in the Criminal Law” (2002) 39 American Criminal Law Review 101 at 103. See D Indermaur, “Violent Crime in Australia: Interpreting the Trends” Australian Institute of Criminology Trends and Issues in Crime and Criminal Justice, No 61 (Canberra: Australian Institute of Criminology, 1996). As the Australian Institute of Criminology noted, the homicide incident trend was downwards between 1 July 1989–30 June 2007, the rate decreasing from 1.9 in 1990–91 and 1992–93 to the second lowest recorded rate of 1.3 in 2006–07: data online at http://www.aic.gov.au/statistics/homicide.html (cited 24 February 2017). The homicide rate further decreased in subsequent years, reaching 1.1 in 2011–12, being the most recent year for which figures were compiled: W Bryant and T Cussen, Homicide in Australia: 2010–11 to 2011–12: National Homicide Monitoring Program report, Monitoring Report No 23 (Australian Institute of Criminology, 2015) p 3. P Grabosky, Sydney in Ferment (Canberra: ANU Press, 1977) p 8. P Grabosky, Sydney in Ferment (Canberra: ANU Press, 1977) p 135.

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and traffic violations rather than more serious public order offences, such as riot or unlawful assembly. 234 Public drunkenness was the most commonly prosecuted public order offence in the 20th century. 235 Community attitudes to intoxicated persons have changed over time and offences of public drunkenness have been repealed in most Australian jurisdictions. For example, in 1979, drunkenness in a public place in New South Wales was decriminalised. Rather than using a criminal model, the new laws governing public intoxication were geared towards a social welfare or medical model. Although arrest and prosecution for public drunkenness were no longer available, intoxicated persons could be detained by police in an authorised place of detention until sober. 236 They may also be prosecuted for the disorderly behaviour resulting from their intoxication, such as offensive conduct or public nuisance. Though non-criminal, these civil powers can have coercive and punitive qualities. These powers are determined and exercised by the police and the welfare of the intoxicated person is typically protected by detention in a “lock up” or other designated place. Although drunkenness has been “decriminalised”, the police continue to rely on these civil powers as well as other public order offences to control intoxicated individuals. These reforms have not affected the multitude of offences enacted under local council by-laws that proscribe the consumption of alcohol in the vicinity of certain proclaimed places, such as taxi ranks. Moreover, it seems that other “street offences” prohibiting offensive/indecent behaviour continue to be applied against individuals who have been drinking in public places. Available empirical data, discussed at [13.175], reveals that these crimes of offensive conduct are enforced in a discriminatory manner, having a harsh impact on minorities and those who resist police authority. On the general exculpatory effect of intoxication on the voluntariness of conduct and criminal fault, see Chapter 4 at [4.155].

Public Order and the Centrality of Police Discretion [13.125] As David Williams pointed out, discretion lies at the heart of public order

powers. 237 The law has imposed minimal restrictions on how the police and magistrates should exercise their powers to prevent disorder. In relation to these powers, the courts have been reluctant to apply even basic standards of “reasonableness” required by administrative law. 238 Administrative law and judicial review remains, as yet, an untapped resource for controlling pre-trial decision-making. 239 The discretionary approach to peacekeeping may be contrasted with the strict approach taken by the courts to the powers of arrest, detention, 234

235 236

237 238 239

C Cunneen, “The Policing of Public Order: Some Thoughts on Culture, Space and Political Economy” in M Findlay and R Hogg (eds), Understanding Crime and Criminal Justice (Sydney: Law Book Company, 1988) p 196. D Brown, D Farrier, S Egger and L McNamara, Brown, Farrier, Neal and Weisbrot’s Criminal Laws (3rd ed, Sydney: Federation Press, 2001) p 1000. The powers in the Intoxicated Persons Act 1979 (NSW) have been expanded and are now contained in Pt 16 of the Law Enforcement (Powers And Responsibilities) Act 2002 (NSW). The power of detention is contained in s 206 and applies where the intoxicated person is (a) behaving in a disorderly manner or in a manner likely to cause injury to the person or another person or damage to property, or (b) in need of physical protection because the person is intoxicated. DGT Williams, Keeping the Peace (London: Hutchinson, 1967) pp 15–17. DGT Williams, “Criminal Law and Administrative Law: Problems of Procedure and Reasonableness” in P Smith (ed), Criminal Law: Essays in Honour of JC Smith (London: Butterworths, 1987). DJ Galligan, “Regulating Pre-Trial Decisions” in N Lacey (ed), A Reader on Criminal Justice (Oxford: Oxford University Press, 1994). [13.125]

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search and seizure, where the courts have demonstrated considerable vigilance in safeguarding the interests of personal liberty and private property. 240 Citizens are rarely in a position to challenge action taken by the police to prevent disorder. The legal basis for police action is very difficult to review in cases where the police or prosecution decline to institute further proceedings, which is often the case where the individual has acted in a peaceful and otherwise lawful manner. Even where the person is prosecuted for a public order offence, the arbitrary or unreasonable exercise of police discretion cannot be raised as a defence to liability. As Kerr J noted in Wright v McQualter: “[S]o far as the courts are concerned, when offences are alleged to have been committed and the police make arrests and prosecutions follow, the role of the courts is simply to decide the question of guilt or innocence and the penalty to be imposed in the event of a finding of guilt. It is for other parts of the structure of democratic institutions in society to deal with the problems, if any, of selective law-enforcement.” 241

Individuals adversely affected by the exercise of these powers are left to contest the legality of police conduct through judicial review, private prosecution or civil actions for trespass, assault and/or unlawful imprisonment. To remedy the problem of selective enforcement in cases of domestic violence, some jurisdictions have imposed a statutory duty on police to investigate. These reforms have been discussed at [13.45]. Collateral challenges to the legality of police conduct are difficult and rare. The lack of an effective framework of judicial review is apparent in those few cases where individuals have sought court orders to compel or restrain police conduct. Invoking the notion of constabulary independence, the courts have affirmed that police officers possess a wide discretion in exercising their duties that is ordinarily not reviewable. 242 Operational decisions and law enforcement policies are difficult to challenge in cases where the grounds for police action (or inaction) have not been publicised or remain invisible to those affected by the decision. Because of the coercive effect of many preventive powers, there is the risk that the process itself becomes the punishment. 243 In some cases, the grounds for non-prosecution are promulgated as a formal policy. In the mid-1980s, the Commonwealth Director of Public Prosecutions issued Prosecution Guidelines that expressly stated that the arrest of a person engaged in civil disobedience may provide a sufficient penalty for the conduct in question because of the deprivation of liberty caused by the arrest. Such a policy, which probably operated informally before the guidelines, encouraged the arrest, detention and release without charge of any peaceful protestors who had engaged in disruptive conduct. The federal Human Rights Commission examined this policy and concluded that the use of arrest as an “extra-judicial punishment” was incompatible with the guarantee against arbitrary arrest and detention contained in the ICCPR. 244 The Prosecution Guidelines were subsequently amended and the offending paragraphs were deleted. Notwithstanding these formal changes, at the street level, political and moral judgments continue to influence whether and when the police will intervene, arrest, prosecute or caution individuals engaged in non-violent protest that is potentially disruptive. It

240 241 242 243 244

Williams v The Queen (1986) 161 CLR 278 (arrest and detention for the purpose of investigation); Coco v The Queen (1994) 179 CLR 427 (trespass for the purpose of installing listening devices). Wright v McQualter (1970) 17 FLR 305 at 320. R v Metropolitan Police Commissioner; Ex parte Blackburn [1968] 2 QB 118. M Feeley, The Process is the Punishment (New York: Russell Sage Foundation, 1979). Civil Disobedience and the Use of Arrest as Punishment: Some Human Rights Issues (Canberra: AGPS, 1986).

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is also important to remember that while the use of arrest as a form of punishment is clearly prohibited under international human rights law, arrest for the purpose of preventing public disorder is not. 245 There is some authority in Australia that the police discretion not to intervene is restricted where a breach of the peace or any other crime occurs (or is likely to occur) in the presence of the police. 246 The human rights implications of Commissioner of Police (Tas); Ex parte North Broken Hill Ltd have been reviewed at [13.70] and [13.85]. In determining whether or not the police should intervene to disperse a picket line, Wright J held that neither the industrial genesis of the dispute nor the lack of police resources were legitimate reasons for not intervening. 247 Police had discretion in how—not whether—to proceed in cases where the obstruction of workers wishing to return to work was likely to provoke a breach of the peace. Although the police were under a duty to intervene, Wright J declined to grant an order of mandamus since the police officers at the scene had exercised their powers under a misapprehension of the law, and their inaction was not a deliberate decision to flout the law. This ruling led to immediate police action, provoking violent confrontations and arrests on the picket line. Margaret Otlowski has described the ensuing police operation as follows: “In response to the court’s ruling, the following day police numbers at the Burnie mill were dramatically increased in one of the state’s biggest police operations. During the course of the day, there were violent clashes as police helped employees wanting to return to work to break the picket line. Forty-one picketers were arrested and charges were laid for obstruction and assault. A picketer and a policeman had to be taken to hospital as a result of the injuries sustained in the confrontation.” 248

The decision clarifies police duties in relation to picket lines. From the perspective of industrial law, the decision, though first instance, has had far-reaching implications. As Otlowski concluded, “a new precedent has been established with regard to the duties of police in relation to picketing which virtually eliminates police discretion not to intervene in such cases”. 249 The lack of a legal basis for picketing under domestic civil and criminal laws raises concerns about compliance with the ICCPR. 250 It is important not to overstate the significance of the law in constructing spaces for peaceful protests. Certainly the police have the power to limit peaceful protest that could provoke others unreasonably to violence. With one or two exceptions that end up in the courts and law reports, this option is rarely selected by police. As Roger Douglas concludes: “But suppose that a demonstration is likely to give rise to violence: is it right that police or courts should have the power to ‘ban’ or disperse the demonstration? The question may well be one of symbolic rather than practical importance. The reality is that Australian demonstrations almost never provoke violence, and when they do, order is easily achieved.” 251

That is not to say public order law is irrelevant. Rather, public order law must be understood not simply in terms of legal rules, but as tools or resources that structure encounters between police and individuals attempting to exercise their civil rights. 245 246 247 248 249 250 251

Steel v United Kingdom (1999) 28 EHRR 603, discussed at [13.25]. Commissioner of Police (Tas); Ex parte North Broken Hill Ltd (1992) 61 A Crim R 390 at 398. Commissioner of Police (Tas); Ex parte North Broken Hill Ltd (1992) 61 A Crim R 390 at 398. M Otlowski “The Legal Fallout from the APPM Dispute” (1992) 5 Australian Journal of Labour Law 287 at 292. M Otlowski “The Legal Fallout from the APPM Dispute” (1992) 5 Australian Journal of Labour Law 287 at 294. See R Hale, “Peaceful Picketing in Australia: The Failure to Guarantee a Basic Human Right” in The Right of Peaceful Protest Seminar, Human Rights Commission, Occasional Paper No 14 (Canberra: AGPS, 1986). R Douglas, Dealing with Demonstrations: The Law of Public Protest and its Enforcement (Sydney: Federation Press, 2004) p 146. [13.125]

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PUBLIC ORDER OFFENCES The law of public order in no way resembles a code of public order. It is an amalgam of particular offences which have been devised to meet particular problems at particular times. It fluctuates wildly in its emphasis and usage. Some offences disappear through statutory repeal, others fade away through what is effectively a process of desuetude, while a few rest in a state of suspended animation awaiting resuscitation at the behest of an ingenious prosecutor. 252 [13.130] Offences against public order are highly diversified. Some offences, such as riot, are

concerned with serious threats to State security and social and political order, while others, such as offensive conduct, are concerned with minor nuisances that interfere with the peace and amenity of the neighbourhood. What is common to these offences is the process of criminalisation. Public order law is particularly susceptible to moral panics within the community about crime and disorder. The process of identification and criminalisation of “new” public order threats is sensitive to local as well as international “law and order” politics. This process is not merely legislative. As the distinguished English public law scholar David Williams observed in the above quotation, the contours of public order law are also shaped through prosecutorial discretion and judicial development of the common law.

Making Public Order Crimes: Prosecutorial, Judicial and Legislative Development [13.135] In policing and prosecuting disorder, a number of offences such as public nuisance

and offensive conduct operate as “backstops” and “gap fillers”. Public nuisance, which is both a crime and a tort under the common law, is sufficiently broad to criminalise any conduct that poses danger to the community at large. While much dangerous and antisocial conduct could be prosecuted as a public nuisance, the offence has been limited to conduct that is indiscriminate in nature rather than targeted at specific individuals, and it must be established that the conduct must present a “real risk” (not a remote risk) of danger to the public. 253 Public nuisance is highly adaptable. In the public order context, it has been used to prosecute individuals who perpetrated a bomb hoax and property owners who rented land for the purpose of holding a “rave”. 254 The breadth of the conduct constituting a public nuisance is matched by its fault element. The English Court of Appeal in R v Shorrock affirmed the fault element for the crime of public nuisance is the same as for the tort of private and public nuisance. The offence is attractive to prosecutors because the fault element is satisfied by mere negligence. Public nuisance requires that the accused knew or ought to have known (in the sense that the means of knowledge were available to him or her) that there was a real risk that his or her conduct would endanger the public. 255 In this area of the law, there has been a close correlation between prosecutorial and judicial development of the common law and legislative intervention. Soon after Shorrock, the Criminal Justice and Public Order Act 1994 (UK) was enacted, conferring on police special 252

254 255

DGT Williams, “Freedom of Assembly and Free Speech: Changes and Reforms in England” (1975) 1(2) University of New South Wales Law Journal 97 at 100–101. Attorney-General v PYA Quarries Ltd [1957] 2 QB 169 at 184 per Romer LJ. Its common law status has been affirmed in Australia in R v Clifford [1980] 1 NSWLR 314, a case concerning prisoners on the roof of Maitland Gaol. The statutory version of this offence in Queensland is not limited to indiscriminate conduct, and is a broad omnibus offence which deals with a wide range of behaviour which is disorderly, offensive, threatening or violent, and interferes, or is likely to interfere, with the peaceful passage through, or enjoyment of, a public place by a member of the public: Summary Offences Act 2005 (Qld), s 6. R v Madden (1975) 1 WLR 1379 (bomb hoax); R v Shorrock [1993] 3 WLR 698 (rave party). R v Shorrock [1993] 3 WLR 698 at 706.

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powers to deal with “raves”. This required the creation of a new legal category of disorder called “raves”, which s 63 of the Act defined as: a gathering on land in the open air of 100 or more persons (whether or not trespassers) at which amplified music is played during the night (with or without intermission) and is such as, by reason of its loudness and duration and the time at which it is played, is likely to cause serious distress to the inhabitants of the locality.

The Act empowers the police to disperse individuals, to enter and seize vehicles and sound equipment, as well as to stop and divert persons travelling to raves: ss 64 – 65. The police prefer to rely on specific powers and offences rather than on broad and nebulous laws governing breach of the peace and public nuisance. There are dangers that these “tailored” public order laws are discriminatory against minority groups, and have the effect of criminalising alternative lifestyles. 256 A similar pattern of criminalisation of disorder emerges in Australia. Moral panics about beachside drag car racing in New South Wales led to street racing and burnout offences, which are prescribed under ss 40 and 41 of the Road Transport (Safety and Traffic Management) Act 1999. 257 The concept of moral panic is discussed in Chapter 1, [1.225]. Subsequently, the Road Transport Legislation Amendment (Car Hoons) Act 2008 (NSW) introduced new measures and increased penalties for drivers who engage in illegal street racing and “car hoon” activity. These new measures overlap with other existing (and long-standing) summary offences, including s 11H of the Summary Offences Act 1988 (NSW): Section 11H Intimidatory use of vehicles and vessels (1) A person must not operate a motorised vehicle or motorised vessel in a public place: (a) in such a manner as to harass or intimidate another person, or (b) in such a manner as would be likely to cause a person of reasonable firmness to fear for his or her personal safety. Maximum penalty: 6 penalty units. (2) No person of reasonable firmness need actually be, or be likely to be, present at the scene.

Although legally redundant, these new “public order” crimes are politically and symbolically important; they represent a firm legislative response to community concern about disorderly behaviour, increasing the range of penalties and providing the police with new powers of seizure and confiscation of motor vehicles and immediate roadside licence suspension by police. 258

Public order: policing the streets and juvenile delinquency [13.140] Public order looms large in several of the following essays included in Rob White and Christine Alder (eds), The Police and Young People in Australia. 259 While public order offences do not formally target juvenile delinquency, they are disproportionately enforced 256 257

258

259

For a discussion of the criminalisation of aggravated trespass to deal with nomadic “travellers”, see S Campbell, “Gypsies: The Criminalisation of a Way of Life?” [1995] Criminal Law Review 28. These early provisions are discussed in M Bagaric, “The Disunity of Sentencing and Confiscation” (1997) 21 Criminal Law Journal 191. These provisions have been repealed and replaced by ss 40 – 43 of the Road Transport (Safety and Traffic Management) Act 1999 (NSW). The hooning offences were supplemented by extensive powers of vehicle seizure and confiscation. The current laws in New South Wales governing antisocial “hooning” are detailed on the New South Wales Road Traffic Authority Website: see http://www.rms.nsw.gov.au/roads/safety-rules/offences-penalties/streetracing-hoon-offences.html (cited 10 August 2016). R White and C Alder (eds) The Police and Young People in Australia (Cambridge: Cambridge University Press, 1994). [13.140]

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against young people in Australia. In Chapter 1, “Larrikins, Delinquents and Cops: Police and Young People in Australian History”, Mark Finnane examined how the need to control disorderly youth historically shaped the role of policing in Australia. The inevitable collision on the streets between young people and police asserting authority over public space has resulted in strained community relations, harassment and police violence. This topic was examined by Rob White in Chapter 5, “Street Life: Police Practices and Youth Behaviour”. In many jurisdictions, public order powers and policies have been shaped by perceived “law and order” concerns, resulting in harsh and discriminatory policing methods against Indigenous youth. 260 In Chapter 8, “Policing Youth in ‘Ethnic’ Communities”, Janet Chan reviewed the role of ethnicity and racism in policing young people. While racial prejudice and stereotyping is evident in policing, she concluded that “the more problematic area is the police’s perception of their work, particularly in relation to juveniles”. 261 Chan concluded that juvenile justice reform requires more than the adoption of a friendly and tolerant style of “community policing”. Fundamental shifts in police attitudes to young people and their rights are required, in particular that “the police, as professional law enforcement workers, have genuine regard for due process of the law” (original emphasis). 262

The Territory of Public Order Offences: General Acts and Local By-Laws [13.145] As well as being diversified, public order offences can be highly localised. It is

important to appreciate that many public order powers and offences are not solely found in federal, State and Territory legislation of general application. Local by-laws and council regulations play a significant role in the abatement of a wide range of nuisances. Because these offences are not contained in public general Acts, they have less legal visibility. Nevertheless, these local laws impose a wide range of restrictions on the use of highways, public spaces, and semi-private places such as malls and shopping precincts. Some of these public order powers and offences have both geographical and temporal limitations; see, for example, the legislation enacted for the Sydney Olympics in 2000, World Youth Day in 2008 and the Brisbane G20 in 2014. 263 By-laws may have dire implications for individuals engaged in political protest. In Foley v Padley, the High Court considered the validity of a by-law that made it an offence to distribute anything in the Rundle Street Mall without the permission of the Adelaide Council. The by-law was made under s 11(1)(a) of the Rundle Street Mall Act 1975 (SA) that permitted the council to regulate, control or prohibit any activity in the mall likely to affect its use or enjoyment. Similar provisions exist governing the use of commercial public spaces in cities and towns throughout Australia. The majority in Foley upheld the validity of the by-law. Murphy and Brennan JJ, dissenting, held that the by-law was not a valid exercise of the council’s powers to make by-laws. Murphy J held that the by-law granted the council the unfettered 260 261 262 263

912

C Cunneen, “Enforcing Genocide? Aboriginal Young People and the Police” in R White and C Alder (eds), The Police and Young People in Australia (Cambridge: Cambridge University Press, 1994) Ch 6. R White and C Alder (eds) The Police and Young People in Australia (Cambridge: Cambridge University Press, 1994) p 196. R White and C Alder (eds) The Police and Young People in Australia (Cambridge: Cambridge University Press, 1994) p 192. See D Matthews, “Legislation Comment: The Other Incredible Effort—Public Order Regulation during the Sydney Olympics” (2001) 25 Criminal Law Journal 91; S Bronitt, “Taking Public Order Seriously: World Youth Day and a Right to be Annoying?” (2008) 32 Criminal Law Journal 265 at 268; The G20 (Safety and Security) Act 2013 (Qld) discussed in T Legrand and S Bronitt, “Policing the G20 protests: “Too much order with too little law” revisited” (2015) 22(1) Queensland Review 3. [13.145]

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discretionary power to negative the prohibition by granting permission. By this route, the council avoided statutory safeguards, and was improperly exercising a form of legislative power. Murphy J concluded that: “If freedom of expression is to be maintained by-laws which may be used to restrict expression must be clearly authorized by enabling legislation and procedural safeguards must be strictly observed.” 264

Brennan J focused on the technical rather than the human rights aspects of the case, concluding that the blanket prohibition interfered with conduct that did not affect the use and enjoyment of the mall, and therefore was ultra vires. 265 Public order offences may also be tied to “protected” locations or persons. Special diplomatic offences dealing with aggravated trespass and disorder have been enacted by the Commonwealth under the Public Order (Protection of Persons and Property) Act 1971 (Cth). 266 Legislatures around Australia have enacted especially draconian laws for dispersing and criminalising public assemblies in the vicinity of parliamentary buildings. An inquiry into the right to protest or demonstrate in the vicinity of Federal Parliament identified more than 20 offences under Commonwealth and Australian Capital Territory statutes that potentially have an impact upon the right to protest. 267 The inquiry identified several obscure and largely dormant offences with the capacity to interfere with most forms of peaceful political protest in Canberra, including draconian offences such as “unlawful assembly” and “interference with political liberty”. 268 Enacted in the early years of Federation, these political offences reflected concerns about political instability in Australia at the outbreak of World War I and the rising tides of fascism and communism. Although rarely prosecuted, such dragnet offences provided a legal backstop for the police in their negotiation over the manner, form and duration of political protests. It is arguable these offences may be incompatible with the political rights and freedoms implied within the Constitution and protected by Arts 19, 21 and 22 of the International Covenant on Civil and Political Rights (ICCPR). 269

Offensive Conduct and Language Crimes [13.150] In Australia, the criminal laws prohibiting offensive conduct and language are not

tied to conduct that causes or is likely to cause disorder or harm to others or to property. 270 As a consequence, unlike counterpart offences in the United Kingdom and elsewhere, offensive language charges in Australia are deployed in a broad range of situations. Also offensive and/or indecent conduct may also be an aggravating element of other offences.

264 265 266 267 268 269

270

Foley v Padley (1984) 154 CLR 349 at 362. Foley v Padley (1984) 154 CLR 349 at 373; see also Melbourne Corporation v Barry (1922) 31 CLR 174. See, further, S Bronitt and S Ford, 10.10 “Public Order” in Title 10 Criminal Offences, The Laws of Australia (Sydney: Law Book Company, 1993–) [29]–[30]. Parliament of the Commonwealth of Australia, A Right To Protest (Canberra: AGPS, 1997). Crimes Act 1914 (Cth), s 28. A view advanced by S Bronitt and G Williams, “Political Freedom as an Outlaw: Republican Theory and Political Protest” (1996) 18(2) Adelaide Law Review 289. A contrary view, strictly obiter, was taken by Gleeson CJ in Coleman v Power (2004) 209 ALR 182 at 190 who concluded that Art 19 could be compatible with the insulting language offence, discussed at [13.165]. Over the course of the 20th century, the statute offence of using insulting language in Australia was broadened, dispensing with proof that its use was intended or likely to cause breach of the peace or violent retaliation: J Quilter and L McNamara, “Time to define ’The Cornerstone of Public Order Legislation’: The Elements of Offensive Conduct and Language under the Summary Offences Act 1988 (NSW)” (2013) 36(2) University of New South Wales Law Journal 534 at 540. [13.150]

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Criminalising offensive language or conduct has the potential to interfere with the freedom of expression, assembly and association protected by Arts 19, 21 and 22 of the ICCPR. 271 As previously noted, restrictions on these freedoms may be imposed where necessary to protect the rights or reputation of others; and the interests of national security or public safety, public order, protection of public health or morals, or the protection of the rights and freedoms of others: Arts 19, 21 and 22. From a theoretical perspective, restricting fundamental rights for “protection of morals” without any need to establish harm to others is considered a serious weakness in international human rights law. 272 According to the harm principle, the State would only be justified in restricting individual freedom in order to prevent harm to others. The “harm principle” and its theoretical rivals (namely, “moral protection” and “welfare”) were explored in Chapter 1, [1.200]–[1.210], [1.220]ff. Not surprisingly, liberal scholars concerned with maximising liberty have argued against the criminalisation of offensive speech. 273 Others have argued that “causing offense” to deeply held moral beliefs may be treated as a form of personal harm that may be justifiably and therefore legally restricted. 274 The expansion of harm to include “causing offense to others” applies “symmetrically”. It allows racists/sexists to claim offense at hearing the views of minorities/feminists, and vice versa. Notwithstanding its seemingly neutral stance, offensive conduct crimes have tended to entrench rather than redress discrimination against minorities. As Wojciech Sadurski points out, this pattern of law enforcement “over-emphasises the seriousness of insults against majority (in particular, against enforcement agents themselves) and undervalues insults against disadvantaged minorities”. 275 As we shall examine at [13.175], empirical data in New South Wales reveals that offensive conduct crimes have a disproportionate impact on Indigenous communities, being used primarily to deal with young people who swear at the police or otherwise demonstrate disrespect to authority. Rather than resort to the principle of equality and affirmative action for drawing distinctions between cases, Sadurski justifies the prohibition of offensive speech on the ground that it constitutes a type of “psychic injury”. To warrant criminalisation, according to Sadurski, offensive epithets must: • constitute personally abusive insults; • be addressed in a face-to-face manner; • target a specific individual and be descriptive of that individual; and • be addressed to an individual unable to avoid the assaultive message. 276 There are some signs that the courts are imposing tougher thresholds for the criminalisation of offensive conduct, particularly in cases where there was no intention to cause hurt to another person and/or the conduct has an obvious political dimension. Perhaps mindful of the potentially discriminatory and repressive uses of offensive conduct laws, some judges have sought to restrict the scope of these crimes by requiring the offending conduct to be placed in its broader political and social context. This “contexualising” occurs through judicial 271 272 273 274 275 276

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Australian Law Reform Commission, Traditional Rights and Freedoms— Encroachments by Commonwealth Laws, Final Report No 129 (2015) [4.70]ff. D Feldman, Civil Liberties and Human Rights in England and Wales (Oxford: Clarendon Press, 1993) p 523. J Braithwaite and P Pettit, Not Just Deserts—A Republican Theory of Criminal Justice (Oxford: Clarendon Press, 1990) p 95. J Feinberg, The Moral Limits of the Criminal Law: Offense to Others (New York: Oxford University Press, 1985). W Sadurski, “Vilification, Psychic Harm and Affirmative Action”, T Campbell and W Sadurski (eds), Freedom of Communication (Aldershot: Dartmouth, 1994) p 90. W Sadurski, “Vilification, Psychic Harm and Affirmative Action”, T Campbell and W Sadurski (eds), Freedom of Communication (Aldershot: Dartmouth, 1994) p 88. [13.150]

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development of substantive definitions and at the sentencing stage. As with other public order crimes, police discretion is crucial in fixing the limits of offensive conduct within public places. Offensiveness is largely determined by police conceptions of public decency and “good order” since these cases are only rarely subject to judicial consideration in the higher courts, and most defendants plead guilty. 277 While offensiveness is a matter to be “objectively” determined, the response of the police officers in attendance, as an evidential matter, will be crucial in identifying the likely emotional response of the reasonable, hypothetical person. Fault element: deliberate or accidental offensive behaviour [13.155] An important safeguard limiting the scope of offensive conduct or language crimes is

the requirement of proof of fault or mens rea. Until the latter half of the 20th century, the law did not require proof of intention for minor public order crimes such as offensive language or conduct. Even today, the commitment to subjectivism remains weak; it has been recently suggested that the lack of any significant appellate or academic engagement with this area of law sustains an “ideology of triviality” around these offences, even though these matters constitute some of the most common charges heard in the lower courts of Australia. 278 Some courts have recognised a subjective element for offensive language or behaviour, 279 though the precise meaning and potential scope of the requisite “intent” has been left ambiguous. For example, in Jeffs v Graham Yeldham J noted that an offensive language charge required “at least that there should be a voluntary act by the person charged”. 280 However, this “minimalist” intent only requires proof that the words spoken by the accused were not involuntary, which is a matter rarely in issue. 281 A more fulsome notion of intention was affirmed in Daire v Stone, a South Australian case, where the court held that the prosecution must prove that behaviour was “intended” to be offensive. In this case, the accused was charged with behaving in a “disorderly manner” in a public place contrary to s 7 of the Summary Offences Act 1953 (SA), which expressly included behaving in an “offensive manner”. The allegation was that the accused had “eyed off” females in a store. The charge was dismissed and the prosecution appealed. The Supreme Court of South Australia dismissed the appeal by the prosecution on the ground that the offence of disorderly behaviour requires proof beyond reasonable doubt that: 277

278

279

280

281

J Quilter and L McNamara, “Time to define “The Cornerstone of Public Order Legislation”: The Elements of Offensive Conduct and Language under the Summary Offences Act 1988 (NSW)” (2013) 36(2) University of New South Wales Law Journal 534 at 542, noting that in 2012 more than 14,000 public order offence charges were finalised in the NSW Local Court and almost 40 per cent of these were charges of offensive language/behaviour. J Quilter and L McNamara, “Time to define “The Cornerstone of Public Order Legislation”: The Elements of Offensive Conduct and Language under the Summary Offences Act 1988 (NSW)” (2013) 36(2) University of New South Wales Law Journal 534, discussing the theories of Doreen McBarnet, see Chapter 1, [1.130]. The failure of the courts to engage in a detailed “elements analysis” is discussed in J Quilter and L McNamara, “Time to define “The Cornerstone of Public Order Legislation”: The Elements of Offensive Conduct and Language under the Summary Offences Act 1988 (NSW)” (2013) 36(2) University of New South Wales Law Journal 534 at 547ff. Jeffs v Graham (1987) 8 NSWLR 292 at 295, discussed in J Quilter and L McNamara, “Time to define “The Cornerstone of Public Order Legislation”: The Elements of Offensive Conduct and Language under the Summary Offences Act 1988 (NSW)” (2013) 36(2) University of New South Wales Law Journal 534 at 556, where the authors note that this ambiguity was consistent with the “traditional tendency not to subject public order offences to the same sort of precise technical scrutiny and exegesis that is commonplace in relation to more serious crimes”. J Quilter and L McNamara, “Time to define “The Cornerstone of Public Order Legislation”: The Elements of Offensive Conduct and Language under the Summary Offences Act 1988 (NSW)” (2013) 36(2) University of New South Wales Law Journal 534 at 556. [13.155]

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“there is a conscious and deliberate course of conduct by the accused person which constitutes this interference with the comfort of other people such as to leave the tribunal of fact with no reasonable doubt that the conduct of the accused person was intentionally done to bring about such interference.” 282

On these facts, there was no evidence of the purpose or intention of the accused so as to establish that the conduct was directed at the victims. Since obscene language is often used unconsciously as a means of linguistic emphasis or as general expletives, requiring a proof of subjective fault is an important limitation on the scope of this offence. Clearly then, intentional conduct, in the sense of “voluntary” conduct, may be distinguished from conduct that is intended to cause offense to another person. However, the strength of the judicial commitment to subjectivism may be doubted or at least qualified following the subsequent decision of Police v Pfeifer. 283 In this case, the accused wore a t-shirt in public emblazoned with the words “Too Drunk to Fuck”. He was convicted of behaving in an offensive manner contrary to s 7 of the Summary Offences Act 1953 (SA). The Supreme Court of South Australia, dismissing the appeal, held that s 7 did not require the prosecution to prove intention or knowledge. The court reviewed recent authorities that had favoured a subjective fault requirement for offensive conduct crimes. Applying the principles laid down by the High Court in He Kaw Teh v The Queen, 284 the Supreme Court held that the presumption that intent or knowledge is an essential element of s 7 had been rebutted, and that the offence was one of strict liability. Doyle CJ, with whom Debelle and Lander JJ agreed, attached particular relevance to the language and subject matter of the section, noting that other crimes of offensiveness in the Act expressly required intention: “It appears to me to be a provision intended to protect members of society from disturbance and annoyance through offensive behaviour, intended to prevent the sort of disputes and disturbances that might arise if such behaviour is not prevented by law with the consequence that members of society react to it or resist it in other ways. To convict only those who intentionally or knowingly offend will achieve a good deal, but does not go that extra step of requiring members of society to take care to ensure that they do not breach generally accepted standards of behaviour.” 285

As a strict liability offence, while the prosecution need not prove intention or knowledge, the defence may raise an belief that the behaviour would not be offensive according to community standards of decency, provided that the belief is one which is honest and reasonable. The principles in He Kaw Teh are discussed in Chapter 3, [3.245]. Applying these principles to the equivalent offence in New South Wales, Julia Quilter and Luke McNamara, came to the opposite conclusion; intention did not relate narrowly to the act, but extended to the key circumstance, namely the offensiveness of the language or conduct: “only when the speech or conduct (the act) has the attribute of being offensive (the integral circumstance) that the speech or conduct might, assuming all other elements are satisfied, be regarded as criminal in character. In our view, therefore, it is not possible to divide the core conduct element into an act and circumstance attendant on its occurrence.”

The authors did not, however, accept that intent for this offence did not extend to the other circumstance, namely, that the accused’s conduct take place in or near a public place or 282 283 284 285

Daire v Stone (1991) 56 SASR 90 at 93 per Legoe J. (1997) 68 SASR 285. (1985) 157 CLR 523. Police v Pfeifer (1997) 68 SASR 285 at 292. See also Police v Atherton [2010] SASC 87, affirming the approach in Pfeifer.

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school. 286 In some States, such as New South Wales, the offence itself contains the “reasonable excuse” defence, though these are rarely raised in court. 287 The fact that offensive behaviour formed part of legitimate political activity may, if relevant on the facts, provide reasonable grounds for such an “excuse”.

Constitutional perspectives Limits of Implied Freedom of Political Communication: A Constitutional Defence for Insults? [13.160] The leading High Court decision of Coleman v Power examined the potential

impact of the implied constitutional freedom of political communication on a statutory offence in Queensland prohibiting the use of insulting language. Patrick Coleman, a student activist, had been charged with two counts of serious assault, two of obstructing police, one count of insulting words and one count of publishing insulting words. The charges stemmed from Coleman’s one-man campaign against alleged police corruption in which he distributed pamphlets that named several police officers who, in his view, were corrupt. When Coleman was distributing the pamphlets, a police officer named in one of the pamphlets approached him and an altercation followed in which Coleman said, “This is Constable Brendan Power, a corrupt police officer”. He was convicted of using insulting words in a public place, contrary to the Vagrants, Gaming and Other Offences Act 1931 (Qld), s 7(1)(d). (These provisions have been repealed and offensive behaviour and language is now subsumed within a wider public nuisance offence contained in the Summary Offences Act 2005 (Qld), s 6, which extends to using offensive, obscene, indecent or abusive language). Coleman appealed this conviction to the High Court, arguing that the offence of using insulting words was inoperative to the extent of its inconsistency with the implied constitutional freedom of political communication, which had been unanimously recognised in Lange v Australian Broadcasting Corporation. 288 The capacity of the section to burden the implied freedom was accepted by both parties and therefore was not an issue determined at trial. The behaviour of Coleman was accepted as being broadly political, as McHugh J held: “Allegations that members of the Queensland police force are corrupt may reflect on federal Ministers as well as the responsible State ministers. Such allegations may undermine public confidence in the administration of the federal, as well as the State, criminal justice system.” 289

The constitutional issue turned then on whether the prohibition in s 7(1)(d) was reasonably appropriate and adapted (or as Kirby and Callinan JJ preferred 286

287

288 289

J Quilter and L McNamara, “Time to define ’The Cornerstone of Public Order Legislation’: The Elements of Offensive Conduct and Language under the Summary Offences Act 1988 (NSW)” (2013) 36(2) University of New South Wales Law Journal 534 at 560. Summary Offences Act 1988 (NSW), ss 4, 4A. The scope of a “reasonable excuse” for using offensive language was considered in Connors v Craigie (1994) 75 A Crim R 502 at 507, per Dunford J: “In my opinion, reasonable excuse involves both subjective and objective considerations, but these considerations must be related to the immediately prevailing circumstances in which the offensive words etc are used … Although in an appropriate case it may also be proper to look at the immediate surrounding circumstances against the background of the defendant’s antecedents, prior experiences (both recent and less recent), and other related events, there must, in my view, always be something involved in the immediate particular circumstances before there can be reasonable excuse”. (1997) 189 CLR 520. Coleman v Power (2004) 220 CLR 1 at 45. [13.160]

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“proportionate”) so as to serve a legitimate end, the fulfilment of which is compatible with the maintenance of the system of government prescribed by the Constitution; the test for validity as stated in Lange. The majority (Gleeson CJ, Gummow, Hayne, Kirby, Callinan and Heydon JJ concurring, McHugh J in dissent) upheld the constitutionality of the provision. The court held that, despite the section’s potential risk to the implied freedom of political communication, it was nonetheless a valid law, reasonably appropriate and adapted to serving a legitimate need to keep public places free from violence. McHugh J, in dissent, took the converse view: “Under the Constitution, a law that, without qualification, makes it an offence to utter insulting words in or near a public place cannot validly apply to insulting words that are uttered in the course of making statements concerning political or governmental matters … Furthermore, a law that seeks to make lawful the arrest of a person on such a charge is as offensive to the Constitution as the law that makes it an offence to utter insulting words in the course of making statements concerning political or governmental matters.” 290

McHugh J rejected the argument from the respondents that s 7(1)(d) protected free political communication by removing threats, abuses and insults from the arena of public discussion, so that persons would not be intimidated into silence. In his view, insults were a legitimate part of the political discussion protected by the Constitution. An unqualified prohibition on the use of insulting words could not be justified as compatible with the freedom of political communication: “Such a prohibition goes beyond anything that could be regarded as reasonably appropriate and adapted to maintaining the system of responsible government.” 291 Some members of the court were nevertheless conscious of the potential overbreadth of such a provision, relying on the principles of statutory interpretation to limit the scope of this offence. Kirby J, as well as Gummow and Hayne JJ in their joint judgment held that the word “insulting” in s 7(1)(d) was limited to words that are intended, or reasonably likely, to provoke unlawful physical retaliation. 292 On the facts, Kirby, Gummow and Hayne JJ held that words used by Coleman were not likely to provoke unlawful physical retaliation, given that the respondent was a police officer, who, like other public officials, are expected to be, in the words of Kirby J, “thick skinned and broad shouldered in the performance of their duties”. 293 Gummow and Hayne JJ similarly took the view that: “By their training and temperament police officers must be expected to resist the sting of insults directed to them. The use of such words would constitute no offence unless others who hear what is said are reasonably likely to be provoked to physical retaliation.” 294

For this reason Kirby, Gummow and Hayne JJ granted the appeal and quashed the conviction (joining McHugh J, albeit for different reasons). By contrast, Gleeson CJ, Callinan and Heydon JJ held that there was no need to restrict the interpretation of the word “insulting” to conduct likely to provoke violence or conduct likely to arouse strong emotions. In their view, the term should be given its natural or ordinary meaning. 295 Gleeson CJ offered the following definition of insulting language: 290 291 292 293 294 295

Coleman v Power (2004) 220 CLR 1 at 33. Coleman v Power (2004) 220 CLR 1 at 54. Coleman v Power (2004) 220 CLR 1 at 74 per Gummow and Hayne JJ, at 87 per Kirby J. Coleman v Power (2004) 220 CLR 1 at 99. Coleman v Power (2004) 220 CLR 1 at 79. This was also the approach adopted by McHugh J in his dissent.

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“The language in question must be not merely derogatory of the person to whom it is addressed; it must be of such a nature that the use of the language, in the place where it is spoken, to a person of that kind, is contrary to contemporary standards of public good order, and goes beyond what, by those standards, is simply an exercise of freedom to express opinions on controversial issues.” 296

Compared with protection conferred by the implied constitutional freedom, the interpretive approach favoured in Coleman provides a slim legal foundation for the protection of political speech in Australia. For starters, the scope of these language offences is susceptible to broadening by the legislature. For example, after Coleman, the relevant section in Queensland was amended (see above, Summary Offences Act 2005 (Qld), s 6) and, like equivalent provisions in other Australian jurisdictions, it no longer contains the requirement that the insulting language be used against a person, a feature of the section upon which Kirby, Gummow and Hayne JJ placed much emphasis upon in their judgments. Rather, all that is now required is that the person conducts him or herself in an “offensive manner” in a public place, and in, near or within view of any person. Coleman is disappointing on other grounds. Other strategies for limiting the scope of offensive language charges, such as implying a strict requirement of intention in relation to the insulting language, or determining whether language is “insulting” by reference to objective standards that incorporate political toleration for dissent, were not proposed by the court. Gleeson CJ, in particular, was hostile to the use of the ICCPR to assist in the interpretation of s 7(1)(d), arguing that it must be interpreted by reference to the intention of State legislature at the time the provision was enacted: “Of one thing we can be sure: the Queensland Parliament, in 1931, did not intend to give effect to Australia’s obligations under the ICCPR”. 297 Furthermore, in his view, the obligation to use ICCPR standards applied only to the development of common law, and not to the interpretation of State legislation enacted before Australia ratified the ICCPR. Kirby J predictably favoured a broader view of the relevance of human rights standards for interpreting provisions governing freedom of expression. 298 Tamara Walsh, in a recent article, revisited this issue of the constitutional limits placed upon legal definitions of “offensive, insulting, abusive” for the purpose of these nuisance type offences. 299 In her view, the principle emerging in Coleman is that offensive language or behaviour crimes should only operate to limit political speech where the conduct was intended and/or likely to provoke an unlawful response from the listener or viewer. This “reading in” of an additional harm requirement was supported by Gleeson CJ, who held that conduct leading to a criminal charge must be sufficiently serious to “justify the imposition of a criminal sanction” 300 and that, accordingly, there must be a deliberate

296 297 298

299 300

Coleman v Power (2004) 220 CLR 1 at 26. Coleman v Power (2004) 220 CLR 1 at 28. Coleman v Power (2004) 220 CLR 1 at 91-96. The narrow effect of this ruling is further explored in R Douglas, “The Constitutional Freedom to Insult: The Insignificance of Coleman v Power” (2005) 16 Public Law Review 23. Further legal strategies for limiting the scope of offensive language crimes are discussed in S Bronitt and G Williams, “Political Freedom as an Outlaw: Republican Theory and Political Protest” (1996) 18(2) Adelaide Law Review 289 at 312–315. See also R Douglas, Dealing with Demonstrations: The Law of Public Protest and its Enforcement (Sydney: Federation Press, 2004) pp 35–43. T Walsh, “Ten Years of Public Nuisance in Queensland” (2016) 40(2) Criminal Law Journal 59. Coleman v Power (2004) 220 CLR 1 at 25. [13.160]

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causing of serious offence, humiliation, intimidation or bullying. 301 Conversely, as Gleeson CJ observed, the statute cannot be contravened by the use of personally offensive language “where there is no threat to the peace, and no victimisation”. 302 The effect of this requirement is that, consistent with the views of Gummow and Hayne JJ, and Kirby J, police must be expected to endure such insults and offensive conduct. This would reverse the current position where empirical research suggests that the attending police are typically the only persons present capable of experiencing offensive acts! Despite the constitutional principles articulated in Coleman, Walsh notes that Queensland courts appear to be applying less stringent tests than applied by High Court judges, simply posing, as the key question, whether the words or conduct used were offensive in the circumstances. 303 Measuring offensiveness: the reasonable person test [13.165] Attempts by the police to suppress conduct they deem offensive have not always

been successful. The courts have imposed some limits on the scope of offensiveness in cases where the conduct is obviously “political”. The meaning of offensiveness in the context of a political demonstration was considered in Ball v McIntyre. 304 In this case, the police attempted to prevent an anti-Vietnam protest outside Parliament House in Canberra. Desmond Ball, a university student, had climbed on a statue of George V and hung a placard that read: “I will not fight in Vietnam”. The accused refused to remove the placard or climb down, as requested by the police. When he eventually came down, he was arrested and prosecuted for behaving in an offensive manner in a public place contrary to s 17(d) of the Police Offences Ordinance 1930–1961 (ACT). 305 Reflecting the sensitivity and division within the community over Australia’s military involvement in Vietnam, the relevant behaviour deemed offensive was carefully constructed by the arresting police officers. At the trial, the police emphasised that neither the political nature of the demonstration nor the student’s refusal to obey their instructions had caused them offence. Rather, the police testified that it was the accused’s act of climbing on a public monument and hanging a placard (in effect, using the statue for a non-designated purpose) that had caused offence. As empirical studies have found, this case was a typical application of offensive conduct crimes, where the only “victims” offended by the accused’s conduct were the police officers themselves. The critical issue in this case was whether the student’s behaviour was “offensive”. Although the term was not defined in the Act, Kerr J held that, to be offensive, the behaviour must be “calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person”. 306 By applying an objective test, the political context of the accused’s behaviour could be introduced as a relevant factor. As Kerr J acknowledged: “The average man [or woman], the reasonable man [or woman], being present on such an occasion, would readily see that the defendant was engaged in a political demonstration. He [or she] would 301 302 303

304 305 306

Coleman v Power (2004) 220 CLR 1 at 26. Coleman v Power (2004) 220 CLR 1 at 26. T Walsh, “Ten Years of Public Nuisance in Queensland” (2016) 40(2) Criminal Law Journal 59 at 70–72. For a recent example of a conservative interpretation of the implied constitutional freedom in upholding a conviction for the “display of obscene figures in public places”, see Fraser v County Court of Victoria and Anor [2017] VSC 83 (21 March 2017), esp at [59]–[76]. (1966) 9 FLR 237. The offence is now contained in s 392 of the Crimes Act 1900 (ACT). Ball v McIntyre (1966) 9 FLR 237 at 243.

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doubtless think that climbing on the pedestal and placing the placard on the statue was rather foolish and a misguided method of political protest, that it offended against the canons of good taste, that it was in that sense improper conduct, but I do not believe that the reasonable man [or woman] seeing such conduct to be truly political conduct, would have his [or her] feelings wounded or anger, resentment, disgust or outrage roused.” 307

And later: “I recognize that different minds may well come to different conclusions as to the reaction of the reasonable man [or woman] in situations involving attitudes and beliefs and values in the community, but for my part I believe that a so-called reasonable man [or woman] is reasonably tolerant and understanding, and reasonably contemporary in his [or her] reactions.” 308

An objective standard of “offensive conduct”, which explicitly provides room for dissent, appears to be more protective of political protest. It avoids the problems associated with breach of the peace, where the right to engage in peaceful and otherwise lawful conduct is held hostage to the subjective responses (however unreasonable) of a hostile audience. Under Kerr J’s definition, the political motives behind the accused’s words and conduct are relevant to determining offensiveness. In this sense, it may be viewed as an exception to the general rule that motive is irrelevant to the criminal law. In many respects, Ball v McIntyre is an exceptional case. It stands in stark contrast to the approach taken by the English courts where the question of offense is regarded exclusively as a matter of fact for the tribunal. In Brutus v Cozens, the accused disrupted a tennis match at Wimbledon by throwing leaflets protesting against apartheid around the court (one of the players was South African). The incident lasted two to three minutes before he left the court voluntarily. He was charged with using “threatening, abusive or insulting” words or behaviour likely to cause a breach of the peace contrary to s 5 of the Public Order Act 1936 (UK). The magistrate dismissed the charge on the ground that the accused’s conduct was not “insulting”. The prosecution appealed to the Divisional Court, which held that the conduct could be insulting as a matter of law and remitted the matter to the magistrate. The accused appealed to the House of Lords. The case provided their Lordships with an opportunity to consider the meaning of the phrase “insulting words or conduct”. The court held unanimously that the determination of whether words or conduct were “insulting” is a question of fact for the tribunal. This does not mean that judges have no role to play in interpreting statutes. As Lord Reid pointed out, in every case, the proper construction of a statute is a question of law for the courts. For this offence, Parliament intended that the words used should be given their ordinary meaning: “It is for the tribunal which decides the case to consider, not as law but as fact, whether in the whole circumstances the words of the statute do or do not as a matter of ordinary usage of English language cover or apply to the facts which have been proved.” 309

Lord Reid rejected the definition of offensiveness proposed by the Divisional Court; namely, that the conduct must affront other people, demonstrate a disrespect or contempt for their rights and constitute behaviour that reasonable persons would foresee is likely to cause resentment or protest. This test was not dissimilar to the definition of offensive conduct offered by Kerr J in Ball v McIntyre above. Lord Reid pointed out that the qualifying adjectives, “threatening, abusive or insulting”, had been employed by Parliament to define the 307 308 309

Ball v McIntyre (1966) 9 FLR 237 at 244. Ball v McIntyre (1966) 9 FLR 237 at 245. See also Connors v Craigie (1994) 76 A Crim R 502 for further discussion of the reasonable person. Brutus v Cozens (1972) 56 Cr App R 799 at 804. [13.165]

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limits of free speech. 310 Conduct would not be caught by the section provided that a person’s words or behaviour did not transgress these limits, even though it posed some threat of disorder. In light of this purpose, the terms required no further elaboration. In relation to insulting words or behaviour, Lord Reid rejected the dictionary definition approach favoured by the Divisional Court: “There can be no definition. But an ordinary sensible man knows an insult when he [or she] sees or hears it”. 311 He later stated: “Insulting means insulting and nothing else”. 312 The ordinary meaning test for offensive conduct leaves the police, prosecutors, judges and juries with a broad discretion for defining the relevant legal standards, and mirrors the definitional approach taken to offences relating to sexual indecency, obscenity and dishonesty. 313 It is important not to overstate the differences between these two approaches. Whether the courts adopt an objective test based on the “reasonable person” or an “ordinary usage” approach to offensive conduct, the standards being applied are determined by reference to the wider community, rather than the “victims” (including the police in attendance) or the tribunal determining the matter. But who is “the community” in this context? Do we comprise the community of a broad cross-section of society, both young and old? Or is it drawn more selectively and respectably from law-abiding and “right-thinking” persons whose conduct would not ordinarily come to the attention of the police? Although legal definitions based on the hypothetical reasonable or ordinary person are represented as external and neutral standards, they are in fact highly discretionary. As Nicola Lacey, Celia Wells and Oliver Quick point out: “Where ‘reasonableness’ tests are in play, doctrine veers between the application of an entirely ‘objective’ standard which fails to investigate who is the ‘reasonable person’, and modified ‘objective’ tests in which certain aspects of the defendant’s particular characteristics are indeed taken into account. The operation of ‘objective’ tests in fact results in highly discretionary regulation. The tribunal here is effectively constructing the standard against which the defendant is judged: the legal process goes on to legitimise that standard as ‘objective’ and neutral.” 314

In determining the ordinary or reasonable response to behaviour alleged to be offensive, the tribunal of fact will invariably defer to the judgment of the police. In determining the likely reactions of the “reasonable person”, the tribunal may regard the evidence of police as the best guide of what reasonable and respectable persons would find offensive. In many cases, the assessment of the reasonable person and the police officers in attendance converge. For example, in Ball v McIntyre, the police claimed that neither the political nature of the student’s conduct nor the disrespect directed to a deceased monarch was offensive. In this respect, Kerr J concluded that “the sergeant’s approach is that of a reasonable man”. 315 Even within liberal democracies that tolerate some measure of political dissent, there is a danger that crimes of offensiveness operate unfairly against unpopular and/or disempowered groups in society. Whether a person’s conduct is constructed as legitimate protest or disorderly conduct will depend on factors such as age, gender, ethnicity, class and so on. The 310 311 312 313 314 315

Brutus v Cozens (1972) 56 Cr App R 799 at 805. Brutus v Cozens (1972) 56 Cr App R 799 at 805. Brutus v Cozens (1972) 56 Cr App R 799 at 806. See Chapters 12 and 13. N Lacey, C Wells and O Quick, Reconstructing Criminal Law (3rd ed, London: LexisNexis Butterworths, 2003) p 56 (references omitted). Ball v McIntyre (1966) 9 FLR 237 at 240.

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identification of conduct as “political protest” by police, lawyers and judges may confer some measure of protection for those engaging in what might otherwise constitute criminally offensive language or conduct.

And well may God save Mr Ball and the Governor-General! [13.170] Unlike many threatened with arrest for offensive conduct, the accused in Ball v McIntyre 316 fended off his arrest for some time with reasoned legal debate. In his negotiations with police, Ball had the advantage of advice about his legal rights from law students attending the demonstration. After his brush with the law, Ball resumed his studies, predictably pursuing research on the United States’ foreign policy. He is now a, Professor of Strategic and Defence Studies at the Australian National University in Canberra. The judge in the case, Kerr J, proceeded to eternal political infamy as the Governor-General who sacked Gough Whitlam.

Most individuals whose conduct comes to the attention of the police are not ordinarily in a position to contest the official assessment of offensiveness by police and magistrates. Aboriginal youths will hardly be in a position to argue that their conduct deemed offensive by police has a deeper political meaning and value. Indeed, individuals who attempt to assert their legal rights in their interactions with police are more likely to become the subject of further investigation since “knowledge of rights” is regarded as evidence of previous contact with police. 317 Policing strategies within Aboriginal communities must be understood within the broader historical and contemporary demand of colonial order. The police have performed an array of welfare functions in Indigenous communities, culminating in their complicity in the forcible removal of children in the 1950s. High levels of resistance to policing in Indigenous communities produces saturation policing, “law and order” campaigns against “Aboriginal” juveniles and the extension of police powers. 318 In charting these patterns of colonial governance, Chris Cunneen concludes that police intervention in the lives of Aboriginal young people has “shifted from one of government-authorised removal policies to increasing criminalisation”. 319 Cunneen summarises this engagement between police and Aboriginal communities as follows: “Policing acts as a ‘normalising’ force which imposes the standards of sections of the non-Indigenous society as a universal norm. Excluded from the private venues of non-Aboriginal Australia, Indigenous social life has become subject to regulation—not under the ‘special’ legislation of the protection era, but under the general criminal law covering alcohol consumption, language and other aspects of public behaviour.” 320

316 317 318 319 320

(1966) 9 FLR 237. J Chan, “Policing Youth in ’Ethnic’ Communities” in R White and C Alder (eds), The Police and Young People in Australia (Cambridge: Cambridge University Press, 1994) p 191. C Cunneen, “Enforcing Genocide? Aboriginal Young People and the Police” in R White and C Alder (eds), The Police and Young People in Australia (Cambridge: Cambridge University Press, 1994) Ch 6. C Cunneen, “Enforcing Genocide? Aboriginal Young People and the Police” in R White and C Alder (eds), The Police and Young People in Australia (Cambridge: Cambridge University Press, 1994) p 154. C Cunneen Conflict, Politics and Crime—Aboriginal Communities and the Police (2001) p 92. [13.170]

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Empirical perspectives Offensive Conduct and Indigenous Policing [13.175] There has been an increasing awareness that the use of minor public order

offences, such as offensive conduct and language, significantly contribute to the high rates of arrest and prosecution of Indigenous persons. Although public order offences are expressed in formally neutral terms, these charges are disproportionately used against Aboriginal people. As the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) noted: “Charges about language just become part of an oppressive mechanism of control of Aboriginals. Too often the attempt to arrest or charge an Aboriginal for offensive language sets in train a sequence of offences by that person and others—resisting arrest, assaulting police, hindering police and so on, none of which would have occurred if police were not so easily ‘offended’. It particularly brings the law into disrepute when police use similar language, often with racist overtones, to Aboriginals.” 321

Although the arrest rate for offensive conduct and language has been declining overall for some time, an empirical study in New South Wales established that minor public order offences continue to have a disproportionate impact on individuals from Indigenous backgrounds. 322 The study revealed that Aboriginal persons continue to be grossly over-represented among arrests for language and conduct offences, and that there was a positive and statistically significant correlation between areas with higher proportions of Aboriginal residents and areas with higher court appearance rates for offensive conduct and language. A qualitative analysis of police narratives describing these incidents, randomly selected, showed that the majority involved excessive alcohol consumption and/or interpersonal conflict: “In the high Aboriginal country area this conflict often involves seemingly ritual confrontations between police and Aboriginal people over swearing in public places or at police themselves. Sometimes the person reported for offensive behaviour and/or offensive language seems to have taken the initiative in provoking the confrontation. Sometimes the confrontation occurs when police question or attempt to detain an Aboriginal person in relation to matters unrelated to offensive behaviour or, alternatively, when police attend an altercation or dispute among Aboriginal people or between non-Aboriginal and Aboriginal people.” 323

Robert Jochelson concluded that “arrests for offensive language or behaviour only seem to exacerbate or perpetuate problems of public order rather than reduce them”. 324 This seems especially true in country towns where Aboriginal–police relations are strained due

321 322

323 324

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Royal Commission into Aboriginal Deaths in Custody, Regional Report of Inquiry in New South Wales, Victoria and Tasmania (1991) p 145. R Jochelson, “Aborigines and Public Order Legislation in New South Wales” (1997) 34 Crime and Justice Bulletin 1, discussed in in J Quilter and L McNamara, “Time to Define the Cornerstone of Public Order Legislation: The Elements of Offensive Conduct and Language under the Summary Offences Act 1988 (NSW)” (2013) 36(2) University of New South Wales Law Journal 534 at 543–547. The continuity of these enforcement patterns are discussed in New South Wales Law Reform Commission, Penalty Notices, Report No 132 (2012) pp 301–302. R Jochelson, “Aborigines and Public Order Legislation in New South Wales” (1997) 34 Crime and Justice Bulletin 1 at 15. R Jochelson, “Aborigines and Public Order Legislation in New South Wales” (1997) 34 Crime and Justice Bulletin 1 at 15. [13.175]

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to over-policing and the imposition of curfews without legal authority. 325 The structure and linguistic forms of Aboriginal English may also contribute to the high rates of arrest for offensive language. 326 Recent studies in New South Wales suggest that charges for offensive language have been increasing, rather than declining, perhaps reflecting the increased influence of zero tolerance upon Australian policing, discussed at [13.110]. 327 The introduction of infringement notices for offensive language charges as an alternative to arrest has not improved the situation for Aboriginal persons. In fact, in New South Wales, their introduction has made the disproportionate impact on Aboriginal communities worse, with 83% of infringement notices issued to Aboriginal persons being for such offences. 328 This is further compounded since non-payment of fines for these minor offences may lead to further enforcement actions, including arrest, licence suspension (even for non-traffic infringements) and ultimately imprisonment. 329 Measuring offensiveness: social and cultural context of language [13.180] Mindful of the potential abuse of offensive conduct charges by the police, some

courts have held that the use of obscene language is not always criminal—the behaviour alleged to be offensive must be understood in its context. In Hortin v Rowbottom, the police were called to a domestic dispute in which the accused continually used the word “fuck” during a heated argument with his de facto spouse outside their home. When the accused refused to calm down and desist from using bad language, he was arrested, charged and ultimately convicted of using indecent language in a public place contrary to s 22 of the Summary Offences Act 1953 (SA). Allowing the appeal, the Supreme Court of South Australia held that the magistrate had wrongly concluded that the word “fuck” is necessarily indecent regardless of the context or circumstances in which it is used. 330 Mullighan J reviewed the authorities dealing with indecency in other contexts and highlighted the difficulties in determining a “community standard of decency”. 331 These cases revealed that the context and potential audience were critical considerations in determining offensiveness. In this case, the accused did not use the words in their primary sense. Rather, the accused had used them as “intensives” or “expletives” in order to give emphasis to the message he was seeking to convey. In this case, the accused had directed the language to persons well-known to him in the context of a family argument and when in a highly emotional state. 332 Although such 325

326 327

328 329

330 331 332

For a comprehensive study of the effects of the impact of the criminal justice system on Aboriginal communities, see H Blagg, Crime, Aboriginality and the Decolonisation of Justice (Sydney: Federation Press, 2008). B Walsh, “Offensive Language” in D Eades (ed), Language in Evidence (Sydney: University of New South Wales Press, 1995). For an overview of offensive language offences and Aboriginal peoples in New South Wales, see J Quilter and L McNamara, “Time to Define the Cornerstone of Public Order Legislation: The Elements of Offensive Conduct and Language under the Summary Offences Act 1988 (NSW)” (2013) 36(2) University of New South Wales Law Journal 534 at 543–547. NSW Ombudsman, Review of the Impact of Criminal Infringement Notices on Aboriginal Communities (August 2009) p 56. This has a disproportionate impact on Indigenous offenders, with one in seven admissions to prisons in Western Australia between 2008 and 2013 related to “paying down” fines: see A Porter, “The price of Law and Order Politics: Re-examining the Fines, Penalties and Infringement Notices Enforcement Amendment Act 2012 (WA)” (2015) 8(16) Indigenous Law Bulletin 28 at 29. Hortin v Rowbottom (1993) 68 A Crim R 381 at 384. Hortin v Rowbottom (1993) 68 A Crim R 381 at 385–386. Hortin v Rowbottom (1993) 68 A Crim R 381 at 389. [13.180]

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language was coarse, and would be offensive to some sections of the community, such language was now commonly used in ordinary conversation by both men and women in many sections of the community, sometimes in its primary sense but more often in its secondary sense, without offending contemporary standards of decency. A similar approach was adopted in Western Australia when the Supreme Court quashed the conviction of Keft (also known as “Rodney Rude”) for using the word “fuck” in a public performance. 333 The courts have held that police officers are persons capable of being offended by the accused’s conduct. This is a significant concession since the police may be the only individuals present during the alleged offensive behaviour. To hold otherwise would provide individuals with a licence to abuse, harass or intimidate the police. This approach to offensive conduct was taken in the English decision of DPP v Orum, though with some cautions and caveats. The accused was arrested by police who attended an argument between the accused and his girlfriend late at night in a residential street. The police advised the accused that he was causing a breach of the peace. The accused refused to be quiet, saying: “You fuck off. This is a domestic and you can’t do nothing. You can’t fucking arrest me. I know my rights. If you don’t go away, I am going to hit you”. 334 He was charged with the offence of using threatening, abusive or insulting words, or behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress. 335 The magistrate dismissed the charges on the ground that there were no other persons present—except the police—who were likely to have been harassed, alarmed or distressed. The Divisional Court upheld the Crown’s appeal, noting that the attending police were persons capable of being harassed, alarmed or distressed by the accused’s conduct. The question of whether harassment, alarm or distress was caused was simply one of fact for the tribunal to determine, though the court pointed out that in most cases, the words and behaviour would be wearily familiar to police and have little emotional impact save that of boredom! 336 The importance of context was again emphasised in Saunders v Herold. The accused, an Aboriginal man, and his friends were asked to leave the Canberra Workers Club, which they did. Outside, the accused was approached by police and was alleged to have said, “Why don’t you cunts just fuck off and leave us alone?” His conviction for offensive conduct was quashed by Higgins J: “What constitutes behaving in an offensive manner depends very much on the circumstances. Conduct and language engaged in at a football match or on a tennis or squash court may be acceptable, or, at least, unremarkable, but offensive if engaged in during a church service or a formal social event.” 337

333 334 335 336

337

Keft v Fraser (unreported, 21/4/1986, WASC, 6251). DPP v Orum [1988] Crim LR 848 at 848. Public Order Act 1986 (UK), s 5. Although only a Divisional Court ruling, Orum is extensively relied upon in the United Kingdom, even supporting the changing standards for public order offences issued by the Crown Prosecution Service (CPS): “There must be a person within the sight or hearing of the suspect who is likely to be caused harassment, alarm or distress by the conduct in question. A police officer may be such a person, but remember that this is a question of fact to be decided in each case by the magistrates. In determining this, the magistrates may take into account the familiarity which police officers have with the words and conduct typically seen in incidents of disorderly conduct. (DPP v Orum [1988] Crim LR 848)”: Crown Prosecution Service, Public Order Offences Incorporating the Charging Standard (2010), http://www.cps.gov.uk/legal/p_to_r/public_order_offences (cited 24 February 2017). Saunders v Herold (1991) 105 FLR 1 at 5.

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In this case, the words were vulgar and crude, but understood in the context of a verbal disagreement with the police at 3 am in a deserted street, the conduct could not be regarded by the reasonable bystander as offensive. 338 A similar approach to offensive language was adopted by White J in E (A Child) v The Queen. 339 In this case, the accused was convicted of disorderly conduct, which includes using obscene language, by virtue of ss 54 and 59 of the Police Act 1892 (WA). The youth had been picked up on the street late at night and taken to the police station to wait there until a responsible adult came to pick him up. The youth, frustrated and distressed, challenged the authority of the police to hold him. In the course of that conversation with a female officer, he said: “I’m leaving. You have no right to hold me here. I want to fucking go”. His swearing led to a warning that he would be arrested for obscene language, which prompted the reply “You can get fucked” and “Fuck you”. The magistrate found the language to be obscene and he was convicted. On appeal, White J held that the question of whether language is obscene must be determined according to community standards, not the standards of a particular witness. He then reviewed the available case law, including many of the decisions discussed above. White J stated that the question of whether language was obscene must be understood in its context. The use of the word “fuck” as an expletive, where there were no sexual overtones or implications, was not obscene language. The conviction also failed on the ground that a lock-up was not a “public place” for the purpose of the Act. In this case, the obscenity of language was measured in “neutral” linguistic terms: using the word “fuck” merely as a general expletive did not violate community standards. However, this approach does not reveal the true political context of the words. In this case, the accused was an Aboriginal youth who was resisting police authority to impose a curfew and to detain him without proper legal authority (this significant issue was neither explored at trial nor raised on appeal). In the absence of formal powers to detain him, offensive language provided the police with a “holding charge” and a legal basis for exercising authority over the youth. The judgment of Wright J did not fully expose the legal or political context surrounding the use of offensive words. Nevertheless, the decision does constitute a judicial attempt to place limits on the offence and prevent its overuse against young people and minorities. The legal concepts of offensiveness lie at the heart of many public order offences. Decisions such as Ball v McIntyre and Saunders v Herold are important, particularly as guides to magistrates charged with the duty of determining whether particular conduct is offensive—as one judge noted, “some of these cases are so familiar as to be old friends”. 340 Although the law determines offensiveness by reference to an “objective test” based on community standards, it is not a value-neutral concept. The conceptions of good order and decency created and applied by both police officers and magistrates have the potential to operate unfairly against minorities who are perceived to be a threat to social order and/or police authority.

338 339 340

Saunders v Herold (1991) 105 FLR 1 at 6–8. (1994) 76 A Crim R 343. Burns v Seagrave [2000] NSWSC 77 at [12] per Simpson J. [13.180]

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Procedural and evidential perspectives Resisting Police and the “Trifecta”: The Use and Abuse of Offensive Language Charges [13.185] In DPP v Carr, 341 a rock was thrown at a police car, and the police asked Lance

Carr, an Aboriginal male bystander, whether he had seen the person who had thrown the rock. Although Lance was not a suspect, he reacted defensively to police questioning saying: “Fuck you. I didn’t fucken do it, you can get fucked”. Lance was arrested for offensive language, which in turn provoked him to violent resistance. He was charged with “assault police”, “intimidate police” and “resist arrest”, as well as “offensive language”. This pattern of charging is very common and is known as the “trifecta”—a gambling term used to describe a bet that predicts the first three places in a race. 342 The magistrate excluded the evidence obtained following the arrest, on the grounds that it had been obtained improperly. The Supreme Court of New South Wales quashed that decision, remitting the matter back to the Local Court to decide in accordance with its judgment. In that judgment, the court outlined the factors relevant to the exercise of the discretion under s 138. Smart AJ noted in Carr above that the higher courts in New South Wales had long expressed the view that arrest should not be used for minor offences where the identity of the accused was known to police and the matter could proceed by summons or field court attendance notice FCAN): “Arrest is an additional punishment involving deprivation of freedom and frequently ignominy and fear. The consequences of the employment of the power of arrest unnecessarily and inappropriately and instead of issuing a summons are often anger on the part of the person arrested and an escalation of the situation leading to the person resisting arrest and assaulting the police. The pattern in this case is all too familiar. It is time that the statements of this Court were heeded.” 343

Smart AJ held that it was open to the magistrate to find that the arrest was improper and that evidence of the offences committed after the arrest should have been excluded. While not defining impropriety, relevant factors on these facts included that the arrest had involved a reckless disregard of (1) the options available to police to proceed other than by way of arrest, and (2) official police policy that states arrest is a measure of last resort, as cited by the NSW Police Handbook. Although finding that the magistrate had rightly relied on official statistics, a journal article and his own experience on the Bench to determine the question of impropriety, the police succeeded in the appeal on the procedural ground that the magistrate had not put the parties on notice that he was proposing to rely on this material. 344 The decision followed the approach taken in an earlier South Australian case, Robinett v Police, 345 where an Aboriginal man arrested for offensive behaviour and resisting arrest was sprayed with capsicum spray during the arrest, refused medical assistance at the station, and then charged with offensive language and threatening to cause harm when he abused the police officer on duty. On appeal to the South Australian Supreme Court, it was held that the evidence of the offensive language and threats should be excluded on the 341 342 343 344 345

(2001) 127 A Crim R 151. Evidence Act 1995 (NSW), s 138. DPP v Carr (2001) 127 A Crim R 151 at 159. DPP v Carr (2001) 127 A Crim R 151 at 170. [2000] SASC 405.

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grounds of public policy because they were obtained through improper police conduct, namely, their failure to respond to Robinett’s repeated requests for medical assistance. 346 Carr has been heralded as the “death of the trifecta”. Mark Dennis, who defended Lance Carr, has suggested that the decision “properly applied, will see a lessening of pointless confrontation between police and citizens”. 347 Bearing in mind the continuing preference for arrest over summons in New South Wales and other policies favouring tougher street policing, it may be premature to view Carr as the death of the “trifecta”! Since the dismissal of the charges rested on the exercise of a public policy discretion to exclude evidence, not all magistrates will attach the same weight to the police impropriety. Subsequent unreported cases suggest that Carr may be confined to its own facts, having no application where the accused arrested is not known to police. 348 Ultimately, judicial control over public order policing is limited, and an ineffective mechanism for curbing misuse of offensive language charges. The only effective reform is to repeal the crime of using offensive language, a recommendation made by the New South Wales Aboriginal Justice Advisory Committee almost a decade ago. 349

Criminalising contempt of cops [13.190] In Burns v Seagrave, 350 the accused went to Kings Cross police station to complain about drug dealing in the neighbourhood. He was very upset and challenged the police refusal to take action. He refused to give his name when asked and told the sergeant, “I don’t have to give you anything, you fat spiv. You’re nothing but a useless fat spiv. I don’t have to talk you, you giraffe”. In another exchange, the accused said to the sergeant, “I’m not speaking to you, you’re not my type”. He was charged with using offensive language and the evidence tendered claimed that the sergeant was extremely offended by the homosexual connotation. The magistrate dismissed the charge. The Director of Public Prosecutions successfully appealed against the dismissal of the charge, with the Supreme Court of New South Wales agreeing that there was sufficient evidence to allow the case to proceed.

Socio-Economic and Political Factors in Sentencing Indigenous Persons: Neal v The Queen (1982) 149 CLR 305 [13.195] As Chris Cunneen has observed, “[w]hat is defined as public disorder may well

represent the active refusal of Aboriginal people to accept their position in the dominant spatial order of non-Indigenous society”. 351 Yet, as the above discussion demonstrates, the substantive criminal law, through its “neutral” definitions of offensiveness, suppresses the 346 347

348 349 350 351

For a discussion of this decision, see M Grant, “Robinett v Police” (2001) 25 Criminal Law Journal 97. M Dennis, “Is this the Death of the “Trifecta”?”(2002) 40(3) Law Society Journal 66 at 67. For an illustration of the continued use of the trifecta, with a thorough discussion of the relevant case law, see Jolly v The Queen [2009] NSWDC 212. See C Feerick, “Policing Indigenous Australians: Arrest as a Method of Oppression” (2004) 29(4) Alternative Law Journal 188 at 192. See K Adams, “A Commentary on DPP v Carr” (2003) 27 Criminal Law Journal 278 at 283. [2000] NSWSC 77. C Cunneen, Conflict, Politics and Crime—Aboriginal Communities and the Police (Sydney: Allen and Unwin, 2001) p 193. [13.195]

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wider political relevance or context of offensive behaviour. This may be viewed as part of the wider suppression of motives in the criminal law, discussed in Chapter 3, [3.180]. While banished from the guilt determination and the trial itself, the broader socio-economic and political context may become visible post-conviction as a factor relevant to sentencing. The relevance of socio-economic and political factors in sentencing Indigenous persons was raised in the High Court decision in Neal v The Queen. In this case, the accused, an Aboriginal community leader living on a reserve in Queensland, was convicted of an assault for swearing and spitting at Mr Collins, the manager of the local store and reserve superintendent. The incident arose after an argument over whether the white people on the reserve should leave. In passing sentence, the magistrate took into account that persons of Mr Neal’s “type” had been responsible for growing hatred of black against white and that, by his agitation, he was disturbing the “happy life” of Aboriginal people living on the reserve. The Court of Criminal Appeal (Supreme Court of Queensland), on an appeal against sentence, exercised its power to increase the term of imprisonment. It did so without hearing argument from Mr Neal as to why the sentence should not be increased! The High Court reversed that decision and reinstated the original sentence of the magistrate. The judgment contains a valuable discussion of the relevance of ethnicity to sentencing by Brennan and Murphy JJ. Brennan J offered some important guidance on the relevance of racial factors and the principle of equality before the law to sentencing, approaching the issue of race primarily in personal terms and focusing on the stress of an Aboriginal person living on a reserve. 352 By contrast, Murphy J viewed the matter as a “race relations” case. 353 As a consequence, his judgment addressed the wider political context of the accused’s conduct. While accepting that Mr Neal’s conduct constituted an unlawful assault, Murphy J held that the assault had to be kept in perspective. 354 In his view, the conditions and race relations on the reserve were relevant mitigating factors. Indeed, he noted that the magistrate who passed the original sentence had wrongly concluded that political agitation by Mr Neal and his attempt to change conditions on the reserve were factors aggravating the penalty. 355 Murphy J, citing Oscar Wilde regarding the importance of agitators to the advancement of civilisation, concluded that “Mr Neal is entitled to be an agitator”. 356 The evidence before the court revealed that Aborigines on this particular reserve had a deep sense of grievance at their paternalistic treatment by white authorities “in charge”, including Mr Collins. Murphy J referred to wide range of historical, political and criminological literature to explain the powerlessness of Aboriginal communities in the face of white colonisation. Drawing on psychological research, he explained how spitting was a typical response of children and others without power who were attempting to degrade and humiliate those who are seen as oppressors. 357 Unlike other members of the court, Murphy J did not reinstate the magistrate’s original sentence, but exercised the discretion himself, imposing a fine of one week’s sentence. Murphy J’s judgment is a rare example of how the meaning of conduct alleged to be offensive and degrading to others can only be truly understood when placed in its wider political and socio-economic context. The subsequent case of Bugmy v The Queen 358 spoke on the topic of aboriginality and sentencing (not in the public order context, though). Neal v The Queen was cited as a leading 352 353 354 355 356 357 358

This has been explored in Chapter 2, at [2.220]. Neal v The Queen (1982) 149 CLR 305 at 316. Neal v The Queen (1982) 149 CLR 305 at 312. Neal v The Queen (1982) 149 CLR 305 at 316. Neal v The Queen (1982) 149 CLR 305 at 317. Neal v The Queen (1982) 149 CLR 305 at 319. (2013) 249 CLR 571.

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authority and it was held that in sentencing, while the courts should not take judicial notice of Aboriginal social deprivation, accounting for an individual’s background, which could include life in a community where alcoholism and violence are endemic, was a valid consideration (at 594-595). 359

Unlawful Assembly [13.200] The common law misdemeanour of unlawful assembly has been defined as an

assembly of three or more persons with intent to commit a crime by open force, or with such an intent to carry out any common purpose, either lawful or unlawful, in such a manner as to endanger the public peace, or to give firm and courageous persons in the neighbourhood of the assembly reasonable grounds to apprehend a breach of the peace as a consequence of it. 360 Like affray, unlawful assembly requires proof of fear or terror caused to innocent parties present nearby. It is distinguished from affray by the requirement of a common purpose and actual violence is unnecessary provided that the public peace is endangered. 361 The common law offence, and its statutory variants, have been used against disorderly meetings and gatherings. Indeed, the history of the statutory offence of unlawful assembly in New South Wales is linked to the law and order campaign by the conservative Bavin government in the 1920s to prevent mass picketing by the Timber Workers Union. 362 The language of the offences of unlawful and riotous assembly seems anomalous in the modern age and may explain why prosecution and conviction rates are relatively low. 363 At common law, the basic element of the offence of unlawful assembly is causing other persons who are not participating in the assembly, but are present or nearby, fearing on reasonable grounds a breach of the peace. 364 The offence is not restricted to assemblies in “public places” and may be committed on private premises provided that the other elements of the offence are satisfied. 365 In determining whether an assembly is unlawful, the court may consider a range of factors, including the purpose of the assembly in question, the duration of the use, the place and the hour and whether any obstruction was trivial, casual or temporary, and without wrongful intent. 366 This definition has been applied to statutory offences of unlawful assembly enacted in Code and common law jurisdictions in Australia. The common law offence of unlawful assembly now requires proof of fault, which is framed in terms of assembling with the necessary intent to use violence or to engage knowingly in conduct that causes or is likely to cause a breach of the peace. 367 It has been suggested that the fault element will turn on the particular facts of the case. 368 A leading English textbook has suggested that “it must be proved that [the accused] intended to use or abet the use of violence; or do or abet acts which he [or she] knows to be likely to cause a breach of the 359 360 361 362 363 364 365 366 367 368

Bugmy v The Queen (2013) 249 CLR 571 at 594-595. J Stephens, A History of the Criminal Law of England (London: Macmillan, 1883) Vol 2, pp 385–386. See also J Stephen, A Digest of the Criminal Law (St Louis: F Stewart and Co, 1878) Article 70, p 45. Kamara v DPP [1974] AC 104 at 116 per Lord Hailsham. D Brown, D Farrier, S Egger and L McNamara, Brown, Farrier, Neal and Weisbrot’s Criminal Laws (3rd ed, Sydney: Federation Press, 2001) p 1022. See R Douglas, Dealing with Demonstrations: The Law of Public Protest and its Enforcement (Sydney: Federation Press, 2004) p 55. Kamara v DPP [1974] AC 104 at 115–116 per Lord Hailsham. Kamara v DPP [1974] AC 104 at 115. Lowdens v Keaveny [1903] 2 IR 82 at 90–91 per Gibson J. R v Hunt (1820) 1 State Tr NS 435; R v Stephens (1839) 3 State Tr NS 1189 at 1234 per Patterson J. Wise v Dunning [1902] 1 KB 167 at 178 per Darling J. [13.200]

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peace”. 369 It is clear that there is no further requirement that participants have knowledge of the unlawfulness of the purpose of the assembly. 370 Mere assembly with the necessary intent constitutes the offence, notwithstanding that the participants subsequently changed their minds and dispersed without any further action. 371 The offence of unlawful assembly is related to other public order offences. Causing another person to be harmed or fear harm through an assault, affray, unlawful assembly or riot is a breach of the peace. An unlawful assembly may be converted into a riot when a breach of the peace actually occurs. An assembly of individuals becomes riotous when alarming force or violence begins to be used. The offences of unlawful assembly and riot are closely related, and, as noted in R v Caird, the precise relationship between riot and unlawful assembly had not been fully resolved. Sach LJ pointed out that the offence is sufficiently broad to criminalise the facilitation of unlawful assemblies, so any person who actively encouraged or promoted an unlawful assembly or riot, whether by words, signs or actions or who participated in it, is guilty of the offence. 372 In New South Wales, the summary offence of unlawful assembly does not appear to abrogate the common law, though it has been held that the common law has largely fallen into disuse. 373 The statutory offence provides that a person who knowingly joins an unlawful assembly or continues in it shall be taken to be a member of that assembly. 374 “Unlawful assembly” is defined in s 545C(3) of the Crimes Act 1900 (NSW) as follows: Any assembly of five or more persons whose common object is by means of intimidation or injury to compel any person to do what the person is not legally bound to do or to abstain from doing what the person is legally entitled to do, shall be deemed to be an unlawful assembly.

This offence carries a maximum penalty of six months imprisonment, which is increased to 12 months where weapons are carried. 375 There was uncertainty whether participating in an assembly following the issuing of the proclamation under the Act deems a person to be guilty of the offence. The procedure for issuing a proclamation to disperse an unlawful or riotous assembly is discussed below. However, as noted in Black v Corkery, there is no magic in the reading of a proclamation. A proclamation merely marks the point after which the unlawful assembly must be shown to have continued for the accused to have been found guilty of the offence: “The mere presence of the person at the spot where an unlawful assembly is taking place is some evidence that he [or she] is a member of it but it is not conclusive evidence and the tribunal of fact must weigh all the circumstances.” 376

Obstruction of the highway [13.205] An assembly, meeting or procession on public land, including highways, does not

necessarily constitute a trespass unless prior permission is required under relevant statutes or by-laws. This is because the primary purpose of a highway is passage and, accordingly, 369 370 371 372 373 374 375 376

JC Smith and B Hogan, Criminal Law (5th ed, London: Sweet and Maxwell, 1983) p 732. R v Fursey (1833) 6 C & P 80. R v Birt (1831) 5 C & P 154. R v Caird (1970) 54 Cr App R 499 at 504–505. Black v Corkery (1988) 33 A Crim R 134 at 138 per Young J. Crimes Act 1900 (NSW), s 545C(1); see, further, R v O’Sullivan (1948) 54 WN (NSW) 155 at 156 per Jordan CJ. Crimes Act 1900 (NSW), s 545C(1), (2). Black v Corkery (1988) 33 A Crim R 134 at 140 per Young J.

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members of the public have a legal right to use a highway for “passing and repassing”. 377 Activities incidental to the right of passage have been held to fall within the concept of reasonable and ordinary use of the highway and include the distribution of leaflets, market research, carol singing, Morris dancing, carnival parades and flag selling. 378 While the common law recognises that an individual or a group of individuals is free to make incidental use of the highway for protest activity, this freedom is severely curtailed by the statutory offences of obstruction that exist in all jurisdictions. The High Court has held that any assembly or meeting on a public street may constitute an obstruction of the highway contrary to statute or local by-laws. 379 In this case, two members of the Salvation Army were convicted of obstructing the highway after they refused to stop singing and playing musical instruments in a street. Their conduct had caused a crowd of about 80 persons to gather in the street, although the magistrate conceded that the conduct had not caused any actual interference with traffic and was not an unreasonable use of the street. The members of the High Court attached no significance to the fundamental importance of peaceful assembly or the danger of prior restraint. Adopting a highly formalistic approach, O’Connor J defined obstruction expansively as “any obstruction which interferes to an appreciable practical extent with the right which every member of the public has to use the highway, and to use it at all times and under all circumstances”. 380 The effect of obstruction is that the law draws a distinction between processions that constitute a “reasonable exercise” of the right to use the highway for passage, and stationary assemblies, meetings and pickets that cause an obstruction and therefore do not constitute a reasonable use of the highway. Obstruction of the highway does not require proof of fault on the part of the accused, except in New South Wales. 381 In Fitzgerald v Montoya, Kirby P held that the term “wilful” used in the offence of obstruction should be construed narrowly, as a broader construction could become “a means of oppressing those whose presence in a public place is a source of irritation to the overly sensitive”. 382 Accordingly, the term “wilful” means intention or knowledge that the conduct would have the effect of preventing the free passage of someone else without any lawful excuse for doing so. Other legislation requires proof that the conduct of the accused amounted to an “unreasonable” or “undue” obstruction, though these concepts are not defined. Licensing public assemblies: immunities and prior restraint [13.210] Like many other public order laws, unlawful assembly poses the danger of prior

restraint of peaceful and otherwise lawful protest. It may be argued, applying the common law principle in Beatty v Gillbanks, 383 that a peaceful and lawful assembly should not be rendered unlawful by the mere presence of hostile opponents who cause or threaten to cause a breach of the peace. However, the common law caution against imposing prior restraint on peaceful assemblies has been significantly diluted by the legislative licensing schemes for public assemblies or processions. In the Australian Capital Territory, the Northern Territory, Tasmania and Western Australia, it is an offence to organise an assembly without a permit or licence. In the other jurisdictions, obtaining a licence or permit is not mandatory, though it furnishes essential immunity from liability for “street offences” such as causing obstruction of 377 378 379 380 381 382 383

Hubbard v Pitt [1976] QB 142. Nagy v Weston [1965] 1 All ER 78. Haywood v Mumford (1908) 7 CLR 133. Haywood v Mumford (1908) 7 CLR 133 at 140. Summary Offences Act 1988 (NSW), s 6 (wilful obstruction). Fitzgerald v Montoya (1989) 16 NSWLR 164 at 166. (1882) 9 QBD 308. [13.210]

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the highway and unlawful assembly. These licensing laws have a broadly similar effect, though in Queensland the legislation creates a statutory right of peaceful assembly that may only be curtailed in accordance with the restriction contained in the International Covenant on Civil and Political Rights (ICCPR). 384 Equivalent protection may be offered by invoking the rights of free expression, assembly and association contained in the human rights legislation enacted in the Australian Capital Territory and Victoria, discussed at [13.25]. Under these licensing laws, law enforcement officials and judges possess wide powers to impose restrictions and prohibitions upon assemblies or processions. In most jurisdictions, the relevant legislation provides little guidance to the police or the courts on whether an assembly or procession should be prohibited or allowed to proceed under certain conditions. Restrictions and prohibitions that are imposed are reviewable before the courts. One of the few reported cases reviewing the power to impose restrictions on public assemblies is Commissioner of Police v Allen, where the New South Wales Police Commissioner sought an order to prohibit the organisation “Women Against Rape” participating in the annual Anzac Day parade in Sydney. Hunt J noted that the Public Assemblies Act 1979 (NSW) was completely silent on the criteria to be applied by the Commissioner or the court. In his view, assembly or procession would be commonly prohibited or otherwise restricted where it is likely to provoke others to cause a breach of the peace or other offences. 385 However, potential disorder was not the only basis for prohibiting assemblies or processions. The legislature identified that the time, the place, the number of people involved and the purpose of the proposed assembly or procession were also relevant. Hunt J held that the order of prohibition had to be determined by balancing competing interests: “What both the Commissioner and the court must do, it seems to me, is to balance the democratic right of every person in this community to exercise his or her freedom of speech and freedom of assembly with the democratic rights of others to be spared unnecessary offence or affront by the exercise of those freedoms of speech and assembly.” 386

Causing serious offense and affront could provide the basis for restricting the march. Hunt J warned that this did not mean that courts should prohibit an assembly or procession solely on the ground that the views expressed are unpopular or may provoke a strong reaction in those who disagree with them. As Hunt J noted, Australian society and the police are made of “sufficiently stern stuff as to be able to cope with disputes of that type”. Nevertheless, it was the emotional reaction that the proposed march would create, not the physical competition between the two marches, that constituted the basis for prohibiting the proposed assembly. 387 The proposed assembly and procession were considered likely to cause grave offence, and were likely to constitute a massive affront to those who were about to participate in or view the Anzac Day march. Since “causing serious offense and affront” provides a ground for prohibiting public assemblies or processions, there is a serious danger that the law will operate as a “heckler’s charter”, unduly restricting freedom of speech, assembly and association. In Hunt J’s view, it did not matter whether the offensive behaviour was intended or not, merely that it would occur. 388 The threat of prior restraint and the difficulties faced by police and judges required to balance the exercise of competing lawful rights have been discussed at [13.70]. 389 384 385 386 387 388 389

See Peaceful Assembly Act 1992 (Qld), s 5. Commissioner of Police v Allen (1984) 14 A Crim R 244, at 250. Commissioner of Police v Allen (1984) 14 A Crim R 244 at 251. Commissioner of Police v Allen (1984) 14 A Crim R 244 at 253. Commissioner of Police v Allen (1984) 14 A Crim R 244 at 251 at 252. See, further, R Handley, “’Serious Affront’ and the NSW Public Assemblies Legislation” (1986) 10 Criminal Law Journal 287; C Ronalds, “Anzac Day and the Aftermath” (1983) 8 Legal Services Bulletin 133.

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The prohibition order issued by Hunt J did not make it an offence for the women to assemble or march, though it did mean that the organisers and participants forfeited their immunity from prosecution for various street offences. As a consequence, 168 women protestors who marched on Anzac Day were arrested, prosecuted and convicted of the summary offence of causing serious alarm or affront and their convictions were upheld on appeal. 390 The offence has since been repealed and replaced by the crime of offensive conduct. The principle of legality – a presumption that the legislature does not intend to derogate from fundamental rights, absent express words to that effect – provides a potential avenue of challenge for laws restricting the application of unlawful assembly offences and powers to peaceful protest. This principle was invoked by the Federal Court in its review of the World Youth Day Act 2006 (NSW) and associated Regulations enacted to help facilitate the policing of World Youth Day (WYD) in Sydney during 2008, a global Catholic youth event which featured Pope Benedict XVI’s visit to Australia. 391 The Full Court of the Federal Court (composed of French, Branson and Stone JJ) found the special laws regulating the WYD, which had the aim of protecting public safety, avoiding obstructions, and maintaining respect for religious freedom, were not impermissible restrictions on the constitutional implied freedom of political communication. 392 However, regulatory provisions restraining behaviour causing “annoyance” to WYD attendees were found to be overly broad and vague, and were declared to be “ultra vires” the World Youth Day Act 2006 (NSW). 393

Affray and Fighting in Public Places [13.215] The common law misdemeanour of affray is committed by a person who engages in

a display of force that causes terror to others, or participates in actual violence that induces others to fear personal violence. 394 Affray is commonly used to deal with brawling and fighting. The common law offence of affray applies in South Australia and Victoria and has also been preserved by s 72 of the Criminal Code (Qld), s 47AA of the Summary Offences Act 1988 (NT) and s 80 of the Criminal Code (Tas). In Western Australia, while not specifically labelled affray, it is an offence to fight in public so as to cause alarm. 395 In the Australian Capital Territory, the common law offence of affray has been abolished by s 25 of the Public Order (Protection of Persons and Property) Act 1971 (Cth) and replaced by a statutory offence of fighting in any public place. 396 In New South Wales, the common law offence of affray has not been abolished, though a statutory offence of affray has recently been enacted modelled on the Public Order Act 1986 (UK). 397 The common law misdemeanour of affray had largely fallen into disuse by the end of the 19th century in England and Australia. As Lord Reid noted in Taylor v DPP: “For some reason which I have not discovered there were few prosecutions for this offence for a very long period before the middle of this century. But then the practical advantages to the prosecution of using this offence must have occurred to somebody.” 398 390 391 392 393 394 395 396 397 398

Connolly v Willis [1984] 1 NSWLR 373. Evans v State of New South Wales [2008] FCAFC 130. Evans v State of New South Wales [2008] FCAFC 130 at [59], [78]. S Bronitt, “Editorial—Taking Public Order Seriously: World Youth Day and the Right to be Annoying” (2008) 32 Criminal Law Journal 265. Taylor v DPP [1973] AC 964 at 989 per Lord Reid. Criminal Code (WA), s 71. Crimes Act 1900 (ACT), s 391. Crimes Act 1900 (NSW), s 93C. Taylor v DPP [1973] AC 964 at 988. [13.215]

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Affray was revived by prosecutors in England in the 1950s and 1960s. 399 The offence became useful to prosecutors to deal with the outbreak of “hooliganism” and fights between gangs disrupting the relative stability of the post-war period. The use of affray, along with the common law offences such as riot and rout, was the result of the efforts of prosecutors as well as the courts willing to adapt and refine (where necessary) these common law offences to modern conditions. 400 A similar pattern is evident in Australian jurisdictions. In New South Wales, the revival of the use of affray to deal with public order situations has been facilitated by legislation. The following provisions were inserted into the Crimes Act 1900 (NSW): Section 93C Affray (1) A person who uses or threatens unlawful violence toward another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray and liable to imprisonment for 10 years. (2) If 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purpose of subsection (1). (3) For the purposes of this section, a threat cannot be made by the use of words alone. (4) No person of reasonable firmness need actually be, or be likely to be present at the scene. (5) Affray may be committed in private as well as in public places. 401 Section 93A defines “violence” as follows: violence means any violent conduct, so that— (a) except for the purposes of section 93C, it includes violent conduct towards property as well as violent conduct towards persons, and (b) it is not restricted to conduct causing or intended to cause injury or damage but includes any other violent conduct (for example, throwing at or towards a person a missile of a kind capable of causing injury which does not hit or falls short).

The offence is identical to the statutory offence of affray enacted by s 3 of the Public Order Act 1986 (UK). 402 The “law and order” campaign in New South Wales that led to the modernisation of riot and affray is discussed at [13.200]. The common law and statutory offences of affray, the boundaries of which are hazy, overlap with other crimes of violence, such as assault, grievous bodily harm and reckless endangerment. As a consequence, the offence is often viewed as an offence against the person rather than a public order offence. This view was not shared by the Model Criminal Code Officers Committee, and affray was not included in the chapter dealing with offences against the person. 403 More likely, the offence of affray would have been included in the chapter of the Model Criminal Code dealing with offences against public order, though the project of drafting a model public order law has been abandoned. 404 399 400 401 402 403 404

I Brownlie, “The Renovation of Affray” [1965] Criminal Law Review 479. DGT Williams, “Assembly and Free Speech: Changes and Reforms in England” (1975) 1(2) University of New South Wales Law Journal 97 at 101. The leading cases on this provision are Colosimo v DPP (2005) 64 NSWLR 645; Colosimo v DPP [2006] NSWCA 293. For a comparison of jurisprudence between New South Wales and the United Kingdom on this offence, see J Sanders and E Elliott, “Affray: What is it, and What is it not?” (2012) 36(6) Criminal Law Journal 368. Model Criminal Code Officers Committee, Chapter 5—Non Fatal Offences Against the Person, Report (1998). The Model Criminal Code has been issued in a consolidated version in 2009: http://www.pcc.gov.au/uniform/ crime%20(composite-2007)-website.pdf (cited 20 December 2016). Chapter 8, dealing with Public Order Offences, contains only one offence provision: contamination of goods, discussed at [13.15].

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Within the hierarchy of public order offences, affray is regarded as an intermediate offence—less serious than riot but more serious than disorderly conduct—for dealing with small-scale public order threats. As Nicola Lacey and Celia Wells concluded in the British context: “Affray is a common choice of charge after Saturday night pub brawls”. 405 The advantage of affray from the law enforcement perspective is that it is not necessary for the prosecution to prove that individual blows were inflicted without consent. Rather, the focus of the charge is whether the conduct is capable, objectively speaking, of causing alarm and fear to the public. This may have practical advantages in cases where the participants and potential victims are unwilling to cooperate with the prosecution or where it is difficult to identify who inflicted which blow and caused which injury. However, as Jane Sanders and Edward Elliott point out in the context of affray in New South Wales, the vagueness of the offence means it is “either misapplied or, alternatively, has become a weapon of prosecutorial policy at the expense of its proper and prescribed use”, with the effect that affray is often charged for more minor offences, as opposed to the more serious violence it is intended to cover. 406 The common law of affray has been progressively broadened by judicial development. 407 In relation to the number of persons necessary to constitute the offence of affray, it has been held that: “It may well be that if two people fight and one is acting in self-defence that man [or woman] cannot be said to be guilty of an affray, but it would appear to this court that there is no reason why his [or her] attacker, whether acting alone or jointly with another attacker, should not be guilty of the affray.” 408

Thus, the courts have upheld the conviction of a single aggressor who so ferociously attacked his victim as to terrify a member of the public who witnessed the attack. 409 Although the nature of the offence typically involves conduct by more than one person, a person brandishing a rifle in a manner calculated to terrify a bystander has been held to be an affray. 410 The public order dimension of affray is a requirement of public alarm; namely, that the display of force or participation in violence must be such as to put bystanders in terror or fear of personal violence. 411 The original common law requirement that the affray cause actual terror or occur in a public place is no longer necessary. 412 In Taylor v DPP, the House of Lords held that in cases where an affray is committed in a public place, it is no longer necessary to prove that members of the public were present and were terrified. It is sufficient to show that the violence used was of such a kind as to render the place unusable by persons of a reasonably firm disposition. 413 In cases where an affray occurs in a private place, it is necessary to prove the presence of persons who were not engaged in the fighting. 414 405 406 407 408 409 410 411 412 413 414

This appears in the first edition of N Lacey and C Wells, Reconstructing Criminal Law (2nd ed, London: Butterworths, 1998) p 116. J Sanders and E Elliott, “Affray: What is it, and what is it not?” (2012) 36(6) Criminal Law Journal 368 at 376. R v Sharp [1957] 1 QB 552. See also R v Scarrow (1968) 52 Cr App R 591 at 596; R v Summers (1972) 56 Cr App R 604. R v Button and Swain [1966] 3 AC 591. Taylor v DPP [1973] AC 964 at 991 per Lord Morris. R v Button and Swain [1966] AC 591; Taylor v DPP [1973] AC 964; Attorney-General’s Reference (No 3 of 1983) [1985] QB 242; I v DPP [2001] 2 All ER 583. R v Button and Swain [1966] AC 591; R v Summers (1972) 56 Cr App R 604. Taylor v DPP [1973] AC 964 at 987. Taylor v DPP [1973] AC 964 at 988. [13.215]

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The statutory definitions of affray reflect this widened definition using the concept of causing a “person of reasonable firmness” present at the scene to experience fear. 415 Under the statutory offence of affray in the United Kingdom, on which the New South Wales offence is modelled, the House of Lords has held that “the threat of unlawful violence” can be implicit, constituted simply by the carrying of dangerous weapons such as petrol bombs by a group of persons. 416 The statutory offences are also no longer limited to public places. For example, the statutory offence of affray in New South Wales provides that an affray may be committed in private as well as public places. 417 Even in those jurisdictions that followed the old common law and limited the offence of affray to public places, the legislation usually adopts an extended general definition of public place to include any place to which members of the public ordinarily have access.

Rout and Violent Disorder [13.220] The offence of affray is closely related to the common law misdemeanour of rout.

This offence has been defined as a disturbance of the peace by three or more persons who have assembled together with the intention to do a thing which, if executed, would make them rioters, and have actually taken steps to execute their purpose. 418 Unlike riot, rout may be complete without the execution of the intended common purpose. The offence is obscure and has largely fallen into disuse. The common law offences of riot, rout and affray have been abolished in New South Wales, 419 replaced by the statutory offences of riot and affray. 420 There is no equivalent intermediate offence of rout in the Northern Territory, Queensland, Tasmania and Western Australia. In New South Wales, the statutory offences of riot and affray are supplemented by an “intermediate” offence of violent disorder. Section 11A (formerly s 28) of the Summary Offences Act 1988 (NSW) provides: Section 11A Violent disorder (1) If 3 or more persons who are present together use or threaten unlawful violence and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety, each of the persons using or threatening unlawful violence is guilty of an offence. Maximum penalty: 10 penalty units or imprisonment for 6 months. (2) It is immaterial whether or not the 3 or more persons use or threaten unlawful violence simultaneously. (3) No person of reasonable firmness need actually be, or be likely to be, present at the scene. (4) An offence under subsection (1) may be committed in private as well as in public places. 415

419 420

Crimes Act 1900 (NSW), s 93C(4). While the statutory affray does not require a member of the public to experience fear, the House of Lords has attempted to place some further limitations on the offence. In I v DPP [2001] 2 All ER 583, their Lordships held (at [28]) that the threat of unlawful violence must be directed towards another person actually present at the scene, such as would cause fear to a notional bystander of reasonable firmness. The House of Lords took notice of the increasing tendency to charge affray even though there were other suitable offences available, such as assault or carrying explosives. In 2000, they noted, there were 1,891 prosecutions for affray in Greater London alone. I v DPP [2001] 2 All ER 583 at [16]. Crimes Act 1900 (NSW), s 93C(5). A Hiller, Public Order and the Law (Sydney: Law Book Company, 1983) pp 69–70; M Supperstone, Brownlie’s Law of Public Order and National Security (2nd ed, London: Butterworths, 1981) p 130. Crimes Act 1900 (NSW), s 93E; Sch 3. Crimes Act 1900 (NSW), ss 93B, 93C.

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(5) A person is guilty of an offence under subsection (1) only if he or she intends to use or threaten violence or is aware that his or her conduct may be violent or threaten violence. (6) Subsection (5) does not affect the determination for the purposes of subsection (1) of the number of persons who use or threaten violence. (7) In this section: “violence” means any violent conduct, so that: (a) it includes violent conduct towards property as well as violent conduct towards persons, and (b) it is not restricted to conduct causing or intended to cause injury or damage but includes any other violent conduct (for example, throwing at or towards a person a missile of a kind capable of causing injury which does not hit or falls short).

Like the statutory offences of affray and riot, the offence of violent disorder is borrowed from the Public Order Act 1986 (UK). The elements of violent disorder have been discussed in the following cases: R v Mahroof; 421 R v Fleming and Robinson; 422 R v McGuigan and Cameron; 423 R v Jefferson. 424 The purpose of the violent disorder offence was to deal with disorderly conduct that threatened public safety and property. The offence targets disturbances and rowdy conduct of a relatively minor nature. The less serious nature of the offence is reflected in its inclusion in the Summary Offences Act 1988 (NSW), rather than the Crimes Act 1900 (NSW), and relatively lenient penalty of 6 months imprisonment. 425 The offence is defined in similar terms to affray, which is a more serious offence carrying a maximum penalty of five years imprisonment. Indeed, the principal difference between affray and violent disorder is that an affray involves two or more persons, while violent disorder involves three or more persons. In this regard, the hierarchy of seriousness seems counterintuitive. Ordinarily, the presence of other individuals sharing a common purpose aggravates the seriousness of the offence. Yet, in New South Wales, a group of persons engaging in violent disorder may be punished more leniently than two individuals engaged in a fight amounting to an affray. Because of the summary jurisdiction and the more lenient penalty in New South Wales, the offence of violent disorder is more commonly prosecuted than riot or affray.

Sedition and Riot [13.225] In historical terms, sedition and riot were among the most serious public order

offences under the common law. In the modern context, these offences have generally declined in significance. Sedition, particularly because of its close connection with treason, was rarely used in the 20th century. The practical demise of sedition is related to its breadth and potential to interfere with peaceful agitation for political and constitutional change. The political implications of sedition made the offence historically unattractive to prosecutors. Also, the offence cannot be prosecuted without the consent of the Attorney-General or Director of 421 422 423 424 425

[1989] Crim LR 72 at 74. [1989] Crim LR 658. [1991] Crim LR 719. [1994] 1 All ER 270. In the aftermath of the Cronulla riots in 2005, a range of penalty changes to offences against the person were introduced into the Crimes Act 1900 (NSW) during a period of “public disorder”. There is now a specific provision governing “assault during public disorder” (s 59A), as well as numerous provisions in existing assault offences that aggravate offences during a period of “public disorder” which is defined in s 4. This provision effectively creates a parallel system of aggravated offences against the person that supplement traditional public order offences. [13.225]

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Public Prosecutions and, in any event, carries a lesser penalty than many other new public order offences. In the wake of the September 11 attacks on New York in 2001, treason and other offences relating to terrorism and national security have been reformed. The offence of sedition was substantially remodelled at the federal level in 2005 and, for this reason, the discussion of the offence and its State counterparts is covered in Chapter 15, [15.215]. Riot [13.230] Riot is the most serious public order offence and, under the common law, carries the

maximum penalty of life imprisonment. The offence applies to groups of individuals who perpetrate violence with others in a manner that causes public alarm. Participants must act with a “common purpose” that encompasses not only violence, but also a common intention to use force against any person who opposes them. The common law governing riot assumed its modern features in the 18th century as prosecutors and judges in England sought to maintain control faced by increasing levels of disorder and political agitation by the urban poor. Bread and food riots were commonplace at this time. The responsibility for restoring order remained with local constables supervised by Justices of the Peace. Increasing concern about the dangers of revolution often resulted in overreaction with bloody consequences, especially where the magistrates sought assistance from the military to suppress unlawful and riotous assemblies. Rioting in early colonial Australia stemmed largely from drunken and disorderly mobs. 426 As a consequence, riots were viewed as the work of larrikin elements rather than the revolutionary mobs that were agitating for political change in Europe. The fear of revolution led to the enactment of draconian statutory powers to disperse crowds, including authorising the use of lethal force where necessary, after the reading of a proclamation in accordance with the Riot Act 1715 (UK). The Riot Act 1715 (UK) was received into the Australian colonies and several Australian jurisdictions continue to retain the provisions relating to proclamation (“reading the Riot Act”) and the wide immunities for those who disperse riotous assemblies. The advent of professional policing in England and the Australian colonies in the 19th century led to a decreased reliance on riot offences and draconian powers of dispersal. In the post-war period, powers and offences dealing with riotous assemblies have been revived to deal with unruly and violent crowds in a variety of situations, including public disturbances outside a police station, 427 violence at motorcycle races and soccer matches, 428 and outbreaks of disorder following incidents of racial discrimination. 429 In the modern context, riot charges “rarely arise out of overtly political demonstration, and those arrested for their participation in demonstrations are almost never charged with rioting”. 430 The precise scope of riot under the common law was unclear until clarified in the early 20th century. In Field v Receiver of Metropolitan Police, Phillimore J reviewed the available authorities and defined riot as requiring proof of the following elements: (1) three or more persons; (2) acting with a common purpose; (3) which has been executed or incepted; 426 427 428 429 430

P Grabosky, Sydney in Ferment (Canberra: ANU Press, 1977). R v McCormack [1981] VR 104. Anderson v Attorney-General (NSW) (1987) 10 NSWLR 198. Human Rights and Equal Opportunity Commission, Toomelah Report (Sydney: HREOC, 1988); R v Muranyi (1986) 8 Cr App R (S) 176. R Douglas, Dealing with Demonstrations: The Law of Public Protest and its Enforcement (Sydney: Federation Press, 2004) p 52.

940 [13.230]

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(4)

with the intent to help one another by force if necessary against any person who may oppose them in the execution of their common purpose; and

(5)

applying the use of force or violence, not merely used in demolishing, but displayed in such a manner as to alarm at least one person of reasonable firmness and courage. 431

If there is force or violence present, it is immaterial if the purpose intended to be executed is lawful or unlawful. 432 In his review of the law of riot 35 years ago, Geoffrey Flick suggests that there would be no riot where the common purpose has been executed in consequence of a lawful authority and no more force is displayed than is reasonably necessary. 433 This is simply an acknowledgment that self-defence, as a general defence, may be raised as a defence to a charge of riot. The common law offence of riot requires proof of public alarm. In the 19th century, courts held that to satisfy this element of the offence, the prosecution had to adduce evidence of one witness that she or he was terrified. 434 The renaissance of the riot in the mid-20th century led to reformulation of this element into an objective test. Lord Goddard CJ in R v Sharp held that it suffices if the natural tendency of the conduct involved would be to cause alarm to members of the public. 435 The statutory offence of riot has adopted a similar objective test requiring fear on the part of the (hypothetical) person of reasonable firmness. The opposition to lawful authority is also an element of riot. 436

Reading the Riot Act: God save the Queen! [13.235] Statutory powers exist in most jurisdictions governing the dispersal of an unlawful or riotous assembly. These powers are inherited from the Riot Act 1714 (UK), 437 which required a proclamation or order to be read to the unlawful assembly directing them to disperse within a certain time, with criminal liability attaching to failure to disperse and extensive immunities for personal injury or property damage caused in acts of riot suppression. 438 These draconian powers have been repealed in many jurisdictions or fallen into disuse. Where the legislature has repealed the proclamation requirements, dispersal powers are available to police and citizens, under statute, including express powers to use reasonable force to suppress or prevent a riot. 439 The original Riot Act 1715 (UK) was abolished in England in 1973. 440

Statutory offences of riot (or riotous assembly) have been adopted in all jurisdictions, except South Australia. The statutory offence of riot in s 93B of the Crimes Act 1900 (NSW) follows the definition in the Public Order Act 1986 (UK): 431 432 433 434 435 436 437 438 439

440

Field v Receiver of Metropolitan Police [1907] 2 KB 853 at 860 per Phillimore J. R v Soley (1707) 11 Mod Rep 115; R v Graham (1888) 16 Cox CC 420 at 427 per Charles J. G Flick, Civil Liberties in Australia (Sydney: Law Book Company, 1981) p 102. R v Langford (1842) 174 ER 653. R v Sharp [1957] 1 QB 552 AT 560. In R v Hunt (1845) 1 Cox CC 177, Alderson J held at 177 that “there must be some sort of resistance to lawful authority to constitute [a riot]”. 1 Geo 1 Stat 2 c 5. See, for example, Unlawful Assemblies and Processions Act 1958 (Vic), ss 11 – 12. See, for example, Criminal Code (Qld), s 261, which provides: “It is lawful for any person to use such force as is necessary to suppress a riot, and is reasonably proportioned to the danger to be apprehended from its continuance.” Also, police officers have specific powers under the Police Powers and Responsibilities Act 2000 (Qld), s 51, to take “the steps the police officer reasonably believes are necessary to suppress a riot”. For a review of the processes relating to reading the Riot Act see A Hiller, Public Order and the Law (Sydney: Law Book Company, 1983) pp 77–85. [13.235]

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Section 93B Riot (1) Where 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety, each of the persons using unlawful violence for the common purpose is guilty of riot and liable to imprisonment for 15 years. (2) It is immaterial whether or not the 12 or more persons use or threaten unlawful violence simultaneously. (3) The common purpose may be inferred from conduct. (4) No person of reasonable firmness need actually be, or be likely to be, present at the scene. (5) Riot may be committed in private as well as in public places.

Section 5 of the Unlawful Assemblies and Processions Act 1958 (Vic) has broadened the common law offence of riot to include riotous assemblies. In Western Australia, an unlawful assembly becomes a riot when the assembly begins to act in such a tumultuous manner as to disturb the peace and the persons then assembled are regarded as riotously assembled. 441 Section 73(3) of the Criminal Code (Tas) defines a “riot” as an unlawful assembly that has begun to put into execution the common purpose. The minimum number of persons required to constitute the offence of riot varies from jurisdiction to jurisdiction. Participating in a prison riot, unlawful assembly or mutiny is a separate statutory offence under s 92 of the Corrective Services Act 2000 (Qld). Under this offence, a prisoner can be convicted of taking part in a prison riot even though fewer than two other prisoners are convicted of taking part in the same riot. 442 The prisoner must take part in the actions which make the assembly a “riot”. If the behaviour consists of a number of elements, the accused must be involved in at least some of that activity. The question of whether a particular prisoner is sufficiently involved is a question of fact for the jury. The words “take part in” must be given their ordinary meaning of active involvement and once riotous behaviour is discerned by part of the unlawfully assembled group, all the members of the group are thereby guilty of riot. 443

CONCLUSION This area has great intrinsic interest and importance, but is generally taught in law schools in the context of courses on civil liberties, thus diverting its attention away from its implications for the general structure of criminal law. 444 [13.240] Many themes have been identified in this review of public order powers and

offences. These include the relative legal invisibility of summary offences and preventive powers, the centrality of police discretion, the discriminatory use of these laws against minorities, the malleability of the public/private distinction, and the susceptibility of public order law to the politics of “law and order”. Public order remains a neglected part of the criminal law. To borrow Doreen McBarnet’s phrase, an “ideology of triviality” pervades the legal discourse surrounding public order

441 442 443 444

Criminal Code (WA), s 62(4). R v Thomas [1993] 1 Qd R 323. R v Cook (1994) 74 A Crim R 1. N Lacey, C Wells and O Quick, Reconstructing Criminal Law (3rd ed, London: LexisNexis Butterworths, 2003) p 112. This point is echoed by J Quilter and L McNamara, “Time to define “The Cornerstone of Public Order Legislation”: The Elements of Offensive Conduct and Language under the Summary Offences Act 1988 (NSW)” (2013) 36(2) UNSW Law Journal 534 at 537.

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offences. 445 Although practically and numerically significant, public order offences receive only limited attention from legal academics and appellate courts. Confined largely to the summary level, many fundamental definitions (such as “breach of the peace” and “offensive conduct”) remain indeterminate and under-analysed. Public order offences further reinforce this marginal status by often dispensing with fundamental principles of the criminal law, such as the presumption of a fault element: see Chapter 3, [3.170]ff. The jurisdiction of public order offences and powers seems constrained to “public” spaces. Yet, as in other areas, the public/private dichotomy is neither stable nor immutable. While some “private” forms of disorder, such as domestic violence, have been accorded de facto immunity, in recent years legislation has extended the powers and offences to deal with disorder that occurs in private as well as public spaces. The boundaries of public order offences are malleable, potentially subsuming any behaviour that violates the criminal law and which can therefore be constructed as a “law and order” problem. 446 As a consequence, public order law is highly susceptible to what David Brown and Russell Hogg describe as the “uncivil politics of law and order”. 447 Moral panic about the lawlessness of particular groups has justified the rapid expansion of police powers and the range of public order offences. The hallmark of public order law is the indeterminacy of its key powers and offences. This confers upon police officers a wide scope of discretion. In many cases, the law operates as a resource for the police to negotiate situations with a potential for disorder. As noted above, since police intervention does not always follow with an arrest or charge, there is a danger that the process is the punishment. While providing flexibility for the police, the judicial reluctance to guide police discretion has had adverse implications for those engaged in peaceful protest or women suffering domestic violence. In relation to these issues, we have examined how legislative reform has sought to influence and constrain the exercise of police discretion. Public order law strives to suppress the political and social context of “disorder”. Inevitably, these efforts are only partially successful. The legal controversies that surround key definitions, as well as policies of law enforcement, are inevitably bound up in wider political and societal conflicts. We examined how public order powers and offences may infringe upon fundamental civil and political rights, and how they continue to be implicated in the over-policing and harassment of disadvantaged groups, such as Indigenous youth. Public order law plays an important symbolic as well as an instrumental role in order maintenance. As well as providing legal powers to respond to outbreaks of disorder, public order law establishes and maintains police authority over defined spaces. Within these spaces, the legitimacy of political and social activity rests upon police conceptions of good order and decency. It is this role that symbolically supports the conception of the police (and public order law) as the “thin blue line” between order and anarchy.

445 446 447

D McBarnet, Conviction: Law, the State and the Construction of Justice (London: Macmillan, 1981) Ch 7, discussed in Chapter 1 at [1.130]. N Lacey, C Wells and O Quick, Reconstructing Criminal Law (3rd ed, London: LexisNexis Butterworths, 2003) p 132. D Brown and R Hogg, Rethinking Law and Order (Sydney: Pluto Press, 1998). [13.240]

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Drug Offences Every form of addiction is bad, no matter whether the narcotic be alcohol or morphine or idealism. 1 [14.05] [14.10] [14.45] [14.50] [14.70]

INTRODUCTION ........................................................................................................................ 945 The Criminalisation of Drugs: The Logic and Costs of Prohibition ............................................... 946 Socio-Historical Perspectives on Drug Offences .......................................................................... 964 Cultural Perspectives on Drug Laws and the War Against Drugs .................................................. 966 The History of Drug Law in Australia .......................................................................................... 970

[14.90] [14.90] [14.95] [14.105] [14.150]

SERIOUS DRUG OFFENCES ........................................................................................................ Federal and International Framework for Drug Offences ............................................................. Scope of Federal Jurisdiction ...................................................................................................... Importation Offences ................................................................................................................. Trafficking Offences ...................................................................................................................

[14.165] [14.175] [14.210]

DRUG LAW ENFORCEMENT ..................................................................................................... 1000 Money Laundering and Confiscation of the Proceeds of Crime ................................................ 1001 Entrapment .............................................................................................................................. 1016

[14.240]

CONCLUSION ......................................................................................................................... 1026

976 976 977 978 991

INTRODUCTION [14.05] Since the middle of the 20th century, drug offences have become the driving force

propelling the criminal justice system. 2 At a practical level, drug offences have revolutionised criminal justice priorities and policies both domestically and internationally. Yet drug offences continue to be omitted from many standard criminal law textbooks and courses. 3 Although comprising a sizeable portion of criminal matters both in higher and lower courts, drug offences are considered marginal both to the academic enterprise and legal education which, as noted in Chapter 2, is preoccupied with identifying and elucidating upon general principles. According to this view, drug offences do not provide a fertile field of academic inquiry since 1

2 3

CG Jung, Memories, Dreams, Reflections (or Erinnerungen, Träume, Gedanken), recorded and edited by Aniela Jaffé, translated from the German by Richard and Clara Winston (New York: Pantheon Books, 1973) p 361. P Alldridge, Relocating Criminal Law (Aldershot: Ashgate, 2000) Ch 7. Drugs are not addressed in B Fisse, Howard’s Criminal Law (Sydney: Law Book Company, 1990). An early and notable exception was the first contextual casebook in criminal law by A Bates, T Buddin and D Meure, The System of Criminal Law (Sydney: Butterworths, 1979).

[14.05]

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they derogate from many purportedly universal and fundamental principles, such as the burden of proof and the presumption in favour of subjective mental states. Drug offences have been effectively quarantined as a specialist area of criminal law and practice. The few texts that focus on these offences concentrate primarily on questions of procedure, evidence and technical definition, such as the meaning and scope of possession, supply and trafficking. 4 Because of this practical focus, little or no attention is paid to broader policy questions, such as the rationale or justification for criminalisation, the historical evolution of drugs laws, the relationship of criminalisation to other regulatory strategies, and options for law reform. 5 Most strikingly, unlike other areas of the criminal law dealing with “consensual harm”, liberal and moral philosophical ideas have not significantly informed legal debate about the purpose, scope and limits of drug offences. 6 In many respects, the criminal law dealing with illicit drugs most closely conforms to Pat O’Malley’s “technocratic model of criminal justice”. As discussed in Chapter 1, [1.160] the increasingly actuarial/bureaucratic emphasis within the criminal justice system results in the displacement of legal strategies based on crime control/due process in favour of risk management. A consequence of this approach is that the content of the criminal law is significantly “de-moralised”. This model explains the trend in some jurisdictions to “decriminalise” the possession of small quantities of “soft drugs”, like cannabis, through the introduction of infringement notice schemes or “on the spot” fines. The legal discourse surrounding illicit drugs is a striking example of law’s disciplinary autonomy. Although there is a sizeable academic critique of prohibition, the criminal law remains remarkably resistant to external sources of knowledge—whether scientific, historical, sociological, criminological, cultural or public health—about the drugs themselves, and the unintended effects of criminalisation. 7 Drawing upon these perspectives, this chapter hopes to offer an antidote to such legal myopia. This chapter provides an overview of the development and operation of the principal offences, and the powers of investigation relating to illicit drugs. In relation to reform, the chapter is necessarily selective, focusing on key policy issues such as the desirability of alternative legal strategies based on regulation rather than prohibition.

The Criminalisation of Drugs: The Logic and Costs of Prohibition [14.10] The logic of prohibition is rarely subject to wider scrutiny—fundamental questions

about the legitimacy of criminalisation are often deemed “political” and therefore beyond the scope of the reform enterprise. This approach characterises the review of the Model Criminal Code Officers Committee (MCCOC) on drug law in Australia in the late 1990s. 8 The MCCOC viewed its task largely as a technical exercise in legislative clarification. A priori questions relating to criminalisation and legal policy were considered largely beyond the scope of its terms of reference. This approach to law reform contrasts starkly with its approach in other areas, such as the Model Criminal Code Officers Committee (MCCOC), Chapter 5, 4

5 6 7

8

See P Zahra and C Young, Zhara and Arden’s Drug Laws in New South Wales (3rd ed, Sydney: Federation Press, 2014); For one of the first specialised texts, see F Rinaldi and P Gillies, Narcotic Offences (Sydney: Law Book Company, 1991). A notable exception is the discussion contained in C Reynolds, Public Health Law in Australia (Sydney: Federation Press, 1995) pp 202–210. D Husak, Drugs and Rights (Cambridge: Cambridge University Press, 1992). W Morrison, “Modernity, Knowledge and the Criminalisation of Drug Usage” in I Loveland (ed), Frontiers of Criminality (London: Sweet and Maxwell, 1995) p 215, drawing on G Teubner, Law as an Autopoietic System (Oxford: Basil Blackwell, 1993). MCCOC, Chapter 6—Serious Drug Offences, Report (1998).

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Sexual Offences Against the Person, Report (1999), where the MCCOC examined alternate models for sexual offences as well as relevant feminist and critical legal scholarship: see for example Chapter 11, [11.50]ff. Since 1985, the most significant principle bearing on debates about drug law reform has been “harm minimisation”. 9 This principle, which has formed the basis of Australia’s National Strategy on Drugs, aims to minimise or reduce the harms suffered by users, including the social and health harms, as well as the adverse effects of criminalisation itself. 10 A central tenet of harm minimisation is that “[p]olicies designed to discourage drug consumption should only be supported if they prevent more harm than they cause”. 11 This is a variant of utilitarianism, where maximising “the happiness of the greatest number is replaced by the promotion of ‘the least harm of the greatest number’”. 12 Harm minimisation balances the harms of drug use against the harms caused by prohibition. But, as Stephen Mugford points out, weighing and aggregating different types of harm is an impossible task—how do we measure and compare public health harms directly flowing from drug use against harms indirectly flowing from strict policies of prohibition, such as increased risks of corruption and police illegality? 13 Also, how do we balance individual harms against wider harm to the community? Mugford also notes that utilitarian analysis falls into a major trap by not recognising and valuing the pleasures of drug consumption. Moral neutrality on the “benefits” of drug consumption may lend political credence to harm minimisation as a strategy for policy and law reform, but its exclusive focus on measurable economic costs is a significant weakness. Mugford’s approach to drug control, which is based on regulating rather than prohibiting the market for pleasurable (yet risky) commodities, is further explored at [14.45]. As we shall explore below, in the mid 1990s, the centrality of harm minimisation was undermined by the “Tough on Drugs” policy promoted by then Prime Minister, John Howard, between 1996-2007. The concept has however proved resilient, with harm reduction identified as a central pillar of harm minimisation. This is reflected in the current National Drug Strategy 2010–2015—A Framework for Action on Alcohol, Tobacco and Other Drugs (Ministerial Council on Drug Strategy, 2011), which is structured around the three pillars of demand, supply and harm reduction: Demand reduction • prevent uptake and delay onset of drug use. • reduce use of drugs in the community. • support people to recover from dependence and reconnect with the community. • support efforts to promote social inclusion and resilient individuals, families and communities. Supply reduction • reduce the supply of illegal drugs (both current and emerging). 9

10 11 12

13

As the current National Drug Strategy 2010–2015 - A framework for action on alcohol, tobacco and other drugs (Ministerial Council on Drug Strategy, 2011) notes at ii: “The overarching approach of harm minimisation, which has guided the National Drug Strategy since its inception in 1985, will continue through 2010–2015”, http://www.nationaldrugstrategy.gov.au/internet/drugstrategy/publishing.nsf/Content/nds2015 (cited 23 November 2016). The concept is discussed in MCCOC, Chapter 6—Serious Drug Offences, Report (1998) pp 6–11. A Wodak and R Owens, Drug Prohibition: A Call for Change (Sydney: University of New South Wales Press, 1996) p 42. S Mugford, “Harm Reduction: Does it Lead Where its Proponents Imagine?” in N Heather, A Wodax, E Nadelmann and P O’Hare (eds), Psychoactive Drugs and Harm Reduction: From Faith to Science (London: Whurr Publishers, 1993) p 29. S Mugford, “Harm Reduction: Does it Lead Where its Proponents Imagine?” in N Heather, A Wodax, E Nadelmann and P O’Hare (eds), Psychoactive Drugs and Harm Reduction: From Faith to Science (London: Whurr Publishers, 1993) p 29. [14.10]

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• control and manage the supply of alcohol, tobacco and other legal drugs. Harm reduction • reduce harms to community safety and amenity • reduce harms to families • reduce harms to individuals. 14

The implication of this tripartite strategy for law enforcement and criminal law policy is that more attention should be directed to those who create and control the markets (“dealers”), while those who consume the drugs (“users”) should be treated as “victims”, with health and social problems that warrant lenient treatment or diversion away from the criminal justice system. This dealer/user distinction is long-standing: the MCCOC in the late 1990s drew a distinction between “personal” use on the one hand, and “commercial” dealing in drugs for profit on the other hand. 15 The MCCOC report on serious drug offences proposed that personal use should be viewed as “health and regulatory” offences, while the dealing in drugs should be viewed as more serious “trafficking offences”. Any potential overlap between these offences would be resolved by prosecutorial discretion. The MCCOC recommended that distinct methods of enforcement, fault elements, proof requirements and a range of penalties were necessary for these different types of offences. 16 As our historical examination will demonstrate, knowledge about drugs, including this crucial distinction between use and trafficking, has been influenced by numerous royal commissions and inquiries into drugs conducted in the 1970s and 1980s. In the modern law, attention has been increasingly directed away from users toward those individuals who profit from the trade in illegal drugs. Dealing in drugs within an illicit framework is highly exploitative of users. Indeed, Peter Alldridge has observed that drug dealing possesses analytical and moral similarities to blackmail: “Dealers in addictive drugs obtain money by very unpleasant menaces. They sell protection from withdrawal symptoms. This is blackmail or its moral equivalent”. 17 Viewed in this way, the user ceases to be the “wrongdoer” creating demand for illicit goods, but rather a vulnerable “victim” who should be protected. While the MCCOC did not endorse the decriminalisation of possession and use of drugs, the recommendation that this conduct should be dealt with under a less serious “health and regulatory” offence reflects a more sympathetic approach to users. The legal dichotomy drawn here between “addict/use” and “dealer/trafficking” warrants critical attention on a number of levels. Chris Reynolds has suggested that the dichotomy is “flawed” since “[m]any users deal in a small way in order to fund their habit or to obtain drugs for friends”. 18 It also ignores the involvement of undercover police in “controlled operations” who may encourage and assist users to participate in the lucrative trade in drugs. While the rhetoric of the present law and legal policy sustains attention on drug traffickers and organised crime, the reality is that drug offences in Australia continue to be enforced primarily against users, with the possession of small quantities of “soft” drugs, such as cannabis, constituting the bulk of arrests and convictions. Recent data show that cannabis-related offences constituted 56.1% of all drug-related arrests in Australia in 2014–2015, and that the 14

15 16 17 18

National Drug Strategy 2010–2015—A Framework for Action on Alcohol, Tobacco and Other Drugs (Ministerial Council on Drug Strategy, 2011), http://www.nationaldrugstrategy.gov.au/internet/drugstrategy/ publishing.nsf/Content/nds2015 (cited 23 November 2016). MCCOC, Chapter 6—Serious Drug Offences, Report (1998). MCCOC, Chapter 6—Serious Drug Offences, Report (1998) p 5. P Alldridge, Relocating Criminal Law (Aldershot: Ashgate, 2000) p 205. C Reynolds, Public Health Law in Australia (Sydney: Federation Press, 1995) p 204.

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[14.10]

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majority of these arrests were of “consumers”. 19 In relation to data concerning “hard” drugs, such as heroin and cocaine, it is consumers, rather than suppliers, that constitute the bulk of arrests in Australian jurisdictions. 20 Rather than reflect upon the soundness of basing laws and policies on this distinction, these data are explained simply as further evidence of the elusive nature of drug trafficking and the difficulties in apprehending the “Mr Bigs” of organised crime using conventional law enforcement methods. Another “truth”, constructed through legal discourse, is that all illicit drugs warrant similar treatment, notwithstanding the existence of scientific evidence suggesting that different drugs pose different dangers. The MCCOC embraced this undifferentiated approach to illegal drugs: all drugs deemed illegal must be treated the same, even if they pose different dangers to the health of the users, because trafficking in any prohibited drug is “associated with the same evils of corruption, violence and the financial derelictions of the black market economy”. 21 Even though the MCCOC acknowledged that a reduction in penalties for trafficking in some drugs, such as cannabis, might reduce black-market prices and so reduce incentives for organised crime, the case for decriminalisation was considered to involve issues of policy “which are beyond the scope of the Committee’s deliberations”. 22 The MCCOC expressed concern that “decriminalisation by degrees” could be taken as a signal of lessening governmental concern over illicit cannabis use and supply, and so concluded that: “In this area, deployment of the symbolism of prohibition and punishment is a matter for political judgment by government rather than the Committee”. 23 The logic of prohibition, outlined above, is both perplexing and self-reinforcing. Prohibition of any pleasurable commodity or service could result in an illicit market with the consequential risks of endangering the health of consumers, encouraging corruption of public officials and enriching black-market profiteers. Lumping the associated harms of prohibition into the criminalisation calculus means that the target for the criminal law is blurred. It is not the inherent moral, social or public health harms associated with the drug or its use that warrant criminalisation, but rather the collateral or indirect harms arising from the unintended effects of prohibition. It has been said that law, viewed as an exercise in governance, contains elements of attempt and incompleteness. 24 This hypothesis is clearly evident in the history of drug law which may be represented as a perpetual cycle of attempts at legal repression, which, being incomplete, lead to resistance, adaptation and further attempts at repression. It accounts for the almost constant amending and expansion of offences and legal powers dealing with illicit drugs. What is striking about drugs is that this legal cycle persists without critical reflection upon, or empirical scrutiny of, the effectiveness of existing regulatory strategies. There is a significant disjunction between research and policy development on illicit drugs; to borrow a medical concept, drug law and policy is not always “evidence-based”. Indeed, those responsible for making and enforcing drug laws measure their effectiveness by reference 19

20 21 22 23 24

Australian Criminal Intelligence Commission, Illicit Drug Data Report 2014–15 (2016) pp 8, 68. A similar trend is apparent in the cases examined in New South Wales relating to ongoing supply, where the majority of persons charged with ongoing supply were not “Mr Bigs” but rather more often involved small time local street dealers who were addicts themselves, B Murphy and J Anderson, ““Mates, Mr Big and the Unwary”: Ongoing Supply and its Relationship to Entrapment” (2007) 19(1) Current Issues in Criminal Justice 5 at 16. Australian Criminal Intelligence Commission, Illicit Drug Data Report 2014–15 (2016) pp 84, 100. MCCOC, Chapter 6—Serious Drug Offences, Report (1998) p 14. MCCOC, Chapter 6—Serious Drug Offences, Report (1998) p 15. MCCOC, Chapter 6—Serious Drug Offences, Report (1998) p 16. A Hunt and G Wickham, Foucault and Law: Towards a Sociology of Law as Governance (London: Pluto Press, 1994) p 79. [14.10]

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to the level of criminal justice activity (drug arrests, seizures, convictions and the like), rather than the impact on patterns of drug use, supply, drug-related crime and public health. 25 Criminological research has revealed that the prohibition of illicit drugs has been ineffective, even counterproductive. In the drug context, criminalisation and law enforcement strategies based on prohibition have brought about many unintended and undesirable side-effects. 26 Thirty years ago, criminologist Grant Wardlaw observed that the prevailing policy, which he characterised as one of “over-criminalisation”, 27 had produced a myriad of negative consequences, including the following: • the criminalisation of a particular drug drives up its price, which in turn forces some users into money-producing crime to support their habits; • the high price of illegal drugs makes trafficking very lucrative, encouraging sophisticated and organised criminals and groups into the market, as well as increasing the amount of violence employed within the circle of drug users and traffickers; • the illegal context means that much drug use occurs in marginal social settings, thus associating drugs with other undesirable features of contemporary life and bringing young people into contact with them; • the covert context of drug use poses health risks (such as the spread of HIV and hepatitis); • other medical risks associated with using adulterated drugs (overdose, morbidity and mortality); and • criminalisation places significant strains on law enforcement and the criminal justice system, overloading the courts, prisons and probation system, leading to the corruption of officials and engendering changes to our legal system which undermine some of its basic precepts (such as the reversal of the burden of proof and dispensing with proof of fault). 28 In examining any proposals for legal regulation, policy-makers, legislators and regulatory agencies should consider the possible counterproductive effects of criminalisation. 29 Concern about unintended effects of prohibition has been crucial in mustering support for harm reduction strategies, reframing policy and influencing (albeit selectively) some law reform measures. For example, community fear in the 1980s about the spread of HIV within drug-using communities reconceptualised illicit drugs as a public health issue. 30 As we shall explore in the next section, the public health concern about HIV and “unsafe” injecting practices has led to the introduction of syringe/needle distribution, exchange programs and safe-injecting rooms in many jurisdictions. Similar concerns today about the health and community impacts of a new generation drugs, such as “ice”, have produced new levels of cooperation between the Commonwealth, States and Territories. For example, the Council of Australian Governments (COAG) recently published its National Ice Action Strategy (2015), which prioritises “harm reduction” through five action areas: • Support for families and communities; 25

26 27 28 29 30

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S James and A Sutton, “Joining the War Against Drugs? Assessing Law Enforcement Approaches to Illicit Drug Control” in D Chappell and P Wilson (eds), Australian Policing—Contemporary Issues (2nd ed, Sydney: Butterworths, 1996) p 153. G Wardlaw, “Drug Control Policies and Organised Crime” in M Findlay and R Hogg (eds), Understanding Crime and Criminal Justice (Sydney: Law Book Company, 1988) Ch 7. Wardlaw cautioned that this is not a universal effect of prohibition. G Wardlaw, “Drug Control Policies and Organised Crime” in M Findlay and R Hogg (eds), Understanding Crime and Criminal Justice (Sydney: Law Book Company, 1988) pp 153–154. P Grabosky, “Counterproductive Regulation” (1995) 23 International Journal of the Sociology of Law 347. E Drucker, “Drug Prohibition and Public Health: It’s A Crime” (1995) 28 Australian and New Zealand Journal of Criminology 67, Special Issue on “Crime, Criminology and Public Health”. [14.10]

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• Targeted prevention; • Investment in treatment and workforce; • Focused law enforcement; and • Better research and data. 31 These actions must be “evidence-based”, and that in relation to law enforcement, activity must be targeted on organised crime groups and criminal networks involved in manufacturing and supplying the drug, as well strengthening controls on precursor chemicals. Current data, discussed below, however, paint a different picture of how drug laws are enforced.

The economic costs of prohibition: creating crime tariffs [14.15] From an economic perspective, criminalising drugs, or indeed any other commodity for which there is a demand, may create a lucrative illicit market. Although drug laws were not designed to operate as a “tariff”, by limiting supply and increasing costs to suppliers and sellers, prohibition has invariably had this effect. 32 In the 1960s, Herbert Packer suggested that removing these tariffs would lead to the price of narcotics plummeting and cause the financial ruin of illegal suppliers. 33 It is often argued that relaxing prohibition would increase the availability and consumption of drugs, producing social and economic problems which would follow from the inevitable widespread addiction. This argument in favour of prohibition (rather than regulation) ignores those users who do not come to the attention of the medical profession or the police, and impose little costs on society. 34

Perspectives Harm Minimisation: Promoting Safe Injecting Practices [14.20] The first National HIV/AIDS Strategy in 1989 proposed that needle and syringe

exchange (NSE) programs should be established as a matter of priority to combat the spread of HIV. Concern, however, was expressed that this strategy would be impeded by laws that criminalised the possession and supply of drug-injecting equipment. 35 Section 33L of the Controlled Substances Act 1984 (SA) prohibits the possession of “any piece of equipment for use in connection with the smoking, consumption or administration of [a drug] … or the preparation of such a drug or substance for smoking, consumption or administration”. Section 83A(1) of the Poisons Act 1971 (Tas) prohibits the possession of “any pipe, syringe or other utensil, or any other appliance or thing, for use or designed to be used in connection with the preparation … administration, or taking of [a drug]”. Sections 12(2), (5) of the Misuse of Drugs Act (NT) criminalises the supply and possession 31

32 33 34

35

Council of Australian Governments (COAG), National Ice Action Strategy (2015), p 22, http:// www.coag.gov.au/sites/default/files/files/2015%20National%20Ice%20Action%20Strategy.pdf (cited 18 November 2016). H Packer, The Limits of the Criminal Sanction (Stanford, CA: Stanford University Press, 1968) pp 277–282. H Packer, The Limits of the Criminal Sanction (Stanford, CA: Stanford University Press, 1968) p 280. For a discussion of these arguments in the context of the heroin market in Australia, see R Marks, “Prohibition or Regulation: An Economist’s View of Australian Heroin Policy” (1990) 23 Australian and New Zealand Journal of Criminology 65. National HIV/AIDS Strategy (Canberra: AGPS, 1989). The current national strategy was released in 2014: Seventh National HIV Strategy 2014–2017 (2014), http://www.health.gov.au/internet/main/publishing.nsf/ content/ohp-bbvs-hiv (cited 18 November 2016). [14.20]

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of hypodermic syringes for drug use; however, it is a defence under s 12(3) if the syringes were supplied by a medical practitioner or other authorised body. Similar provisions exist in s 10(3) of the Drug Misuse Act 1986 (Qld). As noted below, providing a person with a clean syringe for the purpose of injecting can render that person complicit and liable for manslaughter if the drug user subsequently dies from injection of the illicit drug. The Legal Working Party of the Intergovernmental Committee on AIDS in the early 1990s noted that there had been some changes to the law to facilitate the introduction of NSE programs, such as the removal of possession of needles or exchanges as an offence. However, the Committee concluded that these reforms did not go far enough since supplying a syringe—or, indeed, advice—as part of a needle exchange program could still expose health workers to aiding and abetting charges. 36 The Committee recommended that legal protection for these programs, which should extend to offering advice on safe injecting techniques, should be conferred by legislation. A statutory framework for the lawful provision of needles and syringes by approved persons is preferable to the position in other jurisdictions, such as in New South Wales where supply is merely tolerated under non-prosecution policies. That said, whether based in legislation or executive policy, the early adoption of public health strategies by law enforcement agencies in Australia may be contrasted to the policies of criminalisation and zero tolerance that significantly hampered efforts to respond to the HIV pandemic in the United States at that time. 37 Legislative reform occurred in all Australian jurisdictions to protect medical workers and other approved persons who supply syringes or needles for use in administering illicit drugs. 38 For example, the legislative scheme adopted in the Australian Capital Territory permits, in certain circumstances, the lawful supply of syringes to drug users. Part 3A of the Public Health Act 1997 (ACT) establishes a system of syringe distribution through “approved persons” and approved vending machines. A medical practitioner, pharmacist, nurse or health worker may apply to the Australian Capital Territory Chief Health Officer for approval to supply syringes. 39 Section 66J addresses the risk of accessorial liability arising from syringe supply: (1) An approved person who supplies a syringe to another person is not, only because of that supply, taken to commit any offence under or because of the Criminal Code, part 2.4 (Extensions of criminal responsibility) if— (a) the supply is in the course of the professional practice or occupational duties of the approved person; and (b) the approved person has reasonable grounds for believing that— (i) the syringe might be used for the purpose of the administration to the other person of a controlled drug under the Criminal Code, section 600; and (ii) the supply of the syringe might assist in preventing the spread of disease. (2) A person who prints or publishes a notice, announcement or advertisement in any form about the supply by approved persons of syringes in the circumstances referred to in

36 37 38

39

Legal Working Party of the Intergovernmental Committee on AIDS, Final Report of the Legal Working Party of the Intergovernmental Committee on AIDS (1992) Ch 8. E Drucker, “Drug Prohibition and Public Health: It’s A Crime” (1995) Australian and New Zealand Journal of Criminology 67 at 68–69, Special Issue on “Crime, Criminology and Public Health”. See Public Health Act 1997 (ACT), s 66J; Drugs Misuse and Trafficking Act 1985 (NSW), s 36N(2); Misuse of Drugs Act (NT), s 12(2); Drug Misuse Act 1986 (Qld), s 10(3); Controlled Substances (General) Regulations 2000 (SA), reg 8A(1); HIV/AIDS Preventive Measures Act 1993 (Tas), s 39; Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 80(5); Poisons Act 1964 (WA), s 36A. Public Health Act 1997 (ACT), s 66C.

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subsection (1) is not, only because of that printing or publishing, taken to have committed any offence under or because of the Criminal Code, part 2.4 (Extensions of criminal responsibility).

The establishment of safe injecting rooms (SIRs) continues to be an issue attracting contentious political debate. The matter was first placed on the political and legislative agenda by the proposed clinical trials that would have supplied heroin to registered addicts. Known as “the Heroin Trial” (discussed further below), it was vetoed by the Commonwealth in 1997. The introduction of SIRs has continued to be mooted at State and Territory level. However, the introduction of SIRs for heroin users was one of the recommendations of the Royal Commission into the New South Wales Police Service. 40 Despite the lack of Commonwealth support, the New South Wales Government, following a drug summit in 1999, passed legislation to enable medically supervised injecting centres to operate in New South Wales. 41 As a result of these reforms, Australia’s first legally sanctioned, medically supervised injecting facility opened in May 2001 in Kings Cross, Sydney. This SIR was to operate for a trial period of 18 months. Towards the end of the trial period, the Final Evaluation of the Medically Supervised Injecting Centre (Trial) (2003) found that: • the operation of the centre is feasible in Kings Cross; • a small number of opioid overdoses managed at the centre may have been fatal had they occurred elsewhere; • the centre made referrals for drug treatment, especially among frequent attendees; • there was no overall loss of public amenity; • there was no increase in crime; and • the centre afforded an opportunity to improve knowledge that can guide public health responses to drug injecting and its harms. With bipartisan support, the Drug Summit Legislative Response Amendment (Trial Period Extension) Bill 2003 was passed and s 36A of the Drugs Misuse and Trafficking Act 1985 (NSW), which originally limited the operation of the injecting centres to a trial period of 18 months, was amended to enable the trial of injecting centres to continue until 31 October 2007, 42 and later amended to extend the trial to 31 October 2011. 43 Before the end of this trial period, the New South Wales Parliament, in 2010, passed the Drug Misuse and Trafficking Amendment (Medically Supervised Injecting Centre) Bill 2010, which allowed the supervised injecting centre in Kings Cross to operate indefinitely. There are currently more than 3,000 needle and syringe programs across Australia, comprising of a mixture of primary and secondary outlets, outreach services, vending machines and pharmacies that provide needle and syringe services. 44 Safe injecting rooms have been introduced in Switzerland, Germany and the Netherlands. These local SIR schemes cannot, however, lawfully authorise the provision of the illicit drugs to users without Commonwealth cooperation. The possession of illicit drugs would 40 41 42 43 44

Royal Commission into the New South Wales Police Service, Final Report (1997), Recommendation 2.19. Drug Summit Legislative Response Act 1999 (NSW). Drug Summit Legislative Response Amendment (Trial Period Extension) Act 2003 (NSW). Drug Summit Legislative Response Amendment (Trial Period Extension) Act 2007 (NSW). National Centre in HIV Epidemiology and Clinical Research, The University of New South Wales, Sydney, Return on Investment 2: Evaluating the Cost-Effectiveness of Needle and Syringe Programs in Australia (Canberra: Australian Capital Territory Department of Health and Ageing, 2009) p 12. [14.20]

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need to comply with the licensing requirements under the Therapeutic Goods Act 1989 (Cth) and other federal legislation. 45 Nevertheless, they are attractive from a harm minimisation/reduction perspective as they provide a safer environment for injecting drugs, with medical resources on hand to deal with emergencies such as overdoses. Such programs continue to attract condemnation from some quarters. For example, the United Nations International Narcotics Control Board has repeatedly condemned countries, including Australia, for introducing drug injection facilities, claiming that they constitute a violation of the international drug control conventions, and called into question the ability of the Commonwealth to ensure the proper implementation of those conventions. 46 This rejection of needle and syringe programs may change as new evidence comes to light concerning the health and cost savings these programs can potentially provide. The National Centre in HIV Epidemiology and Clinical Research (now known as the The Kirby Institute for Infection and Immunity in Society), based at the University of New South Wales, evaluated the health and economic impacts of the needle and syringe programs operating in Australia. It found that from 2000–2009, needle and syringe programs were estimated to have averted 32,050 HIV infections and 96,667 Hepatitis C virus infections, provided a net financial cost saving of $1.03 billion dollars (and a $5.85-billion-dollar saving to society if patient costs saved and productivity gains associated with the prevention of HIV and Hepatitis C virus were included), and gained the Australian population approximately 140,000 disability-adjusted life years. 47 The researchers note that they expect greater returns over time, and that the associated benefits of needle and syringe programs, such as “avoided mental health episodes and injecting related injury [and] psychosocial benefits”, were not modelled. 48 They also noted that these programs were “very cost-effective compared to other common public health interventions, such as vaccinations … allied health, lifestyle, and in-patient interventions … and interventions addressing diabetes and impaired glucose tolerance or alcohol and drug dependence”. 49 From a regulatory perspective, the decision to outlaw drugs, users and suppliers places a large sphere of social activity beyond legal control. Rather than maintain a system of prohibition based largely on outmoded temperance ideals developed in the 19th century, it is often argued that drug control should be placed within a public health framework and based on a policy of 45

46

47

48

49

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S Bronitt, Criminal Liability Issues Associated with a Heroin Trial: Working Paper No 13, Feasibility Research into the Controlled Availability of Opioids Stage 2 (Canberra: National Centre for Epidemiology and Population Health and Australian Institute of Criminology, 1995), http://www.nceph.anu.edu.au/Publications/ Opioids/work13a.pdf/ (cited 20 June 2010). International Narcotics Control Board, Report of the International Narcotics Control Board for 2003, http://www.incb.org/incb/en/annual_report_2003.html (cited 27 January 2010) [223], [224], p 37. See also Report of the International Narcotics Control Board for 2005, [590], p 84; Report of the International Narcotics Control Board for 2007, [369], pp 60–61, criticising Norway and Canada for introducing SIRs. http://www.incb.org/incb/en/publications/annual-reports/annual-report.html (cited 23 November 2016). National Centre in HIV Epidemiology and Clinical Research, The University of New South Wales, Sydney, Return on Investment 2: Evaluating the Cost-Effectiveness of Needle and Syringe Programs in Australia (Canberra: Australian Capital Territory Department of Health and Ageing, 2009) pp 8–9. National Centre in HIV Epidemiology and Clinical Research, The University of New South Wales, Sydney, Return on Investment 2: Evaluating the Cost-Effectiveness of Needle and Syringe Programs in Australia (Canberra: Australian Capital Territory Department of Health and Ageing, 2009) p 9. National Centre in HIV Epidemiology and Clinical Research, The University of New South Wales, Sydney, Return on Investment 2: Evaluating the Cost-Effectiveness of Needle and Syringe Programs in Australia (Canberra: Australian Capital Territory Department of Health and Ageing, 2009) pp 8–9. [14.20]

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minimising the harms to individuals and the community posed by dangerous drugs. 50 As such a model encompasses both individual and community interests, it invokes consideration of competing liberal and welfare theories of criminalisation. It is often claimed that prohibition, through deterrence, incapacitation and rehabilitation, protects and promotes the welfare of the community. This supports a regulatory model based on philosophies and policies that aim to protect public health. Drugs cause harm to users, their families and impose enormous costs on the public health system. For this reason, modern drug laws may be justified within the welfare model of criminalisation developed by Nicola Lacey, and reviewed in Chapter 1, [1.230]ff. The high social and economic costs of licit and illicit drugs are examined below. Notwithstanding the high cost of drug use to the community, liberalism opposes the criminalisation of conduct unless it causes “harm to others”. To maximise individual freedom, particularly the rights of autonomy and privacy, “self-harming” conduct should be immune from the criminal law. 51 While the criminalisation of self-administration of drugs may be difficult to justify within a liberal theoretical framework, the prohibition of dealing in drugs is less problematic. Trafficking, it is claimed, falls within the compass of the harm principle; it involves the exploitation of drug users (in Peter Alldridge’s terms, the moral analogue of blackmail) and therefore causes “harm to others”. However, as noted above, it remains difficult within a framework of prohibition to extrapolate the direct harms of drug use and supply from the indirect harms caused by prohibition, such as corruption and dangers to public health caused by an illicit market. As noted in Chapter 1 at [1.200] the elasticity of the harm principle significantly weakens its utility as either a guide for, or limit upon, criminalisation. Liberalism falters when it seeks to claim rights of autonomy on behalf of drug users. It is commonly noted that drug users, as a result of the damaging effects of habitual use over time, cease to exercise “free choice” in relation to consumption. Even those sympathetic to liberalism and the decriminalisation of drugs concede this point. In Not Just Deserts – A Republican Theory of Criminal Justice, republican theorists, John Braithwaite and Philip Pettit, generally reject the criminalisation of “consensual” crimes on the grounds that it diminishes liberty. 52 Using an example of a masochist who requests to be spanked by a prostitute, the authors point out that criminalisation is unjustified because the consensual nature of the “harm” means that the victim’s liberty-prospects have not been reduced. The authors concede however, that in relation to drug suppliers, this type of argument has less weight since “in the long term, addiction will reduce the dominion of the consensual victim”. 53 This suggests that some legal regulation may be justifiable. However, in light of republican theory’s commitment to minimal criminalisation (the principle of parsimony), the authors reject prohibition. Rather, they support a legal policy of decriminalisation that would place all potentially dangerous drugs within a doctor-patient-pharmacist framework. 54 Since republican theory is also concerned with the costs and counter-productive effects of prohibition, they note that decriminalisation would remove the substantial costs to individual 50 51 52 53 54

C Reynolds, Public Health Law in Australia (Sydney: Federation Press, 1995). For an extended analysis of the application of the harm principle to drug use, Criminal Law (Aldershot: Ashgate, 2000) pp 212–213. J Braithwaite and P Pettit, Not Just Deserts – A Republican Theory of Criminal Press, 1990) pp 97–99. J Braithwaite and P Pettit, Not Just Deserts – A Republican Theory of Criminal Press, 1990) p 97. J Braithwaite and P Pettit, Not Just Deserts – A Republican Theory of Criminal Press, 1990) p 98.

see P Alldridge, Relocating Justice (Oxford: Clarendon Justice (Oxford: Clarendon Justice (Oxford: Clarendon

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freedom at the surveillance, investigation and enforcement stages. 55 Braithwaite and Pettit nevertheless remain cautious about the strategy of decriminalisation. Rejecting the case for free availability of drugs such as heroin, they recognise that a regulatory legal framework governing supply and consumption would need to be coupled with a community education campaign, as with tobacco and alcohol, on the inherent hazards of using a particular drug. Drug reform has been delayed by the search for the “perfect” model for drug control. Prohibition remains entrenched, while a perpetual cycle of commissions and inquiries search for the answers to the drug problem. There is no assurance that the ideas of controlled supply sketched above would completely eliminate public health concerns and (notwithstanding economists’ predictions) that the illicit market in drugs would be displaced. As Stephen Mugford has observed, policy-makers and reformers should give up the illusory quest for perfection, contenting themselves with the “least bad solution to the drugs problem”. 56 At the heart of this strategy lies the concept of “harm minimisation”.

The case for free availability of drugs [14.25] Richard Miller’s The Case for Legalizing Drugs is a critical examination of prohibition and the “War Against Drugs” in the American context. Using historical, scientific and criminological material, Miller concluded that the claims made about the harmfulness of illicit drugs are unverified or routinely exaggerated. Like Desmond Manderson (see [14.70]), he identifies racism (against Chinese, Africans and Mexicans) as a significant factor in the criminalisation of drugs. He concludes that levels of use should be achieved by means other than law: “The law does not restrain people from destroying themselves; intelligence does. There is no reason to anticipate an epidemic of stupidity sweeping the land if illicit drugs are legalized.” 57 However, experience of other markets in pleasurable commodities such as alcohol, cannabis and gambling, suggests that freer increased availability does lead to increased and more problematic forms of use. 58

While the range and level of harm associated with illicit drugs are debatable, in comparative terms it is clear that lawful drugs pose a much greater threat to public health. Available data demonstrate that tobacco and alcohol use are responsible for the vast majority of drug-related deaths. By 2004-2005, the overall social costs of illicit drugs alone reached $8.19 billion, while tobacco costs reached almost $31.5 billion. 59 A recent analysis of these data offered the following estimates of the costs of licit drugs to Australian society: For tobacco smoking: In 2004–05, tobacco smoking cost an estimated $31.5 billion in tangible costs (healthcare, fires, lost

55 56 57 58 59

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J Braithwaite and P Pettit, Not Just Deserts – A Republican Theory of Criminal Justice (Oxford: Clarendon Press, 1990) p 98. S Mugford, “Least Bad Solutions to the ’Drugs Problem’” (1991) 10 Drug and Alcohol Review 401. R Miller, The Case for Legalizing Drugs (New York: Prager, 1991) p 143. See also D Manderson, “Metamorphoses: Clashing Symbols in the Social Construction of Drugs” (1995) 25 Journal of Drug Issues 799. See National Drug Strategy, The Costs of Tobacco, Alcohol and Illicit Drug Abuse to Australian Society in 2004/05 (Canberra: Commonwealth of Australia, 2008), http://www.nationaldrugstrategy.gov.au/internet/ drugstrategy/publishing.nsf/Content/mono64-l (cited 23 November 2016). [14.25]

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productivity) and intangible costs (pain and suffering). 15,512 deaths attributable to tobacco in Australia in 2003. 60 For alcohol use: In 2004–05, alcohol cost an estimated $15.3 billion. Costs included tangible (healthcare, road accidents and crime) and intangible costs (pain and suffering). The net death rate of alcohol for Australia in that year was nearly 1,100 deaths. 61

The cost burdens associated with illicit drugs were, relatively speaking, much smaller. In 2007, only 1.3% of deaths were attributable to use of illicit drug other than cannabis (there were no deaths from cannabis). 62 It is necessary to exercise some caution in the interpretation of these data, especially in relation to mortality rates associated with the use of illicit drugs. Empirical research suggests that the risk of overdose is increased by mixing opioids with other central nervous depressants such as alcohol. 63 Indeed, it may be that alcohol misuse and poly-drug use generally, rather than the potency and impurity of illicit drugs, may have a greater causal relationship to mortality rates in users. While drugs like opium, heroin, cocaine and cannabis are subject to coercive legal controls, other “domesticated”, yet potentially more dangerous, drugs are subject to minimal legal regulation. Reynolds rightly describes the present regulatory responses to drugs as “topsy turvy”. 64 Although tobacco and alcohol have been included within the National Drugs Strategy, the former Howard Government gave priority to its National Illicit Drugs Strategy, also known as “Tough on Drugs”. Launched in 1997, this program responded to community concerns about illicit drugs, particularly concerns about increased heroin use and overdoses. The strategy has resulted in significant increases in the level of resources available for drug law enforcement. While the Federal Government has not formally repudiated the strategy of “harm minimisation”, it has been placed within an “integrated framework” that seeks to reduce the drug supply and control demand through tough legal measures. It will be difficult (if not impossible) to realise the objectives of harm minimisation, discussed above, within a regulatory framework that aims to be “tough on drugs” and favours “zero tolerance”. 65 Abstinence is the ultimate goal of strict prohibition, whereas harm minimisation accepts that illicit drug use is inevitable and therefore favours a public health/medical model based on minimising or alleviating the harmful effects of both drug use and policies of strict law enforcement. Prior to the Howard Government coming to power in 1996, Australia’s National Drug Strategy had been regarded as one of the most progressive in the world, especially in relation to harm minimisation and its development of an integrated approach that encompassed both licit and illicit drugs. It appeared that the “War Against Drugs”, so favoured in the United 60

61

62 63 64 65

Australian Institute of Health and Welfare, Drugs in Australia 2010: Tobacco, Alcohol and Other Drugs, Drug Statistics Series No 27 (Canberra: AIHW, 2011) pp 11-16, http://www.aihw.gov.au/publication-detail/?id= 10737420497 (cited 23 November 2016). Australian Institute of Health and Welfare, Drugs in Australia 2010: Tobacco, Alcohol and Other Drugs, Drug Statistics Series No 27 (Canberra: AIHW, 2011) pp 30-36. Research suggests that accounting for social costs to individuals around the drinker (rather than just those affecting the drinker him or herself), the cost of alcohol use is higher than the above figures. Australian Institute of Health and Welfare, Drugs in Australia 2010: Tobacco, alcohol and other drugs, Drug Statistics Series No 27 (Canberra: AIHW, 2011) p 67. Australian Bureau of Criminal Intelligence, Australian Illicit Drug Report 1997–1998 (1996) p 43. C Reynolds, “Can We Make Sense of Drug Laws in Australia? A Case Study of the South Australian Legislation” (1995) 1 Flinders Journal of Law Reform 73 at 74. In the United States, the policy of zero tolerance to illicit drugs prevented the development of public health strategies based on harm minimisation for many years: E Drucker, “Drug Prohibition and Public Health: It’s A Crime” (1995) Australian and New Zealand Journal of Criminology 67 at 72. [14.25]

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States, had been abandoned in Australia by the mid-1990s. Researchers identified a “malaise” within the specialised law enforcement agencies responsible for illicit drugs regarding their role in fighting drugs within a policy based on harm minimisation. 66 With the change in national government in 1996, enthusiasm for using the criminal law as a tool for drug control significantly increased. This is due in part to the growing influence of “zero tolerance” at the national level, which legitimised the increased use of the criminal law against street-level drug use and dealing. 67 The disillusionment that drug offender rehabilitation was possible through conventional criminal justice interventions also led to experimentation with new forms of procedure and punishment. For example, to address the perceived ineffectiveness of traditional punishment options for drug offenders, specialised “drug courts” have been established in some jurisdictions, modelled on American initiatives, with broader powers to supervise the treatment of drug addiction with the ultimate goal of achieving abstinence.

Perspectives Drug Courts: The Rise of Therapeutic Justice [14.30] In 1998, New South Wales enacted legislation to formally constitute the first drug

courts in Australia. 68 A pilot scheme along similar lines was established in Queensland 69 and drug courts have also been set up in South Australia, Victoria and Western Australia. In Victoria, the court has been established on the basis of specific legislation. 70 Arie Freiberg has defined the drug court as “a court specifically designated to administer cases referred for judicially supervised drug treatment and rehabilitation within a jurisdiction”. 71 He suggests that there are significant differences between drug courts and traditional courts: “Whereas traditional courts focus on dispute resolution, drug courts focus on problem solving. Traditional courts seek legal outcomes while drug courts seek therapeutic outcomes. The differences are numerous: adversarial vs collaborative process; case orientation vs people orientation; rights-based vs interest—or needs-based; backward looking vs forward looking; judges as arbiters vs judges as coaches; precedent-based vs planning-based; individualistic vs inter-dependent; formal vs informal; legalistic vs common-sensical.” 72

Bearing in mind the sizeable number of drug prosecutions, it can be argued that conventional courts already function—in all but name—as drug courts. In many 66

67

68 69 70 71

72

S James and A Sutton, “Joining the War Against Drugs? Assessing Law Enforcement Approaches to Illicit Drug Control” in D Chappell and P Wilson (eds), Australian Policing—Contemporary Issues (2nd ed, Sydney: Butterworths, 1996) p 162. The consequential harms of these zero tolerance, US-influenced policing strategies were exposed in a study of heroin use in Sydney. The study revealed that this style of policing led to the displacement of crime to other areas and seriously undermined the effectiveness of public health strategies: L Maher, D Dixon, M Lynskey and W Hall, Running the Risks: Heroin, Health and Harm in South West Sydney, National Drug and Alcohol Research Centre Monograph No 38 (Sydney: National Drug and Alcohol Research Centre, University of New South Wales, 1998). The study is discussed in L Maher and D Dixon, “The Cost of Crackdowns: Policing Cabramatta’s Heroin Market” (2001) 13(1) Current Issues in Criminal Justice 5. Drug Court Act 1998 (NSW), s 3. Drug Rehabilitation (Court Diversion) Act 2000 (Qld). Sentencing Act 1991 (Vic), Div 2(1C), as amended by the Sentencing (Amendment) Act 2002 (Vic), s 5. A Freiberg, “Australian Drug Courts” (2000) 24 Criminal Law Journal 213 at 214. For a discussion of the theoretical foundations of drug courts, and the role of therapeutic and restorative justice ideas, see C Cappa, “The Social, Political and Theoretical Context of Drug Courts” (2006) 32 (1) Monash University Law Review 145. A Freiberg, “Australian Drug Courts” (2000) 24 Criminal Law Journal 213 at 222.

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jurisdictions, judges possess the powers to supervise drug offenders pre-trial through bail schemes and, post-conviction, through the imposition of conditional sentences. As Freiberg points out, the new “drug courts” established in New South Wales deal only with a very small proportion of drug-related offending. 73 While the instrumental impact of drug courts may be limited at present, they symbolise a significant shift in criminal justice philosophy towards the establishment of a “therapeutic juris-prudence”, in which the criminal law and its various institutions operate as agencies for healing offenders. This model has also informed the development of specialised courts to deal with mental health crime and domestic violence in the United States. But, as Freiberg observes, the concept of “therapeutic justice” has overtones of paternalism, with the potential to displace important interests such as the autonomy and other basic human rights of the offender. 74 The advent of drug courts has provided the template for new specialist courts in the United States for dealing with domestic violence, driving under the influence (DUI), neighbourhood courts, mental health courts, teen courts, juvenile drug courts and native drug courts. 75 In Chapter 1 at [1.70] – [1.80], we reviewed how an emphasis on rehabilitation can excessively pathologise offending, producing forms of “treatment” which are as degrading and punitive as more conventional (that is, retributivist) forms of punishment. 76 The growing commitment in drug policy to “zero tolerance” was most acutely symbolised by the late withdrawal of Commonwealth support for the Heroin Trial in 1997. The research trial, which was to be conducted initially in the Australian Capital Territory, would have involved heroin being prescribed and administered to a small group of users under medical supervision with a view to comparing heroin maintenance with other forms of treatment for opioid dependence such as methadone. The trial would have also examined the health and social impact (including involvement in criminal activity) of different types of treatment. Although the program of research had been approved by the Ministerial Council on Drug Strategy (comprising federal, State and Territory ministers responsible for health and law enforcement), the then Prime Minister, John Howard, vetoed the trial. Concern that the Heroin Trial would send the “wrong message” to the community about drugs was undoubtedly politically influential. Reflecting this significant shift in drug policy, the Commonwealth abandoned its “integrated” approach to public drug education—which included lawful dangerous drugs such as tobacco and alcohol—in favour of an anti-drug message that focused exclusively on illicit drugs. Although rejected in Australia, similar programs modelled on the Heroin Trial were subsequently implemented in the United Kingdom and Switzerland with marked improvements in the health of the users, significant reduction in crime rates and the rehabilitation of users back into mainstream society. 77 To borrow Russell Hogg and David Brown’s phrase, drug reform is peculiarly susceptible to an “uncivil politics of law and order”. 78 In 2007, with the change of Federal Government, 73 74 75 76

77 78

A Freiberg, “Australian Drug Courts” (2000) 24 Criminal Law Journal 213 at 227. A Freiberg, “Australian Drug Courts” (2000) 24 Criminal Law Journal 213 at 222. A Freiberg, “Australian Drug Courts” (2000) 24 Criminal Law Journal 213 at 235. There have been significant efforts, in Australia and elsewhere, to evaluate the impact of drug courts, compared with traditional court-based processes and outcomes. These studies are available from the Australian Institute of Criminology website: http://www.aic.gov.au/criminal_justice_system/courts/specialist/drugcourts.html (cited 23 November 2016). This comparative research is reviewed in Joint Select Committee into Safe Injection Rooms, Parliament of New South Wales, Report on the Establishment or Trial of Safe Injection Rooms (Sydney: 1998). R Hogg and D Brown, Rethinking Law and Order (Annandale: Pluto Press, 1998) Ch 1. [14.30]

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a political commitment was given to develop a stronger “evidence-based” approach to policy formation. The National Drug Strategy 2011-2015 is presently under review. A draft ten-year plan, called the National Drug Strategy 2016-2025, adopts an integrated approach to drugs (covering tobacco, alcohol and other drugs) based on the principles and policies of supply, demand and harm reduction, discussed above. Not only has the timeline of the strategy been extended from 5 to 10 years, the draft recognises the importance of developing tailored strategies to tackle specific drugs, such as “ice”. 79

Heroin—a brand you can trust? [14.35] Heroin (or diacetylmorphine) belongs to the opiate group of narcotic drugs. It was first synthesised from morphine in 1874 by a British scientist, but it was the German pharmaceutical company, Bayer, which patented and marketed the drug in 1898 as a cough suppressant under the brand name “Heroin”, to reflect its revitalizing effects. Between 1902 and 1913, Bayer sold between 700 kgs and 1 metric ton of heroin yearly, with more than half being exported to the United States. 80

Perspectives The Drug–Crime Nexus [14.40] Another widely held view is that drug use is implicated, directly or indirectly, in

non-drug-related criminal activity. Heroin, in particular, is associated with crime. Consider the claim made by the Australian Bureau of Criminal Intelligence (ABCI) in the Australian Illicit Drug Report 1995–1996 that: “The nature of heroin addiction is considered responsible for a large proportion of drug related crime, and contributes to social problems, as well as injuries and deaths related to overdosing.” 81

This is a common claim, though the ABCI report later concedes that the crime–drug nexus is difficult to establish since the motives for offending are many and varied, and many addicts have had criminal histories before commencing heroin use. 82 Research has explored the correlation between drug use and other crime extensively, but the direction, size and existence of a causal relationship is problematic. Later research has qualified earlier findings that illicit drug users were already engaged in crime, demonstrating that while drug use does not lead to an increased involvement in crime, it may increase the frequency of offending of addicts who are already involved in crime. 83 As one early study concluded, “the evidence suggests that heroin dependence exacerbates 79

80 81 82 83

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Draft National Drug Strategy 2016-2025, http://www.nationaldrugstrategy.gov.au/internet/drugstrategy/ Publishing.nsf/content/draftnds (cited 23 November 2016); see Council of Australian Governments (COAG), National Ice Action Strategy (2015) p 23, http://www.coag.gov.au/node/529#5 (cited 18 November 2016). L Paoli, V Greenfield and P Reuter, The World Heroin Market—Can Supply be Cut? (Oxford: Oxford University Press, 2009) p 17. Australian Bureau of Criminal Intelligence, Australian Illicit Drug Report 1995–1996 (1996) p 3. Australian Bureau of Criminal Intelligence, Australian Illicit Drug Report 1995–1996 (1996) p 12. The research is reviewed in T Makkai and J Payne, Drugs and Crime: A Study of Incarcerated Male Offenders, Australian Institute of Criminology: Research and Public Policy Series No 52 (Canberra: Australian Institute of Criminology, 2003) Ch 1. [14.35]

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offending among those already committing crimes, rather than actually causing a law-abiding person to turn to a life of crime”. 84 The findings of the Drug Use Monitoring in Australia (DUMA) project, over two decades, reveal a link between illicit drugs and the commission of other crimes. DUMA conducted screening for substance use (alcohol and other drugs) of detainees for various offences (violence/property/drug/road traffic/DUI etc.) across the country, at several sites. The data are gathered through the voluntary provision of a urine sample and an interviewer-assisted self-report survey. The most recent DUMA data, for the period of July 2013 to December 2014, reveal that a majority of the detainees tested positive for some illicit drug use (73%), with cannabis being the most common. Even narrowing the category of illicit drug tested, more than half of the arrestees (54%) tested positive for “any drug other than cannabis”. Of course, testing positive need not have any causal bearing on the commission of the offence, though DUMA supplemented urine analysis with self-report data, which revealed the following: “Nearly half of all detainees (45%; n=1,523) stated that substance use was a contributing factor in their current police detention; Detainees reported drug or alcohol attribution at the following rates, in descending order: • DUI (69%; n=56); • drug (54%; n=164); • disorder (52%; n=129); • violent (46%; n=447); • breach (43%; n=384); • property (41%; n=286); and • traffic (25%; n=42).” 85

The prevalence of substance-use among those detained by police may be explained in a number of ways. The wide use of cannabis may be attributed to its tendency to be used by younger persons, a group which is disproportionately subject to police attention. The phenomenon of over-policing of young people and minorities is further explored in Chapter 13, [13.175] in the context of the disproportionate use of public order offences against Indigenous youth. These data also have implications for the welfare of potentially intoxicated suspects in custody in Chapter 13 [13.120], as well as the relevance of intoxication to the denial of criminal responsibility explored in Chapter 4, [4.155]. It is important not to overstate the prevalence of positive drug testing among detainees. Empirical research, based on surveys of detainees, legal aid solicitors and community correction officers, suggests that the correlation between drug use, property offences and violent crime may be weaker than commonly claimed. 86 Toni Makkai concludes that the available data based on self-reporting suggest that less than half of drug users commit crime to support their habit, though the real figure is probably closer to a quarter or one third. 87 She concludes that “[d]rug use may be a major factor for some property 84 85 86 87

Queensland Criminal Justice Commission, Residential Burglary in Queensland, Research Paper Series, Vol 3(1) (1996). National DUMA Summary 2013–14, Linking Drugs and Crime: http://www.aic.gov.au/publications/ current%20series/mr/21-40/mr27/06_national-summary.html (cited 23 November 2016). T Makkai, “Drugs and Property Crime” in Australian Illicit Drug Report 1997–1998 (Canberra: Australian Bureau of Criminal Intelligence, 1999) Ch 8. T Makkai, “Drugs and Property Crime” in Australian Illicit Drug Report 1997–1998 (Canberra: Australian Bureau of Criminal Intelligence, 1999) p 112. [14.40]

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offenders, but it is not a factor for others”. 88 The correlation is weaker for violent offenders. Drawing on a survey of over 2,000 male prisoners in Australia, another study concluded that “there is little support for the hypothesis that offenders are forced into a life of crime by their illegal drug use”. 89 That study found that the total proportion of offenders who causally attributed their current most serious offence to illegal drugs or alcohol was 39% (18% to illegal drugs, 9% to alcohol and 12% to both illegal drugs and alcohol). 90 More generally, we must be cautious about drawing implications from research that focuses on prisoner or “captive” populations. Other qualitative studies of drug use have focused on users who have not come to the attention of the criminal justice system, revealing a different image of the lifestyle and effects of illicit drug use. “Recreational users” are less crime-prone and have much higher levels of social integration and organisation. 91 As the Australian Illicit Drug Report 2001–02 conceded more than a decade ago: Two separate cocaine markets exist: the highly visible intravenous users who are more likely to come into contact with police, and the higher socio-economic sector recreational users who police seldom encounter … as their involvement in other crimes to support their cocaine use is low. 92

Stephen Mugford’s studies on cocaine demonstrate that the majority of users were able to manage the drug, the serious dangers attached to its use being contained and managed. 93 The users of cocaine are “young, educated, individualists engaged in a peer orientated pattern of non-work activity in which partying looms large”. 94 Rather than focus on medical, legal or criminological explanations of drug use, this research raises questions about the role of leisure and entertainment in contemporary society. The regulatory implications of re-conceptualising drugs as “pleasurable commodities” are discussed at [14.45]. When this research on non-captive or non-detainee populations is taken into account, the drug-crime nexus looks more tenuous. Empirical research, while usefully challenging widely held myths about drugs, has primarily been concerned with measuring “deficits”. Researchers have focused on exploring the commonalities between users of drugs, rather

88

92 93 94

T Makkai, “Drugs and Property Crime” in Australian Illicit Drug Report 1997–1998 (Canberra: Australian Bureau of Criminal Intelligence, 1999) p 112. T Makkai and J Payne, “Drugs and Crime: A Study of Incarcerated Male Offenders”, Australian Institute of Criminology: Research and Public Policy Series No 52 (Canberra: Australian Institute of Criminology, 2003) p 161. T Makkai and J Payne, “Drugs and Crime: A Study of Incarcerated Male Offenders” Australian Institute of Criminology: Research and Public Policy Series No 52 (Canberra: Australian Institute of Criminology, 2003) p xviii. S Mugford, “Controlled Drug Use Among Recreational Users: Sociological Perspectives” in N Heather, W Miller and J Greeley (eds), Self Control and the Addictive Behaviours (Sydney: Maxwell Macmillan, 1991) Ch 8. Researchers have identified communities of “drug enthusiasts” who consume drugs heavily and organise their lives around drug use, but do not conform to the pathological or “deficit model” of drug addiction: P Dance and S Mugford, “The St. Oswald’s Day Celebrations: ’Carnival’ versus ’Sobriety’ in an Australian Drug Enthusiast Group” (1992) 22(3) Journal of Drug Issues 591. Australian Crime Commission, Australian Illicit Drug Report 2001–02 (2003) pp 95–96. S Mugford, “Recreational Cocaine Use in Three Australian Cities” (1994) 2 Addiction Research 95. S Mugford, “Recreational Cocaine Use in Three Australian Cities” (1994) 2 Addiction Research 95 at 108.

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than on the diverse settings within which drug use, both licit and illicit, occurs. As Phyll Dance and Mugford have pointed out, deficit studies can grossly distort our “knowledge” of drugs and their users: “Such discussions usually centre upon psychological variables (eg poor impulse control), social-psychological contexts (eg lack of family integration) or socio-economic matters (eg lack of jobs, crime as source of revenue). In so doing, the historical and cultural context of drug use, and the meanings that are created and sustained by users, vanishes.” 95

In the next two sections, we offer some sociological, historical and cultural perspectives on drugs, users and the battery of laws that have been enacted to control them.

Socio-Historical Perspectives on Drug Offences History does not just provide a much-needed grounding for the contemporary debate on the future of the international drug control regime. It also offers a largely unexploited inventory of policy experiments and potential alternatives to the current regime. 96 [14.45] It is important to recognise that the prohibition of certain drugs did not occur as a

response to the perceived risk of addiction or dangers to public health. Mugford has observed that the status of a particular drug as licit or illicit has more to do with a range of economic, political and cultural factors than a rational appraisal of its potential harm. 97 Legal discussion of drug offences, including options for reform, often proceeds without appreciation of the historical forces that have shaped Australia’s drug laws. Such historical myopia is unfortunate. A historical analysis is vital for revealing the political, economic and social forces, as well as powerful and enduring cultural myths, that impinge on the process of criminalisation. From a historical perspective, the philosophies of welfare and liberalism relating to public health or harm prevention do not provide an adequate explanation for the development of drug laws in Australia, or indeed any other jurisdiction. As Desmond Manderson noted in his classic study, From Mr Sin to Mr Big—A History of Australian Drug Laws: “There is no simple or overarching reason for the development of drug laws in Australia. But there is one clear message: no matter what we are told, ‘drug laws’ have not been about health or addiction at all. They have been an expression of bigotry, class, and deep-rooted social fears, a function of Australia’s international subservience to other powers, and a field in which politicians and bureaucrats have sought power. Drugs have been the subject of our laws, but not their object.” 98

In recent years, it is undeniable that medical discourse has assumed the dominant role in shaping our knowledge of drugs and legal responses to the “drug problem”. It is impossible now to dismiss the harmful health and social effects of drugs. However, the concept of drug addiction and dependence may lead policy-makers to an excessive focus on clinical intervention and treatment as the appropriate regulatory solution.

95 96 97 98

P Dance and S Mugford, “The St. Oswald’s Day Celebrations: ’Carnival’ versus ’Sobriety’ in an Australian Drug Enthusiast Group” (1992) 22(3) Journal of Drug Issues 591 at 603. L Paoli, V Greenfield and P Reuter, The World Heroin Market – Can Supply by Cut? (Oxford: Oxford University Press, 2009) p 250. S Mugford, “Policing of Euphoria: The Politics and Pragmatics of Drug Control” in P Moir and H Eijkman (eds), Policing Australia: Old Issues, New Perspectives (South Melbourne: Macmillan, 1992) p 183. D Manderson, From Mr Sin to Mr Big—A History of Australian Drug Laws (Melbourne: Oxford University Press, 1993) p 12. [14.45]

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Mugford pointed out that a wider “social historical” perspective on drugs reveals that medical and legal discourses are not the only ways of controlling drugs. 99 Drug use, when understood as a social practice, has had different meanings at different times. Through history and across different cultures the consumption of intoxicating substances, rather than being an aberrant feature, reflects the central values of a society. In modern Western societies, Mugford suggests that drugs may be better understood in terms of the commodification of pleasure and the pleasure of commodities. 100 The pursuit of pleasure by means of illegal drugs is prohibited because of the perceived threats to decorum and social order. Mugford represents this tension as a conflict between the Protestant work ethic and the hedonist ethic. 101 In later work, this tension is understood in terms of a struggle over the body, between the classical body (ordered, closed, unambiguous and seemly) and the grotesque body (open, ambiguous, disorderly and flagrant). 102 Such an approach exposes the historical and cultural specificity of prohibition and how particular drugs are condemned, while others are legitimated. Mugford’s research also highlights neglected insights on regulating drugs, such as the centrality of pleasure and commodification. This approach may yield practical benefits, since it allows policy-makers, law-makers and regulators to reconceptualise the “drug problem” in terms of the regulation of a market for pleasurable commodities. This regulatory approach would be similar to that adopted for other social activities for which there is strong public demand yet simultaneously pose dangers to the community, such as prostitution, pornography and gambling. Clearly, a wider range of regulatory strategies should be considered that do not depend on pathologising drug use and viewing medical treatment as the only appropriate regulatory intervention. Within this regulatory framework, the State (though not necessarily the criminal law) would play a significant role in the regulation of pleasurable commodities. Any regulatory framework that proposes to make the use of intoxicating substances lawful raises concern about the visibility of drug use and the potential for public nuisance. Recent moves to legalise recreational use and licence and regulate the production and commercial sale of lawful cannabis in some jurisdictions (Colorado and Washington) in the United States in 2013 have not led to surges in crime, public order or violence, though an increase in driving while “stoned” has been reported. 103 Thirty years ago, Ian Leader-Elliot recognised that some drug reform (such as opioid maintenance schemes) would present problems of “urban aesthetics” for many communities. 104 He concluded that the lawful supply of opiates under supervision would invariably raise the prospect of the social congregation of users with attendant risks of public nuisance and disorder: “More permissive regimes of control may also intensify problems of urban aesthetics. When users are not punished, and attempts to drive them underground are abandoned, the undesirable effects of 99 100 101 102 103

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S Mugford, “Controlled Drug Use among Recreational Users: Sociological Perspectives” in N Heather, W Miller and J Greeley (eds), Self Control and the Addictive Behaviours (Sydney: Macmillan, 1991). S Mugford, “Controlled Drug Use among Recreational Users: Sociological Perspectives” in N Heather, W Miller and J Greeley (eds), Self Control and the Addictive Behaviours (Sydney: Macmillan, 1991) p 255. S Mugford, “Controlled Drug Use among Recreational Users: Sociological Perspectives” in N Heather, W Miller and J Greeley (eds), Self Control and the Addictive Behaviours (Sydney: Macmillan, 1991) p 258. S Mugford, “Policing of Euphoria: The Politics and Pragmatics of Drug Control” in P Moir and H Eijkman (eds), Policing Australia: Old Issues, New Perspectives (Sydney: Macmillan, 1992) p 200. J Healy, “After 5 Months of Sales, Colorado Sees the Downside of a Legal High”, New York Times (online), 31 May 2014, http://www.nytimes.com/2014/06/01/us/after-5-months-of-sales-colorado-sees-the-downsideof-a-legal-high.html (cited 23 November 2016). I Leader-Elliot, “Prohibitions Against Heroin Use: Can They Be Justified?” (1986) 19 Australian and New Zealand Journal of Criminology 225. [14.45]

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recreational opiate use may be even more visible than they are now. For many, the spectacle is offensive. One would add, however, that Australians are not unused to viewing the degrading spectacle of public intoxication and appallingly primitive and disorganized methods of purveying liquor.” 105

Cultural Perspectives on Drug Laws and the “War Against Drugs” [14.50] When examining drug law and policies, it is important to appreciate the power of

symbolism and mythology in constructing our knowledge of drugs and their users. The imagery and symbolism around drugs and users are historically contingent. 106 In the 19th century, moral and political campaigns to criminalise drug use were directed specifically to the “Chinese vice” of opium-smoking. In the modern era, the threats posed by drugs are now personified by the “disease-ridden and crime-prone” and the “Mr Bigs” of organised crime. Similarly potent imagery has developed around drug law enforcement where the dominant metaphor is that the international and domestic community is engaged in a “War Against Drugs”. 107 In times of war, “extraordinary measures” are needed, and the suspension of fundamental rights is justifiable. The metaphorical “War Against Drugs” has produced draconian offences against trafficking and money laundering, and the reintroduction of forfeiture laws to prevent participants in drug dealing profiting from their crime. From a law enforcement perspective, drugs have empowered new investigative agencies with national and international jurisdiction (such as the Australian Criminal Intelligence Commission). They have also justified the use of intrusive investigative powers, such as electronic surveillance and police entrapment, which is discussed at [14.210]ff. Deviation from normal investigative methods is tolerated by the courts and condoned by the legislature as necessary measures to fight the “War Against Drugs”. Legislation has provided legal authority for electronic surveillance and “controlled operations” in which police and their informers can participate in the illegal importation and supply of drugs. When the system regulating warrants for telecommunications interception for law enforcement purposes was introduced in 1979, it was initially restricted to federal police involved in the investigation of “serious narcotic offences”. The trend over the following three decades has been firmly in favour of the “normalisation” of these exceptional investigative powers. The range of offences for which interception may now be authorised under the Telecommunications (Interception and Access) Act 1979 (Cth) has been extended to include serious offences against the person, computer and property offences, tax evasion and, more recently, terrorism, organised crime, cybercrime and child pornography offences. The powers have also been extended to State and Territory police, and specialised investigative agencies such as the Australian Criminal Intelligence Commission. Electronic surveillance, like emergency legislation adopted to combat terrorism, was initially tolerated as an exceptional measure for designated offences not amenable to ordinary investigative techniques. But once adopted, these exceptional powers have become an accepted and, in due course, an indispensable 105 106 107

I Leader-Elliot, “Prohibitions Against Heroin Use: Can They Be Justified?” (1986) 19 Australian and New Zealand Journal of Criminology 225 at 244–245. D Manderson, “Metamorphoses: Clashing Symbols in the Social Construction of Drugs” (1995) 25 Journal of Drug Issues 799. S James and A Sutton, “Joining the War Against Drugs? Assessing Law Enforcement Approaches to Illicit Drug Control” in D Chappell and P Wilson (eds), Australian Policing—Contemporary Issues (2nd ed, Sydney: Butterworths, 1996); W Morrison, “Modernity, Knowledge and the Criminalisation of Drug Usage” in I Loveland (ed), Frontiers of Criminality (London: Sweet and Maxwell, 1995); P O’Malley and S Mugford, “The Demand for Intoxicating Commodities: Implications for the “War on Drugs”” (1991) 18(4) Social Justice 49 at 50. [14.50]

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feature of the Australian criminal justice system. 108 It would seem that drug law, both in relation to investigation as well as procedure, has been an area of unrestrained legal experimentation.

Perspectives Drug Law Enforcement: Policing the Streets, Not the Suites! [14.55] The legal powers to assist drug law enforcement are not confined to those

conferred by specialised drug legislation. Public order laws, including stop and search and move-on powers, have been enlisted in the “War Against Drugs”. The shift of focus in drug law enforcement towards street-level dealers and users was reflected in the 2001 amendments to the Summary Offences Act 1988 (NSW), which permitted directions to be issued against persons suspected of participating in street-level drug dealing. These powers are now found in Pt 14 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), which expanded the scope of these directions powers. 109 This policy of aggressive “in-your-face policing” combines police use of powers to demand name and address, stop and search for weapons, and directions to move on. 110 The aim of these amendments was to bolster zero-tolerance policing around drug “hot spots”. The police are empowered by s 197 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) to issue “reasonable directions” to suspected dealers and users, and there have been instances where the powers have been used by police to exclude users from particular areas for specified periods (see Chapter 13, [13.100]), though there is a danger that such wide restrictions may prevent users from accessing drug treatment facilities. The emergence of this assertive “zero tolerance” style of policing on the streets is designed to deter drug dealing in public, though it may frustrate public health initiatives and programs based on harm reduction. In the same year as the 2001 reforms, New South Wales significantly modified ordinary search and strip powers to target drug dealing. The Police Powers (Internally Concealed Drugs) Act 2001 (NSW) gave police the power to detain and search a person who is suspected to have swallowed drugs to conceal evidence of a supply offence. 111 The person detained did not need to be under arrest. 112 A suspect may consent to such a search being carried out, or in the absence of consent, if the person is aged between 10–18 years, or the 108

109 110 111

112

S Bronitt, “Electronic Surveillance, Human Rights and Criminal Justice” (1997) Vol 3(2) Australian Journal of Human Rights 183 at 189. See also S Bronitt and J Stellios, “Regulating Telecommunications Interception and Access in the 21st Century: Technological Evolution or Legal Revolution?” (2007) 24(4) Prometheus 413 for more discussion on the 2006 Commonwealth reforms which expanded telecommunications interception powers. The general background to these powers to deal with minor public nuisances and disorder are reviewed in Chapter 13, [13.105]. See Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Pt 3 (Powers to require identity to be disclosed); Pt 4 (Search and seizure powers without warrant); Pt 14 (Powers to give directions). Police Powers (Internally Concealed Drugs) Act 2001 (NSW), s 8 (now repealed). These powers, in a modified form, now exist under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 21 and 21A, which do not permit internal searches. However, under s 21A, they do permit police to request a person to open their mouth or shake, or otherwise move, their hair if there is a reasonable suspicion of concealment in these areas of, amongst other things, a prohibited plant or drug. Police Powers (Internally Concealed Drugs) Act 2001 (NSW), s 8 (now repealed); cf Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 21, which similarly allows for searches without warrants upon reasonable suspicion of stolen, dangerous or prohibited goods.

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person is otherwise incapable of giving informed consent, a court order from an eligible judicial officer allows an internal search to be conducted. 113 While in operation between 2001 and 2005, the powers under the Act were exercised rarely. 114 A review of this Act by the New South Wales Ombudsman connected their lack of use partly to the dispute between police and designated hospitals over who was to perform the role of retrieving evidence from faecal matter. 115 This highly intrusive method of searching a suspect exists on a federal level in relation to imported drugs. 116 However, as it was noted by the New South Wales Ombudsman’s discussion paper, the quantity of drugs likely to be uncovered at street level is substantially less than what is likely to be uncovered at a federal level. 117 This leads to the conclusion that these extraordinary measures, which violate human dignity, are likely to inadvertently target those “low level” suspected traffickers, instead of the “Mr Bigs” of the drug industry. The high operative costs of conducting such searches is also noted as being substantially more than the quantity of drugs likely to be uncovered at street level, and thus a likely reason for police not using these powers as frequently as anticipated. 118 Other legislative amendments in New South Wales confer upon police the power to use dogs for drug detection without a warrant, 119 the power to set up checkpoints, 120 stop vehicles, 121 and use drug detection dogs in specified “border areas” where police have a warrant. 122 In Tasmania, search and seizure by police officers without a warrant is legal where police have a “reasonable belief” that a drug offence is being committed. 123

113

Police Powers (Internally Concealed Drugs) Act 2001 (NSW), s 7 (now repealed).

114

Note that this Act was repealed on 1 December 2005—the powers under this Act to conduct internal searches were transferred to the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Pt 11, Div 3. This division was subsequently repealed on 17 December 2007 by the Law Enforcement (Powers and Responsibilities) Amendment Act 2007 (NSW) and, as such, New South Wales police officers may no longer conduct internal searches. NSW Ombudsman, The Police Powers (Internally Concealed Drugs) Act 2001, Discussion Paper (June 2004) p 9, and Report (July 2005). The latter report recommended that the intrusive powers were not meeting their objectives, and that Parliament should consider whether the Act should remain in force. Customs Act 1901 (Cth), Pt XII, Div 1B, Subdiv C. NSW Ombudsman, The Police Powers (Internally Concealed Drugs) Act 2001, Discussion Paper (June 2004) p 12. NSW Ombudsman, The Police Powers (Internally Concealed Drugs) Act 2001, Discussion Paper (June 2004) pp 15–16. This power was introduced by the Police Powers (Drug Detection Dogs) Act 2001 (NSW). This legislation was repealed on 1 December 2005, and the power was transferred to the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Pt 11, Div 2, where it is currently in force. Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 37. Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 36. Police Powers (Drug Detection Trial) Act 2003 (NSW). Note that this Act expired on 23 August 2008. The power to use drug detection dogs is now found in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Pt 11, Div 2. Misuse of Drugs Act 2001 (Tas), s 29.

115

116 117 118 119

120 121 122

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[14.60] Criminal justice scholars often represent the “War Against Drugs” as a struggle

between legality and crime control. As Francis Allen, a leading American legal scholar of criminal justice, observed, the true casualty of this war is the rule of law: “The war on drugs has contributed importantly to the environment in which the rule of law functions today. Any rational appraisal of the war on drugs as it has emerged in the last decade and a half must focus in large measure on the cost of present drug policy. One category of costs largely neglected in modern political discourse is that resulting in debilitation of the legality ideal, and the weakening of the habits of legality.” 124

Illicit drugs represent a threat not only to users or the community, but to the integrity of the criminal justice system. As explored in Chapter 2, the rule of law performs an important symbolic and ideological function within liberal democracies. Within the criminal justice system, legality and fairness limit the power of the State to censure and punish individuals. As such, it is an important source of political legitimacy for the criminal law. Liberal scholars of criminal justice such as Allen conceive criminal justice as a balance between two competing models: crime control versus due process. 125 Like Herbert Packer’s influential two models of criminal justice, the crisis of criminal justice is that the system’s equilibrium is becoming unbalanced in favour of crime control. 126 Critical scholars, such as Doreen McBarnet, would reject this dichotomised approach to criminal justice implicit within most liberal scholarship. In her view, the concepts of legality and fairness rarely stand in the way of conviction. Rather than restraining crime control, she concludes that “due process is for crime control”. 127 It is not that the police, prosecutors and judges collude in deviation from principles of legality and fairness, but rather that the law itself licenses this deviation. Drug offences and the specialised investigative methods employed to detect them provide many illustrations where the rhetoric of legality and fairness not only fails to be realised, but in fact serves the interests of the State.

The significance of culture: drug, mindset and setting [14.65] The effects and dangers of drugs are contingent on the nature of the drug, the expectations or mindset of the user, and the setting within which consumption takes place. 128 The setting and mindset may dramatically differ for the same drug. Stephen Mugford’s research on “crack” and cocaine revealed that although these two substances are identical chemical compounds, the setting for use and the mindset of the users are very different: “Despite the common chemical structure, the drugs are understood and used differently with different outcomes”. 129 Unlike junkies addicted to “crack”, recreational users of cocaine conform to a different socio-economic profile—young, single, urban, moderate in education and income, secular and non-traditional. 130 Mugford’s socio-historical approach to drugs cautions against simplistic caricatures of drugs or their user for guiding legal regulation and drug policy, highlighting that a single drug may have many and varied meanings and uses, and that these may change over time. 131

124 125 126 127 128 129 130

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F Allen, The Habits of Legality (New York: Oxford University Press, 1996) p 39. F Allen, The Habits of Legality (New York: Oxford University Press, 1996) pp 38–41. H Packer, The Limits of the Criminal Sanction (Stanford, CA: Stanford University Press, 1968). D McBarnet, Conviction: Law, The State and the Construction of Justice (London: Macmillan Press, 1981) pp 155–156. N Zinberg, Drug, Set and Setting: The Basis for Controlled Intoxicant Use (New Haven, CT: Yale University Press, 1984). S Mugford, “Studies in the Natural History of Cocaine Use—Theoretical Afterword” (1994) 2(1) Addiction Research 127 at 130. S Mugford, “Studies in the Natural History of Cocaine Use—Theoretical Afterword” (1994) 2(1) Addiction Research 127 at 131. [14.60]

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The History of Drug Law in Australia [14.70] Until relatively recently, the history of drug law in Australia has been largely

neglected. Researchers have tended to adopt the subservient view that the history of drugs in Australia was similar to that of the United Kingdom and United States, though “necessarily briefer and less complex”. 132 This historical blind-spot was rectified by Desmond Manderson’s book, From Mr Sin to Mr Big—A History of Australian Drug Laws. This lively historical account explores the multitude of domestic and international forces shaping drug laws in Australia during the late 19th century and early 20th century. Manderson locates the impetus for criminalisation of drugs in a complex interaction of factors that include racism, the rise of the medical profession, bureaucratic attitudes, the pressure of the international community, the emergence of a drug mythology, and political convenience. 133 In the first two chapters, Manderson examines how the first wave of opiate prohibition was the product of racism directed toward the “Chinese vice” of opium-smoking and religious moralism in the form of temperance crusades. At this time, Australia was at the forefront of drug regulation. Some of the early Australian prohibitions on the supply and use of opiates predated laws in Britain and the United States. The early prohibitions in Australia were directed to local concerns. For example, the first drug laws in Australia prohibited the supply of “any opium to aboriginal natives of Australia or half caste of that race except for medicinal purposes”. 134 While formally neutral, this Act was in fact directed against the Chinese customary usage of opium as a means of barter and exchange. The Act was the product of xenophobia, economic protectionism and paternalism toward Aboriginal people. It is important to appreciate that the restrictions on dealing in opiates were directed only to opium suitable for smoking and did not restrict its widespread medicinal use. These early laws distinguished between the vice of opium-smoking and the ingestion of opiates in the form of patent and proprietary medicines. These medicines (few of which actually were patented) were often simply pure alcohol or opiate preparations. As Manderson points out, the consumption of patent medicines was widespread with Australia having the largest per capita levels of consumption in the world at the turn of the century. 135 The general public only became aware of the opiate content of the “secret ingredients” in patent medicines through a New South Wales Royal Commission into Secret Drugs, Cures and Foods in 1905. The exposé by the Commission, rather than leading to prohibition or tighter control over medicinal opiates, simply led to the introduction of Commonwealth laws requiring accurate labelling of contents for medicines. The patent medicine industry, from which newspapers generated huge profits through advertising revenues, continued to flourish with minimal restrictions. The prohibition on the supply of opium to Aboriginal natives in Queensland was eventually extended to the general population. Although the prohibition on opiates purported to have 131 132

133 134 135

S Mugford, “Controlled Drug Use Among Recreational Users: Sociological Perspectives” in N Heather, W Miller and J Greeley (eds), Self Control and the Addictive Behaviours (Sydney: Macmillan, 1991). J Krivanek, Heroin—Myths and Reality (Sydney: Allen and Unwin, 1988) p 32. For an excellent history of the development of the international drug control regime that draws out the lessons for differing policy options, see L Paoli, V Greenfield and P Reuter, The World Heroin Market – Can Supply by Cut? (Oxford: Oxford University Press, 2009) Ch 2. D Manderson, From Mr Sin to Mr Big—A History of Australian Drug Laws (Melbourne: Oxford University Press, 1993) p 11. Sale and Use of Poisons Act 1891 (Qld). D Manderson, From Mr Sin to Mr Big—A History of Australian Drug Laws (Melbourne: Oxford University Press, 1993) p 53. [14.70]

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general application, enforcement policies continued to focus on the problem of intoxication and drug abuse within Aboriginal communities. Even though opium-smoking by the Chinese community was reviled in the general community, the prohibition was only loosely enforced against them. Rather than implement the prohibition as legislation dictated, police and customs officials operated an administrative regime for licensing and taxing the supply of non-medicinal opium until the end of the century. 136 Such pragmatic strategies resonate with the regulatory policies of decriminalisation that have been adopted for some “recreational drugs”, such as cannabis. Drug law developed its modern character in the latter half of the 20th century. The offences have quickly proliferated beyond possession, use and supply, to a wider range of trafficking and drug-related activities, such as money laundering. It was not until the 1970s that the extremely high penalties (such as life imprisonment) for drug offences were adopted, and offence and penalty provisions began to distinguish between personal use and commercial dealing. The explosion in legislative activity in the 1970s, supported by numerous Royal Commissions and official inquiries into illicit drugs, 137 coincided with a moral panic about drugs and the corruption of Australian youth. Chris Reynolds summarised the social forces promoting legislative activity during the 1970s and 1980s as follows: “This legislative flurry seemed to be a product of the wider social event of the time, the Vietnam War, fear about the rebelliousness of youth and the ‘pop’ culture all combined with drugs to make a high profile issue of concern. The laws were populist responses, designed to protect Australia’s youth from the outside influences of dangerous drugs and ideas.” 138

This historical survey of the formation of drug laws in Australia highlights the danger of an over-reliance on formal legal sources such as legislation to understand the purpose, operation and effects of the criminal law. Lifeless statutes provide only a partial account of the complex process of criminalisation. Legal history clearly plays a vital role in revealing the social, economic and political forces that have shaped, and continue to shape, the development of drug law in Australia.

The discovery of addiction and the creation of the disease model [14.75] Harry Levine explores the discovery of addiction, and the changing societal attitudes toward intoxication through drugs in “The Discovery of Addiction: Changing Conceptions of Habitual Drunkenness in America” (1978) 39(1) Journal of Studies on Alcohol 143. Levine traces how the concept of drug and alcohol “addiction” as a disease emerged in the late 19th century. The medical profession conceptualised drug use as a progressive disease, the principal symptom of addiction being the loss of control over usage which could only be cured by abstinence. A similar process was applied to the discovery of alcohol addiction, which generated new laws and powers for dealing with habitual drunkenness: see Chapter 13, [13.120]. The medicalisation of drug use is consistent with Michel Foucault’s identification of the “clinical gaze”. 139 Diagnosing social as well as biological diseases empowered medical science and the medical profession as the appropriate disciplinary authority over drug users. Levine concluded that the concept of addiction should be understood not as an independent 136

138 139

D Manderson, From Mr Sin to Mr Big—A History of Australian Drug Laws (Melbourne: Oxford University Press, 1993) p 34. The Royal Commissions held in Australia between 1977–1980 symbolised official and community anxiety about the growth of illicit drug use: D Manderson, From Mr Sin to Mr Big (Melbourne: Oxford University Press, 1993) p 170. These early Royal Commissions played a significant role in reshaping attitudes toward drugs, particularly in solidifying the distinction between users (who required treatment) and traffickers. C Reynolds, Public Health Law in Australia (Sydney: Federation Press, 1995) p 204. M Foucault, The Birth of the Clinic (New York: Vintage Press, 1975).

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medical or scientific discovery but rather “as part of a transformation in social thought grounded in fundamental changes in social life—in the structure of society”. 140 The medical model remains highly influential in regulatory strategies based on harm minimisation, supporting treatment in the form of methadone programs, and scientific research such as the Heroin Trial.

Perspectives Drugs in the United Kingdom, United States and Australia [14.80] More than any other area of the criminal law, drug law has been influenced by

political pressure from powerful individual nations, such as the United States, and the wider international community. The following comparative history of drug law relies heavily on Jara Krivanek’s Heroin—Myths and Reality. 141 As Krivanek points out, the first nation to become concerned about opiate misuse was China, reacting to concerns about the high level of imports from India by the British East India Company. Opium for non-medicinal use was outlawed in China in 1726, primarily for economic reasons. In an attempt to preserve this trading arrangement, whereby valuable tea, silk and spice were exchanged for opium, the United Kingdom was ultimately prepared to use force (the so-called “Opium Wars”) to protect their interests. The domestic acceptability of opium began to change in the 19th century with the emergence of temperance movements, such as the Society for the Suppression of Opium Trade established by Quakers in 1874. The prohibition movement was aided by the medical profession, which, from the 1870s onwards, viewed habitual non-medicinal drug use as a disease—“addiction”. By pathologising drug use, the medical profession gained control over drug users and entrenched its monopoly over the use of narcotic drugs for medicinal purposes. 142 As early as 1895, a Royal Commission on Opium took the view that drug addiction was a disease requiring medical treatment. Indeed, the problematic aspects of drug use were reflected in the belief that addiction caused mental infirmity and, sometimes, insanity. Moreover, the Mental Deficiency Act 1913 (UK) was extended to “intoxicants”, who were defined as addicts of sedatives, narcotics and stimulant drugs. This Act allowed for the detention of “moral imbeciles” in asylums or the appointment of guardians. The United Kingdom ratified the Hague Convention in 1912, an international treaty that aimed to bring about the gradual suppression of the “abuse of drugs”, specifically opium, morphine and cocaine. Significantly, the Convention’s definition of drug abuse excluded the medical use of drugs. Medical control over drug use was further entrenched by an official inquiry into drugs conducted by the Rolleston Committee in 1924. This Committee, comprised entirely of medics, concluded that drug addiction should be viewed primarily as a disease rather than as a vice: “The taking of a narcotic drug of addiction for 140 141 142

H Levine, “The Discovery of Addiction: Changing Conceptions of Habitual Drunkenness in America” (1978) 39(1) Journal of Studies on Alcohol 143 at 165–166. J Krivanek, Heroin—Myths and Reality (Sydney: Allen and Unwin, 1988) Ch 2. See also L Paoli, V Greenfield and P Reuter, The World Heroin Market – Can Supply by Cut? (Oxford: Oxford University Press, 2009) Ch 2. T Parssinen and K Kerner, “Development of the Disease Model of Drug Addiction in Britain, 1870–1926” (1980) 24 Medical History 275. [14.80]

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a few doses may be termed as a vice, but if the administration is continued for a month or so a true disease condition becomes established with a definite pathology and symptoms”. 143 The so-called “British system” separated out the pathological from the moral and legal aspects of drug use, conferring on the medical profession the principal responsibility for controlling “the addict” through treatment. Such treatment, in many cases, involved simply controlling opiate addiction through maintenance; namely, providing a controlled dose with a view to avoiding the symptoms of withdrawal, rather than to curing the addiction. The system required no registration of addicts, though the Committee did lay down some guidelines on how addicts should be maintained by doctors. For example, addicts were not to be informed of the name of the drug and in no circumstances were they to inject themselves. Until the 1950s, there was no significant illicit market in opiates in Britain. A series of medical abuses involving the prescription of drugs in the 1950s and 1960s, coupled with the emergence of an affluent, rebellious and drug-using youth culture, led to calls for tighter regulations. The medical profession increasingly sought to distinguish between therapeutic and non-therapeutic addiction. The Home Office in Britain adopted this distinction in 1958, and it appears that 80% of cases of drug addiction at this time were characterised as therapeutic; that is, addicted through medical contact. The recreational use of drugs was properly the subject of criminal prosecution. In this sense, the law entrenched a dichotomy between lawful (medically supervised) drug use and unlawful recreational use. As Desmond Manderson has observed in relation to this disease model: “In stark contrast to the medical and legal authority that jointly demonised the transgressor of drug laws, those who accepted the legal and medical boundaries that had been set in place met with support and reassurance. Even ‘drug addicts’ were able to continue their habit if they did so legally and under medical supervision.” 144

In the 1960s, the Brain Committee generally endorsed the medical model adopted in the 1920s, but recommended measures to control over-prescribing drugs, including the establishment of special centres and specialist care, notification of addicts to central authority, and powers of compulsory detention for the purpose of treatment. 145 These clinics reduced the size of doses and used substitutes like methadone to maintain addiction. The “British system” was largely followed in Australia. Although some States forbade the supply of opiates for the purpose of addiction, as Manderson has pointed out, the essence of the Commonwealth policy remained the “institutionalisation and medicalisation of drug use”. 146 For example, heroin was widely used in the first half of the 20th century in the United Kingdom and Australia by the medical profession. It was used not merely as a treatment for morphine addiction, but was also prescribed for the alleviation of pain experienced as a result of cancer and even childbirth. As Manderson further notes: “In 1931 Australia consumed 3.10 kilograms of heroin per one million persons, more in total than the United States, Canada or Germany and, per capita, behind only New Zealand. Australia 143 144 145 146

Cited in J Krivanek, Heroin—Myths and Reality (Sydney: Allen and Unwin, 1988) p 36. D Manderson, From Mr Sin to Mr Big—A History of Australian Drug Laws (Melbourne: Oxford University Press, 1993) p 105. Ministry of Health and Scottish Home and Health Department, Drug Addiction, Second Report of the Interdepartmental Committee (London: HMSO, 1965) (the Brain Committee). D Manderson, From Mr Sin to Mr Big—A History of Australian Drug Laws (Melbourne: Oxford University Press, 1993) p 107.

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consumed three times as much heroin per capita as the United Kingdom and twice as much cocaine. Hitherto we had been world leaders in the popping of patent medicines pills; now we had moved on to other drugs.” 147

Due to increasing international pressure and treaties requiring more stringent prohibition, the importation of heroin was banned in Australia in 1953, notwithstanding protests from the medical profession at the time. The history of the regulation of opiates in the United States differs from the medical and bureaucratic model adopted in the United Kingdom. 148 The “British system”, while highly influential in Australia, was never adopted in the United States. Opiate addiction first became visible at the end of the American Civil War in the 1860s. The introduction of the intravenous syringe on the battlefield allowed morphine to be used as an effective painkiller. The consequent addiction to morphine became known as “army disease”. Returning soldiers continued to obtain their supplies of opiates lawfully through doctors and pharmacists. Indeed, a wide range of opiates were available by mail order through the Sears-Roebuck catalogues in the 1890s. In 19th century America, opium addiction was not widely associated with vice or crime. As in Australia, a couple of factors were critical in changing public attitudes towards opium in the United States: the rise of the Temperance Movement and the arrival of Chinese workers. In relation to the latter, opium became a symbol of Chinese vice and its criminalisation a means of attacking the social and economic challenges that Chinese people presented. As Thomas Szasz noted: “After all Americans could not admit they hated and feared the Chinese because the Chinese worked harder and were willing to work for lower wages than they did”. 149 In 1875, San Francisco enacted laws prohibiting the keeping of opium dens and opium smoking. In 1883, the Chinese were prohibited from importing opium, though no similar restrictions were placed on its importation by Americans. 150 Following The Hague Convention in 1912, the Harrison Act 1914 (US) was enacted by Congress. The Act had three central provisions: • to provide information about legal opiate traffic; • to introduce a tax on those who handled drugs; and • to prohibit the purchase of opiates, except on the prescription of a physician for a “legitimate medical purpose”. The Act severely limited the availability of opiates, resulting in the medical profession becoming besieged with addicts. Special clinics were established but quickly became unmanageable and were all closed by 1921. Also, individual States began to prosecute doctors who were prescribing drugs for addicts. An early decision of the Supreme Court in 1919 further limited medical involvement in regulating the supply of opiates. The Supreme Court held that prescription for the purpose of maintaining habitual use, rather 147 148 149 150

D Manderson, From Mr Sin to Mr Big—A History of Australian Drug Laws (Melbourne: Oxford University Press, 1993) p 110. See, generally, J Krivanek, Heroin—Myths and Reality (Sydney: Allen and Unwin, 1988) Ch 2. T Szasz, Ceremonial Chemistry (London: Routledge and Kegan Paul, 1975) p 76. For an excellent article examining the historical forces behind opium offences in the United States, see P Morgan, “The Legislation of Drug Law: Economic Crisis and Social Control” (1978) 8(1) Journal of Drug Issues 53. [14.80]

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than for the purpose of curing addiction, was not permitted under the Harrison Act. 151 Although this decision was reversed in 1925, the reticence of the medical profession to supply opiates to addicts fostered a black market for drugs and organised crime. The regulation of drug use was conceived as a criminal justice issue, an approach promoted by newly created national agencies, such as the Federal Bureau of Narcotics (FBN). The FBN played a significant role in marshalling and shaping public concern about marijuana misuse. Propaganda films like “Reefer Madness” portrayed cannabis as a drug capable of inducing sexual frenzy and homicidal rage. Howard Becker has stressed the critical role played by “moral entrepreneurs”, such as Harry Anslinger, the head of the FBN from the 1920s to the 1960s, who once described cannabis as “the assassin of youth”. 152 Other researchers have stressed the role of racism directed toward Mexican migrant workers (the principal consumers of cannabis or “marijuana”) and the bureaucratic needs in explaining prohibition. 153 What is striking is how our understanding of cannabis has changed from one of a dangerous sexual stimulant in the 1930s, to a relaxant associated with the hippy youth culture in the 1960s and 1970s, to a therapeutic drug capable of alleviating the side-effects of cancer treatment, and most recently, in a handful of jurisdictions, to a pleasurable recreational commodity whose production, supply and consumption can be regulated and taxed. While there is clearly an international dimension to the criminalisation of drugs as reflected in the narcotic treaties adopted in the 20th century, the intensity and nature of legal regulation has varied from jurisdiction to jurisdiction. These variations reflect the different meanings and symbols of drug law in different places at different times. Australia’s legal response to opium, like the United States, was affected by the problem of “Chinese vice”. As Manderson concludes, opium in the 19th century became an important symbolic expression of anti-Chinese sentiment: “[T]he very first, anti-opium, drug laws arose in many countries—in Australia and New Zealand, South Africa and Canada, as well as in the United States—specifically because of the association of Chinese immigrants with opium use. In each case it was not the dangers of the substance itself but its use by these minority groups which caused public outcry and outlawry.” 154

In the United Kingdom, the medical control of drugs remained dominant. This regulatory approach was not affected by the moral crusades against Chinese vice in the United States and Australia—significantly, the United Kingdom had not experienced Chinese migration to any large extent. Thus, drugs simply symbolised sickness rather than vice. As Krivanek concludes, “where Britain espoused a disease model, the United States took an essentially moral stance on opiate addiction, and that stance remains basically unchanged today”. 155 Australia may be viewed as falling between these two models—a dualist approach based on prohibition, tempered by medical pragmatism that continues to influence regulatory strategies today.

151

155

Webb v US 249 US 96 (1919). This decision was followed in United States v Behrman 258 US 280 (1922), but subsequently overruled in Linder v US 268 US 5 (1925). H Anslinger, Outsiders: Studies in the Sociology of Deviance (London: Collier Macmillan, 1963). S Bottomley and S Bronitt, Law in Context (4th ed, Sydney: Federation Press, 2012) Ch 8, discusses Howard Becker’s classic study of US cannabis control in the 1930s, and how the deviance of the drug and its users was constructed through national policy and law. D Manderson, “Substances as Symbols: Race Rhetoric and the Tropes of Australian Drug History” (1997) 6(3) Social and Legal Studies 383 at 384. J Krivanek, Heroin—Myths and Reality (Sydney: Allen and Unwin, 1988) p 59.

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152 153

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Soft drugs and tough policing [14.85] The most recent National Drug Strategy Household Survey, conducted in 2013, indicated that 1.2% of the population surveyed (comprising persons over 14 years of age) had tried heroin at least once in their lifetime. By contrast, 34.8% of the population surveyed had consumed cannabis. These levels of usage have remained relatively stable over the past decade. 156 Law enforcement activity targeting cannabis has decreased marginally in recent years. However, of the 133,926 people arrested nationally for drug offences in the 2014–15 financial year, the majority still related to cannabis (56.1%). Notwithstanding the tough law enforcement rhetoric directed to “hard” drugs like heroin, arrests relating to heroin have actually decreased to their lowest point in a decade, while there has been a significant upward trend in amphetamines-related arrests. For comprehensive statistical data on drug law enforcement, see the Australian Crime Commission report, Illicit Drug Data Report 2014–15 (2016). 157

SERIOUS DRUG OFFENCES Federal and International Framework for Drug Offences [14.90] Early drug laws of the 19th century, particularly those dealing with opium smoking,

were local attempts to impose legal controls on “suspect” populations and their “peculiar” vices. As noted above, even when these laws were extended to the general populace in the late 19th century, they continued to be enforced by law enforcement officials in a discriminatory fashion along racial lines. The next phase of legal regulation for drugs in the 20th century witnessed a new player enter the regulatory arena: the recently established Commonwealth of Australia, which sought tighter controls, backed by the federal criminal law, over illicit drugs. The period from Federation at the turn of the century to the end of World War II witnessed a dramatic expansion in drug laws. At the State level, the early restrictions on opium were extended to heroin, morphine, cocaine and other “dangerous drugs”. At the federal level, the Commonwealth enacted the first national drug offences. The result was that the responsibility for drug offences and enforcement is now shared between the Commonwealth, States and Territories. This next section examines the scope of federal jurisdiction over drugs and the principal offences. The key federal drug offences are contained in two statutes: • Criminal Code (Cth), Pt 9.1—Serious drug offences • Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 (Cth). In the next section, we focus on the leading High Court and other appellate decisions relating to the physical and fault elements of drug offences. The dominance of federal offences reflects the growing international character of drug law: offences which have been enacted to implement various international conventions on illicit drugs. The next section briefly examines the evidential and procedural issues relating to “controlled operations”, in particular the legal and policy concerns relating to the use of police entrapment. It also contains a case study on heroin law reform. The plethora of drug offences under State and Territory laws are beyond 156

157

Australian Institute of Health and Welfare (AIHW), 2007 National Drug Strategy Household Survey—Detailed Report (Canberra: AIHW, 2014), http://www.aihw.gov.au/publication-detail/?id=60129549469 (cited 30 October 2016). Australian Criminal Intelligence Commission, Illicit Drug Data Report 2014–15 (2016), https:// www.acic.gov.au/sites/g/files/net1491/f/2016/08/acic-iddr-2014-15.pdf?v=1470178813 (cited 30 October 2016). [14.90]

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the scope of an introductory chapter. These offences, however, are comprehensively reviewed in specialist texts dealing with the Code and common law jurisdictions respectively. 158

Scope of Federal Jurisdiction [14.95] The Commonwealth’s competence to enact laws in this area is based on two heads of

power in the Constitution: the “trade and commerce” power and the “external affairs” power under s 51(i) and 51(xxix), respectively. The trade and commerce power permits the Commonwealth to restrict or prohibit the importation and exportation of any goods including drugs. Under the Customs Act 1901 (Cth), the Governor General may prohibit, by way of regulation, the importation of goods into Australia. 159 The external affairs power permits the Commonwealth to enact laws implementing the terms of the international treaties and conventions dealing with drugs. It has been suggested that the external affairs power is sufficiently broad to permit the Commonwealth to assume total control over the regulation of drugs. 160 Although transferring the responsibility for drug offences to the Commonwealth would simplify the administration of drug law in Australia, it would be politically unacceptable to the States and Territories, which are keen to preserve their competence to legislate and enforce laws against drugs. Following its review of federal criminal law, the Gibbs Committee affirmed the present split between federal and State/Territory legislation on drugs, and proposed that any future recommendations for reform and consolidation should proceed on that assumption. 161 Federal laws prohibiting the importation and exportation of illegal drugs have been held to be a valid exercise of the trade and commerce power in the Constitution. 162 Because of the constitutional limitations on federal jurisdiction, the courts have viewed the purpose of State and Territory drug laws as legally distinct. As the New South Wales Court of Criminal Appeal observed in R v Stevens: “The Commonwealth Act, it may be said, erects, in s 233B, [repealed, now see the Criminal Code (Cth), s 307.1] a barrier or defence against narcotics coming into Australia, whilst the Drugs Misuse and Trafficking Act [NSW] is a measure which enables the State to police the use of and trafficking in narcotics in New South Wales. The two laws will, in given circumstances overlap and apply to the same set of circumstances but the purpose of each remains fundamentally different. As the purpose of the two Acts is entirely different they are not, under s 109 of the Constitution, to be regarded as inconsistent.” 163

The scope for overlap between federal, State and Territory drugs offences is extensive, though the High Court has held the overlap between the Victorian trafficking offence, and the Federal counterpart, did not amount to a constitutional inconsistency sufficient to render the former inoperative. 164 As we shall explore below, federal offences relating to “prohibited imports” have been broadly interpreted. State and Territory drug offences are used principally where the criminal activity has no international dimension. Offences against the administration, 158

162 163 164

See P Zahra and C Young, Zahra and Arden’s Drug Laws in New South Wales (3rd ed, Sydney: Federation Press, 2014); P Alcorn, P Zahra, R Arden, Drug Law in the Code States (Sydney: Federation Press, 1993). Customs Act 1901 (Cth), s 50(1). It is an offence to import a prohibited import under s 51(1) of the Customs Act 1901 (Cth). R Brown, “Federal Drug-Control Laws: Present and Future” (1977) 8 Federal Law Review 435. Review of Commonwealth Criminal Law (Gibbs Committee), Drug Offences, Discussion Paper No 13 (1988) p 8. Milicevic v Campbell (1975) 132 CLR 307. R v Stevens (1991) 23 NSWLR 75 at 82. Momcilovic v The Queen [2011] HCA 34.

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possession and supply of prohibited drugs exist in every jurisdiction in Australia. 165 It should be noted, however, that State and Territory offences of possession and supply may be used as “back-up” charges where crucial evidence relating to proof of importation is absent or has been judicially excluded because of illegal activity of the police. 166 See the discussion of entrapment at [14.210]ff.

Common law and crimes of possession [14.100] Possession offences are said to be “creatures of statute”. The common law historically has been wary of imposing criminal liability on the basis of possession alone. It was held that an indictment charging a person for mere possession of articles that may have criminal uses does not charge “an act”, and therefore is bad at common law. 167

Importation Offences [14.105] The principal importation drug provisions under federal law are found in Pt 9.1,

Div 307 of the Criminal Code (Cth). These provisions create a graded scale of punishment based on the amount of border controlled drugs, border controlled plants, or border controlled precursors a person imports or exports, ranging from commercial quantities to the lesser amount of marketable quantities, to the “mere” or simple possession quantity. Table 1 Import/export offences and penalties under the Criminal Code (Cth)—Pt 9.1, Div 307 Offence Importing and exporting commercial quantities of border controlled drugs or border controlled plants Importing and exporting marketable quantities of border controlled drugs or border controlled plants Importing and exporting border controlled drugs or border controlled plants Importing and exporting border controlled drugs or border controlled plants – no defence relating to lack of commercial intent* Importing and exporting commercial quantities of border controlled precursors Importing and exporting marketable quantities of border controlled precursors Importing and exporting border controlled precursors

165

166 167

Section 307.1

Penalty Imprisonment for life or 7,500 penalty units, or both

307.2

Imprisonment for 25 years or 5,000 penalty units, or both

307.3

Imprisonment for 10 years or 2,000 penalty units, or both Imprisonment for 2 years or 400 penalty units, or both

307.4 307.11 307.12 307.13

Imprisonment for 25 years or 5,000 penalty units, or both Imprisonment for 15 years or 3,000 penalty units, or both Imprisonment for 7 years or 1,400 penalty units, or both

For offences dealing with supply of drugs, see Drugs of Dependence Act 1989 (ACT), s 164; Drugs Misuse and Trafficking Act 1985 (NSW), ss 25, 25A; Misuse of Drugs Act 1990 (NT), s 5; Drugs Misuse Act 1986 (Qld), s 6; Controlled Substances Act 1984 (SA), s 32; Misuse of Drugs Act 2001 (Tas), s 26; Misuse of Drugs Act 1981 (WA), s 6(1)(c). In Victoria, the supply of drugs is covered by the “trafficking” offence in Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 71AC, which the courts have interpreted broadly to include supply: R v Clarke and Johnstone [1986] VR 643. For offences dealing with possession of drugs, see Drugs of Dependence Act 1989 (ACT), s 171(1); Drugs Misuse and Trafficking Act 1985 (NSW), s 10(1); Misuse of Drugs Act 1990 (NT), s 9(1); Drugs Misuse Act 1986 (Qld), s 9; Controlled Substances Act 1984 (SA), s 33L(1)(a), (2)(a); Misuse of Drugs Act 2001 (Tas), ss 24, 25; Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 73; Misuse of Drugs Act 1981 (WA), s 6(2). Ridgeway v The Queen (1995) 184 CLR 19 at 43. G Williams, Criminal Law: The General Part (2nd ed, London: Stevens and Sons, 1961) p 8. [14.105]

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Offence

Section

Penalty

The offence of “importing and exporting border controlled drugs or border controlled plants” under s 307.3 has a defence of lack of commercial intent. 168 This offence captures behaviour where the defence in s 307.3 is met.

Note: 1 penalty unit is currently worth $180 under the Crimes Act 1914 (Cth), s 4AA.

In 2013, the Criminal Code Amendment Regulation 2013 (No 1) significantly expanded the range of substances deemed to be border controlled drugs, moving the schedules from the Criminal Code (Cth) to the Criminal Code Regulations. The current Criminal Code Regulations list more than 200 separate border controlled drugs (including the commonly known illicit drugs such as cannabis, cocaine, heroin, LSD (lysergide), morphine, methadone, as well as many other less familiar drugs). There are similar regulations listing plants and precurors. Significantly, the definition of “border controlled drug” under the Criminal Code (Cth) is extended, under s 301.4(b), to include “drug analogues” of a drug listed in these regulations. The amounts required to meet “commercial” and “marketable” quantity thresholds are found in tables dealing with border controlled drugs, plants, and precursors. 169 The physical element: the meaning of importation [14.110] The new regime of drug trafficking offences was incorporated into the Criminal Code (Cth) by the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Cth). The previous case law on “importation” referred to a prohibition on a person importing prohibited goods into Australia under ss 233B(1)(b) and 233B(1)(a)(iii) of the Customs Act 1901 (Cth). Under the definition section for the drug offences contained in the Criminal Code (Cth), the term “import” is defined, as follows: “import”, in relation to a substance, means import the substance into Australia and includes: (a) bring the substance into Australia; and (b) deal with the substance in connection with its importation. 170

This non-exhaustive definition gives the term a similar meaning as it had under the Customs Act 1901 (Cth). In R v Bull, with reference to the Customs Act 1901 (Cth), the High Court held that goods intercepted within Australia’s territorial waters were not to be regarded as imported. Goods in transit, therefore, would not necessarily be imported. 171 This decision has not unduly hampered law enforcement. Indeed, subsequent decisions have adopted a more flexible approach to importation, construing this element as including activities that took place outside the jurisdiction and used innocent agents, such as airlines, to bring the drugs into Australia. The High Court in White v Ridley established that dispatching goods from outside the jurisdiction with the intention that the goods should be landed in Australia fell within the scope of the then Customs Act 1901 (Cth), s 233B(1)(b). 172 The scope of importation is further broadened by judicial reasoning which tends to view importation as a process rather than an event. This approach means that individuals whose involvement commences after the physical landing of the drugs into the country may 168 169 170 171 172

Criminal Code (Cth), s 307.3(3). Criminal Code (Cth), ss 304.4, 304.5, 304.6. The definitions of “commercial quantity” and “marketable quantity” are found in the Criminal Code (Cth), ss 301.10 and 301.11 respectively. Criminal Code (Cth), s 300.2. R v Bull (1974) 131 CLR 203 at 220, 254. White v Ridley (1978) 140 CLR 342 at 359.

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nevertheless participate in that importation. In R v Leff, 173 the accused was charged with being knowingly concerned in the importation of cocaine, contrary to the then s 233B. The accused claimed that her involvement in the criminal enterprise occurred after the importation had occurred. The New South Wales Court of Criminal Appeal upheld her conviction. Even on the most favourable view of the evidence, the court held that her involvement (conversations with the courier after the drugs were landed) could support her conviction. (In fact, the conversations took place while the courier was under arrest and helping the police with their inquiries.) James J pointed out that importation was a continuing process that was not extinguished by interception by law enforcement officials. 174 Gleeson CJ endorsed this approach, adding that both “importation” and “being concerned” were flexible concepts: “The concepts of importation, and of being concerned in an importation, are both sufficiently flexible to cover a case such as the present. … [I]mportation is a process, or a venture, not a physical act which occurs or ceases at the moment of import. Furthermore, concern in an importation can commence at a time when it has apparently broken down, and where efforts are being made to bring it to fruition.” 175

Such an interpretation raises questions about the limits of the concept; in particular, when an importation has ceased. Are these limits determined solely by the needs of the law enforcement officials conducting covert operations? Clearly, some flexibility in these concepts is considered essential to facilitate the controlled delivery of drugs. There are, however, dangers that the original importation is only remotely or tangentially related to those individuals who subsequently become “knowingly concerned” in the distribution of those drugs. This often occurs when undercover police and informers incite others to become concerned in the distribution and supply of illegal drugs. The permissible limits of police participation in the drug trade and the use of entrapment are usually considered as separate procedural or evidential issues, though they clearly have implications for the substantive law, such as the meaning and scope of importation. 176 The structure and form of Pt 9.1, Div 307 of the Criminal Code (Cth) reflects the limits of legislative competence under the trade and commerce power in the Constitution. Federal regulation of drugs is seemingly restricted to acts of importation, and any consequent dealings in those imported goods. However, the division is not strictly confined to the trafficking of illegal drugs across national borders. Division 307, Subdiv B prohibits mere possession, though the prosecution must prove that the drugs were imported in contravention of the Act. Possession has been subsequently expanded to its constitutional limits to include possession of drugs “reasonably suspected” of having been imported under Div 307, Subdiv C of the Code. While this concept stretches the federal jurisdiction considerably, a wider mandate for federal drug law can be located in the external affairs power of the Constitution since Australia has

173 174 175 176

R v Leff (1996) 86 A Crim R 212. R v Leff (1996) 86 A Crim R 212 at 223. R v Leff (1996) 86 A Crim R 212 at 214. See, for example, R v Chow (1987) 11 NSWLR 561 where the New South Wales Court of Criminal Appeal rejected the argument that since the Australian Federal Police had imported the heroin, it could no longer be treated as a prohibited import under the Customs Act 1901 (Cth). In R v Tranter [2013] SASCFC 61, the Supreme Court of South Australia held that there was no requirement that the defendant’s conduct must be anterior to the physical importation; in that case, a charge of attempting importation could be based receiving and transporting the substance after its arrival in Australia. As Peek J noted at [126]: “This is because the extended meaning of ‘import’ in the definition section (‘deal with the substance in connection with its importation’) does permit the prosecution to rely upon an attempted dealing with the substance after the importation has been completed.” [14.110]

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ratified numerous international treaties and conventions on illicit drugs. 177 The impact of international law on drug control, particularly the growing internationalisation of drug law, is explored at [14.160]. The frontiers of modern drug laws are highly sensitive to drug markets and the emergence of new “recreational” drugs. Rather than enact specific offences to deal with particular substances, omnibus provisions criminalise prohibited categories of drugs, plants and precurors. These categories, such as “border controlled drugs” under the Criminal Code (Cth), are then defined in three ways: through listing by regulation, by being a drug analogue to one of these listed drugs, or otherwise as determined by the Minister (who deals with emergency determinations) under s 301.13. A similar framework applies for State and Territory drug offences. The use of regulations permits drug offences to be amended rapidly without the need to redraft the principal Act. 178 Although legislating new offences by regulation is undesirable in terms of criminal law principles (as they are less visible to the public and bypass direct parliamentary scrutiny), this development is unavoidable due to the need to amend drug laws quickly in response to emerging threats. 179 Under federal law, for example, the Minister may issue a determination that a drug, plant or precursor is border controlled under certain conditions. 180 The relative ease with which new drugs (which share no common pharmacological characteristics) are prohibited bypasses the opportunity for informed debate within the community about the danger of such drugs, or the positive and negative effects of prohibition. Concern about the misuse of drugs in sport in the 1980s resulted in calls for tighter controls over performance-enhancing substances, such as anabolic steroids, and led to the establishment of a new regulatory body, the Australian Sports Drug Agency (now renamed the Australian Sports Anti-Doping Authority). Several States have also passed separate legislation to prohibit the use of drugs in sport. 181 Nevertheless, there have been concerns that the policies and procedures around drug testing in sport infringes fundamental human rights. It has been pointed out that the introduction of mandatory testing erodes the presumption of innocence, that “doping” offences punish without proof of intent or other fault element, and that the privilege against self-incrimination does not extend to the provision of a urine or blood sample because the privilege extends only to oral and documentary disclosure. 182 At present, steroids are not prohibited under international conventions. Nevertheless, the MCCOC recommended that anabolic steroids should be included within the definition of “controlled drug” for the purpose of trafficking and related offences. The MCCOC noted the 177

182

Perhaps for this reason, the Criminal Code (Cth), s 300.1(1) provides that one of the purposes of Pt 9.1 (Serious drug offences), of which Div 307 forms a part, is “to give effect to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances”. MCCOC, Chapter 6—Serious Drug Offences, Report (1998) p 23. MCCOC, Chapter 6—Serious Drug Offences, Report (1998) p 21, noting “recent problems with a sudden surge in the supply of GHB or ‘fantasy’ in Queensland and the scramble in all jurisdictions to add the drug to their tables is an example of this”. Criminal Code (Cth), s 301.13(1). The Minister must be satisfied there is an imminent and substantial risk that the substance or plant will be taken without appropriate medical supervision and that one or more of the following conditions exists: (i) taking the substance or plant may create a risk of death or serious harm; (ii) taking the substance or plant may have a physical or mental effect substantially similar to that caused by taking a listed serious drug; (iii) there is limited or no known lawful use of the substance or plant in Australia, and the substance or plant has been found by a public official in the course of the performance of the official’s duties; (iv) the substance or plant may pose a substantial risk to the health or safety of the public: s 301.13(2)(b)(i)–(iv). Sports Drug Testing Act 1995 (NSW); Drugs in Sport Act 1999 (ACT); Sports Drug Testing Act 2003 (Qld); Sports Drugs Testing Act 2000 (SA); Sports Drug Testing Act 2001 (WA); Sports Anti-Doping Act 2005 (Vic). A Buti and S Fridman, Drugs, Sport and the Law (Mudgeeraba, Qld: Scribblers Publishing, 2001) p 136.

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178 179

180

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opposition to this proposal from the Commonwealth Department of Health and Family Services on the ground that steroid users were not dependent on the drug and that the use of drugs in sport fell within the regulatory jurisdiction of the Australian Sports Drug Agency. 183 Criminalisation of trafficking in steroids has been warranted because of the growing international trade in steroids, the potential negative health consequences of non-medical usage, and the potential for criminal profit and development of black-market structures and the involvement of organised crime gangs in distribution networks. 184

Drugs in sport: performance-enhancing law enforcement [14.115] The Australian Crime Commission, in its 2010 report on illicit drugs in Australia, notes the increasing use of performance- and image-enhancing drugs (PIEDs). The Australian Standard Classification of Drugs of Concern distinguishes four classes of substances defined as anabolic agents and selected hormones: anabolic-androgenic steroids (AAS); beta-2 agonists; peptide hormones, mimetics and analogues; and other anabolic agents and selected hormones. 185 Users of steroids and similar drugs in Australia obtain their drugs by either attempting to convince a medical practitioner to prescribe steroids for them, purchasing them over the Internet, locating a dealer through word-of-mouth, obtaining a statutory declaration that they are for use on animals, or stealing them from veterinary surgeries. The main problem confronting law enforcement is that such drugs are readily available worldwide for non-medical purposes, as most countries around the world permit their sale without the requirement of a prescription. It is probably for this reason that there has been a steady increase in the number of steroid detections by customs and border protection in recent years, though a fall in the number of detections has been reported in 2013–14. 186

Lack of commercial intent defences [14.120] The Customs Act 1901 (Cth), s 233B(1)(a) had previously provided for a defence of

“reasonable excuse” against the offences contained in that section. What was significant about this defence was that it represented a modification of the burden of proof normally associated with defences. As discussed in Chapter 2 at [2.160], the House of Lords in Woolmington v DPP 187 established that the prosecution ordinarily bears the burden of proof to establish the elements of the offence and rebut available defences. Although much revered as the “golden thread” of the criminal law, the presumption has been subject to extensive derogation and qualification by statute. Part 9.1, Div 307 of the Criminal Code (Cth) continues the earlier approach to reversal of burden of proof in s 233B(1)(a) by expressly providing that the defendant bear the burden of proving a “defence relating to lack of commercial intent”. 188 This regime is typical of many 183 184

185 186

187 188

MCCOC, Chapter 6—Serious Drug Offences, Report (1998) p 265. MCCOC, Chapter 6—Serious Drug Offences, Report (1998) p 267. M Willacy, “Bikie Drug Rings Trafficking Illegal Steroids Bought Online from Overseas, Queensland Police Say” ABC News Online, 9 March 2015, http://www.abc.net.au/news/2015-03-09/bikies-queensland-trafficking-steroids-from-overseas-policesay/6290938 (cited 23 November 2016). Australian Crime Commission, Illicit Drug Data Report 2008–09 (2010) p 71ff, http://www.crime commission.gov.au/publications/iddr/2008_09.htm (cited 20 June 2010) Australian Criminal Intelligence Commission, Illicit Drug Data Report 2014–15 (2016) pp 108–109, https://www.acic.gov.au/sites/g/files/net1491/f/2016/08/acic-iddr-2014-15.pdf?v=1470178813 (cited 30 October 2016). Woolmington v DPP [1935] AC 462. Criminal Code (Cth), s 307.2(4), s 307.3(3), s 307.6(4), s 307.9(4). The phrase “defence relating to lack of commercial intent” comes from the wording of the offence in s 307.4 of the Criminal Code (Cth). [14.120]

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summary offences in that it places on the accused a legal burden of disproving key elements of the offence or establishing defences. The difference, however, is that the reversal in Div 307 does not apply to a minor “regulatory” offence, but rather to serious offences, including those with maximum penalties of 25 years’ imprisonment. The defence requires a defendant to prove that they “neither intended, nor believed that another person intended, to sell any of the border controlled drug…plant or its products”. 189 Note that the defence does not apply to s 307.1 which prohibits the importing and exporting of commercial quantities of border controlled drugs or plants. Here, the intention of Parliament is to deny those who import “commercial” quantities the opportunity to raise a defence based on a lack of intention to sell the imported items. The arbitrariness of the applicability of this defence based on the tables in Division 3.2 and Schedule 4 of the Criminal Code Regulations 2002 (Cth) (which set out the threshold of commercial quantities of border controlled drugs, plants and precursors), is difficult to justify. The Explanatory Memorandum states that: A guiding principle has been to ensure that the offences in proposed Division 307 are no more difficult to prove than the existing offences in the Customs Act. For that reason, commercial intention is not an element of any of the proposed Division 307 offences. Instead, absence of a commercial intention is available as a defence for some proposed Division 307 offences in a manner that reflects the current operation of the Customs Act offences. 190

In this way, we can see that pragmatic or political reasons dominated the construction of Div 307 offences, ensuring that criminal prosecutions would not be hampered by evidential difficulties rather than tailoring punishment to actual drug importers who are conducting illicit commercial enterprises. Deeming Provisions: Thresholds for Possession and Trafficking of Drugs [14.125] The possession of prescribed quantities of drugs as presumptive of the commission

of a trafficking, or commercial trafficking offence, over a simple possession offence, is justified on the ground that it makes offences easier to prosecute and promotes consistency in drug prosecutions and sentencing. In May 2013, the Criminal Code Amendment Regulation 2013 (No 1) commenced, expanding the schedules of controlled and border controlled drugs previously in the Criminal Code (Cth), and transposed them to the Criminal Code Regulations 2002 (Cth). The purpose of “[t]ransferring the listings of illicit … substances to regulations [was to] improve the Government’s ability to be responsive as the illicit drugs market evolves, allowing new and emerging substances to be included in regulations more quickly than listing substances in the Criminal Code” 191 Table 2, below, sets out the range of possession, trafficking and commercial trafficking offences. But these measures carry the risk of unfairness to those accused of the crime, upscaling consumers found in possession, to more serious commercial trafficking offences. Concerns have been expressed about the fairness of deeming provisions, which are liberally used for drug offences, and their potential to impair the right to a fair trial. Anthony Gray, in a recent article on this issue, examined how other jurisdictions had approached drug “threshold” laws that reverse the onus of proof or otherwise abridge the presumption of innocence. 192 Typical offences include those where an offence element is presumed when a certain quantity 189 190 191 192

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Criminal Code (Cth), s 307.2(4), s 307.3(3), s 307.6(4), s 307.9(4).. Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Bill 2005, Explanatory Memorandum (2005) p 47. Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill 2012, Explanatory Memorandum (2012) p 25. Gray identifies the following rationales for maintaining the presumption of innocence: fear of convicting an innocent person; respect for humanity where citizens should be assumed to be law-abiding unless the contrary [14.125]

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of drugs is found in the possession of a person. Under s 302.5 of the Criminal Code (Cth), for example, there is a (rebuttable) presumption that persons found possessing more than a certain quantity of a controlled drug are presumed to have an intent to traffick the drug found in their possession. The onus placed on the defence to rebut is a legal rather than evidential burden. Australia’s current legal tolerance for these measures may be contrasted with Canada and the UK, where the presumption of innocence receives constitutional protection through the Charter of Rights and Freedoms (Can), and statutory protection through the Human Rights Act 1998 (UK) respectively. The Canadian approach tests constitutional validity against whether the deeming measure has the practical effect that the defendant may be found guilty despite the existence of reasonable doubt. 193 In the United Kingdom, the courts have affirmed that the presumption of innocence is not an absolute requirement, though have held modifications to the presumption must not interfere with the accused’s right to a fair trial. 194 Accordingly, the courts have “read down” the deeming measures, viewing the burdens placed on the defendant as being evidential, rather than legal ones. 195 As Gray notes in the Australian context, the use of reverse onus provisions is likely to be acceptable under current High Court jurisprudence, though notes that there is scope to mount future challenges, using Chapter III jurisprudence, to protect the presumption based on the institutional integrity doctrine. 196 In light of this concern, there is good reason to pause before peppering legislative provisions with deeming measures. As Gray concludes: “A regime crafted in this manner [presuming intent or some other element and imposing a legal burden on the accused] is egregious because it permits a person to be convicted although there is reasonable doubt as to their guilt. Assume, for instance, that the prosecution cannot prove beyond reasonable doubt that the accused had the required intention or belief. As a result, they rely on the statutory presumption that this element exists, based on quantity. Let’s say that the accused can raise some evidence that they did not have the required intention or belief, enough to raise reasonable doubt. However, they cannot prove this on the balance of probabilities. As a result, application of the legislation would result in a conviction on the balance of probabilities, exposing the accused to the possibility of a significant jail term, despite there being reasonable doubt as to their guilt.” 197

193 194 195 196

197

is proved; the high value given to liberty in liberal democracies; balancing the power and resources of the State over individuals; and retaining public confidence in the system by avoiding wrongful convictions: A Gray, “Presumption of innocence in Australia: A threatened species” (2016) 40(5) Criminal Law Journal 262 at 265–256. R v Oakes [1986] 1 SCR 103; Whyte v The Queen [1988] 2 SCR 3; Downey v The Queen [1992] 2 SCR 10; and R v Lamoureux [2012] 3 SCR 187. Brown v Scott [2003] 1 AC 681. On the distinction between legal and evidentiary burden, see R v DPP; Ex parte Kebilene [2000] 2 AC 326. This issue is further discussed in Chapter 2, [2.175]ff. A Gray, “Presumption of innocence in Australia: A threatened species” (2016) 40(5) Criminal Law Journal 262 at 266–267. The issue may be open to challenge under Chapter III constitutional jurisprudence, at 267–270, in light of High Court decisions that recognise parliament may not enact measures that effectively usurp the judicial role of a court (which include the determination of guilt): see X7 v Australian Crime Commission (2013) 248 CLR 92; Lee v New South Wales Crime Commission (2013) 251 CLR 196; and Nicholas v The Queen (1998) 193 CLR 173. As Gray concedes, the matter is not settled and would at any rate depend on the facts of the case. A Gray, “Presumption of Innocence in Australia: A Threatened Species” (2016) 40(5) Criminal Law Journal 262 at 278. [14.125]

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Thresholds relating to the quantity of drugs found in possession may be applied to a particular offence element or to the quantum of punishment. 198 Most countries avoid using specific numerical legal thresholds for drug offences: Australia, along with the United Kingdom and United States, is one of a minority that does use thresholds. 199 Use of thresholds present challenges since the prescribed drug threshold will be affected by fluctuations – over time and place – in the price and purity of drugs available in particular drug markets. Research suggests that these provisions may over-estimate the amounts indicative of involvement in commercial activity: as one recent study noted, drawing on data from three separate national surveys, “most median and mean quantities that Australian drug users reported consuming or purchasing were lower than the trafficable thresholds. That said, the maximum quantity consumed or purchased for personal use alone exceeded the trafficable quantity for most drug types”. 200 Unsurprisingly, there is a high degree of diversity across jurisdictions in prescribed amounts: jurisdictions are both over-estimating and under-estimating “cut-offs” for personal and commercial use. This was particularly acute in relation to some drugs, such as MDMA, where 19%, 31% and 57% of regular MDMA users in Western Australia, South Australia and New South Wales respectively purchased more than the current trafficable threshold quantity on their last MDMA. 201 As one recent review of drug thresholds concluded, the use and setting of drug thresholds appear to be based in political agendas and public opinion, rather than expert evidence. 202

Tasmania’s role in the legal opium trade [14.130] Therapeutic morphine used in medical practice can be imported and exported under licence granted by the federal minister for health. To obtain permission to import a narcotic, the Commonwealth must be satisfied that the importation does not exceed the annual estimates, as determined by the International Narcotics Control Board, on how much of each narcotic Australia needs to import to avoid stockpiling. Under the Single Convention on Narcotic Drugs (1961), the Board monitors and supervises the international movement of licit narcotics. It should be noted that Tasmania produces enough poppies to supply approximately 50% of the world’s demands for licit opiates. 203

198

199 200

201

202 203

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Queensland is an example of the latter: C Hughes, A Ritter, N Cowdery and B Phillips, “Australian Threshold Quantities for ’Drug-trafficking’: Are they Placing Drug Users at Risk of Unjustified Sanction?” Australian Institute of Criminology: Trends and Issues in Crime and Criminal Justice, No 467 (Canberra: Australian Institute of Criminology, 2014) pp 4–5. C Hughes, A Ritter and N Cowdery, “Legislating Thresholds for Drug Trafficking: A Policy Development Case Study from New South Wales, Australia” (2014) 25 International Journal of Drug Policy 992. C Hughes, A Ritter, N Cowdery and B Phillips, “Australian Threshold Quantities for ’Drug-trafficking’: Are they Placing Drug Users at Risk of Unjustified Sanction?” Australian Institute of Criminology: Trends and Issues in Crime and Criminal Justice, No 467 (Canberra: Australian Institute of Criminology, 2014) pp 4–5. C Hughes, A Ritter, N Cowdery and B Phillips, “Australian Threshold Quantities for ’Drug-trafficking’: Are they Placing Drug Users at Risk of Unjustified Sanction?” Australian Institute of Criminology: Trends and Issues in Crime and Criminal Justice, No 467 (Canberra: Australian Institute of Criminology, 2014) p 4. C Hughes, A Ritter and N Cowdery, “Legislating Thresholds for Drug Trafficking: A Policy Development Case Study from New South Wales, Australia” (2014) 25 International Journal of Drug Policy 992. For a profile of the Tasmanian poppy industry, including the decision in April 2014 to enact legislation that will support the establishment of a controlled commercial poppy industry in Victoria: https://www.grdc.com.au/ Research-and-Development/GRDC-Update-Papers/2014/07/An-overview-of-the-Tasmanian-poppy-industry (cited 23 November 2016). [14.130]

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The fault element for importation offences [14.135] Before the High Court decision of He Kaw Teh v The Queen, 204 drug offences were

almost universally considered to be offences of strict liability. There was no requirement for the prosecution to prove any fault element, either subjective or objective, on the part of the accused. All that was required was the importation/exportation/possession of a thing listed on the schedule to the Customs Act 1901 (Cth) as a prohibited drug. Barwick CJ in R v Bull (1974) held that knowledge of the nature of the thing was not essential to the commission of the importation offence under s 233B(1)(a) of the Customs Act 1901 (Cth). 205 However, the High Court held that the section did not exclude the exculpatory principle by which the person charged may prove an honest belief on reasonable grounds in the existence of circumstances which, if true, would make innocent that with which he or she is charged. The court held that this defence was permitted under the terms of the section, which allowed for any reasonable excuse, proof of which is to lie on the accused. The scope of the mistake of fact defence available to crimes of “strict liability” is explored in Chapter 3. Dispensing with proof of fault for federal narcotic offences originally stemmed from the placement of these offences within a statutory framework of customs prohibitions on particular imports and exports. Drugs were simply added to an existing Act as a special class of prohibited goods, namely “narcotic goods”. The Customs Act 1901 (Cth) performs a wide range of functions related to trade and commerce, taxation and public health. While strict liability may be appropriate for regulatory offences prohibiting the importation of otherwise harmless goods into Australia, the question arises whether a similar approach should be adopted for serious drug offences, which carry a maximum penalty of life imprisonment.

High Court on Drugs: Synthesising General Principles [14.140] The High Court decision in He Kaw Teh v The Queen (1985) 157 CLR 523 contains

some of the strongest judicial statements on the fundamental importance of fault for criminal liability. In that case, the accused was convicted of two offences under s 233B(1)(b), (c) of the Customs Act 1901 (Cth) [repealed, now see Criminal Code (Cth) s 307.1]: importing, and being in possession of, a prohibited import (heroin), respectively. The decision provided the opportunity to affirm the importance of fault in attributing criminal liability, a value underlying the presumption of a fault element applicable to both common law and statutory offences. The High Court affirmed that there was a tripartite classification for criminal offences: crimes requiring proof of fault, strict liability or absolute liability. These different forms of liability have implications for the degree of blameworthiness required, particularly whether and on what condition a mistake of fact will be exculpatory. This aspect of the judgment in He Kaw Teh has been reviewed in Chapter 3, [3.265]. The High Court attempted to provide guidance on how the courts should construe offence provisions that do not expressly identify any fault element. The basic question is whether the presumption of a fault element had been displaced, with Parliament intending that the offence have no mental ingredient. In resolving this question, Gibbs CJ held that a number of matters would be relevant: • the words used in the statute; • the subject matter of the statute; 204 205

He Kaw Teh v The Queen (1985) 157 CLR 523. R v Bull (1974) 131 CLR 203 at 220. [14.140]

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• the extent to which strict liability assists in enforcement. 206 In determining whether Parliament intended that there should be no mental ingredient for the offence of importing/exporting prohibited imports/exports contrary to s 233B(1)(b), Gibbs CJ examined the provision itself and compared it to the surrounding offences. He noted that the omission of the “reasonable excuse” defence in s 233B(1)(b) would be productive of injustice in some cases: “The absence of those words [reasonable excuse] from par (b) suggests that no reasonable excuse will avail a person who imports narcotics. That would lead to an absurdly draconian result if it meant that a person who unwittingly brought into Australia narcotics which had been planted in his [or her] baggage might be liable to life imprisonment notwithstanding that he [or she] was completely innocent of any connection with the narcotics and that he [or she] was unaware that he [or she] was carrying anything illicit.” 207

Gibbs CJ then examined the second factor, the subject matter of the statute. These provisions of the Customs Act 1901 (Cth) dealt with the “grave social evil” of drug trafficking, which Gibbs CJ described in the following terms: “The importation of and trade in narcotics creates a serious threat to the well-being of the Australian community. It has led to a great increase in crime, to corruption and to the ruin of innocent lives. The fact that the consequences of an offence against s 233B(1)(b) may be so serious suggests that the Parliament may have intended to make the offence an absolute one … On the contrary, offences of this kind, at least where heroin in commercial quantities is involved, are truly criminal; a convicted offender is exposed to obloquy and disgrace and becomes liable to the highest penalty that may be imposed under the law. It is unlikely that the Parliament intended that the consequences of committing an offence so serious should be visited on a person who had no intention to do anything wrong and no knowledge that he [or she] was doing so.” 208

The third factor considered relevant was the extent to which strict liability assisted in enforcement. Gibbs CJ considered whether strict liability would promote the objectives of the legislation and discussed the earlier Privy Council decision of Lim Chin Aik v The Queen. 209 Although strict liability would have the effect of encouraging travellers into the country to take extreme care to ensure that they were not importing drugs, it would serve no purpose to penalise a person who had taken reasonable care and yet had unknowingly been an innocent agent in the importation of the drugs. What possible steps could such an innocent person take, with nothing to arouse his or her suspicions, to prevent a stranger secreting narcotics in his or her luggage? He concluded that these three factors (words in the section, subject matter and whether strict liability would assist enforcement) suggested that Parliament did not intend to rebut the presumption of a fault element. The next question for judicial consideration in He Kaw Teh was the nature and scope of the requisite fault for these drug offences. Gibbs CJ traced the evolution of strict liability and the three-fold classification of fault into crimes with a fault element, strict liability offences and absolute liability offences. This analysis drew heavily on the classification developed by the Supreme Court of Canada in R v City of Sault St Marie. 210 The Supreme Court had held that strict liability is a “middle position between cases where full mens rea is required and cases of absolute liability” where the accused cannot raise the defence of mistake of fact based on 206 207 208 209 210

He Kaw Teh v The Queen (1985) 157 CLR 523 at 529. He Kaw Teh v The Queen (1985) 157 CLR 523 at 529. He Kaw Teh v The Queen (1985) 157 CLR 523 at 529–530. Lim Chin Aik [1963] AC 160. R v City of Sault St Marie [1978] 2 SCR 1299.

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honest and reasonable grounds. 211 The Supreme Court of Canada had held that absolute liability was limited to “public welfare offences” or “regulatory offence”. Gibbs CJ, however, found the Canadian method of classification unhelpful and instead focused on legislative intent: “It is more likely that the Parliament will have intended that full mens rea, in the sense of guilty intention or guilty knowledge, will be an element if an offence is one of a serious kind.” 212

As this offence was one of the most serious in the criminal calendar, it seemed improbable that Parliament would have intended to impose the sentence of life imprisonment for an offence on the basis of “mere negligence”. Neither would punishing negligence assist with enforcement. Gibbs CJ noted earlier that there was nothing that a person, unaware that drugs had been secreted into his or her baggage, could do to prevent an importation. It followed therefore that the presumption of a fault element was not displaced and so the prosecution must prove that the accused knew that he or she was importing a narcotic substance. Gibbs CJ then went on to consider the allied offence of possession of a prohibited import under s 233B(1)(c). The ordinary meaning of the words used in the section “has in his [or her] possession” connoted a state of mind, namely, awareness of the thing that was, in fact, in the possessor’s physical control. Gibbs CJ left open whether the accused must know the quality of the thing in the possessor’s physical control; in this case, whether the parcel contained narcotics. 213 He noted that there was no unanimity on this question and that the present case did not require them to consider the issue. Brennan J took a firmer view: “On a count of possession … the onus is on the prosecution to prove that an accused, at the time when he [or she] had physical custody or control of narcotics goods, knew of the existence and nature, or of the likely existence and likely nature, of the narcotic goods in question.” 214

Dawson J took a different view in relation to the extent of knowledge required under this offence, holding that a person possesses a prohibited import under this section (in this case, narcotics) if the person is aware of possessing something but is not aware that what he or she possesses are, in fact, narcotics. 215 Brennan J’s judgment is regarded as an authoritative summary of general principles governing fault in the criminal law. The decision has also been influential for drug offences generally. Although concerned with specific importation and possession offences under Commonwealth legislation, the statements of principle have been applied to State and Territory offences dealing with the possession of drugs. 216 As an authority on these specific provisions of the Customs Act 1901 (Cth), He Kaw Teh has been largely overtaken by subsequent decisions. In Kural v The Queen, 217 the High Court clarified that the requisite intent for importation offences is not limited to actual knowledge, but may rest on awareness that the thing in possession is a narcotic drug. It is not necessary to show that the person in possession had detailed knowledge of the chemical composition of the drug, or even that it is a particular type of drug; it is only necessary to prove knowledge that the thing possessed is, or is likely to be, an illicit drug. In addition, it is not necessary to show that the person knew of the actual quantity of narcotics imported—knowledge that it is some 211 212 213 214 215 216 217

R v City of Sault St Marie [1978] 2 SCR 1299 at 1325. He Kaw Teh v The Queen (1985) 157 CLR 523 at 535. He Kaw Teh v The Queen (1985) 157 CLR 523 at 538. He Kaw Teh v The Queen (1985) 157 CLR 523 at 589. He Kaw Teh v The Queen (1985) 157 CLR 523 at 602. F Rinaldi and P Gillies, Narcotic Offences (Sydney: Law Book Company, 1991) p 38. Kural v The Queen (1987) 162 CLR 502. [14.140]

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narcotics will suffice. 218 A similarly flexible approach to knowledge was adopted for the possession offence by the High Court in Saad v The Queen. 219 This approach to knowledge has been described as the “genus principle”. 220 With the advent of the Criminal Code (Cth), the fault elements for federal drug offences are governed by Chapter 2, which deals with the “General Principles of Criminal Responsibility”. The Code separates the physical element of a crime into either conduct, circumstance or result. 221 In He Kaw Teh, the High Court interpreted the physical element created by the section as one of conduct; the act of importing into Australia “any prohibited import to which this section applies”. By virtue of the Code (and consistent with He Kaw Teh), the relevant fault element that attaches to this physical element is intent. 222 In R v Narongchai Saengsai, 223 the New South Wales Court of Criminal Appeal was asked to consider the interpretation of s 233B(1)(b) in light of these general principles in the Criminal Code (Cth). The Crown in Narongchai Saengsai argued that the physical element of the offence under s 233B(1)(b), namely, the importation of a prohibited import, should be interpreted as a “circumstance”. On this construction, by virtue of s 5.6 of the Code that stipulates the fault element where none is expressly specified, the prosecution may prove the offence on the basis of recklessness. The Court of Criminal Appeal, however, unanimously rejected this submission, holding that the principles enunciated in He Kaw Teh in relation to s 233B(1)(b) have not changed with the enactment of the Criminal Code (Cth). 224 But is this the correct approach to the interpretation of the drug offences under the new Code? It should be recalled that the principles governing responsibility under the Criminal Code (Cth) are different to those that are applied to the Customs Act 1901 (Cth)—those principles were the product of the development of common law presumptions by the High Court in He Kaw Teh, and refined in subsequent decisions. Under the Code, the general presumption applies that the fault elements of offences are intention in relation to those physical elements characterised as “conduct”, and recklessness or intention applied as the default standard for physical elements characterised as “result” or “circumstance”. 225 The fault element for all importation offences has been set expressly at recklessness standard, 226 which is a less stringent standard than intention or knowledge under the Code’s hierarchy of fault. 227 A new section was also added that creates a presumption of intention to manufacture controlled drugs in relation to importing border controlled precursors. 228 218 219 220 221 222 223 224

228

Cheng v The Queen (2000) 203 CLR 248. Saad v The Queen (1987) 29 A Crim R 20. P Gillies, Criminal Law (4th ed, Sydney: Federation Press, 1997) p 801. Criminal Code (Cth), s 4.1(1). Criminal Code (Cth), s 5.6(1). R v Narongchai Saengsai [2004] NSWCCA 425. This approach rejecting recklessness was affirmed recently in Smith, Maltimore v The Queen [2016] NSWCCA 93. In this case, the New South Wales Court of Appeal held that the offence required proof of three elements: importation of a substance, in respect of which the fault element is intention; that the substance is a border controlled drug, in respect of which the fault element is recklessness; and the quantity is a commercial quantity, in respect of which there is absolute liability. The Court was influenced by the fact that offences in Division 307 of the Criminal Code (Cth) were designed to accord with, and be no more difficult to establish than, their antecedent offences in the Customs Act 1901 (Cth): at [25]-[26]. Criminal Code (Cth), s 5.6(1). Criminal Code (Cth), s 307.1(2), s 307.2(2), s 307.3(2), s 307.4(2), s 307.11(2), s 307.12(2), s 307.13(2). See Criminal Code (Cth), s 5.4. The key elements of recklessness are awareness of a substantial risk that a circumstance or result exist, and that it is unjustifiable to “take the risk” and commit the act. Criminal Code (Cth), s 307.14.

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225 226 227

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Another significant difference is that, under the Criminal Code (Cth), strict liability or absolute liability can only be imposed in relation to a conduct, circumstance or result by an express legislative statement to that effect. 229 The provisions of Div 307 have expressly provided for absolute liability in relation to the quantity of border controlled drugs, plants or precursors that are imported in relation to commercial and marketable quantity thresholds. 230 There is no scope for implying strict liability otherwise, with the effect that the defence of mistake under s 9.2 is unavailable. In light of this, the decision in Narongchai Saengsai, above, can be viewed as an early example of the interpretive difficulties in applying the general fault provisions of the Code, a trend that has been evident also in relation to the drafting and interpretation of new federal terrorism offences discussed in Chapter 15, [15.180]ff. 231 This denial of the proper effect of s 5.6 as intended by the drafters, and as elaborated in the various guides produced for practitioners and legislative drafters, suggests that the Code did not have the educative effect on the fundamental importance of fault as hoped: see the discussion in Chapter 2, [2.25]. A more stringent approach to the application of fault for serious drug offences would be consistent with the recommendations of the MCCOC in its report, Chapter 6—Serious Drug Offences. In the MCCOC’s view, the imposition of absolute liability, or the reversal of the burden of proof, was considered exceptional, appropriate only for regulatory offences carrying a comparatively light penalty. In relation to trafficking and related drug offences, as a matter of principle and policy, the prosecution should be required to prove intent or recklessness beyond reasonable doubt. 232

Helping drug users: guilt by association and omission [14.145] Self-administration of heroin (or any dangerous drug) is an offence in most jurisdictions. 233 The punishment is generally a fine and/or a maximum of two years’ imprisonment. A person who provides another with injecting equipment is complicit in this unlawful act, and potentially liable for the consequences that may follow, such as death. In R v Cao, 234 the accused was found guilty by a jury of unlawful and dangerous act manslaughter for providing a clean needle and syringe to a heroin user who subsequently died after injecting the heroin. Given that 68% of fatal heroin overdoses occur in a home environment, and that in 58% of cases others are present sometime between injection and death, there is great potential for a large number of people to be liable for unlawful and dangerous act manslaughter. 235

229 230

231

232 233 234 235

Criminal Code (Cth), ss 6.1 and 6.2. Criminal Code (Cth), s 307.1(3), s 307.2(3), s 307.11(3), s 307.12(3). Absolute liability, as defined in the Criminal Code (Cth), s 6.2, provides that “there are no fault elements for any of the physical elements of the offence; and … the defence of mistake of fact … is unavailable”. For the challenges for both the legislature and courts, in giving effect to the aspirational liberal values underlying the Code general provisions that relate to the use of extraterritorial and strict liability provisions in the context of terrorism offences, see S Bronitt and M Gani, “Criminal Codes in the 21st Century: The Paradox of the Liberal Promise” in B McSherry, A Norrie, and S Bronitt (eds), Regulating Deviance: The Redirection of Criminalisation and the Futures of Criminal Law (Oxford: Hart Publishing, 2009). MCCOC, Chapter 6—Serious Drug Offences, Report (1998) pp 63–64. Drugs Misuse and Trafficking Act 1985 (NSW), s 12(1); Misuse of Drugs Act 1990 (NT), s 13; Misuse of Drugs Act 2001 (Tas), s 24; Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 75. R v Cao (unreported, 21–22/10/1999, NSWDC, Ford ADJC). For an excellent review of this case and its wider policy and criminal justice implications, see J Schimmel, “Heroin, Homicide and Public Health” (2002) 14 Current Issues in Criminal Justice 135. For one of the few [14.145]

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The case of Taktak 236 reveals the potential scope of criminal liability for omissions in relation to drug overdoses. The accused was an associate of a pimp and drug dealer who had asked the accused to procure two sex workers for him. Later that night, the accused was called to collect the sex workers, one of whom had overdosed. The accused took her to his flat, tried to awaken her by slapping her face, pumped her chest and gave her mouth-to-mouth resuscitation. At the trial, there had been conflicting medical opinion as to the exact time of death. The accused was convicted of manslaughter and on appeal the New South Wales Court of Criminal Appeal examined whether the accused, by his actions, had assumed a duty of care. Yeldham J held, “not without hesitation”, that there was evidence to support the jury’s conclusion that the accused had assumed a legal duty to seek medical aid for the victim. 237 Carruthers J had no difficulties recognising a duty to care for the victim, which “flowed from his taking her unconscious body into his exclusive custody and control and thereby removing her from the potentiality of appropriate aid from others”. 238 Both Yeldham and Carruthers JJ agreed that the conviction should be quashed, since the inconsistent medical evidence made it impossible to determine whether the accused’s conduct had amounted to criminal negligence and whether this conduct caused the death of the victim. Liability for omissions is discussed in Chapter 3 at [3.85], and Chapter 9 at [9.190].

Trafficking Offences [14.150] In the 19th century, the statutes prohibiting drugs as types of poison focused

primarily on restraining their use or administration. In the 20th century, the focus of drug legislation shifted to commercial dealing; in particular, to the problem of drug trafficking and organised crime. This is consistent with the emerging policy distinction between use and trafficking, with the latter being the focus of increasingly punitive measures. Since the 1970s, the emergence of links between organised crime and drugs have produced even tougher laws and penalties for drug trafficking. Separate and higher penalties for the supply or sale of “traffickable quantities” of drugs, were enacted in several jurisdictions. 239 Penalties relating to “commercial quantities” were aggravated to a maximum of 25 years or life imprisonment. 240 Commercial manufacture and cultivation of drugs and their precursors were also brought within the framework of trafficking offences, implementing the obligations contained in the various international treaties against drugs, discussed below. 241

236 237 238 239

240 241

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discussions on the legal and policy issues in light of the available data on overdoses, see P Williams and G Urbas, “Heroin Overdoses and Duty of Care”, Australian Institute of Criminology: Trends and Issues in Crime and Criminal Justice No 188 (Canberra: Australian Institute of Criminology, 2001). Taktak (1988) 34 A Crim R 334. Taktak (1988) 34 A Crim R 334 at 354. Taktak (1988) 34 A Crim R 334 at 357–358. Section 21A of the Poisons Amendment Act 1970 (NSW) introduced a maximum penalty of up to 10 years’ imprisonment. Similar provisions were enacted by the Dangerous Drugs Amendment Act (No 2) 1970 (SA), s 5; Health Act Amendment Act 1971 (Qld), ss 7, 12; Poisons (Drugs of Addiction) Act 1976 (Vic), s 6. Drugs Misuse and Trafficking Act 1985 (NSW), s 33 ($500,000 fine or life imprisonment); Drugs Misuse Act 1986 (Qld), s 8; Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 71AA. Under Criminal Code (Cth), the term “traffic” is used extensively in drug offences, and is defined in s 302.1. There is no consistent approach to trafficking offences, and, in some jurisdictions, manufacture falls within the scope of trafficking offences: see, for example, Drugs, Poisons and Controlled Substances Act 1981 (Vic). The Model Criminal Code, however, recommended the creation of a separate offence of manufacture of a controlled drug: cl 6.3. This proposal envisages a series of aggravated offences which increase the punishment in graded steps where the accused has manufactured a commercial quantity or large commercial quantity of controlled drug: MCCOC, Chapter 6—Serious Drug Offences, Report (1998), pp 107–109. This proposal has been adopted in two jurisdictions: in the Australian Capital Territory, with the passing of the Criminal Code [14.150]

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At both the international and national level, the focus of concern has shifted away from individual drug users to organised crime groups and networks considered responsible for trafficking. Reflecting the concern about cross border trafficking, the reach of the Commonwealth regulation was significantly extended by the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 (Cth). This Act contains several offences targeting the activities of individuals involved in drug trafficking. The Act received Royal Assent on 29 November 1990, but its commencement was deferred until 14 February 1993, the day that Australia ratified the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988). The principal offence—that is, possession of prohibited drugs, equipment or materials with the knowledge that they are being used in or for “dealing in drugs”—is an offence under s 9. The Act also prohibits dealing in drugs on board an Australian aircraft 242 and on board an Australian ship. 243 The “dealing in drugs” must constitute an offence against a law of the Commonwealth, of a State or Territory or of a foreign country. 244 In this sense, these trafficking provisions are parasitic upon the commission of other offences. Consistent with the objectives of the Convention, the offence aims to tackle the international dimension of the trade in illicit drugs. Section 6 contains an extensive list of activity that can constitute “dealing in drugs”: (1) For the purposes of this Act, each of the following is a dealing in drugs: (a) the cultivation of opium poppy, coca bush or cannabis plant for the purpose of producing narcotic drugs; (b) the separation of opium, coca leaves, cannabis or cannabis resin from the plant from which they are obtained; (c) the manufacture, extraction or preparation of a narcotic drug or psychotropic substance; (d) the possession of a narcotic drug or psychotropic substance for the purpose of the manufacture, extraction or preparation of another such drug or substance; (e) the sale, supply, or possession for the purpose of sale or supply, of a narcotic drug or psychotropic substance; (f) the importation into Australia, exportation from Australia, or possession for the purpose of such importation or exportation, of a narcotic drug or psychotropic substance; (fa) the manufacture, transport or distribution of any substance listed in Table I or Table II in the Annex to the Convention or of equipment or materials, with the knowledge that the substance, equipment or materials are to be used for a purpose set out in paragraph (a), (b) or (c); (fb) organising, managing or financing a dealing in drugs referred to in paragraphs (a), (b), (c), (d), (e), (f) or (fa); (g) the possession of any substance listed in Table I or Table II in the Annex to the Convention or of any equipment or materials, with the knowledge that the substance, equipment or materials are being used or are to be used for a purpose set out in paragraph (a), (b) or (c). (2) For the purposes of this Act, each of the following is also a dealing in drugs: (a) a conspiracy or attempt to engage in conduct that is, under subsection (1), a dealing in drugs; (b) being a party to any dealing in drugs referred to in subsection (1);

242 243 244

(Serious Drug Offences) Amendment Act 2004 (ACT), and in the Commonwealth, by the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Cth). Both the Australian Capital Territory and Commonwealth Codes now contain offences relating solely to the manufacture of controlled drugs and precursors, with the punishment graded according to the quantity of the controlled drug: Criminal Code (ACT), Pt 6.3; Criminal Code (Cth), Div 305. Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 (Cth), s 10. Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 (Cth), s 11. Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 (Cth), s 9(1)(b). [14.150]

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(ba) aiding, abetting, counselling or procuring, or being by act or omission in any way directly or indirectly knowingly concerned in, any conduct that is, under subsection (1), a dealing in drugs; (c) inciting to, urging or encouraging, any conduct that is, under subsection (1), a dealing in drugs.

There is clearly an overlap with the Criminal Code (Cth), Div 307 provisions. However, the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 (Cth) does not limit the operation of any other law of the Commonwealth, or any law of a State or Territory. 245 The increasing focus on drug traffickers, rather than users, was reinforced by the successive governmental inquiries into drugs from the 1970s to the 1990s. The Royal Commission headed by Williams J in 1980 affirmed the importance of this distinction, and proposed that offences relating to use and trafficking should be dealt with in separate legislation. In From Mr Sin to Mr Big, Desmond Manderson summarises the bifurcated legislative model recommended by the Commission as follows: “The proposed Drugs of Dependence Act punished minor offences including possession and use. It accepted that users were sick and in need of help; penalties were relatively slight, and the emphasis was placed on treatment and community services. The proposed Drug Trafficking Act was designed to facilitate the detection and punishment of trafficking. It assumed that the drug problem was a question of law enforcement requiring stiff penalties, broad search powers, and complicated provisions for the forfeiture of assets. Illness and vice were treated in isolation as if the problems they addressed were unrelated.” (footnotes omitted) 246

The Australian Capital Territory amended its legislation to implement the recommendations of the MCCOC that commercial dealing and “use” offences be dealt with in separate legislation. The Criminal Code (Serious Drug Offences) Amendment Act 2004 (ACT) removed all commercial dealing offences from the Drugs of Dependence Act 1989 (ACT), and created a new set of offences within the Criminal Code (ACT). The regulatory framework in the Drugs of Dependence Act has been maintained, so that a distinction continues to be drawn between “prohibited substances” and “drugs of dependence”. For example, heroin (diacetylmorphine) is a prohibited substance under Drugs of Dependence Regulations, while methadone is a drug of dependence. 247 From a medical perspective, both types of drugs have similar pharmacological properties, the potential to cause addiction and to adversely affect health if misused. A further category of drugs, “Chapter 6 substances”, has been added to the Drugs of Dependence Act (and the Criminal Code), and it is this category of substances which the Criminal Code (ACT) is concerned with. The Criminal Code Regulation 2005 (ACT) contains schedules that list the relevant Chapter 6 substances in tables, dividing them into the categories of “controlled drugs”, 248 “controlled plants” 249 and “controlled precursors” 250 and listing 245 246 247

248 249 250

Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 (Cth), s 5(1). D Manderson, From Mr Sin to Mr Big (Melbourne: Oxford University Press, 1993) p 181. The distinction between heroin and methadone in the Drugs of Dependence Act 1989 (ACT) is ultimately based on the legality of the drug. This plays a crucial moral as well as legal role in differentiating between the legitimate treatment of users involving the medical use of methadone and the illegitimate recreational use of “dangerous” drugs, such as heroin. While the Act itself does not explain the basis for this two-fold classification, the rationale provided in the Explanatory Statement accompanying the Act is that while drugs of dependence have medical use, prohibited substances have no medical use and are harmful for recreational purposes: D McDonald, R Moore, J Norberry, G Wardlaw and N Ballenden, Legislative Options for Cannabis in Australia, National Drug Strategy Monograph No 26 (1994) pp 19–21. This explanation is hardly convincing when one considers that heroin, which is classified as a dangerous drug, had a wide and legitimate use in medical treatment prior to its complete prohibition in the 1950s. Criminal Code Regulation 2005 (ACT), Sch 1. Criminal Code Regulation 2005 (ACT), Sch 2. Criminal Code Regulation 2005 (ACT), Sch 3.

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the amounts that constitute trafficable, commercial and large commercial quantities. By virtue of these amendments, the most serious penalty for contravening the Drugs of Dependence Act has been reduced from life imprisonment to five years. The focus of the Drugs of Dependence Act has shifted from one of criminal sanctions to one of regulation. By contrast, the Criminal Code (ACT) now deals with all “trafficking” of trafficable, commercial and large commercial quantities of controlled drugs, plants and precursors commercial dealing in drugs. Potential sanctions under the Criminal Code (ACT) include life imprisonment. The Criminal Code (Cth) has similar trafficking offences included in it by virtue of the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Cth), for the purpose of consolidating serious drug offences into the Criminal Code. 251 Division 302 deals with trafficking controlled drugs and has graded penalties, ranging from life imprisonment and/or 7,500 penalty units for commercial quantities trafficked, 252 to 25 years’ imprisonment and/or 5,000 penalty units for marketable quantities, 253 to 10 years’ imprisonment and/or 2,000 penalty units for other quantities. 254 Thus, while no other jurisdiction besides the Australian Capital Territory has adopted a model based on separate legislation, a clear distinction between use and trafficking is apparent in the Criminal Code (Cth) and in all other State and Territory legislation. The following table contains a comparison of offences dealing with heroin, revealing the diversity of approaches to criminalisation, the structure of offences and range of penalties. Table 2 Australian drug legislation and penalties—comparative tables (heroin) Note: penalties given are in relation to sale/supply/trafficking of quantities of more than the amount shown. Jurisdiction Pure of mixed Possession Small quantity Traffickable Commercial Large (users) quantity quantity commercial (raises quantity presumption) MCC pure or mixed 3 g pure or 25 g pure 750 g pure MCCOC mixed 50 g mixed 1 kg mixed Chapter 6 — 10 years 20 years life — — Serious Drug Offences Report (1998) Cth pure or mixed any quantity 2g Known as Known as Criminal Code 2 years +/ 10 years +/ “marketable” “commercial” Criminal Code 400 penalty 2,000 penalty quantity: quantity: Regulations units units 250 g 1.5 kg — 2002 (s 308.1) (s 302.4) 25 years +/ Life +/ 7,500 5,000 penalty penalty units units (s 302.2) (s 302.3) ACT pure or mixed any quantity 2g 0.8 kg 1.5 kg Criminal 2 years +/ 10 years +/ 25 years +/ life Code, 50 penalty 1,000 penalty 2,500 penalty (s 603(1) Drugs of units units units Criminal — Dependence (s 171 Drugs (s 603(7) (s 603(3) Code) Act 1989 of Criminal Criminal Dependence Code) Code) Act 1989)

251 252 253

Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Bill 2005, Explanatory Memorandum (2005) p 6. Criminal Code (Cth), s 302.2. Criminal Code (Cth), s 302.3.

254

Criminal Code (Cth), s 302.4. [14.150]

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NSW Drugs Misuse and Trafficking Act 1985 NT Misuse of Drugs Act 1990

Qld Drugs Misuse Act 1986

mixed

mixed

mixed

any quantity 2 years +/ 20 penalty units (ss 10, 21)