Criminal Law (Procedure)

Reading List 2010

Lecturer: Ben Clarke

Contact Details: bclarke@nd.edu.au

Tutor: Chris Mulley

Contact details: cmulley@nd.edu.au

Key: ‘CR’ = Closed Reserve, ‘*’ = highly recommended

reading.

1
Lecture 1: Introduction to Criminal Law

Required Reading:
Colvin & McKechnie, Criminal Law in Queensland and Western Australia, 5th Ed,
Chapter 1 & 2
WA Criminal Code 1913 ss2 - 3
*Bronitt & McSherry 17-24

Further Reading:
Whitney, Flynn and Moyle, The Criminal Codes Commentaries and Materials.
Chapter 1
Kenny, An Introduction to Criminal Law in Queensland and Western Australia, 6th
Ed, Chapter 1.
Clarkson & Keating, Criminal Law: Text and Materials, 3rd Ed, Chapter 1 & 2.

1. What is Criminal Law?

Criminal law is a body of law dealing with prohibited conduct defined as offences,
crimes or misdemeanors felonies or similar found in treatise, texts, common law
decisions, guideline judgments, statutes, codes, conventions and international
instruments. These rules direct that certain acts are punishable by the state.

See Crofts & Burton, The Criminal Codes: Cases and Commentary (2009), 1.20

i. What is Crime?

ii. Purposes of Criminal Law

To determine guilt or innocence

To exact retribution
To deter others from criminal conduct
To rehabilitate offenders
To incarcerate serious offenders
To incapacitate the dangerous
To deliver restorative justice
To protect the community

iii. What is the Criminal Justice System?

Narrow definition
The process whereby people are charged and broad before the courts and their
guilt or innocence is determined according to law.

Broad definition

2
The processes people institutions and laws associated with the defining
monitoring enforcing of rules for which the breach of which attracts a sanction.
(Butterworths Australian Criminal Dictionary p 54)
iv. Fundamental principles of the WA Criminal Justice System

-Right to silence – Petty v R 1991 173 CLR 95

-Right to a fair trial – Dietrich v R 1992 177 CLR 292
-Presumption of innocence
-Adversarial as opposed to Inquisitorial system
-Standard of Proof: Beyond Reasonable Doubt
Michael Yousseff (1990) 50 A Crim R 1 (Crofts & Burton,
1.170)
Goncalves v R (1997) 99 A Crim R 193 (2.15C)

Application:

R v Hutchinson (2003) WASCA 323 (Colvin 2.17C)

-Onus of Proof: generally on the crown

R v Punj (2002) QCA 333 (Colvin 2.16C)

-Double jeopardy principle

But see: s678B Criminal Code (Qld).

v. Crime, Civil Rights and Justice - Balancing interests:

Need for effective criminal justice system verses need to protect

individuals from arbitrary arrest and invasion of their privacy and
property.

2. Code Jurisdictions Crofts & Burton 1.40-1.50; Colvin 1.10-1.18

The Griffith Codes:

QLD Criminal Code Act 18991
WA Criminal Code Act 1913

Other Codes:
Tasmanian Criminal Code Act 1924
NT Criminal Code Act 1983
See also: Cth Criminal Code Act 1995 - intended as a model code for
the whole of Australia.

Generally: Goode, Matthew, ‘Codification of the criminal law’, (2004)

28(4) Criminal Law Journal 226-236.

1
Note: Students are not required to study Queensland Code provisions.
However: Queensland cases on provisions similar to those found in the WA Code may have
persuasive value in this jurisdiction.

3
Principles on interpretation of Codes:

Crofts & Burton, 1.60-1.90

3. Common Law Jurisdictions

-Courts in these jurisdictions exercise powers in accordance with CL

principles.
-Offences are defined to some extent by common law principles.
-Practices and procedures are defined to some extent by CL cases.
-Criminal procedures in Code jurisdictions are set out essentially in
the Code itself.

4. Types of Criminal Liability

Personal
Corporate Crofts & Burton 1.230-1.240; Colvin 21.5-21.18C,
Part 2.5 Commonwealth Criminal Code Act (1995)
Strict Colvin 9.7
Criminal Code (Cth) ss6.1-6.2 & 12.5.
Absolute Colvin 9.7

4
Week 2: The Role of the Judge, Jury and Counsel for
the Defence and Prosecution in a Criminal Trial

Required Reading:
Professional Conduct Rules, Law Society of Western Australia, Rules
3, 13-15 (CR)
Colvin (CLB) Chapter 22 (WA sections)
Guide to Judicial Conduct, Australian Institute of Judicial
Administration Inc. (2002) (CR)
Gleeson CJ (HCA), Role of the Judge and Becoming a Judge
*Guidelines on the Role of Prosecutors (1990)
Basic Principles on the Role of Lawyers (1990)

Further Reading:
Brown, Criminal Law Western Australia (Loose leaf bind on reserve):
• Juries Act (67,001) s52, 56B, 57,
• Statement of Prosecution Policy and Guidelines 1999 (72,001),
• The Western Australian Police Service Statement of
Prosecuting Policy and Principles (72,701) (CR)
*Criminal Procedure Act (2004), ss102-112

Optional Reading
“Rule Books for the Rule Makers”, The Law Report 18/06/2002
“Judges who hit back - when attacked in the media”, The Law Report
11/06/2002
“Pat O'Shane and judges' comments” Law Report 26/06/2001
*UN Basic Principles on the Independence of the Judiciary (1985).
“Selection, Eligibility and Exemption of Jurors: Discussion Paper”
Law Reform Commission of Western Australia (2009) Project 99.
Juries
Role of Judge and Jury (CR)

5
Juries: How do they work, Do we wont them? International Society
for the Reform of Criminal Law (CR)
Brendan Cassidy, ‘Juries speaking: some thoughts on removing the
‘gag’ on jury deliberations’ [2000] Alt LJ 2.
Nadya Labi, “Cameras? Jury's Still Out” Time December 9 2002 (CR)

Defence and Prosecution Counsel

*”The Ethics of Criminal Lawyers” The Law Report (12/11/2002)
B. Clarke ‘An Ethics Survey of Australian Criminal Law Practitioners’
(2003) 27 Crim LJ 142.
Media Comment and Client Confidentiality
Legal Practitioners Complaints Committee and Trowell [2009]
WASAT 42 (13 March 2009) (Austlii) para 449, 451-2.

Optional Reading:
Mason, A (Former CJHC), “The Appointment and Removal of Judges”
Smith, S “Diversifying the Judiciary: The Influence of Gender and
Race on Judging”, 28 U. Rich. L. Rev. 179 (Lexus)
Nicholson J (Federal Court of Australia) The Legal Concept of Judicial
Corruption CIJL Yearbook 2000 (CR)

Four Participants in a Jury Trial

1. The Judge
-Powers and functions
-Responsibilities

See : State of WA v Pollock (2009) WASCA 96 3 June 2009, per

Martin CJ

2. Defence Counsel
-Duties to the court and client in a criminal trial
-Duty of candour
-Duty of courtesy to the court, the crown and witnesses

Note: In Western Australia neither counsel may cross-examine

potential jurors

3. The Prosecution
-Balancing duties to complainant and to the community in
general
-Discretion regarding the calling of witnesses
-DPP guidelines for conduct of prosecution in a criminal trial
-Note: Distinction between roles of defence and prosecution counsel

4. The Jury

6
Trial by Jury Alone is provided for in Chapter LXIV of the Criminal
Code (WA)

Function of a Jury
-Limitations on disclosure of deliberations by jurors to the
media etc…
-Unanimous verdicts and majority verdicts s114 CPA

Note:
-It is an offence to disclose, publish or distribute jury
information
-Jury cannot be photographed
-Bystanders may be sworn as jurors if necessary

Should conscientious objectors be excused from jury service?

See: Report 42 (1984) - Community Law Reform Program:
Sixth Report - Conscientious Objection To Jury Service.

Law Reform:
1. Should the jury be involved in the sentencing process?
See NSW Law Reform Commission Report 118 (2007) – the Role
of Juries in the Sentencing Process.
2. Should persons with serious hearing or vision impairment be
excluded from jury service? See: New South Wales Law Reform
Commission Reference 2002

2. For a historical examination of amendments to the rules on jury

service in Western Australia, see “Exemption from Jury Service” Law
Reform Commission of Western Australia Project No.71 (1978). (CR)

Discussion Questions:
1. Should juries be able to disclose details of their deliberations to the media
or lawyers after a verdict is reached?
2. When may the participants in a trial be required to disqualify themselves
from involvement in the trial?
3. To what extent should judicial officers be able to participate in public
debate on political, legal and social matters, or even specific criminal
trials?
4. Give examples of circumstances where it is both appropriate and
inappropriate for defence counsel to speak to the media about a client’s
case.
5. Should criminal trials, appeals and sentencing hearings be publicly
broadcast in a free and democratic society?
6. What impact does lack of representation for the accused have upon a trial,
and what are the responsibilities of the prosecution and the trial judge in
these circumstances?
7. How ‘democratic’ is the trial process in Australia? Does the answer
matter?
8. What role, if any, should the jury play in the sentencing process?

7
8
Week 3: Classification of Offences & Trial Procedure
Required Reading
Whitney et al, Chapter 1 and 2
Kenny Chapter 2 and 4
*Duty Lawyers Handbook pp21-29, 46-50

Legislation
Criminal Procedure Act (2004) WA
Criminal Code (CC) (1913) WA
(See sections listed below)

For statute extracts, see:

Brown, Criminal Law Western Australia (Reserve)
Ian Weldon, Annotated Criminal Legislation, Western Australia
(2010)
A. Classification of Offences

Western Australia

Crofts & Burton 1.250-1.270

Colvin pp11-12

Section 3 Criminal Code

-Indictable offences
-Simple offences

Note : The former category of offences known as ‘misdemeanors’

has been removed from the Code.
See: Weldon, p51.
But see: S67 Interpretation Act 1984 (WA) (Misdonemors are still
referred to. They could exist under some statute or another.)

Queensland has a category of offence known as the ‘regularly

offence’. See Regulatory Offences Act (Qld) 1985 Kenny 15.35

WA Police may issue ‘infringement notices’ for proscribed offences

(e.g. minor cannabis and traffic offences). See CPA s5, 8.

9
AA. Types of Pleas

s126 CPA

B. Indictable offences v Summary Offences:

-Indictable Offences may be tried before a Judge alone, or Judge and

Jury.
-Judge determines questions of law and jury decides questions of
fact.
-Summary offences usually finalized in the Magistrates’ Court where
Magistrate determines questions of law and fact.

Note: The Children’s Court is a ‘summary court’ when determining

indictable offences under s 19B(4)(c) of the Children’s Court Act :
State of WA v G (a child) [2009] WASC 234.

C. Commonwealth Offences (Colvin 9.1-9.12)

Crimes Act 1914 (Cth) distinguishes indictable and simple offences.

S4G - if punishable by > 12months = indictable offence
Same principal applies to other commonwealth crimes. E.g.

• Bigamy section 94 - Marriage Act 1961

Smuggling section 233 - Customs Act 1901
Murder of an Australian Citizen or a Resident of Australia section
104.1
- Criminal Code Act 1995

D. Crimes against International Law

Bronnitt & McSherry pp 851-889

Domestic statutes that implement relevant treaty obligations:

1. War Crimes Act 1945

2. Crimes (Overseas) Act 1964
3. Extradition Act 1988
4. Diplomatic Privileges and Immunities Act 1967
5. Criminal Code Act 1995
Division 268 codifies the following international crimes:
genocide, crimes against humanity, war crimes and
crimes against the administration of the justice of the
International Criminal Court.
6. International Criminal Court 2002

E. Classification of Courts

10
Courts located in Western Australian that exercise criminal
jurisdiction

State Courts
Supreme Court
District Court
Magistrates’ Court - Criminal Jurisdiction s11 Magistrates’ Court Act
Note: Every Magistrate is contemporaneously a Coroner: See
Coroners Act 1996 s11
Children’s Court

Federal Courts
Federal Court of Australia – e.g. Violations of the corporations law
Federal Magistrates Court - e.g. consumer protection, human rights
& migration. Family Court of Australia – e.g. breaches of Family
Court orders
High Court of Australia – e.g. constitutional validity of laws and other
matters (final court of appeal in Australia)

F. Magistrates’ Court Procedure: Simple Offences:

- Commencement of proceedings by notice, arrest or summons

(CPA S32)
- Trial before one Magistrate or one or more JPs: Magistrates
Court Act 2004 s7
- Court can dismiss charge if complainant or prosecution does
appear CPA s53(2) and s54(2)
- Where Defendant pleads guilty, penalty may be imposed in
absencia CPA s51
- Defendant can plead Not Guilty in absencia CPA s50
- Police Prosecutors appear for complainant
- Faster system of justice than trial on indictment
- No jury
- Many indictable offences may be summarily determined: See
Duty Lawyer Handbook
- Dismissal of charge for want of prosecution ss53-54 CPA

Procedure for dealing summarily with any charge

-Appearance by both prosecutor and accused s58 CPA

-Initial procedure, pleading s59 CPA
-Plea of not guilty, procedure on s60. CPA
-Mandatory disclosure by prosecutor s61. CPA
-Mandatory disclosure by accused of certain matters in certain
cases s62, CPA
-Trials, procedure s65. CPA
-Court must record its decision s68. CPA

11
G. Magistrates’ Court: Indictable Offences

-Commencement often by arrest but may be by summons

-Director of Public Prosecutions Prosecutors appears for
complainant in certain matters
-DPP can take over private complaints
-Accused committed for trial CPA s47
-Fast track plea of guilty
-Procedure on committal mention CPA s43-45
-“Either way” charges CPA s40
-Charges that are to be tried on indictment CPA s 41.
-Full disclosure by prosecutor CPA s42.
-Administrative committals ss43-47 CPA

H. Offences that can be dealt with summarily or on

indictment (“each way” offences)

- Indictable offence dealt with in Magistrates’ Court is deemed a

summary conviction. CC s3(5)
- Magistrates power to refer indictable matter to superior court
if summary jurisdiction inadequate
- See Duty Lawyer Handbook (June 2005) pp26-27 (CR)

I. Procedure in Superior Courts (District or Supreme Court)

-How a prosecution is commenced s83, CPA.

-Where a prosecution may be commenced s84, CPA.
-Indictments, formal requirements and service of s85, CPA.
-Discontinuing a prosecution s87, CPA.
-Staying a prosecution permanently s90, CPA.

Plea Not Guilty

-Plea of not guilty, consequences of s92, CPA.
-Plea of not guilty on account of unsoundness of mind - s93,
CPA.

Guilty Plea
-Sentence before Judge alone (no jury)
-Usually via fast track plea
-Related summary offences can be dealt with on sentence in
superior courts
-ss32-33, Sentencing Act 1995 and criminal practice
directions. (Brown)
-Indictments prepared by DPP prosecutors
-Presence of accused required to enter plea

12
Trial Procedure
-Crown Case (Evidence for the Prosecution)

Speeches by Counsel

-Opening address: s143 CPA

-Examination in chief (by prosecution)
-Cross examination (defence)
-Re-examination (Prosecution)
-No case submission at end of crown case s108 CPA
-Final addresses by counsel s145 CPA
-If accused gives evidence, crown has the right of final
address to the jury
-Judge may instruct jury to acquit

Judges Summing Up s112 CPA

-Judge explains the law and makes directions to the jury

regarding their task
-Judge may address on the evidence
-Directions must be relevant to the case Holland (Colvin
29.21 2nd Ed. Only)

Where evidentiary burden satisfied judge directs on

applicable defences
Stingel Colvin 15.32C
Buttibeig Colvin p339
Generally judge directs of each element of the offence
charged
But see Holland: (Colvin 29.21 2nd Ed. Only)

J. Right to Fair Trial

McKinney Colvin (see case index)

Deitrich Colvin 28.55C
Western Australia v Christie (2005) WASC 214 (Colvin 28.51C)
Livermore v R (2006) NSWCCA 334 (Colvin 28.52C)

K. Trial Delay

Jago Colvin 22.29C

Gill Colvin 27.26

L. Pre-trial Publicity

Glennon (1992) 173 CLR 592 (Colvin 28.53C)

R v Georgiou, Edwards and Heferen ex parte A-G (Qld) [2002]
QCA 206. pages 210-215.

13
 R v Long;Ex Parte A-G (Qld) (2003) QCA 77 (Colvin 28.54C)

M. Right to Legal Representation

Dietrich Colvin 28.55C

Milat Colvin 28.34C (4th ed)
Kennedy Colvin 28.28 (4th ed)
R v Long Colvin 28.31C (4th ed)
Barton Colvin 28.50C

N. Miscellaneous
-Prosecution of Corporations s152-155, s180-181 CPA.
-Commencement of prosecutions:
Summons s32 and Schedule 2 Clause 2
Disobeying summons s181
Prosecution Notice: See Division 2 CPA
Infringement Notices (see above)
-Pleas - S126 CPA
-Constitutional and Territorial Issues: Colvin 1.6-1.9.

14
Lecture 4: Introduction to Homicide Offences

Objectives
1. To identify the various types of homicide offences.
2. To learn the elements of each type of homicide offence.

Required Reading
*Crofts & Burton Ch 3 (The only text on current WA homicide
laws)

Further Reading:
Kenny Ch 12 (dated)
Colvin Ch 3 (dated)
Clough Mulhern pp 65-75 (dated)

What is Homicide:
The lawful or unlawful killing of one human being by another.

The term is not defined in the WA criminal code but is a global term
to define killing of a human being.

Definition of Homicide:

S 270 Any person who causes the death of another directly

or indirectly by any means whatsoever is deemed to have
killed that other person.

Lawful Homicide:
Killing another in circumstances where it is justified authorized or
excused by law.

Unlawful Homicide
Killing another in circumstances where it is not justified authorized
or excused by law

15
Definition of Killing
S270: Any person who causes the death of another directly or
indirectly by any means whatever is deemed to have killed that
other person.

Meaning of Death
No legislative or judicial definition of death for the purposes of
criminal law in WA or Qld.

Life support cases

Kinash 1982 Qd R 648 at 649.
Malcherek & Steal 1981 1 WLR 690 at 694
Barber and Nedl v State of California 1983 unrep 1984 ALJ 291
Blaue 1975 1 WLR 1411
Castles 1969 QWN 36.
Human Tissue and Transplant Act 1982 (WA)

S 24(2) irreversible cessation of circulation of blood in the body of

the person.
Airedale NHS Trust v Bland 1992 1 AER 821

Homicide offences in Western Australia

Chapter 28 Criminal Code

Murder ss 279,282
Manslaughter s280, 287
Infanticide ss281A, 287A
Aiding Suicide s288
Killing unborn child s290
Concealing birth of a child s291
Unlawful Assault Causing Death s281

Dangerous Driving causing Death s59 Road Traffic Act

Student task: Identify the elements of each of these offences.

A. Murder Offences

There are 2 main forms of murder in WA:

1. Intention to kill
2. Intention to do a bodily injure which endangers, or is likely
to endanger life
3. Death caused by act in prosecution of unlawful purpose
where likely to endanger life

Intention to kill
Murder s 279(1)(a)

16
 This form of murder involves an unlawful killing accompanied
by an intent to kill

Intention to do a bodily injure which endangers, or is likely

to endanger life
Murder s 279(10(b)

Death is caused by act done in prosecution of an unlawful

purpose when act is likely to endanger human life

Murder s279(1)(c)

B. Manslaughter

Definition s280

Unlawful killing in circumstances which do not amount to Murder or

Wilful Murder.
(E.g. where provocation is established.) Max Penalty: 20 years
(s287)

Kenny pp 239-241

C. Unlawful assault causing death s281

Person unlawfully assaults another who dies as a direct or indirect

result of the assault.

D Culpable driving (other than a motor vehicle) causing

death s284

Note: this covers aircraft pilots and ship captains. See s 284(1).

E. Killing Unborn Child s290

Killing a child which has not yet been fully born (by preventing it
from being born alive) is a crime. Woman must be about to deliver
ie within days of birth.
Max Penalty : Life Imprisonment

F. Aiding Suicide S288

A person who procures or counsels another to kill himself and

thereby induces him to do so or aids another in killing himself is
guilty of a crime.

17
Note: Attempting to commit suicide was a criminal offence. It was
repealed in 1972.

G. Traffic Homicide

Dangerous Driving Causing Death

S59, s59B Road Traffic Act 1974

Callaghan Colvin 4.48C
Smith 1976 WAR 97
McBride 1966 115 CLR 44
Warner 1980 Qd R 207
Jiminez Colvin 4.40
Kaighin v R (1990) 1 WAR 390

Reading:

Colvin 4.39-4.40

Repealed Homicide Offences

Note: A number of homicide offences were repealed in 2008. They
include:
1. Willful murder (formerly s278) which is now covered by
s279(1)(a)
2. Infanticide (formerly s281A)

18
 Lecture 5: Causation
Required Reading:
Crofts & Burton 3.130-3.210
Bronitt & McSherry (CR) pp163-172, 454.
Colvin, E, "Causation in Criminal Law" [1989] 1 Bond Law Review
253
Colvin (Text) pp 34-51

Optional Reading:
Arenson, KJ “Causation in the Criminal Law: A search for Doctrinal
Consistency” (1996) 20 CLJ 189 (Common Law Causation)

Key principles:
1. In any criminal offence, crown must prove accused caused the
particular result charged in the indictment.
2. In homicide, the Crown must prove the accused caused the death
of victim either directly or indirectly.
3. Chain of causation must not be broken.

Causations Tests

“but for” test

Royall per McHugh J Para 100 (Whitney p 63)

Common law tests considered by the High Court in Royall

1991 172 CLR 378

1. Operating and substantial cause test

2. Natural consequence test
3. Reasonable foresight of consequence test
4. Novus actus interveniens test

Causation analysis:

Step 1:
Do any of the deeming provisions in the code apply to establish
causation?
If yes, causation is established.
Does a duty provision apply? If yes causation will be established.
If no to both questions, go to step 2.

Step 2:
Apply tests 1-3 above. If one or more of these tests are applicable
go to step 3.

19
Step 3:
Has there been a break in the chain of causation?
Novus actus interveniens - Hallet 1969 SASR 141

Deeming Provisions and Causation

In certain circumstances the accused is deemed to have

caused death.

s271 killing of child CC

s272 threat intimidation or deceit CC
s273 hastening death of victim who suffered a disorder or illness CC
s274 where death might have been prevented by treatment CC
s275 death resulting from subsequent treatment CC
s59(2) Road Traffic Act 1974 (as amended in 2004)

Cases:
Cronau (1980) 3 ACrim R 460 CCA Qld
R v Iby (2005) NSWCCA 178 (Colvin 3.21C)
Krakouer v State of WA (2006) WASCA 81 (Colvin 3.23C)
Vera Humpreys 1943 StR Qd 156
Levy 1949 51 WALR 29
R v Smith [1959] 2 QB 35 CA
R v Jordan (1956) 40 Cr App R 152 CA.
R v Pagett (1983) 76 Cr App R 279 CA.
R v Blaue [1975] 1 WLR 1411 CA
Cook 1980 A Crim R 151
Royal (HC) 1990 172 CLR 378
Campbell 1981 WAR 286
Rv Evans and Gardner no2 1976 VR 523
Airedale National health Service Trust v Bland (1993) AC 789 (1993)
(Colvin 3.22C)

20
Lecture 6: Duty Provisions and Intention

Required Reading:
Colvin Chapter 4
Whitney pp66-72, 85-100
Kenny pp235-236 & 8.31-8.35
Crofts & Burton 3.280, 3.300, 3.380-3.400,
3.230-3.250

Further Reading (optional)

Clough and Mulhern pp 82-96

Duties Relating to Preservation of Human Life Ch XXVII

Coney 1882 8 QBD 534 at 557-

McDonald 1904 St R Qd 151
Re Baby M Case No 3149/89
Taktak 1988 34 A Crim R 334

Breach of Duty Manslaughter ss 262-267

Breach of one of the duties in ss 262-267 can result in the
Defendant being charged with Manslaughter.

Definition of Manslaughter

280. A person who unlawfully kills another under such circumstances as not
to constitute wilful murder or murder is guilty of manslaughter.

Killing Under Provocation s281

281. When a person who unlawfully kills another under circumstances

which, but for the provisions of this section, would constitute wilful murder
or murder, does the act which causes death in the heat of passion caused by
sudden provocation, and before there is time for his passion to cool, he is
guilty of manslaughter only.

- Dangerous Things (Whitney pp93-95)

R v Dabelstein 1966 Qd R 411

*Jackson and Hodgetts (1989) 44 ACrim R 320

Standard of Care (Whitney pp 91-93, 95-102)

The lack of care must rise to the level of criminal negligence to

secure a manslaughter conviction.

21
*R v Macdonald and Macdonald 1904 St Qd R 151
*R v Jackson and Hodgetts (1989) 44 A Crim R 320
*Callaghan v The Queen (1952) 87 CLR 115 (Colvin 4.35C)
Griffiths (1994) 76 A Crim R 164
R v Young (1969 Qd R 417 (Criminal Negligence)

Motor Vehicle Manslaughter/Dangerous Driving Causing

Death
See ss280, 266 CC
See Colvin 4.24
(Also: Road Traffic Act (WA) s 59)

McBride (1966) 115 CLR 44 at 50

*Jiminez (1992) 173 572 at 597
*Winner (1995) 79 A Crim R 528 (Colvin 4.28C)

A person who drives a motor vehicle negligently and thereby causes

the death of another is guilty of manslaughter if the negligent act
amounts to criminal negligence.

McKenna (1992) 63 A Crim R 452

Unlawful killing which does not amount to murder - s280

(Whitney 85-86)
*Reg v Gould and Barnes (1960) Qd R 283
R v Martyr (1962) Qd R 398
Mamote –Kulang of Tamagot v R 1964 111 CLR 62
Timbu Kolian HC 1968 119 CLR 47
*Taiters 1996 87 A Crim R 507 Colvin 4.32C

‘Corporate Manslaughter’

Occupational Safety And Health Act 1984 (WA)

s19. Duties of employers
s55. Offences by bodies corporate
s3A(4) (Criminal penalties)

See Colvin pp476-479

Should WA corporate directors and other company officials face

imprisonment as well as fines if employees are killed at work due to
the negligence of directors?

Intention

A. S278 Wilful Murder (Intention to Kill)

Coincidence between mental state and physical acts

22
Thabo Meli 1954 1 All ER 373
McKinnon 1980 2 NZLR 31 at 35-7

B. s279 (1) Murder (Intention to do GBH)

Definition of GBH s1

Charlie v Queen (1999) HCA 23 (Crofts & Burton 3.340 or Whitney

p74)

C. Meaning of Intention:

Schultz CCA WA 1982 WAR 171

Honner 1977 Tas SR 1
Watson CCA Qld 1986 22 A. Crim R 308
Willmot(No2) 1985 2 Qd R 413
Hyam v DPP 1975 AC 55
Moloney 1985 2WLR 648
Crabbe 1985 ALJR 417
R v Woollin (1999) AC 82 HOL (Colvin 4.27C)

D. Dangerous Act Murder

Kenny pp 236-239

S279(2)
Hind and Harwood 1995 80 A Crim R 105
(See also: Harwood v The Queen [2002] HCA 20)

Boughey (1986) 60ALJR 422

Gould and Barnes CCA Qld 1960 Qd R 283
Hughes 1951 84 CLR 170
Stuart 1974 4 ALR 545
McKenna 1992 7 WAR 455

Further Reading:
N, Morgan, “Case Note on McKenna” (1993) 17 Crim LJ 120

E. Recklessness

No specific statutory provision in WA Code relating to murder and

recklessness. .
Recklessness is apparently not sufficient for murder in WA:

Kenny 8.35
I Campbell, “Recklessness in Intentional Murder under the Australian
Criminal Codes” (1986) 10 Crim L.J. 3

23
Moloney 1985 AC 095
R v Willmot No 2 1985 2 Qd R 41

‘Complex series of factors’ bearing on accused’s intention

Turner v The Queen [2004] WASCA 127 per Wheeler J (See Crofts &
Burton 3.290)

F. Euthanasia

Reading:
*Crofts & Burton 3.800-3.920
Bronitt & McSherry pp459-467

Medical Doctrine:
Statement relating to the Relief of Pain and Suffering and End of Life
Decisions (Australian and New Zealand College of Anesthetists)
June 1999 p 93

Catholic Doctrine
Pope Pius XII, “The Prolongation of Life.” An Address to an International
Congress of Anaesthesiologists, 24 November 1957. The Pope Speaks 4
(1957), pp. 395-6; AAS 49 (1957):146. (see powerpoint slide)
John Paul II, Evangelium Vitae: On the Value and Inviolability of Human
Life. Encyclical Letter, 25 March, 1995. (Vatican City: Libreria Editrice
Vaticana, 1995), no. 65. (see powerpoint slide)

Media Reports:
‘Doctors Death and Criminal Law’ The Law Report (Tuesday 30/10/2001)
‘Angels of Death’ The Law Report (Tuesday 21/1/2003)

Case Law:

*Brightwater Care Group (Inc) v Rossiter [2009] WASC 229

Northridge v Central Sydney Area Health Services (2000) NSWSC
1241

Question:

1. Would Northridge v Central Sydney Area Health Service be decided any

differently in WA?
2. “The decision in Rossiter is legally sound but morally questionable.” Discuss
3. National polling has indicated that 80% of the Australian population support
euthanasia for the terminally ill and those in permanent chronic pain. Why then
haven’t state and commonwealth parliaments provided a legislative framework to
allow euthanasia in restricted circumstances?

3. Why is the issue of whether to introduce active voluntary euthanasia legislation

so controversial?

24
3. Doctor Strangelove wants to help terminally ill people who are suffering
extreme pain to die with dignity. He wants to design a machine that will allow the
person’s relatives to be present at the time of death without the relatives being
exposed to criminal liability for the death. He invents a machine that is operated
by the terminally ill person. The patient presses a button and is injected with a
large dose of morphine in one hit. The patient would then slip into
unconsciousness and die. The machine can be unpacked and set up by the
patient without help from others. All that is needed is the dose of morphine.
(Assume that this quantity can be obtained by prescription.)

Advise Dr Strangelove on whether the sale of these machines (accompanied by a

prescription for morphine) would render him liable for a homicide offence in
Western Australia.

25
Lecture 7 & 8: Non Fatal, Non Sexual Offences
against the Person

Reading:

Crofts & Burton Ch 4

Colvin Ch 5

Blazey-Ayoub, P “The Law of Spitting” (1998) 22 Criminal Law

Journal p151
Syrota G, “Consensual Fist Fights and Other Brawls: Are they a
Crime?” 26 WALR (1996) p169
O’Regan, “Consent to Assaults Under the Queensland Code” (1993)
26 UWALR 169
Kell, D “Consent to Harmful Assaults under the Queensland Criminal
Code: Time for a Reappraisal?” (1994) ALJ 287

1. Assaults

WA Criminal Code

Definition of assault
222.A person who strikes, touches, or moves, or otherwise applies force of
any kind to the person of another, either directly or indirectly, without his
consent, or with his consent if the consent is obtained by fraud, or who by
any bodily act or gesture attempts or threatens to apply force of any kind to
the person of another without his consent, under such circumstances that
the person making the attempt or threat has actually or apparently a
present ability to effect his purpose, is said to assault that other person, and
the act is called an assault.

The term ``applies force'' includes the case of applying heat, light,
electrical force, gas, odour, or any other substance or thing whatever if
applied in such a degree as to cause injury or personal discomfort.

See also Colvin pp95-6

Unlawful Assault

223.An assault is unlawful and constitutes an offence unless it is authorized

or justified or excused by law.

The application of force by one person to the person of another may be

unlawful, although it is done with the consent of that other person.

“Application of Force”

Actual force includes strike, touch, move or otherwise apply force to

another directly or indirectly

26
- The common law definition of actual force is Battery
- See: Queen v Marc Jerome Jacob WACCA 22/6/78 (Unreported)
Whitney et al pp117-118

Attempted or threatened force includes any bodily gesture where

the threatener has the actual or apparent present ability to
effect the purpose:
Brady v Schatzel (1911) St R Qd 206 para 206 (Crofts & Burton 4.220)

- Common law definition of this form of conduct is Assault

Queen v Marc Jerome Jacob WACCA 22/6/78 (Unreported) Whitney

et al pp117-118

Without Consent

Abbott v R (1995) 16 WAR 313

Kimmorley v Atherton 1971 Qd R 117 Whitney
Pallante v Stadiums Pty Ltd (No 1) (1976) VR 331 Whitney
Raabe 1984 14 A Crim R 381 Whitney
Lergesner v Carroll 1990 49 A CrimR51(Qld CCA) Whitney/Colvin

Mental Element for Assault

Hall v Fonceca (1983) WAR 309 WASC Whitney p129 & Colvin 5.26C

Common assault s313

313 (1) Any person who unlawfully assaults another is guilty of a simple
offence and is liable—
(a) if the person assaulted is of or over the age of 60 years, to
imprisonment for 3 years or a fine of $12,000; or
(b) in any other case, to imprisonment for 18 months or a fine of
$6 000
[subs (1) am Act 23 of 2001 s 5, effective 24 December 2001
(2) A prosecution for an offence under subsection (1) may be
commenced at any time.

Carroll v R SCL 960327 unreported, BC9602634.

The District Court has no jurisdiction to hear a charge of common
assault against s 313: its jurisdiction is limited to indictable
offences.

Is intention an element of assault? Hall v Fonceca (1983) WAR 309

Is recklessness sufficient for the mental element? Hall v Fonceca

(1983) WAR 309
Must the act be done with hostile intent? Boughey 1986 60 ALJR
422

27
Are words alone sufficient for assault? Barton v Armstrong (1969) 2
NSWR 451; Meade v Belts case 1823 1 Lewin 184

Assault Cases

R v Sutton 1977 1 WLR 182

Recklessness and Intention

R v Venna 1976 QB 421; (1975) 3 All ER 788

Is assault the appropriate charge in cases of negligent

driving causing death?

R v McIver 1928 22 QJPR 173

Assault by Bodily Act or Gesture

Are mere words enough?

Fogden v Wade (1945) NZLR 724

R v Scratchard (1987) 27 A Crim R 136 (Whitney 132)

Assault Occasioning Bodily Harm s317

(a) s317
Any person who unlawfully assaults another and
thereby does that other person bodily harm is guilty of a
crime…

See s317 for summary conviction penalties.

s1 The term ``bodily harm'' means any bodily injury which

interferes with health or comfort;

Scatchard (1987) 27 A Crim R 136 (WACCA) Whitney p133

At common law it is not necessary in establishing the offence of

assault occasioning actual bodily harm, that the Crown prove a
specific intent to cause that harm: Coulter v R (1988) 164 CLR 350.

1.3 Assaults with Intent S317A

1.4 Serious Assaults S318(1)

Is a police officer who enters premises without a warrant a public

official?
Hume v R 1999 WASCA 64 (Butterworths online)

28
Note: new mandatory sentencing provisions
S318(2)(a) & (4)(a)(b)

1.5 Breach of Duty and Assault

R v BBD (2006) QCA 441 (Colvin 5.30C)

2. Unlawful Wounding or Poisoning

Section 301

Meaning of “wounding”: Devine (1982) 8 A Crim R 45 (Tas CCA)

Whitney p138

Provocation is not a defence to a charge of unlawful wounding:

Kaporonovski v R (1973) 133 CLR 209 (see s 297).

Extracting blood from the human body necessarily involves a

wounding

Kim Alieen Jervis (1991) 56 A Crim R 374 (Qld CCA) ‘The vampire Case’

3. Unlawfully doing Grievous Bodily Harm s297

S1 Criminal Code

The term ``grievous bodily harm'' means any bodily injury 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;

297. Any person who unlawfully does grievous bodily harm to another is
guilty of a crime, and is liable to imprisonment for 10 years.

If the offence is committed in the course of conduct that, under section 371
or 371A, constitutes the stealing of a motor vehicle, the offender is liable to
imprisonment for 14 years.

If the person harmed is of or over the age of 60 years, the offender is liable
to imprisonment for 14 years.

Provocation is no defence to GBH:

Kaprinowski v R (1973) 133 CLR 209; Roche (1988) WAR 278

Note: no intent needed to do GBH or UW where accused intends to

prevent an unlawful arrest:
Kendal v R Clince v R (1984) WAR 150 Colvin 2nd Ed.

Is permanent cosmetic disfigurement to ear lobe GBH?

Tranby (1991) A Crim R 228 (Qld CCA)

29
To decide if it was GBH, look at injury at time it was inflicted
R v Lobson (1983) 2 Qd R 720 (Qld CCA)

Meaning of “does”:
Knutsen (1963) Qd R 157

GBH via HIV Transmission

Houghton v R (2004) WASCA 20 (Colvin 5.31C)
R v Reid (2006) QCA 202 (Colvin 5.32C)

Note: new mandatory sentencing provisions s297(7)

4.Torture

SS 3, 6 Crimes (Torture )Act 1988 (Cth)

S320 Qld Code

R v Griffin (1997) 94 A Crim R 26

Do we require a crime of torture in WA?

5. Threats (Chapter XXXIIIA) s338

Meaning of “threat”

The offence: 338B

6. Stalking s338D-E

Crofts & Burton 4.670 – 4.740

Skerritt v O'keefe [1999] WASCA 183 McKechnie J 11 August 19992

Bronitt & McSherry 538-539

Breach of Restaining Order as circumstance of aggravation

*Hellings -v- The Queen [2003] WASCA 208 (3 September 2003)

Paragraphs 2-64

338E (1)

2
Does a Stalking conviction render the person unfit for admission to practice as a lawyer? (This interesting
post script is not examinable.) See: Skerritt -v- The Legal Practice Board of Western Australia [2004]
WASCA 28 (3 March 2004) http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/wa/WASCA/2004/28.html?
query=stalking
(Skerritt was subsequently permitted to practice).

30
Elements of Stalking

Proof of two elements is required under s 338:

(i) the act of stalking; and

(ii) the specific intent to carry out the act.

Is watching someone shower via a hidden video camera

stalking?
R v Daniels (2004) QDC 279, (Qld District Court) para 2 & 6 (Crofts &
Burton 4.820)

Note: Summary Conviction penalties have NOT been listed above:

See relevant sections of Criminal Code.

Question:
Can a person be convicted in WA of stalking another person by
electronic means even if two have never met?
1. Do WA stalking laws adequately protect the victim?

31
 Lecture 9: Certain Sexual Offences and
Offence Against Morality

Required Reading:
*Crofts & Burton Ch 5
Criminal Code Ch 22 & 31
Colvin Ch 6

Recommended Reading:
Kenny Ch 14

Objectives:

To understand and consider:

1. The elements of the sexual offences listed below.
2. When the defence of consent is/is not available to specific
offences.
3. When the defence of mistake is/is not available to specific
offences.
4. The importance of the date of the offence. (What were the
applicable elements and penalty provisions at the date that the
offence was committed?)

1. Certain Sexual Offences – Chapter 31 Criminal Code

1.1 Definitions - s319

Meaning of:
-“circumstances of aggravation”
-“deals with”
-“indecent act”
-“sexually penetrate”
-“consent”

1.2 Offences Against Children – s320-322

- child under 13 - s320

Drago WACCA (1992) 63 A Crim R 59 Colvin 6.20C

- child over 13 and under 16 – s321

Defences: s321 (10)-(13)

-Sexual relationship with child under 16 - s 321A

Defences: s321A(7),(8),(10)

-Persons in authority and sex with child aged 16 or 17 - s 322

32
Using Electronic Communication Equipment with intent to procure a
child believed to be under the age of 13 years to engage in sexual
activity S204B(3)(b)(i)

Using Electronic Communication Equipment with intent to expose a

child believed to be under the age of 13 years to indecent material
S204B(3)(b) (ii)

1.3 Homosexuality

-Offence against Juvenile Male - s322A (Repealed)

Law Reform (Decriminalization of Sodomy) Act 1989(WA)

See also: s 184 CC Indecent practices between males in public

(Repelled 2002)

1.4 Indecent Assault s323

Usually involves cases of indecent touching of adults

see: Assault ss223-223

Aubertin v State of WA (2006) WASCA 229 (Colvin 6.26C/ Crofts &

Burton 5.400)
R v V (KB) (1993) 22 CR (4th) 86 (SC Canada)(Read extract only:
Colvin 2nd Ed pp96-97)
Leeson (1968) 52 Cr App R 185 (Crofts & Burton, 5.110)

1.5: Sexual penetration without consent s325-326 (Replaced

crime of ‘Rape’)

Note: The new form of ‘rape’ is:

-non gender specific
-not limited to penetration of the vagina with the penis

See: Crofts & Burton 5.160-5.190

See s319 definitions of “sexually penetrate” and

“circumstances of aggravation”

2. Consent

“by deceit or any fraudulent means”

How would these cases be decided in WA?

33
Papadimitropoulos v The Queen (1958) 98 CLR 249 Crofts & Burton
5.310/Whitney 192
Mobilio (1990) 50 A Crim R 170 Crofts & Burton 5.320/Whitney 194

See:

Michael v WA (2008) 183 A Crim R 348 Crofts & Burton 5.340

Cuerrier (1998) 18 CR (5th) 58 SC of Canada (Colvin 6.21C)
R v Mrzljak (2004) QCA 420 (Colvin 6.25C)

Look at each offence mentioned above and the relevant definition

sections (if any) to see if consent is excluded as a defence.

Threats that vitiate consent

Michael v WA (2008) 183 A Crim R 348 (Crofts & Burton 5.280)

Definition Section: s319

Ferguson CCA Qld (1994) 75 A Crim R 31

(Read extract only: Colvin 5.24C (4th ed) / Crofts & Burton 4.110 )

Judicial Directions on Consent

“rougher than usual handling”

Case Stated by DPP (No1 of 1993) CCASA (1993) 66 A Crim R 259

(Colvin 6.22C)
Is “rougher than usual handling” by a husband of his wife
permissible to induce sex?

“the difference between consent and submission”/ “behaviour of

young females 30 years ago”

Wagenaar v Queen (2000) WASCA 325 Ipp J (Colvin 6.23C, Para 16,
21-23)

“a completely willing consent”

Holman (1970) WAR 2 (Colvin p155)

Would Holman be decided any differently in light of Case Stated

(No1 of 1993)?
See also: Michael v WA (2008) 183 A Crim R 348 (Crofts & Burton
5.280)

4. Mistaken belief as to consent s24 Criminal Code

Drago WACCA (1992) 63 A Crim R 59 (Colvin 6.20C)

AG Reference No 1 of 1977 (1979) WAR 46 (Colvin 6.24C)

34
*Aubertin v State of WA (2006) WASCA 229 (Crofts & Burton 5.400)

5. Ignorance of age: s331 Criminal Code

5.1 Immature age: s29 Criminal Code

5.2 Is lack of intention a defence?

See: Drago
AG Reference No 1 of 1977 (1979) WAR 46 (Colvin 6.24C)

6. Teacher/Pupil Contact

Do students give tacit consent to non-sexual touching by teachers?

*Ferguson (1994) 74 A Crim R 31

Do you agree with the reasoning of Demeck J?

7. Incapable Persons
s330 & 331A Criminal Code

See also: definition of Mental Impairment - s1 Criminal Code

R v Mrzljak (2004) QCA 420 (Colvin 6.25C)

8. Evidentary and procedural provisions

Evidence Act (WA) 1906

S50 – Corroboration Warnings
S36BC - Evidence as to sexual experience of complainant
S106R – A person declared a “special witness” may give
evidence on closed circuit TV.

9. Certain Offences Against Morality

9.1 Incest: s329

See definition of:

-lineal relative
-defacto child

9.2 Other offences:

Procuration s191-192
Necrophilia s214
Bestiality s181
Abortion related offences ss199

35
Indecent Act s203.

9.3 Prostitution Offences

The Prostitution Act (2000)

S 4 Definition of Prostitution

S 3 Other definitions:

"act as a prostitute"
"act of prostitution"
"child"
"client"
"prostitute"
"prostitution"
"public place"

Offences under the Prostitution Act (2000)

Section 5. Seeking prostitute in or in view or within hearing of

public place
Section 6. Seeking client in or in view or within hearing of
public place
Section 7. Seeking to induce a person to act as a prostitutes
Section 14. Acting as a prostitute

Discussion Question

In light of the legality of adultery, and now homosexuality, is prohibition of

prostitution (between consenting adults) justifiable? Consider in
the context of gender equity, discrimination principles, public
opinion and broader ethical and philosophical considerations.

Problem Question

1. Phil is in a bus full of friends. They are on their way home from his
buck’s night. Phil’s mate Rick decides to drive the bus through East Perth.
Rick has heard that prostitutes frequent the East Perth Oval area. As they
proceed towards East Perth from North Bridge, Rick and the other men say
things like:
“This one’s on us Phil”, “You might learn something” and “Its your last
taste of freedom.”

Phil doesn’t say anything. As they pass the East Perth oval, a woman in a
skimpy red dress, wearing heavy make up lurches towards the van. Rick
quickly stops the bus. A ‘mate’ called Tony has stuffed a $50 note into
Phil’s top pocket. Phil is thrust out of the bus and onto the street. As Phil
picks himself up, the woman in red (named “Devine”) sees the $50 note
and grabs it in one hand. She takes Phil by the other hand saying:

36
“Come to my hotel room its just across the street. We’ll be back in 20
minutes boys”.

At that point Constable Catchem from the vice squad jumps out from
behind a tree and tells Phil and Devine that they are under arrest.
Detective Dogood asks the rest of the boys to hop out of the bus. It
transpires that Devine is 15 years old. Phil is 17 and Rick is 21. Tony is
17.

Who may be charged?

What charges could be laid? (Consider only the offences under the
Prostitution Act)

37
Lecture 10: Property Offences

Stealing, Robbery, Burglary, Extortion, Fraud, Damage to

Property, Computer Hacking and Racial Hatred, and related
offences.

Required Reading:
Colvin Ch 7
Crofts & Burton Ch 6

George Syrota, “Criminal Fraud in Western Australia: A Vague,

Sweeping and Arbitrary Offence" (1994) 24 UWALR pp.261-277
(Whitney p283-291)

Recommended Reading:

*Kenny Ch 15
Morgan, ‘Doctrine of Recent Possession’ (1990) 14 Crim.L.J. 110.
S Bronitt and M Gani, "Shifting Boundaries of Cybercrime: From
Computer Hacking to Cyberterrorism" (2003) 27 Criminal Law
Journal (Sydney, LBC) 303-321.
‘Australia’s Racial Vilification Laws’ The Law Report, ABC Radio,
24/09/2002

Objectives of lecture:
1. To understand the essential elements of the various property
offences
2. To know how to identify these offences in factual situations.
3. To recognise when evidence of the essential elements of these
offences are present or absent in specific cases.

1. Stealing

Definition of stealing
371.(1)A person who fraudulently takes anything capable of being
stolen, or fraudulently converts to his own use or to the use of any
other person any property, is said to steal that thing or that
property.

Physical element:
either
1. take anything capable of being stolen or
2. convert to own or any other person's use any property

Mental element:

Fraudulently, take or convert as defined in s.371(2).

With one of the specified forms of intent

38
The mental element is the intent to permanently deprive the owner
of an interest in property or to use it in a way which will preclude its
return.

Note: Bailey (1924) QWN 38

Problem: “Joyriding” and stealing.

Solution: 371A
Uses s 371A (1)(a)

The term “uses” includes driving a motor vehicle to a location for the
purpose of stripping it of parts. It should not be given a narrow
interpretation: BPZ v Giles SCL 970292 unreported, BC9702599

What is Property?

s.1 definition

"real and personal property and animate and inanimate, things

which are capable of being owned".

See also s.371(7) re: "property".

'anything capable of being stolen' s378

Sawiris v Scott [1979] WAR 39

Trumbich v Weston [1986] WAR 169

Note s.22 defence: mistake of law and claim of right to property.

Punishment (s.378)

Stealing: crime with max. 7 years.

Note punishment for “Special Cases”: (s.378)

Summary trial for Stealing:

s426 Stealing and like offences that may be dealt with summarily.

"taking" s.370

'Taking' - basically restricted to movable and tangible property.

"conversion"

Illich : Conversion is dealing with property in a manner inconsistent

with the rights of the true owner.
*Angus (2000) QCA 29 Colvin 7.51C
See Whitney p 249 Wilson and Dawson JJ Illich

39
Mistaken overpayments

Ilich (1987) 69 ALR 231: Consider the approach of majority (per

Wilson and Dawson JJ, in Whitney pp252-3 and 254) and minority
judges (Gibbs J, in Whitney p248)
*Mujunen (1993) 67 A Crim R 350 Colvin 7.50C

Proving Ownership

In any indictment for stealing the Crown must first prove that the
property has been stolen. The ownership of the property must be
specified in the indictment and proved: Trainer v R (1906) 4 CLR
126.

Where crown alleges the ownership is unknown the crown must

prove this.
See: Trainer (1906) 4 CLR 126 See: Kenny 15.15

It is necessary to prove that the thing stolen is the property of

someone: Ilich v R (1987) 162 CLR 110; 69 ALR 231; 26 A Crim R
232.

Where ownership is known the crown must prove ownership: See

O'Brien [I981]WAR 305.

In respect of a complex question of ownership involving security

law, debentures, fixed or floating charges it remains necessary to
prove ownership of the property alleged to have been stolen:
Mullins v R (1994) 13 WAR 288; 75 A Crim R 173.

Ownership by two or more persons but not known which

Crown must prove that property is owned by one or the other.

Doctrine of Recent Possession

Ugle (1989) 43 A.Crim.R. 63 Crofts & Burton 6.360

Schama and Abromovich (1914) 11 Cr App R 45

Per L Reading CJ :
Where the prosecution establishes that the accused was in possession of
stolen goods recently after their theft, then in the absence of a reasonable
explanation as to how accused came by the goods, an inference can be
drawn that accused stole them or received them knowing them to be stolen.

The appropriate direction to jury is that they "may, not that they
must, ... convict".

40
Relevance of owner's consent
Clemesha [1978] WAR 193 (CCA) per Wickham J
llich (1987) 69 ALR 231 per Gibbs J at 235; Wilson and Dawson JJ at
241

Time of taking
Coyne v Dreyer (1991) 13 MVR 540.

Pledge s 371(2)(c)

Property capable of being stolen

s 370 does not contain an exhaustive definition of property capable of

being stolen.

Accordingly a person who converts to his own use property within the
meaning of s 371(7), such as a chose in action ( eg shares ), may be guilty
of stealing that property against s 378.

Sawiris v Scott [1979] WAR 39. Whitney p256

Cannabis, is “property capable of being stolen” for the

purposes of s 371(1): Vines v R (1993) 10 A Crim R 113.

Right of the finder

Criminal and Found Property Disposal Act 2006 (WA) ss21-23

Fraudulent conversion, fraudulent taking

Stealing, as defined, includes both fraudulent taking and fraudulent

conversion. A taking or conversion is deemed to be fraudulent when
done with one of the intentions described in paras (a)-(f) of s 371(2).
No further state of mind is necessary: Ilich v R (1987) 162 CLR 110;
69 ALR 231; 26 A Crim R 232.

Is the withdrawal of money from an automatic teller machine after

closing the account stealing? Kennison v Daire (1986) 160 CLR
129.

Abandoned property
Abandoned property cannot be stolen. Where there is no concluded
view whether property has been abandoned, it cannot be stolen:
Keene v Carter (1994) 12 WAR 20.

41
Is the taking of property that has been put on the verge for Local
Council road side collection stealing?

3. Robbery

Read: Section 391 Aggravating Circumstances

The offence called robbery in s391 is not stealing with a circumstance of

aggravation. Robbery is a distinct and separate offence of which stealing is an
element.

An indictment charging an offence against s 391 must contain an allegation of

ownership of the property stolen and the Crown must prove that ownership: R v
O'Brien [1981] WAR 305.
[s 391.20]

Read: s392 Robbery

Violence
There is no difference as regards ss391 and 393 between using actual violence
and using personal violence to a person.
Where the accused snatches property from the victim and the victim grabs hold of
the accused who struggles violently to get free, the accused uses “actual
violence”.
It is not necessary that the violence should precede the taking of the property:
Hood v R BC20001788; [2000] WASCA 98.
There is no difference as regards ss 391 and 393 between using actual violence
and using personal violence to a person. Where the element of actual violence
required by s 391 is satisfied by the use of violence that element of the simple
offence will be a circumstance of aggravation: R v De Simoni (1981) 147 CLR 383.

42
Read s393: Assault with intent to commit robbery

What are the elements of this offence? See code

Read s393 Demanding property with threats with intent to

steal

Carl Van Den Berg (1983) 12 A Crim R 113 (CCAWA) Whitney p264

4. Burglary/Housebreaking s401

Elements: (Whitney 268 (slightly dated), Kenny pp362-364)

“enter” s400(2)
“without consent”
“with intent to commit offence”
Aggravating circumstance: “ordinarily used for human habitation”

Note Qld position:

“breaking” is an element. Lack of consent is not. (s419 Qld
Code)

Queensland Cases:

Marshall Williams (1986) 21 A Crim R 460 CCAQld) Crofts & Burton

6.630
Rigney:Ellis:Ellis:Brown (1995) 86 A Crim R COA Qld) Crofts &
Burton 6.650

Extortion Kenny pp355-360

Read Section 397

written threats

What does "writing" include?

(final para) The term ``writing'' includes any gramophone record, wire,
tape, or other thing by which words or sounds are recorded and from
which they are capable of being reproduced.

Do the following factors prevent a successful prosecution under s

397?

43
1. lack of compliance by victim with demands
2. reasonable cause for issuing threat

3. Threats to 3rd persons

Objective test

Aymond [ 192012 KB 260, per L Reading:

"The belief of the accused may…be taken into consideration by the judge
in passing sentence, but ... is not material in ascertaining whether the
crime has been committed."

Attempts at extortion by threats s398.

Question:

John sees three ladies riding mountain bikes. He demands that Jane
get off her bike as he raises a knife. Jane rides off. John later sees
Mary who he went school with. Mary owes John $3000 for drugs he
has given her. He tells Mary to give him the bike to cover the debt
or he will “tell everyone that she has been taking ecstasy.” She
complies. John then sees Amanda parking her bike by a toilet block
at a caravan park where she is staying. He rides off on Amanda’s
bike while she is in the toilet.

What offences may John be charged with?

Deprivation of Liberty

Section 333.Any person who unlawfully detains another

person is guilty of a crime and is liable to imprisonment for 10
years.

meaning of "detain" (s332)

Note: detention may involve a variety of intents set out in

s.332(2).

Discussion

1. Can you think of examples to illustrate each of the intents in

s332(2)?
2. Does the accused have to make the threat or demand to be
convicted of kidnapping? s332(3).

44
3. What is the essential ingredient for kidnapping? s332(2).
4. What constitutes a "threat" ? See s.332(4).

5. Fraud

Section 409

“intent to defraud”

Lewis & Ors v Queen And Ors (1998) WASC 166 Malcolm CJ (Crofts
& Burton 6.780)
Bolitho v State of WA (2007) WASCA 102 (Colvin 7.53C) Crofts &
Burton 6.880 Roberts-Smith JA (Diss)

Belief that there are sufficient funds in bank account

Matthews v The Queen (2001) 24 WAR 288 (Colvin 7.14)

Problem:

Phil and Sheila work at a petrol station. On Sheila’s first day of

work, Phil explains how to use the Fpost machine. He tells her that
she must swipe all credit cards twice, once in the Fpost machine and
once in a ‘backup machine’ stored under the counter. At the end of
each day Phil stores the credit card details from the back up
machine, and emails them to Dougie in Broome who uses them to
conduct transactions for financial gain at the expense of the
cardholders.
Who may be charged? What charges may be preferred?

Fraud: Queensland Position

Dishonesty is the essence of fraud in Qld.

Fraud Cases
Robert Laurie (1986) 23 A Crim R 219 (CCAQ) Colvin 7.24 (Extract:
p 134 –136 2nd Edition) Crofts & Burton 6.690
Peters v The Oueen 1998 151 ALR 51 Whitney 281/ Colvin 181-2/
Crofts & Burton 6.710

Although not a Code case, Peters contains useful contains

observations on the meaning of 'fraud' the role of "deceit" and
"dishonesty".

Toohey and Gaudron JJ held that although "dishonesty" does

not appear in the definition of the offence, it is required.

45
Discussion
1. What are the 2 aspects of dishonesty emphasized by Toohey and Gaudron JJ?
2. Do the WA Criminal Code fraud provisions adequately address the problems of
internet and credit card fraud?

6. Damage to Property

Definition of damage s1
The term ``damage'', in relation to animate property, includes injure;
The term ``damage'' in relation to a record means to deal with the record so
that —
(a) information recorded or stored upon the record is obliterated or rendered
illegible or irrecoverable; or
(b) it can not convey a meaning in a visible or recoverable form;

Unlawful acts s441

Acts done with intent to defraud s442

Meaning of “wilfully destroy or damage'' s443

Criminal damage s444.

What are the elements of this offence?

Note: No separate offence of arson in WA. Qld s461 specifically

provides for arson.

Does the crown need to prove that the person intended to damage
the property in question?

*Lockwood (1981) Qd R 209 Colvin 7.54C

7. Computer Crime

Bronitt & McSherry pp897-915.

Unlawful use of computers, s440A (Code)

Note: The offence involves unauthorized access to restricted access

computers
See also: Crimes (Property Damage and Computer Offences) Act
2003, ss247B-247H

Should these types of offences be introduced in Western Australia?

46
8. Racial Hatred Offences

Bronitt & McSherry 732-734

Jones v Scully [2002] FCA 1080 (2 September 2002)

s76-80I (Code)

What elements need to be proven for these offences?

9. Terrorism

Bronitt & McSherry 887-897

Faheem Khalid Lodhi v. Regina (2007) NSWCCA 360, para 217-234

Commonwealth Criminal Code (1995)

Division 101: Prohibition of Specific Acts

Section 101.1: Engaging in Terrorist Acts

Section 101.2: Providing or Receiving Training Connected with Terrorist Acts
Section 101.4: Possessing Things Connected with Terrorist Acts
Section 101.5: Collecting or Making Documents Likely to Facilitate Terrorist
Acts
Section 101.6: Doing other Acts in Preparation for, or Planning, Terrorist Acts
Division 102: Involvement with terrorist organizations
Section 102.2: Directing of Activities of a Terrorist Organisation
Section 102.3: Membership of a Terrorist Organisation
Section 102.4: Recruiting for a Terrorist Organization
Section 102.6: Training a Terrorist Organisation or Receiving Training from a
Terrorist Organisation

Section 102.6: Getting Funds to or from a Terrorist Organisation

Section 102.7: Providing Support to a Terrorist Organisation
Division 103: Financing Terrorism

Thomas v Mowbray [2007] HCA 33, paras 181, 277, 279

(Relevant offence: Membership of a Terrorist Organisation)
On the validity of the counter-terrorism laws: Paras 146-7, 153-4 (per
Gummow and Crennen JJ)
Contra: See Paras 259, 266 (per Kirby J)
R v. Abdul Nacer Benbrika & ors Vic SC (February 2008 - )

Problem:

Oscar is a political cartoonist for a national newspaper. He draws a

cartoon that includes an anti-semitic image and a slogan that
ridicules a certain racial group by portraying them as lazy, stupid
and corrupt. The cartoon is prompted by the arrest of a dozen
members of that racial group for a string of organized crimes and
corrupt activities. Oscar draws the cartoon whilst on holidays and

47
accidentally leaves it at on a park bench at Bathers Beach. Barneby
finds the cartoon and faxes it to the Freo Chronicle. The editor
(Angelo) finds the cartoon highly amusing and publishes it. The
Freo Chronicle is distributed throughout the City of Fremantle. Joff
is a member of the racial group featured in the cartoon. He is not
amused. He goes to Office of the DPP and demands that they
‘charge everyone involved’. Discuss

48
Lecture 11: Inchoate Offences: Attempts, Intent and
Conspiracies

Required Reading:

Crofts & Burton Ch 12&13

Kenny Ch 9&11
Colvin Ch 19 (excellent overview of this area)

The ‘Inchoate’ offences

-Attempts
-Conspiracies
-Incitement (s553)

1. Attempt

s4 CC Attempts to commit offences

When a person, intending to commit an offence, begins to put his

intention into execution by doing an act that is more than merely
preparatory to the commission of the offence but does not fulfill his
intention to such an extent as to commit the offence, he is said to
attempt to commit the offence.

It is immaterial, except so far as regards punishment, whether the

offender does all that is necessary on his part for completing the
commission of the offence, or whether the complete fulfilment of his
intention is prevented by circumstances independent of his will, or
whether he desists of his own motion from the further prosecution of his
intention.

It is immaterial that by circumstances that are not known to the

offender, it is impossible in fact to commit the offence.

The same facts may constitute one offence and an attempt to commit
another offence.

Elements of Attempt (Para 1 s4):

1. Intent to commit an offence

2. Execution of that intention by doing an act that is more
than merely preparatory
3. Failure to fulfil that intention of committing the offence

1.1 Intent to commit an offence

What is “the offence” referred to in s4?

Is the mental element for the attempt offence the same as for the
completed offence?

49
Attempted Sexual Assault: Attorney General’s Reference No.1 of
1977 [1979] WAR 45. (Note the operation of s23 Para 2)

Attempted Murder: Arthur George Whybrow (1951) 35 Cr App R

141

1.2 Can the crime of Manslaughter be attempted?

Execution of Intent

What constitutes an act “more than merely preparatory”?

The ‘last act test”: Alfred Evan Chellingworth [1954] QWN 35

The “unequivocality” test: Reg v Williams [1965] Qd R 85 see

especially Stable J; Compare R v Edwards (1956) QWN 16

Are issues of remoteness and proximity relevant?

Note:

Commonwealth terrorism offences are committed through acts that

are merely preparatory

See: Faheem Khalid Lodhi v. Regina (2007) NSWCCA 360, para 229.

(Sections 101.4, 101.5 and 101.6 of the Criminal Code Act 1995 (Cth) extend
criminal liability to acts of preparation.)

1.3 Offences intended but not committed

Impossibility:

Edmund English (1993) 68 A Crim R 96 (CCAWA); Colvin 19.32C; see

esp Murray J, and the Murphy J (dissenting)
-legal v factual impossibility
-what if a person sells talcum powder believing it to be heroin?
-what is a person holding a soft plastic knife attempts to stab
another person with the ‘knife’?

Britten v Alpogut (1987) VR 929; 1986 23 A Crim R 254 (Colvin

19.32C)

Inadequate means:

50
 -Is a person criminally liable for attempted murder if they
poison someone with a toxin that is never going to kill them?
Collingridge (1976) 16 SASR 117

Abandonment or interruption:

See s4, para 2.

Mere Preparation v Decisive Act

Deutsch (1986) 30 DLR (4th) 435

2. Attempt Offences

General Attempt Provisions

s552 Attempts to Commit an indictable offence

Any person who attempts to commit an indictable offence is

guilty of an indictable offence

Specific Attempt Provisions

Eg 283 (attempted murder), s222 (assault)

S283 Any person who –
(1) attempts to unlawfully kill another; or
(2) with intent to unlawfully kill another does an act or omits to do act
which is his duty to do, such act or omission being of such a nature as to
be likely to endanger human life is guilty of a crime and is liable to
imprisonment for life except ….in cases of infanticide (7years maximum).

*Cutter (1997) 143 ALR 498 Colvin 4.26C

Conspiracies (Colvin Chapter 19)

1. Conspiracy Provisions

General Conspiracy Provisions

s558 Conspiracies to Commit Indictable Offences

s560 Conspiracy to commit simple offences

Specific Conspiracy Provisions

51
 -eg s135 (Conspiring to defeat justice)

2. Elements of Conspiracy

See s558 para 1 (above):

-Conspiring;
-With another person:
-To commit an indictable offence

2 essential elements:

1. Agreement between 2 or more persons to do an unlawful act:

Campbell [1933] St R Qd 123
-Consider the different ways in which a conspiracy might
be formed
-Consider the problems that might arise in prosecuting a
conspiracy involving a large number of parties: John
Francis Day and Jon Simon (1995) 81 A Crim R 60.
-See Bronitt & McSherry 416-7

1. Intention to carry out an unlawful purpose:

a. Thomson (1965) 50 Cr App R 1; Crofts & Burton 13.170
b. Giorgani (1985) 156 CLR 473. Crofts & Burton 13.180
-Consider the practical effect of this requirement

See generally:

*Peters (1998) 192 CLR 49 Colvin 19.33C

3. Effect of acquittal of co-conspirator:

Can a person be convicted of conspiracy if the sole co-conspirator is

acquitted? Darby (1982) 148 CLR 668; (note the view of the
dissenting Murphy J.) Crofts & Burton 13.200/Bronitt & McSherry
421-3

4. Exempt Parties

Bronitt & McSherry 420

5. Undercover agents

Bronitt & McSherry 423

6.Withdrawal

Bronitt & McSherry 417

52
53
Lecture 12: Parties to Offences

Required Reading:

* Crofts & Burton Ch 13

Recommended Reading:

Kenny Ch 9
Colvin Ch 20
Clough and Mulhern3 Ch 10

Objective of lecture

To understand the Criminal Code provisions relating to Parties to

Offences.

Historical Overview

Common law position

Bronitt & McSherry 342-4

Criminal Code: Chapter II

Principal offenders s7

Lopusznski (1971) QWN 33 (Crofts & Burton 13.280)

Aiding and enabling s7

- presence
*Beck (1989) 43 Crim R 135 (Crofts & Burton 13.340)
*Jefferies v Sturcke (1992) 2 QdR 392
Bronitt & McSherry 349

Does the accused need to be aware of the actual crime

intended?

Director or Public Prosecutions for Nth Ireland v Maxwell (1978) 3

AllER 1140 HL (Colvin 20.22C) Crofts & Burton 13.310

Miller (1980) 32 ALR 321 (Colvin 20.8)

Coney (1882) 8 QBD 534 (Colvin 20.6, 20.19C)
*Kirby Unrep CCAWA no 92&93 of 1991 (Colvin 20.8)

3
This text covers the common law position.

54
Counselling and procuring s7

The criminal act must be a probable consequence of the counseling

and procuring.

Stuart (1974) 134 CLR 426 (HC) (Colvin 20.24C)) Crofts & Burton
13.380
*Darkan (2006) HCA 34 (Colvin 20.25) Crofts & Burton 13.460

s7 (final paragraph)

Does there need to be a criminally liable principal? (Colvin 20.16)

What about offences committed under immediate threat of death or

GBH? See: s31(4)

Prosecution of a Common Purpose s8

Stuart (Colvin 20.24C) Crofts & Burton 13.430

Hind and Harwood (1995) 80 A Crim r 105 at 166-117 (Colvin 4.31C,
4th ed)
McAuliffe v R (1995) 183 CLR 108 (Bronitt & McSherry 379,381,383)

Common Intention to Prosecute Unlawful Purpose (Colvin

20.11-20.13)

- Probable consequence

Stuart (Colvin 20.24C)

- Objective test

Can a person form a common intention with an insane person?

Beck (Colvin 20.20C)

Mode of execution s9

Warren v Ireland (1985) 15 A Crim R 317

Nicolakis (1988) 32 A Crim R 451

Accessory after the fact s562

Hurley v Murray (1967) VR 526

R v Tevendale (1955) VR 95 at 96 per Herring CJ (Whitney 580)

55
Withdrawal (Colvin 20.19)

Saylor 1963 QWN 14 at 34 (Whitney 576) Crofts & Burton 13.510

Beck (Whitney p 578) Crofts & Burton 13.530

*Menniti (Colvin 20.26C) Crofts & Burton 13.490

Disassociation

White v Ridley (1978) 140 CLR 342 (HC)

Differential Verdicts (Kenny p191)

Warren v Ireland (1985) 15 A Crim R 317

Nicolakis (1988) 32 A Crim R 451

Exempt Parties (Colvin 20.18)

Children
Drug Purchaser (re Trafficking)

Maroney v The Queen (2003) HCA 63 202 ALR 403 (Colvin 20.24C)

Acknowledgement: The text of this handout includes extracts

from Butterworths Online Commentary on the Western Australian
Criminal Code.
http://www.butterworthsonline.com (Free access from Law Library)

56