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Criminal Law Summary

I CRIMINAL RESPONSIBILITY
A Onus of Proof
It is a fundamental human right embodied in Art 14(2) of the ICCPR that everyone charged with a criminal offence is to be presumed innocent until prove guilty. This implies that the onus of proof must lie on the prosecution. This is not always the case as parliament may do what it pleases. The derogation from the presumption of innocence requires justification.1 The Court identified a three-stage approach, once it was established that the statutory provision infringed a Charter right: (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). (2) Consider whether, so interpreted, the relevant provision breaches a human right protected by the Charter. (3) If so, apply s 7(2) of the Charter to determine whether the limit imposed on the right is justified. The Human Rights Act 2004 (ACT) is yet recognized but has not prevented legislature from enacting on strict liability offences. Woolmington V DPP provides authority on the onus of proof.

Burden Of Proof

Standard Of Proof

Legal Burden

Evidential Burden

Legal Burden

Evidential Burden

Placed on Prosecution - Prove all elements of crime - Rebut Available Defenses Placed on Accused - Defense of Mental Impairment - Defense of Diminished Responsibility Where provided by Statue
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Placed on Prosecution Beyond - Elements of Crime Reasonable Placed on Accused Doubt - Defenses

Reasonable Possibility

R v Johnston [2003] 3 All ER 844, 898

B Elements of A Crime
(a) Physical Elements
Physical Elements Conduct

Conduct In Specified Circumstances eg, rape and theft

Results of Conduct Eg, murder and assault

Act

Omission

State of Affairs

(i) Act The physical element of most offenses 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. (ii) Omission There is no general duty to prevent a crime,2 nor does an individual commit a crime or become a party to it simply because he or she could reasonable have prevented it.3 An omission to act may give rise to criminal liability in situations where a duty to act arises at common law or is imposed by statute. R v Miller refers to a duty arising at common law. (iii) State of Affairs There are certain offences which criminalize 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. (iv) Conduct Which Occurs in Specified Circumstances A specified form of conduct may not be a crime unless it is performed in a certain
2 3

R v Instan [1893] 1 QB 450 R v Coney (1882) 8 QBD 534, 15

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 persons consent (the specified circumstance). (v) Results or Consequences of Conduct The physical element of an offence may sometime 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. Where the physical element of a crime refers to the consequences of conduct it will be necessary for the prosecution to prove that the conduct caused the requisite consequences.

(b) Voluntariness
The requisite physical element of a crime must be performed voluntarily, in the sense that it must be willed. 4 There are three ways in which an act may be considered at law to be involuntary: (1) When the criminal act was accidental To say that an act was caused by accident means that it was caused without intention, recklessness or criminal negligence of the accuseds part. (2) When the criminal act was caused by a reflex action An act caused by a reflex action is an act founded on an external cause rather than intention, as noted in Ryan v The Queen. In Kay v Butterworth, Humphreys J 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.5 (3) When the conduct was performed whilst the accused was in a state of impaired consciousness. (i) Automatism R v Falconer (1986) A Crim R 83 The facts showed a long history of violence by Mr. Falconer towards his wife. She 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. She shot Mr. 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 shotgun had been kept in a wardrobe and Mrs. Falconer said she hand no recollection of picking it up or loading it. At trial, the defense brought forward evidence from two psychiatrists that the
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R v The Queen (1967) 121 CLR 205; Woolmington v DPP [1935] AC 462, 482. Kay v Butterworth (1945) 61 TLR 452, 453.

circumstances leading up to and surrounding the shooting could have produced a dissociative state where, according to one of the psychiatrist, part of her personality would be sort of segment and function as a whole as she became disrupted in her behavior, without awareness of what she was doing. This evidence was deemed inadmissible and the accused was convicted. On appeal, the court held that the evidence was admissible on the issue of voluntariness. The High Court held that if 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. The court also held that an act done by a conscious person is presumed to be voluntary unless there is some evidence to the contrary. If a conscious person performs an act, unless there is some evidence that the ac is involuntary then it is presumed to be voluntary. Voluntariness relates to merely what is done not the consequences of what is done. It would be only an exceptional case where a conscious person committed an act without choosing to do so or at least running the risk of doing so. A state of automatism may be caused by concussion from a blow to the head, sleep disorders, the consumption of alcohol or other drugs, neurological disorders, hypoglycemia, epilepsy or dissociation arising from extraordinary stress. Evidence of some degree of control over bodily movements does not preclude automatism.6 It does not matter what the cause of automatism is, providing that the accuseds actions are involuntary.7 Under the common law, the traditional distinction between sane and insane automatism was based on the concept of a disease of the mind. If an accused is acquitted on the basis of sane automatism, he or she is entitled to a complete acquittal because he or she has been deprived of the will to act.8 However, if the automatism arose from what has been termed a desiease of mind it is considered insane automatism. Under the common law, the accused was then detained at the Governors Pleasure under a special verdict. Three criteria or tests have been developed by the courts in order to define what should be considered a disease of mind: (1) The Recurrence or Continual Danger Test This tests holds that if a mental condition is prone to recur, it should be considered a disease of the mind. In Bratty v Attorney General, Lord Denning held that any 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.9 This view was withheld in an Australian case, R v Meddings.
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R v Radford (1985) 42 SARSR 266 Jiminez v The Queen (1992) 173 CLR 572, 581 8 R v Falconer (1986) A Crim R 83 9 Bratty v Attorney General (Northern Ireland) [1963] AC 386, 412

(2) The Internal/External Test This test holds 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. (3) The Sound/Unsound Mind Test This test holds that a disease of the mind is considered to be evidence by the reaction of an unsound mind to its own delusions or external stimuli. In R v Falconer, the fundamental distinction of this test was that between the mental states which, although resulting in abnormal behavior, are or may be experienced by normal persons (as example, a state of mind entered from a blow to the head) and those which are never experienced by or encountered in normal persons. (ii) Intoxication The references 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. 10 R v OConnor (1980) 146 CLR 64 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 travelsickness tablets and had also drank 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. The majority of the High Court was of 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 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.

(c) Causation
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R v OConnor (1980) 146 CLR 64, 114

When the physical element of a crime requires the occurrence of specific results or consequences, the prosecution must prove that the conduct caused those results or consequences. Causation is a question of fact for the jury,11 and whilst the members of the jury must be instructed as to the legal requirements of causation, they are expected to apply their common sense in determining whether the accuseds conduct caused the death of a victim. There are three accepted tests for causation in criminal law. They are: (1) The Reasonable Forseeability Test The reasonable foreseeability test involves examining whether the consequences of the accuseds conduct were reasonable 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 accuseds appreciation of the consequence of his or her actions.12 In Royal 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. (2) The Substantial Cause Test 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 sufficiently substantial causal effect which subsistedup 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.13 The accuseds conduct need not be the sole cause of death in relation to the crimes of murder and manslaughter.14 Death may result from several causes, but all that must be proved is that the accuseds conduct was a substantial cause. (3) The Natural Consequence Test 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 Royal v The Queen. Royal v The Queen (1991) 172 CLR 378 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. Each test was used and the majority were in favor of the natural consequence
R v Evans and Gardiner (No 2) [1976] VR 523, 527 R v Hallet [1969] SASR 141, 149 13 Ibid 14 R v Pagett (1983) 76 Cr App R 279
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test. Mason CJ stated the natural consequence test as follows: Where the conduct of the accused induces in the victim a well-founded
apprehension of physical harm such as to make it a natural consequence (or reasonable) that he the victim would seek to escape and the victim is injured in the course of escaping, the injury is caused by the accuseds conduct.

Each test has found favor with different courts at different times. The more modern cases, however, favor the substantial cause test, but it is not unusual for the courts to refer to these tests interchangeably. All of these tests used by the courts are objective in the sense that they are not based on what the accused subjectively intended or foresaw. Yet, in some unusual cases intent may be relevant for causation.15 An example of such is when the accused shows a spider to a person with arachnophobia with the intent of causing injury. The reaction may not be a natural consequence of exposure to spiders, but causation may be established because of the accuseds intention. In regard to an intervening event that finds the prohibited consequence no longer a reasonably foreseeable, substantial cause or natural consequence of the accused conduct, the courts have held that that this amounts to a novusactusinterveniens which breaks the chain of causation. Some courts have stressed that the intervening act must be of an unexpected or extraordinary nature.

(d) Fault Elements


Fault Elements Subjective Elements Objective elements

Intention

Knowledge

Recklessness

Negligence

Subjective fault is not purely subjective. It is impossible to find out what is in the mind of the accused without a confession. Subjective fault is more of an objective standard in relation to the particular accuse, taking into account his or her behavior, experiences and characteristics such as age, social and cultural background.

15

Royal v Queen (1991) 172 CLR 378, 390

(i) Intention To satisfy intent the prosecution must prove that the accuseds purpose was to bring about the results or consequence of the conduct.16 He or she acts intentionally even where, to that persons knowledge, the chances of causing the result are small.17 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,18 or where the crime takes effect in a manner which is unforeseen or unintended.19 Here lies the difference between specific and general intent. 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. Intention is distinct from motive. Motive may however be relevant in attributing intention to an accused. Direct intention refers to 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.20 This is a narrow interpretation of intention and was adopted in He Kaw The v The Queen. English courts have developed a broader interpretation of intention. This is referred to as oblique intention. 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 kill another person.21 That is a broad definition of intention and the scope has been defined to restrict the level of foresight required for oblique intention. The degree of foresight has to be a little short of overwhelming before it will suffice to establish the necessary intent.22 In practice, factual situations that give rise to oblique intention can usually fall within the concept of recklessness. The majority High Court has not adopted this approach yet. The minority found favor in Vallance v The Queen. (ii) Knowledge 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. An accused has been deemed to posses the requisite knowledge for an offence where he or she deliberately refined from making inquires or willfully shut his or her eyes for fear that he or she man learn the truth. This is sometimes referred to as willful blindness. The majority decisions in Kuraland Pereira relegate willful blindness to an evidential role. The accused suspicion coupled with a failure to inquire may be evidence from which a jury can infer knowledge. (iii) Recklessness 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. The usual shorthand for
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La Fontaine v The Queen (1976) 136 CLR 62 Leonard v Morris (1975) 10 SASR 528, 531-532 18 R v Saunders (1975) Fost 371 19 R v Michael (1840) 2 Mood 121 20 He Kaw The v The Queen (1985) 157 CLR 523 21 Hyam v DPP [1975] AC 55, 78 22 R v Moloney [1985] AC 905, 925

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 in the knowledge that a consequence is a probable or possible result of his or her conduct.23 For example, an accused who intentionally sexually penetrates another without the persons 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 guilt of rape. Criminal Law holds that a person who acts with recklessness is just as blameworthy as a person who intended to cause the consequence.24Whether 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 consequence will occur.25 (iv) Negligence 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. Yet, it is an element that determines criminal responsibility. The objective standard in negligence is generally that of reasonableness, often expressed by the term reasonable person. It 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 accuseds subjective awareness of the danger that he or she is creating. 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.26 Nydam v The Queen [1977] VR 430 The accused threw petrol over two women and ignited it. He claimed that he only intend 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 court stated that for manslaughter by negligence to be made out, it must be proved that the accuseds behavior involved:
Such a great failing short of the standard of care which a reasonable person would have exercised and which involved such a high degree of risk that the death or grievous bodily harm would follow that the doing of the act merit[s] criminal punishment.

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Pemble v The Queen (1972) 124 CLR 107 R v Crabbe (1985) CLR 464, 469 25 Boughey v The Queen (1986) 161 CLR 10, 21 26 Andrews v DPP [1937] AC 576

Sometimes the term gross negligence is used in this regard. Criminal Code (Cth) s 5.5 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 failing 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. (v) Presumption of Subjective Fault (or mensrea) In the face of a growing number of statutory crimes that didnt require proof of a subjective fault element, the courts developed a common law presumption that all crimes (common law or statutory) involve some form of subjective fault element.27 Criminal Code (Cth) s 5.6 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. The presumption of subjective fault may be rebutted as Gibbs CJ pointed out in He K aw Teh v The Queen. He pointed out that there are four factors which need to be assessed in determining whether or not the presumption of subjective fault has been displaced:28 (1) The language of the section creating the offence If the section creating the offence uses words such as knowingly, dishonestly or willfully, it will be difficult to show that the presumption of subjective fault has been displaced. (2) The subject matter of the statute If the subject matter of the statute is to regulate behavior 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, then it is likely that the presumption of subjective fault will be displaced. One of the factors behind this inclination to strict liability is for administrative efficiency.
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Sherrars v De Rutzen [1985] 1 QB 918 He Kaw The v The Queen (1985) 157 CLR 523, 528-530

(3) The consequences for the community of an offence; and Consequences to the community have outweighed those for the accused in the case of environmental damage29 and speeding offences30 and the presumption of subjective fault has been displaced. (4) The potential consequences for an accused, if convicted. 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. (vi) Strict Liability Versus Absolute Liability& Honest Mistake of Fact The courts have been reluctant to categories offences as those of absolute liability in the absence of a clear legislative intention that this be the case. This appears to be because the courts are uneasy about punishing an accused on the basis of the physical element alone. The prosecution need not prove a fault element in relation to strict liability offences. With strict liability offences, the accuseds state of mind and lack of culpability may be raised by way of the defense of honest and reasonable mistake of act. The elements of this defense are as so:31 (1) There must be a mistake and not mere ignorance; 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.32 (2) The mistake must be one of fact and not law; Generally speaking fact is something perceptible by the senses, while law is an idea in the minds. A state of mind is also a fact, though not directly perceptible by the senses. (3) The mistake must be honest and reasonable; and An honest belief is simply one that is held in fact.33 A belief based on reasonable grounds is one that is based upon the accuseds appreciation of primary objective fact that is in reason capable of sustaining the belief.34 (4) The mistake must render the accuseds act innocent. The reference to the word innocent in this regard has been taken to mean not a breach of the criminal law.

C Cases
Woolmington v DPP [1935] UKHL 1
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Allen v United Carpet Mills Pty Ltd [1989] VR 323 Kearon v Grant [1991] 1 VR 321 31 Proudman v Dayman [1941] 67 CLR 536, 540 32 Gherashe v Boase [19560 VR 1 33 GJ Coles and Co ltd v Goldsworthy [1985] WAR 183, 187 34 Ibid

The appellant was in a marital relationship with the victim (Violet). She left him three months into their marriage and went to live with her mother. He stole a sawn off shot gun and rode to his mother-in-laws house were he shot and killed Violet. The appellant claimed he didnt intend to kill her. He intended to win her back with threatening his own life. In this process, he claims that, while showing her the weapon, the gun accidently fired. Killing her in the process. The Trial Judge ruled that the case was so strong against Woolmington that the onus was on him to show the shooting was accidental. He failed to do so and was sentenced to death. Woolmington argued that this appointment of onus misdirected the jury. The appeal judge discounted this argument using the common-law precedent as stated in Fosters Crown Law. In every charge of murder, the fact of killing being first proved, all the
circumstances of accident, necessity, or infirmity are to be satisfactorily proved by the prisoner, unless they arise out of the evidence produced against him; for the law presumeth the fact to have been founded in malice, unless the contrary appeareth...

The issue before the House of Lords was weather this statement was correct when a death occurs it is presumed to murder unless proved otherwise. In articulating this ruling, Viscount Sankey made his famous Golden Thread speech.
Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. When dealing with a murder case the Crown must prove (a) death as the result of a voluntary act of the accused and (b) malice of the accused.

The decision was overturned and Woolmington was acquitted. Ryan v The Queen (1967) 121 CLR 205 The appellant entered a shop with a loaded rifle for a robbery. In a sudden attack, the shop assistant caught the appellant by surprise, causing him by a reflex action to discharge the gun, killing the assistant instantly. The Crimes Act 1900 (NSW) requires that "murder shall be committed where the act of the accused causing the death charged".

Berwick CJ said that a crime could only be committed by a self-evident act or omission. It is basic, in my opinion, that the act of an accused must be a willed, a voluntary act which has caused the death charged. It is the act which must be willed, though its consequences may not be intended. Was the firing of the gun willed so as to constitute an act for the purposes of a murder charge? It was held to be so as the act causing death included the general circumstances in which the gun was fired. In addition it could have been concluded that the act causing death was the presentation of the cocked, loaded gun with the safety catch unapplied and that its involuntary discharge was a likelihood which ought to have been in the contemplation of the applicant when presenting the gun in the circumstances. Windeyer J states that tying up the attendant and then pointing a loaded gun at the back of his head was done voluntarily and it is foreseeable that such a consequence could occur, therefore it too is voluntary. Even if the trigger was pulled to a sudden apprehension of danger, his doing so is a consequence probable and foreseeable of a conscious apprehension of danger and in that sense, a voluntary act. Taylor and Owen JJ found the applicants conduct constituted a series of acts which were voluntary and the last act could not be separated from the series. Jiminez v The Queen (1992) 173 CLR 572 The appellant fell asleep while driving the car. The car crashed and killed a person in the process. The High Court held thatfor a person to be found guilty of causing death or injury by driving, it is necessary for the prosecution to establish that the accuseds act of driving was voluntary. And, in fall-asleep cases, the period of driving while asleep does not constitute that voluntary act. This means that the focus of the prosecution case must be on the driving which immediately precedes falling asleep. It is for this prior period of driving that the prosecution must establish criminal fault. A finding that the driver fell asleep may allow the inference of criminal fault to be drawn. However, the High Court also held that the liability for dangerous driving causing death was strict rather than absolute. This means that an accused can rely on the defence of honest and reasonable mistaken belief (that is, the accused can argue that they honestly and reasonably, but mistakenly believed that it was safe to drive). If the jury accepts that there was an absence of warning of the onset of sleep, then the accused is acquitted. Thabo Meliv R [1954] 1 All ER 373 Four defendants intended to kill their victim so they induced him to consume alcohol, struck him on the head and threw the "body" over a cliff to make the death appear accidental. Because they thought that the blow had killed him, there was no mensrea when they abandoned him and he died from exposure.

The first act did not cause death but had the appropriate fault element (mensrea). The second act caused death but had no mensrea. But the Privy Council held that it was impossible to divide up what was really one transaction. The actusreus was said to be the series of acts and omissions with mensrea covering the initial stages.

Fagan v Commissioner of Metropolitan Police [1989] 1 QB 439 The defendant, Mr. Fagan, was in his car when a police officer approached him and told him to move his car. In accordance with the directions, Fagan backed his car up, accidentally rolling it onto the foot of the officer. When the officer yelled at him to move his car off his foot, he cursed back at him, told him to wait, and refused to move. At trial, Fagan was convicted of "Assaulting a constable in execution of his duties". Fagan appealed on the grounds that there can be no offence in omitting to act and that the act of driving onto the constable's foot was done completely by accident so there was no mensrea. The Divisional Court agreed that assaultcannot be committed by an omission. However, in this case, the crime was not an omission to move the car; rather, it constituted a continual act of battery. The offence was not complete until the moment Fagan realised that he had driven onto the foot of the officer and, in deciding not to cease this continual act, formed an intent amounting to the mensrea for common assault. Since both mensrea and actusreus were present, an assault had been committed, and Fagan's conviction was upheld. R v Miller [1983] 1 All ER 978 Miller, a vagrant, accidentally set fire to a mattress in a house in which he was sleeping. Rather than taking action to put out the fire, he moved to a different room; the fire went on to cause extensive damage to the cost of 800.[2] He was subsequently convicted of arson, under Sections 1 and 3 of the Criminal Damage Act 1971. Miller's defence was that there was no actusreus coinciding with mensrea. Although his reckless inattention to the fire could be said to constitute mensrea, it was not associated with the actusreus of setting the fire. Nevertheless, the defendant was convicted for recklessly causing damage by omission. Upon appeal to the House of Lords, 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." The decision in effect established that the actusreus was in fact the set of events, starting with the time the fire was set, and ending with the reckless

refusal to extinguish it, establishing the requisite mensrea and actusreus requirements. Therefore, an omission to act may constitute actusreus. Actions can create a duty, and failure to act on such a duty can therefore be branded blameworthy. Secondly, an act and subsequent omission constitute a collective actusreus. This has been described as the principle of 'supervening fault'.

D Legislation
Crimes Act 1900 (NSW), ss 4A, 5 and 7; Part 1A; Part 11A, ss 428A428H 4A Recklessness For the purposes of this Act, if an element of an offence is recklessness, that element may also be established by proof of intention or knowledge. PART 11A INTOXICATION 428A Definitions In this Part: "drug" includes a drug within the meaning of the Drug Misuse and Trafficking Act 1985and a poison, restricted substance or drug of addiction within the meaning of the Poisons and Therapeutic Goods Act1966. "intoxication" means intoxication because of the influence of alcohol, a drug or any other substance. "offence" includes an attempt to commit the offence. "offence of specific intent" is defined in section 428B. "relevant conduct" means an act or omission necessary to constitute the actusreus of an offence. "self-induced intoxication" means any intoxication except intoxication that: (a) is involuntary, or (b) results from fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force, or (c) results from the administration of a drug for which a prescription is required in accordance with the prescription of a medical practitioner, a registered nurse whose registration is endorsed under the Health Practitioner Regulation National Law as being qualified to practise as a nurse practitioner, a registered midwife whose registration is endorsed under the Health Practitioner Regulation National Law as being qualified to practise as a midwife practitioner, or dentist, or of a drug for which no prescription is required administered for the purpose, and in accordance with the dosage level recommended, in the manufacturers instructions.

428B Offences of specific intent to which Part applies An "offence of specific intent" is an offence of which an intention to cause a specific result is an element. 428C Intoxication in relation to offences of specific intent (1) Evidence that a person was intoxicated (whether by reason of self-induced intoxication or otherwise) at the time of the relevant conduct may be taken into account in determining whether the person had the intention to cause the specific result necessary for an offence of specific intent. (2) However, such evidence cannot be taken into account if the person: (a) had resolved before becoming intoxicated to do the relevant conduct, or (b) became intoxicated in order to strengthen his or her resolve to do the relevant conduct. 428D Intoxication in relation to other offences In determining whether a person had the mensrea for an offence other than an offence of specific intent, evidence that a person was intoxicated at the time of the relevant conduct: (a) if the intoxication was self-induced-cannot be taken into account, or (b) if the intoxication was not self-induced-may be taken into account. 428E Intoxication in relation to murder and manslaughter If evidence of intoxication at the time of the relevant conduct results in a person being acquitted of murder: (a) in the case of intoxication that was self-induced-evidence of that intoxication cannot be taken into account in determining whether the person had the requisite mensrea for manslaughter, or (b) in the case of intoxication that was not self-induced-evidence of that intoxication may be taken into account in determining whether the person had the requisite mensrea for manslaughter. 428F Intoxication in relation to the reasonable person test If, for the purposes of determining whether a person is guilty of an offence, it is necessary to compare the state of mind of the person with that of a reasonable person, the comparison is to be made between the conduct or state of mind of the person and that of a reasonable person who is not intoxicated.

428G Intoxication and the actusreus of an offence (1) In determining whether a person has committed an offence, evidence of selfinduced intoxication cannot be taken into account in determining whether the relevant conduct was voluntary.

(2) However, a person is not criminally responsible for an offence if the relevant conduct resulted from intoxication that was not self-induced. 428H Abolition of common law relating to self-induced intoxication The common law relating to the effect of intoxication on criminal liability is abolished.

II H OMICIDE
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. Therefore, only two questions arise here: (1) Who is considered a human being, and The concept of a human being encompasses questions concerning birth and death. Beginning of Life: In Attorney-General (QLD) v T, Gibbs CJ stated that a fetus has no rights of its own until it is born and has a separate existence from its mother.35 The decision in R v Hutty confirmed that the 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.36 Section 20 of the Crimes Act 1900: 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 an independent circulation or not. R v Iby (2005)63 NSWLR 278 The accused had driven a stole 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 died two hours after delivery. On appeal, the accused argued that the baby was not born alive because their was a lack of evidence that the baby had breathed independently, although there was evidence of a heart-beat. The court held 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. This suggests that being born alive is essentially a question of fact for the jury.

35 36

Attorney-General (QLD) (Ex rel Kerr) v T (1983) 57 ALJR 285, 286 R v Hutty (1953] VR 338, 339

R v King (2003) 59 NSWLR 472 The victim was pregnant with the accusers 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 fetus was delivered stillborn and at trial the accused was charged with intentional infliction of grievous bodily harm and procuring a miscarriage. The Court extended the definition of a person under s 33 of the Crimes Act 1900 (NSW) to include the fetus as connected to the mother. The close physical bond between the mother and the fetus is such of a character that, for purpose of offenses such as this, the fetus should be regarded as part of the mother.37 To avoid uncertainty, the position in R v King was codified in the Crimes Amendment (Grievous Bodily Harm) Act 2005 (NSW). Crimes Amendment (Grievous Bodily Harm) Act 2005 (NSW) s 4 Section 4 Definitions Grievous bodily harm includes: (a) The destruction (other than in course of a medical procedure) of the fetus of a pregnant woman, whether or not the woman suffers any other harm, and (b) Any permanent or serious disfiguring of the person End of Life: Most jurisdictions have legislation deeming a person dead where either irreversible cessation of all function of the brain or irreversible cessation of the circulation of blood has occurred.38 (2) What tests need to be applied in establishing causation This was mentioned in criminal responsibility.

A Murder
not malicious s18(2) In any event, the High Court has held that the concept of malice is redundant, adding nothing further to the fault element of recklessness.39 with intent to kill or inflict grievous bodily harm s18(1)(a) An intention to kill satisfies the fault element for murder in all jurisdictions. In relation to murder, the prosecution must prove specific intent, i.e. that the accused intended death to be the result of the conduct. In addition, the fault element for murder includes an intention to inflict some form of serious bodily harm. In New
R v King (2003) 59 NSWLR 427, 491 Criminal Code (Cth), s 4, Criminal Code (ACT), s 3, Human Tissue Act 1983 (NSW), s 33 39 Royal v The Queen (1991) 172 CLR 378
38 37

South Wales, Queensland and at common law, the term grievous bodily harm is used. This approach is highly criticized and there are attempts to abolish it. recklessindifference to human life s18(1)(a) Recklessness also falls within the fault elements for murder in some jurisdictions. The test for recklessness at murder is different to that from the definitions applied for sexual assault. The test for murder is whether the accused knew that death was a probable consequence of his or her conduct.40 This test is subjective in that I must be proved that the accused knew of the likelihood of causing death. See above, criminal responsibility. If intention is defined broadly in the oblique sense to include awareness of likelihood, the fault element would overlap with the notion of recklessness. In jurisdictions where recklessness is not a fault element for murder, oblique intention could be used in its place. In Vallance v The Queen the minority judgment favored the broad interpretation of intention. Yet, intention has not been defined by the High Court, so recklessness can not be held to be a sufficient fault element in Queensland, Northern Territory and Western Australia. 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. s18(1)(a) This provision relates to constructive murder in New South Wales. 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 Victoria, while resisting lawful arrest.41This 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. The prime physical element for constructive murder is similar to that of murder and manslaughter in that the accused must have caused the death of the victim. However, there are further requirements in that the victims death must be connected in some way to the commission of a specified offence. The New South Wales provision on the commission of a specified offence requires 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. In Mraz v The Queen it was 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 the offence. Cases: Royall v The Queen (1992) 173 CLR 378 See causation, re natural consequence test

40 41

R v Crabbe (1985) R v Ryan and Walker [1966] VR 553

Noting re causation R v Smith [1959] 2 QB 35 A soldier stabbed another soldier with a bayonet. The defendant was guilty of murder even though the victim was dropped twice by a medical staff and given incorrect treatment. It was held that there was no break in the casual chain as it is not enough that the minor happenings hinder recovery. The original wound is the operating and substantial cause and the chain will only be broken where the 2nd cause is so great. R v Blaue[1975] 1 WLR 1411 The defendant stabbed a woman in the lung. She needed a blood transfusion to live but refused due to religious reasons and subsequently died. It was held that the physical cause of death was the bleeding, which was brought about by the stabbing, not by the victims choice not to be treated. R v Evans and Gardiner (No 2) [1976] VR 523 Evans and Gardiner stabbed a fellow-prisoner in gaol who was successfully operated on. He died about a year later due to a not uncommon sequel to that operation which was not diagnosed by the doctors. The court held that when determining whether a felonious act or an intervening event was the cause of death, the test is whether the felonious act is still an operating and substantial cause of death. Death is, of course, inevitable. Homicide is really the acceleration of the event. Accordingly, if a victim received from one assailant an injury which would or might ultimately result in death, but before that event occurred he received from another assailant a further injury which accelerated his death, the second assailant would only be guilty of an attempt to commit homicide. R v Hallett[1969] SASR 141 See causation, re substantial cause and reasonable foreseeability test. If there is a continuous stream of events leading to death it is enough if there is an intention to kill at any stage. R v Pagett(1983) 76 Cr App R 279) To resist lawful arrest the defendant held a girl in front of him and shot at the arresting police officer. The police officer instinctively fired

backed and killed the girl. It was held that his action substantially caused the death of the girl and it was not necessary that it be the sole action. It was also held that the action of the third party was not an intervening event as self-defense was a foreseeable consequence of his action and had not broken the chain of causation. Noting re mensreaand constructive murder Mraz v The Queen (1955) 93 CLR 493 It was held that it was unnecessary for the jury to prove means rea for murder or manslaughter when coupled with a rape charge. The very fact that they were coupled made it clear that the act was done maliciously. This outlines that there must be a temporal connectionbetween the crime and act it must be done in furtherance of the crime. On the other hand, if the rape didnt take place the accused should be acquitted, as there is no evidence that an act amounting in murder or manslaughter exists. Crabbe v The Queen(1985) 156 CLR 464 Crabbe, who had consumed a substantial quantity of alcohol, was ejected from a bar. He then drove a road train into the crowded bar killing 5 people. In order to sustain a conviction of murder, the accused must actually know or foresee that his actions will probably cause death or grievous bodily harm. In NSW s 18 of Crimes Act, does affect the definition of murder and means that foresight by the accused that his/her actions would probably lead to GBH is not sufficient to establish murder. The test for knowledge for murder is of a probability not possibility. Willful blindness by itself is not decisive but may indicate a defendants knowledge. Pemble v The Queen (1971) 124 CLR 107 Pemble was charged with murder when he shot his former lover. Evidence was that he had carried a loaded gun which was accidentally discharged as he came up behind her in an attempt to frighten her so that she would return to him. He was convicted and appealed on the ground of misdirection by the trial judge. The recklessness which was necessary to support a conviction of murder involved actual foresight or advertence to the consequences of the contemplated act, and the willingness by the accused to run the risk of the possibility of those consequences maturing into actuality.

Ryan v The Queen[1967] ACR 577 See above, criminal responsibility cases. In a charge like robbery with wounding, by majority the HC held, it is not necessary to show that the accused intended to cause the wounding if he did it. Munro v The Queen(1981) 4 A Crim R 67) The defendant robbed an old man in his home and punched him in the face and broke his ribs. The victim contracted pneumonia as a result of the injuries and died. The defence argued that the defendant could not be guilty of an offence under s 18 as he did not intend to kill or inflict GBH. The prosecution relied on reckless indifference and felony murder provision in s 18. The defence argued that there had to be a causal connection between the felonious wounding and the death and this was absent in this case. Street CJ rejected this view: "There is no relevant requirement of a causal link between the felony relied upon as constituting homicide one of felony murder and the death other than that stated in s 18(1)(a) itself, that is to say the act of the accused causing death was done during or immediately after the committing of a life sentence crime." Although the Court found that the wounding led directly to the death of the victim, it was not an "essential requirement" under this head of liability. The scope of liability is therefore very broad, potentially encompassing deaths through independent causes which occur subsequently. For example, a decision of a victim to commit suicide, who becomes depressed after a robbery or rape, could give rise to a charge of murder. The Court also rejected a defence argument that the prosecution, at least, had to establish that a reasonable person would have foreseen that his or her acts would have caused death. Arulthilakan v R ((2003) 203 ALR 259 Five men committed armed robbery, killing one person and inflicted GBH on another. At first instance, they where convicted of murder, wounding with intent to do GBH and attempted armed robbery. Royalls causation argument is applied. It was found that the victims resistance was clearly foreseeable. The presence of a knife for the purpose of threatinening or stabbing was an act of violence in the course ofan armed robbery, and the sequence of events was such that it could be, and ougt to be, regarded as a substantial cause of the death of bourne. But for test is no longer used R v Grant (2002) 55 NSWLR 80

Grant had been drinking from mourning, and took a half-hour break between 6:30 pm and 7:00 pm, where he claimed that he returned to his caravan to get some pig shooting guns to lend to two men. The Crown alleged that, inseam, he was seen to be walking towards three men, holding a rifle, and shot and killed on of the men. Grant then chased another of the men and shot at him, but the man escaped. The Crown alleged that in the pursuit, Grant had fired a shot, with the intent to kill the man. Grant was charged with murder and shooting with intent to murder. Grants charges all required specific intent under s428B(2) of the Crimes Act 1900 (NSW). Wood CJ found that intoxication is available for any charge of murder, including constructive murder. His Honor found that any mental sate for murder, including intoxication would be considered specific intent (ie. Not just intent to kill or inflict grievous bodily harm, but also reckless indifference).

Legislation: Crimes Act 1900 (NSW) Part 3, Division 1, ss17A-24. 17A Date of death (1) The rule of law that it is conclusively presumed that an injury was not the cause of death of a person if the person died after the expiration of the period of a year and a day after the date on which the person received the injury is abrogated. (2) This section does not apply in respect of an injury received before the commencement of this section. 18 Murder and manslaughter defined (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. (b) Every other punishable homicide shall be taken to be manslaughter. (2) (a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section. (b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only. 19A Punishment for murder

(1) A person who commits the crime of murder is liable to imprisonment for life. (2) A person sentenced to imprisonment for life for the crime of murder is to serve that sentence for the term of the persons natural life. (3) Nothing in this section affects the operation of section 21 (1) of the Crimes (Sentencing Procedure) Act1999(which authorises the passing of a lesser sentence than imprisonment for life). (4) This section applies to murder committed before or after the commencement of this section. (5) However, this section does not apply where committal proceedings (or proceedings by way of ex officio indictment) for the murder were instituted against the convicted person before the commencement of this section. In such a case, section 19 as in force before that commencement continues to apply. (6) Nothing in this section affects the prerogative of mercy. 21 Child murder by mother-verdict of contributing to death etc Whosoever, being a woman delivered of a child is indicted for its murder, shall, if the jury acquit her of the murder, and specially find that she has in any manner wilfully contributed to the death of such child, whether during delivery, or at or after its birth, or has wilfully caused any violence, the mark of which has been found on its body, be liable to imprisonment for ten years. 23 Trial for murder-provocation (1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter. (2) For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where: (a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused, and (b) that conduct of the deceased was 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, whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time. (3) For the purpose of determining whether an act or omission causing death was an act done or omitted under provocation as provided by subsection (2), there is no rule of law that provocation is negatived if:

(a) there was not a reasonable proportion between the act or omission causing death and the conduct of the deceased that induced the act or omission, (b) the act or omission causing death was not an act done or omitted suddenly, or (c) the act or omission causing death was an act done or omitted with any intent to take life or inflict grievous bodily harm. (4) Where, on the trial of a person for murder, there is any evidence that the act causing death was an act done or omitted under provocation as provided by subsection (2), the onus is on the prosecution to prove beyond reasonable doubt that the act or omission causing death was not an act done or omitted under provocation. (5) This section does not exclude or limit any defence to a charge of murder. 23A Substantial impairment by abnormality of mind (1) A person who would otherwise be guilty of murder is not to be convicted of murder if: (a) at the time of the acts or omissions causing the death concerned, the persons capacity to understand events, or to judge whether the persons actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) theimpairment was so substantial as to warrant liability for murder being reduced to manslaughter. (2) For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible. (3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section. (4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section. (5) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead. (6) The fact that a person is not liable to be convicted of murder in respect of a death by virtue of this section does not affect the question of whether any other person is liable to be convicted of murder in respect of that death. (7) If, on the trial of a person for murder, the person contends: (a) that the person is entitled to be acquitted on the ground that the person was mentally ill at the time of the acts or omissions causing the death concerned, or

(b) that the person is not liable to be convicted of murder by virtue of this section, evidence may be offered by the prosecution tending to prove the other of those contentions, and the Court may give directions as to the stage of the proceedings at which that evidence may be offered. (8) In this section: "underlying condition" means a pre-existing mental or physiological condition, other than a condition of a transitory kind. 24 Manslaughter-punishment Whosoever commits the crime of manslaughter shall be liable to imprisonment for 25 years: Provided that, in any case, if the Judge is of the opinion that, having regard to all the circumstances, a nominal punishment would be sufficient, the Judge may discharge the jury from giving any verdict, and such discharge shall operate as an acquittal.

B Manslaughter
1 Unlawful and Dangerous Act Manslaughter
As with all unlawful killings, the prosecution must prove beyond reasonable doubt that the accuseds act caused the victims death - you then look at whether the accuseds act was unlawful and dangerous. In order to establish manslaughter by unlawful and dangerous act it is necessary to establish: - The act was unlawful in the sense of in breach of the criminal law Holzer[1968], Pemble (1971) - That a reasonable man in the position of the accused would have realized that he was exposing others to an appreciable risk of serious injury Wilson (1992). A risk of minor injury is insufficient: Whittaker (1993). The act must be unlawful rather than merely a civil wrong - Pemble v The Queen (1971). (i) Unlawful Act The act must be unlawful in the sense that is a criminal act not merely a civil wrong. 42 As stated above, this has generally been assault, but other offences that have been treated unlawful include: attempted assault; unlawful wounding; burglary; arson; abortion; and discharging a fire-arm in a public place. Offences of carelessness or negligence have been excluded from this category. In Andrew v DPP, Lord Atkins affirmed this position.

42

Pemble v The Queen (1971) 124 CLR 107

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 who killed another while driving without due care and attention would ex necessitate commit manslaughter.

It is important that the prosecution prove each element of the unlawful act, including the requisite fault element, if required by the offence.43 (ii) Dangerous Act 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 accuseds 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.

Smith defined serous injury as really serious bodily injury, GBH. The test for assessing dangerousness is an objective one. Noting that the 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.

2 Negligent Manslaughter
A killing that occurs through gross negligence amounts to manslaughter in all jurisdictions. 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.44 In general, negligent manslaugher requires the prosecution to prove that there was: (i) A Duty of Care A general duty not to cause harm exists at common law.45 Where an accused omits to act in a manner that causes the victimss death, vriminal liability will only be imposed where the accused was under a duty to act. In R v Miller, Lord Diplock referred to there being no rational ground for excluding from conduct capable of giving rise to criminal liability conduct which consist of a failing to take measures that lie within ones power to counteract a danger that one has created. An example of Miller being applied is in R v Evans. R v Evans [2009] EWCA Crim 650 The accused half-sister bought heroin from a dealer and then gave 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.
43 44

R v Lamb [1967] 2 QB 981 Nydam v The Queen [1977] VR 430, 455 45 R v Doherty (1987) 16 Cox CC 206 at 309 per Stephen J; implicit in Nydam v The Queen [1977] VR 430 at 445

The court considered whether a duty of care was owed. They 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 others life would normally arise. This duty arose in this case, not from the act or supply, but rather from the accuseds awareness that the heroin she procured for her was having a potentially fatal impact on her health. 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.

(ii) Standard of Care 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.46 At common law, this is linked to the risk of causing grievous bodily harm. In R v Lavender, the High Court stated that importing a subjective element was erroneous in principle.
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.

There are some signs that having a subjective element in offences of negligence has some support. In R v Lavender, Kirby J commented that it would not be rational to impute blame to a person who is physically or mentally in cable of achieving the standard of care expected by the criminal law. Again, in R v Wills, since the accused had specialist knowledge, the test was that of a reasonable person with that knowledge. The 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. Physical characteristics, besides age, have not been taken into account when establishing the objective standard.47 (iii) Breach of Standard of Care The degree of negligence required to establish criminal liability is higher than that for the civil law. In Nydam v The Queen, the Court referred to a great falling short of the standard of care involving a high risk of death or serious harm.48

3 Differences Between Unlawful Dangerous Act & Negligent Manslaughter


46 47

Nydam v The Queen [1977] VR 430, 439, 446 R v Holness [1970] Tas SR 74 48 Nydam v The Queen [1977] VR 430, 445

First, for manslaughter by criminal negligence, the test is a high risk that death or grievous bodily harm would follow. In contrast, unlawful and dangerous act manslaughter requires an appreciable risk of serious injury. Secondly, for manslaughter by criminal negligence, the accuseds act need not be unlawful. However, this distinction is illusory as there is no requirement (or restriction) that the accuseds behavior must not be criminal.

Cases: Wilson v The Queen (1992) 174 CLR 313 Wilson was walking home with the defendant, on the way home the V, a drunk man tries to kiss Wilson who then punches him in the face. The other D came out and smashed the Vs head on the concrete and robbed himD was charged with constructive murder where robbery was the main foundation of the crime Look at which case actually caused the death, all who caused death intentionally or accidentally are liable for conviction for murderprosecution needs to prove that Mr Wilson committed an unlawful act which viewed objectively must be dangerous, must exist a likelihood or risk of serious injury such that it can be said that the act in question was dangerous.
In the end the jury has to determine whether the accuseds 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.

Risk must be significant not remote. Pullman (1991) 58 A Crim R 222 The accused was convicted of manslaughter and causing grievous bodily harm by an unlawful act when he deliberately drove across an unbroken centre line on a roadway breaching regulations and causing a vehicle travelling in the opposite direction to collide with a motorcyclist who was killed. Two other drivers seriously injured. It was held (on appeal) for the purposes of manslaughter by an unlawful and dangerous act, an act is not unlawful merely because it breaches a statutory prohibition. Gunter (1921) 21 SR (NSW) 282 R v Lamb [1967] 2 QB 981 The accused shot and killed his best friend wile 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. Although a verdict of manslaughter could be returned based upon an unlawful and dangerous act or criminal negligence on the part of the accused, it was necessary for the jury to consider the accuseds state of mind since mensrea was an essential element in manslaughter - pulling of the trigger is already in itself an unlawful act even though there was no intent to injure. Pemble(1971) 124 CLR 104 See murder Nydam[1977] VR 430 See Criminal Responsibility Negligence, Where the accused caused the death of a person by act or omission, which to a very high degree falls short of the standard of care that a reasonable person would have exercised, then it goes beyond a civil wrong and amounts to a crime Young CJ discusses the difference between negligence and recklessnessit is negligence when: - It falls short of the standard of care required by a reasonable man in the circumstances - It creates a higher degree of risk or likelihood of the occurrence of death or serious bodily harm if that standard of care is not observed - Not a consciousness by the accused of the likelihood of his act causing death or serious bodily harm to the victim or persons placed in a similar relationship as the victim was to the accused. - For recklessness the only different element is where the accused is aware of the likelihood of his act causing death or grievous bodily harm and he doesnt care or he does nothing to stop that risk R v Lavender (2005) 218 ALR 521 The judgment interpreted the Crimes Act, in particular, sections 5 and 18. It was decided by the judges that at common law, the presence or absence of malice were the difference between murder and manslaughter as you can't have malicious involuntary manslaughter (at [24]) as it would require a mensrea which isn't included in the common law elements of manslaughter. They then go on to talk about the decision in Wilson v the Queen, which established involuntary manslaughter due to the importance that law holds on human life. It also established that the only relevant intent needed by the accused is an intent to do the act which resulted in death. Russell [1933] VLR 59

Russell was charged with murder as a principle in the second degree when he stood by and watched his wife drown their two young children and herself in a swimming pool. He was convicted of manslaughter and appealed. That the accused by reason of his parenthood was under a duty to prevent his wife from committing the crime and his connivance to that act by standing by and doing nothing would make him guilty of manslaughter. Stone and Dobinson[1977] 1 QB 354 Judgment held, Criminal negligence is where the prosecution can show that the act which caused death was done by the accused consciously and voluntarily without any intention of causing GBH but in circumstances which involve such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk of death that the act merited criminal punishment Taktak(1988) 14 NSWLR 226 Could have also been found guilty of manslaughter by omission due to secluding her from help but it was found that his omission did not contribute to her death. Taylor (1983) 9 A Crim R 358 D convicted of killing her daughter for overdosing sedatives into the child. Lush J said: the act was done by the accused consciously and voluntarily without the intent to kill or cause GBH she is guilty of manslaughter by negligence because her acts were in circumstances which involve such a great falling short of the standard of care which a reasonable person would have exercised. Wills [1983] 2 VR 201

Legislation: See above, same as murder

III D EFENCES
A Provocation
Provocation operates as a partial defense to murder in that successful reliance on the defense reduces the charge of murder to manslaughter. The defense may be raised in

relation to all forms of murder, including reckless murder.49 It may not, however, be available to a charge of attempted murder. 50 Before provocation becomes a relevant defense in a murder trial, the prosecution must have satisfied the jury beyond a reasonable doubt that the accused has otherwise committed murder.51Provocation was established to reduce mandatory capital punishment. The defense recognizes that an individual may suffer a temporal loss of self-control in certain circumstances and attempts to distinguish between intention killings which are committed in cold blood and those which occur in an extreme emotional state and which are unpremeditated. Where there was an opportunity for the blood to cool the defense was not available. 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 defense. 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 defense can thus be divided into three fundamental requirements: (1) There must be provocative conduct At common law, the sight of a wife committing adultery has been viewed as a grave provocation. Yet, Hart v The Queen held that the sight of the accuseds estranged wife kissing another man was not sufficient evidence of provocation. Moffa v The Queen pointed out that a case of provocation by words might be more easily invented than provocation by conduct. Therefore, there is an element of public policy as well as common sense requiring the close scrutiny of claims of provocation founded in words. This scrutiny lies to the judge. Insulting words may amount to provocation if they are violently provocative or of an exceptional character. R v Arden found that being told by a third person excludes the defense of provocation. The provocation must have emanated from the victim.52 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 the accused has a close relationship. (2) The accused must have lost self-control as a result of the provocation; and R v McGregor found that it was necessary that the acts or words of the dead have caused the accused a sudden and temporary loss of self control, rendering him [or her] so subject to passion as to making him [or her] for the moment not master of his [or her] mind. The loss of self-control must have been caused by the provocation rather than another factor, such as intoxication.53

49 50

Johnosn v The Queen (1976) 136 CLR619, 634 R v Farrar [1992] 1VR 201, 208-9 51 Lee Chun-Chuen v The Queen [1963] AC 220, 231 52 Gardner (1989) 42 A Crim R 279 53 R v Perks (1986) 41 SASR 335

When considering whether or not an accused actually lost self-control, the jury must consider all the relevant characteristics of the accused.54The courts have taken in to account other emotions than anger and the loss of self-control may vary in intensity. Wood J held in Peisleythat it must be to a point where reason has been temporary suspended. The jury may consider the significance of any time delay in assessing whether or not the accused lost self-control.55 There is no separate requirement that the accused lose self-control suddenly or immediately following the provocative conduct. 56Any evidence of a cooling off period will merely be a factor that the jury can consider. (3) The provocation must be such that it was capable of causing an ordinary person to lose self-control and to act in the ay the accused did. Mascianto v The Queen noted that the defense 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.57The ordinary person test involves two questions: (i) Gravity of the Provocation 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? 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.58 (ii) Reaction to 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 which the accused did. The ordinary person test remains the same in essence. Cases: Stingel(1990) 171 CLR 312 The accused had made an unsworn statement that he had found his exgirlfriend, with whom he was obsessed, engaging in sexual activities with a man, Taylor, in a car. According to accused, when he opened the car door, Taylor had said, Piss off, you cunt, piss off. The accused then fetched a butcher knife and stabbed Taylor to death. He stated that seeing his exgirlfriend with Taylor and the latters words had caused him to lose selfcontrol. The High Court said there was a large degree of conformity in the law of provocation, whether it be at common law or statutory. The High Court
54 55

Stingel v The Queen (1990 171 CLR 312 R v Fisher (1937) 8 Car and P 182 56 Moffa v The Queen (1977) 138 CLR 601 57 Masciantonio v The Queen (1995) 183 CLR 58, 66 58 Stingel v The Queen (1990 171 CLR 312

subsequently affirmed that the test in Stingelequally applied to the common law. The ordinary person test was found to include any characteristics of the accused. Masciantonio(1995) 183 CLR 58 The defense will only be successful when the provocation was capable of causing an ordinary person to lose self-control and act in the way the accused did. Green (1997) 148 ALR 659 The 22 year-old accused killed the 36 year-old male victim, one of the accuseds best friends, after the latter had gently touched the accuseds side, bottom and groin area. He drove the victim to hospital and admitted to killing him, claiming he did worse to me. The High Court considered the sexual abuse history the existed in the accused family and found that the non-violent advance of the victim was enough to form provocation. Also, the ordinary person test found in Stingel and Masciantionio was found to apply to s23 of the Crimes Act 1900 (NSW). Osland v The Queen (1999) 159 ALR 170 The accused poisoned her abusive husband. A phycologist gave evidence that she was under battered women syndrome at the time of the murder. The court held that BWS could provide the accused with an excuse for killing her husband. Her actions didnt fit into provocation or self defense because it was a pre-meditated killing. Legislation: Crimes Act 1900 (NSW), s23 23 Trial for murder-provocation (1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter. (2) For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where: (a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused, and (b) that conduct of the deceased was 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, whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time.

(3) For the purpose of determining whether an act or omission causing death was an act done or omitted under provocation as provided by subsection (2), there is no rule of law that provocation is negatived if: (a) there was not a reasonable proportion between the act or omission causing death and the conduct of the deceased that induced the act or omission, (b) the act or omission causing death was not an act done or omitted suddenly, or (c) the act or omission causing death was an act done or omitted with any intent to take life or inflict grievous bodily harm. (4) Where, on the trial of a person for murder, there is any evidence that the act causing death was an act done or omitted under provocation as provided by subsection (2), the onus is on the prosecution to prove beyond reasonable doubt that the act or omission causing death was not an act done or omitted under provocation. (5) This section does not exclude or limit any defense to a charge of murder.

B Self-Defense
This defense is available in crimes involving a threat of or use of force to the person, such as murder or assault. If successful, the result is a complete acquittal. Protection of Others - R v Duffy held that self-defense is not restricted to the person being attack. It has been said to extend to the principal civil and natural relations. In this case the issue was weather the sole object of the accuseds intervention was to restore the peace. The court saw a general liberty even as between strangers to prevent a felony. This was solidified in R v Williams (Gladstone) when the selfdefense was found available where the accused intervened in defense of a youth. Limits on this liberty were also placed in Duffy. The intervention of another assailant is wholly different in law from a person intervening with the sole object of restoring the peace by rescuing a person being attacked. 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.59 Protection of Property - In R v McKay, a poultry farmer shot and killed a man whom he believed to have been stealing fowls from his farm. The defense of property in this case was held to be an insufficient rationale for the use of lethal force. The test set out in Zecevic v DPP (Vic) was whether or not the accused honestly believed, on reasonable grounds, that it was necessary to do what was done in defense of property. The court was of the opinion that lethal force could be justified only where a thereat 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 this test.

59

R v Chisam (1963) 47 Cr App R 130

Nature of The Attack - R v McKay also found that a case of self-defense may arise where there was not only a physical attack on the accused, but also where the accused reasonably perceived that there was a danger that an attack would occur. Zecevic v DPP held that there is no legal requirement that the attack be a lawful one. This requirement does not exist at statute for most jurisdictions. This case also held that self-defense may also be relied on if the accused original aggression (provoking) had ceased at the time of the victims counter-attack. However, this is difficult to raise in practice seeing that the person initiated the attack upon himself. Accused BeliefAt Common Law, The accused must believe on reasonable grounds that it was necessary to do what he did.60 This entails the analysis of firstly, what the accused believed, and secondly, whether this belief was formed on reasonable grounds. It is important to note that the accused belief being made on reasonable grounds doesnt mean consideration of what an ordinary or reasonable person would of believed, but, rather, what the accused might reasonably of believed in all the circumstances.61In Conlon, it was 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 belief. The aspect of reasonableness places an objective gloss over this subjective insight. The accuseds mistaken belief must be sane and not the result of delusions. 62 Section 418(2) of the Crimes Act 1900 requires that the accuseds conduct must be a reasonable response in the circumstances as the accused perceives them. This limb of the test has not been held to import a reasonable or ordinary person standard, but rather is an entirely objective assessment of the proportionality of the accuseds 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.63 It is also clear that the statutory formulation diverges from the common law in that it does not require that the accuseds belief in the necessity of his or her action be based on reasonable grounds. The following factor may be considerations relevant to the reasonableness of the response from the perspective of the accused: (1) the nature of the conduct to which the accused responded (as perceived by the accused); (2) any conduct on part of the accused which caused the conduct to which the accused then responded (for example, provocative conduct by the accused); (3) the surrounding circumstances (as perceived by the accused), including the time available to make a decision as to how to respond; (3) 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. Necessary ForceAt common law, the force used in relation to a threat or an attack must be reasonably necessary.64Under section 418(2) of theCrimes Act 1900 (NSW) the accused must believed that the force was necessary. There is no legal requirement
60 61

Zecevic v DPP (Vic) 162 CLR 645, 633 Conlon (1993) 69 A Crim R 92 62 R v Walsh (1991) 60 A Crim R 419 63 R v Katazynski [2002] NSWSC 613, 623 64 Zecevic v DPP (Vic) 162 CLR 645, 645

that the fore is proportionate to the attack.65 Proportionality will simply be a factor to take into account in assessing the accuseds belief that it was necessary to do what he do she did. Nor is there a legal requirement that the accused must retreat at opportunity. R v Johnson posed that the jury should be warned that from the point of view of the accused, turning away from the aggressor might obviously lead to ones own destruction. Excessive Self-defenseZecevic v DPP found that proportionality may only be taken into account as a circumstance of the case rather than a separate rule of law. If the act was so disproportioned from the threat or attack the belief that the force was necessary is weakened and self-defense may fail. Under section 421 of the Crimes Act 1900 (NSW) the failing of self-defense, on the basis of the perception of the accused in light of the entire circumstance (including proportionality), in a case involving death, will result in manslaughter providing that the requirements of this offence are met. Cases: Osland v The Queen (1999) 159 ALR 170 See above, provocation. Katarzynski[2002] NSWSC To negative a defence of self defence, once raised, the prosecution must establish either that: (1) The accused did not genuinely believe that he did what he did in self-defence; OR; (2) that the accused did not believe that what he did was a reasonable response to the danger, as he perceived it to be. The first leg of the test is completely subjective. It is insufficient for the Crown to prove that the belief of the accused was unreasonable. The second leg of the test is whether the conduct of the defendant was a reasonable response in the circumstances as he or she perceived them. It is partly subjective and partly objective subjective as to the perceived danger and surrounding circumstances, including the need for a response, and objective as to the proportionality of the response. Matters such as intoxication can be taken into account for the subjective matters, not the objective.

Legislation: Crimes Act 1900 (NSW), ss418-423 418 Self-defence-when available (1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: (a) to defend himself or herself or another person, or

65

Ibid.

(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or (c) to protect property from unlawful taking, destruction, damage or interference, or (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them. 419 Self-defence-onus of proof In any criminal proceedings in which the application of this Division is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence. 420 Self-defence-not available if death inflicted to protect property or trespass to property This Division does not apply if the person uses force that involves the intentional or reckless infliction of death only: (a) to protect property, or (b) to prevent criminal trespass or to remove a person committing criminal trespass. 421 Self-defence-excessive force that inflicts death (1) This section applies if: (a) theperson uses force that involves the infliction of death, and (b) the conduct is not a reasonable response in the circumstances as he or she perceives them, but the person believes the conduct is necessary: (c) to defend himself or herself or another person, or (d) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person. (2) The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter. 422 Self-defence-response to lawful conduct This Division is not excluded merely because: (a) the conduct to which the person responds is lawful, or (b) the other person carrying out the conduct to which the person responds is not criminally responsible for it. 423 Offences to which Division applies (1) This Division applies to offences committed before or after the commencement of this Division, except as provided by this section.

(2) This Division does not apply to an offence if proceedings for the offence (other than committal proceedings) were instituted before the commencement of this Division.

IV ASSAULT
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 the second instance, 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.

1 Common Assault
In New South Wales and the ACT the common law definition of assault applies. The leading case setting out this definition is Fagan v Commissioner of Metropolitan Police. It was stated in this case that: an assault is any act which causes another person to apprehend immediate and unlawful personal violence and the actual intended use of unlawsul force to another person without his [or her] consent. (a) The Treat of Force 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.66 If no bodily harm exists, and the assault was not committed on an officer, the offender is prosecuted under section 61 of the Crimes Act. If the threat disturbs the victim enough to amount in a psychiatric disorder (actual bodily harm) they can be prosecuted under section 59. An omission to act cannot constitute an assault.67 Threatening words made over the telephone may amount to an assault at common law.68 In R v Ireland; R v Burstow the house of lords held that making a series of silent telephone calls that caused fear of immediate and unlawful bodily harm amounted to assault. The critical question was not of intent, as the menacing nature of the silent calls amounted to intent. The assault depended on the impact of the callers potentially menacing calls on the victim. An apprehension of personal violence may exist even where the accused is not in a position to carry out the threat. In R v Everingham, the accused pointed a toy gun at a taxi driver who thought that it was real. The court held that a clear case of assault
66

67

Fagan v Commissioner of Metropolitan Police [1989] 1 QB 439. Ibid. 68 R v Knight (1998) 35 A Crim R 31

could be imagined. In R v Lamb, the opposite is observed. No assault could be made out because the victim and the accused believed that the bullet was not opposite the firing pin. In some jurisdictions the actual ability, despite the failure of an apparent ability, can form an assault. This doesnt exist in the ACT or NSW. In relation to conditional threats, the court drew a distinction between conditional threats lawful or unlawful conditional threats. An unlawful conditional threat constitutes an assault as it involves a threat that a party has no right to impose. A lawful conditional threat is not an assault and involves a scenario were a threat may be made to stop the victim from continuing a unlawful action. In Roza v Samuels a taxi driver threatens to cut the victim if he steals his position in the taxi rank. This was considered an unlawful as it went beyond what was reasonable in self-defense. (b) The Use of Force 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. The force need not be violent, but can be as slight as a mere touch.69 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. 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. 70 (c) Common assault the fault element In all jurisdictions, a common assault may be committed intentionally or recklessly. Assault has been referred to as a crime of basic intent,71 in that it is a crime involving a specified form of conduct and intention that is therefore indicative of the accused having meant to perform the conduct. Thus, for assault by the threat of force, the accused 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. The fault element of recklessness is more complicated. An assault will be made out if the accused foresaw unlawful force or the act causing an apprehension of immediate and unlawful personal violence and continued to run the risk. The degree of foresight has been 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 consequence will occur.72

2 Aggravated Assault
A wide variety of statuory offences generally termed aggravated assaults authorize the imposition of greater penalties than for common assault. These statutory offences can be divided into three classes:
69 70

Collins v Wilcock [1984] 1 WLR 1172 Commissioner of Police v Wilson [1984] AC 242 71 R v OConnor (1980) 146 CLR 64 72 Boughey v The Queen (1986) 161 CLR 10, 21

(1) Assaults accompanied by an intention of a particular kind; The most serious form of assault in this class is assault with intent to commit murder. 73 The accused must intent 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. There are also statutory provisions dealing with assaults with intent to commit another crime. In all jurisdictions, it is an offence to commit an assault with intent to resist or prevent the lawful apprehension of the accused or of any other person for any offence. The arrest must be in the exercise of a legal right to arrest. This is viewed from the perception of the accused but as a question of fact.74 (2) Assaults committed on particular classes of people; and It is an offence to assault a police officer in the execution of his or her duty.75 It is not necessary for the prosecution to prove that the accused knew that the person assaulted was a police officer.76 The offence is only committed if the officer is acting in the execution of his or her duty.77This as been defined broadly in R v K. The federal court held that:
a police officer acts in the execution of his duty from the moment he ebarks upon a lawful task connected with his function as a police officer, and continues to act in the execution of that duty for as long as he is engaged in pursuing the task and until it is completed, provided that he, does not in the course of the task do anything outside the ambit of his duty so as to cease to be acting therein.

In New South Wales, section 60 of the Crimes Act adds further areas of assault to which an police officer may incur. The term officer is a broadly interoperated in the crimes act. It is not limited to officers of the law in all sections. (3) Assaults resulting in harm of a particular kind. In most jurisdictions assaults have been divided into degrees of fault relating to the amount of harm resulted. Common law has held actual bodily harm to have its ordinary meaning. It does not need to be permanent, but it must be more than merely transient or trifling. 78 This excludes physical injuries that are slight and insignificant and is a question for the jury. In R v Ireland; Burstow the court held that actual bodily harm includes psychiatric injury but it does not include mere emotions such as fear or distress or panic, not does it indicates states of mind that are not evidence of some identifiable clinical condition. In relation to unlawful wounding, a wound at common law consists of an injury involving a breaking through the inner and outer skin. 79 The use of unlawful in this

73

74

Crimes Act 1900 (NSW) s 27 R v Heavy (1965) 84 WN (pt 1) NSW 248 75 Crimes Act 1900 (NSW) s 58 76 R v Forbes & Webb (1865) 10 Cox CC 362 77 R v Cumpton (1880) 5 QBD 341 78 R v Donovan [1934] 2 KB 498 79 R v Wook and McMahon (1830) 1 Mood CC 278

offence is redundant as it merely expresses the principle that uses of force may be lawful or justifiable. Grievous bodily harm is defined in the Crimes Act to include any permanent or serious disfiguring of the person. The Crimes Amendment (Grievous Bodily Harm Act 2005 (NSW) expanded this definition to include the destruction pregnant womens fetus. (a) Difference Between Causing, Inflictingor Occasioning Harm The verbs causing and occasioning can be viewed broader than inflicting. Inflicting has been said to involve the direct or indirect application of force to the victim. However, in practice, little rides on the difference between these verbs because the word inflict has been interpreted broadly to include causing psychiatric illness. (b) Aggravated Assault - Fault elements The fault element required for assaults resulting in actual bodily harm is the same for common assault in that intention or recklessness will suffice. This is still a crime of basic intent, therefore, the intention or recklessness relates to the conduct rather than outcome. 80 Recklessness and intent are both fault elements in NSW and the ACT for grievous bodily harm. Intent appears to be of specific intent under the definition of 428B in section 33. Negligence and unlawfulness can be viewed as fault elements and prosecuted under section 54. R v Shields held that the negligence required was the same of that for negligent manslaughter.

3 Lawful Assault
As the law of assault and related offences had developed, a number of ways of avoiding criminal responsibility have also arisen. The use of force may be considered lawful if it: (1) Forms part of ordinary social activity An act that is part of ordinary social activity is not an assault.81 This has been seen to include the jostling that may occur on public transport or in a busy street, tapping on shoulders or a friendly handshake. (2) Forms the basis for an arrest or steps taken to prevent a breach of the peace A person exercising a lawful power of arrest is entitled to use reasonable force where it is necessary in order to effect that arrest.82 Alternatively, a person may exercise reasonable force to resist an unlawful arrest.83 Reasonable fore is a question of fact depending on the particular case.
80 81

R v Venna [1975] 3 WLR 737 Collins v Wilcock [1984] 1 WLR 1172 82 R v Turner [1962] VR 30 83 R v Ryan (1890) 11 LR(NSW) 171

(3) Is used in self-defense The defense of self-defense 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. (4) In some jurisdictions, is used as a result of provocation; or In the ACT and NSW provocation is a qualified defense to an assault, which is defined to include the word murder. The test is the same for that at murder and it is a partial defense. McGhee v The Queen held that provocation is not a defense against attempted murder. (5) Is used reasonably and moderately to chastise children This is outlined in section 61AA of the Crimes Act 1900 (NSW). (a) Consent Consent to a common assault renders the act lawful.84 Consent may be express or implied.85 The rule that an act thiat is part of ordinary social activity is not assault is sometimes justified on the basis of implied consent. Consent must be freely given and not induced by fraud, fore of threats.86 This situation in relation to aggravated assaults differs quite markedly from consent as it relates to common assault. No Australian case law exists on the subject. In the English case, Attorney Generals Reference (No 6 of 1980), it was held that consent is irrelevant where actual bodily harm occurs. There lies a notion that it is not in the public interest that a person should cause bodily harm to another for no good reason.87 A good reason for causing consensual bodily harm has been found to include: (1) Personal adornment such as tattooing, body piercing and branding; R v Wilson [1996] 3 WLR 125, 128 The accused branded his initials on his wifes buttocks with a hot knife. He is charged and convicted of assault occasioning in actual bodily harm. He argued that the act was consensual. On appeal, the court held that the act was on par with lawful tattooing and consent in this case was valid to make the assault lawful. (2) Surgery; and Surgery is viewed lawful when performed with the patientsconsent, despite it involving serious bodily harm.88Valid consent requires that the patient has the

84 85

R v Donovan [1934] 2 KB 498 Collins v Wilcock [1984] 1 WLR 1172 86 Wooley v Fitzgerald [1969] Tas SR 65 87 Attorney Generals Reference (No 6 of 1980) [1981] QB 715, 719 88 Department of Health and Community Service (NT) v JWB (19920 175 CLR 218

capacity to consent and is cable of understanding the treatment.89Consent must be voluntary.90 It must also pertain to the act being performed.91 If the patient is unable to give consent, another person may be authorized to give consent on that persons behalf. The common law appears to have a doctrine of emergency granting doctors the ability to proceed without consent. An emergency situation is one where the treatment is essential to preserve the patients life or to prevent serious permanent injury. It does not extend to treatment that is convenient.92 (3) Rough horseplay and violent sports R v Aitken [1949] 2 DLR 442 The accused and the victim were members of the Royal Air Force in the UK. They went to a party at the completion of their formally flying training and they consumed a considerable quantity of alcohol. Later that night, when two officers who were wearing fir-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 spirit 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 of inflicting grievous bodily harm. On appeal, the court held that the primary judge failed to give any direction in relation to the victims consent to rough and undisciplined horseplay. The court identified that there was no intention to injury the victim. In these circumstance, if the victim 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 activity. In relation to sports, the intention to injury or such a degree of recklessness can hold a person criminally liable to assault if it is breach of the rules and norm of the game to which the players have consented. Lergesner v Carroll casts doubt over the adoption of the previous English case law. It implies that consent is irrelevant when dealing with grievous bodily harm.

Cases: Fagan v Commissioner of Metropolitan Police [1989] 1 QB 439. See above, criminal negligence. Zanker v Vartzokas(1988) 34 A Crim R 11. 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
89 90

Ibid. Re T (Adult: Refusal of Treatment) [1993 Fame 95, 102 91 Department of Health and Community Service (NT) v JWB (19920 175 CLR 218 92 Murray v McMurchy [1949] 2 DLR 442

going to take you to my mates house. He will really fix you up. The victim then jumped out of the car. The court 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.

Knight (1988) 35 A Crim R 314. The accused had made a series of threatening phone calls. The court 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 any time at all. R v Ireland; Burstow[1997] 4 All ER 225 A series of silent telephone calls were made The court held that the clear intention to cause fear by the silent caller. This clear intention to create fear created a state of uncertainty around the accused intentions in the mind of the victim. Fear may dominate her emotions and the fear could be of an imminent arrival at her door by the assailant. She may fear the possibility of immediate personal violence. In this case the court held that bodily harm was no longer confined to physical harm and could include mental harm, providd that it amounted to a recognisabel psychiatric illness. R v Lardner (unreported NSWCCA, 10 September 1998, BC 9804715) Coleman (1990) 19 NSWLR 467

Legislation: Crimes Act 1900, ss 4, 4A, 33, 33A, 33B, 35, 35A; 54; 58, 59, 59A, 60AA, 60, 60A, 60B, 60C, 61, 61AA 33 Wounding or grievous bodily harm with intent (1) Intent to causegrievous bodily harm A person who: (a) wounds any person, or (b) causesgrievous bodily harm to any person, with intent to causegrievous bodily harm to that or any other person is guilty of an offence. Maximum penalty: Imprisonment for 25 years.

(2) Intent to resist arrest A person who: (a) wounds any person, or (b) causesgrievous bodily harm to any person, with intent to resist or prevent his or her (or another persons) lawful arrest or detention is guilty of an offence. Maximum penalty: Imprisonment for 25 years. (3) Alternative verdict If on the trial of a person charged with an offence against this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against section 35, the jury may acquit the person of the offence charged and find the person guilty of an offence against section 35. The person is liable to punishment accordingly. 33A Discharging firearm etc with intent (1) Intent to causegrievous bodily harm A person who: (a) discharges any firearm or other loaded arms, or (b) attempts to discharge any firearm or other loaded arms, with intent to causegrievous bodily harm to any person is guilty of an offence. Maximum penalty: Imprisonment for 25 years. (2) Intent to resist arrest etc A person who: (a) discharges any firearm or other loaded arms, or (b) attempts to discharge any firearm or other loaded arms, with intent to resist or prevent his or her (or another persons) lawful arrest or detention is guilty of an offence. Maximum penalty: Imprisonment for 25 years. 33B Use or possession of weapon to resist arrest etc (1) Any person who: (a) uses, attempts to use, threatens to use or possesses an offensive weapon or instrument, or (b) threatens injury to any person or property, with intent to commit an indictable offence or with intent to prevent or hinder the lawful apprehension or detention either of himself or herself or any other person or to prevent or hinder a police officer from investigating any act or circumstance which reasonably calls for investigation by the officer is liable to imprisonment for 12 years. (2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 15 years. 35 Reckless grievous bodily harm or wounding (1) Reckless grievous bodily harm-in company A person who, in the company of another person or persons, recklessly causesgrievous bodily harm to any person is guilty of an offence.

Maximum penalty: Imprisonment for 14 years. (2) Reckless grievous bodily harm A person who recklessly causesgrievous bodily harm to any person is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (3) Reckless wounding-in company A person who, in the company of another person or persons, recklessly wounds any person is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (4) Reckless wounding Aperson who recklessly wounds any person is guilty of an offence. Maximum penalty: Imprisonment for 7 years. (5) Alternative verdict If on the trial of a person charged with an offence against any subsection of this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against any other subsection of this section (that carries a lesser maximum penalty), the jury may acquit the person of the offence charged and find the person guilty of an offence against that other subsection. The person is liable to punishment accordingly. 35A Causing dog to inflict grievous bodily harm or actual bodily harm (1) Cause dog to inflict grievous bodily harm A person who: (a) has control of a dog, and (b) does any act that causes the dog to inflict grievous bodily harm on another person, and (c) is reckless as to the injury that may be caused to a person by the act, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (2) Cause dog to inflict actual bodily harm A person who: (a) has control of a dog, and (b) does any act that causes the dog to inflict actual bodily harm on another person, and (c) is reckless as to the injury that may be caused to a person by the act, is guilty of an offence. Maximum penalty: Imprisonment for 5 years. (3) Alternative finding If, on the trial of a person for an offence under subsection (1), it appears that grievous bodily harm was not inflicted on the other person but that actual bodily harm was inflicted, the person may be found not guilty of the offence charged but guilty of an offence under subsection (2) and be liable to punishment accordingly. (4) Doing an act includes omitting to do the act In this section, a reference to the doing of an act includes a reference to omitting to do the act. 54 Causing grievous bodily harm

Whosoever by any unlawful or negligent act, or omission, causesgrievous bodily harm to any person, shall be liable to imprisonment for two years. 58 Assault with intent to commit a serious indictable offence on certain officers Whosoever: assaults any person with intent to commit a serious indictable offence, or assaults, resists, or wilfully obstructs any officer while in the execution of his or her duty, such officer being a constable, or other peace officer, custom-house officer, prison officer, sheriffs officer, or bailiff, or any person acting in aid of such officer, or assaults any person, with intent to resist or prevent the lawful apprehension or detainer of any person for any offence, shall be liable to imprisonment for 5 years. 59 Assault occasioning actual bodily harm (1) Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years. (2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 7 years. 59A Assault during public disorder (1) A person who assaults any person during a large-scale public disorder, although not occasioning actual bodily harm, is liable to imprisonment for 5 years. (2) A person who assaults any person during a large-scale public disorder, and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years. 60AA Meaning of law enforcement officer In this Division: "law enforcement officer" means: (a) a police officer, or (b) the Commissioner for the Independent Commission Against Corruption or an Assistant Commissioner for that Commission, or (c) anofficer of the Independent Commission Against Corruption, within the meaning of the Independent Commission AgainstCorruption Act 1988, who performs investigation functions, or (d) the Commissioner for the Police Integrity Commission or an Assistant Commissioner for that Commission, or (e) anofficer of the Police Integrity Commission, within the meaning of the Police Integrity Commission Act1996, who performs investigation or confiscation functions, or (f) the Commissioner for the New South Wales Crime Commission or an Assistant Commissioner for that Commission, or (g) amember of staff of the New South Wales Crime Commission, within the meaning of the New South Wales Crime CommissionAct 1985, who performs investigation or confiscation functions, or (h) the Commissioner of Corrective Services, or

(i) governors of correctional centres, correctional officers and probation and parole officers, within the meaning of the Crimes(Administration of Sentences) Act 1999, or (j) anofficer of the Department of Juvenile Justice who works with children works from a community centre or childrens detention centre, or (k) anofficer of the Department of Juvenile Justice who is involved in the conduct of youth justice conferences, or (l) a Crown Prosecutor or an Acting Crown Prosecutor, or (m) an Australian legal practitioner who is employed as a member of staff of the Director of Public Prosecutions, or (n) a sheriffs officer. 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 officers duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 5 years. (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 officers 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 officers 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 officers duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 9 years. (3) A person who recklessly by any means: (a) wounds a police officer, or (b) inflictsgrievous bodily harm on a police officer, while in the execution of the officers duty is liable to imprisonment for 12 years. (3A) A person who, recklessly by any means, and during a public disorder: (a) wounds a police officer, or (b) inflictsgrievous bodily harm on a police officer, while in the execution of the officers duty is liable to imprisonment for 14 years. (4) For the purposes of this section, an action is taken to be carried out in relation to a police officer while in the execution of the officers duty, even though the police officer is not on duty at the time, if it is carried out: (a) as a consequence of, or in retaliation for, actions undertaken by that police officer in the execution of the officers duty, or (b) because the officer is a police officer. 60A Assault and other actions against law enforcement officers (other than police officers)

(1) A person who assaults, throws a missile at, stalks, harasses or intimidates a law enforcement officer (other than a police officer) while in the execution of the officers duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 5 years. (2) A person who assaults a law enforcement officer (other than a police officer) while in the execution of the officers duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years. (3) A person who recklessly by any means: (a) wounds a law enforcement officer (other than a police officer), or (b) inflictsgrievous bodily harm on a law enforcement officer (other than a police officer), while in the execution of the officers duty is liable to imprisonment for 12 years. (4) For the purposes of this section, an action is taken to be carried out in relation to a law enforcement officer while in the execution of the officers duty, even though the officer is not on duty at the time, if it is carried out: (a) as a consequence of, or in retaliation for, actions undertaken by that officer in the execution of the officers duty, or (b) because the officer is a law enforcement officer. 60B Actions against third parties connected with law enforcement officers (1) A person who assaults, stalks, harasses or intimidates any person with whom a law enforcement officer has a domestic relationship, with the intention of causing the law enforcement officer to fear physical or mental harm: (a) as a consequence of, or in retaliation for, actions undertaken by the law enforcement officer in the execution of the officers duty, or (b) because the law enforcement officer is a law enforcement officer, is liable to imprisonment for 5 years. (2) A person who obtainspersonal information about a person with whom a law enforcement officer has a domestic relationship, with the intention of using or permitting the use of the information to cause the officer to fear physical or mental harm: (a) as a consequence of, or in retaliation for, actions undertaken by the law enforcement officer in the execution of the officers duty, or (b) because the law enforcement officer is a law enforcement officer, is liable to imprisonment for 5 years. (3) For the purposes of this section, causing a law enforcement officer to fear physical or mental harm includes causing the officer to fear physical or mental harm to another person with whom he or she has a domestic relationship. (4) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person.

(5) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been assaulted, stalked, harassed or intimidated, or the law enforcement officer, actually feared physical or mental harm. (6) In this section, "domestic relationship" has the same meaning as in the Crimes (Domestic and Personal Violence) Act2007. 60C Obtaining of personal information about law enforcement officers A person who obtainspersonal information about a law enforcement officer, with the intention of using or permitting the use of the information for the purpose of assaulting, stalking, harassing, intimidating, or otherwise harming, the officer: (a) as a consequence of, or in retaliation for, actions undertaken by the law enforcement officer in the execution of the officers duty, or (b) because the officer is a law enforcement officer, is liable to imprisonment for 5 years. 61 Common assault prosecuted by indictment Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years. 61AA Defence of lawful correction (1) In criminal proceedings brought against a person arising out of the application of physical force to a child, it is a defence that the force was applied for the purpose of the punishment of the child, but only if: (a) the physical force was applied by the parent of the child or by a person acting for a parent of the child, and (b) the application of that physical force was reasonable having regard to the age, health, maturity or other characteristics of the child, the nature of the alleged misbehaviour or other circumstances. (2) The application of physical force, unless that force could reasonably be considered trivial or negligible in all the circumstances, is not reasonable if the force is applied: (a) to any part of the head or neck of the child, or (b) 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. (3) Subsection (2) does not limit the circumstances in which the application of physical force is not reasonable. (4) This section does not derogate from or affect any defence at common law (other than to modify the defence of lawful correction). (5) Nothing in this section alters the common law concerning the management, control or restraint of a child by means of physical contact or force for purposes other than punishment.

V SEXUAL ASSAULT
Sexual intercourse has been defined in section 61H of the Crimes Act 1900 (NSW). This term includes penetration to the genitalia or anus, fellatio and cunnilingus. The fundamental element of the offence of sexual assault is the lack of consent. Consequently, as was pointed out in R v Olugboja, the state of mind of the victim 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 defense. In sexual assault cases the clear line between mensrea and actusreus can be blurred. This is created by a duality in consent:: (1) consent in actusreusrefers to the lack of consent; and (2) consent in mensrearefers to lack of belief in the victims consent.

A Physical Elements
R v Oluboja 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. Questions in consideration for the jury would be whether: (1) their was a lack of resistance or dissent was indicative of consent; (2) rough handling by the accused was persuasion that induced consent; (3) or no meant yes or, perhaps, maybe. The adopted model (penetrative/coercive model) of sexuality views women 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.93The Crimes Act 1900 (NSW) does not allow the lack of refusal to hold consent as a question of fact, it may only be indicative. Areas that may negate consent are apparent in section 61HA of the Crimes Act 1900 (NSW). The use of violence, threats or fear cannot allow consent to be given freely or voluntary, there for it is not a valid consent under section 61HA. Padadimitropoulos deals with the complex issue of fraud/mistake and sexual assault. When the victim is substantially intoxicated, consent is not granted under section 61HA 6(a). Intoxication is defined in the act to include drugs and alcohol.

B Fault Elements For Sexual Assault


1 Belief in Consent The fault element for sexual assault is satisfied by an intention to have sexual intercourse without consent. This principle was established in DPP v Morgan where the court clarified that this intent will be satisfied by either knowledge that the victim is not consenting or by reckless as to consent. Further, this case found that a person cannot be guilty of rape if they honestly and mistakenly believed they were acting within the victims consent, however unreasonable this belief may be. This has seen to be limited. As a matter of law, Morgan allows grants an acquittal on a mistaken belief no matter how unreasonable it is. As a matter of evidence, the more unreasonable the belief, the less likely it was actually held by the accused. Lord Hailsham LC, in
93

R v Maes [1975] VR 541

Morgan, recognized that the presence or absence of reasonable grounds for the accuseds belief in consent would be relevant in determining the likely hood that the accused honestly believed the woman was consenting. Several jurisdictions now require judges give the jury direction in these terms. Most jurisdictions have adopted this traditional subjective approach; others have tended towards the objective/strict liability approach. The approach in DPP v Morganwas affirmed in New South Wales by the case R v McEwan.New South Wales has imported a subjective fault element to this defense. Section 61HA 3(c) holds a person criminally responsible if they had no reasonable grounds for believing that the other person consents to the sexual intercourse. Sections 61HA 3(d)(e) contains instructions as to the considerable sections of the factual matrix. It has been considered that this subjective view is necessary to protect women from men with distorted views about sexual behavior. In applying the reasonable person test, the jury must consider whether a reasonable person in the position of the accused would have believed that victim was consenting.94 This includes any characteristics that the accused has no control over: age, sex, ethnicity and any physical, intellectual and other disabilities.95 2 Multiple Meanings of Recklessness in Sexual Assault It appears that the fault element of recklessness, though not defined in the legislation, has two distinct forms: (1) Advertent Recklessness; and This is where the accused realized the possibility that the other person was not consenting but went ahead regardless.96 (2) Culpable inadvertence. This is where the accused failed to consider whether or not the other person was consenting, notwithstanding that that the risk that the other person was not consenting would have been obvious to someone with the accuseds mental capacity if they had turned his or her mind to it.97There must be a complete failing to advert to the concept of consent. This distinction applies to cases where the accused did not realize the significance of what they have done, where they had completely ignored the requirement of consent as a prerequisite for sexual intention.

C Aggravated Sexual Assault


R v Button; R v Griffen considered the term in company in the context of sexual assault. It was held that if two or more persons are present and share the same purpose, the will be in company, even if the victim is unaware of their presence.
R v Conlon (1993) 69 Crim R 92 R v Mrzljak [2005] 1 Qld R 308 96 R v Hemsley (1988) 36 A Crim R 334 97 R v Tolmie (1995) 37 NSWLR 660
95 94

Participation in the common purpose without being physically present is not enough. There are other statutory elements to this offence listed under section 61JA of the Crimes Act 1900 (NSW). These have not required any common law justification or explanation so their plan and ordinary meaning, or meaning as defined in the act, is sufficient. Cases: R v Tolmie(1995) 37 NSWLR 660 Refer to Culpable Inadvertance Papadimitropoulos(1958) 98 CLR 249; (1958) ALR 21 The accused fraudulently procured sexual intercourse from a young Greek woman, recently arrived in Australia, by tricking her into helieving that she had gone through a marrigage 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 an convicted of rape. The High Court traced the development of the principle governing vitiation of consent. It was 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. The fraud must relate to the nature and character of the act. The court held that the victim was at mistake as to the nature and character of the act or identity of the accused, rather than the accuseds fraud, that vitiated consent. This is because she understood the physical act. The court held that the focus on fraud in earlier cases distracted attention from the essential inquiry; namely whether the cosent is no cosent because it is not directed to the nature and character of the act. The accused is still able to be punished for accruing sexual intercourse under false pretenses, not for the crime of rape (sexual assault) though. Note:Crimes Act 1900 provides statutory authority on fraudulent consent. DPP v Morgan [1975] 2 All ER 347 The accused was a senior member of the Royal Air Force. He invited three junior colleagures 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 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 urged them to ignore any protest or resistance, saying his wife was kinky and these protests were merely simulations designed to increase sexual pleasure.

The majority affirmed that a man cannot be convicted of rape where he had sexual intercourse in the honest mistake belief, however unreasonable, that the woman was consenting. It was also held that mistake is not a defense for rape. It merely provided an evidential foundation for raising doubt over whether the accused possessed the requisite mental state. Lord Hailsham LC, in Morgan, recognized that the presence or absence of reasonable grounds for the accuseds belief in consent would be relevant in determining the likely hood that the accused honestly believed the woman was consenting. This operates to limit the unreasonable nature of the belief as a matter of evidence. Legislation: Crimes Act 1900 (NSW), ss 61H, 61HA, 61I, 61J, 61JA, 61K, 61L, 61M, 61N, 61O, 61Q, 61S, 61T, 63, 66F, 73, 77 61H Definition of sexual intercourse and other terms (1) For the purposes of this Division, "sexual intercourse" means: (a) sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by: (i) anypart of the body of another person, or (ii) any object manipulated by another person, except where the penetration is carried out for proper medical purposes, or (b) sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or (c) cunnilingus, or (d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c). (1A) For the purposes of this Division, a person has a "cognitive impairment" if the person has: (a) an intellectual disability, or (b) a developmental disorder (including an autistic spectrum disorder), or (c) a neurological disorder, or (d) dementia, or (e) a severe mental illness, or (f) a brain injury, that results in the person requiring supervision or social habilitation in connection with daily life activities. (2) For the purposes of this Division, a person is under the authority of another person if the person is in the care, or under the supervision or authority, of the other person. (3) For the purposes of this Act, a person who incites another person to an act of indecency, as referred to in section 61N or 61O, is taken to commit an offence on the other person. 61HA Consent in relation to sexual assault offences

(1) Offences to which section applies This section applies for the purposes of the offences under sections 61I, 61J and 61JA. (2) Meaning of consent Aperson "consents" to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse. (3) Knowledge about consent A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if: (a) theperson knows that the other person does not consent to the sexual intercourse, or (b) theperson is reckless as to whether the other personconsents to the sexual intercourse, or (c) theperson has no reasonable grounds for believing that the other personconsents 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 personconsents to the sexual intercourse, but (e) not including any self-induced intoxication of the person. (4) Negation of consent Aperson 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 personconsents 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 personconsents to the sexual intercourse because the person is unlawfully detained. (5) A person who consents to sexual intercourse with another person: (a) under a mistaken belief as to the identity of the other person, or (b) under a mistaken belief that the other person is married to the person, or (c) under a mistaken belief that the sexual intercourse is for medical or hygienic purposes (or under any other mistaken belief about the nature of the act induced by fraudulent means), does not consent to the sexual intercourse. For the purposes of subsection (3), the other person knows that the person does not consent to sexual intercourse if the other person knows the personconsents to sexual intercourse under such a mistaken belief. (6) The grounds on which it may be established that a person does not consent to sexual intercourse include: (a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or (b) if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or (c) if the person has sexual intercourse because of the abuse of a position of

authority or trust. (7) A person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse. (8) This section does not limit the grounds on which it may be established that a person does not consent to sexual intercourse. 61I Sexual assault Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years. 61J Aggravated sexual assault (1) Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years. (2) In this section, "circumstances of aggravation" means circumstances in which: (a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (b) at the time of, or immediately before or after, the commission of the offence, the alleged offender 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 (c) the alleged offender is in the company of another person or persons, or (d) the alleged victim is under the age of 16 years, or (e) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (f) the alleged victim has a serious physical disability, or (g) the alleged victim has a cognitive impairment, or (h) the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or (i) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence. (3) In this section, "building" has the same meaning as it does in Division 4 of Part 4. 61JA Aggravated sexual assault in company (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, intentionally or recklessly 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. (2) A person sentenced to imprisonment for life for an offence under this section is to serve that sentence for the term of the persons natural life. (3) Nothing in this section affects the operation of section 21 of the Crimes (Sentencing Procedure) Act 1999(which authorises the passing of a lesser sentence than imprisonment for life). (4) Nothing in this section affects the prerogative of mercy. 61K Assault with intent to have sexual intercourse Any person who, with intent to have sexual intercourse with another person: (a) intentionally or recklessly inflicts actual bodily harm on the other person or a third person who is present or nearby, or (b) threatens to inflict actual bodily harm on the other person or a third person who is present or nearby by means of an offensive weapon or instrument, is liable to imprisonment for 20 years. 61L Indecent assault Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 5 years. 61M Aggravated indecent assault (1) Any person who assaults another person in circumstances of aggravation, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 7 years. (2) Any person who assaults another person, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 10 years, if the other person is under the age of 16 years. (3) In this section, "circumstances of aggravation" means circumstances in which: (a) the alleged offender is in the company of another person or persons, or (c) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or

(d) the alleged victim has a serious physical disability, or (e) the alleged victim has a cognitive impairment. 61N Act of indecency (1) Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under that age to an act of indecency with or towards that or another person, is liable to imprisonment for 2 years. (2) Any person who commits an act of indecency with or towards a person of the age of 16 years or above, or incites a person of the age of 16 years or above to an act of indecency with or towards that or another person, is liable to imprisonment for 18 months. 61O Aggravated act of indecency (1) Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under that age to an act of indecency with or towards that or another person, in either case in circumstances of aggravation, is liable to imprisonment for 5 years. (1A) Any person who commits an act of indecency with or towards a person of the age of 16 years or above, or incites a person of the age of 16 years or above to an act of indecency with or towards that or another person, in either case in circumstances of aggravation, is liable to imprisonment for 3 years. (2) Any person who commits an act of indecency with or towards a person under the age of 10 years, or incites a person under that age to an act of indecency with or towards that or another person, is liable to imprisonment for 7 years. (2A) A person: (a) who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under the age of 16 years to an act of indecency with or towards that person or another person, and (b) who knows that the act of indecency is being filmed for the purposes of the production of child abuse material, is guilty of an offence. Maximum penalty: imprisonment for 10 years. (3) For the purposes subsections (1) and (1A), "circumstances of aggravation" means circumstances in which: (a) the alleged offender is in the company of another person or persons, or (b) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (c) the alleged victim has a serious physical disability, or (d) the alleged victim has a cognitive impairment. (4) For the purposes of subsection (2A): (a) "child abuse material" has the meaning given by Division 15A, and (b) an act of indecency is being "filmed" if one or more images (whether still

or moving) of the act of indecency are being recorded or transmitted for the purpose of enabling those images to be observed by any person (whether during the filming or later). 61P Attempt to commit offence under sections 61I-61O Any person who attempts to commit an offence under section 61I, 61J, 61JA, 61K, 61L, 61M, 61N or 61O is liable to the penalty provided for the commission of the offence. 61Q Alternative verdicts (1) Question of aggravation If on the trial of a person for an offence under section 61J, 61M or 61O the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 61I, 61L or 61N, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (1A) Question of aggravation in company If on the trial of a person for an offence under section 61JA the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 61I or 61J, it may find the person not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (2) Question of consent regarding alleged victim under 16 If on the trial of a person for an offence under section 61I the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 66C (3) or 66C (4), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (3) Question of consent or authority regarding alleged victim under 16 If on the trial of a person for an offence under section 61J or 61JA the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 66A or 66C, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (4) Question of consent regarding incest If on the trial of a person for an offence under section 61I or 61J the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 78A or 78B, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (5) Question of consent regarding cognitive impairment If on the trial of a person for an offence under section 61I, 61J or 61JA, the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 66F, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment

accordingly. (6) Question of whether offence committed for purposes of production of child abuse material If on the trial of a person for an offence under section 61O (2A) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 61O (2) or 61N, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. 61S Offenders who are minors (1) For the purposes of any offence, a person is not, by reason only of age, to be presumed incapable of having sexual intercourse with another person or of having an intent to have sexual intercourse with another person. (2) Subsection (1) does not affect the operation of any law relating to the age at which a child can be convicted of an offence. 61T Offender married to victim The fact that a person is married to a person: (a) upon whom an offence under section 61I, 61J, 61JA or 61K is alleged to have been committed is no bar to the firstmentionedperson being convicted of the offence, or (b) upon whom an offence under any of those sections is alleged to have been attempted is no bar to the firstmentionedperson being convicted of the attempt. 63 Common law offences of rape and attempted rape abolished (1) The common law offences of rape and attempted rape are abolished. (2) Parts 1A, 1 and 19 of Schedule 11 make provision with respect to rape and other former sexual offences. 66F Sexual offences-cognitive impairment (1) Meaning of person responsible for care For the purposes of this section, a person is responsible for the care of a person who has a cognitive impairment if the person provides care to that person: (a) at a facility at which persons with a cognitive impairment are detained, reside or attend, or (b) at the home of that person in the course of a program under which any such facility or other government or community organisation provides care to persons with a cognitive impairment. The care of a person with a cognitive impairment includes voluntary care, health professional care, education, home care and supervision. (2) Sexual intercourse: person responsible for care Aperson: (a) who has sexual intercourse with a person who has a cognitive impairment, and

(b) who is responsible for the care of that person (whether generally or at the time of the sexual intercourse), is guilty of an offence. Maximum penalty: imprisonment for 10 years. (3) Sexual intercourse: taking advantage of impairment A person who has sexual intercourse with a person who has a cognitive impairment, with the intention of taking advantage of that persons cognitive impairment, is guilty of an offence. Maximum penalty: imprisonment for 8 years. (4) Attempts A person who attempts to commit an offence under subsection (2) or (3) is guilty of an offence and liable to the penalty provided for the commission of the offence. (5) Consent not a defence for sexual intercourse The consent of a person who has a cognitive impairment is not a defence to a charge for an offence under subsection (2)(4). (6) Consent not a defence for indecent assault or act of indecency The consent of a person who has a cognitive impairment is not a defence to a charge for an offence under section 61L, 61M (1), 61N (2) or 61O (1A) (or under section 61P in connection with such an offence) if: (a) the accused was responsible for the care of that person (whether generally or at the time of the conduct constituting the offence), or (b) the accused engaged in the conduct constituting the offence with the intention of taking advantage of that persons cognitive impairment. (7) Defences It is a defence to a charge for an offence under subsection (2)-(4) or an offence referred to in subsection (6) in which the prosecution relies on the operation of that subsection: (a) if, at the time of the conduct constituting the offence: (i) the accused did not know the person to whom the charge relates had a cognitive impairment, or (ii) the accused was married to the person to whom the charge relates or was an established de facto partner of that person, or (b) if the act constituting the offence was carried out for any proper medical or hygienic purpose. (8) Approval of Attorney General for prosecution A prosecution for any of the following offences may not be commenced without the approval of the Attorney General: (a) an offence under subsection (2)-(4), (b) an offence referred to in subsection (6) in which the prosecution relies on the operation of that subsection. 73 Sexual intercourse with child between 16 and 18 under special care (1) Any person who has sexual intercourse with another person who: (a) is under his or her special care, and

(b) is of or above the age of 16 years and under the age of 17 years, is liable to imprisonment for 8 years. (2) Any person who has sexual intercourse with another person who: (a) is under his or her special care, and (b) is of or above the age of 17 years and under the age of 18 years, is liable to imprisonment for 4 years. (3) For the purposes of this section, a person( "the victim") is under the special care of another person ( "the offender") if, and only if: (a) the offender is the step-parent, guardian or foster parent of the victim, or (b) the offender is a school teacher and the victim is a pupil of the offender, or (c) the offender has an established personal relationship with the victim in connection with the provision of religious, sporting, musical or other instruction to the victim, or (d) the offender is a custodial officer of an institution of which the victim is an inmate, or (e) the offender is a health professional and the victim is a patient of the health professional. (4) Any person who attempts to commit an offence under subsection (1) or (2) is liable to the penalty provided for the commission of the offence. (5) A person does not commit an offence under this section if the person and the other person to whom the charge relates were, at the time the offence is alleged to have been committed, married to each other. 77 Consent no defence in certain cases (1) The consent of the child or other person to whom the charge relates shall be no defence to a charge under section 61E (1A), (2) or (2A), 61M (2), 61N (1), 61O (1), (2) or (2A), 66A (1) or (2), 66B, 66C, 66D, 66EA, 66EB, 67, 68, 71, 72, 72A, 73, 74 or 76A or, if the child to whom the charge relates was under the age of 16 years at the time the offence is alleged to have been committed, to a charge under section 61E (1), 61L, 61M (1) or 76.

VI PARTIES TO ACRIME
AIdentification of Involvement
In relation to felonies, the common law identified several degrees of participation: (1) the perpetrator of the offence was designated principle in the first degree of participation; (2) parties who were assisting or encouraging during the commission of the perpetrators crime were described as principles in the second degree.

Parties who were not physically present during the commission of the offence were divided into: (1) Accessories before the fact (assisting before the commission of the perpetrators crime); or (2) Accessories after the fact(assisting after the commission of the perpetrators offence). Statute has refined the terminology for the parties to a crime. The terminology now refers to aiders, abettors, counselors and procurers. Attorney-Generals Reference (No 1 of 1975) held that these terms are to be given their ordinary meaning. Traditionally, Aiders and abettors refer to those persons present when the offence is committed.98 In these cases they are offenders in the second degree. R v Wong held that they do not have to be actually present during the commission of the offence but they must do something to bring about the commission of an offence. They are defined bellow: (a) An aider is one who helps, supports or assist the principal offender. 99 A person may aid the commission of the crime without the perpetrator being aware of the assistance offered. (b) An abettor has been held to be a person who incites or encourages the principal to commit the offence.100 Words or conduct must somehow influence the perpetrators decision to commit a crime. Counselors and procures are those who are absent during the commission of an offence.101They are accessories to the crime. They are defined bellow: (a) A counselor is one who advises or encourages the principal offender prior to the offence.102 (b) A procurer is one who causes the offence to be committed.103Attorney-Generals Reference (No 1 of 1975) held that procure means to Produce by endeavor. You procure a thing by
setting out to see that it happens and [by] taking the appropriate steps to produce that happening.

Giorgiani v The Queen noted that even though a secondary party may be more closely linked to one term then another in the circumstances of a case, the substantial overlap between the terms should not be ignored. The four accessorial terms should be considered descriptive of a single concept and any prior formal division between them is obsolete.

B Physical Element for Accessorial liability

Thambiah v The Queen [1966] AC 37 Ibid. 100 Wilcox v Jeffery [1951] 1 All ER 464 101 Thambiah v The Queen [1966] AC 37 102 R v Giorgi (1983) 31 SASR 299, 311 103 R v Beck {1985] 1 All ER 571
99

98

The influence of an accessory in an offence has a broad range. 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 offenders action in a manner that promoted their performance. The accessories promotion of, or assistance in, the crime must be given before or at the time it is committed. Assistance of promotion after the principal offender has committed the offence does not attract criminal responsibility as an aider, abettor, counselor or procurer.104 Liability in this case may be made as an accessory after the fact. Common law does not require a causal connection between the accessorys assistance and the commission of the crime.105 Howell v Doyle [1952] VLR 128 The accused were charged with interfering with the transport of goods with other countries contrary to s 30K of the Crimes Act 1914 (Cth). They had moved resolutions calling on trade unionists, which were the principal offenders, to boycott certain ships. The principal offenders have been refusing to work on one of the ships before the accuseds actions and the accused argued that they had not caused the boycott of the ship. The court held that there was evidence that the accessories had counseled aided or abetted the boycott and that no causal link need be shown between may be required. In relation to procuring, however, a causal link may be required.106 The act of procuring need not be the sole or dominant cause of the commission of the offence.107

1 Mere presence
Accessorial liability in cases involving spectator-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 spectators intention to encourage that conduct. R v Coney held that it is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Noninterference to prevent a crime is not itself a crime. Lam added further comment to this:
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 principals conduct. The justification for rendering the individual liable arises from the contribution that he or she intentionally makes to the commission of the crime.

If a person is deliberately at the seen of a crime, this may be taken as evidence that he or she intended to promote or assist the commission of the crime. R v Clarkson [1971] 1 WLR 1402

104

105

R v Stally [1959] 3 All ER 814 OSullivan v Truth and Sportsman Ltd (1957) 96 CLR 220 106 Attorney-Generals Reference (No 1 of 1975) [1975] QB 773 107 R v Solomon [1959] Qd R 123, 129

A young woman was gang raped at a party in the army barracks. The two accused, did not participate in the tapes. At first, they simply stood outside the room, listening to what was happening. Later, the entered the room and remained there while the girl was raped. There was no evidence that the accused ha done or said anything to assist or encourage the perpetrators. The courts affirmed Coney and 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 willfully encouraged the crime or activity and so aided and abetted. It was stressed that the presence in fact encouraged the principal offenders and that this is a question of fact for the jury.

2Omission To Act
An omission to ac 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. R v Russell [1933] VLR 59 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 was charged with murder and convicted of manslaughter. The court held that the accuseds liability arose from a duty to save his children. It also stated that in some cases the absence of dissent, or the absence of what may be called effective dissent may give rise to a crime. Though there was reluctance expressed on imposing accessorial liability for inactivity unless there is evidence that the individuals knew or intended that their conduct would assist or encourage the crime. The law commission of England and Wales recommended that accessorial liability should encompass failing to take reasonable steps to discharge a duty. It gives an example of a disgruntled security guard failing to run on a burglar alarm with the intention of assisting another to burgle other premises of the guards employer. In certain circumstances, a person may also be convicted if he or she fails to exercise control over the principal offender. Dennis v Plight (1968) 11 FLR 458 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 dangerous driving. The court held that knowledge of an actual or threatened criminal use of ones 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. This principal of in Russell that the accessorys presence or inactivity must amount to assent to the commission of the offence is underscored in Giorgianni v The Queen. The High Court stressed that an accessory must posses an intention to assist or encourage the principal offendorss conduct based on knowledge of the essential matters. Mere reckless or willful blindness will not suffice. This fault element of intention based on knowledge narrows the scope of omission liability considerably.

C Withdrawal By An Accesory
There is a general principal at law that, once an offence is committed, nothing the offender does afterwards will affect his or her criminal responsibility. Repentance or attempts to minimize the harm caused will only be relevant to sentencing. However, there may be a period of time between the assisting or encouraging of the crime and its actual commission. Liability as an accessory does not crystallize until a crime is in fact, committed by the 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. There are two possible rationales behind the accessorys withdrawal. Firstly, the evidence of the accused withdrawal would act as counter evidence, creating difficulties in establishing the key ingredients of accessorial liability (such as the physical and fault elements). The second rational is based on crime-prevention and can be viewed as a true defense. Withdrawal as a defense 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.108 Repentance without a positive act is insufficient because, although the accessory may not posses the requisite fault element at the time of commission of the crime, he or she will have possessed it at the time of assisting or encouraging the principal offender. White v Ridley (1978) 140 CLR 342 The accused employed an airline carrier to unwittingly import cannabis from Singapore into Australia. Before the plane took off, customs officers questioned the accused and he tried to get the airline to cancel delivery of the box containing the drug. The accused claimed that he had withdrawn from the enterprise and therefore was not criminally liable.

The majority of the High Court rejected this argument. 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. Gibbs J on the other hand, held that withdrawal is a defense in its own right, requiring a timely countermand and such action as is reasonably possible to counteract the effect of the pervious conduct. Murphy J adopted a broader, more flexible test for determining liability, based on whether the accused had done all he
108

White v Ridley (1978) 140 CLR 342

reasonably could do to prevent the commission of the offence. This test recognized that timely countermand may be impractical (even life-threatening) and that informing the police may provide the basis of a good defense of withdrawal. The New South Wales Court of Criminal Appeal in Tietie followed the approach of Gibbs J in treating withdrawal as a defense 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. R v Whitehouse added that, where practical and reasonable, withdrawal must be communicated to the principal offender. Becerra found that the accused countermand must be effective and amount to a withdrawal, placing a heavy onus on the accused to prove Whitehouses timely communication. On the circumstances of this case, nothing less than a positive act would have been an effective withdrawal. Ngawaka v The Queen provided a summary of the elements of withdrawal as a defense: (1) There must in fact be a notice of withdrawal, whether by words or actions (2) The withdrawal must be unequivocal (3) The 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 affected by taking all reasonable steps to undo the effect of the partys previous actions. As with any test of reasonableness, it is impossible to divorce that consideration from the facts of a given case. The accuseds 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 lest one authority (Grundy) that suggests that where the accused participation was in the form of counseling, attempts by the accused to dissuade the principal offenders from proceeding with the crimeis sufficient.

D Fault Element For An Acessory


In relation to fault, it is conceptually useful to distinguish between to aspects: those fault elements that concern attitude, and those that concern cognition. (1) Attitude The accessorys attitude refers to the mental state that accompanies an accessorys acts that 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 offenders crime. (2) Cognition The cognition element is that mental state which relates to the accessorys 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 willful blindness will suffice.

Giorgianni (1985) 156 CLR 473 Giorgianni leased and operated a 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 on count of culpable driving causing grievous bodily harm. The prosecution argued that Giorgianni procured the act of culpable driving and that he was aware of the primemovers brake problems. The High Court overturned Giorgiannis convictions and the majority set out the test for the fault element of complicity. 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. It was held that the accessory must intentionally assist or encourage the principal offender in doing those things that go to make up the offence. The intent required is off specific intent. Requiring the accessorys acts of assistance or encouragement be intentionally aimed at the commission of the acts which constitute the principal offenders offence. They held that recklessness was no substitute for intent in cases of accessorys. It was held that the accessory must posses an actual knowledge of the essential matters of the crime. The court was however prepared to equate willful blindness for actual knowledge. The majority decisions in Kuraland Pereira relegate willful blindness to an evidential role. Therefore, it is not a substitute fault element but a factor to take into consideration for knowledge. 1 Divergence from the original crime Stokes and Difford (1990) 51 A Crim R 25 Stokes and Difford were inmates. They were jointly charged with maliciously inflicting grievous bodily harm on another inmate, with intent to inflict grievous bodily harm. On appeal, the court held that knowledge of the principal offenders intention will be enough to satisfy this limb of the fault element. Alternatively, the prosecution will have to prove that the accessory had knowledge of the physical elements of the crime. It appears that it will be sufficient if the secondary party had knowledge of the type of crime to be committed: Bainbridge. The effect of Bainbridge is that an accessory who assist 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 accessorys assistance or encouragement they occur, provided those subsequent crimes are of the same type as the crime which the accessory originally contemplated. Ancuta found that the supplying of number plates was enough to bring about criminal liability for aiding/abetting car theft as the accused had knowledge of the type of

crime that was to be committed. It was not necessary to prove the aidding/abetting of the theft itself.

E Principal and Joint Offenders


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.109 An example of this is where, during a robbery, one person holds down the victim while the other robs them. The requisite fault element exists in the minds of both offenders and together they carry out the criminal act itself.

F Innocence Agency & Acting in Concert


1 Innocence Agency
This doctrineattributes criminal responsibility to a person who has not personally performed the physical elements of a crime. That is, if a person uses an innocentagent to commit a crime, it is that person and not the innocent agent who is the principal offender, regardless of whether he or she was present at the scene of the crime.110
A person acts though an innocent agent when he intentionally causes the external elements of the office to be committed by (or partly by) a person who is himself innocent of the offence charged by reason of lack of a required fault element, or lack of capacity.

The requirement of innocence refers to the agents lack of criminal responsibility. 111 White v Ridley (1978) 140 CLR 342 See above in withdrawal The court held that the accused could be held liable for the importation of drugs via an innocent agent. The majority found that a person can be properly convicted of an offense when an innocent agent is used to perform the physical elements of the crime, providing the request intent is present and no other cause has intervened to displace the accuseds actions as a continuing legal cause of the crimes physical elements. The High Court has placed some restrictions on this doctrine. In Pinkstone v The Queenthe High Court agreed that the actions of undercover police could not be imputed to the accused via the doctrine of innocent agency. This was because the police were not truly innocent agents. In Cogan and Leak, the drunk Cogan had sex with Leaks wife after persuasion by Leak. He was not found criminally responsible, as he honestly believed she was

R v Clarke and Wilton [1959] VR 645 White v Ridley (1978) 140 CLR 342 111 Hewitt (1996) 84 A Crim R 440
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109

consenting. The court held that Leak had the necessary fault element of rape and used Cogan as an innocent agent. This regarded Leak as the principal offender.

2 Acting in Concert
It is important to distinguish between persons who are joint principle 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: (1) primary offender; (2) derivative offender; and (3) acting in concert. R v Lowery (No 2) says that:
If two or more persons reach an understanding or arrangement that together they 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.

R v Demirian held that when the accused is acting in concert, it is not necessary to establish whether they are a principal offender or accessory. They will all fall within one or other of these categories and may all be convicted of the crime. They court in this case didnt express to what extent they were liable. Camilleri upheld a conviction of murder through the doctrine of acting in concert despite the fact the accused was not present at the scene of the murders. Evidence showed that the offender had acted in agreement prior to and subsequent to the murders of the two schoolgirls, and thus it was held that it could be inferred that the accused was acting in concert when the girls were murdered. Osland v The Queen (1999) 159 ALR 170 Heather Osland and her son were charged with the murder of Frank Osland. Frank had a history of violence toward his wife and stepson. Both the accused dug a grave for the deceased. The mother gave the deceased sedatives in his dinner and was present when the stepson stuck the fatal blow. They then buried the body and acted as though Frank had simply disappeared, including reporting the deceased as a missing person. The prosecution argued that Osland and the stepson were acting pursuant to an understanding or arrangement and that they were both liable as principal offenders. The accused both relied on self-defense and provocation as defenses. Osland was convicted of murder despite the admittance of evidence for battered women syndrome. The stepson was acquitted. The High Court held that in relation to acting in concert, individuals who jointly agree to the commission of an offence and are present during its

commission are liable as principal offenders, not as accessories. The High Court also held that where to or more people act in concert; the verdict in relation to each offender may differ. The criminal responsibility of each offender is to be considered differently if they are principal offenders under acting in concert. The concept of acting in concept extends beyond the web of liability for derivative offenders. A person who has assisted or encouraged a crime to a pre-conceived plan may be convicted even where the perpetrator has died, is unknown, has not been arrested or has been acquitted.112 King v The Queen (1986) 161 CLR 423 The accused was jointly charged with another man as principal offenders for the murder of the accuseds wife. The other offender was acquitted because the jury held a reasonable doubt. The doubt did not exist for the accused. The High Court stated that there was no inconsistency between the conviction of the accused and the acquittal of the other offender. On the facts, the accused had encouraged someone to kill the victim and the offence had been carried out. Where 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 beyond a reasonable doubt, but be insufficient to prove the case against the other.

G Common Purpose and Extended Common Purpose


Common purpose is a mode of secondary participation that renders individuals who embark on a joint criminal enterprise or plan to commit an offence (the foundation crime) liable for any further crime (the incidental crime) committed by other group members in the course of that join criminal enterprise or plan. Common purpose liability at common law is a distinct form of extended secondary liability, imposing accessorial liability in relation to commission of crimes that: (1) fall within the scope of the original criminal agreement (the doctrine of common purpose); or R v Anderson and Morris [1966] 2 QB 110 The two accused set out to find the victim. Anderson was armed with a knife, though Morris denied knowledge of this fact. Anderson was seen punching the victim, while Morris stood behind him not taking part in the fight. Morris was convicted of Manslaughter.

112

King v The Queen (1986) 161 CLR 423

The Court of Appeal held that:


where 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 that, if one of the adventures goes beyond what has been tacitly agreed as part of the common enterprise, his co-adventure is not liable for the consequences of the unauthorized act it 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 unauthorized by that joint enterprise.

This law was then affirmed in the High Court in Varley v The Queen and Johns v The Queen. According to this formulation, the scope of the common purpose is determined by reference to the agreement, express or implied, between parties. (2) do not fall within the scope of that agreement but are foreseen as a possible consequence (the doctrine of extended common purpose) In Chan Wing-Siu v The Queen the court concluded that liability for the common purpose is not limited to crimes tacitly agreed, but extends to crimes which the parties forsee as a possible incident or consequence of their original enterprise. Hui Chimingv The Queen added further to this principle. This Privy Council in Hui Chi-mingv The Queen held that the fault element for common purpose is not confined to authorization but includes foresight that the crime may be committed as a possible incident. The accessory, in order to be guilty, must have foreseen the relevant offence which the principal may commit as a possible incident of the common unlawful enterprise and must, with such foresight, still have participated in the enterprise. McAuliffe and McAulliffe(1995) 130 ALR 26 Two brothers (Sean and David McAulliffe) and their friend (Mathew Davis) decided to roll, rob or bash someone near Bondi Beach. Sean armed himself with a hammer and the Mathew armed himself with a baton or stick. There was no evidence that David new of the armed nature of the other offenders prior to arriving at the scene of the crime. The three offendors set upon the two victims. David punched and kicked a victim while Mathew beat him with a stick. Mathew chased the victim along an elevated stair-path that ran along a cliff. Sean than kicked the victim in the chest and the resultant force called the victim to fall from the cliff and die. The High Court affirmed that there are two types of common purpose. It considered the narrow formulation in Johns and endorsed the wider principle of common purposed developed in the Privy Council cases (Hui Chi-mingand Chan Wing-Siu). The two conceptions of common purpose were held to apply to anyone who intentionally assist in the commission of a crime or encourages it commission.

H Accessories After The Fact

Liability as an accessory after the fact only arises if the principal offence has been committed.113 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.114 If the principal offender has been convicted, the accessory may still argue that the principal offence has not been proven as against him or herself. The prosecution must prove all elements of the offence that may be devided into: (1) The Physical Element The accessory must perform an act that assist or has the potential to assist the principal offender escape from the administration of justice.115 Indirect assistance may be sufficient to find liability. 116 The accessory must perform a positive act. (2) The Fault Element The prosecution must prove beyond a reasonable doubt that the accessory: (1) knew or believed the principal offender was guilty of the principal offence;117 and (2) intended to assist the principal offender to escape from the administration of justice. If the accused does an act soley for his or her own benefit, he or she will not be held liable as an accessory.118 Cases: Clayton v The Queen; Hartwick v The Queen; Hartwick v The Queen (2006) 231 ALR 500 Lisa Hartwicks former husband, John Hartwick, and friend, Celia Clayton, were convicted of the murder of Steen 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 offenders went to the victims house armed with various weapons. Paula was assaulted and held at knifepoint while Steven was severely beaten with 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. This was argued to be established either on the basis of the offenders acting in concert, according to a preconceived 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 really serious injury might result. The High Court held 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?
Dawson v The Queen (1961) 106 CLR R v Williams (1932) 32 SR (NSW) 504 115 R v Tevendale [1955] VLR 95 116 R v McKenna [1960] 1 QB 411 117 R v Tevendale [1955] VLR 95 118 R v Jones [1949] 1 KB 194
114 113

R v Taufahema(2007) 228 CLR 232 Legislation: Crimes Act 1900 (NSW), Part 9, ss 345-s351B 345 Principals in the second degree-how tried and punished Every principal in the second degree in any serious indictable offence shall be liable to the same punishment to which the person would have been liable had the person been the principal in the first degree. 346 Accessories before the fact-how tried and punished Every accessory before the fact to a serious indictable offence may be indicted, convicted, and sentenced, either before or after the trial of the principal offender, or together with the principal offender, or indicted, convicted, and sentenced, as a principal in the offence, and shall be liable in either case to the same punishment to which the person would have been liable had the person been the principal offender, whether the principal offender has been tried or not, or is amenable to justice or not. 347 Accessories after the fact-how tried and punished Every accessory after the fact to a serious indictable offence may be indicted, convicted, and sentenced as such accessory, either before, or together with, or after the trial of the principal offender, whether the principal offender has been previously tried or not, or is amenable to justice or not. 347A Wife may be accessory after fact to husbands felony (1) The common law rule granting immunity to a wife against prosecution as an accessory after the fact to a felony committed by her husband is abolished. (2) This section does not apply in respect of any act of, or omission by, a wife if the act or omission occurred before the commencement of this section. 348 Punishment of accessories after the fact to certain treason-related offences Every accessory after the fact to an offence under section 12 shall be liable to imprisonment for two years. 349 Punishment of accessories after the fact to murder etc (1) Every accessory after the fact to murder shall be liable to imprisonment for 25 years.

(2) Every accessory after the fact to the crime of robbery with arms or in company with one or more person or persons, or the crime of kidnapping referred to in section 86, shall be liable to imprisonment for fourteen years. 350 Punishment of accessories after the fact to other serious indictable offences An accessory after the fact to any other serious indictable offence is liable to imprisonment for 5 years, except where otherwise specifically enacted. 351 Trial and punishment of abettors of minor indictable offences Any person who aids, abets, counsels, or procures, the commission of a minor indictable offence, whether the same is an offence at Common Law or by any statute, may be proceeded against and convicted together with or before or after the conviction of the principal offender and may be indicted, convicted, and punished as a principal offender. 351A Recruitingpersons to engage in criminal activity (1) A person (not being a child) who recruits another person to carry out or assist in carrying out a criminal activity is guilty of an offence. Maximum penalty: Imprisonment for 7 years. (2) A person (not being a child) who recruits a child to carry out or assist in carrying out a criminal activity is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (3) In this section: "child" means a person under the age of 18 years. "criminal activity" means conduct that constitutes a serious indictable offence. "recruit" means counsel, procure, solicit, incite or induce. 351B Aiders and abettors punishable as principals (1) Every person who aids, abets, counsels or procures the commission of any offence punishable on summary conviction may be proceeded against and convicted together with or before or after the conviction of the principal offender. (2) On conviction any such person is liable to the penalty and punishment to which the person would have been liable had the person been the principal offender. (3) This section applies to offences committed before or after the commencement of this section. (4) This section applies to an indictable offence that is being dealt with summarily.

VII PROPERTY OFFENSES

A Theft Offences
The offence of theft exists under section 308 of the Criminal Code 2002 (ACT). The MCCOC concluded that the core offence of theft had six elements: (1) Dishonesty This element of theft is defined in section 303 of the Criminal Code and is a matter for the Trier of fact under section 302. A claim of right defense is often applicable in theft cases. The defense is outlined in section 38 of the Criminal Code. 38 Claim of right (1) A person is not criminally responsible for an offence that has a physical element relating to property if (a) when carrying out the conduct required for the offence, the person is under a mistaken belief about a proprietary or possessory right; and (b) the existence of the right would negate a fault element for any physical element of the offence. (2) A person is not criminally responsible for any other offence arising necessarily out of the exercise of a proprietary or possessory right that the person mistakenly believes to exist. (3) This section does not negate criminal responsibility for an offence relating to the use of force against a person. English courts have adopted an ordinary meaning approach to dishonesty. Under this approach, the tribunal of fact evaluates the accuseds dishonesty by reference to the standards of ordinary decent people, based on R v Feely and R v Gosh. The test was to pronged: (1) the jury must decide whether the accuseds conduct was dishonest according to the ordinary standards of reasonable and decent people; and (2) if it was dishonest the jury must consider whether the accused realized his of her conduct was, by those standards, dishonest. This approach, even though a endorsed by the High Court in Peters, has not been adopted in Australia. Victoria has especially strong dissent towards such an approach. (2) Appropriation This element extends to the assumption of rights beyond the taking of property and into many other forms of property interference (the use or destruction of property for example). This element is outlined in section 304 of the Criminal Code. The following case illustrates the breadth of this element. R v Morris [1984] AC 320 This case was a joint appeal. The first case, Burnside switched the price labels on a joint of pork and was caught before he could pay for it. 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 pries at the checkout and

was charged with both theft and obtaining property be deception. It was argued that there could not been an appropriation until they had passed the checkout. House of lords defined appropriations as any adverse interference with or usurpation of any rights of an owner. It didnt require assumption of all rights; any interference was sufficient. A notion of express or implied consent was mentioned. R v Gomez held that consent should be only relevant to dishonesty, not appropriation. This is the approach used in Laurence and is the approach Australia should follow according to Bob Williams. Yet consent is a factor at statute in the ACT. (3) Property

(4) Belonging to another (5) Intention to deprive permanently; and (6) The requirement that all the elements exist at the same time.

B Fraudulent Conduct
1 Obtaining By Deception This offence overlaps with theft. The two offence share common elements.The MCCOC believes that after the blurring of precedent around consent in relation to theft in R v Gomez, obtaining by deception should be considered a separate fraud offence. This is what the Criminal Code had held. This offence is outlined in section 326 of the Criminal Code. The fault elements of deception are outlined in section 325 of the code. The reckless fault element in the definition of deception is elaborated on in section 20 of the Criminal Code. The other elements in similarity to theft are defined in sections 327-330.

Legislation: Criminal Code 2002 (ACT), Part 2.2, ss 11-24; 35-36; 38; and Chapter 3, ss 300-308; 317-318; 321-324; 325-331; 336; 370-373 and Dictionary

Criminal Responsibility Under The Act


11 Elements (1) An offence consists of physical elements and fault elements. (2) However, the law that creates the offence may provide that there is no fault

element for some or all of the physical elements. (3)The law that creates the offence may provide different fault elements for different physical elements. 12 Establishing guilt of offences (1)A person must not be found guilty of committing an offence unless the following is proved: (a) the existence of the physical elements that are, under the law creating the offence, relevant to establishing guilt; (b) for each of the physical elements for which a fault element is required the fault element or 1 of the fault elements for the physicalelement. (2) However, unless the law creating the offence otherwise expressly provides, a person can be found guilty of committing the offence even though, when carrying out the conduct required for the offence, the person is mistaken about, or ignorant of, the existence or content of a law that creates the offence. 13 Definitionsconduct and engage in conduct In this Act: "conduct "means an act, an omission to do an act or a state of affairs. "engage in conduct "means (a) do an act; or (b) omit to do an act. 14 Physical Elements A "physical element" of an offence may be: (a)conduct; or (b)a result of conduct; or (c)a circumstance in which conduct, or a result of conduct, happens. 15Voluntariness (1) Conduct can only be a physical element if it is voluntary. (2) Conduct is voluntary only if it is a product of the will of the person whose conduct it is. Examples of conduct that is not voluntary (a)a spasm, convulsion or other unwilled bodily movement (b) an act done during sleep or unconsciousness (c)an act done during impaired consciousness depriving the person of the will to act Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(3) An omission to do an act is voluntary only if the act omitted is an act that the person can do. (4) If the conduct required for an offence consists only of a state of affairs, the state of affairs is voluntary only if it is a state of affairs over which the person is capable of exercising control. (5) Evidence of self-induced intoxication cannot be considered in deciding whether conduct is voluntary. Note For when intoxication is self-induced , see s 30.

16Omissions An omission to do an act can only be a physical element if (a) the law creating the offence makes it a physical element; or (b)the law creating the offence impliedly provides that the offence is committed by an omission to do an act that, by law, there is a duty to do. 17 Fault elements (1)A fault element for a particular physical element may be intention, knowledge, recklessness or negligence. (2)Subsection (1) does not prevent a law that creates an offence from providing other fault elements for a physical element of the offence. 18Intention (1) A person has "intention" in relation to conduct if the person means to engage in the conduct. (2)A person has "intention" in relation to a result if the person means to bring it about or is aware that it will happen in the ordinary course of events. (3) A person has intentionin relation to a circumstance if the person believes that it exists or will exist. 19Knowledge A person has knowledge of a result or circumstance if the person is aware that it exists or will exist in the ordinary course of events. 20Recklessness (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 a question 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. 21 Negligence A person is negligent in relation to a physical element of an offence if the person's conduct merits criminal punishment for the offence because it 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. 22 Offences that do not provide fault elements (1) If the law creating an offence does not provide a fault element for a physical element that consists only of conduct, intention is the fault element for the physical element. (2) If the law creating an offence does not provide a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for the physical element. 23 Strict liability (1)If a law that creates an offence provides that the offence is a strict liability offence (a) there are no fault elements for any of the physical elements of the offence; and (b)thedefence of mistake of fact under section 36 (Mistake of factstrict liability) is available. (2) If a law that creates an offence provides that strict liability applies to a particular physical element of the offence (a) there are no fault elements for the physical element; and (b) thedefence of mistake of fact under section 36 is available in relation to the physical element. (3) The existence of strict liability does not make any other defence unavailable. 24 Absolute liability (1) If a law that creates an offence provides that the offence is an absolute liability offence

(a) there are no fault elements for any of the physical elements of the offence; and (b)thedefence of mistake of fact under section 36 (Mistake of factstrict liability) is not available. (2) If a law that creates an offence provides that absolute liability applies to a particular physical element of the offence (a) there are no fault elements for the physical element; and (b)thedefence of mistake of fact under section 36 is not available in relation to the physical element. (3) The existence of absolute liability does not make any other defence unavailable.

Theft Offences
300 Definitionsch 3 In this chapter: "belongs", in relation to propertysee section 301. "cause" a loss means cause a loss to someone else. "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. Note 1 Note 2 The following provisions affect the meaning of dishonest: s 303 (Dishonesty for pt 3.2) s 327 (Dishonesty for div 3.3.2) s 354 (Dishonesty for pt 3.7). In a prosecution, dishonesty is a matter for the trier of fact (see s 302). "duty", of a person who is a public official, means a function that (a)is given to the person as a public official; or (b) the person holds himself or herself out as having as a publicofficial. "gain" means (a)again in property, whether temporary or permanent; or (b) again by way of the supply of services; and includes keeping what one has. "loss" means a loss in property, whether temporary or permanent, and includes not getting what one might get. "obtain" includes (a) obtain for someone else; and (b)induce a third person to do something that results in someone else obtaining. Note The following provisions affect the meaning of obtain: s 314 (9) (Receivingmeaning of stolen property ) s 328 (Meaning of obtainsfor div 3.3.2)

s 335 (6) (Obtaining financial advantage from the Territory) s 355 (Meaning of "obtain" for pt 3.7).

"public duty" means a duty of a public official. "public official" means a person having public official functions, or acting in a public official capacity, and includes the following: (a) aterritory public official; (b) a member of the legislature of the Commonwealth, a State or another Territory; (c) a member of the executive of the Commonwealth, a State or another Territory; (d) a member of the judiciary, the magistracy or a tribunal of the Commonwealth, a State or another Territory; (e) a registrar or other officer of a court or tribunal of the Commonwealth, a State or another Territory; (f) an individual who occupies an office under a law of the Commonwealth, a State, another Territory or a local government; (g) an officer or employee of the Commonwealth, a State, another Territory or a local government; (h) an officer or employee of an authority or instrumentality of the Commonwealth, a State, another Territory or a local government; (i) an individual who is otherwise in the service of the Commonwealth, a State, another Territory or a local government (including service as a member of a military or police force or service); (j) a contractor who exercises a function or performs work for the Commonwealth, a State, another Territory or a local government. "services" includes any rights (including rights in relation to, and interests in, property), benefits, privileges or facilities, but does not include rights or benefits that are the supply of goods. "supply" includes (a) in relation to goodssupply (or re-supply) by way of sale, exchange, lease, hire or hire-purchase; and (b) in relation to servicesprovide, grant and confer. "territory public official" means a person having publicofficial functions for the Territory, or acting in a public official capacity for the Territory, and includes the following: (a) a member of the Legislative Assembly; (b) a Minister; (c) a judge, magistrate or tribunal member; (d) the master of the Supreme Court; (e) the registrar or other officer of a court or tribunal; (f) a public servant; (g) an officer or employee of a territory authority or instrumentality; (h) a statutory office-holder or an officer or employee of a statutory office-holder; (i) a police officer; (j) a contractor who exercises a function or performs work for the Territory, a territory authority or instrumentality or a statutory officeholder;

(k) anauthorised person, or a territory service authorised person, under the Utilities Act 2000. 301 Person to whom property belongs for ch 3 (1) Propertybelongsto anyone having possession or control of it, or having any proprietary right or interest in it (other than an equitable interest arising only from an agreement to transfer or grant an interest, or from a constructive trust). (2) This section is subject to section 330 (Money transfers). Note Section 305 (Person to whom property belongs for pt 3.2) affects the meaning of belongs. 302 Dishonesty a matter for trier of fact In a prosecution for an offence against this chapter, dishonesty is a matter for the trier of fact. 303 Dishonesty for pt 3.2 (1) A person's appropriation of property belonging to someone else is not dishonest if the person appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps. (2) However, subsection (1) does not apply if the person appropriating the property held it as trustee or personal representative. Note A defendant bears an evidential burden in relation to the matters mentioned in subsections (1) and (2) (see s 58 (3)). (3) A person's appropriation of property belonging to someone else can be dishonest even if the person or another person is willing to pay for it. 304 Appropriation of property for pt 3.2 (1) Any assumption of the rights of an owner to ownership, possession or control of property, without the consent of a person to whom the property belongs, is an appropriation of the property. (2) If a person has come by property (innocently or not) without committing theft, subsection (1) applies to any later assumption of those rights without consent by keeping or dealing with it as owner. (3) If property is, or purports to be, transferred or given to a person acting in good faith, a later assumption by the person of rights the person believed the person was acquiring is not an appropriation of property because of any defect in the transferor's title. 305 Person to whom property belongs for pt 3.2

(1) If property belongs to 2 or more people, a reference to the person to whom the property belongs is taken to be a reference to each of them. (2) If property is subject to a trust (a) the person to whom the property belongs includes anyone who has a right to enforce the trust; and (b) anintention to defeat the trust is an intention to deprive any such person of the property. (3) Property of a corporation sole belongs to the corporation despite a vacancy in the corporation. (4) If a person ( A) receives property from or on account of someone else ( B ) and is under a legal obligation to B to retain and deal with the property or its proceeds in a particular way, the property or proceeds belong to B, as against A. (5) If a person ( A) gets property by someone else's fundamental mistake and is under a legal obligation to make restoration (in whole or part) of the property, its proceeds or its value (a) the property or its proceeds belong (to the extent of the obligation and as against A) to the person entitled to restoration ( B ); and (b) anintention not to make restoration is (i) anintention to permanently deprive B of the property or proceeds; and (ii) an appropriation of the property or proceeds without B's consent. (6) In this section: "fundamental mistake", in relation to property, means (a) a mistake about the identity of the person getting the property; or (b) a mistake about the essential nature of the property; or (c) a mistake about the amount of any money, if the person getting the money is aware of the mistake when getting the money. "money" includes anything that is equivalent to money. Examples of things equivalent to money 1 a cheque or other negotiable instrument 2 an electronic funds transfer Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132). 306 Intention of permanently depriving for pt 3.2 (1) A person ( A) has the intention of permanently depriving someone else ("B") of property belonging to B if (a) A appropriates property belonging to B without meaning B to permanently lose the property; and (b) A intends to treat the property as A's own to dispose of regardless of B's rights.

(2) For subsection (1), if A borrows or lends property belonging to B, the borrowing or lending may amount to treating the property as A's own to dispose of regardless of B's rights if, but only if, the borrowing or lending is for a period, and in circumstances, making it equivalent to an outright taking or disposal. (3) Without limiting this section, if (a) A has possession or control (lawfully or not) of property belonging to B; and (b) A parts with the property under a condition about its return that A may not be able to carry out; and (c) the parting is done for A's own purposes and without B's authority; the parting amounts to treating the property as A's own to dispose of regardless of B's rights. (4) This section does not limit the circumstances in which a person can be taken to have the intention of permanently depriving someone else of property. 307 General deficiency A person may be found guilty of theft of all or any part of a general deficiency in money or other property even though the deficiency is made up of a number of particular amounts of money or items of other property that were appropriated over a period.

308 Theft A person commits an offence( theft) if the person dishonestly appropriates property belonging to someone else with the intention of permanently depriving the other person of the property.
Maximum penalty: 1 000 penalty units, imprisonment for 10 years or both.

Note For alternative verdict provisions applying to this offence, see s 370, s 371 and s 372. 309 Robbery A person commits an offence ("robbery") if (a) the person commits theft; and (b) when committing the theft, or immediately before or immediately after committing the theft, the person (i) uses force on someone else; or (ii) threatens to use force then and there on someone else; with intent to commit theft or to escape from the scene.
Maximum penalty: 1 400 penalty units, imprisonment for 14 years or both.

Note

Theft means an offence against s 308 or s 321.

310 Aggravated robbery A person commits an offence( aggravated robbery ) if the person

(a) commits robbery in company with 1 or more people; or (b) commits robbery and, at the time of the robbery, has an offensive weapon with him or her.
Maximum penalty: 2 500 penalty units, imprisonment for 25 years or both.

Note

Robbery means an offence against s 309.

311 Burglary (1) A person commits an offence( burglary) if the person enters or remains in a building as a trespasser with intent (a) to commit theft of any property in the building; or (b) to commit an offence that involves causing harm, or threatening to cause harm, to anyone in the building; or (c) to commit an offence in the building that (i) involves causing damage to property; and (ii) is punishable by imprisonment for 5 years or longer.
Maximum penalty: 1 400 penalty units, imprisonment for 14 years or both.

(2) In subsection (1) (b) and (c), "offence" includes an offence against a Commonwealth law. (3) Absolute liability applies to subsection (1) (c) (ii). (4) For this section, a person is not a trespasser only because the person is permitted to enter or remain in the building (a) for a purpose that is not the person's intended purpose; or (b) because of fraud, misrepresentation or someone else's mistake. (5) In this section: "building" includes the following: (a) a part of any building; (b) a mobile home or caravan; (c) a structure (whether or not moveable), vehicle, or vessel, that is used, designed or adapted for residential purposes. 312 Aggravated burglary A person commits an offence ( aggravated burglary ) if the person (a) commits burglary in company with 1 or more people; or (b) commits burglary and, at the time of the burglary, has an offensive weapon with him or her. Maximum penalty: 2 000 penalty units, imprisonment for 20 years or both. 313 Receiving (1)A person commits an offence ( receiving) if the person dishonestly receives stolen property, knowing or believing the property to be stolen.
Maximum penalty: 1 000 penalty units, imprisonment for 10 years or both.

Note

For an alternative verdict provision applying to receiving, see s 371.

(2) A person cannot be found guilty of both theft (or a related offence) and receiving in relation to the same property if the person retains custody or possession of the property. (3) For this section (a) it is to be assumed that section 308 to section 312 and section 326 had been in force at all times before the commencement of this section; and (b) property that was appropriated or obtained before the commencement of this section, does not become original stolen property unless the property was appropriated or obtained in circumstances that (apart from paragraph (a)) amounted to an offence against a territory law in force at that time. (4) In this section: "related offence" means any of the following: (a) robbery; (b) aggravated robbery; (c) burglary; (d) aggravated burglary; (e) obtaining property by deception. 314 Receivingmeaning of stolen property (1) For section 313, property is stolen propertyif it is (a) originalstolen property; or (b) previously received property; or (c)tainted property. (2) Stolen propertymay include all or any part of a general deficiency in money or other property even though the deficiency is made up of a number of particular amounts of money or items of other property that were appropriated or obtained over a period. (3) "Stolen property" does not include land appropriated or obtained in the course of theft or obtaining property by deception. (4) Property is original stolen propertyif it is (a) property, or a part of property, that (i) was appropriated (A) in the ACT in the course of theft or a related offence; or (B) in a place outside the ACT in the course of an offence in that place that would have been theft or a related offence if it had happened in the ACT;whether or not the property, or the part of the property, is in the state it was in when it was appropriated; and (ii) is in the custody or possession of the person who appropriated it; or (b) property, or a part of property, that (i) wasobtained (A) in the ACT in the course of obtaining property by deception; or (B) in a place outside the ACT in the course of an offence in that place that would have been obtaining property by deception if it had

happened in the ACT;whether or not the property, or the part of the property, is in the state it was in when it was obtained; and (ii) is in the custody or possession of the person who obtained it or for whom it was obtained. (5) Property is previously received property if it is property that (a) was received (i) in the ACT in the course of an offence of receiving; or (ii) in a place outside the ACT in the course of an offence in that place that would have been receiving if it had happened in the ACT; and (b) is in the custody or possession of the person who received it in the course of that offence. (6) For subsections (4) and (5), property ceases to be original stolenproperty or previously received property (a) when it is restored to the person from whom it was appropriated or obtained, or to other lawful custody or possession; or (b) when the person from whom it was appropriated or obtained, or anyone claiming through that person, ceases to have any right to restitution in relation to it. (7) Property is "tainted property" if it (a) is, in whole or part, the proceeds of sale of, or property exchanged for (i) originalstolen property; or (ii) previously received property; and (b) if paragraph (a) (i) appliesis in the custody or possession of (i) for original stolen property appropriated as mentioned in subsection (4) (a) (i)the person who appropriated it; or (ii)for original stolen propertyobtained as mentioned in subsection (4) (b) (i)the person who obtained it or for whom it was obtained; and (c) if paragraph (a) (ii) appliesis in the custody or possession of the person who received the previously received property in the course of an offence mentioned in subsection (6) (a). (8) If, because of the application of section 330 (Money transfers), an amount credited to an account held by a person is property obtained in the ACT in the course of obtaining property by deception (or outside the ACT in the course of an offence that would have been obtaining property by deception if it had happened in the ACT) (a) the property is taken to be in the possession of the person while all or any part of the amount remains credited to the account; and (b) the person is taken to have received the property if the person fails to take the steps that are reasonable in the circumstances to ensure that the credit is cancelled; and (c) subsection (6) of this section does not apply to the property. (9) The definition of obtainin section 300 does not apply to this section. Note See s 328 for the meaning of obtainfor the application of this section to div 3.3.2 (Obtaining property by deception).

(10) In this section: "account"see section 325. "related offence" means any of the following: (a) robbery; (b) aggravated robbery; (c) burglary; (d) aggravated burglary. 315 Going equipped for theft etc (1) A person commits an offence if the person, in any place other than the person's home, has with the person an article with intent to use it in the course of or in relation to theft or a related offence.
Maximum penalty: 300 penalty units, imprisonment for 3 years or both.

(2) In this section: "related offence" means any of the following: (a) robbery; (b) aggravated robbery; (c) burglary; (d) aggravated burglary; (e) an offence against section 318 (Taking etc motor vehicle without consent); (f) obtaining property by deception. 316 Going equipped with offensive weapon for theft etc (1) A person commits an offence if the person, in any place other than the person's home, has with the person an offensive weapon with intent to use it in the course of or in relation to theft or a related offence.
Maximum penalty: 500 penalty units, imprisonment for 5 years or both.

(2) In this section: "related offence" means any of the following: (a) robbery; (b) aggravated robbery; (c) burglary; (d) aggravated burglary. 318 Taking etc motor vehicle without consent (1) A person commits an offence if the person (a) dishonestly takes a motor vehicle belonging to someone else; and (b) does not have consent to take the vehicle from a person to whom it belongs.
Maximum penalty: 500 penalty units, imprisonment for 5 years or both.

Note 1 Pt 2.3 (Circumstances where there is no criminal responsibility) provides for defences that apply to offences under the Code. These include the defence of lawful authority (see s 43). Note 2 For the meaning of dishonest, see s 300.

(2) A person commits an offence if (a) the person dishonestly drives or rides in or on a motor vehicle belonging to someone else; and (b) the vehicle was dishonestly taken by someone without the consent of a person to whom it belongs.
Maximum penalty: 500 penalty units, imprisonment for 5 years or both.

Note For alternative verdict provisions applying to an offence against this section, see s 370. (3) In this section: "car"see the Road Transport (Vehicle Registration) Regulation 2000 , dictionary. "car derivative"see the Road Transport (Vehicle Registration) Regulation 2000 , dictionary. "motorbike"see the Road Transport (Vehicle Registration) Regulation 2000 , dictionary. "motor vehicle" means a car, car derivative or motorbike. 321 Minor theft (1) A person commits an offence (also theft ) if (a) the person dishonestly appropriates property belonging to someone else with the intention of permanently depriving the other person of the property; and (b) the property has a replacement value of $2 000 or less when it is appropriated.
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

(2) Absolute liability applies to subsection (1) (b). (3) This section does not prevent a person being charged with an offence against section 308 (Theft) if the replacement value of the property appropriated is $2 000 or less. 322 Removal of articles on public exhibition (1) A person commits an offence if (a) the person dishonestly removes an article from premises; and (b) thepremises are at any time open to the public; and (c) the article is publicly exhibited, or kept for public exhibition, at the premises; and (d) the person does not have the consent to remove the article from a person entitled to give the consent.
Maximum penalty: 100 penalty units, imprisonment for 1 year or both.

(2) Absolute liability applies to subsection (1) (b) and (c). (3) This section does not apply in relation to an article that is publicly exhibited, or kept for public exhibition, for the purpose of selling, or any other commercial dealing

with, the article or articles of that kind. (4) In this section: "premises" includes any building or part of a building. 322AMaking off without payment (1) A person commits an offence if (a) the person knows he or she is required or expected to make immediatepayment 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. 323 Making off without payment-Minor Offences (1) A person commits an offence if (a) the person knows he or she is required or expected to make immediatepayment 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; and (c) the amount owing is $2 000 or less.
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

(2) Absolute liability applies to subsection (1) (c). (3) This section does not apply in relation to a supply of goods or services that is contrary to law. (4) This section does not prevent a person being charged with an offence against section 317 (Making off without payment) if the amount owing is $2 000 or less. (5) In this section: "immediate payment" includes payment when collecting goods in relation to which a service has been supplied. 324 Unlawful possession of stolen property (1) A person commits an offence if (a) the person (i) has property in the person's possession; or

(ii) has property in someone else's possession; or (iii) has property in or on any premises (whether or not the premises belong to or are occupied by the person or the property is there for the person's own use); or (iv) gives possession of property to someone who is not lawfully entitled to possession of it; and (b) the property is reasonably suspected of being stolen property or otherwise unlawfully obtained property.
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

(2) Absolute liability applies to subsection (1) (b). (3) It is a defense to a prosecution for an offence against this section if the defendant proves that the defendant had no reasonable grounds for suspecting that the property concerned was stolen property or otherwise unlawfully obtained property. (4) In this section: "premises" includes any aircraft, building, structure, vehicle or vessel, or any place (whether built on or not), and any part of an aircraft, building, structure, vehicle, vessel or place. "stolen property "means property obtained in a way that is an appropriation of property under section 304.

Fraudulent Conduct
325 Definitionspt 3.3 In this part: "account" means an account (including a loan account, credit card account or similar account) with a bank or other financial institution. "deception" means an intentional or reckless deception, whether by words or other conduct, and whether as to fact or law, and includes (a) adeception about the intention of the person using the deception or anyone else; and (b) 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. 326 Obtaining property by deception A person commits an offence ( obtaining property by deception ) if the person, by deception, dishonestlyobtains property belonging to someone else with the intention of permanently depriving the other person of the property.
Maximum penalty: 1 000 penalty units, imprisonment for 10 years or both.

327 Dishonesty for div 3.3.2 A person's obtaining of property belonging to someone else can be dishonest even if the person or another person is willing to pay for it. 328 Meaning of obtains for div 3.3.2

(1) For this division, and for the application of section 313 (Receiving) to this division, a person "obtains" property if (a) the person obtains ownership, possession or control of it for the person or someone else; or (b) the person enables ownership, possession or control of it to be retained by the person or someone else; or (c) the person induces a third person to pass ownership, possession or control of it to someone else; or (d) the person induces a third person to enable someone else to retain ownership, possession or control of it; or (e) section 330 (2) or (3) (Money transfers) applies. (2) The definition of obtainin section 300 does not apply to this division, or for the application of section 313 (Receiving) to this division. 329 Intention of permanently deprivingdiv 3.3.2 (1) A person ( A) has the intention of permanently depriving someone else ("B") of property belonging to B if (a) A obtains property belonging to B without meaning B to permanently lose the property; and (b) A intends to treat the property as A's own to dispose of regardless of B's rights. (2) For subsection (1), if A borrows or lends property belonging to B, the borrowing or lending may amount to treating the property as A's own to dispose of regardless of B's rights if, but only if, the borrowing or lending is for a period, and in circumstances, making it equivalent to an outright taking or disposal. (3) Without limiting this section, if (a) A has possession or control (lawfully or not) of property belonging to B; and (b) A parts with the property under a condition about its return that A may not be able to carry out; and (c) the parting is done for A's own purposes and without B's authority; the parting amounts to treating the property as A's own to dispose of regardless of B's rights. (4) This section does not limit the circumstances in which a person can be taken to have the intention of permanently depriving someone else of property. 330 Money transfers (1) This section applies for this division and for the application of section 313 (Receiving) to this division. (2) If a person ( A) causes an amount to be transferred from an account held by someone else ( B ) to an account held by A (a) the amount is taken to have been property that belonged to B; and

(b) A is taken to have obtained the property for A with the intention of permanently depriving B of the property. (3) If a person ( A) causes an amount to be transferred from an account held by someone else ( B ) to an account held by a third person ("C") (a) the amount is taken to have been property that belonged to B; and (b) A is taken to have obtained the property for C with the intention of permanently depriving B of the property. (4) An amount is transferred from an account ( account 1 ) to another account ( account 2 ) if (a) a credit is made to account 2; and (b) a debit is made to account 1; and (c) the credit results from the debit or the debit results from the credit. (5) A person causes an amount to be transferred from an account if the person induces someone else to transfer the amount from the account (whether or not the other person is the account holder). 331 General deficiency for div 3.3.2 A person may be found guilty of an offence of obtaining property by deception involving all or any part of a general deficiency in money or other property even though the deficiency is made up of a number of particular amounts of money or items of other property that were obtained over a period. 336 Passing valueless cheques (1) A person commits an offence if (a) the person obtains property, a financial advantage or other benefit from someone else by passing a cheque; and (b) the person (i) does not have reasonable grounds for believing that the cheque will be paid in full on presentation; or (ii) intends to dishonestlyobtain the property, financial advantage or benefit from someone else.
Maximum penalty: 100 penalty units, imprisonment for 1 year or both.

(2) A person may be found guilty of an offence against this section even though, when the cheque was passed, there were some funds to the credit of the account on which the cheque was drawn.

Alternative Verdicts
370 Alternative verdictstheft and taking motor vehicle without consent (1) This section applies if, in a prosecution for theft, the trier of fact is not satisfied that the defendant committed theft but is satisfied beyond reasonable doubt that the defendant committed an offence against section 318 (Taking etc motor vehicle without consent).

(2) The trier of fact may find the defendant guilty of the offence against section 318, but only if the defendant has been given procedural fairness in relation to that finding of guilt. (3) In this section: "theft" does not include an offence against section 321 (Minor theft). 371 Alternative verdictstheft or obtaining property by deception and receiving (1) If, in a prosecution for theft or obtaining property by deception, the trier of fact is not satisfied that the defendant committed the offence but is satisfied beyond reasonable doubt that the defendant committed an offence of receiving, the trier of fact may find the defendant guilty of receiving, but only if the defendant has been given procedural fairness in relation to that finding of guilt. (2) If, in a prosecution for an offence of receiving, the trier of fact is not satisfied that the defendant committed the offence but is satisfied beyond reasonable doubt that the defendant committed theft or obtaining property by deception, the trier of fact may find the defendant guilty of theft or obtaining property by deception, but only if the defendant has been given procedural fairness in relation to that finding of guilt. 372 Alternative verdictstheft and obtaining property by deception (1) If, in a prosecution for an offence of theft, the trier of fact is not satisfied that the defendant committed the offence but is satisfied beyond reasonable doubt that the defendant committed an offence of obtaining property by deception, the trier of fact may find the defendant guilty of obtaining property by deception, but only if the defendant has been given procedural fairness in relation to that finding of guilt. (2) If, in a prosecution for an offence of obtaining property by deception, the trier of fact is not satisfied that the defendant committed the offence but is satisfied beyond reasonable doubt that the defendant committed an offence of theft, the trier of fact may find the defendant guilty of theft, but only if the defendant has been given procedural fairness in relation to that finding of guilt. (3) In this section: "theft" does not include an offence against section 321 (Minor theft). 373 Verdict of theft or receiving' etc (1) If, on the trial of a defendant charged with theft and receiving in relation to the same property, the trier of fact is satisfied beyond reasonable doubt that the defendant committed theft or receiving but cannot decide which of the offences the defendant committed, the trier of fact must find the defendant guilty of (a) the offence that is more probable; or (b) if the trier of fact cannot decide which of the offences is more probable theft. (2) If, on the trial of a defendant charged with obtainingproperty by deception and

receiving in relation to the same property, the trier of fact is satisfied beyond reasonable doubt that the defendant committed obtainingproperty by deception or receiving but cannot decide which of the offences the defendant committed, the trier of fact must find the defendant guilty of (a) the offence that is more probable; or (b) if the trier of fact cannot decide which of the offences is more probable obtaining property by deception. (3) In this section: "theft" does not include an offence against section 321 (Minor theft).

VII PRE-TRIAL&TRIAL PROCEDURE


A Pre-Trial Procedure B Trial Procedure

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