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LAWS1016
CRIMINAL LAW

Semester Two, 2014


Undergraduate Unit of Study Outline











Faculty of Law

http://sydney.edu.au/law

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This outline contains unit of study specific information. It must be read
in conjunction with the Law Student Manual available via the LMS site.
Students should also ensure they consult the Law School website for
up to date policy information.

Lecturers

Name Professor Mark Findlay
Phone 9351 0225
Email mark.findlay@sydney.edu.au

Name Professor Gail Mason
Phone 9351 0326
Email gail.mason@sydney.edu.au

Name Dr Louise Boon-Kuo
Phone 9351 0288
Email louise.boon-kuo@sydney.edu.au

Name Mr Graeme Coss
Phone 9351 0227
Email graeme.coss@sydney.edu.au

Preferred method of communication

In the first instance, students should contact their lecturer by email. If you direct
the same enquiry to more than one Criminal Law lecturer, you must clearly inform
each lecturer that you are doing this. Email is not to be used as a vehicle for
individual or remedial tuition; however, lecturers are happy to answer your questions
as they arise and might decide that the issues raised in the question are sufficiently
important to warrant being addressed before the whole group.

When emailing academic staff, students should provide their name and student
identification number.


Overview
The central theme of the course is how we determine the limits of criminal liability.
We begin by examining some theoretical material that seeks to demonstrate that
various contradictory ideas and principles have influenced, and continue to influence,
the content of the criminal law. We will then discuss: the elements of criminal
offences (and the principles that are applied when determining what mental element
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applies to the physical elements of statutory offences that are silent as to the
required mental state); various offences; the circumstances in which secondary
participants can be held liable; and certain defences/defences. While our aim is to
give you a detailed understanding of the areas of law that we discuss, the Unit is not
simply about learning legal rules. Rather, students will be encouraged to think about
why the law has the content that it does, and construct arguments about
the desirability of the various rules that have been developed. In other words, we will
take a critical approach to the law. Many of those who have made the criminal law,
have acknowledged that it is not always logical or free from contradiction. It will be for
you to decide whether any or all of this illogicality and inconsistency is necessary.


WORD OF WARNING

Students might become distressed when studying Criminal Law. Detailed discussion
of homicide, sexual assault and other violent crime though unavoidable in a Unit
such as this can be particularly confronting and disturbing. Classroom discussion
aims to enable full and frank discussion conducted in an atmosphere of mutual
respect, and shared recognition that the material may impact in different ways on
different individuals. Please do not hesitate to let your lecturer (or the Unit Convenor)
know if you experience, or expect to experience difficulties.


Objectives

Understanding Criminal Law in Context

As stated above, this course aims to ensure that you develop both:

a detailed knowledge of particular areas of the criminal law;
an ability to critically analyse the law; and, with these skills,
an ability to engage in problem solving.

By the end of the course, you should understand the law in the areas that we cover.
The compulsory problem question in the final exam will test your knowledge of the
criminal law and its application, and to argue one side of the case or the other for the
purposes of establishing or denying liability. Problem-solving skills will be practised in
class discussion and through a variety of interactive classroom exercises. In addition,
regular opportunity will be given for developing your critical skills. This is reflected in
aspects of the assessment for this course. For instance, the compulsory essay
question in the final exam will test your ability to reflect upon and analyse the material
that you read in this Unit. Because the course is as much about critical thinking as it
is about the substantive law, we will focus on essay writing and on problem-solving
skills in the Revision classes that we have scheduled.

Development of Legal Skills

The course will also assist you to develop the following important legal skills:

Problem Solving as noted above, class room interaction, and the
assessments for this course will require you to apply the NSW criminal law to
hypothetical scenarios. By including problem questions after the reading list for
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most Seminars, we aim to give you the opportunity to practice your problem-
solving skills. We will discuss some of these problem questions in the Revision
classes.

Communication it is hoped that you will develop your ability to communicate
your knowledge of the law, both orally and in writing.

Legal Research when completing assessments for this course, you will have
an opportunity to use, and further develop, your legal research skills. Moreover,
students are advised to keep abreast of any recent changes to the law that are
not covered by the texts listed below. Newspapers and current legal information
websites are helpful for this purpose.

SPECIAL NOTE: Students who consider that they have difficulties in legal
reading or writing should indicate this to their lecturer at the
earliest opportunity, and seek assistance from the Learning
Centre (contact details at the end of this Unit outline).

Teaching/Learning Strategy

The objectives of the Unit will be achieved through student participation in seminars.
The intention behind the seminar strategy is threefold: to consolidate and develop the
knowledge that students gain through their own reading; to develop students
capacity for critical thought; and to help students to hone the legal skills listed above.

You will be expected to do the required readings before class, and to generate
your own notes. This means that you will need to prepare before class and to
participate in class discussions.

This Unit Outline includes problems that are relevant to the various topics that we
consider. You are encouraged to draft written answers to these problem questions as
part of your preparation both for class and the final exam.

Students are required to attend two 2-hour seminars each week for the duration of
this course. Students must attend 70% of classes to be eligible to sit the final
exam. Each student will be allocated a particular seminar group and will be required
to remain in that same group throughout the semester.


Reading materials

The principal recommended text is David Brown et al, Criminal Laws: Materials and
Commentary on Criminal Law and Process of New South Wales (Federation Press,
5
th
ed., 2011). The other texts listed below might be useful to you, but be aware that
many of these texts concern the law of jurisdictions other than NSW. When
consulting such texts, students should always be aware of which jurisdiction is being
discussed and whether the law in that jurisdiction is relevantly different from that in
NSW.

Do not purchase or use earlier editions of any of the works referred to below.
These might not state the current law in NSW and might also be incomplete. Also, be
conscious of the publication dates and hence the currency of the texts that we do
suggest you use. As stated above, these texts might not cover recent developments
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in the law. Where this is the case, it will be necessary for you to refer to sources of
the type that are mentioned above.

Avoid using cribs: they oversimplify the law, and are often misleading and
inaccurate.

Principal Recommended Text
- David Brown et al, Criminal Laws, (Federation Press, 5
th
ed, 2011)
This text is especially useful because of its NSW focus; the emphasis it places on the
social context in which the law operates; and its coverage of the substantive law. It is also
the most up-to-date NSW criminal law text.

Additional Recommended Text
- Roderick Howie & Peter Johnson, Annotated Criminal Legislation NSW,
(LexisNexis, 2013-2014 ed.)
This book reproduces and heavily annotates most of the legislation dealt with in this
course. Be careful not to refer to an out of date copy of this work, which is published
annually.

Other Useful Texts
- Thalia Anthony et al, Waller and Williams Criminal Law Text and Cases (Lexis
Nexis, 12
th
ed., 2013)
A recently published text that combines case extracts and commentary; states the law in
the common law states.
- Kenneth Arenson, Mirko Bagaric & Peter Gillies, Australian Criminal Law in the
Common Law Jurisdictions: Cases and Materials (OUP, 3
rd
ed, 2011)
A traditional text combining commentary and case extracts, with the advantage of recent
publication.
- Simon Bronitt & Bernadette McSherry, Principles of Criminal Law (Thomson
Reuters, 3
rd
ed, 2010)
This provides detailed coverage of the criminal law in all Australian jurisdictions, and
contains an excellent mix of theory and critical commentary.
- Peter Rush & Stanley Yeo, Criminal Law Sourcebook (LexisNexis, 2
nd
ed, 2006)
A good cases and materials text with critical commentary. Particularly useful for defences
and for property offences.
- Bernadette McSherry & Bronwyn Naylor, Australian Criminal Laws: Critical
Perspectives (OUP, 2004)
Critical coverage with good highlighting of major principles.
- Mark Findlay, Criminal Law: Problems in Context (OUP, 2
nd
ed, 2006)
Focuses on problem solving methodology, with good coverage of the topics addressed by
the course.
- Mark Findlay, Stephen Odgers & Stanley Yeo, Australian Criminal Justice (OUP,
4
th
ed, 2009)
- Michael Eburn, Roderick Howie & Paul Sattler, Hayes & Eburn Criminal Law and
Procedure in New South Wales (LexisNexis, 4
th
ed, 2014)
Contains some helpful graphical representations of factors affecting liability. Also poses
interesting questions and answers.

Outlines
- Penny Crofts, Criminal Law Elements (LexisNexis, 4
th
ed, 2010)
Justifiably the most popular of the outlines.
- John Anderson, Criminal Law Guidebook: New South Wales, South Australia,
Victoria (OUP, 2010)
- Donna Spears & Thomas Hickie, Butterworths Questions and Answers: Criminal
Law for Common Law States (LexisNexis, 2009)
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- Donna Spears, Julia Quilter & Clive Harfield, Criminal Law for Common Law
States (LexisNexis, 2011)
- Jonathan Clough & Carmel Mulhern, Criminal Law: Butterworths Tutorial Series
(LexisNexis, 2
nd
ed, 2004)

English Texts
- David Ormerod, Smith and Hogans Criminal Law (Oxford University Press, 13
th

ed, 2011)
- Celia Wells & Oliver Quick, Lacey, Wells & Quick: Reconstructing Criminal Law:
Text and Materials (Cambridge UP, 4
th
ed, 2010)
- Andrew Simester et al, Simester and Sullivans Criminal Law: Theory and
Doctrine (Hart Pub, 4
th
ed, 2010)
- Andrew Ashworth and Jeremy Horder, Principles of Criminal Law (OUP, 7
th
ed,
2013)
- Alan Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law
(Butterworths, 2
nd
ed, 2001)
- Donald Nicolson & Lois Bibbings (eds), Feminist Perspectives on Criminal Law
(Cavendish, 2000)

Seminar times

Group 1
Mon and Weds 9am 11am Law School Mr Coss
Group 2
Mon and Weds 11am 1pm Law School Prof Mason
Group 3
Mon and Weds 2pm 4pm Law School Prof Mason
Group 4
Tues and Thurs 11am 1pm Law School Prof Findlay
Group 5
Tues and Thurs 2pm 4pm Law School Dr Boon-Kuo

Note: For up to date information regarding class times and venues, please visit:
http://sydney.edu.au/law/cstudent/undergrad/timetables.shtml


Assessment

Assessment will comprise the following:

Take home problem-based assignment 20%

Class participation 10%

Examination (2hr, formal exam period) 70%

The assessment regime in this course complies with a criteria-based approach. The
aim of this is to ensure consistency, uniformity and accountability across different
markers. All grades are moderated. Your class teacher will not necessarily mark any
of your responses.

Helpful texts on legal writing and on law exam techniques include:
- Anita Stuhmcke, Legal Referencing (LexisNexis, 4th ed, 2012)
- Richard Krever, Mastering Law Studies and Law Exam Techniques (LexisNexis,
8
th
ed, 2013)

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LLB Take home assignment 20%
You are required to prepare a response to a problem scenario. Further instructions
will be provided in class. The assignment is due at 5pm on Thursday 11 September
2014.

Class Participation 10%
Class participation during the semester is worth 10% of your total marks for the Unit.
Students will be placed on call for one class. Students who are on call must be
ready to answer questions from their lecturer. You will be rewarded for oral
contributions while you are on call that demonstrate that you have read the required
materials and reflected on the issues raised.

Although performance in your on call class will carry considerable weight, it will not
be conclusive of your class participation mark. Students are expected to come
prepared to contribute to discussion in every class. When allocating class
participation marks, lecturers will take account of general participation.

At the end of semester, we will ask each of you to evaluate, in writing, your
contribution to class discussions. That is, you will be asked to indicate what mark you
feel you deserve for class participation and to provide reasons why such a mark is
justified. Although we are not bound by your self-assessment, we will take it into
account when giving you a class participation mark.

SPECIAL NOTE: Students who believe they have difficulties in making oral
presentations or speaking in class should discuss this with
their lecturer early in the semester. But remember that Law
demands an ability to communicate both in writing and orally:
you must develop an ability to contribute verbally in front
of your peers.

Criteria for Assessment of Class Participation
1. The criteria is very similar to that which is applied when assessing students
written work. We will reward lucid, thoughtful contributions, which demonstrate
that the relevant student understands and has reflected upon the compulsory
reading material for the course.

2. Students will be assessed on the quality rather than the quantity of their
contributions. Nevertheless, it is difficult to award high marks to students who are
absent or who regularly fail to participate in seminar discussions.

3. The following provides some indication of the type of performance in class that is
associated with particular marks out of ten for class participation.

0 2 Unacceptable level of absence from seminars. Participation virtually
non-existent. Little, if any, preparation. Obvious lack of commitment to
the Unit.
2.5 5 Irregular attendance without explanation. Inconsistent preparation.
Evidence of a poor understanding of the material covered in the
seminars.
5.5 7 Regular attendance, with reasonable level of preparation. Participates
in seminar discussions, but sometimes exhibits a lack of
comprehension of the topic. Adequate participation in seminar
exercises
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7.5 8 Regular attendance and preparation. Demonstrates a reasonable
comprehension of topics under consideration.
8.5 10 Regular attendance. High quality participation based upon thorough
preparation. Demonstrates an excellent comprehension of topics under
consideration. Evidence of a critical and/or original approach to such
topics.

Examination 70%
The examination will be held during the examination period commencing Monday
10 November, 2014. Only students who have achieved at least 70% attendance will
be eligible to sit the exam.

The examination will be an open book examination and will be worth 70% of the
overall assessment for the course. In the exam, students will be required to answer
(i) one compulsory problem question and (ii) one of about 3 essay questions. Later in
semester, we will provide you with more details about the exam. Please note also
that there will be opportunities throughout the course to discuss exam technique;
indeed, as you will see when you consult the Class Schedule below, we have set
aside three and a half classes (including the Revision class) to discuss problem-
solving and essay writing skills.

In the unusual event that a student is granted a rescheduled examination, there
might be an oral component to such an assessment.

IMPORTANT NOTE: To obtain a Pass mark and grade for this Unit of Study, each
student must satisfactorily attempt all assessment tasks set out above. If a student
fails to comply with this requirement, they will be awarded an Absent Fail grade for
Criminal Law.

Penalties
A 10% per day (or part thereof) penalty will apply to written work submitted after a
deadline unless the relevant student has been granted an extension.
A 10% per 100 words (or part thereof) penalty will apply to any submitted work
that exceeds the word count. The total word count for essays and other written
assessments will:
o exclude: bibliography; footnote numbers; footnote citations; cover page
and
o include: body text; headings and sub-headings; quotations; anything other
than numbers and citations in footnotes.
The prescribed word limit is strict. There is no 10% leeway indeed, there is no
leeway at all when it comes to word limits.
For the policy concerning penalties (and other student policies) please refer to
the Faculty Handbook:
http://sydney.edu.au/handbooks/law/rules/faculty_resolutions.shtml

Assignment submission
You are required to submit your assignment in electronic form and an identical hard
copy. Both the online and hardcopy assessments must be submitted by the
submission deadline.

Electronic copy
All assignments must be submitted online via the Assignment Dropbox on the
relevant LMS site for your subject. Instructions on how to submit your assessment
online are available on each LMS site. The time and date of submission as recorded
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on the LMS site will be taken as the official (final) record of submission. Please
allow plenty of time to upload your assignment.

If you experience difficulties submitting your assignment electronically, please
contact the eLearning/LMS Administrator on 02 9351 0328 or emailing
law.elearning@sydney.edu.au prior to the submission deadline or your paper
may be marked as late and marking penalties applied.

Printed copy
The hard copy should be submitted at the Information Desk, Level 3, New Law
School Building, Camperdown Campus.

Assignment Coversheets
An Assignment Coversheet must be submitted with the hardcopy version ONLY
(i.e. you do not need to submit a coversheet with your online version). By submitting
via the LMS site you have agreed to the conditions set out in the Assignment
Dropbox.) Assignment Coversheets are available online:
http://sydney.edu.au/law/cstudent/coursework/forms.shtml. Forms can also be
obtained from the Student Information Desk: Level 3, New Law School Building. The
Law School reserves the right not to mark assignments that do not have coversheets
attached with all fields completed.

All assessments submitted to the Law School will be subject to analysis by
similarity detecting software. The software is used as a tool to assist in
identification of work that is poorly referenced or has been cut and pasted from
other peoples work without attribution, and to assist the Faculty in its
educational function of ensuring that students learn to attribute the words and
ideas of others appropriately.


Assessment grading guidelines
These guidelines are designed to provide students with an understanding of the
standards applied when grading assessments. Students should note that the type of
assessment will affect the relevance of each factor. For example, the amount and
type of research required will vary between a research essay, which will require
independent research beyond the prescribed materials, and a problem question
which may only require appropriate analysis of the prescribed materials. These
standards may be applied in conjunction with specific marking criteria.

Absent Fail
A student must make a satisfactory attempt of all assessment tasks set out for this
Unit of Study in order to obtain a Pass mark and grade (or above); otherwise an
Absent Fail grade will be recorded as the students result for this Unit of Study.

Fail (Below 50%)
Work may fail for any or all of the following reasons:
Does not answer the question.
Contains significant or numerous errors.
Few or no identifiable arguments.
Content that is inappropriate or irrelevant.
Lack of research or analysis.
Difficult or impossible to understand through poor grammar, expression or
structure.
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Overall, does not demonstrate the minimum level of competence in the
assessment.

Pass (50-64%)
Work receiving a pass grade will generally exhibit the following characteristics:
Identifies the key issues, but does not follow through with a reasoned argument.
Contains some significant errors.
Displays satisfactory engagement with the key issues.
Offers descriptive summary of material relevant to the question.
Superficial use of material, and may display a tendency to paraphrase.
Demonstrates little evidence of in-depth research or analysis.
Adequate expression.
Overall, demonstrates the minimum level of competence in the assessment and
satisfies the requirements to proceed to higher-level studies in the degree or
subject area.

Credit (65-74%)
Work receiving a credit grade will generally exhibit the following characteristics:
Covers main issues fairly well in answering the question.
Contains no significant errors
Demonstrates an attempted critical approach to the issues.
Demonstrates reasonably sound research and analysis in addressing the key
issues.
Has a clear structure and reasonably clear expression.

Distinction (75-84%)
Work receiving a distinction grade will generally exhibit the following characteristics:
Completely answers the question.
Achieves a critical and evaluative approach to the issues.
Content and structure is well organised in support of the argument.
Demonstrates extensive research and analysis to support a well-documented
argument.
Generally well expressed and free from errors.
Has a clear structure and is well articulated.

High Distinction (85% +)
Work receiving a high distinction grade will generally exhibit the following
characteristics:
Completely answers the question.
Contains striking originality of approach or analysis.
Demonstrates exhaustive or innovative research (where independent research
required).
Exceptionally well written, structured and expressed.
Is otherwise exceptional in some way.


Feedback
If you have any questions, problems or concerns with this unit of study, please feel
free to contact the lecturer or convenor. Alternatively, please contact the Law Pro-
Dean at law.prodean@sydney.edu.au.


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Class Schedule

Week 1 Class 1 Introduction Crime, Law and Morality
(w/b 28 July) Class 2 Principles of Criminal Law?
Week 2 Class 3 The elements of criminal offences I
(w/b 4
August)
Class 4 The elements of criminal offences II
Week 3 Class 5 Homicide I: Murder
(w/b 11
August)
Class 6 Homicide II: Unlawful and dangerous act manslaughter
and gross negligence manslaughter
Week 4 Class 7 Problem-solving and essay writing class
(w/b 18
August)
Class 8 Assault offences
Week 5 Class 9 Assault offences/Sexual offences
(w/b 25
August)
Class 10 Sexual Offences
Week 6
Reading Week No Classes
(w/b 1
September)
Week 7 Reading Week No Classes
LLB - Problem Assignment Essay Due 11 September.
(w/b 8
September)
Week 8 Class 11 Larceny
(w/b 15
September)
Class 12 Extending criminal liability: Complicity
Week 9 Class 13 Problem-solving and essay writing class
(w/b 22
September)
Class 14 Provocation
(w/b 29
September)

Mid-Semester Break
Week 10
Reading Week No Classes
(w/b 6
October)
Week 11 Class 15 Self-Defence
(w/b 13
October)
Class 16 Duress and Necessity
Week 12 Class 17 Mental illness and Substantial Impairment by Abnormality
of Mind (SIAM)
(w/b 20
October)
Class 18 Automatism (involuntariness)
Week 13 Class 19 Intoxication and problem-solving skills
(w/b 27
October)
Class 20 Revision
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Readings


KEY Symbol Description
Compulsory reading
Optional reading




Introductory classes


Class 1 Course Introduction Crime, Law and Morality


In this class, we will introduce you to the main themes of this Unit. In particular, we
will examine two questions to which we will repeatedly return this Semester: namely,
how do we determine the limits of criminal liability; and how should we decide
whether certain behaviour is criminal? We will note the various, conflicting, principles
that underlie the criminal law. For whereas, as Alan Norrie has noted, criminal law is,
at heart, a practical application of liberal political philosophy, the words of
qualification that he uses (at heart) are important: ideas of individual autonomy have
influenced the content of the criminal law, but so too has a judicial concern to protect
the community and to ensure that the existing social order is not radically
undermined. The competing influences of autonomy and community protection seem
to explain the criminal laws ambivalent approach to subjective mental states. We will
examine this further in class. And while general principles of the criminal law, such
as, for example, the temporal coincidence rule (considered in the Problem below),
seem liberal on their face, the judges have not always felt constrained by them when
the price of adherence would be what they consider to be a manifestly unjust
outcome in a particular case.

Finally, we will consider the question of euthanasia. Is the general rule that an
accused persons motive is relevant only to sentence, desirable? Or is this rule an
instance of the criminal law exaggerating the extent to which certain accused
persons have acted freely? If so, why might it do this?

Reading

Brown et al (2011), pp. 314-319 (individual choice and the general irrelevance of
motive); 343 and 351-353 (subjective and objective mental states; 506-511
(euthanasia)

Findlay, Odgers & Yeo (2009), chapter 1

Problem

(Students will be introduced to problem a) in class and may also be asked to
reflect on the themes in problem b).

a) Davids mother is dying of cancer. She has been suffering extreme pain for
several years and, despite recent radical medical treatment, there seems little
that the doctors can do to reduce her discomfort. Her advanced years make it
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risky to carry out further surgery and in any case the cancer is too far
advanced to warrant such intervention.

For months now, Davids mother has begged her son to assist her in suicide.
He has resisted her pressure, despite his deep distress at seeing her suffer.
One afternoon when Davids mothers doctor visits her, David overhears his
mother make a similar request. The doctor replies that, despite her sympathy
for the mothers position, her ethics as a doctor prevent her from taking life. In
addition, there is no law in this State which would relieve the doctor of
criminal liability if she assisted in a suicide.

The following day, Davids mother again begs her son to help her die. Again,
David refuses. With this she called her son a coward and a disgrace to the
memory of his dead father. Distraught, confused, and desperately wanting to
silence his mothers abuse, David lashes out with his fist and strikes his
mother on the face, knocking her to the floor. Fearing that he has killed her,
and in a state of blind panic, David sets fire to the room to conceal the
evidence. In fact, Davids mother was only unconscious, but a later coronial
inquiry revealed that she died as a result of smoke inhalation.

Should David be convicted of any homicide offence?

Imagine that David provided his mother with a fatal dose of Nembutal (note the
facts of J ustins v R (2010) 204 A Crim R 315). In those circumstances, should
he have been convicted of any offence?

b) Emma is a 15 year old street kid. She has a very unsuccessful school history,
having been physically bullied in the playground on repeated occasions. She
dropped out of school a year ago. Her dysfunctional family environment (a
brutal father and a mother who abuses medication) compounded her sense of
dislocation and she has been living in squats or on the street for month.

Recently she met Luke, two years her senior and a heavy drug user. Luke
introduced Emma to cannabis and she has developed a heavy habit and
dependency on the drug. Emmas best friend Sally thinks that Emmas drug
abuse is making her paranoid and worries for her safety.

Luke and Emma have just been arrested. She has been charged with using
prescribed drugs, and his charge relates to having sex with Emma who is
under age. Emma seems intoxicated at the time of her police interview and
after she is threatened by a female police officer, Emma is overheard to say
Fuck off pig. It is now likely she will also be charged with an offensive
language offence.

Without any particular knowledge of the law, discuss how using criminal
justice to address Emmas situation presents positives and negatives. What
features of social context might be important for decision-makers to consider
in responding to Emma through law?



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Class 2 Principles of Criminal Law?


In this class, we will continue to discuss the themes introduced in the first Seminar.
Specifically, we will consider an argument presented by Andrew Ashworth and
Jeremy Horder about the principles and values that ought to be considered when
deciding whether or not to make conduct criminal. To what extent should the criminal
law uphold the liberal idea that an individual should be held criminally liable, and
punished, only where they have chosen to cause harm? Is Ashworth and Horders
minimalist approach to criminalisation appealing? Are there times when the law
exaggerates the extent to which particular individuals enjoy free choice? And should
the criminal law be concerned with the enforcement of morality? We will discuss all of
these questions in class. Finally, we might make some reference to the theory that
Alan Norrie presents in Crime, Reason and History. Norrie argues that the criminal
law is contradictory, chaotic and illogical, because of the conflicting principles that
underlie it. Is this a persuasive argument? If so, is any such illogicality unavoidable?

Reading

Ashworth and Horder (2013), pp. 22-43

Norrie (2001), chapters 1 and 2

Wells and Quick (2010), chapters 1 and 3

Questions

Ashworth and Horder

1. Ashworth and Horder note that the criminal law must be influenced by the
principle of welfare. Does this differ from the community welfare principle?
(see the Findlay, Odgers and Yeo chapter from the first class)

2. Ashworth and Horder set out three conditions that they believe should be
satisfied before conduct is held to be criminal. What are these conditions? In
Ashworth and Horders opinion, should behaviour that satisfies each of these
conditions necessarily be criminalised? What is the minimalist approach to
criminalisation that they advocate?

3. What do Ashworth and Horder say about whether criminalisation is justified
for behaviour regarded as morally wrong? Do you agree? (In this connection,
see also the case of Brown [1994] 1 AC 212, which we will discuss in class 9.
Here, the question was: should the consensual infliction of actual bodily harm
and/or wounding during a sado-masochistic sexual encounter be criminal?
Note the different views of Lord Templeman (in the majority) and Lord Mustill
(in the minority) concerning the role of common morality in determining
whether particular conduct is criminal.)

4. Ashworth and Horder see a limited role for paternalism in the criminal law.
They also support criminalising some behaviour that is not harmful in itself but
carries the risk of causing harm: e.g. dangerous driving. What is their
argument here?

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Exam-style essay questions

5. Ashworth and Horder note that liberalism assumes that people have
sufficient free will to make meaningful choices. But does a liberal approach
to law sometimes exaggerate the extent to which people are free to choose?
If so, is this necessary? Discuss with reference to examples from criminal law.
Further, consider whether the criminal law is sometimes unfaithful to the
liberal principles that underlie it.

6. Does Ashworth and Horders theory strike a reasonable balance between
individual autonomy and other considerations that might impact on rational
choice? Reflecting on considerations of capacity and volition, discuss some
situations in which the liberal free will approach leads to injustice and how
the law might compensate for this?


Determining Criminal Responsibility Elements of the
Offence


Class 3 The Elements of Criminal Offences I

In this class, after noting the golden thread from Woolmington v DPP, we will
discuss the important High Court decision of He Kaw Teh v R (1985) 157 CLR 523.
We will particularly focus on what that decision says about the (i) external (or
conduct) element and the (ii) mental element of criminal offences. Where a statutory
offence is silent concerning an element of mental state, the courts are responsible for
determining which mental element applies to the relevant external element. In doing
so, they are guided by the presumptions identified by Brennan J and Gibbs CJ in He
Kaw Teh.

In this context, we will reflect on the way in which presumptions as to knowledge
assist the prosecution case but, in so doing, do not relieve the prosecution from
proving the crucial elements of the offence.

If time permits, we will look at other situations where presumptions qualify the mental
element such as with certain public order offences.

Reading

(i) Generally

Brown et al (2011), pp. 399-406; 323-324; 356-376

(ii) Woolmington and evidential burdens

Woolmington v DPP [1935] AC 462 [Brown, 400-401]

Brown et al (2011), pp. 399-406


16
Braysich v R [2011] HCA 14, [35]-[36] (French CJ, Crennan and Kiefel JJ) is a
recent case where the majority of the High Court noted how an evidential burden
is discharged; see also Ryan v R (1967) 121 CLR 205, 217 (Barwick CJ)

(iii) He Kaw Teh and the presumption that a subjective mental element standard
applies for legislative offences

He Kaw Teh v R (1985) 157 CLR 523 [Brown, 356-370]


Questions

Woolmington and evidential burdens

1. According to Viscount Sankey LC, what is the one golden thread that is
always to be seen? What exceptions to the Woolmington principle does his
Lordship identify?

2. What is an evidential burden? How does a party discharge an evidential
burden? Remember to distinguish between the standard of proof and the
burden (onus) of proof.

He Kaw Teh

3. What is the mental element that Brennan J says usually applies to (i)
act/omission conduct elements; (ii) circumstance conduct elements; and (iii)
result conduct elements? How does the mental element connect with each of
these?

4. What are the rebuttable presumptions that Brennan J says arise when a court
seeks to determine the requisite mental state for a particular statutory
offence?

5. What does Brennan J say about whether the first presumption has been
rebutted in the case of (i) the importation offence and (ii) the possession
offence?

6. What is Brennan Js reasoning concerning the requisite mental state for the
importation offence? What factors does he take into account in reaching the
conclusion that he reaches?

7. Gibbs CJ (Mason J agreeing) states that there are three types of offence.
What type of offence does Gibbs CJ say that the importation offence is? What
reasons does his Honour provide for this conclusion?

8. What is Brennan Js reasoning concerning the requisite mental state for the
possession offence?



17

Class 4 The Elements of Criminal Offences II

In this class, after recapitulating our discussion in class 3 concerning the principles
that the courts must apply when determining which mental element applies to a
statutory offence that is silent as to an element of mental state, we consider strict
liability offence elements and the defence of honest and reasonable mistake of fact.
We will also discuss the case law since He Kaw Teh and, in particular, the
relatively recent High Court decision of CTM. How seriously have the courts taken
the first presumption identified by Brennan J and Gibbs CJ? How seriously should
this presumption be taken?

Reading

(i) Generally

Brown et al (2011), pp. 370-376; 388-392

(ii) Strict liability and the honest and reasonable mistake of fact defence

SRA v Hunter District Water Board (1992) 65 A Crim R 101 [Brown, 389-390]

for what is often said to be the genesis of the defence in Australia, see the
judgment of Dixon J in Proudman v Dayman (1941) 67 CLR 536; see also
Thomas v R (1937) 59 CLR 279 and the early High Court case of Hardgrave v R
(1906) 4 CLR 232 (Griffith CJ)

(iii) Discussion: have the courts taken the presumption in favour of subjective fault
seriously? If not, have they been right not to do so?

CTM v R (2008) 236 CLR 440 (especially the majority at [1] - [40] and Hayne J
at [138] - [179])

Susannah Hodson, CTM v The Queen: A Challenge to the Fundamental
Presumption of Mens Rea (2010) 34 Criminal Law Journal 187 - 197

Questions

The honest and reasonable mistake of fact defence and the SRA case

1. Which presumption arises upon the rebuttal of the first presumption noted by
Brennan J in He Kaw Teh?

2. What is the difference between strict and absolute liability elements? What is
the courts attitude to absolute liability? See Hunt CJ at CL in Hawthorn (Dept
of Health) v Morcam P/L (1992) 29 NSWLR 120; there are similar statements
in CTM v R (2008) 236 CLR 440 and Tolson (1889) 23 QBD 168, 182
(Cave J).

3. Where the defence of honest and reasonable mistake of fact is available,
must the defence discharge an evidential burden? How does it do this?

18
4. Must the person who relies on the honest and reasonable mistaken belief
defence have a positive mistaken belief? Or is the defence also available to
those who have either (i) not adverted at all to whether or not the
circumstance exists or (ii) thought only generally about whether the
circumstance exists and have concluded that there is no reason why it would?
Or does this depend from offence to offence?

CTM

5. Is Hodson right to criticise the High Courts approach in CTM? Did Hayne J
really challenge the orthodox presumptive fault threshold, suggesting that
the threshold should be absence of reasonable mistake of fact rather than
intention, recklessness or knowledge? If the answer is yes, was he right to
do so?

Problem

(Students will be introduced to problem a) in class and may be asked to reflect
on the themes in problem b).

a) Nigel, 15, goes on a holiday to Newcastle, NSW, where he meets Heather,
15. They develop a liking for each other. A number of Nigels friends comment
on the striking physical similarity between Nigel and Heather. Nigel and
Heather both know that they were adopted at birth and that they had a twin of
the opposite sex whom they have never met and who was adopted by a
different family. Nigel and Heather also find out that they were born on the
same day as each other. One night in Newcastle, Nigel and Heather have
sexual intercourse. When Heathers mother picks Heather up the next day,
she sees Nigel kiss Heather goodbye in a passionate fashion. Heathers
mother immediately realises that Nigel is Heathers twin brother and she is
concerned that if the relationship continues there will be problems for her
daughter. She reports her suspicions to police. After being interviewed Nigel
and Heather are charged with an offence under s 1 of the Incest Act 2014
(NSW). Imagine that the section of the Act that creates this offence provides:

Section 1

Any person who has sexual intercourse with a sibling who is below the age of
16 years is liable to imprisonment for 8 years

Is a court likely to hold that the mental element that the Crown must
prove for the conduct elements of this offence is (i) a subjective one;
(ii) a strict liability one; or (ii) an absolute liability one? Provide reasons
for your conclusions.

If section 1 is interpreted to require proof of a subjective mental state
for all conduct elements, are Nigel and Heather likely to be convicted?
Why? Would your answer be different if a strict liability standard applies
to all conduct elements?

b) Consider the facts of Ostrowski v Palmer (2004) 218 CLR 493. What are the
policy justifications underpinning the Courts interpretation of liability here?
How does this relate to the influence of due diligence on mistake of law? In
your view, is the outcome just or fair?

19
Offences


Class 5 Homicide I: Murder


In this class, we will consider the offence of murder. We begin by considering the
offences conduct element and the difficulties that sometimes arise in establishing
that the accuseds act caused the deceaseds death. Is the case law concerning
causation too pragmatic? Are there inconsistencies? Did the Justices of the High
Court agree on anything in Royall? We then consider the offences mental element,
and the rationale for the Crabbe test. And we note the temporal coincidence
requirement. The coincidence rule applies to all offences, but some of the leading
authorities are homicide cases. Are the situations of coincidence that accept ongoing
mental states or conduct, simply fictions that enable the principle to be satisfied?
Have the courts shown common sense in this area? Or have they been unprincipled
and illiberal? Finally, we discuss the constructive murder rule. Does this rule tend to
undermine Fullagar Js suggestion, after the House of Lords judgment in DPP v
Smith [1961] AC 290 was delivered (see Brown et al, 382), that it was only English
law (growing from the presumption that a man intends the natural consequence of his
act), that made murderers of those who lacked subjective fault? Should the
constructive murder rule be abolished? Or do critics over-reach when they say that
the rule makes murderers of those who kill accidentally (see Brown et al, 434) and
should not be retained?

Reading

(i) Generally

Crimes Act 1900 (NSW), s 18(1)(a)

Brown et al (2011), pp. 441-454, 489-503

The empirical context of homicide: Andy Chan, Jason Payne (February 2013)
Homicide in Australia: 200809 to 200910 National Homicide Monitoring
Program annual report, Monitoring report no.21, Australian Institute of
Criminology: Canberra. Available at
http://www.aic.gov.au/publications/current%20series/mr/21-40/mr21.html

(ii) The conduct element: act or omission causing death

R v SW and BW (No. 1) [2009] NSWSC 529

(iii) The conduct element: the importance of identifying the precise act or omission
that did cause death

Who decides what the act causing death was? This is well-established: see
Arutlthilakan v R (2003) 78 ALJR 257, [55]

(iv) The actus reus: act or omission causing death

Human Tissue Act 1983 (NSW) s33


20
Kristin Savell, Is the Born Alive Rule Outdated and Indefensible? (2006) 28
Sydney Law Review 625-664

(v) The conduct element: act or omission causing death

(a) Where the alleged intervening conduct is the act of a third party

R v Smith [1959] 2 QB 35 (compare with Jordan v R (1956) 40 Cr App R
152)

Evans and Gardiner v R (No 2) [1976] VR 523

R v Cheshire [1991] 1 WLR 844

(b) Where the alleged intervening conduct is an act of nature

Hallett v R [1969] SASR 141 [Brown, 495 - 499]

(c) Where the alleged intervening conduct is the act of the deceased

Refusing medical treatment/rejecting medical advice

R v Blaue [1975] 1 WLR 1411 [Brown, 499 - 501]

R v Bingapore [1975] 11 SASR 469

Fright or self-preservation cases

Royall v R (1991) 172 CLR 378 [Brown, 491 495, although, because the
extract is limited, see also the CLR report at 388-390 (Mason CJ); 398-400;
(Brennan J); 408-413 (Deane and Dawson JJ); and 420-425 (Toohey and
Gaudron JJ). McHugh J provides an interesting and, in some ways, orthodox
discussion of causation (see 441-451), but note that, concerning the
applicable test, his was a dissenting opinion.

McAuliffe v R (1995) 183 CLR 108, 118-119 makes it clear precisely what the
majority in Royall agreed upon (see also RIK v R [2004] NSWCCA 282, which
we will discuss in the next class)

(v) The mental element: intent to kill, intent to inflict GBH

Introduction to the mental element [Brown, 341-343]; the mental element in
relation to acts and consequences [Brown, 343-345]; and issues with regards to
inferring the state of mind of the accused [Brown, 382-384].

Pemble (1971) 124 CLR 107

(vi) The mens rea: reckless indifference to human life

Crabbe v R (1985) 156 CLR 464 [Brown, 441 - 444]



21
For the position in NSW, see Solomon v R [1980] 1 NSWLR 321, 337 (Begg J;
Street CJ agreeing at 327) [noted in Brown, 444]; Solomon was approved by
the High Court in Royall v R (1991) 172 CLR 378, 395 (Mason CJ), 415 (Deane
and Dawson JJ; Brennan J agreeing at 405), 430-431 (Toohey and Gaudron JJ)
and 455 (McHugh J)

(vi) The temporal coincidence rule

Thabo Meli v R [1954] 1 WLR 228 [noted in Brown, 324-325]

R v Church [1966] 1 QB 59 [manslaughter conviction returned, but only because
the trial judge gave the accused too favourable a direction; the Court of Appeal
approved Thabo Meli]

Meyers v R (1997) 147 ALR 440 [noted in Brown, 324-325]

(vii) Discussion: Should the constructive murder rule be abolished? In developing
your argument, draw on the justifications for the constructive approach.

The arguments are discussed in NSW Law Reform Commission, Complicity,
Report No 129 (2010), 139-168; but see esp. 150-161


Questions

Causation

1. Which test for causation was approved in Evans and Gardiner (No. 2) [1976]
VR 523? See also Lord Parker CJ in Smith [1959] 2 QB 35.

2. In cases where the second act was negligent medical treatment, have the
courts been willing, or reluctant, to set aside juries conclusions that the first
act caused death?

3. In Hallett v R [1969] SASR 141, which examples of (possibly) overwhelming
second causes did the South Australian Supreme Court provide?

4. Will a victims arguably unreasonable refusal to undergo medical treatment
necessarily break the chain of causation? See Blaue [1975] 3 All ER 446

5. What was the only thing (concerning the test to be applied in fright or self-
preservation cases) upon which a majority of Justices in Royall appeared to
agree?

Mental state

6. What reasons did the High Court in Crabbe give for favouring the test that it
did?

7. What is the test for reckless indifference murder in NSW?


22
Coincidence

8. Could Hallett have been argued as a coincidence case? Would such an
argument have been likely to succeed? (see Thabo Meli). Could Thabo Meli
have been argued as a causation case? Would such an argument have been
likely to succeed? (see Hallett).

9. In Meyers [1997] HCA 43, the High Court held that act and intent must
coincide. Must act and intent coincide?

10. Did the Court in Thabo Meli stretch the coincidence requirement to achieve
what it considered to be a just outcome? Does the law become chaotic when
the courts do this? If so, is this necessary chaos?

11. Was the decision in Thabo Meli illiberal, unprincipled and regrettable?


Problem

Troy Davis is a troubled, aggressive young man with a lengthy criminal record. In an
attempt to overcome his demons, he becomes a member of a religious group,
Allwrong. Its important to get in touch with your spiritual side, says Troy, and I like
the mindless sexism and homophobia, too.

One night, while listening to an Allwrong Pastor philosophising, Troy notices Tahnee
in the audience. Shes pretty hot, he thinks. So, at the end of the meeting, after
giving the organisers his credit card details, Troy follows Tahnee home. When
Tahnee reaches a dark area, Troy, seemingly forgetting his newfound religious
convictions, runs up to her and says, you turn me on, darling. Tahnee is
nonplussed. I know that male sexuality is uncontrollable, she says, but it is my role
to ensure that nothing untoward occurs. Troy is incensed. In a rage, he pulls out a
knife and stabs Tahnee in the chest before running off.

Tahnee is taken to hospital. She is badly injured, but still breathing. Surgeons want to
operate but Tahnee says that she will only consent to the procedure if a doctor
affiliated with Allwrong performs it. An Allwrong doctor is located. Unfortunately,
he performs the operation very unskilfully and Tahnee dies. Several doctors are
prepared to give evidence that the surgery was thoroughly bad and that Tahnee
had a 100% chance of survival had it been performed competently.

Meanwhile, Troy is in a panic. I probably killed that girl, he thinks. He texts his wife,
Jade: Coming back now sum bad shit has gone down get my dinner now ;-). Jade
knows exactly what this means and so she leaves the house. Unfortunately, she
forgets that her friend, Keli, is sleeping in the upstairs bedroom. When Troy gets
home, he is furious to find that his dinner is not on the table. Keli hears him
screaming obscenities and comes down the stairs to see what is happening.
Thinking that Keli is Jade, Troy screams, Ill kill you, and runs at her with a knife.
Keli runs back up the stairs to the bedroom where she has been sleeping. Troy
follows with the knife. Realising that she has been cornered, Keli jumps out the
window and dies as a result of the fall.

Troy decides to do to go for a walk to cool off and think things through. In a back
street, Stewart propositions Troy. Troys response is to choke Stewart until Stewart is
unconscious. Troy leaves him on the street, in the gutter. Hed be dead, thinks Troy
as he walks off. But Stewart isnt dead. He only dies an hour later when, as a
23
consequence of a freak storm and a drain blockage, he is drowned in a wave of
storm water. A post mortem indicates that he would certainly have lived had he not
choked in the flood.

Can Troy be convicted of murdering (i) Tahnee, (ii) Keli and/or (c) Stewart?



Class 6 Homicide II: Unlawful and Dangerous Act Manslaughter and
Gross Negligence Manslaughter


In this class, we discuss what is inaccurately referred to as Involuntary
Manslaughter (as will be seen, there is nothing involuntary about the act/omission
causing death in such cases; rather, the accused does not intend to kill the deceased
- or have any of the other requisite mental states for murder). There are two
categories of Involuntary manslaughter: manslaughter by unlawful and dangerous
act and manslaughter by gross negligence. The latter is usually charged where the
Crown alleges that the accuseds omission caused death; but this is not invariably
the case: as Nydam and Lavender show, manslaughter by criminal negligence may
also be charged in cases of alleged acts causing death. Further, as French CJ noted
in the recent High Court case of Burns at [7], the same facts may give rise to liability
under each of these rules. We will discuss that case, some of the questions that
arose for decision in it, and the underlying normative questions raised by the
imposition of objective standards for criminal liability. Has a person who takes illicit
drugs while already intoxicated, made a genuine choice to do so? And should the law
be less circumspect about imposing duties on individuals to preserve human life?
Alternatively, is the balance that the law strikes between autonomy and community,
justified?

We will also discuss the recently introduced s 25A of the Crimes Act. Are the
offences that that section has created amidst community anxiety about one-punch
killings effective, necessary and/or desirable?

Reading

(i) Generally

Crimes Act 1900 (NSW), ss 18(1)(b), 25A

Brown et al (2011), pp. 454-471, 480-489

The significance of fault and the role for objective standards in criminal law Brown
et al (2011), pp. 315-317, 351-352, 375-376

(ii) Unlawful and dangerous act manslaughter

(a) Unlawful act

Lamb v R [1967] 2 All ER 1282 [noted in Brown, 459]: must the unlawful act be
a criminal wrong?


24
(b) Causing death

See the causation cases that we considered in the last class. See also:

Drug supply and causation

Burns v R (2012) 246 CLR 455, [75]-[96] (joint judgment)

Fright or self-preservation cases

RIK v R [2004] NSWCCA 282: makes sense of Royall - without citing it,
however

Aidid v R [2010] VSCA 56

(c) Dangerousness

Wilson v R (1992) 174 CLR 313 [Brown, 454-458]

RIK v R [2004] NSWCCA 282

Wills v R [1983] 2 VR 201 [noted in Brown, 458-459]

(iii) Assault causing death

Crimes Act 1900 (NSW), s 25A

Julia Quilter, One-punch Laws, Mandatory Minimums and Alcohol-Fuelled as an
Aggravating Factor: Implications for NSW Criminal Law (2014) 3(1) International
Journal for Crime, Justice and Social Democracy 81-106

(iv) Gross negligence manslaughter

(a) Gross negligence manslaughter by act

The elements (duty; breach (the objective test); causation)

Nydam v R [1977] VR 430 [Brown, 461-463]

R v Lavender (2005) 222 CLR 67 [Brown, 463-465]

The elements are set out neatly by Simpson J in Justins v R (2010) 204 A
Crim R 315, 353. Note also her Honours statement at 354 that there must be
an identity between the act/omission constituting the breach of duty and the
act/omission that causes death.

(b) Gross negligence manslaughter by omission

The elements (duty; breach (the objective test); causation)

Stone and Dobinson v R [1977] VR 430 [Brown, 480-481]

Taktak v R (1988) 14 NSWLR 226 [Brown, 481-485]

25
Government duty of care for Aboriginal and Torres Strait Islander deaths in
custody in light of Taktak [Brown, 486-489]

In which circumstances will a duty be owed?

Stone and Dobinson v R [1977] VR 430 [Brown, 480-481]

Taktak v R (1988) 14 NSWLR 226 [Brown, 481-485]

Burns v R (2012) 246 CLR 455, [97]-[109] (joint judgment)

(v) The temporal coincidence requirement

R v Le Brun [1991] 3 WLR 653 [noted in Brown, 324-325]


Questions

Unlawful and dangerous act manslaughter

1. Can a person be convicted of manslaughter by unlawful and dangerous act
where the unlawful act is supply of a prohibited drug, and the deceased is
an adult whose act of taking the drug is a voluntary and informed one?
What does informed mean?

2. In Burns, the majority states at [86]: The analysis of the causation of
homicide in Royall v The Queen is posited on an acceptance that the
voluntary and informed act of an adult negatives causal connection. Does
this mean that Blaue was wrongly decided?

3. Was it open to the jury in RIK to find that the accuseds act caused the
victims death? Why/why not?

4. Whats the reasonable person test from Wilson? Was it open to the jury in
RIK to find that the Crown had proved the dangerousness element beyond
reasonable doubt?

5. Which, if any, of the accuseds characteristics are imputed to the
reasonable person? What knowledge is imputed to the accused? See
Wills.

Gross negligence manslaughter

6. What is the reasonable person test from Nydam and Lavender? What
knowledge is imputed to the reasonable person?

7. In which circumstances will the accused be held to have owed a duty to the
deceased in a gross criminal negligence by omission case? Will a duty
arise where the accuseds act imperils the deceased? That is, is the
principle stated in R v Miller [1983] 2 AC 161 (see also R v Evans
(Gemma) [2009] 1 WLR 1999) part of the common law of Australia?
Do drug suppliers owe a duty to those whom they supply with drugs?
See Burns.

26
8. Specifically, did the accused in, respectively, Stone and Dobinson, Taktak
and Burns owe a duty to the deceased person? Why/why not?

9. In Taktak, did the accuseds omission cause death?

10. Were the accused in, respectively, Stone and Dobinson and Taktak
wickedly negligent?

11. Consider the following hypotheticals:

A. When they are walking home from the pub one night, Terry and Alan,
become embroiled in a heated argument. Suddenly, Terry punches Alan in
the head and Alan falls to the ground. He is unconscious. Immediately
regretting what he has done, Terry picks Alan up and begins taking him to
a nearby hospital for treatment. However, in his haste, Terry trips over and
drops Alan. Alan smashes his head on the pavement and dies.

B. When they are walking home from the pub one night, Terry and Alan,
become embroiled in a heated argument. Suddenly, Terry punches Alan in
the head and Alan falls to the ground. He is unconscious. Panicking, Terry
picks Alan up and begins to take him towards their home. In other words,
Terry decides to attempt to conceal the crime. However, in his haste, Terry
trips over and drops Alan. Alan smashes his head on the pavement and
dies.

Le Brun suggests that Terry would not be guilty of unlawful and dangerous
act manslaughter in scenario A, but guilty of that offence in scenario B.
But his conduct is the same in both, isnt it? Is Le Brun a classic case of
the judges ignoring the rules when it suits them? Or are they justified in
treating these cases differently? .

Problem
[continued from the Class 5 problem]

Police are getting nowhere with their inquiries into Stewart, Keli and Tahnees
murders, so Troy is still at liberty. However, with the date for his trial on a number of
other charges growing closer, Troy becomes increasingly anxious, and his mate,
Snake, decides to throw a big party. Weve got some hammer [heroin], says Snake.
Thatll put a smile back on your dial. Troy then makes the following contribution:
Lets get some girls in too. Snake does not disagree.

Troy calls two friends, Michelle and Tara who head over right away. At the party,
Troy disappears into a bedroom with Michelle, who has agreed to participate in sado-
masochistic sex with him. But before anything like that occurs, Troy kindly provides
Michelle with a syringe full of heroin. Michelle administers the drugs to herself. She is
an experienced user of heroin, but, because she is already under the influence of a
number of drugs, Michelle does not realise that Troy has given her a slight overdose.
Troy does not realise this either: hes had twelve beers and three lines of cocaine, so
is not necessarily at his sharpest. Soon enough, Michelle is in a bad way. She is
sweating profusely and moaning. Wanting nothing of this, Troy leaves the bedroom,
and heads to the Bourbon and Beefsteak. I left the bedroom door open, he thinks,
so someonell bloody find her and take her to a hospital, eh? However, nobody
does assist Michelle. A few people pass the bedroom and see her, but just think that
she is chilling out. A few hours after Troy left her, Michelle dies.

27
At about the same time as this happens, Snake is on the line to Troy. Mate, where
are ya? Taras out of it. We cant get a pulse. I think shes overdosing. If we chuck
her out on the street, can you can put her in the back of your car until she wakes
up? Curious about Taras condition, Troy returns to the party. He picks her up and
puts her in the back of a car that he stole earlier in the day. She can chill out there,
he thinks. Tara dies of a heroin overdose two hours later.

On his way home the next day, Troy is feeling depressed again. Just as he gets
through the barriers at Redfern Station, he sees Michael. As usual, mindless
aggression comes first to Troy: What the fuck are you lookin at? he says. Troy only
wants to give Michael a bit of a scare, but Michael is quite timid. Sensing Michaels
vulnerability, Troy decides to scare him a bit more: stupid idiot, he says, Ill smack
your head in. Michael could just run out of the station but he panics and runs down
the stairs to the platform instead. Unfortunately, he trips, falls down 12 stairs, and
lands on his head. Michael dies at the scene.

Discuss Troys liability for manslaughter.



Class 7 Problem-solving and essay writing class


This class has two aims. First, it will give you an opportunity to revise what we have
covered in class so far. Secondly, it will give you a chance to develop your problem-
solving and essay writing skills. Because you will have to write both an essay and a
problem response in the final exam, it is crucial that you get as much experience as
possible in answering these questions. In class, we will consider:

(i) the Problem for the Murder Class (class 5) and/or the Problem for the
Manslaughter class (class 6) (see above); and

(ii) the following Essay Question, which is similar to questions that have
appeared in past exams, and should reinforce some of the material that we
covered in class 6:

[T]he law treats informed adults of sound mind as autonomous beings able to make
their own decisions how they will act
Burns v R [2012] HCA 35, [81] (Gummow, Hayne, Crennan, Kiefel and
Bell JJ)

Critically discuss this proposition with reference to the material that you have
considered in this Unit so far. What are some of the mental state conditions
that this statement assumes and why do courts give only limited consideration
to factors which might impede autonomy?

Please prepare an answer to these questions before class.



28

Class 8 Assault offences


Over the next two classes, we consider a number of assault offences in the Crimes
Act. We will start with the s 61 offence of common assault, noting its physical and
mental elements. We will then discuss some compound assault offences, such as
assault occasioning actual bodily harm (s 59) and the wounding and grievous bodily
harm offences created by ss 33 and 35 of the Act. There will also be some
consideration of the apprehended violence order scheme provided for by the Crimes
(Domestic and Personal Violence) Act.

Reading

(i) Generally

Crimes Act 1900 (NSW), ss 4, 33, 35, 54, 58, 59, 60, 61

Crimes (Domestic and Personal Violence) Act 2007 (NSW), Pts 1, 3, 4, 5

Brown et al (2011), pp. 646-656, 669-677, 682-692

(ii) Common assault

s 61, Crimes Act

(a) Conduct element: the immediacy requirement

Knight v R (1988) 35 A Crim R 314 [Brown, 649-651]

Zanker v Vartzokas (1988) 34 A Crim R 11 [Brown, 651-653]

(b) Conduct element: may assault be omitted or must it be committed?

Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439 [Brown, 654-
655]

(c) Mental state: is recklessness enough? If so, what level of foresight must the
Crown prove? Is inadvertent recklessness a sufficient mental element?

McPherson v Brown (1975) 12 SASR 184 [Brown, 655-656]

Coleman v R (1990) 19 NSWLR 467, 474 (F) 476 (D) (see also Blackwell v
R [2011] NSWCCA 93, [66]-[82])

(d) The temporal coincidence requirement

Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439 [Brown, 654-
655; see also Brown 325]

(ii) Assault occasioning actual bodily harm

s 59, Crimes Act

29
(a) Conduct element: what is meant by actual bodily harm?

R v Donovan [1934 2 KB 498, 509 [noted in Brown, 647]

(b) Mental state: same as for common assault

R v Coulter (1987) 61 ALJR 537 [noted in Howie and Johnson p. 771]

(iii) Wounding offences

ss 33 and 35, Crimes Act

(a) Conduct element: what does wounding mean?

R v Shepherd [2003] NSWCCA 351 [noted in Brown, 648] (see also R v
Vallance (1961) 108 CLR 56, 77 (Windeyer J)

(b) Mental state

ss 33 and 35, Crimes Act clearly state the mental element for the various
offences created by those sections

(iv) Grievous bodily harm offences

ss 4, 33, 35 and 54 Crimes Act

(a) Conduct element: what does grievous bodily harm mean?

s 4, Crimes Act provides a non-exhaustive definition

see also DPP v Smith [1961] AC 290; and Haoui v R [2008] NSWCCA 209
[both are noted at Brown, 648]

(b) Mental state

ss 33 and 35, Crimes Act clearly state the mental element for the various
offences created by those sections. Section 54 does not. The relevant case
here is R v D [1984] 3 NSWLR 29 [noted in Howie and Johnson, p. 758

(v) Assaulting a police officer in the execution of his/her duty

ss 58 and 60, Crimes Act

Which mental state applies to the three conduct elements of this offence?

Reynhoudt v R (1962) 107 CLR 381 [Brown, 673-675]

(vi) Crimes (Domestic and Personal Violence) Act 2007 (NSW),

Note, in particular, the offence created by s 13; and ss 7 and 8 of the Act.


30
Questions

Common assault

1. May assault be omitted or must it be committed?

2. Is the reasoning in Fagan artificial? Was the dissenting judge, Bridge J, more
principled than his colleagues? Or was the majority quite right?

3. Must the Crown prove that the accused intended to perform the conduct
element of assault, or is it enough for it to prove recklessness?
If recklessness is enough, what level of foresight must the Crown prove?

Compound assault offences
4. What does actual bodily harm mean? What is wounding? What is GBH?

5. For the s 35(2) or 35 (4) offence, what level of foresight must the Crown
prove? What type of harm must the Crown prove that the accused foresaw?

6. Is Reynhoudt reconcilable with He Kaw Teh?

Crimes (Domestic and Personal Violence) Act 2007

7. What do Parts 4 and 5, respectively, say about the circumstances in which
ADVOs and APVOs may be made?

8. What is the offence created by s 13? If, in NSW, someone now behaves in
the same way as did Knight or the offender in Zanker v Vartzokas, could they
be convicted of the s 13 offence?



Class 9 Assault offences/Sexual offences


In this class, we will conclude our discussion of assault offences. We will consider the
circumstances in which consent is an answer to an assault charge, and whether it is
within the legitimate scope of the criminal law to determine when individuals can
consent to actual bodily harm. This class considers the policy reasons that have
been advanced for not allowing the defence (if it is one) to be raised where bodily
harm has been inflicted in the course of a sado-masochistic sexual encounter.
Are these reasons persuasive? Did the majority in Brown impermissibly allow the
repugnance that they felt for the appellants behaviour to influence their decision?
Or is this no case of moralistic interference at all?

In the second half of the class, we will begin our discussion of sexual offences.
We will mainly consider the offence of indecent assault, which is provided for by
s 61L of the Crimes Act.

Reading

(i) Generally

Brown et al (2011), pp. 656-665, 719-723
31

Crimes Act 1900 (NSW), ss 61L, 61M, 61N, 61O

(ii) In which circumstances will consent be an answer to an assault charge?

Brown v R [1994] 1 AC 212 [Brown, 656-662]

(iii) Discussion

Compare the judgments of Lord Templeman and Lord Mustill in Brown v R [1994]
1 AC 212. Which of their Lordships was right?

Jack Anderson The right to a fair fight: sporting lessons on consensual harm
(2014) 17(1) New Criminal Law Review 55-75.

(iv) Indecent assault

s 61L Crimes Act 1900 (NSW); see also s 61M

(a) Conduct element: is there a need for a separate assault and act of
indecency?

Fitzgerald v Kennard (1995) 38 NSWLR 184 [Brown, 720-722]

(b) Conduct element: what is an act of indecency?

Harkin v R (1989) 38 A Crim R 296 [noted in Brown, 721-722]

Court v R [1989] 1 A.C. 28 (note what Lord Ackner says at 43 about cases
where the relevant act was ambiguous: i.e. might or might not have been
sexually connotative. See also Harkin v R (1989) 38 A Crim R 296, 302
(Lee CJ at CL)

(c) Mental state: is inadvertent recklessness (as to consent) enough?

Fitzgerald v Kennard (1995) 38 NSWLR 184 [Brown, 720-722]


Questions

Consent and the decision in Brown

1. Is consent always, never or sometimes an answer to a section 59, 33 or
35 charge? See Brown [1994] 1 AC 212.

2. Note the different judicial approaches in Brown. Which approach do you
prefer?

3. Does Lord Templeman allow his obvious feelings of disgust for the appellants
activities lead him to exaggerate the dangers of, and the harm caused by,
their conduct?

4. Should a NSW court follow Brown? Would it be likely to do so?


32
Exam style essay question

5. Lord Mustill expresses an eagerness to achieve a proper balance between
the special interests of the individual and the general interests of the
individuals who together comprise the populace at large. Did he succeed in
achieving, or did he fail to achieve, such a balance? Draw on examples to
develop your response.

Questions

Indecent assault

6. What are the elements of indecent assault?

7. Is there a need for a separate assault and act of indecency?

8. To be an act of indecency, must the accuseds act have had a sexual
connotation? What if it is unclear whether the accuseds act did have a sexual
connotation?

9. Who determines whether the accuseds act was an act of indecency, and
what is the test that is applied?

10. What is the requisite mental element for the non-consent element of the
criminal conduct? Is it enough that the accused was inadvertently reckless or
must the Crown prove that he or she actually knew that the complainant was
not, or might not have been, consenting?

Problem

[continued from the Class 6 problem]

After running away from Redfern Station, Troy decides to go to a pub to have few
quiet ones. Before long, hes had ten schooners and is starting to feel aggressive.
On his way back from the bar, Troy spots Darren, who used to go out with Troys
wife, Jade. Troy walks up to Darren without Darren seeing him, and then tries to push
him in the back. However, Darrens mate, Brad, sees Troy and quickly pulls Darren
out of the way. Bloody idiot, says Brad, as Troy goes hurtling past Darren, spilling
his drink. When Troy gets to his feet, he is furious. He aims a punch at Brad, but
Brad ducks and it fails to make contact. Troy then smashes his beer glass over
Darrens head. There is blood everywhere.

Troy tries to run off but Constable Maguire is in the pub. He runs up to Troy.
Troy punches Maguire in the head, causing bruising, but Maguire subdues him.
Who do you think you are, idiot? A copper or something? says Troy. Yes, actually
I am a cop, says Maguire, and youre under arrest.

Troy is taken back to the police station. Once there, he pretends to sneeze and his
saliva goes all over Constable Maguire. Im so sorry, says Troy sarcastically,
I have a terrible cold. Troy then accidentally steps on the foot of a plain-clothed
officer, Tony. Get off, youre on my foot, says Tony. Fuck off, you can wait, says
Troy and leaves it there for a while. Later on, Troy said that he had no idea that
Tony was a police officer.

33
However, the police know nothing about Troys recent homicide offences, and so
eventually he is granted bail. Troy immediately sends a text message to his wife,
Jade. It contains the following intelligence: Im coming home your dead bitch have a
great last 5 mins of your life :-). Jade is terrified and leaves the house.

Discuss Troys liability for assault offences.



Class 10 Sexual offences (continued)


In this class, we will continue our discussion of sexual offences, and return to our
discussion of how the law regulates consent. We consider the diverse approaches to
the legal regulation of consent to sex: the historical criminalisation of sex between
men; the 1981 abolition of a marital immunity (based on the idea of a contractual
consent to sex within marriage) that, in fact, according to the majority of the High
Court in PGA v The Queen, did not exist in the first place; and contemporary
statutory approaches to consent based on the age of participants, such as the
offences created by s 66C of the Crimes Act.

The primary focus for this class is the sexual assault offences created by ss 61I, 61J
and 61JA of the Crimes Act. How does the Crimes Act deal with the question of
consent? Must the Crown prove that the offender knew/knew that it was possible that
the victim was not consenting? Or will a lesser form of mental state suffice? We will
discuss all of these questions. We will also consider whether it is desirable that there
be an objective mental element for sexual assault.

Reading

(i) Generally

Brown et al (2011), pp. 692-719

Crimes Act 1900 (NSW), ss 61H, 61HA 61I, 61J, 61JA, 61K, 61T, 66C

(ii) The s 61I offence

(a) Conduct element: sexual intercourse

Crimes Act 1900 (NSW), s 61H

(b) Conduct element: without consent

Crimes Act 1900 (NSW), s 61HA(2), (4), (5), (6), (7), (8)

The facts of Papadimitropolous v R (1958) ALR 21 provide an example of the
type of mistake contemplated by s 61HA(5)(b) (although the relevant events
happened well before the enactment of the subsection and in Victoria)

The facts of Aiken v R [2005] NSWCCA 325 provide an example of the type of
mistake contemplated by s 61HA(6)(b) (although the case pre-dates the
enactment of this subsection)

34
See also the very recent High Court case of Gillard v R [2014] HCA 16, [23]-
[29]. Although this case concerns ACT sexual assault provisions, it provides
some clarity as to the requisite mental element is where the complainant
alleges that he or she consented under one of the mistaken beliefs
contemplated by s 61HA(5).

(c) Mental state

Crimes Act 1900 (NSW), s 61HA(3)

Concerning s 61HA(3)(d), see XHR v R [2012] NSWCCA 247, [3] (facts); [49]-
[65] (the reasonable steps question).

(d) Mental state: advertent recklessness

Hemsley v R (1988) 36 A Crim R 334, 334-338

Banditt v R (2005) 224 CLR 262 [noted in Brown, 718-719]

(e) Mental state: inadvertent recklessness

Tolmie v R (1995) 37 NSWLR 660 [Brown, 715-719]

Kitchener v R (1993) 29 NSWLR 696 [noted in Brown, 715]

(iii) Aggravated sexual assault offences

Crimes Act 1900 (NSW), ss 61J and 61JA

See FP v R [2012] NSWCCA 182 at [115]-[126] for a recent statement of what
must be proved if it is to be established that the accused was in company

(iv) No marital immunity

Crimes Act 1900 (NSW), s 61T. This has been the case in NSW since 1981;
however, according to the majority of the High Court in PGA v R (2012) 245 CLR
335, [1]-[66], any legislative concern that the immunity existed at common law
before 1981, was unfounded (Heydon and Bell JJ dissenting at, respectively, [67]-
[163] and [164]-[248]).

Wendy Larcombe and Mary Heath, Developing the Common Law and Rewriting
the History of Rape in Marriage in Australia: PGA v The Queen (2012) 34 Sydney
Law Review 785-807

(v) Sexual intercourse with a child between 10 and 16

Crimes Act 1900 (NSW), s 66C

CTM v R (2008) 236 CLR 440, [1] - [40] (Gleeson CJ, Gummow, Crennan and
Kiefel JJ)


35
(vi) Discussion: should there be a subjective, or an objective, mental element for
sexual assault?

Compare the two Victorian Law Reform Commission Reports [extracted in Brown,
711-715] and note McKinnons position [Brown, 709-710]

See also Morgan v R [1976] AC 182 [Brown, 378-381]

Ian Dobinson and Lesley Townsley, Sexual Assault Law Reform in NSW: Issues
of Consent and Objective Fault, (2008) 32 Criminal Law Journal 152-166

(vii) Further reading

Julia Grix, Laws Truth and Other Lies: Women, Sexual Assault and the Criminal
Justice System (2000) 25 Alternative Law Journal 161-164

Julia Quilter, Re-framing the Rape Trial: Insights from Critical Theory About the
Limitations of Legislative Reform 35 (2011) Australian Feminist Law Journal 23-
56

Natalie Taylor, Juror Attitudes and Biases in Sexual Assault Cases (2007) 344
Trends & Issues in Crime and Criminal Justice (AIC)


Questions

Sections 61I, 61J and 61J A

1. What elements must the Crown prove BRD if it is to obtain a conviction for,
respectively, (i) sexual assault; (ii) aggravated sexual assault; and
(iii) aggravated sexual assault in company?

2. One of the circumstances of aggravation specified by s 61J(2) is that the
offender was in company, so what does the s 61JA offence add? That is,
how does the s 61J offence differ from the s 61JA one?

3. What does in company mean?

4. In Tolmie, do Carruthers J and Kirby P present a persuasive argument to
support their finding that inadvertent recklessness is a sufficient mental
element for sexual assault?

5. In the English case of R v G [2003] UKHL 50, [33] Lord Bingham stated that
the inadvertent recklessness standard approved by the majority of the House
of Lords in R v Caldwell [1982] AC 341 for a statutory arson offence (Lord
Edmund-Davies (with whom Lord Wilberforce agreed) dissenting on this point
at 356-362), was capable of leading to obvious unfairness. Is this true of the
mental element that the NSW Court of Criminal Appeal approved in Tolmie
and Kitchener? Or is there a difference between arson and sexual assault
that justifies an inadvertent recklessness standard for the latter but not the
former?


36
Section 66C and CTM v R

6. Does Hodson (see reading list for class 4) provide a persuasive argument?
That is, is CTM hard to reconcile with He Kaw Teh? And should the High
Court in CTM have started with the presumption that a subjective mental
element applies to the s 66C(3) offence?

No marital immunity (for students who have done a bit of extra reading)

7. Is Larcombe and Heaths critique of the majoritys decision in PGA v The
Queen persuasive?

Objective v subjective standards

8. What are the arguments both for and against an objective mental element for
sexual assault?

9. In Morgan, Lord Cross of Chelsea says that, if one asked the ordinary man
is the man who has intercourse with a woman believing that she consented
to it, though she was not, guilty of rape? the ordinary man would say no.
But why should (some) mens views about what constitutes sexual assault be
decisive?

10. McKinnon says, [i]n the context of the difficulties, ambiguities and
misunderstandings that frequently characterise sexual encounters, some men
assume that their definition of the situation should prevail over that of their
victims. But why should the complainants view of the encounters meaning,
be decisive?

11. In Morgan, Lord Simon said:

A respectable woman who has been ravished would hardly feel that she has
been vindicated by being told that her assailant must go unpunished because
he believed, quite unreasonably, that she was consenting to sexual
intercourse with him.

If his Lordships reasoning is sound, why should it apply only to respectable
women? Is his reasoning sound?

Exam-style essay question

12. Is an objective mental element for sexual assault a reasonable compromise
between the competing principles of community protection and individual
autonomy?

13. The only purpose for which power can be rightfully exercised over any member of a
civilised community, against his will, is to prevent harm to others. His own good,
either physical or moral, is not a sufficient warrant... Over himself, over his own body
and mind, the individual is sovereign.
John Stuart Mill, On Liberty (1859) in Warnock (ed) Utilitarianism (1970) 126 at
135.
To what extent does the legal regulation of consent in sexual assault and
compound assaults reflect Mills argument of the legitimate scope of criminal
law? Discuss with reference to both past and present criminal law.

37
Problem
[continued from the class 9 problem]

Troy makes an agreement with Tracey, an acquaintance whom he meets up with
occasionally for casual sex. Tracey knows that Troy is volatile and unpredictable, and
when he demands that she perform sexual acts that they had not agreed on,
she performs oral sex on him rather than risk a beating.

When asked later whether he thought that Tracey was consenting to this, Troy says,
she has sex with lots of people. Anyway, why would I even turn my mind to that
question? Theres much more interesting stuff to think about Listen, lifes about
looking after yourself. Im not going to start worrying about what other people are
thinking. Thats their business.

Once Tracey has left, Troy goes down to the shops, where he observes Janelle
shoplifting. Troy sidles up to Janelle and places his hand on her shoulder. He says,
naughty girl. I am going to dob you into the owners. However, I might be persuaded
to look the other way if you are nice to me, he says, pointing to his groin. Janelle
knows that if she is caught shoplifting, she will be in breach of her good behaviour
bond. Panicking, she says, yeah, all right, lets go to the toilet. In the toilet, Troy has
penile-vaginal intercourse with Janelle. Troy refuses to allow Janelle to leave the
toilet until she promises not to tell the police about what has happened.

When Troy leaves the shopping centre, he sees Tegan, 17. He approaches her and
makes suggestive remarks. Tegan is repulsed by Troys advance and says, I have
a boyfriend. He wont mind sharing you, says Troy and squeezes Tegans breasts.
Tegan knees Troy in the groin and runs off.

When asked whether he thought that Tegan was consenting to this, Troy says,
superciliously, Well, again, not something that I thought about. I mean, you seem to
need consent before you talk to someone these days. If thats the law, then, in my
opinion, the balance has tilted too far in favour of women.

Troy stops in at the pub on the way home. Not realising that this is a gay bar,
he speaks at length with a man whom he meets there, Ray, about football.
Soon, they have both polished off 10 schooners. Troy goes to sleep at the bar.
He wakes up to find Rays finger inside his anus. Troy is in a slightly dazed state and
doesnt quite realise what is going on. He then realises what has happened and
reacts angrily. Shouldnt I have some say over what happens to my body?
says Troy.

Discuss Troy and Rays liability for sexual offences.



Class 11 Larceny


In this class, we will consider the common law offence of larceny. When discussing
the physical and mental elements of this offence, we will consider the sometimes
tortuous reasoning that has bedevilled the larceny case law. For, although the facts
of larceny cases are often not complex, Lord Roskills admonition in R v Morris [1983]
3 All ER 288, 295 that [t]he law to be applied in simple cases should if possible be
equally simple, has not always been heeded in this branch of the law. We will also
38
discuss some controversial questions that have arisen in larceny cases.
For example, in what circumstances is a transferors apparent consent, vitiated by
mistake? And when can it be said that the accused has taken property dishonestly?
Finally, after noting that the dishonesty requirement is an exception to the rule that
the accuseds motive is relevant only to sentence, we will consider three questions:
why has this exception emerged; how far does it go; and how far should it go?

Reading

(i) Generally

Brown et al (2011), pp. 900-932

Crimes Act 1900 (NSW), ss 4B, 117, 118, 124, 125, 154A

(ii) The conduct and mental elements

Ilich v R (1987) 162 CLR 110, 123 (Wilson and Dawson JJ) [noted in Brown, 907]

(iii) Conduct element: Property capable of being stolen

Croton v R (1967) 117 CLR 326, 327-332 (Barwick CJ) [noted in Brown, 913-914]

Land? [Brown, 910-911] and

Sarah Keenan Property as Governance: Time, Space and Belonging in Australias
Northern Territory Intervention (2013) 76(3) The Modern Law Review 464-493

Cultural property? Tamzyn Chapman Corroboree Shield: A Comparative Historical
Analysis of (The Lack of) International, National and State Level Indigenous
Cultural Heritage Protection (2008) 5(1) Macquarie Journal of International and
Comparative Environmental Law 81

Corpses/parts of corpses? Kelly v R [1998] 3 All ER 741 [extracted in Rush and
Yeo (2006), 66-69]

(iv) Conduct element: In the possession of another

Anic and Others v R (1993) 61 SASR 223 [Brown, 915]

Hibbert v McKernan [1948] 2 KB 142 [noted in Brown, 916]

Williams v Phillips (1957) 41 Cr App R 5 [noted in Brown, 915]

(v) Conduct element: The property is taken and carried away

Wallis v Lane [1964] VR 293 [noted in Brown, 916]

Potisk v R (1973) 6 SASR 389 [noted in Brown, 916]

(vi) Conduct element: Without the possessors consent

Kennison v Daire (1986) 60 ALJR 249 [Brown, 917-918]

39
Potisk v R (1973) 6 SASR 389, 391-392 (facts), 399-404 (disposition) [extracted in
Rush and Yeo, 78-84]

Ilich v R (1987) 162 CLR 110, 124-129 (Wilson and Dawson JJ; Deane J generally
agreeing at 143). Note especially the fundamental mistakes that, according to
their Honours, have the effect of vitiating consent (126-127) and the money
exception (128-129).

(vii) Mental element: Intention permanently to deprive

Holloway v R (1848) 1 Den 370 [noted in Brown, 919]

Phillips v Strong (1801) 2 East PC 662 [noted in Brown, 919]

Foster v R (1967) 118 CLR 117 and the effect of s 118 Crimes Act 1900 (NSW)
[Brown, 917-918]

Smails v R (1957) WN (NSW) 150 [noted in Brown, 921-922]
Weatherstone v R (1987) 8 Petty Sessions Review 3729 [Brown, 921-922]

(viii) Mental element: Fraudulently/dishonestly

Weatherstone v R (1987) 8 Petty Sessions Review 3729 [Brown, 923-924]

Feely v R [1973] 1 QB 530 [noted in Brown, 922; see also 948-949]

Ghosh v R [1982] 1 QB 1053 [noted in Brown, 924; see also 949-950]

Peters v R (1998) 192 CLR 493; Macleod v R (1998) 192 CLR 493 [noted in
Brown, 924; see also 951]

But note s 4B Crimes Act 1900 (NSW). Although the s 4B definition does not apply
to the (common law) offence of larceny, it is a legislative endorsement of the
Ghosh test, and a rejection of the Peters test. Accordingly, it might add to any
doubts that exist about how dishonesty in a larceny case is proved.

(ix) The claim of right defence

Fuge v R (2001) 123 A Crim R 310 [Brown, 925-926]

(x) Temporal coincidence

Compare Potisk v R (1973) 6 SASR 389 [noted in Brown, 325] with R v Riley
(1853) 1 Dears CC 149

(xi) Other relevant offences

Crimes Act 1900 (NSW), ss 124, 125, 154A

(xii) Discussion:
It has been noted that the dishonesty requirement makes the accuseds motive
relevant to the accuseds liability. Why do you think an exception is made to the usual
rule that motive is relevant only to sentence? Was Lord Lane CJ in Ghosh rightly
anxious to ensure that this exception did not grow too wide: i.e. did not allow Robin
40
Hood or those ardent vivisectionists who remove animals from vivisection
laboratories to escape criminal liability?

Norrie (2001), pp. 41-43

Brown, 317-318 (extracts from Norries work, which explain the reasons why
motive is usually held to be irrelevant to liability)

Ghosh v R [1982] 1 QB 1053, 1063-1064 [Brown, 949-950]

Peters v R (1998) 192 CLR 493, 542-554, esp. 552-553 (Kirby J) [extracted in
Rush and Yeo (2006), 105-112]

Martin Wasik, Mens Rea, Motive and the Problem of Dishonesty in the Law of
Theft [1979] Criminal Law Review 543

Andrew Halpin, The Test for Dishonesty [1996] Criminal Law Review 283

Alex Steel, The Appropriate Test for Dishonesty (2000) 24 Criminal Law Journal
46

Questions

1. If I remove money from someones bank account, can I be convicted of
larceny?

2. Is property that is unlawfully in someones possession, in the possession of
another, for the purposes of the law of larceny?

3. Can a movement of the mind amount to a taking?

4. Did the teller consent in Potisk? Did the bank consent to the withdrawal of the
money in Kennison v Daire? Are these cases reconcilable with one another?

5. What are the fundamental mistakes that Wilson and Dawson JJ in Ilich said
have the effect of vitiating consent? Will a mistake as to the quantity of money
handed over, vitiate consent?

6. In Ilich, Wilson and Dawson JJ state that the transferors apparent consent
will be negated where it is given only because of one of three fundamental
mistakes.

In Potisk, on the other hand, Bray CJ approves the following remarks of Brett
in Middleton (1873) LR 2 CCR 38:

Consent or non-consent is an action of the mind; it consists exclusively of the
intention of the mind If it be said that a man intends to part with the
property in a thing which he delivers to another, the meaning of the words is
that he intends that the other should take the thing and keep it as his own;
and it seems a contradiction in sense to say that the thing so delivered is
taken from him without his consent

Which of these approaches is preferable?

41
7. Note the similarity between Wilson and Dawson JJs approach and s 61HA(5)
of the Crimes Act (see class 10). Has the person who consented because of
a mistaken belief, made a free choice to transfer property/engage in sexual
activity? Is such a persons decision any more autonomous than that of the
intoxicated deceaseds decision to take methadone in Burns (see class 6)?

8. Is the effect of s 118 of the Crimes Act that a person can be convicted of
larceny even though they were only borrowing the property?

9. Smails and Weatherstone concern accused people who changed the nature
of the possessors property. Was there an intention permanently to deprive?

10. What does Feely say about the dishonesty requirement? What is the
Ghosh test? Did Toohey and Gaudron JJ (Kirby J very reluctantly agreeing) in
Peters, follow Ghosh? Is the Peters test applicable when larceny is charged?

11. In Peters, Kirby J said (at p. 552):

To the extent that the accused puts forward idiosyncratic, bizarre, eccentric
or peculiar beliefs to support an assertion of a want of dishonesty, such
considerations go, in my opinion, only to the plausibility of the accuseds
evidence. If the tribunal of fact accepts the evidence and it sustains an
absence of dishonesty at the relevant time, it will sustain an acquittal where
dishonesty is an essential ingredient of the offence. Fear of hordes of modern
Robin Hoods, galloping into the court rooms of the nation, in company with
anti-vivisectionists, environmentalists and other people affirming minority
beliefs (so often raised as a spectre in these cases) should neither be
exaggerated nor overstated.

Should the accuseds motive be taken into account to a greater extent than it
currently is, when determining whether he or she should be held liable for
larceny?

12. In which circumstances will the claim of right defence be made out?
Once the defence discharges the evidential burden, who has the onus of
proof?

Problem
[continued from the class 10 problem]

The hunt for the person who has been responsible for a number of recent homicides
and assault and sexual assault offences gets a bit more attention from the press than
Troy feels comfortable with, so Troy decides to lie low for a while. In Troys local area
lives Blake, who is a member of the long-term unemployed. Fortunately for Blake,
though, he has found that he can supplement his meagre pension payments with the
proceeds of drug sales. Troy knows that Blake has a big stash of marijuana in his
shed. He also believes that Blake ripped him off on a drug deal years before and
that, as a result, Blake owes him $300. So, when Troy is at Blakes house one day
having a few beers and a couple of cones of marijuana, he slips out to the shed and
takes a big bag of marijuana. The prick owes me that, anyway, thinks Troy,
conveniently overlooking the fact that the marijuana that he has taken is worth
approximately $5000.

When Troy gets back inside he notices a gun in Blakes living room that he has
always coveted. Troy thinks, I wouldnt mind doing a bit of target practice tonight,
actually. Ill give it back to him when I come around for breakfast bongs tomorrow
42
morning. Hes so stoned he wont notice that its missing. Troy takes the weapon
and puts it in his bag. Blake is so out of it that he doesnt even notice Troy leave.
As Troy goes out the door, he picks up $20 from a jar near Blakes telephone.
Gotta eat, he says, Ill pay him back tomorrow when I return the gun.

Troy goes into the shop at the end of Blakes street and buys himself a packet of
Winnie Blues cigarettes. Troy pays over the $20 that he took from Blakes jar, but
the stores elderly proprietor, Raymond, mistakenly hands Troy $50 change. Troy
realises immediately what has happened. Stupid old prick, he thinks, and pockets
the $50 bill. Troy then goes down to the TAB, where he puts the $50 on a greyhound,
Thompsons Prize. It wins narrowly. Troys payout is $400, but the woman behind
the counter, Michelle, accidentally gives him an extra $50 bill. Troy only notices this
once he gets out of the TAB half an hour later. Awesome, he thinks, that goes
some way to paying me back for that big loss that I had on the pokies last week.

On his way home, Troy hears a man talking about how a nearby ATM is
malfunctioning. Its spitting out too much money and I dont think that you even need
to have a card, he says. Troy sizes up the situation quickly. He shoves his Centrebet
card into the machine and types in a PIN that he invents on the spot. The machine
spits out $400.

Discuss Troys liability for larceny.



Class 12 Extending criminal liability: Complicity


As Lord Bingham noted in R v Rahman and others [2008] 3 WLR 264, 267-268,
because [m]any, perhaps most, crimes are not committed single-handed,
the criminal law must develop a theory of accessory liability which will embrace
those whose responsibility merits conviction though they are not the primary
offenders. In this class, we discuss, and expose to critical scrutiny, the rules that the
criminal law has developed for the attribution of liability to secondary participants.

After considering the liability of those who aid, abet, counsel or procure an offence
(that is, principals in the second degree and accessories before the fact) and the
doctrine of joint criminal enterprise, we will discuss the controversial extended form of
the joint enterprise doctrine. Are the criticisms of the well-established foresight of
possibility test, justified? Would the alternative tests recently favoured by the NSW
Law Reform Commission on one hand, or Kirby J in Clayton and Hartwick v R on the
other, be insufficiently protective of the community? And is any illogicality in this area
of the law, unavoidable?

Reading

(i) Generally

Brown et al (2011), pp. 985-1025

(ii) Joint criminal enterprise

Osland v R (1998) 197 CLR 316 [Brown, 987-991]

43
(iii) Extended joint criminal enterprise

McAuliffe v R (1995) 183 CLR 108 [Brown, 998-1001]

Gillard v R (2003) 219 CLR 1 [noted in Brown, 1003-1004; extracted in Waller and
Williams, 705-708]

Taufahema v R (2007) 228 CLR 232 [noted in Brown, 1006]

(iv) Accessorial liability

Phan v R [2001] NSWCCA 29 [Brown, 1013-1014]

Giorgianni v R (1985) 156 CLR 473 [Brown, 1018-1021]

(v) Disussion: should the doctrine of extended joint criminal enterprise be abolished,
modified or retained in its current form?

The status quo: Clayton and Hartwick v R (2006) 81 ALJR 439, 441-445 (the
majority) [extracted in Waller and Wlliams, 708-710]

Modification: NSW Law Reform Commission, Complicity, Report No 129, (2010),
73-106 and 126-138 (especially 100-106 and 126-138)

Modification a virtual certainty test: Clayton and Hartwick v R (2006) 81 ALJR
439, 445-465 (Kirby J) [noted in Brown, 1008-1010]

(vi) Further reading (there is extensive academic literature concerning complicity; the
following are among the more distinguished contributions)

(a) Australia

Simon Bronitt, Defending Giorgianni Part One: The Fault Required for
Complicity (1993) 17 Criminal Law Journal 242-263

Simon Bronitt, Defending Giorgianni Part Two: New Solutions for Old
Problems in Complicity (1993) 17 Criminal Law Journal 305-318

Charles Cato, Foresight of Murder and Complicity in Unlawful Joint Enterprises
Where Death Results (1990) 2 Bond Law Review 182-206

Geoff Eames, Tackling the complexity of criminal trial directions: What role for
appellate courts? (2007) 29 Australian Bar Review 161, 170-179

Stephen Gray, I Didnt Know, I Wasnt There: Common Purpose and the
Liability of Accessories to Crime (1999) 23 Criminal Law Journal 201-217

Stephen Odgers, Criminal Cases in the High Court of Australia: McAuliffe and
McAuliffe (1996) 20 Criminal Law Journal 43-47

(b) England

Beatrice Krebs, Joint Criminal Enterprise (2010) 73(4) Modern Law Review
578-604

44
Andrew Simester, The Mental Element in Complicity (2006) 122 Law Quarterly
Review 578-601

John Smith, Criminal Liability of Accessories: Law and Law Reform (2007) 113
Law Quarterly Review 453-467

Questions

Accessorial liability

1. To be convicted, must a person charged as a principal in the second degree
or an accessory before the fact have performed a positive act of assistance or
encouragement? Or is, for example, non-accidental presence at the scene of
the principal offenders crime, enough?

2. Is it enough that the secondary offender was reckless that is, assisted or
encouraged the principal, realising that it was possible/probable that the
principal would commit all of the essential elements of the offence?

J oint criminal enterprise

3. What is the test for what Sir Robin Cooke once described as plain vanilla
joint criminal enterprise? Must the agreement between the parties have been
express? Is there overlap between this doctrine and accessorial liability?

Extended joint criminal enterprise

4. What is the McAuliffe test?

5. Are Kirby Js criticisms of the McAuliffe test, justified? Would adoption of the
virtual certainty test that he proposes effectively be to abolish the doctrine?
If so, is this desirable?

6. Is Kirby Js statement in Clayton and Hartwick that the McAuliffe test is a
form that is an exception to the normal requirements of criminal liability,
difficult to reconcile with his Honours decisions in Lavender (see class 6) and
Tolmie and Kitchener (see class 10)?

7. Kirby J argues that the McAuliffe test introduces a serious disharmony into
the law. In the English case of Powell and Daniels, Lord Hutton
acknowledged the force of this argument, but then stated that the rules of the
common law are not based solely on logic but relate to practical concerns
and, in relation to crimes committed in the course of joint enterprises, to the
need to give effective protection to the public against criminals operating in
gangs. And, as the supporters of illogicality in the criminal law are wont to do,
he proceed to cite with approval Lord Salmons famous statement in Majewski
(see class 19 below). Does the current test introduce serious harmony into
the law? If so, does this matter? Does Lord Hutton place too great an
emphasis on community protection? Does Kirby J place too little emphasis on
community protection?

8. Kirby J suggests (see [66]-[68] of Clayton) that the unedifying circumstances
of that case led the majority almost peremptorily to dismiss the appellants
argument, and to fail to adhere to basic principle? Is this fair?

45
9. Is the solution proposed by the NSW Law Reform Commission a sensible
one?

10. Must the Crown prove a foundational offence? Compare Miller (1980)
32 ALR 321 with Taufahema (2007) 228 CLR 232 (see pp. 1005-1007 of
Brown). Might the High Court in Miller have cut a few corners because of the
unedifying circumstances of that case?


Problem
[continued from class 11 problem]

After taking possession of the $400 from the ATM, Troy decides to ring his mate,
Snake. Mate, Ive had deadset the luckiest day today, eh? he informs Snake over
the phone. Im cashed up; Blake was kind enough not to object when I relieved him
of a large quantity of marijuana haha; and I have a bloody gun, too, if anyone gives
me any shit. He continues, come over to my place and we can get stoned.

Soon enough, Snake, Troy and Snakes 18 year-old cousin, Rayden, are drinking
together in the VIP pokies lounge of their local. Unfortunately, though, the gambling
system that Troy has developed is not working today and, pretty quickly, he,
Snake and Rayden have lost most of the $870 that Troy had obtained from various
sources earlier in the day. It is at this stage that Troy notices that Nicole, who is at
the poker machine next to Snake, has carelessly left her handbag sitting on the floor
beside her. She is talking loudly on her mobile, and not really paying attention to her
immediate surroundings. Troy catches Snakes eye. Language is unnecessary. As
Rayden stares blankly at the screen in front of him and Nicole is occupied with
Instagram,Troy quickly takes Nicoles purse from her bag. He and Snake walk out of
the room and into the nearby mens toilet. A hundred bucks, says Troy, upon
inspecting the contents of the purse. Oh well, better than a poke in the eye, Snake
replies, cheerfully. Troy then stuffs the money back into the purse, and shoves the
purse into his pocket.

But when Troy and Snake arrive back in the pokies lounge, there is trouble. Nicoles
boyfriend, Trent, and his mate, Boyd, are accusing Rayden of taking Nicoles purse.
Rayden is hotly denying it. Now that Snake and Troy have returned, Rayden decides
no longer to rely on his powers of verbal persuasion. As Snake runs up to Boyd and
punches him in the face, Rayden smashes a bar stool over Trents head. Troys
response is not an entirely peaceful one either. He pulls the gun out of his bag, and
points it at Boyd. At this juncture, Nicole lunges at Troy. He loses balance
momentarily, but quickly regains control. Troy fires the gun wildly in Nicoles
direction. The bullet enters Nicoles heart, killing her instantly. Trent also dies at the
scene.

Discuss Troy, Snake and Raydens criminal liability for: (i) larceny; (ii) Trents
death; (iii) Nicoles death; and (iv) Boyds injuries (assume that Snakes punch
caused a deep gash on Boyds face).



46

Class 13 Problem-solving and essay writing class


This class has two aims. First, it will give you an opportunity to revise what we have
covered in class so far. Secondly, it will give you a chance to develop your problem-
solving and essay writing skills. Because you will have to write both an essay and a
problem response in the final exam, it is crucial that you get as much experience as
possible in answering these questions. In class, we will consider:

(i) the Problem for the Complicity class (class 12). This problem also, of course,
covers material that we have considered in other classes; and

(ii) the following Essay Question, which comes from a past exam, and should
reinforce some of the material that we covered so far:

It is neither moral nor just to convict a defendant on the strength of what
someone else would have apprehended if the defendant himself had no such
apprehension
(Lord Bingham, 2003)

Critically discuss this claim with reference to at least two offences that
you have studied in this course.

Please prepare an answer to these questions before class.



Class 14 Provocation


The partial defence of provocation is very controversial. It has been abolished in
Tasmania, Victoria, Western Australia and New Zealand. It has been replaced with
the loss of control defence in England and Wales. And, following disquiet expressed
by some sections of the media about two high-profile NSW cases in which
provocation was successfully raised, the NSW government in 2012 established a
Legislative Council Select Committee, to examine the partial defence.
This Committee has recommended not abolition, but reform; and the resulting Bill,
which limits the circumstances in which provocation can be raised has recently been
passed by state parliament. In this class, we will examine the current law concerning
provocation. We will then discuss whether the partial defence should be abolished or
retained in its amended form.

Reading

(i) Generally

Brown et al (2011), pp. 512-515 (about defences generally), 565-598

Crimes Act 1900 (NSW), s 23

(ii) Actual loss of self-control; immediacy of response

Chhay v R (1992) 72 A Crim R 1 [Brown, 574-576]

47
(iii) In response to any conduct of the deceased towards or affecting the accused:
hearsay provocation

Davis v R (1998) 100 A Crim R 573 [Brown, 568-571]

Quartly v R [1986] 22 A Crim R 252

(iv) Deceaseds conduct must have been a serious indictable offence

Crimes Act 1900 (NSW), s 4

(v) The ordinary person test

Stingel v R (1990) 171 CLR 312 [Brown, 578-584]

Masciantionio v R (1995) 183 CLR 58 [Brown, 585-586]

Green v R (1997) 191 CLR 334 [Brown, 589-592]

(iv) Reform proposals

The immediate impetus for the NSW governments establishment of the
Legislative Council Select Committee was provided by two controversial cases: R
v Singh [2012] NSWSC 637 and R v Won [2012] NSWSC 855

NSW Legislative Council Select Committee, The Partial Defence of Provocation
(Report, April 2013), especially 191-210

Crimes Amendment (Provocation) Act2014 (NSW):

(v) Discussion:
Should the partial defence be abolished? In addressing this question, reflect on the
wider social rationale for the defence and the manner in which changes in social
attitudes have motivated its development.

Graeme Coss, Provocations Victorian Nadir: The Obscenity of Ramage (2005)
29 Criminal Law Journal 133-138

Graeme Coss, The Defence of Provocation: An Acrimonious Divorce from Reality
(2006) 18 Current Issues in Criminal Justice 51-78

Thomas Crofts and Arlie Loughnan, Provocation: The Good, The Bad and the
Ugly (2013) 37 Criminal Law Journal 23-37

(vi) Masciantonio and race

Stanley Yeo, Power of Self-Control in Provocation and Automatism (1992) 14
Sydney Law Review 3-22

Ian Leader-Elliott, Sex, Race and Provocation: In Defence of Stingel (1996) 20
Criminal Law Journal 72-96

Stanley Yeo, Sex, Ethnicity, Power of Self-Control and Provocation Revisited
(1996) 18 Sydney Law Review 304-322

48
(vii) The Green controversy

Graeme Coss, Revisiting Lethal Violence by Men (1998) 22 Criminal Law Journal
5-9

Tom Molomby, Revisiting Lethal Violence by Men A Reply (1998) 22 Criminal
Law Journal 116-118

Bronwyn Statham, The Homosexual Advance Defence: Yeah, I killed him, but he
did worse to me Green v R (1999) University of Queensland Law Journal 301-
311

(viii) Further reading

Judicial Commission of NSW, Partial Defences to Murder in NSW 1990-2004
(Research Monograph No. 28, 2006), 29-48

Jenny Morgan, Provocation Law and Facts: Dead Women Tell No Tales, Tales
Are Told About Them (1997) 21 Melbourne University Law Review 237-276

Alex Reilly, Loss of Self Control in Provocation (1997) 21 Criminal Law Journal
320-335


Questions

1. For provocation to be successfully raised, which things must the jury be
satisfied are reasonably possible? Must the accused discharge an
evidential burden?

2. Must the provocative conduct have occurred immediately before the
act/omission causing death?

3. What did Gleeson CJ say in Chhay (1992) 72 A Crim R 1 about the
relevance of any lapse of time between the provocative conduct and the
act causing death to the question of whether it is reasonably possible that
the accused experienced a loss of self-control?

4. What if the accuseds loss of self-control was based on hearsay? Was this
loss of self-control induced by the deceaseds conduct towards or
affecting the accused?

5. In Stingel, the High Court says that when applying the objective test,
two questions have to be answered. What are those two questions?

6. Which of the accuseds personal (or subjective) characteristics are taken
into consideration when answering these two questions? Is McHugh Js
argument in Masciantonio a good one? Is it racist?

7. In Green, the question for the High Court was whether the trial judge,
Abadee J, was correct to take provocation away from the jury. What did the
majority say about this? What did the minority say?

49
8. Is Green a non-violent homosexual advance (NHA) case? Was the furore
that it caused, justified? Would Green be decided differently today?
(see s 23(3)(a))

9. Should the partial defence be abolished, or do cases such as DPP v
Camplin [1978] AC 705 suggest that it sometimes is partly understandable
to kill in anger?

10. Discuss the new position on what was called self-induced provocation.


Problem
[continued from class 13]

Troy believes that Diesel has always had a thing for Troys wife, Jade. Troy hates
Diesel both because of this perception, and also because Diesel goes out of his way
to antagonise Troy. So, when Troy finds out that Diesel will be at Troys other mate,
Snakes, next party, Troy becomes a bit paranoid. If he gives me any shit, Ill smash
him, says Troy truthfully.

At the party, Diesel goes straight up to Troy. What have here, eh? Troy the tragic
dickhead, says Diesel. Geez, mate, that wife of yours is pretty tasty. I should
know. Ive been screwing her behind your back, you fucken moron. In fact, Diesel
has been doing nothing of the sort, but this doesnt stop Troy feeling himself getting
very angry.
It was like a jug boiling, he says later on, grasping for the right words. He, ahh, got
me riled up wound me up and up and up and after a while I lost it. Sayin shit
about him and me missus. Who wouldnt lose it?

Troy runs out to his car, picks up a knife, comes back into the party and stabs Diesel
fatally in the chest. He then speeds away from the party towards the house of a man,
Gary, who is reputed to be a paedophile. Id been thinking about it obsessively for
weeks actually, says Troy later. What he done to kids. I just didnt want him
anywhere near my kids. It just made me lose it and think that he had to be wiped
off the face of the earth. In fact, Gary is not a paedophile at all. Troys misinformation
has come from his mate, Snake, who untruthfully told Troy just the other day that
Gary raped him when Snake was twelve. Troy tricks Gary into letting him into his
house, corners him and stabs him to death. He stands over his body screaming
Rock Spider! somewhat hysterically.

Meanwhile, Jade is at home. When Troy returns, he is in a black mood.
Pulling Jades hair, he screams, that was all your fault, slut. All your fault. I cant
believe that you were screwing Diesel behind my back. I will kill you one day because
of this. But Troy is feeling a bit sick. In fact, the room is spinning. This is possibly
because Jade has been secretly mixing sedatives into Troys food. For some reason,
they have only just kicked in now. When Troy lapses into unconsciousness,
Jade fetches an axe from the back shed. She sits on the end of the bed for
three hours, wondering what to do

Can Troy successfully raise the partial defence of provocation to a charge of
murdering (i) Diesel and/or (ii) Gary?

Might Jade be able to successfully raise provocation if she ended up killing
Troy with the axe?

50

Class 15 Self-defence and Excessive self-defence


In this class, we will discuss the full defence of self-defence and the partial defence
of excessive self-defence. As with provocation, the law of self-defence has been
criticised for being gender-biased. While the law has responded to these criticisms
for example, it is no longer necessary for the accused to have responded to an
imminent threat it continues to be difficult to explain to juries why it was necessary
in self-defence for a victim of domestic violence to kill her or his batterer at a time
when she or he was not under attack. It is now well-established that evidence that
the accused had Battered Woman Syndrome may be adduced for the purpose of
establishing that she or he was acting in lawful self-defence. But BWS, too, has been
trenchantly criticised in the academic literature.

Reading

(i) Generally

Brown et al (2011), pp. 598-615

Crimes Act 1900 (NSW), ss 418, 419, 420, 421, 422

(ii) The statutory scheme

Crimes Act 1900 (NSW), ss 418, 419, 420, 421, 422

See also Crawford v R [2008] NSWCCA 166 (relevant to s 422)

R v Allen [2013] NSWSC 614 (recent judge alone trial where the act causing
death was done in defence of another)

(iii) The test for self-defence

R v Katarzynski [2002] NSWSC 613 [Brown, 603]

For the old common law position, see Zecevic v DPP (Vic) (1987) 162 CLR 645
[noted in Brown, 599-600]; see also Viro v R (1978) 141 CLR 88 [noted in Brown,
599]

(iv) Relevance of the accuseds self-induced intoxication

R v Katarzynski [2002] NSWSC 613 [Brown, 605]

Compare with the common law position: R v Conlon (1993) 69 A Crim R 92
[Brown, 604]. Note also what Hunt CJ at CL says at p. 95 (A Crim R) about the
need, in a homicide case where self-defence has been raised, to identify the act
causing death with precision.

The standard jury direction sums up the legal position where an accused raises
self-defence and claims that he or she was voluntarily intoxicated at the time of
the relevant events:
http://www.judcom.nsw.gov.au/publications/benchbks/criminal/self-
defence.html#p6-470

51
(v) The need for a nexus between the offence and the threat (and the difference
between the defences of self-defence, duress and necessity)

Burgess and Saunders v R [2005] NSWCCA 52 [Brown, 605-608]

(vi) Discussion:
Are the criticisms that have been made of battered woman syndrome, justified?
Should a provision like s 9AH of the Crimes Act (Vic) be introduced in NSW?

Elizabeth Sheehy et al, Defending Battered Women on Trial: the Battered Woman
Syndrome and its Limitations (1992) 16 Criminal Law Journal 369 [Brown, 613-
614]

Osland v R (1998) 197 CLR 316, [157] [169] (Kirby J)

Julie Stubbs and Julia Tolmie, Race, Gender and the Battered Women Syndrome:
An Australian Casse Study (1995) 8 Canadian Journal of women and the Law
122-158

Graeme Coss, Killing Violent Men (2002) 26 Criminal Law Journal 133-138

Angelica Guz and Marilyn McMahon, Is Imminence Still Necessary? Current
Approaches to Imminence in the Laws Governing Self-defence in Australia (2011)
31(2) Flinders Law Journal 79-124

R v Hickey (1992) 16 Criminal Law Journal 271-273 [the first NSW case in which
evidence of BWS was held to be admissible]

Lavallee v R [1990] 1 SCR 852 [noted in Brown, 611-612]

Ian Leader-Elliott, Battered but not Beaten: Women Who Kill in Self-Defence
(1993) 15 Sydney Law Review 403-460

Julie Stubbs and Julia Tolmie, Falling Short of the Challenge? A Comparative
Assessment of the Australian Use of Expert Evidence on the Battered Woman
Syndrome (1999) 23 Melbourne University Law Review 709-748

Kellie Toole, Self-defence and the Reasonable Woman: Equality Before the New
Victorian Law (2012) 36 Melbourne University Law Review 250-286


Questions

The statutory scheme

1. What is the test for self-defence in NSW? How does the evidential burden
sit? Once the evidential burden is discharged, what two things must the
jury be satisfied are reasonably possible before the defence is successfully
raised?

2. What does s 420 say about the availability of self-defence to a charge of
murder where the killing has been done to protect property or prevent
criminal trespass?

52
3. What is excessive self-defence? To what charge(s) may it be pleaded?
If the accused successfully raises excessive self-defence, is he or she
entitled to be acquitted? What must the jury be satisfied is reasonably
possible for excessive self-defence to succeed?

4. Can an accused person still rely on self-defence or excessive self-defence
if the conduct to which they were responding was either (a) lawful or
(b) conduct for which the victim was not criminally responsible?

Katarzynski and the relevance of self-induced intoxication

5. What does Howie J say in Katarzynski about whether self-induced
intoxication can be taken into account when considering each limb of the
current test for self-defence? Does this differ from what Hunt CJ at CL said
in Conlon about whether the fact that the accused was blind drunk and
stoned as a maggot could be taken into account when applying the
second limb of the common law test for self-defence?

6. In which ways are the second limb of the tests for provocation and self-
defence similar to one another?


Burgess and Saunders

7. Were the protestors acting in self-defence? How do the defences of self-
defence, necessity and duress differ from one another?

BWS

8. Is BWS a defence? Is BWS evidence relevant and admissible to the
question of whether the accused was acting in self-defence?

9. What are the criticisms of BWS? Are they persuasive? Should a provision
similar to s 9AH of the Crimes Act 1958 (Vic) be introduced in NSW?

Exam-style essay question

10. Does the contemporary law of self-defence adequately address critique
that the defence better meets the circumstances of male rather than
female offending? Include in your response a consideration of BWS.


Problem
[continued from Class 15]

Jade decides not to kill Troy as she still thinks that they might still have a future
together. But Troys behaviour is becoming increasingly volatile. He is regularly
violent towards Jade. He is also possessive and controlling and has told Jade, many
times, that if she ever tries to leave him, he will hunt [her] down and make [her] pay
the ultimate price. One night during a violent attack from Troy, Jade is fearful for her
life. When Troy finally falls asleep that night, Jade creeps out to the shed again.
She picks up the axe and sits on the end of the bed

53
However, Jade just cant find it in her to kill Troy. His violence continues. The only
way that Jade can think of to calm Troy down is to encourage him to smoke the
marijuana that he took from Blakes shed. Troy is happy to oblige.

Little does Troy know that Diesels brother, Cody, has vowed to avenge Diesels
death. One night, Troy has smoked many cones of marijuana when he hears a knock
at the door. Feeling paranoid, he tries to ignore it. Suddenly, though, two men in
balaclavas are in his house. They are wielding knives. Well kill you, you prick.
This is for Diesel, shouts Cody. They run at Troy, but then see that he has a gun.
Both immediately back off and head for the door. However, Troy is so stoned that
he does not see that they are running away from him. He shoots Cody twice in the
back, killing him instantly. Codys co-offender is able to escape without being shot.

Later on, Troy tells police that he was smashed off my nut, out of it, stoned as a
bloody rock, whatever it was him or me. Yeah, but you shot him in the back, Troy,
theres no getting away from that, says Constable Maguire. 20-20 hindsight is a
great thing, says Troy sagely, but you look at it through my eyes. I have a mad prick
on the rampage towards me ahhh look, yeah, he was runnin away but it didnt
seem like that. I was hammered, trying to relax after all the shit thats been goin
down lately. I had to make a judgment call.

Troy is taken into custody and refused bail.

Can Troy rely on self-defence or excessive self-defence as a defence to a
charge of murdering Cody? Can Troy be convicted of common assault for
pointing the gun at the other intruder? Imagine that Jade had killed Troy as he
slept. Could she rely on the defence of self-defence to a charge of murder?



Class 16 Duress and Necessity


It is rare for an accused person to rely on either of the, related, defences of duress or
necessity. Nevertheless, these defences are important - partly because of their
limited scope of application. Have the judges been right to ensure that these
defences are available only in exceptional circumstances? Or have they been over-
cautious? We will discuss necessity as a defence to murder; escaping from lawful
custody; and abortion offences. We will then discuss duress. While this defence can
never be raised as a defence to a murder charge in England, and perhaps in NSW,
it is questionable whether this rule is justified.

Reading

(i) Generally

Brown et al (2011), pp. 615-643

(ii) Necessity

(a) Murder

Dudley and Stephens v R (1884) 14 QBD 273 [Brown, 616-618]

54
Note this short story, which was written many years before the events the
subject of the murder charges in Dudley and Stephens: Edgar Allen Poe, The
Narrative of Arthur Gordon Pym (1838)

Re A (Children) [2000] EWCA Civ 254 [noted in Brown, 624]

(b) Escaping from lawful custody or attempting to do so

Rogers v R (1996) 86 A Crim R 542 (1884) 14 QBD 273 [Brown, 619-622]

Loughnan v R [1981] VR 443 [noted in Brown, 622-623]

(c) Abortion

R v Wald (1971) 3 NSWDCR 25 [noted in Brown, 626]

CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47 [Brown, 626-628]

R v Sood (Ruling No 3) [2006] NSWSC 762, [29]-[42] [noted in Brown, 628]

R v Davidson [1969] VR 667 [noted in Brown, 622-623]

R v Bourne [1939] 1 KB 687 [noted in Brown, 628]

(iii) Duress

Lawrence and others v R [1980] 1 NSWLR 122 [Brown, 630-631]

Abusafiah v R [Brown, 637-640]

Taiapa v R [2009] HCA 53 [Brown, 633-636]

(iv) BWS and duress

Runjanjic and Kontinnen v R (1991) 56 SASR 114 [noted in Brown, 642]

(v) Discussion: should duress ever be available as a defence to a charge of murder?

Compare the views of Lord Salmon in Abbott v R [1977] AC 755 with those of Lord
Edmund-Davies and Lord Wilberforce in the same case. Whose argument is the
more persuasive?

See also Howe and others v R [1987] 2 WLR 568; DPP v Lynch [1975] AC 653;
and the NSW case of McConnell and others v R [1977] 1 NSWLR 714

Conor Gearty, Howe to be a Hero (1987) 46(2) Cambridge Law Journal 203-205

Helen Milgate, Duress and the Criminal Law: Another About Turn by the House of
Lords (1988) 47(1) Cambridge Law Journal 61-76


55
Questions

Necessity and Murder

1. Is Dudley and Stephens authority for the proposition that necessity is never a
defence to a charge of murder? In Howe [1987] 2 WLR 568, Lord Mackay
stated that neither duress nor necessity can be pleaded as a defence to a
murder charge:

...because of the supreme importance that the law affords to the protection of
human life... and that it seem[s] repugnant that the law should recognise in
any circumstance, however extreme, the right to choose that one innocent
person should be killed rather than another.

But is this statement too absolute?

Necessity and escaping from lawful custody or attempting to do so

2. What is the Rogers test? Does it differ from the Loughnan test?

Necessity and abortion

3. What is the Wald test? When is abortion lawful in NSW?

Duress

4. What does Hunt J in Abusafiah say the Crown must disprove BRD to negate
the duress defence?

5. In Taiapa, the High Court cited with approval the following statement from
Gleeson CJ in Rogers:

An unwillingness [of a prisoner] to go on protection may be understandable,
but the principle of necessity is not intended to give prisoners who are
threatened a choice between going on protection and removing themselves,
permanently or indefinitely, from custody.

How was this relevant to the case that it was deciding?

Duress and murder

6. Should duress ever be available as a defence to a murder charge? Note the
similarity between what Lord Salmon said in Abbott at 766:

It seems incredible to their Lordships that it any civilised society, acts such as
the appellants, whatever threats may have been made to him, could be
regarded as excusable or within the law. We are not living in a dream world in
which the mounting wave of violence and terrorism can be contained by strict
logic and intellectual niceties alone...

and what his Lordship said in Majewski (see class19). Is he right?


56
Duress and BWS evidence

7. What does Runjanjic and Kontinnen (1991) 56 SASR 114 say about the
admissibility of expert evidence that the accused suffered from BWS in a case
where that accused relies upon the duress defence? On what basis do
Kirby J in Osland and Stubbs, Sheehy and Tolmie (see Brown et al 613)
criticise BWS? Are they wrong?

Problem
[continued from class 16]

Troy is on remand in Silverwater Gaol now, but he is philosophical. All good crime
sprees have to come to an end, says Troy, and if Snakes able to intimidate enough
witnesses, theres still a chance that I can get out of this mess, he observes,
optimistically.

Troy immediately makes himself unpopular with some of the other prisoners. He has
a big mouth and many of the prisoners think that a lot of his stories are (to use their
words) bullshit. There are prisoners who want to bash Troy and so he seeks
protection from Bodene, who is a hard man inside the gaol. Troy must do as Bodene
tells him to, though, and, soon enough, Bodene is telling Troy to stab Bodenes rival,
Col. If you dont shank [stab] Col, Ill kill you, explains Bodene. You understand
me, bro? Yep, that was fairly unambiguous, says Troy, who knows that Bodene is
ruthless and usually carries out his threats. Dont even think of telling the screws
[prison officers] anything about this, either, unless of course you want to be on
protection for the rest of your life in here, Bodene informs Troy.

Soon afterwards, Troy stabs Col in the exercise yard. Fortunately for Troy, though,
no one present appears to have seen what happened.

Col is in a bad way for weeks but manages to survive. He begins plotting his
revenge. With Bodene now in solitary for assaulting a prison guard, Troy realises that
he is in a lot of trouble. When Troy overhears two prisoners discussing Cols plans to
kill that maggot, Troy, he is terrified. Like Bodene, Col usually carries out his
threats. That night Troy scales the prison wall and successfully escapes.

Meanwhile, Jade has discovered that she is pregnant to Troy. She has little money
and is finding it very difficult to cope. She feels stressed and overwhelmed.
In addition, she now hates Troy and does not want to have a child with his genes.
Jade decides that she will request an abortion from the local doctor, Dr McCormack.
Jade does not really explain to McCormack her reasons for wanting an abortion.
She just says, Im pregnant and I dont want to be. McCormack asks no further
questions. He hands Jade a pill and says, take this. Jade takes it while she is in
McCormacks surgery. She has a miscarriage soon after.

Does Troy have a defence to any charges arising from (i) stabbing Col (assume
that the charge is a s 33(1)(b) Crimes Act one); or (ii) escaping from lawful
custody? Can Dr McCormack be convicted of an offence against s 83 of the
Crimes Act 1900 (NSW)?



57

Class 17 Unfitness to Plead, Mental Illness and Substantial
Impairment by Abnormality of Mind (SIAM)


In this class, we discuss the legislative scheme concerning the accuseds fitness to
stand trial, an issue that generally arises with defendants who are mentally ill. We
then consider the defence of Mental Illness (previously known as Insanity), and the
partial defence of Substantial Impairment by Abnormality of Mind (previously known
as Diminished Responsibility). Offenders who successfully raise SIAM present a
major problem for the criminal law: they were not sufficiently mentally ill at the time of
offending to warrant a special verdict; but, because of their mental illness, might
represent a grave danger to the community once they have served their sentence.
Should the partial defence be abolished? Or are people such as the appellant in
Veen (No 2) not culpable enough to warrant being convicted of murder - and should
a statutory system of the type envisaged by Deane J in that case, be established?

Reading

(i) Generally

Brown et al (2011), pp. 515-525, 546-555

Mental Health (Forensic Provisions) Act 1990 (NSW), ss 5, 6, 11, 13, 14, 19, 22,
23, 24, 25, 26, 27, 37-39, 44, 46

Crimes Act 1900 (NSW), s 23A

(ii) Unfitness to Plead

Mental Health (Forensic Provisions) Act 1990 (NSW), ss 5, 6, 11, 13, 14, 19, 22,
23, 24, 25, 26, 27, 44, 46

R v Presser [1958] VR 45 [noted in Brown, 523]

Note: Do not rely on the material in Brown et al (2011) concerning the unfitness to
plead scheme established by the Mental Health (Forensic Provisions) Act, as
this material is outdated. Please refer instead to the legislative provisions
noted above.

(iii) Mental illness

(a) The elements

R v McNaughtan (his name is incorrectly spelt in the Report of the case) [1843-
1860] All ER 229 [Brown, 516-517]

R v Porter (1933) 55 CLR 182 [Brown, 517-518]

(b) Special verdict and its consequences

Mental Health (Forensic Provisions) Act 1990 (NSW), ss 37-39, 44, 46


58
(c) Circumstances in which the Crown may seek to prove Mental Illness

Crimes Act 1900 (NSW), s 23A(7)

(iv) Substantial Impairment by abnormality of mind (SIAM)

(a) Statutory basis

Crimes Act 1900 (NSW), s 23A

(b) Abnormality of mind

R v Byrne [1960] 2 QB 396 [Brown, 548-549]

(c) Meaning of s 23A(3)

Zaro v R [2009] NSWCCA 219

(d) Circumstances in which the Crown may seek to prove SIAM

Crimes Act 1900 (NSW), s 23A(7)

(v) Discussion:
Does the often deplorable manner in which [those who rely on SIAM] kill
1
or
anything else justify the abolition of SIAM? Or are people like Bobby Veen
insufficiently culpable to deserve a murder conviction (or a life sentence)?

Veen v R (No. 2) (1988) 164 CLR 465 (compare the majoritys approach,
pp. 468-478, with that of Deane J, pp. 490-495)

Veen v R (No. 1) (1979) 143 CLR 458

R v Singh [1999] ACTSC 66


Questions

Mental illness

1. What are the McNaughtan Rules? What must the party raising the defence
of mental illness prove and what is the standard of proof?

2. What did Dixon J say in his charge to the jury in Porter (1933) 55 CLR 182
about the two McNaughtan categories? Into which category did his Honour
apparently believe that Porter fitted?

3. Is it only the accused who is allowed to try to prove the mental illness
defence?

4. Section 38 of the Mental Health (Forensic Provisions) Act 1990 provides for a
special verdict of not guilty by reason of mental illness. What are the
consequences once a special verdict has been returned?

1
Model Criminal Code Officers Committee, Model Criminal Code, Chapter 5, Fatal Offences
Against the Person, Discussion Paper (1998)), 129
59
SIAM

5. To which charge(s) is SIAM a defence? Is it a partial or a full defence?

6. Who may prove the defence and what is the standard of proof?

7. If the accused pleads the mental illness defence, is the Crown allowed to try
to prove SIAM?

8. What must be proved to have been substantially impaired at the time of the
offence?

9. By what must it have been substantially impaired? How does Lord Parker CJ
in Byrne [1960] 2 QB 396, define the phrase abnormality of mind?

10. Who decides whether the impairment was so substantial as to warrant liability
for murder being reduced to manslaughter?

Section 23(3)

11. What does Zaro say about s 23A(3)s effect?

Veen (No. 2)

12. Do the facts of this case provide a very good example of why there should be
no partial defence of SIAM? If the High Court majority are right and the
appellant was culpable enough to deserve a life sentence, surely his conduct
was also sufficiently blameworthy to warrant a murder conviction?

13. Do you agree with the High Court majoritys contention that the life sentence
was a proportional one? Or was Deane J right when he observed at 494 that
the case does not even approach the rare case in which a sentence of life
imprisonment for a single offence of manslaughter could conceivably be
justified at the present time in New South Wales?

14. Does Deane J fail to take sufficient account of the danger that Veen posed to
the community? Was the majoritys approach the only one that could sensibly
be taken?



Class 18 Automatism (involuntariness)


To be held criminally liable, the accused must have voluntarily committed the offence
charged. In this class, we will consider two situations where an accused might be
held to have acted involuntarily: where he or she claims that the relevant act was
(i) a reflex action or (ii) done in an impaired state of consciousness. The common use
of the term automatism to describe claims of the latter kind should not obscure the
fact that, as Barwick CJ pointed out in Ryan at p. 214, this description [is not] of
the essence of the discussion Rather, as his Honour noted (and as Toohey J
noted in Falconer), it is the claimed absence of the will to act that is critical.

60
We will consider the decisions in Ryan and Murray and the reasoning that was used
by various High Court Justices to justify their conclusions concerning the
identification of the act causing death and, if that act was done by reflex action,
whether it was voluntary. Was this reasoning artificial? Why was there so much
disagreement about this second question? We will then note that, in some cases
where the accused claims to have acted involuntarily, the only plea open to him or
her is one of mental illness. Does the solution that the Courts have reached in this
area owe too much to community protection concerns? We will conclude by
discussing the dissociative state cases. Is an accused who successfully claims to
have committed an offence while in such a state, entitled to a full acquittal, or merely
to a special verdict? Or does it depend on the circumstances?

Reading

(i) Generally

Brown et al (2011), pp. 327-335, 532-546

(ii) The reflex action cases

Ryan v R (1967) 121 CLR 205 [Brown, 328-330 and see Taylor and Owen JJ at
CLR, pp. 231-232]

Murray v R (2002) 211 CLR 193 [Brown, 330-332; but note that the majority did
not accept Gummow and Hayne JJs number of movements/set of movements
reasoning, and held that the accused had discharged the evidential burden. Who
is responsible for (i) identifying the relevant act and, if that act was a reflex action,
(ii) determining whether it was voluntary? See Gaudron J at [9]-[16]; Kirby J at
[88]-[89]; and Callinan J at [148]-150]

Penza and Di Maria v R [2013] NSWCCA 21, [78]-[93] (relevant facts) and [154]-
[167] (useful summary of the law in this area)

Ugle v R (2002) 211 CLR 171 (decided on the same day as Murray, but the
weapon was a knife, not a gun; see also Whitfield v R [2002] NSWCCA 501)

Ian Elliott, Responsibility for Involuntary Acts: Ryan v The Queen (1968) 41
Australian Law Journal, 497-508

(iii) Where the accused was asleep/sleepwalking

Jiminez v R (1967) 121 CLR 205 [Brown, 332-333]

Parks v R [1992] 2 SCR 871 (Supreme Court of Canada) [noted in Brown, 544]

Burgess v R [1991] 2 WLR 1206 [noted in Brown, 544]

(iv) Psychomotor epilepsy: sane or insane automatism?

Bratty v Attorney-General for Northern Ireland [1963] AC 386 [Brown, 386-387]

Sullivan v R [1983] 3 WLR 123 [noted in Brown, 544]


61
(v) Arteriosclerosis: sane or insane automatism?

Kemp v R [1957] 1 QB 399

(vi) Hypoglycaemia: sane or insane automatism?

Quick and Paddison v R [1973] 1 QB 910 [noted in Brown, 543]

(vi) Dissociative states: sane or insane automatism?

Radford v R (1985) 20 A Crim R 388 (especially King CJ at pp. 389-391 (facts)
and 392-399 (concerning involuntariness)

Falconer v R (1990) 171 CLR 30 [Brown, 535-538; however, note that Toohey Js
view is the majority view: see Deane and Dawson JJ at pp. 59-64 (CLR) and
Gaudron J at pp. 81-87 (CLR). Note also that Gaudron J at p. 85 (see also Deane
and Dawson JJ at p. 62) provided more information than did Toohey J about how
it is determined whether the dissociative state was the reaction of a sound or an
unsound mind (Mason CJ, Brennan and McHugh JJ at p. 58-59 essentially agreed
with these statements).]

Woodbridge v R [2010] NSWCCA 185 [Brown, 538-542]

(vi) Further reading

David Bell, Judgments Revisited: Falconer (2011) 43 Australian Journal of
Forensic Sciences 313-321

Stephen Gault, Dissociative State Automatism and Criminal Responsibility (2004)
28 Criminal Law Journal 329-350

J Paul McCutcheon, Involuntary Conduct and the Criminal Law: The Case of the
Unconscious Driver (1998) 21(3) International Journal of Law and Psychiatry 305-
314

Ronnie Mackay and Barry Mitchell, Sleepwalking, Automatism and Insanity
[2006] Criminal Law Review 901-905

Bernadette McSherry, Its a Mans World: Claims of Provocation and Automatism
in Intimate Homicides (2005) 29 Melbourne University Law Review 905-929

(vii) Discussion: the approaches in Ryan and Murray

In Ryan, Barwick CJ says that a reflex action is an involuntary action, but that it was
open to the jury to find that the act causing death was either the reflex pulling of the
trigger or the presentation of the gun.

On the other hand, Windeyer J says that a reflex action is a voluntary action: is an
act to be called involuntary merely because the mind worked quickly and
impulsively?

Finally, Taylor and Owen JJ in Ryan and Gummow and Hayne JJ in Murray say that
it does not matter whether the reflex pulling of the trigger was voluntary. The act
causing death was, in their view, a series of acts: the loading, cocking, presentation
62
and firing of the gun. As some of these acts were voluntary acts, the act causing
death taken as a whole was a voluntary act.

Which of these views do you prefer? Which policy concerns appear to have
influenced their Honours? Is the above reasoning, or some of it, artificial?


Questions

The reflex action cases

1. Is an accused guilty of a crime if the deed which would constitute it was not
done in exercise of his will to act' (to use the words of Barwick CJ in Ryan at
216)?

2. Must the accused discharge an evidential burden before his/her claim that
he/she acted involuntarily may be left with the jury? If so, how does he or
she do this?

3. In a homicide case, who is responsible for (i) identifying the act causing
death (where one or more acts are capable of being regarded as being the
act causing death) and (ii) determining whether that act was done voluntarily
(assuming that the evidential burden has been discharged)?

4. If the act causing death was a reflex action, will the accused necessarily be
held liable?

5. Is Gummow and Hayne JJs number of movements/set of movements
reasoning in Murray artificial or persuasive? Why do judges employ this sort
of reasoning in hard cases? (see Thabo Meli, Fagan etc)

6. How can Barwick CJ in Ryan seriously claim that it was open to the jury
to select the presentation of the weapon as the act causing death? Or was
he right?

7. Was Sully J in Katarzynski [2005] NSWCCA 72, [30] right to describe
Windeyer Js analysis in Ryan as lucid common sense and good law?
Or was Sully J wrong on both counts?

8. Was Windeyer J having a bob each way when he said, on one hand, that
Ryans act was voluntary because it was done quickly and impulsively; and,
on the other, that it was voluntary because a probable and foreseeable
consequence of pointing a gun at someone is that you might start and press
the trigger?

Jiminez

9. When assessing whether an accused person has performed the actus reus of
the offence of dangerous driving causing death (see s 52A, Crimes Act), what
is the relevant period of driving?

10. McCutcheon notes at p. 310 that the High Courts decision in Jiminez has the
effect of extending the actus reus somewhat [I]t is stretched out.
Compare the reasoning in Jiminez with that in Ryan, Murray (and Thabo Meli
and Fagan). Should judges stretch the rules like this?
63
Bratty

11. How will an accused generally discharge the evidential burden where he or
she claims that he or she acted involuntarily because of a condition such as
epilepsy or dissociation? (see also Gaudron J in Falconer, 83)

12. Was it an error for the trial judge only to leave insanity with the jury?

13. How did Lord Denning define the term disease of the mind?
Might community protection concerns have influenced his Lordship? Is it right
to describe someone who is experiencing an epileptic seizure as being
insane?

The dissociative state cases

14. What meaning did the (i) Full Court of the South Australian Supreme Court in
Radford and (ii) the High Court in Falconer give to the phrase disease of the
mind?

15. If, as the result of a psychological blow, a person enters a dissociative state,
in which they involuntarily commit a criminal offence, may they only plead
mental illness?

16. What is the sound/unsound mind test?

17. In Falconer, what do Mason CJ, Brennan and McHugh JJ (pp. 55, 58-59) and
Gaudron J (p. 85) say about how to determine whether a dissociative state is
the reaction of a sound or an unsound mind to the psychological blow?
That is, according to Gaudron J, what is the fundamental distinction? Was it
open to the jury to find it reasonably possible that the dissociative state that
the appellant in Woodbridge allegedly entered was the reaction of a sound
mind to external stimuli? Why/why not?

18. What happens where there is evidence capable of demonstrating that the
accuseds conduct was involuntary either due to sane or insane automatism?
What must the jury do? See the suggested directions on the Judicial
Commissions website:
http://www.judcom.nsw.gov.au/publications/benchbks/criminal/automatism.ht
ml and
http://www.judcom.nsw.gov.au/publications/benchbks/criminal/mental_illness.
html


Problem
[the following is similar to a past exam question. It concerns the defences/defences
that we have considered over the last two classes]

Shirani and Ratna are first year international students from India. They are studying a
Science degree at the University of Sydney and share a second floor apartment in
Glebe.

Its been a rough year for both of them. Since they arrived, theyve been stalked by
the sleazy man who lives across the hall and have been threatened with eviction.
Theyve had no time to make friends and avoid going out because the
neighbourhood feels dangerous. For the last few weeks they have both been isolated
64
and cooped up in their tiny apartment studying for exams. Shirani, in particular, has a
lot of family pressure on her to succeed. Her parents mortgaged their house in Delhi
to raise money for her to study in Australia. Last night Shirani learnt that the family
business has collapsed and her parents and four younger brothers have lost their
home and livelihood. Both Ratna and Shirani are competitive students and are
hoping to win a $5000 prize for the best first year Science student. Shirani wants to
win the prize so that she can keep her family off the streets. The atmosphere is very
tense.

Late one night, Shirani and Ratna are studying in the kitchen. Its very hot and they
are both sitting on the open window ledge with their legs hanging out the window.
Shirani becomes convinced that she is going to fail her exams and that Ratna is
going to win the Science prize. She says this to Ratna who agrees with her.
Ratna tells Shirani that she has been having secret tutorials with one of their
lecturers and that Shirani hasnt got a hope of coming first because she is too stupid.
Ratna also says that the other students hate Shirani because shes so competitive
and they have put nasty comments about her on Facebook. Shirani feels humiliated
and acutely distressed by this.

Shirani gets off the window ledge. She picks up her laptop from the kitchen table. As
she walks past Ratna, who is still talking, Shirani suddenly throws the laptop towards
her. It hits Ratna on the side of her head. Ratna starts to slide back into the room, but
upon seeing that Shirani is close by, Ratna quickly shoots forward. She topples over
the edge of the window and her head hits the ground.

By the time the neighbours rush out, Ratna is dead. Shirani is sitting back in the
kitchen with an odd look on her face and her eyes are glazed over. She appears not
to know what is happening.

Later, when the police interview Shirani, she tells them what Ratna said to her.
She adds that she was shocked and emotionally traumatised by Ratnas words
because she desperately wants to win the $5000 Science prize so she can save her
family. She remembers picking up the laptop and walking towards the door.
However, she cannot remember anything after that and she has no memory of
throwing the laptop at Ratna. She only remembers waking up and seeing Ratna on
the ground and everyone trying to help her. She says that she has never experienced
anything like this before.

The police interview several neighbours, a couple of whom claim to have overheard
the exchange between Shirani and Ratna. They say that what Ratna actually said
was completely different from what Shirani thought she said. In fact, Ratna said that
Shirani was their lecturers favourite student and that she would probably win the
prize because she was really smart. The police conclude that Shirani was delusional.

Shirani has been charged with murder. Discuss her criminal liability.

DO NOT discuss provocation.



65

Class 19 Intoxication and Problem-solving


In the first half of this class, we will consider the defence of self-induced intoxication,
and the way the law has responded to the question as to whether an intoxicated
offender (who because of voluntary intoxication did not form criminal intent) was as
culpable as an offender who did form criminal intent. This area of the law could not
be criticised for being excessively logical. Indeed, it has been claimed that this is one
of its strengths, with Lord Salmon in Majewski, for instance, stating that, [a]bsolute
logic in human affairs is an uncertain guide and a very dangerous master. Is he
right? Or is this yet another instance of the law cravenly and unjustifiably retreating
from the liberal principles that underlie it?

In the second half of the class, we will consider a problem question from a previous
exam, thus starting your Revision for the exam.

Reading

(i) Generally

Crimes Act 1900 (NSW), ss 428A-428H

Brown et al (2011), pp. 384-388, 559-565

(ii) The history of the defence

R v Beard [1920] AC 479 (Lord Birkenhead)

(iii) The position in England

DPP v Majewski [1976] 2 All ER 142

R v Lipman [1970] 1 QB 152

(iv) The position at common law in Australia

R v OConnor (1980) 146 CLR 64 [Brown, 384-387]

(v) The statutory scheme in NSW: acceptance of the Majewski view

(i) The relevant provisions

Crimes Act 1900 (NSW), ss 428A-428H

(ii) Is reckless indifference murder always a crime of specific intent?

R v Grant [2002] NSWCCA 243 [Brown, 560-561]



66
(iii) Why is it a misdirection for a judge to direct the jury, in a trial where self-induced
intoxication is raised as a defence to a crime of specific intent, You will have to
consider whether the accused had the necessary capacity to act intentionally?

R v Makisi [2004] NSWCCA 333 [Brown, 561-562]

R v Bellchambers [2008] NSWCCA 235

(iv) Discussion:
Consider the facts of the below case. Are offenders who, because of voluntary
intoxication, do not form criminal intent, more, less or as culpable as an offender who
has formed intent? Should they be treated differently from the latter type of offender?

R v Dean-Willcocks [2012] NSWSC 107; consider also the new s 25A of the
Crimes Act, which we discussed in class 6

Questions

1. What reasons do the judges in Majewski give for abandoning logic? Are those
reasons convincing? Or does Majewski place too much emphasis on
community protection concerns and not enough emphasis on principle?

2. Is the Majewski solution chaotic? If so, is the chaos that is produced
necessary?

3. Is Stephen Js judgment in OConnor too liberal?

Revision Problem

Nineteen year-old Damien Murphy is out of control. He has been living with his
girlfriend, Krystal, 17, for the last five months since he got out of gaol. During this
time, Damien has been possessive, controlling and violent towards Krystal.

One day Damien and Krystal go to Damiens mate Snakes house for a barbeque.
At the party, Damien is confronted by Diesel, who says: what have we here, eh?
Damien the dog. Fucken police informant. Youre living on borrowed time, cunt.
Damien has hated Diesel ever since he ripped him off on a drug deal years before.
He also hates being called a dog. Damien feels himself getting very angry.
This anger intensifies when Diesel says: Oh, and you might be interested to hear
what Krystals been up to, idiot. She was having it off with me when you were in gaol
last time. She did say something about me being a bit better in bed than you as a
matter of fact, but that she wasnt sure as five seconds wasnt enough time to assess
your performance properly. Damien is furious by now. He grabs a knife from his car,
runs back into the party and stabs Diesel fatally.

Damien cant see Krystal so he rings her on her mobile phone. Krystal is upstairs
with her half-brother, Corey, smoking marijuana. Krystal answers and Damien says:
where are you, slut? You know how I said that you were at last chance caf?
Well, youve used your last chance up. Diesel just told me that you were screwing
him behind me back when I was doing time. Im going to kill you, bitch. Krystal,
terrified, hangs up, but Damien has spotted her at the upstairs window. He runs up
the stairs, with the knife, screaming expletives. Krystals only way to get out of the
room is to jump out of the window, which she does. The fall is only 5 metres,
but Krystal trips on the window ledge. Her head smashes on the concrete below and
she dies.
67
Meanwhile, without seeing Krystal go out the window, Corey has run down the stairs
to confront Damien. Corey is brandishing a sawn off shotgun that was lying around in
the upstairs room. When Damien gets halfway up the staircase, he sees Corey with
the weapon. Damien immediately backs off but Corey shoots Damien in the back
twice as he tries to flee. Damien dies at the scene.

When police asked Corey why hed shot Damien, he said why do you think?
The prick came at me with a knife. It was me or him. I realise now that he must have
been running away from me, but it just didnt seem like that. It all happened pretty
quick. When asked how much marijuana he had smoked, Corey said mate,
Id punched about 20 cones and so had Krystal. We were off our faces.

Discuss (i) Damiens and (ii) Coreys criminal liability arising from events at
Snakes barbeque (although do not consider drugs or firearms offences).
Assume that Damien is still alive for the purposes of discussing his criminal
liability.



Class 20 Revision Class


In this class, we will provide you with information about the exam, and, if time
permits, consider two past exam questions: one essay question and one problem
question. Please prepare answers to these questions before the class.

Revision Essay Question

[J]udges seem to have a longstanding love of broadly defined offences and a deep
suspicion of broad defences

(Spencer, 1984, cited in Alan Norrie, Crime, Reason and History, p. 12)

Is this true of the current criminal law? Refer in your discussion to at
least one offence and one defence that you have considered in this Unit.


Revision Problem

Nick Jones-Hughes, 32, works as a Partner in the Mergers and Acquisitions section
of a major law firm. His wife, Philippa, runs a successful chocolate shop in Cremorne
Junction and they have two daughters, Saskia, 5, and Sophia, 3. But underneath the
surface, Nick has problems. He has an expensive cocaine habit and is fast becoming
addicted to gambling. In addition, Nick is a womaniser, who for the last three months
has been conducting an affair with his secretary, Tahnee, 21.

After a successful deal, Nick and his team go to a restaurant with clients. Nick takes
a shine to one of the paralegals, Emily, 20, whom he sits next to throughout dinner.
After discussing topics including the school Emily went to, Nicks daughters
Mandarin lessons and Emilys boyfriend, Nick indicates a client to Emily and says
you know, Frosty and the boys are going to a strip club after this, but I thought that
you might be able to give me a private show. Emily freezes. She thought that Nick
was a really caring guy who was genuinely interested in her boyfriend. However, he
is a Partner and so she doesnt want to make a scene. Emily excuses herself from
the table but Nick follows her. He catches up to her at the door to the toilets where he
68
pushes Emily against the wall and tries to kiss her. Emily knees Nick in the groin and
runs out of the restaurant. Another Partner, Harriet, angrily asks Nick whether he
thinks that Emily wanted him to do this to her and he replies God, how irrelevant can
you get?

When Tahnee hears about this episode, she is furious with Nick. But Nick reassures
her that it was just because I was very, very pissed. I dont know what got into me
actuallyI dont even like brunettes. He gives Tahnee a Dolce and Gabbana
necklace that he had originally intended to give to one of the HR girls, Hannah, with
whom he has recently been exchanging flirty emails. The necklace is, in fact,
different from the one that Nick wished to buy. The shop assistant who served Nick
accidentally wrapped up a more expensive necklace than Nick had requested, but
Nick only realised the mistake when he arrived back at the office. At that stage, upon
examining the necklace, he exasperatedly said to himself: Christ! Why cant these
people get things right? Where am I going to find the time to go back there to
exchange this? Tahnee thinks that the necklace is so beautiful that she just has to
accept Nicks apology.

That night, Philippa is away skiing with the kids and so Tahnee goes back to Nicks
house. Nick says Im bored with what we usually do. I want to kink it up a bit. He is
referring to sado-masochistic sex. Tahnee doesnt much like the sound of this but
she agrees just to please Nick. Nick puts handcuffs on Tahnee and places a plastic
bag over her head. This ultimately causes subconjuctival haemorrhaging in Tahnees
eyes due to lack of oxygen. Nick then leaves the room to look for some lighter fluid
that he absent-mindedly left upstairs. Unfortunately, though, Nicks had a bit to drink
and snorted a few lines of cocaine, too, so he doesnt realise that the bag that hes
put over Tahnees head is preventing her from breathing. Upon returning to the room,
Nick soon realises that Tahnee is unconscious. Wrongly believing that he has killed
her, Nick panics. He gets into his boat and dumps Tahnees body in Sydney Harbour.
Tahnee drowns.

Next day is a Sunday and so Nick goes into the office as usual. Another Partner, Ian,
threatens Nick that if Nick doesnt leave the firm, thus surrendering all of Nicks
clients to Ian, Ian will tell Philippa about Nicks affair with Tahnee, his gambling
addiction and the fact that Nick has taken out a second mortgage on his Palm Beach
holiday house behind Philippas back. Nick is outraged. He went to school with Ian
and they even played in the 3
rd
rugby XV together for a while. After stewing in his
office for several hours, he rushes around to Ians office and bashes him to death.
In Nicks police interview, he says: I just got so angry because of Ians blackmailing.
I didnt listen much in Criminal Law at Uni because it was all a bit unedifying, frankly,
but surely that must give me some sort of excuse.

(i) Discuss Nicks criminal liability (although do not consider drugs
offences).

(ii) Can Emily be convicted for any offence on account of kneeing Nick in
the groin?



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MORE PAST EXAM QUESTIONS

(i) Problems

Question 1

Brendan Miller, 18, has just left school. He did not distinguish himself academically,
but he was a favourite with the physical education staff. Brendan has done a few silly
things in his time. For instance, when out drinking one night, he used his mobile
telephone to call a former teacher, Dave Clayton. When Claytons wife, Sue,
answered, Brendan said, Im just outside your house. Im going to smack you and
Mr Clayton out. By the way, are you his fucking wife or his fucking daughter?

Shortly after this event, Brendan enlists in the army. His family greet the news with
some relief and hope that he will settle down.

In Brendans first week at the army barracks at Paddington, NSW, two men, Dan and
Luke, burst into Brendans dormitory while he is asleep. They hold him down, pull
down his pants, turn on the vacuum cleaner and take turns in applying suction to his
penis. This causes bruising to Brendans penis and testicles. Dan and Luke then take
turns in sticking a carrot up Brendans anus. The experience is a pretty painful one
for Brendan, but he doesnt let it worry him too much. I actually quite like the military
culture of abuse, he says.

Having survived his initiation, Brendan becomes the initiator. He adapts to the new
role effortlessly. One night, Brendan and five other men burst into Jamess dormitory.
As the other men hold James down, Brendan inserts a cucumber in Jamess anus.
Oh, and Ill bash the shit out of you if you tell anyone, Brendan informs James.
James is not such a good sport as Brendan was. He makes a formal complaint.
Under pressure from the media, the army launches an inquiry into these events.
Panicking, Brendan has a look at the sexual assault provisions in the NSW Crimes
Act: oh, he says, and develops a perplexed expression, Know doesnt mean
know after all.

To take his mind off the inquiry, Brendan decides to have a big night out with the
boys. He consumes thirty beers. While Brendan and his mates are out, they see a
few women from the Barracks. They really shouldnt be in the army, opines
Brendan, I mean, theyre just not strong enough for front line combat.
Another thought comforts him, though. I suppose they add a bit of perv value, but,
he says. Brendan is particularly taken with Jessica, 18, who is also a big drinker and
has consumed twenty beers.

The group get back to the Barracks late, but Brendans night is not over. He locates
his video camera and staggers around to Jessicas room. Brendan climbs in the open
window and gets into bed with Jessica. Jessica is responsive at first, as she thinks
that this is her boyfriend, Lachlan. Brendan takes full advantage of this error, and
inserts his fingers into Jessicas vagina. But Jessica quickly realises that this is not
Lachlan. Get off me, she screams. Fuck you, replies Brendan, with characteristic
brevity. He holds Jessica down and begins to undo his fly. Though Jessica is strong,
she is no match for Brendan. Fortunately, though, there is a pair of scissors on
Jessicas bedside table. Picking them up, she manages to plunge them deep into
Brendans heart, killing him. essica then stabs him 56 more times.

During her police interview, Jessica says, ah, you know, ah, I was just running on
adrenaline, I guess just felt so pissed and scared and angry oh, look, the stuff
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that me dad did to me sisters ah, it come back to me and ah, yeah, there was a
lot of shit goin on a bad situation.

Discuss (i) Brendans; (ii) Dan and Lukes; and (iii) Jessicas criminal liability
for offences on these facts. (Assume that Brendan is still alive when
discussing his criminal liability)


Question 2

Cooper McCarthy, 22, is a professional Rugby League player who has been involved
in a number of alcohol-related incidents. He is now at his third club and on his last
chance. For the last week, Cooper has been in a casual sexual relationship with Keli,
18.

Cooper has a twin brother, Trent, who is also an NRL footballer. One night, Trent
visits Coopers house. Upon Trents arrival, Cooper is looking at pictures of Keli on
his facebook page. He says to Trent: have a look at this girl Im drilling. Trent looks
at the photos. Shes hot, he says. At this point, Cooper has an idea. Mate, shell be
at the Coogee Bay Hotel on Friday night. Why dont you just pretend to be me? Go
home with her and youll get some action for sure. Trent has doubts: didnt they
warn us about stuff like that in that pre-season talk? he asks. Cooper replies: na,
the only thing that youve got to worry about, apparently, is if she says no and she
wont because shell think its me.

On Friday night, Trent goes along to the Coogee Bay, where Keli is working behind
the bar. He impersonates Cooper all night and goes home with Keli when her shift
finishes at 1 am. Upon their arrival at Kelis flat, Keli, after drinking a cup of Milo with
Trent, begins to perform oral sex on him. However, she begins to feel that something
is wrong. I want to stop, she says. Trent panics. After forcing his penis back into her
mouth a couple of times, he runs out of Kelis house. Keli remembers that Cooper
has a twin and she realises what has happened. She reports the incident to police.
The story is all over the press the next day.

The next night, Cooper is playing Rugby League for his club. During the game,
an opposing player, Junior Taufa, says to Cooper your brothers a rapist and your
NRL careers finished. Cooper loses his temper. The next time Junior runs the ball at
him, Cooper screams youre dead and deliberately elbows Junior as hard as he can
in the head. The commentators have a field day:

Ray Warren: Taufa now. Ohhhh!!! Cooper McCarthys smashed him with an
elbow. Ohh!! You cant do that!

Phil Gould: No! Oh nooooo! Cooper McCarthy has to go. He has to go! You
expect contact in Rugby League its a tough sport - but no one signs up for
that. That isnt tough. Thats vicious. That is a vicious high shot on Junior
Taufa.

Junior is severely concussed. Cooper is sent off. When Cooper comes off the field,
Trent asks him why he elbowed Junior. Cooper says he called you a rapist, mate.
Now Trent flies into a rage. He storms around to the opposing dressing-room, where
Junior is being examined by the club doctor. Trent says Ill kill you, you bastard,
punches Junior in the head, and grabs him in a headlock. Junior begins losing
consciousness. He swings around desperately, trying to hit Trent, and his fist hits
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Trent on the chin. Trent falls back, hits his head on the floor and dies. Junior loses
consciousness soon after and, despite being rushed to hospital, also dies.

The club doctor indicates that, even before the confrontation between Junior and
Trent, he was not going to allow Junior to go back onto the field as blows to the
head of an already concussed person can lead to death.

Discuss (i) Trents; (ii) Coopers; and (iii) Juniors criminal liability.
Assume that Trent and Junior are alive when considering their respective
liability.


Question 3

Sophie Johnson, 20, attends a leading Sydney University. She is ambitious and one
day wants to enter politics. She is also an outspoken critic of political correctness.

Sophie is very friendly with Hamish Barlow-Waters, 20, a resident of St Matthews
College at the University. Hamish describes himself as a College boy through and
through. He is a controversial figure on campus. One night, in a College prank,
he and two other students frog-march a fellow College resident, Tim, whom they
perceive as being gay, into Hamishs room. They push Tim roughly on the bed,
remove his pants and hold him down. Its Anaconda time for you, old son, says
Hamish. Hamish then twice inserts a wooden object, longer then it is wide, into Tims
anus.

When Sophie hears about this incident, she is at her friend, Freyas house. Sophie
defends Hamish. You have to let guys be guys, she says. It was just horseplay for
goodness sake. She suddenly spots an Alannah Hill dress that she lent to Freya
some months before. When Freya leaves the room, Sophie quickly shoves the dress
into her bag. It is my dress after all, she thinks, and, in any case, Im actually doing
Freya a favour. She looked really fat in it.

That night, Hamish is at a College party when he sees that Amy is very drunk.
Sensing an opportunity, he asks her if shed like to have a breath of fresh air. When
they get to the football oval near St Matthews, Hamish says: I think that we need to
fuck. Amy is repulsed by Hamishs advances, but she is drunk and Hamish is tall
and strong, so she thinks that it will be better for her if she just goes along with him.
Hamish begins having penile/vaginal sex with Amy. However, Amy is so drunk that
she passes out. Hamish realises this but continues to have penile/vaginal intercourse
with her. The next day, Amy complains to police.

When Sophie hears about this, she again supports Hamish. Look, I think it is very
difficult to be a man, she says. I would never support rape, but if you get that
drunkwell, look, you have to take personal responsibility.

Amys boyfriend, Joel, takes a different view. When Amy tells him about what
happened, Joel flies into a rage. He picks up a knife and heads in the direction of St
Matthews. When Joel arrives there, Hamish is taking part in a spewing competition
with other very drunk College residents. Upon seeing Hamish, Joel screams you
raped my girlfriend, you bastard and runs at Hamish with the knife. However, just as
Joel tries to stab Hamish in the chest, Hamish sidesteps him. The blade of the knife
plunges into Hamishs friend, Webbys, heart, killing him instantly. Hamish tackles
Joel desperately. He gets the better of the ensuing struggle. Once he has
overpowered Joel, Hamish slams his head into the footpath twice, killing him.
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I like that he knows how to protect himself, says Sophie. As a chick, youd feel
really safe when you were with him. I guess I just like masculine men. So shoot
me.

Despite Hamishs fathers willingness to pay a substantial surety, Hamish is refused
bail. Shortly after his arrival in gaol, Hamishs cellmate tells him that two other
prisoners are planning to sexually assault him that weekend. That night, Hamish
escapes, but is quickly apprehended. Sophie texts Freya, OMG! What do they
expect him to do? Just let himself get violated by some psycho bogan freaks?

Discuss (i) Hamishs; (ii) Sophies; and (iii) Joels criminal liability.
When discussing Joels criminal liability, assume that he is still alive.


Question 4

Bodie Miller, 25, has lived all his life at Bilgola on Sydneys Northern Beaches.
A couple of years ago, Bodie was convicted of assault occasioning actual bodily
harm after he hit a man over the head with a piece of wood. For this offence,
Bodie was sentenced to two years imprisonment. This was the maximum penalty
available to the Local Court Magistrate who sentenced Bodie, and Bodie considers
that he was treated very harshly. Bodie has now emerged from prison angry and
resentful. He is drinking to excess and smoking a lot of marijuana.
One night, Bodie and his mate, Deanoes, are sitting in Bodies van in the carpark at
Avalon Beach when they see five teenage girls lurching towards them. The girls are
laughing like hyenas and drinking wine straight from the cask. Them sluts are
pissed, eh? Bodie says, perceptively. He then yells out to them, hey, girls.
Youse want some drugs? Four of the girls refuse Bodies generous offer, but the
fifth, Dani, 17, is less risk averse than her comrades. Yeah, what have youse got?
she says.
Once Dani enters Bodies van, Bodie offers her some heroin. Dani is unsure how to
inject herself with heroin, but Bodie is gentlemanly enough to administer it to her.
The problem is that Bodie is heavily affected by marijuana and alcohol and so gives
Dani a slight overdose. Soon, Dani announces that she feel[s] like shit and want[s]
a breath of fresh air, but Bodie is having none of that. Lock the doors, he instructs
Deanoes, upon whom, unfortunately, the Shakespearean allusion (if it was one) is
lost. Oh, and fuck off for a while too, eh? Bodie adds. Deanoes exits the van and
goes home.
As soon as Deanoes exits, Bodie springs into action. Bodie, attempts to pull Danis T-
shirt off but Dani is limp and unresponsive. Bodie realises that his plans for sex are
ruined. He screams Fuck! in frustration and unsuccessfully tries to revive her.
A thought then occurs to Bodie: Ill just dump her on the beach, eh? he says to
himself. Noticing neither that Danis breathing is shallow, nor that the tide is coming
in rapidly, Bodie carries Dani down to the beach and leaves her there to sober up.
Next morning, a man walking his dog finds Danis drenched, half-naked dead body
on Avalon Beach. The cause of her death was drowning.
The police quickly decide that Bodie or Deanoes are people who might be able to
assist them with their enquiries into Danis death. Danis family is aware of the
polices suspicions. One night outside the Newport Arms Hotel, Danis brother, Trent,
confronts Deanoes. You killed my sister, you maggot, Trent says. Deanoes is
unperturbed. Bullshit, is his laconic response and he adds, I didnt kill that slut.
Trent runs to his utility, picks up a knife from the trailer. He returns to where Deanoes
73
is standing and stabs Deanoes 30 times. Just then Bodie enters the bar and sees the
commotion. He runs over and punches Trent repeatedly in the stomach, causing
Trent double over in pain and drop the knife. Bodie then picks up the knife and
slashes Trent across the face with the knife. Before he can do more damage the
police and an ambulance arrive. However, Deanoes has died at the scene. When
interviewed by police, Trent says, the last thing that I remember is him saying that
me dead sister was a slut. Mate, the rest is blank ahh, I was in a daze Ive just
ahh come to me senses and theres a knife in me hand, blood everywhere and this
bloke pullin me away. That sort of shits never happened to me before, eh? I dont
know what come over me.
Discuss (i) Bodies criminal liability; and (ii) Trents criminal liability.

Question 5

Erin, 26, and Todd, 29, have been married to one another for three years. From the
outside, their lives look perfect. They regularly go on holiday to Bali and Brampton
Island, own three four-wheel drives, six plasma screen televisions and four iPhones,
and have 160 photos of themselves and their 1 year-old son, Tarkyn, hanging around
their two storey Castle Hill home. However, Erin and Todd have their problems. For
the last three months Todd has been having an affair with Lara, 18, a casual
employee in his pool supplies business. Moreover, Todd and Erin have fallen behind
in their mortgage repayments, have a $90,000 credit card debt, and owe $80,000 to
a builder, Dean, who assisted them to renovate their home. Todd knows that Dean
has a criminal past and is consequently quite scared of Dean.
One weekend, Erin is away at the Crowne Plaza, Terrigal, for a girly weekend and
so Todd decides to offload Tarkyn onto his mother and spend the weekend with Lara.
Todd decides to take Lara to an expensive restaurant. After dinner, Todd and Lara
return to Todds house. As soon as they get into Todds bedroom, Lara starts
undressing Todd. Whos going to whip whom tonight? asks Todd. Lara ties Todd up
and begins to whip him. This causes bruising on Todds back. However, at this
juncture, Todd becomes aware of a presence at the door. It is Dean. He has a gun.
Kinky bastards! says Dean, and points the gun in Lara and Todds general
direction. Lara and Todd both freeze. Stop whipping him! Bloody stick your finger up
his arse instead. I want you to treat him as your bitch, orders Dean, upon whom
feminist theory has had no obvious influence. Lara reluctantly does as she has been
instructed. As Lara penetrates Todds anus with her finger, Todd whimpers quietly.
Dean continues to point his gun at Lara and Todd.
Meanwhile, Erin has returned early from her girly weekend. Erin is secretly two
months pregnant and just wants to lie down in her own space. But when Erin
reaches her bedroom, she is shocked by what she sees. Babe! she screams to
Todd. Dean is surprised to hear Erins voice. Feeling his control over the situation
slipping, Dean screams fucken shut up! and wildly fires two shots in Lara and
Todds direction. One of the bullets strikes Todds left shoulder, killing him. Dean then
drops the gun. As he tries to pick the gun up, he accidentally kicks it towards the
door.
Erin acts quickly. She picks the gun up and with her finger on the trigger she points it
at Dean, saying dont come any closer. As Dean lunges towards her she is startled
and the gun goes off. Erin, screams oh no, how could this happen! The shot hits
Dean, causing him to suffer permanent paralysis. Erin puts the gun on the bed.
Realising that Todd is dead, Lara screams I loved him!! What will I do without
Toddles??? He was the one! We were soul mates! Upon hearing this, Erin suffers a
74
loss of composure. She picks up the gun, screams, how dare you screw my
husband!! and points the gun at Lara. Lara turns around and jumps out of the
bedroom window. She hits her head on the path 15 metres below and dies instantly.
Discuss (i) Deans criminal liability for homicide offences; (ii) Laras criminal
liability (for the purposes of this discussion, assume that Lara is still alive);
and (iii) Erins criminal liability.

(ii) Essay Questions

Question 1

One common criticism was that the laws concession to human frailty was very
much, in its practical application, a concession to male frailty.

(Gleeson CJ in Chhay v R (1992) 72 A Crim R 1)

Does the criminal law continue to exhibit gender bias? Refer in your
discussion to at least one offence and one defence that we have studied in this
course.


Question 2

That individuals have choices is a basic legal assumption: that circumstances
constrain choices is not.

(Barbara Hudson, quoted in Andrew Ashworth, Principles of Criminal Law (6
th

ed, 2009), p 24)

Does the criminal law pay too little attention to the social context in which
crime is committed? Refer in your answer to two defences that you have
studied in this course.


Question 3

The danger is that the notion of community may sometimes be invoked in support of
policies emphasising public safety [T]he result may be to promote an idea of
community without any special weighting of individual rights.
(Andrew Ashworth, Principles of Criminal Law (6
th
ed, 2009), p 24)
How well does the criminal law achieve a balance between protecting the
community, on one hand, and defending individual rights, on the other? Refer
in your answer to at least one offence and at least one defence that you have
studied in this course.



75
Question 4

I am unable to see how, unless this test involves some level of indifference to a risk
perceived by the accused, it involves moral turpitude If no moral turpitude is
involved, it is impossible, as I see it, for an act to [merit] criminal punishment.
(Adams J in Lavender v R [2004] NSWCCA 120)
Subjective intention does not enjoy a monopoly on moral culpability The claim of a
person who causes harm that she did not mean to do it or did not stop to think as
excusing them of wrongdoing is commonly treated as unpersuasive, especially when
death or serious injury ensues.
(Kirby J in Lavender v R [2005] HCA 37)
Should the criminal law always insist upon subjective mens rea standards?
Discuss with reference to at least two offences that you have studied in this
course.

Question 5

Defences that provide for hybrid tests part subjective and part objective are a
necessary, if complex, imposition on the accused.

Critically analyse this claim, referring to at least two defences/partial defences
that we have considered in this Unit.
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PASS information


PASS Program: Peer Assisted Study Sessions
The Sydney University Law Society (SULS) now funds an additional program for
LAWS1016 students called PASS. PASS stands for Peer Assisted Study Sessions.
Research from the UK, USA and Australia has consistently demonstrated that
students who regularly attend PASS are likely to improve their academic
performance and are less likely to fail or drop out. In 2010, 99% of respondents to
end of semester, anonymous surveys reported they learnt during PASS and 975
reported that they enjoyed the program. One student commented I loved
everything about PASS it was GREAT for clarifying ideas from class [and] helped
my studies. I also had the opportunity to make many friends through PASS.

Whats in it for you?
Weekly, hour-long sessions lead by senior, high achieving students.
A focus on mastery of course content through discussion and peer learning.
Extra learning opportunities, including problem solving practice where relevant,
in areas directly related to understanding the concepts more thoroughly.
Great opportunities to meet other students and study effectively together in
relaxed, interactive, small groups.

Registering for the PASS program
Attendance in PASS is voluntary but highly recommended. Registrations open the
first week of semester. PASS starts in week 2 of semester. Spaces in the PASS
program are limited. Students register through the Business School PASS online
page at: http://sydney.edu.au/business/learning/students/pass
Email all enquiries about the PASS program to: business.pass@sydney.edu.au

PASS BlackBoard
Students will be able to access PASS materials via the LAWS1016 BlackBoard site.
You will find the PASS agendas for each week, under the PASS tab, plus a range of
useful links that may assist you to learn and study more effectively.