Murder:

CRIMES ACT 1900 - SECT 18

Murder and manslaughter defined
18 Murder and manslaughter defined
(1)
(a) Murder shall be taken to have been committed where the act of the accused, or thing by
him or her omitted to be done, causing the death charged, was done or omitted with reckless
indifference to human life, or with intent to kill or inflict grievous bodily harm upon
some person, or done in an attempt to commit, or during or immediately after the
commission, by the accused, or some accomplice with him or her, of a crime punishable by
imprisonment for life or for 25 years.
(b) Every other punishable homicide shall be taken to be manslaughter.
(2)
(a) No act or omission which was not malicious, or for which the accused had lawful cause or
excuse, shall be within this section.
(b) No punishment or forfeiture shall be incurred by any person who kills another by
misfortune only.
Causation / Intent / Relevant Acts Concurrence w/ Fault element
Jurisdiction - Offence committed in NSW so relevant provision is s 18(a) of Crimes
Act.
B&SoP Woolmington / s 131 EA (NSW).
Accuseds Liability
AR
Act or omission of the accused causing death.
Isolate the conduct before going to causation:
This has to be seen to be a series of acts and omissions Thabo Meli; Fagan
Note that evidentiary presumption that conduct is voluntary (Bratty), conduct must be
voluntary Ryan
Causation
1.
Competence common sense test in unproblematic cases jury is asked to apply
their common sense to the issue of causation. (Campbell; Royall )
If there are clearly complications so go to operating and substantial cause test
(Royall;Smith;Hallet).
2.
OaSCT Does not have to be the sole cause, just has to be operating until the time of
death.
Desmonds actions and omissions as a series of acts were operating until the time of death.
3.
Intervening acts
so overwhelming as to make the original acts part of the history of the victim (Smith;
Evans). Generally not even gross negligence is enough to sever the chain of events.
Reasonable foreseeability / natural consequence test was the failure of another to do
X reasonably foreseeable or a natural consequence this test is difficult to apply without a
positive act.

It might suggest that the omission of another person is enough to sever the chain of
causation. Unlikely that this would be the case though, policy reasons, operating cause may
override. Does it overwhelm the original acts?
Also difficult to apply when there was no actual act (and an omission instead).
4. Conclude prosecution is or is not in a position to prove the AR elements beyond reasonable
doubt.

MR
1. Elements are set out in s 18(a) reckless indifference to human life, or with intent to kill
or inflict grievous bodily harm upon some person, or done in an attempt to commit, or
during or immediately after the commission, by the accused, or some accomplice with
him or her, of a crime punishable by imprisonment for life or for 25 years.
2. Intent to kill He Kaw Teh meaning to bring about a certain result or situation.
No evidence that suggests intent to kill positive evidence shows lack of intent.
3. GBH Smith s 4 permanent disfiguring of the person / serious injury
4. Reckless indifference awareness of the probability of death that the acts or omission
will cause death this is specific to Desmond subjective Crabbe / Royall.
Murder by omission
Whilst murder is usually the result of a positive act, the law also recognises that a person may
be guilty of murder because of something they did not do. This is referred to as murder by
omission and it occurs where the defendant is under a duty to perform a particular act and
knows (and consciously accepts) that their failure to act would probably result in death or
grevious bodily harm.
Examples of where a person would have a positive duty to act are rare but include:
where parents leave a child in their care to starve to death (R v Gibbins (1918) 13 Cr
App R 134);
where a defendant has placed a person in danger as a result of a wrongful act they
have committed in such a situation they are arguably under a duty not to leave the
person in danger.

Central issue: was the act of the appellant in punching the deceased dangerous? That
question gives rise to another: was it enough that the appellant (that is, a reasonable person
in his position) appreciated the risk of some injury to the deceased from the act or did the jury
have to be satisfied that he appreciated the risk of really serious injury?
Went with an act carrying with it an appreciable risk of serious injury to the victim
No definitions of appreciable risk or serious injury.
Dangerous act = objective test.
Manslaughter
Criminal negligence manslaughter (Nydham v The Queen)
Test: For manslaughter by criminal negligence, the test is a high risk that death or grievous
bodily harm would follow (Nydam v the Queen [1977])
Both are involuntary act manslaughter Burns v The Queen there can be overlap of these
two concepts.

What are the parameters of the objective test of dangerousness

What circumstances or attributes of the accused are relevant to the consideration of the level
of danger a reasonable person would appreciate?
Physical circumstances and actions of the accused?
Emotions, passions, mental state, knowledge, age?
Knowledge and age are relevant, intellectual disability may be but only one case.
See Wills (2004) confirmed in Besim v R - While the idiosyncrasies or mental state of
the accused which may diminish the accuseds capacity to reason are not to be
taken into account, any knowledge possessed by the accused that would bear upon
whether the act was dangerous is to be attributed to the reasonable person: R v
Wills; R v Dawson
Age? DPP v TY (2006) A reasonable adult or a reasonable person of the same age as the
accused, in this case a young teenage boy. Until this decision, Newbury said that age was not
relevant.
TY revealed that Newbury had not stood exactly for the principle that it had been thought to
have stood for. The status of an accused person as a child is an objectively ascertainable
attribute. It is not like a state of mind or an emotion. It is not like an intention. So, would a
reasonable person of that age, realise they were exposing someone to serious injury?
R v Thomas [2015] Intellectual disability A forensic psychologist had assessed [the
accused] as functioning below 99.9 per cent of the population, features of which included
extremely limited attention, extremely poor information processing speed and impaired
conceptual reasoning abilities.
the moderate intellectual disability of the accuse in this case is an objectively ascertainable
attribute. There is nothing transient or ephemeral about it [it is] unfair to require him and
his actions to be judged by standards that he could never hope to emulate.
I propose to assess the fourth element of the charge of manslaughter [dangerousness] upon
a consideration whether a reasonable person possessed of a moderate intellectual disability
rendering that person with extremely poor information processing speed and impaired
conceptual reasoning abilities with knowledge that the deceased was weak and frail as a
result of a debilitating illness would have realised that striking her to the left side of the face
at least once would expose her to a risk of serious injury.
So how to do a problem question on unlawful and dangerous act manslaughter:
Unlawful Act
Pullman (1991); - driving was the breach of a road rules regulation sufficient to
found a charge of manslaughter.
1. An act which constitutes a breach of some statutory or regulatory prohibition does not,
for that reason alone, constitute an unlawful act sufficient to found a charge of
manslaughter within the category of an unlawful and dangerous act.
2. Such an act may, however, constitute such an unlawful act if it is unlawful in itself
that is, unlawful otherwise than by reason of the fact that it amounts to such a breach.
Must be genuinely unlawful, not a mere breach of regulation.
Criminal Negligence Manslaughter
Much higher bar to establish criminal negligence. This can be either positive act, or by
omission. See Nydham, Lavender, Do.

Re Omissions see Russell; Stone and Dobinson

In general, criminally negligent manslaughter requires the prosecution to prove
that there was:
AR Voluntary conduct (an act or omission) causing death; and (in the absence of the MR for
murder)
MR
A duty of care owed by the accused to the victim;
A gross breach of the standard of care that a reasonable person with that duty of care would
have exercised (such a great falling short of the standard of care which a reasonable man
would have exercised);
In circumstances where there is a high risk that death or GBH will result if the gross breach
occurs (which involved such a high risk that death or grievous bodily harm would follow that
the doing of the act merited criminal punishment) Nydham
Active negligent conduct:
AR Conscious and voluntary act causing death (where there is a duty of care all people
are under a general duty not to actively cause harm (see Doherty (1987)).

MR
the act is a breach of standard of care that a reasonable person would have
exercised to a sufficiently gross degree (ie a gross breach or great falling short of the
standard of care required.); and
- It occurs in circumstances where there is such a high risk of death or gbh that it
constitutes a criminally negligent act: Nydham
- There are no additional requirements in NSW. The CCA of NSW was incorrect in finding
that, by virtue of section 18(2), s 5 (maliciously) was relevant to criminal negligence
murder: R v Lavender.
Liability for Omissions to Act:
General proposition in criminal law- in general, there is no duty to take positive action to avert
harm or death to someone else or to prevent wrongdoing (Cf general duty at common law not
to actively cause harm).
Lane v R [2013]:
There is a limit on the extent to which an omission may be relied upon to establish either
murder or manslaughter.
In Burns the plurality said:
Criminal liability does not fasten on the omission to act, save in the case of an omission
to do something that a person is under a legal obligation to do. As a general
proposition, the law does not impose an obligation on individuals to rescue or otherwise to act
to preserve human life. Such an obligation may be imposed by statute or contract or because
of the relationship between individuals. The relationships of parent and child, and doctor and
patient, are recognised as imposing a duty of this kind
A duty to act may:
A) Be imposed by statute (a statute may explicitly require action in certain
situation); or
B) Arise at common law.
By Omission:
AR A failure or omission to act causing death (ie the negligent omission must cause the
death (see Taktak) in circumstances where there is a duty to take positive action (a duty to
act eg to intervene or to provide care).

MR See above failure to meet the standard of care that would be exercised by a
reasonable person in fulfilling that duty to act which failure must be of a sufficiently gross
nature and;
It occurs in circumstances where there is such a high risk of death or gbh that it constitutes
a criminally negligent omission.
Russell; Stone and Dobinson; Taktak
What level of breach (of the standard of care) is required?
See Bateman and Andrews v DPP
Simple lack of care such as will constitute civil liability is not enough: for the purposes of the
criminal law there are degrees of negligence: and a very high degree of negligence is
required to be proved before the felony is established.
Intoxication and manslaughter:
Manslaughter is a crime of basic intent, see s 428B, thus not capable of being relevant when
considering the formation of MR of the offence.
However, if you are arguing for unlawful and dangerous act manslaughter, and the
unlawful act is a crime of specific intent, then gross intoxication may be relevant
re: the MR of that act, s 428C (remember Lamb requirement).
S 428E if you have successfully raised intoxication arguments re: murder, you
cant use it for manslaughter.
Reasonable person is a sober person.

Assault: s 61
CRIMES ACT 1900 - SECT 61
Common assault prosecuted by indictment
61 Common assault prosecuted by indictment
Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable
to imprisonment for two years.
Assault occasioning actual bodily harm
59 Assault occasioning actual bodily harm
(1) Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable
to imprisonment for five years.
(2) A person is guilty of an offence under this subsection if the person commits an offence
under subsection (1) in the company of another person or persons. A person convicted of an
offence under this subsection is liable to imprisonment for 7 years.
Generally, encompasses two types of unlawful interference with the person of
another:
1. Any act committed intentionally or recklessly which puts another person in fear of
immediate and unlawful personal violence.
2. A person causes force to be applied to the body or clothing of another. This was
formerly referred to as battery.
The two can be distinguished as assault by threat of force and assault by use of force.
In the case of more serious assaults, they are divided into common assaults aggravated by
either the nature of the intent of the accused, the status of the victim, or by the harm thereby
done. Because their structure has them built on top of a common assault, the verdict may fall
back onto the common assault charge if the elements of aggravation cannot be proved.

Common Assault Physical Elements

The common law definition of assault is set out in Fagan v Commissioner of Metropolitan
Police, in which James LJ stated:
An assault is any act which causes another person to apprehend immediate and unlawful
personal violence and the actual intended use of unlawful force to another person without
his [or her] consent.
The threat of force:
There are four main questions with diverging views between jurisdictions as to what
constitutes a threat of force;
1. What sort of conduct is sufficient to amount to a threat of force?
An omission to act cannot constitute an assault (Fagan).
Threatening words used over the telephone amount to an assault under common law (Barton
v Armstrong).
But what about silence? In the case of R v Ireland; R v Burstow, the House of Lords took a
broad approach to the positive act in holding that making a series of silent phone calls
amounted to an assault. There was intent to induce fear in the victim. It depends on the
circumstances.
Response to immediacy problems has been to develop new statutory offences like stalking or
intimidation with intent to cause fear of physical or mental harm see Crimes (Domestic and
Personal Violence Act)
2. The Victims mental state (Apprehension) Must the victim know of the
accuseds act?
At common law, the act constituting the assault must be such as to raise an apprehension of
immediate bodily harm in the mind of the person threatened (R v McNamara). This requires
that the victim have knowledge or perception of the threat so that pointing a gun at the back
of a persons head or holding a knife over a sleeping person would not amount to an assault
(Pemble v The Queen; R v Lamb; State v Barry).
An assault may still occur even if the accused was never in a position to carry out the
threatened attack (R v St George; R v Everingham; Logdon v Dpp). In Everingham the court
held that the use of a toy gun to hold up a taxi driver was a clear case of assault. In Lamb, the
court found that while the gun was real, the apprehension on behalf of the victim was entirely
absent due to a mistaken belief that the gun would not fire.
The inquiry into the victims apprehension of the accuseds ability to apply force is a
subjective test. It does not depend on what the reasonable person would have apprehended,
but on what the person in question did in fact apprehend. This has caused some divergence in
the common law.
Compare Brady v Schatzel; Ex parte Brady where the court held there was an assault despite
the victim testifying that they had not felt afraid when a gun had been pointed at them, as
that would make an assault not dependent on the intention of the assailant but upon [the
timidity or lack thereof of the accused].
On the other hand, in Wilson v Kuhl; Ryan v Kuhl where it was held on the evidence that it
could not be inferred that the defendants conduct created in the victim a fear of violence,
and thus no assault had occurred. Note that this involved a knife, which could not have been
used on the accused in the circumstances.

The notion of immediacy:

At common law, there must be an apprehension of immediate bodily harm (Wilson v Pringle;
Logdon v DPP; Knight). There is a lack of clarity by what is meant by the requirement of
immediacy or actual or apparent present ability to commit force.
Instances where is has been held to be immediate have been:
Where the accused was in another room; R v Lewis
Where the accused was on the other side of a locked door, apparently about to break it down;
Beech
Where the accused opened a draw and showed the victim a gun declaring that he would hold
her hostage; Logdon v DPP and
Where the accused peered in through a bedroom window at the victim who was wearing her
night clothes Smith v Chief Superintendent Woking Police Station.
The general rule is that a threat of future violence does not constitute an assault Knight.
Limits of immediacy: Zanker v Vartzokas (1988) relatively imminent violence instilled in
the victims mind fear kept alive in the victims mind, by continuing progress
Conditional Threats:
There is a lack of clarity as to whether a conditional threat will suffice for assault. In Rozsa v
Samuels the accused was a taxi driver who was convicted of assaulting another taxi driver
who had taken issue with his queue jumping. The accused produced a knife after having
being threatened by the victim, and stated Ill cut you to bits if you try it.
This was held to establish assault a distinction was made between:
A conditional threat that is unlawful (one that the party has no right to impose) which
constitutes an assault; and
A conditional threat that is lawful (one that the party has the right to impose) which is not an
assault. E.g. a threat is made to apply force unless the person threatened desists from some
unlawful course of action.
The use of force:
Occurs where a person, intentionally or recklessly, causes force to be applied to the body or
clothing of another (Fagan and ors). This may also occur where clothing is slashed or rubbed
(R v Day; Thomas). It also need not be violent, and be as slight as a mere touch (Collins v
Wilcock). At common law it must be direct in that it must be aimed at the victim or an object
on which the victim is supported (R v Salisbury).
Common Assault The Fault element (MR):
Common assault must have been committed intentionally or recklessly (R v Spratt; Vallance v
The Queen; etc.)
Intention: It is a crime of basic intent (R v OConnor; DPP v Majewski; Duff v The Queen). In
keeping common law assault as a conduct crime using the narrow, direct form of intention is
appropriate, as expressed in He Kaw Teh a decision to bring about a situation so far as it is
possible to do so to bring about an act of a particular kind or a particular result).
Recklessness: Somewhat unclear. Assault will be made out if the accused foresaw unlawful
force or the act causing an apprehension of immediate and unlawful personal violence
(Fagan). However the degree of foresight required is uncertain. Some sources call for
recklessness to be proven without further explanation, while others call for the accuseds
foresight of the possibility that force might be inflicted (MacPherson v Brown; R v Coleman
etc). This ties in with the NSW statutory provision of maliciously inflicting bodily harm in s 33
of the Crimes Act.

In R v Coleman it was considered to be sufficient that the accused foresaw the possibility of
some harm resulting from his or her own act.
Compare with Crabbes Case test for recklessness in relation to murder, where the possibility
test was replaced with the probability test.
Aggravated Assaults:
Assaults accompanied by a particular intention
Committed on particular classes of people (with a higher level of vulnerability)
Resulting in harm of a particular kind.
Lawful Assault:
The use of force may be considered lawful if it:
Forms part of ordinary social activity; (Collins v Wilcock; R v Boughey) - the jostling of
everyday life not assault, handshake at a party, friendly touch on the shoulder;
Forms the basis for an arrest or steps taken to prevent a breach of the peace; R v Turner a
person exercising lawful power of arrest may use reasonable force to effect that arrest, and
what amounts to reasonable force will turn on the facts of the case, including the nature of
the resistance put up by the accused. There is a corresponding right to resist unlawful arrest
(R v Ryan).
Is used in self-defence; General provisions for assessing self-defence against use or threat of
force is set out in the High Court decision in Zecivic v DPP whether the accused believed
upon reasonable grounds that it was necessary in self-defence to do what he [or she] did. If he
[or she] had that belief and there were reasonable grounds for it, or if the jury is left with
reasonable doubt about the matter then he [or she] is entitled to an acquittal.
In some jurisdictions, is used as a result of provocation; or
Is used reasonably and moderately to chastise children. See s 61AA of the Crimes Act NSW.
Consent to a common assault renders the act lawful, but there is considerable debate as to
whether this applies to aggravated assault. R v Donovan; R v Brown
Consent may be express or implied (Beer v McCann; Collins v Wilcock)

Assault: Problem Scaffold

Jurisdiction / B&SoP
Threat of Force Assault
Voluntariness
General presumption in law that conduct is willed (Bratty). There must be a deliberate act to
attract criminal responsibility. An act was not deliberate if it was not voluntary (Ryan).
Intoxication
Self-induced intoxication cannot be taken into account (s 428G).
Apprehension

At common law the act constituting assault must raise apprehension of immediate bodily
harm in the mind of the victim (Fagan; Pemble; R v McNamara). There must be awareness of
the possibility that contact would be made (Coleman).
it is not material that the person assaulted should be put in fear if that were so, it would
make an assault dependent not upon the intention of the assailant, but upon the question
whether the party assaulted was a courageous or timid person.
Brady v Schatzel [1911]
Immediacy
AR: the act caused another person to apprehend immediate and unlawful personal violence
(Fagan)
Threatening words over telephone can potentially meet test of immediacy (Barton v
Armstrong)
Immediacy will likely fail if victim knows attacker unable to reach them (Wilson v Kuhl; Ryan v
Kuhl)
A conditional threat? Rozsa v Samuels Distinction between:
Unlawful CT (party has no right to impose- - assault
Lawful CT (party has the right to impose) not assault e.g. threat to apply force unless
person threatened desists from unlawful course of action.
Has it gone beyond what is reasonable in self-defence?
Stretching the concept: Zanker jumping from moving car.
A present fear of relatively immediate imminent violence was instilled in her mind from the
moment the words were uttered and that fear was kept alive in her mind, in the continuing
present, by continuing progress, with her as prisoner, towards the house where the feared
sexual violence was to occur. they were a continuing threat second by second as they
progressed towards the house.
No requirement that threat must be real: R v Everingham
What if it is unreasonable for the victim to fear/apprehend immediate violence?
MacPherson v Beath (1975) 12 SASR 174, 177 (Bray CJ)
I do not pause to canvass that, though it seems to meif the defendant intentionally puts in
fear of immediate violence an exceptionally timid person known to him to be so then the
unreasonableness of the fear may not prevent conviction.
Subjective test: Take victim as you find them: R v Blaue
Conclude re: AR
MR:
Common assault may be committed intentionally or recklessly
Fagan An assault is any act which intentionally or possibly recklessly
Now clear that the fault element for common assault is intention or recklessness: R v Venna;
MacPherson v Brown

Intentionally or recklessly
1. causing apprehension of immediate personal violence; or
2. applying force
Intent
Thus when A strikes B (the act) having decided to or desiring or wishing to strike him, it can
be said that he intends to strike B. Intent, in another form, connotes knowledge. He Kaw
Teh
Recklessness
Standard is possibility not probability
it is accepted law in Australia that for statutory offences other than murder,
recklessness requires a realisation on the part of the accused that the particular kind of harm
done might be inflicted (that is, may possibly be inflicted) yet the accused went ahead and
acted
Coleman (1990) 19 NSWLR 467.
It is necessary to prove that the accused realised that the complainant might be subjected to
unlawful force, however slight, as a result of what the accused was about to do, but yet took
the risk that that might happen:
see R v Savage; DPP v Parmenter [1992] 1 AC 699.
When no force is applied:
It is necessary to prove that the accused realised that the complainant might fear that he or
she would then and there be subjected to immediate and unlawful force, but none the less
went on and took that risk.
Director of Public Prosecutions v Morgan
MR INTOXICATION
428B Offences of specific intent to which Part applies
(1) An "offence of specific intent" is an offence of which an intention to cause a specific
result is an element.
(2) SEE TABLE
428D Intoxication in relation to other offences
In determining whether a person had the mens rea for an offence other than
an offence of specific intent, evidence that a person was intoxicated at the time of
the relevant conduct:
(a) if the intoxication was self-inducedcannot be taken into account, or
(b) if the intoxication was not self-inducedmay be taken into account.

Assault Occasioning ABH s 59

Assault ABH: s 59(1)
whosoever assaults any person, and thereby occasions actual bodily harm shall be liable to
imprisonment for five years
AR = AR for Assault + ABH (So must know what ABH is)
COULD CAUSATION BE AN ISSUE?

MR = MR for Assault
Intention or Recklessness going to use of force or threat to use force. Its the same
as for common assault
NOT intent or recklessness to cause a specific injury ie. the ABH: Coulter v The
Queen (1988) 164 CLR 350; see also Percali (1986) 42 SASR 46.
What is ABH?
its ordinary meaning and includes any hurt or injury calculated to interfere with the health or
comfort of the V. Such hurt or injury need not be permanent but must, no doubt, be more than
mere transient or trifling
R v Donovon [1934] 2 KB 498, 509; R v Brown [1992] 2 WLR 441; Lardner.
ABH is capable of including psychiatric injury if:

the harm is more than mere emotions such as fear or distress or panic
the harm is an identifiable clinical condition.

See R v Chan Fook (discussed within Ireland and Burstow) - According to Chan-Fook,
the phrase actual bodily harm is capable of including psychiatric injury. But does not
include mere emotions such as fear or distress or panic.... and the condition must be an
identifiable clinical one.
In Ireland and Burstow, bodily harm was held to include recognisable psychiatric illness, such
as severe depressive illness and anxiety disorder.
Lardner Where the psychologists references to nervous shock were held to be merely
emotions
Assault of Classes of People (Police etc.)
S 58 Assault with intent to commit a serious indictable offence on certain officers
Whosoever:
assaults, resists, or wilfully obstructs any officer while in the execution of his or her
duty, such officer being a constable, or other peace officer, custom-house officer, prison
officer, sheriffs officer, or bailiff, or any person acting in aid of such officer, or
shall be liable to imprisonment for 5 years.
S 60 Assault and other actions against police officers
(1) A person who assaults a police officer while in the execution of the officers duty,
although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 5
years.
Execution of [their] duty
AR = AR for Assault + officer in execution of duty
MR = MR for Assault
R v K (1993) 118 ALR 596, 601
A police officer acts in the execution of his duty from the moment he embarks upon a lawful
task connected with his functions as a police officer, and continues to act in the execution of
that duty for as long as he is engaged in pursuing the task and until it is completed, provided
that he does not in the course of the task do anything outside the ambit of his duty so as to
cease to be acting therein.

DPP v Gribble (2005)

Barr J held that pursuant to section 6(3)(b) of the Police Act 1990 (NSW), police had a duty to
provide services for the protection of persons from injury or death, and property from
damage, whether arising from criminal acts or any other way. Barr J considered that this
meant that the Police were acting in the execution of their duty in removing the person from
the roadway.
Reynhoudt (1962) 107 CLR 381 - Proof
The prosecution does not need to prove that the accused knew the person assaulted was an
officer acting in the execution of their duty.
Wounding or GBH Section 33 CRIME OF SPECIFIC INTENT 428C APPLIES RE: SELFINDUCED INTOXICATION re: MR of the offence.
(1) Intent to cause grievous bodily harm
A person who:
(a) wounds any person, or
(b) causes grievous bodily harm to any person,
with intent to cause grievous bodily harm to that or any other person is guilty of an
offence.
Maximum penalty: Imprisonment for 25 years.
Wound?

Need to break or cut the interior layer of the skin (dermis) and breaking of the outer
layer (epidermis) is not sufficient: R v Smith (1837) 8 Carrington & Payne 173; Vallance
v The Queen (1961) 108 CLR 56
Penetration of the dermis will cause bleeding, and consequently evidence of free
bleeding will suffice to prove a wound was inflicted: R v Devine (1982) 8 A Crim R 45
Internal blood vessel breaking is not sufficient: Eisenhower (1984) 78 Cr App R 48 (DC)
Split lip is sufficient: R v Shepperd [2003] NSWCCA 35

GBH

S 4 definition of GBH
Any permanent or serious disfiguring of the person
Grievous bodily disease
Destruction of the foetus
really serious bodily injury: DPP v Smith [1961] AC 290
recognisable psychiatric illness: Chan Fook, R v Ireland; R v Burstow
Need not be permanent: Haoui v R [2008] NSWCCA 209).

Reckless GBH - Section 35

(1) Reckless grievous bodily harmin company
A person who, in the company of another person or persons:
(a) causes grievous bodily harm to any person, and
(b) is reckless as to causing actual bodily harm to that or any other person,
is guilty of an offence. (reform in 2012 following Blackwell v The Queen [2011])
Maximum penalty: Imprisonment for 14 years.
(2) Reckless grievous bodily harm
A person who:
(a) causes grievous bodily harm to any person, and
(b) is reckless as to causing actual bodily harm to that or any other person,
is guilty of an offence. (reform in 2012 following Blackwell v The Queen [2011])
Maximum penalty: Imprisonment for 10 years.

You can see that the offences in subsection (3) and (4) follow the same form just
substituting wound for causing grievous bodily harm
Remember Intoxication!!
428C Intoxication in relation to offences of specific intent
(1) Evidence that a person was intoxicated (whether by reason of self-induced intoxication or
otherwise) at the time of the relevant conduct may be taken into account in determining
whether the person had the intention to cause the specific result necessary for an offence of
specific intent.
(2) However, such evidence cannot be taken into account if the person:
(a) had resolved before becoming intoxicated to do the relevant conduct, or
(b) became intoxicated in order to strengthen his or her resolve to do the relevant conduct.
Does a defence apply?
Lawful Excuse
Lord Justice Goff in Collins v Wilcock [1934] 3 All ER 374, 378.
so widely drawn a principle must inevitably be subject to exceptions. For example,
children may be subjected to reasonable punishment; people may be subjected to the lawful
exercise of the power of arrest; and reasonable force may be used in self-defence or for the
prevention of crime. But, apart from these special instances where the control or constraint is
lawful, a broader exception has been created to allow for the exigencies of everyday life.
Defence of reasonable chastisement of children see s 61AA
Self-defence
Implied consent to ordinary incidence of social activity
Express Consent

Sane Automatism?
Where accused acts in a state of impaired consciousness such that their actions were not an
exercise of their will.
the critical point, as Barwick C.J. pointed out in Ryans case, is that the conduct was not
subject to the control and direction of the will, not the accuseds consciousness or awareness
of his conduct.
R v Radford (1985) 42 SASR 266, 275 (King CJ)
Sound/unsound mind test (also internal/external)
The significant distinction is between the reaction of an unsound mind to its own
delusions or to external stimuli on the one hand and the reaction of a sound mind to
external stimuli, including stress producing factors, on the other.
R v Radford (1985) 42 SASR 266, 276
..if on the evidence an accuseds acts may have been involuntary as a result of the operation
of events upon a sound mind as a result of sane automatism then a reasonable doubt
about the voluntariness of those acts will be sufficient to entitle him to acquittal. Falconer
Evidential Burden Falconer
Onus of proving guilt remains with prosecution. Onus not discharged if accuse able to raise a
reasonable doubt. That being said, usually a persons will accompanies their actions and
evidence is required to establish the extraordinary circumstance that the accuseds acts
occurred independently of the exercise of their will.

There simply must be evidence to displace ordinary human experience. Not enough to assert
acts were involuntary or loss of memory. Expert medical opinion required.
Other examples:

blow to head/concussion: R v Wogandt (1983) 33 ACrimR 31;

sleep disorders/walking: R v Burgess [1991] 2 WLR 1206; R v Parkes [1992] DLR (4th)
27,
consumption of alcohol or other drugs; R v OConnor (1980) 146 CLR 64 BUT NOT if
SELF-INDUCED: s 428G CA
hypoglycemia act arising out of use of insulin: R v Quick & Paddison [1973] 1 QB 910;
but not hyperglycemia resulting from failure to take insulin R v Hennessy [1989] 2 ALL
ER 9;
epilepsy; Yousef (1990) 50 A Crim R .

Mental Impairment section 23

1) Person .not to be convicted of murder if:
(a) at the time of the acts or omissions causing the death concerned, the persons capacity
to understand events, or to judge whether the persons actions were right or wrong, or to
control himself or herself, was substantially impaired by an abnormality of mind
arising from an underlying condition, and
(b) the impairment was so substantial as to warrant liability for murder being
reduced to manslaughter.
"underlying condition" means a pre-existing mental or physiological condition, other than a
condition of a transitory kind.
Elements
1. Abnormality of mind
2. that substantially impaired mental capacity to
i.
Understand Events, or
ii.
Judge right from wrong, or
iii.
Control actions
3. so substantial as to warrant reduction of murder to
manslaughter
Byrne v R [1960] 2 QB 396 at 403:
A state of mind so different from that of ordinary human beings that the reasonable [person]
would term is abnormal
.Inherent cause: natural feature of the mind that has existed since birth or developed
by reason of an innate disposition or natural deterioration: R v Whitworth [1989] 1 Wd
R437.

Must have some degree of permanency: Tumanako (1992) 64 A Crim R 149

not emotions e.g. anger, jealousy, bad temper, attitudes or prejudices: R v Whitworth
[1989] 1 Qd R 437, R v Purdy [1982] 2 NSWLR 964, 966
Burden of Proof:
it is necessary for the accused person to make out positively, upon a balance of
probability, that he was not criminally responsible, and that he was not of such a mental
condition at that time as to be criminally responsible.
Porter (1933)

MNaghten Rules (1843) 8 ER 718

[T]o establish a defence on the ground of insanity, it must clearly be proved that, at the time
of the committing of the act, the party accused was labouring under such a defect of
reason, from disease of the mind, as not to know the nature and quality of the act he was
doing; or, if he did know it, that he did not know he was doing what was wrong.
Porter (1933) 55 CLR 182 (Dixon J)
a state of disease or disorder or mental disturbance arising from some infirmity,
temporary or longstanding. If that existed it must then have been of such a character as to
prevent him from knowing the physical nature of the act he was doing or of
knowing that what he was doing was wrong.
Capacity to know the nature and quality of their conduct:
Porter (1933) 55 CLR 182, 188 (Dixon)
In a case where a man intentionally destroys life he may have so little capacity for
understanding the nature of life and the destruction of life, that to him it is no more than
breaking a twig or destroying an inanimate object. In such a case he would not know
the physical nature of what he was doing.
NO DEFENCE FOR PSYCHOPATHS
gross psychopath the question is whether the accused knew what they were doing was
wrong, not whether the accused had significant feelings about the effect of his actions.
Wilgoss v The Queen (1960)
Consequences:
MENTAL HEALTH (FORENSIC PROVISIONS) ACT 1990 - SECT 38
38 Special verdict
(1) If mentally ill at the time [of offence] the jury must return a special verdict
that the accused person is not guilty by reason of mental illness.
39 Effect of finding and declaration of mental illness
(1) [Court not to order releases] unless it is satisfied, on the balance of
probabilities, that the safety of the person or any member of the public
will not be seriously endangered by the persons release.
(3 ) Refer Mental Health Tribunal.
43 Criteria for release and matters to be considered by Tribunal
The Tribunal must not make an order for the release of a forensic patient unless it is satisfied,
on the evidence available to it, that:
(a)
the safety of the patient or any member of the public will not be seriously endangered
by the patients release.
Partial Defence - MURDER Extreme Provocation
23 Trial for murder-partial defence of extreme provocation
(1) If, on the trial of a person for murder, it appears that the act causing death was in
response to extreme provocation and, but for this section and the provocation, the jury
would have found the accused guilty of murder, the jury is to acquit the accused of
murder and find the accused guilty of manslaughter.
Evidential Burden on accused to provide or point to evidence that could be sufficient for
the jury to entertain a reasonable doubt on the version of the facts most favourable to the

accused ie is there a reasonable possibility the offence was committed as a

consequence of provocation?
Legal Burden - is then on the prosecution to negate the defence beyond reasonable doubt.
The prosecution need only demonstrate that one of the elements of the defence cannot be
made out.
Duty to Direct - If defence does not raise provocation, and yet evidence emerges to raise a
sufficient possibility that the accused was acting under provocation, judge must leave
provocation to the jury
Stingel v The Queen (1990) 171 CLR 312 at 333-334; Van Den Hoek v R (1986) 161
CLR 158 at 162.
Crimes Act 1900 (NSW) s 23(7)
If, on the trial of a person for murder, there is any evidence that the act causing death was in
response to extreme provocation, the onus is on the prosecution to prove beyond reasonable
doubt that the act causing death was not in response to extreme provocation.
Other Defences Remain Available:
Crimes Act 1900 (NSW) s 23(8)
This section does not exclude or limit any defence to a charge of murder.
23(2) An act is done in response to extreme provocation if and only if:
(a) the act of the accused that causes death was in response to conduct of the
deceased towards or affecting the accused, and
(b) the conduct of the deceased was a serious indictable offence, and
(c) the conduct of the deceased caused the accused to lose self-control, and
(d) the conduct of the deceased could have caused an ordinary person to lose selfcontrol to the extent of intending to kill or inflict grievous bodily harm on the
deceased.
(3) Conduct of the deceased does not constitute extreme provocation if:
(a) the conduct was only a non-violent sexual advance to the accused, or
(b) the accused incited the conduct in order to provide an excuse to use violence
against the deceased.
(4) Conduct of the deceased may constitute extreme provocation even if the conduct did not
occur immediately before the act causing death.
(5) For the purpose of determining whether an act causing death was in response to extreme
provocation, evidence of self-induced intoxication of the accused (within the meaning of Part
11A) cannot be taken into account.
(6) For the purpose of determining whether an act causing death was in response to extreme
provocation, provocation is not negatived merely because the act causing death was done
with intent to kill or inflict grievous bodily harm.
Issues: Conduct towards or affected the accused
Hearsay Provocation Whether conduct must be in sight or hearing of accused?
R v Fisher (1837) 8 C & P 182.
In all cases the party must see the act done In this case the father only heard of what had
been done from others
R v Arden [1975] VR 449, 452.
Rationale for exclusion: if hearsay provocation were available, an accused would be justified
in taking the life of an innocent man..

 The Queen v R (1981) 28 SASR 321, 326 (King CJ).

Words or conduct cannot amount to provocation unless they are spoken or done in the
presence of the killer although, of course, such words or conduct may be important as part
of the background against which what is said or done by the deceased to the killer is
assessed
Davis (1998) 100 A Crim R 573 (NSWCCA)
Conduct must have occurred within the hearing or presence of the accused
Dunford J at 577:
it was not strictly the conduct of the deceased which affected him but rather words of those
who reported the fact
Simpson J at 578 (agreeing with considerable hesitation and some uneasiness)
What in fact provokes the accused is the belief that the conduct occurred. If that belief is
erroneous, obviously there was no conduct within the meaning of the section
Bell AJ at 580 (agreeing with misgivings)
..the terms of the statute require at least the placing before the court of reasonable evidence
of provocative conduct by the deceased before the state of mind of the accused falls to be
considered..
Davis v The Queen (1998) 73 ALJR 139 at 139
(McHugh and Hayne JJ) refusing grant of special leave
We think that there is a strong case for saying that Quartly was wrongly decided on this
point. Having regard to the terms of the statute it would seem sufficient for the accused to
show that there was provocation on the part of the deceased and that it induced the accused
to lose his or her self-control.
BUT
having regard to the time elapsed between the reporting to the accused of the provocation
and his killing of the deceased and the circumstances of the killing, we think that no ordinary
person could have so far lost self-control to have formed an intent to kill or inflict grievous
bodily harm upon the deceased
Serious Indictable Offence
S 23(2)(b) the conduct of the deceased was a serious indictable offence, and
s 4 Crimes Act 1900 (NSW)
"Serious indictable offence" means an indictable offence that is punishable by
imprisonment for life or for a term of 5 years or more.
New limiting concept positive restriction

Central Element: Loss of Self-Control

S23(2)(c) the conduct of the deceased caused the accused to lose self-control
Loss of self-control NOT loss of all control:The kind of loss of self-control that is here in question is not something that results in a state
of automatism. Rather it is something that results in intentional homicide, the conduct of the
accused, and the intent with which that conduct occurred, being attributable to the accused's
emotional response to the provocation.
Chhay v R (1994) 72 A Crim R 1, 8 (Gleeson CJ).
More is required than anger or loss of temper or building resentment. There must, in my
view, be a loss of self-control which I understand to include a state in which the blood is
boiling or a state of fear or terror, in either case, to the point where reason has been
temporarily suspended

Peisley (1990) 54 A Crim R 42, 48 (Wood J)

Causation:
(c) The conduct amounting to a serious indictable offence must have caused the accused
to lose self-control.
What caused accused to lose self-control?
The Queen v R (1981) 28 SASR 321
BUT:
s23(4) Conduct of the deceased may constitute extreme provocation even if the conduct did
not occur immediately before the act causing death.
AND
this will provide protection for victims of long-term abuse in slow burn situations
Second Reading Speech NSW AG (8 May 2014)
the defence will need to trawl back through the history to find an act that can be
characterised as a serious indictable offence on which to pin the entire history

Stubbs, et al,
Principles of Causation
Substantial and operating cause of loss of self-control: R v Hallett [1969]
SASR 141; Pagett (1983) 78 Cr App R 279; Royall v The Queen (1991) 172
CLR 378.

Ordinary Person Test

The Ordinary Person and Ordinary Powers of Self-Control
Stingel v The Queen (1990 171 CLR 312 at 329.
The lowest level of self-control which falls within those limits of that range is required of all
members of the community
fairness and common sense dictate that, in at least some circumstances, the age of the
accused should be attributed to the ordinary person of the objective test
Masciantonio v The Queen (1995) 183 CLR 58, 67.
Since it is an objective test, the characteristics of the ordinary person are merely those of a
person with ordinary powers of self-control..although when it is appropriate to do so
because of the accuseds immaturity, the ordinary person may be taken to be of the
accuseds age.
S 23(2)(d) the conduct of the deceased could have caused an ordinary person to lose selfcontrol to the extent of intending to kill or inflict grievous bodily harm on the
deceased
the question is not now whether the mode of retaliation was proportionate to the act of
provocation. It is not even whether the act of provocation enlivened the intent to inflict the
particular injuries actually occasioned to the decease..
Green v The Queen (1997) 191 CLR 334, 391 (Kirby J)
Impact of contemporary conditions and attitudes?
Stingel (1990) 171 CLR 312, 327 citing Moffa (Gibbs J) and Parker (Windeyer J)
It will, however, be affected by contemporary conditions and attitudes Thus, in
Parker, Windeyer J. pointed out that many reported rulings in provocation cases show how
different in weight and character are the things that matter in one age from those which
matter in another.
Exceptions
23(3) Conduct of the deceased does not constitute extreme provocation if:
(a) the conduct was only a non-violent sexual advance to the accused, or

Green v The Queen (1997) 191 CLR 334, 408-9 (Kirby J)

For the law to accept that a non-violent sexual advance, without more, by a man to a man
could induce in an ordinary person such a reduction in self-control as to occasion the
formation of an intent to kill, or to inflict grievous bodily harm, would sit ill with contemporary
legal, educative, and policing efforts designed to remove such violent responses from society,
grounded as they are in irrational hatred and fear.
..the ordinary person in Australian society today is not so homophobic
Is the exclusion still necessary? Other Applicable limits/thresholds:
Serious indictable offence: 23(2)(b)
Objective ordinary person test: 23(2)(d)
23(3) Conduct of the deceased does not constitute extreme provocation if:
(b) the accused incited the conduct in order to provide an excuse to use violence against the
deceased.

SELF-HELP DEFENCES

418 Self-defencewhen available

(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the
offence in self-defence.
(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:
(a) to defend himself or herself or another person, or
(b) to prevent or terminate the unlawful deprivation of his or her
liberty or the
liberty of another person, or
(c) to protect property from unlawful taking, destruction,
damage or interference,
or
(d) to prevent criminal trespass to any land or premises or to
remove a person
committing any such criminal trespass,
and the conduct is a reasonable response in the circumstances as he or she perceives them.
R v Katarzynski [2002] NSWSC 613 [22] (Howie J )
The questions to be asked by the jury under s418 are:
(1) is there a reasonable possibility that the accused believed that his or her conduct was
necessary in order to defend himself or herself; and,
(2) if there is, is there also a reasonable possibility that what the accused did was a
reasonable response to the circumstances as he or she perceived them.
The first issue is determined from a completely subjective point of view considering all the
personal characteristics of the accused at the time he or she carried out the conduct
The second issue is determined by an entirely objective assessment of the
proportionality of the accuseds response to the situation the accused subjectively
believed he or she faced.
APPLICATION OF 2ND LIMB: - CONSIDER
(1) the circumstances as perceived, then

(2) whether the response was reasonable in those circumstances.

Circumstances as perceived mental impairment
What if the accused is mentally ill and has visual hallucinations which result in a
belief that someone is attacking him or her with a knife?
MNaghten Rules (1843) 8 ER 718
[T]o establish a defence on the ground of insanity, it must clearly be proved that, at the time
of the committing of the act, the party accused was labouring under such a defect of
reason, from disease of the mind, as not to know the nature and quality of the act
he was doing; or, if he did know it, that he did not know he was doing what was wrong.
Walsh (1992) 60 A Crim R 419, 428. (Slicer J)(TASSC)
If the jury is not satisfied on the balance of probabilities that the accused was not
responsible by reason of insanity then, and only then, can it consider whether, if the accused
had a deluded belief, such belief could be a circumstance which the accused believed, so as
to justify him using force in the defence of himself, and that such belief, although deluded,
made it reasonable to use such force.

2nd Limb Relevance of Intoxication s 428F DOES NOT APPLY

R v Katarzynski [2002] NSWSC 613 (Howie J )
[The jury] must take into account the accuseds intoxication when considering whether he
might have believed that it was necessary to act as he did in defence of himself and when
considering the circumstances as he perceived them, but not when assessing whether his
response to the circumstances was reasonable.
Excessive Self-Defence
421 Self-defenceexcessive force that inflicts death
(1) This section applies if:
(a) the person uses force that involves the infliction of death, and
(b) the conduct is not a reasonable response in the circumstances as he or
she perceives them,
but the person believes the conduct is necessary:
(c) to defend himself or herself or another person, or
(d) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty
of another person.
(2) The person is not criminally responsible for murder but, on a trial for murder,
the person is to be found guilty of manslaughter if the person is otherwise criminally
responsible for manslaughter.
R v Silva [2015] NSWSC 148
Accordingly, I find that the offender stabbed the deceased with an intention to inflict grievous
bodily harm because she believed her act was necessary to defend not only herself but her
brother and father. However, in accordance with the jurys verdict, the offenders conduct was
not a reasonable response in the circumstances as she perceived them, thereby rendering her
guilty of the crime of manslaughter by way of excessive self-defence.

Domestic Violence Circumstances

The Challenge of Reasonableness & Battered Woman Syndrome evidence
R v Lavelle [1990] 1 SCR 852 at 876 (Wilson J) 6 other judges agreeing How can the mental
state of the appellant be appreciated without it? Requirement of expert evidence for juries
determination.
See also R v Osland
Gaudron and Gummow JJ at 337:
Given that the ordinary person is likely to approach the evidence of a battered woman
without knowledge of her heightened perception of danger, the impact of fear on her thinking,
her fear of telling others of her predicament and her belief that she cant escape from the
relationship, it must now be accepted that the battered wife syndrome is a proper matter for
expert evidence.
Kirby J at 372 (footnotes omitted):
On analysis, it appears to be an advocacy driven construct designed to medicalise the
evidence in a particular case in order to avoid the difficulties which might arise in the context
of a criminal trial from a conclusion that the accuseds motivations are complex and
individual; arising from personal pathology and social conditions rather than a universal or
typical pattern of conduct sustained by scientific data.
THE RISKS:
Kirby J at 373 Citing R v Mallot [1998] 3 SCR 123 at 142
It is possible that those women who are unable to fit themselves within the stereotype of a
victimised, passive, helpless, dependent, battered woman will not have their claims to selfdefence fairly decided.
Kirby J at 374:
critics argue that the pressure to medicalise the response of a victim in a prolonged
violent relationship, and to attribute that response to the manifestation of an established
psychological or psychiatric disorder, distracts attention from conduct which may constitute
perfectly reasonable response to extreme circumstances. BWS denies the rationality of the
victims response to extreme circumstances.
Sexual Assault
There have been a number of recent reforms in the area of sexual assault in NSW.
Historical context, law reforms, social, political and cultural influences upon the law of sexual
assault. See the case of Brown where the law has regulated private and consensual
activity in the realm of assault. More recently, there has been change, perhaps reflecting
changes in attitudes.
Exercise caution with regard to pre-2008 commentary on the NSW provisions, the Crimes
Amendment (Consent-Sexual Assault Offences) Act 2007 has rearranged and changed the
wording of a number of provisions in division 10 of the Act.
Rape common law offence carnal knowledge of a woman forcibly and against her will.
Five changes:

Prosecution used to have to show force or resistance, questions were raised about
admissibility of victims sexual history but not the defendants prior charges or convictions
for sexual assault, among others.

1981 Reforms created a graduated series of statutory offences in NSW. This was a large
jump in how the common law dealt with the crime.
Marital rape immunity was abolished at this time. Also abolished common law immunity for
males under the age of 14. Definition of sexual intercourse was broadened as to the types
of penetration that fell within the definition. See 61H Crimes Act.

1984 Reforms:
Crime of buggery or male intercourse was abolished. Age and consent were not elements
of the crime. (s 79)
New offences dealing with males under the age of 18 consent being no defence.
Differential age requirements. This was repealed in 2003.
1989 Reforms:
Gave reforms their current shape.
Increase in penalties for sexual offences.
Consent addressed in the legislation (61R now repealed, a lot of the content now in 61HA
along with new content).
Aggravated sexual assault offences introduced with higher penalties see 61J and 61JA.
61JA came in 2001 after a particular incident.
2007 Reforms:

Substantial reforms, effectively codifying this area of the law.

Flowed from Criminal Justice Sexual Offences Task Force Report (April 2006) with 70
recommendations. Cultural shift and wide-scale reforms recommended.
Key issue was response rates investigation stage decision to prosecute high acquittal
rates were issues.
Introduction of mandatory reporting has had a large influence on reporting rates recently.
In comparison with the task force report there seems to have been a number of
concessions made.

The inclusion of the consent definition in the 2007 reforms was an important codification of a
cultural shift that had occurred over a number of years in NSW. Its influence has been
significant for a number of reasons.

CRIMES ACT 1900 - SECT 61I

Sexual assault
61I Sexual assault
Any person who has sexual intercourse with another person without the
consent of the other person and who knows that the other person does not
consent to the sexual intercourse is liable to imprisonment for 14 years.

Note that consent arises in the provision twice. It needs to be addressed twice. Once in the
victim (AR) and secondly in the mind of the accused (MR).
Consent a question of fact for the jury - See R v Olugboja [1982] QB 200.

Actus Reus
Has sexual intercourse with another person D had sexual intercourse with V
Without the consent of the other person sexual intercourse occurred without the consent
of the V.

Mens Rea
Who knows that the other person does not consent s 61HA(3)
Did the complainant consent?
Consent is a question of fact for the jury
R v Olugboja [1982] QB 320
The jury should be directed to concentrate on the state of mind of the victim
immediately before the act of sexual intercourse, having regard to all the relevant
circumstances; and in particular, the events leading up to the act and her [or his] reaction to
them showing their impact on her [or his] mind.
Actus Reus
has sexual intercourse with another person
D had sexual intercourse with V
without the consent of the other person
sexual intercourse occurred without the consent of the V
Mens Rea
who knows that the other person does not consent
s 61HA(3)
Scope:
S 61HA(1) Offences to which section applies
This section applies for the purposes of the offences, or attempts to commit the
offences, under sections 61I, 61J and 61JA.
Definition of Consent:
S 61HA (2) Meaning of consent
A person consents to sexual intercourse if the person freely and voluntarily agrees to
the sexual intercourse.
Aggravation
61J Aggravated sexual assault
(1) Any person who has sexual intercourse with another person without the consent of the
other person and in circumstances of aggravation and who knows that the other person does
not consent to the sexual intercourse is liable to imprisonment for 20 years.
(2) In this section,
"circumstances of aggravation" means circumstances in which:
(a) at the time of, or immediately before or after, the commission of the offence, the alleged
offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any
other person who is present or nearby, or
(b) at the time of, or immediately before or after, the commission of the offence, the alleged
offender threatens to inflict actual bodily harm on the alleged victim or any other person who
is present or nearby by means of an offensive weapon or instrument, or
(c) the alleged offender is in the company of another person or persons, or
(d) the alleged victim is under the age of 16 years, or
(e) the alleged victim is (whether generally or at the time of the commission of the offence)
under the authority of the alleged offender, or
(f) the alleged victim has a serious physical disability, or
(g) the alleged victim has a cognitive impairment, or
(h) the alleged offender breaks and enters into any dwelling-house or other building with the
intention of committing the offence or any other serious indictable offence, or

(i) the alleged offender deprives the alleged victim of his or her liberty for a period before or
after the commission of the offence.
(3) In this section,
"building" has the same meaning as it does in Division 4 of Part 4.
61JA Aggravated sexual assault in company
(1) A person:
(a) who has sexual intercourse with another person without the consent of the other person
and who knows that the other person does not consent to the sexual intercourse, and
(b) who is in the company of another person or persons, and
(c) who:
(i) at the time of, or immediately before or after, the commission of the offence, intentionally
or recklessly inflicts actual bodily harm on the alleged victim or any other person who is
present or nearby, or
(ii) at the time of, or immediately before or after, the commission of the offence, threatens to
inflict actual bodily harm on the alleged victim or any other person who is present or nearby
by means of an offensive weapon or instrument, or
(iii) deprives the alleged victim of his or her liberty for a period before or after the commission
of the offence,
is liable to imprisonment for life.
(2) A person sentenced to imprisonment for life for an offence under this section is to serve
that sentence for the term of the persons natural life.
(3) Nothing in this section affects the operation of section 21 of the Crimes (Sentencing
Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment for
life).
(4) Nothing in this section affects the prerogative of mercy.
61H Definition of sexual intercourse and other terms
(1) For the purposes of this Division,
"sexual intercourse" means:
(a) sexual connection occasioned by the penetration to any extent of the genitalia (including a
surgically constructed vagina) of a female person or the anus of any person by:
(i) any part of the body of another person, or
(ii) any object manipulated by another person,
except where the penetration is carried out for proper medical purposes, or
(b) sexual connection occasioned by the introduction of any part of the penis of a person into
the mouth of another person, or
(c) cunnilingus, or
(d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c).

Why have statutory definition of consent?

Accused argued:
It was consensual sexual activity
Consent may be given reluctantly and after persuasion but at common law that was still
consent R v Holman [1970] WAR 2
In 2005, Mueller in Hulme J (Hunt AJA agreeing) at 480:
in summing up in sexual assault cases judges should either avoid, or at least be very
careful in, referring to consent being freely and voluntarily given.
Freely and voluntarily

Prior to the statutory definition, Justice Hulme in Mueller observed that freely is defined in
the Shorter Oxford English Dictionary as
1. Of ones own accord, spontaneously; without constraint or reluctance; unreservedly,
without stipulation; readily, willingly
He also noted that voluntarily as defined in the Shorter Oxford English Dictionary
means:
1 Of a feeling, sentiment, etc: arising or developing in the mind without external
constraint; purely spontaneous in origin or character and
2 Of an action: performed or done of ones own free will, impulse, or choice; not
constrained, prompted, or suggested by another
#
NSW Bench Book states: Consent which is obtained after persuasion is still consent
provided that ultimately it is given freely and voluntarily.
Consent
Consent can be expressed by words or actions. Absence of consent can also be expressed by
words or actions
AM v R [2011] NSWCCA 237
Physical resistance not required
See s 61HA(7)
A person who does not offer actual physical resistance to sexual intercourse is not, by
reason only of that fact, to be regarded as consenting to the sexual intercourse.
Mistaken Belief
S 61HA (5) A person who consents to sexual intercourse with another person:
(a) under a mistaken belief as to the identity of the other person, or
(b) under a mistaken belief that the other person is married to the person, or
(c) under a mistaken belief that the sexual intercourse is for health or hygienic purposes
(or under any other mistaken belief about the nature of the act induced by fraudulent
means),
does not consent to the sexual intercourse. For the purposes of subsection (3), the other
person knows that the person does not consent to sexual intercourse if the other person
knows the person consents to sexual intercourse under such a mistaken belief.
Papadimitropoulos
Under common law the mistake must be as to:

character of the physical nature of the act, or

identity of the perpetrator

Consent demands perception as to what is about to take place, as to the identity of the man
and the character of what he is doing. But once the consent is comprehending and actual, the
inducing causes cannot destroy its reality and leave the man guilty of rape. (Dixon CJ,
McTiernan, Webb, Kitto and Taylor JJ)
Fraudulent conduct inducing her consent (an inducing cause)
Legislature deemed it does negate consent as a result of this case
Negation of Consent
Consent is automatically negated
S 61HA (5)
Mistaken belief: Identity; marriage; for health or hygienic purposes; nature of the act.
S 61HA (4)
Lacked capacity; lacked opportunity because asleep or unconscious; threats of force or terror;
unlawfully detained

Consent may be negated

S 61HA (6)
Substantially intoxicated; threat; intimidatory or coercive conduct; abuse of position of
authority or trust.
Did the complainant freely and voluntarily agree? (s 61HA (2)).
61HA Consent in relation to sexual assault offences
(1) Offences to which section applies This section applies for the purposes of the offences, or attempts to commit
the offences, under sections 61I, 61J and 61JA.
(2) Meaning of consent A person
"consents" to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse.
(3) Knowledge about consent A person who has sexual intercourse with another person without the consent of the
other person knows that the other person does not consent to the sexual intercourse if:
(a) the person knows that the other person does not consent to the sexual intercourse, or
(b) the person is reckless as to whether the other person consents to the sexual intercourse, or
(c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse.
For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case:
(d) including any steps taken by the person to ascertain whether the other person consents to the sexual
intercourse, but
(e) not including any self-induced intoxication of the person.
(4) Negation of consent A person does not consent to sexual intercourse:
(a) if the person does not have the capacity to consent to the sexual intercourse, including because of age or
cognitive incapacity, or
(b) if the person does not have the opportunity to consent to the sexual intercourse because the person is
unconscious or asleep, or
(c) if the person consents to the sexual intercourse because of threats of force or terror (whether the threats are
against, or the terror is instilled in, that person or any other person), or
(d) if the person consents to the sexual intercourse because the person is unlawfully detained.
(5) A person who consents to sexual intercourse with another person:
(a) under a mistaken belief as to the identity of the other person, or
(b) under a mistaken belief that the other person is married to the person, or
(c) under a mistaken belief that the sexual intercourse is for health or hygienic purposes (or under any other
mistaken belief about the nature of the act induced by fraudulent means),
does not consent to the sexual intercourse. For the purposes of subsection (3), the other person knows that the
person does not consent to sexual intercourse if the other person knows the person consents to sexual intercourse
under such a mistaken belief.
(6) The grounds on which it may be established that a person does not consent to sexual intercourse include:
(a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or
(b) if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not
involve a threat of force, or
(c) if the person has sexual intercourse because of the abuse of a position of authority or trust.
(7) A person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact,
to be regarded as consenting to the sexual intercourse.
(8) This section does not limit the grounds on which it may be established that a person does not consent to sexual
intercourse.

R v Chant; R v Madden
[Consumption of] drugs and/or alcohol and the mixing of them ultimately may lead to a
position that because of the state of intoxication, the person is unable to voluntarily and
consciously consent. They are so drunk that they cannot understand what is going on.
Nevertheless that does not mean that a person in a state of euphoria or well being
or intoxication induced by drugs or alcohol cannot consent to an act or acts of
intercourse. They obviously can.
Whether they do so is a question of fact and the fact that a person is intoxicated does
not necessarily mean that they cannot. It may depend on the question as to whether they
were so intoxicated that they could not consciously and voluntarily give such a consent. That
is a matter for you on the evidence.
Wood CJ; Newman J and Powell JA agreeing

Sexual Assault Mens Rea

S 61HA(3) Knowledge about consent

A person who has sexual intercourse with another person without the consent of the
other person knows that the other person does not consent to the sexual intercourse if:
(a) the person knows that the other person does not consent to the sexual
intercourse, or
(b) the person is reckless as to whether the other person consents to the
sexual
intercourse, or
(c) the person has no reasonable grounds for believing that the other person
consents
to the sexual intercourse.
For the purpose of making any such finding, the trier of fact must have regard to
all the circumstances of the case:
(d) including any steps taken by the person to ascertain whether the other
person consents to the sexual intercourse, but
(e) not including any self-induced intoxication of the person.
Mandatory consideration: s 61HA(3)(d)
The NSW Court of Criminal Appeal has recently confirmed that regard must be had to
para (d). Failure to do so is an appealable error: R v XHR [2012] NSWCCA 247.
Knows

This means actual knowledge

Need to establish BRD that the conclusion is available to be drawn from the evidence
that the accused knew that the complainant did not consent.

Reckless
Two forms of recklessness under the common law
Advertent Recklessness (see Hemsley)
Reckless Inadvertence (see Tolmie)
Advertent Recklessness: Where the D had foresight of the possibility that there was no
consent but went ahead with the sexual intercourse regardless of whether the complainant
was consenting or not: Hemsley (1988) 36 A Crim R 334.
Reckless Inadvertence
Where the accused has not considered the question of consent and a risk that the
complainant was not consenting to sexual intercourse would have been obvious to someone
with the accuseds mental capacity if they had turned their mind to it: Tolmie
Kirby J in Tolmie
Justifications for culpable inadvertence include:
need to punish an accused who is so bent on gratification and indifferent to the
rights of the victim as to ignore completely the requirement of consent

the invasion of human dignity, privacy, body and personality must be punished

recklessness arises when there is both conscious advertence and culpable inadvertence.

No Reasonable Grounds shift to objective test

New in 2008
Removes Morgan defence
cultural shift
the subjective test is outdated [and] reflects archaic views about sexual activity. It
fails to ensure a reasonable standard of care is taken to ascertain [whether] a person is
consenting before embarking on potentially damaging behaviour. An objective test is
required (Attorney-General, 7 Nov 2007) see B & McS p 659.

Defendant is Intoxicated
Sexual assault (s 61I) is a crime of basic intent.
S 428D applies
S 61HA(3)(e)
For the purpose of making any such finding, the trier of fact must have regard to all the
circumstances of the case:
(a) including any steps taken by the person to ascertain whether the other person
consents to the sexual intercourse, but
(b) not including any self-induced intoxication of the person.
This just confirms exclusion of self-induced intoxication

Aggravation? Meaning of in company.

R v Button; R v Griffen (2002) 54 NSWLR 455, (Kirby J)

R v Brougham (robbery):

A person commits a robbery in company where that person participates in the

robbery together with another or others in the sense that the victim is confronted by the
combined force or strength of two or more persons or that the forces of two or more persons
are deployed against the victim. It is not necessary that more than one participant actually
strike or rob the victim; it is sufficient that the accused and one or more other participants be
physically present for the common purpose of robbing or assaulting with intent, and of
physically participating if required. King CJ

R v Crozier (s 61J): mere presence is not enough

R v Leoni (robbery): presence at the scene with intention of physically
participating, if required, is sufficient (here the V knew of presence)

R v Button; R v Griffen (2002) 54 NSWLR 455 (Kirby J) [120].

1. the statutory definition requires the offender to be in the company of another
person or persons
2. the offender and such person, or persons, must share a common purpose (ie. to
rob or sexually assault)
Nb. This requirement recently confirmed in Markou v R [2012] NSWCCA 64
3. the cases assume that each participant is physically present
4. participation in the common purpose, without being physically present is not
enough
5. the perspective of the victim is relevant but not determinative.
R v Button; R v Griffen (2002) 54 NSWLR 455
Kirby J at 466
the test is the coercive effect of the group. There must be such proximity as would enable
the inference that the coercive effect of the group operated, either to embolden or reassure
the offender in committing the crime, or to intimidate the victim into submission

James J

not fixed in absolute terms at [71]

includes a purposive element or connection in purpose at [75]
not merely a concept related to physical distance at [76]

Complicity
Accessorial liability is linked to the perpetrators offence. The accessory is deemed to have the
same level of criminal responsibility as the principal. Rather than being viewed as an
extension of criminal responsibility like the inchoate offences of incitement or conspiracy,
accessorial liability is a mode of participation in the perpetrators offence.
This has caused some controversy must the fault element be identical for both the
accessory and the principle? Note that innocent agency and acting in concert doctrines
have evolved to address the derivative nature of complicity.
Acting in concert The High Court in Osland v The Queen held that individuals who jointly
agree to the commission of an offence and are present during its commission, are liable as
principal offenders, not as accessories.
NSW Crimes Act: Sections and Terminology
Those who promote a crime before it occurs:

Accessory before the fact (s 346)

Person who counsels or procures (s 351B)
Person who counsels, procures, solicits, or incites (corrupt commissions) (s 249(1))

Those who promote or assist a crime and are usually present when it occurs:

Person who aids or abets (s45(1))

(corrupt commissions) (s 249F)

Those who carry out the crime:

Principal offender (ss 346, 351B)

Those who assist another to escape punishment after the event:

Accessory after the fact (ss 347 350)

Aids, abets, counsels, or procures:

While these terms are to be interpreted separately and according to their general meaning,
the preferable view is that the phrase be interpreted as being descriptive of a general
concept:
Cussen ACJ stated in R v Russell [1933] VLR 59:
All the wordsareinstances of one general idea, that the person charged as a principal is in
some way linked in purpose with the person actually committing the crime, and is by his [or
her] words or conduct doing something to bring it about, or rendering more likely, such
commission.
And similarly by Mason J in Giorgianni v The Queen:

While it may be that in the circumstances of a particular case on term will be more closely
descriptive of the conduct of a secondary party than another, it is important that this not be
allowed to obscure the substantial overlap of the terms at common law and the general
concept which they embody.
And in R v Wong, Kellam J, citing Mason J favourably, stated that the formal division between
the terms was obsolete. He concluded that while an aider or abettor must do something to
bring about the commission of an offence, he or she does not actually have to be present at
the time of the offence.
The physical element of accessorial liability:
The prosecution must prove that the accessory manifested his or her assent to the
principal offenders actions in a manner that promoted their performance.
This must occur before or during the commission of the offence. The accessories influence
may range from minor role of encouragement by words or supplying materials (National Coal
Board v Gamble), to a major active role such as driving the principal to the scene, keeping
lookout, etc. (R v Clarkson; Betts and Ridley)
At common law there does not have to be a causal connection between the accessorys
assistance and the commission of the crime (OSullivan v Truth and Sportsman Ltd; R v
Calhaem).
There may be a causal linked required for procuring (Attorney-Generals Reference).
Accessorial Liability by inactivity:
What happens when a person is present during the commission of a crime and simply fails to
act, or prevent the crime from occurring?
Mere Presence: Depends on whether the conduct (presence) amounts to encouragement.
The presence should be non-accidental in nature, and the intention of encouragement must
be shown. See R v Coney Generally, mere presence is not sufficient, non-interference to
prevent a crime is not itself a crime.
See also in Lam Simply being present is not enough. Neither is presence due to curiosity,
high level of interest, or strong approval of the principals conduct. Liability for the
accessory arises from the contribution he or she intentionally makes to the
commission of the crime.
Wilcox v Jeffery accused found to be an accessory as he had paid to go to an illegal
concert with the intention of reporting on it.
An omission to act:
In general, the assistance must be a positive act. The exceptions are when the accused had a
duty to act, or had a power of control over the principal offender but deliberately refrained
from doing anything to prevent the commission of the offence.
This was addressed in R v Russell fathers duty to save his children from murder by his wife
gave rise to manslaughter charge (omission to act). Active encouragement would have given
rise to a secondary murder conviction.
Liability may also arise from a duty to act in contract, for example failure to prevent another
employee from stealing (Ex Parte Parker: Re Brotherson) or a disgruntled security guard
failing to turn on a burglar alarm.

The power of control situation may arise when a passenger in a car has the ability to prevent
an offence and fails to do so (Dennis v Plight; R v Harris). It may also arise out of control of
land (such as a pub Tuck v Robson) or potentially a chattel (Dennis v Plight).
Ultimately in Australia, following Giorgianni the accessory accused must have the
intention to assist or encourage the commission of the crime.
Withdrawal by an accessory:
Generally, after the commission of a crime the offender can not avoid criminal liability due to
repentance or an attempt to mitigate the damage caused. This is dealt with in sentencing.
However, for an accessory, liability does not crystallise until a crime is, in fact,
committed by the principal offender. This means if an accessory withdraws from
assistance / encouragement before the commission of a crime, they cannot be held liable.
That being said, repentance without a positive act will not negate the offence (White v Ridley,
and others).
In Tietie (NSW) the CCA followed the approach of Gibbs J as seeing withdrawal as a defence in
its own right. This approach requires both a timely countermand and such action as is
reasonably possible to counteract the effect of the previous conduct. An example of the latter
would be informing the police of the previous conduct (White v Ridley).
R v Rook simply withdrawing from the commission of the crime not enough if that
withdrawal has not been communicated to the other offenders. Cf Whitefield where the
accused had participated in the planning of a burglary but had told the principal he was not
going to participate before the offence had been committed, and was acquitted.
Elements of Withdrawal Ngawaka v The Queen:
1) There must in fact be a notice of withdrawal, whether by words or actions
2) The withdrawal must be unequivocal
3) That withdrawal must be communicated to the principal offenders, though
there is some debate as to whether the communication must be to all the
principal offenders.
4) The withdrawal may only be effected by taking all reasonable steps to undo
the effect of the partys previous actions. As with any test of
reasonableness, it is impossible to divorce that consideration from the facts
of a given case. If the accused was heavily involved it might be that they
would have to actively attempt to prevent the crime from occurring. If they
had only counselled the principal(s) then attempts to dissuade may be
sufficient (Grundy).
The fault element:
It is useful to distinguish between two aspects of the fault element for accessorial liability
those elements that concern attitude, and those that concern cognition:
Attitude mental state that accompanies the accessorys acts which assist or encourage the
principals commission of the offence. (Should this be restricted to that which is intended
to assist?)
Cognition Relates to the accessorys knowledge of the essential matters. Does complicity
require actual knowledge or can it simply be recklessness or wilful blindness?
Giorgianni approach to the fault element:
Attitude intentional assistance or encouragement:
Wilson, Dawson, and Deane JJ: Aiding, abetting, counselling, or procuring the commission of
an offence requires the intentional assistance or encouragement or the doing of those

things which go to make up the offence. There must be a specific intent that the
principal will commit the offence. Recklessness is not enough.
Cognition knowledge of the essential facts of the offence:
Actual knowledge rather than mere recklessness or wilful blindness is necessary. Belief of
possibility or probability (in this case that the brakes of a vehicle were defective) is
insufficient.
Principal and joint principal offenders:
While the principal offender is the person who physically performs the elements of the
offence, on occasion there may be more than that one perpetrator of a crime. There can
be joint principals if they are closely connected to the physical element of the offence (R v
Bingley).
For example, if a number of people were to beat a victim to death, or if one person held a gun
at someone while the other stole their property.
Innocent Agency: One way in which the concept of derivative liability can be bypassed.
Allows participants to be held liable even where the principal offenders conduct is not in itself
criminal or subject to criminal proceedings.
Key Case: Osland v The Queen - Also known as perpetration by means innocent agency
is a doctrine that attributes criminal responsibility to a person who has not personally
performed the physical elements of the crime. If a person uses another person, the
innocent agent, as the perpetrator of the crime, it is that person and not the
innocent agent who is regarded as the principal offender, regardless of whether
they were present at the scene of the crime.
Innocent agency may arise because of infancy, mental impairment, lack of
knowledge of the true facts, or belief that the act is not unlawful. Innocence
refers to lack of criminal responsibility rather than moral fault (Hewitt (1996)).
Exceptions: In Pinkstone v The Queen it was held that police officers seeking to incriminate a
suspect, and delivering drugs to another person could not be regarded as the innocent agents
of the drug dealer.
Acting in Concert:
This occurs when two or more perpetrators agree to a criminal course of action, and each
person does a different but associated physical act. For example, holding a person down while
the other attacker hits them. They need not even be in the same physical place at the time
(Camilleri). ??? Do they or do they not have to be present during the commission of
the act(s)???
In Osland Callinan J stated that those who act in concert are to be treated as being
causatively jointly responsible for the commission of the crime. This makes their
responsibility primary rather than derivative.
In the case of a person aiding, abetting, or procuring, the primary offence must be
proved before derivative liability can be made out. This requirement does not exist
for those acting in concert, they may still be held liable even where the perpetrator
is not.
For example, a person who has encouraged or assisted a crime prior to the physical
act may be convicted even when the perpetrator is unknown, has died, not been
arrested, or even acquitted (King v The Queen).

It may also lead to a conviction when the perpetrator is exempt from prosecution
(R v Austin) or has an available defence (Bourne; Matusevich).
In King, Mr King had encouraged someone to kill his wife. Mr Matthews had been
accused of actually committed the crime, but was acquitted. Mr King was still
convicted for murder. There was evidence to prove Kings encouragement BRD but
not Mr Matthews actions.
Matusevich v The Queen Joint charge of murder but one found not guilty by
reason of insanity. The majority of the High Court found that it is the acting in
concert which extends the liability. Accused could be liable provided that the
principal understood the nature and quality of the act, but just didnt know it was
wrong.
Gibbs and Stephen JJ extended the liability further, saying it was not necessary that
the principal understood the nature and quality of the act. Gibbs J also noted the
facts could have been analysed through the doctrine of innocent agency.
Doctrine of Common Purpose and Extended Common Purpose:
A mode of secondary participation that renders individuals who embark on a joint criminal
enterprise or plan to commit an offence (the foundational crime) liable for any further crime
(the incidental crime) committed by other group members in the course of that joint criminal
enterprise or plan.
At common law this is a distinct form of secondary liability which imposes accessorial liability
in relation to commissions of crimes that:
1) Fall within the scope of original criminal agreement (the doctrine of common purpose);
or alternatively
2) Do not fall within the scope of that agreement but are foreseen as a possible
consequence (the doctrine of extended common purpose.
Common purpose liability is determined by subjective reference to the minds of the parties,
and the scope of their agreement. There are two types of common purpose in the common
law, the traditional, and extended forms, as classified by Kirby J in Gillard v The Queen.
Traditional purpose: Requires the criminal act of the principal offender to be within the
subjective contemplation of the other parties. This was described in McAuliffe v The Queen:
[E]ach of the parties to the arrangement or understanding is guilty of any other crime falling
within the scope of the common purpose which is committed in carrying out that purpose.
Example: Johns v The Queen - Accused was the getaway driver for a robbery and waited in
the car. He knew the other two men were armed with loaded guns, and one was quick to
anger. There was a struggle during the robbery and the victim was killed. The majority stated
that:
[A secondary party] bears a criminal liability for an act with was within the contemplation
of both himself and the principal as an act which might be done in the course of carrying out
the primary criminal intention an act contemplated as a possible incident of the originally
planned particular venture.
Consensus between the parties may be explicitly stated or implied through the conduct of the
parties. In Hui Chi-ming v The Queen Lord Lowry stated:
It is not necessary that the understanding or arrangement be express. It can be tacit. It can
be arrived at by means of actions or words.
Extended Common Purpose:

This wider basis for common purpose was developed to include actions by the principal
offender which were not intended at the outset of the criminal endeavour, but which were
foreseen as a possible incident or consequence of their actions. (McAuliffe is the Australian
authority) This is the fault element of extended common purpose. There is no need for a joint
contemplation (Johns v The Queen).
See also McAuliffes Case In situations where a person foresees the possibility of harm
outside of the scope intended is possible, and when it does, continues to participate in the
venture, is as much a party to the crime which is an incident of the agreed venture as he is
when the incidental crime falls within the common purpose. Though the prosecution must
prove the individual concerned foresaw that the incidental crime might be committed and
cannot rely on the common purpose as establishing that state of mind.
Continuing Common Purpose:
Gillard v The Queen: Hayne J
Common purpose principles rightly require consideration of what an accused foresaw, not
just what the accused agreed would be done. The accused is held criminally responsible for
his or her continued participation in a joint enterprise, despite having foreseen the possibility
of events tuning out as in fact they did. It does not depend on identifying a coincidence
between the wish or agreement of A that an act be done by B and Bs doing of that
act. The relevant conduct is that of A in continuing to participate in the [original
criminal enterprise] despite foresight of what may be done by B.
See R v Hung Duc Dang The common purpose doctrine was established despite the
impulsivity of the crime. It doesnt matter that the plan was not to rob a particular person.
Carrying a knife was evidence of a reasonable foresight of the possibility of its use.
Clarification:
See also Tangye (for clarification) The Crown needs to rely upon a
straightforward joint criminal enterprise only where it cannot establish beyond a
reasonable doubt that the accused was the person who physically committed the
offence charged. It needs to rely upon the extended concept of joint criminal
enterprise, based on common purpose, only where the offence charged is not the
same as the enterprise agreed.

Accessories after the fact:

Liability as an accessory after the fact only arises if the principal offence has been committed
(Dawson v The Queen).
If the principal offender is acquitted, the AATF can only be convicted if there is sufficient
evidence that the principal offence took place (R v Williams; R v Dawson).
If the principal offender is convicted, the accessory may still argue that the principal offence
has not been proved against himself or herself (Mahadeo v The King). Proof of conviction of
the the principal offender is admissible and constitutes prima facie evidence that the
accessory also committed the act (Dawson).
The prosecution must prove:
AR:

The accessory must perform an act that assists or has the potential to assist the principal
offender escape from the administration of justice (R v Tevendale; R v McKenna). Examples of
which include:

Driving the principal offender from the scene of the crime (R v Holey)
Impersonal assistance, such as altering the engine number and repairing a stolen car (R v
Tevendale)
Helping dispose of stolen property (R v Butterfield; R v Williams)
The removal of incriminating evidence after an offence has been committed by the
principal (R v Levy)
Buying a car and clothes for the offender (R v Hurley)

Indirect assistance may also lead to a conviction as an accessory for example employing
another person to aid the principal offender (R v Jarvis).
The accessory must perform a positive act. In R v Ready it was held that simply
passing on a message was not enough. Merely enjoying the proceeds of crime
will also not be sufficient (R v Barlow). Nor will visiting a place where stolen
property has been brought with a view to possible purchase (R v Rose). These
may be dealt with as other offences.
MR:
The prosecution must prove BRD that the accessory:

Knew or believed the principal offender was guilty of the principal offence; and
Intended to assist the principal offender to escape from the administration of justice.

Knew or believed:
R v Tevendale; R v Stone Accessory must have knowledge of the precise criminal offence
that had been committed before he or she could be found criminally responsible (in NSW
different in other states).
Intention to assist:
Prosecution must prove BRD that the accused intended to assist the principal offender in
some way. Examples of this might be:

Impeding the investigation of the offence

Escape apprehension, prosecution, conviction, or punishment.
Dispose of the proceeds of the offence.

If the accused does the act solely for his or her own benefit, they will not be liable
as an accessory (R v Jones; R v Barlow)
But, if the accused acts partly for their own benefit and partly to help the accused
(e.g. paying for stolen goods) they will be liable as an accessory (R v Reeves).
An accessory whose act fails to assist the principal offender may be convicted of an
attempt (R v Maloney) not in the ACT.
There is always a common law defence of lawful authority (Crafter v Kelly).

Essentially Chapter 3 of the Code:

Particularly Larceny / theft / stealing and perhaps fraud will be assessable.

ACT and Cth Code jurisdictions based on the MCC which itself was based on the
Theft Act 1968 (UK).
The codification of the ACT Code is incomplete, and operates in parallel with the Crimes Act
1900 (ACT). Crimes against the person still remains in the Crimes Act. This will be inserted
into chapter 5 of the Code eventually.
Chapter 2 s 7 of the Code Application chapter 2 applies to everything in Chapter 3
(Property Offences). (First 5 pages if the supplied document). Physical, Fault Elements,
establishing guilt, etc.
Main principles of code interpretation see Kirby J in Barloww (1997) and Charlie (1999)
Queensland code was being interpreted but applies to codes in general.
Interpretation legislation applies to codes (theyre legislation).
It must be interpreted to be internally consistent see s 7 interpretation provisions. The
first loyalty is to the Code.
Pre-existing common law is relevant if there is ambiguity, technical, or special meaning.
Specifically, when the Code employs words and phrases that are conventionally used to
express a general common law principle, it is permissible to interpret th statutory
language in the light of decisions expounding the common law, including decisions that
come after the Code. This relates to contemporary common law.
Where alternative constructions are possible, the HC will interpret Codes in such a way as
to achieve consistency between jurisdictions.
Lecture Two Property Offences
Physical and fault elements must coincide under the common law of larceny the Thabo Meli
approach does not apply.
Difference between theft and minor theft? Indictable and summary offence respectively.
Different provisions s 308 and s 321.

321 Minor theft

(1) A person commits an offence (also theft) if

(a) the person dishonestly appropriates property belonging to someone else with the intention
of permanently depriving the other person of the property; and
(b) the property has a replacement value of $2 000 or less when it is appropriated. Maximum
penalty: 50 penalty units, imprisonment for 6 months or both.
(2) Absolute liability applies to subsection (1) (b). (Not the whole offence see s 24(2))
(3) This section does not prevent a person being charged with an offence against section 308
(Theft) if the replacement value of the property appropriated is $2 000 or less. (Prosecutors
are not obliged to use this offence)
24(2) If a law that creates an offence provides that absolute liability applies to a particular
physical element of the offence (a) there are no fault elements for the physical element;
and (b) the defence of mistake of fact under section 36 is not available in relation to the
physical element.
Alternative verdict provisions s 370-372 theft of motor vehicle, theft and
obtaining property by deception and receiving, etc.

Elements Analysis
Requires the ability to spot physical / fault elements of an offence and characterise
them correctly. There are five stated elements in theft.
308 Theft A person commits an offence (theft) if the person dishonestly (ss 300, 302 & 303)
appropriates (s 304) property (Conduct dishonesty / intention to permanently
deprive s 18(2)) (Code dictionary / Legislation Act) belonging to someone else
(Discreet physical element circumstance s 22(2) Recklessness s 20) (ss 301 &
305) with the intention of permanently depriving (Result 18(2)) (306) the other person of
the property.
NB Requirement that each physical element have a fault element
22 Offences that do not provide fault elements
(1) If the law creating an offence does not provide a fault element for a physical element that
consists only of conduct, intention is the fault element for the physical element.
(2) If the law creating an offence does not provide a fault element for a physical element that
consists of a circumstance or a result, recklessness is the fault element for the physical
element.
So can default fault elements be read into the s 308 theft provision? Yes
Note: only ever apply s 22 when there is no stated fault element.
The equivalent of Woolmington in the Code is section 12 and all elements of the
offence must coincide (sometimes referred to as the sixth element of this offence).
Physical Elements: Appropriation s 304
Appropriation of property for pt 3.2
(1) Any assumption of the rights of an owner to ownership, possession or control of property,
without the consent of a person to whom the property belongs, is an appropriation of the
property.
(2) If a person has come by property (innocently or not) without committing theft, subsection
(1) applies to any later assumption of those rights without consent by keeping or dealing with
it as owner. (Related to concurrence something can come into a persons
possession and then the mental element develops from innocent to dishonest
possession with an intention to permanently deprive)
(3) If property is, or purports to be, transferred or given to a person acting in good faith, a
later assumption by the person of rights the person believed the person was acquiring is not
an appropriation of property because of any defect in the transferors title.
Issues re: physical elements: s 304(1)

Any assumption (Stein v Henshall [1976] and Wilson v Woodrow (1987)) can turn to
case law to resolve ambiguity or when a word has taken on a particular technical meaning.
Any assumption covers things like refusing to return, riding in a car knowing it was stolen
(Wilson v Woodrow), driving a car known to have been stolen (Stein v Henshall).

Ownership, possession, or control an attempt to wind back the broad common law
definition practically it didnt really have an effect.
Issue of consent (Lawrence v Metropolitan Police Commissioner [1972]; R v Morris; R v
Gomez).
R v Morriss Changing label on a piece of pork ok to handle goods before purchase as
long as you dont go beyond the implied consent as to how you will do so.
Without the consent of A person to whom the property belongs Multiple owners all
owners must consent even one will cause the definition in s 304 to be met.
Re Hensall and Woodrow situations:
S 318 Taking motor vehicle without consent

Reading / Lecture Notes May 10

Property the second of the physical elements of theft. What does property mean? See the
dictionary of the code in conjunction with the definition in the Legislation Act 2001.
Particular issues:

Does this definition in fact depart from the MCC? Maybe probably
Is computer data property?
Things in Action (not s 330 to overcome the situation in Preddy [1996] AC 815.

Definition in Code Dictionary includes definition property (a) for this Act generallyincludes the following:
(i)

electricity;

(ii) gas;
(iii) water;
(iv) a wild creature that is tamed or ordinarily kept in captivity or that is, or is being taken
into, someones possession;
(v) any organ or part of a human body and any blood, ova, semen or other substance
extracted from a human body; and
(b) for part 4.1 (Property damage offences)see section 400. Note For further definition
of property, see the Legislation Act, dict, pt 1.
Means definition Legislation Act:
Property means any legal or equitable estate or interest (whether present or
future, vested or contingent, or tangible or intangible) in real or personal property
of any description (including money), and includes a thing in action.
Note: A thing in action is an intangible personal property right recognised and protected by
the law. Examples include debts, money held in a bank, shares, rights under a trust, copyright
and right to sue for breach of contract.
Incredibly broad definition See Croton (1967) dealt with the status of a bank account as a thing in action.
TIA eg money held in a bank A has money in a bank this is a representation of
the debt that the bank owes to A.

If property is read to be the same as the MCC, things like confidential information
and computer data are not considered to be property under the definition. They are
dealt with in a different part of the Code.
Taking the TIA further Preddy stealing via electronic funds transfer the thing in
action changes when the money moves between banks. Thing in action X becomes
thing in action Y. This is problematic, and doesnt fit within the law of theft.
Leads to a specific provision s 330:
330 Money transfers
(1) This section applies for this division and for the application of section 313 (Receiving) to
this division.
(2) If a person (A) causes an amount to be transferred from an account held by someone else
(B) to an account held by A (a) the amount is taken to have been property that belonged to
B; and (b) A is taken to have obtained the property for A with the intention of permanently
depriving B of the property.
(3) If a person (A) causes an amount to be transferred from an account held by someone else
(B) to an account held by a third person (C) (a) the amount is taken to have been property
that belonged to B; and (b) A is taken to have obtained the property for C with the intention of
permanently depriving B of the property.
(4) An amount is transferred from an account (account 1) to another account (account 2) if
(a) a credit is made to account 2; and (b) a debit is made to account 1; and (c) the credit
results from the debit or the debit results from the credit.
(5) A person causes an amount to be transferred from an account if the person induces
someone else to transfer the amount from the account (whether or not the other person is the
account holder).
S 307 General Deficiency
A person may be found guilty of theft of all or any part of a general deficiency in money or
other property even though the deficiency is made up of a number of particular amounts of
money or items of other property that were appropriated over a period.
In most cases the specific property would have to be listed by the complainant.
However, under s 307 the prosecution can show a general deficiency referable to
the conduct of the defendant. For example, when there is pilfering of a low level
occurring over a long period of time.
Physical Element 3 Belonging to someone else can be problematic due to
concurrence all elements must be simultaneously present.

Significance of section 301(1)- applies to the whole of Chapter 3

(1) Property belongs to anyone having possession or control of it, or having any proprietary
right or interest in it (other than an equitable interest arising only from an agreement to
transfer or grant an interest, or from a constructive trust).
(2) This section is subject to section 330 (Money transfers). Note Section 305 (Person to whom
property belongs for pt 3.2) affects the meaning of belongs.

Significance of sub-sections in s 305 in clarifying or modifying the general principle in s

301(1):
1. Multiple people to whom property belongs (s 305(1))
2. Trusts s 301(1) and s 305(2)

Property Continued:
Physical Element 3: Belonging to someone else
Overview of ss 305(2)-(5):
There provisions deal with situations where all forms of ownership (ie proprietary or
equitable right/inters, and possession and control of property) seem to have passed to
another person (usually the purported thief) with the apparent effect that the property in
question is not property belonging to someone else under the s 301(1) definition e.g. the
original owner at the crucial moment of the appropriation. They have been created to
deem the property to not have passed to the thief.
Section 305
(2) If property is subject to a trust (a) the person to whom the property belongs includes
anyone who has a right to enforce the trust; and (b) an intention to defeat the trust is an
intention to deprive any such person of the property.
Sometimes trusts do not benefit persons, they are set up for a particular purpose. For
example, a charitable organisation.
(1) Property of a corporation sole belongs to the corporation despite a vacancy in the
corporation.
Situations where there is a legal obligation to retain and deal with property in a
particular way (aka fiduciary ownership):
(2) If a person (A) receives property from or on account of someone else (B) and is under a
legal obligation to B to retain and deal with the property or its proceeds in a particular
way, the property or proceeds belong to B, as against A.
Usually to do with money the common law presumes that proprietary interest in money
passes at the moment of transfer: property, or ownership, generally passes with possession.
Proprietary interest in every other type of property passes when the parties intend it to pass.
See Hall [1972] Travel agent took money from customers who understood it was going
towards tickets to go to the US. It was not used for that purpose and Hall was charged with
theft. The Court looked for a legal obligation. They were looking for where the money went,
consolidated revenue? An account in the name of the customers? Was there a contract stating
the purpose? Other evidence of a contractual arrangement?
In this case the money had gone into consolidated revenue and there was no receipt or
evidence of a transaction. Thus the complainants could not establish theft.
Note: in a case where money is put into consolidated funds, potentially refundable
or for a specific purpose (e.g. tickets) not providing the tickets for example, will
not establish theft. It creates a debt, which can be pursued in the civil courts.

; Meech [1973] The courts focus on the moment when the obligation is assumed and
on the legal obligation that the recipient believed they were taking on at the
moment. Accordingly, the fact that an obligation turns out to be unenforceable in the civil
courts is immaterial if, from the accuseds point of view, at the time of the
agreement, he was of the view that he was legally obliged to return the money (having
contracted with the other party to do so).

; Wakeman v Farrar [1974] social security cheque there was a signed declaration that the
cheque would be returned.
S 322A - Greenberg; Making off without a payment relates to situations like the theft of
petrol scenario which doesnt fit neatly with theft.
322A Making off without payment
(1) A person commits an offence if
(a) the person knows he or she is required or expected to make immediate payment for
goods or services supplied by someone else; and
(b) the person dishonestly makes off
(i) without having paid the amount owing; and
(ii) with intent to avoid payment of the amount owing.
Maximum penalty: 200 penalty units, imprisonment for 2 years or both. (2)
This section does not apply in relation to a supply of goods or services that is contrary to law.
(1) In this section: immediate payment includes payment when collecting goods in relation
to which a service has been supplied
Fundamental Mistake: ss 305(5) and 305(6)
(5) If a person (A) gets property by someone elses fundamental mistake and is under a legal
obligation to make restoration (in whole or part) of the property, its proceeds or its value
(a) the property or its proceeds belong (to the extent of the obligation and as against A) to the
person entitled to restoration (B); and
(b) an intention not to make restoration is
(i) an intention to permanently deprive B of the property or proceeds; and
(ii) an appropriation of the property or proceeds without Bs consent.
(6) In this section: fundamental mistake, in relation to property, means
(a) a mistake about the identity of the person getting the property; or
(b) a mistake about the essential nature of the property; or
(c) a mistake about the amount of any money, if the person getting the money is aware of the
mistake when getting the money.
money includes anything that is equivalent to money.
Examples of things equivalent to money:
1 a cheque or other negotiable instrument

2 an electronic funds transfer

Note: An example is part of the Act, is not exhaustive and may extend, but does not limit, the
meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
Why is mistake a problem?
If a person comes by property with the consent of the original owner, but where the consent is
because of a mistake on the part of the original owner and, upon realising the mistake, the
recipient dishonestly forms an intention to permanently deprive the owner of that property,
what are the problems for the prosecution?
1. Is there an appropriation? In this case there is mistaken consent of the owner.
2. Who does the property belong to at the moment the fault elements of the offence
are formed? All elements of belonging are satisfied.
Illich does come into this Wilson and Dawson JJ (with Deane J agreeing) stated:
There are only three kinds of fundamental mistake by the victim (A) which prevent
property passing from A to B (the defendant):
1.
A mistake as to the identity of B; or
2.
A mistake as to the identity of the property passed; or
3.
A mistake as to the quantum/amount of property to
pass except in the
case of money or cash where
property passes with a change of possession.
Held: Mistake in Ilich was not a fundamental one (since it involved a mistake as to the
amount of money handed over from Brighton to Ilich). Since property in the money passed to
Ilich when the envelope was handed to him, there could be no theft.

But note, Illich is no longer needed for the general principles it is fully embodied
in the Code provisions. These provisions have been modified in s 305(5) and (6).
Timing becomes an issue when the property alleged to have been stolen is money.
First, ss 305(6) does not include mistakes as to the quantity of property other
than money in the definition of what constitutes a fundamental mistake.

Therefore, any mistake as to the quantity of property other than money is not
a fundamental mistake for the purposes of the theft in the ACT.

The other modification to Ilich effected by ss 305(6) is to change the rule in

relation to money so that different principles will apply to whether or not
property in money has passed depending upon issues of timing.

Legal obligation to make restoration:

Phrase not defined in the Code this means the common law can be used (Charlie; Barlow)

We already know what a legal obligation is (see discussion above re s 305(4)).

Attorney-Generals Reference (No 1 of 1983) [1984] 3 WLR 686:

Facts: Police officers salary was paid into her bank account by a direct debit system. She
was wrongly credited 74.74 for her wages and overtime for a day on which she did not
work. There was evidence that she became aware of the overpayment, but decided to do
nothing about it. She was charged with theft of 74.74

Restoration is like Restitution.

Under principles of restitution: a person is obliged to pay for a benefit received when
the benefit has been given under a mistake as to a material fact on the part of the
giver. The mistake must be as to a fundamental or essential fact and the payment
must have been due to that fundamental or essential fact (quoted in textbook at p
762).

Two triggers for FM - if theyre both in place property doesnt pass, and the original person
will be deemed to have not transferred the property.
See lecture recording for further summary.
Fault Elements for theft (stated and default):

The defendant must appropriate property:

1.
dishonestly; and
2.
with an intention to permanently deprive the owner of the property
(explicit fault elements in s 308 and s 321).

The defendant must be reckless as to the circumstance that the property

belongs to someone else (default fault element by application of s 22(2)).

NB All physical and fault elements must be concurrent.

306 Intention of permanently depriving for pt 3.2
(1)

A person (A) has the intention of permanently depriving someone else (B) of property belonging to B if
(a)

A appropriates property belonging to B without meaning B to permanently lose

(b)

A intends to treat the property as As own to dispose of regardless of Bs rights.

the property; and

(2)

For subsection (1), if A borrows or lends property belonging to B, the borrowing or lending may amount to
treating the property as As own to dispose of regardless of Bs rights if, but only if, the borrowing or lending is
for a period, and in circumstances, making it equivalent to an outright taking or disposal.

(3)

Without limiting this section, if

(a)

A has possession or control (lawfully or not) of property belonging to B; and

(b)
and

A parts with the property under a condition about its return that A may not be

(c)
the parting is done for As own purposes and without Bs authority; the parting
the property as As own to dispose of regardless of Bs
rights.
(4)

able to carry out;

amounts to treating

This section does not limit the circumstances in which a person can be taken to have the intention of
permanently depriving someone else of property.

Intention to permanently deprive - (NB actual intention concurrent with

appropriation)
Definition of intention (s 18).
The application of subsections 306(1), (2) and (3).
Note that s 306(4) makes clear that this section does not limit the
circumstances in which a person can be taken to intend to permanently
deprive.
Illustrative cases:
Lloyd [1985] QB 829; Useful for operation of sub-s (2)

Easom [1971] 2 QB 315; and (conditional intent)

Sharp v McCormick [1986] VR 869. (conditional intent)
18 Intention
(1)

A person has intention in relation to conduct if the person means to

engage in the conduct.
(2)

(3)

A person has intention in relation to a result if the person means to bring

it about or is aware that it will happen in the
ordinary course of events.

A person has intention in relation to a circumstance if the person believes that it exists or will exist.

Section 300
dishonest means
(a)

dishonest according to the standards of ordinary people; and

(b)

known by the defendant to be dishonest according to the standards of ordinary people.

Note 1 The following provisions affect the meaning of dishonest:

s 303 (Dishonesty for pt 3.2)
s 327 (Dishonesty for div 3.3.2)
s 354 (Dishonesty for pt 3.7).
Note 2 In a prosecution, dishonesty is a matter for the trier of fact (see s 302).

Intoxication Provisions
428A Definitions
In this Part:
"drug" includes a drug within the meaning of the Drug Misuse and Trafficking Act 1985 and a poison, restricted substance or drug
of addiction within the meaning of the Poisons and Therapeutic Goods Act 1966 .
"intoxication" means intoxication because of the influence of alcohol, a drug or any other substance.

"offence" includes an attempt to commit the offence.

"offence of specific intent" is defined in section 428B.
"relevant conduct" means an act or omission necessary to constitute the actus reus of an offence.
"self-induced intoxication" means any intoxication except intoxication that:
(a) is involuntary, or
(b) results from fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force, or
(c) results from the administration of a drug for which a prescription is required in accordance with the prescription of a medical
practitioner, a registered nurse whose registration is endorsed under the Health Practitioner Regulation National Law as being
qualified to practise as a nurse practitioner, a registered midwife whose registration is endorsed under the Health Practitioner
Regulation National Law as being qualified to practise as a midwife practitioner, or dentist, or of a drug for which no prescription
is required administered for the purpose, and in accordance with the dosage level recommended, in the manufacturers
instructions.
S 428B

(1) An offence of specific intent is an offence of which an intention to cause a specific result is an element.
(2) Without limiting the generality of subsection (1), the offences referred to in the Table to this section are examples of
offences of specific intent.
428C Intoxication in relation to offences of specific intent
(1) Evidence that a person was intoxicated (whether by reason of self-induced intoxication or otherwise) at the time of the
relevant conduct may be taken into account in determining whether the person had the intention to cause the specific
result necessary for an offence of specific intent.
(2) However, such evidence cannot be taken into account if the person:
(a) had resolved before becoming intoxicated to do the relevant conduct, or
(b) became intoxicated in order to strengthen his or her resolve to do the relevant conduct.
428D Intoxication in relation to other offences
In determining whether a person had the mens rea for an offence other than an offence of specific intent, evidence that a person
was intoxicated at the time of the relevant conduct:
(a) if the intoxication was self-induced-cannot be taken into account, or
(b) if the intoxication was not self-induced-may be taken into account.
428E Intoxication in relation to murder, manslaughter and assault causing death
(1) If evidence of intoxication at the time of the relevant conduct results in a person being acquitted of murder:
(a) in the case of intoxication that was self-induced-evidence of that intoxication cannot be taken into account in determining
whether the person had the requisite mens rea for manslaughter or for an offence under section 25A, or
(b) in the case of intoxication that was not self-induced-evidence of that intoxication may be taken into account in determining
whether the person had the requisite mens rea for manslaughter or for an offence under section 25A.
(2) An offence under section 25A is not an offence of specific intent for the purposes of this Part.
428F Intoxication in relation to the reasonable person test
If, for the purposes of determining whether a person is guilty of an offence, it is necessary to compare the state of mind of the
person with that of a reasonable person, the comparison is to be made between the conduct or state of mind of the person and
that of a reasonable person who is not intoxicated.
428G Intoxication and the actus reus of an offence
(1) In determining whether a person has committed an offence, evidence of self-induced intoxication cannot be taken into
account in determining whether the relevant conduct was voluntary.
(2) However, a person is not criminally responsible for an offence if the relevant conduct resulted from intoxication that was not
self-induced.
428H Abolition of common law relating to self-induced intoxication
The common law relating to the effect of intoxication on criminal liability is abolished.