Murder:

Murder is a statutory offence with a maximum penalty of imprisonment for life or 25 years (s18(1)
(a)). The standard non-parole period is 20 years unless the court decides that there are reasons for
setting a different period and records its reasons for doing so (s54B(2), (4)).

ACTUS REUS:
All of the four following elements must be proven:
1. An act or omission causing death.
2. Consequence of death.
3. Causation.
4. Voluntariness. (s18(1)(a)).

Omissions:
Where death is caused by an omission, there is no liability unless the accused was under a legal
duty to act and breached that duty.

Duty: From Taktak applying Jones, there is a legal duty to act:

• Where statute imposes a duty to care for another.

• Where there is a status relationship
◦ Parent and child relationship: (Russell – father watched children drown)
◦ Duty owed to husband/wife exists when the spouse is helpless (Cowan). However, there
is no duty where the spouse is capable mentally and physically of looking after
themselves (Russell).
◦ Employer/employee: A duty towards employees arises from an undertaking where
failure to honour the undertaking may expose the employee to danger (Smith)
• Where one has voluntarily assumed the care of another and so secluded the helpless
person as to prevent others from rendering aid.
◦ Stone and Dobinson: Duties to provide necessaries for life.
◦ Taktak: Duty to take reasonable steps to safeguard the life of another where one treats
the other in such a way as substantially to reduce the chance of the proviison of effective
assistance by someone else (however, failed because was unclear when V died)
• Where one has control over a dangerous thing, they are under a legal duty to take
reasonable steps to safeguard others from danger (Callaghan). They have a duty to:
◦ Prevent harm occurring from dangerous things under one's control.
◦ Take reasonable steps to avert a danger that one has created.

Breach: For an omission to be a breach of duty to act:

1. The omission must be unlawful.
2. The requisite mental and conduct elements for a breach of duty must be present.
3. The accused's conduct must fall short of what is expected of a reasonable person in that
position.

It is no excuse that:
• The accused is ignorant/mistaken as to the law creating the duty (Quelch)
• The accused was suffering from mental infirmity, involuntariness or peculiar religious belief
short of insanity (Stone).

Breach and causation: The breach of duty must have caused the death. It is insufficient if the
victim's death would not have occurred but for the accused's omission.
Omission and malice: The omission will amount to murder if it is malicious (s18(2)(a)).

Causation:
• An act or omission must have contributed significantly to the victim's death.
◦ It need not be the sole/main cause (Royall)
◦ Immaterial that it is impossible to prove which of the several acts of the accused
caused death (AG Ref No 4 1980)
◦ Sufficient that there is proof beyond resaonable doubt that death was caused by the
total effects of the accused's acts (Carrancega)
◦ Immaterial that the immediate cause of death is 1 or 2 steps removed from the
accused's acts/omissions. (Royall)
• An intervening cause may breach the chain of causation
◦ E.g. natural causes like earthquakes (Hallett).
◦ However, intervening causes will not break the chain of causation where the acts are
so causally connected with the event that they must be regarded as having a
sufficiently substantial causal effect.
◦ Hallett: Fight with victim in water; D left the beach; V drowned; Cannot say that V
was killed by the sea.
◦ Blaue: D stabbed V, who refused blood transfusion due to religious beliefs. The
question here is what caused that stab. The fact that V refused to stop death does not
break the causal chain.
• The foreseeability of V's death as a result of the act/omission may determine
whether that death was causally related. However, a common sense test is preferred
(Royall).
• Means of escape:
◦ RIK: V threatened by D, jumped onto train tracks; killed by train.
▪ Whether V's response was a reasonable or proportionate response in the
circumstances is a matter for the jury.
▪ V's response was reasonable as a person in V's position fearing for their safety
made a quick decision.
• Acts of a third party in self-defence:
◦ Pagett: D used V as a shield against police gunshots.
▪ An involuntary act caused by the act of D does not break the causal chain.
▪ Free, deliberate and informed acts by V break the causal chain.
Medical treatment and causation:
Inadequate treatment following a previous injury
• Chain of causation not broken between initial injury and death if the treatment is given bona
fide by competent and careful practitioners (Malcherek – life support)
• Only reckless, not negligent/incompetent medical treatement is sufficient to break the chain
of causation. So potent as to regard the first defendant's contributions insignificant.
• Jordan (UK): V stabbed, given wrong medication after wound healed; allergic reaction →
 Causal chain broken.
• Smith (UK): V had pierced lung because of D – haemorrhage. V dropped twice; not given
best treatment. Wound would have healed on own accord. Conviction upheld nonetheless.
• NSW s33 Human Tissue Act: Death occurs where there is:
◦ Irreversible cessation of all brain function
◦ Irreversible cessation of blood circulation.
Liability of the medical profession
• Doctor employs medical care of V who has underlying illness with no possible cure;
hastens death instead of alleviation pain – not murder (Adams).
• Treating a patient against wishes – competent patients
◦ Adult of sound mind is entitled to refuse medical treatment (St George)
◦ A doctor insisting on carrying out life-sustaining medical treatment against the wishes of
a patient is guilty of battery unless a court acts in its parens patriae jurisdiction and
authorises treatement (Royal Alexandria).
• Respecting a patient's wish to continue treatment: competent patients
◦ A doctor contrary to patient's wishes and with intention of terminating life, removed
artificial nutrition and hydration keeping him alive → murder (R (Burke))
• Withholding and discontinuing treatment: incompetent patients
◦ Parens patriae jurisdiction of NSWSC to protect the right of an unconscious person to
receive ordinary, reasonable and appropriate (as opposed to extraordinary, excessively
burdensome, intrusive or futile) medical treatement, sustenance or support (Northridge)
◦ Airedale (UK): V was a vegetable; no recovery. D withheld artificial feeding & drugs,
V's parents supported.
▪ Discontinuation of life is an omission, not an act
▪ Where V is incompetent, decide whether it is in the best interests of V to continue
treatment.
◦ Isaac Messiha (NSWSC): Disagreement between V's parents and doctors about
discontinuing life support
▪ Treatment is principally a matter for professional medical practitioners
◦ In NSW, the treatment of terminally ill people incapable of making their own decisions
is addressed in Guidelines.
▪ Consensus building approach involving the doctors and family, with patient's bests
interests put first.
▪ As a last resort, NSWSC invokes parens patriae
Euthanasia
• Aiding and abetting suicide or attempted suicide of another person – 10 years imprisonment
(s31C(1))
• Inciting or counselling another to commit suicide – 5 years imprisonment if V actually
commits or attempts suicide as a consequence (s31C(2)).
 • Using the internet, among other mechanism, to access or distribute material that 1) counsels
or incites suicide 2) regardless of whether this induces attempts to commit suicide
(s474.2(A)).
• Producing, supplying or possession material of the sort with a view to the commission of an
offence under s474.29A – 1000 penalty units.
• NT legislated practitioners to assist terminally ill over 18 yrs to terminate lives voluntarily.
Overridden by Euthanasia Laws Act (Cth) because it was a territory, not a state.
Suicide
• Not a criminal offence to commit suicide (s31A)
• The survivor of a suicide pact shall not be guilty of murder/manslaughter but may be guilty
of an offence under euthanasia (see above) (s31B(1))
• Suicide pact: Agreement between 2 or more persons having for its object the death of all of
them, whether or not each is to take his or her own life, but nothing done by a person who
enters into a suicide pact shall be treated as being done by the person in pursuance of the
pact unless it is done while the person has the settled intention of dying in pursuance of the
pact. (s31B(2)
• The onus of proving the existence of a suicide pact shall lie with the accused person on the
balance of probabilities (s31B(3))
Protecting the foetus
• Pregnant women are entitled to decide whether or not to undergo medical treatement. The
foetus' need for treatement does not prevail over this (St George)
• Therapeutic abortions are not unlawful. However:
◦ s82: 10 years imprisonment for unlawfully administering to themselves drugs, noxious
things, or unlawfully uses instruments or other means with intent to procure miscarriage.
◦ S83: 10 years imprisonment for unlawfully procuring the miscarriage of a pregnant
woman.
◦ S84: 5 years imprisonment for supplying or procuring a durg or instrument knowing it is
to be used unlawfully to procure a miscarriage.
◦ These do not require proof that miscarriage has actually been brought about, but only
that certain acts have been performed by certain people with intent to procure a
miscarriage.
• S42: Infliction of GBH on child during or after delivery
• s21: Wilful contribution to the death of a child whether during or after delivery, as an
alternative verdict on a charge of murder.
• Violence to a foetus causing death in utero: Not murder because a foetus is not a human.
◦ Where the foetus does not survive, this is GBH to the pregnant woman (King). Reflected
in s4. From this, if an assailant's objective is to destroy a foetus but in doing so he kills a
pregnant woman, he is guilty of murdering the woman on the basis that he intended to
cause GBH to her.
• Children born alive but dying because of earlier violence:
◦ If a child is born alive but dies because of earlier violence inflicted while still in the
womb, this is criminal homicide and causing death by dangerous driving (F)
 ◦ s20: On trial of a person for murder of a child, children are held to be alive if it has
breathed, and has been wholly born into the world, whether it has had an independent
circulation or not.
◦ Iby: Any sign of life after delivery is sufficient to satisfy common law born alive rule,
including evidence of heartbeat. Capacity to breathe without assistance unnecessary
• Regulation of abortion - Wald (UK): The defence of necessity available for abortion; The
accused must have had an honest belief on reasonable grounds that what they did was
necessary to preserve the women involved from serious danger to their life, or physical or
mental health which the continuance of the pregnancy would entail, not merely the normal
dangers of pregnancy and childbirth; and that in the circumstances the danger of the
operation was not out of proportion to the danger intended to be averted.
◦ Reasonable grounds from social, economic or medical bases.
◦ Wald test allows a consideration of economic demands of the pregnant woman, and
social circumstances affecting her health when considering the necessity and
proportionality of a termination.
◦ CES broadens this to include consideration of the possibility that the patient's
psychological state might be threatened after the birth of the child.

MENS REA:
One of the four following elements must be proven:
1. Intention to kill
2. Intention to inflict GBH
3. Reckless indifference to human life.
4. Constructive murder (s18(1)(a)).

Intention to kill
• The existence of the necessary intention to kill is tested by reference to subjective rather
than objective criteria. (s18(1)(a))
• The correct question for the jury is whether the accused actually formed an intention to kill.
This is a question of fact (Pemble).
• Foresight of death is not equivalent to intention, but may be regarded as evidence of an
intention to bring about that consequence (Vallance).
Intention to inflict GBH
• GBH: ‘any permanent or serious disfiguring of the person (s4)
• Bodily harm of a ‘really serious kind’ (Perks)
• It is immaterial that the harm was unlikely to cause death (La Fontaine).
Reckless indifference to human life
• Must foresee the probability of death (Crabbe).
• Foresight of GBH insufficient
• Probability means substantial and real, not remote, chance, and does not matter whether
it is more than 50% - (Faure).
• Mere possibility insufficient (Boughey; Annakin)

It is irrelevant that D did not intend that precise way that death occurred (Royall)
Constructive murder
Objective test – s 18(1)(a)
• Foundational crime must have maximum penalty of 25 years – s 18(1)(a)
◦ The relevant felonies include:
▪ hindering escape from shipwreck (s32),
▪ wounding with intent to resist arrest (s33),
▪ attempting to choke (s37),
▪ administering drugs with intent to assist the commission of an indictable offence
(s38),
▪ maiming and attempted maiming by gunpowder or acid (ss46, 47),
▪ wounding during robbery (ss96, 98),
▪ breaking and entering and inflicting grievous bodily harm (s110).
▪ There are no sexual assaults which fall into this category – (Mraz)
• No need to prove awareness of the possibility or probability of death; just mens rea of the
base offence – Munro
• Need to prove that D caused the death of V
• Act causing death was voluntary – Ryan
• Only casual link between the act causing death and the felony is the requirement for the act
to be “done in an attempt to commit, or during or immediately after the commission” of the
felony – Munro
◦ Immediately after – Hitchins – D robbed V, drove 45 minutes, stabbed V
• Does not need to be in furtherance of the foundational crime; can be accidental – Munro

MALICE:
Under s18(2)(a), the acts or omissions must be malicious. However, this is of little value as the
heads of murder rely on intent to kill or cause GBH, or reckless indifference to human life which
carry a state of mind of malice.

Manslaughter
Manslaughter occurs where D has performed the actus, but does not have the requisite intent of a
murder charge. If manslaughter is successfully proven, there is a penalty of 20 years imprisonment.
There is no standard non-parole period.

Manslaughter by unlawful and dangerous act

To prove manslaughter by unlawful and dangerous act (Wilson), there must be:
1. An unlawful act
• Any breach of criminal law is required E.g. running a red light; A breach of civil law
is insufficient (Pemble)
• Omissions cannot form the basis of an unlawful act (Lowe)
• The Prosecution must prove all components of the foundational offence. If D is able
to justify the foundational act, e.g. through self-defence or necessity, then the act
does not constitute an unlawful act for the purposes of unlawful and dangerous act
manslaughter (Downes)
2. A dangerous act
• Objective test. The jury must assess whether the act was such that a reasonable
person in the position of D and performing the same act would realise that it was
exposing others to an appreciable risk of serious injury (Wilson) Whether D was
aware the act was dangerous is irrelevant.
 • The hypothetical reasonable person is not attributed anything personal to D which
may affect his reasoning and judgment on the question of whether the act was
dangerous of not (Wills). Therefore, intoxication is precluded.
• Special knowledge: Where D has special knowledge, which if known to the
hypothetical ordinary person would make the act a more dangerous one, this
knowledge should be attributed to the ordinary person. E.g. D realised the gun had
a very sensitive trigger, this knowledge is attributable to the ordinary person.
• Defence of mistake of fact: If the facts had been such as D believed them to be, the
act would not have been dangerous. This is a defence towards actus reus.
3. Causation of death by the unlawful and dangerous act
• It is the unlawful act that must have caused V’s death.
• If V’s death was due to the unlawful and dangerous act, it does not matter that the
act was not aimed at V (Mitchell)

Negligent manslaughter by positive act

The Prosecution must establish:
• That D’s actions were voluntary
• That D’s acts caused V’s death
• The standard of care required:
o Objective test, with the standard being ‘a reasonable person in the same position as
D’ (Nydam)
o The personal characteristics and circumstances of D are not attributed to the
reasonable person. E.g. A person of limited capacity is judged according to the
standard of the reasonable person; Their physical/mental limitations will not be taken
into account.
o D’s special knowledge is attributed to the reasonable person. E.g. a pilot would be
expected to fly a plane to the same standard as a reasonable pilot (Wills)
• That there has been a gross departure from the standard of care amounting to criminal
negligence.
o Negligent manslaughter is not a mens rea offence. The assessment of D’s behaviour
is a purely objective determination of whether it was risk producing (Nydam)
o The offence is proven upon proof of risk producing behaviour on behalf of D that
can be characterised as ‘grossly negligent (Callaghan)
• Lavender:
o There is no requirement that the Prosecution prove awareness or belief of D
regarding the dangerousness of the situation
o No defence of honest and reasonable mistake of fact applies
o Prosecution need not prove D had malice

Negligent manslaughter by omission

The test for negligent manslaughter is:
• D must be under a legally recognised duty to act
o Parent/child relationships (Russell)
o Voluntary employment in an occupation which bears upon public safety (Lowe)
o Voluntary assumptions of care for helpless persons (Taktak, Stone and Dobinson)
o Situations where D has created a situation of danger by dealing with dangerous
things or doing dangerous acts (Callaghan; Taber)
• D must have omitted to fulfil this duty in a way which exhibited a great degree of
negligence
 o The Prosecution must prove circumstances which involved such a great falling short
of the standard of care which a reasonable man would have exercised, and which
involved such a high risk that death or GBH would follow, that the doing of the
act merited criminal punishment (Nydam)
o Stone and Dobinson: Ds took care of V, who refused to be washed or fed. Medical
evidence suggested she would have survived if medical assistance had been sought.
The fact that the defendants were incapable of meeting the reasonable person
standard would not be taken into account.
o George: Mild form of Asperger’s Syndrome is not relevant to criminal
responsibility
• As a result of this omission, V died
o D’s breach of duty must have caused V’s death
• Taktak:
o Legal duty to act: When D took V home, he assumed a legal duty of care because
he removed her from any potential medical assistance that she might have obtained
from others.
o Breach of duty: Mere negligence and mere inadvertence is not enough. D had no
medical knowledge and was a heroin addict himself. There was no evidence the
appellant knew she was about to die. He was negligent but not criminally negligent.
o Causation: Unsatisfactory medical evidence as to what hour she died and whether
her death could have been prevented.
Therefore, manslaughter conviction was quashed.

Note: Manslaughter by unlawful and dangerous act requires the Prosecution to prove that a
reasonable person would have recognised ‘an appreciable risk of serious injury’ (Wilson).
Manslaughter by criminal negligence requires the Prosecution to prove a ‘high risk of death
or GBH’.
 Common assault
Common assault can be one of two:
o Psychic assault: D intentionally/recklessly puts V in fear of imminent physical harm
o Battery: D intentionally/recklessly applies unlawful physical force against V
The penalty is:
o S61: maximum penalty for assault without ABH is 2 years if prosecuted on indictment
o If trialled summarily, maximum is 12 months or 20 penalty units (s268 Criminal
Procedure Act 268)
Ordinarily will be dealt with summarily unless the Prosecution elects otherwise. Actus for
assault:
D must:
• Act so as to create an apprehension by V of imminent unlawful contact (psychic assault)
 Positive acts: Omissions to act do not constitute assault (Fagan)
 State of V’s mind:
 V must have been put in fear of imminent unlawful contact (MacPherson)
 Unconscious/asleep Vs: Psychic assault cannot be committed (Pemble)
 Question revolves around whether D had necessary mens rea to create an apprehension of
imminent unlawful contact.
 Where D knows of V’s unusual timidity, the unreasonableness of the fear may not
prevent conviction (MacPherson)
 Where V’s fear is unreasonable, and D has no knowledge of this timidity, D will not
have mens rea.
 D need not be able to execute/fulfil the threat: E.g. where D points a water pistol at V
who believes it is a real pistol, D can be charged with assault (Everingham)
 Imminence:
 V must apprehend imminent, immediate unlawful contact (Zanker)
 Threats of future violence are not assault (Knight)
 Threats over the phone: D can be guilty of assault provided that the threats were
sufficient to ground a fear of imminent violence in V’s mind (Barton v Armstrong).
 Silent phone calls constitute assault depending on the facts. (Ireland; Burstow). The
silent caller intends by their silence to cause fear. If they are so understood, fear of the
caller’s arrival at their door may be imminent.
 Immediate and continuing fear (Zanker)
Even though V did not know when they would arrive, V was in a moving van taking
them there. The imminence increased.
The threat was to be carried out in the future, but there was no indication where the
house was. A present and continuing fear of relatively immediate imminent violence
was instilled, as the words were ringing presently in her ears as a continuing threat.
 Conditional threats: D imposes a condition upon V whereby if V does not meet that
condition, D will inflict violence. There are 2 approaches
 Looking at the words of the threat
Courts look at the words of D to determine whether or not there were any grounds for
V to fear imminent unlawful contact.
 Considering whether D had the right to impose the condition
E.g. Police v Grieves: D told V, police officer, that he would stab V if he came closer. D
subjected V to intimidation by threatening to apply force in the event of non-
compliance by V, to a condition D had no right to impose.
 Infliction of harm as a result of psychic assault:
 Causation requirement: Whether D was the substantial and operating cause of V’s
injury (Royall)
 It is irrelevant if D does not foresee V would inflict self harm: Only required that D
 intentionally/recklessly caused V to fear imminent unlawful contact (Zanker)
• Or apply unlawful contact against the person of another (battery) (Fagan)
 Omissions cannot amount to assault (Fagan). However, this was a case where D had acted
by switching off the car and maintaining the wheel on V’s foot. This constituted acts of the
offence.
 Mere touching can amount to assault (Collins)
 Spitting is unlawful contact (DPP v JWH)
 Consent:
 Consent may be express or implied (Collins). Prosecution must prove V did not,
expressly or impliedly, consent to the assault (Clarence)
 Commonplace, intentional but non-hostile acts like patting another on the shoulder
excluded from assault as V gives implied consent (Boughey)
 Consent and ABH:
V’s consent is not a defence to assault occasioning ABH (Brown)
Surgery, boxing, contact sports, lawful correction, dangerous exhibitions and
manly pastimes are lawfully recognised exceptions. (Brown)
Aitken: Airforce officers amused themselves by dousing each other with fuel and
setting it alight  horseplay
Attorney General’s Reference: ABH cannot be consented to unless the activity is
within the public interest. What is in the public interest is determined by what is
socially acceptable. Marginal behaviour which is unusual will depend on the values of
the judge.
Brown (S&M case) v Wilson (husband and wife home tattooing case): Brown was a
case of extreme torture with aggressive intent. Wilson required medical attention.
Emmett (husband and wife lighting each other on fire and having sex with plastic
bag on head): Activities went well beyond the line to which consent becomes
immaterial
 Consent and hostile intent:
Boughey: D applied pressure to V’s neck for arousal, resulting in death. Although
hostile intent is not necessary for battery, hostile intent can turn what would not
normally be battery into battery.
 Consent and medical profession:
Medical examinations and surgical operations are lawful where the procedure has been
consented to by the patient (or some other person authorised to provide such consent,
such as a parent or guardian), or emergent conditions make the procurement of consent
impractical.
Richardson (dentist fraud case): Informed consent is not part of the criminal law.
Offence punishable up to 7 years imprisonment for vaginal circumcision (S45).
Consent is not a defence (S45(5)). Surgical operations necessary for medical welfare
when performed by medical practitioners/authorised professionals.
Male circumcision is lawful
 Consent and contact sports:
Re Jewell: Victim received a sharp forearm to the head during football. Severe head
injury with brain damage. The test to apply is one of reasonableness having regard to
the rules of the game and the generally accepted risks accepted by reasonable players
as inherent in it. The particular incident was within the reasonable contemplation of
players despite the fact that the blow to the head was in breach of the rules.
Stanley: Rugby league player raised his elbow in a tackle and fractured the jaw of an
opposing player.
- Players do not consent to being injured during the course of the game by any act which is
not done in the legitimate pursuit of the objects of the game.
- Players do not consent to malicious use of violence intended or recklessly cause GBH.
  Chastisement:
 Corporal punishment in schools is not allowed in government (S35(2)(a)) and non-
government (s47(f))
 Defence of lawful correction only allowed if:
Physical force applied by parent/person acting for parent (s61AA(1)(a))
Physical force was reasonable having regard to the age, health, maturity or other
characteristics of the child, the nature of the alleged misbehaviour or other
circumstances (s61AA(1)(b))
Unreasonable if applied to head or neck (s61AA(2)(a))
Unreasonable if applied to a part of the body in a way which is likely to cause harm to
the child for more than a short period (s61AA(2)(b))
Mens rea for assault:
1) The intention to effect an unlawful contact
2) Or to create an apprehension of imminent unlawful contact in the mind of the other
person.
3) Or recklessness (MacPherson)
• The standard for reckless assault is that of ‘possibility’ rather than ‘probability’
(MacPherson)

• D must subjectively recognise the riskiness of their behaviour by their actual intention,
knowledge or foresight (MacPherson). Not judged by what the reasonably prudent man
would have intended, known or foreseen in the circumstances

• Negligence will not suffice (MacPherson)

Aggravated assault
Penalties:
o ABH: Maximum 5 years

o GBH: Maximum 7 years

Assault with further specific intent

These offences require that D not only had necessary mens rea for common assault, but also either
that:
a) D intended some greater level of harm to V, irrespective of whether you caused harm
b) The assault be part of another crime
The Prosecution must prove the further specific intent.
• s 27 and 29: Assault with intent to commit murder
• s 33-33B: Assault with intent to do grievous bodily harm or resist lawful arrest
• s 37-38 and 58: Assault with intent to commit an indictable offence.
Assault with particular injuries:
Where harm is caused in the form of actual injury to V, this may constitute an aggravated assault
with a higher penalty.
ABH:
• ‘Any hurt or injury calculated to interfere with the health or comfort of V. Need not
be permanent. More than transient or trifling’ (Donovan)
• Includes recognisable psychiatric illnesses (Ireland)
• Will not include emotions such as fear or panic or other states of mind which are not
 themselves evidence of some clinical condition.
4. GBH:
• ‘Really serious harm’ (Perks) For the jury to determine
• NSW s4(1): GBH is ‘any permanent or serious disfiguring of the person’. (This
statutory definition is inclusive, so the common law definition continues to apply).
• The destruction (other than in the course of a medical procedure) of the foetus of a
pregnant woman
• Any grievous bodily disease
5. Wounding:
Injury which breaks through the whole skin, both the inner and outer skin (Vallance).
• S 35: Reckless wounding or causing bodily harm.
o Reckless causing GBH penalty is 10 years
o Reckless causing GBH in company maximum penalty is 14 years (s35(1))
o D would not need to act with intent to cause wounding or GBH – sufficient if they acted
with intention to injure some person (Stokes and Difford)
o ‘Infliction’ requires the application of force directly/indirectly to V, providing causation and
the positive infliction of injury can be established.
• S 59: Assault occasioning ABH
o Mens rea is identical with that of common assault
• S 54: Negligent infliction of GBH. The degree of negligence required for conviction under this
provision is akin to that required for manslaughter by criminal negligence (gross negligence)
(D)
No need to establish that the offender intends to occasion ABH (Percali).
S5: Malice - acting with indifference to human life or suffering, or intent to injure some person(s),
without lawful cause or excuse, or acting recklessly or wantonly.
Assault causing a disease:
• S 4: GBH includes infliction of grievous bodily disease. It will be an assault with particular
injuries (recklessly causing GBH)
Assault using offensive weapons or dangerous
substances:
• S4: Offensive weapons are dangerous weapons, or anything that is made or adapted for
offensive purposes, or anything that, in the circumstances, is used, intended for use or
threatened to be used for offensive purposes, whether or not it is ordinarily used for offensive
purposes or is capable of causing harm’.
• Pittman v Di Francesco; S 10 Summary Offences Act: Ordinary objects may be offensive
weapons if brandished in a menacing manner
• Ss 33-33B: Offensive weapons
• S 38: Use of ‘chloroform, laudanum or other stupefying or over-powering drug or thing’
• Ss 39-41BA: Use of poison or other destructive or noxious thing to cause injury
• Ss 46-48 and 55: Use of explosive or corrosive substance to cause injury
• S 49: Setting traps
Assault on victims of special status:
• S 42: Assault on children at the time of birth
• S 43: Exposing or abandoning a child under the age of two
• S 44: Assault on (or neglect to provide necessaries for) wives, children, wards, apprentices,
servants and insane people
• S 56: Assault on clergy engaged in their duties
• S 57: Assault on persons endeavouring to preserve a vessel in distress
• S 206: Assault or threaten a member of the crew of an aircraft or vessel while on board
Assaults on police officers/similar officials (s58)
• Offence to assault, resist, or wilfully obstruct any officer while in the execution of his or her
duty. Applies to officials like constables, special constables, customs officers, prison officers,
sheriff’s officers, bailiffs or any person acting in aid of such officers. Maximum penalty for
assault a police is 5 years. Because it is a Table 2 offence, if it is dealt with summarily there is a
maximum term of imprisonment of 2 years.
• Reynhoudt: D assaulted a police officer but did not know he was a police officer.
o There is no requirement that the assaulter know that the police officer is a police officer.
o If V is not acting in the course of duty when assaulted, then D does not commit the
aggravated offence.
• However, He Kaw Teh refers to this, stating that the presumption for mens rea must be rebutted.
It is likely that if Reynhoudt was held after He Kaw Teh, it would have been in D’s favour.
• S60: It is an offence of assaulting, stalking, harassing or intimidating a police officer while
in the execution of the officer’s duty.
o Necessary for the Prosecution to prove that the police officer was put in fear or
apprehension, was forced into or deterred from some action by being put in fear, or was
overawed or cowed (Meller)
o Unnecessary to prove that such fear overbore them to such an extent that they were
influenced to or deterred from some action in the course of their duty. (Manton)
• S60A: It is an offence of assaulting, stalking, harassing or intimidating a law enforcement
officer (other than police officer)
• S60B: It is an offence of assaulting, stalking, harassing or intimidating a third party with
whom a law enforcement officer has a domestic relationship.
o The maximum penalty is 5 years imprisonment for section 60, 60A and 60B. If actual
bodily harm is inflicted under ss60 or 60A, the penalty is 7 years and if wounding or GBH
is inflicted, the penalty is 12 years.
• S546C: Summary offence where any person ‘resists or hinders or incites any person to
assault, resist, or hinder a member of the police force in the execution of his duty’. Liable
to imprisonment for up to 12 months, or a fine of up to 10 penalty units, or both.
• S33: Indictable offence for maliciously wounding, inflicting GBH, or shooting at a person
with intent ‘to resist, or prevent, the lawful apprehension or detainer’ of the actor or any
other person. Punishable by a maximum of 25 years.
• S33B: Indictable offence for use or threatened use of an offensive weapon, or the threat of
injury to person or property ‘with intent to prevent or hinder lawful apprehension or
detention’, or to prevent or hinder a police officer ‘from investigating any act or
circumstance which reasonably calls for investigation. Punishable by imprisonment for up to
12 years.
Assaults on public justice officials and other related persons:
• S322: Threatening or causing injury or detriment to witnesses, jurors, judicial officers, or public
justice officials; punishable by up to 10 years imprisonment.
• S326: Threatening or causing injury or detriment to a person on account of anything lawfully
done as a witness, juror, judicial officer or public justice official in or in connection with any
judicial proceedings; punishable by up to 10 years imprisonment.
o Orcher: s326 requires a close connection with the conduct of a judicial proceeding. The
conduct of a public justice official must be impinged with respect to the proper conduct of a
judicial proceeding. Threats to an arresting officer do not have the potential to detrimentally
affect the conduct of a judicial proceeding.
Assaults at schools:
• S60E: it is an offence to assault, stalk, harass or intimidate any school student or member of
 staff whilst attending school. The maximum penalty is 5 years imprisonment; if ABH inflicted,
the penalty is 7 years. If wounding or GBH is inflicted, the penalty is 12 yrs.
Assault during public disorder:
• S59A(1): A person who assaults any person during a large-scale public disorder, although not
occasioning bodily harm is liable to 5 years imprisonment
• S59A(2): A person who assaults any person during a large-scale public disorder and occasions
ABH is liable to 7 years imprisonment
• S59A(3): A public disorder means a riot or other civil disturbance giving rise a to a serious risk
to public safety, whether at a single location or from a serious of incidents in the same or
different locations.
• This offence has an automatic sunset clause of 2 years.

Sexual assault
Central sexual offences in NSW are:
• S61I, sexual assault
• S61L, indecent assault
• S61N, and an act of indecency
Each of these offences has a related aggravated version:
• s61J, aggravated sexual assault;
• s61M, aggravated indecent assault;
• s61O, aggravated act of indecency.
These offences also have a complementary attempt provision under s61P which makes it an offence
to attempt to commit an offence under s61I-s61O. The attempt offences provide for the same
maximum penalty as the commission of the completed offences.
Under s54D of the Crimes (Sentencing Procedure) Act 1999, s61I has a standard non-parole period
of 7 years imprisonment, s61J has a standard non-parole period of 10 years, s61JA has 15 years and
s61M has 5 years. S61K creates the offence of assault with intent to have sexual intercourse which
carries a maximum penalty of 20 years.
From s61I, any person who has:
1. sexual intercourse with another person
2. without the consent of the other person
3. and who knows that the other person does not consent to the sexual intercourse
is liable to imprisonment for 14 years.
Circumstances of aggravation under s61J(2) are
a) at the time of, or immediately before/after, the commission of the offence, D maliciously
inflicts ABH on V or anyone present/nearby
b) At the time of, or immediately before/after, the commission of the offence, D threatens to
inflict ABH on V or anyone present/nearby with an offensive weapon/instrument
o RJS: It is not necessary for the Crown to prove D brought the weapon to the scene
intending to use it in an offensive manner. It is sufficient to prove that D was using the
object in an offensive manner at the time of the commission of the offence charged.
c) D is in the company of another person/s
o Crozier: Mere presence is insufficient – there must be some encouragement or assistance
o Button; Griffen: While participation in the common purpose without being physically
present (e.g. accessory before the fact) is not enough, physical presence is an elastic
concept. The test is the coercive effect of the group. There must be such proximity as
would enable the interference 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.
d) V is under 16
e) V (generally/at the time of the offence) is under the authority of D
f) V has a serious physical disability
g) V has a cognitive impairment
h) D breaks into any dwelling-house or other building with intention of committing the offence
or any other serious indictable offence
i) D deprives V of their liberty for a period of time before/after the offence
Resulting in 20 years imprisonment (s61J(1))
Aggravated sexual assault in company under s61JA(1):
A person
• Who has sexual intercourse with another person without the consent of the other person and
who knows that the other does not consent, and
• Who is in the company of another person/s
• Who:
o At the time of, or immediately before/after, the commission of the offence,
maliciously inflicts ABH on V or any person nearby or
o At the time of, or immediately before/after, the commission of the offence, threatens
to inflict ABH on V or any person nearby with an offensive weapon/instrument or
o Deprives V of their liberty for a period before/after the offence
Is liable to imprisonment for life.
Immunities:
• Common law immunity for males under 14 has been removed (s61S(1)).
• Marital immunity has been removed (s61T)
Homosexual law reform:
• Age of consent is 16 years
• Gender neutral definition of sexual intercourse in s61H
Actus reus of Sexual assault
• Act: sexual intercourse
o S61H(1) Sexual intercourse is:
a) Sexual connection occasioned by penetration to any extent of the genitalia (include
surgically constructed vagina - transsexuals) of a female or anus of any person by:
i. Any part of the body by another person
ii. Any object manipulated by another person
Except where penetration is carried out for medical purposes
b) Fellatio
c) Cunnilingus
d) Continuation of sexual intercourse in a), b) or c)
• Circumstance: without consent
o S61HA(2): A person consents to sexual intercourse if they freely and voluntarily agree to it
o S61HA(1): Consent applies in relation to sections s61I (sexual intercourse), s61J
(aggravated sexual assault) and s61JA (aggravated sexual assault in company)
o S61HA(4): A person does not consent to sexual intercourse:
• If they do not have the capacity to by age or cognitive incapacity
• If they are unconscious or asleep
• If the consent results from threats of force/terror (whether the threats are against, or the
terror is instilled in, that person or any other person)
• If the consent results from being unlawfully detained
o Mistaken beliefs - S61HA(5): A person who consents to sexual intercourse with another
person:
a) Under a mistaken belief to the other person’s identity
b) Under a mistaken belief that the other person is married to them
c) Under a mistaken belief that sexual intercourse is for medical/hygienic purposes (or
 other mistaken belief about the nature of the act induced by fraudulent means)
Does not consent to sexual intercourse. The other person knows that the B does not
consent to sexual intercourse if the other person knows V is consenting under a
mistaken belief.
o S61HA(6): It ay be established that a person does not consent to sexual intercourse:
a) If V has sexual intercourse while substantially intoxicated by alcohol/drug
b) If V has sexual intercourse because of intimidatory or coercive conduct, or other
threat, that does not involve a threat of force, or
c) If V has sexual intercourse because of abuse of a position of authority or trust.
o S61HA(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
o S61HA(8): This section does not limit the grounds on which it may be established that a
person does not consent.
o Consent and submission: s61H(4)(c) states that submission to sexual intercourse as a
result of threats or terror (including threats directed against another person) and the failure
to offer physical resistance are not to be regarded as consent.
 Clark: Prison rape case. Three-stranded test
1. Complainant did not consent to intercourse
2. Consent is not consent unless freely and voluntarily given
3. If threats or terror emanated from person/s other than the accused, then V was not
consenting
 Mueller: V had schizophrenia and Aspergers. D took care of V and sexually assaulted
V, but said the acts were consensual. D said he held V’s hand on his leg and V stretched
out her hand to touch him.
 Silence or absence of positive resistance does not amount to consent.
 Consent given reluctantly or only after persuasion is still consent.
o Consent induced by fraud/mistake: s61HA(5)(a) and (b) provide that consent obtained
through a mistaken belief as to the identity of the other person or under the mistaken belief
of marriage is not to be taken as consent to sexual intercourse.
 Papadimitropoulos: Fraudulent marriage and then sex.
• Implied voluntariness
Mens rea for sexual assault:
• Knowledge that the other person does not consent to the sexual intercourse (s61H(3)(a))

• Recklessness as to whether the other person consents to the sexual intercourse (s61H(3)(b))

o DPP v Morgan: Subjective advertence to non-consent is sufficient mens rea

o Kitchener: V approached D to ask if she could have a ride on his motorbike. He acceded,
and sexual assault took place. V returned to boyfriend saying that D forced her to have sex
with him. D said that sexual intercourse had occurred but it was consensual, where V
fabricated the story to explain the time she had been away from her boyfriend.

The Crown has to prove beyond reasonable doubt that:

- D at the relevant time of the act foresaw at least the possibility that V does not consent, but
went ahead regardless, or

- D failed to avert at all to the question of whether V was consenting and went ahead
 regardless

• Banditt: V was asleep. Recklessness. For the jury to determine.

• The person has no reasonable grounds for believing V consents to sexual intercourse
(s61H(3)(c))

• For the purposes of making any such finding, the trier of fact must have regard to all the
circumstances of the case:

a) Including any steps taking by D to ascertain whether V consents (s61H(3)(d))

b) Not including any self-induced intoxication of the person (s61H(3)(e))

Indecent assault
From s61L, any person who:
1. Assaults another person and
2. At the time of, or immediately before/after the assault, commits an act of indecency on or in the
presence of the other person
Is liable to 5 years imprisonment.
Actus reus of indecent assault:
• An assault:
o Facts must disclose at least a common assault (DPP v Rogers)
- Intentional or reckless creation of apprehension of imminent unlawful contact (psychic)
 V must be aware of the threat of unlawful contact
 D’s conduct must amount to assault. D may offer indecency but if there is no
assault, it will not be indecent assault. E.g. inviting V to masturbate is an act of
indecency, however as there was no assault, there was no indecent assault
(Burrows)
 Assault can be committed without touching V (Rolfe)
- Intentional or reckless unlawful contact against V (battery)
 D may commit a technical battery where no pain is caused but D fondles or
touches V’s body (e.g. one male masturbating another (B)).
 No hostility required (Phillips)
 If D invites V to touch, there will be no assault (Fairclough) Upon D’s invitation,
V, a girl aged 9, touched D’s penis.
 No requirement for V to be aware of battery (Court) s61L requires ‘on or in the
presence of’
• In circumstances of indecency
- Harkin:
 Indecent assault must have a sexual connotation. Area of the V’s body to which
the assault is directed, D using an area of their body which would give rise to a
sexual connotation, genitals, anus, breasts
 Indecent means contrary to the ordinary standards of morality of respectable
people within the community.
 Jury must be aware that their task relates to the maintenance of contemporary
standards of decency (including modesty and privacy) in the community to
which they belong (approving Court).
• Knowledge that V was not consenting or might not be consenting to the assault.
- Onus on the Prosecution to negate consent (Lynch)
- Force and threats vitiate consent to assault
 - S77: Only people above the age of 16 can consent to indecent assault.
- S77(2): D can argue that they had reasonable cause to believe, and did in fact believe, that
V was over 16, only if the child is above 14 years old.
Mens rea of indecent assault:
• D intended to act unlawfully.
- D knew V had not consented to the act
- D was reckless as to consent (Fitzgerald)
- Non-advertent recklessness: Prosecution must establish that D had failed to advert to the
possibility of whether V was consenting or not to establish recklessness. (Fitzgerald v
Kennard)
• Where D mistakenly believes V consents, this belief need only be honest, not reasonable
(Nazif). Nevertheless, lack of reasonableness of a belief is of evidentiary significance.
Circumstances of aggravation under s61M(3) are:
a) D is in the company of another person/s
b) V is, generally or at the time of the act, under D’s authority
c) V has a serious physical disability
d) V has a cognitive impairment
It will result in 7 years imprisonment (s61M(1)). If V is under 16 years old, it is 10 years
imprisonment (s61M(2))

Act of indecency
A person who:
• commits an act of indecency with/towards a person under 16, or
• incites a person under 16 to an act of indecency with/towards that or other person
Is liable to 2 years imprisonment (s61N(1))
A person who:
• commits an act of indecency with/towards a person 16 years and over, or
• incites a person above 16 to an act of indecency with/towards that or other person
Is liable to 18 months imprisonment (s61N(2))
Aggravated act of indecency
Circumstances of aggravation under s61O(3) are:
a) D is in the company of another person/s
b) V is, generally or at the time of the act, under D’s authority
c) V has a serious physical disability
d) V has a cognitive impairment
Aggravated acts of indecency with those under 16 (s61O(1)): If D
• commits an act of indecency with/towards a person under 16 or
• incites a person under 16 to an act of indecency with/towards that or other person
• in circumstances of aggravation, they are liable to 5 years imprisonment (s61O(1))
Aggravated acts of indecency with those above 16 (s61O(1A)): If D
• commits an act of indecency with/towards a person 16 years and above or
• incites a person of 16 years and above to an act of indecency with/towards that or other person
• in circumstances of aggravation, they are liable to 3 years imprisonment (s61O(1A))
Acts of indecency with those under 10 (s61O(2)): If D
• commits an act of indecency with/towards a person under 10 or
• incites a person under 10 to an act of indecency with/towards that or other person
• they are liable to imprisonment for 7 years
Filming for child abuse material for those under 16 (s61O(2A): If D
• commits an act of indecency with/towards a person under 16, or
• incites a person under 16 to an act of indecency with/towards that or other person and
• knows that the act of indecency is being filmed for purposes of the production of child abuse
 material, they are liable to 10 years imprisonment.
- Child abuse material under Division 15A
- Filming occurs where one or more images (whether still or moving) are being recorded or
transmitted for the purposes of enabling those images to be observed by any person
(whether during the filming or later)

Apprehended Domestic Violence Orders

(ADVO)
By s16 Crimes (Domestic and Personal Violence) Act 2007:
1. A court may make an ADVO if
- it is satisfied on the balance of probabilities that a
- person who has/has had a domestic relationship with another
- has reasonable grounds to fear and in fact fears
a) the commission by the other person of a personal violence offence against the person,
or
b) engagement of the other person in conduct in which the other person:
i. intimidates the person or a person with whom the person has a domestic
relationship
ii. stalks the person
2. Despite subs(1), it is unnecessary for the court to be satisfied that the person for whose
protection the order would be made in fact fears that such an offence will be committed, or that
such conduct will be engaged in , if:
a) The person is a child
b) The person in the opinion of the court suffers from an appreciably below average general
intelligence function or
c) In the opinion of the court
i. The person has been subject at any time to conduct by D amount to personal
violence offence, and
ii. There is a reasonable likelihood that D may commit a personal violence offence
against he person, and
iii. The making of the order is necessary in the circumstances to protect V from
further violence.
3. Conduct may amount to intimidation of a person even though:
a) It does not involve actual or threatened violence to the person, or
b) It consists only of actual or threatened damage to property belonging to, in the
possession of or used by the person.
Domestic relationships (s5) includes spouses, de facto spouses, intimate personal relationship
(whether sexual or not), persons living (or who have lived) in the same household, persons in a
relationship of ongoing, dependent care, relatives, and same sex relationships.
Prohibitions are listed under s35. All orders contain conditions prohibiting stalking and intimidation
(s36) and may extend to those with whom the protected person has a domestic relationship (s36).
The court must make an order when D pleads guilty or is found guilty of a domestic violence
offence (s39) or a provisional order upon a charge for a domestic violence offence (s27).
Domestic violence offences include personal violence offences committed against persons in a
defined domestic relationship (s11).
Contravention of a prohibition or restriction specified in an order is an offence arrestable without a
warrant and punishable by up to 2 years imprisonment or 50 penalty units or both.

Stalking and intimidation

Section 13 of the Crimes (Domestic and Personal Violence) Act 2007 now provides:
1. A person who stalks or intimidates another person with the intention of causing the other person
to fear physical or mental harm is guilty of an offence. Maximum penalty 5 years imprisonment
or 50 penalty units, or both.
Under s 8, “stalking” is defined as:
the following of a person about or the watching or frequenting of the vicinity of or an approach to a
person’s place of residence, business or work or any place that a person frequents for the purpose of
any social or leisure activity.
The term “intimidation” is defined in s 7 as:
a) conduct amounting to harassment or molestation of the person, or
b) an approach made to the person by any means (including by telephone, telephone text
messaging, e-mailing and other technologically assisted means) that causes the person to fear
for his or her safety, or
c) any conduct that causes a reasonable apprehension of injury to a person or to a person with
whom he or she has a domestic relationship, or of violence or damage to any person or property.
 Larceny
Larceny is a common law offence in NSW. The maximum penalty for larceny is 5 years (s117).
From Illich, the actus reus of larceny requires proof that:
o There is property capable of being stolen (i.e. is tangible)
 Land is incapable of being stolen.
 Fixtures (things attached to land like houses and letterboxes; things growing out of
land such as trees and crops; things forming part of the land such as minerals and soil)
are incapable of being stolen. In determining an intention to permanently affix, the
courts taken into account factual issues like the method of attachment, the use to which
the item is put and the damage that would be caused by its removal (Billing v Pill)
 Stealing property initially part of the land but which had been broken off
by the defendant.
• Stealing metal, glass, wood etc fixed to house or land s139
• Stealing trees in pleasure-grounds s140
 Animals cannot be an object of larceny unless someone else has previously assumed
possession of them either from capturing or killing them.
 Domesticated farm animals can be taken from their possessor: Stealing or
interfering with farm animals: Maximum penalty is 14 years (s126)
 It is not larceny to steal from a bank account (Croton)
 Gas can be stolen from a pipe (White)
 Electricity and electronic data are not forms of property and cannot be stolen
 Data is not property (Oxford v Moss)
o The property is in the possession of a person other than the defendant (belonging to
another
 To show property belongs to another, less than actual possession is sufficient (Anic)
 Constructive possession of an employer/master: Possession is held by the
employee/servant within the terms of their employment/servitude (Williams v Phillips)
 Larceny by clerks/servants: Crimes Act s156 – Maximum 10 years imprisonment.
Property is ‘any property belonging to, or in the possession, or power of, his or her
master, or employer, or any property into or for which it has been converted, or
exchange’
 Abandonment: The ‘owner’ is the person who was the last person in possession of the
property.
 If property is found on somebody’s land, property is constructively in the
possession of that person, even if they are unaware of it (Hibbert v
McKiernan)
o The property is taken and carried away by the defendant (asportation)
 Apprehending the accused in the act: Any movement of goods with intent to steal them
is sufficient to constitute asportation. It is sufficient asportation if there is a removal of
the property from the spot where it was original placed with an intent to steal (Wallis v
Lane)
 Thinking about taking something does not amount to taking (Potisk)
o The taking is done without the consent of the possessor
 Lack of consent requires evidence of a state of mind of the owner or possessor to deny
the passing of possession. Lack of positive intention to pass the possession will not
succeed (Middleton)
 Implied licence: E.g. retail stores – the store by implication gives a customer a licence
to pick up and inspect goods and to carry those goods around until a purchase is made
at the cash register. This licence is limited to bona fide customers (Kolosque v
Miyazaki)
 Implied licence: lost property is found – the prior possessor is deemed to consent to the
 finder taking possession in order for the property to be returned (Thurborn)
Also from Illich, the mens rea of larceny requires that:
6. The property is taken with an intention to permanently deprive
• Intent to return property is not a defence (s118)
• Appropriation of goods as if they are your own is intent to permanently deprive
(Foster)
• An intention to borrow money is not available as evidence that there is no intention
to permanently deprive. (Williams)
• Property will have been taken with an intention to permanently deprive, despite an
intention to return, if the intention to return is conditional (Lowe v Hooker).
• Exhausting the virtue: This applies when the true value of property consists in its
ability to be used in a particular way. This ability may be limited to a number of uses
or a time during which it can be used. E.g. taking of a ticket for travel – although
the ticket can be returned the next day, it has become useless (Beecham)
• Changing the nature of the property: An intention to effect permanent deprivation
of possession of goods can also include dealing with the property in such a way as
to change the nature of the property (Weatherstone)
7. The property is taken without any claim of right to the property
• The claim of right must be one that involves a belief as to the right to property or
money in the hands of another (Langham)
• The claim must be genuinely held. It doesn’t have to be well founded in fact or law
(Nundah)
• A colourable pretence is insufficient (Dillon)
• The belief must be one of a legal entitlement to property and not simply a moral
entitlement (Bernhard)
8. The property is taken fraudulently (or dishonestly)
• Peters applying Feeley: The jury must decide by the standards of ordinary, decent
people.

General fraud offences

Deception:
S192B(1): Actus of deception is any deception, by words or other conduct, as to fact or as to
law, including:
• A deception as to the intentions of the persons using the deception or any other person, or
• Conduct by a person that causes a computer, machine or any electronic device to make a
response that the person is not authorised to cause it to make
4. False statements:
a. The falsity of a statement may arise, not only because a fact therein alleged is falsely
alleged, but because the statement, by omitting material facts, creates a false
impression (M)
b. Distinct from mere puffery (an exaggerated or enthusiastic description or claim
intended to increase interest in the property)
i. Claim that a spoon was made ‘of the best material’ was mere puffery (Bryan)
ii. Telling a customer that a diamond was 7.5 carats when it was only 4 carats is
a false pretence (Patmoy)
5. Deception by conduct and silence
a. Conduct without words could amount to a form of false pretence or deception
(Barnard) – Defendant dressed in academic cap and gown created the impression
they were a student of a university entitled to credit from a shop
b. Obtaining an authorised response from a computer or ATM (s192B(2))
 c. Making representations which later turn out to be to the contrary : If a person
makes a representation that at the time is true, or not recklessly false, there is no
obligation on them to alert a victim to a change in circumstances that make the
representation false.
d. DPP v Ray (UK) – dine and dash case: Held that in ordering the meal, D had by his
conduct represented that he would pay for it. Although an honest representation at
the time, by continuing to sit at the table for some time after making the decision not
to pay, his behaviour created dishonest deception that he was an ordinary customer
and was still intending to pay.
e. Silverman (UK) – the other party is dependant and gullible: In circumstances of
mutual trust (unquestionably gullible people), one party depends upon the other for
fair and reasonable conduct. The criminal law may apply if one party takes dishonest
advantage of the other by representing as a fair charge that which he but not the other
knows is dishonestly excessive
S192B(2): Mens rea for deception is that the deception must be intentional or reckless
• The defendant need not know that their actions constitute deception.
• It is sufficient if the defendant is reckless as that his or her actions constitute a deception.
• Assumed that the applicable test for recklessness is an awareness of the possibility that the
behaviour is deception (Stokes and Difford)
• The deception need not only be in relation to facts; it can be a deception as to law.
• The Prosecution must also prove that this deception caused the obtaining of property, or
the causing of financial advantage or disadvantage, and that intending this consequence
was dishonest.

Obtaining property from another

4. Property: Includes both tangible and intangible property (including land) (s4).
Because of this, belonging to another cannot be restricted to possession, but has to
extend to include forms of control of intangibles.
5. Property belongs to a person if:
a. The person has possession or control of the property (S192C(3)(a))
b. The person has a proprietary right or interest in the property
(not being an equitable interest arising only from an agreement to
transfer or grant an interest or from a constructive trust) (S192C(3)
(b))
c. If the property is subject to a trust, the person to whom it belongs
include any person having a right to enforce the trust. (S192C(3))
Actus of obtaining property belonging to another
192C (1) For the purposes of this Part, a person obtains property if:
• The person obtains ownership, possession or control of the property for himself or herself or for
another person, or
• The person enables ownership, possession or control of the property to be retained by himself or
herself or by another person, or
• The person induces a third person to do something that results in the person or another person
obtaining or retaining ownership, possession or control of the property.
S192C(1) defines obtaining of property to only require that the accused or third party gain control
or possession of the property. Hence, fraud covers situations where the victim is tricked into
handing over possession or control, but doesn’t intend to hand over the property permanently.
Mens rea of obtaining property
192C(2): Intention to permanently deprive
192C(4):
• A person obtaining property belonging to another without meaning the other permanently to
 lose the thing itself has intention to permanently deprive.
• Borrowing/lending property may amount to intention to permanently deprive if and only if the
borrowing/lending is for a period and in circumstances making it equivalent to an outright
taking or disposal.
S192(5): If a person has possession or control (lawfully or not) of property belonging to another (a),
and the person parts with the property under a condition as to its return that the person may not be
able to perform (b), and the parting is done for the pruposes of his or her and without the other’s
authority (c), the parting amounts to treating the property as his or her own to dispose of regardless
of the other’s rights.

Obtaining financial
advantage/disadvantage
Actus of obtaining a financial advantage:
S192D Obtaining financial advantage
(1) Obtain a financial advantage includes:
iii. Obtain a financial advantage for oneself or another person, and
iv. Induce a third person to do something that results in oneself or another person
obtaining a financial advantage and
v. Keep a financial advantage that one has,
Whether the financial advantage is permanent or temporary.
• Financial advantage is a term of clear and plain meaning, not to be given any narrow
construction (Walsh)
• Finance may cover, depending on the context, payment of a debt orcompensation, ransom,
stock of money, borrowing of money at interest, pecuniary resources of a state, company or
individual, to engage in financial operations, to provide oneself with capital. Advantage has
a meaning of having the better of another in any respect, the result of a superior position, to
benefit or profit (Murphy)
• Obtaining services, money, or property by means of a bogus cheque amount to a financial
advantage (Murphy)
• The length of time the financial advantage is held for may be transitory.
• Coelho: Car did not have registration, so the accused was not able to drive. It was a
practical advantage not a financial advantage. If the car was consequently sold, this would
make it a financial advantage.
Actus of causing a financial disadvantage:
S192D Causing financial disadvantage
(2) Causing a financial disadvantage means:
• Cause a financial disadvantage to another person, or
• Induce a third person to do something that results in another person suffering a financial
disadvantage,
Whether the financial disadvantage is permanent or temporary
e) In debt evasion, liability hinges on the disadvantage caused to a creditor by the
dishonest failure to repay by the debtor.
f) This section also allows for liability where the defendant engages in spiteful actions
designed to cause harm to a victim, irrespective of any gain to the defendant.
g) This also allows Prosecutors to chose the forensically easier side of a fraud. E.g. it may
be easier to demonstrate that the defendant removed money from a victim’s account
rather than that the money has in some way been used to the defendant’s advantage.
Mens rea for obtaining a financial advantage or causing financial disadvantage:
There is no accompanying mens rea, leaving mens rea for this element to be implied (He Kaw Teh).
Murphy suggests there need not be an intention to cause a permanent change.
Causation: There must be a causal connection between the deception used and the obtaining of the
thing in question (Ho and Szeto).
• Ho and Szeto: Traders deceived clients into believing the shares they acquired were being
traded on the Futures Exchange however they were being traded privately.
• Not necessary that the person deceived was the person who suffered the loss (Kovacs).
What must be established is a causal connection between the deception used and the
obtaining of the money.
• Victim is indifferent: If the representation is one that to which the victim is indifferent to,
there is no effective pretence, false promise or deception (Clemesha).
• Attempt to deceive: If the activity does not have its intended effect on the mind of the
person to whom it is addressed, because that person realises that a deception is being
practised, the offence is not committed even if the property is handed over. However, there
will have been an attempt to obtain by deception (Kassis)
Dishonestly: s192E requires that the person' by any deception, dishonestly' obtain or cause.
Dishonest is defined in s4B as dishonest according to the standards of ordinary people and known
by the defendant to be dishonest according to the standards of ordinary people (1). It is a matter for
the jury to decide (2).
• Dishonesty and claim of right: Where there is a claim of legal right, the issue is whether
there was a belief in a legal right to obtain the property, not whether there was a belief in a
legal right to practise the deception (Love).

Other fraud offences

Knowing or reckless provision of false information in applications, statements or documents
provided to Government authorities in attempts to obtain benefits or comply with statutory
requirements (s307A, B and C). There is no requirement that the recklessly false statement be
dishonest, or that the benefit sought, or statutory requirement sought to be complied with, provide
any financial disadvantage to the defendant or the other person. It is a 2 years imprisonment penalty.
Forgery and false instruments: The maximum penalties for these offences are 10 years
imprisonment or more.
Identity theft and fraud:
• The assumption of a false identity is not a crime. The critical issue is to determine the
intent with which a false identity is assumed.
Deal in identification information: includes make, supply or use any such information.
Identification information: Information relating to a person (whether living or dead, real or
fictitious, or an individual or body corporate) that is capable of being used (whether alone or in
conjunction with other information) to identify or purportedly identify the person, and includes:
a) a name or address,
b) a date or place of birth, marital status, relative’s identity or similar information,
c) a driver licence or driver licence number,
d) a passport or passport number,
e) biometric data,

f) a voice print,

g) a credit or debit card, its number or data stored or encrypted on it,

h) a financial account number, user name or password,

I) a digital signature,

j) a series of numbers or letters (or both) intended for use as a means of personal
identification,

k) an ABN.

Dealing with identification information with intention of committing or facilitating the

commission of an indictable offence is guilty of an offence punishable by 10 years imprisonment
(s192J)
A person who possesses identification information with intention of committing or facilitating
the commission of an indictable offence is guilty of an offence punishable by 7 years
imprisonment (s192K).
A person who a) possesses equipment, material or other things capable of being used to make
a document or other thing containing identification information, and b) intends that the
document or other thing will be used to commit or to facilitate the commission of an indictable
offence is guilt of an offence punishable by 3 years imprisonment.
• No requirement that the document apable of being produced by the equipmet be in any way
misleading or unlawful. It need only be a document containing identification information.
Therefore, a piece of paper with an address written on it could fall within the intended uses
of the prohibited equipment – a pen.
• Requires proof that the person intended to both create a document and to use it to commit
the indictable offence. Causation element requirement so as to be able to say it was 'used' in
the offence.
It does not apply to people dealings with the own identification information (s192M(1)).
It applies even if committing the offence is impossible or the offence concerned is to be committed
at a later time (s192M(3)).
All three offences require proof that the accused intend to facilitate or commit an indictable offence.
There is no requirement that the identification information be used in the facilitation or commission
of the indictable offence.
While the offence requires a proof of an intention to commit an indictable offence, the legislation
imposes no requirement that the indictable offence be a fraud or false identity related offence. Nor
is there any requirement that the identification information be used in any misleading or
unauthorised manner.
Dishonestly obtaining or dealing in personal financial information s480.4 Criminal Code: A
person is guilty of an offence if the person:
a) Dishonestly obtains or deals in personal financial information; and
b) Obtains, or deals in, that information without the consent of the person to whom the information
relates.

Personal financial information: Information relating to a person that may be used (whether alone or
in conjunction with other information) to access funds, credit or other financial benefits. (s480.1u).
• This does not require any intention to commit a criminal offence with the data. Instead, the
offence requires that the information be held in a manner that is dishonest – circumstances
where the defendant is aware that ordinary people would consider the possession of the
information to be dishonest.
S480.5: Prohibits the possession or control of any 'thing' with the intention that it be used by the
person or another person to commit or facilitate a breach of s480.4.
S480.6: Prohibits the importation of any thing with the same intention.
Both have a maximum of 3 years imprisonment.
It is not possible to be convicted of attempting to commit or facilitate the offence in s480.5 but it is
possible in s480.6. There is no requirement that the 'thing' be specifically designed to obtain the
data unlawfully.

Aggravated trespass offences

Breaking/entering
s113: Offence punishable up to 10 years imprisonment to break and enter any building with intent
to commit a serious indictable offence. If the serious indictable offence is successfully committed,
the maximum penalty is increased to 14 years (s112).
D does not break in?
• s114(1)(d): Offence of entering or remaining upon any building or land associated with it
with intent to commit an indictable offence in the building, punishable up to 7 years
imprisonment (Dugan)
• s111: Offence punishable up to 10 years imprisonment to enter a dwelling house with intent
to commit a serious indicitable offence. But if you enter with intent and then break out, you
are liable to a penalty of up to 14 years imprisonment (s109).
• If you enter without criminal intent, but commit a serious indictable offence while in the
dwelling house or a range of other buildings, and then break out, sentenced up to 14 years
imprisonment (ss109).
Aggravating circumstances exist where the defendant:
• Is armed with an offensive weapon or instruments
• Is in the company of another
• Uses corporal violence
• intentionally or recklessly inflicts ABH
• deprives anyone of their liberty
• Knows there is someone else in the building.
◦ If in fact there was someone in the building, D is presumed to know of this unless they
can prove they had reasonable grounds for believing there was no one in place
(s105A(2A))
• Where D wounds or maliciously inflicts GBH, or is armed with a dangerous weapon, a
specially aggravated offence is committed (s105A).

Receiving and goods in custody

Receiving stolen property
Offences of receiving, disposing of, or attempting to dispose of stolen goods, knowing them to have
been stolen, are in ss188 and 189.
 • Where the original theft was a serious indictable offence, the receiver can be charged with
an offence punishable up to 10 years imprisonment (s188)
• If the property received is a motor vehicle or motor vehicle part, the maximum increases to
12 years.
• Where the original offence is a minor indictable offence, the receiver is guilty of an offence
punishable up to 3 years imprisonment.
A person can be charged with stealing and receiving goods (s74). Here, the jury find that they are
guilty of one or other of the offences but cannot say beyond a reasonable doubt that they are not to
be acquitted but are sentenced for the offence carrying the lesser punishment (Clarke).
Where larceny and receiving are not charged in the alternative, D must be acquitted on a larceny
charge if there is any reasonable possibility that they actually received the goods in question
(McCarthy).
Receiving is comprised of 3 elements at common law:
• Stolen property:
◦ Property must not have been returned to the possession fo the person from whom it was
'stolen.
◦ S187: Extends to dishonest acquisitions other than larceny like embezzlement
◦ Property taken to possession of police, considered as acting as an agent for that person.
Property ceases to be stolen.
▪ Issue where this is then collected by the receiver. To avoid the property ceasing to be
stolen property, must be careful only to take temporary custody of the property, not
possession (Villensky)
• Receiving that property
◦ Defendant took possession, not just custody (Flen)
◦ May be held jointly with a thief (Gleed), or constructively through an
employee/accomplice (Miler)
• With knowledge that the property is stolen:
◦ Prove that D actually believed the property was stolen in that they accepted the truth it
was stolen (Raad)
◦ Mere suspicion and deliberate closing of eyes are evidence of belief, but are insufficient
(Hall)
◦ No other reasonable explanation → knowledge (Hall)
◦ Despite all that has been said, D refuses to believe it even though it is obvious →
knowledge (Hall)
There must also be belief that the property is stolen at the time of its receipt. (Balough).
There must also be an implied requirement that the receiving be felonious (Balough).

Goods in custody
If the Prosecution is unable to prove the mens rea for receiving, s527C creates an alternative
offence which requires the defendant to prove that they were not negligent:
(1) Any person who:
(a) has any thing in his or her custody,

(b) has any thing in the custody of another person,

(c) has any thing in or on premises, whether belonging to or occupied by himself or

herself or not, or whether that thing is there for his or her own use or the use of another,
or

(d) gives custody of any thing to a person who is not lawfully entitled to possession of
the thing,

which thing may be reasonably suspected of being stolen or otherwise unlawfully obtained, is
liable on conviction before the Local Court:

(a) if the thing is a motor vehicle or a motor vehicle part, or a vessel or a vessel part, to
imprisonment for 1 year, or to a fine of 10 penalty units, or both, or

(b) in the case of any other thing, to imprisonment for 6 months, or to a fine of 5 penalty
units, or both.

(1A) A prosecution for an offence under subsection (1) involving the giving of custody of a
motor vehicle to a person who is not lawfully entitled to possession of the motor vehicle may
be commenced at any time within 2 years after the date of commission of the offence.

(2) It is a sufficient defence to a prosecution for an offence under subsection (1) if the
defendant satisfies the court that he or she had no reasonable grounds for suspecting that the
thing referred to in the charge was stolen or otherwise unlawfully obtained.

Grant: Offence was not committed in relation to money drawn from a bank account even though
there had previously been paid into the account money reasonably suspected of being the actual
proceeds of the illegal sale of drugs.
Anderson: Grant is not followed where actual banknotes are found in D's possession and are
reasonably suspected of having been unlawfully obtained.
English: Except in s527C(1)(d), it has to be proved that the defendant was in possession of the
goods at the time of apprehension
Gilroy: Expanded s527C(1)(d), holding that D gave 'custody' to a person not lawfully entitled to
possession where he sold the article in question to somebody else. The provision was intended to
catch the intermediary possessor of property, and the giving of custody could be temporary or
permanent, including sales.
• From this, police can easily get around any requirement for possession at the time of
apprehension by carefully framing charges.
Chan: Prosecution does not have to introduce evidence relating to the nature of the illegality to
which the reasonable suspicion relates, neither the general nature of the original offence, nor even
whether the goods were product of theft. Whether reasonable suspicion exists is a question of fact.
Madden: More than one conclusion reasonably open on the facts does not mean Prosecution failed
to prove its case.
 Attempt
Maximum penalty is same as that of completed offence – s 344A. For murder, penalty is 25
Penalty
years – ss 29, 30.
* Doctrine of merger: attempt dissolves into actual offence when completed; prevents
double convictions
* Impossible in fact is no bar – Mai and Britten v Alpogut Rationale is that so long as the
steps are sufficiently proximate to the completed offence, it is no bar that the offence wasn’t
actually completed
* The overt acts needs to be part of a series of acts which would constitute the full
offence if uninterrupted – Stonehouse
* Not preparation as it cannot count as attempt but perpetration may – Stonehouse
* Four tests to consider in deciding whether it is preparation or perpetration:
1. Unequivocality: where D performs acts that unequivocally show that they had MR
for completed offence and where there is no other purpose for doing acts – endorsed
Actus Reus
in Mai and Barker
2. Substantial step – O’Connor
3. Last act – Eagleton; rejected as a sole test in Stonehouse but still relevant alongside
other tests
4. Proximity – the most relevant and ‘the’ test; whether D’s conduct is proximate to
commission of completed offence – Stonehouse and Haughton v Smith; based on:
a. Temporal factors – how much more time
b. Physical factors – how near to place of where offence is to be committed
c. Task-related factors – how many more tasks are left
* When line is crossed, even their voluntary forbearance will not save D from conviction –
Page
* Intent to commit the substantive offence at all material times – Knight and Stonehouse
and Britten; e.g. for murder, one needs intent to cause the death as that will complete the
offence whereas intention to cause GBH will not suffice.
Mens Rea * Other mens rea not sufficient: like recklessness or negligence - Mohan
* Sexual offences are an exception; mens rea for attempted sexual assault is identical to
mens rea of assault itself – Evans and Khan. (Because of particular nature of rape – being
circumstance based not consequence based)
* The stronger evidence is of intent, less evidence needed for conduct required for
AR & MR
attempt – Berger and O’Connor
* Look for less obvious attempts for discussion even though they would not pass the tests
Exam
for attempt. For example, lighting fuse for bomb to open safe is clearly attempt to steal but
Commentary
can also be, for discussion purposes, attempt to murder.

Conspiracy
Penalty “At large” – common law; if murder, 25 yrs – s 26
* No merger doctrine; conviction for conspiracy and actual offence is possible – Hoar
Existence of the agreement
* Intent to perform an unlawful act or lawful act by unlawful means:
* Must always be intent, not a lesser mens rea even though that is the mens rea for
AR & MR
the substantiative offence – Siracusa and Giorgianni
* Precise manner unnecessary; precise manner of performance not necessary –
just the agreement to perform it – Douglas
* Intent to agree with one or more others to perform it as group must be present:
 * Negligence and recklessness cannot suffice
* Intent as to future will not suffice; need to show they were in agreement and not
considering a plan; thus not enough that D simply knew of plan – O’Brien
* What is agreed to be done not what is in fact done – Bolton
* No overt acts needed in order for conviction of conspiracy – Rogerson
* External indicia of agreement may include conversations, documents, actions in
pursuance of agreement – O’Brien
* Possible to agree with persons unknown if there is a reasonable inference that
can be drawn to this effect from primary facts – O’Brien; even in face of s 393 as
that section concerns procedure only – Harrison
* If agreement not genuine, then there cannot be conspiracy except in case of
police – O’Brien
* Particularly: undercover law officer fact is irrelevant – Yip Chiu-Cheng
* If reservation is small, complicity will be found; if the only reservation is
presence police, complicity will be found; if the reservation is something more
substantial, no complicity – O’Brien.
* If other person acquitted, conviction for D still stands notwithstanding – Darby
* If material difference in evidence admissible, multiple Ds to be tried separately.
Otherwise, together – Darby
* Relevant unlawful acts include: conspiracy to defraud, commit a tort, corrupt public
morals, effecr a public mischief, defeat or pervert the course of justice and prevent or defeat
the execution of a law of the commonwealth.
* The above is a closed category – Withers
* Disfavoured by the courts – Cahill
Scope of the agreement must be proved
* If D engaged in series of inter-connected agreements, every single one must be proved;
hard to sustain one overall conviction where each man did in fact not know of such a
network – Gerakiteys
* One big conspiracy may also be found only if there was an intention to participate in this
big overall conspiracy; especially where each man knew of a network – Meyrick and Lee
* Have to be careful as to which of the above two you initially charge with as acquittal of
one will prevent the other from being laid – Gerakiteys
Impossible conspiracies
* Impossibility in fact no bar to conspiracy conviction – Barbouttis and El Azizi
* Impossibility in law is a bar to conspiracy conviction – Barbouttis
* Characterisation of the act is relevant to determination of conspiracy conviction –
Barbouttis
See attempt for law relating to impossibility as this applies to conspiracy too

Complicity
* The offence is that of substantial offence with which D is complicit, not the offence of
‘complicity’
* Person who commits whole or part of actus reus is known as a “principal in the first
degree” – Ferguson
* Can be more than one principal in first degree – Errington
* Second degree principals: those who were merely present, encouraging but not
physically participating or whose acts were not the substantial cause of death – Mohan
Joint Criminal Enterprise
Primary Liability

* Must establish existence of that joint criminal enterprise – Tangye

* Two or more people reaching an agreement that they will commit a crime will
establish existence of a joint criminal enterprise exist - Tangye
* Understanding or agreement need not be express and its existence may be
inferred from circumstances alone – Tangye
* Any time before the crime is committed may the arrangement be made –
Tangye
* Must establish participation by D in that joint criminal enterprise – Tangye
* By committing the agreed crime itself - Tangye
* Or by being present at the time when the crime is committed – Tangye and
Osland
* Person needs to be present at scene by reason of pre-concert or arrangement with that
person to commit the crime – Lowery and King
* Presence need not be continuous – Franklin
* Present not at time of agreement but at commission of crime – Osland
* Presence not absolutely essential in difficult crimes; presence is a sure-fire way
of proving participation in agreement and other methods like phone calls can prove
participation – Prochilo
* Defences should not be a consideration in doctrine of joint criminal enterprise; they
can co-exist – Osland
* People acting in concert are equally responsible for acts that constitute the actus reus
of the crime – Osland
* Because other D got convicted on reduced charge or acquitted by some reason
special to himself does not result in a compulsory reduction for the other participant -
Osland and Howe
* Actus Reus is equal to all Ds, and mens rea may be different to the Ds – Osland
* Withdrawal from a joint criminal enterprise:
* Must be timely: make it known to others that he was withdrawing and use
appropriate words and acts to reasonably dissuade the others from continuing with
the unlawful purpose – Tiete
* Onus is on crown to negate effective withdrawal and countermanding of his own
involvement – Tiete
* Must undo his encouragement by his presence in criminal enterprise – Tiete
* Not effective if too late at time of train of events - Tiete
* Factual matrix: depends on circumstances of each case as to what is effective
withdrawal – White
* If accused honestly believes the others will not go ahead and do crime, then no
further preventive steps are required - Truong
Common Purpose/Extended Joint Criminal Enterprise
Derivative Liability

* There must be common purpose to commit a foundational offence just like JCE –
Taufahema
* Offence must be in addition to or instead of the foundational offence – Taufahema
* Each party in a criminal enterprise to do a crime is also guilty of any other crime
falling within the scope of the common purpose which is committed in carrying out that
purpose – McAuliffe
* Test of what falls within the scope is now a subjective test: what was
contemplated/foreseen by the parties sharing that purpose – McAuliffe
* The contemplation/foresight must include both the actus reus and mens rea – Gillard
* Precise manner does not need to be foreseen – Bentley
* Presence not needed; extends to accessory before fact – McAuliffe
* Scope extends to probable and possible consequences if in contemplation of the
parties in the agreement – McAuliffe
* Foresight can be individual and not common to agreement – McAuliffe

Accessorial Liability
Derivative Liability

* Secondary participants are those who, principles in second degree, present at crime
commission, aids, encourages or assists in its commission or as accessories before fact –
not present at crime commission – but urging or contributing towards its commission
* Conduct of accessorial liability: “aiding, abetting, [at scene of crime] counselling or
procuring [accessory before fact]” – Phan, McCarthy and Wilcox
* Aiding and abetting generally relates to an accessory at the scene
* Aiding and abetting more than presence and mere acquiescence (unless there is
a special relationship like father/child – Russell); need proof that D was linked in
purpose (some agreement) with A and D did something to bring about or render
more likely the purpose – Phan
* Non-accidental presence may serve as (albeit just) evidence of aiding and
abetting – Coney
* Low threshold needed for the conduct, where D had knowledge of the facts
enough to know they would consitute an offence in the principle and intentionally
attends or makes his presence – Wilcox
* Presence within sight or sound of the crime or constructive presence in the
sense of being sufficiently near so as to be able to come to assistance of the
principal offender should the occasion arise suffices – McCarthy
* Brawls: not necessary for prosecution to prove specific acts of assistance by each
accused in relation to every crime; encouragement may consist of presence: rooting
for a side – Annakin
* Counselling and procuring generally relates to an accessory before the scene
* Procuring does not require meeting of minds but slightest causal link;
endeavouring an outcome – A-G’s Reference (No. 1 of 1975)
* Counselling is giving advice, encouraging a principal to do a crime before
commission of crime
* When principal commits more serious crime than the accessory intended to assist,
then the accessory will be convicted of the lesser crime – Chai
* Full subjective intent needed – Giorgianni
* Intentionally aid, abet, counsel or procure another person – Giorgianni
* With subjective knowledge of all essential facts – Giorgianni
* Knowledge of essential elements of the offence at the time – Stokes &
Difford
* Essential elements include: P’s intent to do the act with the required
mens rea – Stokes & Difford and Davis
* Knowledge of specific execution or location or time of the act not
necessary – Bainbridge
* Knowledge of kind of crime is sufficient – Ancuta
* Not necessary to prove desire for the crime to be committed – National
Coal Board and Bryce
* Withdrawal possible as per the rules in joint criminal enterprise; less
onerous – Truong
 * Wilful blindness suffices; negligence or recklessness do not – Giorgianni
* Policy basis in Tyrell for that victim cannot be convicted via accessorial liability if the
offence is aimed at their benefit still holds – Keane
* Specific beneficiaries in the aim of offence must be considered as the aim may
not only apply to just the one but other beneficiaries; e.g. in Keane the children
were also beneficiaries who suffered from actions of the woman inviting the man to
the household – Keane
* If a beneficiary encourages or facilitates a breach or if curial or police
resources are susceptible to being wasted as a result of repeated enforcement, then
the Tyrell principle does not apply – Keane
* Apprehending Violence Order (AVO) is one such category which attracts the
exclusion of the Tyrell principle – Keane

Section 11 of Children (Protection & Parental Responsibility) Act 1997

(1) A parent who, by wilful default, has contributed directly or in a material respect to the
commission of an offence of which the child has been found guilty, is guilty of an offence.
Maximum penalty: 10 penalty units.
(2) The court may require a parent convicted of an offence under subsection (1) to undergo
counselling or do such other things that would in the opinion of the court advance the
welfare and best interests of the child instead of, or in addition to, imposing a penalty.
Innocent Agency

* Applies where primary participant lacks the means rea or escaped conviction via
defences; and the secondary participant intentionally “aided, abetted, counselled or
procured” the commission of the crime
* Secondary participant is the principal in such a case – Pinkstone
* Principal needs appropriate mens rea – Cogan v Leak
* Innocence of the primary participant an absolute requirement – Franklin
* Acting with purpose of preventing the commission of the offence or nullifying its
effects is not completely innocent; actions of police officers cannot be attributed to
principals – Pinkstone
First try to charge with JCE so that D is treated as principal in the first degree. Use
Exam accessorial liability as a backup offence or an alternative if the prosecution cannot prove an
Commentary agreement between the parties before commission of fact or if D was not present at the
crime scene – Cornellesian and Franklin

Accessory after Fact

Every accessory after the fact to a serious indictable offence may be indicted, convicted,
347 Accessory and sentenced as such accessory, either before, or together with, or after the trial of the
after fact principal offender, whether the principal offender has been previously tried or not, or is
amenable to justice or not.
347A Abolishes immunities given to wife for prosecution of this.
349 (1) Every accessory after the fact to murder shall be liable to imprisonment for 25 years.
Special (2) Every accessory after the fact to the crime of robbery with arms or in company with
 one or more person or persons, or the crime of kidnapping referred to in section 86, shall
Penalties
be liable to imprisonment for fourteen years.
An accessory after the fact to any other serious indictable offence is liable to imprisonment
350 Penalty
for 5 years, except where otherwise specifically enacted.
* Stand alone crime: liability not derived from principal
* Any assistance whatever given to one known to be a felon in order to hinder his being
apprehended or tried or suffering the punishment to which he is condemned is sufficient
receipt – Levy and Barlow
* Comforting and assisting – Butterfield and Barlow
* Receives, comforts or assists in order for him to escape punishment, rescues him from
AR & MR an arrest, having him in custody for felony, intentionally and voluntarily suffers him to
escape or opposes his apprehension – Jones, Powell and Barlow
* Mere enjoyment of the proceeds of a crime is not of itself a subordinate participation in
that crime (in relation to accessory after fact) – Barlow
* Knowledge of general nature insufficient for charge of this offence. He needs to know
all the relevant facts, or acts, that establish the precise crime – Stone
* Need intention to help etc – Young and Phipps and Barlow
(1) If a person has committed a serious indictable offence and another person who knows
or believes that the offence has been committed and that he or she has information which
316 might be of material assistance in securing the apprehension of the offender or the
Concealing a prosecution or conviction of the offender for it fails without reasonable excuse to bring that
serious information to the attention of a member of the Police Force or other appropriate authority,
indictable that other person is liable to imprisonment for 2 years.
offence (2) A person who solicits, accepts or agrees to accept any benefit for himself or herself or
any other person in consideration for doing anything that would be an offence under
subsection (1) is liable to imprisonment for 5 years.
AR & MR * Accused must know or believe and not just suspect a crime was committed – Wozniak
Complicity Chart
 Incitement
Whosoever conspires and agrees to murder any person, whether a subject of Her Majesty
or not, and whether within the Queen’s dominions or not, or solicits, encourages,
26
persuades, or endeavours to persuade, or proposes to, any person to commit any such
murder, shall be liable to imprisonment for 25 years.
(1) A person shall not, by a public act, incite hatred towards, serious contempt for, or
severe ridicule of, a person or group of persons on the ground of the race of the person or
20D of Anti-
members of the group by means which include:
Discrimination
(a) threatening physical harm towards, or towards any property of, the person or
Act 1977
group of persons, or
(NSW)
(b) inciting others to threaten physical harm towards, or towards any property of,
the person or group of persons.
Equivalent provisions exist within the Anti-Discrimination Act 1977 (NSW) for
Expansions transgender identity (s 38T), homosexuality (z 49ZTA) and HIV/AIDS infection (s
49ZXC).

Sedition
Urging the overthrow of the Constitution or Government
(1) A person commits an offence if the person urges another person to overthrow
by force or violence:
(a) the Constitution; or
(b) the Government of the Commonwealth, a State or a Territory; or
(c) the lawful authority of the Government of the Commonwealth.
Penalty: Imprisonment for 7 years.
(2) Recklessness applies to the element of the offence under subsection (1) that it
is:
(a) the Constitution; or
(b) the Government of the Commonwealth, a State or a Territory; or
(c) the lawful authority of the Government of the Commonwealth;
that the first-mentioned person urges the other person to overthrow.
Urging interference in Parliamentary elections
(3) A person commits an offence if the person urges another person to interfere by
80.2 of
force or violence with lawful processes for an election of a member or members of a House
Criminal
of the Parliament.
Code (Cth)
Penalty: Imprisonment for 7 years.
(4) Recklessness applies to the element of the offence under subsection (3) that it is
lawful processes for an election of a member or members of a House of the Parliament that
the first-mentioned person urges the other person to interfere with.
Urging violence within the community
(5) A person commits an offence if:
(a) the person urges a group or groups (whether distinguished by race,
religion, nationality or political opinion) to use force or violence against another group or
other groups (as so distinguished); and
(b) the use of the force or violence would threaten the peace, order and good
government of the Commonwealth.
Penalty: Imprisonment for 7 years.
(6) Recklessness applies to the element of the offence under subsection (5) that it is
a group or groups that are distinguished by race, religion, nationality or political opinion
that the first mentioned person urges the other person to use force or violence against.
 Urging a person to assist the enemy
(7) A person commits an offence if:
(a) the person urges another person to engage in conduct; and
(b) the first-mentioned person intends the conduct to assist an organisation or
country; and
(c) the organisation or country is:
(i) at war with the Commonwealth, whether or not the existence of a
state of war has been declared; and
(ii) specified by Proclamation made for the purpose of paragraph 80.1(1)
(e) to be an enemy at war with the Commonwealth.
Penalty: Imprisonment for 7 years.
Urging a person to assist those engaged in armed hostilities
(8) A person commits an offence if:
(a) the person urges another person to engage in conduct; and
(b) the first-mentioned person intends the conduct to assist an organisation or
country; and
(c) the organisation or country is engaged in armed hostilities against the
Australian Defence Force.
Defences Good faith defences as defined in s 80.3.
 Provocation
Provocation reduces liability for murder to manslaughter (s23(1)) – the penalty is reduced from 25
to 20 years imprisonment. Under s23(4), the evidentiary burden rests on the defendant. Upon
satisfactorily raising the issue, the onus shifts to the Prosecution to prove beyond reasonable doubt
that the ‘act or omission causing death was not done or omitted under provocation’.
The defence requires that:
• The victim’s conduct must be recognised as provocation
o S23(2)(a) requires that the victim’s conduct be ‘towards or affecting’ the defendant.
o Provocation will fail when it is self-induced (Edwards). However, where the victim’s
reaction was of an extreme, unpredictable character, the defendant may be able to
rely on self-induced provocation to constitute the defence.
o ‘Grossly insulting’ words or gestures can amount to provocation (S23(2)(a))
o Words of threatened violence, blackmail, extortion etc may constitute provocation.
Words must be capable of provoking strong feelings. They need to be of a sufficient
violence, offensive, or otherwise aggravating character. Mere words of abuse/insult
would not qualify (Lees)
o There is no explicit requirement that provocative conduct take place in the presence
of D, however Quartly construed s23 as requiring this.
 Davis: Hearsay provocation will not amount to provocation unless V in fact
had acted in the way alleged. This requires that D’s beliefs regarding V were
correct.
• An ordinary person in the position of the defendant could have lost self-control as they
did
o The objective test in s23(2)(b) is a two-limb test
6. Contextualisation to determine the gravity of the provocation
a. Allows the jury to take into account any relevant characteristics of the defendant in
determining the gravity of the provocation. Includes ‘age, sex, race, physical
features, personal attributes, personal relationships, and past history’
(Masciantonio).
b. Any ‘special sensitivities’ will be taken into account (Stingel)
7. Whether that degree of provocation could cause an ordinary person to have lost self-control
and form an intention to kill or cause GBH (S23(2)(b))
a. Only the age of the defendant will be taken into account in determining the level of
self-control expected of an ordinary person (Stingel), however in NSW this has been
interpreted as ‘similarly circumstanced’ in Mungatopi, where an ordinary person
was an ordinary Aboriginal male person, living today in the environment and culture
of a remote Aboriginal settlement.
b. The ordinary person is not intoxicated (Croft).
• D must have lost self-control to kill the victim (Stingel).
o Courts must decide whether the provocation actually caused D to lose self-control
and act, whilst deprived of self-control, before they have had the opportunity to
regain his composure (Masciantonio).
Provocation is not negatived if:
• There was not a reasonable proportion between the act or omission causing death and
the conduct of the deceased that induced the act or omission (S23(3)(a))

• The act or omission causing death was not an act done or omitted suddenly (S23(3)
(b))

• the act or omission causing death was an act done or omitted with any intent to take
life or inflict GBH (S23(3)(c))

Substantial impairment
Substantial impairment is a partial defence which if successful reduces liability for what otherwise
be murder (including constructive murder (Thompson) to manslaughter (s23A(1)(b)). The burden
on proof rests on D. They must prove diminished responsibility at the time of the act causing death
on the balance of probabilities (S23A(4)).
Substantial impairment is successful if:
• At the time of the acts/omissions causing the death, the
o person’s capacity to understand events or
o to judge whether the person’s actions were right or wrong, or
o to control himself/herself (s23A(1)(a))
• Was substantially impaired by an abnormality of the mind arising from an underlying
condition (S23A(1)(a))
o S23A(8): A pre-existing mental or physiological condition other than a condition of a
transitory kind.
o Major depressive illness (Chayna)
o Post-traumatic stress disorder (Nielsen)
o Personality disorders (Byrne)
• The impairment was so substantial as to warrant liability for murder being reduced to
manslaughter (S23A(1)(b))
Intoxication will not amount to an abnormality of the mind (s23A(3)). However, alcoholism in
advanced stages can amount to a relevant abnormality of the mind.
Evidence of an opinion that impairment was so substantial as to warrant liability for murder being
reduced to manslaughter is inadmissible (s23A(2)).
An accessory who suffers from substantial impairment is to be convicted of manslaughter instead
(s23A(5)).

Excessive force
S421: It is a partial defence to murder (reducing the offence to manslaughter) if:
d) The defendant genuinely believed the conduct to which the charge relates to be necessary and
reasonable for a defensive purpose; but
e) The conduct was not, in the circumstances as the defendant genuinely believed them to be,
reasonably proportionate to the threat that the defendant genuinely believed to exist.

Infanticide
S22A(1): Infanticide may be charged as a substantive offence
S22A(2): Infanticide may be available as an alternative verdict to murder - manslaughter
• Child under 12 months
• Woman by any wilful act or omission caused its death
• At the time of the act/omission, the balance of her mind was disturbed by reason of her not
having fully recovered from the effect of giving birth to such a child or by reason of the
effect of lactation consequent upon the birth of the child

Insanity
In NSW, insanity is a common law full defence. Where the defence of insanity is established, a
special finding of not guilty by reason of ‘mental illness’ results in NSW (s38 Mental Health Act).
The acquitted is then detained in strict custody for an indefinite period. D will be detained until they
are no longer perceived as a danger to society, or to themselves.
The party raising the insanity defence bears the burden of proving insanity on the balance of
probabilities (Porter). If Prosecution raises insanity (s23A(7)) in response to D raising automatism,
they too must prove insanity on the balance of probabilities (Falconer)
Assuming insanity, Prosecution is required to prove ingredients constituting actus reus, however
they are not required to prove mens rea (AG’s Reference No 3 of 1998)
At common law, it must be proved on the balance of probabilities that at the time of the act,
• D was labouring under a defect of reason, owing to a disease of the mind
o ‘Disease of the mind’ is a legal term.
o Whether or not there is sufficient evidence of the existence of a disease of the mind for the
issue to go to the jury is a question of law for the judge to determine (Kemp)
o It is irrelevant whether the disease is temporary, permanent, curable, or incurable.
o Porter: D and D’s wife were separated. He took drugs, did not sleep for 3 nights and drove.
Evidence showed symptoms of a nervous breakdown. Administered poison to child and
police found D as he was about to take it himself.
 D’s state of mind must have been one of disease, disorder or disturbance. Mere
excitability, passion, stupidity, obtuseness, lack of self-control, impulsiveness are
different.
o Arteriosclerosis: Hardening of arteries affects the mind (Kemp)
o Hyperglycaemia: D failed to take insulin. Ablity and awareness of what was going on was
impaired, and this was caused by an inherent defect/disease rather than an external factor.
(Hennessey).
 Quick: D injected himself with insulin, drunk alcohol, and ate little. Suffered
from hypoglycaemia. Malfunctioning of the mind was not due to D’s diabetes,
but due to the insulin. This was an external factor not a disease of te mind. Sane
automatism was available.
o Sleepwalking: Burgess
o Epilepsy: Epilepsy is not a disease of the mind (Sullivan)
And one of the following:
• Not to know the nature and quality of his act
o Porter: The physical nature of the act (e.g. intentionally destroying life is viewed as to be
like breaking a twig) and the consequences of the act.
 Evidence suggested D knew the nature and quality of the act. He knew he was
killing a child with poison and planned to do the same to himself.
• If D did know the nature and quality of their act, D did not know that what they were
doing was wrong
o The main question is whether or not D was able to reason with a moderate degree of sense
and composure. If he or she was unable to reason, then it could be said that D could know
that he or she was doing something wrong.
o ‘Wrong’ is wrong according to the principles of ordinary people (Porter)
o ‘Wrong’ need not be wrong in the sense of being contrary to the law (Stapleton) – this is
relevant where D was incapable of reasoning as to right or wrong, but was aware that D’s
actions were punishable by law
Psychopaths:
• A psychopath may lack emotional appreciation of the wrongness of an act, but if they have
intellectual comprehension that what they are doing is wrong, then the psychopath cannot
rely on the defence. Psychopathy is not a disease of the mind (Willgoss)
Irresistible impulses:
• Where D is unable to control their actions
• In and of itself, irresistible impulse is not a defence (AG v Brown)
 • Defence will not apply where D was aware that D’s actions were wrong, but was incapable
owing to a disease of the mind, of preventing D’s actions (Sodeman)
• Overpowering obsession arising from mental infirmity provides strong reason for inferring
the requisite lack of capacity to know that the act is wrong, or to understand its nature or
quality (Sodeman)
Self-induced insanity (e.g. consumption of alcohol to kill):
o If a defect of reason is self-induced to provide the impetus to kill, D cannot rely on
insanity at the time of the act if D was responsible when the intent to kill was form (AG
v Gallagher)
o If D forms intent to kill and drinks alcohol, D cannot rely on insanity.
o Intoxication will not allow insanity. It is only where the intoxicant acts as a trigger to an
underlying disease of the mind that the rules of insanity may be satisfied (AG v
Gallagher)
Fitness to plead: Legal personhood is not present where somebody is mentally ill. Fitness to plead
is not the same as a mental illness defence because they cannot even get to court. They are not well
enough to stand trial. (refer to insanity update)

Automatism
Automatism is a full defence. A person succeeding in an automatism defence is not responsible for
their involuntary acts, negating the voluntariness requirement of the offence’s actus reus.
In order to raise automatism as an issue, D must satisfy the evidentiary burden. They must raise the
possibility that D’s actions were not voluntary.
9. Sane automatism: An unwilled act. Complete acquittal. D bears only evidentiary burden.
The onus is on the Prosecution to negative automatism beyond a reasonable doubt.
10. Insane automatism: A willed at the product of a diseased mind which knows not thenature
or quality of the willed act (Ryan) Not guilty by insanity. D bears the burden of proving
insanity on the balance of probabilities.
States of automatism:
Examples of automatism negating voluntariness (i.e. non-insane automatism)
 Blow to the head/concussion (Re Wakefield; Wogandt)
 Sleep disorders (Jiminez)
 Extreme intoxication from drugs (Haywood) or alcohol (O’Connor) but not now in
NSW – s428G: Not involuntary if intoxication is self-induced.
 Hypoglycaemia (Quick); but not hyperglycaemia (Hennessey)
 Dissociation caused by severe psychological blow (Falconer)
 Post-traumatic stress disorder (Donyadideh)
Examples of insane automatism (insanity)
• Hyperglycaemia (Hennessey)
• Epilepsy (Bratty; Sullivan)
Deciding between insane and sane automatism often rests on whether the dangerous behaviour is
likely to recur. Three tests have been developed.
• Recurrence test: If a mental condition is prone to recur, it should be considered a disease of the
mind (Bratty)
• Internal/external test: If the mental state is internal to D, as opposed to arising from an
external cause, it should be a disease of the mind (Falconer)
o Falconer: D had a violent marriage and discovered V sexually interfered with their
daughters. V came to D and sexually assaulted her. D remembered nothing from that point
until she found herself on the floor with the gun by her and V dead on the floor beside her.
 The question was whether an ordinary person of D’s age and circumstances, with
history of sexual violence, recently discovering V had sexually assaulted their
 daughters, knew that criminal charges had been laid against V, and who was
separated from V due to a relationship with another woman, would have entered
a state of dissociation as the result of the incidents which occurred on the day fo
the shooting.
 If the mind’s strength is below that stated standard, the mind is infirm. If it is of
or above that standard, the mind is sound or sane.
o The ordinary person does not possession emotional features of D at the time of the offence.
E.g. Falconer: Depression is irrelevant
o Hennessey: D stole a car and argued automatism. D was diabetic and suffered from
hyperglycaemia when stealing a car as he failed to take his insulin. This is insanity as it was
an inherent defect or disease.
o Quick: D charged with assaulting V and raised automatism. D gave evidence that he
injected himself with insulin, drank large quantities of alcohol and did not eat. At the time
of the assault, D had hypoglycaemia. This malfunctioning of the mind was not due to
diabetes but due to insulin. Therefore, D was entitled to have the defence of automatism left
to the jury.
• Unsound/sound mind test: A disease of the mind is considered to be evidence by the reaction
of an unsound mind to its own delusions or external stimuli (Radford)
In exam, apply all three tests and examine how each situation would result. Then say: It is likely
that the unsound/sound mind test may uphold as it was a HCA decision. Internal/external test was
rejected in Falconer. Bratty is a UK decision, so it is authoritative but not binding.

Intoxication
Intoxication is self-induced unless it is involuntary, due to fraud, sudden emergency, accident,
reasonable mistake, duress, force, or where a prescription or non-prescription drug was taken in
accordance with instructions (s428A)
Actus reus:
Self-induced intoxication will not be available for a defence of involuntariness (S428G(1))
Involuntariness will be available only where D’s intoxication is not self-induced (S428G(2))
Mens rea:
Offences of specific intent are offences of which an intent to cause a specific result is an element.
Intoxication can be pleaded in relation to specific intent crimes, whether the intoxication is self-
induced or not (428C). However, sitting under this specific intent is an offence of basic intent. D
will instead be charged with the offence of basic intent.
For offences other than those of specific intent, where D raises intoxication as a negativing factor of
mens rea:
d) If intoxication was self-induced, then it cannot be taken into account (s428D(a))
e) If intoxication was not self-induced, intoxication may be taken into account
(s428D(b))
Therefore, if D’s intoxication was self-induced, murder can only be reduced to manslaughter. If not
self-induced, then D may be acquitted (s428E)
Dutch courage:
vi. S428C(2) and Gallagher: D cannot rely on intoxication where D became
intoxicated for ‘Dutch courage’

Mistake
Mistake is a full defence whereby D may escape liability for a criminal act by adducing evidence of
a mistake of fact. Mistake of fact can arise in relation to mens rea or as an independent defence.
Mistake – mens rea
DPP v Morgan: D honestly believed V was consenting to sexual intercourse. Husband told Ds that
V wanted it. Victim cried and screamed.
a. D will be not guilty as long as the belief is honest, no matter how
unreasonable the belief.
b. However, unreasonable nature of belief will have evidentiary
significance. The jury did not belief that the men had not known that the
victim was not consenting.
vii. Mistake of law is not a defence. E.g. mistake about the legal characterisation of
aperson, substance or being.
a. Immaterial to a charge of bigamy that D mistakenly believed the earlier
marriage was invalid (Kennedy)
viii. In some situations, mistake of law may result in D lacking mens rea. E.g. Claim
of right in property offences.
a. Belief in claim of right need only be honest, it need not be reasonable
(Lopatta)
b. Claim must be based on a belief in a legal right, not a moral belief
(Lopatta)
Mistake as an independent defence
Tolson: The mistake must be both honest and reasonable.
Mistake of fact is available for all offences, excluding absolute liability offences, and offences
where the defence is explicitly excluded (He Kaw Teh)
D must satisfy evidentiary buren before issue of honest and reasonable mistake of fact is raised.
Once the defence has been raised, Prosecution must exclude the defence beyond a reasonable doubt
(Holt)
The mistake must be such that, were the facts as D believed them to be, D would be innocent
(Thomas).
Mistake of fact and formal defences:
If mistake relates to a matter of self-defence, the person who acted in self-defence must act in a
matter objectively and subjectively reasonable (Zecevic)
The reasonableness of D’s subjective belief is determined on the basis of the circumstances D
believed them to be at the time, not what a reasonable person believed.
E.g. D mistakenly believes V is armed with a gun, and therefore uses lethal force in self-defence. If
jury considers that D honestly held that belief, then D’s mistaken belief would be relevant to D’s
decision as to the necessity of resorting to force. The reasonableness of D’s belief is considered on
the basis of what D believed was true. I.e. if V was armed, was D’s decision to resort to force
reasonable?

Self-defence
To act in self-defence results in a complete acquittal (S418(1)).
D must satisfy the evidentiary burden to raise self-defence. If satisfied, the Prosecution must negate
the defence beyond a reasonable doubt (s419).
Self-defence applies to defence of self, defence of other persons, prevention of a serious rime,
defence of property and effecting a lawful arrest.
There is a two limb test for the jury:
e) Is there a reasonable possibility that D believed his or her conduct was necessary in order
to defend him or herself?
• S418(2) A person carries out conduct in self-defence if and only if the person believes the
conduct is necessary:
• To defend themselves or another person; or
• To prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another
person; or
• To protect property from unlawful taking, destruction, damage or interference
• To prevent criminal trespass to land and/or premises or to remove a person committing any such
criminal trespass.
f) If so, is there also a reasonable possibility that what D did in those circumstances was a
reasonable response to those circumstances as D perceived them to be? (Katarzynski;
s418(2))
Intoxication:
Self-defence cannot be relied on in circumstances where D was mistaken as a result of self-induced
intoxication.

Duress
The defence of duress comprises a plea by D that they had committed a crime under a threat of
physical harm to D, or to some other person, should D refuse to comply with the threatener’s wishes
(Hurley).
If D succeeds in the defence of duress, D is exonerated of all liability for the charges. D must satisfy
the evidentiary burden. Once this is satisfied, the Prosecution must negative the defence beyond a
reasonable doubt.
The defence is available for most offences, including manslaughter. However, it is not available for:
• Murder (Brown)
• Attempted murder
However in NSW, an accessory to murder can rely on duress (McConnell).
Duress requires:
h) A threat
a. Threats of death and GBH (Hurley)
b. Threats of a lawful nature, where the threatener is a child or could plead
insanity
c. Threat of imprisonment (Lawrence)
d. Threat of torture causing intense pain, but without residual injury (uGoddardu)
e. Threat of harm to a third party (Abusafiah)
i. The threat must have been such as to overbear D’s will, so that D was
incapable of acting independently.
i) That the threat be present and continuing
a. Requirement is interpreted realistically – it is recognised that a threat may be
present even if the threatener has no direct physical control over D at the time
they commit the crime.
j) An objective test (Lawrence):
• An average person of ordinary firmness of mind, of a like age and sex, in like
circumstances, would have done the acts and
• Runjanjic: Effect of battered woman syndrome is relevant
• There was no reasonable way of avoiding the threat
• Courts take into account all circumstances D finds themselves in, keeping in mind the age of D
and risks associated with avoidance. Failure to seek police protection, due to the reasonable
belief that such aid will be ineffectual will not exclude the defence (Brown)

Necessity
A person should not be culpable for criminal acts where they are compelled due to sudden or
extraordinary emergency.
Necessity exists at common law (White). It is available for every offence except murder (Dudley
and Stephens).
Necessity will succeed if:
• The act was done in order to avoid consequences that would have inflicted irreparable
harm on V, or those they were bound to protect.
 o E.g. Threats of death, serious physical harm, sexual assault, and suicide
o No requirement that threats be unlawful
• The threat must have exerted immense pressure on the accused due to:
o The imminence of the threat occurring; or
o The gravity of the threatened harm, without nay urgency involved
• D must honestly believe on reasonable grounds that there is a threat of imminent period.
The threat can be:
o Real: Capable of being demonstrated objectively to have existed
o Imaginary: Honestly and reasonably, but mistakenly believed by D to exist
o The threat is one such that an ordinary person must be capable of yielding in the way
that D did
• Acts done to avoid peril must not be out of proportion to the peril avoided. Defence fails
where D would have committed the offence independently of the threat.
The response must be reasonable, necessary conduct. D must have had no other alternative other
than the response they adopted, to avoid the threat.