Professional Documents
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Criminal Law Elements
Criminal Law Elements
Criminal Law Elements
Sixth Edition
CRIMINAL LAW ELEMENTS
Sixth Edition
Penny Crofts
BEc, LLB (Hons), LLM (Syd), MPhil (Criminology) (Cantab), PhD (Griffith)
Associate Professor of Law,
University of Technology Sydney
LexisNexis Butterworths
Australia
2018
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National Library of Australia Cataloguing-in-Publication entry
Author: Crofts, Penny.
Title: Criminal law elements.
Edition: 6th edition.
ISBN: 9780409347401 (pbk).
9780409347418 (ebk).
Notes: Includes index.
Subjects: Criminal law—Australia. Criminal law—Australia
—Cases.
Jurisdiction
1.6 Jurisdiction is the power to hear and decide a case. Jurisdiction to try
criminal cases is generally territorially limited. That is, the power of a court to
deal with a matter will be limited to offences that take place within, or are
sufficiently connected with, the territory of the sovereign power. Thus, the
State of South Australia exercises control over criminal matters occurring in
South Australia. Therefore, a South Australian court could not try a murder
committed in Victoria.
[page 4]
1.7 Under common law, various tests can be relied upon to establish
territorial jurisdiction:
◆ the ‘essential element’ test: ie, if the essential element of the offence
took place within territorial limits: see R v Ellis [1899] 1 QB 230;
◆ the ‘terminatory’ test: ie, if the effect or result of the offence took
place within territorial limits;
the ‘initiatory’ test: ie, if the physical conduct constituting the
◆
offence charged was performed by the accused within territorial
limits;
◆ the constitutional principle of ‘peace, welfare and good
government’, where the conduct affects the prosecutorial State.
1.8 Increasingly, States are engaging with crimes that cross jurisdictions.
For example, statutory reforms have substantially enlarged the jurisdiction of
New South Wales and South Australian criminal courts by requiring merely a
territorial connection between the State and at least one element of the
offence: see Pt 1A (NSW); Pt 1A (SA).
In New South Wales, a geographical connection is established where, under
s 10C(2):
(a) the offence is committed wholly or partly in the State (whether or not
the offence has any effect in the State), or
(b) the offence is committed wholly outside the State, but the offence has
an effect in the State.
In South Australia, Pt 1A was introduced from December 2002 to overcome
the High Court decision in Lipohar v R (1999) 200 CLR 485. In that case, the
High Court held that the (now repealed) s 5C of the South Australian Act did
not apply to the common law offence of conspiracy. The new s 5G details the
territorial requirements for the commission of an offence against the law of
South Australia. Under s 5C(2), South Australia has jurisdiction where:
◆ a relevant act occurred wholly or partly within South Australia;
◆ the alleged offence caused harm or a threat of harm in South
Australia; or
◆ ‘the alleged offence is a conspiracy to commit, an attempt to
commit, or in some other way preparatory to the commission of
another offence for which the necessary territorial nexus would exist
[if it was] committed as contemplated’ (s 5C(2)(d)).
Statute has also expanded the jurisdiction of Victorian criminal courts for
specific offences such as murder and manslaughter (see s 9 (Vic)) and stalking
(s 21A (Vic)). Victorian courts will have jurisdiction where V (the victim) dies
in Victoria, or where V has been injured in Victoria and dies outside Victoria.
There is also expanded jurisdiction for property offences under s 80A,
provided:
(a) a significant part of the conduct or omission occurred in Victoria; or
(b) where an act or omission occurred wholly outside Victoria, ‘the act or
thing was done with the intention that substantial harmful effects arise
in Victoria and such effects did arise’ (s 80A(2)).
The Supreme Court of Victoria considered the requirement that there be ‘a
real and substantial link’ between the relevant act or omission and the State of
Victoria under s 80A in R v Keech (2002) 5 VR 312. In that case, D (the
defendant) was convicted on
[page 5]
one count of obtaining a financial advantage by deception. D used a false
invoice and statement in order to gain finance. The documents necessary for
finance were executed by D in Victoria, but then dated and executed by the
financier in New South Wales. D sought leave to appeal against conviction on
the ground that the trial judge had erred in law in deciding that Victoria had
jurisdiction. The Supreme Court refused leave, holding that the documents
executed in Victoria were not merely part of the surrounding circumstances,
but had causal significance and were an important part of the fraudulent
scheme. As such, the connection with Victoria was ‘real and substantial’ for
the purposes of s 80A of the Crimes Act.
1.9 The importance of jurisdiction was demonstrated in the English case of
R v Wacker [2003] QB 1207. In that case D was charged with manslaughter. D
was the driver of a refrigerated truck that smuggled people into the United
Kingdom. While crossing the English Channel, the victims suffocated when
the vent in the truck was closed. D argued that the case was outside English
jurisdiction as the vent had been shut in Holland. The Court of Appeal held
that the duty of care arose in Holland, but continued once the ferry had sailed.
If the vent had been opened at any time while crossing the Channel, the
victims would have been saved. Thus, the English Court had jurisdiction.
CLASSIFICATION OF OFFENCES
1.10 For fairly arbitrary historical reasons, some distinctions between
various types of criminal offences have evolved. There is a wide range of
offence classifications in each State, often reflecting perceived criminal justice
needs at the time. Distinctions such as that between felonies and
misdemeanours are of no importance now. The most important distinction
(particularly for the accused) is between summary and indictable offences.
Summary and indictable offences
1.11 The distinction between summary and indictable offences relates
primarily to the mode of trial. A person charged with an indictable offence:
◆ generally has a preliminary hearing or committal proceedings
before trial;
◆ is tried by a judge and jury. The judge rules on questions of law and
the jury rules on questions of fact.
Summary offences are:
◆ less serious offences;
◆ determined finally before a lower court;
◆ tried before a judicial officer who is also a trier of fact;
◆ only created by parliament, and cannot exist at common law.
There is a presumption that an offence is an indictable offence, unless it is
explicitly made a summary offence in the statute.
Generally, summary offences have a short limitation period. In most
jurisdictions there will be a time limit ranging from six months to one year for
the commencement of proceedings for summary offences.
[page 6]
The theory underlying the distinction between summary and indictable
offences is that the more serious the accusation and the greater the potential
punishment and deprivation of liberty, the greater the protection offered to
the accused (in the form of committal proceedings and trial by jury).
Theoretically at least, one of the themes structuring criminal law is the need to
protect citizens from the arbitrary exercise of power by the State.
Student tip
When answering problem questions you are expected to know the law (as a judge would), but
if the facts of a question are ambiguous, then you can state ‘this is a question of fact for the
jury’. However, it is not sufficient to stop there. You would need to draw on decisions in cases
with similar facts to argue what you think a jury is likely to decide, why, and what the
implications would be. If the facts are particularly complex, you might cover both guilty and not
guilty scenarios.
Standard of proof
1.17 In criminal proceedings the prosecution must prove the guilt of the
accused ‘beyond a reasonable doubt’. The standard of proof for criminal trials
is higher than for civil trials, where the party initiating the hearing must prove
their case on the ‘balance of probabilities’.
The courts have made it clear that trial judges should not try to explain
‘beyond a reasonable doubt’ to juries: see, eg, R v Reeves (1992) 29 NSWLR
109.
Thus, the rhetoric of the criminal law is that a person is presumed innocent
until guilt is established beyond a reasonable doubt. In order to establish the
guilt of the accused, the prosecution must prove beyond a reasonable doubt all
of the components of the offence and disprove any defences raised (subject to
limited exceptions).
Exceptions to the burden of proof resting on the prosecution
1.19 There are exceptions to the rule that the burden of proof to establish
criminal responsibility rests on the prosecution under both common law and
statute.
1.20 Common law Under common law, a defendant (D) raising the
defence of insanity must prove, on the balance of probabilities, that D was
suffering mental impairment at the time of the act charged: see R v Porter
(1933) 55 CLR 182. There is no adequate justification for placing the legal
burden of establishing insanity on D, except perhaps by stating that every
person is presumed to be sane.
In South Australia and Victoria the common law rules regarding the
burden of proof for the defence of insanity are enshrined in statute: see
Criminal Law Consolidation Act 1935 (SA) ss 269D, 269I; R v Leach [2002]
SASC 321; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
(Vic) s 21.
1.21 Statute Certain statutory provisions expressly impose the burden of
proof on D. Generally, these provisions require the prosecution to prove some
facts beyond a reasonable doubt, against D, which will result in the conviction
of D unless D can prove on the balance of probabilities some further facts.
[page 9]
An example of this is s 23A (NSW), which imposes the burden of proof on
a defendant wishing to plead substantial impairment of the mind in cases of
murder. The jury must consider whether:
◆ the prosecution has proven murder beyond a reasonable doubt; and
◆ the defence has proven the defence of substantial impairment of the
mind on the balance of probabilities.
Drugs legislation is a controversial example of statutory reversal of the
burden of proof.
Evidential burden
1.22 The evidential burden refers to the rules of evidence that a party to a
case must satisfy for an issue to be legally raised. In other words, there must be
a sufficient foundation of evidence for every issue alleged. If the judge
determines that insufficient evidence has been presented, the judge will not
allow the jury to consider that issue.
For example, if the prosecution attempts to establish the offence of theft
solely by providing evidence that D was found in possession of goods years
after they had been stolen, the judge would determine that this evidence did
not satisfy the evidential burden and direct the jury to return a verdict of ‘not
guilty’.
If the defence attempts to argue that D was grossly intoxicated at the time
of committing a crime, some evidence, such as presence at a pub, would be
necessary for the judge to determine that the issue of intoxication had been
raised satisfactorily.
Evidential burden and the prosecution
1.23 The evidential burden of constituent elements of the particular crime
charged, excluding statutory exceptions, rests on the prosecution. For
example, the prosecution would bear the evidential burden of laying a
foundation for an assault charge, and, once these issues were raised, proving
beyond a reasonable doubt that the accused caused unlawful bodily contact
with the victim with the requisite intent.
In practice it is unnecessary to refer to the evidential burden when
discussing the prosecution’s burden of proof. This is because the evidential
burden is necessarily subsumed within the prosecution’s legal burden of
proving criminal responsibility beyond a reasonable doubt.
Evidential burden and the defence
1.24 The evidential burden for general defences (self-defence, duress,
necessity, provocation, etc) is placed on the accused. The justification for
placing the evidential burden upon the accused in relation to general defences
is that it would be time consuming for the prosecution to negate all general
defences in every case.
The question of how much evidence is needed to satisfy the evidential
burden is unclear. Where the burden rests on the accused, it has been
suggested that it requires there be enough evidence, if believed and
uncontradicted, to suggest a reasonable
[page 10]
doubt in the minds of a reasonable jury that the accused’s version might be
true. That is, the evidence must be enough to ‘suggest a reasonable possibility’:
see Jayasena v R [1970] AC 618.
The evidential burden generally operates to require D to provide
supporting evidence for any defences relied upon. It would be unwise for D to
use the right to silence, and merely rely on the burden of proof resting on the
prosecution. D would be advised to offer defences or alternative readings of
the facts.
Student tip
The shifting evidential burden
The legal burden and evidential burden may shift in criminal trials. For example, on a murder
charge, the prosecution must prove beyond a reasonable doubt that D voluntarily caused the
death of V with sufficient intent. D may then rely on a defence of self-defence, arguing that D
reasonably believed that what D did was necessary. If D has raised sufficient evidence to satisfy
the evidential burden, then the burden of proof would shift back to the prosecution, who
would have to prove beyond a reasonable doubt that D had not acted in self-defence. If the
prosecution failed to prove that D had not acted in self-defence, then D would be acquitted,
despite the prosecution having proved all the ingredients of murder.
Legal problem
Max is charged with murder. He wishes to argue that he did not cause the death, and, if it is
found that he did cause the death, that he acted in self-defence or was suffering mental
impairment at the time.
The prosecution would have to prove all the elements of the offence beyond a reasonable
doubt — ie, the mens rea and actus reus for murder — whether Max exercised his right to
silence or not. Thus, the prosecution would have to prove beyond a reasonable doubt that Max
caused the death of the victim, regardless of whether or not Max argued a break in the chain of
causation.
To raise the defences of self-defence and insanity (or mental impairment) as an issue, Max
would have to satisfy the evidential burden. If Max failed to provide evidence that these
defences were a ‘reasonable possibility’, then the judge would exclude consideration of them. If
Max did satisfy the evidential burden, the prosecution would then have to disprove self-
defence beyond a reasonable doubt. Max would have to prove all elements of the defence of
mental impairment on the balance of probabilities (as an exception to the Woolmington
principle: see 1.18 above).
[page 11]
Chapter 2
Elements of Criminal Liability
Objectives
After reading this chapter you should be familiar with the following:
▶ elements of criminal liability
▶ legal capacity
▶ characteristics of actus reus
▶ characteristics of mens rea
▶ partial mens rea offences
▶ subjective standards
▶ objective standards
▶ crimes of strict liability
▶ crimes of absolute liability
▶ principle of coincidence of actus reus and mens rea
INTRODUCTION
2.1 There are four requirements for criminal liability:
1. a person must have legal capacity to commit a criminal offence;
2. that person must have committed the conduct elements of the offence,
ie, the actus reus;
3. the fault elements, or the mens rea, which form part of the offence,
must have been present at the time of the actus reus; and
4. the absence of any defences of excuse or justification which would
negative liability.
This section will consider legal capacity, and the actus reus and mens rea
elements of an offence. Defences will be considered in Chapters 12 and 13.
LEGAL CAPACITY
2.2 Generally, people are presumed to be responsible for their actions. The
two major exceptions are those who suffer from mental impairment (see
Chapter 12) and children.
[page 12]
Children
2.3 At common law, children under the age of seven years are not
criminally responsible for a criminal act. The doctrine of doli incapax applies
to children between the ages of seven and 14 years. Doli incapax is a Latin
term which means ‘incapable of wrong’. It gives rise to a rebuttable
presumption that the child does not have the mental capacity to understand
that what he or she was doing was wrong: see R v M (1977) 16 SASR 589. They
are presumed incapable of committing the crime due to lack of mens rea.
According to this doctrine, the prosecution needs to prove not only all the
elements of an offence, but also that the child had the mental capacity to
understand that what he or she was doing was wrong.
2.4 All of the common law jurisdictions have lifted the minimum age of
criminal responsibility from seven years to 10 years of age: see Children
(Criminal Proceedings) Act 1987 (NSW) s 5; Young Offenders Act 1993 (SA)
s 5; Children, Youth and Families Act 2005 (Vic) s 344. Between the ages of 10
and 14 years the common law provides for a rebuttable presumption that a
child cannot possess the necessary knowledge to have mens rea. To rebut the
presumption, the prosecution must prove beyond a reasonable doubt not only
that the child had committed the act with necessary mens rea, but also that the
child knew what he or she was doing was seriously wrong: BP v R [2006]
NSWCCA 172.
2.5 The High Court considered the presumption of doli incapax in RP v R
[2016] HCA 53. The majority confirmed that between the ages of 10 and 14
years, the presumption may be rebutted by evidence that the child knew that it
was morally wrong to engage in the conduct that constitutes the physical
element or elements of the offence. Knowledge of the moral wrongness of an
act or omission is to be distinguished from the child’s awareness that his or
her conduct is merely naughty or mischievous. This distinction may be
captured by stating the requirement in terms of proof that the child knew the
conduct was ‘seriously wrong’ or ‘gravely wrong’ (at [9]). To rebut the
presumption, the prosecution must point to evidence from which an inference
can be drawn beyond reasonable doubt that the child’s development is such
that he or she knew that it was morally wrong to engage in the conduct. This
directs attention to the child’s education and the environment in which the
child was raised (at [9]). Evidence of the requisite knowledge may include
answers given in the course of a police interview. Evidence of the child’s
progress at school and of the child’s home life will be required (at [12]).
Corporations
2.6 A corporation is a legal person and may be convicted of crime.
Currently, a corporation will be liable for the criminal acts of its officers or
employees if it can be proven that those acts were, in reality, the acts of the
corporation.
Issues arise for the criminal law in terms of corporate crime for a variety of
reasons. For example, usually there is a separation of actus reus and mens rea.
In addition, punishment options are limited because corporations cannot be
imprisoned. Corporations can be fined or their licence may be revoked.
[page 13]
ACTUS REUS
2.8 The definition of the actus reus is elusive and controversial. The most
accurate definition is that the actus reus is everything that the mens rea is not.
The actus reus of an offence identifies the conduct that the criminal law
prohibits. Generally, the actus reus will involve doing or not doing something,
and may include reference to consequences or circumstances. The actus reus
has also been referred to as the ‘external’ events or ‘physical’ element of a
crime.
2.9 Different offences can have different actus reus requirements. This
section makes some generalisations about the actus reus, and then considers
the concept of voluntariness, a component of the actus reus for every offence.
Regarding the elements of an offence:
◆ these may be specified in provisions; or
◆ legislation may enumerate the offence and prescribe its
punishments. The elements of the offence are then determined by
reference to the common law. Examples include the offence of
murder in s 11 (SA) and s 3 (Vic), and the offence of assault in s 61
(NSW).
The actus reus may consist of conduct that is not a positive act
2.10 Generally, criminal liability will be attached to positive acts, not to
omissions. The common law was reluctant to hold people responsible for an
omission. Under common law tradition, a person could not be liable for
failure to prevent harm, even where a person had the power to prevent that
harm: ‘It is no criminal offence to stand by, a mere passive spectator of a
crime, even of a murder’ (R v Coney (1882) 8 QBD 534 at 557–8 per Hawkins
J). Certain offences cannot be committed by an omission (eg, rape, theft and
assault).
It is necessary to look at the definition of each offence to determine whether
or not a person can be held liable for an omission. In addition, in order for
criminal liability for
[page 14]
an omission to be established, a legal duty, and not just a moral duty, must be
proven. A person is only required to act if they have a legal duty to do so. The
person must act reasonably and in accordance with that duty.
Criminal responsibility for omissions will be explored further in Chapter 6
when considering the offence of manslaughter by criminal negligence.
Voluntariness
2.13 All criminal offences require that D’s conduct was voluntary. If D has
not acted voluntarily, then the actus reus requirements of the offence will not
be satisfied, and D will be found not guilty.
2.14 The concept is traditionally understood as requiring that an act is a
conscious or willed by D: see R v Falconer (1990) 171 CLR 30. In Bratty v
Attorney-General (Northern Ireland) [1963] AC 386, Lord Denning defined
voluntariness as follows:
An involuntary act … means an act which is done by the muscles without any control of the
mind, such as a spasm, a reflex action, or a convulsion; or an act done by a person who is not
conscious of what he is doing, such as an act done whilst suffering from concussion or whilst
sleepwalking: at 409.
[page 15]
• an act performed during impaired consciousness depriving the person of the will to act;
• an act performed under gross intoxication depriving the person of the will to act.
202.2.2 An omission to perform an act is only voluntary if the act omitted to be performed is one
which the person is capable of performing.
The High Court then applied the principles from Ryan to Jiminez’s actions.
The Court considered the period of driving immediately preceding D falling
asleep:
It follows that for a driver to be guilty of driving in a manner dangerous to the public because of
his tired or drowsy condition, that condition must be such that, as a matter of objective fact, his
driving in that condition is a danger to the public. Various matters will be relevant in reaching
such a conclusion. The period of driving, the lighting conditions (including whether it was night
or day) and the heating or ventilation of the vehicle are all relevant considerations. And, of
course, it will be necessary to consider how tired the driver was. If there was a warning as to the
onset of sleep, that may be some evidence of the degree of tiredness. And the period of driving
before the accident, and the amount of sleep
[page 16]
that he had earlier had, will also bear on the degree of his tiredness. But so far as ‘driving in a
manner dangerous’ is concerned, the issue is not whether there was or was not a warning of the
onset of sleep, but whether the driver was so tired that, in the circumstances, his driving was a
danger to the public: at 579.
Thus, the High Court looked to whether, at the time prior to falling asleep, D’s
driving was objectively dangerous.
2.19 An act performed during impaired consciousness depriving the
person of the will to act The condition of automatism may occur, where an
unconscious or semi-conscious person may act without being aware of doing
anything at all. Automatism has been defined as ‘a temporary eclipse of
consciousness that nevertheless leaves the person so affected able to exercise
bodily movements’: see R v Cottle [1958] NZLR 999 at 1007 per Gresson P.
Automatism is a species of involuntariness around which a body of law has
developed.
2.20 Automatism may occur due to:
◆ an external cause, such as a blow to the head, or an intoxicating
substance; or
◆ an internal pathology or weakness.
2.21 Where automatism has occurred due to an internal pathology, this is
governed by special rules of insanity, considered in Chapter 12. Automatism
due to intoxication can also be governed by special rules. Otherwise, where
automatism occurs, D can claim that an action was unwilled or involuntary.
The High Court considered automatism at length in R v Falconer (1990)
171 CLR 30. The High Court stated that:
The requirement of a willed act imports no intention or desire to effect the result by the doing of
the act, but merely a choice, consciously made, to do an act of the kind done. In this case, a
choice to discharge a gun: at 40 per Mason CJ, Brennan and McHugh JJ.
Burden of proof
Where involuntariness is claimed, evidence must support the claim. That is, D must satisfy the
evidential burden. This is due to the principle that the prosecution is entitled to presume that
the acts of D are voluntary: see Falconer at 83. Excluding the exception of insane automatism,
once D has satisfied the evidential burden, the prosecution must prove beyond a reasonable
doubt that the acts of D were voluntary. If this is not proved beyond a reasonable doubt, then D
is not guilty.
[page 17]
Involuntariness: excuse or defence?
2.22 Involuntariness is often referred to as a defence, but this is inaccurate
and misleading. Rather, a claim of involuntariness (with the exception of
insane automatism) is a failure by the prosecution to prove its case.
MENS REA
2.23 The mens rea of an offence specifies the mental state required for a
person to be criminally responsible for that offence. Mens rea can also be
referred to as the fault component or the guilty mind of an offence. There is
some conflict about whether mens rea includes only D’s actual state of mind,
or whether it can also incorporate comparison with the state of mind of a
reasonable person. If an expansive definition of mens rea is adopted, mens rea
can include intention, recklessness and negligence. Mens rea for offences
differs, and different states of mind can result in greater culpability: see, eg,
the mens rea for murder and involuntary manslaughter.
2.24 Mens rea can be determined under:
◆ statute, with words prescribing fault elements for specific offences.
For example, in Victoria there are separate offences, with increasing
penalties, for committing serious offences ‘negligently’, ‘recklessly’
and ‘intentionally’: see ss 24, 17, 16 (Vic);
◆ common law, relying on general principles to assign mens rea to
common law offences, or to imply mens rea for statutory offences.
For example, in He Kaw Teh v R (1985) 157 CLR 523, the High
Court implied a requirement that an offence of importing narcotics
should be committed knowingly or intentionally. The statute
provision was ‘read in the light of the general principles of common
law which govern criminal responsibility’: at 528 per Gibbs CJ.
Subjective or objective?
2.25 Mens rea elements of offences can be either subjective or objective. A
subjective fault element refers to the state of mind of D. An objective fault
element refers to the state of mind of the hypothetical reasonable or ordinary
person. Subjective fault elements criminalise the person for what they actually
thought at the time of the prohibited act. An objective standard punishes a
person for their failure to act or think as a reasonable or ordinary person
would in particular circumstances.
At common law, the majority of offences have subjective mens rea
requirements. That is, the focus is on what D actually intended or knew.
Intention and recklessness are the major examples of subjective mens rea
requirements. The High Court has restated the common law presumption
that every offence requires a guilty mind or subjective fault component: see
He Kaw Teh at 528–9 per Gibbs CJ; at 565–7 per Brennan J.
There are objective mens rea requirements for some statutory and common
law offences. Negligence, strict and absolute liability offences are examples of
offences where D is judged according to D’s actions, rather than D’s state of
mind. Some fault elements and many defences can involve a combination of
subjective and objective components, eg, the defence of self-defence.
[page 18]
Student tip
References to the ‘ordinary’ or ‘reasonable’ person, or what D should have known, impose an
objective test.
2.26 Mens rea varies from offence to offence. While it is necessary to look
at the mens rea requirements for each offence separately, it is possible to make
some generalisations about mens rea.
Subjective standards
Intention
2.27 Intention is central to common law doctrine on the fault elements of
offences and is perceived as the most culpable fault component. Intention is a
subjective standard. Thus, where intention is a required element of an offence,
the prosecution must prove that D actually had intention, not that a
reasonable person would have had the requisite intention.
The concept of intention can be used in:
◆ a narrower sense, with ‘intention’ conveying the notion of choosing
or meaning to commit the conduct elements of the offence. This
conception of intention excludes recklessness, eg, R v Venna [1976]
QB 421; or
◆ a broader sense, which utilises ‘intention’ as a synonym for
subjective fault. This would include recklessness, eg, Vallance v R
(1961) 108 CLR 56. For example, stating D had the necessary
criminal intent would be the same as stating D had the necessary
mens rea.
The contemporary conception of intention complies with the narrower
sense and this is the way criminal intent will be referred to throughout this
book.
Intention is a central concept to criminal law; however, the weight of
authority is against providing a definition for the concept, arguing that
intention should be given its current meaning in ordinary language: see, eg, R
v Moloney [1985] AC 905.
Student tip
There is no need to define‘intention’. It should be given its current meaning in ordinary
language.
2.32 Indifference to risk In R v Crabbe (1985) 156 CLR 464 at 470, it was
held that indifference to risk is not an element of recklessness: ‘It is not the
offender’s indifference to the consequences of his act but his knowledge that
those consequences will probably occur that is the relevant element.’ Thus, if
D does not want a perceived
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risk to result, but recognises that the risk may well result, then D would still
have behaved recklessly.
2.33 Social utility or purpose The social utility of an act has consequences
for whether or not D’s actions are labelled reckless. This has been noted in
Crabbe:
Of course, not every fatal act done with the knowledge that death or grievous bodily harm will
probably result is murder. The act may be lawful, that is, justified or excused by law. A surgeon
who competently performs a hazardous but necessary operation is not criminally liable if his
patient dies, even if the surgeon foresaw that his death was probable. Academic writers have
pointed out that in deciding whether an act is justifiable, its social purpose or social utility is
important: at 469–70 per Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ.
Thus, wilful blindness is not a substitute for mens rea requirements, but may
provide evidence that D may have had the necessary mens rea in the form of
intention or knowledge.
Transferred malice
2.35 The doctrine of transferred malice applies to hold D responsible
where D has the mens rea for a particular offence, but brings about the actus
reus for the same offence in relation to a different person or thing: see R v
King [2003] NSWCCA 399. Thus, if D shoots at A with the intention to kill,
but misses and kills V, D is guilty of the murder of V (and the attempted
murder of A). The doctrine of transferred malice is discussed in more detail at
3.3, regarding the beginning of life.
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Objective standards
2.36 Despite the primacy that the criminal law gives to the state of mind of
the accused at the time of committing an offence, there are some offences that
depart from this principle:
◆ offences where negligence is the fault component;
◆ strict liability offences;
◆ absolute liability offences.
Negligence offences
2.37 Negligence can suffice as the fault element for some offences.
Negligent conduct is conduct that is below the standard a reasonable person
would observe when engaging in the relevant activity. A person engaged in
negligent conduct may or may not advert to a risk of harm that a reasonable
person would have appreciated. Where negligence is specified as a fault
component, the prosecution need only prove objective or inadvertent
negligence. Thus, offences with negligence as a component may be completely
objective offences.
2.38 The concept of negligence can be relevant in two areas:
1. express statutory provisions, generally in areas of offences involving
injury to another person: eg, s 54 (NSW); s 19A (SA); s 24 (Vic);
2. ‘criminal’ negligence as the fault component for manslaughter: see
Nydam v R [1977] VR 430 at 455.
Criminal law requires a high degree of negligence, sometimes denoted as
‘criminal negligence’ or ‘gross negligence’. In Nydam the fault component for
negligent manslaughter was stated as follows:
The requisite mens rea is … an intent to do the act which, in fact, caused the death of the victim,
but to do that act in circumstances where the doing of it involves a great falling short of the
standard of care required of a reasonable man in the circumstances, and a high degree of risk, or
likelihood of the occurrence of death or serious bodily harm, if that standard of care was not
observed; that is to say, such a falling short and such a risk as to warrant punishment under the
criminal law: at 455.
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2.43 Words of the statute When considering whether the common law
presumption in favour of mens rea has been displaced, the primary matter to
be considered is the wording of the statute. If there is a clear intention
expressed by parliament to create a strict liability offence, then no further
analysis is required.
In the absence of clear language regarding fault elements, further analysis
will be required. The courts may look to the specific language of the statute.
For example, in He Kaw Teh Gibbs CJ stated that the word ‘possession’
implicitly imported a requirement of knowledge:
Where a statute makes it an offence to have possession of particular goods, knowledge by the
accused that those goods are in his custody will, in the absence of a sufficient indication of a
contrary intention, be a necessary ingredient of the offence, because the words describing the
offence (‘in his possession’) themselves necessarily import a mental element: at 529.
Where there is ambiguity in the language of the statute, the judiciary may
need to go beyond the wording of the statute.
2.44 Subject matter with which the statute deals The subject matter of
the statute can offer guidance as to the intention of parliament.
Considerations of subject matter include the gravity of the social problem to
which the offence is directed, the severity of the punishment, and the
associated stigma.
In general, strict liability offences are limited to less serious offences, such
as breaches of traffic and health regulations: see He Kaw Teh at 595 per
Dawson J. However, some serious offences have been interpreted as strict
liability offences: see, eg, culpable driving in New South Wales (s 52A (NSW);
Jiminez: see 2.18 above). There is some authority suggesting that the more
serious the social evil, the more likely it is that the offence will be one of strict
liability: see Kennedy v R [1981] VR 565. However, the bulk of modern cases
take the view that the greater the social stigma and potential penalty, the
greater the likelihood that parliament intended the requirement of a
subjective fault element.
Thus, in He Kaw Teh the High Court considered:
◆ the gravity of the social problems associated with the consumption
of narcotics, but stated that this was insufficient to rebut the
common law presumption of subjective blameworthiness: at 529–
30, 596;
◆ the more serious the sanctions applied to a convicted person, the
greater the requirement for fault elements. In this case it was
considered that, as the maximum penalty was life imprisonment,
the offence would have to be committed knowingly or intentionally:
[A] convicted offender is exposed to obloquy and disgrace and becomes liable to the
highest penalty that may be imposed under the law. It is unlikely that Parliament
intended that the consequences of committing an offence so serious should be visited on
a person who had no intention to do anything wrong, and no knowledge that he was
doing so: at 530.
This notion that the more serious the offence, the greater the protection the
accused will need, is informed by the ideal of protecting citizens from the
arbitrary exercise of power by the State. The greater the potential threat to the
liberty of the accused, the greater the need for safeguards. The requirement
that the prosecution prove mens rea is a
[page 24]
form of protection for the accused. For example, in illicit drugs cases, it is
easier for the prosecution to prove the accused had the drugs, but more
difficult to prove the accused knew about the presence of the drugs.
2.45 Utility of imposing strict liability In He Kaw Teh, the High Court
stated that the court will consider whether imposing strict liability will assist
in the enforcement of regulations: at 529–30 per Gibbs CJ.
Courts may refer to second-reading speeches and explanatory
memorandums in determining the intention of parliament. The issue would
then be whether a subjective fault requirement would render the legislation
ineffective. The purpose of the legislation must be to compel persons to take
preventative measures to avoid committing the offence. The court would
consider whether persons can do anything to avoid committing an offence, or
whether the legislation creates a class of ‘luckless victims’: see Lim Chin Aik v
R [1963] AC 160 at 174.
In He Kaw Teh, the High Court held that a person bringing baggage into a
country can exercise some care to ensure that no drugs are contained in it.
Public interest requires that such care be taken. This would support an
argument that parliament intended to penalise importation that was careless.
However, no purpose would be served by criminalising a person who had
taken reasonable care, but had unknowingly been an innocent agent to import
narcotics.
2.46 The defence of honest and reasonable mistake of fact The defence
of honest and reasonable mistake of fact, also known as the Proudman v
Dayman defence, is available in strict liability offences:
As a general rule an honest and reasonable belief in the state of facts which, if they existed, would
make the defendant’s act innocent, affords an excuse for doing what would otherwise be an
offence: Proudman v Dayman (1941) 67 CLR 536 at 540.
Burden of proof
As with other general defences, D carries the evidential burden — once D has put the defence
in issue, the Crown must disprove the defence of honest and reasonable mistake of fact beyond
a reasonable doubt: see He Kaw Teh; CTM v R (2008) 247 ALR 1.
Palmer was found guilty and accordingly fined the mandatory penalty of
$27,600. Callinan and Heydon JJ noted that this case provides an example of
the way in which mandatory penalties can operate harshly and unfairly, and
generate time-consuming and expensive appellate litigation.
Absolute liability offences
2.49 Absolute liability offences require only the perpetration of the actus
reus, and exclude the defence of honest and reasonable mistake of fact.
Liability is thus absolute. The common law has generally been reluctant to
interpret an offence as being one of absolute liability. Thus, even when an
offence has been interpreted as one of strict liability, there is a further
presumption that the defence of honest and reasonable mistake of fact is
available, unless excluded expressly or by necessary implication: see He Kaw
Teh.
When interpreting the mens rea requirements of an offence the court would
first apply the principles stated in He Kaw Teh to determine whether the
offence had a subjective fault component or was a strict liability offence. If the
offence were interpreted as having no subjective fault component, there would
then be a presumption that the defence of honest and reasonable mistake of
fact would apply. The court would then reapply the principles from He Kaw
Teh to determine whether this presumption was rebutted, and the offence was
an absolute liability offence: see Lee Allen v United Carpet Mills Pty Ltd [1989]
VR 323.
[page 26]
Absolute liability offences are generally regulatory: see, eg, exceeding the
speed limit (Kearon v Grant [1991] 1 VR 321); refusing to submit to a breath
analysis (R v Walker (1994) 35 NSWLR 384); and selling liquor to underage
persons (Hickling v Laneyrie (1991) 21 NSWLR 730).
It should be noted that, in absolute liability offences, general defences such
as necessity and duress are available unless expressly excluded.
INTRODUCTION
3.1 Homicide is the killing of a human being. Some homicides may be
lawful, eg, killing excused or justified by the law, or during war. An unlawful
homicide is a killing that is not excused by law. A broad distinction is made
within the category of unlawful homicide between manslaughter and murder.
This distinction is based on the level of culpability, and this often turns upon
the level or type of mens rea (discussed in Chapters 4, 5 and 6). The
distinction is based on the conception that there are different levels of
blameworthiness, and this should be reflected in different charges.
3.2 Historically, the distinction between murder and manslaughter
mattered a great deal as courts had no discretion in sentencing for murder.
Previously the penalty for murder was death, and more recently this shifted to
mandatory life imprisonment. Currently the courts have a great deal of
discretion in sentencing, in recognition that there are different levels of
culpability in the category of murder. The continued distinction between
murder and manslaughter has been subject to criticism; however, it is likely to
be maintained due to:
◆ the belief that there is greater stigma attached to a conviction of
murder than one of manslaughter;
◆ the circumstance that the abolition of mandatory life imprisonment
has removed the impetus for reform.
[page 28]
The distinction between murder and manslaughter continues to be
maintained, and in South Australia and Victoria continues in common law
form. Sir Edward Coke described murder as:
… when a man of sound memory and of age of discretion unlawfully kills any reasonable
creature in being, and under the King’s peace, with malice aforethought, either express or
implied by the law, the death taking place within year and a day: 3 Co Inst 47.
New South Wales has replaced the common law offence of murder with s 18
(NSW), which differs from murder at common law: see 4.27. The common
law doctrine of manslaughter survives in New South Wales under s 18(1)(b),
which provides that ‘every other punishable homicide shall be taken to be
manslaughter’.
3.3 This chapter will consider the actus reus for unlawful homicide, which
is the same for both murder and manslaughter.
Burden of proof
The prosecution must prove beyond a reasonable doubt that:
• a person was killed (ie, death of a human being);
• the conduct was voluntary; and
• the accused caused the death of the victim.
HUMAN BEING
3.4 There is no homicide unless D kills a human being. This requirement is
expressed at common law as ‘a reasonable creature in being’. For the purposes
of homicide, a human being is one who has been born and who has not died.
This means that the courts have had to determine when a life begins, and
when a person is dead, for the purposes of homicide.
Student tip
In most fact situations, students can assume that the victim was a human being who has been
born and who has not died.
Beginning of life
3.5 Under common law the general rule is that a child must have left the
womb for it to be regarded legally as a person. This was elaborated further by
Barry J in R v Hutty [1953] VLR 338:
… legally a person is not in being until he or she is fully born in a living state. A baby is fully and
completely born when it is completely delivered from the body of its mother, and it has a
separate and independent existence in the sense that it does not derive its power of living from
its mother. It is not material that the child may still be attached to its mother by the umbilical
cord; that does not prevent it from having a separate existence. But it
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is required, before the child can be victim of manslaughter or infanticide, that the child should
have an existence separate from and independent of its mother, and that occurs when the child is
fully extruded from the mother’s body and is living by virtue of the functioning of its own
organs: at 339.
Thus, the killing of a foetus in the womb is not homicide at common law, nor
is the killing of a child-foetus that has not wholly emerged from the womb.
South Australia and Victoria maintain the common law definition of the
beginning of life.
New South Wales has introduced a statutory definition of the beginning of
human life to the same effect as the common law. Section 20 (NSW) states
that, for the purposes of murder, a ‘child shall be held to be born alive if it has
breathed, and has been wholly born into the world whether it has had an
independent circulation or not’. In New South Wales, for cases of
manslaughter, the principles of the common law apply regarding the
commencement of human life.
See R v Iby [2005] NSWCCA 178 for an analysis of the relevance of the
‘born alive’ rule in contemporary Australia.
3.6 Although the killing of a child in utero cannot amount to murder or
manslaughter, D may still be liable for either of these offences where D caused
injury to the child while in utero, provided that the child is born alive and
later dies. Thus, in Martin v R (No 2) (1996) 86 A Crim R 133, D assaulted a
woman while she was pregnant. This resulted in harm to the foetus and the
death of the baby seven months after it was born. It was held that even though
D performed the actus reus for unlawful homicide while the foetus was not a
legal human being, he could be held responsible for the baby’s death once it
was a human being. Clearly, the baby was a human being at the time that she
died: see also R v F (1996) 40 NSWLR 245.
3.7 The issues relating to the beginning of human life have been explored at
length in two cases. In the English case of Re Attorney-General’s Reference (No
3 of 1994) [1998] AC 245, D stabbed his girlfriend who he knew was pregnant
with his child. Stab wounds penetrated the uterus and the foetus. The child
was born grossly premature and survived for around 120 days. D was charged
with the murder of the child. The House of Lords held that the foetus was a
‘unique organism’, a separate being from the mother.
In order to charge D with murder, the prosecution had to establish the
necessary mens rea. The House of Lords held that while D had the necessary
mens rea in relation to the mother, there was no mens rea for the actual
victim’s death. It was considered that the doctrine of transferred malice (see
2.35) should not apply because otherwise the case involved a ‘double transfer
of intent, first from the mother to the foetus and then from the foetus to the
child as yet unborn’: at 261–2 per Lord Mustill. However, the House of Lords
considered that D could be held liable for manslaughter — D had committed
an unlawful act (the stabbing) that was objectively dangerous and had caused
death (manslaughter will be considered in Chapters 5 and 6).
3.8 Issues relating to the beginning of human life were raised again in the
New South Wales case of R v King (2003) 59 NSWLR 472. This case is
definitely worth reading, as it details international responses to the thorny
issue of how the criminal law should respond to cases involving harm to
foetuses. In King, D and V had sexual intercourse once, resulting in V’s
pregnancy. D requested V have an abortion and when she refused
[page 30]
to comply, he kicked her in the stomach and stomped on her stomach half a
dozen times. As a consequence, the foetus died and was delivered stillborn
three days later.
Among other offences, D was charged with the intentional infliction of
grievous bodily harm: see s 33 (NSW). The Crown relied on the death of the
foetus and the abruption of the placenta as constituting grievous bodily harm
to V. Section 33 required the infliction of grievous bodily harm to ‘any
person’. The New South Wales Court of Criminal Appeal held, in accordance
with existing authorities, that the infliction of harm to a foetus will not
constitute an offence against the foetus unless that foetus is born alive. Thus,
the central issue in this case was whether or not the death of the foetus was
sufficient to constitute grievous bodily harm to the mother. Spigelman CJ
stated that for the purposes of assault, the foetus is part of the mother due to
the close physical bond: at [96]. Consequently, harm to the foetus could
constitute an injury to the mother.
The Court also considered the application of transferred malice. It was held
that the common law doctrine of transferred malice could apply to s 33. This
is because s 33 refers to an intention to inflict grievous bodily harm on ‘any
person’. Thus, the offence is made out if, while intending to inflict grievous
bodily harm on one particular person, the results of the actions are to in fact
inflict harm on another person: at [85] per Spigelman CJ.
The New South Wales Court of Criminal Appeal noted that the decision in
Re Attorney-General’s Reference (No 3 of 1994) [1998] AC 245 applied to the
law of homicide. Spigelman CJ stated that it was not necessary to consider
whether that decision applied in Australia with respect to the law of homicide,
as King did not raise that issue.
Both Victoria and New South Wales have introduced statutory reforms that
reflect the decision in King. Under s 15 (Vic) the definition of ‘serious injury’
has been expanded to encompass the destruction of the foetus of a pregnant
woman, other than in the course of a medical procedure and whether or not
the woman suffers any other harm. Similarly, s 4 (NSW) defines ‘grievous
bodily harm’ (GBH) as including ‘the destruction (other than in the course of
a medical procedure) of the foetus of a pregnant woman, whether or not the
woman suffers any other harm’.
At the time of writing, the New South Wales Upper House is considering
the Crimes Amendment (Zoe’s Law) Bill 2017. The Bill proposes to remove
the part of the definition of GBH that includes ‘the destruction of the foetus of
a pregnant woman…’ and create a new offence of harm or destruction to a
child in utero. This proposed offence would not apply to medical procedures
or anything done with the consent of the mother of the child in utero. Under
the reasoning of Spigelman CJ in King and the existing definition of GBH in s
4 (NSW), this proposed Bill is unnecessary, as harm to a foetus is already
recognised as grievous bodily harm to the mother. Critics of the Bill fear that
it has the potential to threaten access to abortion, because it uses the words
‘child in utero’ rather than ‘foetus’.
Abortion
3.9 One of the reasons why the definition of the beginning of human life is
so important is because it affects access to abortion. In New South Wales and
South Australia, where the mother or another person destroys the foetus in
the womb, they may be guilty of procuring an abortion: see ss 82–83 (NSW); s
81 (SA). These sections all
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speak of ‘unlawfully’ administering abortifacients or ‘unlawfully’ using an
instrument. Thus, acts done by medical practitioners for the purpose of
preserving the life or good health of the mother are not unlawfully done.
The landmark decision regarding abortion is R v Davidson [1969] VR 667,
where Menhennitt J considered that the defence of necessity was relevant to
determining whether or not an abortion was unlawful. Accordingly, a person
who performs an abortion will be acting lawfully if that person honestly
believes on reasonable grounds that the act was:
(a) necessary to preserve the woman from a serious danger to her life or her physical or mental
health … which the continuance of the pregnancy would entail; and
(b) in the circumstances not out of proportion to the danger to be averted: at 672.
ACT OR OMISSION
3.12 Excluding manslaughter by unlawful and dangerous act, D can be
responsible for causing the death of V with an act or an omission. Only
manslaughter by unlawful and dangerous act cannot be committed with an
omission.
In order to be responsible for an omission, D must have a legal duty to act,
rather than a moral duty: see R v Taktak (1988) 14 NSWLR 226. The most
common type of homicide case involving omissions is manslaughter by
criminal negligence. However, in R v Taber (2002) 56 NSWLR 443, D was
found guilty of murder for an omission at first instance; on appeal it was
found that D lacked the mens rea for murder. This issue is discussed in more
detail in Chapters 4 and 6.
VOLUNTARINESS
3.13 The act causing death must be voluntary. The prosecution is entitled
to presume that D’s actions were voluntary, ie, ‘conscious’ or ‘willed’: see Ryan
v R (1967) 121 CLR 205; R v Falconer (1990) 171 CLR 30.
Burden of proof
The prosecution is entitled to presume voluntariness. This means that, if D wishes to raise
voluntariness as an issue, D must satisfy the evidential burden. If D suggests that there is a
reasonable possibility that D’s act was involuntary, then (leaving aside insane automatism) the
prosecution must then prove voluntariness beyond a reasonable doubt: see Falconer.
[page 33]
3.14 Issues of voluntariness and causation can be interrelated, as it is
necessary to identify the relevant act that caused death, and whether this act
was voluntary. It is for the jury to identify what act or acts were done by the
accused and whether any of these caused death. Thus the question of whether
a reflex action is a voluntary act will be a question for the jury: see Murray v R
(2002) 211 CLR 193; Ryan.
Student tip
Students need to be consistent when identifying the relevant act or omission. The prosecution
will have to prove that this relevant act and/or omission was voluntary, caused the death of V,
and that D had the necessary mens rea at the time of the relevant act and/or omission.
The High Court focused, not upon the pulling of the trigger, but upon the
pointing of the loaded, cocked rifle at the victim. It was up to the jury to
determine which act or acts caused the death of the victim, and whether these
acts were voluntary. It was held that it was open to the jury to decide that the
act of pointing a loaded rifle at the victim was the substantial and operating
cause of death, and this act was clearly voluntary.
3.17 The next two High Court cases demonstrate some of the difficulties
that can confront the courts when determining whether or not an act was
willed. When reading
[page 34]
these cases, students should be aware that these offences occurred in code
States, so there are some differences in legislation. However, the High Court
considerations regarding voluntariness are relevant to common law States.
In Ugle, D was charged with the stabbing murder of V. D claimed that his
action was involuntary and/or an act of self-defence. D and his friend, A, had
got into a fight with V at V’s house, resulting in V chasing D and A away with
a cricket bat. D and A returned to V’s house later that day. D armed himself
with a knife and A brought a brick. D and A were once again confronted by V
with the cricket bat. D claimed that V hit him with the cricket bat causing D
to lose his balance. D raised his arm to stop V from hitting him with the bat
again. D said that he then ran away. When he got back to his home, he washed
the knife because it had blood on it. D stated that he had not had any
intention of using the knife to stab V.
Among other issues, the High Court considered whether or not D’s act
could be classed as voluntary. Gummow and Hayne JJ held that the jury
should have been directed to consider the issue of voluntariness. The question
was ‘whether the knife had entered the body of the deceased independently of
the exercise of the will of the appellant. Did the appellant put the knife in the
body of the deceased, or did the deceased impale himself on the knife the
appellant was holding?’: at [30]. As a consequence, a retrial was ordered. It
was open to the jury to find that the stabbing was involuntary.
3.18 In Murray, D was charged with the murder of V. D and V had been
drinking at a pub before returning to D’s home. D claimed that while he was
in the lavatory he heard V threatening to fight him. D ran into his bedroom
and grabbed a shotgun from under the bed before running into the lounge
room. D claimed that V:
… sort of turned around to the side and about side on as he was getting up, and his arm shot out
and hit me — something hit me in the head. I had the gun; as he was starting to get up, I lifted it,
I think, and it was about waist height I’d say when I got hit in the head and the gun went off: at
[32].
D claimed that he took the gun with him to frighten V so that V would leave
his house. D denied wanting to shoot V, but admitted that his finger was
probably somewhere near the trigger. D said that he had not deliberately shot
V.
One of the issues considered by the High Court was whether or not D’s
actions were voluntary. Gummow and Hayne JJ applied Ryan by focusing on
the ‘relevant act causing death’. They stated that it was better to avoid over-
refinement:
Once it is recognised that the act is the act of discharging the loaded shotgun it can be seen that
the act comprises a number of movements by the appellant that can be identified as separate
movements. He loaded the gun; he cocked it; he presented it; he fired it. Some of these steps may
be steps to which the appellant would say that he had turned his mind; others may not have been
accompanied by conscious thought. It is by no means unknown for someone to carry out a task
(like, eg, loading a weapon) without thinking about it, if it is a task the person has undertaken
repeatedly. In some circumstances, the trained marksman may respond to a threat by firing at
the source of that threat as soon as the threat is perceived, and may do so without hesitating to
think. But in neither example could it be said that the act (of loading or firing the weapon) was
an unwilled act. Similarly, once it is recognised that the relevant act in this case is the act of
discharging the loaded
[page 35]
shotgun, it can be seen that whether or not particular elements of that composite set of
movements (load, cock, present, fire) were the subject of conscious consideration by the
appellant, there is no basis for concluding that the set of movements, taken as a whole, was not
willed. There was no suggestion of disease or natural mental infirmity; there was no suggestion
of sleep walking, epilepsy, concussion, hypoglycaemia or dissociative state: at [53], original
emphasis.
As a consequence, it was considered that the jury had determined that the
relevant act causing death was voluntary. This is because, as in Ryan, it was
open to the jury to regard the relevant act causing death broadly. The High
Court contrasted the facts in Murray with those in Ugle. It was noted that, in
Ugle, there was a question as to whether D had stabbed V, or whether V had
impaled himself with the knife.
CAUSATION
3.19 The principle of causation requires that D’s act or omission must
cause the death of V. This is often referred to as ‘proving the chain of
causation’.
Causation is one method for determining whether D should be held
responsible for a death. That is, is the link sufficient such that D should be
held criminally responsible? The issue of causation requires that there is a
sufficient link between the act or omission of the accused and the prohibited
death.
The issue of causation is objective, and is related to the physical
consequences of a crime, ie, the actus reus and not the mens rea. Thus, the
mental state of D at the time of the crime charged is irrelevant to the
assessment of whether there was a causal connection between D’s act and the
death.
Usually, causation will not be an issue in homicide cases, as proving that D
caused the death of V will be straightforward. Thus, where D shot V in the
head resulting instantly in death, it is clear that D caused the death of V.
Difficulties arise where there are multiple causes of death, and in determining
whether D’s acts were sufficiently causally connected to V’s death.
Where causation does arise as an issue, the matter must be fully explained
to the jury and the acts relied upon by the prosecution as causing the death of
V identified: see Royall v R (1991) 172 CLR 378. This is particularly important
where there are issues relating to voluntariness or to the contemporaneity of
the act and mens rea.
There is no sole test available for resolving questions of causation. The
common law is a source of general principles of causation; however, these
principles are imprecise and no one rule is always applicable.
Factual causation
3.20 Where causation is relatively straightforward, two broad tests have
been proposed:
1. the ‘but for’ test;
2. the ‘common sense’ test.
Each of these will be considered in turn.
[page 36]
‘But for’ test for causation
3.21 In straightforward cases, causation can be determined by asking
whether the consequence would not have happened ‘but for’ the actions of D:
see Royall at [99] per McHugh J. If the answer is negative, ie, the harm would
not have occurred without D’s conduct, then causation is established for legal
purposes. If the answer is positive, ie, the harm would have occurred anyway,
there is no causation for legal purposes.
Legal causation
3.24 Legal causation comprises two elements:
1. D’s conduct must be an operating and substantial cause of the death of
V; and
2. the immediate cause of death must not have been an intervening act or
event (novus actus interveniens).
‘Operating and substantial cause’ test
3.25 The basic test used in all criminal jurisdictions for determining
causation is the ‘operating and substantial cause’ test. This focuses upon
whether the act of D was
[page 37]
an operating and substantial cause of the death of V. Authorities are clear that
the ‘operating and substantial cause’ test should be applied to determine
whether or not causation can be established: see R v Hallett [1969] SASR 141
at 149; R v Evans and Gardiner (No 2) [1976] VR 523 at 528 per Deane and
Dawson JJ; Royall at 423 per Toohey and Gaudron JJ, 441–3 per McHugh J:
The question to be asked is whether an act or series of acts … consciously performed by the
accused, is or are so connected with the event that it or they must be regarded as having a
sufficiently substantial causal effect, which subsisted up to the happening of the event, without
being spent or without being in the eyes of the law sufficiently interrupted by some other act or
event. It does not matter on the question of causation whether or not the accused, after the
commission of his act, fails to appreciate or takes unavailing steps to avoid its probable
consequences, or mistakenly thinks that he has taken such steps or fails to take such steps
through some supervening factor, unless that supervening factor so interrupts the effect of the
original act as to prevent that original act from being in the eyes of the law the cause of death:
Hallett at 149.
Accordingly, D’s conduct need not be the sole cause of death, but must be a
substantial and operating cause. In Arulthilakan v R (2003) 203 ALR 259, the
High Court approved the language of ‘substantial cause’ and applied the
decision in Royall. This was demonstrated in R v Moffatt (2000) 112 A Crim R
201, where D was charged with murder. D and V had been drinking a mix of
moselle with methylated spirits and had an argument, during which D hit V
with a hammer and strangled him. The autopsy was unable to isolate a cause
of death, suggesting it could be any one or a combination of:
◆ advanced cardiac disease;
◆ acute alcohol toxicity;
◆ actions of D.
It was held by the New South Wales Supreme Court of Criminal Appeal
that it was incorrect to search for a principal cause of death. If a contribution
by D is present, it is irrelevant that there is more than one possible cause of
death. Where the precise mechanism of death is ‘obscure’, the question is
whether, approaching the question in a commonsense way, D accelerated the
death of V in that his actions were a substantial contribution to the death of V.
It was held that D’s actions were a substantial and operating cause of the death
of V.
Instructions to the jury about causation were considered in the case of
Reynolds v R [2015] NSWCCA 29. The case upheld the test as requiring that
D’s actions were a ‘significant’ or ‘substantial’ cause of death.
Intervening acts
3.26 Once it is held that D’s acts are an operating and substantial cause of
death, the next question is whether there was any intervening act or event
(novus actus interveniens) that broke the chain of causation.
The proposed tests are quite vague and do not provide definitive answers in
cases where complicated questions of causation arise. In particular, difficulties
arise in determining whether or not the chain of causation has been broken by
intervening acts or events that have occurred separately from D’s actions. The
courts must consider whether an act has supervened and become the
dominant cause of death. Where
[page 38]
this act amounts to a novus actus interveniens (ie, a new or intervening act or
event), then the causal nexus is displaced.
This section details the courts’ various responses to specific factual
situations raising the issue of novus actus interveniens. It is stressed that the
operating and substantial cause test is still applied; these cases indicate the
outcomes of particular factual scenarios.
Ordinary hazard
3.27 A novus actus interveniens that functions to rupture the causal chain
must be an event or act which is unexpected or unpredictable. For example, in
Hallett, D injured V and left V unconscious on the water’s edge; V died by
drowning when the tide rose. It was held that this was not a novus actus
interveniens, as the rising of the tide is a predictable and ordinary event. D’s
actions were the operating and substantial cause of V’s death. The causal
chain would have been ruptured if there had been a tidal wave.
Extraordinary natural phenomena, such as earthquakes, bolts of lightning
or tidal waves, may sever the chain of causation: see Hallett.
Medical treatment
3.29 V may die after receiving medical treatment following an injury
inflicted by D. Where the medical treatment is competent, and does no more
than delay a death that has been made inevitable by the actions of D, that
medical intervention is not a cause of death. For example, in R v Malcherek; R
v Steel [1981] 2 All ER 422, the doctors disconnected the life support machine
of two Vs attacked by D. V1’s brain was irretrievably damaged, and V2’s brain
had ceased to function. It was held that the injuries inflicted by D were the
continuing, operating and substantial causes of the Vs’ deaths. (Note that V2
would be regarded as already dead under legislation in each State.)
Where medical treatment is incompetent and death follows, but it can be
said that V would have died anyway as a result of D’s actions, then the chain
of causation is not ruptured.
[page 39]
Where death is not inevitable, but could have been averted with competent
medical treatment, and V dies, questions of causation do arise. Generally,
however, it can be stated that medical treatment, even bad medical treatment,
will not rupture the causal chain, ie, D will be held to have caused the death of
V.
3.30 The leading decision on this issue is R v Smith [1959] 2 QB 35, where
V had received two bayonet wounds in the course of a fight at an army
barracks. While being carried to the medical station he was dropped twice. At
the medical station, medical staff failed to recognise the severity of his injuries
and administered incorrect treatment. Medical evidence suggested that a
wound of this kind would have tended to heal of its own accord, and V would
have survived. It was held that, although the medical treatment was harmful,
death still resulted from the stab wound received two hours earlier. Thus D
would not be held to be causally responsible:
… only if the second cause is so overwhelming as to make the original wound merely part of the
history, can it be said that the death does not flow from the wound: at 42–3.
3.31 The case of R v Evans and Gardiner (No 2) [1976] VR 523 also
demonstrates the principle that, generally, medical treatment will not break
the chain of causation unless the treatment is so palpably wrong as to make
the original wound merely part of the history. In that case V died almost one
year after being stabbed by D. After the stabbing, a bowel resection operation
was successfully performed. V was thought to have completely recovered, but
11 months later, died of a condition which was not an uncommon sequel to
bowel resections. Medical evidence was presented that V’s condition should
have been diagnosed and treatment would have rectified the condition. It was
held that D still caused the death of V, as the original stabbing was the
operating and substantial cause of death.
3.32 The exceptional case of R v Jordan (1956) 40 Cr App R 152
demonstrates that where medical treatment is ‘palpably wrong’, the causal
chain may be ruptured. V had been stabbed by D and had almost healed when
the doctors administered an antibiotic to which he was allergic. The
medication was stopped upon observing his intolerance; however, due to
inadvertence, he was administered the antibiotic again. He died as a result of
this intolerance. It was held that the ‘palpably wrong’ medical treatment had
ruptured the causal chain.
In cases like this, whether the medical treatment had ruptured the chain of
causation would be a question of fact for the jury.
It should be noted that the bulk of authority in this area is in favour of poor
medical treatment not breaking the chain of causation.
Pre-existing condition
3.34 A general principle is that assailants must take their victims as they
find them — the ‘eggshell skull’ principle. Under this principle, if one person
attacks another, then it is said to be immaterial that an injury would not have
resulted but for some antecedent condition of the victim. This has been
applied to physical conditions such as in Mamote-Kulang v R (1964) 111 CLR
62, where a role in the cause of death was an enlarged spleen. In that case,
Windeyer J stated at 84 that ‘a killing is not less a crime because the victim
was frail and easily killed’.
3.35 The role of antecedent psychological conditions is less certain.
However, in R v Blaue [1975] 3 All ER 446, the ‘eggshell skull’ principle was
applied. In Blaue, V, a Jehovah’s Witness, refused a blood transfusion on the
grounds of religious beliefs. The Court of Appeal upheld the conviction of D
for manslaughter, stating that the principle that an assailant takes the victim
as found applies to ‘the whole man, not just the physical man’:
It has long been the policy of the law that those who use violence on other people must take their
victims as they find them. This, in our judgment, means the whole man, not just the physical
man. It does not lie in the mouth of the assailant to say that his victim’s religious belief, which
inhibited her from accepting certain kinds of treatment, was unreasonable. The question for
decision is what caused her death. The answer is the stab wound. The fact that the victim refused
to stop this end coming about, did not break the causal connection between the act and death: at
450 per Lawton J.
That is, for D’s act to have caused V’s death, V must have apprehended
physical harm. Additionally, there is an objective component
requiring this fear to be well founded. When considering whether V’s
fear was well founded, juries should be reminded that persons under
pressure do not always have time to make a rational decision.
(d) ‘Reasonable foreseeability’ test
Brennan J (at 683–4) stated that D would be criminally responsible for
the death of V where the death has been caused by a final fatal step of
V, where:
◆ the reaction of V was reasonable or proportionate; or
◆ the harm was reasonably foreseeable on an objective view.
McHugh J (at 720–1) considered that D should not be held liable
unless:
◆ D’s conduct induced V to take the step which resulted in the harm;
and
◆ D intended the harm; or
◆ the harm was objectively a reasonably foreseeable consequence of
D’s act.
The majority of the Court appears to have endorsed the ‘common sense’
and ‘operating and substantial cause’ tests, which are recognised to leave a
substantial amount of discretion to jurors. Deane, Dawson, Toohey and
Gaudron JJ endorsed the ‘common sense’ test for issues of causation. Toohey
and Gaudron JJ suggested that this test would encourage jurors to consider
whether D had made a substantial contribution to the result: at 702. Deane
and Dawson JJ stated that the ‘substantial cause’ test may be
[page 42]
supplemented by encouraging jurors to use their common sense: at 693. At a
minimum, either or both the ‘common sense’ and ‘substantial cause’ tests
should be applied when considering the issue of causation where V has taken
the final fatal step.
The High Court did not expressly reject the test of reasonable foreseeability.
However, Gaudron and Toohey JJ agreed with Mason CJ and Deane and
Dawson JJ that ‘members of a jury are less likely to be confused if
foreseeability is not introduced into the direction on causation’: at 703.
3.38 The minority’s ‘reasonable foreseeability’ test in Royall is problematic,
due to the reliance on ‘reasonable’ reactions by V. This principle appears to
conflict with the traditional common law rule of taking the victim as found:
see, eg, Blaue. The justices in Royall considered that the circumstances would
be taken into account, and there was a recognition that ‘persons fearful for
their own safety, forced to react on the spur of the moment, will not always
make a sound or sensible judgment and may act irrationally’: at 390 per
Mason CJ. However, a judgment of the reaction of the victim would still be
measured in terms of its reasonableness. The problem raised by these
principles could be a reflection of the facts of the case, where V had only one
possible escape route. The justices did not need to consider the issue of
causation in a case where V had several possible escape routes and chose
poorly, ie, where the death of V resulted from taking unreasonable means to
escape from a reasonable apprehension of danger from D.
3.39 The New South Wales Court of Criminal Appeal considered causation
in McAuliffe and McAuliffe v R (1995) 183 CLR 108. In that case, D attacked
and bashed V near the edge of a cliff, leaving him seriously injured and dazed,
with the result that he fell over the cliff to his death. The Court considered the
High Court judgment in Royall and the issue of whether foreseeability should
be raised in considering causation. However, the Court determined that in
this case there was ‘no question of an overreaction on the part of the deceased
such as might, on some views, call for the introduction of notions of
foreseeability’: at 307.
3.40 R v Cuong Quoc Lam (2005) 15 VR 574 considered the question of
causation. In that case, D1 and D2 were charged with the murder of V1 and
V2. The prosecution asserted that D1 and D2 were acting in concert and had
chased V1 and V2 who, in order to escape, had jumped into the Yarra River
where they had both drowned. The prosecution submitted that it did not have
to prove that D1 and D2 had chased the Vs all the way to the river. The
prosecution argued that even if the jury found that D1 and D2 had only
chased the Vs to a bus stop some hundreds of metres from the river, but then
had stopped to attack a third victim, it was still open to the jury to find that
D1 and D2 had caused the Vs to flee and had thus caused their deaths, even if
other individuals had then chased the victims from the bus stop to the river. It
was held that D1 and D2 would not be responsible for the deaths in such
circumstances. Causal responsibility could not be assigned to D1 and D2 if the
jury found that their behaviour had not extended beyond the immediate
vicinity of the bus stop. In those circumstances, it would be the conduct of the
third parties that had caused the deaths of the Vs.
3.41 A drug supplier does not cause the death of a user who voluntarily
takes a drug: Burns v R (2012) 290 ALR 713. The act of the user in voluntarily
and knowingly taking the drug is a novus actus interveniens.
[page 43]
Chapter 4
Murder
Objectives
After reading this chapter you should be familiar with the following:
▶ common law murder in South Australia and Victoria
▶ intentional murder
▶ reckless murder
▶ constructive murder
▶ murder in New South Wales under statute
▶ responsibility for omissions
▶ contemporaneity of mens rea and actus reus
INTRODUCTION
4.1 The offences of murder and manslaughter evolved at common law. The
main distinction between murder and (involuntary) manslaughter at common
law was and is whether D had killed with ‘malice aforethought’. Malice
aforethought can be expressed as the mens rea or the ‘fault’ element of
murder.
In South Australia murder is still purely a common law offence. In Victoria
murder continues in its common law form, excluding the felony murder rule
which has been replaced by legislation that is closely related to the common
law. Statute has replaced the common law offence of murder in New South
Wales.
Additionally, each State has constructive murder offences. In South
Australia and Victoria the common law ‘resisting arrest murder’ rule
continues to apply.
The common law murder requirements will be considered first. The extent
to which the New South Wales legislation differs from the common law will
then be outlined.
[page 44]
Elements
On a charge of murder the prosecution must prove beyond a reasonable doubt:
• actus reus:
• voluntary act or omission (if D has satisfied the evidential burden);
• caused the death of V
• with mens rea:
• intention to kill; or
• intention to inflict grievous bodily harm (GBH); or
• reckless indifference to human life; or
• reckless indifference to GBH (South Australia and Victoria only)
• actus reus and mens rea at the same time.
Intentional murder
4.3 Intentional murder occurs when D does an act causing death, while
simultaneously intending to cause death or GBH: see R v Miller [1951] VLR
346 at 255. In all jurisdictions the intention to kill or inflict GBH are heads of
murder.
Intention
4.4 There is some controversy regarding what directions should be given to
juries regarding intention, with some believing that ‘intention’ need not be
explained (eg, R v Moloney [1985] AC 905); and others arguing that this
results in an imprecise concept. Generally, it can be said that ‘intent’ does not
need to be explained to the jury, as it is given its everyday meaning.
A person may intend to do something when:
◆ the purpose of acting is to make something occur; or
◆ its occurrence is a virtually certain consequence. An example of this
is when D wishes to blow up a plane mid-flight to collect insurance.
D may realise that the deaths of all the people on the plane are a
virtually certain consequence, but bombs the plane anyway. Thus, it
would be held that D intended to kill the plane passengers, even
though D may have preferred not to kill them: see R v Sancar [1999]
NSWCCA 284.
[page 46]
Student tip
There is no need to define intention.
Intention to kill
4.5 D’s intention must be to kill a person. Thus, if D shoots into a crowd of
people and kills V, D would be liable for the murder of V if D had the
intention to kill, even if D had no particular person in mind: see R v Martin
(1881) 8 QBD 54.
If D intended to kill V1 but actually kills V2, D is still liable for the murder
of V2 and the attempted murder of V1. At common law, this is termed the
doctrine of transferred malice and is discussed at 4.38ff.
4.6 Subjective standard The prosecution must prove that D actually
possessed the intention to kill, rather than the state of mind of an ‘ordinary
person’. From the 19th century onwards, many cases stated ‘one normally
intends the consequences of one’s act’ (or words to that effect). This phrase
may not be misleading when referring to someone aiming a gun at someone
and pulling a trigger. But, the phrase can be problematic. In Gollins v Gollins
[1964] AC 644 Lord Read explained:
In fact people quite often intend something quite different from what they know to be the
natural and probable result of what they are doing. To take a trivial example, if I say I intend to
reach the green, people will believe me although we all know that the odds are ten to one against
my succeeding; and no one but a lawyer would say I must be presumed to have intended to put
my ball in the bunker because that was the natural and probable result of my shot: at 664.
4.7 It has been held that the statement ‘one normally intends the
consequences of one’s act’ should not be used when directing juries as to mens
rea: see Smyth v R (1957) 98 CLR 163. This principle was reiterated and
explained in R v Schonewille (unreported, VSC, BC9707563, 18 December
1997, Vincent J). In that case, D (a school student) stabbed a woman to death.
D admitted his part in the homicide but denied any intention to kill or do
serious injury. On the morning of the killing D had prepared himself for
school but, instead of going there, had cycled to V’s nursery. D took a small
knife with him, which belonged to his uncle. He went to the nursery with the
intention of stealing money if the opportunity presented itself. He saw V leave
the office and made his way to the office. D was looking for money when V
returned and saw him. V screamed and attempted to hit D with a piece of
wood. V then picked up a phone, and D, fearing he was about to be exposed,
grabbed the phone and struggled with V. In the process, his knife tumbled
from his pocket. He grabbed the knife and in the heat of the moment struck V
one blow in the back. D claimed that he did not intend to kill V, but rather to
stun her. The only issue at trial was the intent with which D stabbed V.
The Crown relied upon the obvious planning, the taking of the knife, the
motive, the desire not to be identified, and the nature of the act which caused
death, to argue that D had the intention to kill. D claimed that he lacked mens
rea for murder. The trial
[page 47]
judge directed the jury that ‘one normally intends the consequences of one’s
act’. On appeal, the Supreme Court held that this statement was
inappropriate:
Courts in this country have consistently said that, in cases where specific intent is an ingredient
of the crime alleged, it is wrong for trial judges to tell juries that there is a presumption that a
person intends the consequences of his or her acts.
The direction by the trial judge was problematic because it suggested to the
jury that they might rely upon an objective test in determining the actual
intent of D:
It was but part of a direction which, in its essence, was calculated to invite the jury to have resort
to a tenet of general human behaviour, rather than determining whether this accused, on the
evidence in this case, had been shown beyond a reasonable doubt to have harboured the relevant
intent.
The prosecution must prove that the accused had the necessary intent at the
time of the relevant act. A new trial was ordered. See also R v Schaeffer (2005)
13 VR 337.
Student tip
The prosecution must prove D’s actual state of mind at the time of the act or omission causing
death — not what an ordinary or reasonable person would have thought.
The High Court emphasised that the prosecution must prove that D had the
necessary intent at the time of inflicting the injuries that caused V’s death. It
was not enough for the prosecution to prove that some acts were done with
the necessary intent, while being unable to prove that the relevant acts were
done with intent. This issue was relevant because D claimed that, at some
stages of the fight, he had responded to V in self-defence and merely pushed
her away, without intending to cause serious injury. D claimed that V had hit
her head against a table when he pushed her away, and hence the relevant fatal
injury was not caused with intent to inflict GBH. However, the High Court
held that it was open to the jury to reject D’s story, given that V’s injuries were
not consistent with his claims.
The High Court then stated that it was open to the jury to consider the
sequence of events when determining D’s mens rea at the time of causing V’s
death:
The question is whether evidence of this sequence of events provided a sufficient foundation of
fact for a reasonable jury to be satisfied that the act or acts which caused the death of Tracey
McNamara was or were done with the intent to cause her really serious injury … The jury were
entitled to reach the conclusion that the appellant had repeatedly banged the deceased’s head
against a flat surface — wall, table or floor — with the intent to do her really serious injury: at
442.
D’s conviction for murder was upheld. See also R v McDonald [2015] SASCFC
99 at [26].
Student tip
Be careful when reading English cases in this area, as England has developed different rules for
the mens rea of murder.
Reckless murder
4.10 D commits reckless murder where D foresees, while committing the
act, that it will probably cause death or GBH, although D does not intend that
this consequence should occur. The common law definition of recklessness
only applies in South Australia and Victoria.
Definition
Reckless indifference in murder is defined as recognition of the probability of death or GBH in
Victoria and South Australia: see R v Crabbe (1985) 156 CLR 464.
[page 49]
4.11 The current authoritative case is Crabbe. In that case, after D was
ejected from a pub, he drove his truck through the pub wall, resulting in the
deaths of five people, with many more injured. The High Court held that:
It should now be regarded as settled law in Australia, if no statutory provision affects the
position, that a person who, without lawful justification or excuse, does an act knowing that it is
probable that death or grievous bodily harm will result, is guilty of murder if death in fact results.
It is not enough that he does the act knowing that it is possible but not likely that death or
grievous bodily harm might result: at 469–70.
Thus, if the jury determines that D recognised only the possibility of death,
then D will not be guilty of reckless murder, but may be guilty of
manslaughter.
In La Fontaine v R (1976) 136 CLR 62, the High Court held that the issue of
recklessness should only be left to the jury when it arises as a real possibility
on the facts of the case. The High Court also held that the word ‘reckless’
should not be used when directing the jury as to murder.
In R v Windsor [1982] VR 89, it was held that it was appropriate to leave the
issue of recklessness to the jury, because D had denied mens rea. In that case,
D had fired seven shots, five of which had passed through the door of V’s flat.
D argued that he lacked the intention to kill or inflict GBH, but that he had
wanted to frighten V, who he believed was holding a gun. D would be guilty of
murder if he had the intention to kill or inflict GBH, or recognised the
probability of death or GBH.
Emotional state of D
4.12 The emotional state of D is immaterial to the head of reckless murder.
The majority in Crabbe made it clear that the key element is knowledge of the
probability of death, rather than indifference to the risk. This means that, on
the facts of Crabbe, the prosecution need only prove recognition of the
probability of death or GBH. The prosecution need not prove indifference to
causing death. Thus, if D hopes that he or she will not cause death or GBH,
while recognising that he or she probably will, D will be recklessly indifferent.
Probability
4.13 The word ‘probable’ need not be explained to the jury, and it appears
to be sufficient to use the words ‘likely’ and ‘probable’ in the correct context:
see Boughey v R (1986) 161 CLR 10 at 19. Judges are not to direct juries in
terms of ‘a more than 50 per cent chance’ or ‘an odds-on chance’: see La
Fontaine at 99 per Jacobs J.
In Boughey, Mason, Wilson and Deane JJ stated that ‘likely to cause death’
did not require that the risk had to be more probable than not, but rather that
the risk had to be ‘real and not remote’. The justices stated that it was
inappropriate to talk in mathematical terms of probability:
In the ordinary case where an accused well knows that it is probable or likely that his acts will
cause death or grievous bodily harm, he will not have the occasion to consider, let alone to
calculate, the degree of probability that death or grievous bodily harm will in fact result: at 19–
20.
[page 50]
4.14 The refusal to talk in mathematical terms is also based on the
consideration that to do so may exclude from liability a defendant who causes
death in the situation where D was aware of creating a risk of death, but this
risk was less than 50 per cent.
R v Faure [1999] 2 VR 537 raised this issue. In this case D was charged with
murder after shooting and killing V. D’s defence was that they had both been
drinking and had played a form of Russian roulette. D stated they had played
with a six-shot revolver loaded with one round of ammunition, and they had
by agreement twice pulled the trigger while pointing the gun at the other. D
appealed successfully on the ground of inadequate direction as to intoxication.
Brooking J also considered recklessness:
When text writers describe a game like Russian roulette as dangerous they are not gainsaying the
role of the jury. They are seeking to convey that a reasonable jury, properly instructed, should
find that the necessary element of danger existed in such a case. To make the process of
reasoning more explicit, they are asserting a proposition of law, namely that ‘probable’ as
contrasted with ‘possible but not likely’ (R v Crabbe (1985) 156 CLR 464 at 469–70) means a
substantial, or real and not remote, chance, whether or not it is more than 50 per cent (Boughey
at 21 per Mason, Wilson and Dawson JJ) and saying that accordingly in the case put a reasonable
jury should regard the chance as substantial: at [551].
Social utility
4.15 The term ‘recklessness’ in criminal law is based on a notion of
unjustified risk. Hence there have been suggestions that where D engages in
risk-producing conduct, D will not incur liability where those actions have
social utility: see Crabbe. Social utility arguments would be measured against
the standards of reasonable people in order to justify the risk. A classic
example is where a doctor recognises the need to operate, knowing that V will
almost certainly die without the operation, but lacks medical facilities due to
the urgency of the situation, thus risking the death of V. In these
circumstances, the doctor would not be reckless and would lack malice.
Wilful blindness
4.16 The High Court considered wilful blindness in Crabbe to be irrelevant
where the question is one of murder by recklessness.
Directions to the jury
4.17 In R v TY (2006) 12 VR 557, D was a member of a group that became
involved in an altercation with another group. D struck V twice in the head
with the steel tip of an umbrella, causing V’s death. The judge directed the
jury on reckless murder and manslaughter by unlawful and dangerous act. D
was convicted of murder. On a successful appeal, the Victorian Supreme
Court held that the directions of the judge were deficient in that the judge had
failed to distinguish expressly between the mental elements of reckless murder
and manslaughter by unlawful and dangerous act. It is important that the jury
be warned ‘not to conclude that [the accused]
[page 51]
foresaw the probability of death or really serious injury because they thought a
reasonable man would have appreciated the same danger’ (at [17] per Warren
CJ). Warren CJ stated at [2]:
… a jury … should be directed that they must be satisfied beyond reasonable doubt that:
1. The accused caused the death of the deceased.
2. The accused ought and must have foreseen the consequences of the act contemplated; and
further that,
3. In assessing foresight, what a reasonable person might have foreseen is relevant but the
accused’s actual state of mind is critically important and they should not treat what they
think a reasonable person’s reaction would be in the circumstances as decisive of the
accused’s state of mind.
4. In assessing the accused’s state of mind the accused’s circumstances are relevant (such as age,
background, educational and social circumstances, emotional state and state of sobriety).
Constructive murder
4.18 The constructive murder rule is based on the old common law rule
that it was murder to cause death in the course of committing any unlawful
act (felony murder). The head of felony murder is based on the grounds that
those involved in violent crimes should reap what they sow. Related to this is
the desire to encourage those engaged in violent crimes to temper the
quantum of violence used. Felony murder can be described as constructive
murder, as there is only the requirement that D has caused the death
voluntarily in furtherance of a felony. Thus the prosecution need not prove
the mens rea for murder. As a consequence of abolishing the distinction
between felonies and misdemeanours, both Victoria and South Australia have
introduced statutory forms of constructive murder.
Felony or constructive murder applies in circumstances where D did not
possess the mens rea for murder. The mens rea is imputed to D because D kills
V during the commission of specific serious offences, or in the course of
resisting arrest.
4.19 This doctrine has been criticised due to the possibility of liability for
the most serious of crimes being based only on mens rea for the foundational
crime. The Criminal Law and Penal Methods Reform Committee of South
Australia (Fourth Report, 1977) and the Victorian Law Reform Commission
(Homicide, 1991) have recommended the complete abolition of the felony
murder rule and the resisting arrest murder rule. In 1957, England abolished
the felony murder and resisting arrest murder rules with the Homicide Act.
South Australia
4.20 In 1994, the Criminal Law Consolidation (Felonies and
Misdemeanours) Amendment Act (SA) inserted s 12A into the Criminal Law
Consolidation Act 1935 (SA):
A person who commits an intentional act of violence while acting in the course or furtherance of
a major indictable offence punishable by imprisonment for 10 years or more (other than
abortion) and thus causes the death of another, is guilty of murder.
[page 52]
Elements
Section 12A requires the prosecution to prove beyond a reasonable doubt:
• a major indictable offence punishable by at least 10 years imprisonment — this means that
the prosecution will have to prove the mens rea and actus reus of the foundational offence;
• an intentional act of violence in the course of or in furtherance of the offence; and
• this voluntary act of violence caused the death of V.
[page 53]
Section 3A(1) creates an offence of constructive murder which parallels the
common law offence of felony murder. There is no requirement that D had
the necessary mens rea for murder.
Elements
In order to establish constructive murder in Victoria, the prosecution must prove the following
beyond a reasonable doubt:
• a foundational offence, ‘the necessary elements of which include violence’, punishable by at
least 10 years imprisonment;
• D caused the death of V;
• in the course of or furtherance of the foundational offence; and
• with a voluntary act of violence.
[page 56]
after the commission, by the accused or some accomplice with him or her, of a crime
punishable by imprisonment for life or for 25 years.
…
(2) (a) No act or omission which was not malicious, or for which the accused had lawful cause or
excuse, shall be within this section.
Malice
4.29 Section 18(2)(a) imports a requirement of malice for liability. It has
been held that this requirement adds nothing to the fault elements of murder,
due to the breadth of the definition of ‘malice’ under the since repealed s 5.
Under s 5, malice was defined as:
… every act done of malice … with indifference to human life or suffering, or with intent to
injure … without lawful cause or excuse, or done recklessly or wantonly.
Clearly, where D has the intention to cause death or GBH, or acts with
reckless indifference to human life, D will necessarily satisfy the requirement
of malice.
In cases of constructive murder it has been held that D will satisfy s 18(2)(a)
where D has acted with the appropriate mens rea for the foundational offence:
see Mraz v R (1955) 93 CLR 493. In Mraz, D was charged with constructive
murder of a woman. She had died during or immediately after an alleged rape.
The trial judge held that unless there was some malice in D’s actions, then
there was no constructive murder. The trial judge directed the jury that ‘rape
did not necessarily connote an intention to injure, and if … they considered
that the accused had acted toward the gratification of his own lust, and not to
injure the deceased’, then he had not acted maliciously: quoted at [4] by
Fullagar J.
The New South Wales Court of Criminal Appeal and the High Court
rejected the trial judge’s formulation of malice. It was held that:
◆ a separate discussion of malice in this context was not necessary;
◆ the very fact that the acts done were associated with rape was
enough to establish the malice required for s 18;
◆ once the serious foundational crime is established, there is no need
to look separately at the requirement of malice for s 18.
As a consequence, the courts have treated the requirement of malice in s
18(2)(a) as redundant.
Student tip
There is no need in New South Wales to refer to s 18(2)(a) when stating the offence
components of murder.
Intentional murder
4.30 The intentional causing of death or GBH category of murder is
identical with intentional murder at common law. The common law position
regarding intentional murder is outlined at 4.3 above.
[page 57]
The only difference is that New South Wales has a statutory definition of
GBH as including (s 4):
(a) the destruction (other than in the course of a medical procedure) of the foetus of a pregnant
woman, whether or not the woman suffers any other harm, and
(b) any permanent or serious disfiguring of the person, and
(c) any grievous bodily disease (in which case a reference to the infliction of grievous bodily
harm includes a reference to causing a person to contract a grievous bodily disease).
Reckless murder
4.31 The head of reckless murder under s 18 differs from the common law
in one major way, as s 18 has been construed as limiting the mens rea for
reckless murder to knowledge of the probability of death: see Solomon v R
[1980] 1 NSWLR 321; Royall v R (1991) 172 CLR 378 at 395, 417, 431, 455. In
Solomon, the New South Wales Court of Criminal Appeal held that
recklessness had a limited operation in murder due to the operation of s 18. It
was held that s 18 requires ‘reckless indifference to human life, not merely
reckless indifference to whether serious harm might be caused’: at [48]. The
common law mens rea for reckless murder includes recognition of the
probability of death or GBH. Under s 18, where D acts with the knowledge or
the foresight that GBH is a probable result of his or her actions, D will not
have committed reckless murder. D would incur liability for manslaughter
only.
Thus, in New South Wales, the prosecution must prove D recognised the
probability of death in order to establish reckless indifference to human life.
Definition
In New South Wales reckless indifference to human life is defined as the recognition of the
probability of death: see Royall.
Constructive murder
4.32 The constructive head of murder under s 18(1)(a) is similar to
common law constructive (felony) murder. Like the common law, the mens
rea for constructive murder under s 18(1)(a) is limited to a requirement that
D possess the mens rea for the foundational crime. The act causing death must
have been performed voluntarily: see Ryan.
The major differences between the New South Wales statutory definition of
constructive murder and the common law requirements for felony murder are
that:
◆ New South Wales requires a foundational offence punishable by at
least 25 years in prison, while the common law merely requires a
felony committed with violence; and
[page 58]
◆ New South Wales requires the act causing death to be done ‘in an
attempt to commit, or during or immediately after’ a 25-year
foundational offence, while the common law requires the death to
have been caused ‘in the course or furtherance of ’ a specified
offence.
Elements
Under s 18 the prosecution must prove the following elements to establish constructive
murder in New South Wales:
• a 25-year foundational offence;
• D caused the death of V;
• with a voluntary act; and
• in an attempt to commit, or during or immediately after the foundational offence.
Under this doctrine, D may kill a person other than the person that D
intended to kill. For example, D may shoot a gun at V1, intending to cause
death, but miss and kill V2. D will be held liable for the death of the person
other than the person in D’s contemplation, by several methods:
1. s 18 (NSW) does not require that D kill the intended V — the section
is drafted to allow for a different victim to the one intended;
2. the common law heads of murder are similarly non-prescriptive;
3. the doctrine of transferred malice may also be relied upon.
4.39 R v Mitchell [1983] QB 741 provides a good example of causation
issues and the operation of transferred malice. D applied force to X, as a result
of which X fell against V. V suffered a broken femur which later caused a
pulmonary embolism due to thrombosis, leading to V’s death. It was held that
V’s death was a direct and immediate consequence of D’s actions. That is, D
caused V’s death. The Court also held that D’s intentions for X could be
transferred to V.
The House of Lords considered the doctrine of transferred malice in Re
Attorney-General’s Reference (No 3 of 1994) [1998] AC 245. In that case, D
stabbed a woman who he knew to be pregnant. As a result, the woman gave
birth prematurely to V, who was born alive and then died. The question was
whether D could be liable for murder of V. If the doctrine of transferred
malice applied, then D could be liable for the murder of V, provided he had
the intention to kill or inflict GBH on the mother at the time of the act
causing death. The House of Lords stated that it was inappropriate to extend
the doctrine of transferred malice to V, as this death was too removed from
D’s initial intent. This case is examined in more detail in Chapter 3.
The New South Wales Court of Criminal Appeal has left unresolved the
reach of the doctrine of transferred malice in murder cases involving foetuses
that are born alive but then die as a result of D’s actions: see R v King [2003]
NSWCCA 399. There is no
[page 61]
persuasive reason why the doctrine of transferred malice should not be
extended to these situations.
The definition of ‘grievous bodily harm’ in s 4 (NSW) includes ‘the
destruction (other than in the course of a medical procedure) of the foetus of a
pregnant woman, whether or not the woman suffers any other harm’. If D
kicked or hit a pregnant woman in the body with the intention of destroying
the foetus, then under the statutory definition, D would have an intention to
inflict GBH. If the pregnant woman died as a consequence of D’s actions, then
D would be guilty of murder. If the foetus was born alive and then died as a
consequence of D’s actions, then D would be guilty of murder.
Omissions
4.42 Under common law, murder and manslaughter can be committed by
omission. Section 18 (NSW) expressly provides for the possibility of
committing murder by an
[page 62]
omission to act. However, cases of murder by omission rarely arise, as usually,
if D has the necessary mens rea for murder and has caused the death of V,
then D will have done something to fulfil their intention.
In R v Conde (1867) 10 Cox CC 547, the Ds withheld food from their child,
V, resulting in V dying of starvation. It was held that the Ds’ omission to feed
V caused death, and they had the necessary mens rea for murder.
The basic principles of governing criminal liability for omissions are
applicable:
◆ D must have been under a legal duty to act to forestall the causation
of death;
◆ D must have failed to fulfil this legal duty;
◆ D must have concurrently possessed mens rea.
4.43 In R v Taber (2002) 56 NSWLR 443, D was found guilty of murder in
the New South Wales Supreme Court. On appeal to the New South Wales
Court of Criminal Appeal (Taber v R (2007) 170 A Crim R 427; [2007]
NSWCCA 116), it was held that there should be a retrial on charges of
manslaughter. These judgments provide a good overview of the law of
homicide and its application to omissions.
Example
In Taber, D bound and gagged V, leaving her abandoned. D rang emergency services and
supplied some information regarding V’s situation, but the call was not acted upon. D made no
further effort to rescue V. Nine to 11 days after the phone call, V died of dehydration.
In order to establish murder the prosecution had to prove:
1. A legal duty to act
The Supreme Court noted that the prosecution had to establish that D had a legal duty, rather
than just a moral duty, to act. Common law authorities established that voluntary conduct may
convert a moral obligation into a legal duty: see Taktak v R (1988) 34 A Crim R 334.
The Court held that any person who puts another in danger comes under a legal duty to take
steps to remove that danger. Any failure to take those steps may constitute an omission
causing death.
2. D failed to fulfil this legal duty
D failed to take sufficient steps to remove V from danger.
3. D’s omission caused V’s death
One issue considered by the Supreme Court was whether V’s death was due to an act, an
omission, or a combination of the two. The Court preferred to identify this case as involving an
omission from the time of the phone call, because this was in accordance with common sense,
and also because of D’s duty to rescue V from danger. The Supreme Court identified the
relevant cause of death broadly, ranging from attacking and tying up V to the omission to seek
to rescue her from danger. Thus, a series of acts and omission were the substantial and
operating cause of death.
D argued that the failure of emergency services to respond to the call broke the causal chain. It
was held this was not relevant to causation. The cause of death was D attacking V, tying her up
and failing to provide relief.
[page 63]
On appeal, the Court of Criminal Appeal stated that V would not have died ‘but for’ the
omission of D to remove her from danger after the 000 call. The Court of Criminal Appeal thus
identified the omission as the relevant cause of death.
4. D had the necessary mens rea for murder
D could be responsible for murder provided the prosecution could establish mens rea. In the
Supreme Court, the prosecution established that the accused had recognised the probability of
death, ie, reckless indifference to human life.
On appeal to the Court of Criminal Appeal it was held that the failure of emergency services to
respond to the call was relevant as to whether D had the necessary mens rea or not. D had
believed that the 000 call would be acted upon, and thus did not have mens rea for murder
from the time of the call.
[Note: A question that arises is whether or not D would have had mens rea in the common law
jurisdictions of South Australia and Victoria. The prosecution could not establish a recognition
of the probability of death that is required in New South Wales law under s 18. However, in
South Australia and Victoria the common law applies, and the prosecution might have been
able to prove a recognition of the probability of very serious injury, ie, reckless indifference to
GBH, due to the circumstances and age of victim (who was 71).]
5. Contemporaneity of mens rea and actus reus
The Supreme Court identified this as a continuous act. It was stated that D need only have mens
rea at some time either during the commencement of the act or during the period of omission.
The Court of Criminal Appeal also identified a broad relevant act, but started this from the time
of leaving V tied up. It was held that D did not have mens rea from this time onwards, and thus
did not satisfy the requirement of actus reus and mens rea at the same time (see below).
Accordingly, the Court of Criminal Appeal held that there should be a retrial for the charge of
manslaughter.
Legal Problem
David had been standing in a queue for concert tickets for hours. Elyse had not been waiting,
but decided to queue-jump and pushed in front of David. David had a steel-tipped umbrella
and stabbed it twice into Elyse’s neck. Elyse collapsed and a bystander called an ambulance.
The ambulance took more than an hour to get to Elyse, because the queues were causing traffic
chaos. Elyse died on her way to the hospital. Discuss David’s liability for the death of Elyse.
Answer
Introduction
David could be charged with murder under s 18 (NSW), s 11 (SA) or s 3 (Vic). [Comment: You
only need to cite the section for the jurisdiction in which you are studying.] The prosecution
must prove all elements of the offence beyond a reasonable doubt: see Woolmington v DPP
[1935] All ER Rep 1. [Comment: The introduction should be brief, stating the relevant charge
and the burden of proof.]
Actus reus
The actus reus of homicide requires a voluntary act or omission that caused the death of the
victim.
Voluntariness: The act causing death must be voluntary: see Ryan v R (1967) 121 CLR 205. The
prosecution is entitled to presume voluntariness: see Ryan; R v Falconer (1990) 171 CLR 30.
There is nothing on the facts to suggest that David’s act of stabbing Elyse with the umbrella
twice was not ‘willed’ or ‘conscious’: see Ryan. [Comment: This sentence demonstrates
knowledge of the law, while applying it to the specific facts of the problem question.]
Causation: David’s act of stabbing must have caused the death of Elyse: see (NSW) s 18; Royall v
R (1991) 172 CLR 378. ‘But for’ David’s actions, Elyse would not have died.
David may attempt to argue that the delay of the ambulance broke the chain of causation, and
that it was this which caused the death of Elyse. However, authorities are clear that medical
negligence does not necessarily break the chain of causation:
[page 65]
see R v Smith [1959] 2 QB 35. In this case, the prosecution would have no difficulty in
establishing that the stabbing of Elyse was the ‘operating and substantial’ (Royall) cause of her
death.
The prosecution would be able to prove the actus reus for murder beyond a reasonable doubt.
Mens rea
SA and Vic: The prosecution must prove that David caused the death with malice aforethought.
This is satisfied by an intention to kill or inflict GBH, or reckless indifference to death or GBH: see
R v Crabbe (1985) 156 CLR 464.
NSW: The prosecution must prove that David caused the death with either an intention to kill or
inflict GBH, or with reckless indifference to human life: see s 18 (NSW).
The prosecution would attempt to argue that David intended to kill or inflict GBH upon Elyse.
GBH is defined as ‘really serious bodily harm’ (R v Perks (1986) 41 SASR 335), and the use of a
steel-tipped umbrella and the repeated stabbing into the neck suggests an intention to cause
really serious bodily harm, if not to kill. This would be a question of fact for the jury and it would
be likely that the prosecution would succeed.
If the prosecution did not succeed in proving intention, they could argue that David was
reckless.
SA and Vic: The common law definition of recklessness is the recognition of the probability of
death or GBH: see Crabbe. Even if the prosecution could not prove a recognition that death was
‘likely’ (Boughey v R (1986) 161 CLR 10), they would have a strong case in arguing that
intentionally stabbing someone in the neck twice would lead to a recognition of the probability
of really serious bodily harm.
NSW: In New South Wales, reckless indifference to human life requires the recognition of the
probability of death: see Royall. The prosecution may have difficulty in proving that David
foresaw that his actions would cause the death of Elyse. He may have recognised the
probability of serious harm, but in New South Wales this would not be sufficient mens rea for
murder.
This case parallels R v TY (2006) 12 VR 557, in which the appellate court stressed that the jury
must be carefully instructed that the prosecution must prove the state of mind of the accused,
rather than what they ought to have known or foreseen.
Actus reus and mens rea at the same time
If the prosecution is able to establish one of the heads of murder above, then they would have
no difficulty in proving that the actus reus of stabbing coincided with the mens rea.
Conclusion
The prosecution would have no difficulty establishing the actus reus for murder. They may have
difficulty, however, proving the necessary mens rea for murder. David’s actions indicate that he
intended to cause really serious bodily harm, but this would be a question of fact for the jury.
[Comment: Even though this answer concludes by stating ‘it is a question of fact for the jury’, it
does provide an indication of what the jury would be likely to determine, given past cases and
prior reasoning.]
[page 66]
Chapter 5
Voluntary Manslaughter
Objectives
After reading this chapter you should be familiar with the following:
▶ voluntary manslaughter
▶ partial defence of excessive force in self-defence (NSW and SA)
▶ partial defence of provocation (NSW and SA)
▶ partial defence of substantial impairment of the mind (NSW only)
INTRODUCTION
5.1 Under the common law, unlawful homicides are divided into murder
and manslaughter. These offences have the same actus reus. However,
manslaughter is perceived as less blameworthy, because either D lacked the
mens rea for murder, or mitigating circumstances were present.
Manslaughter is divided into two categories:
1. voluntary manslaughter: where D has the necessary mens rea for
murder, but D’s liability is reduced due to the presence of
recognised mitigating factors;
2. involuntary manslaughter: where D commits an unlawful homicide,
but lacks the necessary mens rea for murder. Involuntary
manslaughter is discussed in Chapter 6.
In all jurisdictions, all unlawful killings that do not amount to murder may
lead to charges of manslaughter: see common law in South Australia and
Victoria; s 18(1)(b) (NSW).
5.2 Voluntary manslaughter includes unlawful homicides where D has the
necessary mens rea for murder, but the jury determines that mitigating
circumstances are present, so that D is considered less culpable. Voluntary
manslaughter is thus a midway category between murder and lawful homicide
(where D is able to rely on a complete defence, eg, self-defence, to avoid
liability completely).
5.3 The States have taken different approaches to voluntary manslaughter
in recent years. In Victoria, voluntary manslaughter is no longer available
(with the exception of survival of a suicide pact: s 6B). In New South Wales
and South Australia, the defence of excessive force in self-defence (see 5.4) is
available to reduce murder to manslaughter (Victoria abolished the equivalent
defence of defensive homicide in 2014). In South Australia, the defence of
provocation is available at common law, and in New South Wales the defence
of extreme provocation is available under statute: see s 23
[page 67]
and 5.5 below. In contrast, Victoria abolished the defence of provocation on
the basis that it reflected outdated notions of male behaviour that no longer
have community acceptance: Victorian Law Reform Commission, Defences to
Homicide: Final Report, 2004, 56. In New South Wales the defence of
substantial impairment of the mind is available under statute: see s 23A and
5.53 below.
Burden of proof
5.6 Before the defence of provocation may be put before the jury, there
must be sufficient evidence to satisfy the evidential burden: see Johnson v R
(1976) 136 CLR 619; s 23(4) (NSW). Whether provocation should be left to
the jury is determined by:
… whether, on the version of events most favourable to the accused which is suggested by
material in the evidence, a jury acting reasonably might fail to be satisfied beyond a reasonable
doubt that the killing was unprovoked in the relevant sense: Stingel v R (1990) 171 CLR 312 at
334 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.
D need not raise the defence of provocation, as the trial judge may leave
provocation to the jury if there is evidence on which a jury, acting reasonably,
could find manslaughter as a result of provocation: see Van den Hoek v R
(1986) 161 CLR 158. D may not wish to raise the defence of provocation (eg,
because D wishes to argue the complete defence of self-defence), but the trial
judge must still leave the issue of provocation to the jury if there is evidence to
suggest D may have acted under provocation: see R v Thorpe (No 2) [1999] 2
VR 719.
Once the defence has been raised, the prosecution must negate it beyond a
reasonable doubt.
Student tip
When answering a problem question, be careful to state that the prosecution must disprove
the defence of provocation. It is incorrect to state that the defence must prove provocation.
Burden of proof
To raise the defence of provocation the accused must satisfy the evidential burden. If this is
discharged, then the prosecution must negate provocation beyond a reasonable doubt: see
Woolmington v DPP [1935] AC 462; s 23(7) (NSW).
[page 69]
The law of provocation in New South Wales is based upon the common law
with some differences. The common law will be outlined and any differences
in New South Wales due to s 23 will be considered throughout. These
differences will then be summarised at 5.48.
Section 23 now radically reduces the availability of the defence of
provocation by limiting what will be recognised as ‘extreme provocation’ at
law:
23 Trial for murder—partial defence of extreme provocation
(1) If, on the trial of a person for murder, it appears that the act causing death was in response to
extreme provocation and, but for this section and the provocation, the jury would have
found the accused guilty of murder, the jury is to acquit the accused of murder and find the
accused guilty of manslaughter.
(2) An act is done in response to extreme provocation if and only if:
(a) the act of the accused that causes death was in response to conduct of the deceased
towards or affecting the accused, and
(b) the conduct of the deceased was a serious indictable offence, and
(c) the conduct of the deceased caused the accused to lose self-control, and
(d) the conduct of the deceased could have caused an ordinary person to lose self-control to
the extent of intending to kill or inflict grievous bodily harm on the deceased.
(3) Conduct of the deceased does not constitute extreme provocation if:
(a) the conduct was only a non-violent sexual advance to the accused, or
(b) the accused incited the conduct in order to provide an excuse to use violence against the
deceased.
(4) Conduct of the deceased may constitute extreme provocation even if the conduct did not
occur immediately before the act causing death.
(5) For the purpose of determining whether an act causing death was in response to extreme
provocation, evidence of self-induced intoxication of the accused (within the meaning of
Part 11A) cannot be taken into account.
(6) For the purpose of determining whether an act causing death was in response to extreme
provocation, provocation is not negatived merely because the act causing death was done
with intent to kill or inflict grievous bodily harm.
(7) If, on the trial of a person for murder, there is any evidence that the act causing death was in
response to extreme provocation, the onus is on the prosecution to prove beyond reasonable
doubt that the act causing death was not in response to extreme provocation.
[page 70]
(8) This section does not exclude or limit any defence to a charge of murder.
(9) The substitution of this section by the Crimes Amendment (Provocation) Act 2014 does not
apply to the trial of a person for murder that was allegedly committed before the
commencement of that Act.
(10) In this section: ‘act’ includes an omission to act.
Words
5.10 Historically, the courts accepted that physical actions could amount to
provocation, but were more sceptical about the status of words. A distinction
was made between ‘mere words’ which were insulting, and words which
conveyed information of a fact or alleged fact: see Holmes v DPP [1946] AC
588. Mere words could not amount to provocation, while words which
conveyed information could.
The High Court held that words can amount to provocation at common
law provided they are ‘violently provocative’ or of an ‘exceptional character’:
Moffa v R (1977) 138 CLR 601 at 616. Mason J held in Moffa that:
There is no absolute rule against words founding a case of provocation. The existence of such an
absolute rule would draw an arbitrary distinction between words and conduct which is
insupportable in logic. No doubt provocative acts justifying the reduction of murder to
manslaughter are more readily imagined and more frequently encountered than provocative
words which justify the same result. Violent acts, rather than violent words, are more likely to
induce an ordinary person to lose his self-control. And a case of provocation by words may be
more easily invented than a case of provocation by conduct, particularly where the victim was
the wife of the accused. There is, therefore, an element of public policy as well as common sense
in requiring the close scrutiny of claims of provocation found in words, rather than conduct: at
620–1.
In Moffa, V, who was D’s wife, told D that she was leaving him, did not love
him and was ‘screwing’ everyone in the street. She then showed him some
photographs of her nude, and threw a telephone at him. The High Court held
that her words were of a sufficiently violent character, and D’s murder
conviction was overturned.
The courts have found confessions of adultery, insults and taunts as to
sexual adequacy, and racist taunts to amount to sufficient provocation.
In R v Leonboyer [2001] VSCA 149, R v Parsons [2000] 1 VR 161 and R v
Kumar [2002] 5 VR 193 the Supreme Court of Victoria considered whether
‘mere words’ could amount to provocation. In Kumar it was held that words
could amount to provocation provided they were violently provocative. It was
stressed that, rather than removing provocation from jury consideration on
the basis of absence of provocative conduct, it
[page 71]
was more appropriate to remove the defence on the grounds that the
provocation was such that an ordinary person could not have lost self-control.
For example, in Parsons D was involved in a longstanding dispute with V,
his estranged de facto wife, over custody of their children. During an
adjournment at the Family Court, D stabbed V 48 times, killing her. D stated
V had smiled and laughed at D immediately before the attack and said she
could do what she liked with the children. Brooking J stated:
I doubt very much whether the words — and smile and laugh — attributed by the applicant to
the victim … could be viewed as ‘provocation’ and so I doubt very much whether one is required
to consider the possible response of the ordinary person. I am content, however, to deal with the
case by simply asking whether the ‘provocation’ alleged to have been offered by the victim just
before she was killed could in the view of a reasonable jury have met the ordinary person test. I
have no doubt that the answer is that it could not: at 167.
5.11 In New South Wales, words will not constitute ‘extreme provocation’,
as s 23(2)(b) requires that the provocative conduct was a ‘serious indictable
offence’.
Unlawfulness
5.15 There is no requirement that the provocative conduct be unlawful at
common law: R v R. Thus, provocative conduct can be based upon any
conduct, including grossly insulting words.
5.16 New South Wales now requires that the provocative conduct was
unlawful: s 23(2)(b).
Mistaken killing
5.18 At common law in South Australia, there is an exception to the
requirement that provocation must emanate from V. The common law
recognises ‘misdirected retaliation’, ie, a situation where D is provoked by X
and, while attempting to strike a blow against X, mistakenly kills V. It has
been held that D can rely on provocation in relation to V’s death. In R v
Kenney [1983] 2 VR 470, it was held that provocation was available in this
situation due to the doctrine of transferred malice:
… what would have been only manslaughter if the intended victim had been killed [assuming
that the provocation would have grounded the defence] can only be manslaughter if a third
person is accidentally killed, the malice to be transferred having been, so to speak, expurgated by
the provocation: at 472 per Brooking J.
In New South Wales, the mistaken killing exception may not be available, as
provocation must be ‘towards or affecting’ D: s 23(2)(a).
Delusionary belief
5.19 If D mistakenly believes V committed a provocative act, this may
suffice to raise the defence of provocation: see R v Croft [1981] 1 NSWLR 126.
But the doctrine does not ‘extend to self-generated or entirely imaginary
circumstances which cause a loss of self-control’: see R v Voukelatos [1990]
VR 1 at 26 per Hampel J.
What is crucial is that D was present. V need not be aware of D’s presence.
For example, in R v Scriva [1951] VLR 290, the Full Court of the Victorian
Supreme Court held that provocation was available where D saw his daughter
run down and killed by V’s reckless driving.
In New South Wales, the provocative conduct must be ‘towards or
affecting’ D: see s 23(2)(a) (NSW), which may cover the above fact situation.
In Davis v R (1998) 100 A Crim R 573; (1998) 73 ALJR 139 the New South
Wales Court of Criminal Appeal considered the issue of hearsay provocation,
resulting in the potential for slight differences from the common law. This
will be outlined at 5.50.
[page 75]
Self-induced provocation
5.23 The general policy is that D cannot rely on self-induced provocation.
In the case of Edwards v R [1973] AC 648, D was blackmailing V. V swore at
him and attacked him with a knife, causing D to lose self-control, resulting in
D killing V. It was held that a blackmailer cannot rely on the predictable
results of his own blackmailing as constituting provocation, eg, a hostile
reaction and vituperative words or blows with a fist. ‘[But] if the hostile
reaction by the person sought to be blackmailed goes to extreme lengths, it
might constitute sufficient provocation’: at 658 It was held that D could rely
on the defence of provocation in this case, due to the extreme reaction of V.
Therefore, where V’s reaction was of an extreme, unpredictable character, D
may be able to rely on self-induced provocation to constitute the defence.
The issue of self-induced provocation was considered by the Victorian
Supreme Court in R v Thorpe [1998] VSCA 13. In that case, D had an
argument with V and V’s friend earlier on the day of the killing. The Crown
contended that the defence of provocation was not available to D because the
provocation had been self-induced by D, by his acts of aggression against V
and V’s friend earlier. The Court stated that it was unnecessary to consider
whether self-induced provocation ceases to be provocation for the purposes of
providing a defence to murder. It was held that even if self-induced
provocation did cease to be a defence, it was open to the jury on the facts to
conclude that D’s earlier provocative conduct had ceased to be relevant by the
time V was killed. Thus the defence of provocation should have been left to
the jury.
The Victorian Supreme Court of Appeal considered self-induced
provocation in R v Yasso [2004] VSCA 127. It was noted that the question of
whether conduct which risks causing, or in fact causes, a victim to act in a
provocative way should prevent provocation being available is undecided. In
Yasso, D approached V, his estranged wife, with a knife in contravention of an
intervention order. D claimed that he had the knife to protect himself against
V’s brother and that D needed to see V to get his passport and jewellery back.
D said that V agreed to meet him the next day to give him his things, but
when D asked her to give him her mobile phone as assurance that she would
return, V spat on him and refused to give it to him. D then stabbed her
repeatedly. The Court accepted that D had not acted with any premeditation
or actual foresight of what occurred. Accordingly, the defence of provocation
was available. See also 5.26 below.
5.24 In New South Wales, the 2014 reforms appear to be in line with the
common law regarding self-induced provocation. Section 23(3)(b) introduces
a new paragraph:
(3) Conduct of the deceased does not constitute extreme provocation if:
…
(b) the accused incited the conduct in order to provide an excuse to use violence against the
deceased.
This appears to be a narrow restatement of the common law rule about self-
induced provocation.
Relationship between provocative conduct and the objective test
5.25 Historically, the defence of provocation could be removed from
consideration by the jury on the basis that the conduct relied upon was not
provocative conduct at law,
[page 76]
eg, it was mere words: see 5.10. More recently, the defence has been removed
from jury consideration on the basis that the provocative conduct fails to meet
the objective test: see R v Tuncay [1998] 2 VR 19; R v Kumar [2002] 5 VR 193;
R v Tsigos [1964–65] NSWR 1607. That is, the conduct relied upon by D was
such that no ordinary person could lose self-control and form the intention to
kill. In other cases it has been held that this withdrawal of provocation from
jury consideration was incorrect: see R v Leonboyer [2001] VSCA 149; R v
Abebe (2000) 1 VR 429.
In Tuncay, D was convicted of the murder of V, his wife. D and V were
immigrants from Turkey. V was a strict Muslim and had objected to D’s
drinking of alcohol. V had previously left D, and had later reconciled with
him on the basis that D agree to abstain from alcohol and fighting with her.
The day of the killing was a religious festival, and D had drunk alcohol before
coming home. V said D had been drinking and had broken his promise to her,
and that she would leave. D begged her not to, saying that he loved her and
the children. V said next time she would marry a more religious man. D said
he could not live without her and would commit suicide, and she said
‘gebher’. This was translated as ‘I would be free of you that way’, or as
something you would say to someone if you wanted to see them dead. D
claimed that when V said this there was an explosion in his head and he
attacked her.
The trial judge expressed doubt as to whether or not mere words could be
relied upon to found provocation at law. On appeal, the Victorian Court of
Appeal found it unnecessary to resolve whether words alone can constitute
provocation, as the focus should be on whether or not D’s self-control fell
below that expected of an ordinary person. The Court held that provocation
should not have been left to the jury:
No reasonable jury, even taking the case at its highest in terms of the evidence that might be
thought to be in support of the provocation, could have concluded that any incident of the
behaviour by words or conduct of the deceased could have caused an ordinary person to form an
intention to inflict serious bodily harm or death: at 30 per Hedigan AJA.
It is clear that the Stingel formulation of the objective test applies to the
common law defence of provocation: see Masciantonio; R v Thorpe (No 2)
[1999] 2 VR 719; R v Georgatsoulis (1994) 62 SASR 351; R v Lindsay (2004)
119 SASR 320. Similarly, Stingel has been applied in New South Wales: see
Green v R (1997) 148 ALR 659, discussed at 5.32 below.
Contextualisation to determine the gravity of the provocation
5.32 The first tier of the objective test permits the jury to take into account
any relevant characteristics of D in determining the gravity of the
provocation. D’s ‘age, sex, race, physical features, personal attributes, personal
relationships and past history may be relevant to an objective assessment of
the gravity’ of the provocative conduct. Any ‘mental instability or weakness of
an accused … in the determination of the content and implications of
particular conduct’ could also be relevant: Stingel at 326. This test has since
been applied by the High Court in Masciantonio and Green. In Masciantonio,
D was an Italian immigrant with little formal education, and a head injury
which led to a disposition to fall into a dissociative state when stressed. D
confronted V, his son-in-law, about V’s treatment of D’s daughter. V insulted
D and physically attacked him. D took a knife from his car and stabbed V
many times, and when V fell, D continued to stab him. The majority of the
High Court stated:
… the gravity of the conduct said to constitute the provocation must be assessed by reference to
relevant characteristics of the accused. Conduct that might not be insulting or
[page 80]
hurtful to one person might be extremely so to another, because of that person’s age, sex, race,
ethnicity, physical features, personal attributes, personal relationships or past history: at 582 per
Brennan, Deane, Dawson and Gaudron JJ.
The provocation was considered to be very grave. V had insulted and pushed
D, and D also had a longstanding concern for his daughter. D was both angry
at, and afraid of, V.
The case of Green demonstrates some of the difficulties associated with the
objective test in provocation. In that case, D killed V after alleged homosexual
advances made by V towards D. D claimed to be very sensitive to sexual abuse
as a result of his belief that D’s father had sexually abused D’s sisters. The trial
judge directed the jury that D’s sensitivity to sexual interference and his family
background were not relevant to provocation.
On appeal to the High Court, the justices applied Stingel, but with different
results. A majority of the Court held that the evidence of D’s special sensitivity
to sexual interference was a relevant characteristic when considering the
gravity of the provocation, as it tended to make it more likely that D was
severely provoked by V’s sexual advances:
The real sting of the provocation could have been found not in the force used by the deceased,
but in his attempt to violate the sexual integrity of a man who had trusted him as a friend and
father figure; in the deceased’s persistent homosexual advances after the appellant had said, ‘I’m
not like this’; and in the evoking of the appellant’s recollection of the abuse of trust on the part of
his father. These were matters for the jury to evaluate in determining the degree of provocation
experienced by the appellant: at 665 per Brennan CJ.
[page 82]
origin almost certainly results in the accused being judged by the standard of self-control
attributed to a middle class Australian of Anglo-Saxon-Celtic heritage, that being the stereotype
of the ordinary person with which the juries are most familiar.
Real equality before the law cannot exist when ethnic or cultural minorities are convicted or
acquitted of murder according to a standard that reflects those values of the dominant class, but
does not reflect the values of those minorities: at 587–8.
McHugh J thus argued that ethnicity should be taken into account in the
second stage of the objective test, as well as in the first. A strong argument
against this is that ethnic stereotypes would then be relied upon in terms of
which races were ‘hot-blooded’ or ‘cold-blooded’. What kind of evidence
could be admitted to establish the levels of self-control of particular
nationalities or ethnicities?
In summary, ethnicity is taken into account when determining the first
stage of the objective test — the ‘sting’ of the provocation — the particular
gravity that the provocative conduct had for D. But ethnicity is not taken into
account in the second stage when considering the level of self-control we
would expect of an ordinary person when confronted with such gravity of
provocation.
Student tip
• Ethnicity is taken into account in the first stage of the objective test when determining the
gravity of the provocation, but is not relevant to the second stage of the objective test.
[page 83]
a lesser number of wounds. It is whether an ordinary person could have lost self-control to the
extent that the accused did. That is to say, the question is whether the provocation, measured in
gravity by reference to the personal situation of the accused, could have caused an ordinary
person to form an intention to kill or do grievous bodily harm and to act upon that intention, as
the accused did, so as to give effect to it: Masciantonio at 584 per Brennan, Deane, Dawson and
Gaudron JJ.
The High Court held that while an ordinary person would not have repeatedly
stabbed V to the extent that D had, this did not in itself preclude reliance
upon the defence of provocation. Accordingly, the test is whether an ordinary
person could have so far lost self-control, as a result of the provocation, as to
form the intention to kill or cause GBH: see Masciantonio.
The defence of provocation requires that D actually lost self-control under the
influence of provocation, and that, as a result of this loss of self-control, D
killed V. The defence is not available where D’s intent was due to intoxication
rather than provocation.
When determining whether D actually lost self-control, the courts will have
regard to all relevant circumstances including the time elapsed between the
provocative conduct and the act causing death, D’s ethnicity, state of
intoxication, etc. A frenzied attack has frequently been relied upon by D to
point to loss of self-control: see, eg, Masciantonio.
Traditionally, the loss of self-control was attributed to anger, while fear was
associated with the defence of self-defence; but in contemporary law loss of
self-control may be due to a combination of emotions: see Van den Hoek v R
(1986) 161 CLR 158; Masciantonio.
Sudden loss of self-control
5.41 Historically, there was a requirement at common law that D’s ‘blood
be boiling’ or that the loss of self-control be sudden. The ‘boiling blood’
requirement attempted to ensure that D would not have had the intention to
kill, but for the provocation. The formation of intent had to have been
spontaneous, and based on authentic, spontaneous loss of self-control: see R v
R at 345.
There is no longer a requirement that D suddenly lose self-control: see
Parker v R (1963) 111 CLR 610; s 23(4) (NSW). The case of Parker expanded
the common law requirement of sudden loss of self-control. The Privy
Council stated:
Though there was an interval of time between the moment when the appellant’s wife and the
deceased went away, and the moment when the appellant overtook them and then caused the
death of the deceased, the jury might well consider, and would be entitled to consider, that the
appellant’s whole conduct was such as might ‘heat the blood’ to a proportionable degree of
resentment and keep it boiling to the moment of the fact: at 679.
This expansion is consistent with the common law and statutory recognition
that provocation should be contextualised. This is particularly relevant in
cases where a history of violence in a relationship is alleged: see Chhay v R
(1994) 72 A Crim R 1.
5.42 The requirement that the ‘blood be boiling’ can be fulfilled, even
where there has been a time gap between the ‘trigger incident’ amounting to
provocation and the act causing death. Under this formulation, an interval
between the trigger incident and the act causing death will not preclude D
from relying on the defence. Rather, this interval will raise issues of proof as to
whether D actually lost self-control. Clearly, the longer the interval of time,
the less credible the claim of provocation will appear. The focus will be upon
whether D was acting without self-control as a result of the provocation,
rather than upon whether D acted suddenly: see R v R.
[page 85]
Despite her reasoning, Simpson J agreed with the majority due to the weight
of authority excluding ‘hearsay provocation’ and the absence of any legislative
intention to remove the exclusion of ‘hearsay provocation’.
The case went on appeal to the High Court. McHugh and Hayne JJ did not
grant special leave to appeal because of the time that had elapsed between D
hearing the allegations and the killing. In other words, there was no evidence
that D had lost self-control. But they did state:
The applicant seeks special leave to appeal against his conviction for murder to raise the question
of whether provocation is available to reduce murder to manslaughter where the provocation is
not committed in the presence of the accused but is reported to him. The learned trial judge,
following the decision in The Queen v Quartly (1986) 11 NSWLR 332 held that it was not. We
think that there is a strong case for saying that Quartly was wrongly decided on this point.
Having regard to the terms of the statute it would seem sufficient for the accused to show that
there was provocation on the part of the deceased and that it induced the accused to lose his or
her self-control: (1998) 73 ALJR 139 at 139.
[page 88]
Consequently, this decision leaves the possibility of reliance upon hearsay
provocation open in New South Wales. The High Court appeared to agree
with Simpson J’s arguments that D could only rely upon hearsay provocation
if V in fact had acted in the way alleged. This would then require evidence that
D’s beliefs regarding V were correct.
The New South Wales Law Reform Commission considered hearsay
provocation in Partial Defences to Murder: Provocation and Infanticide
(Report 83), 1997, recommending:
The legislation should be amended to make it clear that the defence of provocation may apply to
provocative conduct occurring outside the accused’s presence. Where the accused loses self-
control as a result of a belief in provocative conduct, which provocative conduct the accused
does not witness personally, then the accused’s belief in the conduct must be based on reasonable
grounds …: at 56.
Burden of proof
5.55 The civil burden of proof rests on D, ie, D must prove substantial
impairment of the mind at the time of the act causing death, on the balance of
probabilities: see s 23A(4); R v Elliott and Hitchins (1983) 9 A Crim R 328.
Hence, this is an example of a statutory provision overriding the ‘golden
thread’ rule in Woolmington v DPP [1935] AC 462: see 1.18.
As a consequence, the jury must first consider whether the prosecution has
proven all requirements for murder beyond a reasonable doubt. The jury
would then assess whether D satisfied all requirements of the defence of
substantial impairment of the mind on the balance of probabilities.
Burden of proof
D must satisfy the evidential burden to raise the defence of substantial impairment of the mind.
If the evidential burden is discharged, D must prove all elements of the defence on the balance
of probabilities: see s 23A(4).
Statutory basis
5.56 The defence of substantial impairment of the mind is found in s 23A:
(1) A person who would otherwise be guilty of murder is not to be convicted of murder if:
(a) at the time of the acts or omissions causing the death concerned, the person’s capacity to
understand events, or to judge whether the person’s actions were right or wrong, or to
control himself or herself, was substantially impaired by an abnormality of the mind
arising from an underlying condition; and
(b) the impairment was so substantial as to warrant liability for murder being reduced to
manslaughter.
[page 90]
Section 23A(1)(b) makes the underlying rationale of the defence of
substantial impairment of the mind clear: ‘the impairment was so substantial
as to warrant liability for murder being reduced to manslaughter.’
This definition is not particularly clear, and does not necessarily accord with
medical definitions of abnormalities of the mind. Examples of abnormality of
the mind include major depressive illness (Chayna v R (1993) 66 A Crim R
178), post-traumatic stress disorder (Nielsen v R [1990] 2 Qd R 578) and
psychotic disorder (R v Heatley [2006] NSWSC 1199). The defence of
substantial impairment of the mind may also form the basis of a partial
defence for persons suffering from personality disorders: see Byrne.
Underlying condition
5.58 In New South Wales, the abnormality of the mind must have arisen
from an underlying condition. Section 23A(8) defines this as a ‘pre-existing
mental or physiological condition other than a condition of a transitory kind’.
The main purpose of this subsection is to exclude ephemeral causes (especially
intoxication) from the defence. In R v De Souza (1997) 41 NSWLR 656 it was
held that abnormal behaviour due to the use of steroids was not within the
scope of the section.
5.59 The New South Wales Law Reform Commission has noted that s
23A(8) can lead to confusion and has recommended that the words
‘abnormality of the mind arising from an underlying condition’ be replaced
by ‘mental health or cognitive impairment’: People with Cognitive and Mental
Health Impairments in the Criminal Justice System: Criminal Responsibility
and Consequences (Report 138), 2013.
Relevance of intoxication
5.60 Intoxication in and of itself will not amount to an abnormality of the
mind under s 23A(3) (NSW).
In R v Jones (1986) 22 Cr App R 42, it was held that an underlying mild
condition could not be ‘topped up’ by alcohol. D drank a great deal, fought
with a man in a pub, left to get a gun, and then returned and shot and killed
V. D was convicted of murder and appealed on the grounds that substantial
impairment of the mind should have been left
[page 91]
to the jury. Medical evidence stated that D had slight brain damage and
hypoglycaemic disease, and that the combination of the disease and alcohol
may have resulted in an abnormality of the mind. It was held that temporary
intoxication does not fall within the old s 23A. The previous conditions alone
would not have been sufficient to be classified as ‘inherent causes induced by
disease or injury’ and the alcohol consumption did not change this. The result
would be the same under the reformed s 23A, as the substantial impairment
was due to the transitory effect of alcohol.
Alcoholism in advanced stages can amount to a relevant abnormality of the
mind.
INVOLUNTARY MANSLAUGHTER
6.1 The difference between involuntary manslaughter and murder is based
on mens rea requirements. Involuntary manslaughter can be charged where D
lacks the mens rea for murder, and even where D has no mens rea at all.
New South Wales, South Australia and Victoria are covered by the
common law, with two heads of involuntary manslaughter:
1. unlawful and dangerous act manslaughter; and
2. manslaughter by criminal negligence.
There are also statutory involuntary manslaughter offences, eg, the offence
of causing death by culpable driving: see, eg, s 52A (NSW).
The prosecution may charge D with manslaughter, with the prosecution
free to argue liability under either head. There is a great deal of overlap
between the heads of involuntary manslaughter.
New South Wales and Victoria have introduced ‘one punch’ legislation, and
this will be considered at 6.6 and 6.9. In 2005 South Australia introduced the
offence of neglect where death or serious harm results from an unlawful act.
This will be considered at 6.20.
People are more likely to die from occupational ‘accidents’ or industrial
diseases as from homicide. Corporations may be prosecuted with common
law manslaughter offences (particularly by criminal negligence), although this
is very rare. Some legislatures, such
[page 94]
as the UK, have passed specific legislation to cover corporate manslaughter
offences. The Criminal Code Act 1995 (Cth) expressly attributes criminal
liability to corporations under Pt 2.5. Victoria attempted unsuccessfully to
introduce a corporate manslaughter offence based on criminal negligence in
2001. However, currently, there are no specific criminal manslaughter
offences responding to industrial deaths in New South Wales, Victoria or
South Australia.
Unlawfulness
6.3 Case law requires that the act breach criminal law; a breach of civil law
is insufficient: see Pemble v R (1971) 124 CLR 107. Even a minor breach of
criminal law, such as running a red traffic light, could satisfy this requirement.
The idea of a breach of traffic laws forming the basis for a conviction of
unlawful and dangerous act manslaughter was considered (but not resolved)
by Simpson J in R v Borkowski [2009] NSWCCA 102, who stated (at [3]):
I am unable to see why such a breach could not form the basis of the ‘unlawfulness’ of an act
necessary for a conviction for manslaughter by unlawful and dangerous act. That is a composite
concept, and it is not every breach of traffic laws that would qualify — the act must also be
dangerous, and sufficiently dangerous to justify the application of the criminal law.
The most usual breach of criminal law for the purposes of unlawful and
dangerous act manslaughter is common assault: see R v Holzer [1968] VR 481.
Omissions cannot form the basis of an unlawful act: see R v Lowe [1973] 1
QB 702. Where V dies as a result of D’s failure to fulfil a legal duty, D may be
liable for negligent manslaughter.
The prosecution must prove all components of the foundational offence.
Thus, if D is able to justify the foundational act, eg, through self-defence or
necessity, then the act does not constitute an unlawful act for the purposes of
unlawful and dangerous act manslaughter: see R v Turner [1962] VR 30. This
requirement has led to some creativity in the courtroom when trying to find
an unlawful act for the purposes of the offence: see Pemble.
Causation
6.4 Not only must D have caused V’s death, but also the unlawful and
dangerous act by D 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: see R v Mitchell [1983] QB 741; Re Attorney-General’s Reference (No 3 of
1994) [1998] AC 245.
Dangerousness
6.5 The test of dangerousness in constructive manslaughter is unanimously
accepted as objective, and the jury must assess whether the act was such that a
‘reasonable person would realise that it was exposing others to an appreciable
risk of serious injury’:
[page 96]
see Wilson at 335 per Mason CJ, Toohey, Gaudron and McHugh JJ. It is not
necessary that D was aware that the act was dangerous.
Under this formulation, the hypothetical reasonable person is not
attributed ‘anything personal to [D] which … may affect his reasoning and his
judgment on the question of whether the act is dangerous or not’: R v Wills
[1983] 2 VR 201 at 214 per Fullagar J. This would preclude consideration of
D’s intoxication. In the same case, Lush J stated:
It is sufficient for the present case to say that the circumstances relevant to the question whether
a reasonable man would appreciate the danger include the physical features of the situation and
the action of the accused man involved. I would not, for my part, include the idiosyncrasies of
the accused man or his ephemeral emotional or mental state. They are matters peculiar to him
which would affect his judgment of danger but the relevant judgment must be, by definition, the
judgment of a reasonable man: at 212.
Consequently, the question for the jury is whether a reasonable person, in the
position of D and performing the same act, would have realised that he or she
was exposing another to an appreciable risk of serious injury: see R v Besim
(2004) 148 A Crim R 28, where the cases are reviewed. See also the discussion
at 6.6 and 6.9 below about how recent reforms in New South Wales and
Victoria have circumvented the requirement of dangerousness in certain
cases.
6.6 As a result of deaths caused by so-called ‘coward punches’, both New
South Wales and Victoria introduced reforms in 2014. The reforms in
Victoria changed the objective element of ‘dangerous’ in unlawful and
dangerous act manslaughter. Under s 4A of the Crimes Act 1958 (Vic), a
punch that caused death will be deemed to be a dangerous act for the
purposes of the law relating to manslaughter by unlawful and dangerous act.
4A Manslaughter — single punch or strike taken to be dangerous act
(1) This section applies to a single punch or strike that —
(a) is delivered to any part of a person’s head or neck; and
(b) by itself causes an injury to the head or neck.
(2) A single punch or strike is to be taken to be a dangerous act for the purposes of the law
relating to manslaughter by an unlawful and dangerous act.
(3) For the purposes of subsection (2), it is irrelevant that the single punch or strike is one of a
series of punches or strikes.
(4) A single punch or strike may be the cause of a person’s death even if the injury from which
the person dies is not the injury that the punch or strike itself caused to the person’s head or
neck but another injury resulting from an impact to the person’s head or neck, or to another
part of the person’s body, caused by the punch or strike.
Example
If a person punches another person to the head, and that other person falls, hits their head on the
road, and dies from the injury resulting from their head hitting the road, the punch may be the
cause of their death.
(5) Nothing in this section limits the circumstances in which a punch or strike may be an
unlawful and dangerous act for the purposes of the law relating to manslaughter by an
unlawful and dangerous act.
[page 97]
(6) In this section —
‘injury’ has the same meaning as in Subdivision (4);
‘strike’ means a strike delivered with any part of the body.
This means that in Victoria, the prosecution is required only to prove that
there was a punch to the head or neck that caused the death of V in order to
establish unlawful and dangerous act manslaughter. These reforms return
Victoria to an offence similar to battery manslaughter, which was rejected by
the High Court (see 6.8 below).
The New South Wales reforms in response to so-called ‘coward punches’
will be considered at 6.9 below.
6.7 The defence of mistake of fact may be available where this mistake is
such that, if the facts had been such as D believed them to be, the act would
not have been dangerous. This is because mistake of fact as a defence going
toward the actus reus is generally available in criminal law.
Example
In Re Attorney-General’s Reference (No 3 of 1994), D stabbed a pregnant woman, intending harm
to the woman and not to the foetus. As a consequence of the stabbing, the foetus was born
grossly premature but alive, but then died as a consequence of D’s actions. D was charged with
murder of the child. As detailed in Chapter 4, the House of Lords held that the doctrine of
transferred malice would not apply to support a charge of murder. However, D could be liable
for manslaughter.
The prosecution had to prove:
• an unlawful act: the intentional wounding of the mother;
• caused the death of V: the foetus was born alive and then died as a consequence of D’s acts.
If V’s death was due to the unlawful and dangerous act, it does not matter that the act was
not aimed at V. Thus, D’s unlawful act caused death. The House of Lords noted that it was
irrelevant whether D knew the woman was pregnant or not;
• created an appreciable risk of serious injury: a reasonable person in the position of D would
have recognised an appreciable risk of serious injury from stabbing someone.
Consequently, D was found guilty of unlawful and dangerous act manslaughter.
Battery manslaughter
6.8 The High Court explicitly rejected the existence of a common law
offence of battery manslaughter in Wilson, on the grounds ‘that there should
be a close correlation between moral culpability and legal responsibility’: at
332 per Mason CJ, Toohey, Gaudron, McHugh JJ. Under the old common law
offence, all that was required was that D committed a battery that caused the
death of V. In contrast, under unlawful and dangerous act manslaughter, D
will not automatically commit manslaughter if D assaults V and V dies as a
result. In order to ground manslaughter, the assault must be:
◆ unlawful (which assault is by definition); and
◆ objectively dangerous: see 6.5 above.
[page 98]
Note that Victoria does not require that a single punch is objectively
dangerous under the recent reforms: see 6.6 above.
The New South Wales legislative reforms are highly problematic and
unnecessary. The existing offences of murder (where D had the necessary
mens rea) and unlawful and dangerous act manslaughter already covered
‘coward punch’ homicides.
In New South Wales, the government attempted to put parameters around
the offence to ensure that it did not reinstate the old battery manslaughter
offence which was rejected by the High Court in Wilson. However, in
attempting to do this, the government created new problems. The prosecution
must prove:
1. an assault ‘by intentionally hitting’ V with any part of D’s body or with
an object held by D;
2. that the assault was unlawful; and
3. that the assault caused the death of V.
Given that the offence is relatively new, there is lack of significant judicial
interpretation. However, some preliminary comments can be made.
The first requirement departs from classic assault law and limits assaults to
‘intentionally hitting’ V. This excludes reckless assault. It also narrows how
the force is applied to ‘hitting’ V. Questions are thus raised as to whether this
would include, eg, kicking, throttling, gouging, pushing and tripping.
Moreover, it clearly does not include assaults where D throws something at V,
such as a barstool or rock. Shooting would also be excluded.
[page 99]
In addition, by limiting the offence to ‘hitting’, this excludes psychic assault
— where D intentionally creates an apprehension in V, who then, in seeking
to escape, may die.
The requirement of ‘intentionally hitting’ V could also possibly exclude the
operation of the historic doctrine of transferred malice: see 4.37. That is, cases
where D intends to hit X, but accidentally hits V.
The third requirement, of causation, also departs from existing doctrine.
Causation is defined in s 25A(3):
For the purposes of this section, an assault causes the death of a person whether the person is
killed as a result of the injuries received directly from the assault or from hitting the ground or
an object as a consequence of the assault.
This shifts away from existing rules of intoxication: see Chapter 13. When
considering the question of intoxication in relation to other offences in New
South Wales, the jury does not ask the quantity of the drugs/alcohol, but
whether D was so impaired that D lacked mens rea or that the act was
involuntary. While there are limited opportunities to argue intoxication in
New South Wales, when does apply, it operates as an exculpatory factor. In
contrast, the new offence regards intoxication as an aggravating factor.
By an act
6.11 The elements of negligent manslaughter by an act are specified by
Nydam.
[page 100]
Elements
The prosecution must establish the following:
• that D’s actions were voluntary (see Chapter 3);
• that D’s acts caused V’s death (see Chapter 3);
• the standard of care required (see 6.12 below); and
• that there has been a gross departure from the standard of care amounting to criminal
negligence (see 6.13 below).
Standard of care
6.12 This is an objective test, with the standard being that of a ‘reasonable
person’ in the same position as D: see Nydam. While the reasonable person is
in the position of D, the personal characteristics and circumstances of D are
not attributed to the reasonable person. Thus, a person of limited capacity will
be judged according to the standard of the reasonable person — D’s physical
and mental limitations will not be taken into account. For example, Winneke
P in R v Richards and Gregory [1998] 2 VR 1 stated the crime of manslaughter
by negligence is:
One which requires an objective comparison to be made between the conduct of the accused and
the conduct to be expected of the reasonable person. The objectivity which marks out the crimes
does not permit, in its commission, any distinction to be drawn between the intelligent and the
handicapped or the appreciative and the ignorant. That is why one finds, over the years, that
those distinctions have been drawn in the range of penalties imposed for the crime: at 9.
By omission
6.14 Negligent manslaughter by omission is essentially a subcategory of
negligent manslaughter. Generally, D will not incur liability for an omission,
even where D was in a position to prevent the harm, unless a legal duty, rather
than a moral duty, can be established. D can only be charged with negligent
manslaughter by omission if a legal duty is established. In Burns v R (2012)
290 ALR 713, Gummow, Hayne, Crennan, Kiefel and Bell JJ said of criminal
liability due to an omission to act:
Criminal liability does not fasten on the omission to act, save in the case of an omission to do
something that a person is under a legal obligation to do. As a general proposition, the law does
not impose an obligation on individuals to rescue or otherwise to act to preserve human life.
Such an obligation may be imposed by statute or contract or because of the relationship between
individuals. The relationships of parent and child, and doctor and patient, are recognised as
imposing a duty of this kind. A person may voluntarily assume an obligation to care for a
helpless person and thereby become subject to such a duty. Outside limited exceptions, a person
remains at liberty in law to refuse to hold out her hand to the person drowning in the shallow
pool: at [97].
Elements
The test for negligent manslaughter by omission is as follows:
• legal duty to act: D must be under a legally recognised duty to act;
• breach of duty: D must have omitted to fulfil this duty in a way which exhibited a great
degree of negligence, as required by the doctrine of negligent manslaughter;
• causation: as a result of this omission, V died.
Breach of duty
6.16 The standard of care expected is the same as for negligent
manslaughter by an act. Thus, 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
grievous bodily harm would follow, that the doing of the act merited criminal punishment:
Nydam at 445.
◆ Breach of duty
The Court stated that ‘mere negligence and mere inadvertence is not
enough’. It was noted that D had no medical knowledge and was a
heroin addict himself. There was no evidence that V knew that she was
about to die. D was negligent, but not criminally negligent. Note that
Yeldham J included some subjective elements in his proposed test of
the reasonable person. This has not been approved in R v Lavender
(2005) 222 CLR 67.
◆ Causation
It was held that there was unsatisfactory medical evidence as to when
V died, and whether her death could have been prevented by the
administration of Narcan.
D’s conviction for manslaughter was quashed.
The supply of the methadone was not an act that carried an appreciable risk of serious
injury. That risk arose when the drug was consumed. The cause of the death of the
deceased in law was the consumption of the methadone and not the anterior act of
supply of the drug: at [88].
The High Court was also clear that D did not owe V a duty of care. French CJ applied the
taxonomy of relevant legal duties from Taktak and stated there was no statutory duty, no duty
arising from a status relationship, and no duty arising from contract. D could not be said to have
voluntarily assumed care of V. Nor could it be said that D had secluded V so as to prevent others
from rendering assistance. French CJ also rejected the prosecution argument that D was
subject to a duty to act because she had caused the dangerous situation. By taking the drugs, V
had created the danger to himself:
While Mrs Burns may well have been under a strong moral duty to take positive steps to
dissuade him from leaving until medical assistance could be called, there was, in the
circumstances, no legal duty, breach of which would support a finding of criminal
negligence: at [48].
There is no general duty on suppliers of prohibited drugs to take reasonable steps to preserve
the life of their customers: at [106].
French CJ (Gummow, Hayne, Crennan, Kiefel and Bell JJ agreeing) allowed the appeal and
entered a verdict of acquittal.
[page 105]
The prosecution must prove all the elements in s 14(1) beyond a reasonable
doubt.
Section 14(2) applies both where D is not suspected of causing the death,
and where D is suspected of causing the death but cannot be positively proved
as having done so. It establishes liability for the death in the absence of proof
of causation against either party, and in the absence of proof of complicity
between them. See R v N-T and C [2013] SASC 200 for an example of a
neglect case.
[page 106]
Legal Problem
Molly was on holidays with her friend Ahmed. Molly was an experienced scuba diver while
Ahmed was a beginner. Molly volunteered to be Ahmed’s diving ‘buddy’ and ensure that he
was safe. Molly and Ahmed went diving and stayed underwater for some time. Molly surfaced
on her own and said that Ahmed was underwater and in trouble. The diving supervisor went
looking for Ahmed, but by the time he found him Ahmed was no longer breathing. He took
Ahmed to the surface but was unable to resuscitate him. Molly claimed that she had come to
the surface as quickly as possible to get help when it was apparent that Ahmed was having
breathing difficulties.
Scientific analysis revealed that Molly had taken several times longer to surface (once she had
noted Ahmed’s difficulties) than the supervisor had taken in going to get Ahmed and returning.
Also, diving etiquette requires a buddy to stay below and share their oxygen with someone
having breathing difficulties.
Discuss Molly’s criminal liability.
Answer
Molly could be charged with murder or manslaughter: s 18 (NSW); s 11 (SA); s 3 (Vic). The
prosecution must prove all elements of the crime beyond a reasonable doubt: Woolmington v
DPP [1935] AC 462.
[Comment: This is a complex question because the prosecution would seek to argue that
Molly’s failure to act caused Ahmed’s death. This means that the prosecution must establish a
legal duty to act, which has an impact on the structure of the answer.]
MURDER
Actus reus
The act or omission causing death must be voluntary: Ryan v R [1967] ALR 577. The prosecution
would seek to argue that Molly’s failure to act — to provide oxygen to Ahmed and bring him to
the surface — caused his death.
Voluntariness
The prosecution is entitled to presume that the relevant act or omission is voluntary: R v
Falconer (1990) 171 CLR 30. There is nothing on the facts to suggest that Molly’s leaving Ahmed
underwater was anything other than ‘willed’ and ‘conscious’.
[Comment: This sentence identifies the relevant act/omission and also defines voluntariness.]
Legal duty of care
It is not enough for the prosecution to argue that Molly had a moral duty to act; the
prosecution must prove that Molly had a legal duty, and failed to fulfil this duty. The
prosecution might argue that Molly had voluntarily assumed care of a helpless person,
particularly when she volunteered to be Ahmed’s ‘buddy’ and took him underwater and out of
reach of other assistance. Ahmed was completely dependent upon Molly. This argument may
not be accepted, so the prosecution may also argue that Molly had a duty because she had
created a dangerous situation: R v Taber [2004] NSWCCA 245.
It is uncertain whether or not there is a legal duty of care in this situation. If there is not, then
Molly would not be guilty of murder or manslaughter by criminal negligence.
[page 107]
Causation
The accused must have caused the death of the victim: s 18 (NSW); Royall v R (1991) 172 CLR
378. The facts state that Ahmed had had trouble breathing and Molly had left him and taken
some time to rise to the surface. The prosecution would have to prove that Molly’s failure to
render aid and the length of time that she took rising to the surface was a ‘substantial and
operating cause’ of Ahmed’s death: Royall. The defence may argue that Ahmed’s equipment
was faulty and that it was this that caused his death. However, the prosecution would only have
to prove that Molly was a cause, not the cause of death to satisfy this requirement. It is likely
that a jury would find that Molly’s failure to render aid and the time that she took in rising to
the surface was a ‘substantial and operating cause’ of Ahmed’s death.
Conclusion
The prosecution should not have difficulty in proving the causation for murder, but may have
difficulties in establishing that Molly had a legal duty to act.
Mens rea
The prosecution will attempt to prove that D had the necessary mens rea for murder (specified
in s 18 (NSW) or at common law as malice aforethought: R v Crabbe (1985) 156 CLR 464).
Intention to kill or inflict grievous bodily harm (GBH)
The prosecution may argue that Molly intended to kill or inflict GBH when she left Ahmed
behind, knowing that he was having trouble breathing. It could be argued that she intended to
cause ‘really serious bodily harm’ (R v Perks (1986) 41 SASR 335) when she left Ahmed
underwater. This might be compared to the case of R v Rhodes (1984) 14 A Crim R 124, where D
claimed that he had not wanted to kill V, just to render her unconscious. The Court held that it
was open to the jury to find that this amounted to an intention to inflict GBH. The prosecution
would point to the length of time that Molly took in coming to the surface to demonstrate an
intention to kill or inflict GBH. However, the defence may argue that, if Molly had wished to kill
or inflict GBH, she would have actively inflicted harm, rather than just allowing it to happen.
Reckless indifference
In South Australia and Victoria ‘recklessness’ is defined as the recognition of probability of
death or GBH: Crabbe. In these States, the prosecution would have a strong argument that
Molly recognised the probability of really serious bodily harm — including unconsciousness or
damage due to lack of oxygen — when she left Ahmed underwater. Molly was an experienced
diver and knew the risks involved with diving.
In New South Wales, reckless indifference to human life requires a recognition of the probability
of death: Royall. The prosecution may still be able to satisfy this higher standard, arguing that
because of Molly’s experience a jury might find that she would have known that Ahmed could
die underwater. The prosecution would not have to argue that Molly wanted him to die, only
that she recognised the probability that he would die.
Conclusion
The prosecution may be able to prove mens rea for murder, but this would be a question of fact
for the jury.
[page 108]
Actus reus and mens rea at the same time
If the prosecution was able to establish mens rea for murder, it would also have to prove that
Molly had the necessary mens rea at the time of the act or omission causing death: Thabo Meli v
R [1954] 1 All ER 373. In this case, the relevant omission would have started at the time when
Molly left Ahmed and during the time that she took to get to the surface and seek help.
Provided she had mens rea at some stage during this time, she would be guilty of murder: R v
Styman; R v Taber [2004] NSWCCA 245.
INVOLUNTARY MANSLAUGHTER
If the prosecution could prove a legal duty of care, but could not prove the mens rea for murder,
then Molly may still be guilty of involuntary manslaughter.
[Comment: This is an example of signposting — explaining what you are doing and why.]
Molly could not be charged with manslaughter by unlawful and dangerous act as there is no
unlawful act. The prosecution would seek to find Molly guilty of manslaughter by criminal
negligence. As argued above, the primary cause of death was the failure to help; as such, this
would be treated as manslaughter by omission: Taber. There are three stages that the
prosecution must prove: R v Stone and Dobinson [1977] QB 354. I will deal with each in turn.
The prosecution would have to prove that Molly had a legal duty to act: R v Taktak (1988) 14
NSWLR 226; Stone and Dobinson. I have argued above that the prosecution may have difficulties
in establishing a legal duty of care. If the prosecution could not establish a legal duty, then
Molly would be acquitted.
The prosecution would also have to prove that this breach of duty caused the death of Ahmed.
I have argued above that the prosecution would not have difficulties establishing causation.
If the prosecution was able to establish a duty to act, they would then have to prove that Molly
breached this duty in ‘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 grievous bodily harm would follow, that the doing of the act merited criminal
punishment’: Nydam v R [1977] VR 430 at 445. This is an objective test and the prosecution
would consider what a reasonable person would do in this situation. It is likely that the court
would take evidence as to the expectations of reasonable divers — with evidence presented
that in situations like this a person would be expected to share their oxygen and rise to the
surface quickly. It is likely that a jury would find that Molly’s failure to share oxygen and rise to
the surface promptly enough was criminally negligent.
Conclusion
Molly may be found guilty of murder. However, the prosecution may have difficulty
establishing a legal duty and mens rea. If the prosecution could not prove that Molly had a legal
duty, then she would not be guilty of murder or manslaughter. The most likely head of murder
is reckless indifference to human life or GBH (Victoria and South Australia only). If the
prosecution does not prove Molly’s guilt for murder, she may be liable for manslaughter by
criminal negligence, depending on whether or not the prosecution could prove a legal duty to
act.
[page 109]
Chapter 7
Assault
Objectives
After reading this chapter you should be familiar with the following:
▶ common assault
▶ components of (psychic) assault
▶ components of battery assault
▶ examples of aggravated assault
▶ New South Wales statutory approach to offences causing harm
▶ South Australian statutory approach to offences causing harm
▶ Victorian statutory approaches to offences causing harm
▶ Victorian approach to non-sexual offences against the person
▶ defences to assault
INTRODUCTION
7.1 The common law offence of assault was defined by E East in A Treatise
of the Pleas of the Crown:
An assault is any attempt or offer with force and violence to do a corporal hurt to another,
whether from malice or wantonness, as by striking him, or even by holding up one’s fist at him
in a threatening or insulting manner, or with such other circumstances as denote at the time an
intention, coupled with a present ability of using actual violence against the person; as by
pointing a weapon at him within the reach of it. Where the injury is actually inflicted, it amounts
to a battery (which includes an assault) and this, however small it may be; as by spitting in a
man’s face, or any way touching him in anger without any lawful occasion. But if the occasion
were merely accidental or undesigned, or if it were lawful … ; it is no assault or battery in the law
… : Vol 1, p 406.
In New South Wales, the penalty for assault is prescribed in statute: see s 61
(NSW). However, the definition of assault continues to be found at common
law.
In Victoria, the common law definition of assault applies to the extent that
the common law offence continues to exist: see R v Patton (1998) 1 VR 7. In
1985, Victoria replaced the traditional assault offences with ss 15–24 (Vic).
These provisions are similar
[page 110]
in structure to common law assault offences, with some alterations in relation
to the sub-classifications of assaults under common law. The common law
offence of assault was not abolished and thus continues to exist in Victoria. It
is triable on indictment and carries a maximum of five years imprisonment:
see Patton. For example, assault continues to be relevant to unlawful and
dangerous act manslaughter, indecent assault (see s 39) and burglary (see s
76). Students and practitioners must be familiar with the common law
concepts of assault in Victoria. The major differences from common law
associated with the Victorian legislation are discussed at 7.65.
In South Australia, s 20 (SA), which was inserted in 2005, creates a
statutory offence of assault that is based upon and is similar in most respects
to the prior common law offence:
(1) A person commits an assault if the person, without the consent of another person (the
‘victim’) —
(a) intentionally applies force (directly or indirectly) to the victim; or
(b) intentionally makes physical contact (directly or indirectly) with the victim, knowing that
the victim might reasonably object to the contact in the circumstances (whether or not
the victim was at the time aware of the contact); or
(c) threatens (by words or conduct) to apply force (directly or indirectly) to the victim and
there are reasonable grounds for the victim to believe that —
(i) the person who makes the threat is in a position to carry out the threat and intends to
do so; or
(ii) there is a real possibility that the person will carry out the threat; or
(d) does an act of which the intended purpose is to apply force (directly or indirectly) to the
victim; or
(e) accosts or impedes another in a threatening manner.
(2) However —
(a) conduct that lies within limits of what would be generally accepted in the community as
normal incidents of social interaction or community life cannot amount to an assault;
and
(b) conduct that is justified or excused by law cannot amount to an assault.
These statutory offences are intended to replace the common law notion of
assault. As a matter of statutory construction, Divs 7 (‘Assault’) and 7A
(‘Causing physical or mental harm’) take priority over the common law.
Students should exercise caution when using cases from before 2006, when
the South Australian legislation changed. Throughout this chapter any
differences between the South Australian definition of assault and the
common law will be identified.
All three jurisdictions have introduced statutory reforms for aggravated
assaults. These will be considered in turn from 7.44 below.
COMMON ASSAULT
7.2 Common assault is the most basic kind of assault, and can be tried
either on indictment or summarily. Historically, a distinction was drawn
between assault and battery. Assaults covered non-physical interference, while
battery incorporated actual
[page 111]
application of force. This distinction is no longer applicable, and the term
‘assault’ currently denotes the historical conception of assault and battery.
The current concept of common assault incorporates two historical
offences of assault:
(a) (psychic) assault: D intentionally or recklessly puts V in fear of
imminent unlawful contact or physical harm: see R v McNamara
[1954] VLR 291; and
(b) battery: D intentionally or recklessly applies unlawful physical force or
contact against V’s person: see R v Venna [1976] QB 421.
D will generally be charged with assault, whether D has committed a
(psychic) assault or a battery, with the consequence that the word ‘battery’ is
rarely used. Throughout this chapter, where relevant, psychic assaults and
battery assaults will be considered separately. This is because (psychic)
assaults and battery assaults have different mens rea and actus reus
components.
Student tip
It is very important to distinguish between whether an assault is ‘psychic’ or a ‘battery’ as,
although the offence is the same, the law is different. A (psychic) assault involves no contact
but creates fear, while a battery requires unlawful contact.
Mens rea
7.3 The mens rea for assault is specified at common law.
Elements
The mens rea of common assault is intentionally or recklessly:
• creating an apprehension of imminent unlawful contact ((psychic) assault); or
• effecting unlawful contact (battery): see Fagan v Metropolitan Police Commissioner [1969] 1
QB 439; R v Venna [1976] QB 421.
Is hostility essential?
7.5 It is unnecessary that the intentional application of force be
accompanied by hostility.
[page 112]
In Boughey v R (1986) 65 ALR 609, D was a doctor who applied manual
pressure to V’s carotid arteries. He had not intended to cause V injury, but to
increase V’s sexual excitement for the purpose of sexual activities they were
engaged in at the time. D was charged with murder when this practice
resulted in V’s death. He argued that he had intended no injury. It was held
that hostile intent is not an ingredient to the offence of battery at common law
where force is intentionally applied to V. See also Reeves v R (2013) 304 ALR
251.
The Court noted that hostile intent could convert what would otherwise
not be a battery into a battery:
It has never … been the common law that actual hostility or hostile intent towards the person
against whom force is intentionally applied is a necessary ingredient of an unlawful battery.
Where the existence of hostility or hostile intent may be of decisive importance is in a case [in]
which … that hostility or hostile intent may convert what would otherwise be unobjectionable as
an ordinary incident of social intercourse into battery at common law … Apart from such cases,
however, the absence of such hostility or hostile intent towards the person to whom force is
applied neither precludes the intentional application of force to the person of another from
constituting battery at common law … nor, of itself, constitutes a justification or excuse for it:
Boughey at 620.
This is broadly consistent with the notion expressed in Boughey that hostile
intent can convert what would otherwise not be an assault into an assault.
Reckless assault
7.7 D can commit an assault where D indulges in conduct that D knows
could possibly:
◆ give V (reasonable) grounds for apprehending imminent unlawful
contact ((psychic) assault); or
◆ effect unlawful contact (battery).
The weight of authorities is clear that the standard for reckless assault is
that of ‘possibility’ rather than ‘probability’: see MacPherson v Brown;
Coleman v R (1990) 19 NSWLR 467. For example, in R v Venna [1976] QB
421, D lashed out at police officers seeking to arrest him, resulting in D
fracturing one police officer’s hand. D was charged with assault occasioning
actual bodily harm (ABH). D stated he had not intended to hit V, but was
kicking in an attempt to get off the ground. It was held that if he recognised
the possibility of unlawful contact, he had mens rea for assault. D was found
guilty.
[page 113]
Must be subjective
7.8 The case of MacPherson v Brown stresses that D must subjectively
recognise the riskiness of D’s behaviour. D is not to be judged by an objective
standard of what a reasonable person would have foreseen. In that case, V,
university lecturer, was surrounded by 30 students following a protest,
including D. V asked the group several times to be let through, later saying
that he was in fear of physical danger from the group. The confrontation
lasted for 15 minutes. The trial judge held that, while he doubted that D was
aware that V would be frightened by his conduct, D had been reckless and
ought to have known that his conduct would give reasonable grounds for
creating fear in V. He found D guilty of assault.
On appeal, the trial judge’s decision was overturned. The word ‘reckless’
should be confined to action where the relevant consequences are adverted to,
even if not desired. Bray CJ in the Full Court stated:
It is contrary to fundamental principles and the whole tenor of modern thought, to judge a man
in a criminal court, except under statutory compulsion, not by his actual intention, knowledge or
foresight, but by what a reasonable prudent man would have intended, known or foreseen in the
circumstances: at 188.
7.9 South Australia It appears that South Australia has moved away from
the common law with regard to mens rea. In South Australia, recklessness will
not be sufficient for an offence under s 20.
Negligence
7.10 A common assault cannot be committed negligently. However,
sections have been introduced to cover cases where D has negligently caused
V an injury: see, eg, s 54 (NSW); s 24 (Vic). In such cases, the prosecution
must prove D’s level of negligence was criminal: see R v D [1984] 3 NSWLR
29.
In Victoria, s 24 requires that the jury should be directed that:
… the act or omission must have taken place in circumstances which involved such a great
falling short of the standard of care which a reasonable person would have exercised, and which
involved such a high risk that grievous bodily injury would follow, that the act or omission
merits punishment under the criminal law: R v Shields [1981] VR 717 at 723.
Actus reus
7.11 The actus reus for assault is specified at common law.
Elements
D must:
• act so as to create an apprehension by V of imminent unlawful contact ((psychic) assault);
• apply unlawful contact against the person of another (battery).
[page 114]
Psychic assault
7.12 In South Australia, the statutory provisions for the equivalent of the
common law (psychic) assault are found in s 20(1)(c). These provisions
broadly mirror the common law. Any differences will be noted below.
Positive act
7.13 An omission to act does not constitute an assault: see Fagan v
Metropolitan Police Commissioner [1969] 1 QB 439 at 444 per James CJ.
The courts have a broad definition of what constitutes a positive act,
including silent phone calls: see R v Ireland; R v Burstow [1997] 4 All ER 225
at 236–7 per Lord Steyn. The use of words has also been held to constitute a
positive act in all common law jurisdictions: see, eg, Tout v R (1987) 11
NSWLR 251 at 256–7 per Lee J; R v Knight (1988) 35 A Crim R 314.
[page 115]
It would appear that the legislation departs from the common law in this
respect. Thus, in South Australia, if D knew that V was exceptionally timid
and intended to frighten V, this would not be an assault, because V’s fear was
unreasonable.
It is arguable that s 20 does not require that V felt fear, only that it was
reasonable for V to feel fear. This would be a departure from a basic
requirement of common law that the essence of (psychic) assault is that V felt
fear.
Imminence
7.18 At common law, V must apprehend ‘imminent’ or ‘immediate’
unlawful violence: see Zanker v Vartzokas (1988) 34 A Crim R 11. Thus,
generally, threats of future violence should not amount to an assault: see R v
Knight (1988) 35 A Crim R 314.
7.19 South Australia In South Australia, s 20 makes no mention that a
threat must be of imminent or immediate unlawful violence. It appears to be
sufficient to threaten ‘(by words or conduct) to apply force’: s 20(1)(c).
7.21 The House of Lords considered the issue of whether silent phone calls
can constitute an assault in R v Ireland; R v Burstow. In that case the Court
considered two separate appeals involving two defendants. D1 made repeated
phone calls to V1 over a three-month period and was charged with assault
occasioning ABH. The calls tended to involve silence or heavy breathing and
were at night. D2 harassed V2, when their relationship finished, with silent
and abusive phone calls, distributing offensive cards in the street where she
lived, turning up frequently and unnecessarily at her work and home, and
sending photos of her friends and family with a menacing note. A
psychologist stated that V2 was suffering from a severe depressive illness. D2
was charged with maliciously inflicting grievous bodily harm (GBH).
The House of Lords dismissed both appeals. Lord Steyn (with whom the
other members agreed) considered whether making silent phone calls causing
psychiatric injury can constitute an assault. He noted that silent phone calls
could not constitute a battery and then continued:
That brings me to the critical question whether a silent caller may be guilty of an assault. The
answer to this question seems to me to be ‘Yes, depending on the facts’. It involves questions of
fact within the province of the jury. After all, there is no reason why a telephone caller who says
to a woman in a menacing way ‘I will be at your door in a minute or two’ may not be guilty of an
assault if he causes his victim to apprehend imminent personal violence. Take now the case of
the silent caller. He intends by his silence to cause fear and he is so understood. The victim is
assailed by uncertainty as to his intentions. Fear may dominate her emotions, and it may be the
fear that the caller’s arrival at her door may be imminent. She may fear the possibility of
immediate personal violence. As a matter of law the caller may be guilty of an assault: whether he
is or not will depend on the circumstance and in particular on the impact of the caller’s
potentially menacing call or calls on the victim … And a trial judge may, depending on the
circumstances, put a common sense consideration before the jury, namely what, if not the
possibility of imminent personal violence, was the victim terrified about? I conclude that an
assault may be committed in the particular factual circumstances which I have envisaged. For
this reason I reject the submission that as a matter of law a silent telephone caller cannot ever be
guilty of an [assault]: at 236.
Ireland and Burstow has been the subject of much critical comment. The
major difficulty raised by this case is the reach of the offence of assault,
particularly in terms of how immediate the threat is perceived to be. This
difficulty in cases of ongoing harassment has led jurisdictions to introduce
stalking legislation to cover situations where there is a lack of imminence to
the threats: see s 60C (NSW); Crimes (Domestic and Personal Violence) Act
2007 (NSW); s 19AA (SA); s 21A (Vic).
Conditional threats
7.23 Conditional threats are threats where D imposes some condition upon
V, which if V does not meet, D will inflict some violence. Conditional threats
raise the issue of imminence, because, if V meets D’s condition, then there
would be no need to apprehend imminent unlawful contact. The requirement
of imminent infliction of physical harm is the ultimate factor in determining
liability.
The courts have approached conditional threats in two ways, by:
1. looking at the words of the threat; and
2. considering whether D had the right to impose the condition.
Each of these approaches will be considered in turn.
7.24 Words of the threat The courts will look first at the words of D to
determine whether or not there are any grounds for V to fear imminent
unlawful contact. In Tuberville v Savage (1669) 86 ER 684, where D laid his
hand on his sword and said to V, ‘If it were not assize time I would not take
such language’, it was held that this did not amount to an assault, for clearly
these words, though threatening, were such as to suggest that D would not
attack V.
7.25 Does D have a right to impose the condition? If the words of the
threat suggest imminent violence, the courts will then consider whether D had
a right to impose that condition. In Police v Greaves [1964] NZLR 295, D told
V, a police officer, that he would stab V if V came closer. Although there was
no occasion for V to suppose a threat of imminent attack, the threat
nevertheless constituted an assault. This is
[page 118]
because D subjected V to intimidation by threatening to apply force, in the
event of non-compliance by V, to a condition that D had no right to impose.
In Rozsa v Samuels [1969] SASR 205, D was a taxi driver who drove his taxi
to the front of the taxi queue. V, another taxi driver, remonstrated with D,
who said ‘I am here and I’m staying here’. V said he would punch D in the
head, and D responded by pulling out a knife and saying ‘I’ll cut you to pieces
if you try it’. D tried to get out of his taxi but was stopped by V slamming the
taxi door. D was charged with assault. The Court held that it was necessary to
look at the terms of the condition and whether D had any right to impose that
threat. One ground for imposing a condition of this kind is in self-defence.
For example, if A tried to enter D’s house and D prevented A by saying ‘If you
attempt to enter I will knock you down’, this would not be an assault, because
D had a right to impose this condition. Thus, in Rozsa v Samuels it was
necessary to ask the question: if V had attempted to hit D, would D have been
justified in using a table knife? If yes, this would not be an assault. However, D
threatened excessive force which would have precluded reliance upon self-
defence. As a consequence, D was guilty of assault.
Student tip
A classic example of a (psychic) assault involving a conditional threat is a robber pointing a gun
at V saying ‘Your money or your life’. This is a conditional threat, and arguably does not satisfy
the requirement of imminence, because if V just did what the robber said, then force would not
be applied. However, the courts would look at whether or not D had the right to impose the
condition. In this case, D would not have the right to impose that condition on V, and thus the
statement itself would be an assault.
BATTERY
7.28 The actus reus for common assault consists of the application of
unlawful contact to V’s person: Fagan v Metropolitan Police Commissioner.
Consent
7.33 The application of force is unlawful unless V has consented. That is,
the prosecution must prove that V did not, expressly or impliedly, consent to
the assault: see R v Clarence (1888) 22 QBD 23 at 36–7. In R v Schloss and
Maguire (1897) 8 QLJ 21, it was stated that: ‘The term assault of itself involves
the notion of a want of consent. An assault with consent is not an assault at
all’: at 23.
Consent may be express or implied: see Collins v Wilcock [1984] 3 All ER
374. A great deal of contact in society is assumed to have implied consent. The
High Court recognised this in Boughey v R (1986) 65 ALR 609:
‘commonplace, intentional, but non-hostile acts such as patting another on
the shoulder to attract attention, or pushing between others to alight from a
crowded bus’ are excluded from assault, as V has given implied consent: at
[23].
7.34 South Australia In South Australia, the legislation expresses this in s
20(2)(a): ‘conduct that lies within limits of what would be generally accepted
in the community as normal incidents of social interaction or community life
cannot amount to an assault’.
7.35 The issue of consent to medical procedures to negative the offence of
battery was considered by the High Court in Reeves v R (2013) 304 ALR 251.
In that case, V had been referred to D for a removal of a lesion and
surrounding tissue on her labia. Instead, D performed a medical procedure on
V which involved removing her external genitals. The prosecution case was
that the surgery D had performed was excessive and that D did not honestly
believe V had consented to the surgery. D was convicted of the malicious
infliction of GBH (s 33, NSW) and unsuccessfully appealed to the High Court.
The High Court stated that in order to negate the offence of battery it is
sufficient if the patient consents to the procedure, having been advised in
broad
[page 121]
terms of its nature: at [35]. Thus, if V had been informed that the surgery
involved the removal of her labia and clitoris, then D would have had a lawful
cause or excuse for performing it. This would be so regardless of any failure to
inform V of its possible major consequences or any alternative treatments. A
failure in either of these respects might be a breach of D’s common law duty
of care, exposing D to liability in negligence, but it would not vitiate consent
to the surgery.
Vitiated consent
7.36 V’s consent may be vitiated, ie, treated as though it was not present, in
specific situations:
◆ consent which is obtained by force or threats of force is not relevant,
as the use of force or threats would constitute assault;
◆ consent is no defence to certain sexual offences: see Chapter 8;
◆ fraud may sometimes negative consent: see Chapter 8.
This issue of fraud was considered in DPP v Richardson [1998] 2 VR 188,
where D, a dentist, continued to treat patients after she had been suspended
from practising. D was charged with assault occasioning ABH. The trial judge
directed that V’s consent to treatment had been vitiated by fraud (ie, the belief
that D was allowed to practise), and D pleaded guilty. On appeal, the United
Kingdom Court of Appeal held that, under criminal law, only fraud as to the
nature of the act or the physical identity of the person will vitiate consent. In
this case, V consented to dentistry by D, and the fact that V was misled as to
D’s social identity did not vitiate consent. Thus, D was not guilty of assault.
At common law, V’s consent is not a defence to assault occasioning ABH:
see Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331; R v Brown [1994] 1 AC
212.
7.37 The English case of Brown provides an illustration of the common law
rule that V cannot consent to ABH or more, unless D’s actions were within
lawfully recognised exceptions, such as surgery, boxing, ‘contact’ sports,
lawful correction, dangerous exhibitions and ‘manly diversions’. In Brown, the
Ds and Vs had consensually practised sado-masochistic activities in private
locations for over 10 years. The passive partners consented to injuries such as
genital torture, but no permanent injuries were inflicted. No victim had
complained. The Ds were charged with a number of counts of unlawful and
malicious wounding and assault occasioning ABH. The House of Lords held
that a ‘victim’ cannot consent to assault occasioning ABH, unless it falls
within one of the prescribed exceptions or there is a justification. The
majority could find no public interest that would justify the creation of a
further exception in this case.
The dissenting judges, Lords Mustill and Slynn, argued that these practices
were private sexual relations and matters of personal morality with which the
law should not be concerned.
7.38 In R v Wilson [1997] QB 47, the question of V’s ability to consent to
ABH or more, for the purposes of sado-masochism, was considered by the
English Court of Appeal. This case involved a husband (D) branding his
initials on the buttocks of his wife (V) with a hot knife, at her instigation. The
scars were reported to the police by V’s
[page 122]
doctor. It was held that D’s conviction for assault occasioning ABH should be
quashed, on the basis that what D did was no more dangerous or painful than
tattooing, which, if carried out with the consent of an adult, is not a criminal
offence. The majority also emphasised that consensual activity between a
husband and wife, in the privacy of their matrimonial home, should not be
the subject of criminal investigation or prosecution.
Given the requirements of specific training and licensing of tattoo artists
and the increasing legislative attention to violence in domestic relationships, it
is difficult to justify the different results in Brown and Wilson. Additionally, it
is hard to find a rationale for permitting sport, horseplay, ‘manly diversions’
and ornamentation, but prohibiting sexual fulfilment.
In Australia, the defendants in Brown would not have been charged with
assault, due to the Human Rights (Sexual Conduct) Act 1994 (Cth). The Act’s
one substantive clause states:
4 (1) Sexual conduct involving only consenting adults acting in private is not to be subject, by
or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference
with privacy, within the meaning of Art 17 of the International Covenant on Civil and
Political Rights.
(2) For the purpose of this section, an adult is a person who is 18 years old or more.
However, see the Victorian unlawful and dangerous act manslaughter case R v
Stein (2007) 18 VR 376.
Exceptions to the rule that V cannot consent to ABH
7.39 There are a number of exceptions recognised at common law to the
rule that consent is no defence where ABH is inflicted. These exceptions are
based on notions of public interest, or where there is general social approval.
For example, surgery performed with the informed consent of a patient is not
an assault, even where GBH is inflicted.
Many sports involve body contact that can lead to injuries of ABH or more,
such as boxing, football, netball and hockey. In Pallante v Stadiums Pty Ltd
(No 1), it was held that D is relieved from criminal liability for injury inflicted
upon sporting opponents, provided that:
◆ D keeps within the recognised and reasonable rules of the game;
◆ the application of force by D against V is in a sporting spirit, and
not due to hostility or anger; and
◆ the application of force by D is no more than is ordinarily and
reasonably to be contemplated as incidental to the game: at 343 per
McInerney J.
However, the courts have acknowledged that, in many sports, it is expected
that there will be numerous breaches of the rules. In Re Jewell and Crimes
Compensation Tribunal (unreported, VSC, 16 January 1987, Legoe J), it was
held that, even though V was harmed during an Australian Rules football
match when D broke the rules of the game, this did not amount to a breach of
criminal law. Legoe J said: ‘A player cannot
[page 123]
expect, nor is he entitled to expect, that every player will play strictly
according to the rules.’ Legoe J continued:
We think that 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.
In our view the particular incident was within the reasonable contemplation of players of
Australian Rules football despite the fact that the blow to the head was in breach of the rules. We
would have come to a different conclusion if the contact had not been by a sweeping arm action
with a fist unclenched but rather by a solid and deliberate punch. Such an action in our view,
whether on the ball or behind the play, would not be of a kind in fact consented to by players of
the game nor as a matter of policy should it be deemed so by a Tribunal administering the Act.
By playing the game the applicant consented to run the risk of injury from an incident of the
kind which occurred and he had the lawful capacity to do so.
7.41 South Australia Section 22(1) restates the common law rule that an
assault is not committed where ‘the victim lawfully consented to the act
causing harm’. The limits of the rules of consent are expressed in s 22(3): ‘A
person may consent to harm (including serious harm) if the nature of the
harm and the purpose for which it is inflicted fall within limits that are
generally accepted in the community.’ Examples in s 22(3) of socially
approved pastimes include harms for religious purposes (excepting female
circumcision), harms for therapeutic purposes, and participating in sporting
or recreational activity where participants may ‘consent to harm arising from
a risk inherent in the nature of the activity’.
Section 22(4) also specifies that:
If a defendant’s conduct lies within the limits of what would be generally accepted in the
community as normal incidents of social interaction or community life, this Division does not
apply to the conduct unless it is established that the defendant intended to cause harm.
In all States, the prosecution must establish that V was acting in the course of
duty when assaulted. The scope of a police officer’s duty has been broadly
construed as including anything that can fairly and reasonably be regarded as
a carrying out of a police officer’s duty: Reynhoudt. In R v K (1993) 118 ALR
596, the Federal Court held that:
… a police officer acts in the execution of his duty from the moment he embarks upon a lawful
task connected with his functions as a police officer, and continues to act in the execution of that
duty for as long as he is engaged in pursuing the task and until it is completed, provided that he
does not in the course of the task do anything outside the ambit of his duty, so as to cease to be
acting therein: at 601 per Gallop, Spender and Burchett JJ.
Wound
7.52 A wound is an injury which breaks through the whole skin, ie, both
the inner and outer skin: see Vallance v R (1961) 108 CLR 56. This may range
from a minor cut to serious, deep knife wounds.
‘Occasioning’
7.53 Many aggravated offences refer to D ‘occasioning’ a particular level of
injury: see, eg, assault occasioning ABH (s 59 (NSW)). The term ‘occasioning’
can be defined as requiring causation. Thus the offence of assault occasioning
ABH is nothing more than a common assault which happens to cause bodily
harm. Consequently, the mens rea for the offence is identical to that of
common assault: see Zanker v Vartzokas.
‘Causing’
7.54 ‘Causing’ injury has been held to require that D committed an act or
omission that substantially caused V to suffer the injury. There is no
requirement of direct or indirect application of force, provided D’s causal
responsibility can be established.
Elements of aggravated offences in New South Wales
Assault occasioning ABH
7.55 D can be charged with assault occasioning ABH: see s 59. The
prosecution must prove that D intentionally or recklessly committed a
(psychic) assault or battery assault, that V suffered ABH, and that D’s actions
were a substantial and operating cause of these injuries: see Zanker v
Vartzokas.
[page 128]
(2) Physical harm includes unconsciousness, pain, disfigurement, infection with a disease and
any physical contact with a person that a person might reasonably object to in the
circumstances (whether or not the person was aware of it at the time).
(3) Harm to a person’s mental health includes significant psychological harm, but does not
include mere ordinary emotional reactions such as those of only distress, grief, fear or anger
…
5.1.2 Serious Harm
In this Part, serious harm means any harm (including the cumulative effect of more than one
harm):
(a) that endangers or is likely to endanger a person’s life: or
(b) that is or is likely to be significant and longstanding.
Both South Australia and Victoria have introduced offences causing harm
that follow these recommendations.
Offences causing harm in South Australia
7.58 In South Australia, s 21 defines ‘harm’ and ‘serious harm’ as follows:
‘harm’ means physical or mental harm (whether temporary or permanent); and includes
unconsciousness, pain, disfigurement, and infection with a disease.
‘mental harm’ means psychological harm and does not include emotional reactions such as
distress, grief, fear or anger unless they result in psychological harm;
‘physical harm’ includes — (a) unconsciousness; (b) pain; (c) disfigurement; (d) infection with a
disease;
‘serious harm’ means harm that endangers a person’s life or harm that consists of, or results in,
serious and protracted impairment of physical or mental function or results in serious
disfigurement.
These definitions are broadly consistent with the Model Criminal Code,
replacing the common law terms of ABH and GBH.
With regard to ‘mental harm’, s 22(5) provides that any offence in Div 7A,
such as causing harm or serious harm, does not apply unless D’s conduct
either gave rise to a situation in which V’s life or physical safety was
endangered and the mental harm arose out of that situation, or D’s primary
purpose was to cause such mental harm. Section 22(5) mirrors the common
law and was intended to limit the scope of criminal liability for causing mental
harm.
The term ‘serious harm’ was considered in R v Wilkinson (2008) 101 SASR
21 at [18]. In that case, D’s ‘brutal attack’ on his de facto had caused ‘serious
and protracted impairment to both physical and mental function’. The Court
took into account that this lasted for ‘some months, leaving permanent
damage to the nose and teeth … ongoing amnesia … long-term psychological
suffering … It is evident that this disfigurement continued for some time,
although ultimately healing has occurred. The statutory provision does not
suggest that the disfigurement must be permanent disfigurement’: at [18].
[page 129]
The idea that ‘serious harm’ does not require permanent harm was
confirmed in R v Hawes [2009] SADC 127, where Chivell DCJ held that the
loss of full functionality to V’s hand after being stabbed amounted to ‘serious
harm’, despite V making a full recovery 12 months after the incident. Chivell
DCJ suggested that the word ‘protracted’ in s 21 meant something less than
permanent: ‘it means to prolong (time) so as to cause delay’; ‘to cause to last
longer’; ‘to prolong’: at [27].
Endangerment to life needs to actually endanger life, ie, the prosecution
must prove the injuries were life-threatening: R v Barenregt [2008] SADC 35.
Causation
7.59 Section 21 also states that ‘a person causes harm if the person’s
conduct is the sole cause of the harm or substantially contributes to the harm’
or took part in acts in the same incident that caused serious harm. This
provision restates the long-established common law notion of substantial
causation: see eg Royall v R (1991) 172 CLR 378. The aim was to provide
clarity and simplicity to the term ‘cause’. The term ‘cause’ is wide. In Div 7A
there does not need to be any application of force to V. All that is required is
that D caused the harm. Thus, if D intentionally caused panic and injury in a
crowded theatre by extinguishing lights and blocking doors and calling ‘fire’,
although this would not amount to a common law assault, D would be
responsible under Div 7A for any injuries caused (based on the old common
law case of R v Martin (1881) 8 QBD 54).
This means that if D causes various individual injuries, which alone would not
amount to serious harm but together do amount to serious harm, then serious
harm is established.
In addition, if there are multiple attackers, then all who join in the attack
are equally liable (providing they possess the necessary mens rea, or it is a
joint criminal enterprise: see Chapter 11) for all injuries, even if it cannot be
shown who inflicted what injury. All attackers are equally liable for all the
consequences.
7.61 Sections 23 and 24 extend liability to include not only actions, but also
omissions. Section 23 criminalises a person who causes serious harm to
another either intentionally or recklessly. The elements of s 23(1) — of
causing serious harm with intent to cause serious harm — were summarised
by Kourakis CJ in R v Cekic [2015] SASC 47 as follows: (1) that D caused
harm to the alleged V; (2) that such harm is serious harm; (3) that D acted
deliberately as opposed to accidentally; (4) that D acted unlawfully; and (5) at
the time, D intended to cause serious harm: at [6]. Section 24 criminalises a
person who causes harm to another, either recklessly or intentionally. Harms
caused intentionally are more serious than harms inflicted recklessly.
[page 130]
7.62 The South Australian definition of recklessness in s 21 is in
accordance with the common law, requiring that D ‘is aware of a substantial
risk that his or her conduct could result in harm … and engages in the
conduct despite the risk and without adequate justification’. This emphasis
upon ‘could’ (not ‘would’) suggests that South Australia’s concept of
recklessness would be consistent with the common law requirement of
recognition of the possibility of the prohibited outcome.
Offences causing injury in Victoria
7.63 In Victoria, s 15 includes the following definitions:
◆ injury means ‘physical injury’ or ‘harm to mental health — whether
temporary or permanent’;
◆ serious injury means an injury (including the cumulative effect of
more than one injury) that ‘endangers life’ or ‘is substantial and
protracted’ or ‘the destruction, other than in the course of a medical
procedure, of the foetus of a pregnant woman, whether or not the
woman suffers any other harm’;
◆ harm to mental health includes ‘psychological harm but does not
include an emotional reaction such as distress, grief, fear or anger
unless it results in psychological harm’;
◆ physical injury includes ‘unconsciousness, disfigurement,
substantial pain, infection with a disease and an impairment of
bodily function’.
Section 15 was amended in 2013 to provide detailed definitions of injury
and serious injury. Serious injury may be regarded as equating with GBH at
common law: DPP v Williams [1993] VR 15 per Hedigan J.
Section 16 criminalises ‘a person who, without lawful excuse, intentionally
causes serious injury to another person’. The prosecution must prove that D
caused serious injury to V; D intended to cause serious injury, and did not
merely intend to do an act which in fact caused serious injury; and the injury
was caused without lawful excuse: see Westaway v R (1991) 52 A Crim R 336.
Recklessness will not be sufficient.
Section 17 criminalises causing ‘serious injury recklessly’, with s 18
criminalising causing injury intentionally or recklessly.
It should be noted that the Victorian definition of ‘recklessness’ in offences
against the person differs from the common law definition of recklessness. In
Victoria, conduct is ‘reckless’ if ‘there is foresight on the part of an accused of
the probable consequences of his actions and he displays indifference as to
whether or not those consequences occur’: see Nuri v R [1990] VR 641 at 643
per Young CJ, Crockett and Nathan JJ. In R v Campbell (1997) 95 A Crim R
391 the Court of Appeal held that the word ‘recklessly’ in the sections was
used in the subjective sense as referring to a state of mind of a person who
foresees a result of his or her actions as being likely or probable.
In addition, ss 15A and 15B create offences of causing injury in
circumstances of ‘gross violence’. These are aggravated offences where D
planned in advance to cause serious injury, acted in company with two or
more people, had an offensive weapon, and continued to cause injury to V
after V was incapacitated.
[page 131]
VICTORIAN APPROACH TO NON-SEXUAL OFFENCES
AGAINST THE PERSON
7.64 In 1985, Victoria reformed the categories of assaults and introduced
new provisions. The common law offence of assault and battery was not
abolished and therefore continues to exist. Thus, the outline at the beginning
of this chapter on common law assault continues to be relevant in Victoria.
The statutory provisions have created different offences that can usefully be
divided into five categories, as follows:
1. Offences involving the infliction of harm: see 7.63;
2. Offences involving a threat: s 20 criminalises threats to kill and s 21
criminalises threats to inflict serious injury. Both offences require that
D either intended, or was reckless as to whether or not, the person
would fear the threat would be carried out. Threats may be constituted
by words or by conduct or both: see R v Rich [1998] 4 VR 44.
3. Offences involving endangerment: ss 22–23 criminalise conduct
endangering life and persons recklessly (respectively). In order to
establish an offence under s 22 the prosecution must prove the
following:
(1) The accused engaged in conduct; and
(2) That conduct placed a person in danger (ie conduct that carried with it an appreciable
risk) of death; (the actus reus)
(3) The accused engaged in that conduct voluntarily;
(4) A reasonable person in the position of the accused, engaging in the very conduct in
which the accused engaged and in the same circumstances, would have realised that they
had placed another in danger of death; (the objective mental element) and
(5) The accused engaged in that conduct recklessly in that they foresaw that placing another
in danger of death was a probable consequence of their conduct in the surrounding
circumstances (the subjective mental element): R v Abdul-Rasool (2008) 18 VR 586 at [19]
per Redlich JA. See also R v Wilson [2005] VSCA 78; Mutemeri v Cheesman [1998] 4 VR
484.
DEFENCES TO ASSAULTS
7.65 D will not be liable for what would otherwise be an assault if D’s resort
to force is lawful: see, eg, self-defence, discussed in Chapter 13.
Force is lawful where:
◆ the law recognises the situation as one where force can lawfully be
resorted to;
◆ the decision to use force is reasonable (objective test);
◆ the quantum of force is reasonable (objective test); and
◆ D believes that the use and quantum of force is reasonable
(subjective test).
The defence of provocation may be available as a defence to an assault
requiring proof of the mens rea for murder in New South Wales and South
Australia: see Chapter 5.
Legal problem 1
Malcolm and Andrew were abseiling together. Andrew was working his way down a sheer cliff,
completely dependent on the rope that Malcolm was holding at the top of the cliff. Malcolm
called down to Andrew: ‘Tell me who is sleeping with my wife or I will let go of this rope.’
Andrew was sleeping with Malcolm’s wife and panicked, thinking that Malcolm already knew,
so he let go of the rope, falling to the bottom of the cliff. Andrew suffered from a broken leg.
Discuss Malcolm’s criminal liability.
Answer: New South Wales and Victoria
Assault
Malcolm could be charged with an assault, potentially with aggravated elements: see s 61
(NSW); R v Patton (1998) 1 VR 7. The prosecution must prove all elements of the offence beyond
a reasonable doubt: see Woolmington v DPP [1935] AC 462. This is a (psychic) assault which
requires intentional or reckless creation of the apprehension of imminent unlawful contact: see
MacPherson v Brown (1975) 12 SASR 184.
Actus reus
The prosecution must prove several elements to establish Malcolm’s criminal liability. An
essential element of the offence is that Andrew was in fear of imminent unlawful contact: see
MacPherson v Brown. The facts clearly state that Andrew panicked, satisfying the requirement of
fear.
However, the requirement of fear of imminent unlawful contact may be difficult to establish
because Malcolm’s threat is conditional: he will only let go of the rope if Andrew does not
answer Malcolm’s question. This means that if Andrew met Malcolm’s request, then Andrew
would have nothing to fear. The common law approaches conditional threats by considering
whether or not the words of the threat suggest imminence. Given that Andrew was completely
at Malcolm’s mercy, the prosecution would argue that this was an immediate and continuing
fear: see Zanker v Vartzokas (1988) 34 A Crim R 11. The court would then look at whether or not
Malcolm had the right to impose that condition: see Rozsa v Samuels [1969] SASR 205. Malcolm
had no legal right to threaten to apply force or cause harm in the event of non-compliance,
thus the words of Malcolm constituted an assault.
[page 133]
The prosecution would be able to establish the actus reus of assault.
Mens rea
The prosecution must also prove that Malcolm intentionally or recklessly created an
apprehension of imminent unlawful contact: see R v Venna [1976] QB 421. The words and
circumstances of the threat suggest that Malcolm intentionally frightened Andrew so that he
would tell him the truth.
Actus reus and mens rea at the same time
It is clear that at the time that Malcolm made the threat he intended to and did frighten
Andrew.
Aggravated assault
[Comment: This section could also be considered under the actus reus of assault.]
The prosecution would seek to argue that this is an aggravated offence in light of the injuries
inflicted. The broken leg would be at least actual bodily harm, as it is an injury that interferes
with the health and comfort of Andrew, and is more than merely transient and trifling: see R v
Donovan [1934] 2 KB 498.
The prosecution would also have to prove that Malcolm caused Andrew to break his leg.
Malcolm might argue that Andrew’s letting go of the rope caused the injury, not Malcolm’s
words.
This case is similar to Zanker v Vartzokas, where D’s (psychic) assault caused V to jump out of a
van to escape from D’s threats. It was held in that case that D was a substantial and operating
cause of V’s injuries. The same reasoning would apply to Malcolm’s liability.
Conclusion
Malcolm would in all likelihood be found guilty of assault occasioning actual bodily harm.
Victoria
Malcolm could also be charged under s 18 with causing injury intentionally or recklessly, or
possibly under s 17 for causing serious injury recklessly. The prosecution must prove all
elements of the offence beyond a reasonable doubt: see Woolmington.
The prosecution would be able to prove that a broken leg meets the statutory definition of
injury as ‘physical injury’, and may further be able to prove that D caused a ‘serious injury’, as a
broken leg is ‘substantial and protracted’: see s 15.
The prosecution would have to prove that Malcolm caused the broken leg (see the reasoning
above).
The prosecution may have difficulty in proving the mens rea of the offence. They would have to
prove that Malcolm intended to cause, or recklessly caused, injury to Andrew. The facts do not
suggest that Malcolm intended to injure Andrew; in fact, his words suggest otherwise. The
prosecution would have to prove that Malcolm recognised the probability that Andrew would
be injured: see R v Campbell (1997) 95 A Crim R 391. It is unlikely that a jury would accept
beyond a reasonable doubt that Malcolm recognised the probability at the time of the threat
that Andrew would be injured. Therefore the prosecution would not be able to establish that
Andrew was guilty under s 17 or s 18, due to his lack of mens rea.
Answer: South Australia
Malcolm could be charged with assault causing harm: see s 20. The prosecution must prove all
elements of the offence beyond a reasonable doubt: see Woolmington.
[page 134]
Actus reus
Under s 20, the prosecution must prove that Malcolm ‘threaten[ed] (by words or conduct) to
apply force (directly or indirectly) to the victim’.
Malcolm’s threat that he would let go of the rope would satisfy this requirement as a threat of
indirect force: see s 20(1)(c). Moreover, he would have been able to carry out the threat, as
Andrew was completely dependent upon him: see s 20(1)(c)(i). The prosecution may also
establish that Andrew reasonably believed that Malcolm might carry out the threat (see s 20(1)
(c)(ii)), but this would not be a necessary element.
This conduct was not within the limits of what would be generally accepted in the community
as normal incidents of social interaction: see s 20(2)(a).
Harm is defined as physical harm which includes ‘pain’, and a broken leg would satisfy this
requirement: see s 21.
The prosecution would also have to prove that Malcolm caused the harm: see s 20(4). This is
defined as ‘substantially contributes to the harm’: see s 21. Although Malcolm did not force
Andrew to let go of the rope, his threat was a substantial and operating cause of Andrew’s
reaction and the prosecution would be able to establish this element.
The prosecution would have no difficulty in establishing the actus reus.
Mens rea
Section 20 does not explicitly specify the mens rea for assaults by threats: see s 20(3). However,
the prosecution would be able to establish that Malcolm intended to threaten Andrew.
Mens rea and actus reus at the same time
The prosecution would have no difficulty in establishing that Malcolm intended to make the
threats.
Conclusion
Malcolm would be guilty of assault causing harm: see s 20(4).
Legal Problem 2
Georgia was a waitress at a restaurant. Although Georgia and Max had broken up, Max kept
coming to Georgia’s restaurant with his friends. They would order one dish and then stay and
be loud and demanding. When Georgia told Max to leave he said, ‘I want you back and if I can’t
have you, no one can.’ Georgia felt afraid and was also annoyed at Max. She responded: ‘If you
keep hanging around I will put peanuts into your food.’ Georgia knew that Max was violently
allergic to peanuts and could go into life-threatening anaphylactic shock if he even came into
contact with them. Max was so terrified that Georgia had put peanuts on his food that he ran
out of the restaurant and slipped down the stairs of the porch in his hurry. As a result, Max
sprained his ankle.
Discuss Georgia’s liability, if any.
[page 135]
Answer: New South Wales and Victoria
Assault
Georgia could be charged with an assault, potentially with aggravated elements: see s 61
(NSW); R v Patton (1998) 1 VR 7. The prosecution must prove all elements of the offence beyond
a reasonable doubt: see Woolmington v DPP [1935] AC 462. This is a (psychic) assault which
requires intentional or reckless creation of the apprehension of imminent unlawful contact: see
MacPherson v Brown (1975) 12 SASR 184.
Actus reus
The prosecution must prove several elements to establish Georgia’s criminal liability.
An essential element of the offence is that Max was in fear of imminent unlawful contact: see
MacPherson v Brown. The facts clearly state that Max was terrified, satisfying the requirement of
fear. [Comment: Note how the answer uses specific words from the problem question like
‘terrified’ to demonstrate how the facts satisfy the legal requirements.]
It has been suggested that V’s fear must be reasonable, in the sense that a reasonable person
would have also been in fear, ie, D’s liability is limited by an objective test: see Barton v
Armstrong at 455 per Taylor J. However, this is contrary to common law principles that the
victim should be taken as found: see R v Blaue [1975] 3 All ER 446. Clearly, it was reasonable for
Max to feel fear in response to Georgia’s threat. Moreover, as argued below, Georgia knew that
Max was allergic, and this was why she made a threat that would not frighten anyone who was
not allergic. [Comment: This paragraph engages with an area of law that is open to some
dispute about whether or not the fear of the victim needs to be reasonable. It draws on the
facts of the question as well as legal precedent to make a strong argument.]
However, the requirement of fear of imminent unlawful contact may be difficult to establish
because Georgia’s threat is conditional: she will only put peanuts in the food if Max keeps
hanging around. This means that if Max met Georgia’s request, then Max would have nothing
to fear. The common law approaches conditional threats by considering whether or not the
words of the threat suggest imminence. The common law would then look at whether or not
Georgia had the right to impose that condition: see Rozsa v Samuels [1969] SASR 205. Georgia
has no right to ban Max from the restaurant, but she might argue that her threat was in self-
defence. In Rozsa v Samuels, the Court held that one ground for imposing a condition of this
kind is in self-defence. For example, if A tried to enter D’s house and D prevented A by saying ‘If
you attempt to enter I will knock you down’, this would not be an assault, because D had a right
to impose this condition. Thus, based on Rozsa v Samuels it would be necessary to ask the
question: if Max was annoying Georgia and had also threatened her, would Georgia have been
justified in using peanuts? If yes, this would not be an assault. In Rozsa it was held that D had
threatened excessive force which would have precluded reliance upon self-defence and, as a
consequence, D was guilty of assault. In Georgia’s case the prosecution would argue that
Georgia’s threat was life-threatening and clearly excessive. However, the defence might argue
that Max’s statement ‘if I can’t have you, no one can’ could be regarded as life-threatening. It
would be up to the jury to determine whether or not Georgia’s threat was excessive or
proportionate. If it was excessive, then this element of the actus reus would be satisfied.
Subject to the question of fact as to whether or not Georgia’s threat was excessive, the
prosecution would be able to establish the actus reus of assault.
[page 136]
Mens rea
The prosecution must also prove that Georgia intentionally or recklessly created an
apprehension of imminent unlawful contact: see R v Venna [1976] QB 421. The words and
circumstances of the threat show that Georgia intentionally frightened Max so that he would
leave her alone.
Actus reus and mens rea at the same time
It is clear that at the time that Georgia made the threat she intended to and did frighten Max.
Aggravated assault
[Comment: This section could also be considered under the actus reus of assault.]
The prosecution would seek to argue that this is an aggravated offence in light of the injuries
inflicted. The sprained ankle might be actual bodily harm, as it is an injury that interferes with
the health and comfort of Max. It would depend on how severe the sprain was as to whether it
was more than merely transient and trifling: see R v Donovan [1934] 2 KB 498.
The prosecution would also have to prove that Georgia caused Max to sprain his ankle. This
case is similar to Zanker v Vartzokas, where D’s (psychic) assault caused V to jump out of a van to
escape from D’s threats. It was held in that case that D was a substantial and operating cause of
V’s injuries. The same reasoning would apply to Georgia’s liability.
Conclusion
Subject to the prosecution proving that a sprained ankle was actual bodily harm, Georgia might
be found guilty of assault occasioning actual bodily harm. The main question raised is whether
her threat was sufficiently excessive in the circumstances to amount to an assault.
Victoria
Georgia could also be charged under s 18 with causing injury intentionally or recklessly, or
under s 20 with threats to kill. The prosecution must prove all elements of the offence beyond a
reasonable doubt: see Woolmington.
Section 18: The prosecution would be able to prove that a sprained ankle meets the statutory
definition of injury as ‘physical injury’: see s 15.
The prosecution would have to prove that Georgia caused the broken leg (see the reasoning
above).
The prosecution may have difficulty in proving the mens rea of the offence. They would have to
prove that Georgia intended to cause, or recklessly caused, injury to Max. The facts do not
suggest that Georgia intended to injure Max; in fact, her words suggest otherwise. The
prosecution would have to prove that Georgia recognised the probability that Max would be
injured: see R v Campbell (1997) 95 A Crim R 391. It is unlikely that a jury would accept beyond a
reasonable doubt that Georgia recognised the probability at the time of the threat that Max
would be injured. Therefore the prosecution would not be able to establish that Georgia was
guilty under s 18 due to his lack of mens rea.
Section 20: Georgia could be charged with making threats to kill under s 20. That section
requires that a person makes threats without a lawful excuse to kill a person. Clearly Georgia’s
threat to give peanuts to Max was life-threatening given his allergy.
[page 137]
Georgia might argue that her threat was lawfully excused due to self-defence. The reasoning
detailed above in relation to Rozsa v Samuels and conditional threats would apply. The
prosecution would also have to prove that she either intended that Max feared her threat to kill
would be carried out, or was reckless as whether or not Max would fear the threat. The
prosecution would not have difficulty in proving the necessary mens rea. Thus, Georgia could
be guilty under s 20 (Vic), subject to the prosecution proving that she did not have a lawful
excuse.
Answer: South Australia
Georgia could be charged with assault causing harm: see s 20. The prosecution must prove all
elements of the offence beyond a reasonable doubt: see Woolmington.
Actus reus
Under s 20, the prosecution must prove that Georgia ‘threaten[ed] (by words or conduct) to
apply force (directly or indirectly) to the victim’.
Georgia’s threat that she would put peanuts in Max’s food would satisfy this requirement as a
threat of indirect force: see s 20(1)(c). Moreover, she would have been able to carry out the
threat as Max ordered food from the restaurant: see s 20(1)(c)(i). The prosecution may also
establish that Max reasonably believed that Georgia might carry out the threat (see s 20(1)(c)
(ii)), but this would not be a necessary element.
This conduct was not within the limits of what would be generally accepted in the community
as normal incidents of social interaction: see s 20(2)(a). However, Georgia might argue that the
conduct was excused by law s 20(2)(b). She would seek to argue that her threat was based on
self-defence — see the application of Rozsa v Samuels above. The key question would be
whether or not her threat was disproportionate to Max’s behaviour and comments.
Harm is defined as physical harm which includes ‘pain’, and a sprained ankle would satisfy this
requirement: see s 21.
The prosecution would also have to prove that Georgia caused the harm: see s 20(4). This is
defined as ‘substantially contributes to the harm’: see s 21. Although Georgia did not trip Max
over, her threat was an operating and substantial cause of Max’s reaction and the prosecution
would be able to establish this element.
The prosecution would have no difficulty in establishing the actus reus, except for the open
question of whether or not Georgia’s threat was excessive or excused as self-defence.
Mens rea
Section 20 does not explicitly specify the mens rea for assaults by threats: see s 20(3). However,
the prosecution would be able to establish that Georgia intended to threaten Max.
Mens rea and actus reus at the same time
The prosecution would have no difficulty in establishing that Georgia intended to make the
threats.
Conclusion
There some doubt as to whether or not a jury would find that Georgia’s threat was
disproportionate and thus an assault. Provided the jury found her threat was not excused by
law, Georgia would be guilty of assault causing harm: see s 20(4).
[page 138]
Chapter 8
Rape
Objectives
After reading this chapter you should be familiar with the following:
▶ common law rape
▶ statutory rape or sexual assault
▶ definition of ‘sexual intercourse’
▶ requirement of non-consent
▶ vitiation of consent
▶ mens rea for rape
▶ indecent assault
INTRODUCTION
8.1 Statutory provisions in each jurisdiction are provided for rape. The
traditional common law offence of rape consisted of the penile penetration of
a woman by a man who knew that the woman was not consenting, or realised
that she might not be.
Under current legislation, offences in each jurisdiction:
◆ have widened beyond the traditional act of rape as penetration of a
vagina by a penis, to comprise of ‘sexual intercourse’ without the
consent of V, or ‘sexual penetration’ without V’s consent;
◆ can be committed by a person of either sex against a person of any
sex: s 61H (NSW); s 48 (SA); s 35 (Vic).
South Australia and Victoria have retained the term ‘rape’: s 48 (SA); s 38
(Vic). In New South Wales, the statutory equivalent to rape is ‘sexual assault’:
s 61I (NSW). The term ‘rape’ will be used in this chapter to include the New
South Wales offence.
Rape law has been the subject of ongoing law reform, with reforms in all the
jurisdictions, and comprehensive reforms in Victoria.
From 2015 onwards, in Victoria rape is defined in s 38 as follows:
(1) A person (A) commits rape if —
(a) A intentionally sexually penetrates another person (B); and
(b) B does not consent to the penetration; and
(c) A does not reasonably believe that B consents to the penetration.
[page 139]
In addition, Victoria has introduced an offence of compelling sexual
penetration: s 39. Victoria has also created a ‘sexual assault’ offence (s 40),
which is similar to the old offence of indecent assault (but should not be
confused with the New South Wales offence of ‘sexual assault’).
Criminal elements for Victoria
The actus reus of rape is sexual penetration without the consent of V. The mens rea requires that
D intentionally sexually penetrated V without reasonable belief that V consented.
Student tip
In all the jurisdictions there has been a great deal of ongoing development in the area of rape
law reform. Students should ensure that the cases and legislation that they are referring to are
current.
Continuing act
8.4 Sexual intercourse is a continuing act. Thus, if V withdraws consent at
any time, but D does not stop, then D commits non-consensual sexual
intercourse: s 61H(1)(d) (NSW); ss 37C(d)–(f) and 34C(l) (Vic); s 48(1)(b)
(SA).
ABSENCE OF CONSENT
8.8 The prosecution must prove that the act of sexual intercourse took
place without V’s consent: s 61I (NSW); s 48 (SA); s 38 (Vic).
At common law there has been some factual difficulty in determining what
amounts to consent, with some ambiguity about the scope of the term
‘consent’. It has been defined as ‘free and voluntary engagement’ at common
law: Question of Law (No 1 of 1993) (1993) 59 SASR 214. Consent is usually to
be a question of fact rather than law. The statutory and common law
provisions have tended to focus on cases where consent will be vitiated.
All the States have now introduced statutory definitions of consent that go
beyond common law definitions. Victoria introduced s 34C in 2014, which
amended the former definition of consent under the old s 36. Consent is
defined as ‘free agreement’ (s 34C(1)). Section 36(2) then provides an
inclusive list of circumstances in which a person does not consent to an act.
These include submission due to force or threats of force, and mistaken belief
as to the nature or identity of the act or that the act is for medical purposes. It
is important that this list is inclusive as it does not list circumstances where an
act is induced by fraud. Given the common law authorities in this area, it is
likely that the legislature intended to leave the law in this area unchanged.
Moreover, the words ‘but are not limited to’ are an invitation to the judiciary
to expand the range of circumstances in which V may be found not to have
‘freely agreed’.
New South Wales and South Australia have also defined consent as where a
person ‘freely and voluntarily agrees to the sexual intercourse’: s 61HA(2)
(NSW); s 46(2) (SA). In addition, New South Wales and South Australia have
introduced a statutory formulation of negation of consent: s 61H(4)–(6)
(NSW); s 46(3) (SA). Statutory formulations in each jurisdiction that go
beyond approaches to common law will be considered separately below.
The emphasis of legislation in this area is on consent as an expression of
sexual autonomy. Section 37A(a) (Vic) states that the purpose of the statute in
this area is ‘to uphold the fundamental right of every person to make decisions
about his or her sexual behaviour and to choose not to engage in sexual
activity’.
Without consent
8.9 The operative words are ‘without consent’, rather than ‘against the
wishes of V’: s 61I (NSW); s 48 (SA); s 38(2) (Vic). Thus, if D sexually
penetrates V while V is sleeping, D commits the actus reus for the offence: s
61HA(4)(b) (NSW); s 46(3)(c)(SA); s 34C (d) (Vic);.
Vitiated consent
8.10 The courts have tended to focus on situations where V’s consent may
be vitiated, ie, invalid or having no effect. All the jurisdictions have a non-
exhaustive list of situations where consent will be vitiated: s 61HA(4)–(6)
(NSW); s 46(3) (SA); s 34C (Vic).
[page 143]
In addition, common law situations of vitiation of consent continue to
apply in New South Wales and Victoria: s 61HA(8) (NSW); s 34C(2) (Vic).
For example, this would permit the common law principle that V does not
consent where V does not know the nature and quality of the act in New
South Wales; or where V’s consent was induced by fraud in Victoria.
In all jurisdictions, consent due to mistake or consent obtained by threats
may result in vitiation of consent. Many of the legislative provisions in this
area were introduced in response to perceived injustice in common law
decisions.
Mistake
8.11 At common law, where V consented due to a mistake, vitiation of
consent was limited to situations where V was mistaken as to the identity of D
or the nature of the act.
Identity of D
8.12 Where V consents to sexual intercourse with D due to a mistake as to
D’s identity, then V is taken not to consent: s 61HA(5)(a) (NSW); s 46(3)(g)
(SA); s 34C(h) (Vic); R v Gallienne [1964] NSWR 919.
The High Court had held that mistakes as to the identity of D are limited to
the physical identity of D, rather than his or her social status: R v
Papadimitropoulos (1957) 98 CLR 249; [1958] ALR 21. In that case, V, a
young migrant woman, was duped by D into believing they were married.
Due to this mistaken belief, V had sexual intercourse with D. The High Court
held that this was not a fundamental mistake, but a mistake as to social
identity: D’s status as husband. Thus, it was held that V had consented to the
physical act with the D.
The common law and statutory provisions would cover the case of
Gallienne, where V was in bed, and believed that D, who climbed into the bed
in the dark, was her husband, leading her to consent to sexual intercourse. It
was held that her consent was vitiated, as this was a mistake as to identity of a
very basic type.
In New South Wales, Papadimitropoulos has been overturned by statute.
V’s consent to sexual intercourse, due to V’s mistaken belief that V and D are
married, will vitiate V’s consent under s 61HA(5)(b) (NSW). In Victoria, the
list of defined consent-negating circumstances in s 34(2) does not include V
having a mistaken belief that V is married to D. However, this situation would
be covered by the offence of procuring sexual penetration by fraud, if D
fraudulently misrepresented the situation to V: s 57(2) (Vic).
[page 145]
If A holds V at gunpoint demanding that V have sexual intercourse with B, B could not succeed
in a defence of consent to a charge of sexual intercourse without consent.
On the appellant’s account, he knowing of the complainant’s fear of others in the prison, took
advantage of that fear to secure the complaint’s consent to sexual intercourse with him. The jury
should, in my view, have been given a three stranded direction in relation to this evidence.
Firstly, they should have been directed that the offence was committed if the Crown had proved,
to the requisite standard, that the complainant did not consent to sexual intercourse …
Secondly, they should have been directed that consent is not consent unless it is freely and
voluntarily given. Thirdly, they should have been directed that, if the complainant, to the
knowledge of the appellant, submitted to sexual intercourse with the appellant as the result of
threats or terror, even if those threats or terror emanated from persons other than the appellant,
then the complainant was to be regarded as not consenting to the sexual intercourse: Clarke at
10–12.
Age of consent
8.17 There are a series of statutory provisions protecting young persons in
relation to sexual offences. At common law, a female under the age of 10 was
presumed to be incapable of consenting to sexual intercourse, so any sexual
interaction with her, even with her consent, was rape. All jurisdictions have
introduced statutory legislation to the same effect. In New South Wales, a
child under the age of 10 is presumed incapable of consenting to sexual
intercourse: s 66A (NSW). In South Australia the age is 14 and in Victoria the
age is 12: s 49 (SA); s 45 (Vic).
Sexual intercourse with people under the age of 16 has also been
criminalised in New South Wales and Victoria: s 66C (NSW); s 45 (Vic). In
those States, consent is no defence in respect of offences committed upon
persons under the age of 16 years. However, in Victoria, provided there was
consent and V was aged 12 or over, if D can establish on the balance of
probabilities that D honestly believed on reasonable grounds that V was older
than 16, then D will be acquitted: s 45(4) (Vic).
In New South Wales, D can rely on the defence of honest and reasonable
mistake of fact concerning the age V for a s 66C(3) offence. D would have to
raise the defence by satisfying the evidential burden that V was aged 14 years
or over and that D honestly and reasonably believed that V was 16 or older,
and the prosecution would then have to negate the defence beyond a
reasonable doubt: CTM v R [2008] HCA 25.
In Victoria, where the child consents and is aged between 10 and 16 years,
it is a defence that D is not more than two years older than V and V
consented: s 45(4)(b) (Vic). This has the advantage of allowing consensual
sexual activity between young adolescents.
In South Australia the age of consent is 17: s 49 (SA). Where V was 16 years
or older there are two defences to a charge under s 49:
[page 146]
1. D was under the age of 17 at the time of the offence; or
2. D honestly believed on reasonable grounds that V was 17 or older.
Until 2003, the age of consent for homosexual intercourse between males
was 18 in New South Wales. All special sections relating to the criminalisation
and different treatment of homosexual sexual relations have now been
abolished in New South Wales.
Miscellaneous
8.19 Other situations where V’s consent may be vitiated include the
following:
◆ where consent is given due to a state of intoxication, such that the
person is incapable of freely agreeing: s 61HA(6)(a) (NSW); s 46(3)
(d) (SA); s 34C(e) (Vic);
◆ where the complainant has an intellectual disability or cognitive
impairment: ss 61HA(4)(a) and 61H(1A) (NSW); s 46(3)(e) (SA); ss
50–52 (Vic).
In these situations, juries are to consider whether or not V was capable of
giving consent.
8.20 New South Wales In addition to the common law approaches to
consent detailed above, which are broadly mirrored in s 61HA(4) and (5)
where consent is negated, New South Wales has introduced categories where
consent may be negated in s 61HA(6). The grounds on which it may be
established that a person does not consent to sexual intercourse include:
(a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or
(b) if the person has sexual intercourse because of intimidatory or coercive conduct, or other
threat, that does not involve the threat of force, or
(c) if the person has sexual intercourse because of the abuse of a position of authority or trust.
Paragraphs (b) and (c) would cover a situation where a manager threatens
V’s job if V does not have sex with the manager (or someone else).
8.21 Each State has also passed legislation clarifying the instructions a trial
judge can give a jury in relation to sexual offence trials: Criminal Procedure
Act 1986 (NSW) ss 294, 294AA; Evidence Act 1995 (NSW) ss 165A–165B;
Evidence Act 1929 (SA) ss 34L–34N; Jury Directions Act 2015 (Vic) Pt 5.
8.22 While much of rape legislation historically was guided and shaped by
the fear of false allegation of rape, there is no evidence to support the myth
that rape complaints are disproportionately false. In addition, it has been
feared that reforms such as those in New South Wales, South Australia and
Victoria will lead to large numbers of innocent young men being found guilty
of rape. So far, none of these fears have been realised. Rape continues to be
under-reported, and for the limited number who do report rapes to police,
successful prosecution rates remain low.
MENS REA
8.23 In New South Wales and South Australia, the prosecution must prove
that D had sexual intercourse knowing, or recklessly indifferent to, the fact
that the V did not consent to that sexual intercourse. In addition, in New
South Wales, the prosecution
[page 148]
must prove that D had no reasonable grounds to believe that V consented. In
Victoria, the prosecution must prove that D did not reasonably believe that V
consented.
Elements
The basic mens rea for the offence of rape is where D:
• intentionally engages in non-consensual sexual intercourse with V: s 61HA(3)(a) (NSW); s
48(1) (SA); or
• is reckless as to whether V consents to sexual intercourse: s 61HA(3)(b) (NSW); s 48(1) (SA); or
• has no reasonable grounds for believing that V consents to the sexual intercourse: s 61
HA(3)(c) (NSW), s 38(1)(c) (Vic).
Each jurisdiction has specific ways of defining the particular mens rea
issues. The law for New South Wales and South Australia will be considered
first (see 8.24), and then the mens rea for Victoria, introduced in 2015, will be
outlined (see 8.30).
[page 149]
In South Australia, reforms were introduced in 2008 to define reckless
indifference. Section 47 defines reckless indifference to non-consent where D:
(a) is aware of the possibility that the other person might not be consenting to the act, or has
withdrawn consent to the act, but decides to proceed regardless of that possibility; or
(b) is aware of the possibility that the other person might not be consenting to the act, or has
withdrawn consent to the act, but fails to take reasonable steps to ascertain whether the other
person does in fact consent, or has in fact withdrawn consent, to the act before deciding to
proceed; or
(c) does not give any thought as to whether or not the other person is consenting to the act, or
has withdrawn consent to the act before deciding to proceed.
Non-advertent recklessness
8.28 South Australia has also explicitly introduced what has been termed
‘non-advertent recklessness’ — where D fails to give any thought to whether
the person may or may not be consenting. Criminal law theorists are split as
to whether non-advertence can be characterised as:
◆ an objective standard, ie, D should have considered the issue of
consent; or
◆ a subjective standard, ie, D’s failure to consider consent is a culpable
state of mind reflecting D’s practical indifference to V.
This idea of non-advertent recklessness was developed in New South Wales
prior to the most recent reforms, and was considered by the New South Wales
Court of Criminal Appeal in R v Kitchener (1993) 29 NSWLR 696. The issue
was whether recklessness was only actual advertence to the possibility of non-
consent, or whether the concept could be extended to a failure to advert at all
to the possibility of non-consent. The Court held that D could be reckless if D
failed to advert at all to the possibility of non-consent:
To criminalise conscious advertence to the possibility of non-consent, but to excuse the reckless
failure of the accused to give a moment’s thought to that possibility, is self-evidently
unacceptable. In the hierarchy of wrongdoing, such total indifference to the consent of a person
to have sexual intercourse is plainly reckless, at least in our society today: at 698 per Kirby P.
[page 150]
Thus, D will be reckless ‘not only where the accused adverts to the possibility
of consent, but ignores it; but also where the accused is so bent on
gratification and indifferent to the rights of the victim as to ignore completely
the requirement of consent’: Kitchener at 698 per Kirby P. See also R v Banditt
[2005] HCA 80.
It appears likely that the standard of recklessness in New South Wales could
include not only advertence, but also non-advertence under the legislative
reforms in that State: s 61HA(3)(b). However, given paragraphs 61HA (3)(c)
and (d), this non-advertent recklessness is unlikely to receive much judicial
development in New South Wales.
Mistaken belief in consent
8.29 Historically, at common law, if D honestly believed V was consenting,
then D would lack mens rea for rape, even if this belief was unreasonable: DPP
v Morgan [1976] AC 182. In that case, the four Ds appealed against
convictions for rape, and aiding and abetting rape. Morgan invited the three
co-defendants to have sex with his wife and told them she was ‘kinky’, and if
she struggled, it was to get ‘turned on’. The House of Lords held that where D
honestly believes V is consenting, even if D’s belief is unreasonable, mens rea
will not be established. The reasonableness or otherwise of the belief will be a
factual matter for the jury in determining whether D actually had that belief.
Thus in DPP v Morgan, the jury did not accept that the three co-defendants
actually believed V was consenting. They were thus found guilty of rape.
The decision in DPP v Morgan was affirmed in R v Saragozza [1984] VR
187:
Once it is accepted that it is an element of the crime of rape that the accused either was aware
that the woman was not consenting, or else realised that she might not be and determined to
have sexual intercourse whether she was consenting or not, the conclusion is inescapable that a
man who believes that the woman is consenting cannot be guilty of the offence; for the existence
of this belief is inconsistent with the presence of the mental element of the crime. Logic then
insists that the reasonableness of the belief bears only on whether the accused in fact held it: at
193 per Starke, Kaye and Brooking JJ.
New South Wales and South Australia have now engaged with this doctrine in
various ways, and require D to point to reasonable grounds for his or her
belief in consent. It is submitted that this approach is preferable. Many of the
judgments appear to be based on the idea that it is extremely difficult to
ascertain whether or not a sexual partner is consenting, while in reality it is
usually very apparent if someone is consenting or not.
In South Australia, D will be recklessly indifferent if he or she is aware of
the possibility of non-consent and ‘fails to take reasonable steps to ascertain
whether the other person does in fact consent’: s 47(b). In R v Higgs (2011)
111 SASR 42, David J and Doyle CJ stated in obiter:
If it has been proved that a defendant is aware of the possibility that the other person might not
be consenting and then takes steps in order to find out whether in fact the other person was
consenting or not, then there is an objective test imposed as to whether those steps which that
person did take were reasonable. That is to be contrasted to s 47(a) where the person who was
aware of the possibility that the other person might not be consenting takes no steps but
proceeds regardless: at 51.
Victoria
8.30 In Victoria, the prosecution must prove intentional sexual
penetration: s 38C(a). It is difficult to think of a situation where the
prosecution would have problems with establishing intentional sexual
penetration. An example might be sexual penetration during sleepwalking,
but this would then be a case of involuntariness.
8.31 The prosecution must also prove that D did not reasonably believe
that V consented to the penetration: s 38C(c). This is the primary mens rea
element in Victoria. Section 38C(c) introduces an objective fault element into
rape which is similar to s 61HA(3)(c) (NSW). The difference is that in New
South Wales, the prosecution can also argue recklessness or intentional sexual
intercourse without consent, whereas in Victoria this is the only fault element
with respect to absence of consent. The Victorian offence requires ‘no
reasonable belief ’, which is a combination of an objective standard of
‘reasonable’ and a subjective state of mind of ‘belief ’.
Section 37G (Vic) provides that reasonableness of belief in consent
‘depends on the circumstances’. Section 37G(2) augments this by stating that
‘the circumstances include any steps that the person has taken to find out
whether the other person consents’. This reiterates the approach of Victoria of
requiring communicative consent.
AGGRAVATED RAPE
8.32 Legislation for aggravated rape exists in each jurisdiction.
INDECENT ASSAULT
8.33 New South Wales and South Australia have retained the common law
offences of indecent assault (s 61L (NSW); s 56 (SA)) and act of indecency (s
61N (NSW); s 58 (SA)). Victoria has created an equivalent statutory offence
(confusingly) called sexual assault: s 40 (Vic).
The common law offence of indecent assault required an assault
accompanied by indecency. There is no need for separate acts of assault and
indecency. Any assault which in itself could constitute an indecent act will
suffice: Fitzgerald v Kennard (1995) 38 NSWLR 184. Examples could include
the laying on of hands without the consent or against the will of the victim.
The indecent assault must have some sexual connotation which may be
derived by the part of D’s body used to do the touching or from the body area
where V has been touched. For example, the touching of a girl’s breast or
genitalia would be sufficient. Indecency is that which offends against currently
accepted
[page 152]
standards of decency: Attorney-General v Huber (1971) 2 SASR 142. An
offence of indecent assault:
requires an element of sexual lewdness — often referred to as ‘a sexual connotation’ — whereas
an offence of indecent language may be satisfied by language that does not have that sexual
connotation’: R v C, M [2014] SASCFC 116 at [19].
The mens rea for the offence is either intention or recklessness. Thus
intentionally touching someone in an indecent way either knowing or
recognising the possibility that they were not consenting would be sufficient
mens rea: Fitzgerald v Kennard. In addition, non-advertant recklessness would
apply. So if D did not turn his or her mind to the question of whether or not V
consented, then this would be sufficient mens rea.
The Victorian offence of ‘sexual assault’ in s 40(1) simplifies and clarifies
the common law offence of indecent assault:
A person (A) commits an offence if —
(a) A intentionally touches another person (B); and
(b) the touching is sexual; and
(c) B does not consent to the touching; and
(d) A does not reasonably believe that B consents to the touching.
[page 153]
Chapter 9
Property Offences: New South
Wales
Objectives
After reading this chapter you should be familiar with the following:
▶ the common law offence of larceny
▶ property capable of being stolen
▶ intent to deprive permanently
▶ conditional return
▶ fungibles
▶ bona fide claim of right
▶ larceny as a bailee
▶ the offence of fraud
▶ the offence of robbery
▶ the offence of burglary
INTRODUCTION
9.1 New South Wales is the sole State that has retained the common law
relating to offences against property; however, these principles have been
substantially added to and modified under statute. This chapter considers the
offences of larceny, fraud, robbery and burglary.
LARCENY
9.2 Larceny is the basic property offence at common law and is colloquially
known as ‘theft’ or ‘stealing’. The offence developed in the Middle Ages and
was a simple crime designed to meet the needs of an agricultural society.
Essential to the offence was a trespass against possession. That is, the taking of
property without the consent of the person in possession. Over time, new
offences developed at common law to cover more complicated situations, in
particular, cheats and con artists who tricked owners into handing over
property with consent. Additionally, statutory reforms have been introduced
to extend the ambit of property offences and fill perceived gaps.
Consequently, there is a complicated range of offences that have developed at
common law.
[page 154]
The offence of simple larceny exists at common law and under statute: s
117 (NSW). The New South Wales provisions do not contain a definition of
larceny, thus it is necessary to rely upon the common law definition. The
definition of larceny was found in the now repealed s 1(1) of the Larceny Act
1916 (UK), and was approved by Wilson and Dawson JJ in Ilich v R (1987)
162 CLR 110; [1987] HCA 1. It stated:
A person steals who, without the consent of the owner, fraudulently and without a claim of right
made in good faith, takes and carries away anything capable of being stolen with intent, at the
time of such taking, permanently to deprive the owner thereof.
Elements
The actus reus of the offence of larceny is that D:
• took and carried away;
• property capable of being stolen;
• which belonged to another; and
• without the consent of the person in possession.
The mens rea of the offence of larceny is that, at the time of taking, D acted:
• with the intention of permanently depriving the person in possession;
• without a claim of right; and
• fraudulently.
The accused must have mens rea at the time of the actus reus.
Burden of proof
In order to establish the offence of larceny, the prosecution must prove all elements of the
offence beyond a reasonable doubt: Woolmington v DPP [1935] AC 462.
Student tip
The elements of larceny are based on a long history of common law and at times have complex
meanings and applications. Take the time to learn the meanings of the terms and their
implications in decided cases.
Possession
9.6 In the ordinary use of the word ‘possession’, one has in one’s possession
whatever is, to one’s knowledge, physically in one’s custody or under one’s
physical control: DPP v Brooks [1974] AC 862; (1974) 59 Cr App R 185 at 186.
Possession has proved to be a very flexible (and somewhat vexed) concept
in the criminal law. It is possible to divide possession into actual possession
and constructive possession.
9.7 Actual possession Actual possession is where the person has present
physical custody of the property or has it in such a place that the person alone
has the right or power to place his or her hands upon it and take custody of it:
Moors v Burke (1919) 26 CLR 265; [1919] HCA 32.
Thus, for the purposes of larceny, a person has actual possession of
property if:
◆ the person intends to possess the property; and
◆ the person had some degree of physical control over the property at
some stage.
There is no requirement that the person in possession is aware of the
existence of the property. Thus, it has been held that a golf club possesses the
golf balls lost by members in its grounds, even if it does not know how many
there are. The golf club has some degree of physical control over the balls by
its intention to exclude others from interfering with the land. Thus, the golf
balls could be stolen from the club: Hibbert v McKiernan [1948] 2 KB 142:
… every householder or occupier of land means or intends to exclude thieves and wrongdoers
from the property occupied by him, and this confers on him a special property in goods found
on his land sufficient to support an indictment if the goods are taken therefrom, not under a
claim of right, but with a felonious intent: at 148.
Control
9.9 Property can be stolen from someone who is merely in control of the
property, rather than having possession of it. This is so even in cases where
the person in control is not aware of the existence of the property: see Hibbert
above. A person is in control of property where he or she has ‘manual
custody’ of it, or has it ‘where he alone has the exclusive right or power to
place his hands on it, and so have manual custody when he wishes’: Moors v
Burke (1919) 26 CLR 265 at 274. For example, a person has control over
property when it is on his or her own person.
For the purposes of larceny, control not amounting to possession may be
sufficient. For example, in Anic, Stylian and Suleyman v R (1993) 68 A Crim R
313, the Ds were convicted at first instance of housebreaking with intent to
steal and rob when they broke into a house in the mistaken belief that it
contained cannabis. On appeal, the Ds argued it was not possible to steal
property from a person who had it unlawfully in his or her possession. Bollen
J disagreed and held that a person can be convicted of stealing illicit drugs
from another person.
Ownership
9.10 Property can be stolen from an owner who is not in possession or
control of property. This is demonstrated in larceny by ‘finding’ cases (see
9.36): R v Flood (1869) 8 SCR (NSW) 299.
Additionally, an owner of property can be guilty of larceny if the owner
takes the property from the person who is lawfully in possession of it: Rose v
Matt [1951] 1 KB 810.
Without the consent of the person in possession
9.11 The taking of the property must amount to a trespass in order for
larceny to be committed: Ellis v Lawson (1987) 33 A Crim R 69. That is, the
property must have been
[page 158]
taken without the consent of the person in possession: R v Croton (1967) 117
CLR 326; [1968] HCA 48.
A trespass is defined as unprivileged interference with a possession of
another. A trespassory taking will occur when property is taken against the
will of the person in possession: Davies.
Section 94AA overrides the requirement of a trespassory taking in relation
to stolen goods.
The High Court has not considered what the position would be where an
account existed and was current, but had insufficient funds to cover the
withdrawal.
In R v Turvey [1946] 2 All ER 60, D planned to steal property from his
employer. D’s co-conspirator told D’s boss, who advised the co-conspirator to
go along with the plot and hand the property over to D to entrap him. It was
held that D was not guilty of larceny:
He did not carry away the goods against the will of the owner, but because the owner was willing
that he should have the goods and gave them to him: at 62.
Threats
9.13 Consent due to threats or intimidation may be vitiated: R v Lovell
(1881) 8 QBD 185.
Bray CJ stated (at 398) that, where something more valuable than intended is
handed over by the owner, and D takes the property in good faith and in
ignorance, D should not be guilty upon formation of a subsequent guilty
intention.
Bray CJ also criticised Middleton, arguing that the mistake was not induced
by the fraud of D, and hence did not amount to larceny by trick. Even if the
clerk did not intend to give D what did not belong to him, he intended to do
the act he did; thus, there was consent on the part of the clerk, and no element
of fraud to vitiate the consent. Thus, D should not be charged with larceny.
In Potisk, a bank teller applied the wrong exchange rate to D’s travellers’
cheques. D took the extra money, but did not realise the mistake until he had
left the bank. It was held that D was not guilty of larceny.
Bray CJ argued that the law should be rationalised in this area, drawing a
distinction between:
… dishonesty of the kind in question here, where the accused merely takes advantage of
someone else’s self-induced mistake, and the open and forcible violation of the rights of property
involved in the typical case of larceny. Legal fictions and hair-splitting tend to bring the law into
disrepute, especially in the criminal field: Potisk at 403.
Conditional return
9.22 Difficulties arise where D takes the goods of another with the
intention of returning them at a later time, subject to specific conditions. For
example, D takes property on a Monday to pawn it, with the intention of
redeeming and returning the property on Thursday when D gets paid.
Historically, under common law, D would be entitled to an acquittal where D
had a reasonable chance of fulfilling the intention to return the property: R v
Medland (1851) 5 Cox CC 292; R v Phetheon (1840) Eng R 879. If, however, D
had taken the property with the intention of returning it when D won the
lottery, D would have the necessary mens rea at common law, as D would not
have a reasonable chance of winning.
In New South Wales, s 118 has altered the common law position:
Where, on the trial of a person for larceny, it appears that the accused appropriated the property
in question to the accused’s own use, or for the accused’s own benefit, or that of
[page 163]
another, but intended eventually to restore the same, or in the case of money to return an
equivalent amount, such person shall not by reason only thereof be entitled to acquittal.
Thus, where D takes the property, an intention to return the property is not a
defence to the charge of larceny if D has appropriated the property for D’s
own use or benefit, or for another’s use or benefit. This is despite the
reasonableness of D’s intention to reclaim the property and return it to its
owner: Foster. Consequently, the focus is on exercising ownership, rather than
the reasonableness of the intention to return.
In Foster, the High Court read s 118 narrowly, as dealing ‘with the case
where an accused has appropriated the property, and not of an accused who
has only assumed possession of it’: at 122. Barwick CJ stated:
Larceny … being undefined, is as under the common law. It involved an intention on the part of
[D] to assume ownership of the gun, to deprive [V] permanently of it, to deprive him of the
property in it. I use these three expressions, which are several ways of establishing the same
essential element of larceny, namely, the intention to appropriate the goods to himself. To intend
to deprive the true owner permanently of the possession of the goods is one form of the requisite
intention. An intention to deprive him of his property in the goods is another, that is, an
intention to appropriate the goods as distinct from merely to assume possession of them …
Thus, if the intention is to deprive the true owner of possession for a limited time, larceny is not
made out. But if the intention of the taker is to exercise ownership of the goods, to deal with
them as his own, an intention later to restore the property in the goods will not prevent the
original taking being larcenous: at 121.
Altered condition
9.23 Where D intends to return the property to the owner, but in a
substantially altered condition or with reduced value, larceny can be charged:
R v Duru (1973) 58 Cr App R 151.
In Duru, the Ds were charged with offences of obtaining cheques from a
local council by deception; a component of the offence was the intention
permanently to deprive the owner of the property. The Ds argued that they
did not have this intention, as when the cheques were cashed they would be
returned to the council, via the council bank. Their convictions were upheld
as the council was to be deprived of the cheques in substance. Similarly, in
Parsons v R (1999) 195 CLR 619; [1999] HCA 1, the High Court held that D
had intended permanently to deprive V of a cheque because once cheques
were cashed, they were ‘spent and deprived of those characteristics which led
or significantly contributed to their classification as property’: at [278].
In R v Bailey [1924] QWN 38, D had taken a car and used all the petrol. It
was held that the change in the property must be substantial, and not that
which would occur by
[page 164]
normal use of the property. Thus, D could not be convicted of stealing the car,
but only the petrol. It is likely that this would now also be covered by s 118, as
driving a car could be regarded as exercising ownership.
Fungibles
9.25 The distinction between fungibles and non-interchangeable property
has affected the position of D in relation to mens rea. Fungibles are objects
that are interchangeable, eg, money, eggs, sugar, etc. In everyday life, we treat
these goods as interchangeable. Thus, if someone borrows a cup of sugar or
some money, we would not expect the same sugar or particular notes and
coins back. We are happy to accept the equivalent in value in return.
However, the law does not treat fungibles in the same way. The law sees the
particular notes, coins, sugar, etc as unique. The focus is on the specific object,
rather than any object of equivalence.
This has implications for the mens rea and actus reus of common law
larceny offences.
In relation to mens rea, if D borrows $20 from V, with the intention of
repaying V later in the week the equivalent of $20 in different notes, the law
would characterise this as an intention permanently to deprive V of that
specific $20 note.
The distinction has little to do with the subjective blameworthiness of D:
◆ Where D takes money from a till, and intends to return that money
the next day, and has a reasonable expectation of doing so, D can be
charged with larceny: R v Cockburn [1968] 1 All ER 466; (1968) 132
JP 166. This is because D intends to permanently deprive the owner
of those particular notes, intending only to return money of equal
value.
◆ If D takes an antique chair, with the intention of returning the chair
the next day, then the focus in New South Wales would be on
whether or not D ‘appropriated’ the chair: Foster, applying s 118.
Student tip
Where D borrows money from V, in most cases D will intend permanently to deprive V of the
money, because D will usually have no intention of returning exactly the same notes to V.
9.26 The approach to fungibles also affects the actus reus of property
offences, in particular the offences of larceny by a trick and larceny by a bailee
(see 9.40). D can be found responsible for larceny by a trick or larceny by a
bailee only in cases where V
[page 165]
intended to hand over mere physical possession of the property. Where V
intended to pass ownership in the property, D cannot be guilty of these
common law offences, but may be guilty of fraud. Where V has handed over a
fungible, it is highly likely that V has intended to hand over physical
possession and ownership. For example, V may ‘loan’ D $50 due to some
fraud by D. V will expect to be repaid, but not with the same note. Thus, the
law would characterise this as an intention by V to hand over the ownership
of that particular $50 note. Consequently, D could not be guilty of larceny by
a trick, as physical possession and ownership in the $50 note has passed.
Without a claim of right made in good faith
9.27 Belief in a claim of legal right to property is inconsistent with larceny.
However, a claim of moral right to the property will be insufficient to negative
a charge of larceny: Harris v Harrison [1963] Crim LR 497. In R v Fuge [2001]
NSWCCA 208; (2001) 123 A Crim R 310, Wood CJ clearly outlined the
authorities in relation to claim of right.
[page 167]
The approach in Feely was applied in the New South Wales case of R v
Glenister [1980] 2 NSWLR 597; (1980) 3 A Crim R 210, and by the High
Court in Peters v R (1998) 192 CLR 493; [1998] HCA 7 and MacLeod v R
(2003) 197 ALR 333; 140 A Crim R 343.
Peters concerned charges of conspiracy to defraud the Commonwealth.
Toohey and Gaudron JJ said that, ordinarily, fraud involves
… the intentional creation of a situation in which one person deprives another of money or
property or puts the money or property of that other person at risk or prejudicially affects that
person in relation to some lawful right, interest, opportunity or advantage, knowing that he or
she has no right to deprive that person of that money or property or to prejudice his or her
interests: at 508, emphasis added.
Their Honours stated that the term ‘dishonestly’ in a statutory offence may be
used in its ordinary sense or in some special way. The line of authorities
concerning the statutory offence of obtaining property by deception provides
an illustration of the latter. Toohey and Gaudron JJ stated:
The proper course is for the trial judge to identify the knowledge, belief or intent which is said to
render that act dishonest and to instruct the jury to decide whether the accused had that
knowledge, belief or intent and, if so, to determine whether, on that account, the act was
dishonest. Necessarily, the test to be applied in deciding whether the act done is properly
characterised as dishonest will differ depending on whether the question is whether it was
dishonest according to ordinary notions or dishonest in some special sense. If the question is
whether the act was dishonest according to ordinary notions, it is sufficient that the jury be
instructed that that is to be decided by the standards of ordinary, decent, people. However, if
‘dishonest’ is used in some special sense in legislation creating an offence, it will ordinarily be
necessary for the jury to be told what is or, perhaps, more usually, what is not meant by that
word. Certainly, it will be necessary for the jury to be instructed as to that meaning if there is an
issue whether the act in question is properly characterised as dishonest: at 504.
Larceny by finding
9.36 Larceny by finding occurs when V loses property, and D finds it and
dishonestly appropriates it. Larceny by finding has the same requirements as
simple larceny, but there is an emphasis on fraudulence in the mens rea
requirements.
Actus reus
9.37 The actus reus of larceny by finding is that D:
◆ took and carried away (as for simple larceny);
◆ property capable of being stolen (as for simple larceny);
◆ which belonged to another:
[page 169]
◆ property which is found cannot be stolen unless, at the time, the
property was owned, possessed or under the physical control of
another. Abandonment may be an issue in ‘larceny by finding’
cases;
◆ if goods have been abandoned, then those goods cannot be the
subject of larceny. Abandonment is narrowly defined as the
intentional giving up of ownership and possession: Hibbert v
McKiernan [1948] 2 KB 142;
◆ abandonment ‘will not lightly be inferred’: Donoghue v Coombe
(1987) 45 SASR 330;
◆ without the consent of the owner:
◆ if D picks up property with the intention of finding the owner, then
the owner’s consent is assumed and the taking is not trespassory: R
v MacDonald [1983] 1 NSWLR 729. If D picks up property without
any intention with regard to the owner, or with the intention of
keeping the property, then the taking is without the consent of the
owner: MacDonald. This is consistent with a commonsense
approach to property loss. If we lose property, we tend to retrace
our steps in an attempt to find it. Thus, we would only consent to
another picking up our lost property if they had the specific
intention of finding us.
Mens rea
9.38 The mens rea of larceny by finding is that D:
◆ has the intention to permanently deprive (see simple larceny);
◆ without a claim of right (see simple larceny);
◆ fraudulently.
The requirement that D act fraudulently is emphasised in ‘larceny by
finding’ cases. If D honestly believes that the property has been abandoned, or
that the owner cannot be found, then D will not be guilty of larceny by finding
because D has not acted fraudulently.
Where D finds and appropriates lost property, D’s state of mind at the time
of finding is the primary issue in determining whether D has committed
larceny or not. If D finds property which is lost or reasonably supposed by D
to be lost, and D has the intention of keeping the property at the time of the
finding in the belief that the owner cannot be found, then D cannot be guilty
of larceny: R v Thurbon (1849) 1 Den 387.
In Thurbon, D found a banknote on the highway, and believed that there
was no possibility of finding the owner. D took the note with the intention of
appropriating it for his own use. The following day D was informed who the
owner was, but decided to keep the note anyway. It was held that D could not
be guilty of larceny. At the time of taking the property, D had acted innocently
as he had believed that the owner could not be found. When D learned the
identity of the owner, D was already in lawful possession of the note, and thus
could not commit larceny at that point of time.
In MacDonald, D found a camera hanging on a paling fence. He asked a
man next door if the camera was his; upon receiving a negative reply, D took
the camera and kept it. It was held that D’s failure to make any inquiries, or
contact the owner of the house or the police, demonstrated a fraudulent
intention to keep the property as it showed D’s belief that the owner could be
found. He acted in a way that showed his dishonesty. The New South Wales
Court of Criminal Appeal stated: ‘regard may be had not only to what the
[page 170]
finder does in relation to the goods but also what he does not do that might
reasonably be regarded as consistent with the actions of an honest man
finding goods’: at 732. If D finds property which is lost or reasonably
supposed by D to be lost, with the intention of returning the property to the
owner, D will not be guilty of larceny if D subsequently fraudulently
appropriates the property: R v Matthews (1873) 12 Cox CC 489.
Actus reus and mens rea at the same time
9.39 There is a general requirement that D has a guilty mind at the time of
committing the external act. However, this requirement can be overridden in
larceny by applying the Riley principle, outlined at 9.35.
The Riley principle is particularly important in cases of larceny by finding.
Thus, if D finds a camera and does not form any intention with regard to the
camera immediately, but subsequently determines to keep it or use it (s 118),
this will ground a charge of larceny, as the original taking was trespassory:
Minigall v McCammon [1970] SASR 82. However, if D finds a camera, and
intends to return the camera to the owner, but later determines to keep the
camera, D will not be guilty of larceny. This is because the original taking was
not trespassory, because it has been held that an owner would consent to D
retrieving the property with the intention of finding the owner: see
MacDonald.
Where an original taking is not trespassory, a subsequent fraudulent
intention will not ground a charge of larceny. However, in New South Wales
the offence of being unlawfully in possession of property has been created to
cover cases where there was no trespassory taking and D later develops mens
rea: s 527C.
Larceny by a bailee
9.40 Bailment is an exception to the requirement in larceny of
contemporaneous actus reus and mens rea.
Larceny by a bailee is criminalised in New South Wales under s 125:
Whosoever, being a bailee of any property, fraudulently takes, or converts, the same, or any part
thereof, or any property into or for which it has been converted, or exchanged, to his or her own
use, or the use of any person other than the owner thereof, although he or she does not break
bulk, or otherwise determine the bailment, shall be deemed to be guilty of larceny and liable to
be indicted for that offence.
The accused shall be taken to be a bailee within the meaning of this section, although he or she
may not have contracted to restore, or deliver, the specific property received by him or her, or
may only have contracted to restore, or deliver, the property specifically.
Elements
In order to establish larceny by a bailee, the prosecution must prove that:
• D was in possession of the property as a bailee;
• D took or converted the property; and
• D acted fraudulently.
[page 171]
Bailment
9.41 A bailment occurs when:
◆ a specific object is delivered from one person to another;
◆ the object remains the property of the bailor;
◆ the object, or something into which it is converted, should be
returned to the bailor.
The essence of larceny as a bailee is that it is ‘genuine’, ie, D intends to form
a bailment, and forms the guilty mind subsequently. Consequently, if D has
no intention of fulfilling the terms of the bailment at the time of the taking,
then this will not ground a charge of larceny by a bailee. Rather, D could be
charged with fraud.
Examples of where a bailment will exist include situations where goods are:
◆ lent to another for that other’s benefit;
◆ pawned or pledged;
◆ delivered to another who is to keep them or deal with them for the
benefit of the bailor;
◆ leased.
FRAUD
9.46 In 2010, new provisions came into effect with the aim of modernising
and simplifying existing fraud and forgery provisions in the Crimes Act 1900
(NSW). These reforms were aimed at removing obsolete and redundant
provisions, many of which overlapped. They also created offences addressing
identity crime.
The provisions created a new broad and general fraud offence that replaced
many prior offences, including those in ss 178A, 178BA, 179 and 180.
The new offence of fraud under s 192E is:
(1) A person who, by any deception, dishonestly:
(a) obtains property belonging to another, or
(b) obtains any financial advantage or causes any financial disadvantage, is guilty of fraud.
(2) A person’s obtaining of property belonging to another may be dishonest even if the person is
willing to pay for the property.
(3) A person may be convicted of the offence of fraud involving all or any part of a general
deficiency of money or other property even though the deficiency is made up of any number
of particular sums of money or items of other property that were obtained over a period of
time.
(4) A conviction for the offence of fraud is an alternative verdict to a charge for the offence of
larceny, or any offence that includes larceny, and a conviction for the offence of larceny, or
any offence that includes larceny, is an alternative verdict to a charge for the offence of fraud.
Actus reus
Deception
9.47 All forms of fraud in s 192E must be committed by D engaging in
deception. Section 192B(1) defines the actus reus element of deception:
(1) In this Part, deception means any deception, by words or other conduct, as to fact or as to
law, including:
(a) a deception as to the intentions of the person using the deception or any other person, or
(b) conduct by a person that causes a computer, a machine or any electronic device to make
a response that the person is not authorised to cause it to make.
Accordingly, both defendants were found guilty of offences under the now
repealed s 179. This kind of false promise would also be covered under s 192B.
Accordingly, deception under s 192B will include deceptions as to the past,
present and future.
[page 175]
9.49 Conduct without words can amount to deception. For example, in R v
Benli [1998] 2 VR 149, D was a driving instructor who continued to provide
lessons and obtain fees, despite having had his driver’s licence suspended, and
therefore his licence to instruct suspended. He was charged with obtaining
property by deception. It was held that although there was no express
representation that he was a licensed instructor, this was implied by his
conduct.
9.50 Section 192B(1)(b) also extends deception to include machines. This
would cover situations such as that in Kennison v Daire (1986) 64 ALR 17;
[1986] HCA 4, where D used his bankcard without sufficient funds in his
account. The deception was that he had the authority to use the card and was
operating the account in accordance with the terms and conditions of use.
Obtained by deception: causation
9.51 The prosecution must prove that D ‘obtained by deception’, ie, that
the deception caused the handing over or payment of the valuable thing. This
builds on a common law requirement explored in Balcombe v De Simoni
(1972) 126 CLR 576. Thus, if V is aware that D is trying to trick V into giving
D money, but V gives D money anyway out of pity, this will not be a fraud
offence. However, D could be charged with attempted fraud.
The consequences of the fraud
9.52 The prosecution must prove one of three consequences of the fraud:
1. obtaining property from another;
2. obtaining a financial advantage; or
3. causing a financial disadvantage.
9.53 ‘Obtaining’ is now broadly defined under s 192C as ownership,
possession or control for D or another person. This means that the new fraud
offence covers the territory from larceny by trick, where V hands over mere
possession, to situations where D induces V to hand over more than
possession.
9.54 Property is defined in s 4, and s 192C(3) defines property belonging to
a person as where a person has possession, control, a proprietary right or an
interest in the property.
Balcombe v De Simoni is based on the old offence of obtaining by
deception, but would also be covered by s 192E. In Balcombe v De Simoni, D
was a door-to-door book seller. To improve sales, D pretended to be a student
who had been selected to represent Australia overseas on a ‘goodwill’ tour.
There was no misrepresentation as to the quality of the books, or the use to
which the money would be put when paid over. It was held that D had an
intent to defraud, as this required no more than proof of an intent to deprive
another of property by deceit. There was no need to prove that D had
intended to use the money for purposes different from those for which V
understood D would use it. It was also irrelevant that the books would be
delivered. Gibbs J stated:
[page 176]
Therefore, if a beggar obtains money by pretending to be blind, and with the intention that the
person to whom the pretence is made should be induced by that pretence to give him alms, the
offence is committed notwithstanding that the money is used exactly as the person who gave it
intended that it should be used, for the relief of the beggar. Similarly, if a man, by pretending to
hold a certain position, or to possess certain assets, intentionally induces another to lend him
money which he would not otherwise have lent, the former has an intent to defraud,
notwithstanding that he intends to use the money for the very purpose for which he says he
wants to borrow it: at 596.
Mens rea
Intentionally or recklessly deceptive
9.57 Section 192B requires that the deception be intentional or reckless. An
example of reckless deception would be where D thought the cheques against
which D drew ‘might be worthless’. At this stage it is likely that the test of
recklessness will be whether D recognised the possibility that the behaviour is
deceptive: Stokes and Difford (1990) 51 A Crim R 25 at 40.
Dishonesty
9.58 Dishonesty is now defined under s 4B as ‘dishonest according to the
standards of ordinary people and known by the defendant to be dishonest
according to the standards of ordinary people’. This definition imports a
subjective requirement (that D recognises he or she is being dishonest) and an
objective element (the standards of ordinary people). This definition of
dishonesty reflects the English test of dishonesty articulated in Ghosh and
rejects the test propounded by the High Court in Peters (discussed above at
9.32).
9.59 It is likely that the defence of claim of right will continue under s
192E. In relation to the now repealed offences, it was held that where D has a
bona fide belief in a claim
[page 177]
of legal right, this will negative an intention to defraud: R v Kastratovic (1985)
42 SASR 59; 19 A Crim R 28. This is because an intention to defraud:
… connotes the intention to produce a consequence that is in some sense detrimental to a lawful
right, interest, opportunity or advantage of the person to be defrauded, and is an intention
distinct from and additional to the intention to use the forbidden means: at 62–3 per King CJ.
As a consequence:
… an intent to do no more than procure the payment of a debt which is presently due and
payable to the accused, or which the accused believes to be presently due and payable by the
alleged victim, is not an intent to defraud, and is not converted into an intent to defraud by the
employment of dishonest means: at 65 per King CJ.
The issue is whether or not D believed D had a legal right to obtain the
property, not whether there was a belief in a legal right to employ deception to
get it. See also R v Sanders (1991) 57 SASR 102.
Intention to permanently deprive
9.60 If the prohibited consequence of the offence is the first limb, obtaining
property (see 9.52 above), s 192C(2) requires an additional mens rea element
of intention to permanently deprive:
A person does not commit an offence under this Part by obtaining or intending to obtain
property belonging to another unless the person intends to permanently deprive the other of the
property.
This mirrors the common law requirement of mens rea for the offence of
larceny. The meaning of ‘intention to permanently deprive’ is complicated by
s 192C(4):
A person obtaining property belonging to another without meaning the other permanently to
lose the thing itself has, nevertheless, the intention of permanently depriving the other of it if the
person’s intention is to treat the thing as his or her own to dispose of regardless of the other’s
rights. A borrowing or lending of the property may amount to so treating it if, but only if, the
borrowing or lending is for a period and in circumstances making it equivalent to an outright
taking or disposal.
ROBBERY
9.63 The offence of robbery is an aggravated form of larceny, committed
where D steals property from V by the use of force or threats of force: R v
Lapier (1784) 168 ER 263; [1784] Eng R 69. The common law concept of
robbery is imported into the statutory provisions relating to robbery and
related offences (ss 94–98) and is considered below.
Elements
In addition to the elements of larceny, the prosecution must prove:
• the use or threat of violence (actus reus); and
• an intention to extort (mens rea).
Actus reus
9.64 The actus reus for the offence of robbery is the application of force or
threatened application of force against V, the person possessing or in custody
of the property, to
[page 179]
effect the larcenous removal of the property. D must use force or threaten
force, either prior to, or during, the taking.
Use or threat of violence
9.65 D must either apply violence or threaten violence against V, the
person in possession or with custody of the property: R v McNamara [1965]
VR 372.
Applying violence
9.66 Generally, D must have committed at least a common assault (see
Chapter 7) to satisfy this requirement, but committing a common assault
while attempting to take property will not necessarily amount to a robbery.
The violence must have been applied in order to overcome the resistance of V
to the taking away. Accidentally cutting V while trying to cut a string securing
her basket to a cart, in order to steal the basket, will not amount to robbery:
Edwards v Baugh (1843) 152 ER 962. D must have intended to use the
violence to overcome V’s resistance.
Threatening violence
9.67 Any threat of bodily harm, whether express or implied, will be
sufficient if it caused V to hand over the property to D: R v Taplin (1780) 2
East PC 712. This is provided that D acted with the necessary mens rea, ie,
with an intention of inducing the handing over due to the threat.
Threats of harm need not be aimed at V personally: R v Reane (1794) 168
ER 410.
Taking and carrying away
9.68 Robbery is an aggravated offence of larceny, thus the taking required
for robbery is the same as the taking required for larceny: R v Lapier (1784)
168 ER 263; [1784] Eng R 69.
Possession and custody
9.69 It is not necessary for V to own the property. The offence of robbery
can be committed against a victim who has possession or custody of the
property, or where the property is under V’s control. Thus, robbery can be
committed against a nightwatchperson who was custodian of the property
stolen: Smith v Desmond [1965] AC 960. Robbery can also be committed
against a person who was minding the premises, although not an employee,
and who was forced to hand over the keys of the safe and withdraw money: R
v Bellamy (unreported, NSWCCA, 15 February 1993).
Presence
9.70 To amount to robbery, the property taken must have been in V’s
presence or on V’s person at the time the violence was applied or the threat
made:
◆ Property will be on V’s person when the property is in V’s manual
custody.
◆ Property will be in V’s presence when it is within V’s hearing and
sight.
◆ The courts have also recognised constructive presence, where V is
not necessarily within hearing and sight of the property, but the
property is under V’s care and
[page 180]
protection. Smith v Desmond applied this broad conception of
presence. The Vs, a nightwatchperson and another employee at a
bakery, were overpowered, tied up and taken to a room by the Ds. The
Ds then stole money from another room. The House of Lords held
that V1 was constructively present, ie, the goods were ‘in his
immediate and personal care’. The nightwatchperson had the property
under his immediate and personal care.
◆ The relevant time for determining the question of presence is when
V was actually assaulted, rather than when the property was taken:
Smith v Desmond. This principle is logical, as V may be removed
from the presence of the property before the property is taken.
Mens rea
9.71 The mens rea for robbery is specified in Smith v Desmond.
Elements
The prosecution must prove two mens rea requirements for robbery:
• the same mens rea as for larceny; and
• D’s intentional use of violence to extort property.
BURGLARY
9.75 The common law felony of burglary and related crimes has been
provided for under statute: ss 109–113.
Under common law, burglary occurred when D broke and entered into the
dwelling-house of another at night with intent to commit a felony. It was not
required that D actually succeed in committing the intended felony. The basic
elements of the statutory offences of burglary and housebreaking will now be
considered.
Actus reus
Breaking and entering
9.76 Breaking and entering is a requirement under most of the legislation.
To amount to entry for the purposes of the legislation, the entry must be an
‘effective and substantial entry’ by D. Any part of D’s body or equipment
entering the building will be sufficient. This is so whether the entry occurs for
the purpose of committing the intended crime or for the purpose of effecting
entry: R v Welker [1962] VR 244.
What amounts to breaking has been considered under common law:
◆ Opening a door or window, even if it is unlocked, will amount to
breaking: R v Haines (1821) 168 All ER 892.
◆ Where a door or window is open, even if D must widen the opening
to gain entry, this will not amount to breaking, unless D tampers
with some latch, key or fastening device: R v Smith (1827) 168 ER
1232.
◆ D may commit the breaking once he or she has already entered the
premises. For example, D may enter a building through an open
window. However, if D then opens a closed inner door, that will be
a breaking sufficient for the offence: R v King (1978) 19 SASR 118.
◆ The use of trickery or intimidation to gain entry may amount to
constructive breaking: R v Boyle [1954] 2 QB 292. An example
would be if D pretended to be a pizza delivery person.
Dwelling-house
9.77 A large part of the legislation applies only to cases where D enters a
‘dwelling-house’. ‘Dwelling-house’ is defined in s 4(1).
Mens rea
9.78 The mens rea for the majority of offences is the intention to commit
larceny or an assault. It must be shown that D intended to commit the
relevant offence at the time of entry: R v Rodley [1913] 3 KB 468. Mens rea
may be inferred from the surrounding circumstances. For example, the
accused’s unexplained presence in a building may provide strong evidence of
the requisite intention: R v Wood (1911) 7 Cr App R 56.
The defence of legal claim of right continues to operate where the requisite
intention for an offence is intention to steal.
[page 182]
Legal Problem
Zac went to pick up some old clothes that his friend Tyson was planning to give to charity.
Tyson gave Zac a bag of clothes. Neither Tyson nor Zac realised at the time that Tyson had
mistakenly given Zac a bag of clothes, including suits, that were meant to go to the dry cleaner.
When Zac got home, he realised Tyson had made a mistake and thought he would just wait
and see if Tyson noticed. In the meantime, Zac wore one of the suits to a party that night.
Discuss Zac’s criminal liability, if any.
Answer
Introduction
Zac could be charged with larceny under s 117 (NSW). The prosecution would have to prove all
elements of the crime beyond a reasonable doubt: Woolmington v DPP [1935] AC 462. The
elements of larceny are not defined under statute, but in Ilich v R (1987) 162 CLR 110; [1987]
HCA 1, the High Court approved a definition of larceny found in the now repealed s 1(1) of the
Larceny Act 1916 (UK):
A person steals who, without the consent of the owner, fraudulently and without a claim
of right made in good faith, takes and carries away anything capable of being stolen
with intent, at the time of such taking, permanently to deprive the owner thereof.
INTRODUCTION
10.1 In 1968 sweeping reforms were enacted in England to remove the
existing myriad of common law and statutory property offences. In 1973,
Victoria enacted the Crimes (Theft) Act largely based on the English reforms.
South Australia introduced new theft offences in 2002. The South Australian
provisions were incorporated in the body of the Criminal Law Consolidation
Act 1935 as Pt 5: ‘Offences of dishonesty’, and were intended to do away with
the technicalities of the old law of larceny, discussed in R v Dawson and James
(1976) 64 Cr App R 170. While these statutory reforms are less complex than
the common law property offences discussed in Chapter 9, some
complications still arise. Young CJ commented in R v Roffel [1985] VR 511:
The essential reason why things have not worked out as some evidently hoped they would is that
the Act is couched in vague and imprecise language and it is left to the courts to work out some
consistent interpretation … [I]t is important to avoid reasoning from the proposition that A is
plainly a thief according to common sense to the conclusion that he must therefore be guilty of
the theft charged. If the criminal law is to be couched in vague and imprecise language and
interpreted according to common sense without adherence to legal principle great uncertainty
and injustice might result: at 513.
[page 186]
The Model Criminal Code Officers Committee has recommended that
Australian jurisdictions adopt a version of the law of theft based on the Theft
Act 1968 (UK) model.
This chapter considers the basic offence of theft, followed by the offences of
obtaining by deception, robbery and burglary. The offence of theft is
important because it is a fundamental component of the offences of obtaining
by deception and robbery. Part 5 of the South Australian Act is modelled on
the Victorian legislation, although it incorporates some significant differences.
The focus of this chapter is on the Victorian provisions, with significant
differences in the South Australian legislation noted.
THEFT
10.2 A person who steals is guilty of theft: s 72(2) (Vic). Under s 72(1):
A person steals if he dishonestly appropriates property belonging to another with the intention
of permanently depriving the other of it.
Elements
To establish the crime of theft, the prosecution must prove the following beyond a reasonable
doubt (s 72(1) (Vic); s 134(1) (SA)):
Actus reus
• The object of the alleged theft was ‘property belonging to another’.
• D ‘appropriated’ the property (Vic) or ‘dealt with’ the property (SA).
• D appropriated the property ‘without the person’s consent’ (SA).
Mens rea
• D appropriated the property with the ‘intention of permanently depriving the other of it’
(Vic/SA) or with the ‘intention of making a serious encroachment on the owner’s proprietary
rights’ (SA).
• D appropriated the property ‘dishonestly’ (Vic/SA).
[page 188]
Thus, in s 71(2) (Vic) the definition of belonging to another is wide,
encompassing:
◆ possession of the property;
◆ control of the property; or
◆ proprietary right or interest in the property.
In South Australia, s 130 defines ‘owner of property’ consistently, but in
more detail.
If property does not belong to another in any of these ways, it cannot be
stolen.
The concepts of control and possession are discussed at 9.5.
10.6 A proprietary right or interest in property is a question of property
law. Proprietary interests include ownership, equitable interests and legal
interests. Property that is the subject of a trust can be stolen from both the
beneficiary of the trust (equitable interest) and the trustee (legal interest): R v
Bonner [1970] 2 All ER 97.
The wide definition of ‘belonging to another’ means that D may steal from
several people with one act, eg, from a person in possession of the property
and the owner of the property. Thus, where V1 lends V2 a lamp and D steals
the lamp, D has stolen from the owner, V1, and the person in possession, V2.
D cannot steal property over which D personally has ownership, possession
or control at the time of appropriation, as the property does not ‘belong to
another’. In R v Greenberg [1972] Crim LR 331, D was charged with theft from
a petrol station. D had filled his tank and entered the cashier’s office with the
intention of paying for the petrol. However, the cashier was busy serving
another customer and D decided not to pay for the petrol. D drove off without
paying. It was held D could not be guilty of theft. At the time of the
appropriation, D was not acting dishonestly as he had intended to pay for the
petrol. When D later dishonestly left without paying, the petrol no longer
belonged to the petrol station owners as D had full proprietary interest in the
petrol along with possession and control of it. This gap in law only applies to
fungibles (interchangeable items), such as money, bread, sugar and petrol.
Abandonment
10.7 As with the common law, property that has been abandoned — in the
sense that the owner has intentionally forgone rights of ownership in the
property — cannot be stolen: Hibbert v McKiernan [1948] 2 KB 142. The
legislation specifies that in order for property to be capable of being stolen, it
must ‘belong’ to another: s 72(1) (Vic); s 130 (SA).
The concept of abandonment is interpreted strictly. For example, in
Williams v Phillips (1957) 41 Cr App R 5, D was convicted of theft of rubbish
that had been left out for collection. D argued that the property had been
abandoned by V and therefore could not be stolen. This argument was
rejected by the Court on the grounds that the property had been left out for
the purpose of collection by the garbage collection company. V retained
property in the garbage until it was collected; the property then passed to the
collection company.
Property may belong to another without that person being aware of its
existence: Kennison v Daire (1986) 160 CLR 129.
[page 189]
Special situations
10.8 The legislation deals with special cases which otherwise would not be
covered by the expression ‘property belonging to another’. In South Australia,
these special cases are incorporated under the broad definition of ‘owner of
property’ in s 130. In contrast, Victoria has created special subsections to
cover these situations.
10.9 Purpose trusts Ordinary cases of appropriation of trust property are
covered by the definition of ‘belonging to another’: s 71(2) (Vic); s 130 (SA).
Thus, where V is a beneficiary under a trust, if the trust money is regarded as
belonging to V, V has an equitable proprietary interest. However, there are
cases where there may be no ascertainable beneficiary. This commonly arises
in ‘purpose trusts’, where money is held in trust for a specific purpose,
whether charitable or private. Thus, money may be stolen from the trustee,
but if D is the trustee, D may argue that the property belongs to no one. This
situation is covered by s 73(8) (Vic) and s 130 (SA), which treat the property
as if it belonged to the person who is entitled to enforce the trust. An
intention to defeat a trust is regarded as an intention to deprive a beneficiary
of his or her property.
10.10 Fiduciary ownership A person may have received money or other
property under an obligation — either to the person from whom it is received
or to some other person — to deal with that property in a particular way. The
recipient may obtain legal or equitable interest in the property as well as
possession and control, yet hold it subject to a fiduciary obligation to deal
with it or its proceeds in a particular way. If the recipient deals with the
property inconsistently with that obligation, but for the specific legislation, he
or she would not commit theft as the property does not ‘belong to another’.
This situation is covered by s 130 (SA), which defines ‘owner’, and s 73(9)
(Vic), which is as follows:
Where a person receives property from another or on account of another, and is under an
obligation to the other to retain and deal with that property, or its proceeds in a particular way,
the property or proceeds shall be regarded (as against him) as belonging to another.
Under these sections, the courts are required to ascertain whether D has a
legal obligation: R v Meech [1974] QB 549. The obligation must be a legal
obligation with regard to that specific property or its proceeds: R v Hall [1972]
2 All ER 1009. It must be established that the property is entrusted to D on
terms which create a fiduciary relationship: Mumford v R (1989) 95 FLR 358.
There may be some difficulties in determining whether a person who receives
property is under an obligation to retain and deal with it in a particular way:
Hall.
10.11 In Hall, D was a travel agent who received money from clients as
deposits and payments for trips to America. The funds were paid into D’s
firm’s general account. The trips did not eventuate, but the money was not
refunded. D was convicted of theft in respect of the money received. On
appeal, D’s convictions for theft were quashed. D was under a contractual
obligation, but this obligation did not relate to dealing with the specific money
or its proceeds in a particular way. The obligation had been of a general
nature to provide tickets and documents. There was no specific obligation on
D to use the money or its proceeds in a particular way.
The Court of Appeal considered that a specific obligation could have arisen
in this context if the clients had imposed on D an instruction to use the
money or its proceeds on the purchase of an airline ticket.
[page 190]
In Meech, V obtained a cheque for £1450 from a finance company by fraud.
D knew nothing of the fraud and agreed to cash the cheque for Vand to keep
£40 which V owed him. D deposited the cheque into his own account so he
could withdraw the cash once the cheque had cleared. D learned of the fraud
after he had deposited the cheque. Two days later, D withdrew £1410. D then
arranged with P and J to stage a robbery, whereby P and J would take the
money from D, leaving him the apparent victim. Thus D would not have to
repay V the money. The robbery went ahead, and was reported to the police,
who then discovered the true facts.
Apart from s 73(9) (Vic), D could not have been convicted of theft from the
finance company, because he had not stolen the original cheque and, at the
time of appropriating the cheque by paying it into his account, D was unaware
that it had been acquired dishonestly. Additionally, apart from s 73(9) (Vic),
D could not be convicted of theft from V, as V had never gained possession or
control of the money, and upon receiving it from the bank, D had obtained
the full proprietary interest.
D, P and J were charged and convicted of theft on the basis that the
proceeds of the cheque were to be treated as ‘belonging to’ V under s 73(9).
D, P and J appealed on the grounds that D was not under a legal obligation
(s 73(9) (Vic)) to V to retain and deal with the cheque or its proceeds in a
particular way since V, having obtained the cheque by fraud, would have been
unable to enforce the performance of that obligation in a civil action.
It was held that the matter had to be regarded from D’s point of view, not
V. At the time when D had obtained the cheque, he had been ignorant of the
fraud, and had assumed an ‘obligation’ to V which, on the facts then known to
him, he remained obliged to fulfil. The section looked at the time of the
creation of his obligation rather than the time of his performance, and
accordingly his obligation did not change when D found out about the fraud.
Thus, since D had received the cheque from V under the initial obligation to
deal with it in accordance with V’s instructions, for the purposes of the law of
theft the cheque and its proceeds were deemed to be V’s property. The
convictions were upheld.
[page 191]
Appropriation (Vic)
10.13 Section 72 (Vic) requires that D appropriates the property. This
means that the focus is on the end result — the deprivation of property —
rather than how D comes by the property. Despite the apparent clarity of the
concept of appropriation, some differences and difficulties have arisen.
Section 73(4) (Vic) states:
Any assumption by a person of the rights of an owner amounts to an appropriation, and this
includes, where he has come by the property (innocently or not) without stealing it, any later
assumption of a right to it by keeping or dealing with it as owner.
Under this subsection, D need not have assumed all the rights of an owner.
Stein v Henshall [1976] VR 612 defines the assumption of the rights of the
owner, and thus appropriation, as occurring when a person takes ‘on one’s self
the right to do something which the owner has the right to do by virtue of his
ownership’: at 615. This would include situations where D:
◆ takes property belonging to another;
◆ uses property belonging to another;
◆ pledges or sells the property;
◆ offers to sell property belonging to another;
◆ destroys or damages the property;
◆ retains the property and refuses to return it; or
◆ lends property belonging to another.
The definition of appropriation is very broad, with the consequence that
virtually all cases involving deception can be prosecuted as theft: DPP v
Gomez [1993] AC 442. Thus the offence of theft covers the old common law
offences of larceny, larceny by a bailee, embezzlement and fraudulent
conversion.
There is no reason why a series of acts in relation to a particular item of
property cannot each constitute an appropriation. Thus, if D takes property
and later destroys it, D has committed two acts of appropriation in respect of
that property.
Section 73(4) (Vic) defines appropriation as including situations where D
has received property without stealing it and later assumes ‘a right to it by
keeping or dealing with it as owner’. For example, in R v Morris [1984] AC
320, D removed items from shelves in a store and attached price labels from
cheaper articles over the correct price labels. D was convicted of theft on the
basis that the act of changing the labels amounted to appropriation. The
House of Lords confirmed the conviction, holding that the substitution of a
lesser price on goods for one showing a greater price amounted to a dishonest
appropriation for the purposes of the Theft Act 1968 (UK). The price
switching adversely interfered with or usurped the right of the owner of the
goods to ensure that they were sold and paid for at the proper prices.
If D had then paid the lesser amount for the goods at the checkout, D could
also have been charged with a further offence of obtaining by deception: see
10.39.
[page 192]
Appropriation of stolen property (Vic)
10.14 In Stein v Henshall [1976] VR 612, D drove a car he knew to have
been stolen. It was unclear whether the thief had given D the car or merely
loaned it to him. D argued he had merely borrowed the car, so he had not
assumed all of the rights of ownership. This argument was rejected. To prove
an appropriation, the prosecution is not required to establish that D had
intended to exclude all others. Rather, there will be an appropriation if D has
acted in relation to the property in a way in which the owner would have the
right to act. By driving the car, D had exercised one of the rights of ownership,
and hence had appropriated the car.
It has been held that if D accepts a ride in a car that D knows to be stolen,
this will amount to theft. Travelling in a car amounts to a usurpation of the
owner’s rights, even if D remained in the rear seat of the car throughout: W (a
child) v Woodrow [1988] VR 358.
Mistaken consent and appropriation (Vic)
10.15 Mistaken consent cases have generated some difficulties at common
law: see 9.15. In particular, one difficulty that arises is where V has mistakenly
given consent to D taking the property. At common law, where D only later
becomes aware of the mistake and then dishonestly decides to appropriate the
property, D cannot be guilty of larceny at common law, as there was no mens
rea at the time of taking: R v Potisk (1973) 6 SASR 389. Later, when mens rea
was formed, D was already in possession of the property.
The legislative reforms in Victoria overcome many of these problems.
Section 73(10) (Vic) specifies:
Where a person gets property by another’s mistake, and is under an obligation to make
restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to
the extent of that obligation the property or proceeds shall be regarded (as against him) as
belonging to the person entitled to restoration, and an intention not to make restoration shall be
regarded accordingly as an intention to deprive that person of the property or proceeds.
England
10.19 In England, the House of Lords has narrowly restricted the effect of
consent on the scope of the offence. Any action beyond those which D was
authorised to perform may constitute an appropriation. Additionally, any
deception on the part of D to induce V’s consent may be sufficient to vitiate
consent.
In the case of R v Gomez [1993] AC 442, it was held that the issue of
consent is more appropriately considered in the context of whether D has
acted dishonestly, rather than in the context of appropriation. In Gomez, D
was an assistant manager of an electrical goods store. D was approached by an
acquaintance who asked to be
[page 194]
supplied with electrical goods in exchange for two stolen cheques. D knew
that these cheques were worthless, but obtained the approval of the manager
of the store by advising him that the cheques were ‘as good as cash’. The
House of Lords held that this was an appropriation, despite the express or
implied authorisation by the owner. D had appropriated the property within
the meaning of the legislation, and he had induced the owner to hand over the
property through fraud. The House of Lords held that it was not necessary for
the prosecution to prove that the taking had been without the consent of the
owner to amount to appropriation.
In Gomez, Lord Brown-Wilkinson expressed his disapproval of Roffel:
Whether or not those controlling the company consented or purported to consent to the
abstraction of the company’s property by the accused, he will have appropriated the property of
the company. The question will be whether the other necessary elements are present, viz. was
such appropriation dishonest and was it done with the intention of permanently depriving the
company of such property?: Gomez at 486.
This definition of ‘deal’ does not contain the type of limitation envisaged by
Morris: see 10.13.
Section 132(3) provides that a person who knows that another’s consent
was obtained by dishonest deception is taken to act without consent. This
means that there is substantial overlap between the offences of theft and
deception: s 139.
Without consent (SA)
10.21 Section 132 (SA) defines consent of the owner as follows:
(1) A reference to the consent of the owner of property extends to —
(a) the implied consent of the owner (or owners); or
(b) the actual or implied consent of a person who has actual or implied authority to consent
on behalf of the owner (or owners).
[page 195]
(2) A person is taken to have the implied consent of another if the person honestly believes,
from the words or conduct of the other, that he or she has the other’s consent.
(3) However, a person who knows that another’s consent was obtained by dishonest
deception is taken to act without consent.
Mens rea
10.24 The broad definition of ‘appropriation’ and ‘deals with’ means that
there is a heavy focus on D’s mens rea, particularly dishonesty, in determining
culpability. The mens rea consists of two aspects:
1. intention to deprive permanently; and
2. dishonesty.
‘Intention of permanently depriving’ (Vic/SA) and ‘intention of
making a serious encroachment on the owner’s proprietary
rights’ (SA)
10.25 To establish a charge of theft, the prosecution must prove that D had
the intention to deprive the owner of the property at the time of taking: R v
Dardovska (2003) 6 VR 628. Thus, an intention to deprive the owner of
property only temporarily (eg, borrowing) will be insufficient, as will a
postponement of a decision of what to
[page 196]
do with the property (but see s 134(2) (SA) and s 73(12) (Vic), below). The
intention permanently to deprive is a common law concept: see 9.21.
10.26 South Australia has supplemented this mens rea requirement with an
alternative head of intending to ‘make a serious encroachment on the owner’s
proprietary rights’: s 134(1)(c)(ii). This head of mens rea is covered in Victoria
under a broad interpretation of intention to deprive permanently.
10.27 In Sharp v McCormick [1986] VR 869, D took a car coil from his
employer dishonestly and without his permission. D stated he had intended to
try fitting it to his car. If the coil did not fit, he would have returned it to the
owner. D was charged with theft and the magistrate held that as there was
nothing more than a conditional intention, there was no case to answer. On
appeal, Murray J held that it was necessary to focus upon the intention of D at
the time he appropriated the coil:
The evidence establishes that his intention at that time was to take the coil and see whether it
fitted his motor car in which case to retain it and otherwise to return it to his employer. To say
that his intention to return it to his employer if it did not fit his motor car was an intention to
have regard to the rights of his employer is in my opinion little short of an abuse of language.
When the respondent took the coil he was quite clearly treating the coil as his own to dispose of
as he saw fit and he was paying no regard to the rights of the true owner. His stated intention of
returning if it did not fit his car was simply a matter of choice on his part which he may or may
not have carried out when the time came. The rights of his employer were completely ignored at
the time of the appropriation: at 873.
Conditional return
10.30 Section 73(13) (Vic) provides:
… where a person, having possession or control (lawfully or not) of property belonging to
another, parts with the property under a condition as to its return which he may not be able to
perform, this (if done for purposes of his own and without the other’s authority) amounts to
treating the property as his own to dispose of regardless of the other’s rights.
These subsections cover the situation where D uses V’s property as security
for a loan. D may argue that D’s intention was to discharge the debt, and thus
D lacked the intention to deprive permanently. However, the focus of this
section is on the possibility that D may be unable to perform the condition of
return, rather than D’s intention. Consequently, if there is a possibility of non-
performance, this section is satisfied.
Fungibles
10.32 As discussed at 9.25, the concept of fungibles (interchangeable
items) is relevant to the establishment of an intention to deprive permanently.
[page 198]
In relation to mens rea, if D borrows $20 from V, with the intention of
repaying V later in the week the equivalent of $20 in different notes, the law
would characterise this as an intention permanently to deprive V of that
specific $20 note. The distinction has little to do with the subjective
blameworthiness of D.
10.33 In South Australia, D may evade criminal responsibility relating to
the non-consensual ‘borrowing’ of fungibles due to an absence of any
dishonesty in the taking. That is, where D honestly and reasonably intends to
return the equivalent value of the money, D may not be acting dishonestly.
This would depend on the meaning of ‘dishonestly’, discussed below.
Alternatively, D may satisfy s 73(2)(b) (Vic), where D may believe that the
owner would consent to the appropriation if the owner knew what D was
doing.
‘Dishonestly’
10.34 The appropriation must be dishonest at the time at which it occurs.
Elements
The legislation specifies that a person’s appropriation of property is not dishonest where:
• D believes in a bona fide claim of right: s 73(2)(a) (Vic); s 131(5) (SA). This belief need not be
reasonable, but reasonableness will serve an evidentiary purpose: R v Salvo [1980] VR 401.
This is a common law concept that is analysed in detail at 9.27.
• D believes that he or she would have the consent of the owner for the appropriation, if the
owner knew what D was doing: s 73(2)(b) (Vic); s 132(2) (SA).
• D believes that the owner cannot be found by taking reasonable steps: s 73(2)(c) (Vic); s
131(4) (SA).
10.37 In Victoria, it has been held that Feely and Ghosh do not represent
the law: R v Salvo [1980] VR 401; R v Brow [1981] VR 783; R v Bonollo [1981]
VR 633. These cases held that the word ‘dishonesty’ possesses no meaning or
scope beyond the cases referred to in s 73(2):
I am respectfully of the opinion that the question was not whether a juror needed the help of a
judge to tell him what amounts to dishonesty, but whether a juror should be given some
assistance as to what was the necessary element in the new criminal offence which the Crown
had to prove and which was imported by the word ‘dishonestly’ in the context in which it was
found in the statute. I think that no juror would be in a position intuitively to know the answer
to that question. The proposition, that every juror knows what dishonesty is, is in my opinion
too imprecise to be true or false, and it obscures two truths, first that what matters is a point of
statutory construction and secondly that jurors, like judges and magistrates and other people,
differ very markedly in their views as to whether particular conduct in particular circumstances
is dishonest or is conduct to which moral obloquy attaches: Salvo at 427–8 per Fullagar J.
10.38 It has been suggested that the authority of the Victorian cases may be
uncertain in light of the High Court decision in Peters v R (1998) 192 CLR
493. This case is discussed at 9.34. In summary, it concerned dishonesty in the
statutory offence of conspiracy to defraud. It was held that in determining
dishonesty, the Feely/ Ghosh approach should be followed. According to
Peters, the court is not obliged to direct the jury regarding the meaning of
dishonesty in other than exceptional cases. However, in Peters, their Honours
were content to distinguish the Victorian trilogy of cases, holding that they
should be confined in their application to theft legislation. Accordingly, the
Victorian authorities are likely to continue to apply to theft offences in
Victoria.
However, there is at least one good reason for going beyond the Victorian
trilogy of cases — that of fungibles. There is no good reason why D should be
guilty of theft if D ‘borrows’ a fungible without V’s permission, with the
intention of repaying the equivalent value of the property, while if D intended
to return the exact same notes, D would be acquitted.
[page 200]
OBTAINING BY DECEPTION
10.39 South Australia has introduced an offence of deception (s 139) which
is far more general and expansive in scope that its precursor. The offences of
obtaining by deception and theft have considerable crossover in South
Australia. This is because of the wide definition of ‘dealing in property’ (s
130), and the provision in s 132(3) that a person who knows that another
person’s consent was obtained by dishonest deception is taken to act without
consent. Thus many cases of what are obtaining property by deception
offences in Victoria are regarded as theft in South Australia.
Victoria has a separate offence of obtaining by deception, where a person
dishonestly obtains property with the intent of permanently depriving
another person of the property: s 81(1) (Vic).
To establish the crime of obtaining property by deception (s 81(1) (Vic)),
the prosecution must prove beyond a reasonable doubt that:
(a) D engaged in a deception;
(b) D did so dishonestly;
(c) as a result of the deception, D —
(i) obtained ownership, possession or control of property; or
(ii) obtained for another, or enabled another to obtain or to retain, the
ownership, possession or control of the property;
(d) the property in question belonged to a third party; and
(e) the intention with which the property was so obtained or retained was
that of permanently depriving the third party of that property.
Actus reus
Obtains (Vic)
10.40 The word ‘obtains’ is very broad, and covers any form of interest that
D could acquire through deception. Under s 81(2) (Vic):
… a person is to be treated as obtaining property if he obtains ownership, possession or control
of it, and ‘obtain’ includes obtaining for another or enabling another to obtain or retain.
Mens rea
10.45 Deception can be deliberate or reckless. D would be considered to
satisfy the requirement of recklessness if D either knew or recognised that
there was a substantial risk that statements made by D might turn out to be
untrue: R v Smith (1982) 7 A Crim R 437.
Continuing representation
10.46 A representation can be continuing, such that it is only necessary to
prove mens rea at some time in the transaction.
In DPP v Ray [1974] AC 370, D ate a meal at a restaurant, fully intending to
pay. At the end of the meal, D and his friends decided not to pay, and left the
restaurant while the waiter was absent. It was held that D had made an
implicit representation at the beginning of the meal of the intention to pay.
This was a ‘continuing representation, which remained alive and operative
and had already resulted in the respondent and his defaulting companions
being taken on trust and treated as ordinary, honest customers’: at 386. The
representation covered the whole transaction until payment. Thus, D had
practised a deception.
Dishonesty
10.47 The property must be obtained dishonestly. Dishonesty is a mens rea
requirement in Victoria and South Australia. Generally, the fact that there has
been a deception will indicate dishonesty, although this will not always be the
case. The meaning of the word dishonesty is discussed at 10.34 in relation to
theft. It has been held that the word ‘dishonestly’ in s 81 (Vic) should not be
limited or inhibited by s 73(2) and (3) (Vic): R v Salvo [1980] VR 401.
[page 203]
A legal claim of right is a complete defence. Where D has an honest belief
in a legal claim to property, and uses dishonesty to obtain it, D will not be
guilty of the offence: R v Salvo [1980] VR 401.
ROBBERY
10.49 Robbery is a form of aggravated theft. Section 75(1) (Vic) states:
A person is guilty of robbery if he steals, and immediately before or at the time of doing so, he
uses force on any person or puts or seeks to put any person in fear that he or another person will
be then and there subjected to force.
[page 204]
Actus reus
Theft
10.50 The prosecution must establish a theft, the requirements for which
are discussed above. If a theft cannot be established, D cannot be charged with
robbery. However, D may be convicted of alternative offences such as assault.
Use of force
10.51 Victoria and South Australia require that D used or threatened force.
‘Force’ is an ordinary word and it is for the jury to determine whether force
has been used by D, such as to constitute a robbery: R v Dawson and James
(1976) 64 Cr App R 170. The statutes use the word ‘force’ and not ‘violence’.
Hence, the jostling of V to such an extent that V has difficulty balancing in the
course of a theft may amount to robbery: Dawson.
The force need not be aimed at the owner of the goods, provided it was
utilised or threatened in order to steal: s 75(1) (Vic); s 137 (SA). The force or
the threat of force must be for the purpose of stealing.
Putting or seeking to put any person in fear of force
10.52 D does not need to use any force, but may instead seek to put V in
fear of force. There is no need that V actually felt fear; rather, it will be
sufficient if D sought to put V in fear. The threat must be that V or another
person will then and there be subject to force. It will not be sufficient for D to
threaten the use of force at some time in the future. Additionally, the threat
must be against V’s person or the person of another, not against property.
The statutory offence of robbery is narrower than the common law offence.
At common law, a demand for money under threat of accusing V of sodomy
would be robbery: R v Pollock [1967] 2 QB 195. Under s 75 (Vic) and s 137
(SA), this would not amount to robbery as there has been no threat of force.
However, this may well amount to blackmail.
Immediately before or at the time of committing the theft
10.53 The use of force, or threat of force, must occur immediately before,
or at the time of stealing: s 75(1) (Vic); s 137(1) (SA). In South Australia the
offence can also be established if D used force or threatened force in order to
escape from the scene of the offence. Thus, in Victoria if the theft has been
completed prior to the use of force, D cannot be charged with robbery: R v
Foster (1995) 78 A Crim R 517.
If D tied up, gagged and threatened V immediately after D had taken V’s
jewellery box, the jury is entitled to find that the force was used at the time of
stealing: R v Hale (1978) 68 Cr App R 415.
Mens rea
Mens rea for theft
10.54 The prosecution must establish that D had the mens rea for theft.
The mens rea requirements for theft are discussed at 10.24 above. Where D
has a belief in an
[page 205]
honest claim of right in the property, there is no theft and thus D cannot be
charged with robbery: s 73(2)(a) (Vic); s 137 (SA); R v Salvo [1980] VR 401.
The belief of legal entitlement need only extend to the property; there is no
requirement that D believe the use of force to be legal.
Intention to use force or threat of force in order to steal
10.55 The prosecution must establish that D used or threatened force with
the intention to steal. Thus, the fact that V is frightened by D’s actions will be
insufficient. D must have the requisite intent.
BURGLARY
10.56 Under s 76(1) (Vic), D is guilty of burglary if D enters any building
or part of a building as a trespasser with intent:
◆ to steal; or
◆ to commit an offence involving an assault to a person in the
building, or any damage to the building or property, which is
punishable for a term of five years or more.
South Australia has created a similar offence of serious criminal trespass,
which extends to include situations where D ‘remains’ in a place: s 168(1).
Elements
The actus reus for the offence of burglary (Vic) or serious criminal trespass (SA) requires the
prosecution to prove that:
• there has been an entry;
• of any building or part of a building;
• as a trespasser.
The mens rea for the offence of burglary requires the prosecution to prove that at the time D
entered, D:
• was knowingly or recklessly a trespasser; and
• had an intention to steal or commit a prescribed offence.
Actus reus
Entry
10.57 There must be an ‘effective and substantial’ entry by D to amount to
an entry for the purposes of the legislation: R v Brown [1985] Crim LR 212.
This does not mean that D’s entire body must be in the building; rather, an
effective entry is one which enables D to commit a further offence, eg, D is
able to steal goods from that position. The broad reading of ‘entry’ means that
police are not required to wait until D carries out the further specified intent.
[page 206]
Building or part of building
10.58 D must enter a building or part of a building. ‘Building’ is largely not
defined, and whether a structure is a building or part of a building will be a
question of fact for the jury. The jury would take into account factors such as
permanence and size. Thus, a garage might be considered a building, while a
tent would not.
In R v Cahill (No 2) [1999] 2 VR 387, D had been on the porch of a
building. The Court of Appeal held:
Whether the applicant entered the building was a question of fact to be determined by the jury.
There was no dispute at the trial as to the primary facts relating to the porch. Its construction
and the relationship it bore to the house were common ground. However, that was not the end
of the fact finding task. It remained to appraise all the facts to determine whether the porch
could fairly be regarded as part of the building or whether it was a space remaining outside the
building: at 394 per Buchanan JA.
Mens rea
10.60 In Victoria, D must have the necessary mens rea at the time of entry:
Barker. In South Australia, the mens rea can be formed if D remains on the
property without consent.
Knowingly or recklessly a trespasser
10.61 The prosecution must prove beyond a reasonable doubt that D
entered knowingly or recklessly as a trespasser. Thus, if D enters a building
believing that he or
[page 207]
she has a right to do so, then there will be no burglary, even if D intended to
steal. D’s belief need only be honest, not reasonable.
Intention to steal or commit a prescribed offence
10.62 The prosecution must prove that D intended to steal or commit one
of the prescribed offences. There is no need to prove that D actually stole or
committed the prescribed offence. What is required is that D entered the
building as a trespasser with the requisite intention.
In Victoria, it will not be burglary where D enters the building without the
requisite intention, but forms the intention once inside the building.
In South Australia, it will be burglary for D to remain in a building once D
has formed the requisite intention to steal or commit a prescribed offence: s
168.
Legal Problem
Annabelle borrowed $500 from Georgia and promised to pay it back as soon as she could. A
fortnight later, Georgia urgently needed some money. She asked Annabelle to pay back the
money she had borrowed, but Annabelle refused. Georgia broke into Annabelle’s home and
took her stereo and television, with the plan of pawning them to get back the $500 that
Annabelle owed her. She planned to retrieve the goods once Annabelle had paid her back the
money.
Discuss Georgia’s criminal liability.
Answer
Georgia could be charged with theft (s 72 (Vic); s 134 (SA)) and burglary (s 76(1) (Vic)) or serious
criminal trespass: s 168 (SA). The prosecution would have to prove all elements of the offence
beyond a reasonable doubt: Woolmington v DPP [1935] AC 462.
With regard to burglary or serious criminal trespass:
• Section 76 (Vic)/s 168 (SA) specifies that an accused must enter a building as a trespasser
with an intention of committing a theft.
With regard to theft:
• Victoria: s 72 requires that the prosecution proves that Georgia dishonestly appropriated
property belonging to Annabelle with the intention of permanently depriving her of it.
• South Australia: s 134 requires the prosecution to prove that Georgia dealt with property
dishonestly, without the owner’s consent and intending to deprive the owner permanently
of the property or to make a serious encroachment on the owner’s proprietary rights.
I will deal with each element in turn.
Burglary/serious criminal trespass: s 76 (Vic); s 168 (SA)
The prosecution would be able to prove that Georgia entered Annabelle’s property without
consent. The facts of the question state that she ‘broke into’Annabelle’s home. Georgia
knowingly entered Annabelle’s home without her consent, accordingly the requirement of a
trespassory entry into a building would be satisfied. The prosecution would also have to prove
that Georgia entered the building with an intention of committing a crime — in this case, theft.
[page 208]
I will deal with the issue of theft in detail, but, as I argue below, the prosecution will have
difficulty proving Georgia’s culpability because of her belief in a legal claim of right.
Theft
The prosecution must prove that Georgia stole property — in this case, she took a stereo and
television — property that was of value, tangible and owned by Annabelle. The prosecution
would have no difficulty establishing this aspect: s 71 (Vic); s 130 (SA).
The prosecution must prove that Georgia appropriated (s 72 (Vic)) or dealt with the property (s
134 (SA)).
In Victoria, appropriation is defined as including ‘any assumption of the rights of an owner’: s
73(4). In South Australia, ‘dealing with’ the property includes taking or disposing of the
property (s 130). Taking the goods from Annabelle’s home would satisfy the requirement of
appropriation/dealing with. In addition, pawning the goods would also satisfy the requirement
of assuming the rights of the owner.
The prosecution may have difficulty establishing that Georgia had an intention of permanently
depriving Annabelle of the property, as Georgia stated that she intended to return the goods
once Annabelle had paid her back.
However, in Victoria, pawning the goods would amount to treating the property as Georgia’s
own, and under statute this would be treated as having an intention to permanently deprive: s
73(12) (Vic); Sharp v McCormick [1986] VR 869. In South Australia, this would probably satisfy the
requirement of an intention to make a serious encroachment on the owner’s proprietary rights.
Accordingly, the prosecution should be able to satisfy this mens rea requirement.
The prosecution may have difficulty proving that Georgia was dishonest. This is because she
honestly believed that she was entitled to the property because Annabelle owed her money.
An honest belief in a legal claim of right will negate dishonesty: s 73(2)(a) (Vic); s 131(6) (SA).
These statutory provisions reflect the common law principle of legal claim of right.
Georgia’s actions parallel the case of R v Lenard (1992) 57 SASR 164, where D took property from
V as collateral for an unpaid debt. In that case, D made little effort to assist V to redeem the
property, and sold it the next day. The Supreme Court of South Australia held that D’s
conviction was affirmed. D’s intention to sell the property as quickly as possible tainted the
claim of right and meant that his actions were fraudulent. In contrast, Georgia had every
intention of assisting Annabelle in recovering the property. She did not sell the property, she
only pawned it. Accordingly, the prosecution would not be able to prove that Georgia’s actions
were dishonest. The fact that she took the property using dishonest means would not hamper
this argument, as the focus here is upon Georgia’s honest belief in legal claim of right.
[Comment: This paragraph refers to common law to demonstrate understanding of the belief in
legal claim of right. The argument is further strengthened by the use of facts from a decided
case, highlighting commonalities and differences.]
Conclusion
Georgia would not be guilty of theft due to her honest belief in legal claim of right. As a
consequence, the prosecution would also not be able to establish burglary/serious criminal
trespass, as Georgia lacked the essential mens rea of an intention to commit theft, as she
believed that she was entitled to the goods.
[page 209]
Chapter 11
Extending Criminal Liability:
Complicity, Conspiracy and Attempt
Objectives
After reading this chapter you should be familiar with the following:
▶ doctrine of complicity
▶ technical distinctions within the doctrine of complicity
▶ joint criminal enterprise
▶ doctrine of innocent agency
▶ actus reus requirements for accessorial liability
▶ mens rea requirements for accessorial liability
▶ doctrine of common purpose
▶ conspiracy
▶ principles of attempt
▶ impossibility and attempt
INTRODUCTION
11.1 Certain legal principles extend liability beyond the physical
perpetrator of a crime. The law relating to attempt and conspiracy
criminalises conduct that occurs prior to a crime. Principles of conspiracy and
complicity extend criminal liability to groups of people engaged in criminal
activity.
[page 210]
COMPLICITY
Technical distinctions
11.2 Most of the chapters in this book have been concerned with the
principal offender — the person who committed the crime — represented as
‘D’. For the purposes of clarity, in this chapter the principal offender (or
principal in the first degree) will henceforth be represented as ‘P1’.
The principles of complicity criminalise joint participation in a given crime.
Broadly speaking, it is possible to jointly participate in a crime in several ways:
◆ Where two or more persons agree to commit a crime and one or all
of the participants carry out the necessary actus reus, all will be held
liable for the crime as P1s according to the rules of joint criminal
enterprise. The principles of joint criminal enterprise can occur in
two types of cases:
◆ first, if two or more persons play a part in performing the acts that
go to constitute a crime — eg, if a number of individuals attack V
intending to kill V, and their actions combined together cause the
death of V — then each D will be a P1: R v McDonald [1904] St R
Qd 151; and
◆ second, even if only one person performed the acts constituting
the crime, each will be guilty as P1s if the acts were in the presence
of all and pursuant to a preconceived plan. In this case, the parties
are ‘acting in concert’: Osland v R (1998) 197 CLR 316; 159 ALR
170.
◆ Accessorial liability applies where a person aids, abets, counsels or
procures the commission of the crime by another person (P1). At
common law:
◆ if D was present at the scene of crime aiding and abetting P1, then
D would be the principal offender in the second degree: ‘P2’;
◆ if D counselled or procured the commission of the crime, without
actual presence at the scene of the crime, then D would be
regarded as an accessory before the fact;
◆ if D assisted a person who committed a crime after the offence,
then D would be regarded as an accessory after the fact: see also s
347 (NSW); s 241 (SA); s 325 (Vic).
◆ Where, during the commission of a joint criminal enterprise, one or
more members of the enterprise commit an additional crime that
was not the subject of the original agreement, the other members of
the group may also be liable for that additional crime according to
the doctrine of common purpose.
The operation of these three sets of rules is confusing — not only for
students, but also for lawyers and judges. The language in judgments can be a
little loose, which is confusing. This is further exacerbated by prosecutors
often relying on more than one of the sets of complicity rules in order to
support the conviction ofindividuals involved in an offence: see, eg, Clayton v
R (2006) 231 ALR 500. Prosecutors may also rely on different sets of rules
when it is unclear which person actually carried out the main part of the actus
reus: see, eg, Huynh v R (2013) 295 ALR 624. In addition, the prosecution has
also relied upon the doctrine of innocent agency in combination with other
sets of complicity rules: see, eg, Matusevich v R (1977) 137 CLR 633.
[page 211]
11.3 Until recently, students would usually learn the rules of accessorial
liability first, as accessorial liability was the primary focus of common law
development and was primarily relied upon by the prosecution. However,
since the High Court decision in Osland articulated the rules of joint criminal
enterprise, accessorial liability now tends to be secondary to joint criminal
enterprise. Thus in Huynh, the High Court questioned why the prosecution
had run a ‘secondary’ accessorial liability argument when it had a viable
‘primary’ case based on joint criminal enterprise: at [34].
11.4 As noted above, depending on the facts the prosecution will often
advance a combination of joint criminal enterprise, accessorial liability and
the doctrine of innocent agency as alternative paths to conviction. This is
particularly the case where it is unclear which set of rules would best fit the
facts. Smart JA explained the prosecution’s approach in R v Hore [2005]
NSWCCA 3:
In a case such as this the Crown is in substance saying … [w]e do not know whether the true
analysis is one of acts committed pursuant to a joint enterprise or whether it is one of accessorial
liability but it must be one or the other and in either case the accused is guilty of the offence
charged … The true question to be asked is whether, on the facts of which the jury is satisfied
beyond a reasonable doubt, what happened must have been either an instance of joint enterprise
liability or accessorial liability. If on the facts proven it must have been one or the other the
accused is guilty of the offence charged at [81].
[page 213]
11.9 In Osland, McHugh J approved the New South Wales Court of
Criminal Appeal’s statement of principles in R v Tangye (1997) 92 A Crim R
545 regarding acting in concert. That court adopted a broad definition of
‘agreement’:
(1) The law is that, where two or more persons carry out a joint criminal enterprise, each is
responsible for the acts of the other or others in carrying out that enterprise. The Crown
must establish both the existence of a joint criminal enterprise and the participation in it
by the accused.
(2) A joint criminal enterprise exists where two or more persons reach an understanding or
arrangement amounting to an agreement between them that they will commit a crime.
The understanding or agreement need not be express, and its existence may be inferred
in all the circumstances. It need not have been reached at any time before the crime is
committed. The circumstances in which two or more persons are participating together
in the commission of a particular crime may themselves establish an unspoken
understanding or arrangement amounting to an agreement formed between them then
and there to commit that crime.
(3) A person participates in that joint criminal enterprise either by committing the agreed
crime itself or simply by being present at the time when the crime is committed: Tangye
at 556–7.
Consequently, it was held that D could be guilty of murder, even though the
other D was found not guilty.
11.10 In Huynh, it was held that it was open to the jury to infer whether or
not an agreement was made and when this agreement was made. It did not
matter if the agreement was made prior to the criminal act or at the time of
the offence. However, in some cases, the courts have expressed doubt that D
had time to make an agreement: Hawi v R (2014) 244 A Crim R 169.
Student tip
Joint criminal enterprise and conspiracy both focus on an agreement. The difference is that in
joint criminal enterprise, an agreement is the basis for the extension of liability for the
completed offence to all parties to the agreement, irrespective of who performed the conduct
elements of the offence. In contrast, in conspiracy cases, the agreement is itself the crime.
Presence
11.11 In Osland, McHugh J emphasised that, in order to be responsible as
a P1 in a case of joint criminal enterprise, the parties to the agreement had to
be present at the scene. Gaudron and Gummow JJ questioned this emphasis
on presence:
Principle dictates the conclusion that those who form a common purpose to commit a crime
together are liable as principals if they are present when the crime, or any other crime within the
scope of the common purpose … is committed by one or more of them. The crime having been
committed in accordance with the continuing understanding or arrangement, all are equally
guilty as principals regardless of the part played by each … Indeed, that reasoning would appear
not to require presence at the scene of all parties to
[page 214]
the continuing common purpose if the criteria specified in that reasoning otherwise are satisfied:
at 179.
[page 215]
11.15 In R v Cogan and Leak [1976] 1 QB 217, the Court of Appeal
considered whether the doctrine of innocent agency could apply in situations
where D could not have committed the offence independently of the
operation of the doctrine. In Cogan and Leak, Leak and Cogan were convicted
of the rape of V, Leak’s wife. Leak was charged as an accessory because, under
the doctrine of marital immunity, men could not rape their wives. V
submitted to sexual intercourse with Cogan due to her fear of Leak. Leak was
aware that V was not consenting. Cogan’s conviction for rape was overturned
and Leak argued that he could not be liable as an accessory as there was no
principal offence.
The Court of Appeal applied the doctrine of innocent agency to Leak. It
was held that Leak had procured Cogan to commit the act of rape, and that
Leak had the necessary mens rea for the offence. Consequently, Leak was
liable as P1 and not as an accessory. Leak could not rely upon the doctrine of
marital immunity, because the presumption did not extend to a situation
where a husband procured another person to have sex with his wife.
Thus, under the doctrine of innocent agency, D may be liable for an offence
which D could not commit as P1.
11.16 The doctrine of innocent agency was considered in R v Hewitt [1997]
1 VR 301. In that case, D and X, his co-accused, were charged on three counts
of rape. D arranged to meet V, and then drove her to an isolated spot, picking
X up on the way. While X was not present, D insisted to V that she have
sexual intercourse with X. X then had sexual intercourse with V. D did not
engage in sexual intercourse. The prosecution claimed that X and D had acted
in concert. At first instance, the trial judge raised the possibility that D had
used X as an innocent agent. The trial judge directed the jury that they could
acquit X but convict D, on the basis that D had set up the situation, taken V to
the isolated spot and insisted she have sex with X, knowing that it would be
non-consensual. The jury found X not guilty and D guilty. On appeal, it was
held that D could be guilty as P1 under the doctrine of innocent agency.
Winneke P stated that:
… what has to be demonstrated in order to support a conviction on this basis is that the accused
wanted and intended the act of intercourse by ‘the agent’ to take place and, by his conduct,
caused the act to occur when he knew that the victim was not consenting: at 312.
Accessorial liability
11.17 Accessorial liability has existed at common law for centuries. The
common law continues to be applied in New South Wales: ss 345, 346, 351. In
South Australia, the law of complicity is found in statute (s 267) but continues
to reflect the common law: Question of Law Reserved (No 2 of 1996) (1996) 67
SASR 63. For example, s 267 (SA) states:
A person who aids, abets, counsels or procures the commission of an offence is liable to be
prosecuted and punished as a principal offender.
[page 217]
An abettor can be guilty of a higher crime than P1. For example, P1 may act
while under some provocation or substantial impairment of the mind when
killing V, reducing a charge of murder to manslaughter. P2, who was present
at the time of the killing offering encouragement and keeping watch, may be
liable to a charge of murder. See Likiadopoulos v R (2012) 247 CLR 265: ‘The
moral culpability of the accessory will sometimes be greater than that of the
principal offender’: at [39].
Accessories before the fact and P2s
11.22 The elements of being an accessory are specified in Giorgianni v R
(1985) 156 CLR 473.
Elements
The prosecution must prove beyond a reasonable doubt:
• actus reus: D did aid, abet, counsel or procure; and
• mens rea:
(a) D knew all the essential facts which made what was done a crime; and
(b) D intentionally aided, abetted, counselled or procured the acts of tP1.
Actus reus
11.23 The actus reus for being an accessory or abettor is most commonly
expressed as occurring where D ‘aids, abets, counsels or procures’ the
commission of the principal offence: Giorgianni; s 267 (SA); s 323 (Vic).
11.24 The words ‘aids, abets, counsels or procures’ are not mutually
exclusive, and D can satisfy more than one category. These words are
overlapping but alternative ways of committing the offence of secondary
participation in crime: Giorgianni. Although each word has a specific
meaning, they are all:
… instances of one general idea, that the person charged is in some way linked in purpose with
the person actually committing the crime, and is by his words or conduct doing something to
bring about, or rendering more likely, such commission: R v Russell [1933] VLR 59 at 67 per
Cussen CJ.
Given that the distinction between accessories before the fact and P2s has
been subsumed into a single category in South Australia, the difficulties that
arose at common law in distinguishing between whether or not D was present
at the commission of the crime have largely dissipated. In New South Wales,
the distinction is maintained but is no longer of importance. The prosecution
need only establish one of the four elements (aids, abets, counsels or procures)
to establish the necessary actus reus.
Student tip
Only the actus reus element of ‘procuring’ has a technical element of requiring causation.
[page 218]
11.25 Counselling or procuring The phrase ‘counselling or procuring’ has
traditionally been applied where D is absent (accessory before the fact at
common law).
◆ ‘Counselling’ refers to encouragement or advice prior to the
commission of the offence.
◆ ‘Procuring’ means to ‘produce by endeavour. You procure a thing
by setting out to see that it happens and taking the appropriate steps
to produce that happening’: Re Attorney-General’s Reference (No 1
of 1975) [1975] QB 773.
Student tip
An example of procuring would be where D paid someone to commit an offence, such as
where D hired a hit person to kill V.
The courts have held that the word ‘aiding’ is given its natural meaning: to
‘give support to — help, assist’: R v Beck [1990] 1 Qd R 30.
The essential feature of ‘abetting’ is that D was present at the commission of
the principal offence and encouraged the commission of that offence. To
‘abet’ means to incite, instigate or encourage, and it is only necessary to prove
encouragement under abetting and not under aiding: Giorgi and Romeo v R
(1982) 31 SASR 299 at 311.
There are some cases where mere presence can actually amount to an act of
encouragement or assistance capable of founding liability as an accessory. In R
v Russell [1933] VLR 59, D stood by and watched his wife drown his children
and then herself. He was found guilty of manslaughter. It was held that the
absence of any dissent by D showed some sort of assent to the acts of his wife.
This was enough to amount to encouragement and could form the basis of a
charge of being an accessory.
In summary, virtually any act of encouragement, assistance or instigation to
a P1 to commit a crime will fulfil the conduct requirements for liability. This
can be mere words, or even the simple fact of presence, so long as this
amounts to some sort of encouragement or assistance.
11.29 Causation D’s act need only support or promote the commission of
crime; it need not be said that it wholly or partly caused the crime: Russell. In
R v Calhaem [1985] 2 WLR 826, D counselled P1 to murder V. P1 pleaded
guilty and gave evidence for the prosecution, stating that he had decided not
to kill V, but had then lost self-control and done so. D was convicted on the
grounds that, so long as the principal offence is the one counselled, and so
long as P1 is acting within the scope of the counselling, the offence is
committed. There is no requirement that there be a substantial causal
connection between the acts of the counsellor and the commission of the
offence.
The exception to this is where the prosecution asserts that D has procured
an offence. When asserting this, the prosecution must prove that there is a
causal connection between D’s conduct and the commission of the offence: Re
Attorney-General’s Reference (No 1 of 1975). This is because the essence of
‘procuring’ is that D ‘causes’ or ‘brings about’ the commission of the offence.
For example, in Attorney-General’s Reference (No 1 of 1975), D laced his
friend’s drinks, with the result that his friend was charged with driving with
excess alcohol in his blood. It was held that D had procured the offence and
was an accessory.
11.30 Omissions Generally, the common law has been reluctant to
criminalise D’s failure to act. This principle applies to secondary liability.
However, in appropriate circumstances, D’s failure to act can amount to
participation in the criminal offence. D may be liable for an omission where D
has a duty to act: see, eg, R v Russell.
[page 220]
Additionally, D may be criminalised due to mere presence at the
commission of the principal offence: R v Phan (2001) 53 NSWLR 480. This is
because D’s presence at the commission of a crime may encourage P1 or
discourage V:
The fortuitous and passive presence of a mere spectator can be an irrelevance so far as an active
offender is concerned. But, on the other hand, a calculated presence, or a presence from which
opportunity is taken, can project positive encouragement and support to a principal offender:
Beck at 39.
The authorities in this area emphasise that while the actus reus may be
relatively easy to establish in mere presence cases, the prosecution is still
required to prove mens rea, ie, knowledge and intention beyond a reasonable
doubt: R v Wellgreen [2014] SADC 10.
Student tip
While the actus reus may be relatively easy to establish, the focus in mere presence cases will be
on whether or not D had mens rea. This will be more difficult for the prosecution to establish.
Mens rea
11.32 The mens rea requirements for liability as an accessory are specific,
in order to guard against the possibility that D is held liable for innocent or
inadvertent acts. In Giorgianni, Gibbs J stated:
No one may be convicted of aiding, abetting, counselling or procuring the commission of an
offence unless, knowing all the essential facts which made what was done a crime, he
intentionally aided, abetted, counselled or procured the acts of the principal offender: at 487–8.
11.33 Knowledge of all the essential matters that made the principal
offence a crime D must have actual knowledge that the crime is being
committed, or will be committed, in circumstances revealing its criminal
nature. Mere recklessness will be insufficient: Giorgianni. This does not mean
that D must know that P1’s conduct amounts to a criminal offence, otherwise
D could evade criminal liability due to ignorance.
D must contemplate the commission of a crime of the same type or kind as
that which is actually committed. It is not enough that D know that some
illegal act is to be committed, but neither is it required that D know the
precise crime.
In R v Bainbridge [1960] 1 KB 129, D bought some oxy-acetylene cutting
equipment on behalf of another. The prosecution argued that D knew that the
equipment was to be used for a break and enter. It was held that the
prosecution must prove that:
◆ D knew that a felony of some kind was intended; and
◆ with this knowledge, D did something to assist P1.
Actual knowledge is required, even if the principal offence has no such
mens rea requirement.
11.34 In Giorgianni, P1 was charged with a strict liability offence: culpable
driving causing death or grievous bodily harm (GBH). It was held that, even
though the principal offence was a statutory offence that did not require mens
rea, the common law required mens rea for being an accessory.
In Giorgianni, D had directed P1, his employee, to drive a truck which had
defective brakes. As the offence was one of strict liability, the prosecution did
not have to establish that P1 knew that the brakes were defective. However,
the High Court held that to establish D’s liability as an accessory, the
prosecution had to prove that D had directed P1 to drive the truck, knowing
that the brakes were defective.
Giorgianni underlined that cases of strict liability make the requirement of
D’s guilty mind particularly clear. D must have actual knowledge or
constructive knowledge, rather than mere suspicion, that all the facts
constituting the offence are to be or are being committed. Mere recklessness is
insufficient. However, wilful blindness could provide the evidential
foundation for a finding of actual knowledge.
Giorgianni has been criticised due to the anomalous results it yields. If P1
drives a truck suspecting its machinery to be defective, and an accident
occurs, then P1 can be charged with culpable driving causing death or GBH.
But, if P1’s employer also suspects the brakes to be defective, but allows P1 to
drive, and an accident occurs, then P1 incurs no liability.
[page 222]
In Von Lieven v Stewart (1990) 21 NSWLR 52, the Court of Appeal applied
Giorgianni to the mens rea requirements of accessorial liability for companies.
Student tip
Giorgianni highlights the strict mens rea requirements for accessorial liability. Even when D is
charged as an accessory to a strict liability offence, the prosecution must still prove knowledge
and intention.
The High Court has since approved these principles in Gillard v R (2003) 219
CLR 1.
[page 224]
11.39 In Johns, J, W and D agreed to rob M. J knew that W always carried a
pistol, and expected it to be loaded. J also knew that W was quick-tempered. J
was advised to wait in his car while W and D committed the robbery, and to
then hide the stolen goods. After a short while, W and D returned, informed J
that the robbery had gone badly, and told him to leave. In fact, M had had no
money, and had been shot dead.
The doctrine of common purpose was applied and it was held that there
was no reason why J could not be held as responsible as the other participants
simply because he remained an accessory before the fact and did not actively
participate in the crime agreed upon. J was found to be responsible for the acts
done within the ambit of the enterprise of common design. The only mens rea
requirement under this doctrine was that J foresaw a possibility that another
member of the group would commit the additional offence:
In the present case there was ample evidence from which the jury could infer that the applicant
gave his assent to a criminal enterprise which involved the use, that is the discharge, of a loaded
gun, in the event that Morris resisted or sought to summon assistance … The jury could
therefore conclude that the common purpose involved resorting to violence of this kind, should
the occasion arise, and that the violence contemplated amounted to grievous bodily harm or
homicide: at 174–5.
Elements
The prosecution must prove beyond a reasonable doubt:
• D must have formed a common intention to prosecute an unlawful purpose;
• the principal offence must have been committed in the pursuance of, in furtherance of, or
for the purpose of, the common design;
• D need only contemplate the incidental crime as no more than a possible incident of the
joint enterprise: Johns. The test is thus not particularly demanding, requiring only that D
foresee the possibility, rather than the probability, of the incidental crime.
[page 225]
There was no need to prove S had actually authorised the use of the gun if the
need arose during the robbery.
11.41 The breadth of the reach of the doctrine of common purpose is
demonstrated in R v R (1995) 63 SASR 417. In that case, A and B agreed to
rob a restaurant, armed with knives. In the course of a struggle, B fatally
stabbed V. B was found guilty of felony murder, and A was convicted of
murder under the doctrine of common purpose. The trial judge had directed
the jury that A would also be guilty of felony murder if he was party to a joint
criminal enterprise to commit an offence that involved violence and danger to
life, and that death occurred during or in the furtherance of that felony. A
appealed on the grounds that he neither believed that the knives would be
used nor considered the possibility of violence taking place. On appeal, the
conviction was affirmed. Given that the policy underlying constructive
murder was to hold a perpetrator responsible for the unintended
consequences of his or her actions in the course of an offence, there was no
reason why this policy should not be extended to other participants in the
felony.
It may be difficult to ascertain what is an unforeseen consequence but
incidental to the common purpose, and what is not authorised and is different
from the criminal enterprise altogether. For example, in Varley v R (1976) 12
ALR 347, D was charged with murder for his involvement with two police
officers who had gone to V’s house to beat him up in order to compel him to
pay over some money. A baton was in the police officers’ car, and this baton
was used to kill V. D argued that the use of the baton was beyond the scope of
the criminal enterprise, and, as such, D should not be criminally liable for the
consequences of such use. The High Court rejected this submission, holding
that, while the use of the baton may not actually have been contemplated by
D, it was clearly a likely means of carrying out the plan of beating up V and
was obviously within the scope of the plan.
11.42 In R v Robinson [1968] 1 SA 666, V conspired with A, B and C that V
be shot because of dire financial distress. A was to shoot V ‘no matter what
happens’. At the last moment, V withdrew his consent, but A still shot and
killed him. A, B and C were convicted of murder. On appeal, it was held that
A had acted outside the common purpose as the murder was to be with the
consent of V. Consequently, B and C could not be guilty of common purpose
murder, but could be guilty of attempted murder (they had gone beyond mere
preparation and had the intention to kill).
It is arguable that the doctrine of common purpose extends liability too far.
The rationale was stated in R v Britten and Eger (1988) 49 SASR 47:
… by participating in the enterprise, each participant impliedly authorises all criminal acts which
are in his contemplation as being part of the common design, or as being a substantial risk
associated with its implementation: at 49.
In Hyde v R [1990] 3 All ER 872, Lord Lane CJ outlined the policy reasons for
the doctrine of common purpose:
If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict
serious injury, but nevertheless continues to participate with A in the venture, that will amount
to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in
the course of the venture. As Professor Smith points out,
[page 226]
B has in those circumstances lent himself to the enterprise and by doing so he had given
assistance and encouragement to A in carrying out an enterprise which B realises may involve
murder: at [139].
[page 227]
Extended Joint Enterprise [doctrine of common purpose] — General principles
If a person reaches an agreement to commit a crime and foresees as a possible incident that
another crime might be committed and continues to participate in the agreed crime knowing of
that possibility, then that person is as much a party to the crime that he has foreseen as he is a
party to the agreed crime.
For any party to be guilty of murder through extended joint enterprise they must foresee as a
possible incident of their arrangement that another party to the agreement might act with intent
to kill or inflict grievous bodily harm: at [61]–[63].
[page 228]
is still on foot and has not been called off, they are both present at the scene of the crime and one
or the other of them does, or they do between them, in accordance with their understanding of
the arrangement, all the things necessary to constitute the crime, they are all equally guilty of that
crime regardless of what part they played in its commission: Matusevich at 120.
The question of whether the persons have entered into an agreement is one of
fact. The circumstance that one of the persons concerned is insane is relevant
to that issue; but insanity sufficient to amount to a defence to a criminal
charge does not necessarily render the person whose mind is diseased
incapable of making an agreement or arrangement or reaching an
understanding with another.
1. If T did not know the nature and quality of the act (due to insanity), then there could be
no acting in concert of the two accused. However, if D incited T to kill V, D would be
guilty of murder, since T, if insane, would be treated as D’s innocent agent.
2. If there was no preconcert between T and D, but D was present and assisted T when the
latter struck the blows, then D could still be convicted as P2. That is, D aided and abetted
T, knowing the essential elements of the offence and intending to aid and abet while T
was hitting V.
3. Even if T is insane, T and D could still act in concert. For example, D decides that he
wants V dead and procures T. Consequently, insanity will not automatically exclude the
possibility of agreement; rather, it will be a question of fact for the jury.
[page 230]
conduct the person engages in to help bring about the offence. The mens rea is consistent
with the common law requirement of Giorgianni: that D must intend to assist, encourage
or direct the conduct that amounts to commission of the offence. However, under s
323(3)(b), D need not be aware that he or she was assisting, encouraging or directing a
criminal offence. This is consistent with the principle that ignorance of the law is no
excuse.
2. The second form of involvement is where the person ‘enters into an agreement,
arrangement or understanding with another person to commit the offence’: s 323(1)(c).
This paragraph applies to the kinds of group activities targeted by acting in concert and
joint criminal enterprise. The focus of s 323(1)(c) is upon entering into an ‘agreement,
arrangement or understanding’.
3. In addition, both these basic ways of being involved in the commission of an offence are
supplemented by a form of recklessness. D will be involved in the commission of an
additional offence if D ‘was aware that it was probable that the offence charged would be
committed in the course of carrying out the other offence’: s 323(1)(b). This paragraph
simplifies the common law doctrine of common purpose in relation to situations where
an offence additional to the original plan occurs. Whether D intentionally ‘assists,
encourages or directs the commission of another offence’ or ‘enters into an agreement,
arrangement or understanding with another person’, the prosecution must prove that D
‘was aware that it was probable that the offence charged would be committed in the
course of carrying out the other offence’. Thus if D agreed with P1 to commit a robbery
and in the course of the robbery P1 killed V, the prosecution would have to prove that D
was aware that it was probable that a murder would be committed in the course of the
robbery.
11.48 The legislation is clear that physical presence at the scene of the
crime is not an essential part of being involved: s 323(3)(a). This is
appropriate in the age of telecommunications and cybercrime.
11.49 In s 323(2), the legislation clarifies the meaning of ‘encourages’,
stating ‘it is irrelevant whether or not the person who committed the offence
in fact was encouraged to commit the offence’. This is consistent with the
common law principle that there was no causal requirement for accessorial
liability, unless the prosecution asserted that D had procured the offence.
11.50 Under s 324B, the offender’s precise role need not be determined. As
noted above in relation to the New South Wales and South Australian cases
(see 11.4), there can be situations where it is not clear who did what — it is
only clear that D was involved. In those States, this has led to the prosecution
running cases based on several sets of principles: the doctrines of common
purpose, joint criminal enterprise, accessorial liability and/or innocent
agency. Under s 324B (Vic), the prosecution need only establish that a crime
was committed and D was either ‘the person who committed the offence or …
a person involved in the commission of the offence’.
Withdrawal
11.51 D may escape liability as an accessory if, before the offence was
committed, D terminated his or her involvement and took all reasonable steps
to prevent
[page 231]
the commission of the offence. D is required to neutralise any impact of his or
her involvement. In White v Ridley (1978) 140 CLR 342 Gibbs J said:
It seems entirely reasonable to insist that a person who has counselled or procured another to
commit a crime, or who has conspired with others to commit a crime, should accompany his
countermand or withdrawal with such action as he can reasonably take to undo the effect of his
previous encouragement or participation: at 350.
The requirements of withdrawal have been applied strictly by the courts. The
countermand must be timely, and ‘will not have been timely if it was given
when it was too late to stop the train of events which was started by his
request’: White v Ridley at 350–1 per Gibbs J. D’s actions need to be
reasonable in the circumstances.
11.52 In Tietie, Tulele and Bolamatu, D argued that he had withdrawn
from a joint criminal enterprise before it escalated into a more violent, and
ultimately fatal, attack on V. Lee J said:
To effectively withdraw from a common enterprise upon which he has embarked he must
withdraw completely. It must be timely. He must make it known to the others that he was
withdrawing and he must, by such act and words as may be appropriate, do what he reasonably
can to dissuade others from continuing with the unlawful purpose.
An accused must have said or done whatever is reasonably possible to countermand the effect of
his earlier encouragement and participation. The countermand will not be timely if it was given
when it was too late to stop the train of events which his presence and actions has encouraged: at
455–6.
11.53 In R v Rook [1993] 1 All ER 955, D had agreed with A, B and C to kill
A’s wife in return for A paying them £20,000. The plan was that they would
meet up and kill V the next day, but D did not turn up. Despite his absence, A,
B and C killed V, and all four were charged with murder. D asserted that he
had never intended V to be killed, but had hoped to get some money up front
from A and then disappear. He had deliberately absented himself on the day
of the killing because he had thought the others would not continue without
him. D was found guilty of murder and, on appeal, the Court applied the law
relating to withdrawal:
In the present case the appellant never told the others that he was not going ahead with the
crime. His absence on the day could not possibly amount to ‘unequivocal communication’ of his
withdrawal. In his evidence-in-chief … he said that he made it quite clear to himself that he did
not want to be there on the day. But he did not make it clear to the others. So the minimum
necessary for withdrawal from the crime was not established on the facts: at 963, original
emphasis.
[page 232]
Examples suggested include discouraging P1, alerting V, withdrawing the
goods necessary for committing the crime, and/or giving timely warning to an
appropriate law enforcement authority.
11.55 The reforms in Victoria maintain the common law rules of
withdrawal: ss 324(2), 324C.
Thus, at common law, D can only be convicted as an accessory after the fact
if the prosecution can establish that D had knowledge of all the relevant facts
and acts of the offence for which D is an accessory.
11.64 With that knowledge, an intention to assist D must act with the
intention to assist P1 escape arrest or conviction, even if D was motivated by a
desire to benefit personally: R v Young and Phipps (unreported, NSWCCA, 31
October 1995); Tevendale. For example, D may sell stolen property that P1
asked D to dispose of.
Derivative offences
11.68 D can incur liability for possessing the purpose to commit a
substantive criminal offence, where D’s conduct has the potential to result in
this harm. Criminalising preliminary conduct is justified by its preventative
effect, reducing the likelihood that a substantive crime will be committed.
[page 235]
CONSPIRACY
11.69 The crime of conspiracy exists at common law in New South Wales
and South Australia. Specific conspiracy offences are outlined by statute, eg,
conspiracy to murder: s 26 (NSW); s 12 (SA).
In Victoria, the common law offence has been abolished and replaced by a
statutory offence of conspiracy: ss 321, 321A–321F. These provisions broadly
follow the common law, and any differences will be discussed at the end of
this section: see 11.77.
Conspiracy is frequently charged in Australia, particularly in relation to
drug offences, and tax, corporate and social security fraud. Trials are generally
complicated and time consuming.
The offence of conspiracy is formulated in vague and wide terms. It is
beyond the scope of this text to provide full details regarding the law of
conspiracy. Hence, this section will provide a brief and necessarily incomplete
outline of the law.
The courts have been concerned about the potential for creating new
offences without the approval of the legislature. For example, in R v Rogerson
(1992) 174 CLR 268, McHugh J stated that ‘courts are no longer able to create
criminal offences’.
The classic description of the crime of conspiracy at common law is that it consists of an
agreement to do an unlawful act or a lawful act by unlawful means: Mulcahy (1868) LR 3 HL 306
at 317. The agreement itself constitutes the offence. The mens rea of the offence is the intention
to do the unlawful act: the actus reus of the offence is the fact of agreement: at 298.
Elements
In order for D to be found guilty of the crime of conspiracy, the prosecution must prove beyond
a reasonable doubt:
• D entered into an agreement with other persons;
• the agreement related to:
• the commission of an offence (common law and Victoria); or
• a lawful object, but the means to be used was unlawful (common law); or
• the object of doing injury to a third party or a class, where the wrong to be effected
would, if carried out, be a wrong but not a crime (common law); and
• D and at least one other party to the agreement intended that the offence should be
committed.
Agreement
11.70 The actus reus of the offence of conspiracy is the agreement to do an
unlawful act. The prosecution must prove the existence of an agreement. The
physical acts by which the conspirators form the agreement are the relevant
acts. Once the agreement is formed, the crime is committed.
[page 236]
The prosecution need not prove that there was agreement regarding the
way in which the unlawful act was to be performed, only that there was
agreement to perform the unlawful act: R v Douglas (1991) CCC (3d) 29 SCC.
It is unnecessary for the prosecution to prove that any overt acts towards
completion of the agreement were committed, as the agreement is the offence:
Rogerson. However, any overt acts will have evidentiary significance in terms
of proving the existence of an agreement. Conspiracy is generally proved by
reference to overt acts and any direct evidence of the formation of the
agreement.
Where the conspirators maintain the agreement, the crime of conspiracy
can continue through time. The agreement can also change and develop over
time.
There are various ways of forming agreements, and these highlight the
principle that each party need not speak to all the other parties. They include:
◆ wheel conspiracies — ‘one person … round whom the rest revolve’:
R v Meyrick (1929) 21 Cr App R 94; and
◆ chain conspiracies — ‘A communicates with B, B with C, C with D,
and so on to the end of the list of conspirators’: Meyrick.
The issue in conspiracies will be whether D was part of the overall plan.
Mens rea
11.71 The prosecution must prove a community of purpose:
◆ the intent to perform an unlawful act; and
◆ the intent to agree with one or more members of the group.
Intention
11.72 The mens rea for conspiracy is similar to that for attempt, in that
anything less than intent to perform an unlawful act will be insufficient. Thus,
recklessness will not ground liability: Siracusa v R (1990) 90 Cr App R 340.
Genuine consensus
11.73 It will be insufficient for the prosecution to prove that D knew of the
agreement, or was considering joining the agreement. The prosecution must
prove beyond a reasonable doubt that D entered into a genuine agreement
with at least one other person to commit an act.
The consensus must be genuine:
◆ D will not be liable for a sham agreement where there was only one
sincere party and one pretend conspirator: R v O’Brien (1955) 110
CCC 1;
◆ D will not be liable where only one party intends the act to be
committed in incriminating circumstances: R v Segal (1926) 45
CCC 32.
11.74 Impossibility The law relating to conspiracy to commit the
impossible is the same as that detailed for attempting the impossible: see
11.82. Thus, the defence of impossibility will not allow D to avoid liability.
The defence of impossibility will often arise in relation to police undercover
operations, eg, where D believes he or she is
[page 237]
acquiring heroin from a drug dealer, when D is actually receiving plaster of
Paris from an undercover police officer: R v Barbouttis (unreported,
NSWCCA, 15 February 1993). Refusal to criminalise conspiracy to commit
the impossible would undermine police operations in this area.
In R v El Azizi [2001] NSWCCA 397, it was held that a charge of conspiracy
to manufacture a prohibited drug was valid despite the fact that D could not
have made the drug with the ingredients he had planned to use.
As with attempt, impossibility at law will be a good defence. Thus in
Barbouttis it was held that there must be an agreement to commit an unlawful
act. If D had agreed to an act that would not in fact be illegal, D could not be
guilty of conspiracy.
11.75 Multiple object agreements Problems can arise in multiple object
agreements, where there are agreements for the commission of at least two
overt acts.
The prosecution must prove:
◆ a conspiracy with regard to the particular terms of each of the unlawful acts; and
◆ that D agreed to the commission of all of the objects in the conspiracy charged. Where the
prosecution can only prove D’s agreement with regard to some of the overt acts, then D
could be charged in relation to the agreement that has been proved.
ATTEMPT
11.78 D can incur liability for attempting to commit a crime under the
common law in New South Wales and South Australia. Provisions in these
jurisdictions relating to attempt rely on common law principles: s 344A
(NSW); s 270A (SA).
Victoria has abolished the offence of attempt under common law (s 321S),
and relies upon statutory provisions: ss 321M, 321N. The legislation is
incomplete, and common law cases are still relevant. The offence is limited to
attempts to commit indictable offences, and the offence itself is an indictable
offence: s 321M.
Broadly, an attempt is an act that goes beyond mere preparation, and goes
close to committing the substantive crime planned. A charge of attempt must
specify the substantive offence that D was attempting to commit. D is
punished for trying to commit a criminal offence.
Student tip
Attempt problem questions are relatively straightforward. Where students tend to have
problems is correctly identifying that the facts raise the offence of attempt, rather than a
completed offence.
The offence has been defined at common law in Britten v Alpogut [1987]
VR 929:
… a criminal attempt is committed if it is proven that the accused had at all material times the
guilty intent to commit a recognised crime, and it is proven at the same time he did an act or acts
(which in appropriate circumstances would include omissions), which are seen to be sufficiently
proximate to the commission of the said crime, and are not seen to be merely preparatory to it at
938 per Murphy J.
[page 239]
Elements
The prosecution must prove beyond a reasonable doubt:
• D intended to commit a crime; and
• D went beyond mere preparation: Britten v Alpogut.
Mens rea
11.79 Clearly, the offence of attempt relies heavily upon proof of a guilty
mind. The prosecution must prove beyond a reasonable doubt that D had the
intention to commit the substantive offence. Recklessness will be insufficient:
Giorgianni. Intention is required, even where recklessness would be sufficient
mens rea for the substantive offence.
D must intend the specific harm associated with the offence. In Knight v R
(1992) 175 CLR 495, it was held that the prosecution must prove beyond a
reasonable doubt that D had the intention to kill for a charge of attempted
murder. Intention to inflict GBH would be insufficient for a charge of
attempted murder. This is because the mens rea for attempt is the intention to
commit the completed offence.
The mens rea for this offence in Victoria is the same as at common law (s
321N):
(2) For a person to be guilty of attempting to commit an offence, the person must —
(a) intend that the offence the subject of the attempt be committed; and
(b) intend or believe that any fact or circumstance the existence of which is an element of the
offence will exist at the time the offence is to take place.
(2A) For the purposes of subsection (2)(b), in the case of an attempt to commit an offence against
section 38 (rape), section 39 (rape by compelling sexual penetration), section 40 (sexual
assault) or section 41 (sexual assault by compelling sexual touching), instead of the element
of the offence referred to in section 38(1)(c), 39(1)(c), 40(1)(d) or 41(1)(d), it must be proved
that at the time of the attempt the person (A) does not reasonably believe that the person
against whom the offence is to be committed (B) would consent to the penetration or the
touching (as the case requires).
Actus reus
11.80 There is no precise definition of the actus reus of the offence of
attempt. This is because there have been difficulties in formulating a precise
standard, due to the complexity of determining the extent to which D’s
actions must reveal the potential to cause specific harm, in order to warrant
punishment. A broad definition is that D’s actions must go beyond mere
preparation, and go close to the commission of the intended crime: R v
Collingridge (1976) 16 SASR 117. It will be a question of fact for the jury as to
whether or not D has gone beyond mere preparation.
D’s actions are assessed according to objective standards, but based upon
the belief that D had the intent to commit the substantive offence.
[page 240]
Several tests have been proposed to distinguish between mere preparation
and attempt:
◆ Proximity test
Acts remotely leading towards the commission of the offence are not
to be considered as attempts to commit it, but acts immediately
connected with it are: R v Eagleton (1843–60) 169 ER 826.
◆ Last act test
An attempt is found only where the last act before completion has
been performed: Eagleton.
◆ Series of acts test
Would an offence have been committed if this series of acts had not
been interrupted? Haughton v Smith [1975] AC 476.
◆ Unequivocal test
An attempt only occurs where the conduct unequivocally indicates an
intention to commit the offence: R v Barker [1924] NZLR 865.
In DPP v Stonehouse [1978] AC 55, the House of Lords held that these tests
should be used only as guidelines to drawing a distinction between mere
preparation, and conduct going close to the commission of the offence.
Ultimately it will depend on the facts of the case as to whether the conduct is
considered to amount to attempt.
The actus reus of the statutory offence of attempt in Victoria is the same as
the common law offence: s 321N(1). This provision requires conduct that is
‘more than merely preparatory to the commission of the offence’ and
‘immediately and not remotely connected with the commission of the
offence’. This is a twofold test which does not add anything to the common
law.
Voluntary desistance
11.81 D may attempt to commit a crime, and then voluntarily desist before
its completion. So long as D’s acts are sufficiently proximate to constitute an
attempt, voluntary desistance by D will not provide a defence to a charge of
attempt. D’s motivation — whether due to genuine remorse or fear of capture
— will be irrelevant (but may influence sentencing): O’Connor v Killian
(1984) 38 SASR 327.
In R v Page [1933] VLR 351, the Supreme Court of Victoria considered a
case where D and X had planned to break into a shop. D was to keep watch
while X broke in. X was in position to lever open a window when he decided
not to continue with the job. The Court held that D and X had the intention
to break and enter and had gone beyond mere preparation. The fact that they
had desisted and their reasons for doing so were irrelevant, as otherwise ‘it
would seem to involve the necessity in almost every case of an unsuccessful
attempt to commit a crime, of determining whether the accused desisted from
sudden alarm, from a sense of wrongdoing, from a failure of resolution, or
from any other cause’: at 353.
[page 241]
Impossibility
11.82 Cases have arisen where D has attempted the impossible.
In New South Wales, South Australia and Victoria, a distinction is made
between factual impossibility and legal impossibility: R v Mai (1991) 26
NSWLR 371; R v Irwin (2006) 94 SASR 480; s 321N (Vic).
Where D is incapable of fulfilling an offence by reason of factual matters, it
is immaterial to a charge of attempt that, by reason of circumstances
unknown to D, it is impossible to commit the offence: Britten v Alpogut; s
321N (Vic).
Where D attempts to commit an offence which is unknown to law, then D
will not be liable for that conduct: Britten v Alpogut. For example, if D
incorrectly believes that adultery is a criminal offence, D cannot be charged
with attempted adultery.
In Britten v Alpogut, D believed that he was importing a prohibited import,
cannabis, into Australia. The substance was concealed at the bottom of a
suitcase which D had collected at the airport. He did not declare the
substance, and it was found during a customs examination. The substance
turned out to be a licit substance. It was held that there was a case to answer at
law:
If the facts had been as the accused had believed them to be, he would have committed the
intended crime … He is punishable, not because of any harm that he has actually done by his
conduct, but because of his evil mind, accompanied by acts manifesting that intent: at 936.
In cases where D attempts the impossible, the ultimate issue will be whether
D’s actions are sufficiently proximate to the commission of the intended
offence. Thus, physical impossibility will not save D from conduct that would
otherwise amount to an attempt. The focus in these cases is on D’s mens rea:
Did D have the intention to commit an offence?
Legal Problem
Coby was walking down the street after going to the pub. Russell and Dinah agreed to beat him
up with the intention of getting some money. Russell went after Coby, and Dinah stayed
behind to keep watch. Russell came back after five minutes saying that Coby only had $50
anyway. Russell did not tell Dinah that he had stabbed Coby and killed him. Dinah knew that
Russell usually carried a knife, although she was not sure that he had a knife with him that
night. Dinah also knew that Russell had a temper, and could be violent when he was angry.
Discuss Dinah’s criminal liability.
Answer
Introduction: New South Wales and South Australia
Dinah could be charged as a principal in the first degree for the robbery under the doctrine of
joint criminal enterprise: Osland v R (1998) 197 CLR 316; 159 ALR 170. Dinah could also be
charged with the murder of Coby under the doctrine of common purpose. The prosecution
would have to prove all elements of the offence beyond a reasonable doubt: Woolmington v
DPP [1935] AC 462. [Comment: This is quite a
[page 242]
complex problem question, so the focus of the suggested response is primarily on structure.]
Introduction: Victoria
Dinah could be charged as the perpetrator of the robbery under s 324 (Vic). Dinah could also be
charged with the murder of Coby under s 323(1)(d) (Vic).
The robbery: New South Wales, South Australia and Victoria
The prosecution may seek to argue that Dinah is a principal in the first degree for the robbery of
Coby in New South Wales and South Australia. The elements of this doctrine have been
detailed by the High Court in Osland.
Under s 324 (Vic) a person who is ‘involved’ in the commission of an offence is taken to have
committed the offence.
The prosecution must prove that the accused agreed to commit the crime in concert (or was
‘involved’ in the crime: s 323 Vic). The facts state that Russell and Dinah agreed to beat Coby up
with the intention of getting some money. This is an agreement to commit a robbery.
The prosecution must prove that the actus reus of the crime was committed by parties to the
agreement. This would require proving the actus reus of robbery was committed by Russell: s 94
(NSW); s 137 (SA); s 75(1) (Vic).
This requires the prosecution to prove theft (South Australia and Victoria) or larceny (New
South Wales). In New South Wales, this requires that Russell took and carried away property,
capable of being stolen, which belonged to another, without the consent of the owner: Ilich v R
(1987) 69 ALR 231. In South Australia and Victoria, this requires dishonest appropriation of
property belonging to another: s 134 (SA); s 72 (Vic). The prosecution would have no difficulties
proving these elements as Russell took Coby’s $50 without his consent.
The actus reus of robbery also requires that an accused used or threatened violence to commit
the theft: Smith v Desmond [1965] AC 960; s 137 (SA); s 75 (Vic). The prosecution would have no
difficulty in establishing that Russell used force in order to get money — the facts state that
Russell and Dinah planned to beat up Coby with the intention of getting money.
The prosecution must also establish that Dinah had the mens rea for the offence of robbery.
In New South Wales, the prosecution must prove that Dinah intended to deprive Coby
permanently of the property without a claim of right and fraudulently: Ilich.
In South Australia and Victoria, the prosecution must prove dishonest appropriation of the
property with an intention of permanently depriving the owner of it: s 134 (SA); s 71 (Vic).
Russell and Dinah planned to take money from Coby that they were not entitled to. There is no
suggestion on the facts that they intended to return the money. Given their lack of entitlement
to the money, their conduct would be regarded as fraudulent or dishonest. Accordingly, Dinah
had the necessary mens rea for larceny/theft.
In addition, in New South Wales the prosecution must prove that Dinah intended to use
violence to obtain property from Coby: Smith v Desmond. In South Australia and Victoria, the
prosecution must prove that Dinah intended to use force or put any person in fear that they will
be subjected to force: s 137 (SA); s 75 (Vic). The prosecution
[page 243]
would have no difficulty in proving that Dinah and Russell had agreed to use force in order to
get money from Coby. This element of mens rea would be satisfied.
Accordingly, Dinah could be guilty under the doctrine of joint criminal enterprise for the
robbery of Coby.
The murder: New South Wales and South Australia
Dinah could be liable for the murder of Coby under the doctrine of common purpose: McAuliffe
and McAuliffe v R (1995) 130 ALR 26.
This requires that the prosecution establish that Dinah and Russell had a common intention to
prosecute an unlawful purpose: Johns v R (1980) 28 ALR 155. I have argued above that the
prosecution would be able to establish that Dinah and Russell agreed to commit a robbery.
The prosecution would also have to establish that the principal offence was committed in the
pursuance of, in furtherance of, or for the purpose of, the common design: Johns. This would
involve proving that Russell committed the murder in the pursuance of the robbery. The facts
state that Russell killed Coby, satisfying the requirement that the accused cause the death of
the victim: Royall v R (1991) 172 CLR 378. It is not clear on the facts whether or not Russell had
the mens rea for murder.
The prosecution would have to establish that Dinah contemplated the incidental crime as a
possible incident of the joint enterprise: Johns. The facts state that Dinah was aware that Russell
usually carried a knife and that he had a temper. This is similar to the case of Johns, where the
accused knew that the principal in the first degree was quick-tempered and always carried a
pistol. It was held that the accused could be held responsible for the murder, provided he
recognised the possibility that a member of the group would commit the additional offence.
The only difference in this case is that Dinah was not sure if Russell had the knife that night, but
she knew that he usually carried a knife. This aspect has been broadly interpreted: R v R (1995)
63 SASR 417.
Thus it is likely that the prosecution would be able to establish the necessary mens rea for the
doctrine of common purpose. [Comment: This paragraph demonstrates knowledge of decided
cases. It makes arguments considering commonalities and differences on the facts, and how
this might influence outcome.]
Accordingly, Dinah would be guilty of the crimes of robbery under the doctrine of joint criminal
enterprise, and of the murder under the doctrine of common purpose.
The murder: Victoria
Dinah could be charged with the murder of Coby under s 323(1)(d) (Vic). Dinah agreed to
commit a robbery on Coby with Russell. The prosecution would have to prove that she was
aware that it was probable that the murder charged would be committed in the course of
carrying out the other offence. It would be a question for the jury whether or not the
prosecution established that, given Dinah’s knowledge that Russell usually carried a knife and
that he had a temper, she recognised the probability of murder.
[page 244]
Chapter 12
Defences: Mental Impairment and
Automatism
Objectives
After reading this chapter you should be familiar with the following:
▶ defence of insanity at common law
▶ the burden of proof for the defence of mental impairment
▶ the M’Naghten rules
▶ the legal concept of a disease of the mind
▶ limits to the scope of the defence of mental impairment
▶ doctrine of automatism
▶ automatism and mental impairment
INTRODUCTION
12.1 Ascription of criminal responsibility is based on the presumption that
individuals have the capacity to choose rationally when acting. D is
considered blameworthy if D performed a criminal act voluntarily and
intentionally, and understood the nature of his or her act. Some mental states
may impair the ability of individuals to act voluntarily or rationally. The law
recognises some of these mental states when determining liability for criminal
acts.
In all Australian jurisdictions, mentally impaired persons have a defence to
any criminal charges brought against them. Historically, the name of this
defence was insanity. All jurisdictions have sought to move away from the
stigmatising label of ‘insanity’. In New South Wales it is now known as
‘mental illness’, in South Australia it is ‘mental incompetence’ and in Victoria
‘mental impairment’. The chapter will use the term ‘mental impairment’ to
cover all jurisdictions.
This chapter considers the defence of mental impairment and the related
‘defence’ of automatism. Automatism can be broadly defined as a state in
which D’s mind or will does not accompany his or her actions.
[page 245]
MENTAL IMPAIRMENT
12.2 The law of mental impairment derives from M’Naghten’s Case [1843–
60] All ER Rep 229. The so-called M’Naghten rules state that jurors ought to
be told that:
… every man is presumed to be sane, and to possess a sufficient degree of reason to be
responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish
a defence on the ground of insanity, it must be clearly proved that, at the time of the committing
of the act, the party accused was labouring under such a defect of reason, from disease of the
mind, as to not know the nature and quality of the act he was doing; or, if he did know it, that he
did not know he was doing what was wrong: at 233.
Elements
For the defence of mental impairment to succeed, it must be proved, on the balance of
probabilities, that at the time of the act, D was labouring under such defect of reason, owing to
a disease of the mind, that:
• D did not know the nature and quality of his or her act; or
• if D did know it, that D did not know that what he or she was doing was wrong
The defence is still a common law defence in New South Wales, although
statutory provisions in relation to it exist: Mental Health (Forensic
Provisions) Act 1990.
In South Australia and Victoria the common law defence of insanity is
largely reflected by statutory provisions.
In Victoria, the common law defence has been abrogated by s 25(1) of the
Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and
replaced with the defence of ‘mental impairment’ under s 20(1) of the same
Act. In this chapter, all references to Victorian legislation will be to the Crimes
(Mental Impairment and Unfitness to be Tried) Act 1997. The defence in
Victoria is similar to the common law in many respects. Under s 20(1), a
person may be found not guilty on the grounds of mental impairment if:
… at the time of engaging in conduct constituting the offence, the person was suffering from a
mental impairment that had the effect that —
(a) he or she did not know the nature and quality of the conduct; or
(b) he or she did not know that the conduct was wrong (that is, he or she could not reason with a
moderate degree of sense and composure about whether the conduct, as perceived by
reasonable people, was wrong).
Under s 269C (SA), the defence of ‘mental incompetence’ is broader than the
common law defence of insanity:
A person is mentally incompetent to commit an offence if, at the time of the conduct alleged to
give rise to the offence, the person is suffering from a mental impairment and, in consequence of
the mental impairment:
(a) does not know the nature and quality of the conduct; or
(b) does not know that the conduct is wrong; or
(c) is unable to control the conduct.
[page 246]
Burden of proof
The prosecution is entitled to presume that every person is mentally competent. To raise the
issue of mental impairment, the evidential burden of suggesting that there is a reasonable
possibility D was mentally impaired must be satisfied. The party raising the issue of mental
impairment bears the burden of proving mental impairment on the balance of probabilities: R v
Porter (1933) 55 CLR 182; ss 269D, 269I (SA); s 21 (Vic).
Mental impairment is thus an exception to the Woolmington v DPP [1935] AC 462 ‘golden
thread’ rule: see Chapter 1.
The elements of the offence which have to be proved by the prosecution when
the defence of mental impairment is established have been examined in
England. In Re Attorney-General’s Reference (No 3 of 1998) [1999] 3 All ER 40,
D had broken into a house and assaulted the occupants in the belief that he
was Jesus Christ. Both the prosecution and defence agreed that D was legally
insane. The Court of Appeal held that:
… assuming insanity … the Crown is required to prove the ingredients which constitute the
actus reus of the crime … the Crown is not required to prove the mens rea of the crime alleged,
and apart from insanity, the defendant’s state of mind ceases to be relevant: at 49.
It was held that D was suffering from a disease of the mind or disorder due to
the cocktail of drugs, the sleeplessness and the nervous breakdown.
One major factor in determining whether a disease of the mind exists, is the
likelihood of recurrence. This is based on policy considerations related to
community safety, rather than medical conceptions of diseases of the mind.
[page 249]
12.9 In South Australia and Victoria, different terms are used, but the
statutory definitions suggest the concepts are the same.
In South Australia, a ‘mental impairment’ is required. Under s 269A, this
includes mental illness, an intellectual disability, or a disability or impairment
of the mind resulting from senility, but does not include intoxication. ‘Mental
illness’ is defined in s 269A as ‘a pathological infirmity of the mind’. These
provisions are likely to be interpreted consistently with the common law
‘disease of the mind’.
The Victorian term ‘mental impairment’ (s 20(1)) is not defined, and may
be interpreted more broadly than the common law term ‘disease of the mind’:
see R v Konidaris [2014] VSC 89.
In New South Wales, ‘mental illness’ is defined under the Mental Health
Act 2007 in s 4:
Mental illness means a condition that seriously impairs, either temporarily or permanently, the
mental functioning of a person and is characterised by the presence in the person of any one or
more of the following symptoms:
(a) delusions,
(b) hallucinations,
(c) serious disorder of thought form,
(d) a severe disturbance of mood,
(e) sustained or repeated irrational behaviour indicating the presence of any one or more of the
symptoms referred to in paragraphs (a)–(d).
In Porter, it was held that the 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.
Rare cases where the first limb is satisfied may arise in insane automatism
cases (see 12.26). In Kemp, it was held that D did not know the nature and
quality of his act. While suffering from arteriosclerosis, D had hit his wife with
a hammer, and was not conscious of what he was doing.
Knowledge of wrongfulness
12.16 Even where D knew the nature and quality of his or her act, D may
secure an acquittal if D proves, on the balance of probabilities, that he or she
did not know that the act was wrong, due to a disease of the mind. The main
question is whether or not D was able to reason with a moderate degree of
sense and composure. If D was unable to so reason, then it could be said that
D could not know that he or she was doing wrong. This limb is expressly
included in s 269C(b) (SA) and s 20(1)(b) (Vic).
12.17 ‘Wrong’ means wrong according to the principles of ordinary
people: Porter. It does not mean wrong in the sense of being contrary to law.
In Stapleton v R (1952) 86 CLR 358, D was charged with the murder of a
police officer whom he had shot and
[page 251]
killed. He pleaded mental impairment at the time of the commission of the
offence. The High Court held that the appropriate standard was whether D
appreciated that ‘his act was wrong, according to the ordinary standards
adopted by reasonable men’: at 358. A retrial was ordered, as the trial judge
had directed the jury, incorrectly, to consider whether D was aware that his
actions were wrong according to law. The High Court recognised that,
generally, this will make little difference; however, there may be cases where D
was incapable of reasoning as to right or wrong, but was aware that his or her
actions were punishable by law.
In Victoria, s 20(1)(b) reflects the common law:
he or she did not know that the conduct was wrong (that is, he or she could not reason with a
moderate degree of sense and composure about whether the conduct, as perceived by reasonable
people, was wrong).
For example, in DPP v Traynor (Ruling) [2012] VSC 100, D had thrown
methylated spirits onto her father and set him alight using a cigarette lighter.
She was charged with intentionally causing serious injury and successfully
pleaded mental impairment due to significant psychotic symptoms:
Whilst I am not satisfied that the accused at the time did not know the nature and the quality of
her conduct, nevertheless I am well satisfied on the balance of probabilities that she did not know
that her conduct was wrong, that is that she could not reason with a moderate degree of sense
and composure about whether the conduct as perceived by reasonable people was wrong.
Accordingly, I am prepared to make, and do make, a declaration under s 23(a): at [30] per Kaye
J.
Scope of the defence
12.18 The defence of mental impairment has been criticised due to its
narrowness. The defence may exclude the psychopath and someone suffering
from irresistible impulse. The common law position will be discussed first,
and then the impact of legislative reforms in specific jurisdictions will be
considered.
Psychopathy
12.19 Antisocial personality disorder, or psychopathy, does not of itself
amount to a disease of the mind. A psychopath may lack an emotional
appreciation of the wrongness of an act; but if a psychopath has an intellectual
comprehension of the wrongness of an act, then the psychopath cannot rely
on the defence. Thus, a psychopath may know rationally that what he or she
does is wrong, but will not care. According to the law, this means a
psychopath cannot assert mental impairment, as the psychopath knows that
what he or she is doing is wrong.
In Willgoss v R (1960) 105 CLR 295, evidence was given by two psychiatrists
that D was a ‘gross psychopath’, due to his gross lack of self-control and his
gross diminution of emotional feeling, which involved a gross diminution of
conscience. The High Court upheld D’s conviction of murder, rejecting D’s
argument that:
… a mere intellectual apprehension on the prisoner’s part of the wrongness of the act would not,
or might not amount to knowledge, unless it was accompanied by some sufficient appreciation
of, or feeling about, the effect of his act upon other people; perhaps some
[page 252]
moral appreciation. The law provides no foundation for such a complaint. It is enough to say
that it is an attempt to refine upon what amounts to knowledge of the wrongness of the act
which is not countenanced by law: at 301.
Victorian legislation reflects the common law and does not include irresistible
impulse as grounds for the defence of mental impairment.
AUTOMATISM
12.23 The doctrine of automatism exonerates from liability a person who
did not control or direct his or her actions. Under this doctrine, a person is
not responsible for an involuntary act. Although automatism is colloquially
referred to as a defence, it is probably more appropriate to think of it as a
negativing factor. Automatism goes further than mere restatement of the
actus reus requirement of voluntariness, as a system of rules and principles
have been developed around this requirement, limiting the adducing of
evidence of automatism and its effect.
In R v Cottle [1958] NZLR 999, Gresson P defined automatism:
Automatism which strictly means action without conscious volition, has been adopted in
criminal law as a term to denote conduct of which the doer is not conscious — in short, doing
something without knowledge of it, and without memory afterwards of having done it — a
temporary eclipse of consciousness that nevertheless leaves the person so affected able to exercise
bodily movements. In such a case, the action is one which the mind in its own normal
functioning does not control: at 1007.
Burden of proof
The prosecution is entitled to presume that D had sufficient mental capacity to act according to
an exercise of will: Falconer.
In order to raise automatism as an issue, D must satisfy the evidential burden, ie, raise the
possibility that D’s actions were not voluntary.
Once the issue of (sane) automatism (see 12.26) has been raised, the prosecution must prove,
beyond a reasonable doubt, that D’s actions were voluntary.
The distinction between sane and insane automatism will often rest on the
policy consideration of whether the dangerous behaviour is likely to recur.
Three tests have been developed by the courts to distinguish sane and insane
automatism: the recurrence test, the internal/external test and the
unsound/sound mind test. However, these tests are to be considered as
guidelines only: Falconer.
Student tip
The courts are attempting to distinguish between a sane mind reacting to extreme
circumstances (sane automatism), and an abnormal mind reacting to ordinary pressures (insane
automatism)
Recurrence test
12.27 If the mental condition is prone to recur, it should be considered a
disease of the mind: Bratty v Attorny-General (Northern Ireland) [1963] AC
386.
Internal/external test
12.28 If the mental state is internal to D, as opposed to arising from an
external cause, then it should be defined as a disease of the mind: Falconer.
[page 255]
In Falconer, D was convicted of wilful murder of V, her husband, with a
shotgun fired by D. She gave evidence of a violent marriage and the discovery
that V had sexually interfered with their daughters. On the day of his death, V
had come to the house and sexually assaulted D. 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 High Court upheld D’s acquittal. It determined that the objective facts
adduced by D were pertinent circumstances upon which the jury could rely in
determining whether ‘an ordinary person would have succumbed to a state of
dissociation similar to that which Mrs Falconer claims overtook her that day’:
at 58. The standard to be applied is:
… the standard of the ordinary person; if the mind’s strength is below that standard, the mind is
infirm; if it is of or above that standard the mind is sound or sane … [and the] malfunction
cannot be attributed to mental infirmity but to ‘the nature of man’; that is to say, malfunction
which is transient and not prone to recur and to which the mind of an ordinary person would be
subject if exposed to the same psychological trauma is neither a mental disease nor a natural
mental infirmity. It is neither an instance of unsoundness of mind … nor an instance of insanity
at common law: at 55.
The ordinary person does not possess any of the particular emotional
features of D at the time of the offence. For example, at the time of the
homicide in Falconer, D was suffering from depression. This would not be
taken into account in determining how the ordinary person would have
reacted, as the ordinary person is not suffering from depression. However,
objective factors would be taken into account, such as the history of violence
and abuse of the children.
The internal/external test was also applied in Martin, where Bongiorno J
held that D’s cannabis-induced psychosis was caused by external factors.
12.29 The arbitrary distinction between internal and external causes is
demonstrated in Quick and Hennessy. In Quick, D was charged with
assaulting V, and he raised the defence of automatism. D (a diabetic) gave
evidence he had injected himself with insulin, drunk large quantities or
alcohol and not eaten, so that at the time of the assault he was suffering from
hypoglycaemia (low blood sugar). It was held that the malfunctioning of his
mind was not due to diabetes, but due to his use of insulin. As such, D was
entitled to have his defence of automatism left to the jury.
[page 256]
In contrast, in Hennessy, D had stolen a car and argued automatism. D (also
a diabetic) claimed that at the time of the theft he was suffering from
hyperglycaemia (high blood sugar) as he had failed to take his insulin. The
Court of Appeal confirmed the trial judge’s ruling that D’s evidence raised a
defence of mental impairment. Unlike Quick, the condition in this case was
caused by an inherent defect or disease and as such would fall within the
M’Naghten rules.
Unsound/sound mind test
12.30 This is a more sophisticated version of the internal/external test,
which has been used to categorise ‘dissociative states’. A disease of the mind is
considered, on this test, to be evidenced by the reaction of an unsound mind
to its own delusions or external stimuli: R v Radford (1985) 42 SASR 266.
Student tip
Students would be advised to apply all three tests in a problem question when considering
whether D is arguing sane or insane automatism.
Conclusion
Whether or not Peter was suffering from a disease of the mind is a question of law, not fact: R v
Falconer (1990) 171 CLR 30 at 49. Peter’s delusions were due to taking the drug ice rather than a
disease of the mind. Accordingly, a judge would in all likelihood refuse to put the defence of
mental impairment to the jury.
[Comment: This problem question is based on the case of R v Zhen Fang (No 3) [2017] NSWCS
28.]
[page 258]
Chapter 13
Defences: Intoxication, Mistake of
Fact, Self-Defence, Duress and
Necessity
Objectives
After reading this chapter you should be familiar with the following:
▶ intoxication as a negativing factor
▶ defence of mistake of fact
▶ principles of self-defence
▶ defence of duress
▶ defence of necessity
INTOXICATION
13.1 Intoxication is not a defence to a criminal charge, but may negate
certain elements of a crime if it causes a condition that is inconsistent with
criminal responsibility.
Intoxication may form the basis of:
◆ a plea of automatism: going to the actus reus, arguing
involuntariness (see Chapter 12);
◆ a defence of mental impairment: where an intoxicant has triggered
an underlying disease of the mind (see Chapter 12); or
◆ a denial that D had the necessary mens rea.
In each jurisdiction, the defence of intoxication has been placed on a
statutory footing. In New South Wales statutory reforms have replaced the
common law approach.
[page 259]
Burden of proof
D will bear the evidential burden of raising the issue of intoxication as it relates to
involuntariness or mental impairment. Generally, D’s evidence of intoxication will have to be
reasonably persuasive before it is determined that the issue can be left to the jury: Shaw v R
[1981] 2 NSWLR 648; s 269 (SA); R v B, MA (2007) 99 SASR 384. This evidence will be related to
the fact of ingesting an intoxicant and the degree of intoxication:
• where D raises the intoxication in relation to a defence of (sane) automatism or
involuntariness, D will bear only the evidential burden. The prosecution will then be
required to prove voluntariness or mens rea beyond a reasonable doubt;
• where D raises intoxication in relation to mental impairment, D must prove mental
impairment on the balance of probabilities.
The High Court has noted that juries tend to be sceptical of a defence based on self-induced
intoxication: R v O’Connor (1980) 146 CLR 64.
At common law, the jury must determine whether D was so intoxicated at the
time of the offence that his or her acts were not the product of D’s will, so that
he or she lacked mens rea. The issue is not whether D was so intoxicated as to
be incapable of forming mens rea generally, but whether or not D formed the
mens rea required.
‘Dutch courage’
13.4 At common law, where D forms the intent to commit a crime and
becomes intoxicated to give himself or herself ‘Dutch courage’ and then
commits the crime, D will have no defence no matter how intoxicated he or
she was at the time:
My Lords, I think the law on this point should take a clear stand. If a man, whilst sane and sober,
forms an intention to kill and makes preparation for it knowing it is a wrong thing to do, and
then gets himself drunk so as to give himself Dutch courage to do the killing, and whilst drunk
carries out his intention, he cannot rely on this self-induced drunkenness as a defence to a
charge of murder, nor even as reducing it to manslaughter. He cannot say he got himself into
such a stupid sate that he was incapable of intent to kill. So also, when he is a psychopath, he
cannot by drinking rely on his self-induced defect of reason as a defence of insanity. A
wickedness of his mind before he got drunk is enough to condemn him, coupled with the act
which he intended to do and did so: Attorney-General for Northern Ireland v Gallagher [1963]
AC 349 at 382 per Lord Denning.
This was also approved by the High Court in O’Connor. South Australia has
sustained this approach to ‘Dutch courage’: s 268.
Involuntary consumption
13.5 At common law, the approach to the issue of intoxication is the same
whether or not D’s intoxication was voluntary: O’Connor. If D has the
necessary mens rea and acted voluntarily, D will be guilty of the offence
charged. The fact that D was affected by involuntary intoxication and would
not have performed the acts otherwise would be a matter to be taken into
account in sentencing.
This approach was confirmed by the House of Lords in R v Kingston [1994]
3 All ER 353. In that case, D had paedophiliac tendencies and had been
drugged by X for the purposes of blackmailing him. While under the
influence of drugs, D sexually abused V, a 15-year-old boy, and was
photographed doing so. D stated that his drink had been laced and he would
not have sexually abused V, but for the disinhibiting effects of the drug. The
House of Lords upheld D’s conviction, stating that if the necessary act was
committed with the necessary intent, D would be guilty of the offence. Loss of
[page 261]
self-control due to a third party does not constitute a defence, although it can
act as a mitigating element. A drugged intent was still an intent.
Intoxication and murder and manslaughter
13.6 In criminal law, the reasonable person is always sober. This means, in
cases where D’s actions are assessed according to the ‘reasonable person’
standard, D’s intoxication will not be taken into account. This in turn means
that, while D may be acquitted of murder due to lack of mens rea because of
intoxication, D will still be liable for (involuntary) manslaughter. This is
because both offences of unlawful and dangerous act manslaughter and
manslaughter by criminal negligence assess D’s behaviour according to the
standard of the reasonable person. The non-intoxicated reasonable person is
highly likely to regard D’s actions as objectively dangerous or negligent.
Student tip
It is not enough for D to be drunk. D must be so intoxicated that D either acts involuntarily or is
unable to form the mens rea for an offence.
[page 262]
(2) Intoxication resulting from the recreational use of a drug is to be regarded as self-
induced.
(3) If a person becomes intoxicated as a result of the combined effect of the therapeutic
consumption of a drug and the recreational use of the same or another drug, the
intoxication is to be regarded as self-induced even though in part attributable to
therapeutic consumption.
Intoxication in Victoria
13.9 Section 322T (Vic) modifies the relevance of intoxication for all
offences, but only in relation to any defence involving a ‘reasonable’ belief or
response. It does not affect the common law about intoxication, as stated in
O’Connor (see 13.3 above),
[page 263]
in relation to any other issue, such as its effect on involuntariness or mens rea.
Section 322(T) provides:
(1) In this section —
‘defence’ includes self-defence, duress and sudden or extraordinary emergency;
‘intoxication’ means intoxication because of the influence of alcohol, a drug or any other
substance.
(2) If any part of a defence to an offence relies on reasonable belief, in determining whether that
reasonable belief existed, regard must be had to the standard of a reasonable person who is
not intoxicated.
(3) If any part of a defence to an offence relies on reasonable response, in determining whether
that response was reasonable, regard must be had to the standard of a reasonable person who
is not intoxicated.
(4) If a person’s intoxication is not self-induced, in determining whether any part of a defence to
an offence relying on reasonable belief or reasonable response exists, regard must be had to
the standard of a reasonable person intoxicated to the same extent as the person concerned.
(5) For the purposes of this section, intoxication is self-induced unless it came about —
(a) involuntarily; or
(b) because of fraud, sudden or extraordinary emergency, accident, reasonable mistake,
duress or force; or
(c) from the use of a drug for which a prescription is required and that was used in
accordance with the directions of the person who prescribed it; or
(ca) from the use of a medicinal cannabis product in accordance with a patient medicinal
cannabis access authorisation; or
(d) from the use of a drug for which no prescription is required (other than a medicinal
cannabis product) and that was used for a purpose, and in accordance with the dosage
level, recommended by the manufacturer.
(6) Despite subsection (5), intoxication is self-induced in the circumstances referred to in
subsection (5)(c), (ca) or (d) if the person using the drug knew, or had reason to believe,
when the person took the drug that the drug would significantly impair the person’s
judgment or control.
Actus reus
13.12 Self-induced intoxication will not be available for a defence of
involuntariness: s 428G(1); Hadba v R (2004) 182 FLR 472. The defence of
involuntariness continues to be available if D’s intoxication was not self-
induced: s 428G(2).
Mens rea
13.13 A distinction is drawn between crimes of ‘specific’ intent and crimes
of ‘basic’ or ‘general’ intent. The line between crimes of specific and basic
intent can be arbitrary, but is specified in the legislation under s 428B.
Offences of specific intent are offences of which an intent to cause a specific
result is an element.
Intoxication may be pleaded in relation to specific intent crimes, whether
the intoxication is self-induced or not: s 428C.
In relation to offences other than those of specific intent, where D raises
intoxication as a negativing factor of mens rea:
◆ if intoxication was self-induced, then it cannot be taken into
account: s 428D(a); R v Lipman [1970] 1 QB 152; Day v R [2017]
NSWCCA 192;
◆ if intoxication was not self-induced, then it may be taken into
account: s 428D(b).
Specific rules are created in relation to intoxication and murder. If D’s
intoxication was self-induced, then murder can only be reduced to
manslaughter. If it was not self-induced, then D may be acquitted: s 428E.
Student tip
Students need to read the sections regarding intoxication in New South Wales carefully,
particularly those relating to specific and basic intent offences.
’Dutch courage’
13.14 Section 428C(2) accords with the common law rule that D cannot
rely on intoxication where D became intoxicated for ‘Dutch courage’:
Attorney-General for Northern Ireland v Gallagher [1963] AC 349.
Critique
13.15 The High Court specifically disapproved of Majewski in O’Connor;
however, the position in Majewski has been reinstated in New South Wales.
The majority in O’Connor objected to Majewski on the grounds that D can
incur liability even where D does not have the necessary mens rea or actus
reus for the crime:
It seems to me to be completely inconsistent with the principles of the common law, that a man
should be conclusively presumed to have an intent which, in fact, he does not have, or to have
done an act which, in truth, he did not do: O’Connor at 87 per Barwick CJ.
Thus, D can incur liability under the New South Wales legislation, while
lacking vital elements for the offence, due to the culpability of becoming
intoxicated.
[page 265]
DEFENCE OF MISTAKE OF FACT
13.16 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.
[page 267]
For example, consider the situation where D mistakenly believes that V is
armed with a gun, and therefore uses lethal force in self-defence. If the jury
considers that D honestly held that belief, then clearly 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 would be considered on the basis that what D
believed was true. That is, if V was armed, was D’s decision to resort to force
reasonable, even if an ordinary person might not have held the belief that V
was armed?
SELF-DEFENCE
Common law self-defence
13.22 In all the States, legislative provisions have displaced some or all of
the common law principles relating to self-defence.
The law has recognised that a person is justified in using some level of force
in self-defence. To act in self-defence is to act lawfully, resulting in a complete
acquittal of D.
The principles of self-defence apply to defence of self, defence of other
persons, prevention of a serious crime, defence of property and effecting a
lawful arrest.
Burden of proof
Under the common law, the evidential burden rests on D to raise the issue, and then the
prosecution must prove beyond a reasonable doubt that self-defence was not present. The
position is the same in South Australia under s 15 and in New South Wales under s 419.
The justices noted that the issue of self-defence had been raised. There was
evidence that:
◆ D had been stabbed;
◆ V had threatened to blow D’s head off;
◆ D believed V might have had a gun in the car;
◆ D believed that it was necessary to act in order to defend himself.
The jury would have to determine if they believed D, and if they considered
that D had no longer needed to act in self-defence when he returned to his
apartment to get his gun.
13.26 In order to rely on self-defence, D must respond to a threat, where
there is a ‘reasonable apprehension of imminent attack or imminent danger’:
Taikato v R (1996) 186 CLR 454. Broadly, when determining whether or not
D’s response was necessary, the focus will be on the imminence of the threat
and whether or not D’s response was proportionate to this threat.
Self-defence and mistake
13.27 When D asserts an honest but mistaken belief as to the
circumstances in which D resorted to force, the courts have determined that
the facts are to be taken as D perceived them to be:
… the mixed objective and subjective nature of the assessment as to whether the accused’s belief
was based on reasonable grounds, means that account must be taken of those personal
characteristics of this particular accused which might affect his appreciation of the gravity of the
threat which he faced, and as to the reasonableness of his response to that danger: R v Conlon
(1993) 69 A Crim R 92 at 98–9.
[page 269]
At common law where the mistake has been influenced by a state of
intoxication, the intoxication can be taken into account:
… in so far as it may have affected either his appreciation of the gravity of the threat which he
faced, or the reasonableness of his response to that danger: Conlon at 99.
[page 270]
Consequently, the jury must consider:
1. whether there is a reasonable possibility that D believed his or her
conduct was necessary in order to defend himself or herself; and
2. if there was, whether there is also a reasonable possibility that what D
did in those circumstances was a reasonable response to those
circumstances as D perceived them to be: R v Katarzynski [2002]
NSWSC 613.
Burden of proof
D must satisfy the evidential burden to raise the defence of self-defence, and if satisfied, the
prosecution must then negate the defence beyond a reasonable doubt: s 419 (NSW); Douglas v
R [2005] NSWCCA 419.
Self-defence in Victoria
13.31 In 2014, Victoria created a new statutory version of self-defence. The
reforms provide that there is one self-defence test that is applicable to all
criminal offences. Section 322K provides:
(1) A person is not guilty of an offence if the person carries out the conduct constituting the
offence in self-defence.
(2) A person carries out conduct in self-defence if —
(a) the person believes that the conduct is necessary in self-defence; and
(b) the conduct is a reasonable response in the circumstances as the person perceives them.
The first limb of the defence is based on the common law test articulated in
Zecevic. The second limb follows s 418(2) (NSW). Unlike the common law
test, which focused on reasonable grounds for a belief in the necessity of
acting in self-defence, the statutory test focuses on whether the conduct was
reasonable.
Sections 322J–322M introduce self-defence provisions in relation to family
violence.
Intoxication
13.32 In New South Wales and Victoria, D cannot rely on self-defence in
circumstances where D was mistaken as a result of self-induced intoxication: s
428F (NSW); s 322T (Vic). Where, for the purposes of determining whether D
is guilty of an offence, it is necessary to compare the state of mind of D with
that of a reasonable person, the comparison must be made between the
conduct or state of mind of D, and that of a reasonable person who is not
intoxicated: Katarzynski; s 322T.
Murder and self-defence
13.33 Self-defence is available as a complete defence for murder.
In addition, New South Wales and South Australia have introduced specific
provisions for murder and self-defence. At common law, in Zecevic, the High
Court overturned the rule that D could rely on a partial defence of excessive
force to reduce murder to
[page 271]
manslaughter, where D subjectively acted reasonably, but objectively used
excessive force. New South Wales and South Australia have now reintroduced
the defence of excessive force for murder: s 421 (NSW); s 15(2) (SA). If D
believed the use of force was necessary, but this use of force was excessive in
the circumstances as D believed them to be, D will be found guilty of
manslaughter.
Unlike New South Wales and South Australia, Victoria has not
reintroduced the defence of excessive force. This means that if D is charged
with murder and sincerely believes that his or her conduct was necessary in
self-defence, but the response was not reasonable, D would be guilty of
murder and not the lesser offence of manslaughter.
DURESS
13.34 The defence of duress comprises a plea by D that he or she
committed the crime under a threat of physical harm to D, or to some other
person, should D refuse to comply with the threatener’s wishes: R v Hurley
and Murray [1967] VR 526. The defence is established at common law:
Threats of immediate death or serious personal violence, so great as to overbear the ordinary
power of human resistance, should be accepted as a justification for acts which would otherwise
be criminal … Where the exercise of duress is applicable, it must be clearly shown that the
overpowering of the will was operative at the time the crime was actually committed, and, if
there were reasonable opportunity for the will to reassert itself, no justification can be found in
antecedent threats: Attorney-General v Whelan [1934] IR 518 at 526 per Murnaghan J.
Objective test
13.38 In R v Lawrence [1980] 1 NSWLR 122, the objective test was stated
as comprising two elements:
1. ‘an average person of ordinary firmness of mind, of a like age and sex,
in like circumstances, would have done the acts’ (Lawrence at 125);
and
2. there was no reasonable way of avoiding the threat: see Taiapa v R
(2009) 240 CLR 95.
13.39 In R v Runjanjic and Kontinnen (1991) 56 SASR 114, expert evidence
was adduced as to the effect that battered woman syndrome would have had
on D. This evidence was relevant to both the subjective and objective tests.
The objective component, requiring that D had no reasonable way of
avoiding the threat, has been interpreted in favour of D in battered women’s
cases. Thus, the courts
[page 273]
will take into account all the circumstances in which D finds herself, keeping
in mind the age of D and any risks associated with avoidance. Failure to seek
police protection, due to the reasonable belief that such aid would be
ineffectual, will not necessarily exclude the defence: Brown v R (1986) 43
SASR 33.
As with the common law defence, the statutory defence of duress has
subjective and objective elements. D must have actually held the relevant
belief and it must have been reasonably held. Moreover, the response must
have been reasonable.
In determining whether a person reasonably believes the matters set out in
s 322O(2)(a) and (b), the reasonableness of the belief is to be determined by
reference to ‘a reasonable person possessing the personal characteristics …
that might have affected the accused’s appreciation of the circumstances’. In
considering the matters set out in these paragraphs, the court is to give
consideration to the ‘circumstances as a reasonable person, possessing the
personal characteristics of the accused, would have perceived them to be’: see
Parker (a Pseudonym) v R [2016] VSCA 101; BC201603357 at [8].
The statutory defence also retains the common law requirement that in
order to rely on the defence, D cannot have been voluntarily involved in
violent conduct: s 322O(3).
NECESSITY
13.41 The defence of necessity is based on the notion that a person should
not be held culpable for criminal acts where they are compelled due to sudden
or extraordinary emergency. Duress is a particular form of necessity.
Necessity is a complete defence. Thus where D successfully argues the
defence of necessity, D will be acquitted of all charges.
[page 274]
Scope of the defence
13.42 The defence of necessity exists at common law (R v White (1987) 31
A Crim R 194), where it is available for every offence except murder: R v
Dudley and Stephens (1884) 14 QBD 273.
Burden of proof
D must satisfy the evidential burden to raise the defence of necessity. If successful, the
prosecution must then negate the defence beyond a reasonable doubt.
[page 275]
Sudden or extraordinary emergency in Victoria
13.44 In Victoria, the defence of necessity has been abolished and replaced
with the defence of sudden or extraordinary emergency. Section 322R
provides:
(1) A person is not guilty of an offence in respect of conduct that is carried out in circumstances
of sudden or extraordinary emergency.
(2) This section applies if —
(a) the person reasonably believes that —
(i) circumstances of sudden emergency exist; and
(ii) the conduct is the only reasonable way to deal with the emergency; and
(b) the conduct is a reasonable response to the emergency.
(3) This section only applies in the case of murder if the person believes that the emergency
involves a risk of death or really serious injury.
The statutory defence broadly follows the common law defence, but in
simpler terms. In addition, unlike the common law, the defence of necessity is
available to a defence of murder in Victoria.
Legal Problem
Luca was walking home late at night from a party. He saw a large man walking towards him
very fast. He looked like he was carrying a knife in one of his hands. When the man came
towards Luca, he started moving the knife, and Luca thought he was going to attack him, so
Luca kicked him in the groin twice and then ran away. It turned out that the man, Archie, was
not carrying a knife, but a cigarette lighter. Archie suffered some serious bruising to his groin.
Discuss Luca’s criminal liability.
Answer
Luca could be charged with assault (R v Patton (1998) 1 VR 7; s 61 (NSW); s 20 (SA)), but would
argue self-defence: Zecevic v DPP (Vic) (1987) 162 CLR 645; s 418 (NSW); s 15 (SA); s 322K (Vic).
The prosecution must prove all elements of assault and disprove self-defence beyond a
reasonable doubt: Woolmington v DPP [1935] AC 462.
The prosecution would seek to prove that Luca was guilty of assault. This requires intentional
infliction of unlawful contact (in New South Wales and Victoria): Fagan v Metropolitan Police
Commissioner [1969] 1 QB 439; or intentional applying of force to the victim (in South Australia):
s 20 (SA). The facts of the question state that Luca kicked Archie twice. The prosecution would
have no difficulty in establishing that his use of force against Archie was intentional —
particularly as he did it twice. In the absence of defences, Luca would be guilty of assault.
[Comment: When considering defences proper, such as self-defence, duress, necessity and
insanity, you must first consider the offence. Defences proper are only necessary and available
where D would otherwise be found guilty of an offence.]
However, Luca would seek to raise the defence of self-defence. This would require that Luca
satisfy the evidential burden, by suggesting that there was a reasonable possibility that he
acted in self-defence. Given the factual circumstances — that it was night time and he claimed
that he was scared — he would satisfy the evidential
[page 276]
burden. The burden would then be on the prosecution to negate the defence of self-defence
beyond a reasonable doubt: Woolmington; s 418 (NSW); s 15 (SA).
Victorian statement of law
For Luca to rely on self-defence, the resort to force must have been reasonable from both an
objective and a subjective perspective. Under s 322K(2):
(a) the defendant genuinely believed the conduct to which the charge relates to be
necessary and reasonable for a defensive purpose; and
(b) the conduct was, in the circumstances …, reasonably proportionate to the threat
that the defendant genuinely believed to exist.
Conclusion
It appears likely that while Luca may be charged with assault, his defence of self-defence would
be successful, as the courts would analyse whether his response was reasonable or not based
on his belief that Archie was carrying a knife. Thus Luca would be found not guilty.
Index
References are to paragraph numbers
A
Actus Reus
accessorial liability
aiding or abetting .… 11.26
‘aids, abets, counsel or procures’ .… 11.24
causation .… 11.29
counselling or procuring .… 11.25
omissions .… 11.30
procuring .… 11.25
accessory after the fact .… 11.59–11.62
attempt .… 11.80
battery
consent (See subhead: consent)
South Australia .… 7.30–7.32
burglary
New South Wales .… 9.76–9.77
South Australia and Victoria .… 10.57–10.59
Victoria and South Australia .… 10.57–10.59
common assault
battery (See subhead: battery)
elements .… 7.11
psychic assault (See subhead: psychic assault)
consent
South Australia .… 7.34; 7.41
V cannot consent to ABH, exception to rule that .… 7.39–7.41
vitiated (See subhead: vitiated consent)
contemporaneity of mens rea and actus reus .… 7.43
deception
fraud .… 9.47–9.50
Victoria and South Australia .… 10.40–10.44
finding, larceny by .… 9.37; 9.39
fraud
consequences .… 9.52–9.56
deception .… 9.47–9.50; 9.51
temporal coincidence .… 9.61–9.62
involuntariness .… 2.22
larceny
belonged to another .… 9.5–9.10
consent of person in possession .… 9.11–9.19
property capable of being stolen .… 9.4
temporal coincidence .… 9.35
took and carried away .… 9.3
liability, criminal .… 2.7; 2.8–2.22
defined .… 2.8
involuntariness .… 2.22
temporal coincidence .… 2.50–2.51
voluntariness (See subhead: voluntariness)
psychic assault
ABH, assault occasioning .… 7.26–7.27
conditional threat .… 7.23–7.25
harm, infliction of .… 7.26–7.27
‘immediately and continuing fear’ .… 7.22
imminence .… 7.18–7.19
positive act .… 7.13
state of mind of the victim
defined .… 7.14
South Australia .… 7.15
threat, ability to execute .… 7.16–7.17
threats over telephone .… 7.20–7.21
robbery
New South Wales .… 9.64–9.70
South Australia .… 10.51–10.53
Victoria and South Australia .… 10.51–10.53
self-induced versus involuntary intoxication .… 13.12
Criminal Law Elements
indecent assault .… 8.33
temporal coincidence of mens rea and .… 4.44–4.45
theft
appropriation of property .… 10.12–10.19
consent .… 10.17–10–19
consent .… 10.17–10–19; 10.21–10–23
‘deals with’ property .… 10.20
‘property belonging to another’ .… 10.3–10.11
property defined .… 10.3–10.4
vitiated consent
defined .… 7.36
voluntariness
defined .… 2.13–2.15
involuntary or unwilled conduct
impaired consciousness depriving person to act .… 2.19–2.21
sleep or unconsciousness, act performed during .… 2.17–2.18
spasm, convulsion or unwilled bodily movement .… 2.16
unconsciousness .… 2.17–2.18
Model Criminal Code, section 202.2 of .… 2.15
Assault
aggravated assault
classes .… 7.44
combined with other offences .… 7.48
New South Wales .… 7.55–7.57
particular injuries .… 7.49; 7.57
South Australia, offences causing harm in .… 7.58–7.62
special status, victims with .… 7.46–7.47
specific intent, with further .… 7.45
terminologies (See subhead: terminologies)
Victoria, offences causing injury in .… 7.63
common assault
actus reus (See Actus reus, subhead: common assault)
defined .… 7.2
mens rea (See Mens rea, subhead: common assault)
defences .… 7.65
defined .… 7.1
indecent assault .… 8.33
non-sexual offences against person, Victorian approach to .… 7.64
South Australian offences .… 7.42
terminologies
ABH .… 7.50
‘causing’ .… 7.54
GBH .… 7.51
‘occasioning’ .… 7.53
wound .… 7.52
Attempt
actus reus .… 11.80
common law .… 11.78
defined .… 11.78
impossibility .… 11.82
mens rea .… 11.79
voluntary desistance .… 11.81
Automatism
defined .… 12.23
insane automatism distinguished with sane .… 12.26
intoxication in relation with .… 12.31
mentail impairment in relation with .… 12.25
recurrence test
external or internal test .… 12.28–12.29
internal or external test .… 12.28–12.29
sound or unsound mind test .… 12.30
unsound or sound mind test .… 12.30
sane automatism distinguished with insane .… 12.26
states of automatism .… 12.24
B
Burglary
New South Wales
actus reus .… 9.76–9.77
common law .… 9.75
mens rea .… 9.78
South Australia and Victoria (See subhead: Victoria and South Australia)
Victoria and South Australia
actus reus .… 10.57–10.59
defined .… 10.56
elements .… 10.56
mens rea .… 10.60–10.62
C
Complicity
accessorial liability
accessories before the fact and P2s .… 11.22
actus reus (See Actus reus, subhead: accessorial liability)
common law .… 11.17
historical background .… 11.18
mens rea (See Mens rea, subhead: accessorial liability)
principal offence .… 11.20–11.21
accessory after the fact
actus reus .… 11.59–11.62
elements .… 11.58
mens rea (See Mens rea, subhead: accessory after the fact)
common purpose
critique of doctrine .… 11.43
defined .… 11.38
incidental crime, possibility of .… 11.40–11.42
joint criminal enterprise distinguished with .… 11.44
defences available to accessories .… 11.56
derivative offences .… 11.68
duress as defence to murder .… 11.57
extended joint criminal enterprise (See subhead: common purpose)
innocent agency .… 11.14–11.16
joint criminal enterprise
act in concert .… 11.8–11.10
common purpose distinguished with .… 11.44
defined .… 11.7
presence .… 11.11–11.12
withdrawal .… 11.13
rules of .… 11.45
technical distinctions .… 11.2–11.6
Victoria, new law in .… 11.46–11.50
withdrawal .… 11.13; 11.51–11.55
Conspiracy
agreement .… 11.70
common law .… 11.69
elements .… 11.69
mens rea .… 11.71–11.76
Victorian reforms to conspiracy .… 11.77
Criminal Law
assault (See Assault)
code States .… 1.5
common law States .… 1.4
Commonwealth criminal law .… 1.2
evidential burden
defence .… 1.24
defined .… 1.22
prosecution, resting on .… 1.23
homicide (See Homicide)
indictable offences
summary offences distinguished with .… 1.11
tried summarily .… 1.12–1.14
jurisdiction
defined .… 1.6
geographical connection between State and offence .… 1.8
statutory reforms .… 1.8
territorial .… 1.7
legal burden of proof
defined .… 1.18
‘golden thread’ rule .… 1.18
prosecution, exceptions to burden resting on .… 1.19
common law .… 1.20
statute .… 1.21
liability, criminal (See Liability, criminal)
manslaughter (See Manslaughter)
murder (See Murder)
offences, classification of .… 1.10–1.15
developments .… 1.10
felonies and misdemeanours .… 1.15
indictable and summary offences .… 1.11
misdemeanours and felonies .… 1.15
summary and indictable offences .… 1.11
property offences (See Property offences)
rape (See Rape)
standard of proof .… 1.16; 1.17
State Criminal Law .… 1.3
code States .… 1.5
common law States .… 1.4
structure .… 1.1–1.9
Commonwealth criminal law .… 1.2
State Criminal Law .… 1.3
summary and indictable offences .… 1.11
D
Deception
actus reus .… 10.40–10.44
defined .… 10.43
historical background .… 10.39
mens rea .… 10.45–10.47
theft in relation with .… 10.48
Defences
automatism (See Automatism)
duress (See Duress)
intoxication (See Intoxication)
mental impairment (See Mental impairment)
mistake of fact (See Mistake of fact)
necessity (See Necessity)
self-defence (See Self-defence)
Duress
elements .… 13.36–13.39
rationale .… 13.34
scope .… 13.35
Victoria .… 13.40
F
Fraud
actus reus (See Actus reus, subhead: fraud)
elements .… 9.46
historical background .… 9.46
mens rea (See Mens rea, subhead: fraud)
reforms .… 9.46
H
Homicide
abortion .… 3.9
act or omission .… 3.12
beginning of life
abortion .… 3.9
common law .… 3.5
causation
defined .… 3.19
factual causation
‘but for’ test .… 3.21; 3.22
‘common sense’ test .… 3.23
legal causation (See subhead: legal causation)
defined .… 3.1
factual causation
‘but for’ test .… 3.21; 3.22
‘common sense’ test .… 3.23
final fatal step by victim
historical background .… 3.2
human being
beginning of life (See subhead: beginning of life)
defined .… 3.4
intervening acts (See subhead: novus actus interveniens)
legal causation
elements .… 3.24
intervening acts (See subhead: novus actus interveniens)
novus actus interveniens (See subhead: novus actus interveniens)
‘operating and substantial cause’ test .… 3.25
legally dead person .… 3.10
novus actus interveniens .… 3.26–3.41
contributory negligence .… 3.33
final fatal step by victim (See subhead: final fatal step by victim)
independent third party, voluntary act by .… 3.28
medical treatment .… 3.29–3.32
ordinary hazard .… 3.27
pre-existing condition .… 3.34–3.35
omission or act .… 3.12
voluntariness .… 3.13–3.18
year and a day rule .… 3.11
I
Intoxication
automatism in relation with .… 12.31
common law .… 13.2–13.6
defined .… 13.1
‘Dutch courage’ .… 13.4; 13.14
impairment of the mind, substantial .… 5.60
involuntary consumption .… 13.5
manslaughter in relation with .… 13.6
murder in relation with .… 13.6
New South Wales (See New South Wales, subhead: intoxication)
self-defence .… 13.32
self-induced
involuntary intoxication versus (See New South Wales, subhead: self-
induced versus involuntary intoxication)
South Australia .… 13.7–13.8
South Australia (See South Australia, subhead: intoxication)
Victoria
common law .… 13.2–13.6
section 322T .… 13.9
Involuntary Manslaughter
assault or single punch causing death .… 6.9
‘coward punches’ .… 6.9
criminal negligence
act, by
elements .… 6.11
gross departure from standard of care .… 6.13
standard of care .… 6.12
defined .… 6.10
examples .… 6.18
omission, by
breach of duty .… 6.16
causation .… 6.17
defined .… 6.14
legal duty to act .… 6.15
unlawful and dangerous act, distinguished with .… 6.19–6.20
defined .… 6.1
neglect where death results .… 6.21–6.22
single punch causing death .… 6.9
unlawful and dangerous act battery manslaughter .… 6.8
causation .… 6.4
‘coward punches’ .… 6.6
criminal negligence distinguished with .… 6.19–6.20
dangerousness .… 6.5–6.7
elements .… 6.2
mistake of fact .… 6.7
unlawfulness .… 6.3
L
Larceny
actus reus (See Actus reus, subhead: larceny)
bailee, larceny by
bailment .… 9.41
conversion or taking .… 9.43
defined .… 9.40
fraudulently
defined .… 9.44
ownership versus physical possession .… 9.42
physical possession versus ownership .… 9.42
taking or conversion .… 9.43
common law .… 9.2
elements .… 9.2
finding, larceny by
actus reus .… 9.37; 9.39
defined .… 9.36
mens rea .… 9.38; 9.39
mens rea (See Mens rea, subhead: larceny)
Riley principle .… 9.35; 9.39
robbery (See Robbery)
types
bailee, larceny by (See subhead: bailee, larceny by)
finding, larceny by (See subhead: finding, larceny by)
Liability, Criminal
attempt (See Attempt)
children
common law .… 2.3
doli incapax, doctrine of .… 2.3; 2.5
responsibility, criminal .… 2.4
complicity (See Complicity)
conspiracy (See Conspiracy)
continuing act, device of .… 2.50–2.51
defences (See Defences)
legal capacity
children (See subhead: children)
corporations .… 2.6
requisites
actus reus (See Actus reus, subhead: liability, criminal)
legal capacity
children (See subhead: children)
corporations .… 2.6
mens rea (See Mens rea, subhead: liability, criminal)
temporal coincidence .… 2.50–2.51
M
Manslaughter
common law .… 5.1
intoxication in relation with .… 13.6
involuntary (See Involuntary manslaughter)
voluntary (See Voluntary manslaughter)
Mens Rea
absolute liability offences .… 2.49
accessorial liability
aiding, abetting, counselling or procuring, intentional .… 11.37
defined .… 11.32
Giorgianni .… 11.32–11.35
knowledge of all essential matters .… 11.33–11.34
accessory after the fact
New South Wales .… 11.63–11.64
South Australia .… 11.65–11.67
Tevendale .… 11.63
Victoria .… 11.65–11.67
attempt .… 11.79
burglary
New South Wales .… 9.78
South Australia and Victoria .… 10.60–10.62
Victoria and South Australia .… 10.60–10.62
common assault
elements .… 7.3
intentional assault (See subhead: intentional assault)
negligence .… 7.10
reckless assault (See subhead: reckless assault)
conspiracy .… 11.71–11.76
contemporaneity of mens rea and actus reus .… 7.43
deception .… 10.45–10.47
finding, larceny by .… 9.38; 9.39
fraud
intentionally or recklessly deceptive .… 9.57–9.59
permanently deprive, intention to .… 9.60
recklessly or intentionally deceptive .… 9.57–9.59
temporal coincidence .… 9.61–9.62
intentional assault
hostility essential .… 7.5
South Australia .… 7.6
larceny
claim of right in good faith .… 9.27–9.31
depriving the owner of property, permanently .… 9.21–9.26
elements .… 9.20
fraudulently .… 9.32–9.34
good faith, claim of right in .… 9.27–9.31
temporal coincidence .… 9.35
liability, criminal .… 2.7; 2.23–2.49
defined .… 2.23–26
objective standards (See subhead: objective standards)
subjective standards (See subhead: subjective standards)
temporal coincidence .… 2.50–2.51
mistake of fact .… 13.17–13.18
murder
English approach to mens rea .… 4.41
provocation .… 5.43
temporal coincidence .… 4.44–4.45
negligence offences .… 2.37–2–39
ciritique .… 2.39
defined .… 2.38
objective standards
defined .… 2.25
negligence offences (See subhead: negligence offences)
strict liability offences (See subhead: strict liability offences)
rape
elements .… 8.23
indecent assault .… 8.33
New South Wales .… 8.24–8.29
South Australia .… 8.24–8.29
Victoria .… 8.30–8.31
reckless assault
defined .… 7.7
South Australia .… 7.9
subjective, must be .… 7.8–7.9
robbery
New South Wales .… 9.71–9.73; 9.74
South Australia and Victoria .… 10.54–10.55
Victoria and South Australia .… 10.54–10.55
self-induced versus involuntary intoxication .… 13.13
strict liability offences .… 2.40–2.48
imposing strict liability, utility of .… 2.45
interpretation, principles of .… 2.42–2.44
mistake of fact, honest and reasonable .… 2.46–2.48
subjective standards
defined .… 2.25
indifference to risk .… 2.32
intention .… 2.27–2.30
recklessness .… 2.31
social utility or purpose .… 2.33
transferred malice .… 2.35
wilful blindness .… 2.34
theft
depriving, intention of permanently .… 10.25–10.33
dishonestly .… 10.34–10.38
elements .… 10.24
encroachment of owner’s proprietary rights .… 10.25–10.33
fungibles .… 10.32–10–33
Mental Impairment
automatism in relation with .… 12.25
disease of the mind .… 12.7–12.14
arteriosclerosis .… 12.10
epilepsy .… 12.13
examples .… 12.10–12.14
hyperglycaemia .… 12.11
schizophrenia .… 12.14
sleepwalking .… 12.12
elements .… 12.2
M’Naghten rules .… 12.2; 12.15
‘nature and quality of act’ .… 12.15
Not guilty, finding of .… 12.4–12.6
responsibility, criminal .… 12.1
scope of defence .… 12.18–12.21
irresistible impulse .… 12.20–12.21
psychopathy .… 12.19
self-induced .… 12.22
wrongfulness, knowledge of .… 12.16–12.17
Mistake of Fact
defined .… 13.16
formal defences in relation with .… 13.21
independent defence .… 13.19–13.20
mens rea .… 13.17–13.18
Murder
common law
constructive murder (See subhead: constructive murder)
intentional murder (See subhead: intentional murder)
reckless murder (See subhead: reckless murder)
resisting unlawful arrest .… 4.27
South Australia .… 4.1; 4.2
Victoria .… 4.1; 4.2
constructive murder
common law .… 4.18–4.19
New South Wales (See New South Wales, subhead: constructive
murder)
South Australia .… 4.20–4.21
Victoria (See Victoria, subhead: constructive murder)
defined .… 4.2
duress as defence to murder .… 11.57
grievous bodily harm
defined .… 4.8
intentional murder
defined .… 4.3
grievous bodily harm, inflict (See subhead: grievous bodily harm)
‘intention’ defined .… 4.4
kill, intention to .… 4.5–4.7
New South Wales .… 4.30
intoxication in relation with .… 13.6
mens rea (See Mens rea, subhead: murder)
miscellaneous aspects
cause of death, unexpected .… 4.40
English approach to mens rea .… 4.41
omissions (See subhead: omissions)
transferred malice (See subhead: transferred malice)
New South Wales (See New South Wales, subhead: murder)
omissions
New South Wales .… 4.42
reckless murder
defined .… 4.10
emotional state of D .… 4.12
jury, directions to .… 4.17
New South Wales .… 4.31
probability .… 4.13–4.14
social utility .… 4.15
wilful blindness .… 4.16
resisting unlawful arrest .… 4.27
self-defence .… 13.33
South Australia (See South Australia, subhead: murder)
temporal coincidence of mens rea and actus reus .… 4.44–4.45
transferred malice
defined .… 4.38
New South Wales .… 4.39
Victoria (See Victoria, subhead: murder)
N
Necessity
defined .… 13.41
elements .… 13.43
extraordinary emergency .… 13.44
scope .… 13.42
sudden or extraordinary emergency .… 13.44
New South Wales
accessory after the fact .… 11.63–11.64
assault
aggravated assaults
elements .… 7.55–7.57
particular injuries, with .… 7.49
common law .… 7.1
death, assault causing .… 6.9
indecent assault .… 8.33
burglary (See Burglary, subhead: New South Wales)
constructive murder
25-year foundational offence .… 4.33
D caused the death of V .… 4.34
defined .… 4.32
elements .… 4.32
voluntary act
defined .… 4.35
‘immediately after’ .… 4.37
extreme provocation .… 5.48–5.49
fraud (See Fraud)
geographical connection between State and offence .… 1.8
indecent assault .… 8.33
indictable offences .… 1.14
intoxication
Criminal Legislation Amendment Act 1996 .… 13.10
critique .… 13.15
‘Dutch courage’ .… 13.14
involuntary intoxication versus
self-induced (See subhead: self-induced versus involuntary
intoxication)
sef-defence .… 13.32
self-induced versus involuntary (See subhead: self-induced versus
involuntary intoxication)
larceny (See Larceny)
mental impairment
common law .… 12.20
Mental Health (Criminal Procedure) Act 1990 .… 12.6
murder
common law replaced by statutory provision .… 4.28
constructive murder (See subhead: constructive murder)
intentional murder .… 4.30
malice .… 4.29
omissions .… 4.42
reckless murder .… 4.31
self-defence .… 13.33
statutory provision replaced common law .… 4.28
transferred malice .… 4.39
property offences
burglary (See Burglary, subhead: New South Wales)
developments .… 9.1
fraud (See Fraud)
larceny (See Larceny)
robbery (See Robbery, subhead: New South Wales)
rape
mens rea .… 8.24–8.29
vitiated consent .… 8.20
robbery (See Robbery, subhead: New South Wales)
self-defence
common law, reforms to .… 13.30
excessive force in .… 5.4
intoxication .… 13.32
murder .… 13.33
self-induced versus involuntary intoxication
actus reus .… 13.12
common law .… 13.11
mens rea .… 13.13
substantial impairment of mind
abnormality of mind .… 5.57
burden of proof .… 5.55
defined .… 5.53
insanity distinguished with .… 5.54
intoxication .… 5.60
medical and psychiatric evidence .… 5.62
psychiatric evidence .… 5.62
statutory basis .… 5.56
underlying condition .… 5.58–5.59
transferred malice .… 4.39
voluntary manslaughter
extreme provocation .… 5.48–5.49
historical background .… 5.3
provocation (See Voluntary manslaughter, subhead: provocation)
self-defence, excessive force in .… 5.4
substantail impairment of mind (See subhead: substantial impairment
of mind)
P
Property Offences
burglary (See Burglary)
deception (See Deception)
developments .… 9.1; 10.1
fraud (See Fraud)
larceny (See Larceny)
robbery (See Robbery)
theft (See Theft)
R
Rape
aggravated rape .… 8.32
common law .… 8.2
consent, absence of
age of consent .… 8.17
defined .… 8.8
Victorian approaches to consent .… 8.18
vitiated consent (See subhead: vitiated consent)
‘without consent’ .… 8.9
elements
consent, absence of (See subhead: consent, absence of)
intercourse or penetration, sexual (See subhead: intercourse or sexual
penetration)
mens rea (See Mens rea, subhead: rape)
indecent assault .… 8.33
intercourse or sexual penetration
compelling offences .… 8.7
continuing act .… 8.4
defined .… 8.3
gender .… 8.6
touching need not be sexual .… 8.5
mens rea (See Mens rea, subhead: rape)
statutory provisions .… 8.1
vitiated consent
common law .… 8.10
miscellaneous .… 8.19–8.22
mistake
common law .… 8.11
fraud, sexual intercouse by .… 8.14
identity of D .… 8.12
nature of act .… 8.13
threats and violence .… 8.15–8.16
violence and threats .… 8.15–8.16
Robbery
New South Wales
actus reus .… 9.64–9.70
defined .… 9.63
elements .… 9.63
mens rea .… 9.71–9.73; 9.74
South Australia (See subhead: Victoria and South Australia)
temporal coincidence of actus reus and mens rea .… 9.74
Victoria and South Australia
actus reus .… 10.50–10.53
elements .… 10.49
mens rea .… 10.54–10.55
theft, aggravated .… 10.49
S
Self-Defence
common law .… 13.22–13.27
intoxication .… 13.32
mistake in relation with .… 13.27
murder .… 13.33
New South Wales (See New South Wales, subhead: self-defence)
South Australia
common law .… 13.28–13.29
murder .… 13.33
Victoria (See Victoria, subhead: self-defence)
South Australia
actus reus
battery .… 7.30; 7.32
consent .… 7.34; 7.41
psychic assault .… 7.15
assault
aggravated assault
harm, offeces causing .… 7.58–7.62
particular injuries, with .… 7.57
common law .… 7.1
burglary (See Burglary, subhead: Victoria and South Australia)
geographical connection between State and offence .… 1.8
intoxication
common law .… 13.2–13.6
‘Dutch courage’ .… 13.4
self–induced .… 13.7–13.8
irrestible impulse .… 12.21
mens rea
accessory after the fact .… 11.65–11.67
intentional assault .… 7.6
reckless assault .… 7.9
murder
common law .… 4.1; 4.2
constructive murder .… 4.20–4.21
self-defence .… 13.33
neglect where death results .… 6.21–6.22
property offences
burglary (See Burglary, subhead: Victoria and South Australia)
robbery (See Robbery, subhead: Victoria and South Australia)
robbery (See Robbery, subhead: Victoria and South Australia)
self-defence
common law .… 13.28–13.29
excessive force in .… 5.4
murder .… 13.33
T
Temporal Coincidence
fraud .… 9.61–9.62
larceny .… 9.35
liability, criminal .… 2.50–2.51
murder .… 4.44–4.45
robbery .… 9.74
Theft
actus reus (See Actus reus, subhead: theft)
deception in relation with .… 10.48
defined .… 10.2
elements .… 10.2
mens rea (See Mens rea, subhead: theft)
V
Victoria
accessory after the fact .… 11.65–11.67
assault
aggravated assault
injury, offence causing .… 7.63
particular injuries, with .… 7.57
common law .… 7.1
non-sexual offences against persons .… 7.64
burglary (See burglary, subhead: Victoria and South Australia)
complicity, new law of .… 11.46–11.50
conspiracy, legilative reforms to .… 11.77
constructive murder
Crimes Act 1958, s 3A(1) of .… 4.22
D caused death of V .… 4.24
elements .… 4.22
foundational offence .… 4.23; 4.25
‘the necessary elements of which include violence’ .… 4.23
voluntary act of violence .… 4.26
deception (See Deception)
duress .… 13.40
extraordinary emergency .… 13.44
indictable offences .… 1.13
intoxication
common law .… 13.2–13.6
section 322T .… 13.9
mental impairment
Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 .…
12.6
irresistible impulse .… 12.20
murder
common law .… 4.1; 4.2
constructive murder (See subhead: constructive murder)
self-defence .… 13.33
property offences
burglary (See burglary, subhead: Victoria and South Australia)
deception (See Deception)
historical background .… 10.1
robbery (See robbery, subhead: Victoria and South Australia)
theft (See Theft)
rape
compelling offences .… 8.7
consent .… 8.18
indecent assault .… 8.33
mens rea .… 8.24–8.29; 8.30–8.31
vitiated consent .… 8.16
robbery (See robbery, subhead: Victoria and South Australia)
self-defence
excessive force in .… 5.4
intoxication .… 13.32
murder .… 13.33
statutory reforms .… 13.31
single punch causing death .… 6.9
sudden or extraordinary emergency .… 13.44
theft (See Theft)
voluntary manslaughter
historical background .… 5.3
provocation (See Voluntary manslaughter, subhead: provocation)
provocation, abolished defence of .… 5.27
self-defence, excessive force in .… 5.4
Voluntary Manslaughter
common law provocation
conduct amounting to provocation (See subhead: provocative
conduct)
defined .… 5.8
elements .… 5.8
defined .… 5.2
extreme provocation .… 5.48–5.49
hearsay provocation .… 5.50
historical background .… 5.3
New South Wales (See New South Wales, subhead: voluntary
manslaughter)
provocation .… 5.5–5.52
burden of proof .… 5.6–5.7
common law (See subhead: common law provocation)
Crimes Amendment (Provocation) Act, s 23 of .… 5.7; 5.8; 5.48
defences .… 5.47
extreme provocation .… 5.48–5.49
hearsay .… 5.50
mens rea for murder .… 5.43
offences other than murder .… 5.44–5.46
Victorian Law Reform Commission .… 5.27
provocative conduct .… 5.9–5.24
deceased, provocation emanates from .… 5.17
delusionary delief .… 5.19
historical background .… 5.12–5.14
mistaken killing .… 5.18
objective test relationship with
historical background .… 5.25–5.28
intoxication .… 5.39
self-induced provocation .… 5.23–5.24
subjective test
‘blood be boiling’ .… 5.42
self-control, loss of .… 5.40–5.41
unlawfulness .… 5.15–5.16
self-defence, excessive force in .… 5.4
subtantial impairment of mind (See New South Wales, subhead:
substantial impairment of mind)
Related LexisNexis Titles
Arenson & Bagaric, Criminal Processes and Investigative Procedures: Victoria
and Commonwealth, 3rd ed, 2015
Caruso, Buth, Heath, Leader-Elliott, Leader-Elliott, Naffine, Plater, Toole,
South Australian Criminal Law and Procedure, 2nd ed, 2017
Crofts, Crofts, Gray, Kirchengast, Naylor & Tudor, Waller & Williams
Criminal Law Text and Cases, 13th ed, 2016
Eburn, Howie, Sattler & Hood, Hayes & Eburn, Criminal Law & Procedure
in New South Wales, 5th ed, 2016
Fairall & Barrett, Criminal Defences in Australia, 5th ed, 2017
Feld, Hemming & Anthony, Criminal Procedure in Australia, 2015
Finlay & Kirchengast, Criminal Law in Australia, 2015
Hemming, LexisNexis Glance Card Criminal Law at a Glance, 2015
Hemming & Braun, LexisNexis Questions and Answers: Criminal Procedure,
2016
Hickie & Lloyd, LexisNexis Questions and Answers Criminal Law for Common
Law States, 2nd ed, 2014
Howie & Johnson, LNAA Annotated Criminal Legislation New South Wales,
2016–2017
Nash, LNAA Annotated Criminal Legislation Victoria, 2016–2017