ASSAULT

Test Exam Response

COMMON ASSAULT
S 61 of the Crimes Act
Whosoever assaults any person, although not occasioning actual
bodily harm, shall be liable to imprisonment for two years.
___ may be charged with common assault pursuant to S 61 of the Crimes Act. The prosecution must the actus
reus and mens rea beyond a reasonable doubt.
Actus Reus
Physical Violence – assault with unlawful contact

For an assault involving unlawful contact, the prosecution must prove ___ (defendant) inflicted unlawful force
without consent. Fagan holds that the assault must be an act not an omission.
• DPP v JWH holds that spitting constitutes an assault involving unlawful contact.
• Pemble holds that there is no assault if the conduct is part of ordinary social discourse.
• R v Day provides that touching the clothes equates to touching the person.

However, it is apparent on the facts that ___ consented to the ___ by the defendant. Bonora holds that an
assault with consent is not an assault. Common law is unclear in this area, but following ___ (case),
• Brown, consent may not be applicable to the level of risk of harm that the case involved, since …
• BM, personal autonomy does not negate the law of assault, therefore ___ could not legally consent to
the harm the conduct entailed.
• Wilson, the court has no place to interfere within the confines of consent to harm in a marital
relationship.

• Based on the facts, unlawful contact occurred where …

o There was no consent since …
• Based on the facts, there was no unlawful contact since …
o There was no consent since …

Psychic Violence – assault causing apprehension of immediate unlawful contact

For an assault without physical contact, the prosecution must prove ___ (defendant) created apprehension of
immediate unlawful contact in the mind of ___ (victim). Fagan holds that the assault must be an act not an
omission. Zanker v Vartzokas critically provides that the feared harm need not be immediate, as long as it is
present and continuing.
• From R v Gabriel, mere words do not suffice unless they are accompanied by gestures or other
circumstances.

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 • Barton v Armstrong holds that threats over the phone may amount to assault as they are not mere
words.
• Ireland and Burstow holds that silent phone calls may constitute assault as they are threatening in
themselves.
• Bonora holds that an assault with consent is not an assault.

• Based on the facts, the apprehension of immediate unlawful contact was created by …

o There was no consent since …

• Based on the facts, the apprehension of immediate unlawful contact was not created since …
o There was no consent since …

Mens Rea

INTENTION

Physical violence – assault with unlawful contact

As per Edwards v Police, the prosecution must prove beyond a reasonable doubt that ___ (defendant) intended
to inflict unlawful force/ produce apprehension within the mind of ___ (victim). On the facts, it is
likely/unlikely that this will be proven because …

Psychic Violence – assault causing apprehension of immediate unlawful contact

The prosecution must prove beyond a reasonable doubt that ___ (defendant) intended to produce apprehension
in the victim’s mind as per Edwards v Police.
• This intent is evident where …

RECKLESSNESS

Alternatively, MacPherson v Brown provides a recklessness standard, that the prosecution must prove that ___
(defendant) had foresight of the possibility of the apprehension of imminent unlawful contact. This is a
subjective test where the prosecution must consider what the defendant actually foresaw.
• On this test …

Therefore, the prosecution is likely to convict ___ for assault with unlawful contact/causing apprehension of
immediate unlawful contact.

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ASSAULT CAUSING DEATH
S 25A of the Crimes Act
1. A person is guilty of an offence under this subsection if:
a. the person assaults another person by intentionally hitting the
other person with any part of the person’s body or with an object
held by the person, and
b. the assault is not authorised or excused by law, and
c. the assault causes the death of the other person.
Maximum penalty: Imprisonment for 20 years.
2. A person who is of or above the age of 18 years is guilty of an
offence under this subsection if the person commits an offence
under subsection (1) when the person is intoxicated.
Maximum penalty: Imprisonment for 25 years.
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.
4. In proceedings for an offence under subsection (1) or (2), it is
not necessary to prove that the death was reasonably foreseeable.
5. It is a defence in proceedings for an offence under subsection
(2):
a. if the intoxication of the accused was not self-induced (within
the meaning of Part 11A), or
Therefore, the prosecution is unlikely to convict ___ for assault with unlawful contact/causing apprehension
of immediate unlawful contact as the actus reus/mens rea cannot be satisfied.
___ (defendant) may be charged with assault causing death under S 25A of the Crimes Act. The prosecution
must prove both actus reus and mens rea beyond a reasonable doubt.
Actus Reus
The prosecution must first prove a hitting by ___ (defendant).
• The facts show …
Causation
The prosecution must prove causation as per S 25A(3), that ___ (defendant)’s act caused the death of ___
(victim), as a direct result of the assault/of the injuries received from hitting the ground/object as a
consequence of the assault.
• ___ (victim)’s factual cause of death was …
• This was/was not the consequence of ___ (defendant)’s assault on him/her.
• Therefore, causation can/cannot be proven under S 25A(3).
Mens Rea
As per S 25A(1)(a), the prosecution must prove that the assault on ___ (victim) was intentional.
• ___ (defendant)’s intention can be shown by …
• ___ (defendant) lacked intent to assault ___ (victim), since …
Therefore, ___ (defendant) is likely/unlikely to be convicted of assault causing death.
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b. if the accused had a significant cognitive impairment at the
time the offence was alleged to have been committed (not being a
temporary self-induced impairment).
GRIEVOUS BODILY HARM
S 4(1) of the Crimes Act
“grievous bodily harm” includes:
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
b. any permanent or serious disfiguring of the person,
c. any grievous bodily disease
S 54 of the Crimes Act – Causing grievous bodily harm
Whosoever by any unlawful or negligent act, or omission, causes
grievous bodily harm to any person, shall be liable to
imprisonment for two years.
S 33(1) of the Crimes Act – Intentional grievous bodily harm
1. A person who:
b. causes grievous bodily harm to any person, with intent to cause
grievous bodily harm to that or any other person is guilty of an
offence.
Maximum penalty: imprisonment for 25 years
S 35(2) of the Crimes Act – Reckless grievous bodily harm
2. A person who:
a. causes grievous bodily harm to any person, and
As it has been established that ___ assaulted ___, it must be considered whether ___ (defendant) caused
grievous bodily harm to ___. The prosecution must prove both actus reus and mens rea beyond reasonable
doubt.
Actus Reus
The conduct of ___ amounts to the definition of grievous bodily harm in S 4(1)(_) of the Crimes Act, causing
…
At common law, GBH means no less than “really serious harm” (DPP v Smith).
• Haoui holds that the injuries/consequences need not be permanent or long lasting, but must be really
serious.
Therefore, the conduct would/would not be considered grievous bodily harm.
Mens Rea
However, the court must now determine the level of mens rea ___ (defendant) holds in order to determine the
specific offence for conviction.
FULL INTENT
• It appears that ___ (defendant) had full intention cause grievous bodily harm, based on the fact that…
• Therefore, ___ (defendant) will be convicted under S 33(1) of the Crimes Act as he/she intended to
cause grievous bodily harm.
RECKLESSNESS
• As per Coleman it appears that ___ (defendant) was reckless to the infliction of harm and foresaw the
possibility that actual bodily harm might result but proceeded anyway.
o This is supported by the fact that …
• Therefore, ___ (defendant) will be convicted of recklessly causing grievous bodily harm under S
35(2).
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b. is reckless as to causing actual bodily harm to that or any other
person,
is guilty of an offence
Maximum penalty: imprisonment for 10 years
WOUNDING
S 33(1) of the Crimes Act – Intentional wounding
1. A person who:
a. wounds any person,
with intent to cause grievous bodily harm to that or any other
person is guilty of an offence
Maximum penalty: imprisonment for 25 years
S35(4) of the Crimes Act – Reckless wounding
4. A person who:
a. wounds any person, and
b. is reckless as to causing actual bodily harm to that or any other
person,
is guilty of an offence.
Maximum penalty: Imprisonment for 7 years.
ACTUAL BODILY HARM
S 59 of the Crimes Act – Assault occasioning actual bodily harm
1. Whosoever assaults any person and thereby occasions actual
bodily harm, shall be liable to imprisonment for five years.
2. A person is guilty of an offence under this subsection if
the person commits an offence under subsection (1) in the
NEGLIGENCE
• Per the facts of ______, it appears the harm arose out of an unlawful/negligent act/omission.
• Therefore, ___ (defendant) will be convicted of causing grievous bodily harm under s 54.
As it has been established that ___ assaulted ___, it must be considered whether ___ (defendant) caused
wounding to ___. The prosecution must prove both actus reus and mens rea beyond reasonable doubt.
Actus Reus
The conduct of ___ amounts to wounding, defined by Shepherd as an injury which breaks the surface of the
skin. Therefore, the conduct would/would not be considered wounding.
Mens Rea
However, the court must now determine the level of mens rea ___ (defendant) holds in order to determine the
specific offence for conviction.
FULL INTENT
• It appears that ___ (defendant) had full intention cause wounding, based on the fact that…
• Therefore, ___ (defendant) will be convicted under S 33(1) of the Crimes Act as he/she intended to
cause wounding.
RECKLESSNESS
• As per Coleman it appears that ___ (defendant) was reckless to the infliction of harm and foresaw the
possibility that actual bodily harm might result but proceeded anyway.
o This is supported by the fact that …
• Therefore, ___ (defendant) will be convicted of recklessly wounding under S 35(4).
As it has been established that ___ assaulted ___, it must be considered whether ___ (defendant) caused actual
bodily harm to ___.
Actus Reus
The conduct of ___ amounts to actual bodily harm, defined by Donovan as under the ordinary meaning of
bodily harm, but more than transient or trifling.
• Chan-Fook hols that ABH is capable of including psychiatric injury, but not mere emotions such as
fear or distress.
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company of another person or person. A person convicted of an
offence under this subsection is liable to imprisonment for 7
years.
CHOKING, SUFFOCATION AND STRANGULATION
S 37 of the Crimes Act – Choking, suffocation and strangulation
1. A person who:
1A. A person is guilty of an offence if the person intentionally
chokes, suffocates or strangles another person without the
other person's consent.
Maximum penalty: imprisonment for 5 years.
1. A person is guilty of an offence if the person:
a. intentionally chokes, suffocates or strangles another person so
as to render the other person unconscious, insensible or incapable
of resistance, and
b. is reckless as to rendering the other person unconscious,
insensible or incapable of resistance.
Maximum penalty: imprisonment for 10 years.
2. A person is guilty of an offence if the person:
a. chokes, suffocates or strangles another person so as to render
the other person unconscious, insensible or incapable of
resistance, and
b. does so with the intention of enabling himself or herself to
commit, or assisting any other person to commit, another
indictable offence.
Maximum penalty: imprisonment for 25 years.
Therefore, the conduct would/would not be considered actual bodily harm, since …
___ (defendant) may be charged under S 37(_) for choking/suffocating/strangulating ___ (victim). The
prosecution must prove both actus reus and mens rea beyond a reasonable doubt.
Actus Reus
___ (defendant)’s act of choking/suffocating/strangulating ___ (victim) satisfies the actus reus of a S 37
offence.
• Further, ___ became unconscious, opening the offences of S 37(1) and S 37(2) for consideration by
the prosecution.
Mens Rea
The specific S 37 offence must be determined by considering the mens rea of ___ (defendant).
S 37(1A) requires intention to choke/suffocate/strangle without the victim’s consent.
• ___ (defendant) intended to perform the act, since …
Therefore, ___ (defendant) is likely/unlikely to be convicted of an offence under S 37(1A).
S 37(1) requires the prosecution to prove ___ (defendant)’s intention to choke/suffocate/strangle ___ (victim)
and recklessness as to rendering them unconscious, insensible or incapable of resistance.
• ___ (defendant) intended to perform the act, since …
• Further, ___ (defendant) displayed recklessness as to rendering ___ (victim) unconscious, since …
Therefore, ___ (defendant) is likely/unlikely to be convicted of an offence under S 37(1).
S 37(2) requires the prosecution to prove ___ (defendant)’s intention to choke/suffocate/strangle ___ (victim)
and intention to enable the commission of another indictable offence.
• ___ (defendant) intended to perform the act, since …
• Further, ___ (defendant) did so with intention to perform the indictable offence of ___. This is
evident on the fact that …
Therefore, ___ (defendant) is likely/unlikely to be convicted of an offence under S 37(2).
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3. In this section:
"another indictable offence" means an indictable offence other
than an offence against this section.

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Test
CAUSATION
MURDER
S 18 of the Crimes Act
1.
a. Murder shall be taken to have been committed
where the act of the accused, or thing by him or her
omitted to be done, causing the death charged, was
done or omitted with reckless indifference to human
life, or with intent to kill or inflict grievous bodily
harm upon some person, or done in attempt to commit,
or during or immediately after the commission, by the
accused, or some accomplice with him or her, of a
crime punishable by imprisonment for life or for 25
years.
b. Every other punishable homicide shall be taken to
be manslaughter.
2.
HOMICIDE
Exam Response
To charge ___ with a homicide offence, the initial determination must be as to whether the act/omission of ___ caused the
death of ___ as required by S 18(1)(a) of the Crimes Act.
Deane, Dawson and Brennan JJ affirmed the common law test of Hallet in Royall, that causation is determined by
considering whether at the time of death the ___ (original wound) was still operating and was the substantial cause of
___’s death.
• The second cause of ___ is also present upon the facts.
• The Royall test holds that only if the ___ is so overwhelming as to make the ___ (substantial cause) merely part
of the history, that it can be said that death does not flow from the original wound.
• On the facts, causation can/cannot be established as …
o If no: the prosecution may not proceed with their charge of homicide against ___.
Therefore, the prosecution may proceed to examine ___’s homicide charge, since causation is established under Royall.
As causation has been established, to charge ___ with murder under S 18(1), the prosecution must prove beyond a
reasonable doubt that defendant’s act/omission of ___ was deliberate, and that it was done with a minimum of reckless
indifference to human life.
Actus Reus
The deliberate act/omission has already been identified as ___, when establishing causation as above.
*** If omission, we must establish a duty under homicide by omission.
Mens Rea
The prosecution must now prove beyond a reasonable doubt that ___ either intended to kill, cause grievous bodily harm,
or held reckless indifference to human life.
• Hyam provides that an intention to kill/inflict grievous bodily harm requires a conscious purpose and decision,
not necessarily a desire. Woolin holds that intention involves doing an act with certainty that it will happen.
o On this basis, ___ intended to kill/inflict grievous bodily harm since considering the surrounding
circumstances as per R v Robinson …
o On this basis, it is unlikely that the prosecution will prove ___ intended to kill/inflict grievous bodily
harm since considering the surrounding circumstances as per R v Robinson …
• The Crabbe and Solomon tests used in NSW hold that reckless indifference to human life requires foresight of
probability of death arising from the act.
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a. No act or omission which was not malicious, or for
which the accused had lawful cause or excuse, shall be
within this section.
b. No punishment or forfeiture shall be incurred by
any person who kills another by misfortune only.
CONSTRUCTIVE MURDER
S 18 of the Crimes Act
1.
a. Murder shall be taken to have been committed
where the act of the accused, or thing by him or her
omitted to be done, causing the death charged, was …
done in attempt to commit, or during or immediately
after the commission, by the accused, or some
accomplice with him or her, of a crime punishable by
imprisonment for life or for 25 years.
Possible base offences:
• S 61A – aggravated sexual assault in
company
• S 33(2) – wounding with intent to resist arrest
• S 33A(2) – discharging a firearm with intent
to resist arrest
• S 97(2) – armed robbery with a dangerous
weapon
o From Solomon, it is insufficient to foresee the probability of grievous bodily harm, and this will amount
to manslaughter rather than murder.
• As per La Fontaine, ___ has the requisite intent since he intended to kill, even though he did not believe he
would be successful.
Therefore, it is likely that the prosecution will establish the requisite mens rea for murder, and ___ may be convicted of
homicide under S 18 of the Crimes Act, unless the charge is negated by defences.
Therefore, it is unlikely that the prosecution will succeed in proving the mens rea element beyond a reasonable doubt, and
___ may not be convicted of murder under S 18 of the Crimes Act.
___ may be charged with constructive murder under S 18(1)(a) of the Crimes Act. The prosecution must prove beyond a
reasonable doubt that ___ committed the base offence of ___, and the death of ___ was in attempt to commit, or during or
immediately after the commission of the base offence.
Mens Rea
The mens rea for constructive murder is one of strict liability, and mens rea only needs to be proven for the base offence to
substantiate the charge.
Actus Reus
• ___ committed ___, a crime punishable by imprisonment for ___.
• As per Ryan, the act causing death must be voluntary. To satisfy voluntariness, the prosecution may use time
malleably.
o ___’s act was clearly voluntary, since …
o ___’s act was not voluntary, as suggested by …
• As per S 18, the act causing death must be done in attempt to commit, or during or immediately after the
commission of the base offence. The legislation does not define “immediately after”, but it is defined at common
law.
o Hudd holds that the felony and death must be so closely linked in time, place and circumstance. This is
subjective.
§ Based on the facts, ___ and the death of ___ were so closely linked in time/place/circumstance,
as …
§ ___’s death and the ___ were not so closely linked in time/place/circumstance to satisfy Hudd.
Based on the facts …
On the facts, the prosecution can prove all actus reus elements beyond a reasonable doubt and it is highly likely that ___
will be convicted of constructive murder.
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MANSLAUGHTER BY UNLAWFUL AND
DANGEROUS ACT
S 18 of the Crimes Act
1.
b. Every other punishable homicide shall be taken to
be manslaughter.
Unlawful acts which are excluded:
• Downe – acts done in self-defence
• Andrews v DPP – not all acts amount to an
unlawful and dangerous act
• Pullman – breach of statutory or regulatory
prohibition is not in itself unlawful
• Lowe – omissions cannot substantiate
manslaughter
• Cramp – supplying alcohol and encouraging
a learner to drive at excessive speeds is
sufficient
It is unlikely that the prosecution will succeed in establishing the actus reus, and therefore, ___ will not be convicted of
constructive murder.
The prosecution may charge ___ with manslaughter, under S 18(1)(b), specifically, by an unlawful and dangerous act. The
prosecution must prove beyond reasonable doubt that the accused undertook an intentional unlawful act, the act caused the
death of the accused, and the mens rea element.
Actus Reus
Lamb holds that the offence constituting the unlawful act must be established. The unlawful act may be identified as ___.
• Larkin holds that the act must be dangerous.
• Burns holds that the supply of drugs is not a dangerous act in itself.
• Quoc Cao holds that complicity by giving the means to self-administer satisfies an unlawful act.
Causation
Deane, Dawson and Brennan JJ affirmed the common law test of Hallet in Royall, that causation is determined by
considering whether at the time of death the ___ (original wound) was still operating and was the substantial cause of
___’s death. This is proven on the facts because…
Mens Rea
As per Wilson, the prosecution must prove that the act was done in circumstances where the reasonable person in the
position of the accused has an appreciable risk of serious injury.
• From DPP v Ty, the reasonable person must be the same age as the accused but no idiosyncrasies are attributed to
him/her as per Wills.
• Wilson quantifies an appreciable risk as one that is real or significant, rather than remote or fanciful.
o ___ carried a real and significant risk since …
o ___ carried a remote and fanciful risk, as …
• Further, Wilson defines a serious injury as more than trivial or negligible. The injury caused by ___ satisfies/does
not satisfy this assessment, based on …
Therefore, the reasonable person would find ___’s act of ___ carried an appreciable risk of serious injury, and ___ would
likely be convicted of manslaughter by an unlawful and dangerous act.
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 Therefore, it is unlikely that the reasonable person would find ___’s act of ___ carried an appreciable risk of serious
injury, and ___ would not be convicted of manslaughter by unlawful and dangerous act under S 18(1)(b).
MANSLAUGHTER BY CRIMINAL NEGLIGENCE ___ may be charged with manslaughter by criminal negligence. The prosecution must first prove beyond a reasonable
doubt the existence of a legal duty of care, causation and the mens rea standard set by Nydam.
S 18 of the Crimes Act
Actus Reus
1. A duty of care must be established, as required by Nydam. Applying ___ (select relevant duty), ___ owes a common law
b. Every other punishable homicide shall be taken to duty of care to ___ …
be manslaughter. • R v Taktak, as a duty was provided in statute
• R v Taktak, to remove danger, since ___ caused the danger
• R v Taktak, where ___ was secluded as to prevent others from rendering aid
• R v Russell, as a father has a legal duty to children as they are dependent and vulnerable – duty exists by special
relationship
• Stone and Dobinson, where voluntary care had been assumed
• Burns, there is no duty to administer assistance
• Sood, where there is a retrospective duty to ensure the child was not born alive in a condition incompatible with
survival
• Wacker, due to the helplessness and seclusion created

Causation
Deane, Dawson and Brennan JJ affirmed the common law test of Hallet in Royall, that causation is determined by
considering whether at the time of death the ___ (original wound) was still operating and was the substantial cause of
___’s death. This is proven on the facts because…

Mens Rea
Nydam holds that the mens rea is an intent to do the 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.
• Lavender clothes the reasonable person with the characteristics and knowledge of ___ in the circumstances, and
the ordinary fortitude and strength of mind that one would have.
• As per Sam, cultural background cannot be considered.
• The application of Lavender indicates that based on the facts …

Nydam also requires the reasonable person to foresee a high degree of risk or likelihood of the occurrence of death or
serious bodily harm if that standard of care was not observed. This high degree of risk may be equated with probability.
• No instruction in percentages is permitted.
• This high degree may/may not be substantiated by the fact that …

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HOMICIDE BY OMISSION
1.
a. Murder shall be taken to have been committed
where the act of the accused, or thing by him or her
omitted to be done, causing the death charged, was
done or omitted with reckless indifference to human
life, or with intent to kill or inflict grievous bodily
harm upon some person, or done in attempt to commit,
or during or immediately after the commission, by the
accused, or some accomplice with him or her, of a
crime punishable by imprisonment for life or for 25
years.
Therefore, the prosecution are likely/unlikely to prove the existence of both actus reus and mens rea elements beyond a
reasonable doubt, and ___ will be convicted/will fail to be convicted of manslaughter by criminal negligence under S
18(1)(b).
Under S 18 of the Crimes Act, an omission can satisfy the actus reus for murder.
Actus Reus
The prosecution must prove a legal duty to act beyond a reasonable doubt. Applying ___ (select relevant duty), ___ owes
a common law duty of care to ___ …
• R v Taber, to remove danger, since ___ caused the danger
• R v Taktak, where ___ was secluded as to prevent others from rendering aid
• R v Russell, as a father has a legal duty to children as they are dependent and vulnerable – duty exists by special
relationship
• Stone and Dobinson, where voluntary care had been assumed
• Burns, there is no duty to administer assistance
• Sood, where there is a retrospective duty to ensure the child was not born alive in a condition incompatible with
survival
• Wacker, due to the helplessness and seclusion created
Therefore, the accused owed a duty to act and failed to do so.
Causation
Deane, Dawson and Brennan JJ affirmed the common law test of Hallet in Royall, that causation is determined by
considering whether at the time of death the ___ (original wound) was still operating and was the substantial cause of
___’s death. This is proven on the facts because…
Mens Rea
The prosecution must now prove beyond a reasonable doubt that ___ either intended to kill, cause grievous bodily harm,
or held reckless indifference to human life. As per R v Robinson, intention may be inferred from all the circumstances in
which the death occurred, and from the conduct of the accused before, during or after the time of the act which caused the
death.
RECKLESS INDIFFERENCE:
• In the case of reckless indifference to human life, BW & SW provides that there must be a realisation of the
probability of the harm and a deliberate choice to do nothing.
ALL OTHER CASES:
• Hyam provides that an intention to kill/inflict grievous bodily harm requires a conscious purpose and decision,
not necessarily a desire. Woolin holds that intention involves doing an act with certainty that it will happen.
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 o On this basis, ___ intended to kill/inflict grievous bodily harm since …
o On this basis, it is unlikely that the prosecution will prove ___ intended to kill/inflict grievous bodily
harm since …
• As per La Fontaine, ___ has the requisite intent since he intended to kill, even though he did not believe he
would be successful.

Therefore, it is likely that the prosecution will establish the requisite mens rea for murder, and ___ may be convicted of
homicide under S 18 of the Crimes Act.

Therefore, it is unlikely that the prosecution will succeed in proving the mens rea element beyond a reasonable doubt, and
___ may not be convicted of homicide under S 18 of the Crimes Act.
VOLUNTARY MANSLAUGHTER Whilst ___ may satisfy the actus reus and mens rea for murder, partial defences may lower culpability for the offence to
be classified as voluntary manslaughter.

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 DEFENCES

Test Exam Response

MENTAL ILLNESS
Part 4 – Mental Health (Forensic Provisions) Act 1990 (NSW)
Both prosecution and defence can raise the issue of mental illness at trial, and as per DPP v Khoury, mental
illness may arise at the defensive stage.
___ (defendant) must prove mental illness on the balance of probabilities, and if successful, may be
acquitted. However, a successful mental illness defence will result in indefinite detention awaiting the
Mental Health Review Tribunal, amounting to a special verdict.

Mental illness is not defined by the Mental Health (Forensic Provisions) Act 1990 (NSW), but is determined
according to the M’Naghten rules.

First, the prosecution must prove that ___ (defendant) was labouring under a defect of reason resulting from
abnormality of the mind. Applying ___ (case), …

• Sodeman holds that the defect of reason must be one of cognition, not volition.
o ___ (defendant)’s defect of reason is cognitive, not volitional, since …
o ___ (defendant)’s defect of reason is clearly volitional, since … Therefore, the defendant will
be unable to access the mental illness defence.

• As per Porter, ___ is required to be suffering a disease of the mind, not of the brain, being a state of
“disease, disorder or disturbance”. Applying ___ (case), …
o Bratty v Attorney General for Northern Ireland states that a disease of the mind encompasses
the major mental diseases and psychoses, such as schizophrenia.
o Quick holds that a mental disorder arising from an external cause is not a disease of the mind.
o Radford, the reaction of an unsound mind to its own delusions may be suggestive of a disease
of the mind.
o Da-Pra, medical evidence is not essential to prove a disease of the mind, but it is frequently
adducted.
o Woodbridge reinforces that insanity requires a legal, not a medical definition.

• Based on the facts, ___ was suffering from …

• Based on the facts, ___ was suffering from ___ however this is not a disease of the mind, as ...

M’Naghten further requires that because of the defect of reason, ___ (defendant) must prove that he/she
either did not know the nature or quality of the act, or if he/she did, that he/she did not know it was wrong.

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 • Porter holds that the defendant must not know:
• What they were doing and what the implications of the act were;
• That his/her act was wrong at a moral, not a legal standard.
• Cheatham requires that the disease of the mind must cause an incapacity to understand the nature
and quality of the act, rather than just difficulty in appreciation.
• A mere difficulty with reasoning is far too low a standard.

• Applying ___, the defendant did not know ...

AUTOMATISM

The defendant may raise evidence to negative voluntariness.

As per Falconer, a psychological blow may lead to involuntary conduct, which would not otherwise amount
to a disease of the mind requisite for the mental illness defence. If the defendant can successfully prove
automatism on the balance of probabilities, culpability will be reduced from murder to manslaughter.

• The factual scenario is similar to ___ (case), where ___(defendant) was suffering from ...

Case Cause Reasoning

O’Connor Extreme states of intoxication Mental element is necessary, thus it is not evident if
caused by alcohol something has interfered with it
Haywood Drugs No distinction to be drawn between alcohol and drugs
Wogandt Concussion Concussion is independent of one’s will
Quick Hypoglycaemia Malfunctioning of the mind occurred externally as it was a
(Low blood sugar) result of the insulin
Hill v Baxter Sudden illness Act not to be regarded as involuntary simply because it
is unintentional or its consequences are unforeseen
Falconer Disassociation caused by a Psychological blow may cause involuntary conduct
severe psychological blow
Jiminez Sleepwalking (authorities
differ)
Donyadideh Post-traumatic stress disorder Automatism as a result of PTSD is a valid defence

As per ___(case), ___ does not permit the defendant to access automatism, and mental illness instead must
be considered as insane automatism.

15

SUBSTANTIAL IMPAIRMENT
S 23A – Substantial impairment by abnormality of mind
1. A person who would otherwise be guilty of murder is not to be
convicted of murder if:
a. at the time of the acts or omissions causing the death concerned,
the 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 mind
arising from an underlying condition, and
b. the impairment was so substantial as to warrant liability for
murder being reduced to manslaughter.
4. The onus is on the person accused to prove that he or she is not
liable to be convicted of murder by virtue of this section.
8. In this section:
underlying condition means a pre-existing mental or physiological
condition, other than a condition of a transitory kind.
Case Cause Reasoning
Hennessy Hyperglycaemia Medical evidence suggested that hyperglycaemia could lead
(High blood sugar) to mental impairment; no external factor to permit a defence
of automatism, therefore only insanity was available
Burgess Sleepwalking Authorities differ
Transitory; internal factor and prone to recur
Sullivan Epilepsy Defence of insanity was available but not automatism; done
by the courts with reluctance
___ (defendant) may raise evidence of substantial impairment, to the passing the judge standard, under S
23A of the Crimes Act 1900.
If successful, ___’s charge of murder will be reduced to manslaughter. The prosecution must negative the
defence beyond a reasonable doubt.
The first limb under S 23A(1)(a) requires proof of ___’s abnormality of the mind arising from an underlying
condition.
• S 23A(8) provides that the condition must be pre-existing, not transitory.
• Byrne holds that abnormality of mind is so different to that of the ordinary person that the
reasonable man would term it abnormal. Both cognitive and volitional impairments may be
considered.
o ___’s underlying condition of ___ creates an abnormality of mind which suffices the Byrne test,
since the reasonable man would consider … abnormal.
o The reasonable man is likely to term ___’s underlying condition of ___ as abnormal, as
required by Byrne. Upon the facts …
S 23(1)(b) holds that the impairment must be so substantial as to warrant liability for reducing murder to
manslaughter. Potts holds that the finding is a moral not medical judgment, therefore expert evidence does
not have to be accepted by the jury to consider the meaning of ‘so substantial’.
• As per Goodridge, the exacerbating effects of ___’s intoxication must be excluded from
consideration. The question is whether the impairment was substantial despite intoxication.
• Similar to Peterson, ___ was intoxicated. However, his/her substantial impairment resulted from the
effects of long-term intoxication, including …
o Note: in Peterson, D had a mild to moderate intellectual disability and frontal lobe
damage from the effects of alcohol.
16

INFANTICIDE
S 22A – Infanticide
2. Where upon the trial of a woman for the murder of her child,
being a child under the age of twelve months, the jury are of opinion
that she by any wilful act or omission caused its death, but that at
the time of the act or omission the balance of her mind was
disturbed by reason of her not having fully recovered from the
effect of giving birth to such child or by reason of the effect of
lactation consequent upon the birth of the child, then the jury may,
notwithstanding that the circumstances were such that but for the
provisions of this section they might have returned a verdict of
murder, return in lieu thereof a verdict of infanticide, and the
woman may be dealt with and punished as if she had been guilty of
the offence of manslaughter of the said child.
INTOXICATION
S 428A - Definitions
Intoxication means intoxication because of the influence of alcohol,
drugs or any other substance
S 428B – Offences of specific intent to which Part applies
1. An offence of specific intent is an offence of which an intention
to cause a specific result is an element
S 428C – Intoxication in relation to offences of specific intent
1. Evidence that a person was intoxicated at the time of the relevant
conduct may be taken into account in determining whether the
person had the intention to cause the specific result necessary for an
offence of specific intent
2. Such evidence cannot be taken into account if the person:
a. Had resolved before becoming intoxicated to do the relevant
conduct
b. Became intoxicated in order to strengthen resolve to do the
relevant conduct
Therefore, upon the evidence, it is likely/unlikely that ___ (defendant) would succeed in the defence of
substantial impairment.
___ has been charged with infanticide under S 22A(1) of the Crimes Act 1900, which operates to reduce the
infanticide offence to a charge of manslaughter.
The legislation does not specify the burden of proof for the defence.
Upon the facts, ___ may have been suffering from the effects of …
Therefore, ___ may be punished according to the offence of manslaughter for the death of her child.
Sullivan directs that if there is sufficient evidence, the judge should direct the jury to intoxication even
though ___ is not relying on it.
___ may bring evidence of intoxication, which the prosecution must negative beyond a reasonable doubt
according to S 428 of the Crimes Act 1900.
Offences of Specific Intent
Evidence that ___ was intoxicated at the time of committing ___, an offence of specific intent, may be
considered to determine whether ___ (defendant) had the mens rea for the offence, under S 428C.
• ___’s intention to commit ___ was clearly a result of intoxication, as the facts suggest …
• ___’s intention to commit ___ was unlikely to be affected by intoxication, since the facts suggest
…
Therefore ___ may/may not have his/her culpability reduced under intoxication.
No Specific Intent
___ did not commit a crime of specific intent. As per S 428D(_):
• (a) His/her intoxication was self-induced and cannot be taken into account to reduce culpability for
___.
17
S 428D – Intoxication in relation to other offences
In determining whether a person had the mens rea for an offence
other than an offence of specific intent, evidence that a person was
intoxicated at the time of the relevant conduct:
a. if the intoxication was self-induced—cannot be taken into
account, or
b. if the intoxication was not self-induced—may be taken into
account.
S 428E - Intoxication in relation to murder, manslaughter and
assault causing death
• (b) His/her intoxication was not self-induced and may be taken into account. As per the facts …
o Therefore, ___’s culpability for ___ may be reduced.
Assault Causing Death
___ is being charged for an offence under S 25A of the Crimes Act 1900, thus intoxication considerations are
expressly limited by S 428E.
• ___’s intoxication was self-induced and cannot be considered for defensive purposes.
• ___’s intoxication was not self-induced, therefore may be considered for defensive purposes. As per
the facts ___ had/did not have the requisite mens rea since …

1. If evidence of intoxication at the time of the relevant conduct

results in a person being acquitted of murder:
a. in the case of intoxication that was self-induced—evidence of
that intoxication cannot be taken into account in determining
whether the person had the requisite mens rea for manslaughter or
for an offence under section 25A, or
b. in the case of intoxication that was not self-induced—evidence of
that intoxication may be taken into account in determining whether
the person had the requisite mens rea for manslaughter or for an
offence under section 25A.

2. An offence under section 25A is not an offence of specific intent

for the purposes of this Part.

428F Intoxication in relation to the reasonable person test

If, for the purposes of determining whether a person is guilty of an

offence, it is necessary to compare the state of mind of the person
with that of a reasonable person, the comparison is to be made
between the conduct or state of mind of the person and that of a
reasonable person who is not intoxicated.

S 428G - Intoxication and the actus reus of an offence

1. In determining whether a person has committed an offence,

evidence of self-induced intoxication cannot be taken into

18
account in determining whether the relevant conduct was
voluntary.
2. However, a person is not criminally responsible for an offence if
the relevant conduct resulted from intoxication that was not self-
induced.
EXTREME PROVOCATION
S 23 – Trial for murder – 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
The defendant can raise evidence of extreme provocation, which operates to reduce the charge of murder to
manslaughter as per S 23(1) of the Crimes Act 1900. The prosecution has the legal burden of disproving
extreme provocation beyond reasonable doubt on the evidence raised by the defence.
As per S 23(2)(a), the prosecution must negative that the act of ___ (defendant) was in response to the
conduct of ___ (victim) towards or affecting him/her.
• The conduct of ___ (victim) was in the sight or hearing of ___ (defendant), therefore constitutes
being ‘towards or affecting’ ___ (defendant) as per Quartly.
• R v Davis provides that hearsay provocation is not within the scope of this defence.
• Queen v R holds that the words of ___ (victim) cannot be looked at in isolation and may amount to
conduct towards or affecting the accused, considering they were said in the context of …
S 23(2)(b) provides that the provoking conduct of ___ (victim) must be a serious indictable offence (an
offence punishable by five + years imprisonment).
• ___ (victim) committed the serious indictable offence of ___ which is punishable by ___.
Therefore, this element of the defence is satisfied.
• ___ (victim) committed the offence of ___ which is punishable by ___, therefore it does not
constitute a serious indictable offence and the defence fails.
• ___ (victim) did not commit an offence and the defence will fail on this ground.
The subjective test in S 23(2)(c) requires the prosecution to consider whether the deceased’s conduct caused
the defendant to lose self-control.
• From Chhay, emotions such as hatred, resentment, fear or the desire for revenge do not of
themselves involve a loss of self-control although in some circumstances, they may lead to it.
• Pollock holds that there may be an interval between the provocative conduct and the accused’s
emotional response.
o Therefore, the interval of ___ that existed between ___ (victim’s) conduct and the response
of ___, suffices as a loss of self-control under the common law.
• As per Hill, a sudden and final stage in which provocative and intolerable conduct of the deceased
over a lengthy period of time brings her to breaking point suffices to form a loss of self-control.
Applying this to the long-term provocation and conduct of ____,
19
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.
SELF-DEFENCE
S 418 – Self-defence – when available
1. A person is not criminally responsible for an offence if the person
carries out the conduct constituting the offence in self-defence.
2. A person carries out conduct in self-defence if and only if the
person believes the conduct is necessary:
a. to defend himself or herself or another person, or
b. to prevent or terminate the unlawful deprivation of his or her
liberty or the liberty of another person, or
c. to protect property from unlawful taking, destruction, damage or
interference, or
d. to prevent criminal trespass to any land or premises or to remove
a person committing any such criminal trespass,
and the conduct is a reasonable response in the circumstances as he
or she perceives them.
S 421 – Self-defence – excessive force that inflicts death
1. This section applies if:
a. the person uses force that involves the infliction of death, and
b. the conduct is not a reasonable response in the circumstances as
he or she perceives them,
Finally, the prosecution must examine the objective test established in S 23(2)(d) which requires a
determination of whether the conduct of the deceased could have caused an ordinary person to lose self-
control in the circumstances.
• Stingel provides that age is the only relevant factor which may be attributed to the
ordinary person, therefore we must consider the cognition of an ordinary person aged ___.
• The ordinary person would/would not have lost self control in the circumstances since …
Therefore, it is likely/unlikely that ___ (defendant) will have his/her charge of murder downgraded to
manslaughter by extreme provocation.
___ (defendant) may raise evidence that the act of ___ was done in self-defence. If the prosecution cannot
negative this beyond a reasonable doubt, ___ will not be criminally responsible for ___.
S 418(2)(_) of the Crimes Act 1900 provides a subjective test, that ___ (defendant) carried out the conduct in
self-defence if he/she believed it was necessary to (insert relevant provision)
• ___ clearly believed the conduct was necessary, since …
• Therefore, the subjective test element is satisfied.
As per S 418(2), an objective element must also be satisfied, that ___’s conduct was a reasonable response to
the circumstances as he or she perceived them.
• Katarzynski holds that self-induced intoxication must be excluded from consideration for the
objective test.
• As per Burgess and Saunders, the action must have been directly against the source of the threat in
order to be a reasonable response. ___ (defendant) took action against ___, which was the source of
the threat.
• Colosimo [2006] – not self defence where the accused has created the situation in which he is an
aggressor to the pursuit of his original design
• FACTUAL CONSIDERATIONS:
o Even if the defendant was mistaken in his/her belief, the question is of the circumstances as
he or she perceived them.
o Consider alternative courses of action as these may be relevant to reasonableness.
On the evidence raised by the defendant, it is highly likely that the prosecution will fail to negative self-
defence beyond a reasonable doubt. ___ will not be liable for ___.
20
but the person believes the conduct is necessary:
c. to defend himself or herself or another person, or
d. to prevent or terminate the unlawful deprivation of his or her
liberty or the liberty of another person.
2. The person is not criminally responsible for murder but, on a trial
for murder, the person is to be found guilty of manslaughter if the
person is otherwise criminally responsible for manslaughter.
S 422 Self-defence—response to lawful conduct
This Division is not excluded merely because:
a. the conduct to which the person responds is lawful, or
b. the other person carrying out the conduct to which the person
responds is not criminally responsible for it.
Excessive Force
Since the defendant’s conduct did not meet the objective test, the court must consider whether excessive
force was used under S 421. At common law, Howe and Viro both reduce murder to manslaughter under
self-defence.
• The requirement of force that inflicts death, and the conduct not being a reasonable response as per
S 421(1)(a) and (b) are satisfied above in considering the objective limb of self-defence.
• S 421(c) or (d), that ___ believed the conduct was necessary to … is also satisfied, given the fact
that …
Therefore, ___ may access the excessive force provision, and liability will be reduced from murder to
manslaughter.
Property
As per S 420, ___ will be unable to utilise self-defence as the infliction of death was performed for the
protection of property/preventing criminal trespass.
21
 STALKING AND INTIMIDATION
Test Exam Response
STALKING AND INTIMIDATION ___ (defendant) may be charged with stalking/intimidation under S 13 of the Crimes (Domestic and Personal Violence)
Act 2007.The prosecution must prove both the actus reus and mens rea beyond a reasonable doubt.
S 13 of the Crimes (Domestic and Personal Violence)
Act 2007 Actus Reus

A person who stalks or intimidates another person Intimidation is defined by S 7(_) as …

with the intention of causing the other person to fear a. conduct amounting to harassment or molestation of the person,
physical or mental harm is guilty of an offence. b. an approach made to the person by any means that causes the person to fear for his or her safety, or
c. any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has
Maximum penalty is 5 years imprisonment or 50 a domestic relationship, or of violence or damage to any person or property.
penalty units, or both.
Stalking is defined by S 8 as the following of a person about or the watching or frequenting the vicinity of, or an approach
to, a person’s place of residence, business or work or any place that a person frequents for the purposes of any social or
leisure activity.

___ (defendant)’s conduct satisfies/does not satisfy the definition of intimidation/stalking since …

Mens rea

The prosecution must prove an intention to cause ___ (victim) to fear physical or mental harm.
• Intention is clear since …
• Intention is not evident, since …

22

Test
LARCENY
S 118 of the Crimes Act
Whosoever commits larceny, or any indictable offence
by this Act made punishable like larceny, shall, except
in the cases hereinafter otherwise provided for, be
liable to imprisonment for five years.
DISHONEST ACQUISITON
Exam Response
___ (defendant) may be charged with larceny under S 117 of the Crimes Act. Larceny is not defined by the
legislation. Ilich provides the common law elements for both the actus reus and mens rea.
Actus Reus
Ilich outlines four actus reus elements. Each must be proven by the prosecution beyond a reasonable doubt to substantiate
a conviction.
It must first be proven that the ___ (property stolen) was capable of being stolen by ___ (defendant). The common law
restricts larceny to tangible, moving property. As per the rule of ___, ...
• General common law rule – land cannot be taken away, even though it is tangible
• Billing v Pill – things attached to the land cannot be stolen, e.g. houses, trees
• Case of Swans – in their natural state as ferae naturae, animals are not anyone’s possession and cannot be taken
• Crimes Act prohibits the stealing of various animals:
o SS 126 – 131 – domestic farm animals
o S 132 – dogs
o S 502 – cattle
o S 505 – animals ordinarily kept in confinement
o S 512 – fish in waters on private property
• White - gas can be stolen from a pipe
• Kidd and Walsh - copyright of a song does not suffice as property being stolen
• Croton - money cannot be stolen from a joint account if withdrawn, since there was no initial possession of the
notes by the other party
It must also be proven that ___ (property) was in the possession of another.
Applying ___ (case), the facts provide …
• Anic, Stylianou and Suleyman - a thief holds possession of what he has stolen; even though the property was
illegally in possession, it suffices for a claim of larceny
• Hibbert v McKiernan - property found on enclosed land is in possession of the landowner, even if they are
unaware of the existence of the property
Additionally, property must be taken and carried away. Wallis v Lane holds that merely moving the property with intent to
steal suffices as asportation.
• ___(defendant) moved …
23
 • There was no asportation since …

The final actus reus element requires that the property was taken without the consent of the possessor.
• Middleton - the possessor must be unwilling
• Kennison v Daire - allowing something is not the same as consenting to it
• Kolosque v Miyazaki - license granted by an owner to remove goods is broken if there is any action inconsistent
with that license

Mens Rea

Three considerations of mens rea arise from Ilich, each to be proven beyond a reasonable doubt by the prosecution.

The court must first prove an intention to permanently deprive, where S 118 of the Crimes Act states that intention to
eventually return property does not itself allow an acquittal, overcoming the common law proposition of Foster. As per ...
• R v Easom, conditional taking is not larceny, since an intent to examine is not the same as an intent to
permanently deprive. The defendant ...
• R v Foster there is no intention to deprive, as there was an intention to return when taking.
• Weatherstone, an intention to permanently deprive is held where the intent is not to return the object in the same
condition as it was taken. The defendant …
• Beecham, an intent to permanently deprive may be sustained where the value of the property has been exhausted.
The defendant took ___, which may be defined as ___.
o Since the definition encompasses the value of …
o The definition clearly does not encompass the value of … and therefore, the intention to permanently deprive
cannot be made out.

The prosecution must also prove that the conduct was done fraudulently or dishonestly. In New South Wales, the S
4B definition of ‘dishonestly’ is followed, where dishonest means dishonest according to the standards of ordinary people
and known by the defendant to be dishonest according to the standards of ordinary people. This strongly reflects the two-
step United Kingdom common law test of Ghosh.
• Feely - returning a fungible is not fraudulent, as the actual intent is not to deprive of the sum.
• Test 1 (objective limb):
o Upon the facts, ___’s act was dishonest according to the standards of ordinary people since …
o Upon the facts, it is unlikely that ___’s act was dishonest according to the standards of ordinary people, as
…
• Test 2 (subjective limb):
o The defendant knew/did not know this was dishonest according to the standards of ordinary people since …
o Therefore, the defendant’s conduct satisfies/does not satisfy the subjective element of dishonesty ...

24

FRAUD
S 192E of the Crimes Act
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 the offence of fraud.
Maximum penalty = 10y imprisonment
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 in
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 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
Finally, the defendant may make a claim of right as per Fuge, since ___ held a belief of legal entitlement to ...
Fuge also holds that the belief does not have to be reasonable, but it must be genuine. ___’s belief was genuine since …
• The Crown are likely to be successful in negativing the claim of right, based on …
• The Crown are unlikely to successfully negative the claim of right, based on …
• According to Love, the defendant can believe they are legally entitled to property, even if it causes financial
disadvantage to the victim.
Therefore, ___ is likely to be convicted of larceny as all elements of the mens rea can be fulfilled.
Therefore, it is unlikely that ___ will be convicted of larceny, as ___ cannot be fulfilled to establish the actus reus/mens
rea of the offence.
___ may be charged with fraud under S 192E of the Crimes Act. The prosecution must prove both actus reus and mens rea
elements beyond a reasonable doubt for conviction.
Actus Reus
The prosecution must first establish that ___’s conduct was by deception. As defined by S 192B of the Crimes
Act, deception requires, by words or other conduct, (select relevant):
• Deception as to the intentions of the person
• Conduct by a person that causes a computer, machine or any electronic device to make a response that the person
is not authorised to cause it to make.
• CL tests:
o The common law quantifies deception in DPP v Ray, where although honest at the time of ordering food,
continuing to sit after the dishonest intention has formed creates a false impression and amounts to
deception.
o The common law suggests in Silverman that a high quote on a labouring job may render deceptive conduct.
S 192E also requires ___ to have either obtained property, obtained financial advantage or caused financial disadvantage
through deception.
Obtained property belonging to another
___ may be charged with a fraud offence based on the actus reus of obtaining property belonging to another, contained in
S 192E(1)(a).
The broad definition of ‘obtains property’ is contained in S 192C(1), encompassing the ownership, possession or control
of the property.
o ___ (defendant) obtained ___, as he/she …
o ___ (defendant) failed to obtain ___, as he/she …
25
larceny, is an alternative verdict to a charge for the
offence of fraud
As per S 192C(3), property belongs to another if the person has possession, control, proprietary rights of interest in the
property.
o The ___ obtained by ___ (defendant) belonged to ___ (previous owner), as he/she ...
o The ___ obtained by ___ (defendant) did not belong to …
Further, as per S 192C(4), the property was obtained since ___ (defendant) treated the ___ as his/her own, disposing of the
rights of the other.
Obtained financial advantage or caused financial disadvantage
___ may be charged with a fraud offence by obtaining financial advantage/causing financial disadvantage defined by S
192D, as held in the general offence in S 192E(1)(b). The legislation provides that the actus reus may be proven regardless
of whether the advantage/disadvantage is permanent or temporary.
ADVANTAGE CL
Murphy defines ‘advantage’ as the better of another in any respect.
• ___ (defendant) gained the better of ___ by …
• ___ (defendant) failed to gain the better of ___, since …
Coehlo v Durbin holds that the financial advantage must be realised and the accused must be in a better position
than before.
• ___ (defendant) realised his/her financial advantage by ...
• ___ (defendant) failed to realise his/her financial advantage since …
DISADVANTAGE CL
Ho and Szeto holds that a causal connection is required between the deception and the disadvantage to the
victim.
• The causal link between ___ (defendant’s) deception of … and the disadvantage of ___ (victim) is
clear based on the fact that …
• The causal link test fails since ...
Therefore, the actus reus of S 192E is satisfied since both dishonesty and obtaining property/obtaining financial
advantage/causing financial disadvantage may be made out by the prosecution.
Mens Rea
26

RECEIVING STOLEN PROPERTY
S 188 – Receiving stolen property where serious
indictable offence
1. Whosoever receives, or disposes of, or attempts to
dispose of, any property, the stealing whereof amounts
to a serious indictable offence, knowing the same to
have been stolen, shall be guilty of a serious indictable
offence and may be indicated, either as an accessory
after the factor or for a substantive offence and in the
latter case whether the principal offender has been
previously tried or not, or is amenable to justice or
not, and in either case is liable:
Intention or recklessness suffice to form the requisite mens rea for fraud as per S 192B(2).
• ___ showed intention/recklessness by …
• ___ fails to show intention nor
As per S 192E(1), the fraud offence additionally requires the mens rea of dishonesty. Dishonesty is a moral question,
defined by 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 strongly reflects the two-step United Kingdom common
law test of Ghosh.
The defendant satisfies the legislative dishonesty test by …
The defendant fails on the mens rea element since …
Obtaining property
S 192C(2) provides that the requisite mens rea for obtaining property is intent to permanently deprive another of property.
• ___ (defendant) intended permanent depravation, as made evident by …
• ___ (defendant) is unlikely to have intended permanent depravation, since …
o However, S 192C(4) holds that by treating the property as his/her own, ___ (defendant) satisfied the intent to
permanently deprive …
o While S 192C(4) holds that by treating the property as his/her own ___ intended to permanently deprive, the
evidence fails to satisfy this since …
Therefore, ___ is likely/unlikely to be convicted of fraud under S 192E of the Crimes Act.
___ (defendant) may be charged with receiving stolen property under S 188/189 of the Crimes Act. The prosecution must
prove the existence of both the actus reus and mens rea beyond a reasonable doubt.
Actus Reus
Firstly, the property in question must have been stolen. S 187 provides that
taking/extorting/obtaining/embezzling/otherwise disposing of the property amounts to stealing, thus ___ (property) was
clearly stolen.
The actus reus also requires the prosecution to prove that ___ received the stolen goods. Fien holds that this is proved by
evidence took possession of the property, not merely had custody of the property.
• Fien provides that joint possession may be held with the thief.
• Matthews provides that there no receiving where D admits to knowing the property was stolen but at the time had
intended to hand it in to police.
27
 a. if the property is a motor vehicle or a
motor vehicle part, or a vessel or a vessel
part, to imprisonment for 12 years, or
b. in the case of any other property, to
imprisonment for 10 years
S 189 – where the original offence was a minor
indictable offence, the receiver is guilty of an offence
punishable with up to 3 years imprisonment.
GOODS IN CUSTODY
S 527C – Persons unlawfully in possession of
property
(1) Any person who:
(a) has any thing in his or her custody,
(b) has any thing in the custody of another
person,
(c) has any thing in or on premises, whether
belonging to or occupied by himself or
herself or not, or whether that thing is there
for his or her own use or the use of another,
or
(d) gives custody of any thing to a person who is
not lawfully entitled to possession of the
thing,
which thing may be reasonably suspected of being
stolen or otherwise unlawfully obtained, is liable on
conviction before the Local Court:
(a) if the thing is a motor vehicle or a motor vehicle
part, or a vessel or a vessel part, to imprisonment for 1
year, or to a fine of 10 penalty units, or both, or
• ___ clearly had possession of the property, since …
• ___ merely had custody of the property which does not satisfy the Fien test, as …
Mens Rea
The requisite mens rea to be proven is that ___ had knowledge that the property was stolen goods.
• As per Raad, mere suspicion is not sufficient, nor is a deliberate closing of the eyes.
• Balogh holds that belief that the property is stolen must exist at the time of the receipt; an innocent receipt
coupled with a later realisation that the property is stolen is insufficient to constitute the offence
Applying ___ (rule), ___ (defendant) satisfies/fails to satisfy the requisite mens rea since ...
Therefore, the prosecution is likely to succeed in convicting ___ for receiving stolen property.
Since ___ fails to satisfy the actus reus/mens rea element, the prosecution is unlikely to succeed in convicting ___
for receiving stolen property.
Since the prosecution has failed to prove the MR for receiving stolen goods, ___ may be charged with an alternative
offence of unlawful possession of property under S 527C of the Crimes Act.
Actus Reus
The prosecution must prove the actus reus of the offence, being that ___ had the ___ in his/her custody under S 527C(1).
• This is satisfied since …
• This is unlikely to be satisfied since …
Mens Rea
The mens rea of the offence requires the prosecution to prove that the goods were reasonably suspected of being stolen or
unlawfully obtained, as per S 527C(1).
• It is likely that ___ reasonably suspected that the goods were stolen since …
• It is unlikely that ___ reasonably suspected that the goods were stolen, as …
Defence
In a reversal of the Woolmington principle, the defendant must satisfy the court on the balance of probabilities that he/she
had no reasonable grounds for suspecting that the goods were stolen, as per S 527C(2).
• The defendant may raise … under s 527C(2), that they had no reasonable grounds for suspecting that the thing
referred to in the charge was stolen or otherwise unlawfully obtained.
• It is unlikely that the defendant can negative an existence of reasonable grounds of suspicion, since ...
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(b) in the case of any other thing, to imprisonment for
6 months, or to a fine of 5 penalty units, or both.

(1A) A prosecution for an offence under subsection

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

(2) It is a sufficient defence to a prosecution for an

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

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 EXTENDING CRIMINAL LIABILITY
Test Exam Response
JOINT CRIMINAL ENTERPRISE The prosecution may extend liability to ___ (defendant) for the crime of ___ (crime) committed by ___ (principal
offender). The Crown must prove beyond reasonable doubt the existence of an agreement and presence. The Crown must
negative withdrawal.

Agreement

Kanaan holds that agreement does not need to be reduced to writing or any formality. Agreement to commit ___ is clear
on the facts where …

Applying ___, the agreement was present as …

• Handlen – agreement implies that each participant has authority to act in furtherance of the common purpose on
behalf of all participants
• Tangye – unspoken understanding amounts to an agreement
• Chishimba, Makasa and Mulenga – mere presence does not constitute an agreement, encouragement is required
• Wellgreen – the incident erupted too spontaneously and occurred too quickly to support the idea that an
agreement to rob was formed

Therefore, an agreement was/was not formed.

Presence
Osland holds that the extension of liability in JCE is primary therefore, presence is required. ___ (defendant) was present
at the scene as per the facts.

Applying ___ (case), ___ (defendant) was present since …

• Huynh, Duong and Sem – agreement and participation are more important than presence
• Sever – where the co-accused is not present at the time another party to the JCE commits the conduct elements of
the crime, the prosecution will need to provide evidence of events, other than those pertaining to the offence
itself, for proof BRD of the existence and scope of the agreement, and the accused’s participation in it
• McEwan, Robb and Dambitis – no need for presence the entire time
• Suteski – one may be charge through JCE if they were present at the agreement stage

Based on the facts, the presence element has/has not been satisfied by ___ (defendant)’s involvement and he/she may be
charged as a principal offender.

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EXTENDED JOINT CRIMINAL ENTERPRISE
Withdrawal
The Crown has the burden of negativing withdrawal beyond a reasonable doubt. The test is provided by Tiete, that to
withdraw, ___ must have:
1. Withdrawn completely, 2. In a timely manner, 3. Making it known to others that he/she was withdrawing, and 4.
Dissuaded others from continuing (although this does not have to be successful).
• The Crown can negative the element of ___ since …
o Therefore, liability may not be extended to ___ for the crime committed by ___ as he/she effectively
withdrew.
• The Crown cannot negative any elements, since …
o Therefore, liability may be extended to ___ in joint criminal enterprise for the crime committed by ___,
as he/she did not withdraw.
Common law provides that since ___ (offender) has committed ___ (crime) additional to an agreement, ___ (defendant)
may be liable for that additional crime through extended joint criminal enterprise. The prosecution must prove both actus
reus and mens rea elements beyond a reasonable doubt.
Actus Reus
The prosecution must prove the existence of an original agreement to commit the base crime. Kanaan holds that
agreement does not need to be reduced to writing or any formality. Agreement to commit ___ is clear on the facts where
…
Applying ___, the agreement was present as …
• Handlen – agreement implies that each participant has authority to act in furtherance of the common purpose on
behalf of all participants
• Tangye – unspoken understanding amounts to an agreement
• Chishimba, Makasa and Mulenga – mere presence does not constitute an agreement, encouragement is required
• Wellgreen – the incident erupted too spontaneously and occurred too quickly to support the idea that an
agreement to rob was formed
Therefore, an agreement was/was not formed.
Presence
Osland holds that the extension of liability in JCE is primary therefore, presence is required. ___ (defendant) was present
at the scene as per the facts.
Applying ___ (case), ___ (defendant) was present since …
• Huynh, Duong and Sem – agreement and participation are more important than presence
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 • Sever – where the co-accused is not present at the time another party to the JCE commits the conduct elements of
the crime, the prosecution will need to provide evidence of events, other than those pertaining to the offence
itself, for proof BRD of the existence and scope of the agreement, and the accused’s participation in it
• McEwan, Robb and Dambitis – no need for presence the entire time
• Suteski – one may be charge through JCE if they were present at the agreement stage

Mens Rea
An additional offence of ___ was committed by ___.

McAuliffe holds that for the extension of liability, ___ required foresight of the possibility that an incidental crime would
be committed and this test is subjective.
• Assessing ___’s subjective knowledge … he/she had the requisite foresight since …
• Assessing ___’s subjective knowledge, there was no possibility of the requisite foresight since …

Further, applying ___ (case), …

• Taufahema – prosecution can only rely on extended JCE which provides access to the foresight of a possibility
standard where there is evidence of a JCE to commit a foundational crime; general notion of being “up to no
good” will not suffice
• Suteski – no requirement that the Crown show that there was an agreement as to the particular manner in which
GBH was to be occasioned, or as to the particular weapon which was to be used, nor was it necessary to show
that the appellant contemplated the particular form of harm

Therefore, by the rules of extended joint criminal enterprise, ___ can be held liable for the additional crime of ___
committed by ___ and will be held as a principal in the first degree by Osland.

Therefore, the prosecution is unlikely to prove the actus reus/mens rea element of extended joint criminal enterprise, and
___ will not be held liable for the additional crime committed by ___.
ACCESSORIAL LIABILITY ___ (defendant) may be held liable as an accessory for ___’s commission of ___ (crime). The prosecution must prove both
the actus reus and mens rea beyond a reasonable doubt.
• Summer and Summer holds that accessorial liability largely applies where the prosecution has failed to prove the
existence of a joint criminal enterprise.

Mens Rea

Giorgianni requires foresight of certainty that the offence will take place, proven by ___ (defendant)’s intention to assist
or encourage, and knowledge of the essential matters of the offence.
1. ___ displayed intention to assist by …
2. Applying ___ (case), ___ (defendant) demonstrated knowledge of the essential matters …

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 • Stokes and Difford – it must be established that the accessory was aware that the principal performed the acts
with the requisite state of mind for that offence; D must know of the principal offender’s intention to do the act
• Likiardopolous – it was enough that he knew or believed that the principal must commit assaults with an
intention of doing the victim really serious injury (mens rea for the offence charged)
o Essential matters does not involve knowing the outcome itself, only encompasses the knowledge of the
principal offender’s intention to do the MR
• National Coal Board v Gamble – not necessary for the prosecution to prove that D wanted the crime to be
committed; indifference to the result of a crime does not negate abetting; intention to assist is required
• Golding and Edwards – distinction between (a) intending to assist the commission of the offence with knowledge
of the essential matters which the prosecution must prove against the accessory BRD, and (b) intending the
principal offender to commit the crime, which is not an element of accessorial liability

Actus Reus
As ___ was present at the scene, his/her accessorial liability may be determined as aiding or abetting.
As ___ was not present at the scene, his/her accessorial liability may be determined as counselling or procuring.

Active steps by words or action must be taken (Coney) and Phan holds that mere presence is not sufficient.
• ___ (defendant) took the steps of … , thereby constituting more than mere presence
• The facts fail to provide evidence that ___ was more than merely present, since no active steps were taken either
by words or action.

Applying ___,
• Clarkson – encouragement must in fact encourage the principle, going beyond intention to encourage.
• Lam – in order to become a party to or participant in the commission of a crime by another, an aider and abettor
must do something of a kind that can be reasonably seen as intentionally adopting and contributing to what is
taking place in his presence
o Encouragement must take place in the presence of the P.O.
o Must communicate the encouragement
o P.O. need not be aware of encouragement – CONFLICT WITH CLARKSON
• Beck – intention may come from words, gestures or action intended to signify approval
• Gang rape – presence alone is not enough, but may be taken as evidence for encouragement in some situations
o Summer and Summer – the fact that a person was voluntarily and purposely present, witnessing the
commission of the crime and offered no opposition, though he might reasonably be expected to prevent
it and had the power to do so, might afford evidence upon which a jury would be justified in finding that
he intentionally encouraged the principal offender and so aided and abetted

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 o Al Qassim – he needs to say or do something that assists or encourages the principal offender to commit
that crime; it is possible for the mere fact of the accused’s presence at the commission of the fence to
constitute encouragement of the principal offender in some cases
• Brawls
o Annakin – where there are numerous participants and multiple crimes, it is not necessary for the
prosecution to prove specific acts of assistance by each accused in relation to every crime

However, ___ indicated withdrawal. As per …

• Sully – leaving the scene may suffice; what will suffice in terms of withdrawal from a JCE or from a situation of
accessorial liability will vary markedly from case to case; it will involve an assessment of what was reasonable
and practical in the circumstances
• Truong – the prosecution must prove that the defendant did not honestly believe that the offence was going to go
ahead

Therefore, since there was no withdrawal, and both actus reus and mens rea elements can be satisfied, ___ may be charged
as a principal in the second degree for aiding/abetting/counselling/procuring ___ to ___ (crime).
CONSPIRACY ___ may be charged with the common law offence of conspiracy, where two or more people form the agreement to
commit a crime/lawful act by unlawful means. The prosecution must prove both actus reus and mens rea beyond a
reasonable doubt.

Actus Reus
As per Mulcahy v The Queen when two agree to carry a crime into effect, the very plot is an act in itself and thus the crux
of the offence is the agreement. Following O’Brien, ___ and ___ went beyond mere negotiation, as to reach a concluded
agreement to perform the crime of ___.

Further, as per Gerakiteys, it is necessary to determine the precise scope of the agreement, as a person cannot be found
guilty of a different conspiracy to that which the indictment alleges.

The factual scenario is similar to ___, thus providing that …

• Lee – two distributors who are part of a wider distribution network could, depending on the circumstances, be
shown to have a common purpose which involved the activities of the entire network, without necessarily
agreeing to do anything to further each other’s activities
• Chrastny (No 1) – it is well established that a conspiracy may exist between persons who have neither seen nor
corresponded with each other; if a person though ignorant of the details of others concerned in the conspiracy,
knows that there are others, then the evidence discloses one single conspiracy

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 • Meyrick – a number of nightclub owners paid the Police not to enforce licensing laws, evidence that all intended
to participate in a general plan to prevent enforcement of the liquor laws in the district thus one large conspiracy
was found
• Griffiths– a person who agrees with their tax return accountant to add a false deduction cannot be convicted of a
general conspiracy with all of the accountant’s other clients who agree to do the same thing

Therefore, the prosecution are likely to succeed/fail to prove existence and scope of the agreement to which ___
(defendants) were a party.

Mens Rea
Regarding mens rea as held in LK and RK, it is incumbent on the prosecution to prove that ___ (defendant) meant to
conspire with another person to commit the offence particularised as being the object of the conspiracy.
• Further, LK and RK holds that there is no conspiracy where the parties to the agreement are reckless as to an
essential circumstance of the conspiracy.

The defendant had the requisite mens rea of intent, as shown by …

The defendant lacked the requisite mens rea of intent, reckless as to the consequence of …

Therefore, ___ may be charged with conspiracy, satisfying both actus reus and mens rea elements.
The prosecution are likely to fail in charging ___ with conspiracy, as ___ cannot be satisfied beyond a reasonable doubt.

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