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Murder Physical Elements

Homicide A killing may, or may not, be unlawful Two categories of unlawful killing murder manslaughter voluntary manslaughter involuntary manslaughter For a schematic overview of the relationship between murder & manslaughter see flowcharts in text pps 69-72

Murder in NSW Crimes Act 1900 (NSW) s 19A(1) A person who commits the crime of murder is liable to imprisonment for life. Murder - Crimes Act 1900 (NSW) s 18 S 18(1)(a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. Murder s 18 S 18(1).. (b) Every other punishable homicide shall be taken to be manslaughter. S 18(2) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section. No punishment or forfeiture shall be incurred by any person who kills another by misfortune only. Malice S 18(2)(a) relates to murder only requirement for malice in s18(2)(a) adds nothing to the definition of murder as crimes of malice require intention or recklessness, which are already elements of the offence there is no requirement to prove malice in manslaughter : R v Lavender [2005] HCA 37 forms of lawful cause or excuse will be considered later in the unit

Elements of Murder 1. an act or omission of the accused 2. that caused 2

3. the death of the deceased 4. where the act was done with reckless indifference to human life; or with intent to kill; or with intent to inflict grievous bodily harm (GBH); or during or immediately after the commission of an offence that carries a punishment of imprisonment for 25 years or life.

Murder - Physical Elements Act or omission that caused the death of a living person (or what at common law was described as any reasonable creature in being) A Voluntary Act the prosecution must prove that a deliberate or willed act of the accused caused the death generally prosecution will seek to specify the act(s) in question, although the particular act does not have to be identified in all circumstances: R v PL (2009) 261 ALR 365; [2009] NSCCA 256 identifying the act will present no difficulty in many cases, but on occasions specifying which act or acts can be both complex and of critical importance Ryan v R (1967) 121 CLR 205; Murray v R (2002) 211 CLR 193; R v Katarzynski [2005] NSWCCA 72

Omissions Some omissions can lead to liability It depends on establishing a legal duty to act: there is no general legal duty to assist others in danger

Duty may arise by virtue of family or other special relationships or because a person assumes the care of another (Taktak (1988) NSWLR 226) or because a person has placed another in danger (R v Taber [2002] NSWSC 1329)

Causation A question for the jury to decide Causation not an abstract, scientific or philosophical question not what was the cause of death but whether it could be said as a matter of law and fact that an act (or omission) of the accused caused the death Jury to decide applying their commonsense to the facts & appreciating that their purpose is to impute (or not) criminal responsibility to the accused: Campbell v R (1980) 2 A Crim R 157, approved in Royall (1991) 172 CLR 378 Act (or omission) of the accused need not be the sole cause, but a significant or substantial cause Often straightforward, but not always

Royall v R (1991) 172 CLR 378 Tests for causation Operating and substantial cause test was the act/omission of the accused a substantial or significant cause operative at the time of the death (notwithstanding that it was not the sole or perhaps even the primary cause)? Natural consequence test Was the death a natural consequence of the accuseds conduct (was the victims action resulting in death a natural consequence of the accuseds conduct?) Reasonable foreseeability test Was the victims death a reasonably foreseeable consequence of the act(s) of the accused (was the victims act resulting in death reasonably foreseeable)

Intervening acts & events - Novus actus interveniens

by third party: accused used deceased as human shield who was shot and killed by police (Pagett (1983) 76 Cr App R 279) by victim e.g. refusing medical treatment (Blaue [1975] 1 WLR 1411 blood transfusion refused on religious grounds); escape threat of imminent harm ( Royall) by third party e.g. negligent medical treatment ( R v Kinash (1981) 5 A Crim R 240; Smith [1959] 2 QB 35; Jordan (1956) 40 Cr App R 152; Evans & Gardiner (No 2) [1976] VR 523) external events/natural forces e.g. tide as in Hallett [1969] SASR 141

Pre-existing susceptibility: Moffatt [2000] NSWCCA 174 an offender must the take the victim as he or she finds them pre-existing susceptibility/ weakness is no excuse Question remains whether the act/omission of the accused substantially contributed to causing or accelerating the death

Death Proving death by circumstantial evidence where no body is found: Shepherd (1990) 170 CLR 573; Chamberlain (No 2) (1984)153 CLR 521; Horry [1952] NZLR 111; Onufrejczyk (1955) 1 QB 388; Plomp (1963) 110 CLR 234; Weisensteiner (1993) 68 A Crim R 251 the legal definition of death: Human Tissue Act 1983 (NSW) s33 For the purposes of the law of New South Wales, a person has died when there has occurred: irreversible cessation of all function of the persons brain, or irreversible cessation of circulation of blood in the persons body. Cf Malcherek and Steel [1981] 2 All ER 422; R v Kinash

When does life begin? 5

a child must be born alive before s/he can be murdered: Crimes Act 1900 (NSW) s 20 On the trial of a person for the murder of a child, such child shall be held to have been born alive if it has breathed, and has been wholly born into the world whether it has had an independent circulation or not. S 20 applies only to murder injuries inflicted in utero can lead to conviction if the child is born alive but then dies: R v Ilby [2005] NSWCCA 178 no single test of what being born alive means: any sign of life after delivery is sufficient: Ilby Ss 82-84 CA relates to abortion it is not murder to kill an unborn foetus as the law does not recognize the foetus as a life in being: Tait [1990] 1 QB 290

Murder: Fault Elements Crimes Act 1900 (NSW) s 18(1)(a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. Murder - Fault Elements Doctrine of transferred malice ..some person.. Reckless indifference to human life Intent to kill Intent to cause grievous bodily harm (GBH) Killing during the course of committing another crime punishable by life or 25 years imprisonment (constructive murder or felony murder)

Intent to kill or inflict grievous bodily harm (GBH)

Death or GBH must be the desired outcome or result of the act or omission of the accused a subjective test! GBH Crimes Act 1900 (NSW) s 4: 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, and (b) any permanent or serious disfiguring of the person, and (c) any grievous bodily disease.. Bodily injury of a really serious kind: DPP v Smith [1960] 3 All ER 161; Injury need not be permanent nor consequences long lasting or life threatening e.g. small fracture of cheek bone: Haoui v R [2008] NSWCCA 209

Reckless indifference to human life Common law - R v Crabbe (1985) 156 CLR 464 Knowledge or foresight on the part of the accused that death or GBH was a probable consequence of the act or omission and a decision to go ahead regardless Probable = a real or substantial chance as distinct from a remote possibility: Boughey (1986) 161 CLR 464; R v Grant (2002) 55 NSWLR 80 Test is subjective: R v Grant (2002) 55 NSWLR 80 (p89) Note s18 refers to reckless indifference to human life: R v Solomon [1979] 1 NSWLR 321 - foresight that death is the probable result must be proved (foresight of GBH is not enough); affirmed by Royall v R

Constructive Murder It is murder if the act or omission causing death occurs 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. That is, the accused can be guilty without intending or foreseeing the probability of either death or GBH = hence constructive Crown must prove that the accused or an accomplice committed or attempted commission of a crime punishable by imprisonment for life or 25 years Accomplice = a person who is present and intentionally assists or encourages commission of the crime: see R v Jacobs and Mehajer [2004] NSWCCA 462 7

Fault Element for Constructive Murder no specific fault element required other than the fault element necessary to establish guilt of the base offence Ryan v R (1967) 121 CLR 205 (s 98 - armed robbery with wounding or infliction of GBH Munro (1981) 4 A Crim R 67; R v Thurston [2004] NSWCCA 98 (s 96 assault with intent to rob with wounding)

Constructive Murder: Examples of Other Relevant Base Offences CA s 33 wounding with intent to cause GBH CA s 110 breaking & entering a dwelling house and assaulting with intent to murder CA s 61JA aggravated sexual assault in company CA s 33(2) wounding with intent to resist arrest CA s 33A(2) discharging a firearm with intent to resist arrest

Voluntary manslaughter The relationship between manslaughter and murder The difference between voluntary and involuntary manslaughter When murder may be reduced to manslaughter because of a partial defence. Policy issues with voluntary manslaughter Murder and manslaughter Murder and manslaughter have the same physical elements The difference lies in the mental element Manslaughter covers situations where murder is not an appropriate label but where the accuseds actions (or inactions) were sufficiently bad to warrant being labelled a killer Voluntary manslaughter

Voluntary manslaughter is where the prosecution has established the fault element for murder but the accuseds reasons for acting or their mental state means that they are partially excused and convicted of a lesser offence. The main bases for voluntary manslaughter are provocation, substantial impairment by abnormality of mind, and excessive self-defence. These are sometimes known as partial defences because they result in conviction for a lesser offence rather than an acquittal (as would happen with a full defence). Involuntary manslaughter In cases of involuntary manslaughter, the mental element for murder has not been established. The different categories of involuntary manslaughter set out the required fault for a conviction for murder. The main categories are: manslaughter by unlawful and dangerous act, manslaughter by criminal negligence, and manslaughter arising from a homicide during a joint criminal enterprise. The focus when looking at involuntary manslaughter on where the fault demonstrated by this accused lies on a scale between murder and the various nonfatal offences against the person. Does manslaughter have a statutory definition? S18(1)(b): Every other punishable homicide shall be taken to be manslaughter. There are statutory definitions of the partial defences but for involuntary manslaughter, manslaughter is simply punishable homicide without the mental element of murder. S24: punishment of up to 25 years imprisonment, and there is an option for discharge by the judge if nominal punishment would be sufficient. Trial procedure and directions on manslaughter A jury is entitled to bring in a manslaughter verdict in any case where there is a charge of murder. If there is a reasonable basis for the defence, then the trial judge must put it to the jury even if the defence has not argued for a manslaughter conviction. Example of there not being a reasonable basis for manslaughter: the accused admits an intentional killing and argues the killing was done out of necessity? Provocation 9

Provocation is a defence aimed at those who lose self-control and kill as a result of something the deceased has done or said. The emotion involved is generally anger. The idea is that actions done in anger are less blameworthy than those that are fully considered. Provocation has a long history at common law but is a statutory defence in NSW (s23) Basis of the defence The concept of loss of self-control reflects the idea, fundamental to the criminal law, and related historically to religious doctrine, that mankind is invested with free will, and that culpability consists in the abuse of that faculty. ( R v Chhay (1994)). When an emotional reaction to provocation results in a person losing their selfcontrol, their actions are not entirely free and are therefore less blameworthy (but are they?) Elements of provocation The defence only applies if the accused would otherwise be found guilty of murder; The accused lost self-control; The loss of self-control was induced by the victims conduct; The victims conduct was such that an ordinary person in the position of the accused could have lost self-control and formed the intent to kill or to inflict gbh on the victim. Loss of self-control Loss of self-control a precondition for the defence but not entirely clear what it means If anger means that the accused is totally unaware of what they are doing, then they probably did not form the mens rea for murder and provocation defence is unnecessary Loss of control could also be the result of other emotions such as fear or panic (eg, an overreaction in a self-defence scenario): what is important is that self-control was lost, not the specific emotion involved Its more than just being angry or losing your temper; a temporary inability to resist the urge to strike back. 10

Words in evidence that suggest loss of self-control include I just saw red, I couldnt help myself, I just exploded. Evidence that an attack was frenzied rather than carefully considered tends to support a loss of self-control claim.

Loss of self-control need not be sudden/immediate Old requirement that the reaction occurred immediately after receiving the provocation has been modified There were concerns that this requirement operated against women claiming the defence idea that women experience anger differently from men (slow burn) and also their loss of self-control may result from a series of provocative event rather than a single incident Suddenness requirement therefore no longer applies ( Chhay) There may be no specific triggering incident where there has been a lengthy history of violence or abuse. Provocative conduct s23 indicates that grossly insulting words or gestures are capable of being provocation, provocation may also consist of touching, physical violence, etc. Green v R (1997): accused said that the deceased got into bed with him and touched him in a sexual way LS160 assignment: McCann responded: me dumb? youre as dumb as they come Arthur.. a great security man you are, spendin your time chasing around after alarms and you didnt even twig I was shaggin your missus. R v Sievers (2004): accused said that the deceased had been verbally abusing him for days, also hit him with a hammer and shoes, stabbed him with a syringe, bit his nose and ear and scratched him. She was about to stab him with a knife when he lost control. How do you decide whether the provocation was serious enough? It isnt enough that the provocation caused this person to lose self-control, must also be bad enough to pass the ordinary person test. This is fairly straightforward when the provocation is physical violence but its harder with words or gestures because different people are provoked by different things.


If courts apply a completely objective approach to provocative conduct, the results can be absurd current approaches to the defence seek to put provocation into context to avoid the absurdity of cases such as Bedder (UK, 1959). Putting the context into provocation Need to look at words or conduct as a whole eg, history of relationship in cases involving domestic violence How hurtful conduct is, especially when words are involved, is affected by matters such as age, sex, ethnic background, physical features, personal history, etc. Green: claimed he was unusually sensitive to sexual assault because there was a history of sexual abuse in his family English case of Morhall: taunted with being unable to give up glue sniffing, relevant that a glue sniffer The effect of this contextual evidence is that it helps us understand how serious the provocation was to THIS person but they must then display the powers of selfcontrol of an ordinary person in responding to the provocation. R v Green per Brennan CJ The sexual abuse factor was relevant to those questions because it tended to make it more likely that the appellant was more severely provoked by the deceaseds unwanted homosexual advances than he would otherwise have been and thus more likely that he had been induced thereby to lose self-control and inflict the fatal blows and more likely that the appellant was so incensed by the deceaseds conduct that, had an ordinary person been provoked to the same extent, that person could have formed an intention to kill the deceased or to inflict grievous bodily harm upon him. Limits to what can be taken into account Taking context into account can also result in problems. The defendant could say, I was provoked by Vs joke that I must be homosexual because Im wearing pink, because I am very sensitive about my sexual orientation and believe that homosexuality is an abomination [though they wouldnt get through the ordinary person test] Here, the characteristics of the defendant are used in such a way as to make the ordinary person test irrelevant. The defendant cant say, I reacted to the provocation in this way because I have a very short temper and lose self-control easily.


In applying the ordinary person test, the defendants response is compared to that of an ordinary person with ordinary powers of self-control, even though the defendant may not have such powers of self-control. Separation of gravity & sufficiency Words used: you useless black bastard If the words were used to me: they wouldnt have any particular sting, I dont regard black as an insult, I would just be a bit puzzled. If the words were used to X, who had been the victim of racial abuse for many years, and who was also very sensitive about being illegitimate, they might result in X being reminded of years of misery and abuse. Xs background makes the words much more provocative than they would be to me. However, although the provocation to me is 2 on a scale of 1-10 and it is 7 to X on the scale of 1-10, if the ordinary person is expected to withstand any provocation up to 9 on that scale, then the ordinary person test will not be satisfied for either of us if we lose control and kill the person who has said the words to us. Personalised approach to gravity can also be problematical Kirby J in R v Green (dissenting) : An unwanted sexual advance, heterosexual or homosexual, can be offensive. It may intrude on sexual integrity in an objectionable way. But this court should not send the message that, in Australia today, such conduct is objectively capable of being found by a jury to be sufficient to provoke the intent to kill or inflict grievous bodily harm. Such a message unacceptably condones serious violence by people who take the law into their own hands. Similarly, is it acceptable for a family member involved in the honour killing of a young Muslim woman to argue that they were especially sensitive to her sexual activities because of their cultural background? Growing pressure to abolish or severely amend the scope of the defence Another further problem with provocation Asking jurors to allow for personal characteristics or circumstances when considering the gravity of provocation but to ignore them when applying the ordinary person test makes for a very complex defence. Thomas J in R v Rongonui (NZ, 2000) referred to the glazed look in the jurors eyes when directed in this way and Tipping J in the same case admitted that the provocation defence required mental gymnastics. Substantial Impairment


Background to substantial impairment by abnormality of mind is the inadequacy and inflexibility of the insanity defence Unlike insanity, SIAM is not a complete defence; outcome is a conviction for manslaughter rather than acquittal (insanity leads to a qualified acquittal) Like insanity, its based on a medical assessment of the accused and there is a reversed burden of proof Like insanity, it is ultimately a question for a jury and the medical evidence is no more than that evidence to be considered by the jury. Basically the same defence as diminished responsibility Requirements of s23A At the time of the acts or omissions otherwise amounting to murder The persons capacity to understand events OR judge whether their actions were right or wrong OR to control him or herself Were substantially impaired By an abnormality of mind Arising from an underlying condition AND the impairment was substantial enough to warrant a reduction from murder to manslaughter Other specific rules Evidence that the impairment was substantial enough to warrant reduction is not admissible (ie, it is a legal rather than a medical question) If the accused was suffering from self-induced intoxication, that intoxication is to be disregarded for the purpose of s23A (but could still succeed with defence if other conditions sufficient to satisfy the substantial impairment requirement) If an accused person raises insanity, the prosecution can counter this with evidence of SIAM If an accused person raises SIAM, the prosecution can counter this with evidence of insanity What is an abnormality of mind? a state of mind so different from that of ordinary human beings that the reasonable man would regard it as abnormal. It [is] wide enough to cover the minds activity 14

in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgment as to whether an act is right or wrong, but as to the ability to exercise will power to control physical acts in accordance with that rational judgment. (R v Byrne (1960)(UK)). What is substantial? Less than total but more than trivial Question of judgment about whether the accuseds liability is reduced moral judgment, not medical Excessive defence This is a third category of voluntary manslaughter but as it is closely related to selfdefence we will look at it during the section of the unit on defences

Involuntary Manslaughter Recap Involuntary manslaughter is where there has been a culpable homicide but the accused does not have the mens rea for murder (ie, no intent to cause death or to cause grievous bodily harm or one of the other mental elements of murder) Two forms of involuntary manslaughter: manslaughter by unlawful & dangerous act and negligent manslaughter These two forms of manslaughter developed at common law and are not defined in the Crimes Act 1900 Manslaughter by unlawful & dangerous act - example Wilson v R (1992) Confrontation between accused and the deceased, who was drunk and making it hard for the accused to get past him Accuseds version of events was that the deceased tried to kiss him, shouldered him and then, when he started to walk away, he saw that the deceaseds fists were clenched. Accused thought the deceased was going to punch him, and he struck the deceased in the face.


When deceased fell to the ground, accused rolled him over, smashing his head on the concrete (perhaps accidentally), went through his pockets and then rolled him back oto his stomach. Cause of death was either the fall from the punch or from hitting head on concrete while on ground. Jury found him not guilty of murder but guilty of manslaughter.

Elements of the offence An act Which was unlawful And dangerous And that caused the death of the deceased Pemble v R (1971) Accused approached his ex-girlfriend from behind, pointing a rifle at her. He said his intent was to frighten her, that he stumbled and the rifle went off. He hadnt realised it was loaded. HCA said that an acquittal was not possible in these circumstances: at the least it constituted an attempt to assault her and was obviously dangerous to the deceased. It but needed the deceased to turn her head to enable her to see him brandishing the rifle for the assault to be complete.

Unlawful = criminal The fact that the act amounts to a tort is not sufficient for the purposes of UDAM (Franklin). All elements of the criminal act must be established, including any mental element. Lamb (1967, UK): because the accused did not know that there was a bullet in the firing chamber of the revolver, he did not possess the MR for the murder of his stepfather. It was not an assault for the same reason (manly games and pastimes). Nor was it negligent because anyone could make the same mistake. Therefore was neither murder nor manslaughter.


Usually, the unlawful act will be one that involves the deliberate application of force to another person without that persons consent. If the act was done in self-defence then it was not unlawful ( R v Jones (1995)). Unlawful act This type of manslaughter is applicable only to a positive act by the accused. Where the cause of death was an omission by the accused, the relevant head of manslaughter is negligent manslaughter. This is because liability for omissions requires proof of a duty to act, and mere negligence is insufficient as the fault element for a truly criminal offence. If unlawful and dangerous act manslaughter encompassed omissions, this would undermine the policy relating to omissions liability. The two types of involuntary manslaughter cannot be charged in the alternative. Application to driving cases R v Pullman (1991) Argument that if the act was an offence under the Motor Traffic Regulations, then unlawful & dangerous act manslaughter did not apply, the relevant category was negligent manslaughter This was rejected. An act which constitutes a breach of some statutory or regulatory prohibition does not, for that reason alone, constitute an unlawful act sufficient to found a charge of (UDAM)Such an act may, however, constitute such an unlawful act if it is unlawful in itself that is, unlawful otherwise than by reason of the fact that it amounts to such a breach. R v Pullman (1991) Crown case was that accused was driving car which crossed central line, forcing driver of oncoming vehicle to swerve. This driver lost control and struck and killed a motor cyclist. Crown based case on unlawful & dangerous act manslaughter (why?). Accuseds act was not unlawful in itself did not cross centre line on purpose. Therefore no basis for UDAM conviction. Dangerousness Although any crime can theoretically be the basis of unlawful & dangerous act manslaughter, the scope of the offence is limited by the requirement that the act is dangerous. 17

This means that it carries with it an appreciable risk of serious injury (death). This is an objective test: there is no requirement that the accused is aware of that risk. The question is whether a reasonable person would have appreciated the risk. Application: Cornelissen (2004) Context was a fight between accused and deceased accused believed deceased had sexually abused his sisters some years ago. Accused punched the deceased, who may have already been staggering as the result of previous blows. This caused a tear in the blood vessels to his brain and he died of a haemorrhage. Was this a case of manslaughter? What the judge said to the jury It is not necessary that the accused was aware that the act was dangerous provided that a reasonable person would have appreciated that the act was one which, in the circumstances, exposed others to risk of serious injury Example of two people tossing a box between them at the end of a pier, unaware of a swimmer beneath them Why this was misleading The question should be whether a reasonable person in the accuseds position would realise the act was dangerous. In this case, the accused said that he had not realised the deceased was staggering; this information came from other witnesses. A person who was aware of the staggering would realise the potential dangers; but a reasonable person in the accuseds position was unaware of this. You cant conclude that an act was dangerous just because of the outcome. The problem with the box example Whether a reasonable person would realise it was dangerous to play with the box depends on whether they know about the swimmer. In the example, they do not. It is therefore not at all apparent that their play was dangerous (and its also doubtful whether it was an unlawful act in the sense of criminal). Causation 18

Necessary to find a causal link between the unlawful act and the death This is most likely to be the issue where the unlawful act is not one involving the application of force Example: if A swerves across the centreline of the road, killing B who is in an oncoming vehicle, the fact that A turns out to be driving while disqualified cannot used as the basis of an unlawful and dangerous act manslaughter charge because this was not the cause of what happened. Manslaughter by criminal negligence Negligence is where a person either: Does an act carelessly, or Carelessly fails to act in circumstances where they were under a duty to act Negligence can lead to criminal liability where the accused has fallen below of the expected standard to a sufficient degree and their carelessness is the cause of someones death Negligence in the criminal context is not the same as negligence for the purpose of the law of torts: torts is not concerned with personal fault and the bar for liability is set lower. The test: Nydam v R (1977) What the prosecution has to show is that the act which caused the death was done by the accused consciously and voluntarily without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling 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. Is this circular? its only criminal if it ought to be criminal Doubtful that theres any other way of doing it; judgment about where the act/omission falls on the scale of carelessness. There is no requirement of malice manslaughter covers a wide range of conduct as indicated by the fact that punishment may be nominal. Application in Do v R (2000) The deliberate pointing of a loaded and cocked shotgun at someone and the pulling of the trigger is as gross an example of criminal negligence as I can imagine. 19

Had the jury [not convicted] I would have regarded their decision as perverse. When those actions are performed by someone who has spent the night participating in alcohol, smoking heroin and eating Rohypnol tablets, all of which activities are calculated not to improve the fine senses, the matter becomes worse. Negligent omissions Additional factor here is that there must have been a duty to act application of general rule for omissions liability Examples of duties include the duty of a parent towards their child, the voluntary assumption of care, or where the accused person themselves created the dangerous situation. Shepherd (1862): no duty on mother to obtain a midwife for her adult daughter even though daughter had returned to her house to give birth Stone & Dobinson (1977): once the accused couple had started to care for the mans aunt, who suffered from anorexia, they had accepted a more general duty of care towards R v Taktak (1988) Would not be manslaughter if he did not respond when told V had taken an overdose or if he had seen her and left without doing anything He took her to a friends premises, ineffectually gave first aid (washed her face), and put a blanket over her. She might well have been seen if she was just left in the foyer of the building by removing her, he took away the opportunity for others to help. There was an assumption of duty but the conviction for manslaughter was quashed but the negligence was not sufficient to warrant conviction.

Non-Fatal Offences Against the Person Range of offences in this category Offences of violence/force (loosely defined) Has developed in an ad hoc fashion, not entirely logical Offences include such delights as obstructing the clergy in discharge of duty, setting traps, attempts to choke


Lecture will concentrate on assault and aggravated assault: these offences are important in their own right but also as elements of many other offences Assault Common law definition, statutory penalty S61 Crimes Act: Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years When criminal law uses the term assault it actually means either assault OR battery (separate intentional torts). Assault in narrow sense - definition Assault is any act which intentionally or possibly recklessly causes another person to apprehend immediate and unlawful personal violence Actus reus is therefore a voluntary act (including words) which directly causes apprehension of immediate unlawful contact Mens rea is either intent or recklessness (note that recklessness requires defendant to have foreseen the possibility of causing fear) May be further mental element for aggravated assaults Unnecessary to prove threat would have or could have been carried out Actus reus and mens reus must be present at the same time (but note continuing act scenario) Requirement of immediacy General or conditional threats are not enough It is not necessary to show that the victim was afraid, but they must be aware of the defendants act or words It is possible to assault someone over the telephone or internet a threat to strike a person even at such a distance as to make contact impossible may constitute an assault if it instills a fear of immediate violence in the mind of the hearer (Mostyn) Continuing fear will satisfy the requirement that the threat is of imminent force Zanker v Vartzokas (1988)


Victim accepted a lift from the defendant but he then offered her money for sex. When she refused, he sped up and said, I am going to take you to my mates house. He will really fix you up. She jumped out of the car and was injured. This was a case of assault occasioning actual bodily harm the words used towards her in the car amounted to an assault. Although the threat related to what would happen when they got to the house, the immediacy/imminence requirement was satisfied because she was trapped in the car and at the defendants mercy.

stalking, intimidation and domestic violence Even with continuing fear qualification, common law assault is difficult to use against stalkers and in cases of ongoing intimidation Domestic violence - focus of criminal assault is on punishing after the event, but theres also a need to protect and prevent This gap is filled by statute Crimes (Domestic and Personal Violence) Act 2007 Stalking & intimidation S13: offence of stalking or intimidating another person with the intention of causing them to fear physical or mental harm to themselves or to another person with whom they have a domestic relationship Stalking includes following, watching, frequenting places where they live, work or play Intimidation includes harassment, molestation, approaches by means including phone or email that cause fear for safety or fear of damage to property Domestic relationship defined to cover spouses, de facto partners, relatives & intimidation Mens rea: knowledge that conduct is likely to cause fear (note that fear is not part of actus reus) Apprehended violence orders Apprehended domestic violence orders and apprehended personal violence orders (s16 and s19)


Available where a person fears AND has reasonable grounds for such fear of a personal violence offence, stalking or intimidation Actual fear unnecessary if a child, mentally handicapped or theres already a history of domestic violence and a reasonable likelihood of repetition What are the advantages of AVOs & ADVOs? Provide protection rather than punishment Standard is balance of probabilities, not beyond reasonable doubt Flexibility court is able to impose various prohibitions and restrictions eg, subject of order not permitted to telephone applicant, or unable to go within certain distance of their home If the order is breached, this is a criminal offence and if violence is involved, court is directed to impose imprisonment Tackle domestic violence and stalking before they escalate rather than after

Battery the other side of assault Battery requires: An act (not an omission), that Directly and immediately results in Unlawful/non-consensual contact With another person The act should be either intentional or reckless

Example: MPC v Fagan Case indicates that there are ways around the insistence on an act rather than an omission Parked car on police officers foot Refused to move car and took ignition key out This was a battery


Even if the original contact was accidental, when Fagan became aware of it and failed to move the car off the foot, the mens rea was formed As the actus reus was a continuing one, it was possible for the offence to become complete at any stage. What kind of contact is required? In theory, the slightest touching will suffice to be battery. Touching can be through a weapon or instrument (eg, Fagans car) Collins v Wilcock (torts case): The test must be whether the physical contact has in the circumstances gone beyond generally acceptable standards of conduct. For some very minor touching, there is either implied consent/belief in consent or there is an exception based on reasonableness to the rule that all non-consensual touching is a battery Some contact permitted by statute eg, correction of a child (s61AA) or selfdefence (s418). Fault requirement (MR) Intention or recklessness Not negligence Recklessness requires foresight of the possibility that there will be contact For aggravated assaults, there may be a further requirement to intend or be reckless as to a consequence S59, assault occasioning actual bodily harm has exactly the same MR as assault/battery.

What about consent? Consent is not always an answer to a charge based on battery For a simple assault/battery, the Crown must prove that the victim did not consent However, for more serious offences, consent may be irrelevant. Some exceptions to the rule that you cannot consent to physical harm sport, surgery, tattooing, piercing for example (manly sports) The authority for this comes from Brown (though not an Australian case, and NZ has gone in a different direction) 24

R v Brown A group of men who engaged in homosexual sado-masochistic activities Reported to the police and prosecuted despite insisting that all those involved had consented Convictions upheld on the basis that consent was not a defence to any offence above assault occasioning actual bodily harm unless it was on the list of accepted exceptions Majority reasoning Lord Templeman: I am not prepared to invent a defence of consent for sadomasochistic activities which breed and glorify cruelty Society is entitled to protect itself against a cult of violence. Lord Jauncey of Tullichettle: I have no doubt that it would not be in the public interest that deliberate infliction of actual bodily harm during the course of homosexual sado-masochistic activities should be held to be lawful. Factors taken into account by majority included the danger that consent might not be genuine and the cost and consequences of infection, including HIV/AIDs. Minority reasoning Lord Mustill: this is not about violence, it is about sex Even if we cannot understand the sexual desires of those involved, the only question is whether consensual private acts are offences against the existing law of violence. To this question I return a negative response. Prefers to consider what exceptions there should be to the rule that consent is not a defence rather than to place a blanket ban on a consent defence above a certain level of violence. State should not interfere in peoples lives more than necessary. Subsequent cases Wilson: husband branded his wife on the buttocks reported by doctor when wound became infected this was not an offence but an expression of love and private activities in the matrimonial home not a proper matter for criminal law (see also Slingsby fisting not an unlawful & dangerous act) But Brown applied in Emmett: as part of their consensual sexual activity, the woman allowed her partner to cover her head with a plastic bag, tying it tightly at the neck, and also agreed that he could pour fuel from a lighter onto her breasts and set fire to the fuel. 25

R v Dica: allows for the possibility of informed consent to sexual contact with someone who is HIV positive, even though there is a risk of transmission. NZ position (R v Lee (2006)) Consent is not a defence to the intentional infliction of death (statutory authority) Test should not be results-based (ie, consent is not a defence if x result occurs) The position for the intentional infliction of injury is that consent is a defence unless there are public interest factors militating against that conclusion which outweigh the social utility of the activity and the value our legal system places on personal autonomy. In our view, there is no reason for a stricter test where a person is reckless Consent must be informed and it is very important for the jury to assess exactly what was consented to. Consent will only be operative if the impugned acts come within the scope of the activity consented to.

Aggravated assaults Assault can be aggravated by:

Intent (s33 intention to cause gbh) Status of victim (eg, police officer, s60(1)) Damage done (eg, actual bodily harm (s59), wounding (s33), GBH (s54) Acting in company (eg, s59(2)) Use of weapon (eg, s46 gunpowder or corrosive fluid) Some definitions Wounding is injury that breaks the continuity of the skin ( Shepherd) GBH is really serious harm (Smith) Examples of really serious harm include Permanent or serious disfiguring Grievous bodily disease 26

Destruction of a foetus in a pregnant woman S33 Wounding or grievous bodily harm with intent This group of offences involve an AR of causing a specified result - gbh or wounding - combined with a MR that aggravates the offence. The aggravating intents are: Intent to cause gbh Intent to resist arrest This covers both direct and oblique intent. S35 Reckless grievous bodily harm or wounding This involves reckless rather than intentional gbh/wounding. The penalty depends on both the harm caused and on whether the offence was committed in company. Reckless gbh in company 14 years Reckless gbh 10 years Reckless wounding in company 10 years Reckless wounding 7 years

Recklessness requires awareness of the possibility of gbh or a wound being inflicted. S54 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. Standard of negligence is the same as for manslaughter (criminal not civil standard) Unlawful has the same meaning as in unlawful & dangerous act manslaughter. S59 Assault occasioning actual bodily harm Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years. The only fault element is that for assault/battery, it is unnecessary to establish intent to cause abh or even awareness that abh is a risk ( Coulter (1987)).


Actual bodily harm = any hurt or injury that interferes with the health or comfort of the victim, including psychiatric injury (provided medically diagnosed) ( R v Chan Fook (1994))

Sexual Offences

What is the harm in sexual offences? To define sexual offences, including ranking them, need to have a sense of what the harm involved is. Various possible approaches (not all of which are acceptable in 21 st century) A property offence - wife/daughter as mans property, loses value as a result of loss of virginity the owner is the victim, not the wife/daughter. A crime based on violence forcible intercourse as a violent act A crime based on personal autonomy any non-consensual sexual touching is an attack on autonomy NSW law is a combination of the violence/autonomy approach rather than a consistent expression of one or the other. Wider background to sexual offending Low rate of reporting and reports may be made a long time after the offence occurred Many reported sexual offences are not prosecuted because of concern that the prosecution will not be successful Complainants may be reluctant to give evidence, especially if they know the accused person Higher acquittal rates than for other offences Enduring myths influence complainants and those assessing their stories alike: http://crcc.org.au/information/myths-facts Reported case-law may compound the problem for law students the complaints where the facts dont look like real rape probably never reach this stage


Sexual assault The offence that was formerly known as rape wider than common law definitions of rape A person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years. (s61) What is sexual intercourse? Penetration may be partial of genitalia or anus using ANY part of a person or an object manipulated by a person Oral sex Intercourse is a continuing act There must be a deliberate act accidental penetration does not come within the offence The main offences s61I: sexual assault (sexual intercourse with a person who does not consent knowledge of lack of consent) s61J: aggravated sexual assault and s61JA aggravated sexual assault in company (same as s61J but with additional aggravating circumstances) s61L: indecent assault (assault plus an act of indecency), s61M aggravated indecent assault, s61N act of indecency, s61O aggravated act of indecency What are aggravating factors? Sexual assault is aggravated by various factors Include whether bodily harm is inflicted on the complainant or another person, whether theres a threat The vulnerability of the complainant is another aggravating factor age, whether under accuseds authority, physically or cognitively impaired S61JA carries potential life sentence and requires infliction of ABH on complainant or another person nearby, a threat to do so or deprivation of liberty AND that the accused is acting in company 29

Consent A central concept in sexual offences - lack of consent is what turns a non-criminal act into a potentially criminal act Consent has dual role: absence of consent is part of the AR of the offence, and the MR includes knowledge of the absence of the consent Statutory partial definition of consent applies to sexual assault and the aggravated sexual assault Common law definition applies to other offences where relevant (but is not significantly different from statutory provision) Whichever definition is applied, the fact that there was no resistance or only slight resistance does not mean that there was consent

Consent in statute s61HA Someone consents for the purposes of this definition if they freely and voluntarily agree to sexual intercourse Apparent consent will not be sufficient if there was no proper opportunity to consent or if the consent was not free this could be because of age, cognitive incapacity, unconsciousness, threats or unlawful detention Example under previous legislation: R v Clark (1998) prisoner may have agreed to intercourse in order to gain protection from other inmates, but this would not be true consent Non-violent threats do not automatically vitiate consent threat to report for shoplifting in Aiken (2005) only an offence if threat so overbearing that there was no consent at all. Certain mistakes will vitiate consent: for instance, a mistake about the identity of the other, a mistake about whether they are married, about the nature of the sexual act or its purpose (eg told it is for medical purpose).

Age and sexual intercourse Sexual assault is an offence can be committed against complainants of any age S61I requires the prosecution to prove that the complainant did not consent (see McGrath v R [2010] NSWCCA 48).


There is no presumption that a complainant aged under 16 is incapable of consenting for the purposes of this offence, although age is relevant to whether there was consent S61S deals with offenders who are minors there is no age-based presumption about capacity to have sexual intercourse or to intend to have intercourse

Age and indecency offences Consent may also be an answer to indecent assault under s61L: again, this is a question of actual consent and there is no presumption of inability to consent Note that one of the aggravating factors under s61M is that the complainant is under the age of 16 or that the offence occurred in the presence of someone under 16, but again actual consent would mean the offence was not proved. The offence of indecency under s61N carries a greater penalty if the complainant is under 16.

Additional age-related provisions s66A sexual intercourse with a child under 10 (carries possible life sentence if there is also aggravation as serious as aggravated sexual assault in company) s66C sexual intercourse with child between 10 and 16 lower maximum penalty than s66A and also lower penalty than for sexual assault. Where a choice to be made between s66 offences and s61 offences, it may be relevant that lack of consent need not be proved potentially less traumatic for the complainant

The mental element For sexual assaults, the statute refers to knowledge that the complainant was not consenting, but this includes recklessness as to consent (s61HA(3)). S61HA(3) does not apply to indecency offences, but in practice it is the same MR intent or recklessness.


Recklessness is where the accused actually realises that there is a possibility that the complainant is not consenting to sexual intercourse and, having that realisation, deciding to proceed to have sexual intercourse. ( Banditt) What if the accused simply did not consider the question of consent? Although it is unlikely that a jury will accept that the accused had no view about consent at all, it is theoretically possible. From a policy perspective, this defendant could be seen as worse than the one who at least considers the possibility of lack of consent The criminal law should promote standards of acceptable consensual sexual behaviour of the community. .. Lack of the merest advertence to consent in the case of sexual intercourse is so reckless that is it the criminal laws business.. (Tolmie per Kirby P) where the accused has not considered the question of consent and a risk that the complainant was not consenting would have been obvious to someone with the accuseds mental capacity, if they had turned their mind to it, the accused is to be taken to have satisfied the requisite mens rea referred to by the word reckless (ditto) The effect of mistakes What if the accused person positively believed the complainant consented but was wrong? DPP v Morgan (UK, 1976): a mistaken belief in consent is inconsistent with the MR for rape, even if the mistake is unreasonable. This is reversed by statute s61HA(3)(c) if there are no reasonable grounds for the belief in consent, then accused is deemed to know that there was no consent. Indecency offences Elements of indecent assault (s61L): Assault/battery Absence of consent Act of indecency during or immediately before or after assault OR the assault/battery is itself an act of indecency Intent or recklessness with respect to assault Knew not consenting or reckless as to consent


Separate offence in s61N of act of indecency What is indecency? A sexual connotation, either towards a part of the body of the complainant that has a sexual connotation or a part of the body of the assailant that has a sexual connotation May also be indecent where there is no objective sexual connotation but there is an intent for sexual gratification An indecent act is one which right minded persons would consider to be contrary to community standards of decency Acts done for political or artistic purposes may be indecent no general rule Consent and indecency Common law applies Knowledge or recklessness (including inadvertence to consent) Consent may stem from persuasion but no consent if the result of submission to force or threats It is assumed that there can be an honest but unreasonable mistake as per Morgan Special evidential rules Criminal Procedure Act 1986 contains special provisions for sexual offences cases Restriction of admissibility of evidence of sexual history Judge required to warn jury that there can be good reasons to delay complaints Restrictions on the examination of a victim by an unrepresented accused

Property Offences Property Offences governed by mixture of common law and statute to fill gaps. Offence of Larceny developed in middle ages in some ways ill suited to modern circumstances. The textbook is now partially out of date ss. 164-186 of the Crimes Act have been repealed. For fraud, see now ss. 192B-192H (relevant for next lecture).


Larceny S 117 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. Various crimes are punishable like larceny including joy riding s 154A. Definition At common law, larceny is committed by a person who, without the consent of the owner, fraudulently and without claim or 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. ( Ilitch [7.38]). Concerned with possession rather than ownership. It doesnt matter whether possession is illegal or whether the other person knows where they are. Example: Anic v R, theft of illegal drugs. I do not think that the cry, He has no right to have had them amounts to an exculpatory answer for the culprit. Elements of Larceny Physical: Taking and carrying away Something capable of being stolen In someones possession Without the consent of the person in possession Fault Intention to deprive the true owner of the property in the thing Fraudulently and without honest claim of right Taking and Carrying Away Sometimes referred to as asportation Slightest movement may suffice: any movement of goods with an intent to steal them is sufficient to constitute asportation (Wallis v Lane [7.8]). For example: Moving goods from one place to another in a truck 34

Slight removal of wallet from pocket. Property Section 4 property includes: every description of real and personal property; money, valuable securities, debts, and legacies; and all deeds and instruments relating to, or evidencing the title or right to any property, or giving a right to recover or receive any money or goods; and includes not only property originally in the possession or under the control of any person, but also any property into or for which the same may have been converted or exchanged, and everything acquired by such conversion or exchange, whether immediately or otherwise. larceny can only be committed of property which is capable of physical possession and removal (Croton) but specific provisions in Act for non-tangible property such as a valuable security. Lawful possessor will have rights against all but the lawful owner

Capable of Being Stolen Larceny can only be committed of property which is capable of physical possession and removal (Croton [7.9]). A specific moveable item of value can include paper. Things such as fixtures or trees not at common law (though see now ss 139, 140 and 154 Crimes Act). Funds in a bank account are not capable of being stolen but rather a chose in action (right to recover the sum stated) not susceptible to larceny, but to misappropriation (Croton). Cash in the till is capable of being stolen. Croton v R (1967) A withdrew funds from joint bank account and deposited them into an account in his own name. Charged with stealing the money. Money in the sense of dollar notes and coins can be moved and therefore it can be the subject of larceny. That isnt what A did. in a popular sense it may be said that a depositor with a bank has money in the bank, in law he has but a chose in action, a right to recover from the bank the balance standing to his credit


Not the only reason why this wasnt larceny bank voluntarily transferred possession of the paper notes & coins; the joint owner never had possession of these notes and coins, they were owned by the bank prior to A receiving them. In Someones Possession Larceny is a crime against possession not ownership must be in someones possession. A person lawfully in possession, cannot be guilty of larceny ( Ilich [7.38]). To possess something you need to know it exists and is under your control but you dont need to know where it is It does not matter if the possession itself is illegal ( Anic illegal drugs stolen).

Without the Consent of the Person in Possession As it is a crime against possession, can be established although owner unknown though crown must prove the owner cannot be ascertained (Ellis v Lawson [7.14]). Bank did not consent to customer obtaining money from cash machine although his account had been closed the technology merely facilitated it ( Kennison v Daire (see now s 192E). Consent may be limited to goods being used or touched in a certain way. Employers remain in constructive possession of items used by employees ( Ellis v Lawson). Kolosque v Miyazaki A placed clothing in her bag and was going to leave the shop, but was warned that shed been seen and returned. Argued that as she was still in the store, she had its consent to handle and move the goods. Implied consent is limited to handling the goods with an honest intention if goods are moved with a dishonest intention that is asportation. License to remove goods from their place of display is broken if action damages them, if theyre moved to another part of the store, consumed, concealed, etc. Mistake and consent If possession passes from the true owner to the thief by consent, but that consent stems from a mistake, can it be larceny?


What matters is the true owners state of mind at the time when possession passes (application of rule that actus reus and mens rea must coincide). If property has passed, then it is not larceny. Interplay between contract law and criminal law on when title passes. Depends on whether mistake is unilateral or bilateral and on whether the mistake is fundamental.

Bilateral mistake Shopkeeper gives customer too much change; neither discovers the mistake until later. Why isnt this larceny? The customer took the money with consent There was no dishonesty at the time of the taking Even if the customer realized later on, the physical and fault elements did not coincide. The shopkeepers intention was that property in the money would pass, not just possession: therefore the effect of the transaction was that the customer became the owner of the property and you cant steal something that you already own. Unilateral mistake This is potentially larceny because the recipient is not mistaken and therefore likely to be dishonest. Test set out in Ilich (1987). A sufficiently fundamental mistake will negate apparent consent and prevent property from passing. Fundamental mistakes relate to the identity of the transferee, the identity of the thing delivered or the quantity of the thing delivered (but this latter category is qualified in the case of money). Ilich (1987) Mistake was about how much money was handed over to appellant. The thief of a painting cannot pass good title to that painting, but if a thief purchases a painting with stolen money, the seller obtains title to the money (this is because money is negotiable.


The transaction in which the money changed hands was bona fide and for value, and there was no ground for suspicion at the time. Property therefore passed to Ilich. There would be a civil action available to recover but it is not a criminal matter. This case turns on the special nature of money rather than the character of the mistake that was made. If there had not been a bona fide transaction for value, then the case would have to be decided on whether the mistake was fundamental. Intention permanently to deprive owner Must coincide with taking for larceny. Modified in case of intended return by s 118: Where, on the trial of a person for larceny, it appears that the accused appropriated the property in question to the accuseds own use, or for the accuseds own benefit, or that of 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.

Appropriated Not all cases of borrowing come under this provision there must be appropriation as well as asportation. Appropriation occurs when: Taker usurps the rights of the true owner. Acts in relation to the property in a way inconsistent with the rights of the true owner to deal with item as the takers own.

Foster v R (1967) A claimed that he had taken the gun in order to show it off to his parents, but that his intention was to return it afterwards. To be convicted of possessing stolen goods, needed to show that he had stolen the gun. Distinction is between assuming possession alongside having the intent to return the goods and treating the goods as your own alongside having the intent to later return the goods. 38

Conviction quashed because this had not been made clear: if Fosters story accepted, there was no MR.

Joy-Riding? Gap filled by s 154A: 1) Any person who: (a) without having the consent of the owner or person in lawful possession of a conveyance, takes and drives it, or takes it for the purpose of driving it, or secreting it, or obtaining a reward for its restoration or pretended restoration, or for any other fraudulent purpose, or (b) knowing that any conveyance has been taken without such consent, drives it or allows himself or herself to be carried in or on it, shall be deemed to be guilty of larceny and liable to be indicted for that offence. Conveyance includes cars, motor bikes, bicycles, ships and tanks! Dishonestly Test depends on whether larceny or a statutory offence. Statutory definition of dishonesty in s4B adopts the Ghosh test from the UK: - whether action fraudulent/dishonest by standards of ordinary person (objective); - whether accused knew his actions were dishonest by that standard (subjective) . It is dishonest for a defendant to act in a way which he knows ordinary people believe to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he did. Regarded as a flawed test: see discussion in Peters.

Fraudulently/dishonesty and larceny How ordinary people answer the question of dishonesty: what belief or knowledge about a relevant fact would make the act dishonest, and did the accused have that belief? 39

In many cases, dishonest has no special meaning and is simply a question of community standards. A person could still be acquitted where they have no honest claim of right, and an intention to permanently deprive, because the jury concludes that what they did was not dishonest. Without Honest Claim of Right An honest belief in a legal right to the item not just a moral claim. No requirement for the belief to be reasonable. Belief is in right to property, not means to acquire it may be a defence where weapon/assault used to recover item. Property Offences governed by mixture of common law and statute to fill gaps. Offence of Larceny developed in middle ages in some ways ill suited to modern circumstances. The textbook is now partially out of date ss. 164-186 of the Crimes Act have been repealed. For fraud, see now ss. 192B-192H. Property Legal Property is different from how property is spoken of. Not a thing belonging to someone but rather a bundle of rights in relation to something, such as Ownership, Exclusion, Possession, Alienation, Use. Lawful possessor will have rights against all but the lawful owner Section 4 of the Crimes Act includes a broad definition: Includes: every description of real and personal property; money, valuable securities, debts, and legacies; and all deeds and instruments relating to, or evidencing the title or right to any property, or giving a right to recover or receive any money or goods; and includes not only property originally in the possession or under the control of any person, but also any property into or for which the same may have been converted or exchanged, and everything acquired by such conversion or exchange, whether immediately or otherwise. Larceny Made a crime in s 117 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. 40

Various crimes are punishable like larceny including joy riding s 154A. Definition Definition in the Common Law: At common law, larceny is committed by a person who, without the consent of the owner, fraudulently and without claim or 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. ( Ilitch [7.38]). Elements of Larceny Physical: Taking and carrying away Something capable of being stolen In someones possession Without the consent of the person in possession Fault Intention to deprive the true owner of the property in the thing Fraudulently and without honest claim of right Taking and Carrying Away Sometimes referred to as asportation Slightest movement may suffice: any movement of goods with an intent to steal them is sufficient to constitute asportation (Wallis v Lane [7.8]). For example: Moving goods from one place to another in a truck Slight removal of wallet from pocket. Capable of Being Stolen Larceny can only be committed of property which is capable of physical possession and removal (Croton [7.9]). A specific moveable item of value can include paper.


Things such as fixtures or trees not at common law (though see now ss 139, 140 and 154 Crimes Act). Funds in a bank account are not capable of being stolen but rather a chose in action (right to recover the sum stated) not susceptible to larceny, but to misappropriation (Croton). Cash in the till is capable of being stolen. In Someones Possession Larceny is a crime against possession not ownership must be in someones possession. A person lawfully in possession, cannot be guilty of larceny ( Ilich [7.38]). If goods are misplaced, can still be in possession. It does not matter if the possession itself is illegal ( Anic illegal drugs stolen [7.10]). Employers are still in possession of goods held by employees through constructive possession (Ellis v Lawson [7.14]).

Without the Consent of the Person in Possession As it is a crime against possession, can be established although owner unknown though crown must prove the owner cannot be ascertained (Ellis v Lawson [7.14]). Mere facilitation of something is not consent (Kennison v Daire [7.12] exploitation of computer program glitch after closing bank account see now s 192E). A licence to use goods in a certain way can be terminated by an inconsistent intent (Kolosque v Miyazaki [7.13] placing goods in bag, but not leaving store). Employers remain in constructive possession (Ellis v Lawson). Mistake? No larceny if consent what if the consent is a mistake, e.g., giving too much change? Where bilateral/mutual mistake usually no larceny. Some problematic cases Unilateral mistake clerk handed over too much money (Middleton [7.36]).


Higher coin than desired handed over mistake realised later held that possession not obtained until aware of true value (Ashwell [7.36]) Criticised in Potisk and Ilich. If mistake is of a sufficiently fundamental kind, consent is vitiated in unilateral and bilateral mistakes (Ilich): Identity of transferee as per Middleton Identity of thing delivered as per Ashwell Quantity of thing delivered - except for money ( Ilich [7.38] NB a bilateral mistake case) E.g., Potisk no fundamental mistake where wrong exchange rate applied to a travellers cheque and only later realised by recipient. With money ownership and possession pass simultaneously when negotiated or used as currency i.e., used in a transaction.

Money as Special Case Money as currency is a special case. Usually, recipient only receives as good a title as giver. Person who steals money does not receive ownership but if passes into currency, recipient does. Money is negotiable provided received in good faith and for value, ownership passes. Hence, in Ilich, money paid for work done, even though incorrect amount, ownership still passed. Intention permanently to deprive owner Must coincide with taking for larceny. Modified in case of intended return by s 118: Where, on the trial of a person for larceny, it appears that the accused appropriated the property in question to the accuseds own use, or for the accuseds own benefit, or that of 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. 43

Appropriated Appropriation occurs when: Taker usurps the rights of the true owner. Acts in relation to the property in a way inconsistent with the rights of the true owner to deal with item as the takers own. Excludes: Depriving of possession for a limited time (Foster [7.15] taking of gun to show parents with intent to return). Joy-Riding? Gap filled by s 154A: 1) Any person who: (a) without having the consent of the owner or person in lawful possession of a conveyance, takes and drives it, or takes it for the purpose of driving it, or secreting it, or obtaining a reward for its restoration or pretended restoration, or for any other fraudulent purpose, or (b) knowing that any conveyance has been taken without such consent, drives it or allows himself or herself to be carried in or on it, shall be deemed to be guilty of larceny and liable to be indicted for that offence. Conveyance includes cars, motor bikes, bicycles, ships and tanks! Fraudulently Fraudulent often equated with dishonesty. In UK there is a two stage objective/subjective test: whether action fraudulent/dishonest by standards of ordinary person (objective); whether accused knew dishonest (subjective) (Ghosh [7.20]). This test now found in Crimes Act where dishonest/dishonestly is an element (s 4B).


At common law in Australia (i.e., for Larceny) a one stage objective test (Peters [7.22]): Test is whether, as a fact, jury is satisfied accused had the knowledge, belief or intention alleged by the prosecution and, if so, whether the act would be characterised as dishonest by ordinary, decent people.

Without Honest Claim of Right An honest belief in a legal right to the item not just a moral claim. No requirement for the belief to be reasonable. Belief is in right to property, not means to acquire it may be a defence where weapon/assault used to recover item. Can extend to items of equivalent value rather than specific property/notes. Amount/item claimed cannot exceed value of claim. For crown to negative a claim of right (Fuge [7.27] NB. Doubted by Heydon JA). Does not justify, e.g., kidnapping a debtor until debts paid ( Williams [7.28]). Finders Keepers? Truly lost/abandoned things cannot be the subject of larceny. Key issue is whether the finder reasonably believes that the owner can not be found. If there is reasonable belief owner can not be found, then no larceny. Whether belief reasonable involves consideration of : Finders knowledge of the owner Location where goods found Nature of goods Presence of identifying marks (MacDonald [7.31]).

Can extend to items of equivalent value rather than specific property/notes. 45

Amount/item claimed cannot exceed value of claim. For crown to negative a claim of right (Fuge [7.27] NB. Doubted by Heydon JA). Does not justify, e.g., kidnapping a debtor until debts paid ( Williams [7.28]). Finders Keepers? Truly lost/abandoned things cannot be the subject of larceny. Key issue is whether the finder reasonably believes that the owner can not be found. If there is reasonable belief owner can not be found, then no larceny. Whether belief reasonable involves consideration of : Finders knowledge of the owner Location where goods found Nature of goods Presence of identifying marks (MacDonald [7.31]).

Statutory Property Offences Various provisions attempting to remedy defects of common law larceny. For example: Fraudulent Appropriation (s 124). Larceny by bailee (s 125). Joy riding (s 154A). Most recently, overhaul of previous fraud related offences (old ss 164-86 of Crimes Act) to be replaced with new statutory offences of Fraud and intention to defraud (Part 4AA). Fraudulent Appropriation s 124 Where, upon the trial of a person for larceny, it appears: (a) that the person had fraudulently appropriated to his or her own use or that of another, the property in respect of which the person is indicted, although the person had not originally taken the property with any fraudulent intent , or


(b) that the person had fraudulently retained the property in order to secure a reward for its restoration, the jury may return a verdict accordingly, and thereupon the person shall be liable to imprisonment for two years, or to a fine of 20 penalty units, or both. Smaller penalty than larceny. Overcomes problem of intention to keep goods occurring subsequent to obtaining possession.

Elements of Fraudulent Appropriation Physical Appropriation (see Foster [7.15] on s 118) of property Fault Fraudulently (see Peters [7.22] but cf s 4B) Not necessary to prove coincidence of fraudulent intent to keep with action of appropriation. CF: also offence to retain property fraudulently for reward. Larceny by Bailee Bailment: when an item is given into the possession of another on express/implied stipulation returned or used in a specified way. No larceny at common law as possession lawful and consented to. Initially overcome by concept of breaking bulk opening package to remove part. Now dealt with by statute s 125. Larceny by Bailee 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.


Elements of Larceny by Bailee Physical Bailee Takes or converts property for own use or another. Deal with inconsistently with rights of owner - assume full title or assert right to full title Fault Fraudulent (Peters cf s 4B) For discussion on bailment, especially in relation to money see Ward [7.46] (NB, s 179 now replaced by s 192E). Old Statutory Fraud Regime Fraud by factors and other agents 158. Destruction, falsification of accounts etc by clerk 164. Terms agents, intrusted and misappropriate 165. Agent misappropriating money etc intrusted to him or her 166. The like as to goods etc intrusted to him or her 167. Not to affect trustees or mortgagees nor to restrain agents from receiving money on valuable securities etc 168. Fraudulent sale of property by agent 169. The same by person under power of attorney 170. Agent obtaining advances on property of his or her principal 171. What to be deemed intrusting with goods etc 172. Trustees fraudulently disposing of property 173. Directors etc fraudulently appropriating etc property 174. Directors etc omitting certain entries 175. Director etc wilfully destroying etc books of company etc 176. Director or officer publishing fraudulent statements 48

176A. Directors etc cheating or defrauding 177. Proviso to sections 165 to 176 inclusive 178. No relief from compulsory disclosures Subdivision 8 - Fraudulent misappropriation 178A. Fraudulent misappropriation of moneys collected or received Subdivision 9 - Valueless cheques 178B. Valueless cheques Subdivision 10 - Obtaining money etc by deception 178BA. Obtaining money etc by deception Subdivision 11 - Obtaining money etc by false or misleading statements 178BB. Obtaining money etc by false or misleading statements

Subdivision 12 - Obtaining credit by fraud 178C. Obtaining credit by fraud Subdivision 13 - False pretences 179. False pretences etc 180. Causing payment etc by false pretence etc 181. False pretence of title 182. Accused may be convicted on a charge of false pretences etc though property obtained partly by a false promise 183. Trial for false pretences etcverdict of larceny 184. Fraudulent personation 184A. Personating owner of stock or property 185. Inducing persons by fraud to execute instruments Subdivision 14 - Fraudulent arrangements


185A. Inducing persons to enter into certain arrangements by misleading etc statements etc Subdivision 15 - Corrupt rewards 186. Taking reward for helping to recover stolen property or servant Offences triable summarily 527. Fraudulently appropriating or retaining property 527A. Obtaining money etc by wilfully false representation 527B. Framing a false invoice 527C. Persons unlawfully in possession of property 528. Advertising reward for return of stolen property MISC 545A. Bogus advertisements 547A. False statement respecting births, deaths or marriages

Sections in Textbook no longer relevant Fraudulent Appropriation by directors (s 173 Macleod [7.30]). Fraudulent Misappropriation (s 178A). Obtaining money by deception (s 178BA). False pretenses (ss 179-180 Ward [7.46] and Petronius-Kuff [7.47]). NB: Cases still relevant to aspects of course. New Fraud Regime Now four offences: Fraud (s 192E) Intention to defraud by destroying or concealing accounting records (s 192F replaces s 154) Intention to defraud by false or misleading statement (s 192G replaces s 178BB) 50

Intention to deceive members or creditors by false or misleading statement of officer of organisation (s 192H) Among others, sections 158,164-86, 527-528, 545A and 547A repealed as redundant.

New Statutory Offence: Fraud s 192E (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: Imprisonment for 10 years. (2) A persons obtaining of property belonging to another may be dishonest even if the person is willing to pay for the property. (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. Elements of Fraud Physical By deception Obtains property belonging to another OR Obtains a financial advantage OR Causes financial disadvantage Fault Intentional or reckless deception (s 192B(2)) Dishonestly (for property) intends to deprive the owner permanently of property (as for larceny) (s 192C(2)).

Deception s 192B 51

(1) 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. Largely repeats definition of former s 178BA(2) (obtaining money etc. by deception) cover situation in Kennison v Daire [7.12] exploitation of computer glitch. Deception must be operative cause though need not deceive the actual person who hands over property etc. - see case law in Howie and Johnson [8-s 192B.15].

Obtains Property s 192C Obtains or enables the retention of ownership, possession or control of the property for themselves or another or induces third person to act so ownership, possession or control obtained or retained (1). Encompasses prior judicial interpretation that only possession was required for obtain, not ownership (Petronius-Kuff [7.47] decided under old ss 179-180). Property belongs to someone if it is in the possession or control of someone, or if they have a proprietary interest (3). At common law, where possession only obtained by fraud: larceny by trick; where property obtained in thing: false pretences (Ward [7.46] discusses old ss 179-180) difference not relevant for this offence . Financial Advantage s 192D (1) Obtains advantage, whether permanent or temporary includes: Obtaining a financial advantage for oneself or another Causing a third person to act so advantage obtained for oneself or another Keeping an advantage (2) Causing disadvantage, whether permanent or temporary, includes: Causing disadvantage to another Inducing a third party to act to cause another disadvantage.


Financial Advantage to be given plain meaning: previously an element of s 178BA, see Howie and Johnson [8-s 192D.5]. No requirement that a disadvantage be suffered by the victim if the accused gains an advantage. Intentional or Reckless Must be an intentional or reckless deception (s 192B(2)). Previously a requirement under s 178BA: If a person adverted to probable consequence and acted with indifference or was willing to run the risk, recklessness: Smith: Howie and Johnson [8-s 192B.15]. Dishonest s 4B Two limb test. dishonest according to the standards of ordinary people ( Objective) and known by the defendant to be dishonest according to the standards of ordinary people (Subjective) (1). Question of fact (2). Adopts English position in Ghosh [7.20] and changes previous interpretation of dishonesty under Peters [7.22] and MacLeod [7.30]. Question: previously held fraudulently in the Crimes Act and dishonestly interchangeable (e.g. Glenister [7.19]), does this mean s 4B applicable where fraudulently used (e.g., ss 124 and 125)? REMEMBER: Larceny is defined in the Common Law, s 4B has no application. Intent permanently to deprive No offence by obtaining property belonging to another unless intends to permanently deprive the other of the property (s 192C(2)) as for larceny. If does not intend other permanently to lose the thing itself still the requisite intent if: intention is to treat the thing as his or her own to dispose of regardless of the others rights Borrowing or lending may suffice if for a period and in circumstances making it equivalent to an outright taking or disposal (4).


Also if has in possession or control and parts with item for own benefit under condition may not be able to fulfill without the permission of the owner (5) Seems consistent with Foster [7.15] appropriate for s 118.

Self-defence Why is it permissible to use force in self-defence? Significant factor: force is used against the person who has used or threatened force Victim loses their rights to personal safety because they threaten to use or use violence? (not very successful argument) Social contract: we did not give up our rights of self-protection except in circumstances where the state could protect us The veil of ignorance: if we did not know whether we were the self-defender or the assailant, would we choose to permit a defence?Different approaches to defining self-defence How much detail to include in the legal definition? Can leave it open-ended and rely on juries to sift the deserving from the nondeserving Or can have a highly detailed, prescriptive approach Compare definitions from various jurisdictions What decisions have to be made? Whether to lump self-defence, defence of another and defence of property into one provision Whether to base the assessment of whether the force used is reasonable on the actual circumstances, the perceived circumstances or on what a reasonable belief about those circumstances would be Whether to spell out in detail when it would be reasonable to use deadly force Whether to distinguish between defence against a provoked or unprovoked attack 54

Whether to include an excessive force defence Common law self-defence Zecevic (1987): whether the accused believed on reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief, and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal. Self-defence in NSW S 418 replaces common law approach and mirrors s10.4 (2) Criminal Code (Cth). From second reading speech: The Bill repeals the Home Invasion (Occupants Protection) Act 1998 and the Workplace (Occupants Protection) Act 2001 so that the law can apply uniformly across all situations where self defence might arise. It will effectively abolish the current common law regarding self-defence. In every case it will be the general concept of self-defence, as codified in the Bill, which will apply. However, the common law is not made irrelevantthe provisions in the Bill are firmly grounded in common law principles. Self-defence in NSW s418 (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 trespess to any land or premises or to remove a person committing such criminal trespass, And the conduct is a reasonable response in the circumstances as he or she perceives them to be. 418 continued (c ) To protect property from unlawful taking, destruction, damage or interference, or (d) To prevent criminal trespess to any land or premises or to remove a person committing such criminal trespass, And the conduct is a reasonable response in the circumstances as he or she perceives them to be. Burden of proof 55

Evidential burden is on the defendant Issue is whether there was a reasonable possibility that D believed their conduct was necessary in self-defence/defence of another, etc. Once evidential burden is satisfied, prosecution must negate defence beyond reasonable doubt (s419) Effectively, this is again a reasonable possibility standard. If the prosecution fails to establish beyond reasonable doubt that the conduct was NOT done in self-defence, then there will be an acquittal. Essential elements of this provision Complete defence to any offence where the conduct is done in selfdefence There must be a positive belief that the conduct is necessary for one of the purposes set out in s418(2)(a)-(d) Mixed subjective and objective Subjective: belief in necessity, definition of what the relevant circumstances are Objective: whether in those circumstances the response is a reasonable one No requirement that the attack being defended against is unlawful but its unlikely a response to lawful conduct would be within selfdefence rules unless the attacker was not criminally responsible. The intent to act in self-defence Factors that affect whether there was intent to act in self-defence include whether premeditation, whether excessive force used, whether plausible that accused believed it was necessary to defend themselves Would need to know of existence of facts that made use of force permissible Self-defence would not be available as a defence to the negligent or reckless use of forceAccidental self-defence Statutory definition of self-defence and also Australian common law require that there is a belief/reasonable belief that the actions are necessary in self-defence In theory, it would not be possible to rely on self-defence if your reason for acting was something else but in fact, by a coincidence, it was necessary to act in selfdefence Where reasonable grounds are required, this would also rule out the defence if you could not point to your reasons for believing that there was a serious danger, even though there was in fact a serious danger.


Self-defence theorists are not in agreement about whether actions in self-defence are justified in these situations. Dadson (1850) 4 Cox CC 358 Force has to be used for the right reason. A was a constable employed to watch a copse. A saw B wrongfully carrying away wood, called to him to stop, but he didnt. When he saw B running away, A fired at and wounds him. It was only legal (ie, permissible) to use force to apprehend an offender where the offence being committed was a felony rather than a misdemeanour ( a bit like the difference between a summary and an indictable offence). This type of theft was normally a misdemeanour.However, where the thief had previous convictions for similar offences, it was a felony. B had a number of previous convictions but A did not know this. Therefore As conviction for wounding with intent to do grievous bodily harm was upheld because he was not using force to apprehend a felon: he did not know B was a felon. Would not meet requirements under s418 because no belief that actions necessary for prevention of crime.The argument that Dadson is wrong When someone acts in self-defence, they do not cause any harm This is the case whether or not they are aware of the danger (or have reasonable grounds for their belief that there is a danger).

Glanville Williams law enforcement officers should not be required to point to their reasons, their experience means they should be permitted to trust a hunch The argument that Dadson is right An aggressor who is harmed by a defender is still harmed, it is simply a permitted harm The defenders reasons for acting are central to the harm being permitted; the defender is not a wrongdoer


If the defender does not know that the aggressor is an aggressor, then there is no difference between the defender and any other criminal and no reason to avoid punishment.

Self-defence and mistakes NSW and most other jurisdictions have chosen to reverse the common law requirement that mistakes about the existence of a threat must be reasonable Reasons for this: influence of English case-law, academic disapproval of objective tests and (more recently) concern that reasonableness tests can lead to injustice because of culture/gender. From Morgan to Williams Morgan: if a mistake means that the actor lacks mens rea, then there will be no liability even if the mistake was an unreasonable one Applied to a mistake about consent to sexual intercourse: if the accused honestly believed that the woman consented, he lacked the MR for rape

Applied to self-defence in Williams: if he believed he was acting in self-defence, he lacked the mens rea for an assault Unclear whether this approach is a response to arguments against reasonable belief requirements or the basis of those arguments Criticisms The Morgan/Williams line of cases can be criticized because of the way in which they use/abuse the mens rea requirement for the offences in question circularity However, that does not dispose of the issue because jurisdictions like NSW have adopted the honest belief test and it does not stand or fall on the validity of the reasoning in Williams. The real question is whether it was correct to abandon the reasonable belief requirement. Is it unfair to ask someone to think twice before using force against an apparent threat? The effect of intoxication Intoxication can lead to mistakes about whether a threat exists and also to overreactions to the perceived threat 58

Prior to the enactment of s148, case-law in NSW indicated that intoxication was relevant to both of these (Conlon). This was contrary to the common law position, whereby intoxication was definitely not relevant to whether force reasonable and in some jurisdictions, was also ignored where a mistake was made about the existence of a threat. R v Katarzynski The new provisions on self-defence meant that the court was not required to follow Conlon approach. Intoxication is relevant when considering whether the accused honestly believed they were under threat and how serious that threat was. For policy reasons, intoxication should be ignored when considering whether the response was a reasonable one in the circumstances as the accused believed them to be. This is also consistent with the treatment of intoxication elsewhere in the Act. What is a reasonable response? Focus is on what the accused intended to do rather than on what the consequences of their conduct (beer glass example) This is an objective test: it is not just a matter of whether the accused person believed that their conduct was necessary. This means that the conduct must actually BE reasonably necessary (recalling subjective test for circumstances) No formal requirement of proportionality but still relevant Jury question and not a matter of precision, given that it is an emergency Jewellers scales are not required Assessing reasonableness What did the accused think was threatened/happening? Had the accused themselves provoked the attack? The accuseds perception of the surrounding circumstances, such as how much time to respond Availability of other possible responses (but no formal requirement to retreat)

Palmer v The Queen [1971] AC 814, 831-832


If there has been an attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action.

R v Johnson [1964] Qd R 1, 13 A jury should be warned against being wise after the event and that they must consider the matter from the point of view operative on the accuseds mind in the stress of the moment. By running away from an aggressor one might obviously lead to ones own destruction.

Pre-emptive strikes A threat to use force in the imminent future may be unavoidable by non-violent means Question will be whether it was reasonable to use force rather than to retreat or request help Can be an issue in cases involving victims of intimate abuse because they may find retreat difficult or be unsure whether they will receive help R v McKay [1957] VR 560, 562-3 Reasonable self-defence is not limited to cases in which the life of the person committing homicide is endangered or grave injury to his [or her] person is threatened. It is also available where there is a reasonable apprehension of such danger or grave injury. There is such a reasonable apprehension if the person believes on reasonable grounds that such danger exists. This is still correct EXCEPT that apprehension of danger does not have to be reasonable in NSW.

Duress and NecessityReal Defences


Unlike other defences, completely excuse criminal conduct when all the elements of an oence have been proven. Have elements like oences that must be saJsed. If shown, entitles accused to acquittal. Make allowances for normal, reasonable responses.

Duress When a person commits a crime in response to a threat. Evidential onus on accused. Consists of a two part test: Was the persons will overborne by a threat (subjective)? Would a person of ordinary rmness have succumbed in such a way (objecJve)? (see Lawrence([9.5])

Subjective Test Where crime commiNed by reason only of his/her will being overborne by threats of death or really serious physical harm to himself/herself or others. Not required that the act be spontaneous. Threat must be operaJve and eecJve at Time oence commiNed, (Abusaah([9.6])ObjecJve Test DirecJon to jury: No reasonable possibility a person of ordinary rmness of mind and will would have yielded to the threat in the way the accused did NB Would have yielded not could. Not enough to refer to an average person. 61

Consider: Nature of threat and its proporJon to the crime commiNed. Circumstances known to accused about person making the threat which may reasonably have aected an ordinary person (Abusaah([9.6] contains direcJons to jury).Person of Ordinary Firmness Certain factors may be considered: Age/maturity Sex Pregnancy (concern for unborn child) Physical disability inhibiJng selfbprotecJon Recognised mental illness or psychiatric condiJon (e.g., baNered women syndrome: Runjunic [9.10]). Not enough that a person is simply more pliable, vulnerable, Jmid or suscepJble to threats (Bowen([9.9]). Selfbinduced intoxicaJon or abuse irrelevant. Escape Defence not available if a person failed to avail his or herself of an opportunity reasonably open to him/her to render the threat ineecJve. Whether reasonably open judged by same standards as whether reasonable person would have yielded (Lawrence([9.5]). QuesJon of fact for jury. Other Threats? Lawrence([9.5] leaves open whether threats other than death or serious physical harm would suce e.g., threats to property.


If other threats admiNed to be determined in accordance with two stage test. Would be open to exclude certain classes of threat. Voluntariness? SuggesJon in Abusaah(that duress negates voluntariness ([9.12]). Perhaps beNer thought of as willed, albeit reluctantly, (see Lynch([9.11]).Limits of Duress Could extend to jusJfying a highjacking (Abul8 Hussain([9.8]) Can not be a defence to murder for the principal oender (Lynch([1975] AC 653) Uncertain whether can apply to accessory in murder (Lynch(allowed; Howe(denied [9.17]) Has yet to arise for consideraJon in constructive murder though Howe(and Go;s([9.17] suggest not. duress is no defence to murder in whatever capacity the accused is charged with that crime (Go;s). Necessity SomeJmes called duress of circumstances. Choosing the lesser of two evils as disJnct from duress where ordered to commit oence. Provides a complete defence. Accused evidential burden. Crown must prove beyond reasonable doubt act not done out of necessity Elements Three elements for necessity: Peril:&Act done in order to avoid consequences that would have inicted an irreparable evil. Belief:&Accused must honestly believe (subjec3ve) on reasonable grounds (objec3ve) that there was situaJon or imminent peril. 63

Propor3onality/Reasonableness:&The acts done must be in proporJon to the peril avoided. (Loughman([1981] VR 443 and Rogers([9.21]).

Nature of Emergency Act must be done in response to a situaJon of peril. A degree of imminence is usually required though it is a doctrine of necessity not emergency (Re(A((Children)([9.23]). Examples: Taking gun o someone to prevent oence: Pommell( [9.19]. Driving drunk to escape gang of youths (DPP(v Bell(1992) RTR 335)Accuseds Belief Honestly believe on reasonable grounds situaJon of immediate peril. Circumstances are judged from the posiJon of the accused (Cairns([9.22]). Not expediency or strong preference for course of action adopted. No reasonable opportunity for an alternative course of action not involving a breach of the law (Rogers([9.21]).(ProporJonality/Reasonableness ObjecJve test expressed as proporJonality and reasonableness. Judged from posiJon of accused (Cairns([9.22]) Would a sober person of reasonable rmness in the position of the accused have responded to that situaJon by acJng as the accused acted (MarEn([1989] 1 All ER 652). Similar to test for duress.


Necessity and Murder Necessity usually not a defence to murder (Dudley(and(Stephens((1884) 14 QBD 273). However, in some exceptional circumstances, may be applicable. Re(A([9.23]: conjoined twins, one would always die if not separated both die, if separated, one would die earlier. Necessity a defence to the medical separation.

Necessity and Abortion In NSW, abortion illegal under the Crimes(Acts s 82b4). Unlawful use by mother by drug, noxious thing or instrument with intent to procure miscarriage (s 82) Unlawful use by another of drugs, noxious thing or instrument with intent to procure miscarriage (s 83). Unlawful supply of drugs noxious thing or instruments knowing will be used to procure a miscarriage (s 84)Unlawfully All statutory provisions use the term unlawfully necessity makes lawful. Honestly believe on reasonable grounds necessary to preserve the woman from a serious danger to life or physical or mental health AND Honestly believe on reasonable grounds proportionate to need to preserve woman from serious danger to her life or her physical or mental health. Can be an economic, social or medical basis for the reasonable grounds of the accuseds belief in necessity. Includes a belief that the womans mental or physical health could reasonably be expected to be seriously endangered during the pregnancy or aner (CES v Superclinics([9.25]). 65

Defences: Insanity and Substantial Impairment Defences Two types of defence Denies one element of crime: Insanity Automatism Intoxication Elements of crime exist, otherwise excused: Duress Necessity Self Defence Insanity- Mental Illness Accused entitled to acquittal by reason of insanity/mental illness special verdict. Section 38: Mental Health (Forensic Provisions) Act 1990 (NB: renaming of Mental Health (Criminal Procedure) Act 1990 in textbok) If, in an indictment or information, an act or omission is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done or omission made, then, if it appears to the jury before which the person is tried that the person did the act or made the omission charged, but was mentally ill at the time when the person did or made the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness. Does not define how determined whether mentally ill according to law follows common law rules.

Special Verdict Section 39 Mental Health (Forensic Provisions) Act 1990 66

If, on the trial of a person charged with an offence, the jury returns a special verdict that the accused person is not guilty by reason of mental illness, the Court may order that the person be detained in such place and in such manner as the Court thinks fit until released by due process of law or may make such other order (including an order releasing the person from custody, either unconditionally or subject to conditions) as the Court considers appropriate (1). The Court is not to make an order under this section for the release of a person from custody unless it is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the persons release (2). With the abolition of the death penalty, definite incarceration may be preferable to indefinite detention as a result of the special verdict. MNaghten Rules Common law Legal test for insanity: The jurors ought to be told in all cases that every man is to be presumed to be sane and to posses a sufficient degree of reason to be responsible for his crimes until the contrary be proved to their satisfaction, and 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 not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong. MNaghten Rules continued. Rationale: Criminal law acts as deterrent, cannot deter people suffering from a mental illness who can not reason it is wrong or understand what they are doing. Presumption people are sane for defence to prove on the balance of probabilities accused insane (Porter [8.10]) Requires: Defect of reason from a mental illness At the time of committing the act To the extent that accused either: Did not know the nature or quality of the act OR Lacked capacity to reason whether it was right or wrong. Considered after jury has determined otherwise guilty. 67

Mental Illness Must be a disease, disorder or mental illness. Legal, not medical, definition. Can be temporary or long-standing. Not just the result of passions or impulsiveness, stupidity, obtuseness or lack of self control. Only the condition at the time of the act, not previously or subsequently, that is relevant . See Porter [8.10]. Examples of Mental Illness Psychosis Paranoia Schizophrenia Manic state from clinical depression Dementia Intellectual disabilities Artheriosclerosis: hardening of arteries can affect the mind. Hyperglycemia (excess of sugar) but not hypoglycemia (excess of insulin) the former is due to an internal condition, the latter an external stimulus. Sleepwalking: internal condition. Epilepsy. Not usually personality disorders or impulse disorders (e.g., kleptomania). Not to know the nature and quality of the act Disease prevented from knowing the physical nature of the act he was doing. Rarely used limb of defence. For example where a man has intentionally destroys life he may have so little capacity for understanding the nature of life and the destruction of life, that to him it is no more than breaking a twig or destroying an inanimate object ( Porter).


Some examples where know nature of act, but not consequences. E.g.: Through granting everlasting life (Phomaranuphong [2001] NSWSC 1157). Thought an actor in a movie (Farrell [2003] NSWSC 300). Did not know what he was doing was wrong Not right or wrong in abstract, but particular wrong at particular time. could not reason about the matter with a moderate degree of sense and composure or incapable of reasoning. Not that reasoned wrongly, or, though responsible had queer or unsound ideas but incapable of reasoning or taking into account considerations which go to make right or wrong (Porter). Mere difficulty with the reasoning process insufficient ( Cheatham [8.13]). Wrong is not legal, but moral wrongness: wrong having regard to the everyday standards of reasonable people ( Porter). Not necessary to know why it is wrong or care whether wrong, as long as intellectually aware wrong (Willgoss (1960) 105 CLR 295). Can exclude psychopaths know what they are doing is wrong, but do not care. Substantial Impairment s 23A Crimes Act Partial defence to charge of murder results in verdict of manslaughter, rather than murder. Replaced old diminished responsibility in 1998. As with insanity, burden is on the defence to prove substantial impairment on the balance of probabilities (s 23A(4)). If the defence raises substantial impairment, the prosecution can raise insanity, and vice versa (s 23A(7)). Only arises when otherwise guilty of murder (e.g., decided no provocation etc.).

Section 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 persons capacity to understand events, OR to judge whether the persons actions were right or wrong, OR to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. Substantial Impairment A lower level than insanity for insanity, person must be incapable of reasoning, or not know nature of acts. The question of whether the impairment was substantial enough is a question of fact, not the subject of expert evidence (2). To be approached in a common sense way value judgment by jury representing the community (Trotter [8.18]). The effects of self-induced intoxication are ignored (3) (Christov [8.22]). The jury must be directed: Take into account accuseds perception of events The nature and extent of any impairment of perceptions Capacity to understand events Capacity to form sensible judgment as to whether right or wrong ( Cheatham no. 2 [8.21]). See, e.g., Christov [8.22]: I am not saying that Mr Christovs psychological make up was wholly normal he may have been impaired to some degree I am not satisfied as a probability he was substantially impaired or that such impairment as he had was so substantial as to warrant liability for murder being reduced to manslaughter. Abnormality of Mind Broader range of conditions than those covered by the MNaghten rules.


A state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the minds activities in all aspects, not only the act is right or wrong, but as to the ability to exercise will power to control physical acts in accordance with that rational judgment (Byrne (English decision): Howie and Johnson [8-s 23A.1]). Must arise from an underlying condition, i.e. a pre-existing mental or physiological condition, other than a condition of a transitory kind (8). Distinguishes from temporary disturbance brought about by heightened emotions such as anger or jealousy. Will require expert evidence.

Examples of Abnormality of Mind Chronic depression Psychopathy or personality disorder Post traumatic stress disorder Long term effects of alcohol or drug abuse.

Fitness to be Tried A person with a severe mental illness may be unfit to be tried can be unfit independent of state at time of act alleged judged at time of trial, not at time of action in question. Test in Presser [8.26]. Accused must be able to: Understand what charged with Plea to charge Understand nature of proceeding (inquiry as to whether did what charged with Follow proceedings Understand substantial effect of evidence Make defence or answer charge Give necessary instructions to counsel


Let counsel and court know accuseds version of facts and choose defence. Should take into account how mental state will progress over course of trial (Kesavarajah [8.27]). Procedure for Determining Fitness Governed by provisions of Mental Health (Forensic Provisions) Act 1990. By judge alone (s 11), no onus of proof on either side (ss 12(2) and 13(3)) Determined on Balance of Probabilities (s 6). If unfit, referred to Mental Health Review Tribunal who determines whether will be fit or not within 12 months (ss 14 and 16). If will not be, referred to DPP who can advise court on whether to hold a special hearing where orders for custody and treatment of accused can be made (ss 14 and 17).

Automatism and Intoxication Voluntariness Principle of criminal law that where act is involuntary, not guilty, regardless of consequences. Both insanity and automatism (acting as an automaton without independent will) can be relevant to whether an act was voluntary. Insanity also relevant to other fault elements; automatism only voluntariness.

Voluntary Act E.g. reflex action of pulling trigger? Ryan [8.33]: conduct causing death a series of acts loading rifle, cocking, presenting, pressing trigger: Such phrases as reflex action and automatic reaction can, if used imprecisely, be, like blackout mere excuses. They seem to me to have no real application to the case of a fully conscious man who has put himself in a situation in which he has his finger on the trigger of a loaded rifle levelled at another man. If he then presses the trigger in immediate response to a sudden threat his doing so is a 72

consequence probable and foreseeable of a conscious apprehension of danger, and in that sense a voluntary act. Voluntary Act

See also Murray [8.34] important to avoid an overly refined analysis number of actions loading, cocking, presenting, firing no basis to say course as a whole not willed issue whether when presented gun did so with an intent to kill or cause GBH or just to frighten. Whitfield [8.35]: presenting a knife when threatened cannot be said wounds inflicted in subsequent fight unwilled. merely because it happens in the course of a struggle and it was not intended that the wound occur, does not mean that it was accidental. When you present a knife and someone rushes at you, in a very real sense, wounds caused in that struggle may not be regarded as accidental at all. They follow by reasonable cause and effect from the presentation of the knife in that circumstance (Trial Judges direction, approved by Court of Criminal Appeal). Automatism Person acting as automaton independent of will. Various states, e.g.: Concussion: R v Wakefield (1958) WN (NSW) 55 Sleepwalking: R v Jiminez (1992) 173 CLR 572 Epileptic seizure: R v Yousseff (1990) 50 A Crim R 1 Hypoglycaemia (low blood sugar brought about by insulin injection): Quick [1973] QB 910 Dissociative State from deep stress: R v Falconer (11990) 171 CLR 30. Accused evidentiary burden, Crown must prove Beyond Reasonable Doubt not automaton/act voluntary. If reasonable doubt voluntary full acquittal ( Falconer 8.38). Sane v Insane Automatism Automatism can be sane or insane: 73

Sane: temporarily inefficient working of a sound mind as a result of trauma or external stimuli (Lainson [8.42]). Transient; Caused by trauma whether physical or psychological which the mind of an ordinary person would be likely not to have withstood; and Not prone to recur (Falconer) Insane: result of external stimuli or delusions acting on an unsound mind. Produces complicated results with regard to burden of proof (see comments in Youssef [8.41].

Burden of Proof It is for accused to raise positive evidence of automatism. If Crown cannot prove BRD not sane automatism entitled to full acquittal. If sane automatism disproved by Crown, evidence raises insane automatism, accused to prove on balance of probabilities mental illness as per MNaghten rules results in special verdict (Falconer). NB Prosecution can also rely on evidence to show insanity. Once established that the incapacity is the result of a disease of the mind, only entitled to acquittal through mental illness ( Lainson [8.42]). Oddity accused onus of proving didnt know what was doing in insanity, Crown establish did know what was doing as voluntariness ( Youssef [8.41]). Intoxication Can potentially go to voluntariness or fault element. At common law, distinction between UK (Majewski [8.46]) and Australia (OConnor [8.48]) In UK, evidence of self-induced intoxication only relevant to whether formed requisite mens rea for crimes of specific intent. In Australia, relevant to any mens rea. Statute in New South Wales has essentially adopted English position in Part 11A Crimes Act.


Part 11A Does not so much establish a defence as evidentiary provisions relevant to when evidence of intoxication can and can not be used. Intoxication can be through alcohol, drugs or any other substance (s 428A). Important distinction between self-induced and involuntary intoxication at law. Not self induced if: involuntary, result from fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force or a drug administered in accordance with manufacturers instructions (s 428A). Abolishes common law (s 428H).

Specific Intent Offences s 428C Evidence of intoxication self induced or otherwise can be considered in determining whether had the intention to cause the specific result necessary for a crime of specific intent (1) UNLESS Resolved to do conduct before intoxication (2)(a) Became intoxicated in order to strengthen resolve (2)(b) Specific intent: an offence of which an intention to case use a specific result is an element (s 428B(1) see the non-exhaustive list in (2)) Applies to all the mens rea for murder (Grant [8.53] ) though if acquitted of murder, self-induced intoxication not relevant to mens rea for manslaughter (s 428E). Basic Intent For other the mens rea of other offences, only evidence of non-self-induced intoxication may be considered (s428D). Where a test of reasonableness involved, reasonable person is a non-intoxicated person (s 428F) Evidence of intoxication only relevant to voluntariness if not self-induced (s 428G). Basic intent e.g., assault, only intent to apply force, not a specific result (Majewski). Intoxication, Capacity and Insanity 75

Even if Crown proves has capacity to form intent despite intoxication, still must show actually has requisite intent (Makiski 8.54). A mental illness caused by intoxication may found the defence of insanity If there is a mental disease present predisposing to a particular condition, it does not matter whether the trigger is alcohol, a drug or something else, still insanity (Derbin [8.55]). However, :

Intoxication and Substantial Impairment Position appears different from insanity on interaction of self-induced intoxication and underlying condition. s 23A(3) requires ignoring effects of self-induced intoxication. Argued in Zaro [2009] NSWCCA 219 that vulnerability to psychotic episode was underlying condition, episode triggered by consumption of drugs and alcohol. Argued misdirection by trial judge that the: appellant had to prove on the balance of probabilities that even if he had not consumed alcohol and drugs on this night, an abnormality of mind, that is this psychotic state, would have happened in any event and would have caused substantial impairment. Court of Criminal Appeal held: Section 23A(3) requires the effects of [the] self-induced intoxication ... to be disregarded. If the appellant experienced a psychotic episode it was, on Mr Woods evidence, which was the only expert evidence of possible assistance to the appellant on this topic, triggered by the appellants consumption of drugs and alcohol. It was plainly an effect of the appellants consumption of drugs and alcohol which was found by the trial judge to have given rise to intoxication.

EXTENDING CRIMINAL LIABILITY: ATTEMPTS Inchoate offences & Complicity Inchoate offences (partly formed, just begun) Attempt Conspiracy 76



In all cases the focus is on common law offences cf specific statutory offences

Time/group frame for inchoate offences & complicity

A1 T1 T2 A2 T3

A1 T4 A2

--------Conspiracy--------------Attempt--------------------Completed crime/complicity Incitement

T = time dimension A = accused (group dimension) Criminal Attempts - Crimes Act 1900 (NSW) s 344A(1)

Subject to this Act, any person who attempts to commit any offence for which a penalty is provided under this Act shall be liable to that penalty.

Look to the common law to define attempt for the purposes of s 344A(1)

Statutory attempt offences e.g. CA ss 27-30 on attempt murder offences


s 27 Whosoever: administers to, or causes to be taken by, any person any poison, or other destructive thing, or by any means wounds, or causes grievous bodily harm to any person, with intent in any such case to commit murder shall be liable to imprisonment for 25 years.

Examples of other specific statutory attempt offences include s 33A(1) discharging or attempting to discharge a firearm with intent to cause GBH s 58 assault with intent to commit a serious indictable offence s 61K assault with intent to have sexual intercourse s 98 assault with intent to rob A vague & uncertain physical element At what point prior to the completed crime (the harm) should liability be located?

What is the rationale of the law?

Common law of attempts punishes the manifest intention to commit a crime (not harm falling short of the completed offence) Attempts are not confined to acts which if not interrupted would result in the commission of the crime itself. Attempts are crimes because of the criminal intent of the actor: Britten v Alpogut (1986) 23 A Crime R 254, Murphy J (emphasis added)

Attempts: Physical Element ..criminal attempt is committed if it is proven that the accused had at all material times the guilty intent to commit a recognized crime and it is proven that 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 not seen to be merely preparatory to it. 78

(Britten v Alpogut (1986) 23 A Crime R 254, Murphy J )

requirement imposed as proof that the criminal intent was manifest

but physical element is elusive: how proximate? To constitute a criminal attempt, the first step along the way of criminal intent is not necessarily sufficient and the final step is not necessarily required. The dividing line between preparation and attempt is to be found somewhere between these two extremes; but as to the method by which it is to be determined the authorities give no clear guidance. (Lord Salmond in R v Barker [1924] NZLR 865 at 874) Various tests The last act test: eg R v Chellingworth [1954] QWN 35

The unequivocality test: A criminal attempt is an act which shows criminal intent on the face of it.: R v Barker [1924] NZLR 865 at 874 per Lord Salmond; OConnor v Killian (1984) 38 SASR 327

The substantial step test: DPP v Stonehouse [1978] AC 55; R v Campbell [1991] Crim LR 268

Factual impossibility Can an accused be guilty of attempting a crime whose actual commission was factually impossible in the circumstances?

What must be proved by way of the physical elements of common law attempt where it was physically impossible for the accused to commit the completed crime


(i) that the accused intended to do the acts with the relevant state of mind which together would comprise the intended crime (that is, if the facts and circumstances had been as he believed them to be, he would have committed that crime), and (ii) that, with that intention, he did some act towards the commission of that crime which went beyond mere preparation and which cannot reasonably be regarded as having any purpose other than the commission of that crime.

R v Mai (1992) 26 NSWLR 371 Hunt CJ at CL, adopting the rule in Britten v Alpogut & rejecting English authority of Haughton v Smith [1975] AC 476 Desistance

In relation to the physical element of attempt voluntary desistance by the accused does not in itself prevent the physical element for an attempt from being established: R v Page [1033] VLR 351 Fault Element the specific intent to commit the crime attempted: Alister v R (1984) 154 CLR 404; Knight v The Queen (1992) 175 CLR 495

Recklessness insufficient: Giorgianni v The Queen (1985) 156 CLR 473

i.e. for attempted murder, an intent to kill

But consider sexual assault: R v Bell [1972] Tas SR 127; R v Evans (1987) 48 SASR 35. Conspiracy A discrete crime where criminal liability is pushed back in time from a completed crime but depends upon a group dimension 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 the agreement. (McHugh J in R v Rogerson (1992) 174 CLR 268 at 298) 80

an intent both to enter the agreement and to do the acts the subject of the agreement must be proved

no defence of factual impossibility: R v El Azizi [2001] NSWCCA 397.

Incitement At common law incitement to commit an offence is itself an offence It involves positively encouraging, urging or persuading another to commit an offence incitement does not have to be directed at a specific person proof that the person charged specifically intended that the offence be committed is probably required

EXTENDING CRIMINAL LIABILITY: COMPLICITY Crimes Act ss 345-351B complicity is not a separate offence, although there are specific statutory complicity offences e.g. ss 93S & 93T

a set of principles defining the circumstances in which a persons criminal liability derives from their association with a crime committed by another person

liability is generally derivative in nature: it depends on proof of the guilt of the principal offender Complicity extends liability in two distinct sets of circumstances 1. Aiding, abetting, counseling, procuring the commission of a crime by another Where assistance and/or encouragement to commit the crime is provided before or at the scene the secondary party will be liable for the crime according to the principles of accessorial liability


no agreement to commit the crime need be proved party at the scene (an aidor and/or abettor) = principal in the 2nd degree party before = accessory before the fact

One who provides assistance after the crime is liable as an accessory after the fact

2. Common purpose/joint criminal enterprise: where during the course of a joint criminal enterprise one member of the group commits an additional crime the other members may also be liable for that crime, whether or not they are present agreement to commit a crime is the foundation of liability

Note: a third concept, acting in concert: where two or more persons agree to commit a crime, one (or more) of them carry out & all are present liability as (joint) principal offenders Crimes Act ss 345-347, 348-351B In summary

the liability of accessories is derivative

accessories are liable to conviction for the same offence as the principal offender

an accessory before the fact & a principal in the second degree for a serious indictable offence (defined in s 4 as an offence carrying a penalty of five years or more) is liable to the same punishment as the principal offender: ss 345-346

an accessory after the fact to murder is liable to imprisonment for 25 years: s 349

an accessory after the fact to other serious indictable offences is liable to imprisonment for 5 years: s 350 82

accessories before or at the scene relating to a summary offence are liable to the same conviction and punishment as the principal

Principal in the first degree

Joint principal offenders

Innocent agents: White v Ridley (1978) 140 CLR 342; Cogan v Leak [1976] QB 217

Principal in the second degree

a person present at the scene of the crime who aids or assists in, or encourages, its commission

Liability depends on proof that

principal in the first degree committed the crime, satisfying both physical and fault elements (i.e. liability of an accessory is derivative)

accused was present

accused had knowledge of all the essential facts & circumstances necessary to show the crime was committed by the principal offender, including knowledge of the necessary state or intent required to constitute the crime, and


the accused intentionally assisted or encouraged the principal offender to commit the crime

Giorgianni v R (1985) 156 CLR 473

mere acquiescence or assent to the commission of the crime does not make a person liable as a principal in the second degree: Phan (2001) 53 NSWLR 480 Accessory before the fact

a person who whilst not present when the crime is committed intentionally urged, counseled, procured or helped its commission in some way e.g. provision of a weapon used in the commission of a crime

liability is derivative

fault element: accused must have had actual knowledge of all the essential facts constituting the crime, including any required mental state; negligence or reckless will not suffice: Giorgianni v R (1985) 156 CLR 473 Joint Criminal Enterprise/ Common Purpose Depends on establishing an agreement between the parties to commit a crime (often referred to as the foundational crime)

Agreement need not be an express agreement; it can be inferred from all the circumstances and it can be spontaneous: see R v Tangye (1997) 92 A Crim R 545 Simple joint criminal enterprise - Johns v R (1980) 143 CLR 108 Simple JCE/CP governs when a secondary offender will be liable for an offence committed by the principal offender that is incidental to carrying out the criminal enterprise


Johns parties to the crime of murder

Watson principal in the first degree whose gun killed Morriss during the planned robbery Dodge principal in the 2nd degree, present & assisted Watson Johns accessory before the fact who drove the others to the scene

An accessory before the fact is criminally liable

for an act which was within the contemplation of both himself and the principal in the first degree as an act which might be done in the course of carrying out the primary criminal intention an act contemplated as a possible incident of the originally planned particular venture. Street CJ Extended JCE/CP - McAuliffe v The Queen (1995) 183 CLR 108 For an accused to be found liable as an accessory under the doctrine of common purpose

there must be an agreement (express or tacit) to commit a particular crime the crime must be carried out in accord with the agreement: cf Taufahema [2006] NSWCCA 152

If these criteria are satisfied, an accused can be found liable for

crimes that occur within the scope of the common purpose (within the joint contemplation of the parties) - i.e. simple common purpose/JCE; and

crimes that occur outside the scope of the common purpose (outside the joint contemplation of the parties), but that are foreseen by the individual accused as a possible incident of carrying out the common purpose (extended CP/JCE)


Acting in concert Osland v The Queen (1998) 197 CLR 316 Even if only one participant performed the acts constituting the crime, each will be guilty as principals in the first degree if the acts were performed in the presence of all and pursuant to a preconceived plan. In this case, the parties are said to be acting in concert. (Brett, Waller and Williams Criminal Law 8th ed. (1997) adopted with his emphasis by McHugh J) Withdrawal from Complicity A person may escape criminal liability as an accessory by effectively withdrawing from an agreement to commit a crime. In general terms this requires timely communication of the intention to withdraw before the crime is committed and the taking of reasonable steps to prevent the crime from proceeding: White v Ridley (1978) 140 CLR 342 Accessory after the fact a person who assists the principal to escape conviction after the offence has been committed e.g. concealing a weapon used in the offence

offence must be a serious indictable offence: CA ss 4 and 347

liability is derivative

Physical element: proof that the person assisted the principal to escape conviction, involving more then mere receipt or enjoyment of the proceeds: R v Barlow and Maguire (1962) 70 WN (NSW) 756

Fault element: knowledge that the principal offender has committed the specific crime with respect to which the accused is alleged to be an accessory, not just some crime: R v Stone [1981] VR 737


According to Hayes & Eburn there are four levels of Joint Criminal Enterprise, discussed on page 462 of (points 3,5,6,and 7): 3. Principle in the second degree 5. A party with the principal in a JCE to commit that particular crime (straightforward JCE) 6. A party with a principal in a JCE to commit a crime other than a crime with which the accused has been charged, but that the crime falls within the scope (Extended JCE) 7. a party with the principal offender in a JCE to commit a crime other than which the accused has been charged, but the crime falls OUTSIDE the scope, but within contemplation of the accused (Extended common purpose.) This would seem to draw a distinction between Extended JCE and Extended CP, but in many of the cases (and in my lecture notes) these are used synonymously. There is little in the way of agreed terminology in this area. Some lawyers, judges, academics talk about common purpose whilst others talk about JCE. So don't get too hung up on the labels. If you correctly state and apply the principles that is what counts. If 2 or more offenders commit a crime together - ie they each have the intent to commit the crime and between them they perform the physical elements of the crime - they will each be liable as principals. Liability is not derivative. Ditto if they are acting in concert that is, according to a preconceived plan to commit the crime where one performs the physical elements and the other(s) is present. Hence in Osland, the liability of Heather (the mother) was not dependent on the guilt of the son. Principle in the 2nd degree intentionally assisting or encouraging commission of the crime at the scene, so presence of secondary offender required coupled with knowledge of all the essential facts constituting the crime, including the fault element. Ditto for an accessory before the fact where presence not required. No agreement to commit the crime need be proved, but note the restrictive fault element. Now to JCE (or common purpose). The doctrine extends liability to a secondary offender in two important sets of circumstances where agreement to commit a crime can be established. To avoid the terminological difficulties consider first the Johns principle. Under Johns liability extended to secondary offender (here an accessory before the fact) in relation to an incidental crime falling within the scope of the JCE, that is a crime that was contemplated by the parties as one that might be committed in the course of carrying out the JCE. Without the JCE Johns could not be found guilty as an accessory unless the restrictive fault element proved, being knowledge of all the essential facts etc (see above). Secondly, consider McAuliffe. JCE extends liability of secondary offender to a crime that although it fell outside the scope of the JCE was one which the individual accused foresaw might be committed as an incident of carrying out the JCE. In distinguishing the principles of Johns from McAuliffe, I understand that Johns' prior knowlege that Watson was armed and short tempered as what could be foreseen as a possible outcome of the foundational offence. In McAuliffe one of the brothers did not know that the other two were armed. Is this the difference? In one case an agreement to commit armed Robbery has resulted in a murder, whereas in the other an agreement to 'roll' some people has turned into murder. Is there a clear way to define what is within the scope of a foundational offence and what is not? ,


In Johns the agreement was to commit a (violent) robbery. On the facts it was found that it was within the joint contemplation of the parties that carrying out this crime might entail the killing of the victim. Thus the crime actually committed was within the scope of the common purpose/JCE, even if it was not the primary intention. The scope of the JCE is governed by what was jointly contemplated by the parties as something that might happen. In McAuliffe the focus is on what the individual accused foresaw might happen as an incident of carrying out the common purpose/JCE. It extends liability of a secondary offender in relation to a crime committed by the principal that was outside the scope of the common purpose/JCE if s/he (the secondary offender) foresaw the possibility of it being committed. The scope of the JCE/common purpose in any given circumstance will generally be a matter of inference from all the facts - the presence of a loaded gun, the rather clear division of labour and so forth in Johns compared with the more casual, vague, opportunistic nature of the JCE in McAuliffe.


Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) police investigative processes in outline Power to question The concept of reasonable suspicion Powers of search without warrant Investigation under warrant Search warrants Investigating crime police may observe the offence/offender no investigation as such = proactive

information of an offence may be provided by a victim or witness investigate to detect the offender = reactive

police may identify a suspect investigate to gather evidence of an offence & incriminate the suspect = proactive Police powers of investigation: asking questions


At common law a citizen was not legally obliged to answer police questions & there was no power to compel cooperation in the investigation of a crime: Rice v Connolly [1966] 2 QB 414

Now see Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), s 11 police officer may request name and address of a person who s/he reasonably suspects may be able to assist in the investigation of an alleged indictable offence

a wide & increasing range of statutory powers to stop & search (text p507-8)

Common legal standard governing exercise of such powers is suspicion on reasonable grounds (reasonable suspicion) Suspicion on reasonable grounds What is a (reasonable) suspicion? See George v Rockett (1990) 170 CLR 104

a state of conjecture or surmise where proof is lacking: I suspect but I cannot prove: Hussien v Chong Fook Kam [1970] AC 942

Less than proof beyond a reasonable doubt but more than mere idle wondering more than a reason to consider or look into the possibility of its existence: Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 cited in George v Rocket (1990) 170 CLR 104 Objective test Reasonable grounds introduces an objective test a standard that is open to challenge & review by a court a suspicion may be genuinely held but not reasonable

R v Rondo (2001) 126 A Crim R 562 reasonable suspicion involves less than a reasonable belief but more than a possibilityA reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence


Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value.

What is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he did so.. Legal consequences If search unlawful, evidence obtained as a result may be inadmissible

Other charges e.g. hinder police, resist arrest, etc. may be dismissed

May be grounds for civil action for false imprisonment

Powers of Search without warrant Police have extensive statutory powers to stop and search citizens

reasonable suspicion the standard

What constitutes a search? See Darby v DPP (2004) 61 NSWLR 558 (police dog pushing against the appellant and putting its nose in his pocket constitute a search?)

Use of sniffer dogs now authorized & governed by legislation: LEPRA ss 145-150 Investigation under Warrant warrants to undertake a range of investigative procedures, including interception of telephone calls, post and other forms of private communication enter and search premises 90

enter premises to investigate or prevent a domestic violence offence establish a crime scene and exercise further investigative powers in respect of it authorize an internal search to detect drugs authorize the taking of samples for DNA testing Use of surveillance devices: Surveillance Devices Act 2007 (NSW)

A warrant usually a court order authorizing police conduct of some kind

Expanding use & weakening of legal safeguards by allowing agencies other than a court to issue warrants e.g. new Commonwealth powers to conduct secret searches of homes, computers, etc. under warrant issued by the head of a police service or security agency; police lock down powers in NSW (Law Enforcement Legislation Amendment (Public Safety) Act 2005, forming Part 6A of LEPRA) Search Warrants (LEPRA ss 46-80) allows police to search premises to find evidence connected with an indictable offence

Authorizes police to enter premises, using such force as is reasonably necessary to conduct the search

Police maysearch people seize evidence of offences other than the one listed in the warrant

Police are required to not enter at night (unless specifically authorized): cf Carroll v Mijovich (1991) 25 NSWLR 441 on reasons for this ask to be allowed entry (unless urgent circumstances necessitate otherwise) give the occupier written notice of their right to search 91

Applying & interpreting law of search warrants Role of issuing justice & rule of strict compliance: Crowley v Murphy (1981) 34 ALR 496 Lockhart J ..the justice must act judicially; he must consider whether what is alleged in the information before him provides reasonable ground for suspecting that there is in the house, vessel or place to be searched anything of the kind mentioned in[the relevant section]. He cannot properly come to this conclusion unless the grounds of suspicion are disclosed by the informant. It is the justice himself who must be satisfied, not the policeman who gives the information on oath. The justice must not act as a mere rubber stamp for the police. He must ensure that a finding of reasonable grounds is supported by credible facts and circumstances..

Also see Carroll v Mijovich (1991) 25 NSWLR 441(failure to make a record fully stating reasons for issuing a warrant: see now LEPRA s 65)

Judicially developed rules of strictness must give way to clearly stated legislative intent: State of New South Wales v Corbett [2007] HCA 32

Kuru v State of New South Wales [2008] HCA 26 lawful entry for investigation without warrant

Commencing Proceedings & the Law of Arrest Commencing proceedings All criminal proceedings in NSW are now commenced by Court Attendance Notice (CAN)

Police may issue a CAN on the spot investigate, then complete a CAN & serve it (akin to the old summons but simpler) 92

file a CAN in court & apply for an arrest warrant

A CAN must describe the offence, briefly stating the particulars include the name of the prosecutor specify date, time and court at which accused is required to appear (unless an arrest warrant issued or bail refused) Criminal Procedure Act 1986 (NSW) s175(3) Arrest powers: LEPRA Police (under s 99(1)) & citizens (under s 100) may arrest without warrant a person in the act of committing an offence a person who has just committed an offence a person who has committed a serious indictable offence for which s/he has not been tried

A police officer (under s 99(2)) may arrest a person if the officer suspects on reasonable grounds that the person has committed an offence

Section 99(2) applies to any offence is discretionary requires the exercise of a personal discretion by the officer based on her/his knowledge reviewable by a court

Note: Police may also arrest under warrant

Arrest only in certain circumstances (s 99(3)) 93

A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds it is necessary to achieve one or more of the following purposes:

(a) to ensure the appearance of the person before a court in respect of the offence, (b) to prevent a repetition or continuation of the offence or the commission of another offence, (c) to prevent the concealment, loss or destruction of evidence relating to the offence, (d) to prevent the harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence, (e) to prevent fabrication of evidence in respect of the offence, (f) to preserve the safety or welfare of the person. Purpose of Arrest (s 99(4)) 99(4) A police officer who arrests a person must as soon as reasonably practicable take the person before an authorized officer to be dealt with according to law.

Cf Williams v The Queen (1986) 161 CLR 278; Zaravinos (2004) 62 NSWLR 58

An arrest is unlawful where not for the purpose specified under s 99(4): Zaravinos (2004) 62 NSWLR 58)

What is reasonable? Nasr [2007] NSWCCA 101 Arrest lawful but improper DPP v Carr (2002) 127 A Crim R 151 it is inappropriate for powers of arrest to be used for minor offences where the defendants name and address are known, there is no risk of him departing and there is no reason to believe that a summons will not be effective. Arrest is an additional punishment involving deprivation of freedom and frequently ignominy and fear. The consequences of the employment of the power of arrest unnecessarily and inappropriately and instead of issuing a summons are often anger on the part of 94

the person arrested and an escalation of the situation leading to the person resisting arrest and assaulting the police. The pattern in this case is all too familiar. It is time that the statements of this Court were heeded.

Also see DPP v AM (2006) 161 A Crim R 219

Arrest under warrant Upon filing a CAN police can apply to an authorized officer for a warrant

Authorized officer may issue a warrant if satisfied there are substantial reasons to do so and that it is in the interests of justice to do so (Criminal Procedure Act 1986 (NSW) s181(2) & cf consideration of warrants in lecture 19)

Magistrate may issue an arrest warrant if a person fails to appear at court when directed to be a police CAN

A warrant authorizes other police officers who may have no personal knowledge of the grounds (no reasonable suspicion), to arrest the person What is an arrest? Arrest is a deprivation of personal liberty essence is compulsion: Alderson v Booth [1969] 2 QB 216; Donaldson v Broomby (1982) 60 FLR 124

No set process or formula as long as it is made plain to the suspect that s/he is no longer a free person: R v Inwood [1973] 2 All ER 645; R v Donoghue (1988) 34 A Crim R 397

Actual physical seizing or touching is not required

Arrestor must communicate to the person that s/he is under compulsion & may do so by words alone as long as the person submits to the compulsion 95

Reasons for arrest A person is entitled to know on what basis s/he is being deprived of liberty

For an arrest to be lawful a person must be told why they are under arrest: Adams v Kennedy [2000] NSWCA 152; Christie v Leachinsky [1947] AC 573; State of NSW v Delly [2007] NSWCA 303

It is a requirement of substance, not form precise or technical language is not required

Exceptions where the reason is obvious from the circumstances where the person makes it impossible to communicate the reason: Johnson v Reeves [2004] TASSC 110

Entry to premises Police may enter premises to effect an arrest: LEPRA s10(1); Lippl v Haines (1989) 18 NSWLR 620

Officer must believe on reasonable grounds that the person to be arrested is on the premises (s10(1))

Subject to general safeguards (s201), including requirements to identify themselves as police officers explain reasons for seeking entry warn that non-compliance may constitute an offence


Safeguards do not apply if an officer believes on reasonable grounds that it is not reasonably practicable to comply because of the seriousness and urgency of the circumstances (s202) Use of force Reasonable force may be used to effect an arrest (Turner [1962] VR 30; LEPRA s 231)

Procedures after Arrest the Suspect in Police Custody Police powers

of search incidental to arrest (LEPRA ss 23-24, 30-34),

to detain for investigative purposes (LEPRA part 9), and

to conduct certain forensic procedures (Crimes (Forensic Procedures) Act 2000 (NSW))

Also statutory rights of suspects in police custody under LEPRA Part 9 Search at the time of & after arrest Police may search a person who is in lawful custody if the officer reasonably suspects it is prudent to do so to ensure the person is not armed with something that would present a danger to any person or could be used to escape or (in the case of a person arrested for an offence) to collect evidence: LEPRA s 23; Clarke v Bailey (1933) 33 SR (NSW) 303

Police may search a person who is in lawful custody and seize anything found: LEPRA s 24


Search means a frisk search (s 30) or strip search (s 31). A strip search may only be carried out where a police officer suspects on reasonable grounds that it is necessary & that the seriousness & urgency of the circumstances require it

See ss 32-34 in relation to conduct of searches Detention for investigation At common law police could not detain a person for the purposes of investigating whether the person had committed an offence (Williams (1986) 161 CLR 278) cf s 99(4)

Statutory provision now exists to detain for purposes of investigation under LEPRA Part 9 LEPRA Part 9 Detention for Investigation Dalley (2002) 132 A Crim R 169 (text p542)

Widens the definition of an arrested person to combat the ruse of assisting police with their inquiries: s 110(2)

Permits detention of an arrested suspect for a period (investigation period) that is reasonable in all the circumstances up to a maximum of 4 hours: s115

Reasonable? S 116 provides a non-exhaustive list of factors to be considered

investigation period excludes time outs: s 117

On application to an authorized justice a detention warrant may be Issued to permit extension of the investigation period up to a further 8 hours

Part 9 does not add to police powers of arrest: Dungay (2001) 126 A Crim R 216 98

Rights of suspects in custody LEPRA Part 9 to communicate with a friend, relative, guardian, independent person and/or legal practitioner: s 123

for foreign nationals to access consular officials: s 124

right for friend, relative or guardian to be informed that a person is in custody & their whereabouts if they inquire: s 126

to an interpreter: s 128

to medical assistance: s 129

to reasonable refreshment & access to toilet facilities: s 130

Investigative procedure not required to be deferred for more than 2 hours to allow attendance by friend, etc: ss 123(8), 124(6)

Rights of suspects in custody LEPRA Part 9 ss 123, 126 rights (except as regards access to a lawyer) may be withheld if the custody manager reasonably believes it is likely to result in destruction of evidence, the escape of an accomplice, hindering recovery of person or property or injury to any person: s 125

Separation of custodial and investigative roles of police - custody manager responsible to ensure a suspect is informed of their rights, their exercise facilitated, suspect cautioned on the right to silence and that custody records maintained: ss 122, 133


Vulnerable Persons (LEPRA Regulations, Div 3)

Modify application of Part 9 in relation to vulnerable persons: children, persons with impaired intellectual or physical functioning, ATSI, NESP

Right to have a support person present

Duty of custody manager to contact relevant persons (person responsible for welfare, ALS)

Custody manager must assist vulnerable person to exercise rights under Part 9 Forensic procedures Medical examination of a person in lawful custody: LEPRA S 138 LEPRA does not permit the taking of body samples for DNA analysis Crimes (Forensic Procedures) Act 2000 (NSW) enacted to allow samples (swabs, hair, blood, etc) to be taken from suspects for analysis

Crimes (Forensic Procedures) Act 2000 (NSW) Forensic procedures distinguish between intimate and non-intimate procedures different mechanisms for authorizing the exercise of the powers depending on the nature of the procedure (whether intimate or non-intimate) and age/capacity/status (under arrest or not) of the person, either by informed consent by order of a senior police officer by order of a magistrate See s 5 (summarized p546) Orban v Bayliss [2004] NSWSC 428 (Simpson J)

The Act 100

conferred new and unprecedented powers upon, inter alia, magistrates that would have the result of compelling persons suspected of criminal offences (including those against whom charges have not been laid) to cooperate in the investigation of the crime(s) of which they are suspected, and to provide, from their own bodies, evidence which may be used against them (and which, of course, may also be used to exonerate them).

the purpose of the Act is limited to obtaining evidence against a person who is already a suspect; it is not to identify a person as a suspect Magistrates orders Magistrates decision to compel forensic procedure depends on a balancing of competing public interests: the public interest in obtaining evidence that may link a suspect with an alleged offence and the public interest in safeguarding the individuals physical integrity: ss 23-24 Forensic procedures & taking photographs

taking of a photograph of a part of the body (other than private parts) defined as a non-intimate forensic procedure (s 3)

Mullins v Lillyman [2007] NSWSC 407 Evidence obtained in Breach of the Act

In general inadmissible, although discretion to admit if the desirability of doing so outweighs the undesirability of admitting evidence not obtained in compliance with the Act: s 82

R v White [2005] NSWSC 60 - cigarette butt discarded by suspect arrested on other matters, permitted to smoke & told where to dispose of the butt

R v Kane (2004) 144 A Crim R 496