Criminal Law Notes

Indigenous Australians & the criminal justice system:

Who is an Indigenous Australian Also known as Aboriginal, not defined by skin colour, facial characteristics or lifestyle. Instead by whether the person is of Aboriginal decent; and the person identifies as Aboriginal; and the person is accepted as Aboriginal by the community (Stubbs 1997) Policies: Dispossession: Separation from the land which impacted many towards identity as the Dreaming was a key factor into spirituality through connection to the land. Destructive effect on Aboriginal spirituality Loss of connection led to the burden of not being able to fulfil ritual responsibilities, separation from kinship groups, and loss of language which overall effectively means the loss of ability to pass on beliefs has been destroyed. Protection policy: Push for civilisation, aim was to remove them from unsuitable environments and place them in Christian missions and governments reserves. This was hope that the policy would isolate them from the rest of the community so their culture would die out. This destroyed childrens cultural identity as they were unable to maintain practices and rituals Assimilation policy: (Began in mid twentieth century) took Aboriginals especially half-caste and attempted to assimilate them into the white community. This was in hope that they would forget their cultural identity. They were expected to master social skills of White Australians but this became problematic in circumstances of equality to education and employment rights Stolen Generation: Removal of Aboriginal Children from their homes (1900-1972) by Government and church missionaries. In hope to assimilate these children into White Australian society with the motive that they would be bred out as many was half-caste. Impact: Some were well treated others experienced maltreatment, sexual exploitation and humiliation. The effect of their removal deprived them form ability to retain their cultural identities which resulted in them being unable to learn or fulfil their responsibilities Terra Nullius: Land belonged to no one, no laws of their own or ownership of the land. However in 1992 Mabo v Queensland (no2) the HC overturned Terra Nullius stating that in todays society it is vital that common law should neither be nor be seen to be in a frozen age of racial discrimination.

Events: Mulrunji's death and all deaths in custody have had a profound impact. This man carried within him songs, stories, dreaming that belonged to his country, and all that was obliterated when he was killed on that floor. (Sam Watson Snr, Brisbane Aboriginal community leader) (Top cop must go: Watson, Koori Mail 477 p. 12) Black Velvet: Frontiersmen wanting to be in complete power over Aborigines Abduction of black women in all parts of Australia in early years up until 1930-40s The Normantor Protector of Aborigines explained in 1904 that it was a common practice for Europeans, accompanied by Aboriginal stock boys to round up small mobs of wild natives and despoil their women Racist ideologies applied to Aborigines; sub-humans- describe the murder Royal Commission into Aboriginal Deaths: Past has impacted the Australian Human Rights and Equal Opportunity Commission conducted a comprehensive inquiry into the stolen generations leading to Bringing them home report of the national inquiry into the separation of Aboriginal and Torres Strait Islander Children from their families 1997. Page 1 of 19

Malcom Charles Smith (1989): Case that depicts unjustifiable treatment by the system Smith was an Aboriginal prisoner in the Malabar Assessment unit, he was found in a cubicle with the handle of a paint brush driven through his eye He was away from his family at 11 and was taught a model of human life on dominance and subservience and released at 19. During his time he had experienced a law system with no rights, no representation and no consideration. Thus, his death is part of an abiding legacy of appalling treatment of Aboriginals This case shows the link between penalty and welfare in the force of removal from his parents (Stolen Generation: Penal welfarism) Mr Ward Indigenous elder, died in WA January 2008 whilst in custody A Justice of Peace refused him bail so the next day he was to be transported to Kalgoorlie, 360km south, for a scheduled court appearance the following week =3hrs and 45mins He was placed in steel cell of an aging prison van in 42 degree heat and only given a 600ml bottle of water. The two prison officers driving the van did not make any comfort breaks or checks on Mr Ward They didnt check or stop until they heard a thump and discovered Mr Ward had collapsed. He died of heatstroke which could have been prevented Inquest into his death found the transport company and the Western Australian Department of Corrective Services were collectively responsible for his death The doctor who opened the door of the van to extract Mr. Ward told the inquest that it felt like a blast from a furnace as the air escaped from the tiny steel cell pod. Evidence shows Mr Ward suffered third degree burns to his upper torso after falling onto the hot surface of the steel cell Was foreseeable and preventable Improvements: Padding I n seats, seat belts, grab rails, air conditioned, G4S (now GSL) received limited training so improve it Mulrunji: November 2004 There had been a problem for three Aboriginal women (sisters), claimed de-facto husband assaulted them all with one badly injured having to be airlifted to hospital Patrick Bramwell was outside the house intoxicated, senior sergeant Hurley arrested him Mulrunji had been walking past when this occurred they knew each other. He commented directly to Lloyd Bengaroo, challenging him as to why he should help lock up his own people. He was also intoxicated. Lloyd advised him to walk down the road or he too would be locked up Cause of death was intra-abdominal haemorrhage, due to the ruptured liver and portal vein Inquest into his death 2010 May14th: Liver was the result of forceful pressure being applied to the front of the upper abdonmen or stomach area. Force squeezed the liver by pushing it up against the front of the spine so that it was nearly split in half There was no medical evidence to suggest the use of direct force in the nature of punching, kicking or stomping because there was no bruising that support that possibility No evidence to find Senior Sergeant Hurley made a conscious choice to apply the necessary force during the fall Evidence that fall was sudden and uncontrolled Senior Sergeant Hurley then punched Mulrunji three times to the face before dragging him into the cells Shane Atkinson: Was distressed in police van, yelling, throwing himself against and kicking the sides of the van Threatened to hang himself in cells, resulted in 20min checkups 2hrs 25mins after he was put in cell no one checked up on him, he was found hanging Check every 15min during 1st 2hrs then no more then hour

Impact of policies: Page 2 of 19

Their treatment today especially in the over representation in the criminal justice system It is through past government policies that have shaped their perceptions of the justice system. Its assumed the only reason Aboriginals are over represented is because they commit more offences. There are two broad causes of overrepresentation: 1. Underlying causes and issues within the CJS 2. Underlying is of historical factors and contemporary socio-economic disadvantage Forcible resettlement Breaking up families and communities by removal of children Removal from family and institutionalisation in juvenile homes cut children from protection and influence from families. Removal attempted to wipe out Aboriginality, loss of personal identity and security

Other cases of deaths occurring in police custody: o Mulrunji Doomadgees death: Shows how the past impacts Aboriginals today through the inquest of this death He died on 19th of November 2004 whilst in police custody on Palm Island, QLD He was walking past an incident while under the influence of alcohol and made a comment, the police officer told him to continue walking or he would be locked up elite Arrest was unjustified as he was unknown by the senior officer thus indicating he wasnt a trouble maker There was no evidence discovered that Senior Sergeant Hurley made a conscious choice to apply the necessary force during the fall. In the conclusion to the 2010 inquest it was found that the judge was unable to make a definite finding and had the opinion that an open finding would be more appropriate. If the two witnesses had not continually changed their versions and fabricated evidence then it would have been possible to make a proper judgement. Facts about deaths in Police Custody from Royal Commission: 379 Aboriginal people who died in custody between 1980-2007, close to 18% of all deaths in custody at the time. ('Deaths inquiry needed', reader's letter, Koori Mail 489 p.25) Number of deaths in custody in 2008 = 13, 15% of all deaths ('Mixed findings in deaths report', Koori Mail 492 p.10) Aboriginals are only 2.3% of people in the population of Australia. Rate of Indigenous imprisonment is now more than 13x higher than non-Indigenous Australians. (NSW Bureau of Crime Statistics and Research, August 2009) Deaths that occurred in prison custody 30% involved unconvicted prisoners being held on remand (textbook) Anything which indicates prior involvement with the criminal justice system, or symptoms of rootlessness as dysfunctional family situation, can lead to police adopting arrest and detention procedures rather than proceeding by summons or caution (Australian Institute of criminology trends and issues in crime and criminal justice) Judges consistently behave as though someone who comes to court from a jail cell is more apt to be guilty, and to deserve harsher treatment, than is a comparable defendant who walks into court off the street because he has been free on bail. (Australian Institute of criminology trends and issues in crime and criminal justice) The last key issue to be discussed is the colonial legal theory, as NSW was a settled colony rather than one which was acquired by conquest or treaty (Brown, Farrier, Neal & Weisbrot 2011). Steps to improve: Risk factors, system approvals, address history resilience, cultural competence, drug and alcohol problems Better training will enable many government employees to gain better skills to hear and understand what the Aborigines are saying (system improving) such as time an officer should check someone in a cell Push to emphasise the cultural competency and training is by RCADC and Little Children are Scared Inquiry Cultural competence training (CCT) is more effective within a broader context of commitment by appropriate service delivery and appropriate workplace. It is also necessary to have cross-culture awareness which is ability to see a situation from both perspectives.

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By learning these values especially for lawyers it will help the ability to communicate with clients. Thus, adequate training of those with authority will decrease pursue on Indigenous individuals and better their behaviours when dealing with offending Indigenous people.

Family violence: Facts and figures: Relationship between alcohol, drugs and abuse - Based on the National Drug Strategy Household Survey (2006) 42% of indigenous people had been either verbally abused, physically abused, or put in fear by some-one under the influence of alcohol in the 12 months prior to the survey. 21% reported that in the last 12 months, they had experienced one of these forms of abuse by a person under the influence of illicit drugs. Under the influence of alcohol and drugs, indigenous people identified verbal abuse more than physical abuse Verbal abuse by person under alcohol influence 38%, verbal abuse by person under drugs 17% Child abuse and neglect Australian Institute Of Health and Welfare (2003) reported that for 2001-2002, child protection services found that 3,254 indigenous Australian under the age of 17 years had been abused. 4.3 times higher than nonindigenous children. Neglect 34%, physical abuse 28%, sexual abuse 30%, emotional abuse 8%

Past impact: Sentencing: Aboriginal people are subject to the protection and sanction of the criminal law in the same way as other members of the community. In Mabo v Queensland (No 2),39 the High Court considered recognition of Aboriginal criminal law as an alternative body of law operating alongside the Australian common law. (Walker v New South Wales (1994) 182 CLR 45. See S Yeo, Case Note: Walker v New South Wales (1995) 19 Criminal Law Journal 160) Under the common law, the mere fact that an offender is an Aboriginal person is, of itself, irrelevant to sentencing. To discriminate on the grounds of race in sentencing an offender would violate the fundamental principle of equality before the law, and, in some circumstances, might also contravene section 9 of the Racial Discrimination Act 1975 (Cth). (R v Rogers and Murray (1989) 44 A Crim R 301 at 307 (Malcolm CJ).) Nevertheless, the Aboriginality of an offender in a particular case may have a bearing upon the question of sentence. circumstances for considering Aboriginality as a relevant factor in sentencing are considered extensively by Justice Wood in R v Fernando: It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand with Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment.

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ASSAULT:
Common Assault: (non-physical assault)
S 61 Common assault prosecuted by indictment : Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years. Assault: Is constituted by an act which intentionally or recklessly causes another to apprehend immediate and unlawful violence [R v Venna (1976)] [R v Knight]. Cant occur unless or until V is aware of the accuseds actions [Premble v R (1971)]

o I.

Actus Reus: Act/Omission

D does an act which causes V to apprehend immediate and unlawful contact [Fagan v Police commissioner] & [Macpherson v Brown] ; No need to fear contact [Brady v Schatzel] Immediate apprehension, can include continuing apprehension if apprehension is kept alive in Vs mind of future violence (Zanker v Vartzokas); OR II. Apply unlawful contact against Vs person without Vs consent [Fagan (1969)]

o Mens Rea: (Mental/thinking component)

Is intentionally or recklessly: Creating an apprehension in V of immediate unlawful contact; OR Effecting unlawful contact against Vs person. [Fagan (1969)] I. Intention: In battery assault, it is unnecessary that the intentional application of force be accompanied by hostility [Boughey 1986] Recklessness: The standard for reckless assault is that of possibility rather than probability [Coleman (1975)] [MacPherson v Brown (1975)] D must subjectively recognise the risk i.e. Mere inadvertence to the risk is not sufficient [MacPherson v Brown (1975)]

II.

NON PHYSICAL ASSAULT: Positive Act An omission to act does not constitute an assault: [Fagan (1969)] D must have committed a positive act; e.g. a threatening gesture: [DPP v Roger (1953)]; [Hall v Fanceca (1983)] The mere use of words may constitute a positive act [Knight (1988)] Vs state of mind V must actually have been put in fear of imminent violence [MacPherson v Brown (1975)] Therefore there is no assault where the intended V is unaware of Ds act [Pemble (19710] Imminence V must apprehend imminent violence [Zanker v Vartzokas (1988)] Thus generally, threats of future violence will not amount to an assault [Knight (1988)] However, the courts have interpreted imminent as to not necessarily exclude threats of future violence [Zanker v Vartzokas (1988)] Infliction of harm as a result of physical assault Page 5 of 19

 D may be charged with assault occasioning ABH (s59) if Ds psychic assault causes V to act in such way as to inflict GBH [Zanker v Vartzokas (1988)] Mens Rea for assault occasioning ABH is the same as that for common assault

Battery: (Physical assault):

Battery: Involves the actual infliction of unlawful force on another be it even so small. Force isnt unlawful if it falls within what may be regarded as an incident or ordinary social intercourse such as patting another on the shoulder to get their attention or pushing to alight on a bus.

o Actus Reus:
I. Application of unlawful contact Physical Element: D does act, causing contact with V [Collins] no need to cause harm any contact however slight can satisfy A/R [Collins] Use of force doesnt need to be violent or for injury to result, mere touching is sufficient [Wilcock (1984)] Without lawful authority e.g. lawful arrest, lawful chastisement (verbal abuse) of child Application of force must be direct i.e. must be aimed at V or an object which V is supported [Salisbury (1976)] [Collins v Wilcock] Appellant was convicted of assaulting a police officer, she claimed it was self defence as the arrest was unlawful she had scratched him when he tried to question her touching person for the purpose of engaging their attention is not battery, in fact persistent touching may transcend normal actions of implied consent to risk bodily contact. Robert Goff LJ Test has it gone beyond generally acceptable standards of conduct. OR II. Without consent of V Physical Element: Without consent, some consent is implied e.g. everyday contact in society [Collins] Law doesnt recognise Vs consent to bodily harm [Brown (1994)] except: Contact sport, surgery, lawful correction, dangerous pastimes (bravado, mortification), rough horseplay, medical procedures, prostitution, piercing, tattooing and prize-fighting such as boxing [R Wilson] Consensual activity between husband and wife, in the privacy of the matrimonial home, is not a proper matter for criminal investigation or prosecution [R v Emmet] Was held that consent was not a defence to two counts of assault occasioning in actual bodily harm. Even thought it was between husband and wife

o Mens Rea (M/R doesnt need to occur at beginning of A/R, can at any point in a continuing A/R [Fagan])
I. Intentionally apply unlawful contact II. Recklessly apply unlawful contact Physical Element: Recklessness in causing contact. D foresaw possibility of causing contact but acted anyway [Williams] A threat to strike a person even at a distance even as to make it impossible may constitute an assault if it instills fear of immediate violence in the mind of the hearer [R v Moistun] Fault Element: Inadvertent: Not resulting from or achieved through deliberate planning; unintentional [R v Williams] Advertant: Giving attention to [R v Williams] Page 6 of 19

[Venna] As per James LJ -The M/R in the offence of battery is satisfied by proof that D intentionally or recklessly applied force to the person of another a person who recklessly applies force to another will not fall outside the criminal law of assault [R v Williams] As per Badgery-Parker J A person is said to be reckless who acts without regard to the possible consequence of the act in question. It may be deliberate that is the assailant intended to strike the complainant or reckless that is the assailant struck out foreseeing or knowing that he might hit somebody and not caring if he did S4A Recklessness: For the purposes of this Act, if an element of an offence is recklessness, that element may also be established by proof of intention or knowledge.

33 Wounding or grievous bodily harm with intent: (1) Intent to cause grievous bodily harm A person who: (a) wounds any person, or (b) causes grievous bodily harm to any person, with intent to cause grievous bodily harm to that or any other person is guilty of an offence. (Maximum penalty: Imprisonment for
25 years)

(2) Intent to resist arrest A person who: (a) wounds any person, or (b) causes grievous bodily harm to any person, with intent to resist or prevent his or her (or another persons) lawful arrest or detention is guilty of an offence. (Maximum
penalty: Imprisonment for 25 years.)

(3) Alternative verdict If on the trial of a person charged with an offence against this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against section 35, the jury may acquit the person of the offence charged and find the person guilty of an offence against section 35. The person is liable to punishment accordingly.

S35 Reckless grievous bodily harm or wounding:

(1) Reckless grievous bodily harm-in company A person who, in the company of another person or persons: (a) causes grievous bodily harm to any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. (Maximum penalty: Imprisonment for 14 years.) (2) Reckless grievous bodily harm A person who: (a) causes grievous bodily harm to any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. (Maximum penalty: Imprisonment for 10 years.) (3) Reckless wounding-in company A person who, in the company of another person or persons: (a) wounds any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. (Maximum penalty: Imprisonment for 10 years.) (4) Reckless wounding A person who: (a) wounds any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. (Maximum penalty: Imprisonment for 7 years.) (5) Alternative verdict If on the trial of a person charged with an offence against any subsection of this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against any other subsection of this section (that carries a lesser maximum penalty), the jury may acquit the person of the offence charged and find the person guilty of an offence against that other subsection. The person is liable to punishment accordingly.

The person is liable to punishment accordingly:

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.

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(not part of act) Need not to be permanent but more than transient/trifling. [R v Donovan] S4: Definitions: "Grievous bodily harm" includes : (a) the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm, and (b) any permanent or serious disfiguring of the person, and (c) any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease).

[R v Williams (1990)] It was held that there was no intention to prove actual bodily harm if assault (battery) took place and actual bodily harm was the consequence, the offence was made out without the need to establish any fault element other than the necessary intent or foresight to, for common assault. [R v Shepard (2003)] A wounding is generally assumed to be the infliction of an injury which breaks the continuity of the skin [Dpp v Smith] GBH is harm of a really serious kind in [R v King] killing of the foetus was held to amount to infliction of GBH on the mother
S55 Possessing or making explosives or other things with intent to injure: Whosoever knowingly has in his or her possession, or
makes, or manufactures, any gunpowder, explosive substance, or dangerous or noxious thing, or any machine, engine, instrument, or thing: (a) with intent by means thereof to injure, or otherwise commit a serious indictable offence against the person of any one, or (b) for the purpose of enabling another person to injure, or otherwise commit a serious indictable offence against the person of any one, (shall be liable to imprisonment for 10 years)

S58 Assault with intent to commit a serious indictable offence on certain officers:

Whosoever: assaults any person with intent to commit a serious indictable offence, or assaults, resists, or wilfully obstructs any officer while in the execution of his or her duty, such officer being a constable, or other peace officer, custom-house officer, prison officer, sheriffs officer, or bailiff, or any person acting in aid of such officer, or assaults any person, with intent to resist or prevent the lawful apprehension or detainer of any person for any offence, (shall be liable to imprisonment for 5 years.)

S60 Assault and other actions against police officers:

(1) A person who assaults, throws a missile at, stalks, harasses or intimidates a police officer while in the execution of the officers duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 5 years. (1A) A person who, during a public disorder, assaults, throws a missile at, stalks, harasses or intimidates a police officer while in the execution of the officers duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 7 years. (2) A person who assaults a police officer while in the execution of the officers duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years. (2A) A person who, during a public disorder, assaults a police officer while in the execution of the officers duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 9 years. (3) A person who by any means: (a) wounds or causes grievous bodily harm to a police officer while in the execution of the officers duty, and (b) is reckless as to causing actual bodily harm to that officer or any other person, is liable to imprisonment for 12 years. (3A) A person who by any means during a public disorder: (a) wounds or causes grievous bodily harm to a police officer while in the execution of the officers duty, and (b) is reckless as to causing actual bodily harm to that officer or any other person, is liable to imprisonment for 14 years. (4) For the purposes of this section, an action is taken to be carried out in relation to a police officer while in the execution of the officers duty, even though the police officer is not on duty at the time, if it is carried out: (a) as a consequence of, or in retaliation for, actions undertaken by that police officer in the execution of the officers duty, or (b) because the officer is a police officer.

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 Aggravated Assault:
There are common assaults and aggravated assaults. Aggravated assaults are offences deemed to be more serious because of the presence of additional or aggravating factors I.

Aggravated Assault with Actual Bodily Harm (ABH) ABH covers any hurt or injury calculated to interfere with the health or comfort of V. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient or trifling [R v Donovan (1934)]
S59 Assault occasioning actual bodily harm:
(1) Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years. (2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 7 years.

ABH has been defined as including any hurt or injury calculated to interfere with the health or comfort of V. Such injury need not be permanent, but must be more than merely transient or trifling: [Donovan (1934)]; [Brown (1993)]. ABH can include shock, hysterical reaction or other psychiatric injury but does not include emotions such as fear, distress or panic nor states of mind that are not themselves evidence of some identifiable clinical condition: [Chan-Fook (1994)]; [ Burstow (1997)]; [Lardner (1998)]. An offence under s59 is further aggravated if it is committed in company s59(2). It is a question of fact for the jury to determine whether an injury amounts to actual bodily harm, the accused doesnt have to intend ABH.
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.

Negligent, the standard of negligence required is that for the offence of manslaughter: [Nydam (1977)]. Criminal negligence is of a very high standard and must show such disregard for the life and safety of others as to amount to a crime. [Bateman (1925)] Mens rea The mens rea for s59 is identical to that of common assault. The prosecution need not prove specific intent to cause ABH: [Coulter (1988)]; [Zanker v Vartzokas (1988)].
33 Wounding or grievous bodily harm with intent:
(1) Intent to cause grievous bodily harm A person who: (a) wounds any person, or (b) causes grievous bodily harm to any person, with intent to cause grievous bodily harm to that or any other person is guilty of an offence. (Maximum penalty: Imprisonment for
25 years)

35 Reckless grievous bodily harm or wounding:

(1) Reckless grievous bodily harm-in company A person who, in the company of another person or persons: (a) causes grievous bodily harm to any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. (Maximum penalty: Imprisonment for 14 years. ) (2) Reckless grievous bodily harm A person who: (a) causes grievous bodily harm to any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. (Maximum penalty: Imprisonment for 10 years.) (3) Reckless wounding-in company A person who, in the company of another person or persons: (a) wounds any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. (Maximum penalty: Imprisonment for 10 years.) (4) Reckless wounding A person who: (a) wounds any person, and

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(b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. (Maximum penalty: Imprisonment for 7 years.)

Malicious D need not intend to cause wounding or GBH; it is sufficient if D intends to injure V, which includes the infliction of minor harm: [Stokes v Difford (1990)]. Thus mens rea for common assault is sufficient. Wounding A wound is an injury which breaks through the whole skin, i.e. both the outer and inner layer of the skin: [Vallance (1961)]. Infliction This has been interpreted as requiring the application of force directly or indirectly to V, provided causation and the positive infliction of injury can be established.

Consent Assault:
Vs consent will relieve D from liability for common assault: [Donovan (1934)]; [Brown (1993)]. The prosecution must prove that V did not consent to the assault: [Clarence (1888)]. Consent may be express or implied: [Collins v Wilcock (1984)]. Physical contact which is an inevitable part of the exigencies of everyday life does not amount to an assault because of implied consent or because there is an exception to assault embracing all contact which is generally acceptable as part of the conduct of daily life: [Collins v Wilcock (1984)]. Consent of V is no defence to assault occasioning ABH or more: [Donovan (1934)]; [Pallante v Stadiums(No 1) (1976)]; [Brown (1993)]., where D branding his initials into his wifes buttocks with her consent and instigation was not an offence. Those who enter into a consensual fight are guilty of assault if they intend to inflict bodily harm: [Coney (1882)] Where it was held that there was no assault in a professional boxing match]. Vs consent to sadomasochistic acts being performed upon him is not a defence to a charge of assault: [Brown (1993)]. However, it has been held that whether consent can be relevant in a case involving infliction of ABH depends upon the particular circumstances of the case and whether Ds act should be considered in the public interest as being criminal: [Wilson (1996)]. Exceptions to ruke that v cant consent to ABH or more: These exceptions are based on notions of public interest or where there is general social approval. Surgery: Surgery performed with the patients informed consent is not an assault despite the infliction of GBH: s49 Minors (Property and Contracts) Act 1970 (NSW). Sport: By engaging in a sport, a player is deemed to accept risks that are inherent in that sport: [Billinghurst (1978)]. A player does not consent to being injured in the course of a game by any act which is not done in legitimate pursuit of the objects of the game: [Stanley (1995)].

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

o I.

Actus Reus:
Act of sexual intercourse took place
61H Definition of sexual intercourse and other terms

(1) For the purposes of this Division, "sexual intercourse" means: (a) sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by:

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(I) any part of the body of another person, or (II) (ii) any object manipulated by another person, except where the penetration is carried out for proper medical purposes, or (b) sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or (c) cunnilingus, or (d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c). (1A) For the purposes of this Division, a person has a "cognitive impairment" if the person has: (a) an intellectual disability, or (b) a developmental disorder (including an autistic spectrum disorder), or (c) a neurological disorder, or (d) dementia, or (e) a severe mental illness, or (f) a brain injury, that results in the person requiring supervision or social habilitation in connection with daily life activities. (2) For the purposes of this Division, a person is under the authority of another person if the person is in the care, or under the supervision or authority, of the other person. (3) For the purposes of this Act, a person who incites another person to an act of indecency, as referred to in section 61N or 61O, is taken to commit an offence on the other person.

II.

Without Vs Consent Prosecution must prove the act of sexual intercourse took place without Vs consent (s61I). It may be expressed by words or conduct [R v Wilkes and Briant (1965)] Not necessary for V to have physically resisted in order to show lack of consent (S61R(2)(d)) Consent is irrelevant where V is under age of 16 (s77(1)). D is liable to imprisonment for 25years (s66A)

S61HA Consent in relation to sexual assault offences

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

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(7) A person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse. (Consent Submission) (8) This section does not limit the grounds on which it may be established that a person does not consent to sexual intercourse.

(Aggravated Sexual assault:)

61J Aggravated sexual assault:
(1) Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years. (2) In this section, "circumstances of aggravation" means circumstances in which: (a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or (c) the alleged offender is in the company of another person or persons, or (d) the alleged victim is under the age of 16 years, or (e) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (f) the alleged victim has a serious physical disability, or (g) the alleged victim has a cognitive impairment, or (h) the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or (I) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence. (3) In this section, "building" has the same meaning as it does in Division 4 of Part 4.

61JA Aggravated sexual assault in company:

(1) A person: (a) who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse, and (b) who is in the company of another person or persons, and (c) who: (I) at the time of, or immediately before or after, the commission of the offence, intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (II) at the time of, or immediately before or after, the commission of the offence, threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or (III) deprives the alleged victim of his or her liberty for a period before or after the commission of the offence, is liable to imprisonment for life. (2) A person sentenced to imprisonment for life for an offence under this section is to serve that sentence for the term of the persons natural life. (3) Nothing in this section affects the operation of section 21 of the Crimes (Sentencing Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment for life). (4) Nothing in this section affects the prerogative of mercy.

o I. II.

Mens Reus:
Intentional act to have non-consensual sexual intercourse S61I (ibid) S61HA (3) (ibid) Recklessness non-consensual intercourse S S61HA (3)(b) (ibid) 61K Assault with intent to have sexual intercourse: Any person who, with intent to have sexual intercourse with another
person: (a) intentionally or recklessly inflicts actual bodily harm on the other person or a third person who is present or nearby, or (b) threatens to inflict actual bodily harm on the other person or a third person who is present or nearby by means of an offensive weapon or instrument, is liable to imprisonment for 20 years.

Fault element: Non-Advertant recklessness: [R vTolmie (1995)] Accused was reckless if he or she realised that the victim might not be consenting to sexual intercourse Tolmie Test: Could a person be reckless ( a subjective test) if he or she didnt think about consent at all, that is, that the person did not know the victim was not consenting and didnt realise the victim might not be Page 12 of 19

consenting because he or she failed to consider the victims consent at all? YES Advertant Recklessness: State of mind required for recklessness by the accused with a determination on the part of the accused to engage in sexual conduct with the victim whether or not they are consenting [R v Banditt (2004)] Facts: Victim had several non-friendly encounters with the accused. He was staying at her house; he then tried to hit on her, she said no and kicked him out. One night he knew the kids were not going to be home, she fell asleep and he had sex with her while she was sleeping. She woke up to realise it was him. Held: (1) In order for an accused person to be liable on the basis of advertant recklessness the possibility that P is not consenting, of which the accused is aware must be more than merely or a bare possibility. (2) The trial judge would be entitled to well the jury that, in determining whether the fact that the appellant believed or might possibly have believed that the complainant was consenting, the jury could determine whether there would have been grounds for such belief. No reasonable grounds for believing the other person consents to sexual intercourse [R v Mueller (2005)]. If the accused was acting recklessly, it must be proved beyond reasonable doubt, that he either realised the possibility that the complainant was not consenting, but went on regardless, or simply failed to consider the question of whether or not she was consenting, and just went on with the sexual act when the risk that she was not consenting would have been obvious to a person of the accused mental capacity Reckless indecent assault extends to both advertent and inadvertent recklessness The appellant was convicted of assaults with acts of indecency in circumstances of aggravation under s61M Appellant indecently assaulted the complainant whilst in a caring institution The issue was whether or not the complainant had the capacity to consent; and if she did, whether or not her consent was freely and voluntarily given

III.

Indecent Assault and Act of Indecency:

S61L Indecent assault: Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits
an act of indecency on or in the presence of the other person, is liable to imprisonment for 5 years.

S61M Aggravated indecent assault:

(1) Any person who assaults another person in circumstances of aggravation, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 7 years. (2) Any person who assaults another person, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 10 years, if the other person is under the age of 16 years. (3) In this section, "circumstances of aggravation" means circumstances in which: (a) the alleged offender is in the company of another person or persons, or (b) (NO B) (c) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (d) the alleged victim has a serious physical disability, or (e) the alleged victim has a cognitive impairment.

S61N Act of indecency:

(1) Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under that age to an act of indecency with or towards that or another person, is liable to imprisonment for 2 years. (2) Any person who commits an act of indecency with or towards a person of the age of 16 years or above, or incites a person of the age of 16 years or above to an act of indecency with or towards that or another person, is liable to imprisonment for 18 months.

61O Aggravated act of indecency

(1) Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under that age to an act of indecency with or towards that or another person, in either case in circumstances of aggravation, is liable to imprisonment for 5 years. (1A) Any person who commits an act of indecency with or towards a person of the age of 16 years or above, or incites a person of the age of 16 years or above to an act of indecency with or towards that or another person, in either case in circumstances of aggravation, is liable to imprisonment for 3 years. (2) Any person who commits an act of indecency with or towards a person under the age of 10 years, or incites a person under that age to an act of indecency with or towards that or another person, is liable to imprisonment for 7 years. (2A) A person: (a) who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under the age of 16 years to an act of indecency with or towards that person or another person, and

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(b) who knows that the act of indecency is being filmed for the purposes of the production of child abuse material, is guilty of an offence. (Maximum penalty: imprisonment for 10 years.) (3) For the purposes subsections (1) and (1A), "circumstances of aggravation" means circumstances in which: (a) the alleged offender is in the company of another person or persons, or (b) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (c) the alleged victim has a serious physical disability, or (d) the alleged victim has a cognitive impairment. (4) For the purposes of subsection (2A): (a) "child abuse material" has the meaning given by Division 15A, and (b) an act of indecency is being "filmed" if one or more images (whether still or moving) of the act of indecency are being recorded or transmitted for the purpose of enabling those images to be observed by any person (whether during the filming or later). Indecency: [R v Harkin (1989)] Per Lee J contrary to the ordinary standards of morality of respectable people

in the community. contrary to the ordinary standards of morality of respectable people in the community. However, indecency must have a sexual connotation.

[R v Harkin (1989)] What is an act of indecency? Facts: The allegation was that he accused assaulted two young girls (11 yrs old) as he put them on his lap to learn to drive and while he was fondling with their breasts. Judgement: Lee J says An act of indecency simply means an act contrary to the ordinary standards of morality of respectable people in the community It was an ingredient to the act that it must have a sexual connotation. Where an assault does not offer a sexual connotation, it must be accompanied by some intention to obtain sexual gratification. [R v Gillard (1999)] What is an act of indecency? Facts: The accused were a married couple convicted of performing an act of indecency when they had consensual sexual intercourse in the presence of the victim (aged 14) and encouraged her to watch and join them. Held: The consensual sexual intercourse was not an act of indecency but when performed in front of the victim, and encouraged her to join and watch becomes an act of indecency. Appeal squashed on other grounds. Conviction and sentence squashed. Ordered new trial. Manson defined an act of indecency under s 61N of the Crimes Act as one which right-minded persons would consider to be contrary to the community standard of decency. Act of indecency towards another person [R v Barass (2005)] discussion of whether an act of indecency required for s61N and 61O must be committed in the immediate presence of the complainant 14. Physical element for indecent Assault The physical element for an indecent assault is an assault coupled with an act of indecency, which may be the assault itself. 15. Fault element for indecent assault - Mens rea of indecent assault (recklessness). [R v Bonora (1994)]: Crown must not only prove the act of indecency, but also the absence of consent in that either the accused knew the victim was not consenting, or was reckless with regard to consent. Facts: Complainant was a rotary exchange student from Holland. She stayed with the appellant and his family. Over a period of 2 months, the appellant allegedly assaulted her by kissing, touching and fondling her on six occasions. She claims she did not consent to his behaviour. The appellant conceded that some of the incidents had occurred but they were with her consent Held: The appellant did intentionally lay his hands on the victim, however it was not done unlawfully as he honestly believed she was consenting. The prosecution could not prove the mens rea of the accused in that the did not advert his attention to her consent, or was reckless in that regard. Appeal allowed acquitted. [Fitzgerald v Kennard (1995)] CCA affirmed this case and applied the reckless non-advertence concept to indecent assault (also used as authority for acts of indecency) Facts: Kennard is an electrician who visits the victims home (17yr old female) to install some power outlets. D proceeds to rub the victims arm, gives her a hug, rubs her back etc meanwhile the victim is getting freaked outshe frozehe subsequently gives her another hug and rubs her butt and legsHe said he gave no thought to whether or not the victim was consenting. He ends up getting charged with indecent assault and convicted Held: Supreme Court says that the Magistrate erred because the magistrate found that the prosecution firstly had to find separate acts of assault and indecency and secondly that recklessness was only proved if the D adverted that the V did not consent or intended to act whether the V consents or notcase goes to NSWCCA and they say that the test of recklessness is the same test in Tolmie even though s61R doesnt apply to indecent assault. Sheller JA agrees with Kirby Ps judgement in Kitchener (1993): To criminalise conscious advertence to the possibility of non-consent, but to excuse the reckless failure of the accused to give a Page 14 of 19

moments thought to that possibility, is self-evidently unacceptable. It was held that necessary intention for indecent assault extended to non-advertant recklessness.

Where an unlawful sexual act is not an act of sexual intercourse within the definition of sexual assault, the act may still constitute an indecent assault. An indecent assault is an assault that is either itself indecent or is accompanied by indecent circumstances: [Beal v Kelley (1951)]. ACTUS REUS: To establish an indecent assault, the prosecution must prove: An assault; The facts must disclose at least a common assault [DPP v Rogers (1953)], i.e. either: intentional or reckless creation of the apprehension of imminent unlawful contact; or battery: intentional or reckless unlawful contact against V. Psychic assault: V must actually have apprehended imminent unlawful contact. Nor is it an indecent assault where D asks V to touch D in an indecent fashion, e.g. to masturbate him: [DPP v Rogers (1953)], However, it is an indecent assault for D to expose himself and approach V stating his intention to have sexual intercourse: [Rolfe (1952)]. Battery Where the alleged assault is in the nature of a battery, any degree of touching is sufficient. There is no requirement that a battery be accompanied by hostility: [Phillips (1971)].

o (1)

(2) In circumstances of indecency; and For an act to be indecent it must have a sexual connotation: [Court (1989)]; [Drago (1992)]. (3) Absence of consent. Where the assault is not of itself indecent, then consent to the assault will prevent it from being an indecent assault despite surrounding indecent circumstances: [R v Sutton (1977)]. o MENS RE (1) D intended to commit an indecent assault, i.e. that D intended to commit an assault that right-minded people would regard as indecent: [Court (1989)]; and (2) D knew that V was not consenting or was reckless as to consent: [Bonora (1994)].

Homicide:

(a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. (b) Every other punishable homicide shall be taken to be manslaughter. (a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section. (b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only.

S18 Murder and manslaughter defined:

Manslaughter:
o Actus Reus: (SAME FOR MURDER) D commits and act/omission that causes Vs death Act or Omission: D can be responsible for causing the death of V with an act or omission. In order to be responsible for an omission, D must have a legal duty to act, rather than a moral duty [Taktak (1988)] OMISSION: The duty must be one connected with life so that the ordinary consequences of neglecting it would be death [R v Pocock] Page 15 of 19

 (a) (b) (c) (d)

D must have owed deceased a DOC [Stone and Dobinson] [Taktak (1988)] DOC is owed in the following scenarios [Jones v USA] Where statute imposes a DOC Where one stand in a certain status relationship to another Where one has assumed a contractual DOC for another Where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent other from rendering aid If facts match, DOC owed and inaction of the D will constitute sufficient AR for murder/manslaughter (provided usual AR principles satisfied too)

Voluntariness: Imports no intention or desire to effect a result by the doing of the act, but merely a choice, consciously made, to do an act of the kind done [Falconer (1990)] Causation: Ds act/omission must cause the death of V. [Royall (1991)] But for test: Causation may be determined by asking whether the consequence would have happened

but for Ds conduct: [Royall (1991)]. If the harm would not have occurred without Ds conduct, then causation is established. If the harm would have occurred anyway, then there is no causation.

Involuntary Manslaughter:
D doesnt satisfy the mens rea for murder o Mens Rea: Unlawful and Dangerous Act:

A/R: Unlawful act causes death [Wilson] Accused must also satisfy M/R for relevant unlawful act Act done in self defence not unlawful [Downes] Some unlawful acts are excluded, e.g. Driving and all omissions M/R: Objective test of whether a reasonable person would have known that he was exposing others to an appreciable risk of serious injury [Wilson] Appreciable risk means a risk that is real or significant, rather than remote of fanciful [Wilson] Serious injury means an injury that is more that trivial or negligible [Wilson] If death is direct and immediate result of unlawful and dangerous act it doesnt matter that the act was not directed at the deceased [R v Mitchell (1983)] TEST: Reasonable man: (a) same age [DPP v Ty] (b) same position [R v Cornelissen] (c) unclouded reasoning power of a healthy and reasonable mind [Willis (1983)] (d) Physical features of the situation, and the physical actions of the accused [Willis (1983)] Whether reasonable person would recognise the act as dangerous in the sense of carrying with it the risk of harm [DPP v Jones] Whether a reasonable person in the accused position would have realised that (in punching the deceased) he was exposing him to an appreciable risk of serious injury [Wilson v The Queen] Criminal Negligence: [Nydan] A/R: Act must be voluntary M/R Objective test of: Whether reasonable person would have appreciated a probability of death or GBH [Nydan] the same age, having the same experience and knowledge, & the circumstances in which found him/herself [Lavender] Whether conduct of the accused fell well below that of the reasonable person [Nydan] Whether conduct was wickedly negligent falling so short of that of the reasonable person that warrants criminal punishment [Lavender] Page 16 of 19

Can be liable for: Statute imposed duty; certain relationship status; contractual duty of care; voluntarily assumed care as to seclude helpless person as to prevent rendering aid [Stone & Dobinson]

Voluntary Manslaughter: (Intentional)

D satisfies the M/R but they were mitigating circumstances (i.e. successful partial defences) Applies where a fault element sufficient for murder is present, however the accused entitled to lesser conviction of manslaughter due to circumstances of the killing Intended to kill but has legal reason S24 Manslaughter Punishment: Whosoever commits the crime of manslaughter shall be liable to imprisonment for 25 years. Provocation: TEST set out in s23 of crimes act
1. The act or omission was a result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including insulting words or gestures) towards or affecting the accused and That conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control so as to have formed an intent to kill, or to inflict grievous bodily harm upon the deceased, whether the conduct occurred immediately before the act or at any previous time. (Ordinary person must be judged as person who is not intoxicated and same age/maturity level as accused)

(2) An act or omission causing death is an act done or omitted under provocation where: 2.

Onus on prosecution to prove beyond reasonable doubt that act or omission causing death was not act done or omitted under provocation [s23(2)]. Accused need not say anything regarding provocation, and the standard is whether the ordinary person couldve been provoked to FORM the INTENT to kill or cause GBH, rather than provoked to commit the actual act. Two Part Test: (Points 1. & 2. above make up the 2 Part Test) Must be a causal connection between conduct of victim and loss of self-control by accused. Following must be considered together: 1. That the conduct was extremely hurtful to the accused because of his or her age, sex, race, ethnic or cultural background, physical features, personal attributes/relationships or history 2. The words or conduct in question taken as a whole; and 3. The history of the relationship between the accused and deceased (i.e. domestic violence)

Loss of Control after Sustained Period of Abuse: [R v Chhay]: Appellant convicted of murder of husband following long history of domestic violence. Appealed citing provocation. Appellant cut deceaseds throat and hacked him to death. Separation of crimes of loss of self control =/= premeditated acts of revenge. Appeal allowed, judgement takes into account that loss of self-control does not have to occur immediately after provocation, but can occur after sustained period of provocative conduct by deceased. Ordinary Person Test: [R v Green]: Green kills Gillies at his home after Gillies makes homosexual advance. Case centred on claim that appellant was so provoked by conduct of deceased that he lost control and killed deceased. Brennan cites Stingel the content and extent of the provocative conduct must be assessed from the viewpoint of the particular accused Sexual abuse factor taken into account, as appellants previous history indicates family issues regarding sexual abuse by father. Ordinary person thus must take into account individuals background and history, as is relevant in this case, to adjudge the severity of the provocation in relation to the killing committed. Special sensitivities must be taken into account when adjudging the standard of the ordinary person. Two Part Court Test: 1. Assessing the gravity of the conduct alleged to have provoked the accused and; Determining whether provocation of that gravity could have induced an ordinary person in the accusers position to so far have lost control as to form an INTENTION to kill or cause GBH. [R v Mankotia]; Appellant and deceased were in a relationship together, accused came from strict cultural background in India. Deceased phoned appellant and told him relationship was over; appellant became enraged and attacked her with knife in fit of fury. Appeal based on belief that trial judge erred in not directing jury to take into account cultural and ethnic background in depiction of ordinary person. Judge concluded that from Page 17 of 19

[Stingel] authority that cultural and ethical background cannot be taken into consideration in the objective assessment of the gravity of a particular wrongful act or insult. Withholding Provocation From the Jury: When there is reasonable evidence of provocation, it must be left to the jury, even if the accused/defence does not raise it, and even if the defence does not give evidence of actual loss of self-control. [R v Kumar]; Accused and victim had violent relationship; she moved from QLD to VIC, he followed her to his house, she alleged to have insulted his family in religiously offensive ways, he broke into flat and killed victim. Trial judge refused to leave provocation to jury. Appeal judge stated that husbands loss of self-control was far outside what the community would expect from any ordinary person. Mere words alone which are merely insulting hurtful and offensive, but not of a violently provocative character, cannot satisfy the objective test. Intoxication and Provocation Ordinary person is to be assumed to be unaffected by drugs and alcohol [R v Cooke]. Cookes judgement stated that the jury must solve whether the loss of self-control was caused by the deceaseds words or conduct, or solely by the inflammatory effects of drink or drugs. Words as Provocative Conduct At common law, mere words could never be sufficient provocation, but in s 23 (2)(a) it is now covered. In [R v Lees] Wood CJ said words such as threatened violence, blackmail, extortionthey need to be of a sufficient violent, offensive or otherwise aggravating character to be capable of satisfying provocation. Defence of provocation unavailable unless the accused reacted to the victims conduct which occurred in his/her sight or hearing. In [R v Dib]., The NSWCCA held that Davis could not rely on provocation when he was told that the deceased had sexually assaulted his step daughter and his niece. After being taken to High Court no definitive ruling on issue of whether or not conduct in absence of the accused could be basis of provocation. Third Party Conduct In [R v Hall], there was a fight between the appellant and deceaseds brother. Deceased intervened, and then appellant returned and ran over deceased with car, killing her. Hall appealed that provocation should have been left with jury. Appeal dismissed but judges adopted ruling in [Tumanako v R (1992)]; the provocative conduct which may sustain a defence of provocation need not be necessarily be conduct of the deceased personally if it is conduct in the presence of the deceased by a person so closely associated with the deceased that it is reasonable for the jury to attribute the conduct of that person to the deceased. Mistake An accused may be mistaken as to provocation, that is, the accused may believe, for example, that certain offensive conduct was provocation by X, when really it was done by Y. Issue arose in [R v Dib]. The accused in [R v Dib]. thought that the deceased was part of a group attacking his brother, when really his brother started the fight. Accused came from his house and stab and killed the deceased. Judge had to consider whether a person could rely on a mistaken belief in facts as the basis for provocation. Judge considers issue of honest and reasonable belief doctrine in excluding liabilityhowever Judge notes decision in Iannazzone, in which it was made clear that the honest and reasonable belief doctrine requires belief in a state of facts, which, if they existed, would have made the defendants act innocent. Thus mistake is not an issue in [R v Dib]. Proportionality Not Required: It is not necessary that the killing be proportional to the provocation offered; s 23 (3)(a). Infanticide: (killing a child within a year of birth) Excessive Self Defense: Impairment:

There is also subjective: D only partially meets the requirements set by case law to reckless indifference to human life d foresaw probability of GBH as opposed to probability of death Page 18 of 19

D foresaw POSSIBILITY of death as opposed to PROBABILITY Soloman)

Murder: o Actus Reus: Act (or omission) has to cause death

PHYSICAL ELEMENTS: VOLUNTARY ACT: [R v Ryan] Was a reflect action. it was a complex of acts (not just squeezing the trigger) loading, pointing, cocking, firing. - even if one of the movements was unconscious, taken as a whole, the complex acts might not be (Murray) involuntary acts e.g. coughing fit, swarm of bees, muscle spasm, narcolepsy (fall asleep instantly

[Kataezynski] The Victim lunged: Judgement raised new principle; if actions taken as a whole (loading, aiming gun, firing gun), they can be said to be willed and thus voluntary. Implements judgement in Ryan; if he presses the trigger in immediate response to a sudden threat or apprehension of danger.it seems to me a consequence probable and foreseeable of a conscious apprehension of danger, and in that sense, a VOLUNTARY ACT. o

S33 Human tissue act 1993: Irreversible cessation to all functions of the brain and circulation Omission: Can only be liable if there is a DOC in relation to accused [Auredale NHS Trust v Bland] If the death doesnt result in death, an accused can be charged for an attempt [Knight] Mens rea: FAULT: Intent to kill: OR Foresight of consequence of act or culpable omission and a desire to bring about it Intent to inflict GBH: (permanent or serious disfiguring of the person (s4)) OR Can include damage to unborn foetus Recklessness indifference to human life: OR Constructive murder:

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