Short Notes

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Lecture notes, all lectures
Criminal Law (Queensland University of Technology)
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LLB106 Exam Notes 2015
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Assault
Definition: “A person who strikes, touches, or moves, or otherwise applies force of

any kind to, the person of another, either directly or indirectly, without the other
person’s consent, or with the other person’s consent if the consent is obtained by
fraud, or who by any bodily act or gesture attempts or threatens to apply force of any
kind to the person of another without the other person’s consent, under such
circumstances that the person making the attempt or threat has actually or
apparently a present ability to effect the person’s purpose, is said to assault that
other person, and the act is called an assault: s245(1) and (2) of the CC.
Offence: Any person who unlawfully assaults another is guilty of a misdemeanour,

and is liable, if no greater punishment is provided, to imprisonment for 3 years.
Unlawful: An assault is unlawful and constitutes an offence unless it is authorised or

justified or excused by law: s246 of the CC
Two types:
1. Direct or indirect actual application of force (battery at Common Law): Limb 1
2. Threatened or attempted application of force (assault at Common Law): Limb 2
Elements of Limb 1:
i. Application of force
“Applies force” includes applying heat, light, electrical force, gas, odour, or
any other substance or thing whatever if applied in such a degree as to cause
injury or personal discomfort: s 245(2) CC.
-Inclusive definition: means the word defined has its ordinary meaning in
addition to the matters specified in the definition
-Assault implies intent, but is not a requirement in the CC: R v McIver
-However, intent is not an essential requirement of the CC in Queensland:
Burton v Davies
-Actual application of force, even if the victim was unaware of the assault (i.e.
asleep): Boughey
ii. Directly or indirectly

1. Direct – e.g. physical act such as punching someone
2. Indirect – e.g. shooting a gun and the bullet ricochets; using a third party or
agent; using a dog as a weapon: Croft v Blair
iii. Without consent
-Consent is a question of fact: for the jury
-Consent is not defined in the Code, so the Common Law is used to
determine if there has been any consent.
-Consent may be express, implied or tacit: Kimmorley v Atherton
a. Tacit = understood without having to be stated
b. E.g. kissing – consent more likely to be implied/tacit as people don’t
often ask for express consent: Kimmorley v Atherton
c. E.g. Pupil receiving tactile encouragement from teacher: Horan v
Ferguson

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-Implied / tacit consent will eliminate criminal responsibility for inadvertent

contact which occurs in the course of everyday life.
-Acts that are commonplace, intentional and not hostile do not amount to an
assault: Boughey v R
a. E.g. patting someone’s shoulder to attract attention, or pushing
between others to alight from a crowded bus, etc.
Even where there is consent, there may, in certain circumstances, be an

assault: s 246(2) CC
Force applied with consent will be unlawful if the consent is obtained by fraud,
or the law does not permit such person to consent (i.e. sex with a minor).
a. Assault will be committed where the degree of force used by the

accused exceeded that to which the victim consented: R v Rabbe;
Lergesner v Carroll
b. Sport:
Players consent to a certain level of force outside rules of the

game – accidental injuries & tackles within the rules, and
commonplace, trivial breaches of those rules: McNamara v
Duncan
It does not matter that dangerous tackles often happen. If they are
outside the rules and dangerous, they do not lose their character
which they possess as unlawful assaults if deliberately or
recklessly executed: Re Lenfield.
Elements of Limb 2:
i. Attempts or threatens to apply force
The accused must intend to apply force, or make the victim think that the
threat to apply force is genuine; therefore, the accused must intend to
threaten / cause some apprehension: Hall v Fonceca
ii. Bodily act or gesture

1. Mere words are insufficient: Fogden v Wade
-Words + a bodily act / gesture is enough: Dale
-E.g. concealing ruler under jacket to look like a gun
2. Conditional threats:
-Clear that threat would be carried out is sufficient: Rozsa v Samuels
-If the words of the accused make it clear that the threat will not be carried
out, there is no assault: Tuberville v Savage
-Conditional threat where the alternative is obedience to an unacceptable
command = assault: Police v Greaves

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iii. Actual or apparent present ability to effect purpose

1. Actual ability:
For example, a real knife capable of doing some damage or a real loaded
gun. Note: victim’s knowledge not relevant here
2. Apparent ability:
a. Representing the fact that they have the ability to carry out the threat,
when for example they have a toy gun: Everingham
b. The victim must be aware of the threat/attempt: Dale
c. However, the victim must not be afraid of the threat: Brady v Schatzel
d. If it is clear the accused cannot carry out the threat, there is no assault:
Tuberville v Savage
e. The threat of violence does not need to be immediate: R v Secretary
f. Test is partially subjective (victim’s awareness) & partially objective
(reasonable apprehension)
g. Implied requirement that belief/awareness must be reasonable in Qld CC:
Cotter
Victim’s state of mind:

-Victim must be aware of the threat / attempt: Dale
-Victim need not be in fear, just apprehension: Brady v Schatzel
-Victim’s assessment of the ability is made in the present – they believe
accused has the ability to do the threat, NOT that what they are threatening
will happen soon
-Threats of future violence are sufficient: R v Secretary
iv. Consent – as above for Limb 1

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Assault Occasioning Bodily Harm

Offence: Any person who unlawfully assaults another and thereby does the other
person bodily harm is guilty of a crime, and is liable to imprisonment for 7 years: s
339(1)
If the offender does bodily harm, and is or pretends to be armed with any dangerous
or offensive weapon or instrument or is in company with 1 or more other person or
persons, the offender is liable to imprisonment for 10 years: s 339(2)
Elements:
i. Unlawfully;
a. “Section 246(1) makes assaults unlawful unless authorised, justified or
excused by law”
ii. Assaulted another person; and
a. “Section 245(1) of the Code provides a definition of assault”.
b. See COMMON ASSAULT & work through elements
c. AOBH may be consented to
d. Question of fact to what degree of violence was consented to:
Lergesner v Carroll
e. Consent negated where the degree of force used by the accused
exceeded that to which the victim consented: R v Rabbe
f. If assault can be proved, continue.
iii. Thereby did that other person bodily harm.

a. Definition:
-Bodily harm means ‘any bodily injury which interferes with health
or comfort’: s 1
b. Broadly defined
-Must be some identifiable bodily injury – black eye, bloodied
nose: Lergesner v Carroll
c. Mere sensation of / temporary pain alone is not sufficient:
Scatchard
-E.g. Headlock without injury
-Continuing pain emanating from an injury is bodily harm: R v
Campbell
d. Psychiatric harm:
-Court found ‘bodily injury’ broad enough to include psychiatric
injury (i.e. clinical condition cf mere emotion – fear, distress or
panic): R v Chan-Fook [1994] (UK)
Consent to AOBH is possible- is a question of fact what degree of

violence was consented to: Lergesner v Carroll

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Serious Assault
Offence: Any person who unlawfully assaults another in any of the specific
circumstances in s 340 is guilty of a crime.
Elements:
i. Unlawfully
-“Section 246(1) makes assaults unlawful unless authorised, justified or
excused by law”
ii. Assaulted another person
ii. “Section 245(1) of the Code provides a definition of assault”.
iii. See ASSAULT & work through elements
iii. In any of the [aggravating] circumstances specified in s 340(1) CC
ii. Assaults another with intent to commit a crime, or with intent to resist
or prevent the lawful arrest or detention of himself or herself or of any
other person
-Includes biting, spitting, throwing bodily fluid or faeces: s 340(2A) CC
-Not necessary that accused knew the person was a police officer
acting in the course of their duties: R v Reynhoudt
-Officer acting outside course of duties: DPP Ref No 1 of 1993; R v K
iii. Assaults, resists, or wilfully obstructs, a police officer while acting in

the execution of the officer’s duty, or any person acting in aid of a
police officer while so acting;
iv. Unlawfully assaults any person while the person is performing a duty
imposed on the person by law
v. Assaults any person because the person has performed a duty
imposed on the person by law
vi. Assaults any person in pursuance of any unlawful conspiracy
respecting any manufacture, trade, business, or occupation, or
respect ting any person or persons concerned or employed in any
manufacture, trade, business, or occupation, or the wages of any such
person or persons
vii. Unlawfully assaults any person who is 60 years or more
viii. Unlawfully assaults any person who relies on a guide, hearing or
assistance dog, wheelchair or other remedial device
Sentence: If the offender assaults a police officer in any of the following

circumstances they are liable to imprisonment for 14 years: s 340.
i. The offender bites or spits on the police officer or throws at, or in any way applies
to, the police officer a bodily fluid or faeces;
ii. The offender causes bodily harm to the police officer;
iii. The offender is, or pretends to be, armed with a dangerous or offensive weapon or
instrument—14 years imprisonment
Otherwise, an offender will be liable to imprisonment for 7 years: s 340

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Grievous Bodily Harm

Offence: Any person who unlawfully does grievous bodily harm to another is guilty of
a crime and is liable to imprisonment for 14 years: s 320
Elements:
i. Unlawfully
-Means not authorised, justified or excused by law
ii. Does
-Intention is not an element, but causation must be proved using the
causation tests
-A person can “do” GBH directly or negligently
iii. GBH
-GBH is defined in s 1 of the CC
a. The loss of a distinct part or an organ of the body; or
b. Serious disfigurement
-Example: Removal of a substantial part of ear lobe causing cosmetic
disfiguration but no impairment of bodily function. Previously not GBH,
but was overruled by amendments: Tranby
c. Any bodily injury of such a nature that, if left untreated, would
endanger or be likely to endanger life, or cause or be likely to cause
permanent injury to health
-‘Likely’ means a substantial chance, real and not remote: Boughey
-‘Likely’ is not equivalent to ‘probable’-somewhere below that
threshold: Crossman
-Bodily injury may now include ‘disease’: Clarence
d. Whether or not treatment is or could have been available

-Regard is to be had to the nature of the injury itself at the time the
harm is done and not to the surrounding circumstances and the
availability of medical attention: R v Lobston
iv. Causation:
a. Reasonable foreseeability/likely to happen
-The probability of some injury being received in a way likely to result
from the unlawful act: R v Knutsen per Mack J at 186
-E.g. Victim’s retreat from attack does not necessarily break chain of
causation: Royall
-Substantial and operating cause test has been applied, but is really
only applicable to homicide offences: Royall
b. Criminal negligence:
-Failure to perform a duty required by the act will deem the accused to
have caused that result
-Duty to provide necessaries: s 285 CC
-Duty of person who has care of child: s 286 CC
-Duty of persons doing dangerous things: s 288 CC
-Duty of persons in charge of dangerous things: s 289 CC
Negligent operation of a flying fox causing GBH: Clark
Duty to do certain acts: s 290 CC

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Unlawful Wounding
Offence: A person who unlawfully wounds anyone else commits a misdemeanour: s
323
Elements:
i. Unlawfully
a. Not authorised, justified or excused by law
ii. Wounds another
a. Intention is not an element but causation must be proved
b. Victim cannot consent: Kaparanovski
c. Assault is not an element: R v Knutsen
Definition:
i. The expression 'wounding' is not defined in the Code – in Qld it bears its
ordinary or common law meaning = which requires that the 'true' skin must be
penetrated or broken: Jervis
-Break in the outer layer of skin is insufficient - an injury is unlikely to be a
wound unless it bleeds: Devine
-Internal bleeding / severe internal injury, such as a broken nose, would not
constitute a wounding if the skin remains intact: C v Eisenhower
ii. Actual wounding is a question of fact – medical evidence at trial
-Wounding by any means
a. Hammer: Smith
b. Bottle: McLoughlin
c. A relatively minor injury that breaks the skin (and bleeds) will be
sufficient: McLoughlin
d. Use of an instrument not necessary: Duffill
e. Kick: Waltham
Sentence: Maximum penalty is 7 years: s 323(1)

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Torture
Offence: A person who tortures another person commits a crime: s 320A
Definitions: s 320A(2)
-“Pain or suffering” includes physical, mental, psychological or emotional pain or
suffering, whether temporary or permanent.
-“Torture” means the intentional infliction of severe pain or suffering on a person by
an act or series of acts done on 1 or more than 1 occasion.
Elements:
i. Inflict severe pain or suffering on another person

ii. Intentionally
-Intention is the act of ‘determining mentally upon some result’: it is a
purpose design: Ping per Chesterman J
iii. By an act or series of acts on one or more than one occasion
Case Examples:
a. Inflicting punishments on a 5 year old child with 600 volt cattle prod: Griffin
b. Child held underwater; put faeces in his mouth for defecating in bath; winded
child by punching; caused skin of penis to tear away from pelvis: Geddes
c. Burned child with cigarettes, cut their lip, locked child in caravan & denied
food and medical attention: Robinson
d. Used terror and violence to control daughter’s behaviour: Brown
e. Conduct on a fishing trawler – accused did not intended to cause
psychological suffering through assaults: Ping
Sentence: Maximum penalty is 14 years imprisonment: s 320

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Disabling to Commit Indictable Offence

Definition: Any person who, by any means calculated to choke, suffocate, or
strangle, and with intent to commit or to facilitate the commission of an indictable
offence, or to facilitate the flight of an offender after the commission or attempted
commission of an indictable offence, renders or attempts to render any person
incapable of resistance, is guilty of a crime, and is liable to imprisonment for life: s
315
Elements:
ii. Rendered/attempted to render, another person incapable of resistance

-‘Resistance’ can be calling out for help: Lansbury
-State how the offender tried to render the victim incapable of resistance
iii. By any means calculated to choke, suffocate, or strangle; and
-‘Calculated’ means the objective meaning of ‘likely’, not the subjective
meaning of ‘intended’: Lansbury
-State how offender tried to choke etc. the victim
iv. Intent to commit an indictable offence (or facilitate IO, or facilitate the flight of
an offender after the commission or attempted commission of an IO
-Offence requires specific intent
-Requires proof that the offender intends to commit an offence
-State what IO the person was intending to commit
Sentence: Maximum penalty is life imprisonment: s 315

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Stupefying to Commit Indictable Offence

Definition: Any person who, with intent to commit or to facilitate the commission of
an indictable offence, or to facilitate the flight of an offender after the commission or
attempted commission of an indictable offence, administers, or attempts to
administer, any stupefying or overpowering drug or thing to any person, is guilty of a
crime, and is liable to imprisonment for life: s 316
Elements:
ii. Administered/attempted to administer a stupefying or overpowering drug/thing

to another
a. A thing which stupefies by intoxicating is a stupefying thing: Murcott
(VIC)
b. “Stupefying has the effect of dulling the senses or faculties or blunting
the faculties of perception or understanding;
c. ‘Effect’ need not extend to total depravation of sensibility but totoal
loss of faculties would be compromised in the term: Arnold
d. ‘Administering’ is insufficient if no more is done than to give, supply or
provide a stupefying drug to a person who, knowing its effects,
voluntarily inhales it: Murphy
e. State how the offender administered the stupefying thing
iii. Intent to commit an indictable offence (or facilitate IO, or facilitate the flight of
an offender after the commission or attempted commission of an IO)

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Unlawful Drink Spiking
Offence: A person who administers, or attempts to administer, in drink a substance

to another person (the other person) without the other person having knowledge of
the substance with intent to cause the other person to be stupefied or overpowered is
guilty of a crime and is liable to imprisonment for 5 years: s 316A(1)
If the substance is alcohol, for section 24 only, the circumstances in which the other
person is taken to have knowledge of the alcohol include where the other person
would not object to the administration of the alcohol if the other person had actual
knowledge of it: s 316A(2)
Elements:
i. Administered/attempted to administer, in drink a substance to

another
a. Adding a substance to a drink includes:
-Cause to be added to drink;
-Substitute drink with other drink containing the substance
-Take any step to provide drink containing the substance
instead of other drink
b. s 316A(7)
c. NOTE: It is immaterial whether a substance is capable of
having the effect intended: 316A(3)(a)
ii. Other person had no knowledge of the substance
a. It is immaterial whether the lack of knowledge of the substance
is lack of knowledge of the presence at all of the substance or
of the particular quantity of the substance: s 316(A)(3)(b)
iii. Intent to cause the person to be stupefied or overpowered

a. ‘Stupefied’ or ‘overpowered’ includes:
-Intoxication caused by alcohol, drug or another substance;
and
-Behavioural change caused by a dangerous drug, whether or
not the mind is otherwise affected: s 316A(7)
b. Offence requires specific intent
c. NOTE: It is immaterial whether a particular person is intended
to be the person to whom the substance is administered or
attempted to be administered: s 316A(3)(c)

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Intentional GBH & Other Malicious Acts
Offence: Any person who, with intent:

a. To maim, disfigure or disable, any person; or
b. To do some grievous bodily harm or transmit a serious disease to any
person; or
c. To resist or prevent the lawful arrest or detention of any person; or
d. To resist or prevent a public officer from acting in accordance with lawful
authority—
Either—
e. In any way unlawfully wounds, does grievous bodily harm, or transmits a

serious disease to, any person; or
f. Unlawfully strikes, or attempts in any way to strike, any person with any kind
of projectile or anything else capable of achieving the intention; or
g. Unlawfully causes any explosive substance to explode; or
h. Sends or delivers any explosive substance or other dangerous or noxious
thing to any person; or
i. Causes any such substance or thing to be taken or received by any person;
or
j. Puts any corrosive fluid or any destructive or explosive substance in any
place; or
k. Unlawfully casts or throws any such fluid or substance at or upon any person,
or otherwise applies any such fluid or substance to the person of any person;
Is guilty of a crime, and is liable to imprisonment for life: s317 of the CC.
Elements:
i. Accused acts to:
a. Wounds, does GBH or transmits a serious disease (e)
-Work through elements of those offences (briefly)
b. Strikes any person with a projectile (f)
-E.g throwing a baseball bat: R v Brannigan & Green
c. Causes any explosive substance to explode (g)
d. Sends or delivers explosive substance or dangerous /noxious thing (h)
e. Causes any such substance to be received by any person (i)
f. Puts any corrosive fluid or any destructive / explosive fluid in any place (j)
g. Casts or throws any such fluid / substance upon any person (k)
-Boiling water being a destructive substance, see R v Crawford
ii. With ]specific] intent to:

a. Maim, disfigure, or disable (a
-Maim: deprive a person of a use of some member, to mutilate or
cripple: Woodward per Douglas J
b. do GBH OR transmit a serious disease (b)
c. -‘Serious disease’ means a disease that would, if left untreated, be
of such a nature as to cause or be likely to cause:
-Any loss of a distinct part or organ of the body
-Serious disfigurement
-Endanger life or be likely to cause permanent injury
-Whether or not treatment is available: s 1

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d. Intentional transmission of HIV: Reid

-Prosecution had to prove that the accused intended to transmit
the HIV virus to the complainant by proving that the accused’s
conduct was designed to achieve that result, that his purpose in
engaging in intercourse was to infect the complainant
-Resist / prevent arrest (c)
-Resist / prevent public officer from acting in accordance with
lawful authority (d)
e. Where intent to injure is an element of the offence, it is not

necessary to prove an intent to injure any particular person: s 643
a. Decide what his intention was by considering all the relevant
circumstances and in particular what he did and what he said
about it: R v Purcell


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Domestic Violence
Definition: Domestic violence means behaviour by a person (the first

person) towards another person (the second person) with whom the first person is in
a relevant relationship that—
a. Is physically or sexually abusive; or
b. Is emotionally or psychologically abusive; or
c. Is economically abusive; or
d. Is threatening; or
e. Is coercive; or
f. In any other way controls or dominates the second person and causes the
second person to fear for the second person’s safety or well being or that of
someone else
s 8(1) of the Domestic Violence Family Protection Act 2012 (Qld) (‘DFVPA’)
Without limiting subsection (1), domestic violence includes the following behaviour:
a. Causing personal injury to a person or threatening to do so;
b. Coercing a person to engage in sexual activity or attempting to do so;
c. Damaging a person’s property or threatening to do so;
d. Depriving a person of the person’s liberty or threatening to do so;
e. Threatening a person with the death or injury of the person, a child of the
person, or someone else;
f. Threatening to commit suicide or self-harm so as to torment, intimidate or
frighten the person to whom the behaviour is directed;
g. Causing or threatening to cause the death of, or injury to, an animal, whether
or not the animal belongs to the person to whom the behaviour is directed, so
as to control, dominate or coerce the person;
h. Unauthorised surveillance of a person;
i. Unlawfully stalking a person
s 8(2) of the DFVPA
s 9: Associated domestic violence means behaviour mentioned in s 8(1) by a

respondent towards:
a. A child of an aggrieved
b. A child who usually lives with an aggrieved;
c. A relative of an aggrieved
d. An associate of an aggrieved
A child is exposed to domestic violence if the child sees or hears domestic violence
or otherwise experiences the effects of domestic violence: s 10
Relevant relationships: s 13-20 of the DFPV

a. An intimate personal relationship: spousal, engagement and couple
relationships
b. A family care relationship: parent, etc.
c. An informal care relationship

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Domestic violence orders: s23(2) DFVPA

a) Domestic violence order means a protection order; or
b) A temporary protection order: is an order made in the period before a court
decides whether to make a protection order for the benefit of an aggrieved
When may a court make a protection order? s37 of the DFVPA stipulates that a court
may make a protection order against a person for the benefit of the aggrieved if it is
satisfied that:
a) A relevant relationship exists; AND

b) The respondent has committed domestic violence; AND
c) The order is necessary or desirable to protect the aggrieved from domestic
violence
Who may apply for a domestic violence order? s25 and 32 of the DFVPA stipulate a
protection order can be made only by:
a) An aggrieved
b) An authorised person for an aggrieved
c) A police officer under s100(2)(a)
d) A person acting under another Act for the aggrieved, for example a guardian for a
personal matter of the aggrieved, or an attorney for a personal matter of the
aggrieved
Police officer may issue police protection notice: s101 and 102 of the DVFPA state: A
police officer may issue a police protection order against a person if the police officer:
a) Is present at the same location as the respondent
b) Reasonably believes the respondent has committed domestic violence
c) Reasonably believes a police protection notice is necessary or desirable to protect
the aggrieved from domestic violence
d) Reasonably believes the respondent should not be taken into custody: “Suspicion”
insufficient: George v Rockett [1990] HCA 26
e) Has obtained approval under s102 to issue the notice
Respondent may be taken into custody

Under s116(1) of the DFVPA, police have the power to arrest the respondent, but
only if:
a) They suspect on reasonable grounds that an act of domestic violence has been
committed; AND
b) Another person is in danger of personal injury by the person or property is in
danger of being damaged
The police must then apply for a protection order naming the person as respondent:
s118 DFVPA
Including by way of phone, fax, telex, radio, email or similar facility: s130(2) of the
DFVPA
Police may apply for a temporary protection order and, if does, MUST apply for a
temporary protection order to a magistrate: s129 & 130 of the DFVPA. If reasonably
believes an application for a protection order will NOT be heard sufficiently quickly
AND it is necessary or desirable to protect the aggrieved.
Standard conditions on the respondent: s28 of the DFVPA

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If Court makes domestic violence order:

a) Respondent must be of good behaviour
b) Respondent must not commit domestic violence against aggrieved or others
named in the order
Other conditions on respondent: s57-59 of the DFVPA:
a) Any necessary in the circumstance AND desirable in the interests of the aggrieved
b) s58 conditions that prohibit stated behaviour of the respondent that is likely to lead
to domestic violence
“Likely” means a real and not remote chance of violence occurring: c/f SCJ v ELT
[2011] QDC 100
Domestic violence is a civil matter: rules of evidence don’t apply, requires satisfaction
on balance of probabilities: ss4 and 145 of the DFVPA
Matters of Paramount Importance when the court imposes conditions in s4 of the

DFVPA:
a) Protect the aggrieved
b) Welfare of a child of the aggrieved

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Observations of Recordings in Breach of Privacy
Offence: s 227A
(1) A person who observes or visually records another person, in circumstances

where a reasonable adult would expect to be afforded privacy—
(a) without the other person's consent; and

(b) when the other person—
(i) is in a private place; or
(ii) is engaging in a private act and the observation or visual recording is made for the
purpose of observing or visually recording a private act;
commits a misdemeanour.
Maximum penalty—2 years imprisonment.
Elements:
i. Observes or visually records another person

-Observes means observe by any means: s 207A CC
e.g. eyes or mechanical device (binoculars, telescope) or digital device
(digital camera, not recording)
-visually record a person, means

-record or transmit, by any means,
-moving or still images of the person or part of the person: s 207A CC
e.g. digital cameras, mobile phone cameras, etc.
ii. In circumstances where a reasonable adult would expect to be afforded

privacy
-Objective test, answered by asking what a reasonable adult would expect
e.g. changing in a communal change room at a swimming pool = reasonable

to be observed by another also changing, NOT reasonable to expect to be
visually recorded: s 227A(1) CC
e.g. where assistance is required to dress / use toilet = reasonable to be
observed by the helper, NOT reasonable to expect to be observed by another
person: s 227A(1) CC
iii. Without Consent
-Consent is not defined in the Code for the purposes of this offence
-E.g. Stepfather used hidden camera to record stepdaughters in bathroom /
shower: Davies

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Type 1:
iv. Private place; or

-Means a place where a person might reasonably be expected to engage in a
private act: s 207A
-E.g. Bathroom, toilet, bedroom, changing room etc.
v. Private Act: s 207A
-For a person means:

(a) Showering or bathing; or
(b) Using a toilet; or
(c) Another activity when the person is in a state of undress; or
(d) Intimate sexual activity that is ordinarily not done in public
-“State of Undress” means: s 207A

(a) The person is naked or the person’s genital or anal region is bare, or if the
person is female, the person’s breasts are bare; or
(b) The person is wearing only underwear; or
(c) The person is wearing only some outer garments so that some of the
person's underwear is not covered by an outer garment.
Type 2:
vi. Genital or anal region

-Means the person’s genital or anal region when the region is covered by
underwear or bare: s 227A (3) CC
-Purpose of observing or visually recording other person’s genital or anal
region
Offender must have intended to observe or visually record the other person’s
genital or anal region
Sentence: Observing or recording another in breach of privacy is a misdemeanour,

liable for maximum 2 years imprisonment: ss 227A(1) & (2)

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Distributing Prohibited Visual Recordings
Offence: s 227B
(1) A person who distributes a prohibited visual recording of another person having
reason to believe it to be a prohibited visual recording, without the other person's
consent, commits a misdemeanour.
Elements:
i. Distributes
-‘Distributes’ includes: s 227B(2)
(a) communicate, exhibit, send, supply or transmit to someone, whether to a

particular person or not; and
(b) make available for access by someone, whether by a particular person or
not; and
(c) enter into an agreement or arrangement to do something in paragraph (a)
or (b); and
(d) attempt to distribute.
ii. Prohibited visual recording
-Of another person, means: s 227B(2)

(a) a visual recording of the person in a private place or engaging in a private
act made in circumstances where a reasonable adult would expect to be
afforded privacy; or
(b) a visual recording of the person's genital or anal region, when it is covered
by underwear or bare, made in circumstances where a reasonable adult
would expect to be afforded privacy in relation to that region.
iii. Reason to believe it is a prohibited visual recording

-Offender must have some reason to believe it is a prohibited visual
recording.
iv. Without consent
-Consent is not defined in the Code for the purposes of this offence

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Unlawful Stalking
Offence: A person who unlawfully stalks another person is guilty of a crime: s
359E(1)
Definition: Unlawful stalking is conduct that: s 359B
(a)Intentionally directed at a person (the stalked person); and

(b) Engaged in on any 1 occasion if the conduct is protracted or on more than 1
occasion; and
(c) Consisting of 1 or more acts of the following, or a similar, type—
(i) Following, loitering near, watching or approaching a person;
(ii) Contacting a person in any way, including, for example, by telephone, mail, fax,
email or through the use of any technology;
(iii) Loitering near, watching, approaching or entering a place where a person lives,
works or visits;
(iv)Leaving offensive material where it will be found by, given to or brought to the
attention of, a person;
(v) Giving offensive material to a person, directly or indirectly;
(vi)An intimidating, harassing or threatening act against a person, whether or not
involving violence or a threat of violence;
(vii) An act of violence, or a threat of violence, against, or against property of,
anyone, including the defendant; and
(d) That—
(i) Would cause the stalked person apprehension or fear, reasonably arising in all the
circumstances, of violence to, or against property of, the stalked person or another
person; or
(ii) Causes detriment, reasonably arising in all the circumstances, to the stalked
person or another person.
Elements:
i. Intentionally
-The accused’s conduct must be intentionally directed towards a person: s

359(B)(a)
-NOTE: It is immaterial whether:
1. The stalker intends the stalked person be aware of the conduct: s 359C(1)(a)
CC
2. The stalker has a mistaken belief about the identity of the stalked person: s
359C(1)(b) CC
3. The conduct carried out is in relation to another person or property of another
person: s 359C(2) CC
-E.g. Acts intentionally directed at neighbours: R v Ali

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ii. Engages in certain behaviour

-Accused must engage in one or more of the acts outlined in s 359B(c)
-‘Property’ of a person means: s 359A

(a) Property in which the person has an interest, whether or not the defendant
also has an interest in the property; or
(b) Property that is otherwise
(i) Used and enjoyed by the person; or
(ii) Available for the person's use or enjoyment; or
(iii) In the person's care or custody; or
(iv)At the premises at which the person is residing
Violence: s 359A
(a) Does not include any force or impact within the limits of what is acceptable
as incidental to social interaction or to life in the community; and
(b) Against a person includes an act depriving a person of liberty; and
(c) Against property includes an act of damaging, destroying, removing, using
or interfering with the property.
iii. Frequency
-Stalking must be engaged in on any one occasion if the conduct is protracted
or on more than one occasion s 359B(b) CC
-‘Protracted’ is not defined and therefore will have its ordinary meaning of a
longer occasion, extended or prolonged.
-It is immaterial whether the conduct throughout the occasions on which the
conduct is protracted, or the conduct on each of the occasions consists of the
same or different acts 359C(3) CC
iv. Causation
Would cause the stalked person apprehension or fear, reasonably arising in

all the circumstances, of violence to, or against property of, the stalked
person or another person: s 359B(d)(i) OR
-It is immaterial whether:

a. The stalker intended to cause the apprehension or fear: s 359C(4) CC
b. The apprehension, fear or violence is actually caused: s 359C(5) CC
c. Reasonable person test; irrelevant that particular stalked person did not
feel fear
d. Apprehension or fear of violence is relevant, not actual violence: robust
constitution does not prevent stalking: Davies

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v. Causes detriment, reasonably arising in all the circumstances, to the stalked

person or another person: s 359B(d)(ii)
-It is immaterial whether the stalker intended to cause the detriment

-‘Detriment’ is defined in s 359A to include the following:
(a) Apprehension or fear of violence to, or against property of, the stalked
person or another person;
(b) Serious mental, psychological or emotional harm;

‘Serious’ should be read with each word: Davies
(c) Prevention or hindrance from doing an act a person is lawfully entitled to

do;
E.g. no longer walks outside home or work
E.g. significantly change route or form of transport to work
(d) Compulsion to do an act a person is lawfully entitled to abstain from doing.
-Examples of detriment in s 359A CC are alternatives; there is no need to

fulfil all categories R v Vaughan
-Stalked person must have suffered actual detriment, and the detriment
reasonably arose in all the circumstances: R v Vaughan
-The stalked person needs the opportunity to explain the nature of their
apprehension/ fear, as evidence of the fears of the stalked person are
important to understanding how they suffered detriment: R v Vaughan
-It is necessary for the stalked person to be aware at he time of the accused’s
acts, becoming aware at a later time is not sufficient. R v Davies
It is implied [by s 359B(d)] that the stalked person must know or be aware of
the conduct: Ex p Taylor
-However, awareness [of victim] and conduct [of stalker] do NOT need to be
at the same time: Ex p Taylor
-A lapse in time must not:

Preclude the causing of detriment, or
Undermine the conclusion that the conduct would cause apprehension: Ex p
Taylor
E.g. Stalked person does not learn of hidden videotaping until much later =
lapse of time precluded fear: Davies

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vi. Exclusions
-Unlawful stalking does not include the following acts: s 359D
(a) Acts done in the execution of a law, or administration of an Act, or for a

purpose authorised by an Act
(b) Acts done for the purposes of a genuine industrial dispute
(c) Acts done for the purposes of a genuine political, or other genuine public
dispute, or issue carried on in the public interest
(d) Reasonable conduct engaged in by a person for the person’s lawful trade,
business or occupation
(e) Reasonable conduct engaged in by a person to obtain or give information
that the person has a legitimate interest in obtaining or giving
Sentence:
i. Unlawful stalking is a crime, liable for maximum 5 years imprisonment: s

359E(2)
ii. Aggravated circumstances raise the penalty to a maximum of 7 years
imprisonment: s 359E(3)
-IF, for any of the acts constituting the unlawful stalking, the stalker:
a. Used or intentionally threatened to use, violence against anyone or

anyone’s property: s 359E(3)(a) CC, OR
-Threat must be express, not implied: Ali
b. Possesses a weapon: s 359E(3)(b) CC, OR

-Within the meaning of the Weapons Act 1990
c. Contravened or intentionally threatened to contravene, an injunction

or court order: s 359E(3)(c) CC
-Threat must be express, not implied: Ali
d. The Court may issue a restraining order: s 359F CC
e. On application by the Crown, an interested person, or the

judge/magistrate’s own initiative: s 359F(3) CC ii. A person who
knowingly contravenes a restraining order commits an offence, liable
for maximum 1 year imprisonment or 40 penalty units: s 359F(8) CC
1. Each penalty unit = $100: s 5 Penalties and Sentences Act
1992 (Qld)

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Rape
Offence: Any person who rapes another person is guilty of a crime: s 349(1)
Definition (s 349(2)): A person rapes another person if—
(a) The person has carnal knowledge with or of the other person without the other
person's consent; or
(b) The person penetrates the vulva, vagina or anus of the other person to any extent
with a thing or a part of the person's body that is not a penis without the other
person's consent; or
(c) The person penetrates the mouth of the other person to any extent with the
person's penis without the other person's consent.
Elements:
i. Type 1: s349(2)(a)
a) Carnal knowledge of another
-Carnal knowledge includes sodomy: s 6(2)
-‘Complete’ does not preclude carnal knowledge where consent has
later been withdrawn: Mayberry
-Penetration by penis of the vagina, vulva or anus
-Penis/vagina/anus includes surgically constructed penis/vagina/vulva,
whether for a male or female: s 1
-Penetrate does not include penetration for a proper, medical,
hygienic or law enforcement purpose only: s 347
b) Without the other persons consent
ii. Type 2: s349(2)(a)
a) Penetrated vulva, vagina or anus of another

-Includes surgically constructed genitals: s 1
-Penetrate does not include penetration for a legitimate purpose: s
347
b) With a thing or part of the persons body that is not a penis
-‘Thing’ is not defined in the Code: carries its ordinary meaning
-Penis: includes surgically constructed penis: s 1
c) Without the other persons consent

-See below s 348: Meaning of consent
iii. Type 3: s 349(c)

a) Penetrated the mouth of another
b) To any extent
c) With a penis
-Includes surgically constructed genitals: s 1
d) Without consent of the other person
-See below for consent

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iv. Consent
Definition of consent for sexual offences: s 348
(1) In this chapter, consent means consent freely and voluntarily given by a person
with the cognitive capacity to give the consent.
(2) Without limiting subsection (1), a person's consent to an act is not freely and
voluntarily given if it is obtained—
(a) By force; or
(b) By threat or intimidation; or
(c) By fear of bodily harm; or
(d) By exercise of authority; or
(e) By false and fraudulent representations about the nature or purpose of the act; or
(f) By a mistaken belief induced by the accused person that the accused person was
the person's sexual partner.
a) Consent must be freely and voluntarily given by a person with

cognitive capacity to do so
b) No cognitive capacity:
-Asleep: Francis [1993] 2 Qd R 308
-Intoxcated- to the degree that victim is incapable of understanding
(comatose, passed out): Francis; Millar
-Intellectually impaired: Mrzljak
-Child less than 12 years incapable of giving consent: s 349(3)
c) Physical submission is not consent: Case stated by DPP (No 1 of
1993)
-Failure to physically resist, or reject by words, does not mean there
was consent; consent should be a positive state of mind: Wagenaar
d) Consent may be withdrawn at any time: Mayberry; Kaitamaki
e) Defence: mistaken belief as to consent: s 24
-Accused actually had honest belief that person was consenting
-Belief was based on reasonable grounds: AG’s Reference (No 1 of
1977)
-Clear physical resistance or words to contrary does not constitute
reasonable grounds for belief
f) Consent not freely and voluntarily given if obtained by:
1) Force
2) Threat or intimidation
-Whether threat must result in substantial harm (Pincus J), or
viewed subjectively (McPherson J) = not clear: PS Shaw
-Possible that threat might need to be substantial: PS Shaw
per Pincus J
-Alternative view is that there is no requirement that the threat
be substantial: Carters [348.20] annotations

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3) Fear of bodily harm

-Definition of “bodily harm” = Any bodily injury which interferes
with health or comfort: s 1 CC
-E.g. black eye/bloody nose = no consent
4) Exercise of authority
-E.g. employer / employee – threat of dismissal
-E.g. Interviewer / job applicant – threat of not receiving job
offer: Brewer
-NB. no express requirement in Qld CC for ‘detriment’
5) False and fraudulent representations about the nature or

purpose of the act
-Representation that sexual act was an operation that would
improve breathing/singing: Williams
-Fraudulent medical procedures: Mobilio; R v BAS
-If using equipment for own sexual gratification, not the
purpose the victim was expecting; i.e. radiographer: Mobilio
-E.g. natural / alternative medicine procedures: R v BAS
-Fraudulent circumstances (i.e. belief of marriage), with full
knowledge of purpose and nature of act [& knew identity of
accused] = NOT rape: Papadimitropolous
6) Mistaken belief, induced by the accused person, that the

accused person was the person’s sexual partner.
-E.g. victim assumes person is their sexual partner: Pryor
-‘Induced’ = reasonable to expect no strangers in home,
therefore conduct of accused may induce belief
-Carrying victim from bedroom to lounge: Pryor
-Nodding to confirm the victim’s assumption of accused’s
identity: Kake [NZ]
Sentence: Rape is liable to life imprisonment: s 349. Sexual assault is an alternative

verdict: s 578

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Sexual Assault
Definition: s 352(1) Any person who—
(a) Unlawfully and indecently assaults another person; or

(b) Procures another person, without the person's consent—
(i) To commit an act of gross indecency; or
(ii) To witness an act of gross indecency by the person or any other person;
Is guilty of a crime.
Offence: Maximum penalty is 10 years imprisonment (barring aggravating

circumstances).
Elements:
i. Type 1A: Any person who:

a. Unlawfully
-An act will be unlawful where it is not authorised, justified or excused
by law.
b. Indecently
1. No Code definition of ‘indecent’
2. Is a question of fact for the jury
-Conduct requires some sexual connotation
-Judged whether offensive according to contemporary
community standards
3. Narrow/strict definition:
-High threshold is more than basic dictionary definition of
‘unbecoming or offensive to common propriety’ as in Drago
[WA]
-For example, wallaby testicles- poor taste, unbecoming or
offensive, but not base or shameful: Bryant [Qld]
-Conduct that involves ‘moral turpitude’ or ‘acting in a base and
shameful manner’: Bryant [Qld]
-Confirmed/adopted in McBride [2008] QCA
4. Motive
-Conduct clearly sexual in nature means that motive is
irrelevant
-It is the objective character of the act
-Ambiguity: conduct not clearly sexual in nature means that
motive is irrelevant:
-E.g ambulance officer performing ECG, while touching
victim’s breasts for sexual gratification: Jones [2011] QCA

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c. Assaults:
1. Refer to assault definition in s 245
Direct or indirect actual application of force = Limb 1
a) Application of force
b) Directly or indirectly
c) Without consent
-See consent to assault: s 245(1)
Threatened or attempted application of force = Limb 2:
a) Attempts or threatens to apply force

b) Bodily act or gesture
c) Actual or apparent present ability to effect purpose
d) Without consent
-See consent to assault: s 245(1) CC
-E.g. Rolfe – flasher approaching victim with suggestion of
sexual activity
d. Another person
ii. Type 1B: Any person who:
a. Procures another person

-‘Procures’ is not defined in the Code
-Previously defined to mean ‘knowingly entice or recruit for the
purpose of sexual exploitation, BUT HAS BEEN REPEALED.
-This definition applies only in s 217(2)
-No directly applicable definition available NOW.
b. Without that person’s consent

1. To commit an act of gross indecency
2. To witness an act of gross indecency
3. ‘Gross’ ‘indecency’
-Indecent as above
-‘Gross’ means ‘plain, evident or obvious’: Whitehouse
-Clear indecent conduct
iii. Consent
a. Lack of consent must be proved
b. Current law in Qld is that the relevant consent [to s 352(1) sexual
assault] is that contained within the definition of ‘assault’ in s 245: R v
BAS [2005] QCA 97
c. Consent in s 348 only applies where the word consent applies in the
provision in chapter 32: R v BAS
-‘Without consent’ or consent obtained by fraud: s 245
-This position has been criticised by academics as ‘strict, literal and
non-purposive statutory interpretation’: Kenny, Burton & general logic
suggest that s 348 should apply
-Consent can be invalidated by any of the circumstances in s 348(2)

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iv. Consent to assault: s 245(1)

a. Consent is a question of fact
b. Consent determined by common law
c. Consent may be express, implied or tact: Kimmorley v Atherton
-Tacit means understood without having to be stated
-For example, kissing: consent more likely to be implied/tacit as
people don’t often ask for express consent: Kimmorley v Atherton
d. Implied/tacit consent will eliminate criminal responsibility for
inadvertent contact which occurs in the course of everyday life
e. Acts that are commonplace, intentional and not hostile do not amount
to an assault: Boughey v R
f. If committed inoffensively: ordinary incidents of social intercourse
which do not, without more, constitute battery
-Consent may be express, tacit, or inferred from the circumstances,
such as a pupil receiving tactile encouragement from a teacher: Horan
v Ferguson
g. Even where there is consent, there may, in certain circumstances, be
an assault: s 246 (2)
h. Assault will be committed where the degree of force used by the
accused exceeded that to which the victim consented: R v Rabbe
i. In sport:
-Players consent to a certain level of force outside the rules of the
game: McNamara v Duncan
j. Outside the rules and dangerous, unlawful assaults if deliberately or
recklessly executed: Re Lenfield
v. Consent to sexual offences:

See s 348 above.
vi. Sentence
a. Sexual assault is a crime, liable for:

1. Maximum 10 years imprisonment: s 352(1)(a) and (b)
2. Maximum 14 years imprisonment: s 352(2)
3. -If s 352(1)(a) or (1)(b) involves:
-Bringing into contact any part of the genitalia/anus of a person
with any part of the mouth of a person: s 352(2)
4. Maximum life imprisonment: s 352(3)

(a) immediately before, during, or immediately after, the
offence, the offender is, or pretends to be, armed with a
dangerous or offensive weapon, or is in company with any
other person; or
(b) for an offence defined in subsection (1)(a), the

indecent assault includes the person who is
assaulted penetrating the offender's vagina, vulva
or anus to any extent with a thing or a part of the
person's body that is not a penis; or

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(c) for an offence defined in subsection (1)(b)(i), the act

of gross indecency includes the person who is
procured by the offender penetrating the vagina,
vulva or anus of the person who is procured or
another person to any extent with a thing or a part
of the body of the person who is procured that is
not a penis.
vii. Alternative verdict
Sexual assault is an alternative verdict to a rape charge, providing the

elements of s 352 are made out.

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Attempted Rape
Offence: Any person who attempts to commit the crime of rape is guilty of a crime,
and is liable to imprisonment for 14 years: s 350
Elements:
i. Attempts
-An ‘attempt’ requires intention: s 4
(1) When a person, intending to commit an offence, begins to put the person's
intention into execution by means adapted to its fulfilment, and manifests the
person's intention by some overt act, but does not fulfil the person's intention
to such an extent as to commit the offence, the person is said to attempt to
commit the offence.
(2) It is immaterial, except so far as regards punishment, whether the offender

does all that is necessary on the offender's part for completing the
commission of the offence, or whether the complete fulfilment of the
offender's intention is prevented by circumstances independent of his or her
will, or whether the offender desists of his or her own motion from the further
prosecution of the offender's intention.
(3) It is immaterial that by reason of circumstances not known to the offender

it is impossible in fact to commit the offence.
(4) The same facts may constitute one offence and an attempt to commit
another offence.
ii. To commit rape

See rape: s 348
iii. Defence: Mistaken belief of consent: s 24

-A belief inconsent is inconsistent with an intention to commit rape, no matter
how unreasonable the belief may be: AG’s Reference (No 1 of 1977).

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Assault with Intent to Commit Rape
Offence: Any person who assaults another with intent to commit rape is guilty of a
crime, and is liable to imprisonment for 14 years: s 351
Elements:
Any person who-
i. Assaults another
a. Direct or indirect application of force: Limb 1
-Application of force
-Directly or indirectly
-Without consent
b. Threatened or attempted application of force: Limb 2
-Attempts or threatens to apply force
-Bodily act or gesture
-Actual or apparent present ability to effect purpose
-With consent
ii. With intent
-An attempt requires intention: s 4
iii. To commit rape
-Rape definition: s 349

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Unlawful Sodomy
Offence: Unlawful sodomy is a crime, liable to 14 year-life imprisonment: s 208
Elements:
i. Type 1:
a. The accused sodomised a person; and
b. ‘Sodomy’ is not defined in the Code
c. Ordinary meaning of sodomy = sexual intercourse per the anal orifice
by a male, with another male or female: Russell on Crime
d. Sodomy is complete on penetration of the anus by the penis: R v
Reekspear
e. That person was under 18 years: s 208(1)(a) CC
ii. Type 2:
a. The accused permitted a male person to sodomise him or her; and
b. That person was under 18 years: s 208(1)(b)
iii. Type 3:
a. The accused sodomised a person; and
b. That person was an intellectually impaired person: s 208(1)(d)
iv. Type 4:
a. The accused permitted a person to sodomise him or her; and
b. That person was an intellectually impaired person: s 208(1)(d)
v. Aggravated offences:
a. The person was a child under 12 years: s 208(2)(a)
b. The person was, to the knowledge of the accused –
c. His or her lineal descendant: s 208(2)(i)
d. Under his or her guardianship or care: s 208(2)(ii)
Sentence:
Unlawful sodomy is a crime, liable for:
1. Maximum 14 years imprisonment: ss208(1)(a) to (d)
2. Under aggravated circumstances life imprisonment: s 208(2)
Alternative verdict: Unlawful sodomy is an alternative verdict to rape: s 578

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Indecent Treatment of Children under 16

Offence: s 210
(1) Any person who—
(a) unlawfully and indecently deals with a child under the age of 16 years; or
(b) unlawfully procures a child under the age of 16 years to commit an indecent act;
or
(c) unlawfully permits himself or herself to be indecently dealt with by a child under
the age of 16 years; or
(d) wilfully and unlawfully exposes a child under the age of 16 years to an indecent
act by the offender or any other person; or
(e) without legitimate reason, wilfully exposes a child under the age of 16 years to
any indecent object or any indecent film, videotape, audiotape, picture, photograph
or printed or written matter; or
(f) without legitimate reason, takes any indecent photograph or records, by means of
any device, any indecent visual image of a child under the age of 16 years;
Is guilty of an indictable offence.
Elements:
i. Indecent dealing
a. The accused unlawfully and indecently dealt with a child
b. Unlawful means without authorisation, justification or excuse
-Consent is irrelevant
c. ‘Deals with’ includes doing any act which, of done without consent,
would constitute an assault under s 245: s 210(6)
d. The child was under the age of 16 years: s 210(1)(a)
e. Indecent: Narrow/strict definition
-High threshold means more than the basic dictionary definition of
‘unbecoming or offensive to common propriety’ as in Drago [WA]
-Indecent conduct involves ‘moral turpitude’ or ‘acting in a base and
shameful manner’: Bryant as confirmed/adopted in McBride [2008]
ii. Procuring a child

a.
iii. Permitting
iv. Exposing to child indecent act
v. Exposing child to indecent

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Unlawful Carnal Knowledge with or of Children under 16
Offence: Any person who has or attempts to have unlawful carnal knowledge with or
of a child under the age of 16 years is guilty of an indictable offence: s 215(1)
Elements:
i. Unlawful
a. Not authorised, justified, or excused by law
b. Consent is irrelevant
ii. Carnal Knowledge

a. Definition: If carnal knowledge is used in defining an offence, the
offence, so far as regards that element of it, is complete on
penetration to any extent: s 6(1)
b. NOTE: In this section, carnal knowledge does not include sodomy: s
215(6)
iii. With or of a child under the age of 16 years

a. If the child is of or above the age of 12 years, the offender is guilty of a
crime, and is liable to imprisonment for 14 years: s 215(2)
b. If the child is under the age of 12 years, the offender is guilty of a

crime, and is liable to imprisonment for life or, in the case of an
attempt to have unlawful carnal knowledge, to imprisonment for 14
years: s 215(3)
c. If the child is not the lineal descendant of the offender but the offender
is the child's guardian or, for the time being, has the child under the
offender's care, the offender is guilty of a crime, and is liable to
imprisonment for life or, in the case of an attempt to have unlawful
carnal knowledge, to imprisonment for 14 years: s 215(4)
d. If the child is a person with an impairment of the mind, the offender is

guilty of a crime, and is liable to imprisonment for life: s 215(4A)
e. If the offence is alleged to have been committed in respect of a child

of or above the age of 12 years, it is a defence to prove that the
accused person believed, on reasonable grounds, that the child was
of or above the age of 16 years: s 215(5)
f. If the offence is alleged to have been committed with the circumstance

of aggravation mentioned in subsection (4A), it is a defence to the
circumstance of aggravation to prove that the accused person
believed on reasonable grounds that the child was not a person with
an impairment of the mind: s 215(5A)

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Using Electronic Communication to Procure Children Under 16
Offence: Any adult who uses electronic communication with intent to procure a
person under the age of 16 years, or a person the adult believes is under the age of
16 years, to engage in a sexual act, either in Queensland or elsewhere, commits a
crime: s 218A(1)
Elements:
Any adult who uses electronic communication to-
a. ‘Electronic communication’ means email, internet chat rooms, SMS messages,
real time audio/video or other similar communication: s 218A(10)
Type 1:
i. Procure
a. ‘Procure’ means knowingly entice or recruit for the purposes of sexual
exploitation: s 218A(10)
b. It is not necessary to prove that the adult intended to procure the
person to engage in any particular sexual act: s 218A(5)
ii. A person under the age of 16 years, or a person the adult believes is under
the age of 16 years
iii. To engage in a sexual act: s 218A(3)

A person engages in a sexual act if the person-
a. Allows a sexual act to be done to the person’s body; or
b. Does a sexual act to the person’s own body or the body of another
person; or
c. Otherwise engages in an act of an indecent nature
d. Subsection (3) is not limited to sexual intercourse or acts involving

physical contact: s 218A(4)
e. Also, for subsection (1), it does not matter that, by reason of

circumstances not known to the adult, it is impossible in fact for the
person to engage in the sexual act: s 218A(6)
f. For subsection (1), it does not matter that the person is a fictitious
person represented to the adult as a real person: s 218A(7)
g. Evidence that the person was represented to the adult as being under
the age of 16 years, or 12 years, as the case may be, is, in the
absence of evidence to the contrary, proof that the adult believed the
person was under that age: s 218A(7)
h. It is a defence to a charge under this section to prove the adult

believed on reasonable grounds that the person was at least 16 years:
s 218A(9)
iv. Either in Queensland or Elsewhere: s 218A(1)

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Type 2
i. Expose
ii. Without legitimate reason
iii. A person under the age of 16 years, or a person the adult believes is under
the age of 16 years
iv. To any indecent matter
v. Either in Queensland or elsewhere: s 218A(1)
vi. Consent is irrelevant
Sentence:
i. Maximum penalty: 10 years imprisonment: s 218A(1)
ii. The adult is liable to 14 years imprisonment: s 218A(2)

a. The person is-
1. A person under 12 years; or
2. A person the adult believes is under 12 years
b. The offence involves the adult-
1. Intentionally meeting the person; or
2. Going to a place with the intention of meeting the person

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Incest
Offence: Any person who-
a. Has carnal knowledge with or of the person’s offspring or other lineal

descendant, or sibling, parent, grandparent, uncle, aunt, nephew or
niece; and
b. Knows that the other person bears that relationship to him or her, or
some relationship of that type to him or her
Commits a crime: s 222(1)
Elements:
i. The accused had carnal knowledge with a person; and
a. Consent to carnal knowledge is irrelevant: s 222(3)

b. Carnal knowledge includes sodomy: s 6(2)
c. Carnal knowledge is complete on penetration to any extent
d. [Penetration by the penis of the vagina, vulva or anus] includes
surgically constructed penis/vagina/vulva, whether for a man/woman:
s1
ii. The person fell within a category of relationship prescribed in the section;
and
a. A reference in this section to an offspring or other lineal descendant,

or a sibling or a parent includes a relationship of that type that is a
half, adoptive or step relationship: s 222(5)
b. ‘Step relationship’ means: For subsection (5), a reference to a step
relationship includes a relationship corresponding to a step
relationship arising because of cohabitation in a de facto relationship
or because of a foster relationship or a legal arrangement: s 222(6)
c. NOTE: This section does not apply to carnal knowledge
between persons who are:
-lawfully married: s 222(8)(a); or
-If both persons are adults-entitled to be lawfully married: s 222(8)(b)
iii. The accused knew the person bore that relationship (or some relationship of
that type) to him or her
iv. The accused was not lawfully married or entitled to be lawfully married to the
person: s 222(8)
Sentence:
This offence of incest is a crime, liable to:
i. Maximum life imprisonment: s 222(1)

ii. Attempted incest is a crime, liable to maximum 10 years: s 222(2)

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Bestiality
Offence: Any person who has carnal knowledge with or of an animal is guilty of a
crime and is liable to imprisonment for 7 years: s 211
Elements:
i. Any person who has

ii. Carnal knowledge
a. Carnal knowledge includes sodomy: s 6(2)

b. Carnal knowledge is complete on penetration to any extent: s 6(1)
c. Penetration by the penis of the vagina, vulva [or anus] of an animal
iii. With or of an animal
a. ‘Animal’ includes any living creature other than mankind: s 1

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Provocation
Provocation is considered a concession to human frailty- a “snapping point when an

ordinary person may do something that he would not dream of doing under normal
circumstances: Miller [2009] QCA 11
Scope of Defence/excuse:
i. Provocation can be a partial defence to a charge of murder in that it reduces
murder to manslaughter: s 304. This defence must satisfy both the evidential
onus and persuasive onus to the standard of balance of probabilities: s
304(7)
ii. Provocation can be a complete excuse to defences of which assault is an
element: s 268/269.
Elements specific to s 304
NOTE: On a charge of murder, the defence has the evidential and persuasive onus
that the person charged is, under this section, liable to be convicted of manslaughter
only: s 304(7)
i. Provocative incident
a. Definition in s 268 does not apply: common law applies
b. Provocative incident could be an act or insult
c. Cannot be induced by the accused: Pelsey (1990) 54 A Crim R 42 at
49
d. Provocation defence not available if provocation based on words
alone [except in extreme circumstances]: s 304(2); R v Moffa

ii. Killing occurred in the course of an actual loss of self control
a. Subjective test to determine of the accused actually lost self control
b. Extreme emotions can indicate an actual loss of self control
c. All surrounding circumstances must be considered to determine the

gravity of the provocation to the particular accused- same conduct
may be more or less insulting/hurtful depending on the person and
context
-For example, personal circumstances and attributes of the accused
and any relevant past conduct between the parties (to determine
gravity of provocation)
d. Accused must have acted in the heat of the moment before their
passion had cooled
-I.e. they must not have regained control and carried out premeditated
act of revenge.
e. Suddenness relates to provocation and not necessarily to the

response by the accused
f. Immediate response not required- provocation not necessarily

excluded by some interval between provocative incident and
response: Pollock (2010)

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g. If there is no immediate reaction and evidence of planning, a lapse of

time will not amount to provocation R v Morabito
iii. Could the alleged provocation have caused an ordinary person to lose self
control and act as the accused did? (Objective test)
a. Could or might have an ordinary person (of that age) subjected to
provocation of that level/gravity have lost his/her power of self control
and acted as the accused did
b. The seriousness of response is assessed from the perspective of the

accused, considering all personal characteristics
c. If immature, age is relevant but no other personal characteristics are

attributed to the ‘ordinary person’
d. Ordinary person is expected to have ordinary weaknesses and have

self control at the same level as ordinary citizens
e. Proportionality of response is not a separate requirement for s 304 but

may be relevant to both actual loss of self control and the ordinary
person objective test
f. At common law, an act is provocative if it deprives an ordinary person

of the power of self-control R v Buttigeig
g. It is necessary that the provocation only have been capable of

depriving the ordinary person of the power of self-
control: Masciantonio v R
iv. Ancillary issues:

a. s 304(8) provides that if more than one person is charged with the
murder then just because one of the parties can rely on s 304 to
reduce murder to manslaughter, it does not affect the liability of any of
the others to be convicted of murder
b. s 304 may be raised when the accused kills someone other than the
actual provocateur
EXEMPTIONS: s 304(3)
(3) Also, subsection (1) does not apply, other than in circumstances of a most
extreme and exceptional character, if—
(a) a domestic relationship exists between 2 persons; and

(b) one person unlawfully kills the other person (the deceased); and
(c) the sudden provocation is based on anything done by the deceased or anything
the person believes the deceased has done—
(i) to end the relationship; or
(ii) to change the nature of the relationship; or
(iii) to indicate in any way that the relationship may, should or will end, or that there
may, should or will be a change to the nature of the relationship.

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NOTE: Mere fact provocation was not offered by deceased to accused but to
someone else in their presence will not defeat defence of provocation. R v Quartly
-If the provocation is self-induced, the defence is not available Allwood v R
-Test was not whether the provocation would have been enough to cause the
ordinary person to react in the way the accused did but whether the ordinary person
could have been induced to have so far lost control as to form an intent to kill or
cause GBH. R v Green

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Excuse of Provocation in s 269(1) and (2)
“A person is not criminally responsible for an assault committed upon a person who
gives the person provocation for the assault, if the person is in fact deprived by the
provocation of the power of self control, and acts upon it on the sudden and before
there is time for the person’s passion to cool, and if the force used is not
disproportionate to the provocation and is not intended and is not such as is likely, to
cause death or grievous bodily harm.
“Whether any particular act or insult is such as to be likely to deprive an ordinary

person of the power of self control and to induce the ordinary person to assault the
person by whom the act or insult is done or offered, and whether, in any particular
case, the person provoked was actually deprived by the provocation of the power of
self control and whether any force used is or is not disproportionate to the
provocation are questions of fact”.
Definition of Provocation in s 268
(1) “Provocation”, used with reference to an offence of which an assault is an

element, means and includes, except as hereinafter stated, any wrongful act or insult
of such a nature as to be likely, when done to an ordinary person, or in the presence
of an ordinary person to another person who is under the person’s immediate care,
or to whom the person stands in a conjugal, parental, filial, or fraternal relation, or in
the relation of master or servant, to deprive the person of the power of self-control,
and to induce the person to assault the person by whom the act or insult is done or
offered.
(2) When such an act or insult is done or offered by one person to another, or in the
presence of another to a person who is under the immediate care of that other, or to
whom the latter stands in any such relationship as aforesaid, the former is said to
give to the latter provocation for an assault.
(3) A lawful act is not provocation to any person for an assault [but wrongful acts like
adultery can be provocation]
(4) An act which a person does in consequence of incitement given by another

person in order to induce the person to do the act, and thereby to furnish an excuse
for committing an assault, is not provocation to that other person for an assault.
(5) An arrest which is unlawful is not necessarily provocation for an assault, but it
maybe evidence of provocation to a person who knows of the illegality.
NOTE: Provocation in s 268/269 cannot be used for the offences of GBH, unlawful
wounding or attempted murder BECAUSE ASSAULT IS NOT AN ELEMENT OF
THESE OFFENCES.

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Onus of Proof: Accused person to raise evidence defence and need not prove it
beyond reasonable doubt or on balance of probabilities. Prosecution must negative
it. Woolmington v DPP
Elements specific to s 268/269
i. Provocative incident
-Must follow the definition in s268 (which incorporates the ordinary person
test)
-Ordinary person test: the provocation must have been such to have caused
an ordinary person to lose self control: R v Stingel
-Must be a wrongful act or insult
-“Insult” means any insult offered by any means, by words, signs, acts or any
other relevant means: R v Bedelph
-Must consider: What were the words spoken by the complainant/victim?
What were the physical act/s done by the complainant to the accused prior to
the assault that gave rise to the assault committed?
-NOTE: The word “wrongful” should not be used to qualify the “insult”: R v
Stingel
ii. Provocation offered to such ordinary person either:

a. Personally
b. To another in his/her presence and that other person stands in one of the
following relationships:
c. Under his immediate care
d. Conjugal: paternal, filial, fraternal or master or servant
-To use this defence, it is sufficient to be physically present with no
requirement of awareness: Major [2013] QCA 114 at [46-55]
-A single isolated act or a series of acts may amount to provocation Parker v

R
iii. Actual loss of self control

-The accused’s response MUST
a. Be on the sudden (immediate)
b. Involve force that is proportionate to the nature of the provocation
(objective test)
c. Involve force not intended to cause death/GBH (subjective test and
inferences to be drawn from the evidence) and not likely to cause death or
GBH (objective test)
d. NOTE: The question to answer is whether the provocation of that degree of
gravity would cause an ordinary person to lose self control and act in a
manner which would encompass the accused person’s action.
iv. Immediacy of response

-The person must act upon the provocation before there is time for their
passion to have cooled
-If a person is incited by another to respond to the provocation, defence does

not apply: s 268(4)

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- Response does not need to be immediate but Longer delay and stronger
evidence of deliberation of defendant will mean it is more likely prosecution
will negative provocation R v Chhay
-Where there is continuous abuse, there is no need for a triggering event. R v
Secretary
v. Force used must be proportionate to nature of provocation
-Objective test
-Force used was not intended to cause death/GBH (subjective test and
inferences to be drawn from the evidence) and not likely to cause death or
GBH.
-Ordinary person test: Masciantonio (1995) 183 CLR 58
-Test of the ordinary person is an objective test
-It is the standard of conduct required of the community of the ordinary

person who bears only the characteristic of age of the accused
-Any other attribute or characteristic of the accused may be taken into

account for the purpose of determining the gravity of the provocation offered
to the accused
-Heat of passion is based on knowledge and education rather than

experience. R v Miller
-Proportionality is determined by identifying the causal connection or

proximity between actual force and the wrongful act or insult. Verhoeven v
Ninyette
-Note: s268 test is whether “likely” to cause ordinary person to lose self
control.
Availability of the excuse: The excuse of provocation under ss268 and 269 only
applies to offences of which assault is an element: Kaparanovski v R. ss268 and 269
do not apply to a charge of unlawfully doing GBH.
Effect of the excuse under s 269: Accused will be acquitted of the charges: s
269(1)

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Self Defence against Minor Unprovoked Assault: s 271(1)
When a person is unlawfully assaulted, and has not provoked the assault, it is lawful
for the person to use such force to the assailant as is reasonably necessary to make
effectual defence against the assault, if the force used is not intended, and is not
such as is likely, to cause death or grievous bodily harm.
Onus of Proof: Self defence is an excuse so the accused need only raise some
evidence of self defence with the prosecution to negative beyond reasonable doubt:
R v Muratovic
Elements:
i. An unlawful assault on the victim by the accused
-Apply the definition of assault in s 245, state whether limb 1 or 2 apply
ii. Accused did not provoke the assault from the victim
-If there was provocation and the accused could rely on ss268/269 to excuse
their assault on the accused, apply s 272
-If there was no provocation, the accused can rely on s 271 to excuse their
assault on the accused
iii. Force used by the accused was reasonably necessary to make effectual
defence against the assault
-The question is whether the force used was reasonably necessary to make
effectual defence against the assault. This can be seen to be an objective
question only. R v Hagarty
-In 271(1) the force must be reasonably necessary, and is objective and is not
concerned with the offender’s state of mind R v Gray
-Where accused delivers several blows, there is no need to consider whether

a particular blow is reasonably necessary R v Ellem
iv. Force used not intended and not likely to cause death or GBH
-There is no requirement that it does not cause death, but that it is not
intended or likely to do so: R v Prow
-“Likely” is a higher standard than “possible consequence” in accident: R v Hung
Effect of Excuse:
-If this excuse is successfully raised, it will result in a full acquittal for the
accused.
-This excuse excuses manslaughter as well as lesser offences: R v Prow

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Self Defence against Major Unprovoked Assault: s 271(2)

If the nature of the assault is such as to cause reasonable apprehension of death or
grievous bodily harm, and the person using force by way of defence believes, on
reasonable grounds, that the person can not otherwise preserve the person
defended from death or grievous bodily harm, it is lawful for the person to use any
such force to the assailant as is necessary for defence, even though such force may
cause death or grievous bodily harm.
Elements:
i. Unlawful assault by the victim on the accused
-Apply definition of assault in s 245 and state whether limb 1 or 2 applies
ii. Accused did not provoke the assault
iii. Nature of the assault such as to cause reasonable apprehension of

death/GBH
-Objective test to be applied: apprehension of harm must be that of a
reasonable person: Muratovic
-There is no additional requirement that the force used be objectively

necessary: R v Gray
-The opportunity to retreat may be relevant to the existence of reasonable

grounds for the belief in the necessity for self-preservation, but it is not a
requirement R v Sreckovic; R v Johnson
-A jury can’t be wiser after the offence. R v Willmot; R v Johnson
iv. Accused believes on reasonable grounds that he/she cannot otherwise

preserve themselves from death/GBH
-Accused must actually believe on reasonable grounds that they cannot

preserve themselves from death or grievous bodily harm other than by using
force Marwey v R
-Must consider whether the apprehension of death or GBH was reasonable:

Muratovic
-Evidence of threats against the life of the person assaulted made to third
persons and communicated by them to the accused will generally be
admissible R v Keith
-Nature of assault depends upon what the assailant did and said at the time
of the assault, the weapon they employed and the manner of its use but also
the disposition or mental attitude of the assailant by his previous
manifestations and declarations of hostility R v Keith

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-The deceased’s design to do violence upon the defendant is of some value

to show that on the occasion in question he did carry out or attempted to carry
out his design. R v Keith
-The accused’s state of mind at the time of the killing will be material to
determine the justification of their belief in an impending attack by the
deceased R v Keith
-Reputation of the deceased for violent, dangerous or turbulent disposition will

contribute to a belief of harm R v Keith
-The fact that the circumstance creating apprehension is a single act or a

series of acts instead of general character will not destroy capacity to create
apprehension. R v Keith
-Court will admit evidence when “common sense” tells us they could
legitimately affect defendant’s apprehensions R v Keith
-If an accused intended to kill or do gbh, they cannot raise this defence unless
before taking action, they declined further conflict and quitted it or retreated
as far as practicable R v Muratovic
-It is not only immediate altercation or fight, can look at prior acts R v Osland
-The accused must subjectively believe that they cannot otherwise preserve
themselves from death or GBH. The belief must be held on reasonable
grounds, but it is the existence of an actual belief to be the critical or decisive
factor. R v Gray
-Whether there was a belief on the part of the accused that the force he used
was necessary and whether there existed reasonable grounds for that belief.
The former inquires as to the state of the accused's mind; the latter is an
objective question in the sense that it does not at all involve the accused's
belief but is exclusively concerned with the jury's view of the grounds,
whether they constitute reasonable grounds for the accused's belief. R v
Muratovic
-There has to be some basis in the evidence for thinking that the actions of
the deceased man were such as to cause at least a reasonable apprehension
of grievous bodily harm on the part of the appellant: R v Bojovic
-The act of force must be one in respect of which the accused possesses a
belief based upon reasonable grounds, the belief being that unless he
performs it "he cannot otherwise preserve" himself.
Effect of the Excuse: A successful application of this excuse will result in a full
acquittal. This excuse is available even when the accused is charged with
murder. This excuse will also excuse manslaughter in addition to any lesser
offences (Prow).
If the use of force is excessive, then it is not lawful: s 283

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-The question of whether retaliation is excessive is one in which the court

applies what it perceives to be the community standard: Biddle v Dimmock.
Self defence against Major Provoked Assault: s 272
(1) When a person has unlawfully assaulted another or has provoked an assault from
another, and that other assaults the person with such violence as to cause
reasonable apprehension of death or grievous bodily harm, and to induce the person
to believe, on reasonable grounds, that it is necessary for the person's preservation
from death or grievous bodily harm to use force in self-defence, the person is not
criminally responsible for using any such force as is reasonably necessary for such
preservation, although such force may cause death or grievous bodily harm.
(2) This protection does not extend to a case in which the person using force which
causes death or grievous bodily harm first begun the assault with intent to kill or to do
grievous bodily harm to some person; nor to a case in which the person using force
which causes death or grievous bodily harm endeavoured to kill or to do grievous
bodily harm to some person before the necessity of so preserving himself or herself
arose; nor, in either case, unless, before such necessity arose, the person using
such force declined further conflict, and quitted it or retreated from it as far as was
practicable.
Elements:
i. Accused either initially assaulted the victim OR provoked an assault

ii. Victim assaulted accused with such violence as to cause reasonable
apprehension of death/GBH
iii. Accused believed (subjective) on reasonable grounds (objective) that it was
necessary to use force to preserve themselves from death/GBH
iv. Force used by the accused was reasonably necessary to preserve, i.e. not
excessive
-Objective assessment of the level of force used
-Was force used more than reasonably necessary to save the accused?
 -This protection doe NOT extend to a case in which the person using force
which causes death or GBH:
-First began assault with intent to kill or do GBH to some person
-Endeavoured to kill or to do GBH to some person before the necessity of so

preserving himself or herself arose 
-Nor in either case, unless, before such necessity arose, the person using
such force declined further conflict and quitted it or retreated from it as far as
was practicable.

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Other Defensive Force

Other provision:
 -S 267- defence of a dwelling: Spajic [2011] QCA 232 -
-S 270- preventing repetition of act/insult: Major [2013] QCA 114
-S 273- aiding in self-defence 
-S 274- defence of moveable property against trespassers
 -S 275- defence of moveable property with claim of right 
-S 276- defence of moveable property without claim of right
 -S 277- defence of premises against trespassers 
-S 278- defence of possession of property
Aiding in Self Defence:
In any case in which it is lawful for any person to use force of any degree for the
purpose of defending himself or herself against an assault, it is lawful for any other
person acting in good faith in the first person's aid to use a like degree of force for the
purpose of defending the first person: s 273
Elements:
i. Accused protected a third person using lawful force
-Force used must be lawful and not excessive
ii. The accused acted in good faith
-Reasonable grounds for a belief can be held even if they are founded on a
genuine mistake of fact: R v Chisam
-Accused will not be acting in good faith where they provoke the victim
first White v Conway

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Killing for Preservation in an Abusive Domestic Relationship: s

304B(1)
A person who unlawfully kills another (the deceased) under circumstances that, but
for the provisions of this section, would constitute murder, is guilty of manslaughter
only, if—
(a) the deceased has committed acts of serious domestic violence against the
person in the course of an abusive domestic relationship; and
(b) the person believes that it is necessary for the person's preservation from
death or grievous bodily harm to do the act or make the omission that causes
the death; and
(c) The person has reasonable grounds for the belief having regard to the
abusive domestic relationship and all the circumstances of the case.
Elements:
i. Unlawful killing that would otherwise constitute murder
-Work through the elements of an unlawful killing, then consider murder
ii. Serious acts of domestic violence

-See s 8 of the DFVPA
iii. Abusive domestic relationship

-An abusive domestic relationship is a domestic relationship existing between
2 persons in which there is a history of acts of serious domestic violence
committed by either person against the other: s 304B(2)
-A history of acts of serious domestic violence may include acts that appear
minor or trivial when considered in isolation: s 304B(3)
iv. Belief that it was necessary for the person’s preservation from death or GBH
-The wording of s 304B(1)(b) indicates case law for s 271 should be relied on.
A subjective test will therefore be applied: R v Gray
-Battered women have been found to feel a psychological sense of inability to
leave abusive relationships: Lavallee v R
v. Reasonable grounds for that belief having regard to the abuse and all the
circumstances of the case
-Objective test
This indicates that the grounds for belief must be objectively reasonable
taking into account the previous acts of domestic violence and all of the
circumstances of the case. Those circumstances include acts of the
deceased that were not acts of domestic violence: CC, s 304B(6)
-Subsection (1) may apply even if the act or omission causing the death (the
response) was done or made in response to a particular act of domestic

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violence committed by the deceased that would not, if the history of acts of
serious domestic violence were disregarded, warrant the response. s304B(4)
-i.e there is no need to show proportionality if the belief is reasonable
Extraordinary Emergencies
Rationale: there are some special circumstances where a person should not be
made criminally liable for acts that would usually constitute a criminal offence
Subject to the express provisions of this Code relating to acts done upon compulsion
or provocation or in self-defence, a person is not criminally responsible for an act or
omission done or made under such circumstances of sudden or extraordinary
emergency that an ordinary person possessing ordinary power of self-control could
not reasonably be expected to act otherwise: s 25
Onus of Proof: Evidential onus is on the accused, but the onus of excluding the
defence is on the prosecution Larner v Dorrington
NOTE: If there is evidence of compulsion, self-defence or provocation THIS

DEFENCE DOES NOT APPLY: R v Lacey; Ex parte Attorney General
Elements:
i. The act must have been done under circumstances of sudden or
extraordinary emergency
-An emergency is a situation where a person has reasonable cause to believe
that circumstances exist which are likely to endanger life or property. Dudley
v Ballantyne
-Emergency does not need to be life threatening providing it is otherwise
sufficiently distressing Berbic v Steger
-Must be a causal nexus between the emergency and what the accused does
in response to it: Osbourne v Dent; Ex Parte Dent
-Life or death situation: Riley v Fuchs
-A person may honestly and reasonably, yet mistakenly believe a state of
emergency exists. R v Warner
-Driving to get medicine for sick child Moore v Pierce
-Driving offence where honestly and reasonably believed there was a state of
emergency (s 24 operating): R v Warner and Webb
-Classic case: Dudley v Stevens
A person may honestly and reasonably, yet mistakenly believe a state of
emergency exists. R v Warner
ii. Regarding the particular act done- an ordinary person with ordinary self-
control could not be expected to act in a way different from how the accused
acted.
-What would an ordinary person with ordinary self control be expected to do

in response to emergency. Dudley v Ballantyne
-Age is the only factor taken into account. Dudley v Ballantyne
Effect of this excuse: Full acquittal.

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Compulsion: s 31
(1) A person is not criminally responsible for an act or omission, if the person does or
omits to do the act under any of the following circumstances, that is to say—
(a) in execution of the law;

(b) in obedience to the order of a competent authority which he or she is bound by
law to obey, unless the order is manifestly unlawful;
(c) when the act is reasonably necessary in order to resist actual and unlawful
violence threatened to the person, or to another person in the person's presence;
(d) when—
(i) the person does or omits to do the act in order to save himself or herself or
another person, or his or her property or the property of another person, from serious
harm or detriment threatened to be inflicted by some person in a position to carry out
the threat; and
(ii) the person doing the act or making the omission reasonably believes he or she or
the other person is unable otherwise to escape the carrying out of the threat; and
(iii) doing the act or making the omission is reasonably proportionate to the harm or
detriment threatened.
However, this protection does not extend to an act or omission which would
constitute the crime of murder, or an offence of which grievous bodily harm to the
person of another, or an intention to cause such harm, is an element, nor to a person
who has by entering into an unlawful association or conspiracy rendered himself or
herself liable to have such threats made to the
person. s31(2) R v Maygar
Onus of Proof: The accused has to raise the excuse but the Crown has the onus of
excluding the operation of excuse: R v Smyth
s 31(1)(a):
Can only apply where the act is necessary in the performance of the person’s duty so
that it can be truly said to be a compulsion of that duty: R v Slade
s 31(1)(b):
-Is directed to a subordinate’s obedience to orders such as a soldier, sailor,
constable or a gaoler. Hunt v Maloney
-An ordinary agent is not necessarily bound to obey his principal’s orders. Hunt v
Maloney
s31(1)(c):
-This excuse is similar to self defence. It excuses those who are resisting violence
threatened to them or another person that is in their presence
-NOTE: Does not apply to acts of murder or GBH: R v Fietkau
-Where the victim is using force to protect himself/herself in legitimate self defence,
an assault on the victim will not be excused under s31(1)(c) because the victim is not
acting unlawfully White v Conway

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s31(1)(d):
-RATIONALE: The threat has completely overcome a persons free choice and action
through no fault of their own and it is unjust to make a person criminally liable for that
act in the circumstances
-Threat must be effective at the time the crime is committed R v Hudson
-It is sufficient if the compulsion operating on accused’s mind at the time of the act be
exerted by a present threat of future harm. R v Taiapa
-If the period of time between threat and act is long, it will not be reasonable to
perform the criminal act. R v Taiapa
-It is not a sufficient threat where a party voluntarily becomes a party to a criminal
enterprise, but they are then threatened to ensure they do not resile from the bargain
entered into: R v Hurley and Murray
-Would a person of ordinary mind yielded to the situation that the accused
considered he was in. R v Palazoff
-There are established principles that persons cannot simply excuse themselves by
going along with a demand to go along with criminal conduct. R v Taiapa

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Act Independent of Will: s 23

(1) Subject to the express provisions of this Code relating to negligent acts and
omissions, a person is not criminally responsible for—
(a) an act or omission that occurs independently of the exercise of the person's will.
Onus of Proof: Evidential onus is on accused to show some evidence, Crown must
negative the defence beyond reasonable doubt: R v Falconer
NOTE: Evidence is required to show the accused acted independently of their will or
Does not need to be on balance of probabilities, only some evidence. R v Falconer
NOTE: Where there is criminal negligence, the s 23 excuses cannot be used:

Hodgetts and Jackson
Elements:
i. An act or omission
-The ‘act’ must be distinguished from its consequences: R v Taiters
-The ‘act’ is the physical or bodily action, not the result of that act: Valance v
R
-Narrow view is the preferred view: R v Kaparanovski
-Examples of acts:
-Making the bodily movement, not the fatal wounding: R v Falconer
-Wielding a stick, but not the killing of a child with the stick: Timbu Kolian v
Queen
ii. That occurs independently of the exercise of the person’s will
-An act is "willed", that is, if the accused performed the act of their own free
will and by decision: R v Falconer
-There is an assumption that a person who is conscious has the ability to

control their actions and their actions are done with choice R v Falconer
-An act independent of will means act which is done by the muscles without
any control such as a spasm, reflex action or convulsion or an act done by
person who is not conscious of what he is doing: Bratty v Attorney General for
Northern Island
-An act is not independent of will merely because someone does not
remember it Hill v Baxter
-Acts committed under Excitability, passion, stupidity, obtuseness, lack of self

control, are not independent of will. R v Falconer

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-A person does not commit an act independent of will if they are weak willed
and cannot resist temptation R v Holmes
-Acts committed due to Weak personality traits which fall below the standard
of a healthy mind, or a propensity to surrender to anxiety or stress are not
acts independent of will. R v Falconer
Sane Automatism vs Insane Automatism
1. Insane Automatism
-Means an unwilled act is caused by some internal factor
- If the involuntary character of the conduct in question is referable
exclusively to disease of the mind, the applicable law is that relating to
insanity R v Radford
-A temporary disorder or disturbance of an otherwise healthy mind
caused by external factors will be an act independent of will rather than
insanity R v Radford
2. Sane Automatism
-Means the unwilled act is caused by some external factor, for example
a psychological blow, stress, anxiety/fear in response to an external
stimuli
-Examples:
-Sleepwalking is an act independent of will: R v Holmes
-A spasm, reflex action or convulsion: Bratty v Attorney General for Northern
Ireland
-Side effects of concussion will be an act independent of will: Cooper v
McKenna
-Act induced by hypoglycemia is an act independent of will: R v Bailey
-A reflexive or convulsive movement of muscles is an act independent of
will: Ryan v R
-Automatism can be self induced, but NOT with alcohol or drugs R v Bailey
NOTE:
-If a person is threatening someone and are conscious of the situation and
they commit an act in immediate response to an apprehension of danger, it is
NOT an involuntary act: Ryan v R
-Dissociative states caused by psychological blow, stress, anxiety or fear of

an otherwise sound mind. Only where the mind’s strength is not below that of
an ordinary person: R v Falconer
-A standard of mental strength of the ordinary person which when faced with
psychological trauma, strength of mind protects them from insanity: R v
Falconer
Effect of this excuse: Full acquittal of the accused.

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Insanity
Presumption of Sanity: Every person is presumed to be of sound mind, and to have
been of sound mind at any time which comes in question, until the contrary is proved:
s 26
Defence of Insanity: s 27
(1) A person is not criminally responsible for an act or omission if at the time of doing
the act or making the omission the person is in such a state of mental disease or
natural mental infirmity as to deprive the person of capacity to understand what the
person is doing, or of capacity to control the person's actions, or of capacity to know
that the person ought not to do the act or make the omission.
(2) A person whose mind, at the time of the person's doing or omitting to do an act, is
affected by delusions on some specific matter or matters, but who is not otherwise
entitled to the benefit of subsection (1), is criminally responsible for the act or
omission to the same extent as if the real state of things had been such as the
person was induced by the delusions to believe to exist.
Elements:
i. Accused was in a state of mental disease or natural mental infirmity, so as to:

-Whether a person is insane is a question of fact for the jury: R v True
To be a mental disease, there must be an underlying pathological infirmity of

the mind be it of long or short duration and be it permanent or temporary
which can be properly termed mental illness. R v Radford
-State of mind must be one of disease, disorder or disturbance. Mere

excitability of a normal man, passion, stupidity, obtuseness, lack of self-
control and impulsiveness are not mental diseases R v Porter
-A disorder or deterioration of the brain is not essential, physical condition that

affects mental functioning will be a mental disease. R v Kemp
-Insanity does not arise where the malfunction of the accused’s mind is
transient, associated with an external factor outside the accused’s body and
not prone to recur R v Falconer
-The person must prove they were actually affected by the disease when
committing the act R v Foy
-A mental condition produced by external factors will still be a mental disease:

R v Rolph

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-A disorder of the mind resulting from intoxication or stupefaction is not an

unsoundness of mind or a combination of underlying mental disease affected
by alcohol drugs: Re Bromage
-NOTE: If the unsoundness is caused by an underlying condition AND the

effects of alcohol/drugs, it will be an underlying mental disease Re Bromage
Established Mental Diseases:
-Arteriosclerosis (hardening of the arteries): R v Kemp

-Delirium Tremens (alcoholism causing insanity) R v Dearnley
-Hyperglycemia (high blood sugar from diabetes) R v Hennessy
i.e Where a person behaves strangely due to low blood sugar, inherent
defect, which is a disease
-Reactive depression R v Milloy
-Schizophrenia R v Michaux
-Epileptic automatism R v Foy
-Encephalitis and other congenital brain diseases R v Rolph
-Accumulation of organic phosphates Re Bromage
-Mental disorder manifested itself in violence. R v Bratty
Not Mental Diseases:
-A weak minded person who is easily affected by excitement: R v Moore

-State of Dissociation: R v Falconer
-Absence of power R v Holmes Personality disorder: R v Hodges
-External factors such as drugs hypnosis or violence: R v Kemp
ii. Deprive the accused of the capacity to:

(Only need to prove one of the three)
iii. Understand what he/she was doing; OR
-The accused must lose their capacity to understand due to illness.

-The capacity to understand means to be able to know the character, physical
nature & quality of the act being done.
-Was the person prevented by mental disorder from knowing the physical
nature of the act they are doing. R v Porter
-Must have so little capacity for understanding the nature of life and
destruction of life that to them it is no more than breaking a twig or destroying
an inanimate object. R v Porter
iv. Control his/her actions; OR

will and by decision R v Falconer
-Therefore to apply this excuse the accused’s actions must not have been
willed
v. Know that he/she ought not to do the act
-The standard of what is wrong is wrong having regard to the everyday
standards of reasonable people R v Porter

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Effect of Defence: If successfully raised, the accused will be acquitted from criminal
charges and instead will be referred to the Mental Health Court: s 647
Diminished Responsibility: s 304A
(1) When a person who unlawfully kills another under circumstances which, but for
the provisions of this section, would constitute murder, is at the time of doing the act
or making the omission which causes death in such a state of abnormality of mind
(whether arising from a condition of arrested or retarded development of mind or
inherent causes or induced by disease or injury) as substantially to impair the
person's capacity to understand what the person is doing, or the person's capacity to
control the person's actions, or the person's capacity to know that the person ought
not to do the act or make the omission, the person is guilty of manslaughter only.
(2) On a charge of murder, it shall be for the defence to prove that the person
charged is by virtue of this section liable to be convicted of manslaughter only.
(3) When 2 or more persons unlawfully kill another, the fact that 1 of such persons is
by virtue of this section guilty of manslaughter only shall not affect the question
whether the unlawful killing amounted to murder in the case of any other such person
or persons.
NOTE: The defence of diminished responsibility in s 304A can only apply to an

accused charged with murder. If successfully raised, this defence will reduce murder
to manslaughter because one ought not to be criminally responsible for murder when
they are suffering from an abnormality of mind.
Onus of Proof: On the defence to prove the elements on balance of probabilities, but
the prosecution must negative this excuse beyond reasonable doubt.
Elements
i. At the time of the killing, he/she was suffering from an abnormality of mind
-Insanity requires that a person was completely deprived of capacity whereas

diminished responsibility requires a substantial impairment R v Rolph
-Supreme Court Benchbook refers to “a state of mind so different from that of

ordinary human beings that a reasonable person would describe it as
abnormal” – distinguish from states within the normal range of human
emotions (eg. anger, distress, lack of self-control)
-Whether or not there is an abnormality in the accused’s mind is a question of

fact for the jury to determine: R v Rolph
-Abnormal state of mind can’t be caused by prejudice, anger, temper,

jealousy, religious influences, political influences or intoxication R v Whitworth
-Psychosocial factors are NOT enough on own. Must manifest into
recognisable disorder. R v Whitworth

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-That for the defence of diminished responsibility to be available, it must be

shown that the state of abnormality of mind was directly related to one or
more of the prescribed causes set out in s.304A, namely a condition of
arrested or retarded development of mind, inherent causes, disease or
injury. R v Whitworth
ii. This abnormality of mind arose from 1 of the specific issues; AND
See the above element
iii. This abnormality of mind substantially impaired one of the relevant capacities
-“Substantial” means less than totally, but more than slightly impaired: Beiss
Capacity to understand what they are doing:

Was the person prevented by mental disorder from knowing the physical
Know they ought not to do what they’re doing:
-Was he prevented from knowing what he was doing was wrong. R v Porter
i.e the accused knows they are killing, knew how they were killing and knew
why, but they could not appreciate that the killing was wrong
Control person’s activity:
Effect of this defence: If successfully raised, this defence will reduce murder to
manslaughter.

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Accident: s 23(1)(b)
(1) Subject to the express provisions of this Code relating to negligent acts and
omissions, a person is not criminally responsible for—
(b) an event that—

(i) the person does not intend or foresee as a possible consequence; and
(ii) an ordinary person would not reasonably foresee as a possible consequence.
Onus of Proof: The accused has the onus of raising the evidence pertaining to the
excuse. The onus then shifts to the Crown to negative the excuse beyond
reasonable doubt: Woolmington v DPP
-NOTE: Where there is criminal negligence, the s 23 provisions cannot apply: R v

Hodgetts v Jackson
Elements:
i. Event
-An event in the context of accident is a reference to the consequence of the

act: R v Taiters
-An event is a consequence to an act: Kaparanovski
-EXAMPLES: death of the child, not the wielding of a stick: Timbu Kolian v R
GBH, not the forcing a glass into the person’s face: Kaporonovski v R
-An accident is not an accident of it is a certainty, a substantial likelihood or

more probable than not: R v Taiters
-A person who does an act and has special knowledge which allows them to
foresee the consequences will be liable for an event which is unforeseeable
by an ordinary man. R v Knutsen
-Accident cannot be used as an excuse to murder because intention is an

essential element, therefore, to use the defence shows the crown can’t prove
intention. R v Skeritt
ii. Person does not foresee as possible

-Subjective element: did the accused intend/not intent or foresee the event?
iii. Ordinary person would not foresee as possible

-Would an ordinary person have objectively foreseen the event as a result of
the act?

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iv. Egg Shell Skull rule:
Reflects the principle that you must take your victim as you find them
Apply if: Event not foreseeable or intended and where the victim dies/suffers
GBH
However, under subsection (1)(b), the person is not excused from criminal
responsibility for death or grievous bodily harm that results to a victim
because of a defect, weakness, or abnormality: s 23(1A)
-The phrase “defect, weakness, or abnormality” in s. 23(1A) is intended to

include bodily abnormalities however caused: R v Steindl
-When the function of an item or such device is the direct result of medical or
surgical intervention to ameliorate a natural weakness or constitutional
abnormality, the result should be regarded as
an “abnormality”: R v Steindl
-Jewellery, or piercings will not be considered a defect, weakness or

abnormality because they have no effect on bodily function: R v Steindl
-The words “defect, weakness, or abnormality” should here be given their

current meaning consistent with changing technology. R v Steindl
Abnormality includes: Pacemaker, hearing aid, transplanted kidney, artificial

joint, shrapnel from a wound, coin lodged in a digestive organ, scars, but not
jewelry or piercings.

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Intoxication: s 28
(1) The provisions of section 27 apply to the case of a person whose mind is
disordered by intoxication or stupefaction caused without intention on his or her part
by drugs or intoxicating liquor or by any other means.
(2) They do not apply to the case of a person who has, to any extent intentionally
caused himself or herself to become intoxicated or stupefied, whether in order to
afford excuse for the commission of an offence or not and whether his or her mind is
disordered by the intoxication alone or in combination with some other agent.
(3) When an intention to cause a specific result is an element of an offence,

intoxication, whether complete or partial, and whether intentional or unintentional,
may be regarded for the purpose of ascertaining whether such an intention in fact
existed.
Onus of Proof for Limb 1: s 28(1) raises s 27 so the defence will need to raise the
excuse on balance of probabilities with the prosecution to negative beyond
reasonable doubt.
Onus of proof for Limb 2: The accused must raise some evidence of the defence with
the prosecution to negative beyond reasonable doubt: Dearnley v R. This is a
question of fact for the jury: R v Cameron
First Limb:
s 28(1) applies the s 27 insanity provisions only where the intoxication is involuntary
s 28(2): Insanity provisions do not apply where the person is ‘to any extent’
intentionally intoxicated
Second Limb:
s 28(3) Intoxication, whether complete or partial and whether intentional or

unintentional can be considered when the offence includes an intent to cause a
specific result as an element.
First limb
i. Was the intoxication unintentional?

-‘Unintentional means under circumstances for which he/she could not be
fairly held responsible: Corbett
-For example, if the accused unknowingly/unwillingly took a substance

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-Intoxicate: to stupefy, render unconscious or delirious to madden or deprive

of the ordinary use of the senses or reason with drug or an alcoholic liquor to
inebriate, make drunk: Haggie v Meredith
-Stupefy to make stupid or torpid, to deprive of apprehension feeling or

sensibility to benumb, deaden. To become stupid or torpid to grow dull or
insensible. Haggie v Meredith
ii. Did the intoxication disorder the person’s mind

-Subjective element
-Typically medical evidence used to determine whether the intoxication
disordered the persons mind
-If accused satisfied jury on balance of probabilities of these three things, the
accused will be found not guilty on accout of unsoundness of mind: s 647
iii. Did the disordered mind deprive the person of one of the capacities listed in s
27
-The intoxication must be to the point where the accused is deprived of the
capacity to understand what they were doing, the capacity to control their
actions and the capacity to know that he ought not to do the act for which he
is charged: R v Corbett
Understand what they are doing:

-Was the person prevented by mental disorder from knowing the physical
Know they ought not to do what they’re doing:

-Was he prevented from knowing what he was doing was wrong: R v Porter
i.e the accused knows they are killing, knew how they were killing and knew
why, but they could not appreciate that the killing was wrong
Control person’s activities:

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Second Limb- Intentional Intoxication:
NOTE: The second limb is only relevant for offences which have intention as an
element e.g. murder, stealing, intent to do GBH: s 317
i. Intoxication
As for the first limb
ii. Complete or partial intoxication

- If the intoxication is complete, there can be no intention. R v Crozier
- It is not correct to say that because the accused was partially intoxicated,
they were capable of forming a specific intent there was presumption that
they intended the natural and probable consequences of their acts R v
Crump
- If the intoxication is only partial, it is for the jury to decide as question of
fact whether intent existed: R v Crozier
- It does not matter how long the effects last, s28(2) does not only refer to
fleeting intentional intoxication R v Clough (No 2) relevance to s 28(3)
iii. Intent
-Intent must be the essence of the crime: R v O’Reagan
- Must have enough evidence of intoxication to adduce whether a reasonable

man would have doubt as to the existence of intent Dearnely v R
- Jury may regard the evidence of such drunkenness with the evidence of all
other circumstances when it considers whether the accused had requisite
intent of offence Dearnley v R
- If the offence has an element of knowledge, intoxication is not a defence R v

O’Reagan
-Was intent actually formed? This is important because it is not whether the
accused was so drunk as to render them incapable of forming the intent, but
rather whether or not they actually, in fact, had that intent: R v Crump
Effect of this excuse: The accused will be fully acquitted for any offence
because there is no residual offence

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Mistake: Overview
-Two kinds:
-Mistake of law (s 22) -Mistake of fact (s 24)
-Mistake of law does NOT affect criminal liability (s22(1)), ‘ignorance of the law is no
excuse’: Iannella v French
-2 exceptions/qualifications to this general rule:
-Honest claim of right with respect to property: s 22(2)
-Contravention of an unknown and unpublished statutory instrument: s 22(3), (4) -

Mistake of fact DOES remove (or reduce) criminal liability: s 24
-Both s 22(2) and s 24 are excuses (not defences)
Mistake of Law: s 22
(1) Ignorance of the law does not afford any excuse for an act or omission which
would otherwise constitute an offence, unless knowledge of the law by the offender is
expressly declared to be an element of the offence.
(2) But a person is not criminally responsible, as for an offence relating to property,
for an act done or omitted to be done by the person with respect to any property in
the exercise of an honest claim of right and without intention to defraud.
(3) A person is not criminally responsible for an act or omission done or made in
contravention of a statutory instrument if, at the time of doing or making it, the
statutory instrument was not known to the person and had not been published or
otherwise reasonably made available or known to the public or those persons likely
to be affected by it.
Rationale for the Rule:

-Main justification=expediency. The justice system would not work very well if the
prosecution had to prove that the accused knew the offence
-A mockery of the criminal law would occur if an accused person could break the law
on the basis of erroneous legal advice or a self-serving understanding of the law:
Ostrowski v Palmer per Calling and Heydon JJ at para [85]
-Also justified on basis of moral/social reasons for recognising conduct is wrong

(aside from actually knowing the specific legal prohibition)

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-But for regulatory offences harder to justify rule- purpose is to import a responsibility
to apprise themselves of the legal status of their conduct
1st Exception to the Rule: Honest Claim of Right
-Code s 22(2): But a person is not criminally responsible, as for an offence relating to
property for an act done or omitted to be done by the person with respect to any
property in the exercise of an honest claim of right and without intention to defraud
-Note that s 36 of the Cod ensures that s 22 Code applies to offences created within
or outside of the Code (but subject so 36(2))
-it is a claim to an entitlement in or with respect to property (a claim about the civil
law) -More than just a claim or freedom to act in a particular manner/to be exempt
from the criminal law (i.e. not just a belief that you are doing nothing unlawful)
Elements of Claim of Right Under s 22(2):

1) Offence relating to property
2) Act done or omitted in relation to property 3) in the exercise of an honest claim of

right 4) No intention to defraud
Elements 1 and 2- Offences/Acts Relating to Property
-Broad interpretation of the concept of ‘an offence relating to property’, including a

claim of right to act in respect of property (Walden v Hensler, Waine, Molina v
Zaknich)
-Section 1 Code definition of proeprty
-Claim to a proprietary or possessory right in property
-Claim to be entitled to act in respect of property

-Honest belief must be that one is legally entitled to do to the property the act which
one is doing
-Belief may come from the consent of the owner OR from a person believed to bt the
owner
-Belief may come from a mistake as to one’s own title
Element 3- Honest Claim

-Needs to be an honest claim, not necessarily reasonable
-What types of claim qualify?
1) Claim must relate to an existing entitlement (not a future one)- See Pollard
2) Not necessary to be grounded in a legal right: Pollard; Mueller v Vigilante
3) Claim characterised as being claim if immunity from prosecution does not qualify
Olsen v Grain Sorghum; R v Cunliffe
4) Claim may be based on claim of another person: Mueller v Vigilante
Element 4: No intention to Defraud

-Superfluous element given the requirement that the claim of right must be honest -
Definition of ‘to defraud’: to deprive another of property by deceit: Balcombe v de
Simoni -A person may resort to unlawful means (even force) to obtain property under

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an honest claim of right (R v Jeffrey where appellants convicted of robbery)

-If the offence contains an element of ‘intent to defraud’, s 22 Code will not apply
because the prosecution would have provided this element separately
2nd Exception to the Rule: Unpublished Statutory Instruments: s 22(3)-(4)
Code s22(3):
-A person is not criminally responsible for an act or omission done or made in

contravention of a statutory instrument if, at the time of doing or making it, the
statutory instrument was not known to the person and had not been published or
otherwise reasonably made available or known to the public or those persons likely
to be affected by it.
(4) In this section— publish—
(a) in relation to a statutory instrument that is subordinate legislation—means notify

in accordance with section 47 (Notification) of the Statutory Instruments Act 1992;
and
(b) in relation to a statutory instrument that is not subordinate legislation—means

publish in the Gazette.
Unpublished Statutory Instruments
-Relatively rarely invoked -Hogan v Sawyer:
-A prisoner’s conviction of an offence of possessing money in prison contrary to rules

was set aside
-Knowing that he would be in trouble for having the cash was not sufficient -Needed
to know the substance of the prohibition and that he may be convicted in Court for
the act

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Mistake of Fact: s 24
(1) A person who does or omits to do an act under an honest and reasonable, but
mistaken, belief in the existence of any state of things is not criminally responsible for
the act or omission to any greater extent than if the real state of things had been
such as the person believed to exist.
(2) The operation of this rule may be excluded by the express or implied provisions of
the law relating to the subject.
-Note that s 36 Code ensures that s 24 Code applies to offences created within or
outside of the Code but note s 36(2) Code
-Recall that s 24 often raised re consent in sexual offence cases (e.g. Rope)
Mistake of Fact: Elements

(1) A person
(2) Does or omits to do an act
(3) Under an honest and reasonable but mistaken belief
(4) In the existence of a state of things
-First two elements are straightforward; the 3rd and 4th are more complex
Element 3: Honest but Mistaken Belief -Points to note:
-Honest belief is one genuinely/actually held by the accused (subjective element) -

Intoxication may be relevant to whether the accused’s mistaken belief was honestly
held: R v O'Loughlin
-Belief must be one positively held:
ie not mere inadvertence, ignorance or oversight of relevant facts: Clough v Rosevar,

GJ Coles and Coy Ltd v Goldsworthy, Pearce v Stanton
Element 3: Belief Must be Reasonable
- Objective (reasonable – belief is held on reasonable grounds, not what a

reasonable person would have believed)
-Subjective (personal attributes and characteristics of the accused that affect his/her
appreciation or perception of the circumstances and over which they have no control,
for example, age (maturity), gender, ethnicity, physical, intellectual and other
disabilities: Aubertin [2006] WASCA 229
-State of intoxication, cultural, religious and other values are not considered when
assessing the reasonableness of the belief (Aubertin)

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-Personal attributes and characteristics are assessed, and then reasonableness is

based on generally accepted community standards
-R v Mrzljak ([2004] QCA 420: in a sexual assault case the intellectual impairment
and language difficulties of the appellant were held to be relevant to assessing the
reasonableness of his belief that the complainant was consenting to the sexual acts
in question
Element 4: Belief in the Existence of Any State of Things

-Excuse is confined to matters of present state of things/fact and excludes beliefs in
relation to consequences of acts: Gould and Barnes
-cf Pacino- belief about danger posed by dogs=state of things or consequences of
dogs attacking someone?
Mistake of Fact- Complete or Partial Excuse?

-Accused only relieved of criminal liability to the same extent as if the real state of
things had been such as she/he mistakenly believed them to be: Walker
-Scenarios where criminal responsibility or a residual offence would remain?
Exclusion of s 24
-Mistake of fact may be excluded by the express or implied provisions of the law: s
24(2) -Note: s 36(2) Code
-Matter of statutory construction:
-e.g. s 229- Code- knowledge of age is immaterial (offences against morality in

Chapter 22 Code)
Mistake and Subjective Mental Elements (Outside s 24)

-Mistake of fact may operate outside s 24 for criminal offences where the prosecution
has to prove a subjective fault element such as intention
-E.g. in murder under Code s 302(1)(a) where the accused thought a shotgun was
unloaded but it was not, no intention to kill or do GBH
Distinguishing Mistake of Law from Mistake of Fact

-Distinguishing a mistake of law from a mistake of fact is difficult: Iannella v French
-Mistake of fact- where accused is mistaken as to existing facts relevant to the legal
characterisation of their conduct
-Mistake of law- where the accused is mistaken as to the legal effect of existing,
known facts
-Mistake of mixed fact and law
Mistake of Fact or Law?
-Bigamy cases: R v Tolson; R v Kennedy; Thomas

-Sancoff v Holford; ex parte Holford
-Power v Huffa
-Key High Court case: Ostrowski v Palmer (contrast with facts in Australian Fisheries
Management Authority v Mei Ying Su)

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-Recent driving cases: Cook v Commissioner of Police; Knight v Raddie
Exam Questions on Mistake

-Consider each mistaken belief separately
-For each mistake, decide whether it is a mistake of law or of fact -If a mistake of law,
consider whether it falls within the exceptions-
-Honest claim of right in regard to property
-Unpublished/unknown statutory instruments

-If a mistake of fact, work through the elements, paying particular attention to the
issues that are contentious on the facts

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Unlawful Killing
Definition of ‘killing’: Except as hereinafter set forth, any person who causes the
death of another, directly or indirectly, by any means whatever, is deemed to have
killed that other person: s 293
It is unlawful to kill any person unless such killing is authorised or justified or excused
by law: s 291
Offence: Any person who unlawfully kills another is guilty of a crime, which is called
murder or manslaughter, according to the circumstances of the case: s 300
Elements:
i. Any person
a. A child becomes a person capable of being killed when it has
completely proceeded in a living state from the body of its mother,
whether it has breathed or not, and whether it has an independent
circulation or not, and whether the navel-string is severed or not: s
292
b. Killing unborn child: s 313

1. Any person who, when a female is about to be delivered of a
child, prevents the child from being born alive by any act or
omission of such a nature that, if the child had been born alive
and had then died, the person would be deemed to have
unlawfully killed the child, is guilty of a crime, and is liable to
imprisonment for life.
2. Any person who unlawfully assaults a female pregnant with a
child and destroys the life of, or does grievous bodily harm to,
or transmits a serious disease to, the child before its birth,
commits a crime.
c. NOTE: s 282(1)(b) may provide excuse for operations performed to

save the mother’s life
d. Homicide can result from acts before the child’s birth, if death is after
birth - Castles [1969] QWN 36 (per Lucas J); Martin (No.2) (1996) 86
A Crim R 133
ii. Unlawfully
a. To constitute an unlawful killing, the killing must be without
authorisation, justification or excuse
b. Authorisation: A killing can be authorised by legislation or common
law

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-For example, the Police Powers and Responsibilities Act 2000 (Qld) s
616(4)
c. Justification:
d. Excuse: Defences and excuses under the Code, such as s 271: Self
defence against unprovoked assault
e. Consent to death is immaterial: s 284
iii. Kills: defined in s 293

-Sub elements of ‘kills’
a. ‘Causes’
1. A person must cause the death of another
2. Whether the acts or omissions of the accused are capable of
constituting causation (as a matter of law) is a question for the
judge
3. Whether the acts or omissions of the accused did (as a matter
of fact) constitute causation is a question for the jury
4. Factual connection between the conduct of the accused and
the resulting event can justify attribution of legal responsibility.
5. Apply the causation tests
-R v Smith: other factors such as negligent treatment don’t
break causation unless so far removed that the original wound
is merely the setting in which the death occurs (cf R v Jordan -
wound was already healing when negligent treatment caused
death)
-The criminal code definition of causation is wider than

Common Law. R v Vera Humpheries
-NOTE: See murder for the causation tests
b. ‘Death’
1. ‘Death is not defined
2. Transplantation and Anatomy Act 1979 (Qld) s 45(1) definition
for death: “a person dies where there has been irreversible
cessation of circulation of blood in the body of the person, or
irreversible cessation of all function of the brain of the person”
3. Death may be presumed from circumstantial evidence
If the elements of unlawful killing are made out, the offence will be either
murder or manslaughter.

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Murder
Definition: s 302
1. Except as hereinafter set forth, a person who unlawfully kills another under
any of the following circumstances, that is to say—
a. If the offender intends to cause the death of the person killed or that of
some other person or if the offender intends to do to the person killed
or to some other person some grievous bodily harm
b. If death is caused by means of an act done in the prosecution of an

unlawful purpose, which act is of such a nature as to be likely to
endanger human life;
c. If the offender intends to do grievous bodily harm to some person for

the purpose of facilitating the commission of a crime which is such that
the offender may be arrested without warrant, or for the purpose of
facilitating the flight of an offender who has committed or attempted to
commit any such crime;
d. If death is caused by administering any stupefying or overpowering

thing for either of the purposes mentioned in paragraph (c)
e. If death is caused by wilfully stopping the breath of any person for

either of such purposes;
Is guilty of murder
Offence: Murder is punished under s 305
Elements:
i. Unlawfully
a. As for unlawful killing: cannot be authorised, justified or excused by
law
ii. Causes
The accused must be both the factual and legal cause of death: Royall v R
CAUSATION ELEMENT: Use causation tests from Royall v R (1990) 172
CLR 378 as adopted by R v Sherrington in Queensland
a. The test for causation has two facets:
-There must be a factual link between the accused’s action or inaction
and the result charged (often expressed as the ‘but for’ test)

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-The second facet of causation relates to the application of causation

tests for legal causation
1. Factual cause-‘But for’ test

-Would the death of the victim have occurred but for (that is, without) the
actions of the accused R v Hallett
-If independent multiple sufficient causes operate together to produce the

result, each cause is a factual cause of death Krakouer v WA
-Where the death has been brought by an innocent agent, the test will still be
satisfied. White v Ridley
-If there are several factors present which could produce death, but victim
contributes substantially, test is satisfied. R v Carter
-Only If the second cause of death is so overwhelming to make original

wound part of history can it be said death does not flow from the wound R v
Smith
-If two causes work in conjunction with each other to cause death, it must be
proven beyond reasonable doubt that deceased died as a result of BOTH of
the causes R v Jemelita
2. Legal causation tests: Operating and substantial cause test

-This test means that if the accused’s unlawful killing was an operating and
substantial cause of the death of the victim, they will have caused that death.
-The wrongful act or omission must be an operating cause and a substantial

cause sufficient to justify the attribution of moral culpability. Need not be the
sole or even main cause: R v Pagett
-Significant = not trivial Krakouer v WA
-Deane and Dawson JJ in Royall at 411: if the accused’s conduct is a

substantial or significant cause of death, that will be sufficient, given the
requisite intent, to sustain a conviction for murder. It is for the jury to
determine whether the connection between the conduct of the accused and
the death of the deceased was sufficient to attribute causal responsibility to
the accused”.
3. Natural consequence test

-Where the conduct of the accused induces a well-founded apprehension of
physical harm such as to make it a natural consequence (or reasonable) that

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the victim would seek to escape, and the victim is injured in the course of
escaping, the injury is caused by the accused’s conduct: Royall
4. Reasonable foresight of consequences test

-Was the victim’s death a reasonably foreseeable consequence of the
accused’s conduct?
-If causation is expressed in terms of foreseeability, there is little or no scope
for the operation of the excuse of accident under s23 of the CC because the
accused is not criminally responsible for an event that is unforeseen by him or
her and not reasonably foreseeable.
5. Novus actus interveniens test: R v Padgett (1983)
-When a person causes a bodily injury to another from which death results, it
is immaterial that the injury might have been avoided by proper precaution on
the part of the person injured, or that the injured person's death from that
injury might have been prevented by proper care or treatment: s 297
-Victims must be taken as they are found, regardless of weakness, defect or

abnormality: R v Blaue
-When a person does grievous bodily harm to another, and such other person
has recourse to surgical or medical treatment, and death results either from
the injury or the treatment, the person is deemed to have killed that other
person, although the immediate cause of death was the surgical or medical
treatment, provided that the treatment was reasonably proper under the
circumstances, and was applied in good faith: s 298
-Leaving a hospital against orders of doctors won’t break the chain R v

Bingapore
-Switching off life support will not break the chain of causation R v Kinash
-A decision to withhold a drug will constitute treatment R v Cook
-However, abnormal medical treatment can break the chain of causation if
administered negligently by medical staff: R v Jordan (1956)
Natural Event:
-A natural event will not break the chain of causation unless it was
extraordinary: R v Hallet
Third Parties:
-The behaviour of another person will not break the chain of causation if it is
closely connected to the act or omission of the accused or if it was
reasonably foreseeable as the result of the behaviour of the accused. R v
Pagett
-Act of self defence or performance of legal duty will not break chain R
v Pagett
-Must be a voluntary intervention (Padgett)
-Not voluntary if reasonable for self-preservation (Padgett)
Acts of Victim:

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-The wrongful act must induce a well founded apprehension (of physical harm
from the accused) in the victim
-As a result of that apprehension a natural consequence will be that the victim
seeks to escape
-In escaping they die - the fatal injury caused by the act of escaping
-Reaction must not have been unreasonable or disproportionate having
regard to the wrongful act not foreseeable by ordinary person. If the reaction
was foreseen or intended by the accused then the test is satisfied and the
chain is not broken even if unreasonable: Royall v R
iii. Death
As above for an unlawful killing.
Intentional Murder: s 302(1)(a)

i. No definition of ‘intention in the Code
ii. Requires intention to cause death or GBH
a. Definition of GBH: s 1
(a) The loss of a distinct part or an organ of the body; or
(b) Serious disfigurement; or
(c) Any bodily injury of such a nature that, if left untreated,
would endanger or be likely to endanger life, or cause or be
likely to cause permanent injury to health
Any or all of these are sufficient to prove murder: R v Cronau
iii. If causation is established and there is an intention to commit GBH or

kill the victim, then there will be a murder under the Code.
iv. INTENT: Direct or design intention
-A person intends a result where the prospect of achieving the result

provides the purpose or reason for acting R v Willmot (No 2)
-Knowledge of the probability of death or GBH is not an element. R v

Crabbe
-Recklessness is not sufficient R v Crabbe
-Intention is a state of mind that can never be proved as a fact, but

may be inferred from facts which are proved: Sinnasamy
Selvanayagam v R
-The mental element in murder consists of an intention to kill or cause

serious injury and not merely of foresight that death or serious injury
will be a probable consequence of the accused person’s voluntary act:
R v Moloney
-R v Moloney was followed in R v Willmot (No. 2) where it was held

that when directing a jury on the mental element necessary in a crime
of specific intent elaboration or paraphrase of what is meant by ‘intent’

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should be avoided as the word ‘intent’ is an ordinary and well

understood word.
R v Hancock and Shankland: Moloney guidelines require an

explanation that the greater probability of a consequence the more
likely it is that the consequence was foreseen and that if the
consequence was foreseen the greater the probability is that the
consequence was intended: Lord Searman at 651
Oblique or Knowledge Intention
-When the accused does something to result in a virtual certainty of

another event occurring: Woolin
-“Intention” means the act of “determining mentally upon some result”.

Intention is a purpose or design: R v Reid
-Where death caused by accused, cannot rely on mistake as to

precise time and manner of occurrence of death: R v Thabo Mali
-If accused creates a situation intended to kill and it does kill, it is

immaterial if death occurs in way or time that is unexpected. R v
Michael
-Was death or really serious injury a natural consequence of the

defendant’s voluntary act and did
he foresee that consequence of being a natural consequence. R v
Moloney
-Intention is not the same as motive or desire. R v Wilmot

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Dangerous act killing: s 302(1)(b)

Elements (in addition to it being an unlawful killing)
i. A dangerous act
a. Determined objectively: Gould v Barnes
b. Towley J held: - held that the question of whether the act is
likely to so endanger is objective, and up to the jury as
reasonable people - informed by experts if necessary.
c. ‘Likely’ does not mean it’s more probable than not the act
would endanger life. It just means that there is a real and
remote chance-not a case of being more than a 50/50 chance:
Hind and Harwood (1995) 80 A Crim R 105
d. Whether act is likely to so endanger, up to jury as reasonable

people, informed by experts if necessary. R v Gould & Barnes
e. It is not only the objective nature of the thing in question but

also the practical consequences of it being used or managed
carelessly R v Dabelstein
f. Act can be dangerous due to circumstances of act or

characteristics of victim R v Skilton
g. Actions which cause death do not need to be proven as a

scientific certainty: R v Hodgetts & Jackson
ii. An unlawful purpose

a. Must be a separation between the unlawful purpose and the
dangerous act: Gould v Barnes
-In that case, the unlawful purpose had been to procure an
abortion, and dangerous act was introducing liquid into uterus
b. Need not be a great separation between unlawful purpose and

the dangerous act: Stuart v R
c. R v Hughes :‘Dangerous’ could be merely an assault, but must

be assaulting the victim of in pursuit of some other unlawful
purpose. In this case assault was both the unlawful purpose
and the dangerous act- so only convicted of serious assault

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d. If the separation required between the dangerous act and the

unlawful purpose is minimal (R v Stuart) and that this minimal
separation is satisfied by setting fire to a building in order to
commit arson (R v Stuart) and by penetrating in order to
commit rape (Skilton) but in striking someone to commit an
assault, you would have to examine the facts closely (R v
Hughes).
e. What is required is an act in the pursuance of the common

desire, something done to achieve the unlawful purpose
iii. Act must be done in prosecution of an unlawful purpose

- Must be “in furtherance” of the unlawful purpose, not just during or
while the unlawful purpose is being carried out R v Phillips and
Lawrence
- Murder cannot stand where the person commits the dangerous act
but does so for no other purpose. Hughes v R
iv. Corpus Delecti (No body)
If body cannot be found: Where a body cannot be found, death may

be presumed on the basis of circumstantial evidence. Circumstantial
evidence is evidence that is not direct. But infer that accused caused
the death.
In order to bring a verdict of guilty based entirely upon circumstantial

evidence, it is necessary that guilt should not only be a rational
inference it must be the ONLY rational inference that can
be drawn from the circumstances Shepherd v R
• Guilt from circumstantial evidence may be inferred when accused

refuses to give evidence to contradict or vary facts which can easily
be perceived to be in his knowledge Weissensteiner v R
Penalty for Murder: Any person who commits the crime of murder is liable to
a mandatory imprisonment for life, which can not be mitigated or varied under
the code, or is liable to an indefinite sentence under part 10 of the Penalties
and Sentences Act 1992: s 305(1)

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Attempted Murder
Offence: Any person who—
a. Attempts unlawfully to kill another; or
b. With intent unlawfully to kill another does any act, or omits to do any
act which it is the person's duty to do, such act or omission being of
such a nature as to be likely to endanger human life;
is guilty of a crime, and is liable to imprisonment for life: s 306
Type 1
Elements:
i. The accused attempted to kill another person

ii. The attempt was unlawful
a. The completion of one of a series of acts intended to result in killing is
an attempt to murder even though this completed act would not,
unless followed by the other acts, result in killing.
-R v White: Completed act was putting a dose of poison that was not
sufficient to cause death
Type 2
Elements:
i. The accused did an act, or failed to do an act which they had a duty to do
ii. The act or omission was of such a nature that it would be likely to endanger
human life
iii. It was done with the intention to unlawfully kill someone

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Manslaughter
Definition: A person who unlawfully kills another under such circumstances as

not to constitute murder is guilty of manslaughter: s 303
Manslaughter = all unlawful killings not defined by murder in s 302
Offence: Any person who commits the crime of manslaughter is liable to

imprisonment for life: s 310
Indictment containing count of murder or manslaughter: s 576
(1) Upon an indictment against a person containing a count of the crime of murder,
the person may be convicted on that count of the crime of manslaughter if that crime
is established by the evidence but not on that count of any other offence than that
with which the person is charged except as otherwise expressly provided.
(2) Upon an indictment against a person containing a count of the crime of

manslaughter the person can not on that count be convicted of any other offence
except as otherwise expressly provided.
Charge of Homicide of Child: s 577
However, upon an indictment charging a person with the murder of any person, or
with unlawfully killing any person, if upon the evidence it appears that the person
alleged to have been killed was a child of which a female had recently been
delivered, the accused person may be convicted of an offence defined in section 313
or 314, if any offence under either of those sections is established by the evidence
s 313: Killing Unborn Child
s314: Concealing the birth of a child

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Unlawful Striking Causing Death
S 314A
(1) A person who unlawfully strikes another person to the head or neck and causes
the death of the other person is guilty of a crime.
Maximum penalty—life imprisonment.
(2) Sections 23(1)(b) and 270 do not apply to an offence against subsection (1).
(3) An assault is not an element of an offence against subsection (1).
(3A) For subsection (1), the striking of another person is unlawful unless it is
authorised or justified or excused by law.
(4) A person is not criminally responsible for an offence against subsection (1) if the
act of striking the other person is—
(a) done as part of a socially acceptable function or activity; and

(b) reasonable in the circumstances.
(5) If a court sentences a person to a term of imprisonment for an offence mentioned

in subsection (1), the court must make an order that the person must not be released
from imprisonment until the person has served the lesser of—
(a) 80% of the person's term of imprisonment for the offence; or

(b) 15 years.
(6) Subsection (5) does not apply if the court sentences the person to—
(a) a term of imprisonment for life; or

(b) an indefinite sentence under the Penalties and Sentences Act 1992; or
(c) a term of imprisonment and makes either of the following orders under the
Penalties and Sentences Act 1992 for the person—
(i) an intensive correction order;
(ii) an order that the whole or a part of the term of imprisonment be suspended.
(7) In this section—
causing means causing directly or indirectly.

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function or activity includes a sporting event.
strike, a person, means directly apply force to the person by punching or kicking, or
by otherwise hitting using any part of the body, with or without the use of a
dangerous or offensive weapon or instrument.
Criminal Negligence:

Offence: Any person who unlawfully does any act, or omits to do any act which it is
the person’s duty to do, by which act or omission bodily harm is actually caused to
any person, is guilty of a misdemeanour, and is liable to imprisonment for 2 years: s
328
Chapter 27 of the Code imposes certain duties on persons in relation to the

preservation of human life. These are not offence creating provisions, but if any of
these duties are breached then the accused is held to have caused any
consequences that result to the life or health of any person. Therefore, a breach of
these duties can amount to causation for the purposes of unlawful killing.
Elements:
i. Act or omission where duty to act:

a. Duties:
1. Provide necessaries: s 285
2. Person who has care of a child: s 286
3. Person doing dangerous things: s 288
4. Persons in charge of dangerous things: s 289
-Negligent operation of flying fox ride: R v Clark
5. Duty to do certain acts: s 290
-Failure to perform duty to take positive action and causes bodily
harm is an offence
ii. Caused bodily harm
a. Definition in s 1:
1. Any bodily injury that interferes with health or comfort
iii. Unlawfully
a. Not authorised, justified, or excused by law

Duty to provide necessaries: s 285
It is the duty of every person having charge of another who is unable by reason of
age, sickness, unsoundness of mind, detention, or any other cause, to withdraw
himself or herself from such charge, and who is unable to provide himself or herself
with the necessaries of life, whether the charge is undertaken under a contract, or is
imposed by law, or arises by reason of any act, whether lawful or unlawful, of the
person who has such charge, to provide for that other person the necessaries of life;
and the person is held to have caused any consequences which result to the life or
health of the other person by reason of any omission to perform that duty.
-Mere negligence does not suffice, must be so great to satisfy a jury that the accused
is reckless or careless R v Nicholls

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- “Necessaries of life” are not defined but extend at least as far as things a person
needs to survive (food, water, shelter and clothing) R v McDonald & McDonald
- “Necessaries” may encompass protection from a third party: R v Russell
- If a particular form of medication/ treatment necessary for a person to live/function it
is a necessity of life R v Nielsen & Anor
-Will apply loco parentis (person in place of father or mother). R v Clarke & Wilton
- Extends to elderly relatives under care. R v Instan
Duty of persons doing dangerous acts: s 288
It is the duty of every person who, except in a case of necessity, undertakes to

administer surgical or medical treatment to any other person, or to do any other
lawful act which is or may be dangerous to human life or health, to have reasonable
skill and to use reasonable care in doing such act, and the person is held to have
caused any consequences which result to the life or health of any person by reason
of any omission to observe or perform that duty.
Case Example:
Patel [2010] QSC 199
Duty of persons in charge of dangerous things: s 289
It is the duty of every person who has in the person's charge or under the person's
control anything, whether living or inanimate, and whether moving or stationary, of
such a nature that, in the absence of care or precaution in its use or management,
the life, safety, or health, of any person may be endangered, to use reasonable care
and take reasonable precautions to avoid such danger, and the person is held to
have caused any consequences which result to the life or health of any person by
reason of any omission to perform that duty.
Case Examples:
-In the case of R v Dabelstein [1966] it was stated by Wandstall CJ that a thing is
dangerous not only due to its objective nature, but the practical consequences of it
being used or managed carelessly.
Hoffman v Neilsen [1928]

In the case of Hoffman v Neilsen [1928], it was held that a jagged piece of metal
thrown from a train constituted a ‘dangerous thing’
R v Officer [1922]
In the case of R v Officer [1922], it was held that an unlit vehicle being driven down a
dark road was a ‘dangerous thing’
R v Hogetts & Jackson

A normally harmless object can be dangerous in the circumstances
Hoffmann v Nielsen
A thing can be dangerous even if the object or practice is common acceptance in
certain a community.

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R v O’Halloran [1967]
In the case of R v O’Halloran [1967] it was stated that criminal negligence can apply
even if the acts were done deliberately or willfully, with a full appreciation of the risk,
but an intention to avoid it
R v Houghton
Bodily fluids can be a dangerous thing.
Duty to do certain acts

Section 290 of the Code provides that when anyone undertakes to do any act the
omission to do which is or may be dangerous to human life or health, is the person’s
duty to do that act: and the person is held to have caused any consequences which
result to the life or health of any person by reason of any omission to perform that
duty.
Case Example:
R v Watson; ex parte A-G (Qld) [2009] QCA 279
Breach of these statutory duties
-If a homicide offence, apply tests for an unlawful killing

-If GBH, apply GBH tests
-It is sufficient that the negligence complained of is a cause of death, it need not be
the sole or direct cause: R v Russell
- Where there is no intentional act causing death it must be established death was
caused by person failing to perform duty in which case excuses of lack of will or
accident can be argued but it must be established the breach is due to negligence: R
v Griffiths
-The Negligence must go beyond a mere matter of compensation between subjects

and shows such disregard for the life and safety of others as to amount to a crime
against the state and conduct deserving punishment: R v Bateman
-Whether the acts are so wicked as to be deserving of criminal punishment is

determined by comparison with community standards R v Scarth
-Must be such gross negligence as to be a crime against the state: R v Hansen
-Criminal negligence can bring a charge of Murder or Manslaughter R v MacDonald
-Criminal Negligence is NEVER “authorised, justified or excused by law” because

this is not an element Griffiths v R


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Robbery
Definition: Any person who steals anything, and at or immediately before or

immediately after the time of stealing it, uses or threatens to use actual violence
before or immediately after the time of stealing it, uses or threatens to use actual
violence to any person or property in order to obtain the thing stolen or to prevent or
overcome resistance to its being stolen, is said to be guilty of robbery: s 409
Offence: Any person who commits the crime of robbery is liable to imprisonment for
14 years: s 411(1). If the offender is or pretends to be armed with any dangerous or
offensive weapon or instrument, or is in company with 1 or more other person or
persons, or if, at or immediately before or immediately after the time of robbery, the
offender wounds or uses any other personal violence to any person, the offender is
liable to imprisonment for life: s 411(2)
Elements:
i. Steals
a. Definition of ‘stealing’: A person who fraudulently takes anything

capable of being stolen, or fraudulently converts to the person’s own
use or to the use of any other person anything capable of being
stolen, is said to steal that thing: s 391(1)
b. Means a taking of something from someone they are intending to
permanently deprive the person of that thing.
ii. Anything
iii. Uses or threatens to use actual violence
a. No difference between using actual violence to any person and using
personal violence: De Simoni per Gibbs J
b. ‘Actual violence’ means no more than physical force which is real and
not merely threatened or contemplated: De Simoni
c. The smallest amount of actual violence will be sufficient: Jerome
[1964] Qd R 595
d. Must be some actual or threatened violence and there must be more
than just fear of violence
e. Violence could be:
-Actual violence to person
-Actual violence to property
-Threatened violence
f. May not be actual violence if the person is not actually resisting
(Jerome and McMahon)
g. For example: removal of purse/shoes from body of
unconscious/otherwise non-resisting person, did not necessarily
amount to actual violence, because victim unaware: Jerome per
Gibbs J

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iv. To any person or property

v. In order to obtain the thing stolen or prevent resistance to its being stolen
a. Violence must occur in order to give effect to the stealing, compared
to where the violence is merely part of the taking (Gnosil)
b. Struggle to overcome resistance constitutes actual violence: Hood

Sentence:
Robbery is a crime, liable for:

i. Maximum 14 years imprisonment: s 411(1)
ii. Maximum life imprisonment: s 411(2)
a. Armed (or pretending to be armed) with any dangerous or offensive
weapon or instrument
-‘Armed’ includes gun, sword, and a syringe full of blood Miles, Pratt
-Pretending to be armed; e.g. ruler under jacket like gun; red
substance indicating blood in a syringe
b. In company with one or more person or persons

-Mere presence is sufficient
-‘In company’ doesn’t mean more than 1 has to actually strike the
victim, i
-It is enough for more than 1 to be physically present for the common
purpose: Brougham
-E.g. Embolden/reassure offender committing a crime, or intimidate
victim into submission
-TEST for physical presence is whether there is such proximity
between the co-defendants to enable the interference that coercive
effects of the group operate: Brougham
c. [At or immediately before or after the time of robbery], wounds or uses
any other personal violence to any person
-‘Wounds’ requires a breaking of the true skin
-‘Personal violence’ is more significant than threatened violence
-NOTE: This third option of personal violence can be both an element
of the simple offence of robbery and an aggravating circumstance: De
Simoni
-Aggravating factors must be charged in the indictment: Johnson;
Phillips and Lawrence; McGoldrick
Alternative Charges:
i. Attempted robbery: s 412
ii. Assault with intent to steal: s 413
iii. Demanding property with menace and intent to steal: s 414
iv. Stealing, available under s 575


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Burglary
Offence: Any person who enters or is in the dwelling of another with intent to commit
an indictable offence in the dwelling commits a crime: s4 19(1)
Elements:
i. Enters or is in
a. A person is said to enter a dwelling or premises as soon as any part of
the person's body or any part of any instrument used by the person is
within the dwelling or premises: s 418(2)
b. A lack of consent to enter or be in the dwelling is not an element for
Queensland offences. R v Rigney
a. ‘Premises’ includes: (s 418(4))
1. A building, structure and a part of a building or structure other
than a dwelling; and
2. A tent caravan or vehicle; and
3. Any similar place
ii. Dwelling of another

a. ‘Dwelling’ includes any building or structure, or part of a building or
structure, which is for the time being kept by the owner or occupier for
the residence therein of himself or herself, his or her family, or
servants, or any of them, and it is immaterial that it is from time to time
uninhabited: s 1
b. ‘Structure’ includes material construction which are not buildings;
therefore a caravan is a dwelling: Rose
c. Motel unit occupied by a person for a week is a dwelling: Halloran
-NOTE: Need to show it is kept for residence
iii. With intent to commit an indictable offence

a. Crimes and misdemeanours are indictable offences; that is to say, the
offenders can not, unless otherwise expressly stated, be prosecuted
or convicted except upon indictment: s 3(3)
b. If accused raises a defence to a subsidiary offence, burglary cannot
be established. R v King
c. Intention is a state of mind that can never be proven as a fact, but
may be inferred from fact which are proved: Sinnasamy
Selvanayagam v R [1951] AC 83
-For example, open drawers; things thrown in disarray may indicate
attempts to locate property with intent to steal
-Proof of the act/offence: may be able to infer intent to commit offence
by actions
d. Fleeting/momentary intent is sufficient: Potter
e. Intention may be formed at any time within premises: R v Potter
-Entry with necessary intention, or formed intention upon entry

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f. Immaterial if:
a. Offence committed is different from that originally intended
-For example, Entry with intent to steal and assault occurs
-NOTE: Provided the Crown can show
b. No offence is actually committed within the dwelling
-Provided Crown can show entry with specific intent,
immaterial that accused cannot fulfill intention due to
circumstances beyond their control
-For example, entry with intent to steal but nothing to steal
-Accused’s desire is immaterial if acts with different purpose
and knowing a particular result will occur: R v Wilmont (No 2)
Sentence:
Burglary is a crime, liable to:
i. Maximum 14 years imprisonment: s 419(1)

-Any person who enters or is in the dwelling of another with intent to commit
an indictable offence in the dwelling commits a crime.
ii. Maximum life imprisonment: s 419(2)-(4):
a. Enters the dwelling by means of a break: s 419(2)
b. A person who breaks any part, whether external or internal, of a dwelling or

any premises, or opens, by unlocking, pulling, pushing, lifting, or any other
means whatever, any door, window, shutter, cellar, flap, or other thing,
intended to close or cover an opening in a dwelling or any premises, or an
opening giving passage from one part of a dwelling or any premises to
another, is said to break the dwelling or premises: s 418(1)
c. Entering a place by means of fraud is a break R v Boyle
d. Pushing a door wider when it is already open is not a break. Halley v R
e. Inserting hand through a partially opened window or door to unlock it is a

break R v Parry
f. Knocking on a door to see if anyone is home and causing the door to open
is not a break R v Galea

i. Maximum life Imprisonment if entering at night: s 419(3)(a)
ii. Uses or threatens to use actual violence
a. Actual violence
-No difference between using actual violence and using
personal violence: De Simoni per Gibbs J
-Actual violence means no more than physical violence which
is real and not merely threatened or contemplated: Jerome
-The smallest amount of actual violence (threat) will be
sufficient: Jerome
-May not be actual violence if the person is not actually
resisting: Jerome and McMahon

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- Removal of purse / shoes from body of unconscious /

otherwise non-resisting person, did not necessarily amount to
actual violence, because victim unaware: Jerome per Gibbs J

iii. Maximum life imprisonment if armed or pretending to be armed with a
dangerous or offensive weapon: s 419(3)(b)(ii)
-‘Armed’ includes gun, sword, a syringe full of blood: Miles, Pratt
-Pretending to be armed: ruler under jacket like gun, red substance indicating
blood in a syringe
iv. Maximum life imprisonment if in company of 1 or more persons: s

419(3)(b)(iii)
-Mere presence is sufficient

-‘In company’ doesn’t mean more than 1 has to actually strike the victim, it is
enough for more than 1 to be physically present for the common purpose:
Brougham
-TEST for physical presence is whether there is such proximity between the
co-defendants to enable the inference that coercive effect of the group
operate: Brougham
v. Maximum penalty life imprisonment if damages or threatens or attempts to

damage any property: s 419(3)(b)(iii)
Defence of dwelling: s 267
It is lawful for a person who is in peaceable possession of a dwelling, and any

person lawfully assisting him or her or acting by his or her authority, to use force
to prevent or repel another person from unlawfully entering or remaining in the
dwelling, if the person using the force believes on reasonable grounds—
(a) the other person is attempting to enter or to remain in the dwelling with intent
to commit an indictable offence in the dwelling; and
(b) it is necessary to use that force.


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Entering Premises with Intent

Offence: s 421
(1) Any person who enters or is in any premises with intent to commit an indictable
offence in the premises commits a crime.
(2) Any person who enters or is in any premises and commits an indictable offence in
the premises commits a crime.
(3) If the offender gains entry to the premises by any break and commits an
indictable offence in the premises, he or she is liable to imprisonment for life.
Elements:
i. Enters or is in
-A person is said to enter a dwelling as soon as any part of the person’s body
or any part of any instrument used by the person is within the dwelling
premises: s 418(2)
ii. Premises
-‘Premises’ means a place of business, or otherwise not residential
-‘Premises’ includes: s 418(4)
1. A building or structure and a part of a building or structure
2. A tent, caravan or vehicle
3. Any similar place
iii. With intent to commit an indictable offence
1. Crimes and misdemeanours are indictable offences: s 3(3)
2. Intention is a state of mind that can never be proved as a fact, but
may be inferred from facts which are proved: Sinnasamy
Selvanayagam v R [1951] AC 83 1. E.g. open drawers, things thrown
in disarray – may indicate attempts to locate property with intent to
steal 2. Proof of the act/offence = may be able to infer intent to commit
offence by actions
3. Fleeting / momentary intent is sufficient: Potter iv. Intention may be
formed at any time within premises
-i.e. Entry with necessary intention, or formed intention upon entry
4. Immaterial if:
-Offence committed is different from that originally intended a. E.g.
entry with intent to steal, victims home, assault occurs 2. No offence is
actually committed whilst in the dwelling

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-Provided Crown can show entry with specific intent, immaterial that
accused cannot fulfil intention due to circumstances beyond their
control
-E.g. entry with intent to steal, but nothing to steal
Sentence:
1. Entering with intent is a crime, liable to maximum 10 years

imprisonment: s 421(1) CC
2. Where person commits IO, liable to maximum 14 years imprisonment:
s 421(2) CC
-Crimes and misdemeanours are indictable offences: s 3(3) CC
E.g. Stealing (s 398) = crime = IO
-Where person gains entry by break and commits IO, liable to
maximum life imprisonment: s 421(3) CC
-Enters by means of a break: s 419(2) CC
See Burglary.


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Arson
Definition:
(1) Any person who wilfully and unlawfully sets fire to any of the things following, that
is to say—
(a) a building or structure;

(b) a motor vehicle, train, aircraft or vessel;
(c) any stack of cultivated vegetable produce, or of mineral or vegetable fuel;
(d) a mine, or the workings, fittings, or appliances of a mine;
is guilty of a crime, and is liable to imprisonment for life: s 461
Elements:
i. Sets fire to any of the thing following:

1. A building or structure: s 461(1)(a)
-“Structure” holds a very wide definition, means anything constructive (R v B)
-Not necessary that it be of substantial construction or of value or that it is a
fixture (R v B)
-A motor vehicle, train, aircraft or vessel: s 461(1)(b) CC
-Any stack of cultivated vegetable produce, or of mineral or vegetable fuel: s
461(1)(c) CC
-A mine, or the workings, fittings, or appliances of a mine: s 461(1)(d) CC
-It is immaterial whether or not the thing mentioned in (a) or (b) is complete: s
461(2) CC
ii. Set fire

-Must prove to have burned, not merely scorching, blistering or blackening:
Jorgenson
-Sufficient for structure to have been ravaged or ruined by fire as opposed to
being reduced to ashes: R v Berghofer
-Only the slightest burning is sufficient and the flames need not be visible. R v
Stallion
-An item is consumed if it is destroyed or devastated in whole or in part by
fire, if item is ruined or ravaged by fire it is consumed, although not reduced
to ashes: Metzer [USA]
Fire = consumption of the thing

-An item could be regarded as “consumed” if ravaged or ruined by fire
although not reduced to ashes: R v B
E.g. paint bubbling and blackening = insufficient: Birchley
E.g. marble floor broken, buckled, cracked; plaster chipped: Metzer

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-If the contents of a structure are burned, but the structure itself is only
blackened or scorched, it will not be arson. R v Jorgenson
-NOTE: A structure does not need to be a substantial construction of any

particular economic value or a fixture. There may be involved some restriction
to a constructed entity which either serves a purpose of protecting from the
elements in support of some human activity, or of confining contained things
to be held within it or, in terms of its size, is ordinarily expected to function
with a substantial degree of contact with the ground. R v B
iii. Wilfully
- “Willfully” requires no more proof, so far as that element be concerned, than

that the accused person deliberately did a willed act aware at the time he did
it, that the result charged in the indictment was a likely consequence of his
act and that he recklessly did the act regardless of the risk: R v Lockwood
-Does not require actual intent to cause damage, just reasonable
foreseeability
-TEST: A willful or reckless act, of such nature that damage is likely

consequence, and regardless of the risk, accused still did the act: Lockwood
-Likelihood and recklessness means damage from fire which results from an
act is foreseen as more probable than not; so probable or likely that the act is
reckless: R v T per Fitzgerald P

-The conjunction of likelihood and recklessness is only satisfied if the fire
which results from an act is foreseen as more probable than not, and indeed
as so probable that the act is properly described as reckless in circumstances
in which recklessness must be such as to attract criminal responsibility for a
serious offence. R v T
-Therefore ‘likely’ means a substantial chance, real and not remote. regardless
of whether it was more than 50%: R v T
- It is necessary to prove that the accused realised there was a likelihood of a

second thing catching fire, or that he acted in reckless disregard of that
prospect (Webb)
iv. Unlawfully
-Not authorised, justified or excused by law
NOTE: The offence of endangering particular property by fire: s 462
A person who wilfully and unlawfully sets fire to anything situated so that a
thing mentioned in section 461(1)(a) to (d) is likely to catch fire from it
commits a crime.

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Willful Damage
Offence: Any person who wilfully and unlawfully destroys or damages any property
is guilty of an offence which, unless otherwise stated, is a misdemeanour, and the
person is liable, if no other punishment is provided, to imprisonment for 5 years: s
469(1)
Elements:
i. Unlawfully
-An act which causes injury to the property of another, and which is done
without the owner's consent, is unlawful unless it is authorised or justified or
excused by law: s 458(1)
-When an act which causes injury to property, and which would be otherwise
lawful, is done with intent to defraud any person, it is unlawful.
(2) When an act which causes injury to property is done with intent to defraud
any person, it is immaterial that the property in question is the property of the
offender.
-Consent can be inferred: R v Stevenson
-To damage abandoned property or property not owned by another person

would not be wilful damage/ arson That possibility must be excluded by the
evidence and it was in the present case. The definition does not however
require proof that the property was that of any specified person: R v
McLymont
-The definition also requires proof that the act which caused injury to the
property of another was done without his consent. This may be established
without calling evidence from a particular person that the property was owned
by him and that the acts done to it were so done without his consent.
Absence of consent may be established, as it was in this case, by an
admission by the accused person that he did not have consent to do the acts
which caused injury to the property
of another. R v McLymont
ii. Wilfully
-Requires actual intention OR reasonable foreseeability
- The word “wilfully” means the accused deliberately did a willed act aware at
the time he did it, that the result charged in the indictment was a likely
consequence of his act and that he recklessly did the act regardless of the
risk. R v Lockwood

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iii. Destroys or damages

-‘Damage’ means to render the object imperfect or inoperative: R v Zischke
-Damage in relation to a document includes: s 1

(a) Obliterate the document; and
(b) Make the whole document or part of the document illegible or
irrecoverable.
-Not necessary to establish that expenditure of money was required to restore
property to prove damage: Zischke
iv. Property
-Defined in s 1 to include:
(a) Every thing animate or inanimate that is capable of being the subject of
ownership; and
(b) Money; and
(c) Electrical or other energy, gas and water; and
(d) A plant; and
(e) An animal that is—
(i) A tame animal, whether or not naturally tame; or
(ii) An untamed animal of a type that, if kept, is usually kept confined; or
(iii) An untamed animal in a person's possession or being pursued for return to
possession after escape; and
(f) a thing produced by an animal mentioned in paragraph (e); and
(g) any other property real or personal, legal or equitable, including things in action
and other intangible property
Penalty: 5 years imprisonment: s 469(1)
Aggravating circumstances: Mean that the wilful damage will become a crime,
not a misdemeanour
i. Life imprisonment:
If—
(a) The property in question is premises; and
(b) The destruction or damage is caused by an explosion; and
(c) Either—
(i) Anyone is in or on the premises when the explosion
happens; or
(ii) The destruction or damage actually endangers anyone's life
The offender will be liable to life imprisonment: s 469(3)
If-
(a) The property in question is—

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(i) A bank or wall of the sea or inland water; or

(ii) a work relating to a port or inland water; and
(b) the destruction or damage causes an actual danger of
inundation or of damage to land or a building;
The offender will be liable to life imprisonment.
ii. 14 years imprisonment:
If the property in question is a testamentary instrument,

whether the testator is living or dead, or a register which is
authorised or required by law to be kept for authenticating or
recording the title to any property, or for recording births,
baptisms, marriages, deaths, or burials, or a copy of any part
of any such register which is required by law to be sent to any
public officer, the offender is guilty of a crime, and is liable to
imprisonment for 14 years: s 469(3)
If the property in question is any part of a railway, or any work

connected with a railway, the offender is guilty of a crime, and
is liable to imprisonment for 14 years.
If the property in question is an aircraft or anything whatever

either directly or indirectly connected with the guidance control
or operation of an aircraft, the offender is guilty of a crime, and
is liable to imprisonment for 14 years.
iii. 7 years imprisonment:
If the property in question is a document which is deposited or kept in

a public office, or which is evidence of title to any land or estate in
land, the offender is guilty of a crime, and is liable to imprisonment for
7 years.
(1) If the property in question is in a public place, or is visible from a

public place, and the destruction or damage is caused by—
(a) spraying, writing, drawing, marking or otherwise applying paint or
another marking substance; or
(b) scratching or etching;
the offender commits a crime and is liable to imprisonment for 7 years.
If the property in question is part of a school, education centre,

college, university, or another educational institution, the offender
commits a crime and is liable to imprisonment for 7 years.
(1) If the property in question is—

(a) a grave, vault, niche or memorial in a cemetery or at a
crematorium; or
(b) a war memorial; or
(c) at a place of religious worship;
the offender commits a crime and is liable to imprisonment for 7 years.

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(2) In this clause— memorial, in a cemetery or at a crematorium,

includes the following—
(a) a headstone;
(b) an inscribed plaque or commemorative plate;
(c) a monumental, ornamental or other structure;
(d) another thing erected or placed—
(i) to mark the site where human remains have been buried or placed; or
(ii) to commemorate a deceased person.
Stealing
Definition: A person who fraudulently takes anything capable of being stolen, or

fraudulently converts to the person's own use or to the use of any other person
anything capable of being stolen, is said to steal that thing: s 391(1)
Offence: Any person who steals anything capable of being stolen is guilty of a crime,
and is liable, if no other punishment is provided, to imprisonment for 5 years: s 398
Elements:
i. A person who:
ii. Fraudulently
-Must be proven for taking stealing and conversion stealing: s 391(2)
A person who takes or converts anything capable of being stolen is deemed

to do so fraudulently if the person does so with any of the following intents,
that is to say—
(a) an intent to permanently deprive the owner of the thing of it;
-The term ‘owner’ has an extended definition: s 391(7): owner includes

the owner, any part owner, or any person having possession or control of,
or a special property in, the thing in question.
-S 391(3): The taking or conversion may be fraudulent, although it is

effected without secrecy or attempt at concealment -R v Walk [1981] Qd R
380
-Meaning of control is wide, includes types of possession not

commensurate with full ownership- e.g. real estate agent
-Must be an intention to permanently deprive- cannot be temporary
deprivation- Bailey [1924] QWN 38.
(b) an intent to permanently deprive any person who has any special property
in the thing of such property;
(c) an intent to use the thing as a pledge or security;
(d) an intent to part with it on a condition as to its return which the person
taking or converting it may be unable to perform;
(e) an intent to deal with it in such a manner that it can not be returned in the
condition in which it was at the time of the taking or conversion;
(f) in the case of money—an intent to use it at the will of the person who takes
or converts it, although the person may intend to afterwards repay the amount
to the owner.

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iii. Takes/converts
-‘Takes’: S 391(6) -Takes or converts: items must be moved or dealt with

(asportation) -Wallis v Lane [1964] VR 293
-The accused was a delivery driver, he moved items to a different position on
the truck, with the intention of stealing the items. This was held to be
sufficient movement -When is the act of stealing complete? -R v Johnston
[1973] Qd R 303 at 308, 309:
-Charged under the party provisions of the Code 
-Held that moving or actual dealing with the thing does not necessarily mean
that the act of stealing is complete and may still be in progress or a continuing
offence
Converting
-Not defined in the Code
-S 391(6) applies- items must be moved or dealt with -What is converting? -Caxton

Publishing Co v Sutherland Publishing Co [1939] AC 178 at 201.
-Illich v R (1987) 162 CLR 110 confirmed Caxton Publishing -Wilson and Dawson JJ
(Deane concurring in results and reasoning)
“The question whether a person could, under the Code, steal something already in
his lawful possession, is answered by the express provision that a person may steal,
not only by fraudulently taking something, but also by fraudulently converting it to his
own use. Of course, a person may convert something which is in his possession,
although he cannot convert something which he also owns. That is because
conversion in the criminal law at least involves dealing with the thing said to be
converted in a manner inconsistent with the owner’s rights in the thing.” [242] -R v
Angus [2000] QCA 29
-Puncus JA (McMurdo P and McPherson JA agreed) -Must be more than passive

possession
-Converting: s 391(4), 391(4A), 391(5)

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iv. Anything capable of being stolen: s 390
Anything that is the property of any person is capable of being stolen if it is—
(a) moveable; or
(b) capable of being made moveable, even if it is made moveable in order to
steal it.
Definition of Property: property includes—

(a) every thing animate or inanimate that is capable of being the subject of
ownership; and
(b) money; and
(c) electrical or other energy, gas and water; and
(d) a plant; and
(e) an animal that is—
(i) a tame animal, whether or not naturally tame; or
(ii) an untamed animal of a type that, if kept, is usually kept confined; or
(iii) an untamed animal in a person's possession or being pursued for return
to possession after escape; and
(f) a thing produced by an animal mentioned in paragraph (e); and
(g) any other property real or personal, legal or equitable, including things in
action and other intangible property.
-Moveable or capable of being made moveable -Billing v Pill [1953] 1 All ER

1064
Lost Property s 391(5) -(5) When a thing converted has been lost by the
owner and found by the person who converts it, the conversion is not deemed
to be fraudulent if at the time of the conversion the person taking or
converting the thing does not know who is the owner, and believes, on
reasonable grounds, that the owner can not be discovered.
 -Lost by the owner

 -Found by the person who converts it 
-Deemed not to be fraudulent if;
-At the time of conversion, accused doesn’t know the owner; and -Believes on
reasonable grounds the owner can not be discovered
-Dolby v Stanta [1996] 1 Qd R 138 at 139 -Prosecution bears the onus of

negativing s 391(5): sufficient to prove accused knew where the owner was or
that s/he did not believe on reasonable grounds that the owner was
undiscoverable.
Stealing – Banking

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 -Difficulties have arise with respect to stealing money in bank accounts and
automatic teller machines
-R v Davenport (1954) 1 QLR 569
-Kennison v Daire (1986) 160 CLR 129
-R v Mujanen [1994] 2 Qd R 647
S 398 - Penalty for Stealing
-S 398: 5 year maximum -Special cases set out in s 398
-1 Stealing a will: 14 year maximum 
-9 Stealing property valued at more than $5000: 10 years maximum -12 Stealing of a
vehicle: 14 years maximum

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Receiving Tainted Property
Offence: A person who receives tainted property, and has reason to believe it is
tainted property, commits a crime: s 433(1)
Elements:
i. A person
ii. Receiving tainted property
iii. Having reason to believe it was tainted property
-Guilty knowledge must be at time of receiving: R v Patterson
Doctrine of Recent Possession
 -Example of circumstantial evidence, applies to stealing and receiving charges -

Schama v Abramovich (1914) 11 Cr App R 45, 49- presumption of fact, so it is a
matter to be determined by the jury -Confirmed in Bruce (1987) ALJR 603
 -Accused was in recent possession of the goods
 -Relationship between the goods as found and the goods stolen
Penalty: s 433(1) Maximum penalty—
(a) if the property was obtained by way of an act constituting a crime—14 years
imprisonment; or
(b) if the property is a firearm or ammunition—14 years imprisonment; or
(c) if the offender received the property while acting as a pawnbroker or dealer in
second hand goods, under a licence or otherwise—14 years imprisonment; or
(d) otherwise—7 years imprisonment.
(2) For the purpose of proving the receiving of anything it is sufficient to show that the
accused person has, either alone or jointly with some other person, had the thing in
his or her possession, or has aided in concealing it or disposing of it.

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Fraud: s 408C
1) A person who dishonestly—
(a) applies to his or her own use or to the use of any person—
(i) property belonging to another; or
(ii) property belonging to the person, or which is in the person's possession, either
solely or jointly with another person, subject to a trust, direction or condition or on
account of any other person; or
(b) obtains property from any person; or
(c) induces any person to deliver property to any person; or
(d) gains a benefit or advantage, pecuniary or otherwise, for any person; or
(e) causes a detriment, pecuniary or otherwise, to any person; or
(f) induces any person to do any act which the person is lawfully entitled to abstain
from doing; or
(g) induces any person to abstain from doing any act which that person is lawfully
entitled to do; or
(h) makes off, knowing that payment on the spot is required or expected for any
property lawfully supplied or returned or for any service lawfully provided, without
having paid and with intent to avoid payment;
commits the crime of fraud.
(2) An offender guilty of the crime of fraud is liable to imprisonment for 5 years save
in any of the following cases when the offender is liable to imprisonment for 12 years,
that is to say—
(a) if the offender is a director or member of the governing body of a corporation, and
the victim is the corporation;
(b) if the offender is an employee of another person, and the victim is the other
person;
(c) if any property in relation to which the offence is committed came into the
possession or control of the offender subject to a trust, direction or condition that it
should be applied to any purpose or be paid to any person specified in the terms of
trust, direction or condition or came into the offender's possession on account of any
other person;
(d) if the property, or the yield to the offender from the dishonesty, or the detriment
caused, is of a value of $30,000 or more.
Elements:

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i. A person who
ii. Dishonestly
-The term dishonestly is not defined in the Code.
-S 408C(b):
A person’s act or omission in relation to property may be dishonest been
though- (i) He or she is willing to pay for the property; or
(ii) He or she intends to afterwards restore the property or to make restitution
for the property or to afterwards fulfil his or her obligations or to make good
any detriment; or
(iii) An owner or other person consents to doing any act or to making any
omission; or
(iv) A mistake is made by another person; and
-S 308C(c)
- a person’s act or omission in relation to property is not taken to be
dishonest, if when the person does the act or makes the omission, he or she
does not know to whom the property belongs and believes on reasonable
grounds that the owner can not be discovered by taking reasonable steps,
unless the property came into his or her possession or control as trustee or
personal representative; and
-Previously there was some doubt over the test applied in Qld 
-Previously the court generally followed the test from Ghosh as confirmed in
Laurie
-Now the test has been settled. The test in Qld is the test set out in Peters
and applied in Dillon.
Fraud - Dishonestly - Current Test
-Following the unanimous decision in R v Dillon; Ex parte Attorney-General

Qld [2015] QCA 155. The test to be applied is Qld has now been settled. -
Point of Law referred:
-“To satisfy the element of dishonesty [in s 408C Criminal Code] does the
Crown have to prove that:
-(a) What the accused person did was dishonest by the standards of ordinary
honest people; and
 -(b) The accused person must have realised that what he or she was doing
was dishonest by those standards?”
-This question was answered “No”. - R v Dillon:

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“ As “dishonestly” in s 408C has its ordinary meaning, this Court must follow
the meaning given to “dishonesty” by the High Court in Peters and Macleod.
Despite the previously settled approach in Queensland since 1987,
Queensland Courts must now construe the term “dishonestly” in s 408C
as requiring the prosecution to prove only that what the accused person
did was dishonest by the standards of ordinary honest people. To
secure a conviction, the prosecution need not prove that the accused person
must have realised that what he or she was doing was dishonest by those
standards. This construction works harmoniously with the defence provisions
of the Criminal Code, particularly s 22(2), so that, where there is evidence
that the accused person had an honest belief that he or she was entitled to
act as he or she did, to secure a conviction the prosecution must disprove the
honest belief beyond reasonable doubt.” [48]
iii. Applies to his or her own use
- A mere claim of ownership, although dishonestly made, Is not

enough to be fraud, there must be some positive application or use. R
v Easton
iv. Property belonging to another
Extended definition of property: s 408C(3)(a):
-For the purposes of this section-

-(3)(a) property, without limiting the definition of property in section 1,
includes credit, service, any benefit or advantage, anything evidencing
a right to incur a debt or to recover or receive a benefit, and releases
of obligations; and
S 408C3(d) -(d) persons to whom property belongs include the owner,

any joint or part owner or owner in common, any person having a
legal or equitable interest in or claim to the property and any person
who, immediately before the offender’s application of the property,
had control of it; and -See Allard [1988] 2 Qd R 269
Dishonestly applying money in bank accounts

-See: -R v Jell [1991] 1 Qd R 48 -Saba (unreported, Qld CA 2/9/94) -Capewell
v R [1995] 2 Qd R 64 -R v Johnson [2007] 2 Qd R 74
Obtaining Property and Similar Offences

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-See ss408C(2)(b)-(h) -Obtaining s408C(3)(e),(f)
Unlawful Use or Possession of Motor Vehicles, Aircraft or Vessels s 408A
-The prosecution is not required to prove that the accused sought to permanently
deprive the owner of person in lawful possession of that vehicle
 -Therefore this section covers situations where the actions of the accused would not
equate stealing
-E.g. Bailey
S 408A
-Elements: 
1) Unlawful use or possession (wider than just driving-would include being in or on

vehicle for other purposes) 
2) Of motor vehicle, aircraft or vessel (s 1 definitions and ‘vessel’ in s 408A(3)) 
3) Without consent (s 408A(1C) provides defence if show have consent)) -S 408A -

Lawful Possession
-R v Judkins [1979] Qd R 527 -S 1 Possession
S 581 Alternative Verdicts
-Offences of dishonesty
-Upon an indictment charging a person with any of the offences following, that is to
say- a) Stealing, with our without a circumstance of aggravation; b) Fraud, with out
without circumstance of aggravation; c) Obtaining from any other person any chattel,
money or valuable security by passing
a cheque that is not paid on presentation for payment; d) Unlawful use or possession
of a vehicle, with or without a circumstance of
aggravation; e) Unlawfully receiving anything under s 433; f) Counselling or procuring

any other person to commit any of such offences;
-The person may be convicted of any other of such offences committed with respect
to the same property, if such other offence is established by the evidence.

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Forgery and Uttering s 488 Code -Offence in s 488 Forgery and Uttering
(1) A person who, with intent to defraud- (a) Forges a document; or (b) Utters a
forged document;
-Commits a crime. -Forge a document, means make, alter or deal with the document
so that the whole of it or a material part of it:
(a) Purports to be what, or of an effect that, in fact it is not; or (b) Purports to be

made, altered or dealt with by a person who did not make, alter or
deal with it or by or for some person who does not, in fact exist; or (c) Purports to be
made, altered or dealt with by authority of a person who did not give
that authority; or (d) Otherwise purports to be made, altered or dealt within

circumstances in which it was
not made, altered or dealt with
-Document includes:
(a) Anything on which there is writing; and (b) Anything on which there are marks,
figured, symbols, codes, perforations or
anything else having a meaning for a person qualified to interpret them; and (c) A
record
-Utter means and includes using or dealing with, and attempting to use or deal with,
and attempting to induce any person to use, deal with, or act upon, the thing in
question.
-See s 484 definitions -See s 643 intention to injure, deceive or defraud
S 514 Personation -Personation in General: (1) Any person who, with intent to defraud

any person, falsely represents himself or herself to be some other person, living or
dead, real or fictitious, is guilty of an offence which,
unless otherwise stated, is a misdemeanour, and the person is liable to imprisonment

for 3 years. (2) If the representation is that the offender is a person entitled by will or
operation of law to any specific property, and the person commits the offence with
intent to obtain such property or possession thereof, the person is guilty of a crime,
and is liable to imprisonment for 14 years.
-Meaning of personation R v Kake [1960] NZLR 595

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Possessing Dangerous Drugs

Offence: A person who unlawfully has possession of a dangerous drug is guilty of a
crime: s 9(1) of the Drugs Misuse Act 1986
Elements:
i. A person who:
ii. Unlawfully
-Means without authorisation, justification or excuse by law: s 4 DMA
iii. Has possession of

-“Possession is not defined in the DMA: Criminal Code must be read in
conjunction with the DMA: s 116 DMA
-s 116 of the DMA provides reference to the Criminal Code definition for
possession:
-“Possession includes having under control in any place whatever, whether
for the use or benefit of the person of whom the term is used or of another
person, and although another person has the actual possession or custody of
the thing in question”.
-Subject to s 23 of the Code, all that the prosecution needs to show to

establish possession is that an accused person has and knows that he
or she has a thing or a substance which is in fact a dangerous drug:
Fitzgerald P at 637 of Clare v R [1994] 2 Qd R
-NOTE: The nature of the substance is immaterial: Clare v R
-If accused has no knowledge that the item is in their possession, there is not
enough knowledge to establish a conviction R v Bridges
-Knowledge of the existence of the thing possessed must be proved beyond a
reasonable doubt
-No possession where person is unaware of the existence of the thing or
substance: Clare v R
-Awareness extends to constructive knowledge, where a person should have
inquired, inspected or have been reasonably curious about the drug
possessed Tabe v R
-In possession there is a necessary mental element of intention, involving a
sufficient knowledge of the presence of the drug by the accused: Williams v R
-NOTE: Prosecution must prove knowledge of possession but not knowledge
of the nature of the substance.

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- A drug will be found to be in possession as charged unless the person

charged “neither knew nor had reason to suspect that the drug was in or on
that place. R v Myles
-An honest claim to right to property or a right to possess does not apply to
drugs
-Possession is based on the notion of actual or potential control
-NOTE: No need to establish ownership as such
-Possession INCLUDES:
-Having under control in any place
-Whether for use or benefit of another’
-Even though another person has actual possession or custody of the thing
iv. Actual Possession

-Means physical control or custody, manual handling and knowledge.
-A person has actual possession where they have physical possession, know
the substance is a drug and demonstrate a desire to exclude others from
actually possessing it: R v Todd
-An accused has actual possession know the substance is a drug and throw it
away in order to hide it from police R v Thomas
v. Constructive Possession
-Means control, intention to control or claim of right and knowledge.
-Must have control/capacity to control, e.g briefly picking up package and
moved very short distance to hide it: R v Todd
- Awareness extends to constructive knowledge, where a person should have

inquired, inspected or have been reasonably curious about the drug
possessed Tabe v R -i.e. the drug is in the ceiling controlled by the accused.
- If the accused has done an act to lay claim to a drug in the past, but needs
to complete a future act within the their capacity, they are in possession. R v
Warneminde
- Before a person can be said to be in possession of a prohibited plant or a

dangerous drug he must not only know of its existence but he must have laid
some claim to it or exercised some control over it. Intention to control in future
is not enough R v Solway
-Person put cannabis into appellant’s bathroom at mother’s birthday party.
Appellant knew it was there and was going to dump it, but had not yet done
so.
vi. Joint
-Means consent to possession, or joint intention to possess + knowledge
- A drug may be jointly possessed by several persons who exercise control
and dominion over the drug. Davies v WA - i.e. a person allows a second
person to store a drug at the first person’s home in return for money and
allows the second person to access it.

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Claim of Innocent Possession:

The operation of the Criminal Code, section 24 is excluded unless that person shows
an honest and reasonable belief in the existence of any state of things material to the
charge: s 129(1)(d) of the DMA
-Crown must prove knowledge of the existence of the thing possessed.

-Accused must provide evidence of mistake of fact:
1. Honest (subjective); and
2. Reasonable belief in a state of things (objective)
-Don’t need to know that it is a dangerous drug, just that intended to possess a thing
that turned out to be a dangerous thing: R v Clare
-NOTE: Crown need only prove intention to possess a certain thingm and that thing
is in fact a dangerous thing: Pincus JA
Conclusive Presumption of Possession:
-In respect of a charge against a person of having committed an offence defined in

part 2:
Proof that a dangerous drug was at the material time in or on a place of which that
person was the occupier or concerned in the management or control of is conclusive
evidence that the drug was then in the person’s possession unless the person shows
that he or she then neither knew nor had reason to suspect that the drug was in or on
that place: s 129(1)(c)
Occupier, management or control:

-Person who is able to exclude strangers from the premises is an occupier: R v Fox
-This person may well be physically absent from the premises and need not
necessarily pay the rent: R v Fox
-A person is an occupier if they are making some use of the place with sufficient de
facto control or management of it to facilitate that use: Throw v Campbell
‘Place’
-Place can be divided to work out who is in occupation management and control of
particular parts of a property: Symes v Lawler
-Within the one property, there may be a place occupied, managed and controlled by
an accused and another part that is not: R v Smythe
-NOTE: Mere ownership of a place does not constitute being concerned in the
management or control” of the place. There must be some interest in or personal
involvement in control or management of the place on the part of the accused before
it obtained the benefit of the provision. R v Smythe- Drugs were found on an obscure
part of the property unbeknownst to the landlady
-‘Place’ includes a vehicle: s 4 DMA
Where drugs found on person: s 129(1)(c)
-If the drugs are “on” the other person, i.e. “in” his hand, were not “in or
on” a “place” of which the appellant was in occupation, management or control, the
presumption is rebutted. Lawler v Prideaux

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-Basically, s 129(1)(c) should not apply when some other person is in possession of
the drug.
Permitting Use of Place

Offence: A person who, being the occupier or concerned in the management or
control of a place, permits the place to be used for the commission of a crime defined
in this part is guilty of a crime: s 11(1) DMA
For subsection (1), the dangerous drug to which the commission of a crime relates is
the dangerous drug directly or indirectly involved and in relation to which proof
required to establish the commission of the crime: s 11(2) DMA
Maximum Penalty: 15 years imprisonment: s 11(2) DMA
Elements:
i. Occupier, management or control
-See presumption of possession
ii. Place
-See presumption of possession
iii. Commission of a crime

iv. Permission
-The accused must know what is going on and agree to it; mere activity will
not satisfy permission: R v Von Snarski

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Supplying a Dangerous Drug
Offence: A person who unlawfully supplies a dangerous drug to another, whether or

not such other person is in Queensland, is guilty of a crime: s 6 DMA
Penalty: 15 years to life imprisonment: ss 1(a),(b),(c),(d), (e) and (f) and s 2 of the
DMA.
Elements:
i. A person
ii. Unlawfully supplies
-Definition of ‘supplies: s 4 DMA
(i) Give, distribute, sell, administer, transport or supply; or
(ii) Offering to do any act specified in subparagraph (i); or
(iii) Doing or offering to do any act preparatory to, in furtherance of, or for the
purpose of any acts specified in subparagraph (i).
-A person can supply to himself or herself: R v Maroney

-Once an offer is made to supply, the offence is complete: Gauci v Driscoll
-If a person tries to sell or supply a substance believing it to be a drug they
are still supplied. Gauci v Driscoll
-‘Unlawfully’ means not authorised, justified or excused by law: s 4 DMA

iii. A dangerous drug
-Dangerous drugs are defined in s 4 of the DMA to include any thing or plant
listed in sch 1, 2 or 2A of the Drugs Misuse Regulations (‘DMR’)
-Type: schedules 1 and 2 of the DMR
-Sch 1: amphetamine, cocaine, heroin, synthetic drugs
-Sch. 2: cannabis, morphine, opium, pethidine
-Quantity: Scheduled 3 and 4 of the DMR
iv. To another (in or out of Qld)

-Means s 6 of the DMA has cross-jurisdictional operation

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Trafficking in Dangerous Drugs

Offence: A person who carries on the business of unlawfully trafficking in a
dangerous drug is guilty of a crime: s 5 of the DMA
Elements:
i. A person who:
ii. Carries on the business of
-A single never-repeated incident is not an example of carrying on the

business, there must be a system or operation with some degree of
continuity R v Quaile
-The repeated event must have a commercial element where the drug is
exchanged for valuable consideration. R v Quaile Therefore, proof of a number
of transactions is usually required because there is a notion of repetition.
-May only be one transaction provided it is the first in what can be proved to be
part of the carrying on the business: R v Quaile
-If act is done with intention that is merely one of an intended series of acts to be
done with a view to making a financial gain then the act will be part of the
carrying on of a business: Ambrose J at 116& 177 in R v Qualie
-NOTE: isolated transaction not intended to be repeated cannot amount to the
conduct of a business
iii. Unlawfully
-Means not authorised, justified or excused by law: s 4 DMA
iv. Trafficking in a
-The selling and distribution of prescribed drugs for profit and their purchase
for the purpose of dealing in them or supplying them for reward to others R v
Quaile
-Receiving drug for consideration if intends to dispose of for consideration
-A single action not repeated eg a single disposal for valuable consideration
can constitute trafficking

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-Does not include final purchase by consumer

-Delivering the drugs. R v Quaile
-Advertising and promoting the product by communicating with prospective
buyers: R v Elhusseini
-Setting up lines of supply
-Negotiating prices and terms of supply and payment
-Soliciting and receiving orders
-Arranging places and times for delivery. R v Ellhuseini
-Trafficking may occur at any point on a chain of distribution, the drug does
not need to reach its final destination. R v Quaile
-When a person buys a drug for their own consumption rather than resale, it
is not trafficking R v Quaile
v. Dangerous drug
Producing Dangerous Drugs
Offence: A person who unlawfully produces a dangerous drug is guilty of a crime: s 8

of the DMA
Elements:
i. Unlawfully
-Without authorisation, justification or excuse by law
ii. Produce
-‘Produce’ means:
-Prepare, manufacture, cultivate, package or produce s 4(1)(a) DMA
-Offering to Prepare, manufacture, cultivate, package or produce s 4(1)(b)
DMA
-Doing or offering to do any act preparatory to, in furtherance of, or for the
purpose of, any act specified in paragraph a: s 4(1)(c) DMA
-Watering a plant, which had been planted, and fertilised by the person
watering it, constituted cultivation of that plant. R v O’Dempsey
-A person who does something to bring it into a state in which to use it is said
to prepare it: Calabria v The Queen
-Watering and fertilizing: R v O’Dempsey
-Harvesting: Stratford and McDonald
-Harvesting and weeding is considered cultivation R v Sabato and Hickey
-Offering to do any act specified

-Offence complete when offer is made: Gauci v Driscoll
iii. Dangerous Drug
-Dangerous drugs are defined in s 4 of the DMA to include any thing or plant
listed in sch 1, 2 or 2A of the Drugs Misuse Regulations (‘DMR’)
-Type: schedules 1 and 2 of the DMR
-Sch 1: amphetamine, cocaine, heroin, synthetic drugs
-Sch. 2: cannabis, morphine, opium, pethidine
-Quantity: Scheduled 3 and 4 of the DMR

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Receiving or Possessing Property Obtained from Trafficking or

Supplying Dangerous Drugs
Offence: A person who receives or possesses property, other than a dangerous

drug, (offence property) obtained, directly or indirectly from the commission of—
(a) an offence defined in section 5 or 6; or
(b) an act done at a place not in Queensland which if it had been done in
Queensland would have constituted an offence defined in section 5 or, as the case
may be, 6, and which is an offence under the laws in force in the place where it was
done; knowing or believing the property to have been so obtained, is guilty of a
crime: s 7(1) DMA
Penalty: Maximum 20 years imprisonment: s 7(1).
-NOTE: s 7 requires:
-Proof that the accused received or possessed the property
-Knowing or believing the property had been obtained through trafficking (s 5) or
supplying (s 6).

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Possessing Things
Offence: s 10 of the DMA
(1) A person who has in his or her possession anything—

(a) For use in connection with the commission of a crime defined in this part; or
(b) That the person has used in connection with such a purpose;
is guilty of a crime.
Penalty: Maximum 15 years imprisonment: s 10(1) of the DMA.
Elements:
i. Possession of anything
-See possession notes
-No possession without knowledge: Clare v R
ii. For use in connection with

-Depends on the intention of the possessor: R v Miller
1. If a possessor did not himself hold a thing for the purpose of its being used
by someone in connection with the commission of a crime, offence under s 10
not established: R v Miller
2. On the other hand, possession of an item for sale with the intention it will
be used in the production of a dangerous drug is capable of establishing the
offence notwithstanding that no actual intention existed on the part of the
particular customer in relation to protecting a drug crop.


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lOMoARcPSD|2989554

Lecture notes, all lectures

Criminal Law (Queensland University of Technology)

StuDocu is not sponsored or endorsed by any college or university

LLB106 Exam Notes 2015

DISCLAIMER: I do not claim ownership of the content of the

The document was created through summarised materials

I do not claim this document to be without error on the basis

Downloaded by Muhammad IKhlaq Ahmed (muhammadikhlaqa@gmail.com)

Definition: “A person who strikes, touches, or moves, or otherwise applies force of

Offence: Any person who unlawfully assaults another is guilty of a misdemeanour,

Unlawful: An assault is unlawful and constitutes an offence unless it is authorised or

ii. Directly or indirectly

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-Implied / tacit consent will eliminate criminal responsibility for inadvertent

Even where there is consent, there may, in certain circumstances, be an

a. Assault will be committed where the degree of force used by the

Players consent to a certain level of force outside rules of the

i. Attempts or threatens to apply force

ii. Bodily act or gesture

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iii. Actual or apparent present ability to effect purpose

Victim’s state of mind:

iv. Consent – as above for Limb 1

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Assault Occasioning Bodily Harm

iii. Thereby did that other person bodily harm.

Consent to AOBH is possible- is a question of fact what degree of

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iii. Assaults, resists, or wilfully obstructs, a police officer while acting in

Sentence: If the offender assaults a police officer in any of the following

Otherwise, an offender will be liable to imprisonment for 7 years: s 340

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Grievous Bodily Harm

d. Whether or not treatment is or could have been available

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Sentence: Maximum penalty is 7 years: s 323(1)

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i. Inflict severe pain or suffering on another person

Sentence: Maximum penalty is 14 years imprisonment: s 320

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Disabling to Commit Indictable Offence

ii. Rendered/attempted to render, another person incapable of resistance

Sentence: Maximum penalty is life imprisonment: s 315

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Stupefying to Commit Indictable Offence

ii. Administered/attempted to administer a stupefying or overpowering drug/thing

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Unlawful Drink Spiking

Offence: A person who administers, or attempts to administer, in drink a substance

i. Administered/attempted to administer, in drink a substance to

iii. Intent to cause the person to be stupefied or overpowered

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Intentional GBH & Other Malicious Acts

Offence: Any person who, with intent:

e. In any way unlawfully wounds, does grievous bodily harm, or transmits a

ii. With ]specific] intent to:

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d. Intentional transmission of HIV: Reid

e. Where intent to injure is an element of the offence, it is not

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Definition: Domestic violence means behaviour by a person (the first

s 8(2) of the DFVPA

 I do not claim this document to be without error on the basis