Criminal Law 2 Notes

Criminal Law 2 (LAWS1011) Summary

1. UNLAWFUL HOMICIDE............................................................................................................4

1.1 PATTERNS OF HOMICIDE 5.1...................................................................................................41.2 AN ATYPICAL OFFENCE? 5.2..................................................................................................41.3 THE LEGAL FRAMEWORK 5.4.................................................................................................5

1.3.1 statutory provisions............................................................................................................51.3.2 causation............................................................................................................................51.3.3 constructive homicide........................................................................................................61.3.4 voluntary manslaughter.....................................................................................................61.3.5 prosecution process...........................................................................................................61.3.6 sentence..............................................................................................................................61.3.7 debate about abolishing murder-manslaughter.................................................................7

1.4 MENS REA OF UNLAWFUL HOMICIDE.....................................................................................71.4.1 intent, reckless indifference 5.5.........................................................................................71.4.2 constructive murder 5.6.....................................................................................................81.4.3 manslaughter by unlawful act 5.7......................................................................................91.4.4 manslaughter by criminal negligence 5.8........................................................................101.4.5 corporate homicide 5.9....................................................................................................11

1.5 ACTUS REUS OF UNLAWFUL HOMICIDE...............................................................................111.5.1 homicide by omission 5.10...............................................................................................111.5.2 causation 5.11..................................................................................................................131.5.3 causation: medical treatment and euthanasia 5.12.........................................................151.5.4 definition of life................................................................................................................151.5.5 definition of death............................................................................................................151.5.6 voluntariness....................................................................................................................15

1.6 TEMPORAL CO-INCIDENCE OF MENS REA AND ACTUS REUS..................................................16

2. DEFENCES...................................................................................................................................17

2.1 INTRODUCTION 6.1................................................................................................................172.2 MENTAL DEFENCES...............................................................................................................18

2.2.1 Insanity 6.2.......................................................................................................................182.2.1.1 procedure...............................................................................................................................192.2.1.2 fitness to plead......................................................................................................................192.2.1.3 forensic patients....................................................................................................................202.2.1.4 summary proceedings...........................................................................................................202.2.1.5 involuntary committal...........................................................................................................20

2.2.2 Automatism 6.3................................................................................................................202.2.2.1 what is a disease of the mind?...............................................................................................202.2.2.2 insane automatism.................................................................................................................202.2.2.3 sane automatism....................................................................................................................202.2.2.4 case law.................................................................................................................................21

2.2.3 Substantial Impairment 6.4..............................................................................................222.2.3.1 abnormality of the mind........................................................................................................232.2.3.2 underlying condition.............................................................................................................232.2.3.3 substantial impairment..........................................................................................................242.2.3.4 expert evidence.....................................................................................................................242.2.3.5 sentencing..............................................................................................................................24

2.2.4 Infanticide 6.5..................................................................................................................242.3 INTOXICATION 6.6.................................................................................................................25

2.3.1 Part 11A...........................................................................................................................252.3.2 common law.....................................................................................................................262.3.3 The ‘reasonable person’..................................................................................................262.3.4 Intoxication and other defences.......................................................................................26

2.3.4.1 insanity..................................................................................................................................262.3.4.2 automatism............................................................................................................................262.3.4.3 substantial impairment (diminished responsibility)..............................................................262.3.4.4 infanticide..............................................................................................................................272.3.4.5 provocation............................................................................................................................272.3.4.6 self-defence...........................................................................................................................272.3.4.7 duress....................................................................................................................................282.3.4.8 necessity................................................................................................................................28

2.4 PROVOCATION 6.7.................................................................................................................292.4.1 history..............................................................................................................................292.4.2 s 23: trial for murder – provocation................................................................................29

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2.4.3 provocative conduct/circumstances.................................................................................302.4.4 subjective test: time & loss of self-control.......................................................................302.4.5 objective test: “the ordinary person”..............................................................................31

2.5 SELF-DEFENCE 6.8.................................................................................................................332.5.1 statutory defence of self-defence......................................................................................332.5.2 old common law...............................................................................................................35

2.5.2.1 a subjective or objective test?...............................................................................................372.5.2.2 defence of property...............................................................................................................372.5.2.3 Battered Woman Syndrome (BWS)......................................................................................37

2.6 NECESSITY 6.9.......................................................................................................................382.6.1 prison escapes..................................................................................................................382.6.2 strict liability....................................................................................................................392.6.3 political protest................................................................................................................392.6.4 regulation of abortion......................................................................................................39

2.7 DURESS 6.10..........................................................................................................................402.7.1 elements of duress............................................................................................................402.7.2 the objective test: the person of “ordinary firmness of mind”........................................412.7.3 duress & murder..............................................................................................................422.7.4 duress & battered woman syndrome................................................................................42

3. ASSAULT......................................................................................................................................43

3.1 INTRODUCTION 7.1................................................................................................................433.2 COMMON ASSAULT...............................................................................................................43

3.2.1 assault..............................................................................................................................433.2.1.1 actus reus...............................................................................................................................433.2.1.2 mens rea................................................................................................................................44

3.2.2 battery..............................................................................................................................443.2.2.1 actus reus...............................................................................................................................443.2.2.2 mens rea................................................................................................................................44

3.2.3 coincidence of actus reus & mens rea.............................................................................453.2.4 case law............................................................................................................................45

3.3 AGGRAVATED ASSAULT 7.3..................................................................................................463.3.1 with further specific intent...............................................................................................463.3.2 causing particular injuries...............................................................................................463.3.3 on victims of special status..............................................................................................463.3.4 using offensive weapons or dangerous substances..........................................................473.3.5 in combination with other offences..................................................................................473.3.6 with a sexual component..................................................................................................47

3.4 CONSENT TO HARM 7.4.........................................................................................................473.5 ACCEPTABLE VIOLENCE 7.5..................................................................................................483.6 PATTERNS OF VICTIMISATION 7.6.........................................................................................483.7 DOMESTIC VIOLENCE & LEGAL CHANGE 7.7.......................................................................48

4. SEXUAL ASSAULT....................................................................................................................49

4.1 INTRODUCTION 7.8................................................................................................................494.2 THE MENTAL ELEMENT 7.9..................................................................................................49

4.2.1 subjective knowledge of lack of consent..........................................................................494.2.2 recklessness......................................................................................................................50

4.3 ACTUS REUS ISSUES 7.10......................................................................................................504.3.1 definition of sexual intercourse........................................................................................504.3.2 consent.............................................................................................................................514.3.3 consent induced by force..................................................................................................514.3.4 consent induced by fraud & mistake................................................................................514.3.5 feminist perspective..........................................................................................................52

4.4 INDECENT ASSAULT 7.11......................................................................................................534.5 ACT OF INDECENCY 7.11.......................................................................................................544.6 HOMOSEXUAL OFFENCES 7.12..............................................................................................544.7 PROSECUTION OF SEXUAL ASSAULT 7.13.............................................................................544.8 PROVING NON-CONSENT 7.14................................................................................................55

4.8.1 delay in complaint............................................................................................................554.8.2 abolition of requirement for a corroboration warning to jury........................................554.8.3 communications privilege................................................................................................56

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4.8.4 admissibility of evidence of sexual experience & reputation...........................................564.8.5 the stay development........................................................................................................57

4.9 CHILD ABUSE & SEXUAL ASSAULT 7.15..............................................................................57

5. DISHONEST ACQUISITION....................................................................................................58

5.1 INTRODUCTION 10 1..............................................................................................................585.2 LARCENY 10.2.......................................................................................................................585.3 OTHER NSW OFFENCES 10.3................................................................................................585.4 TECHNOLOGY & WHITE COLLAR CRIME 10.7.4...................................................................585.5 ROBBERY, BURGLARY & BLACKMAIL 10.8..........................................................................585.6 RECEIVING, PROCEEDS OF CRIME 10.9.................................................................................58

6. EXTENDING CRIMINAL LIABILITY....................................................................................59

6.1 INTRODUCTION 11.1..............................................................................................................596.2 ATTEMPT 11.2.......................................................................................................................59

6.2.1 introduction......................................................................................................................596.2.2 mens rea...........................................................................................................................606.2.3 actus reus.........................................................................................................................606.2.4 impossibility.....................................................................................................................61

6.3 CONSPIRACY 11.3..................................................................................................................626.3.1 introduction......................................................................................................................626.3.2 elements............................................................................................................................63

6.3.2.1 existence of the agreement....................................................................................................636.3.2.2 convictions of individuals for conspiracy.............................................................................636.3.2.3 impossibility..........................................................................................................................636.3.2.4 scope of the agreement..........................................................................................................64

6.3.3 controversies surrounding conspiracy.............................................................................646.3.3.1 relevant “unlawful acts”........................................................................................................646.3.3.2 rationale for the offence of conspiracy..................................................................................646.3.3.3 politically motivated prosecutions........................................................................................646.3.3.4 procedural and evidentiary advantages.................................................................................64

6.3.4 future of conspiracy.........................................................................................................656.4 COMPLICITY 11.4..................................................................................................................65

6.4.1 introduction......................................................................................................................656.4.2 joint criminal enterprise..................................................................................................656.4.3 accessorial liability..........................................................................................................65

6.4.3.1 conduct amounting to secondary participation.....................................................................656.4.3.2 mental element for accessorial liability.................................................................................656.4.3.3 implications of derivative liability: innocent agency............................................................656.4.3.4 withdrawal.............................................................................................................................65

6.4.4 doctrine of common purpose............................................................................................656.4.4.1 what must be foreseen?.........................................................................................................656.4.4.2 relationship between joint criminal enterprise and common purpose...................................65

6.4.5 accessory after the fact....................................................................................................65

7. SENTENCING & PENALITY....................................................................................................67

7.1 INTRODUCTION 12.1..............................................................................................................677.2 JUSTIFICATIONS FOR PUNISHMENT 12.2................................................................................677.3 DEVELOPMENTS INCONSISTENT WITH JUST DESERTS 12.3...................................................677.4 JUDICIAL RESISTANCE 12.4...................................................................................................677.5 PENALITY & CRIME PREVENTION 12.5.................................................................................677.6 VICTIM PARTICIPATION 12.6.................................................................................................677.7 JUDICIAL APPROACHES TO SENTENCING 12.7......................................................................677.8 APPELLATE REVIEW 12.8......................................................................................................677.9 Sentencing Options 12.9.......................................................................................................67

C=casebook: Criminal LawsN=notesU=UTS (Cavendish) cribH&J=Howie & Johnson

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1. Unlawful Homicide

[C.490-502; 506-520] [N.3-5]

1.1 Patterns of Homicide 5.1[C.490-501] [N.6-8]

most deaths are not caused by homicide gender difference

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1. actus reus (act must cause the death of a human) act or omission (omission: Stone & Dobinson, Taktak) causation (Royall) death (Human Tissues Act 1983 (NSW) s 33) human being (beginning of life: murder – s 20;

manslaughter – Hutty) voluntariness

o evidentiary burden on D (if raising involuntariness) (Falconer)

o P must prove voluntariness BRD (Falconer) [C.373]2. mens rea

murder: s 18(1)(a)o intent to killo intent to cause GBHo reckless indifference to human life (subj. foresight of

probability of death) (Crabbe; Solomon)o constructive murder (Ryan)

manslaughter: s 18(1)(b) common lawo voluntary manslaughter (mens rea for murder, but

partial defence) provocation substantial impairment (a.k.a. diminished

responsibility) excessive self-defence (while defending life or

liberty) (s 420) infanticide

o involuntary manslaughter (no mens rea for murder; objective test)

by unlawful and dangerous act (Wilson: appreciable risk of serious injury)

by criminal negligence (Nydam: probability of harm)

o ‘subjective manslaughter’ reckless indifference to probability of GBH

(Solomon) reckless indifference to possibility of death

(Crabbe)3. coincidence of actus reus & mens rea (Meyers) [C.358]

also a continuing series of acts (Thabo Meli) [C.359]


o most murderers are men (male-to-male confrontational violence)

o when women kill/are killed it is domestico when men kill/are killed it’s either domestic or friends

indigenous rates of homicide 8 times that of general population

long-term trend: homicide on the decline (1908 v 1992 [N.8])

1.2 An Atypical Offence? 5.2[C.501-2]

heart disease & cancer are the big killers homicide accounts for <1% of all deaths in 1993 homicide is atypical as a criminal offence: about 2% of

serious offences in 1999

1.3 The Legal Framework 5.4[C.506-20] [N.8-9,19-20,25]

actus reus for murder & manslaughter is identical only the mens rea differs

1.3.1 statutory provisionss 18(1)(a): murder – 4 heads

intent to kill intent to inflict GBH reckless indifference to human life

o “reckless indifference” = subjective foresight = knowledge of probability

o foreseeability/probability of death (Crabbe) [note: possibility of death=reckless manslaughter (per

Crabbe)]o elsewhere in Aust reckless indifference to probability of

GBH is also murder, in NSW it is manslaughter (because of words “to human life” in this sub-section) (Solomon)

o (in UK reckless indifference is manslaughter, because there’s no intent)

constructive murder (felony murder): murder while committing an offence that attracts life or 25 years – no mens rea required

s 18(1)(b): everything else is manslaughter – as defined in common law

voluntary manslaughter (mens rea for murder, but there are mitigating circumstances, i.e. a successful partial defence)o provocationo substantial impairment (a.k.a. diminished

responsibility)o excessive self-defenceo infanticide

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involuntary manslaughter (lacks mens rea for murder) [objective test: reasonable person]o manslaughter by an unlawful & dangerous acto manslaughter by criminal negligence

subjective manslaughter (i.e. not objective)o reckless indifference to probability of GBH [note: this is

reckless murder in other Aust jurisdictions] (Solomons)o reckless indifference to the possibility of death (Crabbe)

s 18(2)(a): ‘malicious’ = done with the appropriate mens rea. (malice aforethought [C.507])

1.3.2 causation D must have caused the death of V, otherwise they are not

guilty of murder or manslaughter. Possibly guilty of attempt to murder (if they have intent) or an assault or aggravated assault.

even if D only intended GBH (or was recklessly indifferent to probability of death), they commit murder if V dies.

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1.3.3 constructive homicide s 18(1)(a): act or omission causing death ‘done in an

attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him, of a crime punishable by imprisonment for life or 25 years’.

this is offensive because it makes murderers of those who kill accidentally, if they are committing an offence attracting 25yrs. Examples:o supplying prohibited substances in commercial

quantities: Drug Misuse & Trafficking Act 1985 (NSW) ss 25(2) (supply of large commercial quantity) and 25(2A) (supply of commercial quantities to someone <16y.o.)

o s 36: causing a grievous bodily disease manslaughter by unlawful and dangerous act is a version of

constructive manslaughter.

1.3.4 voluntary manslaughter full mens rea for murder, but mitigating factors reduce

murder to manslaughter partial defences available:

o provocationo substantial impairment (a.k.a. diminished

responsibility)o excessive self-defenceo infanticide

1.3.5 prosecution process in any trial for murder, the alternative verdict of

manslaughter is always open to the jury (Downs) DPP simply charges murder, leaving jury to decide if it was

murder or manslaughter (surely this prejudices the accused!!!)

1.3.6 sentence Crimes (Life Sentences) Amendment Act 1989 (NSW)

amended Crimes Act:o s 19A: murder attracts life (“for the term of the

person’s natural life”)o s 24: manslaughter attracts 25yrs

Pemble v R (1971, HCA) [C.520] [N.14]facts - pre-existing domestic relationship between D & V

- relationship terminated, D was unhappy about it- D saw the deceased, and carried a loaded gun towards her, alleging that he only intended to scare her- the rifle was cocked, he tripped and killed her- Crown alleged that D walked up to her, muzzled, and shot her

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issue

is actual foresight of the consequences of the acts necessary for murder?

ratio recklessness for murder=actual foresight or advertence to the probability of consequences of his act.

note Barwick CJ: possibility (as followed in La Fontaine but overruled in Crabbe)

held conviction of murder must be set aside, and replaced with manslaughter by unlawful and dangerous act.

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1.3.7 debate about abolishing murder-manslaughter debate about abolition of partial defences & murder-

manslaughter & create single offence of ‘unlawful homicide’o pro: difference made sense when death penalty (for

murder) existed. Now there is no need: Hyam v DPP (1974,UK) [C.511]

o con: calling someone a ‘murderer’ still has a stigma attached [C.613]

o con: role of jury to decide moral culpability–murder/manslaughter [C.613]

1.4 Mens Rea of Unlawful Homicide

1.4.1 intent, reckless indifference 5.5[C.520-30] [N.13-6]

intent is uncontroversial – it relates to 2 heads of murder: the intent to cause death or to cause GBH

reckless indifference=subjective foresight as to probability of death (Crabbe)

reckless indifference is different across jurisdictions…reckless

indifference to…NSW rest of

AustUK

probability of death murder murder manslaughter

possibility of death manslaughter

manslaughter

manslaughter

probability of GBH manslaughter

murder manslaughter

possibility of GBH manslaughter

manslaughter

manslaughter

Crabbe (1985,HCA) [C.520] [N.14-5]facts - D got very drunk at a hotel in Ayers Rock

- he was ejected from the bar- he returned in his “road train” and drove it into the side of the hotel killing 5 people

issue

is actual knowledge or foresight of the consequences of act necessary for murder? (re-considers Pemble v R)

ratio to convict of murder D must know (foresee) that his actions would probably cause death or GBH—imputed knowledge or a possibility is not enough.

held the direction of the trial judge as possibility was incorrect and the Federal Court order for a new trial stands, Crown appeal dismissed.

Boughey (1986,HCA) [C.525] [N.15]facts Tasmanian doctor with a penchant for carotid arteriesratio “likely” = probability (in a jury direction)disse Brennan J: probability “good chance”

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ntnote overturned in Royall (though not expressly overruled)

Annakin (1988,NSWCCA) [C.526] [N.15]ratio ignores Boughey’s loose test & applies strict Crabbe testnote approved by HCA in Royall

Royall (1990,HCA) [C.524] [N.14-5]ratio Crabbe mens rea for murder applies to s 18, but only for

death, not for GBH (approves Solomon (1980,NSWCCA)) approves Annakin rather than Boughey (though doesn’t

expressly overrule latter)note in UK “reckless indifference” uses an objective test, i.e. involuntary

manslaughter

1.4.2 constructive murder 5.6[C.530-9] [N.16-8]

s 18(1)(a): act or omission causing death ‘done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him, of a crime punishable by imprisonment for life or 25 years’.

the whole point of constructive murder is that the mens rea requirement is not that of murder, but rather that of the ‘foundational’ crime (see Ryan [N.16])

the actus reus of murder is still required, which is why involuntariness was argued in Ryan [C.365] [U.43]. It’s still possible to negative the actus reus of murder.

does not exist in the common law of the UK (Pagett [C.594])

Ryan v R (1967,HCA) [C.530] [N.16]facts - D entered a service station with the intent to commit a

robbery with a weapon- his rifle was cocked, had safety off & was pointed at V- the gun discharged when D was startled by V’s sudden movement

issue

did D have mens rea for murder? (He contended that it was manslaughter by dangerous and unlawful act).

ratio the felony in s 98 is created by 2 acts: robbery and wounding –no intention to wound is necessary, it must only be a voluntary act, and if the wounding results in death, it is constructive murder.

held appeal dismissed.

Munro (1981, NSWCCA) [C.533] [N.17]facts - D was sentenced to life imprisonment for murdering,

+ 7 years for an offence under s 95- entered flat of 92 year old man with the intent of stealing- in process he punched the man which led to man’s death

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issue was a causal link required between the felony and the death?

ratio in s 96 offence, there is no requirement that there be a direct causal link between the felony and the death, only that the death must be caused during OR immediately after the “felony”.

P does not have to prove that death was possible or that a reasonable person would have foreseen the risk.

held appeal dismissed. legislati

ons 95=robbery with violences 96=where in commission of this offence, wounding occurs, penal servitude for life

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1.4.3 manslaughter by unlawful act 5.7[C.539-48] [N.18]

objective test: the unlawful act must be such that a reasonable man in the accused’s position…would have realized that he was exposing another or others to an appreciable risk of serious injury

Wilson v R (1992,HCA) [C.539] [N.18]facts - D hit the deceased on the face, which caused him

to fall and hit his head. D’s companion then went through his pockets and “smashed” his head on the concrete. The deceased subsequently died from brain injuries. - P argued that most likely cause of death was fall from D’s punch- D & companion charged with murder on the basis of the doctrine of felony murder- companion acquitted- D convicted of manslaughter & appealed his conviction

majority: Mason CJ,

Toohey, Gaudron and

McHugh JJ

- approved decision of Smith J in Holtzer and articulated test to be an appreciable risk of serious injury. - rejected English line of authority in Church and Newbury that there had to be an appreciable risk of ‘some harm’, albeit not serious harm

minority: Brennan,

Deane and Dawson JJ

- held that manslaughter by an unlawful act required proof of existence, objectively determined of the likelihood or risk of injury such that it could be said that the act in question was dangerous - rejected majority view of proof of objective appreciable risk or serious injury

Ratio - objective test: “circumstances must be such that a reasonable man in the accused’s position, performing the very act which the accused performed, would have realized that he was exposing another or others to an appreciable risk of serious injury”- battery manslaughter abolished in Australia

Held - it is not possible to conclude that no substantial miscarriage of justice occurred.- appeal was allowed, the conviction for manslaughter quashed and a new trial ordered.

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1.4.4 manslaughter by criminal negligence 5.8[C.549-62] [N.21-2]

this is a version of constructive manslaughter [C.509] no intention of causing death or GBH need be proved by P,

so it would be a good idea to argue involuntariness (as in Ryan [C.365]) [U.43]. It’s still possible to negative the actus reus of manslaughter.

objective test: P must prove at least that the accused fell short of the standard of care which a reasonable person would have exercised, in circumstances where the reasonable person would have appreciated a probability of death or GBH.

Nydam v R (1977,VSC (FC)) [C.549] [N.21]facts - D had a deteriorating friendship with V (deceased woman).

He was upset at the thought of her returning to England. - on 2 occasions D attempted to persuade her to speak to him. - on the third occasion he threw petrol over the deceased and lit a cigarette lighter. An explosion occurred and the deceased died instantly - D was convicted of murder. He appealed.

issue

what is the proper test to be applied for manslaughter by criminal negligence?

ratio - “In order to establish MCN it is sufficient if the P shows that the act which caused death was done by the accused consciously and voluntarily, without any intention of causing death or GBH but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or GBH would follow” - therefore the test (1) is objective; (2) involves a very high degree of negligence; and (3) the reasonable person would have appreciated a probability of death or GBH

held - a direction to this effect was not given by the trial judge and was not in accordance with the test as formulated. - verdict was quashed and a new trial was ordered.

R v Buttsworth (1983, NSWCCA) [C.554] [N.21-2]facts appellant charged with 6 offences of culpable driving (s

52A)issu

eessentially, the distinction between the offence MCN and the offence of culpable driving under s 52A

ratio - court distinguishes b/w offence of motor-manslaughter (MCN) & s 52A- with regards to MCN:

- the court approves Lord Atkin’s speech in Andrews v DPP.

- a high degree of negligence is required: the negligence

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“went beyond a mere matter of compensation b/w subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving or punishment”

- this remains authority in NSW- with respect to s 52A: - the same objective standard is set by s 52A as in Nydam v R

held there was evidence upon which the jury could have found both negligence for manslaughter and driving in a manner dangerous to the public for culpable driving. Street CJ and Nagle CJ agreed.

note 4 new driving offences were created in NSW as a consequence [N.22]

Jurisic guideline judgment also issued

1.4.5 corporate homicide 5.9[C.562-9] [N.23]

there are no fines for murder, just imprisonmentcannot convict a company

mens rea: use Tesco to find directing will of the company

1.5 Actus Reus of Unlawful Homicide the actus reus is the same for murder & manslaughter:

o act or omission (s 18(1))o causation (Royall)o death (Human Tissues Act NSW (1983) s 33)o human being (murder – s 20; manslaughter – Hutty

[U.34])o voluntariness (Ryan)

summary: a voluntary act or omission causing the death of a human being

1.5.1 homicide by omission 5.10[C.569-80] [N.23-4]

s 18(1)(a): murder & manslaughter can be committed by omissiono this will be read down in the light of the common law

doctrine that before homicide can be committed by omission, there must first be a duty to act. [C.570]

objective test: if you assume a duty to care for someone, you must discharge that duty to the standard of a reasonable person.

Stone and Dobinson (1977,UKCA) [C.570] [N.23]facts - S was partially, deaf, almost totally blind, had little sense

of smell and of low average intelligence. - D lived with S and was described as ineffectual and inadequate. - S’s eccentric sister F came to live with them.

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- F became ill and S attempted to find her a doctor but walked to the wrong village. Her condition deteriorated. A neighbour came to provide assistance to F and advised D to contact social service. - D was also advised to obtain a doctor by another person but he didn’t know how to use a phone. D did supply F food, but she would only eat biscuits due to a fear of getting fat. - F later died and S and D were charged with manslaughter and convicted. - on appeal

issue The issue was whether the trial judge misdirected the jury with regard to items 1 and 2

ratio - 3 elements are needed in order to convict under this sub-category of MCN, namely:

1. D undertook care of a person who by reason of age/infirmity was unable to care for himself;

2. D was grossly negligent in regard to his duty of care3. by reason of such negligence the person died

reasoning

- The court rejected the proposition that D was entitled to do nothing and distinguished this situation from that of a drowning stranger. D did make efforts to care and the jury were entitled to find that the duty had been assumed.

held The trial judge did not misdirect the jury. The conviction were upheld

Taktak (1988,NSWCCA) [C.571] [N.24]facts - D was a heroin addict and associate of R, a heroin

supplier. - R asked D to procure 2 prostitutes for a party. - V had been using drugs and in the early hours of the morning R phoned D to pick up the girl. - when D arrived the girl was moaning and unable to speak.- D took the girl back to R’s where he attempted to wake her by slapping her face, pumping her chest and performing mouth to mouth resuscitation.- R returned at 10 but she still wasn’t awake so he went to get a doctor. - the girl was already dead when the doctor arrived.- D was charged with manslaughter. There was however a dispute as to the time of death.

issue was it open to a jury to find that in the circumstances, D owed the girl a legal duty to obtain medical attention for her?

ratio - P must prove BRD the 3 requirements for this head of manslaughter:

1. D owed a duty of care in law to V2. D’s omission was the proximate cause of V’s death3. D’s omission was conscious & voluntary, without any

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intention of causing death but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death would follow that the omission merited criminal punishment.

note a duty of care will be assumed where the appellant cared for a helpless and infirm person, thereby removing them from a situation in which anyone else might have rendered or obtained aid.

held appeal allowed: verdict of acquittal entered.

Russell (1933,VSC) [C.576] [N.24]held man convicted of manslaughter for standing by & watching

his wife drown herself & their 2 children. His conviction relating to his wife was overturned on appeal – he owed her no duty of care (whereas he did to his children).

note this is an example of the common law requirement for a duty to exist before an omission will attract criminal liability for homicide

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1.5.2 causation 5.11[C.580-601] [N.26-9]

there must be a chain of causation from the substantial & operating act (Smith) to the death. That chain can only be broken by a novus actus interveniens.

operating means “not spent”, i.e. still acting as a cause of death (Hallet [C.590])

substantial means not de minimis (the law is not concerned with trifles)

the operating & substantial cause need not be the only operating cause of death (Smith). It need not be the sole cause or even the main cause of death (Pagget).

D must take their V as s/he finds them (Blaue) common law year-and-a-day rule abrogated in NSW (s 17A) discontinuation of life-support does not constitute a novus

actus interveniens (Malcherek and Steel) note: [H&J.273] lists 4 tests for causation mentioned in

Royall by McHugh J

Royall v R (1990,HCA) [C.582] [C.27]facts - D & V (de facto couple) have a violent in their apartment

- V falls from 6th floor window & is killed- evidence of assault and struggle in the bathroom- D said V locked herself in bathroom and committed suicide when he forced the door open- P said 3 scenarios:

1) V was pushed (by D)2) V fell (while retreating from D’s attack)3) V jumped (having a well-founded and reasonable

apprehension of life-threatening violence by D & seeking to escape it – this is main causation issue)

- D appealed against conviction for murderissue whether V’s act of fright/escape/self-preservation

constitutes a novus actus interveniens, thereby negativing causation for homicide?

ratio 1. it is for the jury to determine whether:(i) D’s conduct induced in V a well-founded

apprehension (fear) of physical harm? and(ii)V’s response (to seek escape) was reasonable? (i.e.

V did not over-react)YES: D’s conduct caused V’s injury (i.e. V’s conduct was not a novus actus interveniens negativing causal connection between D’s conduct & V’s injury)

2. P must prove (BRD) D’s action caused the act of escape or self-preservation

3. foreseeability is not the test – recklessness & intent are mens rea elements, not elements of causation

4. there must be a temporal coincidence between mens rea & actus reus

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dissent

(McHugh, Brennan JJ) argued for a test that it was reasonably foreseeable (by D) that V would engage in act of self-preservation in response to D’s actions/threats.

held special leave granted – appeal dismissed

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Hallett (1969, SASC) [C.567] [N.27]facts - D charged with murder of V

- V made a pass at D; fight ensued; V pulled a knife & threatened to sexually mutilate D- D got upper hand in the fight & V ran away into the water; V could not swim, D rescued him & left him on the beach breathing- D fell asleep in car, when he woke up he that V had drowned.- D cut off V’s genitals and buried him.- cause of death = drowning in shallow water- D appealed conviction for murder

issue

whether the acts of D had a “sufficiently substantial causal effect” on the death of V?

ratio adopts Smith (1959,UK,[C.582]): if at the time of death the original wound is still an operating cause and a substantial cause then there is a causal connection, even if some other cause is also in operation

held the act of D in reducing V to unconsciousness originated the chain of events which led to the drowning

Blaue (1975,UKCA) [C.591] [N.28]facts - D attacked & stabbed V

- V was a Jehovah’s Witness & refused a blood transfusion- D appealed this conviction for manslaughter (for diminished responsibility)

issue

whether V’s refusal to accept medical treatment was a novus actus interveniens?

ratio criminals must take their victims as they find them follows Smith: operating & substantial cause

held the question is: what caused V’s death? The answer is the stab wound. V’s refusal to stop this end did not break the causal connection between the act and the death. Refusal was, in effect, a ‘pre-existing condition’.Appeal dismissed.

Pagett (1983,UKCA) [C.594] [N.28]facts - D used V as shield & shot at police who shot back & killed

V- D charged with murder, convicted of manslaughter; appealing conviction

issue

when death caused by another, whether it should be imputed to the original aggressor?

ratio D’s act need not be the sole cause, or even the main cause, of V’s death – it is enough that D’s act contributed significantly to V’s death.

an example of a novus actus interveniens is when the intervening act of a 3rd party can be described as the sole cause of V’s death.

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o however, a reasonable act performed (by a 3rd party) for the purpose of self-preservation, being an act itself caused by D’s own act, does not operate as a novus actus interveniens D is criminally responsible for the death of V

held appeal dismissed

Malcherek and Steel (1981,UKCA) [C.599] [N.29]facts - doctor turns off life-support after performing appropriate

testsissu

edoes this constitute a novus actus interveniens?

held no – does not break chain of causation between injury and death

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1.5.3 causation: medical treatment and euthanasia 5.12[C.601-6] [N.29]

an adult is entitled to refuse medical treatment: St George’s NHS Trust v S (1998,UK)

discontinuation of life-support does not constitute a novus actus interveniens: Malcherek and Steel (1981,UKCA) [C.599]

discontinuation of life-support is ok when: Airedale NHS Trust v Bland (1993,HL)o in a PVS (permanent vegetative state)o patient not responding to medical careo no prospect of improvemento nothing else doctors can doo family consentso in the patient’s best interests

s 31C(1): aid or abet the suicide or attempted suicide of another

s 31C(2): inciting or counselling suicide or attempted suicide of another

Rights of the Terminally Ill Act 1995 (NT) repealed by Euthanasia Laws Act 1997 (Cth)

14% of NSW doctors admit to assisting euthanasia of patients

1.5.4 definition of life[C.600] [N.26]a child has been born alive when:

for the purpose of murder – a child has been born alive when: (s 20)o it has breathed; ando has been born wholly into the world,o with or without independent circulation

for the purpose of manslaughter – common law rule of Hutty (1953,VSC) [U.34] applies:o completely delivered from the body of its mother; ando it has an existence separate & independent of its

mother: child is fully extruded from its mother’s body; and is living by virtue of the functioning of its own

organs, either attached or unattached by umbilical cord

1.5.5 definition of death Human Tissues Act NSW (1983) s 33 – a person has died

when:o irreversible cessation of all functions of the person’s

brain; oro irreversible cessation of circulation of blood in the

person’s body.

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note: ss 82-84 make it an offence to intend to procure a miscarriage (i.e. abortion)

1.5.6 voluntariness voluntariness is part of the actus reus useful to argue involuntariness in cases of constructive

murder (Ryan [C.365]) or manslaughter for unlawful and dangerous act. This can lead to acquittal. [U.43]

if raising involuntariness to negative actus reus element:o evidentiary burden on D (if raising involuntariness)

(Falconer) [C.373]o P must prove voluntariness BRD (Falconer) [C.373]

1.6 Temporal co-incidence of mens rea and actus reus Fowler v Padget (1798,UK) [C.584]: the intent & the act

must both concur to constitute the crime also Royall [C.584] & Meyers [C.358] Thabo Meli [C.359]: a continuing series of acts

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2. Defences

2.1 Introduction 6.1[C.607-13] [N.30-2]

a true criminal defence requires D to discharge the evidentiary burdeno this contrasts with ‘defences’ (in quotes) that are really

just denials of core definitional elements (mens rea or actus reus), i.e. negativing factors of the core elements

debate about abolition of partial defences & murder-manslaughter & create single offence of ‘unlawful homicide’o pro: difference made sense when death penalty (for

murder) existed; now there is no need: Hyam v DPP (1974,UK) [C.511]

o con: calling someone a ‘murderer’ still has a stigma attached [C.613]

o con: role of jury to decide moral culpability–murder/manslaughter [C.613]

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a criminal offence = ar + mr + defenceso P must prove BRD ar & mr (& co-incidence of both)o D must discharge evidentiary burden (raise a doubt) for

all defences, except persuasive burden (balance of probabilities)

required for: insanity [C.608] substantial impairment (a.k.a. diminished

responsibility) [C.608] statutory provisions expressly or impliedly

placing such a burden on D [C.414]o P must disprove/negative BRD any defences raised (i.e.

P must prove absence of the defence elements)


2.2 Mental Defences

2.2.1 Insanity 6.2[C.613-37] [N.32-5,37] [U.76,179,191]

M’Naughten’s Case (1860,UKHL) [C.613] [N.32]facts - D believed he was being persecuted by the Tories

- eventually he intended and planned to kill PM Peel- by accident he killed his secretary Drummond- during his trial he used 5 medical specialists who testified as to his insanity- the Law Lords laid down the rules for insanity in England

issue

what is the law with regards to persons who have committed crimes while under insane delusions?

ratio even man is presumed to be sane it must be proved that when committing the act, D was:

(i) labouring under such a defect of reason(ii)owing to a disease of the mind; such that either (iii) D did not know the nature & quality of D’s act;

or (iv) if D did know, that D did not know that what D

was doing was wrong.held not guilty by reason of mental insanity – committed to

insane asylumnote see [U.182-6] for a more detailed examination of the

elements of this test

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the party raising the defence (either P or D: Ayoub) must prove, on the balance of probs (Porter), that at the time of committing the act (Porter), D was: (M’Naughten)

(i) labouring under such a defect of reason(ii)owing to a disease of the mind; such that either (iii) D did not know the nature & quality of D’s act; or (iv) if D did know, that D did not know that what D was

doing was wrong.

a special verdict of ‘not guilty by reason of mental illness’ results (Mental Health (Criminal Procedures) Act 1990 (NSW) s 38)

the acquitted person becomes a ‘forensic patient’ & is held indefinitely in custody

(Mental Health (Criminal Procedures) Act 1990 (NSW) s 39)

burden of proof & raising the defence: party raising insanity bears the burden of proving the

defence on the balance of probabilities: (Porter; contra Woolmington)

both P and D can raise the defence (Falconer; Ayoub) burden of proof is the same for both P and D: balance of

probs (Falconer; Ayoub)


Porter (1936,HCA) [C.615] [N.33]facts - after a number of problems in his marriage, D lost control

of his emotions, and the wife refused to have anything to do with him an removed the child- D gave the child strychnine, killing it, and was about to kill himself when the police arrived

issue

did D not know that the act was wrong due to a disease of the mind? What is the law relating to insanity in Australia?

ratio D must prove insanity on the balance of probabilities (contra Woolmington)

jury only concerned with D’s state of mind at the time of the act, not before or after

insanity is not: excitability, passion, stupidity, obtuseness, lack of self-control, impulsiveness

if at the time of the act he had such a disturbance of the mind that he was incapable of discerning right or wrong or taking into account relevant considerations, according to ordinary standards, then he must be not guilty by reason of mental insanity.

held finding of not guilty by reason of mental insanity, committed to insane asylum

note jury direction (not persuasive authority), but delivered by Dixon J (HCA)

R v Jones (1995,NSWSC) [C.620] [N.33]obit

er‘defect of reason’ should not be a necessary element in the defence

R v Antoine (2000,UKHL) [C.621] [N.33]ratio only need to prove actus reus, because insanity has

destroyed mens rea.

2.2.1.1 procedure party raising insanity bears the burden of proving the

defence on the balance of probabilities: (Porter; contra Woolmington)

both P and D can raise the defence (Falconer; Ayoub) burden of proof is the same for both P and D: balance of

probs (Falconer; Ayoub)

Ayoub (1984,NSWCCA) [C.625] [N.34]facts - D stabbed his father to death

- D pleaded diminished responsibility & adduced supporting evidence of schizophrenia- D did not raise defence of insanity, but P did- D found not guilty for reason of mental illness

issue what is the standard of proof required when P raises insanity?

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ratio P must prove on balance of probabilities (just like D)disse

ntWoolmington should be followed (Enderby J)

Falconer (1990,HCA) [C.625] [N.34]ratio it is open to P to lead evidence to establish mental illness,

on the balance of probabilities, as an alternative to conviction.

Mental Health (Criminal Procedures) Act 1990 (NSW)[C.625-6] [N.34]

s 37: jury direction on defence of insanity s 38 – special verdict: “not guilty by reason of mental illness” s 39 – indeterminate detention: a forensic patient is detained

in custody for an indefinite period (formerly “at the governor’s pleasure”)

automatic retention: men in Long Bay, then Morriset; women in Cumberland Hospital

six-monthly re-assessments by Mental Health Review Tribunal

2.2.1.2 fitness to plead unfit to plead – for criteria, see Presser (1958,VSC) [C.628]

[N.35] incapable of giving instructions to counselforensic patient

[C.630] [N.35]

2.2.1.3 forensic patients 3 types: mental illness defence; unfit to be tried; transferred

from prison Mental Health Review Tribunal reviews cases of forensic

patients [N.35]

2.2.1.4 summary proceedings Mental Health (Criminal Procedures) Act 1990 (NSW) ss 32-

33: allow mentally ill to be diverted into health care system

2.2.1.5 involuntary committal requires committal before a Magistrate

2.2.2 Automatism 6.3[C.637-52] [N.36-40]

automatism = “involuntary act” defence to voluntariness (element of the actus reus) two types:

1. insane automatism: involuntary act proceeding from a disease of the mind. No longer available – subsumed by defence of insanity (Bratty), i.e. M’Naughten rules & insanity procedures apply.special verdict & indefinite detention

2. sane automatism: not (1)complete defence

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2.2.2.1 what is a disease of the mind?This is a very important question, because it means the difference between the outcomes of complete acquittal (for sane automatism) and indefinite detention (for insane automatism).

three tests (but only guidelines per Falconer):1. recurrence test: any mental disorder which has

manifested itself in violence and is prone to recur (Bratty)2. internal/external test: was D’s mental state triggered by

an internal or external factor? If internal, then disease of the mind. (Falconer)

3. unsound/sound mind: was D’s mental state the reaction of an unsound mind to its own delusions or external stimuli? (Radford)

2.2.2.2 insane automatism some decided examples:

o psychoses, such a schizophrenia (Bratty)o epilepsy (Bratty; Sullivan)o cerebral tumour (Bratty)o hyperglycaemia (Hennessy) (diabetic high blood sugar,

failed to take insulin; held there was no external factor)o sleep-walking (Burgess(UK); contra Jiminez; contra

Parks (Canada))

2.2.2.3 sane automatism D denies voluntariness & therefore has evidentiary burden P must prove voluntariness BRD (Woolmington) involuntary acts:

o concussion (Wogandt)o sleep-walking (Jiminez; Parks (Canada); contra

Burgess(UK))o hypoglycaemia (Quick) (low blood-sugar, D injected too

much insulin; held insulin caused involuntariness)o sudden illness (Hill v Baxter)o stroke or heart attacko being attacked by a swarm of bees [C.637]o dissociation caused by a severe psychological blow

(Falconer)o dissociation caused by post traumatic stress disorder

(Donyadideh)o extreme states of (non self-induced) intoxication by

alcohol (s 428G)o extreme states of intoxication by drugs (Haywood)o circumstances caused by an “external factor”

(Falconer)

2.2.2.4 case lawBratty v AG for Northern Ireland (1963,UKHL) [C.638] [N.38-9]

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issue what is the standard of proof required when P raises insanity?

ratio(per Lord

Denning)

automatism is available as a defence to all criminal offences

an involuntary act is one “done by the muscles without any control by the mind, such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing, such as an act done whilst suffering from concussion or whilst sleep-walking”

if the involuntary act proceeds from a disease of the mind, it gives rise to a defence of insanity, but to a defence of automatism

disease of the mind= “any mental disorder which has manifested itself in violence and is prone to recur”

if D wishes to raise automatism, they must discharge the evidentiary burden

P must still prove voluntariness BRD

Sullivan (1983,UKHL) [C.642] [N.40]held epilepsy is a disease of the mind & therefore the defence

of automatism was not available, & instead amounted to the defence of insanity.

Falconer (1990,HCA) [C.642] [N.39]facts - D convicted of wilful murder of her husband (V)

- D subject to over thirty years of phys., psych, sexual abuse by V, & had also recently learned that he had sexually assaulted daughters.- V returned home on day of murder, sexually assaulted accused and taunted her.- D claimed she remembered nothing but waking up next to body, with gun in her hand.- D raised defence of non-insane automatism that induced a dissociative state.- evidence of this excluded by trial judge; over-turned by WACCA; Crown appealed to HCA.

issue did the act of shooting occur independent of D’s will?ratio D bears an evidentiary burden in raising non-insane

automatism if both insanity & non-sane automatism are before the

jury, then there is a two-stage test to determine which it is:

1. had P disproved BRD non-insane automatism?NO: D is entitled to unqualified acquittal (for involuntariness)YES: go on to Q2

2. had D proved on balance of probabilities insanity?YES: special verdictNO: D is criminally liable

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expert evidence is important to help jury decide whether D is feigning a dissociative state (in order to catch a pathological D)

dissent

per Mason CJ, Brennan & McHugh JJ when D raises automatism and assigns some

malfunction of the mind as its cause, he raises a defence of unsoundness of mind or insanity unless malfunction of mind was:

1. transient; and2. caused by trauma, whether physical or

psychological, which the mind of the ordinary person would be likely not to have withstood; and

3. not prone to recur. objective test: the mental strength of an ordinary

person [C.643]:o if the mind’s strength is below that standardmind

is infirm;o if the mind’s strength is below that standardmind

is sound/sanenote the ‘ordinary person’ of the objective test is the same as

that of the ordinary person in the objective test of provocation: ordinary person does not possess any of the particular emotional features of D at the time of the offence, but the objective factors would be taken into account (such as history of violence & abuse of children). [U.189]

2.2.3 Substantial Impairment 6.4[C.652-69] [N.41-3,44]

partial statutory defence (s 23A(5)) affirmative defence, BoP on D (contra Woolmington) (s

23A(4)) evidence of an opinion that impairment was substantial is not

admissible (s 23A(2)) self-induced intoxication is excluded as a ground for

substantial impairment (s 23A(3)) available for murder only test is wider than insanity (but this is only a partial defence)

D must prove (s 23A(4)) on the balance of probabilities that: (s 23A(1)(a))

1. at the time of the V’s death, D was suffering from an abnormality of the mind;

2. that abnormality of the mind arose from an underlying condition

3. that abnormality of the mind substantially impaired D’s capacity to:

(i) understand events; or(ii)judge whether D’s actions were right or

wrong; or

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(iii) control him/herself

Chayna (1993,NSWCCA) [C.653] [N.41]facts - D was devout Christian; depressed, anxious, unhappy;

marital problems;- husband threatens to take children away to live in Perth;- D snaps; goes into frenzied attack & kills sister-in-law, then one daughter in her bed; kills second daughter upon return from school camp- at trial conflicting psychiatric assessments by consultant psychiatrists.

obiter

Gleeson CJ expresses concern about difficult of a jury dealing with concepts which cause contention and ambiguity amongst the experts.

notes this led to the new s 23A (enacted in 1997)

s 23A: (1) A person who would otherwise be guilty of murder is not be convicted of murder if:

(a)at the time of the acts or omissions causing the death concerned, the person’s capacity to understand events, or to judge whether the person’s actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and

(b)the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

2.2.3.1 abnormality of the mindexamples:

major depressive illness (Chaya) post-traumatic stress disorder (Nielson) personality disorders (Byrne) PMT [C.666] [N.43]

Byrne (1960,UKCCA) [C.658] [N.42]facts - D admits to strangling women; also mutilated dead body;

- pleas diminished responsibility; medical evidence finds that he is “sexual psychopath” but not insane according to M’Naghten; only partial insanity. - trial J withdrew diminished responsibility from jury; J reasoned that “psychopathy” did not fall into statutory definition of abnormality of the mind

issue

whether J should have left diminished responsibility? whether psychopathy falls within statutory definition of abnormality of the mind?

held J’s direction to the jury that difficult or inability to exercise will power could not amount to abnormality of the mind leading to substantial impairment was incorrect and the defence of substantial impairment was a question which

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should have been left to the juryratio a state of mind so different from that of ordinary human

beings that the reasonable man would term it abnormal. …it covers the mind’s activities in all its aspect, not only the perception of physical acts and matters, and the ability to form a rational judgment as to whether an act is right or wrong, but also the ability to exercise will power to control physical acts in accordance with that rational judgment.

whether D’s abnormality of mind was so substantial as to impair his mental responsibility is a question of degree for the jury.

2.2.3.2 underlying condition[C.660]

s 23A(8) defines this as “a pre-existing mental or physiological condition, other than a condition of a transitory kind”

see NSWLRC explanation at [C.660] examples (see [U.79-80] for more)

o alcoholism in advance stageso not temporary intoxicationo not hormonal imbalance caused by anabolic steroids:

Desouza (1995,ACTSC) self-induced intoxication is excluded as a ground for

substantial impairment (s 23A(3)) [C.660]

2.2.3.3 substantial impairment[C.661]

s 23A(1)(a): “the person’s capacity to…” is meant to reproduce Byrne

s 23A(1)(b): meant to reproduce the “substantial impairment of mental responsibility” of Byrne

2.2.3.4 expert evidence see NSWLRC explanation at [C.663]

2.2.3.5 sentencing[C.664-6]Veen (1979,HCA) [C.664] [N.42]:

facts: prostitute stabs V over paymentheld: when sentencing diminished responsibility cases, it is necessary to balance the protection of society against the circumstances & gravity of the offence.

Veen (No 2) (1988,HCA) [C.665] [N.42]: facts: D released from prison & does the same thing againheld: when it comes to sentencing recidivists, the scale tips in favour of protecting society

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2.2.4 Infanticide 6.5[C.669-75] [N.45]

s 22A(1): substantive offence of infanticide s 22A(2): infanticide as alternative verdict to murder

(available to jury) both an offence and defence partial defence: murderinfanticide (manslaughter)

Hutty (1953,VSC) [C.670] [H&J.279]: a woman should not be prosecuted for murder where evidence indicates infanticide.

in practice, however, woman charged with murder so as to encourage D to plead guilty of the lesser offence of infanticide rather than face jury trial for murder.

see also [C.671] for onus of proof, etc strong case for abolition [N.45] [C.672-5]

o offence is arbitrary: 12 month limit; only the child.o defence could be covered by substantial impairment

2.3 Intoxication 6.6[C.675-81] [N.46-8]

not a defence, only negates elements of a crime (i.e. it is a ‘defence’)

intoxication may form basis of:o plea of automatism: involuntariness (actus reus) (BoP:

evidentiary (D); BRD (P))o a denial that D had the necessary mens rea (BoP:

evidentiary (D); BRD (P))o defence of insanity: where intoxicant triggered an

underlying disease of the mind (BoP: balance of probabilities (D))

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OFFENCEwilful (mens rea)

= ‘intention & knowledge & usually purpose’ (Ianella v French)[H&J.279]

act or omission (actus reus)causing (actus reus)death of her child (actus reus)

note: ‘her child’ means only the child to whom she recently gave birth, not any other child

child < 12 mths (actus reus)

DEFENCEat time of offence her balance of mind was disturbed by reason of:

her not having fully recovered from the effect of giving birth to the child

the effect of lactation consequent upon the birth of the child


juries are loathe to excuse self-induced intoxication (Ainsworth (1994, NSWCCA) per Gleeson CJ [C.676])

2.3.1 Part 11As description

428A definitions drug – as per Drug Misuse & Trafficking Act and Poisons

Act intoxication – includes alcohol, drug or any other

substance offence – includes an attempt to commit offence offence of specific intent – see s 428B relevant conduct – act or omission constituting the

actus reus self-induced intoxication – any intoxication except

when it:o was involuntaryo results from fraud, emergency, accident, reasonable

mistake, duress or forceo was a prescription or non-prescription drug taken in

accordance with instructions428B

(table of) offences of specific intent to which Part 11A applies(2) the tabled offences are not exhaustive

428C

intoxication in relation to offences of specific intent(1) D can raise intoxication (self-induced or otherwise) for offences of specific intent (2) except for cases of Dutch courage (having formed intent prior to becoming intoxicated)

428D

intoxication for other offences self-induced intoxication cannot be taken into account

for mens rea if intoxication was not self-induced, it can be taken into

account when examining mens rea428E intoxication in relation to murder & manslaughter

if intoxication results in acquittal for murder then: if self-induced, intoxication cannot be taken into account

when examining mens rea of manslaughter if not self-induced, intoxication can be taken into account

for mens rea of manslaughter428F intoxication in relation to the reasonable person test

the mind of the reasonable person is not intoxicated428G

intoxication and the actus reusself-induced intoxication cannot be pleaded when negativing voluntariness (automatism)however involuntariness is available if D’s intoxication was not self-induced

428H

common law relating to self-induced intoxication is abolished

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2.3.2 common lawMajewski (1977,UKHL) [C.676] [N.46-7]ratio can only raise voluntary self-induced intoxication to

negate actus reus or mens rea for crimes of specific intent

i.e.: involuntariness due to self-induced intoxication cannot be relied upon as answer to charges of basic intent

note rejected by HCA in O’Connor re-instated in NSW in 1996: Part 11A

O’Connor (1980,HCA) [C.676] [N.46-7] [U.192-3]ratio evidence of intoxication may be adduced to cast doubt on

the P case at the level of actus reus and mens rea. intoxication relevant to any defence (not just specific

intent offences) not guilty if so drunk act was involuntary not guilty if so drunk couldn’t form intent

note overruled in NSW in 1996: Part 11A criticised as a “drunks’ charter”

2.3.3 The ‘reasonable person’ s 428F states that the ‘reasonable person’ of an objective

test should not share D’s intoxication. it is worth noting that in Stingel [C.700] the HCA equated

‘ordinary’, reasonable’ and ‘normal’.

2.3.4 Intoxication and other defences

2.3.4.1 insanity intoxication is not a disease of the mind & therefore won’t

pass the M’Naughten test. however if it triggers an underlying disease of the mind then

insanity is available (AG v Gallagher).

2.3.4.2 automatisms 428G: self-induced intoxication cannot be raised as a defence

2.3.4.3 substantial impairment (diminished responsibility)

s 23A(3): self-induced intoxication is excluded as a ground for substantial impairment [C.660]

alcoholism in advanced stages can amount to a relevant abnormality of the mind [U.80]

2.3.4.4 infanticide murder is listed as an offence of specific intent (s 428B): s

428C allows intoxication to be raised as a defence for

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offences of specific intent, but if a partial defence is used, then s 428E kicks in

as a partial defence, presumably infanticide goes immediately to s 428E: self-induced intoxication cannot be raised as a defence; if not self-induced then it can.

this is confused here because s 22A is both an offence & defence!!!

2.3.4.5 provocation may be relevant with regard to causation & the objective test

[U.74] there is an ‘ordinary person’ test (s 23(2)(b)): presumably

(?) this is the same as the ‘reasonable person’ of s 428F and who therefore may not be intoxicated.

tricky issue here: there will be argument about whether loss of control was caused by provocation (which is a defence) or intoxication (which is not a defence).

2.3.4.6 self-defence Katarzynski contradicts Conlon (by adding the extra step of a

“reasonable response” test straight from s 418(2)) Conlon was decided before introduction of Part 11A, but Kurtic suggests that Conlon still stands who knows???? as yet there has been no appellate decision – we need one!!!

Conlon (1993,NSWSC) [C.677,740-5] [N.48,64,66]ratio test in self-defence (common law Zecevic at this time) is

not the reasonable person’s belief, but rather the accused’s reasonable belief (in all the circumstances in which he found himself), i.e. subjective not objective.

self-induced intoxication can be taken into account when examining that belief

note in Kurtic [C.743] Hunt CJ says obiter that Part 11A does not overrule Conlon

in Katarzynski [N.68] Howie J disagrees, saying that the assessment of D’s response to the danger (as s/he perceived it) is an objective assessment & therefore self-induced intoxication is not permissible – very, very confusing !!!

there has been no appellate decision yet – we need one!!!

R v Katarzynski (2002, NSWSC) [N.68]facts: - D shot V three times in early hours of morning, after a

pub fight - D was intoxicated at the time- D currently on trial before jury

issue: - is intoxication a relevant consideration for charges under s 418 (self-defence)?

held: Conlon & Zecevic no longer the law in NSW (because of new statutory provisions) [22]

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the tests for s 418 are:(i) subjective test of necessity of conduct (considering all

relevant personal characteristics of D): is there a reasonable possibility that D believed his/her conduct was necessary to defend him/herself?; and

(ii) objective assessment of proportionality of conduct in the circumstances as they were (subjectively) perceived by D: is there a reasonable possibility that what D did was a reasonable response to the circumstances as s/he perceived them?

did D genuinely believe their response was necessary? and given the circumstances as D perceived them (not as they actually were) was response reasonable? (NOTE: this differs from the common law)

there is no reasonable person test (s 428F): jury accesses the reasonableness of the response of D (not of the ordinary person) in the circumstances as s/he perceived them (not as they objectively were). [19]

some of the personal attributes of D (e.g. age, gender, health) & the surrounding physical circumstances are relevant in assessment of D’s response.

intoxication is relevant when:o considering matter of necessity: whether D genuinely

believed conduct was necessary; ando considering matter of circumstances as D perceived

themo but not when considering proportionality: whether

D’s response to those circumstances was reasonable. [28]

obiter:

s 418: test as to necessity is subjective (“as s/he perceived them”)

s 418: test as to proportion is objective (“reasonable response in the circumstances”) as subjectively perceived by D.

notes: this is not authority: it’s just jury directions of a single trial judge in NSWSC (Howie J)

in Conlon [C.740] Hunt CJ stated that intoxication is relevant in assessing reasonableness of D’s conduct.

in Kurtic [C.743] Hunt CJ says obiter that Part 11A does not overrule Conlon

in Katarzynski [N.68] Howie J disagrees, saying that the assessment of D’s response to the danger (as s/he perceived it) is an objective assessment & therefore self-induced intoxication is not permissible – very, very confusing !!!

so: o Katarzynski contradicts Conlon (by adding the extra

step of a “reasonable response” test straight from s 418(2))

o Conlon was decided before introduction of Part 11A,

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o but Kurtic suggests that Conlon still stands o who knows????o as yet there has been no appellate decision – we need

one!!!

2.3.4.7 duress there is an ‘person of ordinary firmness of mind’ test

(Abusifiah): it is unclear whether the ‘reasonable person’ of s 428F covers this test. Abusifiah states that this person is a broader concept than the ‘average person’ of the Lawrence test. [C.798, 800]

2.3.4.8 necessity in Loughnan there is a proportionality test, if that’s objective

then s 428F might apply in Rogers D must honestly & reasonably believe in the

necessity of D’s actions. But the reasonable belief is D’s, not the ordinary person’s (Conlon (per Hunt CJ) makes this point about Zecevic; remember that Rogers decision adopts Zecevic test)

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2.4 Provocation 6.7[C.681-726] [N.49-60]

2.4.1 history[C.681-2] [N.51]

R v Smith (2000,UKHL) per Lord Hoffman [C.681]o defence of provocation is a “concession to human

frailty”o showing anger in “hot blood” was once a sign of

masculine honouro when murder attracted the death penalty, partial

defence of provocation meant execution could be avoided

o “reasonable man” test introduced in R v Welsh (1869,UK)

not until 1980s that provocation was modified to cover domestic violence & cases where loss of self-control was not

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s 23 (trial for murder – defence of provocation) partial defence (murdermanslaughter) (s 23(1)) also a defence to constructive murder (s 23(1); Fry) D bears evidentiary burden of raising this defence P must negative defence beyond reasonable doubt (s 23(4)) 3 elements:

1. there must have been provocative conduct on the part of V

2. D must have lost self-control as a result of provocative conduct of V (subjective test) (s 23(2)(a)) (Chhay)

3. an ordinary person in D’s circumstances could also have lost self-control & formed intent to kill or cause GBH (objective test) (s 23(2)(b)). Objective test has two limbs (the Stingel test):

(a)gravity/context: ordinary person shares D’s characteristics (Green)

(b)loss of self-control: ordinary person only shares D’s youthful immaturity (Masciantonio)

ordinary person of the 1st limb shares the battered wife syndrome of D (Osland)

provocative conduct must be within the hearing or presence of D (Davis); but note that this has been questioned – no ruling yet.

“grossly insulting words” (s 23(1)): ‘mere words of abuse’ are not enough – words must be violent, offensive (Lees)

provocative act need not occur immediately before act or omission causing death (s 23(2)) (Chhay)

act or omission causing death need not be committed/omitted suddenly (per s 23(3)(b)) (Chhay)


“immediate”. This was in response to cases of Georgina Hill, SA axe murders, etc

2.4.2 s 23: trial for murder – provocation[C.682-3] [N.51-2](1) provocation is a partial defence: jury may acquit of murder & convict of manslaughter(2) an act or omission causing death is an act done or omitted under provocation when:

D lost self-control (subjective test) as a result of any conduct of V (“including grossly insulting

words or gestures”) towards or affecting D (the provocative conduct) (sub-s (2)(a)) and

the provocative conduct would have caused ordinary person in the position of D to so far lose self-control as to form intent to kill or cause GBH to D (objective test) (sub-s (2)(b))

provocative conduct could have occurred at any time prior to act or omission causing death.

(3) provocation is not negatived by:(a)disproportional response (i.e. no requirement for

proportionality)(b)a delayed response (i.e. no requirement of

suddenness/immediacy of reaction)(c) intent of D to kill or cause GBH

(4) P must prove beyond reasonable doubt that act or omission causing death was not done or omitted under provocation

2.4.3 provocative conduct/circumstancesDavis (1998, NSWCCA) [C.685-8] [N.52]

facts: D killed V after hearing that V was sexually assaulting 2 girls (3 & 5 y.o.)

issue: is provocation available to D who did not see or hear the provocative conduct of V?

held: words, conduct or gestures of V must occur within the hearing or presence of D (per R v Quartly (1986,NSWSC)).

reasoning:

if ‘hearsay provocation’ were allowed, then D would be able to kill innocent people.

obiter: per Simpson J: D is provoked by the belief that the conduct of V occurred. So if conduct did in fact occur, then D is provoked by V’s conduct not the report of V’s conduct provocation should be available to D.

notes: s 23(2)(a) says that provocation may be “any conduct of [V]…towards or affecting [D]”. There is no express requirement for Quartly condition.

when refusing special leave to appeal, McHugh & Hayne JJ expressed opinion that:1.Quartly might have been wrongly decided; and,2.s 23(2)(a) might be sufficient to remove Quartly

requirement

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R v Lees (1999, NSWCCA) [C.688-92] [N.52]facts: - V made remarks about suicide of D’s father.

- D was sensitive about the topic- a fight ensued, D claims he lost control, D killed V

issue: can words constitute provocation?held: provocative words can issue from an insult, threat of

violence, blackmail, extortion, etc. words need to be “of a sufficient violent, offensive or

otherwise aggravating character… Mere words of abuse or insult would not normally qualify…”

notes: s 23(1): “grossly insulting words or gestures” s 23 is silent on whether provocative conduct must be

unlawful. It is unlikely that unlawfulness requirement still applies.

2.4.4 subjective test: time & loss of self-control Historically there was a requirement for suddenness limited to a 15-20 minute delay between provocative act & response (Parker [C.692]).

Chhay (1992, NSWCCA) [C.693-8] [N.52-3]facts: - V was a violent & abusive alcoholic, married to D

- V claimed D had attacked her with knife, she got knife from him & stabbed him- P claimed V killed D when he was sleeping

issue: if D killed V when he was sleeping, then because there was no sudden triggering event, is provocation open to D?

held: no requirement that provocative conduct occurred immediately before the act or omission causing death (per s 23(2))

act or omission causing death need not be committed/omitted suddenly (per s 23(3)(b))

killing must have occurred when D was in an emotional state brought on by the loss of self-control

notes: s 23(2)(a): subjective test emphasis is on contextualisation of loss of self-control

(R; Hill) courts are suspicious of self-help through violence

(hence provocation is only a partial defence) R v R (1981,SACCA): V sexually abused his 5

daughters. On day of killing D is told of history of abuse. D kills V with an axe when he is asleep. Jury acquits. [C.696] [N.53]

Georgina Hill (1981,NSWCCA): extreme domestic violence. CCA reduces jury conviction for murder down to manslaughter. [C.697] [N.53]

some feminists have called for abolition of provocation as a ‘male-centred’ defence. But, statistics show that

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women are successful with this defence as well. [C.698] [N.53]

evidence of BWS not required for provocation, because the ordinary person of the 1st limb is a battered woman (if relevant)

2.4.5 objective test: “the ordinary person” Stingel (1990, HCA) [C.698-705] [N.54,57a]

facts: - D discovers V having sex with D’s former girlfriend.- D still obsessed with former girlfriend- V tells D to “piss off you cunt”- D stabs V to death with a butchers knife

issue: would ordinary person have been provoked?held: two limbs to the objective test:

1.gravity/contextualisation: degree/extent to which ordinary person (sharing relevant attributes of D, e.g. “age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history” or “even mental instability”) would have been provoked;

2.self-control: could the ordinary person (sharing only D’s youthful immaturity) have been provoked by that degree of gravity to lose their self-control & to act as D did?

2nd limb will always reflect “contemporary conditions and attitudes”

ordinary person = reasonable person = normal personnotes: s 23(2)(b): objective test – “conduct of [V] was such

as could have induced an ordinary person in the position of [D] to have so far lost self-control as to have formed an intent to kill, or to inflict GBH upon, [V]”

Masciantonio (1995, HCA) [C.705-11] [N.55,57a]facts: - V is married to D’s daughter, treats her badly, had

recently left her & their child & had taken most of their assets & savings- D confronts V, loses self-control & attacks & kills V in a frenzied fashion

held: affirms Stingel: “the question is whether the provocation, measured in gravity by reference to the personal situation of the accused, could have caused an ordinary person to form an intention to kill or do GBH and to act upon that intention, as [D] did…” [C.707]

obiter: per McHugh J: the “ordinary person” of the 2nd limb of the Stingel test

should share D’s ethnicity or cultural background. rationale: real equality before the law demands that

minorities not be measured against the standards of the dominant culture.

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notes: McHugh J’s position can be criticised for:o creating a multiplicity of “ordinary people” (one for

each ethnicity)o why stop at ethnicity? why not gender? why not

age? etco racial stereotyping: holding some people to a lower

standard of “self-control” than others suggests that some ethnicities have a greater/lesser capacity of self-control than others

in Moffa (1977, HCA,) Murphy J (in dissent) argued for abolition of the entire objective test [C.710]

Osland (1999, HCA): ordinary person of the 1st limb shares the battered wife syndrome of D [C.709]

trial directions: “might” or “could” have caused ordinary person to lose self-control. (not “would”)

Green (1997, HCA) [C.711-26] [N.55]facts: - V (36yo) attempted to have sex with D (22yo). D did not

want to.- D claims the image of sexual abuse of his sisters by his father flashed through his mind, causing him to lose self-control- D killed V in a very violent fashion

issue: should D’s special sensitivity to sexual assault be shared by the ordinary person of the 1st limb of the Stingel test?

held: yes: D’s special sensitivity to sexual assault is a relevant factor in measuring the gravity of the provocation & should be shared by the ordinary person. The special sensitivity is not to be shared by ordinary person of 2nd limb.

reasoning:

Brennan CJ: V was a father figure to D & V’s persistent homosexual advances evoked D’s special sensitivity. These were matters for the jury to determine when measuring the degree of provocation

McHugh J: the context of the provocation was a sexual advance aggravated by D’s special sensitivity to sexual assault. In measuring the gravity of the provocation, the ordinary person must be provoked “for the same reasons as the accused”

dissent: Kirby J: focuses on HAD (homosexual advance defence) &

concludes that ordinary 22yo would not be provoked by a homosexual advance

Kirby J has missed the point – he does not focus on D’s special sensitivity to (heterosexual) sexual assault

notes: in R v Smith (2000,UKHL) [N.56] the HL has rejected the view that only age & gender should be shared by the ordinary person in the self-control limb. Other (relevant) personal characteristics can also be taken into account. In Smith, D was suffering from a severe

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depressive illness that lowers capacity for self-control. HL said ordinary person should share that characteristic in the 2nd limb. NOTE: not the law in Australia.

2.5 Self-defence 6.8[C.726-61] [N.60-8]

2.5.1statutory defence of self-defenceCrimes Amendment (Self Defence) Act 2001 (NSW): [N.68]

proclaimed 22/02/2002 repealed Home Invasion (Occupants Protection) Act 1998

(NSW) [C.745] [N.65] inserted a new Part 11 Division 3 into Crimes Act 1900

(NSW) similar to the MCC [C.736]

s description418 self-defence – when available

(1) self-defence is a complete defence(2) self-defence established “if & only if the person believes the conduct was necessary”:

(a) to defend him/herself or another; or(b) to prevent or terminate unlawful deprivation of liberty of him/herself or another; or

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NOTE: ss 418-423 now replace common law in NSW

ss 418-423 (proclaimed 22/02/2002) no excessive force: complete defence (not guilty) excessive force (s 421): partial defence

(murdermanslaughter) D bears evidentiary burden of raising this defence P must negative defence beyond reasonable doubt (s 419) it is enough for P to negative either of the two elements of s

418 2 elements (s 418):

1. did D genuinely believe that conduct was necessary in order to defend himself/herself/another? (subjective test); and

2. was D’s conduct a reasonable response to the danger, as s/he perceived it to be? (objective test of proportionality with reference to D’s subjective perception of circumstances)

self-defence to murder not available when protecting property or preventing criminal trespass (s 420)

expert evidence of BWS can be adduced (Osland) threat need not be of death or GBH, also sexual assault

(Walden)


(c) to protect property from unlawful taking, destruction, damage or interference; or(d) to prevent criminal trespass or remove person committing criminal trespass;

and conduct is reasonable in circumstances as s/he perceives them.

419onus of proofP must prove beyond reasonable doubt that D “did not carry out the conduct in self-defence”

420

inflicting death (protecting property, preventing trespass)self-defence is not available when:- D uses force involving intentional or reckless infliction of death on V; and- D protecting only property (s 418(2)(c)) or preventing criminal trespass (s 418(2)(d))

421

excessive force inflicting death (defending life or liberty)(1) if D:

(a) uses force involving intentional or reckless infliction of death; and(b) the conduct is not reasonable in circumstances as s/he perceives them;but D believes the conduct necessary to:(c) defend him/herself or another; or(d) prevent or terminate unlawful deprivation of liberty of him/herself or another;

(2) then self-defence is a partial defence (murdermanslaughter)

422

response to lawful conductself-defence still available if:

(a) V’s conduct is lawful(b) V not criminally responsible for conduct to which

D responds423 timing provisions

R v Katarzynski (2002, NSWSC) [N.68] (for MCC equivalent cf C.736)

facts: - D shot V three times in early hours of morning, after a pub fight - D was intoxicated at the time- D currently on trial before jury

issue: - is intoxication a relevant consideration for charges under s 418?

held: Conlon & Zecevic no longer the law in NSW (because of new statutory provisions)

the tests for s 418 are:(iii) subjective test of necessity of conduct (considering

all relevant personal characteristics of D): is there a reasonable possibility that D believed his/her

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conduct was necessary to defend him/herself?; and(iv) objective assessment of proportionality of conduct in

the circumstances as they were (subjectively) perceived by D: is there a reasonable possibility that what D did was a reasonable response to the circumstances as s/he perceived them?

did D genuinely believe their response was necessary? and given the circumstances as D perceived them (not as they actually were) was response reasonable? (NOTE: this differs from the common law)

P must prove beyond reasonable doubt either:(i) D did not genuinely believe their conduct necessary

to effect their self-defence; or(ii) D’s conduct was not a reasonable response to the

danger as s/he perceived it there is no reasonable person test (s 428F): jury

accesses the reasonableness of the response of D (not of the ordinary person) in the circumstances as s/he perceived them (not as they objectively were).

some of the personal attributes of D (e.g. age, gender, health) & the surrounding physical circumstances are relevant in assessment of D’s response.

intoxication is relevant when:o considering matter of necessity: whether D

genuinely believed conduct was necessary; ando considering matter of circumstances as D perceived

themo but not when considering proportionality: whether

D’s response to those circumstances was reasonable. I think what Howie J is saying is that there are three

things for jury to consider (first two are subjective; third is objective):1. D’s assessment of circumstances (as s/he perceived

them)2. D’s assessment of the necessity to respond in those

circumstances3. objective assessment of whether D’s response was

proportional in those circumstances (as perceived by D, not as they objectively were)

NOTE: this is very similar to Mason J’s 6-point direction in Viro

obiter: s 418: test as to necessity is subjective (“as s/he perceived them”)

s 418: test as to proportion is objective (“reasonable response in the circumstances”) as subjectively perceived by D.

notes: this is not authority: it’s just jury directions of a single trial judge in NSWSC (Howie J)

poorly expressed reasons for directions

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intoxicationo in Conlon [C.740] Hunt CJ stated that intoxication

is relevant in assessing reasonableness of D’s conduct.

o in Kurtic [C.743] Hunt CJ says obiter that Part 11A does not overrule Conlon

o in Katarzynski [N.68] Howie J disagrees, saying that the assessment of D’s response to the danger (as s/he perceived it) is an objective assessment & therefore self-induced intoxication is not permissible – very, very confusing !!!

o so: Katarzynski contradicts Conlon (by adding the

extra step of a “reasonable response” test straight from s 418(2))

Conlon was decided before introduction of Part 11A,

but Kurtic suggests that Conlon still stands who knows???? as yet there has been no appellate decision –

we need one!!!

2.5.2 old common law

Howe (1958, HCA) [C.726] [N.61]: self-defence is usually a complete defence, however the (objectively assessed) use of excessive force reduces self-defence to a partial defence.

Palmer (1971, PC) [C.726] [N.61]: rejects excessive self-defence – proportionality is the essence of self-defence. Either the conduct was reasonable or it was not (there is no intermediate position).

Viro (1978, HCA) [C.727-9] [N.61-2]issue: Howe or Palmer; which is the law in Australia?held: per Mason, Jacobs, Murphy & Gibbs JJ (Barwick CJ

dissenting) Howe, i.e. defence of excessive self-defence is

available (partial) defenceratio: Mason J’s 6-point decision tree for jury (greatly

simplified): where there is a threat of death or GBH to D, jury

must decide:(1)whether D (subjectively) reasonably believed, in all

the circumstances, that the threat was real;(2)if jury answers “no” to (1), then self-defence is not

available.(3)was force used by D reasonably proportionate to

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NOTE: old common law [C.726-61]


the danger D believed s/he faced?(4)if jury answers “yes” to (3), then jury should acquit(5)did D believe the force s/he used was reasonably

proportionate to the danger D believed s/he faced?(6)if jury answers “no” to (5), then D is guilty of

murder. If jury answers “yes” to (5), then D is guilty of manslaughter.

dissent: Murphy J: abolish the objective test – “detached reflection cannot be demanded in the presence of an upraised knife”

Zecevic v DPP (Vic) (1987, HCA) [C.729-38] [N.62-4]facts: - D had argument with his neighbour (V)

- V stabbed D & threatened to blow D’s head off- V moved towards his car (in which D believed V kept a gun)- D went into his house, got a gun, came back & shot V dead

issue: - whether D’s belief of reality of the threat of death or GBH has to be a reasonable belief?

held: yes it does. (appeal allowed; re-trial ordered)ratio: question to be asked: “whether the accused believed

upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief & there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal” (per Wilson, Dawson & Toohey JJ; Gaudron J agreeing; Deane J dissenting)

abolished partial defence of excessive force (per Wilson, Dawson & Toohey JJ; Gaudron & Deane JJ dissenting)

dissent: Deane J: partial defence of excessive force was not an issue

before the court & so should not be overruled reformulates Viro without the (confusing) burden of

proof stuff [C.734] the concept of GBH should be expanded to include

“serious bodily abuse”, e.g. sexual abuse & prolonged incarceration

notes: two main differences with Viro. In Zecevic:1. provocation need not be an unlawful attack2. partial defence of excessive force abolished

s 421 re-introduces partial defence of excessive force s 418 jury direction is different from Zecevic

formulation (cf Katarzynski)

Walden (1986, NSWCCA) [C.735] [N.63]held

the threat is not confined to death or GBH. Sexual assault is an example of another “provocative” threat or danger.

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R v PRFN (2000,NSWCCA) [C.738-9] [N.63]facts

- 14y.o. D anally raped by V- D became fearful that V would rape D’s infant nephew- D lured V to his house and shot him 5 times

issue

whether D could have believed on reasonable grounds that it was necessary in self defence to do what he did

ratio

D was not being attacked or anything like it, …the critical element of imminence of a threat was lacking.

held

appeal was dismissed.

note:

re-introduces requirement that threat be imminent. probably not good law anymore (given new self-defence

provisions)

2.5.2.1 a subjective or objective test? Conlon (1993, NSWSC) [C.677,740-5] [N.48,64-6]: test in self-defence (common law Zecevic at this time) is not the reasonable person’s belief, but rather the accused’s reasonable belief (in all the circumstances in which he found himself), i.e. subjective not objective.

Kurtic (1996,NSWSC) [C.743] [N.64]: Hunt J says obiter that Part 11A does not overrule Conlon. So s 428F (reasonable person not intoxicated) doesn’t apply.

2.5.2.2 defence of property[C.745-6] [N.65]Home Invasion (Occupants Protection) Act 1998 (NSW):

similar to Zecevic, but no rulings repealed by Crimes Amendment (Self Defence) Act 2001

(NSW)

2.5.2.3 Battered Woman Syndrome (BWS)Osland (1999, HCA) [C.750-61] [N.66-7]

facts: - mother & son murder V (an abusive husband)- son acquitted of murder- mother convicted

issue: can expert evidence of battered woman syndrome (BWS) be adduced in court? What weight should it be given?

held: expert evidence can be adduced to help jury decide if D was a battered woman

jury must decide 2 things:1. do they believe the expert evidence?2. is D a battered woman?

notes: evidence of BWS not required for provocation, because the ordinary person of the 1st limb is a battered woman (if relevant)

self-defence is a complete defence (so it’s better to get up on this than on provocation, which is a partial defence).

BUT note that s 421 has re-introduced excessive

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force, so jury could decide on partial self-defence for BWS cases occasioning death.

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2.6 Necessity 6.9[C.761-88] [N.69-73]

Dudley & Stephens (1884, UKQB) [C.762-7] [N.70]facts: - 4 men adrift at sea with no hope of rescue

- 2 conspire to kill the youngest & weakest of their number – & they do- 3 eat the 4th before being rescued

ratio: necessity is no defence to murderreasoni

ng: pure policy:o cannot preserve your own life by taking the life of an

innocento “to preserve one’s life is generally speaking a duty,

but it may be the plainest and the highest duty to sacrifice it” (per Lord Coleridge LJ)

courts are suspicious of necessity. Necessity rarely succeeds in court: cf. Lord Denning MR in Southwark v Williams (1971, UK) [C.767] [N.69-70] – floodgates argument

2.6.1 prison escapes [C.767-775] [N.70-1]Loughnan (1981, VSC) [C.769] [N.70-1]

ratio: (i) crime committed to avoid irreparable harm(ii)D honestly believed danger was imminent

(imminence)(iii) crime must not be out of proportion with

the peril (proportionality)

Rogers (1996, NSWCCA) [C. 768-75] [N.71]facts: - D was a prison “dog” (informer)

- D believed his life was in imminent danger & attempted to escape

held: D failed to discharge evidentiary burden – no need to put

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complete defence (not guilty) circumstances induce D to break the law elements: (Rogers)

1. a threat of death or serious injury against D or other/s2. D must honestly & reasonably believe that breaking the

law was necessary to avoid the threatened harm D bears evidentiary burden of raising this defence P must negative defence beyond reasonable doubt not available for murder (Dudley & Stephens) available for strict liability offences (White) available for abortion offences (Wald; K v Minister for YACS;

CES v Superclinics) available at common for all offences (White) except murder

(Dudley & Stephens)


necessity to juryratio: whether D honestly believed on reasonable grounds that

escape from prison was necessary in order to avoid threatened death or serious injury (adapting Zecevic)

notes: following are all now evidentiary considerations:o imminence of the threat;o whether prisoner promptly handed him/herself in;o whether there was another course of action open to

D (e.g. asking for protection)

2.6.2 strict liability [C.775-8] [N.71]White (1987, NSWDC) [C.776-8] [N.71]

facts: - D was caught & booked for speeding by police officer- D did not mention that he was rushing his sick son to hospital

issue: speeding is an offence of absolute liability. Is necessity a defence?

held: yes. conviction quashedratio: “in certain circumstances, a choice made to commit an

offence of strict liability in order to avoid a greater evil … [is] a defence.”

notes: “a defence in search of the perfect circumstances”

2.6.3 political protest [C. 779-81] [N.71]

2.6.4 regulation of abortion [C.781-8] [N.72-3]K v Minister for YACS (1982, NSWSC) [C.781-3]

facts: - 15½ y.o. plaintiff, a ward of the state, wishes to have an abortion- Minister (D), plaintiff’s guardian, has refused

held: minister must give consent for plaintiff to have an abortion

ratio: if miscarriage procured by person who has an honest belief on reasonable grounds that the termination is necessary to preserve the woman involved from serious danger to her life or physical or mental health and that in the circumstances the danger was not out of proportion to the danger intended to be adverted, then the termination is legal (Wald test)

reasonable grounds can stem from social, economic or medical bases.

notes: this is not a criminal case s 82: self-induced miscarriage s 83: miscarriage induced by a 3rd party s 84: supplying drugs or instruments to be used to

affect a miscarriage

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CES v Superclinics (Australia) Pty Ltd (1995, NSWCA) [C.784-8] [N.73]

facts: - CES (plaintiff) suing D for failing to diagnose her pregnancy, thereby preventing her from having an abortion

obiter: when considering woman’s mental health, Ward test should be extended beyond the “currency of the pregnancy” to “after the birth of the child” (per Kirby P)

notes: this is not a criminal case fortunately Superclinics drop their appeal to HCA

because Catholic Bishops Conference get standing.

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2.7 Duress 6.10[C.788-807] [N.73-4]

2.7.1 elements of duress Lawrence (1980, NSWCCA) [C.789-94] [N.73]

facts: - D was navigator on a yacht in which co-accused were importing cannabis- D claimed he was initially unaware of the purpose of the voyage- D claimed he only continued under threats of violence (duress)

ratio: when D commits a crime only because his/her mind has been overborne by threats of death or serious bodily violence (whether towards his/her or another) defence of duress is open objective test (#1): “whether an average person of

ordinary firmness of mind, of a like age & sex, in like circumstances, would have done the acts” that

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complete defence (not guilty) 3rd party induces D to break the law elements: (Hurley; Abusifiah)

o a threat of physical harm to D or other/so circumstances where person of ordinary firmness would

have yielded as D dido threat was present, continuing, imminent & impendingo D reasonably apprehended that threat would be carried

outo the threat induced D to commit the offence

2-stage objective test (Lawrence):o whether average person of ordinary firmness of mind (of

a like age & sex, in like circumstances) would have yielded to the threats of death or serious bodily violence

o whether an average person of ordinary firmness of mind (of a like age & sex, in like circumstances) would have taken an opportunity to reassert their will

D bears evidentiary burden of raising this defence P must negative defence beyond reasonable doubt

(Abusifiah) available to most offences, including:

o manslaughtero to principal in 2nd degree for murder (McConnell)

not available:o for attempted murder (Howe)o to principal in 1st degree for murder (McConnell)

expert evidence of BWS may be adduced (Runjanjic & Kontinnen)


D did if D fails to take advantage of “an opportunity

reasonably open to him” to reassert his/her will, the defence will not be open to D objective test (#2): “whether an average person of

ordinary firmness of mind, of a like age & sex, in like circumstances, including like risks in respect of the alternatives open, would have availed himself of the opportunity” to reassert his/her will

at least one of the objective tests must be negatived by P

Hurley (1967, VSC (FC)) [C.791] [N.73]ratio: when D has been required to do the act for which D is

charged:(i) under threat that death or GBH will be unlawfully

inflicted on a human being; and(ii) circumstances where such that the person of

ordinary firmness would have yielded as D did; and(iii) threat was present, continuing, imminent &

impending; and(iv) D reasonably apprehended that threat would be

carried out; and(v) D was induced thereby to commit the offence

charged; and (vi) D’s crime was not murder (or some other heinous

crime); and(vii) D did not expose himself to the duress; and

(viii) D has no means of preventing the threat;then duress is open to D as a defence

notes this is the classic jury direction for duress (vi) murder – see McConnell below, which supersedes

this step

2.7.2 the objective test: the person of “ordinary firmness of mind” Abusafiah (1991, NSWCCA) [C.795-801] [N.73]

issue: is it would, might, or could for the objective test?ratio: test: whether person of ordinary firmness of mind &

will (with the same age & gender) would have yielded to the threat in the way D did.

“person of ordinary firmness of mind” is a broader concept than the average person & includes a greater range of differing temperaments.

jury direction:(1)P must prove that D acted voluntarily (i.e. not under

duress);(2)D does not have to establish that D did act under

duress(3)P must eliminate the reasonable possibility that D

acted under duress

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(4)P must establish either:there is no reasonable possibility that, when D committed the offence, D was acting under a threat of death or serious physical harm if D did not so act; or

(5)there is no reasonable possibility that a person of ordinary firmness of mind and will, and of the same sex & maturity as D, would have yielded to that threat in the way in which D did

(6)if P has established either (1), (4) or (5) then duress is negatived

(7)if P fails to establish any one of (1), (4) or (5) then D is innocent because duress is a complete defence

Warren, Coombes & Tucker (1996, SACCA) [C.801-3] [N.74]facts: - V broke customary indigenous law

- Ds claimed it was customary to punish the wrongdoer, else the punishment would be meted on Ds (for not performing the punishment)

held: appeals against conviction & sentence dismissednotes: court misunderstood the Ds’ defence. Court thought

that Ds were asking to be tried by customary law. In fact they were raising the defence of duress.

2.7.3 duress & murder McConnell (1977, NSWCCA) [C.803-4][N.74]: duress is not available to principal in 1st degree to murder, but is available to principal in 2nd degree (i.e. accessory).

Howe (1987, HL) [C.804]: obiter – duress not available for attempted murder (adopted in Gotts (1992, HL) [C.804[)

2.7.4 duress & battered woman syndromeRunjanjic & Kontinnen (1991, SACCA) [C.805-7] [N.74]

facts: - Ds were subjected to violence by the same man (Hill)- Hill forced Ds to commit an offence

issue: can expert evidence of BWS be adduced for duress?held: yes – just like provocation. Appeal allowed; new trial

ordered.reasoni

ng: duress has two-part test:

1.subjective test: was will of D actually overborne?2.objective test: would will of person of reasonable

firmness in his situation would have been overborne?

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3. AssaultABH=actual bodily harm; GBH=grievous bodily harm

3.1 Introduction 7.1[C.808-10] [N.75]

originally there was “assault” (threat of violence) & “battery” (application of violence). Today there is only assault.

assault divided into two categories: common assault (s 61) aggravated assault (common assault plus additional or

aggravating factors)

3.2 Common Assault[C.810-22] [N.75-9]

Even though, officially, the historically separate offences of “assault” & “battery” have been subsumed into the one statutory offence of “common assault”, the two types of assault still exist in the legal tests. o “assault” refers to the creation of an apprehension of

unlawful contacto “battery” refers to actual unlawful contact

3.2.1 assault

3.2.1.1 actus reus an act (but not an omission) creating apprehension in the

mind of V that unlawful contact is imminent must be a positive act

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common assault (s 61: not occasioning ABH)1. actus reus

a. assault (apprehension of unlawful contact) an act (but not an omission) creating

apprehension in the mind of V that unlawful contact is imminent

b. battery (unlawful contact) an act (but not omission) of unlawful contact

upon another person without his consent2. mens rea

a. assault (apprehension of unlawful contact) intent or recklessness (to create apprehension

etc)b. battery (unlawful contact)

intent or recklessness (to effect unlawful contact etc)

3. co-incidencea. mens rea and actus reus must coincide.


o silent phone calls (Ireland & Burstow) note: s 562 deals with stalkers who make silent

phone callso words alone (Barton v Armstrong)o conditional threats (Rosza v Samuels [U.94] [N.77])o spitting (DPP v JWH)o cf. [C.82] (last page) for moreo an omission (Fagan)

state of mind of the victimo V must actually have been put in fear of imminent

unlawful contact (Barton; MacPherson)o objective test: a reasonable person would have held

such a fear (Barton [C.812]) imminence

o V must apprehend ‘imminent’ or ‘immediate’ unlawful violence (Zanker)

o threat of future violence is insufficient (Knight)o but a continuing threat of imminent future violence is

sufficient if “there was no escape, no reasonable possibility of a novus actus interveniens to break the causal link between the threat and the expected infliction of harm” (Zanker)

note: causation issue (just like in Royall, cf 1.5.2 above) D can be charged with assault occasioning ABH if V is injured affecting an escape. (e.g. Zanker: jumping from car)

3.2.1.2 mens rea intent or recklessness to create an apprehension of imminent

unlawful contact (MacPherson) full subjective mens rea: intent, knowledge or foresight

(MacPherson) recklessness = subjective foresight to probability of creating

an apprehension of imminent unlawful contact

3.2.2 battery

3.2.2.1 actus reus an act (but not omission) of unlawful force to another person

without his consent actual intended use of unlawful force to another person

without his consent (Fagan) must be a positive act: omission is not assault (Fagan) mere touching can amount to assault (Collins v Wilcock

[U.96]) “unless the touching arises from the exigencies of everyday life” (Fitzgerald v Kennard [C.898])

consent: o P must prove that V did not consento consent may be vitiated in certain situations:

consent obtained by force or threat of force consent is no defence to some sexual offences fraud may sometimes negative consent

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cannot consent to ABH (Brown) 1

o following assume an implied consent: patting another on their shoulder to attract

attention (Boughey) pushing between others to alight from a

crowded bus (Boughey)

3.2.2.2 mens rea intent or recklessness to effect an unlawful contact

(MacPherson) full subjective mens rea: intent, knowledge or foresight

(MacPherson) recklessness = subjective foresight to probability of effecting

an unlawful contact hostility is not a necessary general element of unlawful

battery (Boughey [C.843])

3.2.3 coincidence of actus reus & mens rea at some point during the assault there must be a co-

incidence of actus reus and mens rea. (Fagan) it is not necessary that mens rea should be present from the

start of the actus reus. (Fagan) continuing series of acts: Thabo Meli [C.359] [N.77]

3.2.4 case lawZanker v Vartzokas (1988, SASC) [C.811] [N.76-7]

facts: - V accepted a lift from D- D offered V $ for sex. V declined.- V demanded D stop the van & let her out- D accelerated and said he was going to take her to his mate’s house to “fix her up”- circumstances put V in such fear that she opened the door and leapt out onto the road side, suffering bodily injuries- V appealing dismissal of charge of assault occasioning ABH in Local Court

ratio: V must apprehend ‘imminent’ or ‘immediate’ unlawful violence

a continuing threat of imminent future violence is sufficient if “there was no escape, no reasonable possibility of a novus actus interveniens to break the causal link between the threat and the expected infliction of harm”

held appeal allowed

MacPherson v Brown (1975, SASC (FC)) [C.821] [N.78]facts: - D (student) was convicted of having assaulted a

lecturer at uni.-a number of students, including D, had taken over the

1 for more examples (& exceptions) see section on “consent to harm” below & [U.96-7]

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admin bldg in protests over the alleged CIA links of a recently appointed senior administrator.- V (lecturer) was surrounded by a number of students who prevented him from passing thru the group and caused him to fear for his personal safety.- no actual physical contact was made and he was eventually allowed to pass. - Magistrate said D had been reckless and ought to have known that his conduct would have given reasonable grounds for apprehending an infliction of physical force. - D appealed.

ratio: V must actually have been put in fear of imminent unlawful contact (actus reus)

assault can be committed recklessly (mens rea)held appeal dismissed

Fagan v Commissioner of Metropolitan Police (1969,UKQB) [C.818] [N.77-9]

facts: - D reversed & parked his car onto policeman’s foot- V asked him to move it.- D said “fuck you, you can wait” before moving his car

issue D had not initially intended to use force. Was this assault?

ratio: “an assault is any act which intentionally – or possibly recklessly – causes another person to apprehend immediate and unlawful personal violence. …the actual intended use of unlawful force to another person without his consent”

co-incidence of actus reus & mens rea required mere omission cannot be an assault

held appeal dismissed

3.3 Aggravated Assault 7.3[C.822-31] [N.79-81]

3.3.1 with further specific intentP must prove further specific intentExamples:

s description27-29 assault with intent to commit murder33-33B

assault with intent to do GBH or resist lawful arrest

37-38 assault with intent to commit an indictable offence

3.3.2 causing particular injuries3 basic categories:

ABH: “any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury

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need not be permanent but must, no doubt, be more than merely transient and trifling” Donovan (1934)o physical injuryo psychiatric injury: Chan Fook(1994,UKCA); Lardner

(1998,NSWCCA)o s 59: occasioning ABH

GBH: “any permanent or serious disfiguring of the person” (s 4)o s 35: inflicting GBH or woundingo s 54: causing GBH

wounding: breaking or cutting of the interior layer of skin, not just the outer layer (Vallance [U.102])o s 35: inflicting GBH or wounding

notes: s 35 requires an intent to cause some physical injury not an

intent to inflict GBH (R v Stokes & Gifford (1990,NSW) [C.824] [N.80] Jamie Partlic case)

malicious just means “with the necessary mens rea” [C.379] [N.80]

s 54: includes negligent infliction of GBH s 36: causing a grievous bodily disease [N.80]

3.3.3 on victims of special statuss offence

42 children at birth43 exposing or abandoning a child (<2yo)44 assauling wives, children56 priests57 people helping ships in distress58 assault of police officer (cf Reynhoudt below)60 assaulting, stalking, intimidating a police officer

206 aircraft crew326 witness, jurors, judges, “public justice officials” (not police

all the time) [N.80]

Reynhoudt (1962, HCA) [C.827] [N.81]facts charged with inter alia assaulting a police officer in the

execution of his dutyissu

edoes P have to prove V was a police officer?

ratio P only has to prove that the person assaulted by D was a police officer acting in the execution of his duty.

held Menzies, Taylor and Owen JJ (majority) - “knowingly” is not to be inferred from the statute- no mental element beyond the words had to be establishedVic Cof A decision reversed- conviction re-instated

notes

- establishing that D was a police officer is an element of the actus reus, not the mens rea- effectively decided that the offence was one of strict

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liability, not absolute liability. This means that (per He Kaw Teh) P must prove BRD absence of HRMF. - if this came before HCA again, it is likely that (per He Kaw Teh) proof of knowledge or recklessness would be required if “victim is a police officer” is an actus reus element, then there must be an associated mens rea element.

3.3.4 using offensive weapons or dangerous substances[C.830]

guns, knives, screwdrivers, baseball bats, etc; explosives, chloroform, etc s 35A: maliciously causing a dog to inflict GBH or ABH

3.3.5 in combination with other offencesss 94-98: robbery=assault + larcenyss 89-90A: kidnapping=assault + false imprisonment

3.3.6 with a sexual componentss 61I-61J: sexual assault & aggravated sexual assault

3.4 Consent to Harm 7.4[C.831-45] [N.81]

At common law consent is not a defence to assault occasioning ABH (Pallante Stadiums; Brown) [U.96]

Brown (1993,UKHL) [C.831] [N.81] [U.96-7]facts - 5 appellants charged with offences including assault

occasioning ABH - all were part of group who engaged in “consensual, sado-masochistic, homosexual activities”- no complaints in past (police found videotapes of activities during a search)

issue whether the defence of consent should extend to consequences of sadomasochistic encounters?

ratio the defence of consent does not extend to consequence of sadomasochistic encounters

held majority approached the question in terms of violence inflicted and issues of public policy including health issues relating to the use of bodily fluid. appeals dismissed

dissent Lord Mustill, in minority, saw the case in terms of private sexual relations

reasoning

lawfully recognised exceptions, inter alia:o surgeryo boxingo ‘contact’ sportso lawful correction (hitting children)o manly pastimes

note three appealed to European Court of Human Rights- unsuccessful.

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in Aust. this would probably not get up due to Human Rights (Sexual Conduct) Act 1994 (Cth) [U.97] [C.95]

R v Wilson (1997,UK) [C.843]facts husband brands wife’s buttocks with a hot knife (i.e. ABH)held ok – “consensual activity between husband & wife in the

privacy of the matrimonial home…”note this appears to be an exception to Brown because this is

ABH, but it’s ok ????

R v Aitken (1992,UK) [C.843]facts - airforce officers throw petrol over each other & light

matches – to test their fire-proof suits.-one get severely burnt

held ok – “consensual act of horseplay”note pre-Brown

R v Emmet (1999,UKCA) [C.843]facts - engaged couple indulge in consensual S&M (plastic bag

over hear & burning nipples)held assault – “well beyond the line” which consent becomes

immaterialnote pre-Brown

3.5 Acceptable Violence 7.5[C.845-9] [N.83]

chastisement of children violence in sport

3.6 Patterns of Victimisation 7.6[C.849-57] [N.84]

3 types in Australia:1. male-to-male confrontation2. domestic violence3. indigenous communities

alcohol is the biggest contributor to violence 4 structural factors:

1. gender2. age3. socio-economic status4. aboriginality

3.7 Domestic Violence & Legal Change 7.7[C.857-69] [N.85-7]

ADVOs & APVOs [N.86] [C.859-63] stalking & intimidation (s 562AB) [N.87] [C.868-9]

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4. Sexual Assault

4.1 Introduction 7.8[C.870-9] [N.88-91,102]

social context [N.88] law reform [N.89] current offences:

offence basic

aggravated

description

sexual assault

61I 61J sexual intercourse without consent

indecent assault

61L 61M touching

act of indecency

61N 61O no touching (e.g. flashing)

“circumstances of aggravation”:factor s

61Js

61Ms

61Oinflict ABH a

threaten to inflict ABH with weapon

b

in company c a aV <16yo d b

V under authority of D e c bV has a serious physical

disabilityf d c

V has a serious intellectual disability

g e d

s 61JA (Oct 2001): aggravated sexual assault in companyo separate substantive offence (not just an aggravating

factor)o max penalty: life imprisonment

4.2 The Mental Element 7.9[C.879-87] [N.92-4,96]

4.2.1 subjective knowledge of lack of consentDPP v Morgan (1976,UKHL) [C.424-431] [N.92]

facts: - airman invites 3 friends home to have sex with his

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full subjective knowledge of lack of consent (ss 61I & 61J; DPP v Morgan); or

recklessness, either ignoring or failing to advert (i.e. not considering) to possibility of lack of consent of V (s 61R(1); Kitchener)


wife- tells them that V is ‘kinky’ & so might struggle at first- V does not consent- D (one of the mates) claims he honestly believed V was consenting

issue: if D honestly believed V was consenting, is D guilty of rape?

ratio: the test is purely subjective knowledge of lack of consent. D is not guilty if D honestly but mistakenly believed V was consenting – even if a reasonable person would not have made the same mistake.

held: appeal dismissed (At trial, the jury didn’t believe D when he said “I thought she was consenting”, so D was convicted)

legislation:

Crimes Act follows Morgan:ss 61I & 61J: requires that D “knows that the other person does not consent” (i.e. knowledge of lack of consent)

4.2.2 recklessnessHemsley (1988, NSWCCA) [C.885] [N.93]

facts: - 16 y.o. V goes for a ride with a bikie (D)- D sexually assaults V- D claims V consented & that V is now lying

issue: does Crabbe recklessness (advertence to probable consequences) apply to sexual assault?

held: noratio: for recklessness to be proved, the P must prove BRD

that :(a) D was aware that V was not consenting; OR(b) D realised V might not be consenting;ANDdetermined to have intercourse with V whether V was consenting or not

note: this is a different standard from Crabbe recklessness in which probability is required, not possibility.

Kitchener (1993, NSWCCA) [C.885-887] [N.94]facts: - 16 y.o. V goes for a ride with a bikie (D)

- D sexually assaults V- D claims V consented & that V is now lying

issue: does a failure to advert (consider) to the possibility that V might not be consenting amount to recklessness?

ratio: for recklessness to be proved, the P must prove BRD that either:(a) D considered possibility of lack of consent but ignored it;OR

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(b) D failed to advert to possibility that V was not consenting.

held: appeal dismissednote: this is a different standard from Crabbe

recklessness in which probability is required, not possibility.

legislation:

recklessness = presumed consents 61R(1): being reckless as to whether V consents (i.e. not considering whether V consents)presumed knowledge of lack of consentguilty

4.3 Actus Reus Issues 7.10[C.888-97] [N.94-5,97-8]

4.3.1 definition of sexual intercourses 61H(1)- definition of sexual intercourse(a) sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or anus of any person by: (i) any part of the body of another person; or (ii) any object manipulated by another person, except where…carried out for proper medical purposes; or(b) sexual connection occasioned by the introduction of any part of the penis into the mouth of another person; or(c) cunnilingus; or(d) continuation of sexual intercourse as described in (a), (b) or (c) above.

4.3.2 consents 61R(2): consent is vitiated (invalidated) when:(a)(i) V under mistaken belief as to identity of D; or (ii) V under mistaken belief that V is married to D;(a1) V under mistaken belief that intercourse is for medical or hygienic purposes;(b) if D knows that V consents under mistaken belief referred to in (a) & (a1), then D is taken to know that V does not consent;(c) V only consents as a result of threats or terror against V or another person;(d) lack of actual physical resistance does not prima facie equate to consent

4.3.3 consent induced by forceClarke (1998,NSWCCA) [C.889] [N.95]

facts: - prison rape- D tells V that others ‘wanted’ him (threat emanating from others)

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7.10.1 sexual assault: actus reus sexual intercourse: s 61H(1) absence of consent: ss 61I & 61J factors vitiating consent: s 61R(2) consent may be “hesitant, reluctant, grudging” but still be

consent (Holman)


- D said he would protect V if he had sexual intercourse with D- D pushed V onto bed and had sexual intercourse with V

issue: did trial judge err by not using the Holman direction: consent may be “hesitant, reluctant, grudging” but still be consent?

obiter: per Simpson J (other JJs silent on this point): consent has to be “freely and voluntarily given”NOTE: this is not the law in NSW – Holman still stands

held: conviction quashed (on other grounds)note: R v Olugboja (1982,UKCA) [C.890]:

there is a difference between consent & submission

apparent acquiescence consentlegislatio

n:s 61R(2): consent is vitiated (invalidated) when:…(c) V only consents as a result of threats or terror against V or another person;(d) lack of actual physical resistance does not equate to consent

4.3.4 consent induced by fraud & mistakeArticle/Author:

GD Woods, Sexual Assault Law Reform in NSW [C.891-2] [N.95]There are three kinds of mistake:

1. mistake as to the nature of the sexual act: e.g. in Mobilio (1991,VCCA) [C.892] a radiographer inserted a transducer into vagina of V for his own sexual gratification. VCCA held that D’s motives are irrelevant. V consented to the nature & character of the act. NOTE: overturned by s 61R(2)(a1) in NSW.

2. mistake as to the identity of the other party: e.g. Gallienne (1963,?) [C.891] V asleep, D climbed into her bed, V mistakenly thought D was her husband & they had sex. Held: consent vitiated - this was a mistake of a very basic type, the physical identity of D. NOTE: codified in s 61R(2)(a)(i)

3. mistake as to some quality or character of the other party: e.g. in Papdimitropoulos (1957,HCA) [C.892] D tricked V into thinking they were married. HCA held that subsequent sexual intercourse was consensual. NOTE: overturned by s 61R(2)(a)(ii) in NSW.

Legislation: s 61R(2): consent is vitiated (invalidated) when:(a)(i) V under mistaken belief as to identity of D; or (ii) V under mistaken belief that V is married to

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D;(a1) V under mistaken belief that intercourse is for medical or hygienic purposes

s 65A: sexual intercourse procured by intimidation, coercion & other non-violent threats

4.3.5 feminist perspectiveArticle/Author:

Jann Matlock, Scandals of Naming (1993) [C.894]

“How do we exchange a system where a woman’s word is distrusted simply because she’s female without substituting a system where her word is believed simply because she is female?”

Article/Author:

Carol Smart, Feminism and the Power of the Law (1989) [C.894]

binary discourse of rape (truth/untruth, guilt/innocence, consent/non-consent) is inappropriate to describe the ‘ambiguous’ nature of rape.

consent/non-consent binary is inconsistent with women’s complex experiences of sexual intercourse.

a woman might agree to intimacy, but not sexual intercourse: a distinction the law does not make.

submission is legally consent: but a woman might submit in order to stop violence, or to keep her job

Article/Author:

Catharine MacKinnon, Feminism, Marxism, Method & the State (1983), [C.895]

from a woman’s point of view rape is not prohibited, but rather it is regulated

rape is an act of subordination of women to men

for a woman, rape is an injury; for a man, rape is a crime

rape law assumes that a single, objective state of affairs existed at the time of the rape. But whose objective standard is used? – men’s. Whose standards of reasonableness is used? – men’s.

Article/Author:

J Vega, Coercion & Consent (1988) [C.896-7]

feminism offers two views of female sexuality: ruled by force (coercion); or ruled by freedom of choice (consent).

of absolutism in feminism: presents women as victims, also suggests that all men are violent & all women are non-violent

the two views are incompatible & debate

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between the two camps leads to paralysis within feminist thought

relationship between men & women is a social construct which can be re-structured (i.e. it is not fixed in time)

ultimately, consent is a social fact constructed by society

4.4 Indecent Assault 7.11[C.897-900] [N.98]

Fitzgerald v Kennard (1995,NSWCA) [C.898-900] [N.98]facts: - D was a visiting electrician who rubbed V’s legs &

tried to touch her breasts- charged with indecent assault (s 61L)- at trial, when asked if he had considered at the time whether V actually wanted him to touch her he replied: “It didn’t enter my mind”.

issue: - whether it is an element of indecent assault that D puts V “in fear of immediate and unlawful danger”?- do the assault & the indecent act need to be established separately?- does Kitchener non-advertent recklessness apply to s 61L?

ratio: - it is not necessary that D puts V “in fear of immediate & unlawful danger” – not an element of indecent assault- the act of assault may itself constitute the act of indecency, so both elements need not be proved separately- Kitchener non-advertence applies to indecent assault: i.e. failure to advert to the possibility of consent constitutes recklessness (i.e. prosecution only has to prove non-advertence)

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7.11.1 indecent assaultAR:

(i) act of assault and (ii) act of indecency (s 61L; DPP v Rogers)

the one act can constitute both the assault & the indecent act (Fitzgerald v Kennard)

the assault must have a sexual connotation (R v Harkin) indecent means contrary to moral standards of respectable

people (R v Harkin)MR:

intent (to commit both assault & indecent act) (Fitzgerald v Kennard)

recklessness, including Kitchener non-advertence (Fitzgerald v Kennard)


- physical contact without consent is assault, unless the contact arises “from the exigencies of everyday life”

held: - guilty of indecent assault- the placing of hand on V’s leg was the assault & the moving hand towards V’s bottom was the act of indecency, but it is more accurate to say that the act of assault also constituted the act of indecency.

legislation:

s 61L: it is an offence if “any person…assaults another person &, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person”

R v Harkin (1989,NSWCCA) [C.900] [N.98]Ratio

:- “…the assault must have a sexual connotation. …the genitals & anus of both male & female & the breasts of the female [of either V or D] are the relevant areas”- indecency means “contrary to the ordinary standards of morality of respectable people within the community”- the jury must decide whether an act is indecent or not

4.5 Act of Indecency 7.11[C.900-2] [N.99]

Chonka (2000,NSWCCA) [C.901] [N.99]facts: - D incited several children over the telephone to

masturbate & to perform sexual acts with family members- charged with 9 counts of with & 2 counts of towards

ratio: - “act of indecency with” requires 2 participants in the indecent act- “act of indecency towards” requires a person acting indecently towards the non-participant

notes: s 61N was enacted to cater for ‘gaps’ in indecent assault:

Fairclough v Whipp (1951,UKCCA) [C.900] held

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7.11.2 act of indecencyAR:

act of indecency “with or towards” another person (s 61N)MR:

intent or recklessness (?)


that invitation to girl to touch D’s penis was not an indecent assault because V touched D not vice versa

DPP v Rogers (1953,UK) [C.900] held that D’s invitation to 11y.o. daughter to masturbate him was not indecent assault because D did not touch V

legislation:

s 61N: anyone who commits or incites “an act of indecency with or towards a person”

Crampton v The Queen (2000,HCA) [C.901] [N.99]facts

:- schoolteacher (D) masturbated in front of Year 6 male student- charged with act of indecency with

held: - charge cannot be sustained because V did not participate

4.6 Homosexual Offences 7.12[C.902-4] [N.99]Chard v Wallis (1988,NSWSC) [C.903]

Ratio: defence of HRMF as to age available for acts of gross indecency (s 78Q)

Note: age of consent is 18 years (s 78H) duplicates s 66 offences

legislation:

s 78G: definition of homosexual intercourses 78H: with male under 10s 78H: with male between 10 & 18s 78K: by teacher, father or step-fathers 78Q: acts of gross indecency

4.7 Prosecution of Sexual Assault 7.13[C.904-6] [N.99-100]

in 1996 in NSW:

- 2/3rds of reports of s.a. did not lead to charges- only 10% of reported assaults resulted in conviction

NSW higher courts in 1999:

20% of NG pleas convicted of s 61I (sexual assault)26% of NG pleas convicted of s 61J (aggravated s.a.)30% of NG pleas convicted of s 66C (child between 10&16)

NSW Local Court in 1999:

42% of NG pleas convicted of s 61L (indecent assault)31% of NG pleas convicted of s 61M (aggravated i.a.)37% of NG pleas convicted of s 66C (child between 10&16)

Local Court comparison:

64.2% overall conviction rate (guilty & not guilty pleas) for s 61L (indecent assault); compared to

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95.9% overall conviction for all offences

4.8 Proving non-consent 7.14[C.907-25] [N.100-4]

4.8.1 delay in complaintDavies (1985,NSW) [C.908] [N.100]

ratio: as well as s 405B direction, trial judge “should as a general rule…continue to direct the jury that the absence of a complaint or a delay in making one may be taken into account…[when] evaluating the evidence of the complainant and in determining whether to believe her”.

notes: formerly Crimes Act 1900 (NSW) s 405B Davies direction confirmed by majority in Crofts v R

(1996,HCA) [C.908]: fair balance of “good reasons for delay” direction and assessment of V’s credibility re:delay

legislation:

Criminal Procedure Act 1986 (NSW) s 107if suggestion is made during trial that V delayed in bringing complaint, then judge must: warn jury that delay does not mean that allegation

is false (s 107(2)(a)) inform jury that there are good reasons why V

might hesitate in making complaint (s 107(2)(b))

4.8.2 abolition of requirement for a corroboration warning to juryLongman (1989,HCA) [C.909] [N.100]

ratio: despite statutory removal of common law need for corroboration warning, trial judge still required to give warning when there is a risk of a miscarriage of justice.

there is no set formula of words to be used in a warning

legislation:

Evidence Act 1986 (NSW) s 164(1): evidence need not be corroborateds 164(3): trial judge need not warn jury that it is dangerous to act on uncorroborated evidences 165: trial judge, if requested, must give warning that some evidence (e.g. hearsay, admissions) might be unreliable

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Crampton v The Queen (2000,HCA) [C.910] [N.100]ratio

:Longman warning must be delivered with appropriate emphasis & be adapted to circumstances of the case

Article/Author:

S Edwards, Female Sexuality & the Law (1987), [C.911-3] in the early 20th century accusations of rape

were presumed to be false (esp. against dentists & doctors)

in 1911 Prof. Gross, prof. of criminal law, wrote in his textbook that “women are hysterics and liars”

in 1940 Wigmore’s book on evidence claimed that ‘unchaste mentality’ of some women fabricated sexual fantasies in which they were the victims

in 1955 Prof. Williams wrote that women made up false allegations for many reasons, incl. fantasy, jealousy & spite

in 1973 Gee: sit V on least comfortable chair; if she doesn’t fidget, then her allegation is not genuine.

4.8.3 communications privilegelegislatio

n:Criminal Procedure Act 1986 (NSW) [C.915] [N.103]s 149: absolute privilege at bail & committal proceedings for records of V’s counselling treatments 150: court may set aside the privilege at trial

4.8.4 admissibility of evidence of sexual experience & reputation“the rape shield” [C.916] [N.103]

notes: rationale: sexual experience & reputation are irrelevant considerations. On balance, distress caused to V outweighs probative value of evidence. [C.917-8]

formerly Crimes Act 1900 (NSW) s 409B s 409B has been criticised because “if gags the

accused and it gags the accused’s counsel” [C.922] Kumar & Magner [C.919-22] argue for s 409B cf next table (“the stay development”) for more

criticismlegislatio

n:Criminal Procedure Act 1986 (NSW) [C.916-7]s 105(2): rape shield – evidence relating to sexual reputation of V is absolutely inadmissible (no exceptions)s 105(3): evidence that discloses or implies sexual experience (or lack thereof) of V is inadmissible (exceptions apply)s105(4): evidence of sexual in/experience admissible

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when: (a) at or about time of commission of alleged

offence (b) existing or recent relationship at time of

offence (c)-(e) presence of disease, pregnancy, semen or

injury (f) if V gives such evidence in cross-examination,

pursuant to sub-s (6), and probative value outweighs distress, humiliation or embarrassment of V

s 105(6): if court satisfied that prosecution disclosed or implied sexual in/experience of V and D might be unfairly prejudiced if cannot cross-examine V, then V can be cross-examined under conditions set out in sub-s (4)(f)s 105(7): during trial all questions of admissibility under sub-ss (2), (3) & (6) are to be heard in the absence of the jury

4.8.5 the stay developmentR v PJE (1995,NSWCCA) [C.923] [N.104]

facts: - application to stay a series of child sexual assault trials in District Court were successful on basis of Dietrich argument: Criminal Procedure Act 1986 (NSW) s 105 could lead to an unfair trial- P appealing to CCA

issue: can courts stay on these grounds?held: No – stay of indictment vacated

reasoning:

court must apply the statutory law whether they agree with it or not (supremacy of Parliament argument)

note: HCA refused special leave to appeal, but Brennan CJ noted that s 409B “clearly warranted further consideration by the legislature” (p.923)

in response NSWLRC recommended repeal of s 409B & replacement with provisions returning discretion to trial judge. Recommendation has not been implemented.

in UK: similar provision to s 409B in Canada: similar provision struck down for human

rights breach of fair trial (Seaboyer)

4.9 Child Abuse & Sexual Assault 7.15[C.925-41] [N.105-6]

incidence & discovery [C.925] NSW legislative reforms of 1985 [C.927-9] [N.105] current offences

s offence66A sex with child <10yo

66C(1) sex with child between 10-16

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66C(2) sex with child between 10-16 & V under authority of D

77(2) consent no defence in some cases68EA persistent sexual abuse of a child (3+offences)

73 carnal knowledge with a teacher78A incest78H-78N

homosexual offences (78H,78J,78K,78N)

66F sex with intellectually disabled578B possession of child porn578C publishing child porn50BA sex with child <16 whilst overseas

no defence of similarity of age [C.933] Summary Offences Act 1998 (NSW) s 11G: loitering near a

school Pre-trial Diversion of Offenders Act 1985 (NSW): to prevent

recidivism Evidence Act s 13: “a person incapable of understanding”

can’t give evidence early detection & protection of children [C.939-41] [N.106]

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5. Dishonest Acquisition[U.117-40]

5.1 Introduction 10 1[C.1153-4]

5.2 Larceny 10.2[C.1154-97] [N.107-17,120-3]

5.3 Other NSW Offences 10.3[C.1197-1215] [N.117,124]pp 1180-1214.

5.4 Technology & White Collar Crime 10.7.4[C.1240-9] [N.125-6]

5.5 Robbery, Burglary & Blackmail 10.8[C.1249-53] [N.126]

5.6 Receiving, Proceeds of Crime 10.9[C.1253-9] [N.127]

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6. Extending Criminal Liability

6.1 Introduction 11.1[C.1260] [N.129]

attempt & incitement

extend liability along time dimension – to a time before commission

complicity extends liability along group dimension – to more than one person

conspiracy extends liability along group & time dimension – 2 or more people before commission

6.2 Attempt 11.2[C.1260-78] [N.130-2]

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TIME (past)GROUP

attempt conspiracy complicity


6.2.1 introduction P must prove BRD that: (Britten v Alpogut per Murphy J

[C.1276])1. D had at all material times the mens rea to commit

substantive offence; and2. D did an act or acts (or omissions) that are sufficiently

proximate to the commission of the offence, and are not merely preparatory to it.

unsuccessful attempts to commit a crime two types – failure to complete all elements of actus reus due

to:1. interruption, prevention, change of heart2. incompetence or impossibility

doctrine of merger: cannot be charged with attempt & commission of the same crime

attempt is a common law offence s 344A: penalty for attempt is same as commission of

offenceo except attempted murder (ss 27-30) – 25 yrs, not life

debate about attempt/completed offence distinctiono Gibbs Report says abolish attempt & charge attempt as

commissiono MCC says keep attempt separate

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P must prove BRD that: (Britten v Alpogut)1. D had at all material times the mens rea to commit

substantive offence; and2. D did an act or acts (or omissions) that are sufficiently

proximate to the actus reus of the offence, and not merely preparatory to it.

mens rea intent to commit the substantive offence (BoP: P, BRD)

o recklessness is not enough (Knight; Giorgianni) – even when recklessness is sufficient mens rea for the substantive offence itself

D must intend to commit the specific harm associated with the (completed) offence (Knight: intent to inflict GBH insufficient for charge of attempted murder)

actus reus acts (or omissions) must be: (Collingridge; Britten)

o be sufficiently proximate (i.e. close to)o go beyond not mere preparation

failure to complete substantive offence because of interruption (either voluntary or external) does not negate actus reus of the attempt (Page)

the factual impossibility of the attempt does not negate actus reus (Mai & Tran)


6.2.2 mens rea[C.1262-4] [N.130]

intent to commit the substantive offence is required recklessness is not enough (Knight; Giorgianni) – even where

recklessness is sufficient mens rea for the substantive offence itself

P must prove BRD that (at all material times) D had intent to commit the substantive offence (Britten v Alpogut per Murphy J [C.1276])

D must intend to commit the specific harm associated with the (completed) offence (Knight: intent to inflict GBH insufficient for charge of attempted murder)

Knight (1992,HCA) [C.1262] [N.130]facts: - D fired two shots at V (2nd shot hit)

- D convicted of attempted murderissue: can D be charged with attempted murder if he didn’t

have intent to murder at the time to fired the gun?held: no – attempted murder requires intention to commit

the complete offencenote: intent to cause GBH might be sufficient mens rea for

murder, but it is insufficient mens rea for attempted murder

6.2.3 actus reus closest thing we’ve got to an actus reus is: (Britten v Alpogut

per Murphy J [C.1276])o D did an act or acts (or omissions) that are sufficiently

proximate to the commission of the offence, and are not merely preparatory to it.

several tests are available:o last act test: attempt satisfied only when the ‘last act

before completion’ has been performed (Eagleton)o series of acts test: would offence have been completed

if series of acts had not been interrupted? (Haughton v Smith)

o unequivocal test: does conduct unequivocally indicate an intention to commit the offence? (Barker)

o proximity test: (Eagleton) 3 dimensions constitute attempt1. temporal – how much time remains before

completion?2. physical – how near is D to physical location of

offence?3. task-related – how many more tasks left to do before

completion? these tests should be used as guidelines only, ultimately it is

the facts of each individual case that will decide whether

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attempt has been committed or not (Stonehouse (1977,UKHL) [C.165])

note: textbook prefers the proximity test [C.1264] failure to complete the actual substantive offence because of

an interruption (whether voluntary or some other cause) will not negate the actus reus of attempto voluntary desistance (changing your mind) at the last

minute is no defence (Page)

Page (1933,VSC (FC)) [C.1267] [N.131]facts: - D about to break & enter to steal some cigarettes

- D thinks of his dear old Mum & desists- police arrest D & accomplice only metres away

issue: if D voluntarily desists at the last minute is he still guilty of attempt?

held: yes – attempt can be committed despite an interruption that foils the commission of the substantive offence

note: voluntary desistance is no defence to attempt once D has crossed the ill-defined line from preparation into the realm of perpetration.

Page’s problem is that he was probably at the stage of the ‘last act’ test, i.e. he changed his mind at the very last minute

still very harsh. Who was hurt? Was this a 1st time offence? This was the Depression. Judges would be representatives of the status quo.

6.2.4 impossibility intent is the central concept here. The fact that the actual

offence was factually (in the circumstances) impossible is irrelevant. D intended to commit the offence & if circumstances & facts had been different he would have succeeded.

test: if the facts were as D believed them, would D have actually committed the intended crime? (Britten per Murphy J [C.1276])

Mai & Tran (1992,NSWCCA) [C.1273] [N.132]facts - D caught with blocks that contained no heroin

(substituted by police)- D charged with attempted possession of prohibited import

issue how can you be convicted of attempt when commission of substantive offence was factually/physically impossible?

held guilty – intent to commit offence is sufficientratio adopting Britten v Alpogut:

in circumstances where it is in fact physically impossible for D to commit a particular crime, an attempt to commit that crime will succeed if P proves BRD:

(a)D intended to do the acts with the relevant mens

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rea(b)D performed some act going beyond mere

preparationnote police entrapment (cf “conspiracy & impossibility”

below)

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6.3 Conspiracy 11.3[C.1278-1323] [N.134-39]

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actus reus agreement to do an unlawful act (or a lawful act by unlawful

means) (Mulcahy)o P must prove existence of an agreement

P must prove the scope of such an agreement before existence of the agreement can be established:

several small conspiracies (Gerakiteys) one big conspiracy (Meyrick)

o P must prove that that agreement is genuine D not liable for sham agreement, where there is

only one sincere party & one pretend co-conspirator (O’Brien), unless pretend guy is a police officer (Yip Chiu-Cheng)

D not liable where only one party intends act to be committed in incriminating circumstances (Segal)

o it is not necessary that anything be done to put the plan to commit the unlawful act into action – it is sufficient that an (completed) agreement was made (Rogerson)

o it is not necessary that the precise manner of carrying out the unlawful act has been agreed upon, only that it will be done (Douglas; Bolton)

the factual impossibility of completing the unlawful act does not negate actus reus (Barbouttis)

mens rea intent to perform an unlawful act (BoP: P, BRD)

o recklessness is not enough (Siracusa) – even when recklessness is sufficient mens rea for the unlawful act itself

intent to agree with one or more members of a group (to perform unlawful act)o “intent to agree” cannot be done recklessly or

negligentlyo P must prove that D had intended to enter the

agreement as a party insufficient if D only knew about the agreement insufficient if D was still considering to agree

Where a conspiracy consists of an agreement to perform multiple unlawful acts, P must prove BRD:

a conspiracy with regard to the particular terms of each unlawful act

that D agreed to the commission of each unlawful act.D will only be convicted for conspiracy to commit those unlawful acts proved by P


6.3.1 introduction agreement to do an unlawful act (or a lawful act by unlawful

means) (Mulcahy) [C.1293] crime of conspiracy is committed where two or more people

form an agreement to commit a crime conspiracy allows much earlier intervention than does

attempt identifying actus reus & mens rea is difficult there is lots of controversy surrounding conspiracy [C.1282] there is no doctrine of merger: so D can be charged with

conspiracy and commission of the same offence (Hoar) [C.1310,1318]

6.3.2 elements

6.3.2.1 existence of the agreement “the essence of a conspiracy is an agreement” (O’Brien) it is not necessary that there be an agreement as to the

precise manner in which the unlawful act is to be performed (Douglas)

it is not necessary that conspirators have started to commit the unlawful act (Bolton: “what is agreed to be done and not what was in fact done which is all important” [C.1287]

D is guilt of conspiracy to perform an unlawful act even if D was unaware that act is unlawful (Briot) [C.1300]

O’Brien (1974,UKCA) [C.1283] [N.134]facts - talks about breaking mates out of prison

- takes some photos of a prison, is arrested & charged with conspiracy

ratio “essence of a conspiracy is an agreement” an agreement to commit that unlawful act must be

made o it is not enough to talk about committing an

unlawful act

6.3.2.2 convictions of individuals for conspiracyThere are instances in which a conspirator can be convicted as an individual:

D can be charged with “conspiring with a person or persons unknown” (s 393; per Harrison [C.1287]; Gerakiteys [C.1297])

where D’s co-conspirator is in fact an undercover police officer who entraps D (Yip Chiu-Cheng) [C.1287]

where D’s co-conspirator is given immunity from prosecution in exchange for giving evidence

even if D’s co-conspirator is acquitted at trial (Darby) [C.1288]

Darby (1982,HCA) [C.1288] [N.134-5]facts - D’s co-conspirator’s conviction for conspiracy was

quashed

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- D appealing conviction on grounds that there could not have been a conspiracy if his co-conspirator was not in fact a conspirator

ratio D can be convicted even if co-conspirator is acquitteddissent Murphy J (strong consent)

essence of conspiracy is agreement the traditional rule that a conviction cannot be

sustained if co-conspirator is acquitted should stand one guilty, one innocent: it offends commonsense to

have a contradictory verdict

6.3.2.3 impossibilityBarbouttis, Dale & Single (1995,NSWCCA) [C.1292] [N.135]

facts - D charged with conspiring to receive stolen property- D agreed to buy stolen cigarettes from an undercover police officer- cigarettes were not in fact stolen (police had them on loan)

held not guilty – specific cigarettes were not in fact stolen, therefore there was no substantive offence grounding the conspiracy

dissent D intended to receive goods (which he knows or believes to be stolen), then he intends to receive stolen goods… (per Gleeson CJ)

note courts (obviously) hate entrapment Ridgeway: HCA held evidence obtained by

entrapment involving an illegal act is inadmissible NSW Parliament overrules Ridgeway [N.135]

[C.1295]

6.3.2.4 scope of the agreement P must identify the scope of a conspiracy before the

existence of a conspiracy can be established. this involves identifying who agreed what, with whom and

when. charge should be for one big conspiracy or several small

ones this requires careful analysis because D will get off if the

wrong one is charged. (see Street CJ quoted in Gerakiteys [C.1297])

Gerakiteys (1984,HCA) [C.1295] [N.136]facts - medical insurance fraud

- D was a GP who conspired salesman to defraud insurance company- D conspired with 9 others to defraud Cth- charged with a general conspiracy

held acquitted – there were 5 different conspiraciesratio D cannot be found guilty of a conspiracy different from

the one charged

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Lees (1994,NSWCCA) [C.1298] [N.136]facts - D & Huynh charged with conspiring to supply

prohibited drugs- in fact D had agreed to buy heroin from Ah Shek & Huynh had also agreed to buy heroin from Ah Shek.

issue can this be interpreted as: D conspired with Ah Shek (conspiracy #1) and Huyhn conspired with Ah Shek (conspiracy #2)?

held 1 conspiracy (unfortunately for D there was a tape recording of D & Huynh conspiring)

6.3.3 controversies surrounding conspiracy[C.1301-23] [N.137-8]

6.3.3.1 relevant “unlawful acts” it is a not a crime offence to commit a tort, but it is a crime

to conspire to commit a tort. Cahill [C.1303]: great comment from Street CJ about secular

criminal courts

6.3.3.2 rationale for the offence of conspiracy court’s refusal to criminalise conspiracy to commit the

impossible would undermine police operations in this area. [U.173]

fear of people in groups

6.3.3.3 politically motivated prosecutions Ananda Marga

6.3.3.4 procedural and evidentiary advantages no doctrine of merger: so D can be charged with both

conspiracy and commission of an offence more evidence is admissible on a charge of conspiracy than

on the actual offence itself, e.g. hearsay. This becomes really problematic when D is charged for both conspiracy and commission – charges are heard before the same jury.

Ahern (1988,HCA) [C.1312] [N.138]: evidence must be reasonable

Hoar(1981,HCA) [C.1318] [N.138]: critical of charging of both conspiracy and commission of same offence – double jeopardy implications

6.3.4 future of conspiracy[C.1322-3]

6.4 Complicity 11.4[C.1323-75] [N.140-3] – these notes age good, use them[U.157-70] – pretty good too

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6.4.1 introduction

6.4.2 joint criminal enterprise

6.4.3 accessorial liability

6.4.3.1 conduct amounting to secondary participation

6.4.3.2 mental element for accessorial liability6.4.3.3 implications of derivative liability:

innocent agency6.4.3.4 withdrawal

6.4.4 doctrine of common purpose

6.4.4.1 what must be foreseen?6.4.4.2 relationship between joint criminal

enterprise and common purpose

6.4.5 accessory after the fact

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was D at the crim scene?

PRINCIPAL

ACCESSORY

did D commit

actus reus?‘counsellin

g or procuring’

assisting P to escape capture

did D have agreement with P1

to commit this offence? (Tangye)

‘aiding & abetting’

joint criminal

enterprise (Osland)

accessory before the

fact

accessory after the

fact

principal in the 2nd degree

principal in the 1st degree

principal in the 1st degree

NOTE for secondaries (those who are ‘aiding, abetting, counselling or procuring’)1. if P1 is innocent (lack of mens rea, child, insane, etc), then P can apply doctrine of innocent agency to S (with

mens rea): SP12. if P1 committed an incidental or additional crime, then P can apply doctrine of common purpose: did S foresee

that it was possible that the incidental crime would be committed? SP1


7. Sentencing & Penality

7.1 Introduction 12.1[C.1376-8] [N.144]

7.2 Justifications for Punishment 12.2[C.1379-1401] [N.144-8]

7.3 Developments Inconsistent with Just Deserts 12.3[C.1402-14] [N.149-52]

7.4 Judicial Resistance 12.4[C.1414-5] [N.153]

7.5 Penality & Crime Prevention 12.5[C.1416-22] [N.153-4]

7.6 Victim Participation 12.6[C.1422-32] [N.154-6]

7.7 Judicial Approaches to Sentencing 12.7[C.1432-5] [N.158]

7.8 Appellate Review 12.8[C.1435-47] [N.158-61]

7.9 Sentencing Options 12.9[C.1447-61] [N.161-6]

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Criminal Law 2 Notes

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