The Burden of Proof
Prosecution
bears the persuasive burden of proving the D’s guilt “beyond
reasonable doubt” – Woolmington
principle
Beyond
reasonable doubt = practical/virtual certainty, not absolute
-(Goncalves)
Juries
should not be instructed on meaning of reasonable doubt to avoid
dilution of its meaning and possible confusion with feeling sure,
there being a possibility or chance -(R
v Green)
Only
differs in drug cases – addressed in Drugs
Homicide
Homicide
(s300) = unlawful killing
= murder + manslaughter + dangerous driving causing death
Code
s291 –
killing(s293)
any person is unlawful unless authorised, justified or excused by
law: Prow
S284
– consent does not affect criminal responsibly.
Conception
of death = brain stem death (Bland
– brain turned to mush which was uncurable – had existed
in such a state for a long period)
Killing
by omission no criminal
responsibility (Coney),
except where a duty of care is owed – see involuntary
manslaughter for specific duties
Bland
– doctors are not crim resp for turning off life support
machine as this is classified as an omission (i.e. omitting to
preserve life) rather than a +ve act
Causation:
Death by Act: Need to establish causation. 2
types
s293
– killing is defined as directly or indirectly causing
the death of another
person
Elements
1.
Causal connection: link b/w the
conduct of the accused and the death.
‘But
for’ test (Main test all 3 judges agree other tests only
supportive) (Royall
– Wife beater caused girl to jump out of a winow under
reasonable apprehension of death of GBH)
would death have resulted but for the accussed’s
contribution? If no, a causal link
Immaterial
that the person would have died soon anyway –
s296
Causal
connections that are not recognised:
(a) omissions-must
have a duty to act or no criminal liability;
(b) Coincidental
deaths- Hallets-
tidal wave caused death;
(c) Deaths via the
use of an innocent agent- White
v Ridley
If you can prove
‘but for’ test STOP
HERE no need to continue.
2.
Causal Responsibility-if indirect
contribution:
‘Substantial
contribution’ test (Royall
– Wife beater caused girl to jump out of a window under
reasonable apprehension of death of GBH) – causally
responsible where you substantially contributed to death
Novus
Actus Interveniens – 2 or more independent actors each
causally responsible later
actor is responsible but the act must be ‘free, deliberate
and informed’ (Pagett)
– 2nd actor breaks causal chain of 1st
actor
Specific
Code provisions regarding homicide:
(a)
s295 – a
person who by threat, intimidation, or deceit causes another to do
an act or an omission (look at CL tests for causation) which
results in the death of that person is deemed to have killed the
other person. (Royall
– Wife beater caused girl to jump out of a winow under
reasonable apprehension of death of GBH);
(b)
s276 - acceleration
of death.
(c)
s297 – person
causes bodily injury which results in death, failure to prevent
death is immaterial. If Dr omits to provide proper treatment
for victim and victim dies – assailant responsible if injury
is operative cause of death (Blaue
– Jehovahs Witness was stabbed died after refusing
blood transfusion – stabber held to have caused death);
(d)
s298 – where
person is victim of GBH and dies from injury or medical treatment-
provided treat was reasonable proper and applied
in good faith – assailant is deemed to have killed
other person.
Note:
negligent medical treatment breaks the causal chain (Novus actus
interveniens= new act relieves original actor of causal
responisibility).
Now
go to CL principles: Royall:
Common
sense test: Royall.
Look to what is affirmed by majority with criminal liability.
STOP
here if no need to supplement.
Substantial
Contribution- retrospective test. Was the act of the accused
sufficiently substantial to enable respons for the crime to be given
to the accused. Royall
Hind&Harwo
Reasonable
Foreseeability- prospective test- is the result a reason for
consequences of the accused’s conduct. Question’s of
over-reaction is a variable factor depending on circumstances. NOTE:
fright or self-preservation cases: victims do not need to act
reasonably or rationally.
Novus
Actus Interveniens- new intervening act breaking causal chain,
relieving original actor of causal responsibil. eg:
s298: negligent med treat. – Note: conflicts with Pagett
must be ‘free, deliberate and informed’.
B:
Death
S.236
– corpse, can’t kill already dead
No
code definition.
Traditional
common law definition: ‘irreversible cessation of all vital
functions’.
Medical
definition: irreversible cessation of all brain function,‘brain
stem death’-Qld Transplantation &
Anatomy Act s45.
Modern
Common. law definition – ‘brain stem death’: Bland
C:
Another:
s
292 – living and completely outside of mothers womb
s
294 – where death caused by act before or during birth
deemed to have killed child.
s
313 –killing unborn child, attempts to procure abortion
ss224-other person, 225-
mother
Murder
s305
–penalty- mandatory life imprisonment
Standard
Murder – s302(1)(a)
An
unlawful killing becomes murder when there is:
Intent
to kill the person killed or someone else or
Intent
cause GBH on the person killed or someone else
GBH
defined in (s1) (must
satisfy to prove GBH)
(a) Loss of a distinct body part/ organ; (b) Serious
disfigurement; (c) Any bodily injury that, if unattended,
would cause or be likely to cause permanent injury to health,
whether or not treatment is or could have been available.
Intent
to kill or do GBH to the particular person killed is immaterial –
s302(2) –ie you intent to
shoot A but shoot B instead.
Definition of
Intent: No definition in Code-look to
Common Law.
Two
Types of Intent: Can use either i)
or ii)
Purpose
intent – where death is intended and that is
the reason for acting (Willmot
– Guy tied sister in law to bed sheets and killed –
D argued not trying to kill her but did cause her death – D
argued that there is a distinction between desiring a result and
foreseeing it as likely to occur – D successful),
(Peters: ‘when
person intends to do something, they act in way to bring it about)
Not
the same as motive/desire (Willmot)
– can intend to kill without desiring death
Motive
= why you did it. s23(3) motive
immaterial.
Knowledge
intent – where it is known that death will be
an inevitable consequence of some action, even though the action may
have a different purpose (Woollin
– Guy threw baby at a
hard surface causing death)
Intent encompasses both purpose and knowledge. Peters(‘If
person does something that isvirtually certain to result in an event
occurring, the intend to occur it’)
Death
must be foreseen as a practical certainty (Willmot)
Must foresee consequence as
being:
1)
An ‘overwhelming probability’
2)
‘Likely’- highly probable that it would cause death
Proof
of Intent: if no confession
use Test in Winner
to prove i) or ii)
above.
Direct
proof confession
Indirect
use objective test to
determine a subjective state of mind: Winner.
Ask: Test in Winner
(1)-
What are the acts of the accused?- what can be inferred
from there actions
(2)
Obj – what would be in the mind of a reasonable person
who did what the accused did &
(3)
Subjective factors – is there any reason why the
accused state of mind would be different? (Winner –
no difference; Cutter – intoxicated)
Consider
There
are two possible arguments against liability for murder. One is
that, in state of anger, may not have appreciated the obvious
consequences of there actions – eg Turner.
Even if he foresaw the risk of seriously injuring victim, that
would not suffice – Willmot.
For intent in the form of knowledge, consequences must be foreseen
as virtually certain.
Judicial
Instruction on the Meaning of Intent:
Elaboration/paraphrasing
the meaning of intent should be avoided to not confuse the jury &
dilute its meaning (Willmot)
Defences –Accident ( see
manslaughter),lack of will etc
Intoxication: jury
can find intoxication to negate the necessary intent in which case
they would instead convict of manslaughter: Nicholson
*Note: no defence
for consent in death(s284), or person
would have died anyways(s296)
Constructive
Murder – s302(1)(b)
When
your actions lead to murder.
An
unlawful killing becomes murder where death is caused by means
of an act done in the prosecution of an unlawful purpose
there is no intention to kill or cause GBH
Immaterial
that the accused did not intend to hurt anyone – s302(3)
-
No s23 defence for accident as no intent required: Fitzgerald
Elements:
Prosecution of an unlawful
purpose and act likely to
endanger life.
Prosecution
– was it a preliminary act, process/part of
plan– Hind and
Harwood: shot potential witness during robbery.
A
dangerous act committed in the prosecution of an
unlawful purpose (Gould
v Barnes – Illegal
abortion women died Dr said “tend to endanger life”
judge did not bring this to the juries attention as not being likely
to endanger human life, just tending too – murder -> ms)
-
any action done in the course of attempting to get away after
commission of offence is act done for unlawful purpose: Georgiou
conduct
which did not include intent to kill Gould
and Barnes
Unlawful
purpose must lie beyond the dangerous act (Hughes)
– i.e. acts that are just themselves dangerous do not
constitute constructive murder
Conduct
must be act ‘likely’
to endanger life
Risk
to human life more probable than not Hind
and Harwood, Hughes
Likely
= a substantial or real and not remote chance
regardless of whether it is less or more than 50% (Hind
and Harwood) – not a possible chance(Gould)
HC
NOW removed likely: in favor of more strict: *‘could
well have happened’* (Darkan)
Is
an objective test: Cronau
Manslaughter
s303
– any unlawful killing(s.300)
that is not murder(s.302)
is manslaughter
i.e. unlawful killing without the culpable intention
s310
– maximum life imprisonment (not mandatory-rarely given)
Voluntary
Manslaughter – where there is an intent to kill
but there are mitigating circumstances – i.e. provocation
(s304) and/or diminished
responsibility (s304A)
Involuntary
Manslaughter – unlawful killing without the
fault elements of murder – two types (Jackson
& Hodgetts)
Manslaughter
by Intentional Violence
Elements:-
(liability avoidable if can argue accident)
Intentional
violence
applying force (eg assault) without the intent to kill or cause
GBH
Death
must have been foreseen or foreseeable as a
possible outcome (Kaporonovski)
General
test: when you intend to hurt someone you are criminally
responsible for a foreseen (subjective)
& foreseeable (objective) death from
that action: Taiters
(bar room brawl).
Punishment:
s310 – life
Accident
Defence
s23(1)(b) [look at death ]
(still must have control of
functions ie arm was held out when person ran into it, other wise go
to lack of will.
Death
must be:
(a)
subjectively unforeseen by the
offender +
(b)
objectively unforeseeable by the
reasonable person (Taiters
– hit bloke in fight
causing eventual death from fractured skull and related injuries)
– i.e. ‘fluke’. Kapronovski
To
negate the defence of accident the Crown must
prove beyond a reasonable doubt-
Taiters:
(a)
subjectively the accused intended
the event or foresaw it as a possible outcome (‘posible’
outcome, ‘exclude possibi’, that are no more than remote
or speculative’). OR
(b)
objectively that
an ordinary. person in the position of the accused would reasonably
have foreseen the event as a possible outcome, (‘ordinary
person acting in the circumstances with the usual limited time for
assessing probabilities..’)-
Taiters
To
test if the defence of accident can be used, look at the elements
of s23(1)(b): an event which occurs by
accident which is an act occurring independently of the person’s
will = result or consequence/ death in homicide, by accident
Kaporonovski – not
intended, - not foreseen by the accused, - not reas foreseeable by
the ordinary person
Egg
shell skull rule = accident defence not available where
death/GBH is a result of ‘defect, weakness or abnormality’
– you take your victim as you find them, despite
idiosyncrasies – s23(1A)
Egg
shell skull does not apply to accidental
victim as you must choose your victim
(Nader)
(Timbu Kolian)
s23(1)(b)
accident does not apply.
Death
by Omission: no criminal liability for omissions (falure
to act): Coney
& in code. No crime to be a passive spectator, unless duty to
act as reasonable person. Exception when person failing to act
had duty to act then M by CN
Manslaughter
by Criminal Negligence
Elements
No
intentional violence
Must
be breach of duty imposing provisions s285-290
→ serve to (1) create foundation for general criminal liability
for omissions (2) foundation for liability for offences against
person where negligence sole fault element (Jackson
and Hodgetts)
Is
There A Duty?
CL
– crimes cannot be committed negligently
Code
Provisions s285-290 are exceptions to
CL doctrine i.e. negligent
acts and omissions
s285
– ‘having charge of another’ eg: age, sickness,
detention.- Duty to provide ‘necessaries of life’-
Macdonald.
eg: health, food, shelter
s286
– duty of the carer of a child under 16 to provide
necessaries of life and reasonably protect against danger
s288
– duty of person performing medical procedures to have
reasonable skill and provide reasonable care
s289
– duty of persons in charge of dangerous
things to exercise reasonable care and take
reasonable precautions to avoid such danger
eg car:Jackson + H, guns: shooting to frighten but missed,
victim not target (unintentional but negligent discharge)Jackson
+ H
→Dablestien(woman
killed by D thrusting pencil in vagina)
need not be inherently dangerous, enough if dangerous in way put to
use
→Remains
unclear if part of persons body is dangerous thing
s290
– duty of persons who undertake to do certain acts to act in
circumstances where omitting to do so would endanger life. Eg:
lifesaver
Is
There A Breach?
look
at standard of reasonable care. Macdonald-
child neglect. If breached crim neg – manslaughter –s310.
If negligence less than criminal, there is ‘excuse’
for killing and it will not be unlawful(s291)
Medical
cases: only reasonable medical treatment, no duty where
patient refuses med treatment eg: religion, when patient is unable
to consent or refuses treatment: use ‘best interest test’,
in accordance with accepted medical practice. Rogers
v Whittaker may need verbal/written acceptance,
entitled to own decision.
You
need to prove a high degree of negligence/ extremely unreasonable
gross negligence (Callaghan)
failure to take reasonable care/ precautions of the conduct of the
ordinary person. Departure needs to be great enough to justify
sanctions that follow a conviction.
- Batman:
‘negligence showed such disregards for life and safety of
others as to amount to crime against state’
-Question
of degree – up to jury.
Defence
= accident see above
Dangerous
Driving Causing Death
4
possible offences under s328A:
1
.Murder – deliberate killing (Winner
– appellant and brother drunk, and unable to find a
way home they stole a car and drove like a maniac; hit cyclist –
other drivers saw no brake lights come on and winner swerved sharply
at the cyclist – had history of driving at pedestrians to
scare them – Winner argued that he did not see them until he
was right on top of them – Judges felt it was intentional and
dismissed the appeal (Guilty))
2.
Manslaughter – intention to cause less than bodily harm,
or if used as dangerous thing. - Thomas
motor
vehicle classified as a ‘dangerous thing’ under s289
3.
Dangerous operation of a motor vehicle (s328A):
not intentional, but reckless
Covers
all criminal conduct in motor vehicle causing death falling short
of murder
Requires
dangerous driving falling well short of conduct of reasonable
person – s328A(4)
→ McBride:
requires serious breach of proper conduct of vehicle, Jiminez:
must subject public to some risk above that associated w/driving
w/out due care and attention
Penalty
– 7 yrs; 10-14 if intoxicated
No
substantive difference to crim neg but termed DDCD as juries
are more willing to convict (Callaghan)
Balfe:
heavy goods driver rear ends Ute in rt lane.
4.
Careless driving of a motor vehicle – driving without due
care and attention -S.83 Transport Operations
Act 1995- max 6 months.
Assault Based Offences
Common
Assault (s335)
-no bodily harm to victim
Two
Types of Assault
Assault
with Application of Force – s245(1)
Conduct
elements:
(1)
Strikes, touches or otherwise applies force
Incorporeal
force – s245(2) –
heat, light, electrical force, gas, odour or anything if applied in
such a degree as to cause injury or personal discomfort.
(2)
Direct (eg hit) or indirect (eg throw)
(3)
Intention:If Yes to
apply force, Hall v Foncecca
If
No, s23(2).-intent immaterial
application
of force: s23(2): unless expressly
stated, intention is immaterial. – But Hall
v Foncecca (WA): intention is required for all forms
of assualt
(4)
without consent:-
not freely and voluntarily given = no consent(s348)
or consent obtained by fraud s245
= no consent –excludes consent
obtained through force or intimidation: s348
Consent
can be implied or express (Horan
v Ferguson) but if greater degree of force used than
consented too assailant liable as if no consent at all.
Conflict
in code- s245 states that lack of
consent is required for assault & s246(2)
states that application of force may be unlawful even if done with
persons consent –Lergesner
v Carroll. – specific provision s245
overrides general provision
NOTE:
consent is a defence to assault-based offence
consent is no defence to injury based offence
Go
to b) Absence of Consent
After
assault is established look to assault-based
offences.
s335
common assault, s339 assault causing BH,
s340 serious assaults eg: - police
officer in execution of duty – s24
mistake of fact may be a defence.
Assault
without Application of Force
Threats
and attempts to apply force
Assaulter
must have the present ability to effect the purpose –
either actual, apparent (realistic threat) or sometime in the future
esp where assault is continuing (Secretary
– wife beater abused wife for 8 years physically
mentally and verbally as well as abusing her children; he had been
taking drugs and had recently become more violent threatening to
kill her – a month before he had belted her with a belt so
badly that the neighbours heard and contacted the police; he had
threatened her with a knife; on the way back he threatened to kill
her and later she shot and killed him - acquitted)
- Requires a
bodily act or gesture – mere words alone will not
suffice Hall v Fonceca
-But, words spoken
may be what gives the bodily movement the character of a threatening
act or gesture: Hall v
Fonceca
Absence
of Consent
Consent
can be express or implied (Ferguson
– Teacher charged with sexual assault on a number of young
girls; teachers have implied consent to undertake certain activities
(disipline etc) and there was no evidence of any any wrongdoing and
thus the convictions were quashed)
Unavoidable
physical contact of everyday life is not assault (Ferguson)
Contact
sports – impliexzd consent to contact within conventions of
the game
Consent
is invalid if obtained by fraud or misrepresentation (ie lies)
-Defence –
s24(1) – mistake of
fact: mistaken belief in consent – reasonably thought to
have obtained consent (Lergenser
v Carrol – Two police officers had a fight one said ‘do
you want to take this outside’ and the other replied ‘lets
settle it right here’ at which point one hit the other =
reasonably thought to have obtained consent)
Limitation
on implied (tacit) consent. – express indication of
lack of consent - tacit consent to limited degree physical contact
– Lerg v Carroll
– did the degree of violence inflicted exceed that to which
consent was given?
If
yes: assault. Consent: subjective test.
Mental
Element
Assault
by application of force no
fault element prescribed in the code
s23(2)
applies which states that no particular state of mind need to be
proven unless expressly declared to be element of offence.
Hall
v Fonceca
However, assault is technical term so go to CL which says that
assaults require intention or recklessness, i.e. awareness of risk
Assault
by attempt or threat
‘purpose’ in s245(1) –
attempts and threats to assault presuppose an intention (i.e. cant
threaten by accident) Hall v
Fonceca
Assault
Occasioning Bodily Harm
Elements
– s339
-
Crown must prove assault + bodily
harm (s.1 interferes w/ health or
comfort)
Assault
–see Assault Based Offences above
The
assault must cause bodily harm
Bodily
harm s1= any bodily
injury which interferes with health or comfort (not temp. pain) eg:
bloody nose or black eye Lergesner
& Carroll – but not inflicting pain
by headlock w/out any quantifiable physical injury: Scatchard
WA
Intention
not a requirement – s23(2)
Cannot
consent to bodily harm as a matter of public policy under
CL (Brown)
Contra:
Lergesner v Carrol –consent a defence-(Two
police officers had a fight one said ‘do you want to take this
outside’ and the other replied ‘let settle it right
here’ at which point one hit the toher)
terms
of s245(1) take priority
over CL – consider nature of injuries-consent can be
defence.
But
without
consent:- no consent or consent obtained by fraud s245.
Conflict in code- s245 states that
lack of consent is required for assault & s246(2)
states that application of force may be unlawful even if done with
persons consent –Lergesner
v Carroll. – specific provision s245
overrides general provision
Consent
can be implied or express (Horan
v Ferguson) but if greater degree of force used than
consented too assailant liable as if no consent at all.
NOTE:
consent is a defence to assault-based offence
consent is no defence to injury based offence
Accident
= valid defence if bodily harm was neither foreseen nor foreseeable
– s23(1)(b)
Tralka
S.339(3)
– aggravated when armed or pretending to be armed/in groups =
10 yrs
Serious
Assault
Offences
w/ aggravating features that increase max penalties
s340
-7 yrs max, charges based on
circumstances under which assault occurred. 3 yrs sum/P decides
Elements-
assault + specific 340 section
Assault
–see Assault Based Offences above +
S340
s340(a)
- assaults another with intent to commit crime, resist
lawful arrest.
s340(b)assaulting/resisting/
willfully(intentional/reckless:Rive)
obstructing cop (defence s 24 available if honest + reasonable
mistake in whether person is officer:GJ
Coles & Coy
s340(g)
-assault on person 60yrs or more
Harm Based Offences
Overlap
with assault based offences
Prosecutorial discretion –
can charge either assault based offence for which consent is a
defence or harm based offence for which consent is not a defence
Unlawfully
in these offences = ‘prohibited by law’ or ‘not
excused’: Houghton
Types
of Harm Based Offences:
Bodily
Harm Offences:
(i)
s328 – Negligently
causing bodily harm by breach of duty
ss285-290 2 yrs
imprisonment
s285
– ‘having charge of another’ eg: age, sickness,
detention.- Duty to provide ‘necessaries of life’-
Macdonald.
eg: health, food, shelter
s286
– duty of the carer of a child under 16 to provide necessaries
of life and reasonably protect against danger
s288
– duty of person performing medical procedures to have
reasonable skill and provide reasonable care
s289
– duty of persons in charge of dangerous
things to exercise reasonable care and take
reasonable precautions to avoid such danger
(ii)s339
– assaults occasioning
bodily harm
Elements s1:
unlawfully(Houghton below), assaults
s245(2) strikes,
touch, moves, applies force, causing bh
s1 interferes w/ health/comfort
Unlawfully
in these offences = ‘prohibited by law’ or ‘not
excused’: Houghton
Grievous
Bodily Harm Offences:
defn
s1: loss of a distinct part or organ. –
Serious disfigurement, - any bodily injury of such a nature that if
left untreated would endanger or be likely to cause permanent injury
to health. NOTE: ‘Health’ in BH & GBH, Tranby
= ‘bodily functioning’, not disfigurement or
psychological injury- Lobston
need to ignore impact of med treatment. ss317,
320
s320
– unlawfully doing GBH (no intent) – 14yrs
includes
‘serious disfigurement’, eliminates need for victim to
seek medical treatment.
Hind
and Harwood: ‘more probable than not’,
‘substantial’ chance of happening…severity
assessed at time of injury.
Defences
of accident and self-defence, to be disproved by
P…Lergesner v CarrolI:
consent not defence as victim cannot consent to GBH.
Aggravated
GBH and Unlawful Wounding-s317
-doing GBH with intent to cause GBH even though harm
based must prove assault + intent or
go to lesser charge. life
imprisonment
-
GBH: s1 injury
of such nature as to endanger/be likely to endanger life, or
cause/likely to cause(substantial-‘real + not remote’
chance regardless of more/less 50%) to cause permanent injury to
health if left untreated: Lobston
s317
– Elements:
(1)Accused:
(i)unlawfully
wounded, did GBH or transmitted serious disease,or
(ii)unlawfully
struck/attempted w/ projectile, or
(iii)
unlawfully caused explosive substance to explode..
(2)W/
Intent to:
(i)Maim(CL:
interferes w/ fighting capacity), disfigure or disable, or
(ii)Do
some GBH or transmit serious disease(s1
likely to endanger life or permanent
injury to health), or
(iii)Resist
or prevent lawful arrest/detention, or
(iiii)resist
public officer from acting on lawful authority
Requires
Crown to prove intent/fault element, can be constructive.
-
2 views of intent: intention as purpose or reason for
acting(Adopted in QLD, narrower: Reid)
or intention as foresight of result as virtual certain
consequence of act
Consent
is no defence, neither is accident nor self-defence once
Crown have proved intent.
Can
argue intoxication & provocation defences.
Unlawfully
Wounding – s323 –
breaking the skin -(affirmed in Jervis-Human
Vampire) requires intent
– 7yrs
Defences
-accident, self-defence, foreseeability,
consent
= GBH-cannot consent.
Less
medical burden to prove damage than GBH
If
you can prove intent go to s317
Torture
– s320A(2) – intentional infliction of
severe pain/suffering, incl. physical,
mental, psych. or emotional pain or suffering (14yrs) –
requires two separate occasions and actions
over sustained period of time.
-Robinson
v Stokes: cruelty to child under 16 (11yr)
-Maguire:
torture of 11 month old child (10yr)
-Bird
and Schipper: 2 satanic girls torture mid-age
hiker- consent no defence by very
definition.
Intention
& Accident:
Intention
No
intent required for ss 320, 323, 328
Intent
element required for ss 317, 320A
Accident:
see
manslaughter
Sexual Offences
Rape
– s349
Types
of Rape:
–s349(2)(a)-Carnal
knowledge w/out consent – elements:
1.
Carnal Knowledge
s.6(2): penetration
of vulva, vagina or anus by the penis- (To any extent)
ejaculation not required s.6(1)
2.
without consent-
not freely and voluntarily given = no consent(s348)
or consent obtained by fraud s245
= no consent –excludes consent
obtained through force or intimidation: s348
-s349(2)(b)-Penetration
by other bodily parts or objects w/out consent
of vulva, vagina or anus by
iii)
-s349(2)(c)-Penetration
of mouth by penis without consent
Mental
Elements:
Intent
– intent is assumed as penetration never arises without
intent
Consent
– definition s348-(freely
and voluntarily given by person w/ cognitive capacity)
Issue
of consent/subjective: For rape & sex.assualts it must be
proved that there was no consent or invalid consent.
Issue
of Induced consent = coercion to do so in order to
stay alive/ consent obtained by fraud/ threats/intimidation of any
kind, exercise of authority or by fear of bodily harm.
Fraud:
as to the nature of the act (doctor pretending exam) or by
impersonating husband. note: procuring s337(1)(b) similar to rape.
s349(3)-under
12yrs= cant consent
Currier:
unprotected sex w/ knowledge of vd is fraud; thus, no consent and
constitutes rape.
Holman:
if victim consciously permits it, then not rape
Redguard:
no followed by yes cancels out original no
Consent need not
be willing and may be reluctant/unenthusiastic – so long
as there is not a psychological act of rejection or an inducement by
fraud, coercion etc. (Holman)
also said: ‘ a reluctant submission by persuasion could be
consent’ BUT
Case
Stated by DPP: submission is not consent
Wagenaar
finally said ‘there is a difference between consent and
submission’
Supervening
unconsciousness causes an inability to agree or consent: Saibu
v R
Consent can be
withdrawn – this will vitiate prior consent (but initial
denial of consent may be vitiated by a subsequent change of mind)
Redgard
Defences:
s24 – defence of mistake of
fact
Attorney-Gen’s
Ref: mistake must be a ‘reasonable one’
Parsons:
mistake must be reasonable and honest .
Attempted
Rape – s350
– requires intention, obvious and positive step towards
committing rape …14 yr max no carnal knowledge however one
must have intent – AG
reference No 1 1977. An honest mistake will
negate this intent
See s4-
attempts
Assault
with Intent to Rape – s351
– intention is obvious from actions w/o steps towards
penetration eg. ripping clothes off…14 yr
Sexual
Assault
Forms
of Sexual Assault
Indecent
Assault – s352(1)(a)
Elements:
assault + indecent
+with intent +without
consent.
Uses
common assault s245
definition – (a) assault by application of force (inc.
touching) and (b) assault by attempt or threat
Indecent
= requires an element of moral turpitude or acting in a lewd
and prurient manner (Bryant);
>‘unbecoming or offensive to common propriety’ (Drago
– Ran biro over young boys body and onto penis ‘to
relax him?’ guilty)
Sexual
contact = contact that violates the sexual integrity of the
victim – no requirement for any particular part of the body to
be involved (Chase)
Intent
+ Consent (Below)
Procuring
Commission or Witnessing Acts of Gross Indecency –
s352(1)(b)
Procuring
= knowingly entice or recruit for the purposes of engaging in or
witnessing acts of gross indecency (procurer need not be the
person engaged in the acts of sexual exploitation ).
Gross
Indecency = indecency which is plain, evident and obvious (eg
oral sex) – Whitehouse
‘Sexual
acts’ can include acts done to a person’s own body and
also acts involving no physical contact:s218(2)-(3)
Procuring
involves an element of knowledge – i.e. knowingly entice or
recruitintent(below)
Mental
Elements:
Intent
Sexual
assault involves an element of intention or recklessness (Hall
v Fonceca – one party raised hands at the other in a
threatening manner, stood up and told the other party to watch it,
the other party then pushed him after which the party hit him)
Purpose/motive
is immaterial and judged by how victim would have percieved (Drago
– ran pen over young boys body and onto penis ‘to
relax him?’ guilty)
motive
irrelevant s23(3), objective effect on
victim…but context may provide innocent explanation for
actions Ferguson:
teacher patting girls as gesture of encouragement
But,
purpose/motive can affect characterisation (Drago)
– i.e. community standards can influence what is decent –
look to whether something is inherently indecent
Consent
Indecent
assault requires absence of
consent – s245
Assault
by procuring requires absence
of consent – s352(1)(b)
Consent
must be ‘free and voluntary’ from a person with
the cognitive capacity to give consent – s348(1)
Induced
Consent s348(2)(Applies
to rape+assault by procuring) – consent is not
‘free and voluntary’ if it is obtained by:
Force,
threat/intimidation, fear of bodily harm, exercise of authority,
misrepresents as to nature & purpose of the act, impersonations
of a sexual partner
These
are examples only - other
examples of misreps exist
Cuerrier (respondant
tested positive for HIV and refused to tell partners about it.
Respondant had unprotected sex w/ gf – complainants did not
get HIV but would not have slept with him if they knew he did):
like commercial fraud, misrepresentation must have
elements of dishonesty and deprivation. But so as to not
trivialise sexual assault, additional requirement for the risk of
serious bodily harm (eg STD’s, pregnancy)
s348(2)
applies only to rape and assault by procuring – s245
regarding indecent assault is silent – unsure whether court
would follow s348(2) and
find that there has been no consent
Consent
need not be willing and may be reluctant/unenthusiastic –
so long as there is not a psychological act of rejection or an
inducement by fraud, coercion etc. (Holman)
also said: ‘ a reluctant submission by persuasion could be
consent’ BUT
Case
Stated by DPP: submission is not consent
Wagenaar
finally said ‘there is a difference between consent and
submission’
Supervening
unconsciousness causes an inability to agree or consent: Saibu
v R
Consent
can be withdrawn – this will vitiate prior consent (but
initial denial of consent may be vitiated by a subsequent change of
mind) Redgard
Implied
Consent – consent may be implied (Ferguson
– Teacher charged with sexual assault on a number of young
girls; teachers have implied consent to undertake certain activities
(disipline etc) and there was no evidence of any any wrongdoing and
thus the 8convictions were quashed)
No
implied consent where persuasion was used to influence another’s
decision – Case Stated
by DPP No. 1 of 1993
Mistaken
Belief in Consent
Mistake
= defence must be honest +
reasonable to be a defence (s24;
A.G Ref No 1 of 1977)
negligent belief in consent is not reasonable, must be a positive
belief
Ignorance
= no defence
Issue
of reasonable: Mrzljak
QLD CA: the issue under s 24 is what the accused
might have reasonably believed (mental impairment, language,
psychiatric disorder)
Aubertine:
WA similar approach but exclude intoxication + personal values
*LeadC:
Stingel: HC
held for provocation defence only age taken into account, Mrz + Aub
may be too radical from precedent
CL:
honest but unreasonably mistaken belief in consent is a good
defence: Dpp v Morgen
bc reasonableness only relevant o whether mistake actually held by
accused – AG’s
Reference No 1 affirmed CL mistake rules not
applicable for rape
SEXUAL
OFFENCES NOT INVOLVING VIOLENCE:
Property Offences
Regulatory
Offences Act:
Shoplifting,
not paying for food/ accommodation to the value of $150 or less +
Damage < $250.
Express
mental element of property offences
offence must be committed intentionally or
some other advertent state of mind.
s581
on a charge of an offence of
dishonesty (eg stealing; fraud; receiving), there can be a
conviction of a different offence of dishonesty if that is what the
evidence proves (White)
Stealing
– s391(1)-must have
intent to permanently deprive (except money) someone of the property
When
possession is given rather than taken, ownership of money will
transfer with its possession in the absence of any specific direction
as to its use or disposition – Ilich.
-look
at s395-money received for another, s394
and s396- stops ownership of money passing with possession.
Money
:
-
CL: when money ‘passes into currency’ through a bone fide
transaction, property passes w/ it
-
EXCEPTIONS:
1.
Money received under direction respecting what is to be done with it
deemed to remain property of transferor until direction complied w/
s393(1)
*note direction must be written if parties ordinarily deal as debtor
or creditor (393(2))
2.
When person acting as agent of another in selling or otherwise
disposing of property, proceeds generally belong to other person: s
395 unless terms making proceeds part of
debtor/creditor account
3.
Money received on behalf another person prop of other person:
s395(covers
employer/employees) excp: debt/cred
Stealing
(s391(1)) = the fraudulent
taking or conversion of a thing capable of being stolen
-
Requires movement of the property or some other dealing w/it:
s391(6)”asportation”
-
Stealing complete when possession of property is gained
Things
capable of being stolen = things that are moveable or capable of
being made moveable – s390
Owner
of property need not be known McKierman
– lost property may be stolen if no
reasonable effort to find owner (s391(5))
Cannot
steal real or intangible property
Can
fraudulently misappropriate power (s408)
or dishonestly appropriate property, including
real and intangible property (s408C(1)(a))
Identity
theft: s 408D
Who
can steal-definition of person includes corporation,
organisations which can own property.
Who
may be stolen from?
The
owner (s391(2)(a)) or any
person who has any special property in it
(s391(2)(b)) including any person having
possession or control of it (s391(7)).
The
offence of stealing protects possession, not ownership
an owner can steal from someone entitled to possession – s396
Modes
of Stealing (Physical dealing)
Stealing
by Taking (s391)
Taking
= when possession of the property is unlawfully gained
everyday meaning of taking
Contra:
‘Giving’
property cannot be stolen if possession/ownership is given away –
Mujunen –
forged cheque, 2 withdraws one ATM, one teller. ATM withdrawal
stealing-taking, teller withdrawal not stealing-given.
C/f:
Giving induced by trickery = fraud under ss408C(1)(b)
or (c) see
later
Stealing
by Conversion (s391)
Conversion
= dealing in any way which is inconsistent with the rights of the
owner (Ilich
– Appellant was entitled to $1176 – signed receipt
but did not count money – monetary excess of $530 which he
planed to keep in safe keeping until return
HC said: handed over willingly)
usually a bailee who is given property for a time period and
sells or disposes of it
Mere
failure/refusal to return is not conversion
requires a positive act – intent to deprive is necessary
(Angus – hired
Nintendo and did not return on time specified/moved address –
no intent to deprive or no conversion thus conviction quashed)
Conversion
of lost property where finder
of lost property immediately sells w/out
efforts to find true owner (s391(5))
mere failure to return ≠
conversion as it requires positive physical dealing (s391(6))
An
owner cannot convert as conversion involves
acting inconsistently with the owners rights (Ilich
– Appellant was entitled to $1176 – signed receipt but
did not count money – monetary excess of $530 which he planed
to keep in safe keeping unti return)
Defence
of Mistake
No
criminal offence when it’s a simple mistake
Ownership
of money transferred regardless of mistake of amount.-
Illich
Illich.3
types of FUNDAMENTAL mistake
Mistake
is a defence to intentionally transferring ownership (Ilich)
fundamental mistake includes
mistake as to
The
identity of the transferee
The
identity of the thing delivered
The
quantity of the thing delivered
If
fundamental mistake occurs then only transfers possession not
ownership, can then be liable under s398
if thay sell property or otherwise converts for own use.
-
Mistakes that are not fundamental do not prevent a transfer of
ownership: Ilich
Giving
induced by simple mistake ≠
stealing
Intent
must be Fraudulent- requires mens rea.
Taking
or conversion must be done fraudulently (s391(1))
fraudulently =
An
intent to permanently deprive - s391(2)(a)-(b);
means experience of loss, so if police got it back b4 u realized its
not loss.
cannot
steal negligently or by accident
borrowing
is not stealing as there is no permanent deprivation
An
intent to use the property in such a way that it cannot be returned
in its original condition – s391(2)(e);
or
An
intent to use someone else’s
money - s391(2)(f)
- (irrelevant that there’s intention to repay); Marsden:
solicitor invested money of client in scam
or
An
intent to use someone’s property as
security for a loan – s391(2)(c)
S.391(2A)
– prevent drive-off offences without arrangement with owner,
defence in 2B of innocent oversight but
b of p on D- intention may be presumed, defence to show ‘mistake
of fact’
Intent
is usually knowledge intent (Willmot
– Guy tied sister in law to bed sheets and killed – D
argued not trying to kill her but did cause her death – D
argued that there is a distinction between desiring a result and
foreseeing it as likely to occur – D sucessful) rather
than purpose intent it is not
usually the purpose of the person stealing to deprive the owner but
to merely acquire the property
Lost
property person converting
lost property is not doing so fraudulently where they do not know
the owner and believe on reasonable grounds that the owner cannot be
located – s391(5)
Separate
offence (s408A)
unlawful use/possession of a motor car without consent of the
person in lawful possession
must have intent to deprive either temporarily or permanently
Defences
Mistake
of Fact
Mistaken
belief that something is your property (s22(2))
is a valid defence even if it is an
unreasonable mistake i.e. as
intent to deprive is absent – contra s24(1)=
does not apply to stealing.
Mistake
of Law
General
rule ignorance of law is no
excuse – s22(1)
Exception
Claim of right
s22(2) see below
Fraud
(s408C) [dishonest]
Dishonest
conduct mainly in relation to property
Fraud
can involve both real and intangible property – s1,
s408C(3)
Fraud
requires conduct must have been dishonest by the standards of
ordinary honest people – Peters
The
Queensland CA has adopted an additional requirement that the accused
must have known the conduct would be viewed as dishonest –
Laurie; White.-look
at actions to see if they tell any one (believing they where honest)
or tried to cover it up.
Types
of Fraud – s408C:
Dishonest
misappropriation of another’s property to one’s
own use or the use of another person –
Dishonest
obtaining of property or inducing its delivery to any person
- ss408C(1)(b), (c)
i.e. false pretences and promises with either possession or
ownership transferred
Dishonestly
gaining a benefit or advantage – s408A(1)(d)
Dishonest
non-payment for any property or services supplied –
s408C(1)(h)
Dishonestly
causes a detriment, pecuniary or otherwise – s408C(1)(e)
Dishonesty:
HCA
in Peters &
Qld CA in White
dishonesty is determined by
the objective standards of reasonable
and honest persons
Peters
imposed additional requirement of
dishonesty requiring (‘knowledge, belief or intent of the
accused’) [not for actions that are negligent]
Receiving
(s433(1))
Receiving
(s433(1)) = receiving property
obtained by means of stealing or other indictable
offence
Requires
proof of fault elements:
1.
Knowledge that the property was obtained by means of an indictable
offence (subjective fault); or
2.
Reason to believe that it was obtained by means of indictable
offence eg incredible
deals etc (objective test): Stingel
,Mrzljak-see last page
Encompasses
obsolete doctrine of wilful blindness – an abstention
from inquiry for fear of learning the truth (Pereira)
S.552B
– Receiving can be delt with summarily if <$5000, D may
take on indictment
Robbery
(s409)
Stealing by means
of violence or threat of violence at/ before/after the time of
stealing – s409
simpliciter = 14 yr max…-
Life max if
aggravated by:-s411(2):
armed, or pretend
armed w/ ‘dangerous weapon’OR
offender in
company of one or more persons OR
before/during/after wounds
another person
s413-417
– other forms + extortion, attempted extortion
Offences
Respecting Premises
Entering
into/being in premises of another person with an intent to commit
an indictable offence
Dwelling
(burglary) (s419(1)) or
other premises (s421(1))
Offence
of ulterior intent the
commission of the offence lies beyond what has to be proved and need
not have occurred
Breaking
is an aggravating but non-essential factor – it need not
involve damage and can include mere opening (s419(1)
for dwellings and s421(1)
for premises) and entry by way of threat – s418(3)
Increased
penalty if offence conducted at night – s419(3)(a)
Committing
offences in premises
Dwelling
(burglary) (s419(4)) or
other premises (s421(2))
No
ulterior intent offence
must actually occur
There
need not be an intent to commit the offence when entering
Breaking is an
aggravating factor where offence is committed in premises –
s421(3)
Destruction
& Damage
Arson
– s461 ‘wilfully
& unlawfully’ setting fire to buildings, vessels, motor
vehicles = max life
Wilful
damage – s469
– offence to wilfully and unlawfully damage or destroy any
property
‘Unlawful’
= means w/out consent of owner & w/out authorisation,
justification or excuse (s458)
– immaterial that offender owns the property – ie covers
insurance fraud (s459(1)-(2))
‘Wilful’
includes intentional &
deliberate acts likely to result in prop damage, with a reckless
disregard for such risks (Lockwood)
Drugs Offences
Structure
of Drug Offences:
Commonwealth
Drug Offences
The
Commonwealth acts pursuant to its constitutional power over customs
to legislate with regard to the importation and possession of
imported drugs (narcotics).
Offences
under Customs Act 1901 (Cth)
Importing
“prohibited products” (s233B(1)(b))
Possessing
“prohibited imports” (s233B(1)(c))
Queensland
Drug Offences
Queensland
acts pursuant to its constitutional power over criminal law to enact
laws governing a variety of offences via the Drugs
Misuse Act 1986 (Qld)
concerned with dangerous drugs
Dangerous
drug (s4 DMA) = drug
specified in Schedule 1 or 2 of DMA
Schedule
1 – heroin, cocaine, ecstasy = 25 yrs
imprisonment max for possession
Schedule
2 – cannabis, LSD, amphetamine = 20 yrs
imprisonment max for possession
No
need to charge or prove the identity of particular drugs –
ss57(a),(b) DMA
as long as satisfied was a dangerous drug (Different at Cth)
Offences
under the Drugs Misuse Act 1986 (Qld)
(a) Trafficking –
s5;
(b) Supplying –
s6;
(c) Receiving or
possessing property obtained from trafficking or supplying –
s7;
(d) Producing –
s8;
(e) Possessing –
s9;
(f) Possessing
things for use in connection with a drugs offence – ss10
and 10A;
(g) permitting a
place to be used for drugs offence – s11
Possession
of Drugs: The
essence of possession is control or atleast a claim to the drug: Lai
-?But
to control something basic element of knowledge needed: Tabe
Queensland
– s9
Conduct
Elements:
Possession.
includes the exercising of control over the drug.
Two
forms of possession:
1.
Actual physical custody
2.
Constructive custody
thing is physically separate from person but they still have control
of it (Buck –
Heroin up anus of TP – no control over it because it was
within TPs body – degree of control)
Traces
quantities incapable of
discernment by the naked eye are not possessed (Williams
– had drug traces
in his clothing so minute that it was no measured – amount
invisible to naked eye – found that no possession present)
even if person knew of existence of trace: Warneminde
S129(1)(c)
DMA Presumption
of possession for occupiers/managers/controllers
of place in which drug is found or someone concerned w/its
management
-
‘Place’ includes a vehicle: s4
DMA
-‘Occupier’
requires control in sense of being able to exclude strangers.
Difference btw being joint occupier or a premises w/ permission of
occupier: Thow v
Campbell-someone moved out b4 drugs found but still
belongings on premises Held: not occupier at time drugs found +
perhaps never had been
no presumption of possession
S129(1)(d)
Accused to show neither knew it was there or had reason
to suspect presence of the drugs otherwise unable to rebut
presumption of possession
Defences:
MoF
Regarding the Existence of the Substance
Generally
mistake is a good defence
where there is no knowledge of the drugs existence (Clare)
mistake or ignorance
reas or unreas.
Qld or Cth
Rebutting
Occupiers Presumption
mistake is a good defence where the occupier can show that they
neither knew nor had reason to believe that drugs were present
– s57(c) DMA
Mental
Element
Generally
there must be actual
knowledge of the existence of the substance not necessarily what
it is(charater of the thing) (Clare
– wilfully blind as to what the substance that he was
carrying was (some question of fact as to him not knowing) which he
agreed to carry to Sydney for an acquantance)
knowledge must be proven (eg suspicion) is inadequate
iiii)
Defences DMA
Mof
Regarding Existence
-
Significance depends on whether there is some basic mental element to
the offence, if no basic mental element, significant depnds on
applicable rules of criminal responsibility to mistakes of fact:
honest & reasonable: s 24
MoF
Regarding the Character of the Substance
-
s57(d) DMA –
mistake is a good defence where the accused can show that it was
honest and reasonable (reverse burden)
Limit:
s 24 defence
(Cth easier bc prosecution carry BoP and
mistake no need to be reasonable)
-
only available where person holds positively mistaken belief
in, person who innocently turns mind to what the substance is can
have no defence: R
- then person only
liable to extent if things had been such as they believed to be: Dunn
- Persuasive burden placed on
accused to show ‘honest’+ ‘reasonable’
Mistake
of Law-is defence when substance is not drug = no dug –no
libility (eg was asprin)
s22
Code
ignorance is no defence – eg: fact that you didn’t
realise drug was prohibited
Commonwealth
– s233B(1)(c)
Possession
of prohibited import = narcotics
Requires
intent or recklessness as to possession – Cth
Code s5.6
-
‘Recklessness’ s5.4:
being aware of risk which it is unjustifiable to take, having regard
to known circumstances
If
recklessness is fault element, can be satisfied by proving intention,
knowledge or recklessness itself.
Defences
Cth:
MoF
Regarding Character of Substance
s9.1
Cth Code
mistake is a valid defence whether or not a reasonable mistake
mental
element ie. Intent or recklessness s5.6
-
must be honest
-
reasonable or unreas s9.1(1)
-
mistaken +ve belief or mere oversight s9.1(1)
MoF
Regarding the Origin of Substance
s233B(1A)
Customs Act
mistake is a good defence but burden on accused
Mistake
of Law
ss 9.3-9.4
Cth Code no defence
Supplying
Drugs – s6 DMA
Supply:
s4(a) = ‘give, distribute, sell, administer’
or anything in prep of such
max = 5-25yrs imprisonment
Small
scale not involving the continuation of a business
Can involve one off transactions
Trafficking
Drugs – s5 DMA
Trafficking
= not defined, taken as supplying w/ commercial element: Qualie
commercial
dealing on a regular basis – ie continuation of a business
with a degree of repetition and continuity (Dent)
max = 5-25yrs
s302.1
Cth trafficking includes: sell,
prepare, transport, guard, possessing
Quaile
1st of a planned
series of acts can constitute a business
1 sale sufficient
Importing
Drugs – ss233B(1)(b),(d)
Customs Act
Importing
= bringing things into Australia from abroad with or without
knowledge (He Kaw Teh)
He
Kaw Teh mental
element is not part of the definition so refer to rules of Criminal
responsibility – generally, however, there is the requirement
for intent or at least recklessness
Mistake of Fact
s24(1)
where accused performs (or
omits) an act in reasonable belief that a certain fact is correct
judged as if those facts existed – (judged objectively)-
Clare: D failed to
persuade jury heroin carried was perfume base
2
Specific Requirements (use both):
Mistake
must be ‘honest and reasonable’ – ie
unreasonable belief = negligent belief = no mistake (s24(1);
Geraldton Fishermen’s Co-op – crayfish of illegal
size – MoF unreasonable)
Mistake
must be a ‘positive belief’ –
distinguish from ignorance/inadvertence/due diligence from mistake
(s24(1); Coles
v Goldsworthy)
s24(2)
MoF defence may be excluded
expressly (eg s229 re mistaking
childs age in sex) or implied (McPherson
v Cairn – to express a defence for one person
is to exclude the offence for another)
Evidentiary
burden on acc. to adduce evidence that makes MoF an issue
(Geraldton Fishermen’s – crayfish of illegal
size – MoF unreasonable)
applies
in all Code, unless excluded by context of sec, b of p on D
Mistake of Law & Claim of
Right
s22(1)
– ignorance of law is no excuse – educative and
deterrent function (Walden v
Hensler)
Exceptions:
Claim
of Right:
s22(2)
– ignorance of law is an excuse where a person acts with the
honest mistaken belief that they have a legal
entitlement to the property-Kusu
Claim
need not be reasonable (Walden
v Hensler)
Claim
must be of legal entitlement, not mere moral entitlement
(Walden)
Non-publicised
deleg. legislation – ss22(3),(4)
Self Defence
Defence
of Persons
s271
self-defence against an
unprovoked assault
s272
self-defence against a
provoked assault
s273
aiding another in self
defence in ‘good faith’
Defence
in response to an unlawful assault
s245
Assault includes application
of force plus threats (must have present ability to
carry out threat); and continuing assault whereby person
not in a position at that moment to carry out assault (Re
Secretary – wife
beater abused wife for 8 years physically mentally and verbally as
well as abusing her children; he had been taking drugs and had
recently become more violent threatening to kill her – a month
before he had belted her with a belt so badly that the neighbours
heard and contacted the police; he had threatened her with a knife;
on the way back he threatened to kill her and later when he was
asleep she shot and killed him – acquitted)
s245
Assault by threat
requires a bodily act/gesture
mere words ≠ assault (Hall
v Fonceca – one party raised hands at the other
in a threatening manner, stood up and told the other party to watch
it, the other party then pushed him after which the party hit him)
1.
P assaulted D raising hands leaving D to fear imminent attacks
2.
prior to the assault D acting aggressively and provocatively to P
3.
D suspected P would hit him causing D to reasonably apprehend further
assault
4.
appeal dismissed
Self
Defence Against Unprovoked Assault (s271)
* Can be (i) or (ii) below:
s271(1)
– Can use such defensive force that is ‘reasonably
necessary’ to repel the assault
Reasonably
necessary = imprecise/ rough measure of necessity of force:
Zecevic
Excessive
force ≠ no defence (s283)-liable
to the extent of the excessive force.
Reasonableness
of defence – if assault could only be avoided by using
disproportionate force, may not be reasonable
seek other ways of dealing with it
Excludes
defensive force intended/likely to kill or cause GBH
Unexpected
outcome of death/GBH
must show act was not intended and not likely to be fatal (Prow)
OR (Grey:
QLD CA took view that s271(1) crates objective test of necessity
while 271(2) directs attemtion to reasonableness of defender’s
state of mind
s271(2)
– Can use all necessary defensive force including
force that may cause death/GBH if:
-
GBH s1:
injury of such nature as to endanger or be likely to endanger life,
cause/likely to cause permanent injury to health, loss of distinct
body part/organ, serious disfigurement
There
was a reasonable apprehension of death/GBH + reasonable
belief in no alternatives
Reasonable
apprehension = what the accused thinks is reasonable in their
circumstances; not an observer – contextualising the objective
test (Julian)
-
R v Mryljak:
reasonable belief is not necessarily one which would have been held
by a reasonable person, personal characteristics such as:
intellectual impairment, mental disorder should be taken into
account.
misdirection
to instruct on reas. person
Interaction
between s271(1) & s271(2)
Gray
independent interpretation
s271(1)
is an objective test of necessity and s271(2)
relates to the reasonableness of the defender’s state of mind
i.e. s271(2)
does not depend on reasonable necessity of force
Misdirection to
instruct that use of force must be necessary
subject to change soon (Vidler)
Vidler
cumulative interpretation
s271(2)
requires fulfilment that force must be reasonably necessary per
s271(1)
Current
approach follow Gray
but subject to change soon
Self
Defence Against Provoked Assault (s272)
Restrictive
rights of self defence for aggressor who started fight or provoked
an assault under (ss269-270)
which caused loss of self control (Prow)
as to force persons responsible for initiation or escalation of
conflict to make sacfrice to end it.
s272(1)
can use self defence where
there is a reasonable apprehension of death/GBH + reasonable
belief in no alternatives
s271(2)
self defence ≠ defence
where provoker inflicted/attempted to inflict violence which was
intended to kill/GBH
Further
restrictions: ≠ defence for person who previously tried to
kill attacker nor when the person using force declined further
conflict, and quitted or retreated as far as possible
Defence
of Property
Defence
of a Dwelling (s267)
s267
Lawful for person in peaceful possession of dwelling(s1)
to apply any degree of force if there is a belief on
reasonable grounds that:
the
person is attempting to enter or remain in the dwelling with an
intent to commit an indictable offence; and
it
is necessary to use that force
-
Dwelling: s1:
building, structure kept by owner/occupier for residence of
themselves, family, servants, immaterial uninhabited periods.
Buidling/structure adjacent, occupied w/ is dwelling if communication
btw there and dwelling immediate or by covered/enclosed passage
leading from one to other, not otherwise.
s327(3)
Setting of a man trap at
night to protect dwelling is okay
At
CL: killing in defence of dwelling not justified!
Defence
of Property
Can
defend property using as much force as is reasonably necessary
but not force amounting to GBH/death (if GBH occurs by accident
apply s23)
s274
Moveable property against
trespassers
s277
Premises against trespassers
– allows reasonable force to remove disorderly people
ss275,
278 possessor with
claim of right can defend even against person entitled to it
Mistakes
& Self Defence
Can
make mistakes when defending about: (1) whether an attack is taking
place; (2) whether the use of force is necessary/reasonable; (3)
whether the degree of force was necessary
If
mistake was reasonable s24
= MoF defence i.e. thought
force was ‘reasonably necessary’ (s271(1))
or felt a ‘reasonable apprehension’ of death/GBH
(s271(2))
Margin
of Error Doctrine person
under attack is not expected to measure to any degree of exactitude
the degree of force needed
reasonableness means roughly (Cadwallader)
Mistake
of Fact vs Mistake of Judgment
eg defending against wrong attacker (White
v Conway) – mistake of judgment ≠
mistake of fact
Mistake
on who the attacker was: White
v Conoway: person could be using self defence despite
striking wrong person bc of reasonable mistake of who attacker was +
then the 3rd party could also defende themselves bc
initial defensive fore would we excused but not justified
Battered
Woman Syndrome (BWS)
Argued
that woman’s actions are not reasonable as there could not
have been a reasonable apprehension of death/GBH (Lavallee)
But
a recognised psychiatric disorder of ‘learned helplessness’
in abusive relationships no
other way of resolving the predicament (Lavallee;
Osland)
Contextualise
the test (Lavallee)
what the accused reasonably
perceived given her circumstances (not an outsider)
Individualise
the test (Stingel –
Appellant killed man who was with boyfriend with a butcher knife.
Previous boyfriend had broken up with her and had threatened to
kill her etc if she left. Previously the person murdered had puched
the murderer. Later murderer saw murderee getting head from
girlfriend at which point the murderee told the murderor to piss
off. He forgot what happened till the knife was in murderees body.
Convicted.) compare
the woman with the reasonable battered woman
Now
also apply Mrzljak-supports
BWS- reduces standard of reasonable person to incorporate
relevant characteristics of the accused
Provocation
Provocation
as a Defence to Assault
Elements
– s269 Code-complete
defence
The
response must have assault as a legal element
of the offence (s269;
Kaporonovski)
– includes assault, AOBH (but not GBH, wounding, negl causing
harm)
The
prov. must be a wrongful act or insult –
s268(1)
s268(3)
– lawful acts cannot be wrongful acts/ insults
Stingel
only the “act”
had to be unlawful, doubt as to whether a mere “insult”
= sufficient provocation..
Buttergeig
words alone are never
sufficient for provocation as a defence to murder
Subjective
element (s269)
person must be deprived of self control + act on the
sudden before there is time for their passion to cool –
on impulse, without delay and with the temporary incapacity to make
moral choices (distinguish mere anger; revenge)
Objective
element (s268(1))
provocation must be likely to cause an ordinary person
to lose self-control to the extent that the accused did.
Obj.
element denies the defence to people prone to losing self control or
self induced states (eg intoxic.)
Go
to contextualisation/individualisation
Force
must not be disproportionate to the provocation –
s268(1)
Force
must not be likely to cause GBH/death – s268(1)
Effect of
Provocation Defence = complete defence s269(1)
Provocation
as a Defence to Murder
Elements
– s304 – This defence
also requires provocation of sufficient gravity that an ordinary
person could lose self-control – Stingel.
The courts have
indicated the words alone can only provide a defence in the most
extreme case – Leonboyer.
However, here the provocative words add to the effect of the conduct.
The
response must be an unlawfully killing which
ordinarily would constitute murder
i.e. intent to kill/cause GBH
Subjective
Element Response
must be in the heat of passion (loss of self control, not
mere anger or revenge) + before there is time for the persons
passion to cool (before there is time to regain self control)
Objective
Element Response
must be caused by sudden provocation
technical term import CL
meaning and objective characterisation: (Johnson)
Provocation
must be sufficient that the ordinary person could have lost self
control
Obj.
element denies the defence to people prone to losing self control &
self induced states (eg intoxic.)
Contextualise
the objective test by assessing the gravity of provocation
the ordinary person has the relevant characteristics and experiences
of the accused (Stingel –
Appellant killed man who was with boyfriend with a butcher knife.
Previous boyfriend had broken up with her and had threatened to kill
her etc if she left. Previously the person murdered had puched the
murderer. Later murderer saw murderee getting head from girlfriend
at which point the murderee told the murderor to piss off. He forgot
what happened till the knife was in murderees body. Convicted.)
consider past experiences and characteristics + cumulative
provocation - ‘straw breaking camels back’ scenario
(Stingel)
Individualise
the objective test by assessing the power of self control
the standard is the lowest power of self control within the range
which can be characterised as ordinary (Stingel)
relevant considerations = age (ordinary person 21 yrs old)
(Stingel),
gender- Cases on ‘battered women syndrome’
(Lavallee; Osland)
might also support a more flexible standard. Mental state
-Depression as element rejected in Holley.
Mrzljak
has concluded that objective tests should generally incorporate
relevant characteristics of the accused.
Effect
of Provocation Defence = partial defence to murder –
reduced to manslaughter – s304
3rd
Parties (applies to ss 269 & 304)
s268
– generalised insults may provoke 3rd parties where
retaliator is in immediate care/closely related to/employer of
original target – ordinary person test expanded
s269(1)
– assault must be committed on provoker
Self
Induced Provocation (applies to ss 269, 304)
s268(4)
bars defence for any person
who incited provocation in order to have an excuse for retaliation
Emergency
Elements
– s25
Emergency
defence subject to compulsion, provocation and self
defence s25
unavailable
Circumstances
of sudden/extraordinary emergency
Issue
of necessity or no alternative
emergency is more restrictive than necessity [doesn’t have to
be immediate – Re A
die in a couple of months](also Nugyen-recent
authority)
Act
must be proportionate to the emergency (Loughnin)
Ordinary
person with ordinary power of self control could not
be expected to act otherwise
Common
situations:
Emergency
as a defence to Homicide
Dudley
v Stephens – survival killings ≠ emergency
Re
A – conjoined twins case – H: ok to kill
weaker twin to give life to stronger twin – advantage to 1
twin, no corresponding disadvantage to weaker twin
Nolan
– conjoined twins case – it was necessary otherwise
death in 6 months but not an emergency at that point.
Medical Necessity (Surgical
Ops)
s282
not criminally
responsible for performing a surgical operation without consent
provided: (Nolan
– both would die if no surgery)
It
is conducted in good faith with reasonable care and skill,
and
no
defence for cases involving criminal neglig.
It
is conducted for the patient’s benefit
Nolan(application
to separate conjoined twins bc in best interest even if meant death
of one of them)
Does
this include alleviation of pain and suffering of dying or doomed
persons? OR
Upon
an unborn child for the preservation of the mother’s
life
Must
be a serious danger to the mothers life exceeding the normal dangers
associated with childbirth (Davidson)
Preservation
of mother’s life may include preservation of mental health
(Bourne) AND
It
is reasonable to perform operation in the
circumstances
Operation
must be reasonable and proportionate to the circumstances
Compulsion (Duress)
Physical
– the person is acting involuntarily – lack of will –
s23(1)(a)
Compulsion
by Threat (psychological)
s31(1)(d)
– permits acts performed to save oneself, another person, or
property of either, from “serious harm or detriment”
Threatener
must be in a position to carry out threat –
s31(1)(d)(i)
There
must be a reasonable belief in no alternative for escaping
the threat – s31(1)(d)(ii)
Offence
must be reasonably proportionate to the harm being threatened
– s31(1)(d)(iii)
Exclusions
murder, GBH, person involved
in a criminal enterprise (mafia) – s31(2)
Lack of Will
[applies to pulling trigger]
Involuntariness
Defence:
Willed
v Unwilled Conduct
Conduct
under conscious mental control (Falconer
– Mrs Falconer shot Mr Falconer who was a wife beater .
She loaded a shotgun and shot him.
)
An
unwilled act may come after a series of willed actions (Falconer
majority) (Murray
majority)
Negligence
causing unwilled conduct ≠ unwilled conduct – eg driving
when tired and falling asleep (Jimenez)
Examples
of Unwilled Conduct per s23(1)(a)
External
force eg deceased impaled
himself on accused’s knife (Ugle)
Reflexive
conduct fired gun after
being hit on the head (Murray
– Man shot another man to whom he had taken home (but did not
like). Wanted the deceased out of his house so got gun deceased then
struck him in the head after which the weapon discharged. Doubt as
to if he did get hit on the head, but he denied pulling the trigger
of the weapon. )
Automatism
the body acting separately
from the conscious mind – i.e. state of ‘dissociation’
(Falconer)
Automatism
caused by other factors
eg physical blow; extraordinary psychological blow causing normal
mind to dissociate, somnambulism – defence of lack of
will – s23(1)(a) [eg.
Psychological blow - Falconer]
Automatism
caused by insanity see
insanity defence – ss27; 647 [eg
Rabey if not enough to cause an ordinary person to dissociate]
-murzic
Automatism
caused by intoxication see
intoxication defence – s28
Burdens
of Proof
Presumption
of normal mental capacity (Bratty)
evident. burden on defence
to put matter in issue
Persuasive
burden on prosecution to prove
insanity (Falconer
– Mrs Falconer shot Mr Falconer who was a wife beater .
She loaded a shotgun and shot him. )
Insanity
General
Issues:
Presumption
of sanity (s26)
burden on accused on BoP
Insanity raised by
prosecution must prove on BoP
Insanity raised by
defence evidentiary burden
Accused must be
mentally fit to stand trial – separate trial if unsound mind
(s613)
Elements
– s27
Mental
disease or mental infirmity (Falconer)
Complete
deprivation of a specified capacity – s27(1)
Impaired
capacity is insufficient re
murder, impaired capacity = diminished resp.; re other offences,
impaired capacity = lack of intent (Hawkins)
McNorton
Rules:
1st
Arm Incapacity to
know what is being done – i.e. lack of intent due to
insanity
2nd
Arm Incapacity to
control conduct – i.e. automatism due to insanity;
unaware of what was being done (Falconer);
≠ irresistible impulse (9Falconer)
– must interfere with cognitive, not volitional capacity
M’Naghten Rules
Orthodox
test for insane automatism
Internal
cause = abnormal mind = insanity
External
cause (eg physical blow) on normal mind = lack of will
External
cause/warranted internal reaction (severe psychological blow
causing normal mind to dissociate) = lack of will
External
cause/unwarranted internal reaction (minor psychological blow where
normal mind would not dissociate) = insanity
Evidentiary
burden presumption of
voluntary conduct must be discharged to put automatism in issue
(Stone)
3rd
Arm Incapacity to
know that one ought not do the act – i.e. incapacity to
know the conduct was morally wrong by communal standards
(Stapleton)
eg: acting under divine
command
Effect
of Insanity Defence
Insanity
under 1st & 2nd Arm = special verdict
of acquittal on account of unsoundness of mind (s647)
– results in indeterminate detention as ordered by the
Governor in Council
Insanity
under 3rd limb = true defence
Diminished Responsibility
Partial
defence only – reduces murder to manslaughter –
s304A(1) – Milroy
depression = diminished responsibility
Burden
of proof on accused – s304A(2)
Elements
– s304A(1)
Abnormality
of the Mind
Similar
notion as to mental disease under s27(1)
Substantial
impairment of a capacity – Not total incapacity but
substantial impairment
Capacity
to know that one ought not to do the act
Expands
the scope of the defence under insanity
Capacity
to know what is being done
Redundant?
Murder would become manslaughter despite s304A(1) due to inability
to prove intent to kill or cause GBH
Capacity
to control conduct
Would
be important if ‘irresistible impulse’ interpretation
applied (Whitworth)
Intoxication
s28(1)-
unintentional intoxication
s28(1)
– Insanity provisions may apply to a person whose mind in
disordered due to unintentional intoxication.
s28(2)
– excludes intentional intoxication regardless of
whether the accused’s disordered mind resulted from
intoxication alone or other agents
For
s27 insanity to apply:
Intoxication
amounting to mental disease; and
Deprivation
(not impairment) of a specified capacity
Effect of
s28(1) = special verdict
per s647 (Kusu)
s28(3)-raises
doubt of intent
s28(3)
– where specific intent is an element of the offence,
intoxication may be invoked to decide whether the accused had
requisite intention- Kusu
Includes:
murder, intended GBH, stealing (might not have
noticed what a sober person would have noticed – Turner),
attempted offences (O’Regan).
Not:
manslaughter (O’Regan),
rape (Thompson),
GBH, wounding, assault, negligently causing harm
Intoxication
may be complete or partial – s28(3)
Intoxication
may be intentional or unintentional – s28(3)
those
unintentionally intoxicated may plead s28(3) as reduced conviction
may be more attractive than special verdict
Effect
of s28(3) = partial defence
lesser conviction
Inchoate Liability (Attempts)
Elements
– s4(1)
Intention
to commit an offence (can be inferred)
mental element
Must
intend to bring about all the elements of the complete offence or
have knowledge that these will follow (Willmot
– Guy tied sister in law to bed sheets and killed – D
argued not trying to kill her but did cause her death – D
argued that there is a distinction between desiring a result and
foreseeing it as likely to occur – D sucessful)
Immaterial
that some other state of mind would suffice for the complete offence
(AGs Ref No1 1977)
Conditional
intent (eg rape) where a
person does not care whether there is consent, there is a
conditional intention to proceed in the event that consent is
withheld (c/f: Evans
recklessness state of mind is
ok for circumstantial elements)
Commencement
of the commission of the offence by ‘means adapted to its
fulfilment’ + an overt act
Preparatory
acts ≠ attempts need
an act in furtherance to preparation and intention
Multifactor
approach to get correct outcome (Deutsch)
– problems with vagueness and restrictive nature:
‘Last
step’ test (rejected in Williams);
‘On
the job’ test (Campbell;
Henderson);
‘Proximity’
(close to completion – Deutsch);
‘Substantial
step’ (substantial progress made – Deutsch);
‘Unequivocality’
(unequivocal intention to commit offence – Williams)
Intent
not fulfilled
Reason
for non-fulfilment is immaterial but may influence sentencing
(s4(2)) reduces
max penalty for the attempt by ½ (voluntary desistance) –
s538
Factual
impossibility is irrelevant – eg insufficient dose of
poison in attempted murder –s4(3)
No
liability for legal impossibility (English)
Liability
s536(1)
– 7 years for terms of life imprisonment or >14 yrs
s536(2)
- ½ max penalty for full offence for any other crime
drugs
incur the same liability
Secondary Liability
Principal
= accused; Joint principal = 2 people committing an offence
equally (Jackson &
Hodgets); Secondary parties = accessories to
crime (no fault elements committed)
Aiding
– ss 7(1)(b), (c)
s7(1)(b)
– aiding by act or omission – covers situations where
aiding was frustrated but the offence was still committed
s7(1)(c)
– aiding another in committing an offence
Mental
Element
Accused
must knowingly aid
need proof of intention (Beck
(see above facts); Jervis)
Indeterminate
aiding:
Precise
details need not be known (Ancuta)
If
one person aids another, knowing that some offence will be
committed – they are liable for commission of any
alternatives (Maxwell; Kirby)
Conduct
Element
Aid
= give support, help, assist (Beck
– defacto girlfriend was with husband who abducted, raped
and murdered a 12 year old schoolgirl and assisted him, though she
did say cant we just leave her and go. The appellant drove while
her partner kidnapped the girl. When a dog started barking she
removed it. Though she did not directly partake in the activity, she
passively assisted.)
Mere passive
presence is not aiding (Coney)
must encourage or assist
(includes psychological) or calculated presence giving positive
encouragement (Beck)
Counselling
and Procuring – s7(1)(d)
Counselling
– inducing the offence by word or deed
Procuring
– intentionally causing the offence to occur (tricks; threats;
material inducements)
Mental
Element
counselling/procuring must be done knowingly (Maroney)
Still liable even
if offence committed is not the same as offence counselled
as long as what occurs is a probable consequence – s9
To
be a party to an offence of counseling, must have actually known
what other person would do – Beck.
Reason to suspect is not enough. However, it is sufficient to know
that the offence was one of a range that might be committed –
Maxwell. Arguably
must have known that they where encouraging the commission of
offences. If is immaterial which one happened to be committed.
Common
Purpose Rule – s8
Where
2 or more people form common intention to prosecute an
unlawful purpose, all participants are liable for any offence
committed by one of them
Consequences
must be probable
Probable
consequence = real or substantial possibility
Hind and Harwood
Objective test
actual foresight not required
(Stuart)
Different
Charges for Principal & Secondary Party – s10A
Aider/counsellor/procurer
may commit offence by principal or lesser alternative – s10A
Secondary
party liable for any offence that is a probable consequence of the
common purpose – s10A(2)-
Barlow:
(gym in the jail; some charged with murder, others with manslaughter
due to lack of common purpose: some had thought just GBH, others
intended to kill him);
Procurer may commit
greater offence than principal – s7(4)
eg principal may have diminished responsibility or 2nd
party forces principal to act
5.
'Timeous withdrawal’: no
code just C/L allowed to operate under s 7, Mennitti:
middle man in drug operation, M took K (undercover cop to
supply), whilst there suspicious of K and tried to persuade A
(supplier) not to go through with deal, A arrested, M argued that he
withdrew from the situation HELD: must be a completed
act, if you withdraw from act before completed may escape liability.
Though, you must do all you could to undo your "contribution".
M held liable b/c he didn't do all he could to "neutralise"
(totally) his acts.
Objective tests
See winner
in murder
With respect to the
power of self-control of the ordinary person, the general approach is
to adapt the relevant standard only for the age of the accused –
Stingel. [That is
just emergency & provocation I think ?]
No general principle
has yet been derived from these cases by the High court of Australia
but the Queensland court of appeal in Mrzljak
has concluded that objective tests should generally incorporate
relevant characteristics of the accused.
Apply Mrzljak
to any objective test, in all defences-provocation, crim
negligence, robbery emergency accident etc.
Fraud vs Stealing
Stealing
If taking (w/out some sort of
consent) or converting = stealing, (Can’t steal money because
possession = ownership UNLESS given instructions etc.)
Fraud
If trickery in being given, or
dealing with money or whatever
Hypo = insulin intake = external
(Hennessey)
Mrzljak
– Case decision notes:
WIDER
SIGNIFICANCE OF MRZLJAK
nThe
general principle
qPer
Kagan (NSCA) endorsed in Mrzljak at [88]
q“…on
the legal issues involving the apprehensions and beliefs of the
accused, the jury should consider whether the perception of the
accused was reasonable, given his “specific situation and
experience”
nApplications
qDefensive
force
qProvocation
qEmergency
qCriminal
Negligence
Is
Mrzljak correct?
nHolmes
J relies on Canadian authorities
qEg
Lavallee
qBut
Canada has flexible tests only for justifications and excuses
qCanada
has uniform test re criminal negligence – Creighton
nEnglish
authorities are confused
qHL
adopts flexible approach in Smith
qPC
reasserts uniform approach in Holley
nHigh
Court of Australia
qUniform
approach endorsed in Stingel (with exception for age re
provocation but not criminal negligence)
qBut
flexibility re BWS accepted in Osland
OPTIONS
FOR THE FUTURE
nRetain
uniform approach
nAdapt
objective tests for characteristics which do not relate to cognitive
powers (re eg mistake of fact, criminal negligence, self-defence) or
volitional powers (re provocation, emergency)
qEg
blindness/deafness/language difficulties but not intellectual
impairment/mental disorder
nAbandon
uniform approach and incorporate all relevant characteristics in
objective test.
1 comment:
you're my freakin hero!
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