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Criminal Law 2 (LAWS1011)

Summary

1. UNLAWFUL HOMICIDE..................................................................................................................4
1.1 PATTERNS OF HOMICIDE 5.1............................................................................................................4
1.2 AN ATYPICAL OFFENCE? 5.2...........................................................................................................4
1.3 THE LEGAL FRAMEWORK 5.4..........................................................................................................5
1.3.1 statutory provisions.................................................................................................................5
1.3.2 causation.................................................................................................................................6
1.3.3 constructive homicide..............................................................................................................7
1.3.4 voluntary manslaughter..........................................................................................................7
1.3.5 prosecution process.................................................................................................................7
1.3.6 sentence...................................................................................................................................7
1.3.7 debate about abolishing murder-manslaughter......................................................................8
1.4 MENS REA OF UNLAWFUL HOMICIDE.............................................................................................8
1.4.1 intent, reckless indifference 5.5...............................................................................................8
1.4.2 constructive murder 5.6..........................................................................................................9
1.4.3 manslaughter by unlawful act 5.7.........................................................................................10
1.4.4 manslaughter by criminal negligence 5.8.............................................................................11
1.4.5 corporate homicide 5.9.........................................................................................................12
1.5 ACTUS REUS OF UNLAWFUL HOMICIDE........................................................................................12
1.5.1 homicide by omission 5.10....................................................................................................12
1.5.2 causation 5.11.......................................................................................................................14
1.5.3 causation: medical treatment and euthanasia 5.12..............................................................18
1.5.4 definition of life.....................................................................................................................18
1.5.5 definition of death.................................................................................................................18
1.5.6 voluntariness.........................................................................................................................18
1.6 TEMPORAL CO-INCIDENCE OF MENS REA AND ACTUS REUS..........................................................19
2. DEFENCES........................................................................................................................................20
2.1 INTRODUCTION 6.1.........................................................................................................................20
2.2 MENTAL DEFENCES.......................................................................................................................21
2.2.1 Insanity 6.2............................................................................................................................21
2.2.1.1 procedure.....................................................................................................................................22
2.2.1.2 fitness to plead.............................................................................................................................23
2.2.1.3 forensic patients...........................................................................................................................23
2.2.1.4 summary proceedings..................................................................................................................23
2.2.1.5 involuntary committal..................................................................................................................23

2.2.2 Automatism 6.3......................................................................................................................23


2.2.2.1 what is a disease of the mind?......................................................................................................23
2.2.2.2 insane automatism........................................................................................................................23
2.2.2.3 sane automatism...........................................................................................................................24
2.2.2.4 case law........................................................................................................................................24

2.2.3 Substantial Impairment 6.4..................................................................................................25


2.2.3.1 abnormality of the mind...............................................................................................................26
2.2.3.2 underlying condition....................................................................................................................27
2.2.3.3 substantial impairment.................................................................................................................27
2.2.3.4 expert evidence............................................................................................................................27
2.2.3.5 sentencing....................................................................................................................................27

2.2.4 Infanticide 6.5.......................................................................................................................27


2.3 INTOXICATION 6.6..........................................................................................................................29
2.3.1 Part 11A................................................................................................................................29
2.3.2 common law..........................................................................................................................30
2.3.3 The reasonable person.......................................................................................................31
2.3.4 Intoxication and other defences............................................................................................31
2.3.4.1 insanity.........................................................................................................................................31
2.3.4.2 automatism...................................................................................................................................31
2.3.4.3 substantial impairment (diminished responsibility)......................................................................31
2.3.4.4 infanticide....................................................................................................................................31
2.3.4.5 provocation..................................................................................................................................31
2.3.4.6 self-defence..................................................................................................................................31
2.3.4.7 duress...........................................................................................................................................33
2.3.4.8 necessity.......................................................................................................................................33

2.4 PROVOCATION 6.7..........................................................................................................................34


2.4.1 history....................................................................................................................................34
2.4.2 s 23: trial for murder provocation.....................................................................................34

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Criminal Law 2 (LAWS1011)

Summary

2.4.3 provocative conduct/circumstances......................................................................................35


2.4.4 subjective test: time & loss of self-control ...........................................................................36
2.4.5 objective test: the ordinary person ..................................................................................36
2.5 SELF-DEFENCE 6.8.........................................................................................................................38
2.5.1 statutory defence of self-defence...........................................................................................38
2.5.2 old common law....................................................................................................................41
2.5.2.1 a subjective or objective test? ......................................................................................................42
2.5.2.2 defence of property......................................................................................................................42
2.5.2.3 Battered Woman Syndrome (BWS).............................................................................................42

2.6 NECESSITY 6.9...............................................................................................................................44


2.6.1 prison escapes ......................................................................................................................44
2.6.2 strict liability ........................................................................................................................45
2.6.3 political protest ...................................................................................................................45
2.6.4 regulation of abortion ..........................................................................................................45
2.7 DURESS 6.10..................................................................................................................................46
2.7.1 elements of duress ................................................................................................................46
2.7.2 the objective test: the person of ordinary firmness of mind .............................................47
2.7.3 duress & murder ..................................................................................................................48
2.7.4 duress & battered woman syndrome.....................................................................................48
3. ASSAULT...........................................................................................................................................49
3.1 INTRODUCTION 7.1.........................................................................................................................49
3.2 COMMON ASSAULT........................................................................................................................49
3.2.1 assault...................................................................................................................................49
3.2.1.1 actus reus ....................................................................................................................................49
3.2.1.2 mens rea.......................................................................................................................................50

3.2.2 battery...................................................................................................................................50
3.2.2.1 actus reus.....................................................................................................................................50
3.2.2.2 mens rea.......................................................................................................................................51

3.2.3 coincidence of actus reus & mens rea...................................................................................51


3.2.4 case law.................................................................................................................................51
3.3 AGGRAVATED ASSAULT 7.3..........................................................................................................52
3.3.1 with further specific intent....................................................................................................52
3.3.2 causing particular injuries....................................................................................................52
3.3.3 on victims of special status....................................................................................................53
3.3.4 using offensive weapons or dangerous substances...............................................................53
3.3.5 in combination with other offences.......................................................................................53
3.3.6 with a sexual component.......................................................................................................53
3.4 CONSENT TO HARM 7.4.................................................................................................................54
3.5 ACCEPTABLE VIOLENCE 7.5..........................................................................................................55
3.6 PATTERNS OF VICTIMISATION 7.6.................................................................................................55
3.7 DOMESTIC VIOLENCE & LEGAL CHANGE 7.7...............................................................................55
4. SEXUAL ASSAULT..........................................................................................................................56
4.1 INTRODUCTION 7.8.........................................................................................................................56
4.2 THE MENTAL ELEMENT 7.9...........................................................................................................56
4.2.1 subjective knowledge of lack of consent................................................................................56
4.2.2 recklessness...........................................................................................................................57
4.3 ACTUS REUS ISSUES 7.10..............................................................................................................57
4.3.1 definition of sexual intercourse.............................................................................................60
4.3.2 consent...................................................................................................................................60
4.3.3 consent induced by force.......................................................................................................60
4.3.4 consent induced by fraud & mistake.....................................................................................61
4.3.5 feminist perspective...............................................................................................................61
4.4 INDECENT ASSAULT 7.11...............................................................................................................62
4.5 ACT OF INDECENCY 7.11...............................................................................................................63
4.6 HOMOSEXUAL OFFENCES 7.12......................................................................................................64
4.7 PROSECUTION OF SEXUAL ASSAULT 7.13.....................................................................................64
4.8 PROVING NON-CONSENT 7.14........................................................................................................64
4.8.1 delay in complaint.................................................................................................................64
4.8.2 abolition of requirement for a corroboration warning to jury.............................................65
4.8.3 communications privilege.....................................................................................................66

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Criminal Law 2 (LAWS1011)

Summary

4.8.4 admissibility of evidence of sexual experience & reputation................................................66


4.8.5 the stay development.............................................................................................................67
4.9 CHILD ABUSE & SEXUAL ASSAULT 7.15......................................................................................67
5. DISHONEST ACQUISITION..........................................................................................................68
5.1 INTRODUCTION 10 1.......................................................................................................................68
5.2 LARCENY 10.2...............................................................................................................................68
5.3 OTHER NSW OFFENCES 10.3........................................................................................................68
5.4 TECHNOLOGY & WHITE COLLAR CRIME 10.7.4...........................................................................68
5.5 ROBBERY, BURGLARY & BLACKMAIL 10.8...................................................................................68
5.6 RECEIVING, PROCEEDS OF CRIME 10.9..........................................................................................68
6. EXTENDING CRIMINAL LIABILITY.........................................................................................69
6.1 INTRODUCTION 11.1.......................................................................................................................69
6.2 ATTEMPT 11.2................................................................................................................................69
6.2.1 introduction...........................................................................................................................69
6.2.2 mens rea................................................................................................................................70
6.2.3 actus reus..............................................................................................................................70
6.2.4 impossibility..........................................................................................................................71
6.3 CONSPIRACY 11.3..........................................................................................................................73
6.3.1 introduction...........................................................................................................................73
6.3.2 elements.................................................................................................................................74
6.3.2.1 existence of the agreement...........................................................................................................74
6.3.2.2 convictions of individuals for conspiracy.....................................................................................74
6.3.2.3 impossibility................................................................................................................................74
6.3.2.4 scope of the agreement.................................................................................................................75

6.3.3 controversies surrounding conspiracy..................................................................................75


6.3.3.1 relevant unlawful acts...............................................................................................................75
6.3.3.2 rationale for the offence of conspiracy.........................................................................................75
6.3.3.3 politically motivated prosecutions................................................................................................75
6.3.3.4 procedural and evidentiary advantages.........................................................................................76

6.3.4 future of conspiracy...............................................................................................................76


6.4 COMPLICITY 11.4...........................................................................................................................76
6.4.1 introduction...........................................................................................................................76
6.4.2 joint criminal enterprise........................................................................................................76
6.4.3 accessorial liability...............................................................................................................76
6.4.3.1 conduct amounting to secondary participation.............................................................................76
6.4.3.2 mental element for accessorial liability........................................................................................76
6.4.3.3 implications of derivative liability: innocent agency....................................................................76
6.4.3.4 withdrawal...................................................................................................................................76

6.4.4 doctrine of common purpose.................................................................................................76


6.4.4.1 what must be foreseen?................................................................................................................76
6.4.4.2 relationship between joint criminal enterprise and common purpose...........................................76

6.4.5 accessory after the fact..........................................................................................................76


7. SENTENCING & PENALITY.........................................................................................................78
7.1 INTRODUCTION 12.1.......................................................................................................................78
7.2 JUSTIFICATIONS FOR PUNISHMENT 12.2........................................................................................78
7.3 DEVELOPMENTS INCONSISTENT WITH JUST DESERTS 12.3...........................................................78
7.4 JUDICIAL RESISTANCE 12.4...........................................................................................................78
7.5 PENALITY & CRIME PREVENTION 12.5..........................................................................................78
7.6 VICTIM PARTICIPATION 12.6.........................................................................................................78
7.7 JUDICIAL APPROACHES TO SENTENCING 12.7...............................................................................78
7.8 APPELLATE REVIEW 12.8..............................................................................................................78
7.9 SENTENCING OPTIONS 12.9...........................................................................................................78

C=casebook: Criminal Laws


N=notes
U=UTS (Cavendish) crib
H&J=Howie & Johnson

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Criminal Law 2 (LAWS1011)

Summary

1. Unlawful Homicide
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 kill
o intent to cause GBH
o reckless indifference to human life (subj. foresight of probability of
death) (Crabbe; Solomon)
o constructive murder (Ryan)
manslaughter: s 18(1)(b) common law
o 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]
[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
o most murderers are men (male-to-male confrontational violence)
o when women kill/are killed it is domestic
o when men kill/are killed its 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]
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Criminal Law 2 (LAWS1011)

Summary

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 provisions


s 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 theres 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 provocation
o substantial impairment (a.k.a. diminished responsibility)
o excessive self-defence
o infanticide
involuntary manslaughter (lacks mens rea for murder) [objective test:
reasonable person]
o manslaughter by an unlawful & dangerous act
o 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])

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Criminal Law 2 (LAWS1011)

Summary

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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Criminal Law 2 (LAWS1011)

Summary

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 provocation
o substantial impairment (a.k.a. diminished responsibility)
o excessive self-defence
o 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 persons 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
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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Criminal Law 2 (LAWS1011)

Summary

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 culpabilitymurder/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 Aust
UK
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 GBHimputed 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 arteries
ratio likely = probability (in a jury direction)
dissent Brennan J: probability good chance
note overturned in Royall (though not expressly overruled)
Annakin (1988,NSWCCA) [C.526] [N.15]
ratio ignores Bougheys loose test & applies strict Crabbe test
note 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))
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Criminal Law 2 (LAWS1011)

Summary

approves Annakin rather than Boughey (though doesnt 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]. Its still possible to negative the actus reus of
murder.
does not exist in the common law of the UK (Pagett [C.594])
facts

issue
ratio
held

Ryan v R (1967,HCA) [C.530] [N.16]


- 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 Vs sudden movement
did D have mens rea for murder? (He contended that it was manslaughter by
dangerous and unlawful act).
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.
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 mans death
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.
legislation s 95=robbery with violence
s 96=where in commission of this offence, wounding occurs, penal
servitude for life

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Summary

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
accuseds positionwould 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. Ds 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 Ds 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: - approved decision of Smith J in Holtzer and articulated test to
Mason CJ, be an appreciable risk of serious injury.
Toohey, Gaudron - rejected English line of authority in Church and Newbury that
and McHugh JJ there had to be an appreciable risk of some harm, albeit not
serious harm
minority: - held that manslaughter by an unlawful act required proof of
Brennan, Deane existence, objectively determined of the likelihood or risk of
and Dawson JJ 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 accuseds 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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Summary

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]. Its 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)
issue essentially, 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 Atkins speech in Andrews v DPP.
- a high degree of negligence is required: the negligence 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.
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Criminal Law 2 (LAWS1011)


note

Summary

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 omission
o 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.
- Ss eccentric sister F came to live with them.
- 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 didnt
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 care
3. by reason of such negligence the person died
reasonin - The court rejected the proposition that D was entitled to do nothing and
g distinguished this situation from that of a drowning stranger. D did make
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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 Rs 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 wasnt 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 V
2. Ds omission was the proximate cause of Vs death
3. Ds omission was conscious & voluntary, without any 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 Ds 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 murder
issue whether Vs 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) Ds conduct induced in V a well-founded apprehension (fear) of
physical harm? and
(ii) Vs response (to seek escape) was reasonable? (i.e. V did not
over-react)
YES: Ds conduct caused Vs injury (i.e. Vs conduct was not a
novus actus interveniens negativing causal connection between Ds
conduct & Vs injury)
2. P must prove (BRD) Ds action caused the act of escape or selfpreservation
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
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 Ds
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 Vs 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 Jehovahs Witness & refused a blood transfusion
- D appealed this conviction for manslaughter (for diminished
responsibility)
issue whether Vs 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 Vs death? The answer is the stab wound. Vs
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
Ds act need not be the sole cause, or even the main cause, of Vs death
it is enough that Ds act contributed significantly to Vs 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 Vs death.
o however, a reasonable act performed (by a 3rd party) for the purpose
of self-preservation, being an act itself caused by Ds 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 tests
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issue does 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 Georges 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 care
o no prospect of improvement
o nothing else doctors can do
o family consents
o in the patients 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; and
o 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; and
o it has an existence separate & independent of its mother:
child is fully extruded from its mothers 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 persons brain; or
o irreversible cessation of circulation of blood in the persons body.
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]
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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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Summary

2. Defences
2.1 Introduction 6.1
[C.607-13] [N.30-2]
a criminal offence = ar + mr + defences
o 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)

a true criminal defence requires D to discharge the evidentiary burden


o 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 culpabilitymurder/manslaughter
[C.613]

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2.2 Mental Defences


2.2.1 Insanity 6.2
[C.613-37] [N.32-5,37] [U.76,179,191]
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: (MNaughten)
(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 Ds 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)
MNaughtens 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 Ds 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 asylum
note see [U.182-6] for a more detailed examination of the elements of this test
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?
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D must prove insanity on the balance of probabilities (contra


Woolmington)
jury only concerned with Ds state of mind at the time of the act, not
before or after
insanity is not: excitability, passion, stupidity, obtuseness, lack of selfcontrol, 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)

ratio

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


obiter 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?
ratio P must prove on balance of probabilities (just like D)
dissent Woolmington 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 governors pleasure)
automatic retention: men in Long Bay, then Morriset; women in
Cumberland Hospital
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Summary

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. MNaughten rules & insanity procedures apply.
special verdict & indefinite detention
2. sane automatism: not (1)
complete defence

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 Ds mental state triggered by an internal or
external factor? If internal, then disease of the mind. (Falconer)
3. unsound/sound mind: was Ds 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))

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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 attack
o 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 law


Bratty v AG for Northern Ireland (1963,UKHL) [C.638] [N.38-9]
issue what is the standard of proof required when P raises insanity?
ratio automatism is available as a defence to all criminal offences
(per an involuntary act is one done by the muscles without any control by
Lord
the mind, such as a spasm, a reflex action or a convulsion; or an act
Denning
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
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issue
ratio

dissent

note

Summary

appealed to HCA.
did the act of shooting occur independent of Ds will?
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 verdict
NO: D is criminally liable
expert evidence is important to help jury decide whether D is feigning
a dissociative state (in order to catch a pathological D)
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; and
2. 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 minds strength is below that standardmind is infirm;
o if the minds strength is below that standardmind is sound/sane
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 Vs 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 Ds capacity to:
(i) understand events; or
(ii) judge whether Ds actions were right or wrong; or
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(iii)

Summary

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
persons capacity to understand events, or to judge whether the
persons actions were right or wrong, or to control himself or herself,
was substantially impaired by an abnormality of mind arising from an
underlying condition, and
(b) the impairment was so substantial as to warrant liability for murder
being reduced to manslaughter.

2.2.3.1 abnormality of the mind


examples:
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 MNaghten; 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 Js 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
should have been left to the jury
ratio
a state of mind so different from that of ordinary human beings that the
reasonable man would term it abnormal. it covers the minds
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 Ds abnormality of mind was so substantial as to impair his
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Summary

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 stages
o not temporary intoxication
o 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 persons 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 payment
held: 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 again
held: when it comes to sentencing recidivists, the scale tips in favour of
protecting society

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)

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Page 28 of 78

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Summary

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

2.3.1 Part 11A


s
428A

description
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 involuntary
o results from fraud, emergency, accident, reasonable mistake,
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428B
428C

428D

428E

428F
428G

428H

Summary

duress or force
o was a prescription or non-prescription drug taken in accordance
with instructions
(table of) offences of specific intent to which Part 11A applies
(2) the tabled offences are not exhaustive
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)
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 rea
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 manslaughter
intoxication in relation to the reasonable person test
the mind of the reasonable person is not intoxicated
intoxication and the actus reus
self-induced intoxication cannot be pleaded when negativing voluntariness
(automatism)
however involuntariness is available if Ds intoxication was not selfinduced
common law relating to self-induced intoxication is abolished

2.3.2 common law


Majewski (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 OConnor
re-instated in NSW in 1996: Part 11A
OConnor (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 couldnt form intent
note
overruled in NSW in 1996: Part 11A
criticised as a drunks charter

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Summary

2.3.3 The reasonable person


s 428F states that the reasonable person of an objective test should not share
Ds 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 wont pass the
MNaughten test.
however if it triggers an underlying disease of the mind then insanity is
available (AG v Gallagher).

2.3.4.2 automatism
s 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 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: selfinduced 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!!!

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Summary

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 persons belief, but rather the accuseds 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
Ds 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 (selfdefence)?
held: Conlon & Zecevic no longer the law in NSW (because of new statutory
provisions) [22]
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 Ds
response.
intoxication is relevant when:
o considering matter of necessity: whether D genuinely believed
conduct was necessary; and
o considering matter of circumstances as D perceived them
o but not when considering proportionality: whether Ds 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
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notes:

Summary

circumstances) as subjectively perceived by D.


this is not authority: its 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 Ds 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
Ds 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,
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 thats objective then s 428F
might apply
in Rogers D must honestly & reasonably believe in the necessity of Ds
actions. But the reasonable belief is Ds, not the ordinary persons (Conlon
(per Hunt CJ) makes this point about Zecevic; remember that Rogers decision
adopts Zecevic test)

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Summary

2.4 Provocation 6.7


[C.681-726] [N.49-60]

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 Ds circumstances could also have lost selfcontrol & 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 Ds characteristics
(Green)
(b) loss of self-control: ordinary person only shares Ds 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)

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 honour
o 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 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
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Summary

(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/circumstances


Davis (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 Vs
conduct not the report of Vs 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
R v Lees (1999, NSWCCA) [C.688-92] [N.52]
facts: - V made remarks about suicide of Ds 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
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Summary

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 malecentred defence. But, statistics show that 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 Ds 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 Ds youthful
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notes:

Summary

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 person
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 Ds 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
Ds ethnicity or cultural background.
rationale: real equality before the law demands that minorities not be
measured against the standards of the dominant culture.
notes: McHugh Js 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? etc
o 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 Ds special sensitivity to sexual assault be shared by the ordinary
person of the 1st limb of the Stingel test?
held: yes: Ds 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 & Vs persistent homosexual
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:

dissent:

notes:

Summary

advances evoked Ds 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 Ds 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
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 Ds special
sensitivity to (heterosexual) sexual assault
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
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]

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 Ds conduct a reasonable response to the danger, as s/he
perceived it to be? (objective test of proportionality with reference to
Ds 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)
NOTE: ss 418-423 now replace common law in NSW

2.5.1

statutory
defence of self-defence

Crimes 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]
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s

418

419

420

421

422
423

Summary

description
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
(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.
onus of proof
P must prove beyond reasonable doubt that D did not carry out the conduct in
self-defence
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))
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)
response to lawful conduct
self-defence still available if:
(a) Vs conduct is lawful
(b) V not criminally responsible for conduct to which D responds
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 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
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obiter:

notes:

Summary

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) Ds 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 Ds
response.
intoxication is relevant when:
o considering matter of necessity: whether D genuinely believed
conduct was necessary; and
o considering matter of circumstances as D perceived them
o but not when considering proportionality: whether Ds 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. Ds assessment of circumstances (as s/he perceived them)
2. Ds assessment of the necessity to respond in those circumstances
3. objective assessment of whether Ds response was proportional
in those circumstances (as perceived by D, not as they objectively
were)
NOTE: this is very similar to Mason Js 6-point direction in Viro
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.
this is not authority: its just jury directions of a single trial judge in
NSWSC (Howie J)
poorly expressed reasons for directions
intoxication
o in Conlon [C.740] Hunt CJ stated that intoxication is relevant in
assessing reasonableness of Ds 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 Ds 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))
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Summary

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


NOTE: old common law [C.726-61]
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)
defence
ratio: Mason Js 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 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 Ds 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 Ds 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
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dissent:

notes:

Summary

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)
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
two main differences with Viro. In Zecevic:
1. provocation need not be an unlawful attack
2. 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.
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 Ds 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 persons belief, but rather the accuseds
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) doesnt 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]
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Summary

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 its better to get up on this than
on provocation, which is a partial defence).
BUT note that s 421 has re-introduced excessive force, so jury could
decide on partial self-defence for BWS cases occasioning death.

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Summary

2.6 Necessity 6.9


[C.761-88] [N.69-73]
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/s
2. 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)
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 murder
reasoning pure policy:
:
o cannot preserve your own life by taking the life of an innocent
o to preserve ones 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 necessity to
jury
ratio: whether D honestly believed on reasonable grounds that escape from
prison was necessary in order to avoid threatened death or serious injury
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Summary

(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 quashed
ratio: 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: - 15 y.o. plaintiff, a ward of the state, wishes to have an abortion
- Minister (D), plaintiffs 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
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 womans 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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Summary

2.7 Duress 6.10


[C.788-807] [N.73-4]
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/s
o circumstances where person of ordinary firmness would have yielded as
D did
o threat was present, continuing, imminent & impending
o D reasonably apprehended that threat would be carried out
o 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 manslaughter
o 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)

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 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
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Summary

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) Ds 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
(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 dismissed
notes: court misunderstood the Ds defence. Court thought that Ds were
asking to be tried by customary law. In fact they were raising the
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Summary

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 syndrome


Runjanjic & 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.
reasoning 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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Summary

3. Assault
ABH=actual bodily harm; GBH=grievous bodily harm
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 consent
2. 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-incidence
a. mens rea and actus reus must coincide.

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 contact
o 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
o silent phone calls (Ireland & Burstow)
note: s 562 deals with stalkers who make silent phone calls
o words alone (Barton v Armstrong)
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Summary

o conditional threats (Rosza v Samuels [U.94] [N.77])


o spitting (DPP v JWH)
o cf. [C.82] (last page) for more
o an omission (Fagan)
state of mind of the victim
o 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 consent
o 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
cannot consent to ABH (Brown) 1
o following assume an implied consent:
1

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

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Summary

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 law


Zanker 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 mates 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 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
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Summary

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 policemans 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 intent


P must prove further specific intent
Examples:
s
description
27-29
assault with intent to commit murder
33-33B 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 injuries


3 basic categories:
ABH: any hurt or injury calculated to interfere with the health or comfort of
the prosecutor. Such hurt or injury need not be permanent but must, no
doubt, be more than merely transient and trifling Donovan (1934)
o physical injury
o 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 wounding
o 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)
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Summary

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 status


s
42
43
44
56
57
58
60
206
326

offence
children at birth
exposing or abandoning a child (<2yo)
assauling wives, children
priests
people helping ships in distress
assault of police officer (cf Reynhoudt below)
assaulting, stalking, intimidating a police officer
aircraft crew
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 duty
issue does 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 established
Vic 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 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 offences


ss 94-98: robbery=assault + larceny
ss 89-90A: kidnapping=assault + false imprisonment

3.3.6 with a sexual component


ss 61I-61J: sexual assault & aggravated sexual assault

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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
reasonin
lawfully recognised exceptions, inter alia:
g
o surgery
o boxing
o contact sports
o lawful correction (hitting children)
o manly pastimes
note
three appealed to European Court of Human Rights- unsuccessful.
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 wifes 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 its
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 immaterial
note pre-Brown
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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 confrontation
2. domestic violence
3. indigenous communities
alcohol is the biggest contributor to violence
4 structural factors:
1. gender
2. age
3. socio-economic status
4. 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
sexual assault
61I
indecent assault
61L
act of indecency 61N

aggravated
61J
61M
61O

circumstances of aggravation:
factor s 61J
inflict ABH
a
threaten to inflict ABH with weapon
b
in company
c
V <16yo
d
V under authority of D
e
V has a serious physical disability
f
V has a serious intellectual disability
g

description
sexual intercourse without consent
touching
no touching (e.g. flashing)

s 61M

a
b
c
d
e

s 61O

b
c
d

s 61JA (Oct 2001): aggravated sexual assault in company


o 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]
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)

4.2.1 subjective knowledge of lack of consent


DPP v Morgan (1976,UKHL) [C.424-431] [N.92]
facts: - airman invites 3 friends home to have sex with his 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 didnt believe D when he said I
thought she was consenting, so D was convicted)
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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 recklessness
Hemsley (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: no
ratio: 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;
AND
determined 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
(b) D failed to advert to possibility that V was not consenting.
held: appeal dismissed
note: this is a different standard from Crabbe recklessness in which
probability is required, not possibility.
legislation: recklessness = presumed consent
s 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]

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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)

4.3.1
d

efinition of sexual intercourse


s 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 wherecarried 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 consent
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 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 force


Clarke (1998,NSWCCA) [C.889] [N.95]
facts: - prison rape
- D tells V that others wanted him (threat emanating from others)
- 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 consent
s
61R(2):
consent is vitiated (invalidated) when:
legislation:

(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

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4.3.4 consent induced by fraud & mistake


Article/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 Ds 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
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 perspective


Article/Author: Jann Matlock, Scandals of Naming (1993) [C.894]
How do we exchange a system where a womans word is
distrusted simply because shes 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 womens
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 womans point of view rape is not prohibited, but
rather it is regulated
rape is an act of subordination of women to men
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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? mens. Whose standards of reasonableness is
used? mens.
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 nonviolent
the two views are incompatible & debate 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]
7.11.1 indecent assault
AR:
(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)

Fitzgerald v Kennard (1995,NSWCA) [C.898-900] [N.98]


facts: - D was a visiting electrician who rubbed Vs 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 didnt 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
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advert to the possibility of consent constitutes recklessness (i.e.


prosecution only has to prove non-advertence)
- 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 Vs leg was the assault & the moving hand
towards Vs 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 personassaults 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]
7.11.2 act of indecency
AR:
act of indecency with or towards another person
(s 61N)
MR:
intent or recklessness (?)
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 that invitation
to girl to touch Ds penis was not an indecent assault because V
touched D not vice versa
DPP v Rogers (1953,UK) [C.900] held that Ds 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
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- 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 intercourse
s 78H: with male under 10
s 78H: with male between 10 & 18
s 78K: by teacher, father or step-father
s 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 20% of NG pleas convicted of s 61I (sexual assault)
in 1999: 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 42% of NG pleas convicted of s 61L (indecent assault)
1999: 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 64.2% overall conviction rate (guilty & not guilty pleas) for s
comparison: 61L (indecent assault); compared to
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 complaint


Davies (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 Vs credibility re:delay
legislation: Criminal Procedure Act 1986 (NSW) s 107
if 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))
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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 jury


Longman (1989,HCA) [C.909] [N.100]
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 corroborated
s 164(3): trial judge need not warn jury that it is dangerous to act on
uncorroborated evidence
s 165: trial judge, if requested, must give warning that some evidence
(e.g. hearsay, admissions) might be unreliable
ratio:

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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 Wigmores 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 doesnt
fidget, then her allegation is not genuine.

4.8.3 communications privilege


legislation: Criminal Procedure Act 1986 (NSW) [C.915] [N.103]
s 149: absolute privilege at bail & committal proceedings for records
of Vs counselling treatment
s 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 accuseds counsel [C.922]
Kumar & Magner [C.919-22] argue for s 409B
cf next table (the stay development) for more criticism
legislation: 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 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 crossexamine V, then V can be cross-examined under conditions set out in
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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 development


R 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
offence
66A
sex with child <10yo
66C(1)
sex with child between 10-16
66C(2)
sex with child between 10-16 & V under authority of D
77(2)
consent no defence in some cases
68EA
persistent sexual abuse of a child (3+offences)
73
carnal knowledge with a teacher
78A
incest
78H-78N homosexual offences (78H,78J,78K,78N)
66F
sex with intellectually disabled
578B
possession of child porn
578C
publishing child porn
50BA
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 cant 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
GROUP

TIME (past)
attempt

conspiracy

complicity

6.2 Attempt 11.2


[C.1260-78] [N.130-2]
P must prove BRD that: (Britten v Alpogut)
1. D had at all material times the mens rea to commit substantive offence;
and
2. 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)

6.2.1 introduction
P must prove BRD that: (Britten v Alpogut per Murphy J [C.1276])
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1. D had at all material times the mens rea to commit substantive offence;
and
2. 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 heart
2. 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 offence
o except attempted murder (ss 27-30) 25 yrs, not life
debate about attempt/completed offence distinction
o Gibbs Report says abolish attempt & charge attempt as commission
o MCC says keep attempt separate

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 murder
issue: can D be charged with attempted murder if he didnt have intent to
murder at the time to fired the gun?
held: no attempted murder requires intention to commit the complete
offence
note: 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 weve 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)
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o unequivocal test: does conduct unequivocally indicate an intention to


commit the offence? (Barker)
o proximity test: (Eagleton) 3 dimensions constitute attempt
1. 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 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
attempt
o 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.
Pages 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 sufficient
ratio 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 rea
(b) D performed some act going beyond mere preparation
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note

Summary

police entrapment (cf conspiracy & impossibility below)

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6.3 Conspiracy 11.3


[C.1278-1323] [N.134-39]
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 (OBrien), 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 negligently
o 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]
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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 (OBrien)
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]
OBrien (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 conspiracy


There 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 Ds co-conspirator is in fact an undercover police officer who entraps
D (Yip Chiu-Cheng) [C.1287]
where Ds co-conspirator is given immunity from prosecution in exchange for
giving evidence
even if Ds co-conspirator is acquitted at trial (Darby) [C.1288]
Darby (1982,HCA) [C.1288] [N.134-5]
facts - Ds co-conspirators conviction for conspiracy was quashed
- 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 acquitted
dissent Murphy J (strong consent)
essence of conspiracy is agreement
the traditional rule that a conviction cannot be sustained if coconspirator is acquitted should stand
one guilty, one innocent: it offends commonsense to have a
contradictory verdict

6.3.2.3 impossibility
Barbouttis, 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
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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 conspiracies
ratio D cannot be found guilty of a conspiracy different from the one
charged
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


courts 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

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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

6.4.1 introduction
6.4.2 joint criminal enterprise
6.4.3 accessorial liability

6.4.3.1
6.4.3.2
6.4.3.3
6.4.3.4

conduct amounting to secondary participation


mental element for accessorial liability
implications of derivative liability: innocent agency
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?
counselling
or procuring
did D have agreement
with P1 to commit this
offence? (Tangye)

principal in the
1st degree

accessory
before the fact

joint criminal
enterprise
(Osland)

aiding &
abetting

principal in the
1st degree

principal in the
2nd degree

assisting P to
escape capture
accessory after
the fact

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): SP1
2. 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

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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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