Criminal Law Summary - The Uni Tutor



Criminal Law Summary

Classification of Crimes and Proof

• defences – common law states have defences are established at common law

• felonies and misdemeanours – felonies are serious offences warranting penal servitude – misdemeanours are less serious offences warranting punishment – there is little difference

• indictable and summary offences – indictable offences (serious) are heard in higher courts, there is a committal proceeding to determine whether there is sufficient evidence to go to trial and a judge decides questions of law whilst a jury decides questions of fact – summary offences (less serious) are heard by lower courts, the judge decides questions of law and fact, can only be created by parliament and there is a lesser penalty but a greater chance of conviction than an indictable offence – indictable offences are heard by juries to protect people from the arbitrary exercising of state power

• procedure – we look to the Crimes Act for an offence, find the relevant section of the Act and then study case law for the common law definition – the Crimes Act overrules common law

• burden of proof – is on the prosecution beyond a reasonable doubt – in Woolmington [1935] AC 462 (the golden thread), the judge stated “if…there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner…the prosecution has not made out the case and the prisoner is entitled to an acquittal” – the beyond a reasonable doubt standard is derived from this case – the prosecution must prove all elements of the crimes beyond a reasonable doubt – voluntariness and sanity are presumed – the defences of provocation, self-defence, necessity and duress can be used after the defence admits to the crime, who must then satisfy the evidentiary burden with evidence showing a possibility of facts supporting the defence – if evidentiary burden is not satisfied, the defence will be excluded – if satisfied, the prosecution must disprove the defence beyond a reasonable doubt – the common law exception is insanity, the burden on the defence on the balance of probabilities (Sodeman (1936) 55 CLR 192) – in Ayoub (1984) 10 A Crim R 312, the prosecution was able to argue insanity on the balance of probabilities – statutory exceptions are s23A for substantial impairment of mind, s417 for lawful authority or excuse and s77 for unlawful sexual intercourse

Elements of a Crimes

• there is an assumption that there is a need to act with criminal intent for an offence to have occurred – the prosecution needs to prove actus reus, mens rea and the coincidence of actus reus and mens rea

1. Actus Reus (Conduct Element)

• can be the guilty act itself, a failure to act (in homicide but not assault and there must be a legal duty established), a person’s status (a liquor licence holder is liable for the underage serving of alcohol) or the victim’s state of mind (victim must feel fear for an assault)

• voluntariness – is a requirement of every crime, the prosecution entitled to presume it (Falconer (1990) 171 CLR 30 presuming “all persons have the capacity to control their actions unless they be of unsound mind”) – it is rarely raised by the defence, but when it is, the defence must satisfy the evidentiary burden, with the prosecution having to negative involuntariness beyond a reasonable doubt – it effectively operates as a defence – it is defined as a “conscious” act that is “willed” – examples of involuntariness are sleep walking, hypnosis, an instinctive reaction, epileptic fits and muscular spasms

• causation – deals with whether or not the accused caused the crime – Ryan (1967) 121 CLR 205 established that whilst the choice of what act caused death rests with the jury, it was held “impossible to isolate the act of pressing the trigger from the other circumstances, and argue that it, alone, caused the wounding and death” – the act of entering the petrol station satisfied actus reus

2. Mens Rea (Fault Element)

• intention is a decision to bring about an event, with there being no separate legal definition for it – inseparable intention is where the intent to cause one act (blowing up a plane) has so close an effect to cause another (killing the passengers) that separate mens rea is not necessary to prove

• recklessness – where “a person who…does an act knowing that it is probable that death or grievous bodily harm will result” (Crabbe (1985) 156 CLR 464 – the accused ram raided a bottle shop he believed to be empty, thus, he did not think it was “probable” that he would have killed anyone) – for every other offence, the recklessness definition substitutes “possible” for “probable” (Vallance (1961) 108 CLR 56)

• negligence – an objective state of mind, whereas intention and recklessness are both subjective and has to be applied to the accused’s actual state of mind – negligence involves the prosecution proving an element in relation to how an ordinary person would have reacted

3. Coincidence of Actus Reus and Mens Rea

• actus reus and mens rea must occur at the same time – the actus reus can be considered a number of acts, with the mens rea only having to occur at the time of any single act (Thabo Meli [1954] VLR 95)

Exceptions – Partial Mens Rea Offences and Strict and Absolute Liability

• partial mens rea offences – the prosecution only has to prove mens rea for part of the offence –Reynhoudt (1962) 107 CLR 381 determined that it was not necessary that the accused be aware that his victim is a police officer for assaulting a police officer to be established – only the mens rea intention to assault and the actus reus assault are necessary to prove assaulting a police officer

• strict and absolute liability offences – can only be created by statute, with no mens rea necessary for a conviction – they include traffic violations – He Kaw Teh (1985) 157 CLR 523 reinforced the presumption that mens rea is a necessary element for a criminal offence – the courts look at the seriousness of the crime to determine if mens rea is necessary

• honest and reasonable mistake – Proudman v Dayman (1941) 67 CLR 536 provides the defence of an “honest and reasonable mistake of fact” for strict liability offences – Hickling v Laneyrie (1991) 21 NSWLR 730 determined that the Liquor Act 1982 excluded the defence of an honest and reasonable mistake as to serving alcohol to underage people – the Proudman v Dayman defence is not available for absolute liability offences – in SRA v Hunter District Water Board (1992) 65 A Crim R 101 the SRA had no belief of whether a PVC pipe would break, so could not use the Proudman v Dayman defence, as a belief is necessary for there to be an honest and reasonable mistake

Unlawful Homicide: The External Circumstances

unlawful homicide actus reus components causation; and

voluntariness

mens rea proven? no involuntary manslaughter 1.criminal negligence; or

2.unlawful and dangerous

act of manslaughter

yes murder partial defences 1.provocation (s23); or

2.substanital impairment

of the mind (s23A)

Jurisdiction

• s3A states that an element of the crime must have taken place within the State – Ward (1980) 142 CLR 308 established that the location of a homicide is where the accused’s act takes effect on the victim

Human Being

• human being – for murder, s20 states that a child has been born “alive” if it has “breathed” and been “wholly born into the world”, regardless of “independent circulation” (umbilical cord does not have to be cut) – for manslaughter, Hutty [1953] VLR 338 ruled the umbilical cord has to be cut – in Martin (1995) 85 A Crim R 587, the defendant stabbed his 28 week pregnant wife – the baby died shortly after birth from the wound inflicted, and was convicted of murder (if the baby had not breathed, he would not have been convicted) – s33 of the Human Tissue Act 1983 (NSW) gives the definition of death as being the “irreversible cessation of circulation of blood in the body of the person or irreversible cessation of all function of the brain of the person” – there is no need of a body for a murder or manslaughter charge

Year-And-A-Day Rule

• s17A abolished this rule to make sure people who transmit diseases or poison slowly do not escape criminal responsibility

Voluntary Conduct

• voluntariness – Ryan (1967) stated that a crime must have been committed voluntarily, or “willed” – Falconer (1990) reinforced that the prosecution has the legal burden of disproving automatism after the evidential burden is satisfied and reinforced the presumption of voluntariness – in Jiminez (1992) 173 CLR 572, the accused argued that he was asleep when the car accident occurred, and therefore, did not act with voluntariness – the court stated that during the time before he fell asleep, he must have felt sleepy, at which point he voluntarily chose to continue to drive – he was convicted of murder

Causation

• causation – s18(1a) is the source for the element of causation, defined as “causing the death charged…or omitted with reckless indifference to human life” – causation is a threshold test that if satisfied, does not automatically establish mens rea – whilst causation is rarely an issue, the question raised is was there a novus actus interveniens (intervening act) which breaks the chain of causation:

• 1. ordinary hazard – Hallett [1969] SASR 141 stated that the “chain of causation” could not be broken by an omission to safeguard the life of the deceased, with the operating cause of death (assault) still in action when an “ordinary operation of natural forces” (tide) occurred

• 2. final fatal step by victim – in Royall (1991) 172 CLR 378, the victim jumped out a bathroom window to avoid an attack from the defendant – the court decided that the chain of causation between his attack and her death was not broken, and was found guilty of murder – the High Court developed 3 tests to determine whether the chain of causation was broken:

i. substantial and operating cause (all except Mason J) – tests whether the actions of the accused were a “substantial and operating cause” of the death – McHugh J says that whilst the “but for” test should never be applied as a sole test (as 2 people contributing to a murder would both be acquitted), it is still useful to consider

ii. common sense (all except Brennan J) – tests whether the reaction of the victim was reasonable and whether the reaction of the victim was disproportionate to the threat from the accused – the victim must have a “well-founded apprehension of death” – Mason J states “if an act is so unexpected that no reasonable person could be expected to foresee it, then it is a voluntary act on the part of the victim which breaks the chain of causation”

iii. reasonable foreseeability (Brennan and McHugh JJ) – tests whether the victim’s actions should have been foreseen by the accused – Deane, Dawson, Toohey and Gaudron JJ stated foreseeability should not be used in causation cases, as it links causation (actus reus) to mens rea

• 3. third parties – in Pagett (1983) 76 Crim App R 279, the accused used a girl as a human shield, who was killed by police returning fire from the accused – an appellate court found that the actions of the police did not constitute a novus actus interveniens, with the accused convicted of murder

• take the victim as you find them – Blaue [1975] 3 All ER 446 determined that although the deceased abstained from life-saving blood transfusion, the accused was still guilty of murder, as the victim’s refusal “did not break the causal connection between the act and death” – the court stated criminals “must take their victims as they find them” – the court refused to consider “reasonableness” of religious beliefs, raising the question of whether a court would consider the reasonableness of refusals due to other reasons – Mamote-Kulang of Tamagot (1994) 111 CLR 62 applied this in relation to an enlarged spleen

• joint criminal enterprise – McAuliffe and McAuliffe (1993) 70 A Crim R 303 stated that in a “joint criminal enterprise”, the intention to kill by one person is sufficient for the conviction of all

• medical negligence – generally will not break the chain of causation – Smith [1959] 2 QB 35 stated that “if at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating” – the victim was dropped twice and given harmful treatment – the accused was still convicted of murder – Jordan (1956) 40 Cr App R 152 is an exception – the conviction was quashed because the deceased’s wound had almost completely healed by the time the lethal antibiotic was administered by the hospital – extremely incompetent medical treatment will break the chain of causation – Evans and Gardiner (No 2) [1976] VR 523 followed Smith in that the accused was convicted of murder 11 months after the stabbing – the victim had resumed a normal life – the wound had healed superficially, as a result of poor treatment – Malcherek and Steel [1981] 2 All ER 422 determined that medical staff turning off a life support machine did not break the chain of causation as there was an operating cause of death

Omission to Perform a Legal Duty to Preserve a Life

• omission to perform a legal duty usually arises in manslaughter cases – it must be proved that the failure to fulfil the duty led to the death, with the external requirements for omission being:

1. a legal duty – parent-child, doctor-patient or teacher-student

2. failure to fulfil the duty – the accused must have behaved “wickedly negligently”

3. causation

• Taktak (1988) 14 NSWLR 226 states “the duty of care will also arise where one person has voluntarily assumed the care of another who is helpless” – the accused must have failed to obtain medical treatment

Murder

The Mental Element – The 4 Heads of Murder

1. intent to kill – Schonewille (1997 – unreported) stressed intention cannot be inferred – it is a subjective test that must be applied to the defendant’s state of mind – if a person has intent, uses an ineffective weapon, and kills, intent is still established (intent cannot be disproved by the choice of weapon)

2. intent to commit grievous bodily harm – the statutory definition of GBH “includes any permanent or serious disfiguring of the person” (s4) – the common law definition is “really serious bodily harm” (Perks (1986) 41 SASR 335 which said strangulation was “really serious bodily harm” and Griffiths (1999) 103 A Crim R 291) – the statutory definition is not exclusive – Rhodes (1984) 12 A Crim R 124 stated that suffocation by pillow could equate to “really serious bodily harm” – in these cases we look at the physical offence and see if this can be equated to the definition – it is a subjective test

3. reckless indifference to human life – Royall (1991) gave the definition as “recognition of probability of death” – Boughey (1986) 161 CLR 10 stated that “a good chance” or “likely” were acceptable synonyms for “probable” and stated whether or not the accused wanted the victim to die is irrelevant, the important factor being the recognition – it is a subjective test

4. constructive murder rule – s18 states “done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice” – if a person is involved in the “foundation offence”, they are liable for any murder that occurs if the foundation offence is punishable by 25 years (even if they did not cause the death) – the actus reus and mens rea for the foundation offence must be proved, but only the actus reus for the murder has to be proved (lower mens rea threshold than the other heads) – Mraz (1955) 93 CLR 493 determined that once the foundation crime is established, malice is automatically established (s18(2) is irrelevant) – Munro (1981) 4 A Crim R 67 established that the foundation offence does not have to directly cause the death itself, only the actions of the defendant have to) – Ryan (1967) established that a wound (breaking 2 layers of skin) occurs before the death – Ryan was arguing he was not guilty of “robbery with wounding” as he “killed” the victim – Elliott and Hitchins (1983) 9 A Crim R 238 stated that the meaning of “immediately after” should be considered on the facts of the case – in this case 45 minutes was accepted as “immediately after” the foundation offence

Actus Reus and Mens Rea – The Time Dimension

• actus reus and mens rea must occur at the same time – courts apply it loosely – the actus reus can be extended, the mens rea only having to occur at the time of any single act (Thabo Meli [1954] VLR 95)

Involuntary Manslaughter

• should be argued if the prosecution is unable to establish mens rea for murder or the reasoning is inconclusive for murder – manslaughter by unlawful and dangerous act should be argued if an unlawful act can be identified, as it has a lower threshold than criminal negligence

Manslaughter by Unlawful and Dangerous Act

• definition – Wilson (1992) gave 2 requirements for manslaughter by unlawful and dangerous act:

1. unlawful act – little room for debate

2. dangerous act with an “appreciable risk of serious injury” on the part of the accused – this requirement is where there are debatable parameters for definition purposes – the test is objective

• objective test – Wills [1983] 2 VR 201 stated courts “cannot include anything personal to him which may have affected his reasoning and judgement on whether the act is dangerous or not…you cannot take into account ephemeral, emotional or mental condition” – the ordinary person does not suffer from drunkenness, provocation, anger or other emotions – the ordinary person can presume normal health in the victim – if a person hit another in a spleen they did not know to be weak, “appreciable risk” would be hard to establish if the person died from an injury to the spleen (Wilson)

• unlawful act must occur completely – Pemble (1971) 124 CLR 107 established that the unlawful act must occur completely – Lamb [1967] 2 QB 981 held that threatening to shoot someone in a mutual spirit of skylarking does not constitute an unlawful act (there was no assault on the victim)

Criminal Negligence

• criminal negligence – does not only concern failures to act, but acting in ways which are criminally negligent – 3 elements need to be proven to establish manslaughter by criminal negligence:

1. a legal duty – parent-child, doctor-patient or teacher-student

2. failure to fulfil the duty – the accused must have behaved “wickedly negligently” (Taktak (1988)) with a “high risk that death or grievous bodily harm would follow” (Nydam [1977])

3. causation – the failure to fulfil the duty caused the death

• objective test – Andrews [1937] AC 576 settled the fact that negligence is an objective test – Nydam [1977] stated manslaughter is established if the act “was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm 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 grievous bodily harm would follow”

• helpless people – Taktak (1988) states “the duty of care…will also arise where one person has voluntarily assumed the care of another who is helpless” – the defendant was found not guilty of manslaughter, despite a duty of care being established, as his failure to obtain medical treatment could not be characterised as having a “high degree of negligence”, as he tried to wake her and called a doctor – there is quite a high degree of negligence required to constitute liability

• inadequate attempt to get help – in Stone and Dobinson [1977] QB 354, defendants were convicted of manslaughter for failing to seek gain medical treatment for the victim, who was a lodger and blood relation – the defendants “inadequate attempts” to seek medical attention did not quash their conviction

• parental duty – in Russell [1933] VLR 59, the accused watched his wife drown their children and herself without intervening – he was guilty as he had breached his parental obligation in his failure to act

Voluntary Manslaughter – Provocation

• definition – voluntary manslaughter is the only crime where provocative conduct influence liability – it is dealt with under s23 – the common law defines provocation as an act “which would cause in any reasonable person and does so cause in the accused a sudden and temporary loss of self control rendering the accused subject to passion” (Duffy [1949] 1 All ER 932) – provocation cannot be used where the intent to kill or injure was overly premeditated (Parker (No 1) (1963) 111 CLR 610)

• self-induced provocation – Edwards [1973] AC 648 established that “a blackmailer cannot rely on the predictable results of his own blackmailing conduct as provocation” – the Lords stated “if the hostile reaction goes to extreme lengths, it might constitute sufficient provocation, even for the blackmailer”

• judge may keep jury from considering provocation – Lord Morris in Parker (No 2) (1963) 111 CLR 665 stated that provocation should be left to the jury “if the evidence given in a case contains some reasonable evidence of provocation” – in Peisley (1990) 54 A Crim R 42 provocation was kept from the jury where the defendant’s daughter was offered drugs by the deceased, and the deceased laughed at the defendant – the test given in Masciantonio (1995) 129 ALR 575 to determine whether provocation should be left to the jury was “whether, on the version of events most favourable to the accused which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense” – this is stricter than the test used in Parker (No 2)

• technical requirements – Quartly (1986) 11 NSWLR 332 established the provocative conduct must occur within the sight or hearing of the accused, and must “directly” involve the accused, even if the provocative conduct is aimed at the accused – there must be some connection between the conduct of the deceased and the action of the accused – s23(2)(a) states that the provocation must be “towards or affecting the accused”

• totality of the situation – Barwick J in Moffa (1977) 138 CLR 601 stated “a jury would be entitled to view the situation in its entirety” (p 606), ruling that many straws contribute to the breaking the camel’s back, not the final one – Gleeson CJ in Chhay (1994) 72 A Crim R 1 told the jury past events, events the night before and events at the time could be considered in determining provocation – the judgement stated “a loss of self-control can develop after a lengthy period without the necessity of a specific triggering incident”

Actual Loss of Self-Control

• actual loss of self-control – s23(2) requires 2 tests be satisfied for provocation:

a) subjective test – the accused must have lost self-control due to the actions of the deceased, with “grossly insulting words or gestures towards or affecting the accused” allowed to be considered

b) objective test – the actions of the deceased must have “induced an ordinary person in the position of the accused” to have lost self-control to such an extent as to have formed an intent to kill or inflict GBH – the accused does not have to act on the deceased’s conduct immediately for provocation to be established – “in the position of the accused”, subjectifies the objective test

• reasonable proportion – s23A states there is no need for “a reasonable proportion between the act or omission causing death and the conduct of the deceased”

• examples of provocative conduct – in Queen v R (1981) 28 SASR 321, the court found that the jury should be allowed to decide provocation, even though there was evidence of a pre-meditated killing – in this case, evidence of living in a dysfunctional family with a domineering, manipulative, adulterous, violent and threatening husband was enough to enable the jury to consider provocation – in Moffa (1977) an exchange of expletives and threats and having a telephone thrown at the defendant was enough to constitute provocation – in Stingel (1991) 171 CLR 312 the accused seeing his ex having oral sex with another with verbal abuse was not enough for provocation to be left to the jury – Stingel is seen as retreating from the formerly wide application of the ordinary person test, by restricting the times where provocation should be left to the jury

Ordinary Person

• cultural background – in Baraghith (1991) 54 A Crim R 840 the defendant argued it was “reasonable” to beat his wife if provoked, due to his cultural background – he could not rely on provocation, Samuels J stating “the words ‘in the position of the accused’ so far as they make relevant attributes or characteristics of a particular accused do so only in assessing the gravity of the alleged provocation and are to be ignored in deciding whether the accused’s response was or was not that of an ordinary person”

• subjectification of the objective – Stingel (1991) stated “that does not mean that the objective test was intended to be applied in a vacuum or without regard to such of the accused's personal characteristics, attributes or history” – the court also noted that “age, sex, race, physical features, personal attributes, personal relationships and past history may be relevant to an objective assessment of the gravity of a particular wrongful act or insult”

• battered women’s syndrome – in Osland (1997) 95 A Crim R 479 battered women’s syndrome was argued in terms of provocation – the wife and son prepared a meal with drugs and served it to the husband to make him fall asleep – while he was asleep, the son got a steel pipe and battered his father to death – the wife was convicted of murder – the Victorian Court of Criminal Appeal said it was generous of the trial judge to leave provocation to the jury

Voluntary Manslaughter – Substantial Impairment of the Mind

• definition – 23A(2) makes inadmissible expert opinion on the ultimate issue before the court – it is for the jury to decide whether there was a substantial impairment of the mind, not an expert

• burden of proof – s23A(4) places the burden of proof on the accused on the balance of probabilities – in Elliot v Hitchins (1983) 9 A Crim R 238 Lee J stated there was “a total lack of evidence as to his condition of mind at the time of the commission of the offences” – it failed due to a lack of evidence

• abnormality of mind – Purdy [1982] 2 NSWLR 964 looked at elements of abnormality of mind – expert evidence proving an abnormality of the mind discovered after the homicide may have the capacity to prove the abnormality was present when the homicide occurred (the statute requires proof, with this proof usually coming during a psychiatric examination whilst the accused is in jail) – expert evidence need not fail just because a psychiatrist cannot be persuaded to use the statutory definition – a jury can take evidence and decide whether it fits the statutory definition – “passions of an ephemeral king are not to count” – emotions are irrelevant in determining substantial impairment of the mind

• anti-social personality disorders – in Byrne [1960] 2 QB 396 the accused was a sexual psychopath, having violent sexual desires difficult to control, with psychiatrists believing he was not insane – the court found that the question of whether the defendant could control his actions was not the issue – the issue was whether the lack of control came from an underlying condition

• relevance of intoxication – Powell J in Desouza (1997) 95 A Crim R 1 stated for drugs to be relevant, there must be organic brain damage – in Gittens {1984] QB 698, the court said where “both drink and inherent causes played a part” juries should “disregard the effect of alcohol and drugs…decide whether the combined effects of other matters…amounted to the statutory defence” – depression can be considered – Tandy [1989] 1 All ER 267 established if the jury found that “the abnormality of the mind…was a product of the alcoholism and the brain damage, it could be diminished responsibility” – if the long term effects of alcohol abuse causes organic brain damage, this can be considered diminished responsibility (it is distinct from 1 night of alcohol abuse) – Sanderson (1994) 98 Cr App R 325 established that paranoid psychosis induced by drugs over time can be considered an underlying condition for the purposes of diminished responsibility if the evidence was believed by the jury – Jones (1986) 22 A Crim R 42 established alcohol consumption was irrelevant in considering diminished responsibility, even though “the abnormality became manifest only when he was intoxicated”

• ‘substantially’ impaired – Lloyd [1967] 1 QB 175 gave the definition of substantial as “need not be totally impaired…it does not mean trivial or minimal” – the ambiguity of this definition means that determining ‘substantial’ is left up to the jury

Property Offences – Larceny

• common law definition – larceny occurs when a person, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away property capable of being stolen with the intent to permanently deprive the owner of the property (Ilich (1987) 162 CLR 110) – from this definition we derive 3 requirements for the actus reus of larceny:

1. requirement of a taking

2. removal without the consent of the owner

3. property being capable of being stolen

1. Actus Reus – Requirement of a Carrying Away and Trespassory Taking

• carrying away – there must be asportation, a physical removal of the property – the slightest of movement is enough to satisfy the this requirement – Lapier (1784) 168 ER 263 involved an attempt to steal an earring, with the court finding that moving the earring to the owner’s hair, becoming tangled there, was sufficient – Thomas (1953) established that there must be a positive act on the part of the defendant, mere passive retention of the property will not be sufficient for larceny – in Wallis v Lane (1964) VR 293, 1 of the truck driver’s parcels split open in the back of the truck – he then isolated the goods by hiding them amongst other goods – Herring J stated “if there is a removal of the property from the spot it was originally placed and this is done with an intent to steal, larceny is made out” – even though the employer owned the truck and still had possession, this was considered a “carrying off”

• trespassory taking – the taking of the property must amount to a trespass, an unprivileged interference with a possession, Davies [1970] VR 27 establishing that this occurs when property is taken against the will of the person in possession – a man bought a car which he later found to be stolen, changed the number plates and kept the car – his conviction was quashed as larceny deals with the transfer of possession and not of ownership – this common law principle has been changed by s93J which overrides the requirement of a trespassory taking in relation to stolen goods – in Ellis v Lawson (1987) 33 A Crim R 69 the defendant took a radio from a shop with the consent of the shop assistant, knowing the owner did not consent – the court found the defendant guilty of larceny, saying “constructive possession” remained with the shop owner, and the shop owner’s failure to consent was the decisive factor – s156 covers larceny by servant

• if an original taking is trespassory, a later fraudulent intent will ground a charge of larceny

• if an original taking is not trespassory, a later fraudulent intent will not ground a charge of larceny

• fungibles – handing over additional money is a transfer of ownership, as the giver would not expect those notes back, and there is consent – the fundamental mistake argument does not apply to money

2. Actus Reus – Removal Without the Consent of the Owner

• allowing property to be taken away does not necessarily amount to consent – in Kennison v Daire (1986) 64 ALR 17 the defendant closed his account with a bank, but later withdrew $200 from an ATM – he argued that the ATM allowed him to take the money out of the bank – the High Court rejected this argument, saying “the machine could not give the bank’s consent…there is no principle of law that requires it to be treated as though it were a person” – he was convicted of larceny

• entrapment – in Turvey [1946] 2 All ER 60 the defendant approached a co-worker to persuade him to steal property from their employer – the other worker informed their employer who instructed him to hand the goods over in order to trap him with them – Lord Goddard LCJ stated “he did not carry away the goods against the will of the owner but because the owner was willing that he should have the goods”

• constructive possession – in Martin v Puttick [1968] 1 QB 82 the defendant was seen placing chops into her bag, which was brought to the manager’s attention, who allowed her to pass through the checkout – she was arrested – the trial judge found her not guilty on the grounds the manager gave her permission to steal the chops, but the appeal court found she was guilty of larceny, distinguishing it from Turvey, as in that case, the property was handed to the defendant on the owner’s instructions – another issue was whether the defendant gave up her constructive possession of the bag when she handed it to the manager to help her pack it – the court found that she did not give up her constructive possession

• duress – Lovell (1881) established that consent due to threats or intimidated may be considered void

3. Property Capable of Being Stolen

• capable of being stolen – the prosecution must prove the property was capable of being stolen – Perry (1845) established property have some value – Low and Blease (1975) established that the property need not be visible – Young (1947) established it is not possible to steal land – s135 allows the stealing of land titles to be deemed as having committed larceny – Russell v Smith [1958] 1 QB 27 established that the prosecution does not have to prove the precise objects stolen, only a portion of a larger whole

• must belong to another – the prosecution must also show the property belonged to somebody – a person has possession of property if the person intends to possess the property and had some physical control over the property – the person in possession does not have to be aware of the existence of the property – in Hibbert v McKiernan [1948] 2 KB 142 the defendant stole golf balls claiming he could not be charged with larceny, as the golf club did not own the golf balls – the court found that whilst the golf club did not own the balls, it had constructive possession, called “special property”

Actus Reus – Consent of the Owner Due to Mistake

• mistake – the High Court held in Ilich (1987) 162 CLR 110 that where a person obtains property due to a mistake that either the defendant is aware of at the time, or subsequently becomes aware of, larceny can exist only where the mistake is so fundamental as to prevent ownership from passing – in Ilich the defendant was overpaid by an employer and put the excess aside while deciding what to do with it – the High Court quashed his conviction, holding that ownership of the property passed to the defendant, as the consent had not been induced by fraud, nor was the mistake of a relevant fundamental type – since the property had been legally transferred, the defendant could not be charged with stealing his (now) own money – Ilich gave 3 fundamental mistakes which prevent ownership from passing and bring a guilty charge:

1. mistaken identity of person – flowing from Middleton (1873) LR 2 CCR 38, the accused had 11 shillings in his savings account and gave notice he wished to withdraw 10 shillings – the post office referred to an incorrect ‘letter of advice’ and gave the accused over £8, with the defendant aware of the mistake at the time – the High Court held this was larceny, despite the presence of consent by the post office, as there was a mistaken identity – Bray CJ has criticised this, as the mistake was not induced by fraud

2. mistaken identity of goods – flowing from Ashwell (1885) 16 QBD 190, the defendant asked his friend to lend him a shilling – he handed over a sovereign, both of them not realising this was the incorrect amount – he later discovered the mistake and spent the extra money – he was found guilty, on the basis of mistaken identity of goods – Bray CJ has also criticised this decision, as the defendant did not have the guilty intent at the time of the taking

3. excess quantity of goods – flowing from Russell v Smith [1958], where an excess quantity of goods is delivered, ownership of the excess does not pass to the receiver

• Potisk (1973) 6 SASR 389, whilst only decided at the Supreme Court level, involved a bank teller applying an incorrect exchange rate to the defendant’s traveller’s cheques – he did not realise the mistake at the time – it was held that larceny did not exist – the Ilich decision distinguished this case on the basis that there was no fundamental mistake

Mens Rea

• for the mens rea for larceny to be made out, the following must be proved by the prosecution:

1. intent to permanently deprive the owner of the property

2. without a claim of right made in good faith

3. an element of fraud

Mens Rea – Intent to Deprive Permanently

• definition – the defendant must intend to deprive the owner permanently (Foster (1967) 118 CLR 117)

• intent to permanently deprive – where a person takes the goods of another with the intention to pawn them, larceny may be committed, despite the lack of intention to permanently deprive – the offence is not common law, s118 making intent to return property no defence – this section has been of limited use due to the court’s distinction in Foster between intent to deprive “possession” (temporarily) and intent to deprive “ownership” (permanently) – the court stated s118 was applicable in cases “where an accused who has appropriated the property, and not of an accused who has only assumed possession of it” – in the case the defendant borrowed the victim’s pistol to show his parents, and when arrested, claimed he had intended to return the property – it was held his actions were not larceny under the common law, nor s118 – Barwick J stated “if the intention is to deprive the owner of possession for a limited time, larceny is not made out” – s118 is applicable where the defendant takes property and parts with it subject to conditions the defendant may or may not be able to fulfil – this is different from the common law position where an acquittal is entitled where the defendant had a reasonable chance of fulfilling the intention to return the property

• altered condition – Duru [1973] 3 All ER 715 established defendants cannot state that they intended to return property, if that property is returned in an altered condition, with its value reduced – the Durus obtained cheques by deception from the local council, and argued that there was no intent to permanently deprive, as when the cheques had been cashed, they would be returned to the local council via the council bank – their convictions were upheld, the court arguing they intended to permanently deprive the local council of the substance of the cheques, which is sufficient for larceny

• joy-riding – s154A excludes the requirement of intent to permanently deprive in relation to joy-riding – the mere taking of the car is sufficient for larceny

• fungibles – the law does not distinguish between fungibles and non-interchangeable property (money, eggs and sugar) – Cockburn [1968] 1 All ER 466 if a person steals money, with the intention of returning it, but puts back a different set of notes, the person can be charged with larceny, as the person intends to permanently deprive the owner of those particular set of notes – this can be compared with a specific item, such as a CD, which if returned, does not satisfy intent to permanently deprive under the common law, as the specific item has been returned – such a case could see s118 applied

Mens Rea – Without a Claim of Right Made in Good Faith

• belief in a legal right – a claim of moral right to the property will be insufficient to acquit (Harris v Harrison (1963)) – the claim of right must be a claim of legal right

• claim does not have to be reasonable – Lopatta (1983) 35 SASR 101 stated “even if there is no basis, in fact or in law for that wrong-headed belief”, the jury need only determine whether the prosecution has excluded beyond a reasonable doubt the possibility of the defendant honestly believing he had a claim of legal right at the time of taking – the defendant took $5,000 worth of oil from this former employer, claiming he owed him $5,000 – the court found the defence of a claim of legal right was available to him

• deceit – Love (1989) 17 NSWLR 608 stated the defendant can use deceitful means to assert a claim

Mens Rea – Fraudulently

• fraudulence – this requirement adds very little to the mens rea requirements – if intent to permanently deprive and acting without a claim of right is established, it has normally been proven that the defendant acted fraudulently – the 2 exceptions, where fraudulence would be difficult to make out separately, are:

1. where the defendant intends to return the property – it could be argued there is no fraud here

2. where the defendant is charged in relation to a fungible – it could be argued there is not fraud here

Temporal Coincidence of Actus Reus and Mens Rea

• coincidence – the fraudulent intent (mens rea) must exist at the time of the taking (actus rea) (Thurborn (1849)) for larceny to occur – exceptions to the contemporaneous rule are:

1. original trespassory taking and subsequent fraudulent intent – an honest, yet original trespassory taking, and a later fraudulent intent will ground a charge of larceny under the Riley principle

2. larceny as a bailee – requires intent be formed after the taking possession of the goods

3. fundamental mistake – where property is obtained by a fundamental mistake and fraudulent intent formed later

• Riley ([1853] 169 ER 674) principle – in Riley (which was applied in Buttle (1960) 60 SR (NSW) 320), the accused was driving a flock of sheep along a road – some lambs joined the flock which he knew were not his, and took the lambs with him – he lacked mens rea at the time of taking the lambs, but the original taking was trespassory, and therefore was simple larceny:

• if a person finds property, forms no intent, but later determines to keep it, larceny will be made out

• if a person finds a camera, forms an intent to find the owner, but later determines to keep it, larceny will not be made out – the original taking would not be considered trespassory, as the owner would theoretically consent to the person retrieving the property if they had an intention to find the owner

Larceny by Finding

• possibility of the owner being found – larceny by finding occurs when the victim loses property, the accused finds it and dishonestly appropriates it – if a person finds property which is reasonably supposed by them to be lost, forms an intent to keep it at the time of the finding, through believing the owner cannot be found, cannot be guilty of larceny (Thurbon (1849) 169 ER 293) – in Thurbon the accused found a bank note and believed the owner could not be found, and took it for his own use – he was told the next day who owned it, but kept it anyway – this was not larceny, as by the time he knew who owned it, he was the lawful owner, and thus could not commit larceny against himself – if a person finds property and believes the owner can be found, he can be guilty of larceny by finding (Thurbon)

• steps to find owner – in MacDonald [1983] 1 NSWLR 729 the defendant found a camera hanging on a fence, asked the man next door if it was his, and upon a negative reply, took the camera – the court found that his failure to make any inquiries, contact the owner of the house or the police demonstrated a fraudulent intention to keep the property

• honest intent turning to fraudulent intent – if the accused finds property which is reasonably supposed by the accused to be lost, forms an intent to return the property, the accused will not be guilty of larceny if he subsequently fraudulently appropriates the property (Matthews (1873))

• no intent turning to fraudulent intent – if the accused finds property which is reasonably supposed by the accused to be lost, forms no particular intent, a subsequent fraudulent intention will be sufficient for a charge of larceny (Minigall v McCammon (1970))

• abandoned goods – abandonment is intentionally giving up of ownership and possession (Hibbert v McKiernan) – abandonment “will not lightly be inferred” (Donaghue v Coombe (1987) 45 SASR 330)

• statute covering subsequent fraudulent intent – s527 creates the offence of fraudulently appropriating or retaining property to cover cases where a person forms a subsequent fraudulent intent

Larceny by Trick

• definition – occurs where the a person comes into possession of property with the consent of the owner, but the consent was induced by a trick – such consent is considered invalid (Pear (1779))

• trick – trickery has been broadly defined, including any form of artifice, deception or false representations – examples are promises as to the existence of a circus (Wort (1927)), presentation of worthless cheques (Stewart (1845)) and impersonation (Kay (1857)) – a person cannot trick a machine for the purposes of larceny (Kennison v Daire (1985))

• possession and ownership – for larceny by trick to be charged, the owner must have consented only to a transfer of possession, not ownership – the court must look at the intention of the owner and not the intention of the defendant (Justelius (1973)) – if ownership has passed, the charge of obtaining by false pretences, and not larceny by trick must be used – in Justelius a mail order company forwarded books to the defendant, who neither paid for them, nor returned them – it was held that larceny by a trick did not occur, as the company intended to pass “ownership” to the defendant when they mailed the book to him

Obtaining by False Pretences

• definition – s179 includes property obtained by “any false pretence or by any wilfully false promise”

• false pretences and false promises – Freeman [1981] 2 NSWLR 686 established people can be held liable for a false pretence or promise – a false pretence is a representation relating to the existence of a past or present fact – a false promise is a representation relating to the existence of a future fact –common law does not recognise false promises in relation to larceny, covered under s179 – in Greene (1949) 79 CLR 353 the defendant obtained cheques from people for venetian blinds, but he never had any intention of supplying them – it was held that the defendant did not make a false pretence, but a promise as to future events, and could not be held liable under the common law

• causal connection – there must be a causal connection between the false pretence/promise and the handing over of the property (Balcombe v De Simoni (1972) 126 CLR 576) – the false pretence/promise must have been a material cause in the decision of the owner to hand over the property

• entrapment – handing over property to detect an imposter, rather than due to a false representation will not satisfy ‘obtaining by false pretences’ (Perera [1907] VLR 240)

• mens rea – the prosecution must establish beyond a reasonable doubt that the defendant had:

1. knowledge of the falsity of the representation (Balcombe v De Simoni (1972))

2. an intention to defraud (Balcombe v De Simoni) – an intention to defraud occurs where the defendant intends to induce the victim to act through deceit, knowing that the victim would not have acted in such a way but for such a representation (Balcombe v De Simoni)

• claim of legal right – where the defendant has a bona fide belief in claim of legal right, this will negative an intention to defraud (Kastratovic (1985) 42 SASR 59)

Larceny as a Bailee

• coincidence of actus reus and mens rea – bailment is an exception to the requirement of the coincidence of actus reus and mens rea – under s125 larceny may occur where the bailee fraudulently takes or converts part of the property, or any property into which it has been converted or exchanged

• bailment – a bailment occurs when the possession of the property is transferred to the bailee, whilst ownership remains in the bailor – examples are loaning an umbrella or using a courier – where the bailee obtains ownership as well as possession, larceny as a bailee will not occur (Ward (1938) 38 SR (NSW) 308) – this would be fraudulent conversion (covered by statute) – this distinction between “ownership” and “possession” is difficult to determine where fungibles are involved – in Ward the defendant received a cheque to use for a deposit, but used the money for himself – as the money was handed over with the consent of the “owner”, simple larceny could not be used – as the “owner” did not expect the cheque back, ownership and possession had passed to the defendant, and no bailment existed

• conversion or fraudulent taking – it is essential the bailee fraudulently take or convert the property, taking requiring a physical taking away – conversion occurs where the defendant deals with goods in a manner inconsistent with the intention of the true owner, provided the defendant has the intention to either deny the owner’s right or assert a right which is inconsistent with the owner’s right (Ilich) – examples of conversion are unauthorised sale of property (Davies (1886)), unauthorised pawning of property (Henderson (1870)) and refusal to return property (Wakeman (1912)) – s125 provides that larceny by bailee may be established if the accused uses the property as if it were their own

• intent to permanently deprive – there is no requirement that the defendant intend to permanently deprive the owner of the goods under statute

• requirements – Powell (1988) 36 A Crim R 1 provides an example of the requirements to be proven:

1. a bailment – the question to be determined is whether or not the bailor gave the bailee possession of the property, while intending to retain ownership of the property – the bailment between the 2 parties must have been genuine – the bailee must also have formed the fraudulent intention later

2. terms of the bailment – the jury must determine the bailment terms to see if any acts amounted to conversion and whether the accused had the fraudulent intent at the time of the conversion – in Powell, the jury could not determine the bailment terms, the defendant found not guilty

• claim of legal right – defence of a claim of legal right is available in larceny by bailee cases

Distinction Between Larceny as a Bailee and Larceny by a Trick

• these 2 offences are mutually exclusive (Ward (1938)) – the distinction is:

• bailee – the defendant intends to form a genuine bailment and forms the guilty mind subsequently

• trick – the defendant forms the guilty mind at the time of the possession passing

Non-Sexual Assault

Types of Assault

• common assault – s61 defined it as “not occasioning bodily harm” – it is straightforward assault

• aggravated assault – the assault must be established first, then determined whether or not the assault was aggravated – there are several ways in which assault can be aggravated:

1. further specific intent – includes attempts to commit murder (ss27-39), resisting arrest (ss33-33B), attempts to choke (s37) and using a drug to commit an offence (s38)

2. victims with special status – includes injuring a child at birth (s42), abandoning a child under 2 years (s43), not providing a wife, child or servant with food (s44) and preventing a clergyman (s56), person preserving a wreck (s57) or a justice, police officer or sheriff (s58) from carrying out their duties – Reynhoudt (1962) stated it was not necessary that the accused be aware that his victim is a police officer, nor that they are acting in the course of their duty – only the mens rea intention to assault and the actus reus assault are necessary to prove offences against victims with special status the additional mens rea does not have to be proven – establishing the person is from a special class is part of the actus reus

3. particular injuries of assault occasioning:

a) actual bodily harm (s59) – “more than merely transient or trifling” (Donovan [1934] 2 KB 498) – this is a common assault that happens to cause bodily harm, but does not have to be a permanent injury – the mens rea is the same as common assault

b) malicious wounding or infliction of GBH (s35) – with wounding, the injury must break through the whole skin (Vallance (1961) 108 CLR 56) – evidence of bleeding is sufficient to prove wounding – GBH is defined as “really serious bodily harm” (Perks (1986))

c) maliciously wounding or infliction of GBH with intent to wound or inflict GBH (s33) – the most serious of the aggravated assaults

4. assaults combined with other offences – robbery is assault plus larceny (ss94-98) – abducting is assault plus false imprisonment (ss89-90A)

• combined with other offences – assault can be added with other offences to create new offences – these include robbery (ss94-8), abductions (ss89-90A) and blackmail (ss99-105) – documents containing threats (s31), intimidation (s545B) and stalking (s562AB) are covered by statute also

• unlawfulness and hostility – the battery or psychic assault must be unlawful – touching somebody to warn them of danger or pointing a gun at a criminal would not be considered assault – Boughey (1986) 60 ALJR 422 provides that any act which is reasonably necessary for the common intercourse of life and is not done disproportionate to the occasion would not be considered assault – Boughey also ruled the intentional application of force does not have hostile

• omissions – an omission cannot amount to an assault, unlike murder (Fagan [1969] 1 QB 439) – in the case however, it was held that maintaining a car on a person’s foot was an act, not an omission

Mens Rea and Definitions

• battery assault – intentional or reckless unlawful contact (Vallance (1961)) – the recognition must be subjective (Lamb [1967]) – in Lamb it was held that threatening to shoot someone in a mutual spirit of skylarking does not constitute an unlawful act (there was no assault on the victim, as the accused did not recognise the possibility of unlawful contact, believing the gun could not fire) – the intent need not be intended to be hostile (Boughey (1986))

• psychic assault – intention to create or reckless creation of the apprehension of imminent unlawful contact (MacPherson v Brown (1975) 12 SASR 174) – the recognition must be subjective, Bray CJ stating an objective test would be “contrary to fundamental principles”

• malice – some crimes require there be malice – under s5 this has a very low mens rea threshold to pass, as where “indifference to human life”, “intent to injure” or an act “done recklessly or wantonly” occurs, malice is automatically proven

• recklessness – recklessness is the recognition of the possibility, rather than the probability (MacPherson v Brown (1975) and Coleman (1990))

Actus Reus – Psychic Assault

• definition – the defendant must act so as to induce a fear in the victim that he is about to be physically harmed by the defendant, or another person who is to act under the defendant’s orders

• imminence – the definition of psychic assault requires there be an apprehension of imminent unlawful contact – in Knight (1988) 35 A Crim R 314 phone threats were not considered physic assault as the accused did not threaten that he was going to go after the victim “now” and because he was far away at the time, the threat could not be considered imminent – the court held that phone threats could be considered physic assault in given circumstances however, mobile phones an unresolved issue – conditional threats are considered to have satisfied the imminence requirement, if there was no right to impose the threat

• continuing threat and battery assault – Zanker v Vartzokas (1988) 43 A Crim R 11 established that a threat can continue for a sustained period of time, with this psychic assault possibly leading to assault if causation is established – a woman was kept in a travelling car and was threatened – she jumped, with the defendant charged with assault occasioning bodily harm through the psychic assault or threat

• state of mind of the victim – the victim must feel fear (Barton v Armstrong [1969] 2 NSWLR 451), which must be reasonable – the victim must have had an apprehension of imminent unlawful contact (Ryan v Kuhl [1979] VR 315) – in Ryan, the victim was on a public toilet, and stated he did not feel fear as he knew he was safe, as a result, no assault – in Pemble (1971) 124 CLR 107 the defendant was following the victim with a loaded gun – as she did not know he was there, there was no assault – Brady v Schatzel [1911] QSR 206, a Queensland case, is an exception, stating there is no requirement for feeling fear, but is not binding in NSW– anti-stalking and intimidation legislation was introduced, s562AB(4) removes the requirement that the victim must have actually felt fear for stalking/intimidation

• ability to execute threat – there is no need for the ability of the defendant to execute the threat (Everingham (1949) 66 WN(NSW) 122) – using a toy pistol could cause psychic assault – the victim’s fear must be reasonable however, with Doyle v Range (1991) and MacPherson v Beath (1975) allowing for the subjectification of this objective test (if the accused knew the victim had a fear of spiders and puts spiders in the victim’s proximity) – this test would not be used often, as it would be easier to use the mens rea requirement that the accused intended to cause fear in the victim

• conditional threats and right to impose threats – in Turberville v Savage (1669) 86 ER 684 it was held that a negative threat (“I will not do something if you do something”) cannot be psychic assault – in Police v Greaves [1964] NZLR 295 it was held that conditional threats are enough to constitute psychic assault, with “your money or your life” considered assault – this was followed in Rosza v Samuels [1969] SASR 205 where it was found “I will cut you to bits if you try it” was psychic assault, with a taxi-driver going to the front of the queue assaulting the person who was formerly at the front of the queue – it was found the condition went beyond what was necessary in such a situation – it was excessive to threaten to stab him – the central issue is whether the accused had the right to impose the conditional threat – in Rosza v Samuels the common law recognises that in a hostage situation, a threat such as in Police v Greaves would be considered psychic assault, however, if for example a householder said to a burglar, “I will hit you if you come in”, this will not be considered psychic assault, as the householder is deemed to have a right to impose such a conditional threat

Actus Reus – Battery Assault

• definition – the application of force against the person of another

• consent and social activities – Schloss (1897) stated “an assault with consent is no consent at all” – an assault with consent is no consent at all, but if the consent took place through threats or force, it is not meaningful consent – the victim cannot consent to actual bodily harm unless the defendant is participating in a socially approved activity (Brown [1993] 2 WLR 556) – in Brown it was held that sado-masochism was not socially approved, despite there being no complaints and therefore no victims –an issue is that the definition of “socially approved” changes over time

• consent and illegal activities – in Coney (1882) 8 QBD 534 the participants were engaged in an illegal prize fight, in which the fight continued until one of the “victims” passed out – the court ruled that in order for the consent to be valid, the prize fight would have had to be lawful and inflicted “within the spirit and intendment of the rules” – it was held this was assault, as the activity was unlawful

• expectations – in Re Jewell [1987] 1 VAR 370 an AFL player was hit, suffered brain damage and sought criminal compensation – there was a test of reasonableness to determine what other players would expect of the game – the court found that players cannot expect that every player will play by the rules, and found that no criminal compensation was payable

Coincidence of Actus Reus and Mens Rea

• Fagan [1969] established that the coincidence of actus reus and mens rea cannot be extended or altered, and its application is quite strict – in Fagan, the accused accidentally ran over the foot of another with a car (actus reus / no mens rea) – he then left the car on his foot (mens rea / no actus reus) – it was later held that the later omission to remove the car was an action, and that there was contemporaneous actus reus and mens rea – the strict application of the coincidence remains however

Defences

• self-defence – Duffy [1967] 1 QB 63 established that the defence of self-defence to assault was available to not only the victim of an attack, but anybody who aids the them – excessive force cannot be used however, with the jury having to consider any other available options and any serious disproportion between the harm the accused prevented and the harm inflicted on the primary assailant

• provocation – does not influence liability, but can be taken into account during sentencing

• failure of actus reus / mens rea – the offence will not be established if the decision to use force is reasonable, and the quantum used was reasonable, both objectively and subjectively

Sexual Assault

• requirements – s61 contains the requirements for sexual assault

Actus Reus

• mistaken identity – in Papadimitropoulos (1957) 98 CLR 249 it was held having sex with somebody believed to be a spouse does not constitute sexual assault – this has been changed by s61R(2)(a)(ii)

• medical purposes – Mobilio (1990) 50 A Crim R 170 established a doctor misusing an instrument sexually is not sexual assault, as the patient consented physically – this has been changed by s61(2)(a1)

• marital immunity – R v L (1991) 66 ALJR 36 held that if there ever was such a rule that a husband could not sexually assault his wife, the rule is now abolished

• ability to carry out threat – in Tout (1987) 11 NSWLR 251 it was found there was no requirement of an ability to carry out the threat – the main element is the apprehension caused, covered by s61J

• non-violent threats – covered by s65A

• resisting threats – being threatened with not getting a promotion would a threat that should be resisted under s65A

• lack of resistance – irrelevant under s61R(2)(d)

• ability to threaten – threatening with a weapon that does not actually exist does not reduce the validity of the threat – this would be considered aggravated sexual assault under s61J

• continuing act – if consent is withdrawn be either party during sex, if sex continues, it is sexual assault

• intoxication – having sex with an intoxicated person is not sexual assault, as there is not no consent – this is debatable however

• age of consent – heterosexuals must be over 18 and homosexuals must be over 16 – heterosexuals can rely on the defence that they believed their partner to be over 16 if they are over 14 under s77

• no communication – sexual assault will not occur if the defendant had the honest belief that there was consent – an issue is that women may be terrified

Mens Rea

• definition – the intention or recklessness to have sexual intercourse without consent

• honest belief and reasonableness of consent – in Morgan [1976] AC 182 some men honestly believed that the victim was giving her consent, thinking she normally screamed during sex – it was held that as long as the belief was honest, it does not have to be reasonable – this rule is still applicable in NSW, but in practice juries reject the accused’s evidence – Morgan emphasises the subjectivity of the state of mind

• recklessness – a new definition of recklessness has emerged in the 90s – if the accused was completely indifferent to consent, this will be reckless and therefore sexual assault (Kitchener (1993) 29 NSWLR 696) – it is considered that failure to seek consent is an unjustifiable risk – the new definition of recklessness was applied in Tolmie (1996) 84 AS Crim R 293 and O’Meagher (1998) 101 A Crim R 196

Proving Non-Consent

• there was a fear that women would lie about being sexually abused – certain rules were designed to make it more difficult to prove:

1. corroboration – requires the judge to warn the jury, generally, that women lie about sexual assault – Johns (unreported, SA, 26/8/1992) stated that in the absence of corroborative witnesses or evidence, the sexual assault claim should be treated with caution – in Longman it was found that this warning was given in 90% of cases, the High Court issuing a directive that general warnings were to be replaced with specific warnings – legislation was introduced, also requiring that specific and not general warnings be given, but warnings are still given in 40% of cases

2. doctrine of fresh complaint – it is presumed that if the victim delays in telling somebody they have been sexually assaulted, they are not telling the truth – this warning was given in 50% of cases

3. sexual history – there was a belief that if a person slept with many others, they were immoral and therefore would lie – there was another belief that promiscuous people would sleep with many other people – in 84% of cases evidence of sexual history was being admitted into evidence – legislation was introduced to overrule the introduction of sexual history into evidence except in limited cases, but sexual history is still raised in 12% of cases

Indirect Offences – Attempt

• definition – s344A provides that a person convicted of an attempt is deemed to have committed the foundation offence – an attempt goes beyond mere preparation and goes close to committing the substantive crime – s427 states a jury may acquit on the foundation offence and find guilty on attempt

• murder – attempted murder has statutory provisions, including administering poison (s27), using explosives (s28), drowning, suffocating or strangling (s29) and generally (s30) attempted murder

Mens Rea

• definition – the prosecution must prove beyond a reasonable doubt the defendant had intended to commit the substantive offence – recklessness will be insufficient (Giorgianni (1985) 156 CLR 473)

• specific harm – the defendant must intend the specific harm associated with the offence (Mohan [1976] QB 1) – in Knight (1992) 175 CLR 495 (which applied Whybrow (1951) 35 Cr App R 141) it was held the prosecution must establish beyond a reasonable doubt the defendant had the intention to kill, for a charge of attempted murder to be grounded – intention to inflict grievous bodily harm, although an actual head of murder, would be insufficient for a charge of attempted murder

Actus Reus

• definition – Parke B in Eagleton (1855) 169 ER 766 stated “the mere intention to commit a misdemeanour is not criminal…some act is required” – it is difficult to determine the extent to which the defendant’s actions would have potentially caused specific harm to warrant punishment – the actions must go beyond mere preparation and go close to the commission of the intended crime (Collingridge (1976) 16 SASR 117) – Murphy J in Britten v Alpogut [1987] VR 924 stated the actus reus is established if “the accused did acts which were sufficiently proximate to the foundation offence”

• objective test – the defendant’s actions are assessed objectively, but based on the belief that the defendant had the intent to commit the substantive offence – several tests have been developed to distinguish between mere preparation and attempt:

1. proximity test – Parke B in Eagleton stated “acts remotely leading to commission of an offence are not attempts, but those immediately connected with it are” – this test was applied in O’Connor v Killian (1984) 38 SASR 327, where the defendant opened another’s mail and planned to use her social security cheques – she had to open a new bank account to cash them in – the court held that opening the bank account was sufficiently proximate to an attempt to defraud

• mens rea can establish actus reus – the judge relied on People v Burger (US), stating that where intent is clearly proved, an act done towards the commission of the crime may constitute an attempt, although the same acts would be insufficient where intent is not clearly proved – as a result, if the mens rea is established, this can expand the acts considered in the actus reus – Prior J warned this test should be used in conjunction with the last act test

2. last act test – occurs where the last act before completion has been performed (Eagleton) – in Robinson [1915] 2 KB 342 the defendant insured his jewellery shop against theft, hid the jewels, rang the police and tied himself up to make a claim – his conviction was quashed, as he had not performed the last act dependent upon himself, lodging the insurance claim, held that his actions were merely preparatory – in Button [1900] 2 QB 597 the defendant entered a race under the name of an outsider and won – before prizes were awarded the deception was discovered – his conviction was upheld, as he had performed the last act dependent upon himself – the test has been criticised for being inappropriate for crimes committed over a long period of time – in Stonehouse [1978] AC 55 the defendant had faked his death – this was held as an attempt to defraud, as the last act he could do was faking his death (he could not attempt to claim the insurance, as he was “dead”)

3. series of acts test – tests whether an offence would have been committed if the series of acts had not been interrupted (Haughton v Smith [1975] AC 476) – conflicts with the notion of impossibility – in Commonwealth v Kennedy (1897) 48 NE 770 it was suggested that the giving of a non-lethal dose may have been the first of a series of doses designed to eventually kill the victim – the court held it would nevertheless be held as an attempt due to it being followed by a series of other acts

4. unequivocal test – an attempt only occurs where the conduct unequivocally indicates an intention to commit the offence (Barker [1924] NZLR 865)

• tests a guide only – Stonehouse [1978] AC 55 held these tests should only be used as a guide to drawing a distinction between mere preparation and conduct going close to the commission of the offence – it will ultimately depend on the facts of the case and will usually be left to the jury

Impossibility

• definition – Hall (General Principles of Criminal Law) states “the rules attach liability to attempts which failed because of ‘factual impossibility’ but they exculpate where the attempt failed because of a ‘legal impossibility’” (p 586-7) – this is because in a legal impossibility, if events had gone according to the defendant’s plan, no crime would have been committed – in a factual impossibility, if events had gone according to the defendant’s plan, a crime would have been committed

• factual impossibility – in Commonwealth v Kennedy Holmes J stated “impossibility of achievement is not necessarily a defence” – it is immaterial that by reasons unknown to the defendant it is impossible to commit the offence (Britten v Alpogut [1987] VR 371) – in Britten the defendant believed he was importing cannabis, whereas he was importing a legal substance – the court stated “he is punishable not because of any harm that he has actually done by his conduct, but because of his evil mind accompanied by acts manifesting that intent” – this was followed in Mai (1992) 26 NSWLR 371, where the defendant believes he was importing heroin, but was actually importing blocks of plaster – the NSW Court of Criminal Appeal through Hunt J stated that Britten should apply in NSW, instead of Haughton –– in Haughton police intercepted a truck with goods going to be stolen and allowed it to continue travelling – the driver was charged with attempting to steal the property, but his conviction was quashed, as the court held that the goods could never have been stolen, as they were under the control of the police – the Lords drew a distinction between a relative impossibility and an absolute impossibility – Waller and Williams (Brett, Waller and Williams Criminal Law: Text and Cases) believe Haughton was followed for a long time, as otherwise harmless cranks could become criminal – examples of factual impossibility are shooting into a room to kill a person who is not actually there (State v Mitchell (1902) 170 Mo 633) and intending to steal a wallet in a person’s pocket that is not actually there

• legal impossibility – attempting to commit an offence unknown to the law will not ground a charge of attempt – this is so as if events had gone according to the defendant’s plan, no crime would have been committed – examples are breaking into your own house or committing adultery

Indirect Offences – Conspiracy

• definition – it is possible to participate in a crime in several ways, but all must be to felonies:

• principal offender in the first degree – perpetrator of the actus reus, not limited to the physical act – there can be many principal offenders, such as in a joint criminal enterprise, creating a diversion

• principal offender in the second degree – aiding or abetting someone at the scene of the crime, without taking a main role

• accessory before the fact – urging or contributing towards the commission of the crime, without actual presence at the scene of the crime

• accessory after the fact – assisting a person who has committed a crime after the offence

• punishment – a principal in the second degree and an accessory before the fact are liable to the same penalty as the principal offender in the first degree (ss345-6) – an accessory after the fact is liable to 5 years imprisonment (s350) except for murder and robbery (s349) – the major distinction is whether the person was present at the scene of the crime – a person may be constructively present if they are “able readily to come to the assistance” of the principal, making them a principal offender in the second degree (Doorey (1970)) – an example is watching the principal break into a house whilst the principal offender in the second degree watched from a car – principal offenders in the second degree and accessories before the fact will be charged with the substantive offence itself, rather than with accessoryship

A. Principals in the Second Degree and Accessories Before the Fact

Actus Reus

• degree of participation – virtually any act of encouragement will fulfil this requirement, including mere words, or the simple fact of presence, as long as there is encouragement (abetting) or assistance (aiding) or counselling or procuring – in AG’s Reference (No 1 of 1975) [1975] QB 773 the defendant laced his friend’s drink, the result being the friend was charged will drink driving, the defendant held to be an accessory

• mere presence – in Russell [1933] the defendant stood by as his wife drowned their children and then herself – it was held the absence of any dissent amount to assenting to the wife’s actions and was therefore enough to sustain being an accessory, as the dissent amounted to encouragement

• causation – from Russell there is no requirement of a causal connection between an act of accessoryship and the crime – the act need only support or promote the crime, not needing to even partly cause it

• acquittal of principal / conviction of accessory – in Cogan and Leak [1975] 2 All ER 1059 the principal was acquitted as he believed the victim was consenting, however the accessory was convicted

• accessory convicted of more serious crime than principal – in Howe [1987] 1 AC 417 the principal had his conviction downgraded to manslaughter, whilst the accessory was convicted murder – Lord Mackay stated “the mere fact that the actual killer may be convicted only of the reduced charge of manslaughter…does not…result in a compulsory reduction for the other participant”

• victim of crime different to target – in Demirion [1989] VR 97 bombs were placed in a car intending to assassinate an official, however one of the criminals was killed in the explosion, instead of the official – it was held this could not have been murder, as it was technical suicide – the matter may have been different if another victim would have been killed, other than that of the target

• the actus reus test is a minimal test, the main focus being on the mens rea

Mens Rea

• definition – requirements are specific to guard against the possibility that the defendant is held liable for innocent or inadvertent acts – the accused must intend that his conduct will aid, abet, counsel or procure the commission of the principal crime – otherwise the defendant will be not guilty under the doctrine of innocent agency or will be a general lack of mens rea – the prosecution must prove the following

1. the defendant knew the essential elements of the offence – (Giorgianni (1985)) – the defendant must contemplate the possibility of the principal’s commission (Giorgianni (1985)) – it is irrelevant if the defendant does not desire the crime be committed – it is unclear to what extent the defendant must know the essential elements of the crime, and what are the actual essential elements of any crime in an ordinary sense – it would probably be sufficient to know of somebody’s intent to kill in a murder situation – other information such as knowing the weapon and victim would also add to this test – there is the possibility an accessory would know the essential elements for 1 murder, but not another committed by the same principal – in Stone [1981] VR 737 the defendant knew of the principal’s intent to kill his ex-wife and her lover – the ex-wife was killed, but the lover wounded – it was held whilst he could be an accessory to the murder of the ex-wife, his knowledge was too imprecise to be an accessory to the wounding – this mens rea tests is very strict, and cannot be fooled around with

2. and with that knowledge, intended to aid, abet, counsel or procure –– in Giorgianni the brakes on a truck failed, the question being could the owner of the truck be held to be an accessory – the court stated “it is not sufficient that an accused person who lacked knowledge of some essential fact constituting dangerous driving ought to have known that fact” – a new trial was ordered – in Stokes and Difford (1990) 51 A Crim R 25 the principal was assaulting somebody, whilst the defendant was issuing instructions on how to beat him up – Hunt J stated that it must be established the accused was present, and that he was aware of the principal’s intent to inflict grievous bodily harm

• extent of knowledge – the defendant must contemplate a crime of the same type that is committed – it is not enough the defendant know some illegal act is to be committed, but neither is it required that the defendant know the precise crime – in Bainbridge [1960] 1 QB 129 the defendant bought some oxygen cutting equipment on behalf of someone else – it was held the prosecution has to prove:

1. the defendant knew that a felony of the same kind was intended

2. with this knowledge did something to assist the felons

• encouragement must be wilful – in Clarkson v Carroll [1971] 3 All ER 344 the defendants stood by and watched a woman get gang raped, not saying or doing anything – it was held even though their mere presence may have encouraged the crime, the encouragement had to be wilful – their convictions were quashed – this is debate over where this fits in with Russell

• actual intention required – the defendant must know the principal will commit all of the facts constituting the offence (Giorgianni (1985)) – the defendant must have knowledge or constructive knowledge, rather than mere suspicion that all the facts constituting the offence are to be committed – recklessness is insufficient – wilful blindness may be sufficient – in Giorgianni even though the principal may be charged with a statutory strict liability case requiring no mens rea, the aspect of accessoryship required mens rea at common law

Doctrine of Common Purpose

• common purpose – the doctrine extends liability to secondary participants for incidental crimes which they did not intend to commit – the High Court approved of the definition given by Street CJ, in Johns (1980) 142 CLR 108, as “an act contemplated as a possible incident of the originally planned particular venture” – in Johns a robbery went wrong, with the victim being killed by the principal’s gun – it was held that there was no reason why the defendant could not be held as responsible as the principal, as he knew the principal always carried a loaded gun, even though it was expected it would not be used

• mens rea – in Johns it was held that the defendant only had to contemplate the possibility of an incidental crime, rather than the probability of it happening – it is arguable that the doctrine extends liability too far – the rationale for the doctrine was stated in Britten and Eger (1988), “by participating in the enterprise, each participant impliedly authorises all criminal acts which are in his contemplation”

• individual and collective common purpose – in McAuliffe (1995) 130 ALR 26, 3 men went to a park to rob and bash someone, who died – the court stated even if the common purpose did not include the intentional infliction of GBH, it was sufficient to convict all 3 if any of the defendants contemplated this occurring – the test to see what falls within the common purpose is subjective, but the court stated “the understanding or arrangement need not be express and may be inferred from all the circumstances”

• outside the common purpose – Duong (1992) 61 A Crim R 140 held any act falling outside the common purpose will not ground liability – in Duong some men went to a neighbour’s house to find some stolen property – the neighbour was killed, Duong did not know his friend carried a knife – he did not contemplate the possibility of the neighbour being killed and could not be held to be an accomplice

Doctrine of Innocent Agency

• innocent agency – cases may occur where the accomplice encourages the principal to perpetrate the actus reus, but escapes liability due to a lack of mens rea and the accomplice, because the foundation offence is not established – the doctrine deems the accomplice to be the constructive principal, conferring the actus reus on him – as long as he has mens rea, he will be guilty – the doctrine is applied where children are used as instruments by the defendant (White v Ridley (1978)) – in Cogan and Leak [1976] a person was found to be the principal in a sexual assault case, even though his friend actually committed the act, making him the constructive principal – the offender was acquitted – it is uncertain what sort of mens rea the defendant must have to incur liability as a constructive principal, whether:

• mens rea of the principal offence – for murder, intent to kill, to inflict GBH or recklessness

• mens rea as an accessory – the defendant intending that the actus reus of the offence be committed

Defences Available to Accessories (Not Exhaustive)

• duress and murder – in McConnell (1977) the NSW Supreme Court held duress was available as a defence to the principal offender in the second degree – in Howe (1987) the Lords held duress was not available as a defence to murder in the second degree – this was held in the Victorian case of Harding (1976) – it is unclear whether Howe will have any impact on the law in Australia

• withdrawal – the defendant may escape liability if he terminates his involvement, by neutralising his impact, and takes all reasonable steps to prevent the crime – Gibbs J in White v Ridley stated that for withdrawal to be applied, the defendant’s actions must “undo the effect of his previous encouragement or participation” – these requirements have been strictly applied by the courts

B. Accessories After the Fact

• definition – an offence under s347– this can only be committed in relation to a felony – the offence requires that the defendant performs an act after the commission of the felony which assists the felon to escape justice – the penalty is generally lower than that of principals and accessories before the fact

Actus Reus

• act to help the felon – there must be an act by the defendant to help the felon escape justice – the requirement is broad and can include any act – in Tevendale [1955] VLR 95 the defendant altered the engine number of a stolen car and painted it, this being held as assistance

• effectiveness of the help – there is no requirement of the effectiveness of the help – the actus reus will succeed if the act by the accessory has the potential to help the felon evade justice (Hansill (1849))

• omissions – an omission to act is generally insufficient

• enjoyment of proceeds – merely enjoying the proceeds of another’s crime is not sufficient – accepting a lift in a stolen car the defendant believes to be stolen will not make the defendant an accessory after the fact (Barlow (1962) 79 WN (NSW) 756) – it may give rise to another offence, such as joyriding

Mens Rea

• knowledge – there must be knowledge that a felony has been committed (Tevendale (1955)) – it is unclear how precise the knowledge must be – in Tevendale it was held the felon must know the precise crime committed – Stone [1981] VR 737 held that this rule does not apply to the distinction between murder and manslaughter

• intention to assist – it is unclear whether the defendant must act with the intention to assist the felon to escape justice, or whether the defendant need only be aware that his actions have the potential to assist the felon to escape justice – the issue has been largely avoided in Australian cases, suggesting the question is not vital to incurring liability

Problem Questions on Complicity

1. prove the principal committed the crime (actus reus / mens rea)

2. prove the defendant was an accessory or principal offender in the second degree (actus reus / mens rea)

Sane versus Insane Automatism

• distinction – will often rest on the policy consideration of whether the dangerous behaviour is likely to recur – these tests are guides only (Falconer (1990)):

• recurrence test – Lord Denning in Bratty v AG [1963] stated any “mental disorder which had manifested itself in violence and is prone to recur is a disease of the mind”

• internal / external test – Falconer (1990) stated if a mental condition is internal to the defendant, as opposed to arising from an external cause, it should be defined as a disease of the mind – in Falconer, the High Court found “an ordinary person would have succumbed to a state of dissociation” in the position of Mrs Falconer – there was a violent marriage, sexual assault on her and the daughters and adultery – the court stated “if the mind’s strength is below that State standard, the mind is infirm, if it is of or above that standard, the mind is sound or sane” – Mason CJ, Brennan and McHugh JJ stated for automatism the involuntary act must be transient, not prone to recur and caused by an external factor which an ordinary person would not likely to be able to resist

• unsound / sound mind test – this is a more sophisticated version of the internal / external test – under this test a disease of the mind is evidenced by the reaction of an unsound mind to its own delusions or external stimuli (Raford (1985) 42 SASR 266)

Defence of Sane Automatism (Automatism)

• sane automatism – removes a person’s liability if they did not control or direct their actions, a person not liable for an involuntary act – although it is a negativing factor, it goes much further than the voluntariness aspect of the actus reus, with a system of rules and principles developed – Bratty v AG [1963] AC 386 defined automatism in “the state of a person who though capable of action, is not conscious of what he is doing…the mind does not go with what is being done” – Watmore v Jenkins [1962] 2 QB 572 stated “automatism is no defence to a charge, unless all bodily movements were wholly uncontrolled and uninitiated by any function of the conscious will of the accused” – in Ryan (1969) 121 CLR 205 Barwick J stated “an accused is not guilty of a crime if the deed which could constitute it was not done in the exercise of his will…lack of will precludes liability” – there is a general reluctance for juries to accept automatism as a defence however, as a full acquittal is considered lenient – Mason CJ, Brennan and McHugh JJ in Falconer (1990) 171 CLR 30 stated the rationale for a sane automatism defence separate from insanity in “it seems incongruous for the common law to hold that an accused who is deprived by mental disease of his capacity to control his actions cannot be acquitted outright on the ground that his actions were involuntary”

• effect on actus reus and mens rea – for offences with mens rea, the defence will undermine the actus reus and mens rea – for offences without mens rea, the defence will undermine the actus reus – in Hill v Baxter [1958] 1 QB 277 Lord Goddard stressed that automatism is no defence in attempting to show no mens rea in strict liability offences, as the mens rea is not necessary to prove

• presumption of mental capacity – Falconer (1990) 171 CLR 30 presumes “all persons have the capacity to control their actions unless they be of unsound mind”

• states of automatism – include concussion from a blow to the head and being in a coma (Hill v Baxter [1958]), sleepwalking (Jiminez (1992) 173 CLR 572), consumption of alcohol and drugs (O’Connor (1980) 146 CLR 64), hyperglycaemia (Quick [1973] 2 All ER 347) and dissociation due to external stress (Falconer (1990)) – in Bratty v AG [1963] the Lords states “if the jury is in doubt as to whether the conduct is voluntary or not, they should acquit”

• states of non-automatism – Podola [1959] 3 All ER 418 stated that a blackout or amnesia to a crime does not negate liability – Joyce [1970] SASR 184 stated an “emotional storm” does not constitute automatism – this notion was supported in Hennessy [1989] 2 All ER 9 where Lord Lane CJ stated “stress, anxiety and depression” cannot contribute to a state of automatism

• relationship between automatism and insanity – the defence is confined the sane automatism – insanity will be relevant where the involuntary act was caused by a disease of the mind – as it is a negativing factor, the defendant bears only the evidential burden, unlike insanity where the defendant bears the entire burden on the balance of probabilities – a successful defence results in a complete acquittal – Sullivan [1983] expressed epilepsy should be considered evidence of insane automatism, as it arises from a disease of the mind, however could be consider sane automatism if triggered by an “external physical factor” – this was followed in Falconer (1990), the court stating “once disease of the mind appears to be the cause of an inability to control actions, an accused who relies on automatism must be acquitted, if at on, on the grounds of insanity”

• dissociative state (split personality) – certain mental processes are isolated from the conscious mind, which act independently from the conscious mind – Joyce [1970] stated this was irrelevant, as part of the accused still had the mens rea and actus reus – Falconer (1990) by a 4-3 majority stated that dissociation could amount to automatism, with the matter left to the jury if the evidential burden was passed

• automatism and intoxication – in O’Connor (1980) the High Court stated intoxication could be raised to negative any mens rea or actus reus element – this was reversed by s428G, whereby self-induced intoxication cannot be raised in relation to automatism

• automatism and causation – the defence of automatism will be ineffective where voluntary actions cause later involuntary acts – in Ryan (1967) 121 CLR 205 the defendant had a cocked and loaded gun pointed at the victim – he pulled the trigger reflexively when the victim moved, the court holding his actions were voluntary, defining ‘relevant act’ widely to include actions immediately preceding the involuntary act – in Jiminez (1992) 173 CLR 572 the High Court held the defendant voluntarily chose to fall asleep, prior to him actually falling asleep and could be held responsible for his actions

Defence of Insane Automatism (Insanity)

• derivation – the law of insanity is from M’Naghten (1843) 8 All ER 718 – insanity can apply to any crime, whereas substantial impairment of the mind can only apply to murder – it must be proved on the balance of probabilities the accused was affected by a defect of reason, owing to a disease of the mind:

1. as not to know the nature and quality of his act

2. or if the defendant did know, that the defendant did not know what he was doing was wrong

• these tests were followed in Porter (1933) 55 CLR 182, Dixon J stating the defect of reason must “have been of such a character as to prevent him from knowing the physical nature of the act he was doing, or of knowing that what he was doing was wrong” – Waller and Williams say insanity is rare, as a maximum sentence is preferable to life in a mental institution (p 656) – Deane and Dawson JJ in Falconer (1990) state “Governor’s pleasure may be a harsher penalty than conviction and sentence”

Burden and Standard of Proof and Raising Insanity

• burden and standard – the first M’Naghten rule entitles the prosecution to presume sanity, the judgement stating “jurors ought to be told in all cases that every man is to be presumed to be sane” – the party raising the issue of insanity bears the burden of proving insanity on the balance of probabilities (Porter (1933)), which is an exception to the Woolmington golden thread – Waller and Williams believe there is no justification for placing the burden of proof on the accused (p 680)

• raising insanity – both the defence and prosecution can raise insanity (Ayoub [1984] 2 NSWLR 511) – in Ayoub the defence raised diminished responsibility, but the prosecution raised insanity, which was allowed on the balance of probabilities – this was approved in Falconer (1990) 171 CLR 30

• consequence of acquittal – the jury will find the defendant ‘not guilty by reason of insanity’, instead of a simple ‘not guilty’ – the defendant would then be detained in a mental institution until he is no longer perceived to be a danger to society, or to himself

Defect of Reason and Disease of the Mind

• disease of the mind – insanity is only available if the defect of reason is due to a disease of the mind – ‘disease of the mind’ is a legal term, rather than a medical term – the judge determines if there is sufficient evidence to leave the question to the jury (Kemp (1957) 1 QB 399) – in Kemp, Devlin J stated “the law is not concerned with the brain but with the mind” – a disease of the brain is therefore not sufficient – the law looks at mental conditions, not physical diseases – Dixon J in Porter (1933) gave a wide definition of the concept of ‘disease of the mind’, saying the “state of mind must have been one of disease, disorder or disturbance”, which could not include excitability, passion, stupidity, obtuseness, lack of self-control and impulsiveness – in Porter, the defendant was taking medication and was on the verge of a nervous breakdown and took his son’s life – he was found not guilty due to insanity – the major factor is the likelihood of a recurrence of the disease of the mind, rather than a medical conception

• temporary insanity – the second M’Naghten rule states a mind disease may be temporary or incurable

• conditions held to be insanity:

• arteriosclerosis – a hardening of the arteries which affects the mind, although it largely affects the body (Kemp 1957))

• hyperglycaemia – in Hennessy [1989] 2 All ER 9 the defendant failed to take his insulin and committed larceny – this amounted to insanity as the defect of reason occurred due to his diabetes, rather than the lack of insulin – in Quick [1973] 2 All ER 347 the defendant injected himself with insulin, drunk alcohol and had eaten little, suffered a hyperglycaemic attack and attacked someone – it was held the defect of reason was caused by the insulin, rather than the diabetes – as the insulin was an external factor rather than a disease of the mind, the defence of insanity was not available

• sleepwalking – in Burgess [1991] 2 QB 92 the defendant wounded whilst sleepwalking – it was held this was a disease of the mind, although transitory, and was an internal factor

• epilepsy – in Sullivan [1984] 1 AC 156 the defendant caused injuries during a seizure – it was held this was a disease of the mind, as there was a temporary suspension of mental faculties

• conditions held not to be insanity – drugs, alcohol and hypnotic influences cannot be said to be diseases of the mind and therefore do not constitute insanity

• jury’s ability to reject evidence – Taylor (1978) 22 ALR 599 held that the jury cannot reject evidence of a disease of the mind, unless conflicting evidence is introduced – this limits the discretion of the jury

Knowledge of the Nature and Quality of Act

• knowledge of the nature and quality of the act – under the third M’Naghten rule it is a defence if it can be proved that as a result of a disease of the mind, the defendant did not understand the nature and quality of the act which attracted the charge – this defence is rarely raised, as it has been interpreted narrowly – it has been defined as referring to the physical nature and consequences of the act, rather than its moral aspects – Porter (1933) explained it as occurring where the defendant “is prevented by mental disorder from knowing the physical nature of the act he is doing” – the court gave an example that a person who destroys life not knowing the nature and quality of the act may see it as “no more than breaking a twig” – in Kemp (1957) it was held that whilst suffering from hyperglycaemia, the defendant hit his wife with a hammer, he did know the nature and quality of the act

Knowledge of Wrongfulness

• knowledge of the wrongfulness – the defendant will be acquitted if he proves, due to a disease mind, he did not know the act was wrong – the main question is whether or not he was able to reason with a moderate degree of sense and composure – is he is unable to reason, it could be said he did not know what he was doing was wrong

• meaning of wrongfulness – wrong means wrong according to the principles of ordinary people (Porter (1933)), not wrong as in contrary to law, Dixon J stating “wrong is wrong having regard to the everyday standards of reasonable people” – the High Court followed this in Stapleton (1952) 86 CLR 358saying the test was whether “his act was wrong according to the ordinary standards adopted by reasonable men” – the trial judge had used the test of being contrary to law, with a new trial ordered – the High Court acknowledged that this will generally not make a difference, as “the two ideas are not easily separable”, however it will where the defendant was incapable of reasoning, but was aware his actions were illegal

Scope of the Defence and Legal Issues

• Waller and Williams note insanity has been criticised due to its restrictiveness (p 678), excluding:

• psychopathy – antisocial personality disorder does not amount to a disease of the mind – even though a psychopath lacks an emotional appreciation of the wrongness of an act, a psychopath has an intellectual comprehension, and therefore cannot be a disease of the mind – in Willgoss (1960) 105 CLR 295 the High Court stated that because there was an intellectual comprehension by psychopaths of their crimes, this amounts to knowledge of the nature and quality of the act, even though there may not be a “moral appreciation” of the crime – he was convicted

• irresistible impulse – occurs where the defendant is unable to control his actions, but is aware of both the nature and wrongfulness of the crime, so as to exclude him from the defence (AG of SA v Brown (1960) [1960] AC 432) – in AG of SA v Brown the defence did not apply as the defendant was incapable, not owing to a disease of the mind, to prevent his actions – irresistible impulse does not totally exclude the operation of insanity – it can provide evidence of insanity, so long as it is based on a disease of the mind – irresistible impulse may disturb the defendant’s understanding to such an extent that the defendant is incapable of reasoning, Sodeman (1936) 55 CLR 192 stating “overpowering obsession arising from mental infirmity provides strong reason for inferring the requisite lack of capacity to know that the act is wrong or to understand its nature or quality”

• self-induced insanity / intoxication – the defendant cannot rely on insanity if the he was responsible when the intent formed (AG v Gallagher (1943)) – if an intent is formed, the defendant suffers the defect, and then commits the offence, he cannot rely on insanity – the rules of insanity will be satisfied if the intoxication acted as a trigger to an underlying mind disease (AG v Gallagher)

• federal position – the Commonwealth Criminal Code 1995 (Cth) widens the common law defence of insanity, s7.3 adding “the person was unable to control the conduct” as evidence of a mental impairment – the definition of mental impairment includes a personality disorder

Defence of Intoxication

• intoxication – may negate certain elements of a crime – intoxication may form the basis of:

1. automatism – arguing involuntariness, there being no actus reus

2. insanity – arguing the intoxicant triggered an underlying disease of the mind

3. denial there was mens rea

• burden of proof – the defence bears the evidentiary burden of raising intoxication – the evidence, revolving around the ingesting and degree of intoxication, will have to be reasonably persuasive before the issue can be left to the jury (Shaw (1980)) – where intoxication is raised in relation to involuntariness or mens rea, the defendant will only bear the evidential burden – where intoxication is raised in relation to insanity, the defendant will have the burden on the balance of probabilities

• NSW reform – the High Court noted in O’Connor (1980) that juries tend to be sceptical of a defence based on self-induced intoxication, however Barwick CJ stated “it seems to me to be completely inconsistent with the principles of the common law that a man should be conclusively presumed to have an intent which, in fact, he does not have” – under the Criminal Legislation Amendment Act 1996 (NSW), NSW has adopted the English position expressed in Majewski (1977) AC 443 – in Majewski, Lord Simon stated the law “would leave the citizen legally unprotected from unprovoked violence, where such violence was the consequence of drink or drugs in justifying criminal liability where there is potentially no voluntariness or mens rea

• ‘specific’ and ‘basic’ intent crimes – a distinction is drawn between ‘specific’ intent and ‘basic’ intent crimes under s428B, which lists many offences which are crimes of ‘specific’ intent:

• ‘specific’ intent crimes – Lord Simon in Morgan [1976] AC 182 defined these in “the mens rea goes beyond contemplation of the actus reus” – intoxication can be pleaded in relation to such crimes whether the intoxication was self-induced or not under s428C – this does not apply however if the defendant had resolved before taking the intoxicant to commit the crime (s428C(2)(a)) or took it in order to strengthen his resolve (s428(2)(b) and AG v Gallagher (1943)) – such crimes include murder, wounding or inflicting GBH with intent to cause GBH and theft – if such a crimes is vitiated on the grounds of ‘specific’ intent, the accused will still for liable for the crime of ‘basic’ intent

• ‘basic’ intent crimes – Lord Simon in Morgan [1976] stated these have “a mens rea which does not go beyond the actus reus” – self-induced intoxication cannot be taken into account (s428D(a)), however non self-induced intoxication can be taken into account (s428D(b)) – such crimes include manslaughter, maliciously wounding or inflicting GBH, assault occasioning actual bodily harm and common assault – Waller and Williams note the state of sexual assault is unknown (p 700)

• intoxication and murder / manslaughter – self-induced intoxication cannot be taken into account in determining if the person had the mens rea for manslaughter (s428E(a)) – non self-induced intoxication can be taken into account in determining if the person had the mens rea for manslaughter (s428E(b))

• intoxication and voluntariness – self-induced intoxication cannot be taken into account for a defence of automatism (s428(G)(1))

Defence of Self-Defence

• self-defence – a full common law defence – Viro (1978) 141 CLR 88 attempted to consolidate self-defence law through a 6 point formulation, but this was considered difficult to explain to juries, with Zecevic (1987) 162 CLR 645 now consolidating the law – the law recognises a person is justified in using some level of force in self-defence, with a complete acquittal – self-defence can apply to defence of self, defence of others, prevention of a serious crime, defence of property and effecting a lawful arrest

• burden of proof – the defence must satisfy the evidentiary burden, the prosecution then having to prove beyond a reasonable doubt self-defence was not present – in Dziduch (1990) 47 A Crim R 378 Hunt J stated “the crown must eliminate any reasonable possibility that the accused was acting in self-defence”

• murder and self-defence – previously in Australia the defendant could rely on a partial defence of excessive force to reduce murder to manslaughter where he acted subjectively reasonably but objectively used excessive force – this distinction was abolished by Zecevic (1987) where Wilson, Dawson and Toohey JJ stated “excessive force in the belief that it was necessary…will not automatically result in a verdict of manslaughter…if there were no reasonable grounds, the defence of self-defence will fail”

Test for Self-Defence

• subjective and objective test – the force resorted to must have been reasonable from both an objective and subjective perspective (Zecevic (1987)), Wilson, Dawson and Toohey JJ stated the question to be asked is “whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did…if he had that belief and there were reasonable grounds for it, or the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal”:

1. subjective test – the defendant must believe it was necessary to act in self-defence – England has only a subjective test, the belief having to be honest and not reasonable (Beckford [1988] AC 130)

2. objective test – the defendant’s belief must be reasonable – Hunt J in Conlon (1993) 69 A Crim R 92 approved Zecevic (1987) by stating personal characteristics may be taken into account where they “might affect his appreciation of the gravity of the threat which he faced and as to the reasonableness of his response to that danger” – intoxication can also be taken into account under Conlon, however this is unclear due to the Criminal Legislation Amendment Act 1996 (NSW), however s428F appears to make all reasonable people sober

• objective test and mistake – Hunt J stated in Hawes (1994) 35 NSWLR 294 “it is the belief of the accused based on the circumstances as the accused perceived them, which has to be reasonable” – a belief can be honest, but mistaken – in Colon, the defendant had been smoking and drinking when he interrupted 2 people stealing from his garden – after they hit and kicked him, he shot them, hit them with an axe, stabbed them and buried them in the vegetable garden

• the test can be further divided into the following – both must be satisfied objectively / subjectively:

1. decision to resort to force test

2. quantum of force used test

• test – this will generally be satisfied if the defendant believed on reasonable grounds that it was necessary in self-defence to do on reasonable grounds what he did (Zecevic (1987)) – the courts will make an allowance for the fact that the defendant made the decisions to resort to force in stressful circumstances (Zecevic) – the High Court said evidence of the defendant being stabbed, the victim’s threat to blow his head off, the belief that the victim had a gun in the car (although it was a BBQ fork) and the belief that his actions were necessary was enough to leave the question to the jury

• imminence – the defendant must respond to a threat where there is a “reasonable apprehension of imminent attack or imminent danger” (Taikato (1996) unreported NSW CCA) – such a requirement was not expressly stated, but impliedly in Viro (1978)

• excessive force – Hunt J in Dziduch (1990) stated “the crown has to establish that the force used by the appellant…was out of all proportion to the attack” – the accused must no longer have to act in defence

• consent – Nguyen (1995) 36 NSWLR 397 established that the defence cannot be used where implied consent has been given – self-defence can be used where “a person who not wanting to fight is attacked or threatened so that they believe self-defence is necessary for their own protection…that does not include circumstances where a fight is going on in which the fighters have willingly joined”

Defence of Necessity

• necessity – a person should not be culpable for criminal acts where they are compelled due to a sudden or extraordinary emergency – duress is a particular form of necessity – Stephen’s Digest of the Criminal Law stated “an act which would otherwise be a crime can be excused if the accused can show that it was done only in order to avoid some consequences…which if they had followed would have inflicted upon him or others…irreparable evil” and “the evil inflicted was not disproportionate to the evil avoided”

• scope of the defence – outside of Victoria it is unclear whether the defence is available, although it has been recognised in White (1987) 9 NSWLR 427 by the District Court and by Dickson J in Mullen (1936) 59 CLR 124 – the defence is available for every offence except murder (Dudley and Stephens (1884) 14 QBD 273)

Elements of the Defence

• the elements have been outlined in Loughnan [1981] VR 443, which were followed in Rogers (1996) 86 A Crim R 542 – in Loughnan the defendant pleaded necessity on a charge of escaping from jail in that inmates thought he was colluding with prison officials and had subsequently threatened him with death – his conviction was affirmed, although it was recognised there was enough evidence to leave the question to the jury – the court developed the following principles:

1. irreparable evil – the act must have been done to avoid irreparable harm on the victim or others – threats of death, serious physical harm, sexual assault and suicide have been recognised at common law – there is no requirement that the threats be unlawful – Conway [1988] 3 All ER 1025 recognised necessity as available where a person was driving recklessly to avoid being killed – White (1987) recognised necessity as available where a person drives recklessly because his son is having an asthma attack

2. imminence – the threat must have exerted immense pressure on the accused due to:

• imminence – must honestly believe on reasonable grounds there was an imminent threat; or

• gravity of the threat (without urgency)

3. real / imaginary – the threat can be real, capable of being demonstrated objectively to have existed, or imaginary, honestly and reasonably mistakenly believed by the defendant to exist

4. ordinary person – the threat must make an ordinary person capable of yielding as the defendant did

5. excessive force – acts done to avoid the peril must not be out of proportion to the peril avoided

6. independent threat – necessity will fail if the defendant would have committed the offence anyway

7. no other alternative – the response must be reasonably necessary conduct, in that there was no other alternative other than the response adopted in order to avoid the threat

Defence of Duress

• duress – occurs where the defendant asserts they committed a crime under a threat of physical harm – the defence is based on the law’s compassion towards a defendant faced with the choice of 2 evils, suffering the threat or committing a crime (Howe [1987] 1 All ER 771) –AG v Whelan [1934] IR 518 defined duress as “threats of immediate death or serious personal violence so great as to overpower the ordinary will of human resistance” – the threat does not have to be against the defendant, Smith J in Hurley and Murray [1967] VR 526 stating duress “cannot be confined the threats against the accused himself”, with the duress available if anyone is threatened

• burden of proof – the defence bears the evidentiary burden, the prosecution having to negative this

• scope of the defence – is available for all defences including manslaughter, except murder and attempted murder (Brown (1986) 43 SASR 33, although Bray J (dissenting) believed it should be available for people who play a minor role in a murder) – Moffet J in McConnell [1977] 1 NSWLR 714 stated obiter that an accessory to murder could rely on duress

Elements of Duress

1. subjective test – the defendant’s will must be overborne by the threat to the extent that they are incapable of acting independently, however Lawrence [1980] 1 NSWLR 122 warned that the defendant stating that will not satisfy the burden – there must be evidence:

• threats – not all threats are recognised for duress – threats recognised have been of death and GBH (Hurley and Murray [1967] VR 526), lawful threats, imprisonment (Lawrence [1980]), torture causing pain (Goddard v Osborne (1978) 21 ALR 189 stating “fear of the unknown is often more potent that fear of the known”) and harm to a third party (Abusafiah (1991) 24 NSWLR 531) – threats against property will not be sufficient (Lynch [1975] AC 653)

• continuing threat (causal link) – the threat must be present and continuing for duress to apply, being interpreted realistically – in Hudson [1971] 2 QB 202 the defendant was able to rely on duress for perjuring herself, as the threatener was in the courtroom – there is no need for direct physical control over the defendant – Lord Windeyer stated of the threats, “even if their execution could not be effected in the courtroom…they could be carried out in the streets” and were therefore continuing

2. objective test – an ordinary person’s would have been overborne by the threat – Lawrence [1980] stated the test had 2 components:

1. ordinary person – “an average person of ordinary firmness of mind, of a like age and sex in like circumstances would have done the acts”

2. avoiding the threat – there was no reasonable way of avoiding the threat – this has generally been interpreted in favour of the defendant, taking into account all of his circumstances, including age and risks involved with avoiding the threat – failure to seek police protection due to the belief this is useless will not automatically exclude the defence (Brown (1986) 43 SASR 33)

• standard of proof – Abusafiah (1991) stressed the burden is on the crown, having to prove there was no reasonable possibility that the defendant committed the crime by reason of the threat, or there was no reasonable possibility the gravity of the threat would force an ordinary person to yield to the threat

• relevance of BWS – King CJ in Runjanjic (1991) 53 A Crim R 362 held evidence of BWS was relevant to both the subjective and objective tests

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