Crim Reading Guide 2006



Murder & Manslaughter - see pg 10 Donna SpearsMurderMurder is a common law offence in Victoria, the maximum punishment for which under s.3 is 'life imprisonment'. At common law, the crime is committed when a person voluntarily and without lawful excuse causes the death of a human being.Coke Institutes of the Laws of England (1797) explained the offence of murder as being one where "a person commits an offence of murder if, while of sound mind and over the age of legal responsibility, he or she unlawfully kills another human being with malice aforethought"ISSUESActus Reus elements:Firstly, the prosecution must prove beyond reasonable doubt that D's voluntary act caused V's death (Woolmington).Voluntariness of act/conduct:Prosecution must prove conduct was voluntary - voluntariness presumed unless defence wishes to challenge the presumption by providing evidence of non-insane or insane automatism (Falconer), although such challenges are rarely known to succeed: R v Freeman [2011] VSC 139.N.B. - once voluntariness is proved, consider if death resulted in the course of another crime - then constructive murder charges may apply where no mens rea is required (see note below)Causation:To establish causation for murder or manslaughter the prosecution must prove beyond reasonable doubt that a voluntary act of Marta’s caused the death of Kevin. It must be established that Marta’s conduct was an operating and substantial cause of death and that the chain of causation had not been broken by an intervening act that became the immediate cause of Kevin’s death.R v Hallett [1969] SASR 141, WW [4.26C] - death occurring as a result of natural events such as changes in tide of seas/oceans do not break chain of causation where the original act can be regarded as the operating and substantial cause.R v Blaue [1975] 1 WLR 1411, WW [4.31C] - Jehovah's Witness refused blood transfusion. Eggshell skull principle applied: it does not lie in the mouth of the assailant to say that the victim's beliefs which hindered their chance of survival can be seen as breaking the chain of causation. Accused must take their victim as they find them - i.e. the whole person (including their values/beliefs) not just the physical personR v Pagett (1983) 76 Cr App R 279, WW [4.31C] - Accused used victim as a shield whilst firing at cops. Cops shot back towards accused but the victim was killed. Held: intervening act (novus actus interveniens) will only break the chain of causation where the act of the accused is 'so independent that it should be regarded in law as the cause of the victim's death'.Royall v R (1991) 172 CLR 378, WW [4.31C] Case of self preservation and flight by a victim due to their apprehension which was induced by the accused. Question - whether self preservation causing flight could constitute 'novus actus interveniens' (intervening act) so as to sever chain of causation? Majority endorsed 'substantial contribution test' but it was emphasised that where the accused induces in their victim - a 'well founded fear/apprehension of harm' such as to make it a natural consequence for the victim to seek escape/flight for self-preservation, the victim's injuries (if any) during the course of escape is caused by the accused.R v Smith there was medical evidence that the victim may have had a 75% chance of survival/recovery of he had received proper treatment after he was stabbed. In that case there was some evidence that the treatment given to the victim was harmful, yet Lord Parker CJ (at 44) held that a reasonable jury if properly directed was likely to reach a conclusion that the original wound caused the victim's death.R v Evans & Gardiner (No 2) [1976] VR 523, WW [4.31C] - Omissions by medical professionals to diagnose or prescribe correct course of medication would not break the chain of causation. Positive acts (such as palpably wrong treatments) are required before it can be proved that the chain of causation is broken: R v Jordan - also in Jordan's case, the victims original wounds had almost healed completely proving that the course of medication for the original wound was effective although the victim suffered severe reaction to terramycin as he was intolerant to the drug.R v Malcharek; R v Steel [1981] 2 All ER 422, WW [4.36] pg 199 - Where competent medical practitioners give careful treatment and put victims on life support during the course of surgery and then subsequently decide to switch off the life support machines where irretrievable brain damage is declared to have been suffered, the assailant cannot be exonerated from their liability by claiming that switching off the life support machine was an intervening act which severed the chain of causation. Accordingly, where hospitals / medical staff provide medical treatment which are held to be given in the ordinary course of normal convention or procedure, such arguments/appeals are likely to be dismissed. In such cases it would be proper for the trial judge to withdraw the issue of causation from the jury.Reflexes where causation raised as an issue: See: Donna Spears Butterworths pg 6-7Ryan v R (1967) 121 CLR 205 - High CourtR v Butcher [1986] VR 43 Murray v R (2002) 211 CLR 193 - High CourtUgle v R (2002) 211 CLR - High CourtPemble v R (1971) 124 CLR 107 - pg 313 WWN.B. - once voluntariness is proved, consider if death resulted in the course of another crime - then constructive murder charges may apply where no mens rea is required (see note below)Mens Rea elements:Secondly, the prosecution must prove beyond reasonable D's:intention to kill [intention may be inferred from a range of injuries inflicted: Meyers v R]. Furthermore, the facts of the case may infer that the act was an 'unwilled', but this is a question for the jury: (Ugle). In such cases, the judge should direct jury to consider whether or not the act amounted to an 'unwilled act': Ugle v R (2002) 211 CLR.intention to cause 'grievous bodily harm' [aka 'really serious injury': Waller, Louis and Williams, Bob Criminal Law: Texts and Cases (11th ed, 2009), 201-2]. reckless indifference to human life or to grievous bodily harm [mental awareness/foresight/knowledge that the act/conduct will cause GBH or death must be 'probable' as per Crabbe and La Fontaine]N.B: All 3 tests above are subjective - i.e. the 'subjective' realisation or intent must be 'probable' for murder whereas an 'objective' realisation is sufficient for manslaughter: La Fontaine.'Probable' = 'likely to happen': Crabbe - but there must be a substantial/real not remote chance (Boughey). Where actual foresight of probable consequence is required for death or GBH, no need to forsee the actual mode of death or GBH (Royall) DEFENCESProvocations.3B (abolition of the defence of provocation with effect from 23 November 2005)Self Defence Zecevic v DPP (Vic) (1987) 162 CLR 645, WW [4.76C] overruled the assumption that the accused was automatically entitled to reduction of the offence of 'murder' to 'manslaughter' where an accused killed an original aggressor by use of excessive force.Even though there is no legal requirement to retreat when given the opportunity to do so, the fact that the accused does not retreat is a factor used to assess whether (or not) the accused's response was reasonable in the circumstances : Zecevic Apart from the availability of an opportunity to retreat/escape/flee the situation, consideration may also be given to other factors like degree of force used in proportion to the threat (repetitive blows/punches may amount to excessive force: see R v Portelli), nature of threat (imminence of harm: Huggins v Police [2001] SASC 394), willing participation: whether accused was the original aggressor but their original aggression had ceased, whether the other party was armed or their conduct was unlawful, self-induced intoxication (excluded by s9AJ), presence of other potential victims who were unable to defend themselves effectively like is the case with elderly or children, availability of other options such as reporting a matter to or calling the police.Statutory Defences (complete defence) Recent developments suggest that the defence of 'self-defence' in criminal cases in Victoria is governed by statute which override the 'self-defences' under common law: i.e. any common law defences after Zecevic and prior to the enactment of the statutory 'self-defence' provisions are now no longer available (obviously excepting those which have been enacted by the statute itself). See: Babic v R [2010] VSCA 198 ('Babic'). Murder s9AC - Where the accused believed that their conduct was necessary to defend themselves or others (from death or really serious injury), the accused will not be guilty of murder where their victim dies as a result of such conduct (by the accused).Manslaughter s9AE - where the accused holds reasonable grounds for their belief that their conduct was necessary to defend themselves or others or to free themselves or others from an unlawful deprivation (such as an unlawful imprisonment) of their liberty, the accused will be acquitted of the charge of manslaughter[N.B. - very unlikely to be availed in the situation of Criminal Negligence MS]Limits to Defence s9AF- limits the defence to murder & manslaughter where the accused responds to lawful conduct or at the time of killing the victim, the accused knows that the conduct of the other party (usually the victim) was lawful. e.g - where a police officer lawfully uses force to restrain or deprive the accused of their liberty.Family Violence s9AH - 9AH(1)(c) and (d) - may provide a defence where the Accused (who has been a victim of family violence) had an alleged apprehension (provided there) that they expected the Victim (who may also be the Original Aggressor) to return (based on his words or other inference) that death or GBH may have result to the accused at some stage in the future (noting that the requirement of 'immediacy' or eliminative approach in cases of 'excessive force' to avail the excuse of self-defence in instances of family violence has been expressly excluded by statute).s9AH(2)(b) - provides that 'reasonable grounds will be established for the purpose of s9AH(1) where V personally suffers from factors listed under 9AH(3)(a)-(f) which include any psychological, financial or social suffering as a result of family violence suffered by the accused in their relationship with the victim. The usage of the words 'of a kind' in s9AH(2)(b) indicate that the list under s9AH(3) is non exhaustive. Hence a jury may be invited to consider other factors where necessary.Defensive Homicide (partial defence under s9AD where an accused in order to protect themselves or others, kills the victim using 'excessive force')Under s4(1), the jury can acquit the accused of murder and substitute the conviction with Defensive Homicide under s9AD see pg 242 WW.The effect of s9AD is that "where the accused murders the victim without holding reasonable grounds to their belief (which is the requirement for complete acquittal to murder under s9AC) that it was necessary to do so to defend himself/herself or any other person from death or really serious injury". Max Punishment - L3 imprisonment: 20 years (same as manslaughter: see s5)Therefore it may also be arguable that force may be excessive where the accused only acts with a fear of being subject to (for himself or for others) 'serious injury' or 'injury' as opposed to 'really serious injury' [emphasis added] but this is a jury question. - see also R v Portelli where repetitive blows/punches were held to be suggestive of excessive force when measured against the perceived threat - pg 39 (Donna Spears Butterworths): Effect of self defence (as per WW paragraphs 4.74-4.75 pp 227-8) is that the accused will be entitled to complete acquittal where the following 3 issues are proven:Accused genuinely acted to prevent himself or others from unlawful violence or acted to prevent the commission of crime or during the course of making a lawful arrest;No greater degree of force used than what the accused honestly believed was necessary in the circumstances of the case (subjective test);No greater degree of force used than what an 'ordinary person' would have regarded as 'necessary' (as opposed to just 'reasonable' or 'reasonably necessary') in the circumstances of the case (objective test);TENTATIVE CONCLUSIONApply relevant sections / information from above to case facts and arrive at conclusionTransferred MaliceWW [4.43]–[4.44]R v Saunders and Archer (1577) 75 ER 706, WW [4.44]R v Mitchell, R v DemirianConstructive Murder see Donna Spears eg on pp 6-7 death during robberyIn Victoria, the common law felony murder rule was abrogated by s 3A(2) and replaced by the offence of 'unintentional killing' under s3A(1). To prove constructive murder, the accused must commit an?underlying crime (which is punishable by a penalty range of 10 years to life imprisonment) during the course of which a victim dies. There is no requirement for the prosecution to prove the mens rea elements which would normally require evidence of the accused's intention to kill, cause GBH or their subjective recklessness whereby they are indifferent to the fact that their act could probably result in death.WW [4.60]-[4.62]s.3AR v Ryan & Walker [1966] VR 553, WW [4.67C]R v Galas and Mikhael [2007] VSCA 300, WW [4.68C]UDA ManslaughterInvoluntary/Voluntary WW [5.1]-[5.6]Manslaughter is a common law offence in Victoria, the maximum punishment for which under s.5 is 20 years. There are 2 categories of MS - Voluntary & Involuntary. Voluntary is now effected by the Defensive Homicide offence provision under s4(1) and the partial defence of Defensive Homicide under s9AD for the offence of murder which is punishable by s3.There are 2 types of Involuntary MS - namely Unlawful & Dangerous Act ('UDA') MS and Criminal Negligence MS.ISSUESUnlawful and Dangerous Act Manslaughter (aka Constructive Manslaughter)At common law, to establish that a person committed UDA manslaughter, the prosecution needs to establish that:Actus Reusthe accused voluntarily commit an unlawful act - the unlawful act should be one which would breach the 'criminal law' (an act which only breaches traffic regulations is insufficient: R v Pullman (1991) 58 A Crim R 222). In Pemble's case, the accused's was held to have carried out two unlawful acts (discharging a firearm in a public place and attempted assault).NB: Discuss 'Voluntariness': see 'Murder' above the accused's unlawful act caused the victim's deathNB: Discuss 'Causation': see 'Murder' above Mens Reathe accused intended to commit the unlawful act (no need to show that they intended death as this is covered by murder): R v Williamson (1996) 67 SASR 428Jury Questionthe accused's unlawful act was objectively dangerous - R v Coomer (1989) 40 A Crim R 417. In Pemble's case, the accused's was held to have carried out an act (discharging a firearm in a public place) which was held to be both dangerous as well as unlawful. Arguably, attempted assault is not a dangerous act as battery manslaughter is no longer available: Wilson v R (1992) 174 CLR 313 [at 333-4], and R v Chai [2002] HCA 12 at [20]-[25]. In Wilson, it was recognised that for an act the word 'dangerous' is to be used in the sense that it creates an 'appreciable risk of serious injury': Wilson v R (1992) 174 CLR 313 amending the test in R v Holzer [1968] VR 481 - 'serious injury' (as opposed to 'really serious injury') is sufficient. Accordingly, a punch may or may not amount to an act that is capable of creating an 'appreciable risk of serious injury' depending on the amount of force used. This is a matter for the jury. The prosecution does not need to prove that the accused knew that the act was dangerous as the test is objective. However, the jury must consider the circumstances as they existed, the knowledge of the accused and the nature of the accused's conduct (i.e. partial subjective test): R v Wills [1983] 2 VR 201. Accordingly, the question for the jury is whether a sober and reasonable person (in light of the circumstances of and with knowledge of the facts as they were presented to accused) would have realized that the unlawful conduct created an 'appreciable risk of serious injury'.DEFENCESSee Murder aboveTENTATIVE CONCLUSIONApply relevant sections / information from above to case facts and arrive at conclusionUnlawfulR v Lamb [1967] 2 QB 981, WW [5.9]: no UDA manslaughter as there was no technical assault as both the Accused and the Victim were treating the mater as a 'joke' and they were both not aware about how a revolver worked. cf: R v Manh Viet Do [2001] NSWCCA 19 where similar jokes or 'mucking around' when on drugs or alcohol amounted to criminal negligence manslaughter as it amounted to 'wicked' negligence meriting criminal punishment.Pemble v R (1971) 124 CLR 107, WW [5.10]DangerousWilson v R (1992) 174 CLR 313, WW [5.7C] R v Cato [1976] 1 All ER 260 (self administration of drugs in this case heroin)Criminal Negligence ManslaughterWW [5.5]Manslaughter is a common law offence in Victoria, the maximum punishment for which under s.5 is 20 years. There are 2 categories of MS - Voluntary & Involuntary. Voluntary is now effected by the Defensive Homicide offence provision under s4(1) and the partial defence of Defensive Homicide under s9AD for the offence of murder which is punishable by s3.ISSUESNegligent Manslaughter"One cannot consent to their own murder or serious assault": Brown - see Donna Spears Butterworths pg 11There are 2 types of Involuntary MS - namely Unlawful & Dangerous Act ('UDA') MS and Criminal Negligence MS. Under the latter, there is no need to prove 'malice' elements of such as intention of causing death or GBH: the approach of this decision in Nydam v R [1977] VR 430 at 445 has also been approved by the more recent High Court decision R v Lavender (2005) 222 CLR.Due to the absence in the requirement to prove the 'malice' elements, Criminal Negligence manslaughter needs to be proven by a very high degree of negligence such that a reasonable person would regard the conduct (or omission) as being 'gross' or 'wicked'. However, it must be noted that the 'reasonable person' is a purely objective test and hence the 'reasonable person' does not need to take into account any of the accused's individual circumstances (unlike the partial subjective test in the case of UDA manslaughter). At common law, to establish that a person committed 'Criminal Negligence' manslaughter, the prosecution needs to establish that in the circumstances:Actus Reusthe accused owed a duty of care to the victimthe accused performed a voluntary act (or omission) which breached that duty of careNB: Discuss 'Voluntariness': see 'Murder' above the breach of the duty of care caused the death of the victimNB: Discuss 'Causation': see 'Murder' above Mens Rea is a Jury QuestionAs no 'malice' elements need to be proven, the question is whether the accused ran the risk which a reasonable person would have forseen as being a breach in the duty of care and the breach of the duty of care was 'grossly' or 'wickedly' negligent that it merited criminal punishment given that a 'reasonable person' would have realised that such a breach would cause a high risk of death/GBH. Would indicates probable foresight DEFENCESPotential arguments of delay caused by the victim itself, in the case of overdose, the excessive self-administration by the victim (Taktak).D can argue 'No duty existed' (to the victim) as there was no special relationship unlike the case of R v Russell [1933] VLR 59 where a husband watched his wife drown their children and eventually herself. The 'No duty' argument was rejected in Stone and Dobinson as the court ruled that the Accused and Defendant were blood relatives. For instance, there is no duty to rescue a drowning stranger: D can argue 'No Knowledge' (unlike the case of R v Instan (1893) 17 Cox CC 602) of the victim's weakness/circumstance such as ailment, drug addiction, psychiatric disease, mixture of drugs and alcohol (People v Beardsley (1907) 113 NW 1128). Even so if D has a mental ailment (R v George (2004) 149 A Crim R): see - Donna Spears pg 19Other factors such as calling an ambulance rendering CPR (where the accused is incompetent) may be relevantAlso see defences raised under Murder aboveTENTATIVE CONCLUSIONApply relevant sections / information from above to case facts and arrive at conclusionStandard of CareNydam v R [1977] VR 430, WW [5.21C], Manslaughter by OmissionWW [5.6]R v Instan (1893) 17 Cox CC 602, WW [5.25C]; GangreneR v Stone & Dobinson [1977] 1 QB 54, WW [5.27C];R v Taktak (1988) 34 A Crim R 334, WW [5.32];Sexual Offencesss 35 to 38 WW [3.14E] pg 101, Crimes (Sexual Offences) Act 2006 s.5 (inserting ss. 37A and 37B)In Victoria the core sexual assault offence is rape (no longer dealt with under common law as a result of the enactment of statutory provisions). The 2 Actus Reus elements required to prove rape are:sexual penetrationdiscuss definitionno valid consent by victimdiscuss factors which are 'for' and 'against' this issueMens rea elements include:the accused's intention to penetrate the victim: hardly ever an issue in question (see R v Evans (1987) 30 A Crim R 262 where this was an issue). Nonetheless, the word 'intentionally' in s38 emphasizes the requirement to establish the presence of this mens rea element.discuss factors which are 'for' and 'against' this issue as intent needs to be inferred from factsaccused's knowledge (s 38(2)(a)(i)) or recklessness (s 38(2)(a)(ii)) that the victim was not consenting (prosecution needs to prove this beyond reasonable doubt by drawing inferences from the accused's actions based on the circumstances and facts as they existed)discuss factors which are 'for' and 'against' this issueDefencesWhether D can invoke sufficient doubt by inferring that the facts prove that he did not know of the V's lacking consent or was not reckless towards the issue of V's consent (or lack thereof). Any evidence to suggesting that D took reasonably advertent steps to ensure that V was consenting will be weighed in his favour by the jury. This may be inferred by a chain of acts or ongoing events that occur from the time when D and V accompany each other.Where V is mistaken of D's identity, D may argue that they acted on V's consent. This argument is likely to fail as a result of deeming provisions. D can argue that he was not aware of V's mistaken belief. In such circumstances, the argument will fail as in order to lead evidence that D was not reckless, D needs to prove that he adverted or took steps to ensure that V has consented.Where V was sleepy (but not unconscious - i.e. V was awake but drowsy) D may argue that sleepiness by itself does not diminish one's ability to make decisions (acknowledging that sleepiness may affect one's ability to make sensible, reasonable or good decisions).Sexual gratification was incidental to performing medical procedure (for which consent was given). To prove this, D needs to show that no additional acts were performed on V other than those which were required for the procedure (and would have arguably been conducted by any other competent medical professional). Then Crown may argue that D did not act in 'good faith'.Sexual Penetration:s 35(1) - provides a definition of sexual penetration -sexual penetration is the introduction (to any extent) of any object, part of a person's body or penis into the vagina, anus or mouth of another person (regardless of emission of semen) other than in the course of a procedure carried out in good faith for medical or hygienic purposes.Rape:To prove rape, the prosecution needs to establish that either of the following provisions were breached:s 38(2)(a) - the accused commits the crime of rape (Level 2 -25 years) if they sexually penetrate the victim without their consent and while (Director of Public Prosecutions v Morgan [1976] AC 182):being aware that the victim was not or might not be consenting; ornot giving any thought to whether the person is not or might not be consenting (reckless rape: Banditt v R (2005) 224 CLR 262: judge directed jury that accused will be reckless if they are satisfied that the accused did not consider if V was going to consent or not, or alternatively, if the accused recognised that there was a possibility of 'lacking consent' and the accused went ahead and performed the act anyway. On appeal, High Court unanimously dismissed the accused's appeal by approving the trial judge's direction on the issue of recklessness)s 38(2)(b) - rape is also committed where the victim withdraws their consent after sexual penetration (by the accused), and the accused fails to withdraw (their act of sexual penetration) from the victim while they are aware that the victim is not or might not be consenting. [Appeal to Privy Council from NZ: Kaitamaki v R]s 38(3)(a) - accused compelled their victim to sexually penetrate the accused or another person (regardless of whether the person penetrated is consenting) - i.e. as long as the victim does not consent and the accused is aware of that they are not consenting or might not be consenting, the offence is proven (see: s38(4)(a)(b))s 38(3)(b) - the victim sexually penetrated the accused or another person and the accused compels the victim not to cease the act of sexually penetrating the accused or another person (regardless of whether the accused or other penetrated person is consenting) - i.e. as long as the victim does not consent and the accused is aware of that they are not consenting or might not be consenting, the offence is proven (see: s38(4)(a)(b))NB: No element of force is necessary to prove that the accused compelled their victim or another person as a result of s 38(4). The offence of rape is enacted under s 38(1) which is a Level 2 offence - max penalty 25 yearsCompelling Sexual Penetration: (of the victim by themselves)To prove this offence, the prosecution needs to establish that either of the following operative provisions were breached:s 38A(2): the accused compelled the victim to penetrate themselves with an object or any other part of their own body (i.e. the victim's body itself)NB: No element of force is necessary to prove that the accused compelled their victim or another person as a result of s 38(4). The offence for compelling sexual penetration is enacted under s 38A(1) which is a Level 2 offence - max penalty 25 yearsWas there a valid consent?The answer to this question involves examining the facts of the case which indicate whether (or not) the victim's consent may have been vitiated in light of the circumstances present in section 36. As the question of consent is directed to the jury, it is noted that s 36 provides a non-exhaustive list of circumstances where consent is deemed to have been vitiated by virtue of 37AAA(b) and accordingly, the judge will need to direct the jury where such finding exists.s 36 Consent means free agreement (Question of Law (No.1 of 1993) (1993) 59 SASR 214). Circumstances in which a person does not freely agree to an act include (non-exhaustive definition of 'consent') the following – the person submits because of force or the fear of force to that person or someone else; (it is submitted that this provision will negate consent where a person in the victim's position in Zanker v Vartzokas (1988) 34 A Crim R 11 agrees to perform sexual acts based on the threats made by the accused)the person submits because of the fear of harm of any type to that person or someone else; (arguably the words any type reflect Parliament's intention to give a broad definition to types of harm suffered by a victim including social, economic or financial harm)the person submits because she or he is unlawfully detained; (it is submitted that this provision will negate consent where a person in the victim's position in Zanker v Vartzokas (1988) 34 A Crim R 11 agrees to perform sexual acts assuming that there were no verbal threats made by the accused)the person is asleep, unconscious, or so affected by alcohol or another drug as to be incapable of freely agreeing; (Banditt v R (2005) 224 CLR 262), (Gallienne [1964] NSWR 919)the person is incapable of understanding the sexual nature of the act; (R v Williams [1923] 1 KB 340)the person is mistaken about the sexual nature of the act or the identity of the person; (R v Flattery (1877) 2 QBD 410) and (Papadimitropoulos v R (1957) 98 CLR 249), (Gallienne [1964] NSWR 919) (also see facts in Collins v R [1973] QB 100) respectivelythe person mistakenly believes that the act is for medical or hygienic purposes (R v Mobilio [1991] 1 VR 339) s 57 Procuring sexual penetration by threats or fraudA person must not by threats or intimidation procure a person to take part in an act of sexual penetration. (R v Harms [1944] 2 DLR 61 (Sask)) also this provision overrides the decision in R v Aiken (2005) 63 NSWLR 719 where accused blackmailed V into performing sexual favours after catching her stealing: see WW pgs 127-9Penalty: Level 5 imprisonment (10 years maximum).A person must not by any fraudulent means procure a person to take part in an act of sexual penetration. (Linekar [1995] 3 All ER 69)Penalty: Level 6 imprisonment (5 years maximum).s 37AAA: jury directions on consent (i.e. the accused's actus element is related to the victim's state of mind in respect of the question on consent)If jury is satisfied Beyond Reasonable Doubt that any of the circumstances in s36 apply to the victim's circumstances, then the jury must find that the victim did not consent [s37AAA(c)]Not saying / doing anything to indicate free agreement (examine facts closely in this regard) is enough to show absence of consent [s37AAA(d)] (R v Laz [1998] 1 VR 453)A person is not to be regarded as having freely agreed to a sexual act just because [s37AAA(e)]:she or he did not protest or physically resist; or (R v Wilkes & Bryant [1965] VR 475) she or he did not sustain physical injury; or (see facts in Collins v R [1973] QB 100) on that or an earlier occasion, she or he freely agreed to engage in another sexual act (cf: Gregory v R (1983) 48 ALR 427)s 37AA: directions on accused's belief in consent (i.e. mens rea element)This provision deals with cases where the accused presents evidence or leads an assertion that they (honestly) believed that the victim was consenting (eg: like the appellants claims in Director of Public Prosecutions v Morgan [1976] AC 182). In such instances, the judge must direct the jury [under s37AA(b)] that in considering whether the accused believed that the victim was consenting, the jury must consider (from the accused's standpoint: hence partially subjective) whether the accused's belief was reasonable (consistent with the view stated in: R v Sargozza [1984] VR 187). In considering the reasonableness of the belief, the jury also needs to have regard to the nature of any steps taken (thereby inferring 'advertence' or 'inadvertence') by the accused (if any) to ascertain whether the victim was or might not be consenting: [see: s37AA(b)(ii)] (consistent with the approach in: R v Kitchener [1984] VR 187)Guiding principles under s 37B sexual offences are significantly under-reported (perhaps due to victim's fear of consequences to be faced by making known their suffering - therefore a call for courts to approach such matters with the aim of deterring the community from such offences is probably warranted)sexual offenders are commonly known to their victimsvictims are usually the feeble and most vulnerable members of society - women, children, elderlyCommon law presumptions abolished: s?62(1) - assumption that a male aged under 14 is conclusively presumed to be impotents?62(2) - presumption of consent by 'marriage'Complainant’s consent: Question of Law (No.1 of 1993) (1993) 59 SASR 214; WW [3.23C]: consent needs to be freely given even between husband & wife and any evidence of non-consensual 'rougher than usual handling' may hold sufficient weight in the jury's decision on the question of whether consent was vitiated.R v Laz [1998] 1 VR 453 [3.22C]: Not saying / doing anything to indicate free agreement is enough to show absence of consentFraud: s.57 R v Clarence (1888) 22 QBD 22; WW[3.20C]; Linekar [1995] 3 All ER 69, WW [3.32];; R v Mobilio [1991] 1 VR 339 WW [3.30]; R v Harms [1944] 2 DLR 61 (Sask), WW [3.28] Where Accused 's actions are fraudulent but Victim does not realize/understand what the accused was doing: R v Williams [1923] 1 KB 340, [1922] All ER Rep 433, WW [3.27] WW [3.14E], [3.7]-[3.9], [3.19]Other OffencesIndecent Assault: s?39 Crimes Act [3.14E]Assault with intent to rape: s?40Sexual Offences against Children: ss?45-49A, 58 Crimes Act (as amended by Crimes (Sexual Offences) Act 2006)Sexual Offences against Persons with a Cognitive Impairment: ss?50-52 Crimes Act (as amended by Crimes (Sexual Offences) Act 2006)Sexual Servitude: Crimes Act ss 60AB-60AE, R v Tang (2008) 249 ALR 200, WW [3.72C]THEFT Crimes Act 1958, s?72, s?73 & s?74: WW [7.9E]OPERATING PROVISION:s74. Theft: A person guilty of theft is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).s 72(1) Basic definition of theft A person steals if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.Actus: appropriation, property belonging to anotherAppropriation: statutory and judicial definitions (any assumption of the rights of an owner)Consent and appropriationMens: dishonesty, intention to permanently depriveDishonesty: statutory and judicial definitions (not a question of 'ordinary' meaning/standards)ACTUS REUS'Appropriates' – s 73(4)-(5): appropriation has a wide definition [Lawrence and Gomez] s 73(4) covers situations where V obtains property (regardless of whether V obtains it innocently) from D and the property has been sourced by D (i.e. loaned or borrowed) from someone else. V's act of obtaining the property (for a value: indicates the requirement for a payment) will constitute an appropriation although if such appropriation is made by V in good faith, it will not amount to theft: s 73(5). Note that there is no mention of 'dishonesty' under subsection (5) as there intends to be an expectation of a transaction made in good faith (i.e. non arms-length deals will be caught out).Under s73(4), Any assumption of any of the rights of ownership will constitute an appropriation: Stein v Henshall, W v Woodrow. i.e. no need to prove that D had 'an intention to exclude all others'. Lawrence [1972] AC 626: entails that every offence of obtaining property by deception will also fall within theft (cf. Morris) Gomez: D, an employee, conspired to induce store manager to accept cheques from third party in exchange for goods. Held: Morris failed to distinguish issues of appropriation from dishonesty – the preferred approach, in Lawrence, is that they are separate: "consent to or authorisation by the owner of the taking" is irrelevant. Thus, on the examples discussed in Morris, either removing items from a shelf or interfering with price tags would constitute an 'appropriation' – irrespective of D's intent, and irrespective of the owner's consent. This approach accords with s 73(4): assumption or exercise of any of the rights of ownershipAlso see pg 84 from Donna Spears - Basically where V gives their consent to D to take possession of property from V, there is no appropriation. But V's consent is vitiated if it can be proven that D obtained the consent by fraud/deception: Baruday [1984] VR 685. The fraud / deception may be inferred from the facts where D exceeds the authority to which V consented.Roffel (cf MacLeod) [WW 7.44C]: D and his wife were sole shareholders/directors of company, and D drew cheques on company's account for private expense (to defraud creditors). Dishonesty/ultra vires are "not to the point" – company consented as D supplies its 'directing mind and will':"The Crown doubtless relies on the receipt of the money from the company's bankers as the act of appropriation. But where is the element of usurpation of the company's rights…? [this was one of the tests in Morris] There was no evidence to suggest that the company did not intend the applicant to have the money and to use it for his own purposes."'Property belonging to another' defined under s 71(2) ss 71, 73(6)-(11): [Turner - the question is whether the person from whom the property was taken/appropriated 'had possession and control' (in fact and not necessarily in law)]Property defined under s 71(1)"Property includes money and all other property real and personal including things in action and other intangible property" Exceptions re. land and wild animals: ss 73(6)-(7)s 71(2): Property 'belongs' to "any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest)."Hence property will 'belong to another' where some person other than D has ownership, or:Possession of the property; orControl or custody of the property; orAny proprietary interest or right in the property – this includes most equitable interests, such as those of the beneficiary of a trust, but excluding minimal promissory interests: see also s 73(8)-(10)What does not thus 'belong' to anyone (eg. bona vacantia) cannot be stolenMENS REA'Intention of permanently depriving' The general test per s 73(12): whether intention is 'equivalent to an outright taking or disposal:'"A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other's rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal"But see, eg., R v Warner (1970): an intention to return property presently is not treating it as one's own conditional appropriations: s 73(12)-(13) [Sharp v McCormick: issue of taking motor car coil for purpose of seeing whether it was the correct size and if so, the accused's intention to keep it whereas the intention to return it if it did not fit. The question was held to be different to what is considered to be a 'conditional appropriation' (as was the case in Easom) then the charge of theft may fail but a charge of attempted theft may suffice]. Held: "To say that his intention to return it to his employer if it did not fit his motor car was an intention to have regard to the rights of his employer is … an abuse of language" NB. Temporal coincidence issue: (probable defence) at the time of the appropriation, was D treating the property as his own? Intention to return property in altered condition: Lloyd [1985] QB 829: D removed films from his employer to produce unauthorised copies. Held: borrowing for a few hours could only amount to an 'outright taking' if D had intended to return the property in such a state that "all its goodness or virtue had gone" However, the original films could still be shown to paying audiences at the cinema – the property was not essentially devalued (cf. used tickets, batteries)The 'pawning principle:' s 73(13). IPD if D parts with another's property under a condition as to its return which he may not be able to perform Motor vehicles or aircraft: s 73(14) deems (as conclusive evidence for the purpose of theft) that the person intended to permanently deprive the owner when they take or use a motor vehicle or aircraft. [NB: where a police officer does this, although it may constitute 'intention to permanently deprive', it is unlikely that the officer will be charged with theft as they will not be dishonest presuming they are acting lawfully].'Dishonestly' – s 73(2)-(3): [Salvo, Brow and Bonollo]Generally means 'without legal claim of right' this applies to crimes of theft and deception (i.e. s73, s81 and s82). Victorian courts have deduced a legal definition of dishonesty from the partial negative definition under s73(2).Salvo: The special sense of dishonesty is: 'with disposition to defraud' or 'withhold from another what is his right' This requires appropriation with belief in lawful right. Not a defence that D believed he was the owner of the property: "What will exonerate [acquit] is a belief that the accused has a legal right to or in respect of 'the property' which … would make it lawful in all the actual circumstances (that is to say, not an infringement of the civil or criminal law)"The 'constant import' of dishonesty in Division 2 of the Crimes Act (inc. ss 81-83, 86 and 88) is thus 'without subjective belief in' or 'claim of legal right' NB. Not necessary to use 'legal language' before jury.Deeming provisions in s 73(2)-(3) specify other beliefs which will negate dishonesty in respect of theft only. As subs (2)(a) sets out the principle, there is no residual meaning of dishonesty for theft not defined by statute.Brow and Bonollo [WW 7.72C-73C] confirm the approach of Salvo, and add that it is irrelevant that D believes the conduct will not cause loss See s 73(3): may be dishonest notwithstanding that D is willing to pay for the property appropriated s73(2) A person's appropriation of property belonging to another is not to beregarded as dishonest- (a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or (b) if he appropriates the property in the belief that he would have the other's consent if the other knew of the appropriation and the circumstances of it; or (c) (except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.s73(3) A person's appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property.OBTAINING PROPERTY / FINANCIAL ADVANTAGE BY DECEPTIONClosely related to theft are offences in ss 81-82:The crucial factor in these offences, deception, is not necessary for theft – but nor is it exclusive of theftOther common factors: dishonesty, property belonging to another, intention of permanently deprivingBut note differences … and that s 73(1)-(11) don't applyConsent - Lawrence establishes that where D exceeds the boundaries of V's consent, it will amount to a deception (mens rea - see below).Lawrence: D deceives V as to the cost of his taxi fare, and appropriates, with V's 'consent,' an extra ?6. In holding that there is an act of appropriation even with consent, the court extends theft into the range of cases covered by the offences of deception: "there is nothing in the Act to suggest they should be regarded as mutually exclusive"ie. Appropriation includes every kind of 'obtaining's81. Obtaining property by deceptionA person who by any deception* dishonestly obtains property belonging to another, with the intention of permanently depriving the other of it, is guilty of an indictable offence (10 years maximum)Actus ReusObtaining: s 81(2)Covers obtaining "ownership, possession or control" For oneself or another, or by enabling another to obtain or retainProperty belonging to anotherPer s 71: money, all other property real or personal …NB. Limitations in s 73(6)-(10) do not applyie. An offence to obtain land/wild animals by deceptionThings in action:Parsons v R [WW 7.89C]: a cheque confers but does not 'transfer' or 'assign' intangible rights… so no right that has belonged to another is obtained. But the tangible cheque is also a 'valuable instrument,' which D deprives of value on its presentation for paymentMens Rea - see belows82. Obtaining financial advantage by deception(1)A person who by any deception dishonestly obtains for himself a financial advantage*, is guilty of an indictable offence (10 years maximum)See s 81(4): a deliberate or reckless false representation by words or by conduct; or unauthorised use of computer systemRelevant where no property passes (eg. credit, services), or if no intention to permanently deprive (eg. hire of goods). Actus ReusObtaining: s 81(2)Covers obtaining "ownership, possession or control" For oneself or another, or by enabling another to obtain or retainFinancial advantageRelevant when no property can be identifiedeg. Credit/overdraft, services without paymentOr: property but no intention to permanently deprive eg. Hired goods returned without paymentFisher v Bennett:Financial advantage is a question of fact in each case, but "involves a situation which from the financial aspect is more beneficial" to the person concerned than the relevant 'but for' situationThus there must be an actual benefit: in the instant case, D was in debt and passed worthless cheques to his creditors… but the debt was still owed and interest continued to accrue (only an advantage if debt forgiven)MENS REA - FOR BOTH OPD & OFADDeceptionPer s 81(4), deception in either offence:means any deception (whether deliberate or reckless) by words or conduct as to fact or as to law, including a deception as to the present intentions of the person using the deception or any other person; andincludes an act or thing done or omitted to be done with the intention of causing—a computer system; ora machine that is designed to operate by means of payment or identification—to make a response that the person doing or omitting to do the act or thing is not authorised to cause the computer system or machine to make.Deception is inducing another 'to believe a that a thing is true which is false'Intentional if D knew of or believed in the falsehoodReckless if D knew there was a 'substantial risk' of falsehood (R v Smith (1982) 7 A Crim R 437) Must show a causal link between deception and obtainingBut no requirement "that the person deceived must suffer any loss arising from the deception" (Kovacs [1974] 1 All ER 1236)DPP v Ray [WW 7.86C]:Facts: D ordered a restaurant meal with the intention of paying for it, but later decided to leave without paymentHeld: 'words or conduct' constituting the deception need not coincide with intention to deceive … a court cannot "draw a line through the transaction at the point where the intention changed" and search for deceptive conduct only after thatDishonestySalvo: same meaning here as in theft, with the caveat that the conditions in s73(2)(b)-(c) and (3) do not applyie. No belief in a 'claim of legal right'Intention to permanently depriveOnly relevant to property: s81(3)Same as in theft: intention to treat as one's own to dispose of regardless of the other's rights External/Physical elementsAppropriatess?73(4) [any assumption; keeping] [7.34]–[7.36] s?73(5) [bona fide transferee for value];Stein v Henshall [1976] VR 612 WW [7.33C]; W (a?child) v Woodrow [1988] VR 358 WW[7.37]; Lawrence [1972] AC 626 WW[7.96C]; Morris [1984] AC 320 WW [7.42C]; Gomez [1993] 1 All ER 1 WW[7.46C]; Baruday [1984] VR 685 WW[7.43C]; Roffel [1985] VR 511 WW [7.44C]; R v Hinks [2000] 4 All ER 833 WW [7.47C]. Propertys?71(1) [money; real or personal property; tangible or intangible] [7.13];Oxford v Moss (1978) 68 Cr App R 183 WW[7.55]; Parsons v R (1999) 160 ALR 531 WW [7.89C].Belonging to another [7.14]–[7.19] s?71(2) [possession, control; any proprietary right] Turner (No?2) [7.24C]; Meredith [1973] Crim LR 253 [7.26]; Greenberg [1972] Crim LR 331 [7.15]; Parsons (1999) 160 ALR 531 [7.89C]. Further definitions of ‘belonging to another’: s.73(8)-(11)Hall [1972] 2 All ER 1009 [7.27C]; Meech [1974] QB 549 [7.28C]; Gilks [1972] 3 All ER 280 [7.29C]; AG’s Ref (No?1 of 1985) [1986] 2 WLR 733 [7.32C];Fault elementsIntention to permanently deprive [7.52] s?73(12) [treat as own; borrowing or lending for period]; Warner (1970) 55 Cr App R 93 [7.56]; Lloyd [1985] 3 WLR 30 WW [7.57]; R v Dardovska (2003) 6 VR 628 WW[7.51C]; Sharp v McCormick [1986] VR 869 WW [7.50C].s?73(13) [parting under condition as to return];s?73(14) [motor cars; aircraft]Dishonestlys?73(2), 73(3) [7.58]-[7.64], s?73(2)(a) [claim of right]; Langham (1984) 36 SASR 48 WW[6.88C] s 73(2)(b) [consent] s?73(2)(c) [belief that owner cannot be found] s?73(3) [willingness to pay] Is there a residual meaning to ‘dishonesty’?UK: Feely [1973] 1 QB 530 WW[7.65C]; Ghosh [1982] QB 1053 WW[7.66]Vic: Salvo [1980] VR 401 WW[7.71C]; Brow [1981] VR 783 WW[7.72C]; Bonollo [1981] VR 633 WW[7.73C], [7.74]-[7.76]Cth: Peters (1998) 192 CLR 493 WW[7.74]; Williams, Property Offences, 44-8 ,131-139TOPIC SEVEN:OBTAINING BY DECEPTIONObtaining property by deceptionS?81 [7.77E]External/Physical elementsDeceptions?81(4) [deliberate, reckless, words, conduct, fact, law]; Gilmartin [1983] 1 All ER 829; WW[7.94]; Ray (1974] WW[7.86C]; Smith (1982) 7 A Crim R 437 WW[7.93]; computers/machines s?81(4)(b)Obtains (by deception)s?81(2) [for self or others]; WW[7.98]; Perera [1907] VLR 240 WW[7.98] [ 6.66]; Kovacs [1974] 1 All ER 1236 WW[7.87C]; Lambie [1982] 2 All ER 776 WW [7.88C].Propertys?71(1) applies [money; real or personal; tangible; intangible]. See above, THEFT.See also Williams, Property Offences, 180-2Belonging to another:s 71(2) applies [possession; control; any proprietary right]. See above, THEFT.See also Williams, Property Offences, at 182Fault elementsIntention to permanently deprives?81(3) [incorporating s?73(12) & s?73(13)]Dishonestlyss?73(2) & (3) do not apply: Salvo WW[7.71C]; Brow WW[7.72C]; Bonollo WW [7.73C]See also Williams, Property Offences, 176-9, 183Obtaining financial advantage by deceptionWilliams, Property Offences, 183-8s?82 WW [7.77E] and [7.80]-[7.83]Deceptions 82(2) (incorporates 81(4))Obtains[for self or others] Financial advantageR v Vasic [2005] VSCA 38, WW [7.90C]Dishonestly[same as for s?81]TOPIC EIGHT:ROBBERY, BURGLARY Robbery s?75 [7.99E]Steals see above, THEFT.Force/fear of force[uses, puts or seeks to put in fear] [then and there]Before or at timeIn order to stealArmed robberys?75A WW[7.99E]; and see s.77(1); Williams, Property Offences, 240-241.Burglarys?76 WW[7.99E]Entry as a trespasserCollins [1973] QB 100 WW[7.101C]; Barker (1983) 47 ALR 1 WW[7.103C] Building or partWalkington [1979] 2 All ER 716 WW[7.102C] s?76(2) [inhabited vehicle or vessel]With intent to(i)steal; or(ii)commit an offence(a)assault(b)damagepunishable by 5 years imprisonment or moreWalkington [1979] 2 All ER 716 [7.102C]Aggravated burglarys?77 [firearms; explosives; offensive weapon; knows another person present] WW[7.99E].Topic Nine: Criminal ProcedureAll Criminal Procedure references are to Fox, R.G., Victorian Criminal Procedure (12th ed.) unless otherwise indicated.Part 1: Introduction(a)Sources of LawFederal and State [1.1.1]Common law and statute [1.1.2]Federal Use of State Courts and Laws on Procedure [1.1.4.1](b)Classification of OffencesGenerally: State [1.2.1](c)Jurisdiction (Persons)Children [1.3.6.3] Individuals with mental impairment (ss?20-25 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).(d)Jurisdiction (Territory)[1.4.1](e)Jurisdiction (Time)[1.5.1](f)Courts Exercising Criminal JurisdictionMagistrate’s Court [3.2.1] and [3.2.8]Children’s Court [3.3.1] and [3.3.3]County Court [3.4.1] and [3.4.3]Supreme Court [3.5.1] and [3.5.3]Part 2: Arrest, Detention, Search and Seizure(a)ArrestArrest without warrant [4.2.2]-[4.2.2.3], [4.2.2.5]Arrest under warrant [4.2.3]Executing an arrest [4.2.4](b)DetentionFor questioning or investigation [4.2.5.1]-[4.2.5.2], [4.2.5.4], [4.2.5.5] and [4.2.5.6];Identification [4.2.6.1], [4.2.6.3] and [4.2.7](c)Search and SeizureWithout a warrant [4.2.9.1]With a warrant [4.2.9.2]Seizure and return of property [4.2.10]Part 3: Bail and the Prosecution Process(a)BailThe Nature of Bail [5.2.1], [5.2.2], [5.2.4]-[5.2.8]Who May Grant Bail [5.4]Bail Act Criteria [5.5.2] and [5.5.3]Forfeiture of Bail [5.8](b)The Machinery of ProsecutionsIndictable Offences–State [2.2.2.1] Discretion to Initiate Prosecutions [2.3.1]-[2.3.3]Discretion to Discontinue Proceedings [2.5.1] and [2.5.2]Plea Bargaining [2.7](c)The Commencement of ProcessCharge [4.3.1], [4.3.2]-[4.3.6]Presentment by the Director of Public Prosecutions [4.4.1.2]-[4.4.1.3] and [4.4.2.1](d)Offences Triable Summarily(e)Indictable Offences Triable SummarilyCriminal Procedure Act, s 28 and Sch 2(f)Committal ProceedingsPurposes [7.1]Obligation to conduct [7.2](g)Trial of Indictable OffencesArraignment [8.5]Plea [8.6]Verdict [8.9]Part 4: Sentencing(a)Sentencing (Generally)State and Federal [9.1.1] and [9.1.2]The Sentencing Hearing [9.2.1]-[9.2.3]Statutory Sentencing Principles [9.3.1] and [9.3.3](b)Sentencing OptionsDismissal, Discharge, Adjournment and Deferral [9.4.1]-[9.4.5]Fines [9.5.1]-[9.5.4], [9.5.8]Community-Based Orders [9.6.1], [9.6.3], [9.6.8]Suspended Sentences of Imprisonment [9.7.1], [9.7.3], [9.7.5]-[9.7.6] and [9.7.9]Intensive Correction Orders [9.8.1], [9.8.3], [9.8.6]Custodial Sentences [9.10.1]-[9.10.3], [9.10.9.1]Indefinite Sentence of Imprisonment [9.11.1]Parole [9.12.1], [9.12.3]-[9.12.4]ReferenceWaller, L. & Williams, C.R., Criminal Law Text and Cases (11th?ed.), Sydney: Butterworths, 2009 (hereafter ‘WW’) (Please note: students are required to obtain copies of this book, which should be brought to class).Crimes Act 1958 (Vic.) Current reprint. (Please note: students are not required to obtain a copy. The full Act may be accessed electronically at legislation..au).Fox, R.G., Victorian Criminal Procedure (12th?ed.), Melbourne: Monash Law Book Co-operative, Legibook, 2005 (hereafter ‘Fox’). Substantial extracts from Fox are contained in these materials, and are reproduced with the permission of the author.Bronitt, S and McSherry, B., Principles of Criminal Law (2nd ed), Sydney: LBC, 2005 (hereafter ‘B&McS’).Clough, J and Mulhern C., Butterworths Tutorial Series: Criminal Law (2nd?ed.), Sydney: Butterworths, 2004 (hereafter ‘C&M’).McSherry, B and Naylor, B., Australian Criminal Laws: Critical Perspectives: Oxford University Press, 2004 (hereafter ‘M&N’).All section references are to the Crimes Act 1958 (Vic) unless otherwise ic One: Introduction to Criminal LawPart 1: What is a Crime?WW [1.2]-[1.6]Part 2: Aims of the Criminal LawWW [1.29]-[1.40]R v Brown [1994] 1 AC 212, WW [2.37C] (a)Traditional Classifications of OffencesActus non facit reus nisi mens sit rea: WW [1.10]-[1.20].(b)Fault Elements: (‘Mens Rea’)Intention (cf motive)Recklessness (cf. wilful blindness)KnowledgeNegligence(i)External/Physical and Fault Elements Must be ContemporaneousFagan v Metropolitan Police Commissioner [1968] 3 All ER 422 WW [2.20C] Thabo Meli v R [1954] 1 All ER 373, WW [4.52C] (d)Strict liability/Absolute LiabilityWW [1.18](e)Proving Criminal ResponsibilityWW [1.58]-[1.72]Topic Two: Non-fatal, Non-sexual Offences Against the PersonPart 1: Common Law Assault(a)GenerallyWW [2.1]-[2.2]R v Patton [1998] 1 VR 7, WW [2.21C] - Common law assault still existsS.23 Summary Offences Act 1966(i)Assault/Battery(ii)Aggravated AssaultWW [2.9]-[2.12](b)Definition of AssaultFagan v Metropolitan Police Commissioner [1968] 3 All ER 422, WW [2.20C](c)External/Physical Elements (i)Non-physical interferencePositive Act/words R v Ireland [1997] 4 All ER 225, WW [2.35]Apprehension of Violence WW [2.6]-[2.8](ii)Physical Interference(d)Fault Elements(i)Intention/RecklessnessWW [2.5]R v Campbell [1997] 2 VR 585 [WW 2.24C]Part 2: Offences against the person under the Crimes Act 1958 (Vic)(ss 16, 17, 18, 19A, 20, 21, 21A, 22, 23 and 24)(a)GenerallyWW [2.13](b)External/Physical Elements(i)Cause(ii)Injury(s.18) defined in s.15Intention to cause the injury is required. Evidence of intention to do the 'act' by itself is insufficient (Westaway)(iii)Serious Injury(ss 16, 17 and 24) defined in s 15(iv)Very Serious Disease(s.19A) defined in s.19A(2) C&M [2.51], B&McS pp 517-518(v)Threat to Kill/Inflict Serious Injury(ss 20 and 21)(c)Fault Elements (i)Intention(ss 16, 18, 19A, 20(a), 21(a)) R v Westaway (1991) 52 A Crim R 336, WW [2.27C](ii)Recklessness(ss 17, 18, 20(b), 21(b), R v Campbell [1997] 2 VR 585, WW [2.24C](iii)Negligence(s.24) (d)Consent, hostility and lawful excuseWW [2.3]-[2.4]R v Brown [1994] 1 AC 212, WW [2.37C]R v Stein [2007] VSCA 300, WW [2.39]Surgery: WW [2.15] and [2.44]Boxing: WW [2.43](e)Stalkings.21A; WW [2.17] ................
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