LAW3301 Criminal Law and Procedure A

Is the human
victim dead?
Yes = No =
Homicide Assault
Was Ds act or Physical contact

omission
voluntary? Yes No
Did it cause No = basic Did it cause

harm? common law fear?
Yes assault
Yes Yes
Did D cause
Vs death? Yes =
aggravated Was Ds voluntary
common law act or omission See Crimes Act if threat to
Yes and an act assault that caused harm kill or cause serious injury,
(physical (was it serious or or common law if threat to
interference) not1) intended or cause injury (non-physical
Did D possess reckless (& MR held interference).
the requisite contemporaneously)?
Yes and an omission
mens rea (6 of Yes

them)? No
Contemporane Yes and Yes and

ously with the intended reckless
Was Ds voluntary act
AR? Yes = (threat) intended, or
Guilty of reckless as, to cause
murder Harm was: fear (& MR held
Injury = s18 contemporaneously)?
No Serious injury
= s16
Was Ds act unlawful and dangerous?
Harm was: Yes
Was Ds act negligent? Injury = s18
Serious
Was Ds omission negligent? injury = s17
Threat was to:
Kill = s20
Cause serious
injury = s21
Neither
Act or
Yes = Guilty of omission was
manslaughter LAST: Is self-
negligent = defence available
s24 to anything?
*Remember keep all actus reus
and mens rea bits together. 1 the type of the injury (serious or not) is a question for the jury.
[Type text] [Type text] [Type
Questions of fact text]
for jury.
(1) Theories, procedure and proving criminal
responsibility
Definition of a crime
A crime (or offence) is a legal wrong that can be followed by criminal proceedings
which may result in punishment (Professor Glanville Williams).
Crimes are such acts or omissions as are prohibited under appropriate penal
provisions by authority of the State. Conduct is criminal because it is a crime (per
Lord Atkins in Proprietary Articles Trade Association).
The acts prohibited:

i. Must be injurious to the public; and
ii. Involve a moral wrongdoing.
(Waller & Williams)
Crimes usually involve invasions of the rights of life, liberty or property.
Patrick Devlin sees crimes as acts morally unacceptable by the reasonable person
(Devlins reasonable person is not a construct of reason, but of commonly accepted
views at that time).
Society is held together by moral bonds. Weakening moral positions weakens these
bonds and will lead to societys destruction. Therefore the criminal law must preserve
morality.
It does not need to be a public breach; an immoral act committed in absolute privacy
is as immoral as an act committed publicly.
[Type text] [Type text] [Type text]

JS Mill:
Crimes cause physical harm to others (other-regarding actions). They cannot prevent
the individual harming himself (self-regarding actions). Harm is physical and not
emotional (any act that only causes emotional harm is self-regarding).
Such liberalism is fundamental because it protects the individual from what Mill calls
the tyranny of the majority. Under Mills tyranny, the prevailing opinions of the
majority define the rules of conduct within society. The majority is not necessarily
correct. The only safeguard against this is to ensure that every act is legal, except
those actions that society as a whole wants to prevent (Mills harm principle; the
actions that are contrary to self-preservation harm).
H L A Hart bridges the theories of Devlin and Mill; crimes are activities that cause
harm, physical or emotional, to others or the self. Every other act should be legal.
Laws are paternalistic and not moralistic.
Aims of the criminal law
1. Retribution
Crimes are wrongs and justify punishment even if it serves no useful purpose.
A controlled means for revenge; stops people from seeking individual
retribution.
2. Deterrence
If the pain inflicted through punishment is greater than the pleasure derived
from performing the prohibited act the potential criminal should be deterred.
Conflicts with basic notions of justice; a starving person desperately needs
food and so would require a more severe form of punishment to deter them
from stealing some than it would take to deter a wealthy person, who doesnt
need the food, from doing the same act.
3. Rehabilitation
Crime is a social disease. Reforming the criminal to lead a non-criminal life

reduces the extent of the disease.
4. Denunciation
Public condemnation of behaviour to show people what is right and what is
wrong.
5. Education
As to which acts are tolerated and which are not.
6. Community protection
Prevents criminals from re-offending for a period of time.
Procedure
Sources of law
Victoria is a common law state so its sources of law include both the common law and
legislation (the primary legislation is the Crimes Act 1958 (Vic)).
Federal statutes (override) > state statutes > common law (all common law offences
continue to exist unless expressly abrogated by statute).
Classification of offences
Indictable offences: offences punishable by more than 36 months (level 8)

imprisonment, usually tried before a judge and jury in a superior court (County or
Supreme Court). Serious indictable offences are punishable by more than 60 months
(level 6) imprisonment. No time limit to file charge, but there is a time limit after the
charge is filed (Part 3 of Crimes Act).
Summary offences: lesser offences disposed of by a single magistrate without a jury.

Charges must be filed within one year of offence (s26(4) of Magistrates Court Act).

Indictable offences triable summarily: Indictable offences heard by a magistrate in the
Magistrates Court with Ds consent. Time limit same as indictable offences.
Jurisdiction (persons)
<10 years old: Cannot be found guilty of a criminal offence
1014 years old: Prosecution must prove that D knew his conduct was wrong
(children in this age range are doli in capax a presumption that they lack the
necessary level of mental culpability).
1417 years old: Tried in the Childrens Court.
Mental impairment: There is a presumption of sanity. Where, at the time of doing the
criminal act, D was suffering from mental impairment such that he did not know the
nature or quality of the conduct (1) or that the conduct was wrong (2) he must be
found not guilty because of mental impairment. D will be released or detained under a
supervision order.
Territorial jurisdiction
Person who commit a criminal act or omission within the territorial limits of a
jurisdiction, or whose conduct causes substantial harmful effects there, are
subject to the law and courts of that jurisdiction.
Role of the jury
Judges are the judges of law. Juries are the judges of fact. Once the jury have found
the facts they apply to them the principles of law expounded to them by the judge to
decide their verdict.

Proving criminal responsibility
Proofs
- Standard of proof: The degree to which an issue must be proved.

- Burden of proof: Which side has the onus of proving the issue.
Burdens
- Evidential burden: To bring sufficient evidence for the issue to go before the
jury. The prosecution always bears this duty.
- Legal burden: Whether the issue has been proved to the requisite standard.
Affirmative defences
General defences (self-
Elements of the crime (mental impairment and
defence, infanticide etc.)
other statutory exceptions)
Legal Evidential Legal Evidential Legal Evidential
burden burden burden burden burden burden
Party
bearing
P P P D D D
the
burden
Standard Beyond Beyond Balance of
Balance of Balance of Balance of
of reasonable reasonabl probabilitie
probabilities probabilities probabilities
burden doubt e doubt s

(2) Elements of a crime
Checklist:
Identify conduct alleged to be criminal.

Did D voluntarily perform act or omission?
Is it a conduct or result crime?
Did D cause the result if a result crime?
Did D possess the requisite MR?
Was it possessed contemporaneously with the AR?
Any defences available?
Actus reus (physical element)
Voluntariness
Ds act or conduct was voluntary; a willed act, not forced or controlled, (1) produced
by a conscious mind (2). Prosecution must establish Ds precise voluntary act (3).
Involuntary conduct includes:

- Reflexes; Ryan:
D had his finger on trigger of a loaded, cocked gun pointed at Vs back. While
D tried to find a cord in his pocket, V made a sudden movement. D stepped
back and the gun discharged, killing V.
High Court held that although the firing of the gun was involuntary the act
causing death, the pointing of a loaded gun, was voluntary. It is open to the
jury to choose the act causing death from a list presented by the judge. The
appeal was dismissed.
- Automatism; an act done by the muscles without any control by the mind
(concussion or sleep); Jiminez:
D fell asleep while driving and collided with a tree, killing V. D was not under
the influence of drugs or alcohol, had slept several hours before driving and

had no warning before falling asleep.
High Court held that while he was asleep his actions were not conscious or
voluntary (an act committed while unconscious is necessarily involuntary). If
D continued to drive after being alerted to an onset of fatigue that could be
established as the voluntary act.
Causation
Depends on if crime was a:

i. Result crime; result of Ds actions is punished (murder, assault); or
ii. Conduct crime; Ds conduct is punished, regardless of the result (stalking,
possession of drugs).
For a result crime, prosecution must prove Ds act caused the result (establish a
causal link). For a conduct crime, prosecution must prove Ds conduct was
voluntary.
Tests for causation
But for
Discredited but can be used as a prima facie test to check for any causal link: But for
the act of the accused would the victim have died. If the answer is no, test is made
out and use SaOC.
Substantial and operating cause
Hallett (page 141 W&W):

D assaulted V and left him unconscious at the waterline of the beach. V died of
drowning.
The Supreme Court held that if at the time of death the original wound was still an
operating cause and a substantial cause the death could be said to be the result of this,
even if some other cause was still operating.

The prosecution needs to prove that the act of the accused was:
(1) A cause of death, not necessary the cause of death;
(2) A substantial cause of death (substantial is left to the jury to interpret);
(3) Still operating at the time of death (the act subsisted up to the happening of
the event subsist = exist, remain, continue); and
(4) Not interrupted by a novus actus interveniens so that the original violence
was merely the setting in which the action of the [novus actus] operated.
Natural consequence
Used to test whether a novus actus breaks the chain of causation.
It will not break the chain if the death was a natural consequence of the act of the
accused. That is, if the death was foreseeable as likely to occur or a consequence
which might be expected to occur in the normal course of events (Hallett). In this
case V drowning was a natural consequence.
However: If D leaves V unconscious in a building and then due to an earthquake the

building collapses, killing V, the death is attributed to an act of God and not to D.
The blow was the reason that the man was there, but the blow was not the cause of
the earthquake nor was the deceased left in the position of obvious danger It was an
abnormal and unforeseeable consequence. (Hallett).
Novus actus interveniens (applications of NC)
Police officers
The act of a third party (not acting in concert with D) may break the chain of
causation only where the intervention was free, deliberate and informed (Pagett).
In Pagett, D was involved in a shoot-out with police and used V, his girlfriend, as a
shield. V was shot dead by police.

The Court of Appeal held that the act of the policeman was not free, deliberate and
informed because it was a reasonable act performed for the purpose of self-
preservation (1) and done in the performance of a legal duty (2).
Medical treatment
Smith (Queens Bench 1959):

D stabbed V in a fight at an army barrack. V received medical treatment that was
thoroughly bad. The doctor did not realise Vs lung had been pierced, there were no
blood transfusion facilities and V was dropped twice. V died. Under ideal conditions,
V had a 75% chance of recovery.
The court held that the stab wound was still the substantial and operating cause of
death. Lord Parker stated that only if the second cause [medical treatment] is so
overwhelming as to make the original wound merely part of history can it be said that
death does not flow from the wound. The treatment is so bad that it can be considered
a whole new act causing death.
Evans and Gardiner (No 2):

D stabbed V in the stomach. V received prompt medical treatment and the wound
healed. 11 months later V died as a result of a common complication arising from the
treatment (a bowel blockage). The doctor had failed to diagnose this blockage.
The court held that it is not the role of the jury to evaluate competing causes of death
so long as the acts of D were a substantial and operating cause. In this case it was a
question of whether the bowel blockage that killed V was due to the stabbing (and this
is put to the jury).
Removing life support
Malcharek and Steel:

In the first case D1 stabbed V1, his wife, and after several days her heart stopped
beating. As a result she suffered irretrievable brain damage. In the second case D2
attacked V2 causing grave head injuries. Two days later it was decided that brain
function had ceased. In both cases the life-support machine was disconnected.

The English court held that where the victim is on life-support and is clinically dead
(1), a bona fide decision by doctors to terminate treatment (2) will not break the chain
of causation. In both cases there was no evidence that the original injury inflicted on
each victim had ceased to be a continuing or operating cause of death following
disconnection (3).
Victim seeking to escape
Royall (page 146 W&W):
V died after falling from the bathroom window of her sixth floor flat. The Crown
alleged D had brought about the death in one of three ways; D pushed V; D attacked
V, causing her to fall; or, V jumped to escape further violence. The High Court
considered the third alternative.
As per Mason CJ, Where the conduct of the accused induces in the victim a well-
founded apprehension of physical harm (1) such as to make it a natural consequence
(or reasonable) that the victim would seek to escape (2) and the victim is injured in
the course of escaping (3), the injury is caused by the accuseds conduct.
The test is objective and asks would a reasonable person have foreseen the result. If
yes, the act is a natural consequence. However, if Vs act is so unexpected that no
reasonable person could be expected to foresee it, then it is a voluntary act and
causation is broken. It must be remembered, as McHugh J points out, that persons
subjected to violence or the threat of violence do not always think rationally or act
reasonably. If a person suicided to avoid further torture and eventual death, I do not
see why the causal chain should be broken (this is obiter).
Victim failing to take medical advice
Blaue:
D stabbed V and pierced her lung. V refused a blood transfusion on religious grounds
(she was a Jehovahs Witness) and died.

The English Court of Appeal said that the policy of the eggshell skull principle (the
accused must take their victim as they find them) applies to the whole man, not just
the physical man. The question for the jury was what caused Vs death the answer
is the stab wound. Vs refusal of treatment was not an independent cause of death.
Mens rea (mental element)
Strict/Absolute liability
To incur criminal liability the accused should be shown to possess a blameworthy

state of mind (OConner). This is called the mens rea. Offences that do not require
proof of this mental element are called offences of strict or absolute liability.
Intention
D intends to bring about the results or consequences (1) of his conduct (2).
Recklessness
D foresees the possibility (for common law offences) or probability (for Crimes Act
offences) of his actions producing a particular result (1), but nevertheless continues to
act (2). Depends on the foresight D actually possessed (subjective test).
Wilful blindness
D deliberately refrains from making enquiries because he prefers not to know the
result, or where D willfully shuts his eyes for fear he may learn the truth. Not a
substitute for actual knowledge, however, it can infer that D had the requisite
intention or knowledge that his actions would produce the result.
Knowledge
D possesses actual knowledge (foresaw the certainty) that a particular circumstance

exists or a particular consequence will result.

Negligence
Ds care fell so far short (1) of the standard of care that a reasonable person (objective
test) would have exercised (2) that it warrants criminal punishment.
Contemporaneity
The AR and MR of an offence must occur at the same time. Where the AR is a
continuing act, the MR may be superimposed at any stage so long as the AR is still
continuing.
Fagan (English decision):

D accidentally drove onto Vs foot. When asked to move his car, D refused.
The court held that it is not necessary that mens rea should be present at the inception
of the actus reus; it can be superimposed upon an existing act. The act of D driving
onto Vs foot become criminal from the moment the intention was formed (1) to
produce the consequences (2) of the continuing act (3).
Thabo Meli (Privy Council):

The two Ds beat V over the head with the intention to kill and then rolled him over a
cliff to make it look like an accident. V was not dead at this point but later died from
exposure. The accused argued that the intended act did not cause the death of V.
Held: If D had a plan (1) and then carries out guilty acts pursuant to that plan (2) he
cannot be acquitted merely because the accused were under some misapprehension
for a time during the completion of their criminal plot.

(3) Common law assault
Definition of assault
History
The amendments to the Crimes Act in 1985 added the section Offences Against the
Person but did not abolish common law assault or common assault.1 Common law
assault is charged under the common law. Common assault is charged under s23
of Summary Offences Act and is committed basically (no aggravating factors).
Assault describes:
- Assault stricto sensu where V apprehends application of force or a non-
physical interference; or
- Battery application of force or physical interference.
Common law assault or common assault can be committed either way. The Crimes
Act deals with them separately.
Common law assault can be committed:

- Basically where there are no aggravating factors, called common or basic
(it is a common assault); or
- With circumstances of aggravation, called aggravated.
There are four types of aggravated assaults:

i. Assaults with a particular intent (to murder, rape or steal);
ii. Assaults performed in a particular way (with a weapon, dangerously);
iii. Assaults on persons of a particular class (police officer) it is not necessary
that D be aware of Vs particular class (Reynhoudt) but V must be acting in
the execution of their duty (held in R v K to be a lawful task connected with
his functions as a police officer); or
iv. Assault resulting in actual bodily harm.
1
Patton: amendment did not abolish common law assault and it continues to exist with the penalty at
the judges discretion (max 5 years).

Definition
Crimes Act assault, common assault and common law assault are all defined in the
common law.
Per Lord Steyn in Ireland:

An assault is an act causing the victim to apprehend (1) an imminent application (2)
of force upon her (3). Battery is the unlawful application of force (1) by the
defendant upon the victim (2).
Actus reus (assault)
Positive act
A positive act is needed. This can be:

i. A gesture (DPP v Rogers);
ii. Words (Wilson); or
iii. Silence (Ireland).
An omission does not constitute an assault. In Fagans case, D remaining on Vs foot

was not an omission because remaining on the foot was a continuing act of assault
and so a continuous positive act.
Ireland:
D made repeated silent telephone calls, mostly at night, to three Vs. As a result they
suffered psychiatric illness (anxiety and depressive disorders).
The English court held in cases of silent callers, He intends by his silence to cause
fear. The victim is assailed by uncertainty about his intentions. She may fear the
possibility of immediate personal violence. Whether D is guilty of assault depends on
the impact of the calls on the victim. D was found guilty.

Apprehension of violence
Assault requires the person threatened to apprehend violence. In Pemble, D pointed a

gun at Vs back. V was unaware of the act and so it could not constitute an
assault.
Apprehension does not equate to fear. In situations where V apprehends the

possibility of violence, but does not fear this possibility because he is a brave or
courageous person, it will be treated as assault.
Brady v Schatzel (Queensland Supreme Court):

D pointed a gun at V. V did not protect himself because he did not think D would fire.
The court found that the fear of violence was not an element of assault. Chubb J held
that if it was an element it would make an assault not dependent upon the intention of
the assailant, but upon the question whether the party assaulted was a courageous or
timid person.
Ryan v Kuhl (VR):

D thrust a knife through a hole in the partition between his cubicle and one occupied
by V. Seeing the knife did not frighten V, since he knew he could not be harmed
whilst in the cubicle.
The court held that V did not fear the assault because he did not apprehend contact. In
such cases, there is no assault because there is no apprehension.
Threat of immediate violence
The apprehension must be of the immediate or imminent infliction of physical

violence.
Zanker v Vartzokas:
V accepted a lift from D. D offered V money for sexual favours which she rejected. V
demanded that D stop the car to let her out. D accelerated and then said I am going to
take you to my mates house. He will really fix you up. V opened the car door and
leapt out onto the road and was injured.

The court held that an assault can be committed if a present fear of relatively
immediate imminent violence was instilled in Vs mind from the moment the words
were uttered and that fear was kept alive in her mind. The violence was imminent (1)
and the threat continued in Vs mind (2).
This is distinguished from Knight. In this case V received threatening phone calls
from D who was an appreciable distance away (as the Crown commented a long way
out of firing distance). Lee J found that Ds threats of violence were not immediate
because they were mere threats which may have been executed at any time, if at all.
Conditional threat
A conditional threat may constitute an assault if it causes the victim to apprehend the
imminent application of force.
Words can negate the conditional threat (State v Myerfield: as per Pearson CJ, when
the threat to strike is explained by words showing that it is not the intention of the
party to strike, this is not an assault).
Rozsa v Samuels:
D, a taxi driver, parked his car at the head of the taxi rank. V, another taxi driver,
threatened that if D did not move his taxi he would punch him. D produced a knife
and made the conditional threat, I will cut you to bits if you try.
Justice Hogarth of the Supreme Court of SA held that If the condition is one which
the party has a right to impose, the threat to strike unless the condition is complied
with is not an assault. But if the condition is one that the party has no right to impose,
the threat to strike is an assault. His Honour found the test in this case to be; if V had
attempted to punch D, would D have been justified in defending himself using the
knife (is it a proportionate response)? If yes, there would be not assault. D was found
guilty.

Actus reus (battery)
Requires the unlawful application of force. Mere touching is sufficient. Injury does
not need to be caused. If, however, injury results D may be charged with aggravated
assault if it is more than minor.
Direct application
Application of force must be direct. Either by:

i. Ds body; or
ii. An object controlled by D (D had done something which directly resulted in
the application of force to V Salisbury).
Mens rea
Common assault may be committed intentionally or recklessly.
Intentional
D intended to effect unlawful contact or to create an apprehension of immediate and

unlawful contact in Vs mind.
Reckless
D subjectively foresaw the possibility of unlawful contact or the creation of an

apprehension of immediate and unlawful contact but carried on regardless (foresight
of possibility is the standard for recklessness for common law offences; Coleman).

(4) Crimes Act offences
Actus reus
Cause
D causes harm to V if D performs an act or omission (1) that is a substantial and

operating cause of V suffering harm (2).
D inflicts harm on V if D directly or indirectly applies force (1) to V, resulting in V

suffering harm (2). In Ireland, the counsel for D submitted that he could not be
charged with assault because, although D might have caused Vs psychiatric
illnesses, he had not inflicted harm since he had not used person violence. The
House of Lords held that it is not a necessary ingredient of the word inflict that
whatever causes the harm must be applied directly to the victim. It may be applied
indirectly, so long as the result is that the harm is caused by what has been done.
Injury
Defined in s 15:
Injury includes: unconsciousness, hysteria, pain and any substantial impairment of
bodily function. This last requirement limits the application of the preceding words
(pain, hysteria etc must substantially impair bodily function).
Inclusive definition. It is not an exhaustive list and shows types of examples injuries
analogous to these could be claimed.
Psychiatric injury can be included. Ireland: the words bodily harm were capable of
covering recognised psychiatric illnesses, such as an anxiety disorder or a depressive
disorder, which affected the central nervous system of the body. Those neuroses had
to be distinguished from simple states of fear, or problems coping with everyday life.

Serious injury
s 15:
Serious injury includes a combination of injuries.
However, this is inclusive SI is not limited to just a combination of injuries (it can
include a single severe injury). Similar to the common law concept of grievous
bodily harm bodily injury of the grave character (Spartels).
Threats
- Threats can be made by words or conduct or both;

- Threats can be conditional;
- Do not need to be made to V, but must be directed at V;
- It is an objective question of fact whether a threat to kill has been made (did
the threat have a reasonable outcome ie. threatening to shoot D with no gun
in sight might not constitute a threat). Hence the context is important; and
- It needs to be the only reasonable interpretation on offer to explain Ds actions
(ie. was there another explanation for Ds conduct or words).
Endangerment
The test as to whether the conduct endangered life or persons is objective.
Mens rea
Intention
D must intend to cause the result. An intention to perform an act that in fact causes the
result is insufficient (the intention required is an intention to [cause an injury]
Westaway).
However, there is no requirement that the injury that results is the injury intended. The
intention is to cause an injury.

Recklessness
The conduct is reckless if there is foresight by the accused of the probable

consequences of his actions and he displays indifference as to whether or not those
consequences occur (Nuri approved by the Court of Appeal in Campbell).
Negligence
Under s 24: D, by a negligent act or omission, causes serious injury to V.
The standard of negligence required is the same as for the offence of negligent
manslaughter (found in Nydam).
Defences
Consent (applies to both CL and CA assault)
Force is unlawful unless consented to:

- Expressly (An assault with consent is not an assault at all Schloss v
Maguire. The consent must be freely given by an informed persons who is
legally capable of consenting (adult and of sound mind) and not procured by
fraud, force or threats); or
- By implication (there is implied consent to commonplace, intentional but
non-hostile acts such as patting another on the shoulder to attract attention or
pushing between others to alight from a crowded bus. Such acts are, if
committed inoffensively, ordinary incidents of social intercourse which do not
constitute battery Boughey).
- But not where actual bodily harm results (Brown), unless the activity is
special (in the public interest, or socially accepted or tolerated, such as

surgery,2 ritual circumcision, tattooing and branding, ear-piercing and violent
sports including boxing3 Brown).
Actual bodily harm is any hurt or injury calculated to interfere with the health and
comfort of the victim. Such hurt need not be permanent, but must be more than
merely transient or trifling (Donovan).
2
Only where the patient gives informed consent and the surgery is carried out by a qualified person in
appropriate conditions, and in a proper manner for legitimate medical purposes (Brown). Some
statutory protection is guaranteed where the patient is unconscious and cannot consent to surgery that is
deemed necessary (s 42K Guardianship and Administration Act 1986 (Vic)). The general defence of
necessity also removes liability.
3
Boxing must meet certain conditions to be lawful (refer to page 75 of W&W). These require that D
kept within the major rules of the game, the application of force was in a sporting spirit and it was no
more than was ordinarily and reasonably incidental (following as a consequence) to the sport (Pallante
v Stadiums Pty Ltd).

(5) Homicide
Crimes Act provisions
s 3: Notwithstanding any rule of law to the contrary, a person convicted of murder is

liable to:
Level 1 imprisonment (life); or
Imprisonment for such other term as is fixed by the court-
As the court determines.
s 5: Whosoever is convicted of manslaughter shall be liable to level 3 imprisonment

(20 years maximum) or to a fine in addition to or without any such other punishment
as aforesaid.
Common law definition
When a man of sound memory and of the age of discretion4 unlawfully kills5 any
reasonable creature in being,6 and under the kings peace,7 with malice aforethought,8
either express of implied by the law, the death taking place within a year and a day.9
Sir Edward Coke.
Actus reus (murder and manslaughter)
i. Voluntary act;
ii. Causing;
iii. Death;
iv. Of a human being.
4
D is sane and has reached the age of criminal responsibility (>10 years old) at the time of the offence.
5
Issue of causation (did D kill V?).
6
A human being.
7
Within the jurisdiction of the court.
8
Mens rea for murder.
9
Abolished (s 9AA of Crimes Act).

Voluntary act
Prosecution needs to establish the precise voluntary act that killed the victim.
Examples of involuntary acts are found in Ryan (reflexes), Jiminez (automatism) and
Ugle (unwilled acts).
Ugle:
D claimed that V was attacking him with a cricket bat. D defended himself by using
his hand to push V away. D was holding a knife in this hand and consequently V was
stabbed, and died, as a result.
The High Court held that an unwilled act is not a voluntary act causing death. The
question of whether an act was willed or unwilled should be put to the jury. Ds
appeal was allowed.
Causing
Death
s 41 of Human Tissue Act 1982 (Vic):

Death occurs when there is either:
a. Irreversible cessation of circulation of blood in the body of the person; or
b. Irreversible cessation of all function of the brain of the person.
Of a human being
R v Hutty:
Legally a person is not in being until he or she is fully born in a living state. A baby
is fully and completely born when it is completely delivered from the body of its
mother and it has a separate and independent existence in the sense that it does not
derive its power of living from its mother. It does not matter whether the baby is still
attached via umbilical cord to its mother. All that is material is that it is living by
virtue of the functioning of its own organs.

Therefore it is not murder or manslaughter to kill a child in the womb or in the
process of leaving the womb. Other statutory offences exist criminalising these acts
(abortion, ss65-66; and child destruction, s 10).
However, D may be liable where the injury is caused to the child while in utero and
the child is then born alive and subsequently dies as a result of the injury.
Attorney-Generals Reference (No 3 of 1994):

D stabbed V knowing that she was 23 weeks pregnant with their child. V recovered
but prematurely gave birth to W, who died four months later. There was no evidence
to suggest intent to kill or injure the foetus.
The House of Lords overturned the Court of Appeals decision because the doctrine of
transferred malice was not applicable in this case; a double transfer (from the mother
to the foetus and then from the foetus to the child) is extending the legal fiction too
far. Also, Ds intention to harm the mother was accomplished, and thus spent, after he
stabbed V. This spent intent cannot then be transferred.
D, however, could be guilty of the manslaughter of W since he committed an unlawful

and dangerous act that caused Ws death (in such a case as the present, responsibility
for manslaughter would automatically be established, once causation has been shown,
simply by proving a violent attack even if the attacker had no idea that the woman
was pregnant per Lord Mustill).
Thus:
a. Intent to harm foetus; foetus dies before birth = no crime against foetus.
b. Intent to harm mum; foetus dies before birth = no crime against foetus.
c. Intent to harm foetus; foetus dies after birth = murder.
d. Intent to harm mum; foetus dies after birth = UDA manslaughter.

Mens rea (murder)
Six possible fault elements:

i. Intention to kill;
ii. Intention to cause grievous bodily harm;
iii. Recklessness as to causing death;
iv. Recklessness as to causing grievous bodily harm;
v. Constructive murder violent offence; or
vi. Constructive murder resisting arrest.
Tests i-iv are subjective; it depends on what the accused actually intended or foresaw
(Pemble: they are a state of mind of the accused, an actual state of mind).
Grievous bodily harm is harm of a really serious kind (Director of Public

Prosecutions v Smith). Has included stabbing, punching and unconsciousness.
Intention
The intention must be to kill a person.
Intention is not the same as motive (the circumstances leading to Ds conduct) or

desire (whether or not D wanted the result to occur).
Exact mode of death doesnt need to be intended (Demirian: if a person creates a

situation intended to kill and it does kill it is no answer to a charge of murder that it
caused death at a time or in a way that was to some extent unexpected).
It cannot be presumed that the accused intended the natural consequences of their
actions. In Demirian, D1 and D2 planned to blow up a building. While positioning the
bomb under the intended location it exploded (natural consequence), killing D2.
McGarvie and OBryan JJ held that mens rea could only be shown if D2 had set, or
was in the process of setting, the bomb (because he did that act with intent to kill or
with knowledge that it would probably kill). If the act that caused it to detonate

prematurely was accidental (ie. a wrong hand movement, sneeze or he dropped it)
then he did it with no intent or knowledge that it would kill (he did not intend death to
ensue from that conduct).
Recklessness
Foresight of probability
A person who does an act knowing that it is probable that death or grievous bodily
harm will result is guilty of murder Crabbe.
Probable = good chance or likely (Boughey) or a substantial, or real and not

remote, chance, whether or not it is more than 50% but it cannot be reduced to
percentages or numbers (per Brooking JA in R v Faure [1992] 2 VR 537).
Wilful blindness
Murder requires actual foresight of probability (imputed knowledge is not enough

Crabbe).
However, deliberate abstention from inquiry might be evidence of the actual

knowledge or foresight of the accused. In the words of Professor Glanville Williams,
approved in Crabbe, A person cannot, in any intelligible meaning of the words, close
his mind to a risk unless he first realises that there is a risk. The question is then
whether he foresaw this risk as probable or merely possible.
Transferred malice
Doctrine of transferred malice: Cases where Ds intent to kill or cause GBH is

transferred to the actual victim of his act.
1. Where D intends to kill W but kills V (it is an intention to kill someone

Saunders and Archer: poisoned apple intended for the mother was given to
their child and she died); or

2. Where D intends to kill anyone, but no one in particular (R v Martin: D caused
panic in a theatre and many people were crushed to death in the chaos).
Constructive murder violent offence
Defined in statute.
s 3A: It is murder for an accused to:

i. Unintentionally
ii. Cause death by an act of violence
iii. In the course or furtherance of
iv. A crime the necessary elements of which include violence
v. And is punishable by imprisonment for a term of 10 years or more.
Act of violence
The act that causes death must be intentional, even though its consequences are
unintentional (Ryan). In the case of Butcher, presenting the knife at Vs stomach
whilst standing a meter from him was the intentional act.
Necessary elements of which include violence
This does not apply to all offences committed violently, only to crimes that cannot be
committed without violence.
Butcher:
D was robbing a milk bar when its owner, V, advanced towards him and impaled
himself on a knife D was holding. D said he was only using the knife to frighten V
and did not intend to stab him. Counsel for D submitted that armed robbery did not
have violence as a necessary element since a threat of force could be used.
The Full Court of the Supreme Court of Victoria held that violence is not restricted to
physical force. It includes both putting a person in fear or seeking to put a person in
fear of being subjected to force. Violence is thus a necessary element of robbery.

Other offences include aggravated burglary, intentionally causing serious injury,
setting traps to kill or to cause serious injury and using a firearm to resist arrest.
Constructive murder resisting arrest
Defined in common law.
Ryan and Walker:

Three warders were pursuing two escaped prisoners, Ryan and Walker. Ryan shot and
killed a warder, V, who was chasing Walker.
The court held that the killing of a person by the intentional use of force, knowingly
to prevent such person from making an arrest which he is authorised by common law
to make, is murder even if the accused did not intend or foresee death or GBH.
It is murder for an accused to:

i. Cause death
ii. By an act of violence
iii. While
iv. Knowingly
v. Resisting, preventing or escaping from lawful arrest (includes arrests
effected by police officers or private citizens, and to those assisting another
to effect an arrest). This also applies to any situation that involves a prisoner
regaining his liberty (ie. escaping from custody) Ryan and Walker.
Mens rea
The accused intended to perform the act of violence.
The accused knew that he was resisting/preventing a lawful arrest.
Lawful arrest
See Crimes Act sheet.

Mens rea (manslaughter)
Types of manslaughter
Voluntary manslaughter: both the actus reus and mens rea for murder have been
established but the liability is reduced to manslaughter because of some mitigating
circumstance (infanticide, suicide pacts or defensive homicide).
Involuntary manslaughter: the actus reus for murder has been established but the
accused does not possess the mens rea required for murder. There are three types:
unlawful and dangerous act manslaughter, negligent manslaughter and manslaughter
by omission.
Unlawful and dangerous act
Involves three elements:

i. The conscious and voluntary commission of an unlawful act;
ii. The act caused Vs death; and
iii. The act was objectively dangerous.
Unlawful act
Must be an act and not an omission.
The unlawful act must be committed voluntarily (R v Williamson: D must have made
a conscious choice to do an act of the kind done. In this case D struck V with a knife
not knowing that he was holding the knife. The SA Court of Appeal agreed that it
should have been left to the jury whether D striking V with a knife in hand was a
voluntary act. Doyle CJ found for his act to be voluntary D must have known he had
the knife in his hand; otherwise he would not be conscious of the nature of the act).

It is irrelevant whether the accused knew the act was unlawful (It is unnecessary to
prove that the accused knew that the act was unlawful or dangerous DPP v
Newbury).
It must be a criminal offence, either indictable or summary (Pemble McTiernan J

found the unlawful act to be the summary offence of discharging a firearm in a public
place) but not motor traffic regulations (Pullman).
All the elements of the offence must be established. In R v Lamb, D pointed a partly
loaded revolver at V. Thinking that there was no bullet in the chamber D pulled the
trigger. The gun discharged and V died. The conviction for manslaughter was quashed
on appeal because there was no assault (as V did not apprehend imminent physical
harm).
Caused
Did the unlawful act cause Vs death?
Dangerous
Test is objective.
The test of dangerousness is whether a reasonable person performing the same act as
the accused would have realised that he was exposing another or others to an
appreciable risk10 of serious injury11 (Wilson). The act must always (intrinsically) be
dangerous, as opposed to dangerous because of the way in which D performed the act
(extrinsically).
10
Appreciable risk < probable risk (it can be an act neither intended nor likely Wilson). It is a
possibility of risk that is real or significant, rather than remote or fanciful (C&M).
11
Serious injury = falling short of GBH but not being of trivial or negligible character (Wilson). In
Wilsons case, D punched V in the head and this satisfied the test.

Only special knowledge (V had a weak heart), and nothing less (intoxication), should
be attributed to the reasonable person (R v Wills). The standard then becomes a
reasonable person with that knowledge.
Negligent
The test for negligent manslaughter is found in Nydam and involves the following
elements. The act causing death:
i. Was done consciously and voluntarily;
ii. With no intention or foresight to cause death or GBH (otherwise it would be
murder);
iii. Involved a falling short of the standard of care that a reasonable person
would have exercised;
iv. Involved a high risk that death or GBH would follow; and
v. That the doing of the act warrants criminal punishment.
Duty of care
At common law there is a general duty not to cause harm to others (R v Doherty). If
an act of D causes the death of V, D is subject to this general duty.
Standard of care
(1) What was the standard of care owed by D to V? The standard of care owed = what
a reasonable person in the same situation as the accused would have exercised:
Nydam.
(2) Was there an objective falling short? A very high degree of negligence is required.
It must be shown that Ds conduct amounted to such a gross departure from the
standard of care expected of a reasonable person (1) (this is the preferred description
of negligence R v Stephenson) that it carried such a high risk of death or GBH (2)
and therefore the doing of the act merited criminal punishment (3) (Nydam).

Only special knowledge (V had a weak heart), and nothing less (intoxication), should
be attributed to the reasonable person (R v Wills). The standard then becomes a
reasonable person with that knowledge. However, an accuseds age (R v Holness),
nearsightedness (R v Grout) and intellectual disability (R v Clisset) have been taken
into account.
By omission
Similar to negligent manslaughter except D is liable for an omission and not an act.
Thus D must have been under a legal duty to act.
Involves four elements:

i. D was under a legal duty to act;
ii. Ds omission fell short of the standard of care that a reasonable person
would have exercised;
iii. Which involved a high risk that death or GBH would follow; and
iv. That omitting to act warrants criminal punishment.
Legal duties
Three main legal duties to act:
1. Family relationship
Parent and child (R v Russell). In this case Ds wife drowned herself and their
two children. D knew his wife was emotionally unstable but briefly left their
children in her care. The court held that there is a common law duty imposed
upon parents and guardians to ensure the safety of their children (including
preventing the commission of a crime against them by a third party). However,
a duty does not exist to those having the care of, or having under their
protection adults who are not helpless, but are quite capable mentally and
physically of looking after themselves. Hence D could not be liable for his
wifes death.

2. Assumed duty of care
Instan:
Ds aunt V agreed that D could live with her provided that she was cared for.
V developed gangrene in the leg, which made her unable to look after herself
or move around. Only D knew of her condition. V died shortly afterward
because of the gangrenous leg, but accelerated by her lack of food, nursing
and medical care.
In this case taking upon oneself the performance of the moral obligation
created the legal duty owed by D to V. The court held that there was a clear
moral obligation, and a legal duty founded upon it; a duty wilfully
disregarded, and the death was at least accelerated, if not caused, by the non-
performance of the legal duty.
Taktak:
D, at the request of R, procured a prostitute, V, for a party. D brought V to Rs
house and collected her some time later. He found her drugged and
unconscious. D took V to his house and attempted to revive her before calling
a doctor several hours later.
The court held that the duty of care will arise where one person has
voluntarily assumed the care of another who is helpless, through whatever
cause. Such a duty of care arises when the accused assumes care in such a
way as to seclude [the victim] so as to prevent others from rendering or
obtaining aid. However, Ds conviction was overturned because his failure to
obtain medical treatment or assistance did not amount to a high degree of
negligence (the duty is only to take reasonable steps to rescue).
Stone and Dobinson:

D1 and D2, both of low intelligence, were charged with the manslaughter of
D1s sister, V. V came to lodge with them and, over a period of three years,
became helplessly infirm. V refused to give D2 the name of her doctor or
allow D2 to wash or feed her. The two defendants were unsuccessful in getting
a doctor to see V, as they could not use a telephone. D1 and D2 did no more to
enlist outside help. Three weeks after this last attempt, V died from toxaemia

caused by infected bedsores, prolonged immobilisation and lack of food.
The court held that since they did make efforts to care the two defendants
undertook a duty of caring for the health and welfare of the infirm person.
The steps taken to obtain medical treatment did not satisfy the standard of care
required.
3. Created a situation of danger
Miller:
D fell asleep smoking a cigarette and awoke to find his mattress smouldering.
Instead of extinguishing it, D moved to another room. The house caught fire
and caused extensive damage.
The court found D guilty of arson because of his omission to act when he
became aware of the dangerous situation that he had created. This applies
when a person has unknowingly done an act which sets in train events that,
when he becomes aware of them, present an obvious risk and he fails to try
to prevent or minimise the damage which will result from his initial act,
although it lies within his power to do so. This is similar to the courts
decision in Fagans case.
Standard of care
Same as for negligent manslaughter.

POLICY

(A) Domestic homicide
Self-defence
Self-defence is a complete exculpatory defence: if successful, D is acquitted.
The accused bears the evidential burden (whether there is sufficient evidence for the
defence to go before the jury) and the prosecution bears the legal burden to
disprove it beyond reasonable doubt.
The Crimes (Homicide) Act 2005 (Vic) codified self-defence for murder and
manslaughter only. The common law of self-defence is still used for offences other
than homicide (such as assault, resisting arrest etc).
Old common law
The test is found in Zecevic v Director of Public Prosecutions (Vic):
V was Ds tenant whose relationship had deteriorated due to Vs failure to close the
security gates or park his car in the garage. D arrived home one night and noticed the
gates were not closed nor was Vs car in the garage. D confronted V at his unit. V
stabbed D and threatened to blow [his] head off. D ran to his unit and saw V go to
his car where he believed V had a gun. D loaded his gun and shot V dead.
The test for self-defence was held to be Whether the accused believed (i) upon
reasonable grounds (ii) that it was necessary in self-defence to do what he did.
This involves two individual components:

i. Subjective test
The accused honestly believed that it was necessary in self-defence to do
what he did; and

ii. Objective test
The accused reasonably believed, in all the circumstances in which he found
himself (ie drunk, frail or with prior knowledge of the victim), that it was a
necessary act. D had reasonable grounds for his honest belief.
Important factors include:

- Original attack need not be unlawful;
- Can be used where an attack has not commenced but was believed to be
imminent;
- D may have been the original aggressor;
- Ds acts can be disproportionate; and
- No need to exhaust other possible alternatives (such as retreating as far as
possible or trying to pacify the victim).
However, these factors are important in determining whether the accused believed his
act was necessary.
Provocation
Provocation was a partial defence to all forms of murder (including constructive

murder). Provocation existed to make concessions for human frailty; provocation
depends on the fact that it causes a sudden and temporary loss of self-control
whereby malice is negatived (Holmes v Director of Public Prosecutions). It no longer
exists as a defence in Victoria.
There are three fundamental requirements for provocation:

i. D was provoked to kill V;
ii. The provocation was such that an ordinary person could have lost self-
control when faced with the same provocative conduct and formed an intent
to kill or inflict GBH (objective test); and
iii. D did actually lose self-control (subjective test).

The time interval between the provocative conduct and the act causing death (if there
was a cooling off period) and the proportionality of act (if there was a weapon
involved; how many time they were stabbed/shot) may question whether an ordinary
person would have done the same (Mancini v Director of Public Prosecutions).
Words (of a violently provocative or exceptional character Moffa v R), looks or

expressions (Green v R) can amount to provocation. The background and history
surrounding the conduct must be looked at. A series of incidents need not,
individually, amount to provocation but they might make that final word or act the
final straw (Parker v R).
Facts (Victorian Law Reform Commission)
Why do men and women kill?
Both men and women are most likely in kill in the context of sexual intimacy12
(27.5% and 34.5% respectively). The next most common context is conflict
resolution13 (27.6% and 21.6%). Followed by spontaneous encounters for men
(11.1%), and sexual predation and mental impairment for women (both 3.4%).
In the context of sexual intimacy it was most likely that:

- Men killed in circumstances of jealously or control (33 or 78.6%); whereas
- Women killed in response to alleged violence by the male deceased (4 or 40%).
17% of all homicides involved domestic violence.14 20.7% (6 out of 29) of all accused
women killed men due to alleged violence by the man against the woman.
12
Sexual intimacy homicide is the killing of a partner or former partner, or a partner or former partners
new partner. These include killings by partners or former partners because of jealously or a desire to
control the deceased, incidents involving the killing of sexual rivals and incidents where a person kills
a violent partner or former partner.
13
Conflict resolution homicide is killings that resulted from a planned intention to use violence to
resolve a dispute.
14
Domestic violence is defined as violence [which] happens in the family. It includes any behaviour
which causes damage to another person (physical, sexual, emotional or financial) or which causes
someone to live in fear. It includes damage to property and threats to damage a person, pets or property.

Spontaneous encounter homicides
No women killed strangers. 17 men out of 153 (11.1%) were charged with killing a
stranger. Consistent with Polks study, spontaneous encounter homicides are an
overwhelmingly male phenomenon.
Self-defence and provocation developed in relation to such homicides (ie V and D

start a fight, V attacks D and D either loses all control or fears for his safety and kills
V), and is mainly applicable in these circumstances. Therefore they are gender-biased
defences.
Pleas
12 out of 29 or 41.4% of women, compared to 28.8% of men, were presented for

manslaughter. Of those presented, 10 or 91.7% pleaded guilty to manslaughter.
Sentences
The median sentence for men and women convicted of murder was 18 and 17 years
respectively (although in the context of sexual intimacy the sentences were divided;
18 and 14 years). The median sentence for manslaughter was 6 and 4.5 years.
Defences
10.3%, 3 of 29, women raised provocation while it was raised by 19.0% of men (this
represented 25.0% and 30.9% of the defences raised). Similarly, 6.9% (2) women
raised self-defence while 12.4% of men raised it (or 16.7% and 20.2% of the defences
raised).
Neither defence was successful for women. Meanwhile, men succeeded in 21.1% of
self-defence cases and 24.1% of provocation cases.

Problems with the old common law
Juries tended to associate self-defence with a one-off confrontation rather than actions
taken in self-protection. Lloyd describes it as a one-time barroom brawl between two
men of equal size and strength.
This created three main barriers against women:

i. Immediacy and seriousness of the threat;
ii. Proportionality of their response to the threat; and
iii. The necessity of their actions given the available avenues to escape or to call for
outside help.
Both i. and ii. do not accommodate for the greater physical strength of men. In general
women have to plan their attack and/or use weapons. This questions the
reasonableness of their actions. Hence the VLRC concluded that self-defence was
usually only useful to men.
i. Immediacy and seriousness
Women often kill their partners when they are asleep or have their guard down. In a
study of intimate partner homicides in NSW between 1968 and 1991, Alison Wallace
found that in 48% of cases where the women had killed their husbands there was no
immediate threat or attack.
ii. Proportionality
Two main problems:

i. If the killing is non-confrontational ie the woman killed her partner while he
was sleeping the action is clearly disproportionate; and
ii. Even in confrontational killings the women tend to compensate for their lesser
physical strength. Women were more likely to have co-accused than men (17 of
the 29 or 58.6%). But were more likely to act alone when killing a partner. All
female accused who acted alone used a weapon other than their hands and feet
(in contrast, 22.3% of men did not use a weapon).

iii. Necessity
Of the women killed in the context of sexual intimacy, at least 23.3% (or 14 cases)
were killed when they left, or threatened to leave, the relationship.
Battered women syndrome15
What is it?
Under traditional self-defence, acts by the accused to prevent harm that was not
immediate or imminent are not defensive because the danger was avoidable. The
accused is blamed for not leaving; for inciting the violence; for enjoying the violence;
or, for her passivity in not circumventing the violence. To combat these
preconceptions, battered women syndrome is used.
The main proponent of the syndrome, Lenore Walker, defines as a battered woman as:
- A woman who is repeatedly subjected to any forceful physical or psychological
behaviour by a man;
- Who she is in any form of intimate relationship with; and has
- Gone through the battering cycle at least twice; and
- Remains in the situation.
Testimony by an expert witness can be introduced in Australian courts addressing

battered women syndrome. Evidence of BWS can be admitted to assist the jury to
understand the accuseds behaviour (Osland); that is, to show what would be
expected of women generally who should find themselves in a domestic situation such
as that in which the appellant was (Runjanjic and Kontinnen).
15
Defined by Sheehy, Stubbs and Tolmie as the introduction of expert opinion evidence, otherwise
inadmissible, to both counteract preconceived stereotypes of battered women and to explain why the
perception that they were under serious threat and needed to use deadly force to deal with it may have
been reasonable.

For self-defence, the infliction of continuous acute pain which did not threaten any
substantial residual injury should in appropriate circumstances provide justification
[for lethal self-help] (Lane).
Battered-women syndrome can help the jury to understand the reasonableness of her
actions (whether the domestic violence justified the accused killing her abuser): the
inevitableness of the next attack and why the woman did not leave.
How it helps
Inevitableness:
Domestic violence is cyclical. According to Walker it involves three stages:
1. Tension building verbal, emotional or minor incidents of physical abuse;
2. Acute battering incident; and
3. Loving contrition the batterer is remorseful for their behaviour and may
attempt to convince the victim that they intend to change.
A battered womans intimate knowledge of the deceased and the cyclical nature of
domestic violence can enable her to predict the next inevitable attack, not obvious to
an outsider.
Why the woman did not leave:

The psychological response to violence can cause a state called learned helplessness.
This response was first detected by Martin Seligman in dogs and has been repeated by
other experimenters using dogs and then babies.
Kinports describes that a woman experiencing learned helplessness learns that her
husbands violence is unpredictable and that no correlation exists between her conduct
and his abusive behaviour. She can do nothing to pacify her husband. She perceives
her husband as omnipotent and believes there is no way for her to escape or improve
her life.

Other factors prevent a woman from leaving, these include:
i. Coercion to return by violence or threats (in Kontinnen the accused had left the
relationship at least once only to return because of threats to her and violence
against the co-accused);
ii. Violence does not end when the woman leaves the relationship (represents
23.3% of women killed in the context of sexual intimacy);
iii. Lack of assistance from police or other agencies; and
iv. Limited opportunities for single women (lack of affordable housing, child care
and employment).
Should it be used?
Criticisms:
- ODonovan argues neither judges nor the jury believe they need experts to tell
them about human nature, about how ordinary folk react to the strains and
stresses of life. Sheehy, Stubbs and Tolmie see the need for expert witnesses as
placing the issue beyond the understanding of the lay juror.
- It labels battered women as crazy. Instead of portraying their actions as
justified in those circumstances, it treats them as irrational and abnormal. It
directs attention away from the social, economic, political and cultural factors
that perpetuate, condone or sanction violence and towards the psychology of the
victim (Craven);
- Learned helplessness does not explain why a woman suddenly broke from this
state and killed her abuser; and
- Generalises an experience that is not always similar. The use of model cases of
BWS create a single construct that might then exclude women who do not fit the
normal, accepted, formulation (as Sheehy, Stubbs and Tolmie argue, it could
create a test of what is reasonable conduct for a battered woman. Thus
removing the focus from whether the action she took was necessary and
justifiable in the circumstances.)

Recommendations
Craven argues that instead of using BWS, a social framework model of evidence
should be used. This model would allow the use of expert evidence not just relating to
the accuseds psychology, but the social and economic factors surrounding her
decision. She uses the case of Gilbert, where an Aboriginal elder and Aboriginal
Police Liaison Officer testified, as a positive development towards such a social
framework model.
The Victorian Law Institute made several recommendations:

i. The current law of self-defence be codified;
ii. Prior family violence should be looked at in relation to both the necessity and
reasonableness of Ds actions;
iii. A person may be acting in self-defence when he or she believes the harm
threatened by the deceased is inevitable, although not immediate;
iv. A persons response need not be proportionate to the harm threatened, so long as
it is reasonable in the circumstances; and
v. The partial defence of excessive self-defence should be reintroduced.
i. Codification
Self-defence should not be available if the accused was responding to conduct that he
or she knew to be lawful. In Zecevic the court held it is only in an unusual situation
that an attack which is not unlawful will provide reasonable grounds for resort to
violence in self-defence.
ii. Prior family violence (see battered women syndrome)
The VLRC supported a submission by Zoe Rathus to the Queensland Criminal Code
that said the personal history of the defendant and the history of any relationship
between the defendant and the person against whom force is used and the effects of
that relationship upon the defendant are relevant.

And Chief Justice Phillips, of the Supreme Court of Victoria, suggested the
accumulation, the sum total, of the deceaseds violence and abuse should be taken
into account.
The Womens Legal Service Victoria advocated that there should be no duty to
retreat from ones home where there has been a history of prior family violence.
iii. Inevitability
Per Justice Kirby in Osland v The Queen, The significance of the perception of
danger is not its imminence. It is that it renders the defensive force used really
necessary and justifies the defenders belief that he or she had no alternative but to
take the attackers life.
Comparisons can be made between the circumstances of women in abusive

relationships who kill, and people in a hostage situation. As Justice Wilson asks in
Lavallee, If the captor tells [the accused] that he will kill her in three days time, is it
potentially reasonable for her to seize an opportunity presented on the first day to kill
the captor or must she wait until he makes the attempt on the third day?
iv. Proportionality
It should be specified in the Crimes Act that the use of force might be reasonable even
if it is disproportionate.
v. Excessive self-defence
For:
- Provides an additional basis for a plea of manslaughter to be negotiated or
charged;
- Retains a safety net for women who kill in response to family violence (in R v
Calway the availability of self-defence might have mitigated the verdict of
murder. In this case Ms Calway killed V, her stepfather, during a fight where she

was injured. There was insufficient evidence to support the reasonableness of
her striking Vs head).
Against:
- May cause juries to enter compromise verdicts, where the facts of the case entitle
an acquittal but there is disagreement amongst jurors.
- The word excessive is a male interpretation of the situation and perpetuates
laws dependence on a male norm. As Susan Edwards argued in a submission to
the VLRC, in self-defence women use a force proportionate to the a priori
disproportionate force of men to achieve some notion of equality. Hence it
should not be typecast as excessive.
New amendments
Battered woman syndrome
No provision about battered woman syndrome. Leaves several problems regarding its
application:
i. Who can claim to be a battered woman?
In England, the use of expert evidence will only be allowed if the effect was
such to make the woman a different person from the ordinary run of [women]
or that she was marked off or distinguished from the ordinary [woman]
(Ahluwalia).
In America an accused was held not to be a battered woman because she had
only experienced one prior cycle (State v Griffiths) Walker has now concluded
that BWS can include one or more cycles. The legislation also agrees that
domestic violence can be alleged where there is a sole incident (however, does
this apply to BWS?)
ii. Who can be called as an expert witness?
Currently it is restricted to medical psychologists. Sheehy, Stubbs and Tolmie
recommend that it should be extended to shelter workers, feminist counselors
and women who have lived in violent relationships it needs to include people
that do not explain social problems in terms of individual pathology.
The legislation talks about evidence but not what kind;

iii. How should it be applied?
In Osland v The Queen the expert evidence was only used in regards to the
subjective belief of the accused, and not the objective belief.
iv. What weight should BWS have?
In Osland it was held that BWS only forms part of the evidence that must be
considered in reaching a decision.

(B) Consent and Criminality
Current law
R v Donovan [1934]
Consent is immaterial if bodily harm is a probable or definite consequence. Bodily

harm includes any hurt or injury calculated to interfere with the health or comfort of
the victim. Such hurt need not be permanent, but must be more than merely transient
or trifling.
R v Brown [1994]
Facts: 5 defendants were charged with assault causing actual bodily harm, and
unlawful wounding. They were involved in sado-masochistic homosexual sexual
activities for a ten-year period. The activities were discovered when one of the
videotapes was handed to police.
Kell observes that the courts in Brown and AGs Reference (No 6 of 1980) view
consensual harm in terms of social utility, that is, it must be shown that the public
interest positively requires that such conduct be permitted.
Held: Consent is not available for actual bodily harm or greater (GBH or murder).
Majority:
Lord Templeman:
- Morally repulsive; Pleasure derived from the infliction of pain is an evil thing;
- Alcohol and drugs were used to obtain consent. Youths were involved = moral
corruption;
- Vitriolic judgment; sado-masochistic sex involves the indulgence of cruelty by
sadists and the degradation of victims, bloodletting and the smearing of human
blood and which breed and glorify cruelty; and

- It is injurious to the public interest (to cause harm to another for no good reason
has no social utility. It is immaterial whether the acts occurred in public or
private. They are equally as detrimental).
Lord Jauncey:
- Agreed with Lord Lane in Attorney Generals Reference (No 6 of 1980) that it is
unlawful to cause bodily harm for no good reason. and
- If the legislature wants sado-masochistic sex to be legal, they should legislate
permitting it. Criticism: Usually the law proscribes acts as illegal; it does not
state acts that should be legal.
Lord Lowry:
Sado-masochistic homosexual sex is not conducive to enhancement of the family life
or public good. If it were permitted, everyone would engage in it.
Minority:
Lord Mustill:
- Issue under contention is not whether their conduct is morally right, but
whether it is properly charged. The question is of law and not morals;
- The law has no right to legislate over private acts. Questions of private morality
are to be upheld by the individual according to his own moral standards, or
moral, religious or community pressures if he chooses to take them into account;
- If the law wants to legislate over private acts, it must be done by the legislature
who has the adequate capacity and means to do so; and
- By applying Donovan, Lord Mustill concluded that because it involved sexual
relations the acts were not automatically criminal. As the risk of serious harm
was negated by medical science, arguments of public policy did not justify
making such conduct unlawful.
Lord Slynn:
It is the legislatures role to intervene in private activities. The courts should not
exercise paternalism.

R v Wilson [1996]
Facts: The defendant branded his initials onto his wifes buttocks using a hot knife.
Held: The defendant was found not guilty because Mrs Wilson commenced the acts
(1) and there was no aggression involved (2). Lord Russell did not see Ds acts as a
proper matter for criminal investigation.
The injuries sustained in both Brown and Wilson, and the consensual support of the
victims in each, are very similar. It seems that the difference in outcome was found in
the matrimonial relationship between defendant and victim and that Brown involved
sadomasochistic sex.
Criticisms
- Majority argument was moralistic;

- Severely impinges on the individuals right to act privately and in a way that is
self-regarding; and
- Precedents are inconsistent (leads to confusion about what will be and what
wont be tolerated).
Reform
The position for consent should be clearly defined by the legislature, including:
i. What cannot be consented to;
ii. The exceptions available (preferably specific ie tattooing, surgery, boxing
but could apply generic principles such as social interest); and
iii. The circumstances under which the exceptions operate (ie tattooing by a non-
registered tattoo artist is illegal).

(C) Stalking
Other jurisdictions
Definitions
The most appropriate definition of stalking is by Goode, who describes it as When

one person causes another a degree of fear or trepidation by behaviour which is on the
surface innocent but which, when taken in context, assumes a more threatening
significance.
South Australia
The legislation includes both a basic offence (punishable by 3 years imprisonment)

and an aggravated offence (punishable by 5 years).
It provides that the stalker must intentionally cause physical or mental harm, or
apprehension or fear, in the victim or another person by engaging in certain conduct
(following, loitering, gives or leaves offensive material, or surveillance) on at least
two separate occasions.
Queensland
Divides stalking into harassing behaviour with a penalty of three years imprisonment,
or a summary option carrying 18 months imprisonment; and aggravated stalking, for
threats of violence, possession of a weapon, or breach of a court order, with a penalty
of 5 years.
Conduct that would normally constitute stalking is lawful if it was done for the
purposes of a genuine industrial dispute or political or other public dispute or issue
carried on in the public interest. Goode argues that such a vague provision severely
limits the operation of the offence.

New South Wales
Stalking is an intimidation offence and is limited to cases where the stalker and
victim have a domestic relationship.
California
Stalking originated in the United States. California was the first jurisdiction to
legislate against this behaviour in response to the stalking of celebrities by strangers.
The key elements of the Californian offence were:

i. A person wilfully, maliciously and repeatedly followed or harassed another
person; and
ii. The harasser made a credible threat; and
iii. The harasser had an intention to place that other person in reasonable fear of
death or great bodily injury.
Where to harass means a knowing and wilful course of conduct directed at a specific
person which seriously alarms, annoys, or harasses the person and which serves no
legitimate purpose. The course of conduct must be such as would cause a reasonable
person to suffer substantial emotional distress, and it had that effect.
A course of conduct is a pattern of conduct composed of a series of acts over a period

of time, however short, evidencing a continuity of purpose.
A credible threat is one with the intent and the apparent ability to carry out the threat.
The threat must be against the life of, or to cause great bodily injury to, the person or
their immediate family.

Reform options
Goode proposes that any stalking legislation should include these 8 options:
i. Conduct that constitutes stalking should be as broad as possible, since the
options available to the stalker are as boundless as the obsessive human
imagination;
ii. It is a pattern of conduct and not just a single incident;
iii. Stalking should be an indictable offence punishable by more than 2 years
imprisonment;
iv. Aggravated stalking, that is, stalking in breach of an injunction or restraining
order or whilst armed with a weapon, should carry a higher penalty;
v. The threat need not be credible (an undefined threat may heighten the fear
because it is left to the imagination);
vi. Stalking will not apply where the behaviour serves a legitimate purpose (these
should be explicitly specified to limit ambiguities);
vii. Intent is not required (as McAnaney argues, if intent is needed this may mean
that anti-stalking statutes will not reach people who, because they are
delusional or otherwise, are not capable of forming the intent);
viii. The development of a specialist unit within the police force, such as the Threat
Management Unit within the Los Angeles Police Department. This department
assesses the threat posed by stalkers, informs stalkers that the police are aware
and concerned of their behaviour, and talks to the victim (about security and
help with getting a restraining order). Also beneficial would be profiles of kinds
of stalkers16 to ensure that the invention taken is the most suitable for that kind
of stalker. It is a dynamic solution to ensure the stalking does not escalate into a
more serious crime.
A stalking provision should also consider these 2 other factors:

ix. Stalking should be able to be charged where either the victim was, or the
conduct occurred, in the state of Victoria. In Sutcliffe, Gillard J held that s21A
16
There is difficulty in defining stalking patterns. Goode presented five typical stalkers: simple
obsessional, love obsessional, erotomania, or false victimisation syndrome. Path, Mackenzie and
Mullen placed the typical behaviour into five slightly different categories: rejected, intimacy-seeking,
incompetent suitor, resentful, or predatory.

(now amended) had extra-territorial operation if the conduct or the effect of the
conduct itself occurred in Victoria; and
x. Conduct should include that which characterises cyberstalking: either via email
(sending hate, obscene, or threatening mail, viruses or high volumes of junk
mail), the internet (posting false information or photographs on chat sites,
impersonation on chat sites, or maintaining hate websites) or the victims
computer (keystroke logging or viewing the desktop). Such conduct conveys a
similar uninvited and arguably threatening incursion into private space as
physical actions (Ogilvie). Often the two are used in conjunction (in R v Vose the
victim was filmed and the video placed on the accuseds personal website).
Cyberstalking can also be a precursor to physical violence (the American case
where the accused updated a hate website about his victim for almost 2 years
before he killed her).
Problems
Stalkers can use a third party, often unwitting participants, to achieve their aims.
Mullen, Path and Purcell call this stalking by proxy. Such outcomes include:
i. Tracing escaped victims
Methods used by stalkers include asking police for their victims new address to
ensure compliance with his Intervention Order, or making complaints or
initiating false civil action against the victim;
ii. Contributions to harassment
The stalker falsely accuses their victim of being the stalker. This is especially
dangerous to professionals (doctors, government officials) because considerable
weight is given to those complaining against individuals in potentially powerful
positions.
The use of the reasonable person standard in some stalking provisions
(Californian law) permits examinations of the victims character, mental health
and stability (Abrams and Robinson), adding to the emotional distress; and
iii. Enforcing unwanted contact
During court proceedings (for the victim to testify at trial). As Madonna
commented when she was forced to testify, We have somehow made his

fantasies come true [in that] I am sitting in front of him and that is what he
wants.
The law fails victims of stalking in other areas as well:

i. Law enforcement agencies
Do not fully appreciate the seriousness of the offence and are reluctant to
investigate stalking complaints. It is trivialized and the victims concerns are
often dismissed by the police as being oversensitive, lucky, a waste of time, or
a product of bad relationship choices. Such behaviour indicates police do not
understand the psychological effects of stalking. In addition, the police are
misguided in how to solve the problem. They often recommend mediation to
encourage conciliation between the two, but this only results in a revitalized
stalker and a revictimised victim (Path, Mackenzie and Mullen);
ii. Misuse of stalking charges
In one case a man was convicted of stalking because of two SMS text messages
he sent to the victim. This highlights one of the three main problems in anti-
stalking legislation as seen by Path, Mackenzie and Mullen; (1) Inherent
ambiguity in the fundamental concepts of stalking; (2) A failure to direct stalkers
to appropriate assessment and treatment services, and; (3) Inadequate protection
for victims;
iii. Protection orders as inadequate protection
The process is costly and often prolonged. It provides further opportunities for
victimisation; hearings force contact between stalker and victim, the stalker can
gather personal information about the victim, and the stalker has an audience
with which to share his delusions. When protection orders are breached little is
done apart from a restatement of the original order; and
iv. Correctional settings
Imprisonment does not always stop the harassment; one stalker phoned his
victim after convincing authorities that she was his girlfriend; another stalker
plotted revenge attacks upon his victim, paying acquaintances to slash her tyres
and deposit dead rats at her door.
Victims are not always informed of the release of the stalker and thus prevented
from taking measures to prepare for it.

More reform options
Procedural solutions:
i. Use video link in court for protection orders, family court cases, hearings
against the stalker, or any situation where the stalker comes into direct contact
with the victim (especially important for intimacy-seeking stalkers);
ii. The law enforcement agencies should make every effort to identify and penalize
false reporting by stalkers;
iii. All stalkers, upon being convicted, should have a mental health assessment
performed (to target and hopefully solve the root of the problem);
iv. All law enforcement agencies should be trained on stalking; and
v. There must be a multidisciplinary approach between the agencies to ensure the
sharing of information and the active, periodic, monitoring of stalkers and their
victims to prevent re-offending and/or escalation.

(D) Abortion
Current law in Victoria
Background
All Australian jurisdictions modeled their original abortion provisions on 140-year-

old English legislation (ss 58 and 59 of UK Offences Against the Person Act of 1861).
The Victorian legislation is an almost identical replication (apart from the penalties).
Victoria is also the only state where the abortion provisions remains largely intact
(although concessions to its draconian provisions have been made by the judiciary).
Legislation
Found in ss 65 and 66 of Crimes Act 1958 (Vic).
s65: Whosoever being a woman with child with intent to procure her own miscarriage
unlawfully administers to herself any poison or other noxious thing or unlawfully uses any
instrument or other means, and whosoever with intent to procure the miscarriage of any
woman whether she is or is not with child unlawfully administers to her or causes to be taken
by her any poison or other noxious thing, or unlawfully uses any instrument or other means
with the like intent, shall be guilty of an indictable offence, and shall be liable to level 5
imprisonment (10 years maximum).
s66: Whosoever unlawfully supplies or procures any poison or other noxious thing or any
instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or
employed with intent to procure the miscarriage of any woman, whether with child or not,
shall be guilty of an indictable offence, and shall be liable to level 6 imprisonment (5 years
maximum).
The UK Parliament did not attempt to explain the term unlawfully, leaving it to the
judiciary to interpret this fundamental aspect of abortion law.

Common law
R v Davidson [1969] VR 667:
Per Menhennitt J, an abortion will be lawful if:

i. The accused honestly believed on reasonable grounds that the act;
ii. Was necessary to preserve the woman from a serious danger to her life or her
physical or mental health; and it is
iii. Not out of proportion to the danger to be averted.
However, this is only applicable to medical practitioners.
R v Wald (NSW):
Per Levine DCJ:

i. Economic and social grounds or reasons can be considered when assessing
serious danger; and
ii. The time frame for serious danger is any time during the course of the
pregnancy and/or after the child is born (not just at the time of the abortion).
Superclinics:
NSW Court of Appeal (the highest court so far to consider abortion) approved the
decisions in Davidson and Wald. The majority made clear that it is the medical
practitioner who determines whether an abortion is lawful; there is no womens right
to an abortion (a womans desire to have an abortion is not justification in itself).
Criticisms
- Abortion is a criminal offence;

- The medical profession becomes the legal gatekeepers of abortion law
(Rankin). A role that (1) they are not necessarily qualified to play; and (2) denies
women a right to abortion (removes the womans right to make decisions about
her own body). This means that, according to Clarke, the medical profession

may impose on to women their own views of when abortion is permissible;
and
- There is a disparity between the law and practice. Abortions are both widespread
(The Age reported in late 2004 that there were almost 18,000 abortions in
Victoria in the past year alone, and this figure was rising) and Medicare funded,
yet they remain illegal.
Reform
In all states only medical practitioners can lawfully perform abortions (providing for
the medicalisation of abortion).
Model: Australian Capital Territory
Most liberal abortion law in the country (Rankin).
Two stage process:

i. Passing of the Crimes (Abolition of Offence of Abortion) Act 2002 repeals any
old abortion provisions and abolishes any common law offence of abortion.
However, the offence of child destruction implies there is an upper time limit
on lawful abortions (not specified in ACT, but it lies somewhere between 22 and
28 weeks17); and
ii. Passing of the Health Regulation (Maternal Health Information) Repeal Act
2002. This provides that an abortion is legal if it is performed in an approved
facility (the Minister must not unreasonably refuse or delay a request for
approval) by a registered medical practitioner. Failure to do so carries a penalty
of imprisonment. Rankin criticises the introduction of these offences as
unfortunate and unnecessary, but I believe they are important to ensure
safeguards against backyard abortion practices.
There is a conscientious objector clause, making it clear that no-one is under a
duty to carry out or assist in carrying out an abortion. The practitioner must still
provide advice or a referral.
17
Most abortion service providers do not perform abortions past the 22-week period.

The ACTs initiative is beneficial because it decriminalises abortion and regulates the
practice under health law. However, such practices are still medicalised and do not
grant any rights to women (although it makes it easier, as they do not need to pass the
same legal barriers as in other jurisdictions).
South Australia
ss 81 and 82 of Criminal Law Consolidation Act 1935.
An abortion is lawful if it is performed by a medical practitioner in a prescribed

hospital, provided that the medical practitioner and one other practitioner are of the
opinion, formed in good faith,18 19 that continuing the pregnancy would involve a
greater risk to the life or physical or mental health of the woman than if it were
terminated.
South Australian legislation is the least restrictive (apart from ACT) because it does
not require serious danger and the opinions can be formed in good faith. However,
it is still a complicated and lengthy process.
Northern Territory
Found in Criminal Code Act 1983.
Similar to South Australia, except:

i. Abortions are only lawful up to 14 weeks gestation (SA has an upper limit of 28
weeks);
ii. Only a gynaecologist or obstetrician may lawfully perform an abortion;
iii. Not certain whether the womans reasonably foreseeable environment can be
taken into consideration; and
iv. A woman cannot be charged with procuring her own abortion (theoretically
possible in SA).
18
In forming this opinion, the practitioners may take into account the womans reasonably foreseeable
environment.
19
The two opinions must be provided in certificate form.

Western Australia
Amendments were made to the Criminal Code 1913 in 1998.
It is unlawful to perform an abortion unless:

i. The abortion is performed by a medical practitioner in good faith and with
reasonable care and skill; and
ii. It is justified if any of four grounds are satisfied (provided in Health Act 1911):
a. informed consent20 is obtained; b. woman will suffer serious personal, family
or social consequences; c. serious danger will result; or, d. pregnancy is causing
serious danger.
Additional restrictions apply for abortions concerning pregnancies greater than 20

weeks gestation (two practitioners who are members of a panel appointed by the
Minister agree) or for women under 16 years old (consent of a parent; this can be
overridden by the Childrens Court).
Legislation provides that neither the woman nor the practitioner will be charged with
an offence for procuring an abortion. However, WA legislation involves significant
delays that increase the risk of the termination procedure.
Tasmania
Amendments were made to the Criminal Code Act 1924 in 2001.
The new provisions involve a mix of South Australian and Western Australian
legislation.
They state an abortion is legally justified if:
20
Informed consent means consent freely given by the woman after a medical practitioner has;
provided her with counselling; offered her the opportunity for further counselling; and, informed her of
the counselling available if she terminates or continues. This medical practitioner cannot be involved in
the performance of the abortion.

i. Two registered medical practitioners have certified, in writing, that continuing
the pregnancy would involve a greater risk to the life or physical or mental
health of the woman than if it were terminated; and
ii. The woman has given informed consent.
Tasmanian legislation is more restrictive than the two jurisdictions its provisions are
derived from because; it requires the certification of two medical practitioners (unlike
WA); and, it requires the provision of counselling because of informed consent
(unlike SA).
Rankin laments this new legislation because it simply repeats the mistakes of others
and furthers the medicalisation of abortion. As he comments, the only rights with
regard to abortion are possessed and exercised by the medical profession. As the
Womens Electoral Lobby state, the key issue is that legally, doctors decide whether a
woman can have an abortion women do not have control over the decision.

(E) Euthanasia
Definitions
Euthanasia: Killing someone, on account of his [or her] distressing physical or

mental state, where this is thought to be in his [or her] own interests (Glover).
Voluntary euthanasia: the person gives express consent to be killed.

Non-voluntary euthanasia: the person is unable to consent to being killed.
Involuntary euthanasia: the person expressly refuses to be killed.
Active euthanasia: the medical practitioner takes direct steps to accelerate death (ie
inflicting a lethal injection).
Passive euthanasia: the medical practitioner withdraws or withholds treatment to
accelerate death.
Current law
Active euthanasia
Murder in all jurisdictions. Consent is not a defence.
This is because the interest of the state in preserving life overrides the otherwise all-
powerful interest of patient autonomy (per Lord Mustill in Airedale NHS Trust v
Bland).
A form of active euthanasia in: the doctrine of double effect
One action has two effects; one intended and one foreseen. This action is morally
acceptable provided that (Patterson and George):
i. Bad consequences are only side-effects to the intended purpose;
ii. The intended purpose must itself be morally good or (at least) neutral;
iii. Bad consequences must not be a means of achieving the intended purpose; and

iv. Bad consequences must not be so serious as to outweigh the good, intended
purpose.
Applying this doctrine to euthanasia; the application of high levels of pain killers to
alleviate the patients pain, which will most likely cause their death, will be morally
right if death is proportionate to the pain relief gained.
Finnis would argue that since life is a basic good, and life is required to experience the
other six goods, the bad consequence of death would never be outweighed. Hence
euthanasia will always be wrong. The courts, however, in approving this doctrine are
implying that personal autonomy is more important than death (R v Adams21 and R v
Cox22).
Passive euthanasia
Legal in all jurisdictions. Moreover, to provide medical treatment against a patients

wishes can constitute both a tort and criminal assault.
Bland:
Facts: Patient was crushed because of overcrowding at the Hillsborough football

stadium. He suffered irreversible brain damage and went into a permanent vegetative
state. The patients family requested that the hospital discontinue life-sustaining
medical treatment.
Held: The removal of the feeding tube was an omission and not an act. Non-voluntary
passive euthanasia is legal. Hoffman LJ stated, The law must reassure people that the
courts do have respect for life, but that they do not pursue the principle to the point at
which it has become almost empty of any real content and when it involves the
sacrifice of other important values such as human dignity and the freedom of choice.
Lord Keith held that a doctor is under no duty to continue to treat such a patient where
21
It is permissible to relieve pain and suffering even if the measure incidentally shortens life.
22
If a doctor genuinely believes that a certain course is beneficial to a patient then even though he
recognises that that course carries with it a risk to life, he is fully entitled to nonetheless pursue it.

medical opinion is that no benefit would be conferred by its continuance (when the
patient reaches this state the duty of care owed by the doctor is absolved).
For and against active euthanasia
For
- Supported by community, doctors and majority of politicians23;

- Individual autonomy (see page 6);
- Quality of life
As Lord Goff questioned in Bland, why should [it] not be lawful to put him
[the patient] out of his misery straight away, in a more humane manner, by
lethal injection, rather than let him linger on in pain until he dies?
In R v Godfrey, the accused received a 12-month suspended sentence from the
Tasmanian Supreme Court after pleading guilty to assisting his elderly mother
to die. Judge Underwood approved Judge Coldreys decision in R v Hood,
where it was implied that an individual who supplies potentially lethal
medication to a terminally ill person, perhaps a loved one who is in extreme
pain and who wishes to end that suffering at the earliest possible opportunity,
should be held accountable only to a very low level of moral culpability. These
decisions are supported by Kuhse. She uses an example of a driver burning to
death inside his cabin to argue that killing a person is not necessarily evil
when continued life presents an intolerable burden to the person whose life it
is;
- Legal safeguards (active euthanasia is occurring readily the admission of the

7 doctors and has even received some judicial support see above and
thus its legalisation will enable safeguards to be entrenched);
- Finite health budget (Bagaric: Medical treatment and health resources are
extremely valuable and rare commodities. They must be used wisely and in a
way which will maximise the benefits flowing from them).24 This, however,
forms the crux of the countering slippery slope argument; and
23
Public Members Bills have been repeatedly introduced in numerous states (SA, NSW, WA) to
legalise voluntary active euthanasia. All have failed.

- There is no moral difference between acts and omissions (there is, however, a
legal difference called the acts and omissions doctrine25). Thus, according to
Patterson and George, there is no moral difference between passive and active
euthanasia. If one intends death to ensue, regardless if it is by an act or a
failure to act, he has committed himself to being a murderer (supported by
Finnis, Grisez and Boyle). If passive euthanasia is legal, then so too should
active euthanasia.
Against
- Inconsistent with the Hippocratic Oath (the health of the patient shall be the
doctors first consideration) and the role of the doctor in society. Allowing
doctors to kill, it is argued, will make doctors less sensitive to human suffering
and become more indifferent to the value of human life (Bagaric);
- Sanctity of human life; and
- Slippery slope argument. Legalising euthanasia will make it commonplace and
will put subtle pressure on the ill and the elderly to do the right thing by their
family or the state and choose death even when they do not desire it
(Patterson and George). See page 10.
Old law (Northern Territory) criticisms and reform
History
The Rights of the Terminally Ill Act 1995 (NT) legalised voluntary and non-voluntary
active euthanasia for terminally ill patients.
It was overruled by the Euthanasia Act 1997 (Cth); the power of the Legislative
Assembly does not extend to the making of laws which permit of have the effect of
permitting the form of intentional killing of another called euthanasia. Only the
territories are affected by this legislation (not the states).
24
Finnis condemns this policy argument because a persons life is incommensurable with the life of
another. Hence one cannot be killed to free a bed so another may live.
25
This doctrine arises to ensure that individuals are not burdened with responsibility.

It had the most exhaustive safeguards in any country where euthanasia was legalised.
Terminal illness and autonomy
s7: A doctor may assist a patient to end his life only if all of the following conditions are met:
i. 18 years old;
ii. The medical practitioner is satisfied, on reasonable grounds, that -
(i) Illness will, in the normal course and without the application of extraordinary
measures, result in the patients death (terminal illness);
(ii) No cure; and
(iii) Treatment is confined to the relief of pain, suffering and/or distress.
iii. A second doctor, not a relative or employee of the first, has examined the patient and has
confirmed
(i) The first doctors opinion;
(ii) Patient is likely to die;
(iii) The first doctors prognosis; and
(iv) Patient is not suffering from a treatable clinical depression.
iv. The illness is causing the patient severe pain or suffering;
v. The doctor has informed the patient of the nature of the illness and its likely course and
the palliative care available to the patient;
vi. The patient then indicates he has decided to end his life;
vii. The doctor is satisfied the patient has considered the implications of his decision to his
family; and
viii. The patient is of sound mind, and the decision has been made freely, voluntarily and after
due consideration.
The Act discriminates against people who are:

- Children;
- Mentally impaired;
- Unconscious; or
- Not terminally ill (ie emotional pain).
Amarasekara argues that if the basis of the act is compassion, then it is discriminatory
to deny people who experience pain the right to die simply because they fall into one
of these categories. Their pain may be equally as agonising as that of the model

person typified by the Act. Emotional pain, like a terminal illness, may have no cure
or acceptable palliative solution.
The Act is paternalistic; it legalises a right to die but then makes it only available to
certain people; limiting an individuals autonomy and right to self-determination. JS
Mill would label this the tyranny of the majority. Dworkin26 and Rawls27, however,
would argue that autonomy requires a capacity for personal reflection and
consideration. Thus the four groups above cannot exercise their autonomy.
Amarasekara then points out that if the blinding, severe, pain needed to qualify
under this Act also mentally impairs the terminally ill, their autonomy should be
restricted. Kuhse and Gardbaum argue that autonomy is not absolute, as it can
sometimes result in morally reprehensible decisions (drugs, willing enslavement are
two examples given by Amarasekara).
Medical practitioners
The doctor must:

i. Have possessed a qualification for at least five years ( does not require actual
experience); and
ii. Resides in, and can practice medicine in, the Northern Territory.
The original act provided that the second doctor must hold a diploma of
psychological medicine or its equivalent. This was changed after it was revealed that
this qualification had been unavailable since 1970. Amarasekara uses this to highlight
how little research was placed into the qualification of doctors who perform
euthanasia.
The Act also allows the doctor to delegate causing the patients death to a health care
provider (those responsible for the care or medical treatment of the patient in nursing
26
Autonomy requires people to define their nature, give meaning and coherence to their lives and take
responsibility for the kind of person they are.
27
Acting autonomously is acting from principles that we would consent to as free and equal rational
beings, and that we are to understand in this way.

homes, hospitals). This is undesirable, as Amarasekara says, their legal and ethical
responsibilities are not identical and may, in some cases, create a conflict of interest.
Palliative care and whether the State can provide it or not
s8(1): A doctor shall not assist a patient if, in their opinion, there are palliative care options reasonably
available to the patient to acceptably alleviate their pain and suffering.
Expense, delay or inaccessibility of such palliative care options can be considered as

making them either unreasonable or unavailable.
At the time of the passing of this Act, the Northern Territory had no medical
oncologist,28 very limited radiotherapy services, not a single palliative care specialist,
an inadequately resourced domiciliary palliative care program29 and not a single
hospice30 (Dr J Zalcberg). Such inadequacies in palliative care options make section
8(1) largely redundant. It also makes euthanasia a more favourable alternative than if
the patient were residing in Victoria or NSW where there are improved palliative care
facilities.
Potts believes the legalisation of euthanasia will result in fewer hospices and a
reduced budget for palliative care, resulting in increased pain for those who do not
want euthanasia.
Interpreters
There were no qualified interpreters in the Aboriginal laws at the time of the Act,
despite being required.
Penalties
s5: A person shall not give or promise any reward or advantage, or cause or threaten any disadvantage,
28
A doctor who looks at tumours, including their development, diagnosis, treatment and prevention.
29
Home palliative care option.
30
A program that looks after people at home or some other facility.

to compel or persuade a doctor to assist or refuse to assist the termination of a patients life. Penalty:
$10,000.
s11(1): A person shall not, by deception or improper influence, procure the signing or witnessing of a
certificate of request. Penalty: $20,000 or 4 years imprisonment.
(2). A person found guilty of this forfeits any financial or other benefit the person would directly or
indirectly obtain as a result of the death of the patient.
s12: Failure by the doctor to keep adequate medical records. Penalty: $10,000 or 2 years imprisonment.
Doctors around Australia perform euthanasia under the risk of convictions of murder
or manslaughter (carrying penalties far in access of those created by this Act). This is
evidenced by the written admissions by seven doctors in 1995. No criminal
prosecutions were made. The Act reduces legislative penalties and is likely to increase
the practice of all euthanasia (not just involving the patients permitted by this Act
Amarasekara).
Immunities
s20(1) A person will not be liable for anything done in good faith and without negligence in compliance
with this Act.
If a doctor acts negligently in assisting suicide, he will only be liable for civil or
criminal action if he was not acting in good faith nor was he acting in compliance.
Amarasekara argues that this is irrational; If the three elements are treated
disjunctively there will be greater accountability and more care in observing the
procedural steps.
Certificate of request
s9(1): A delegate may sign the certificate of request if the patient is physically unable to ((2) the person
who signs forfeits any financial or other benefits, direct or indirect, from the death of the patient).
Amarasekara highlights two flaws in the certificate of request system:

i. The delegate is not required to disclose on the certificate that they are signing on
behalf of the patient (therefore dangerously limiting the operation of s9(2) the
doctor is responsible for recording this fact); and
ii. Only the patient can indicate that they no longer want to die (thus if the patient
tells this to a friend and then becomes unconscious, the doctor may legitimately
proceed to terminate life). An ambiguous record is made of the patients
rescission this should be made more clear, as it is important for future
psychological treatment that the patient once expressed a wish to die.
Coroners Role
The Act does not require the Coroner to be informed of assisted deaths. Amarasekara
believes that this should be amended so that the Coroner plays an active role. He
argues that the Coroner should be:
i. Informed as soon as a patient indicates the wish to die;
ii. A witness to the signing of the certificate of request; and
iii. Informed after the death has occurred.
This ensures that the statutory procedures are being adhered to and makes most
inquests unnecessary (the increased cost resulting from the Coroners time will be
offset by the security added to the process).
Reform
Statistics
- 75% of the Australian community supported legalised euthanasia (The

Australian);
- 59% of doctors in NSW and ACT supported active euthanasia; and
- 55% of politicians31 agreed that a doctor should be permitted to assist a patient
to die in some circumstances. 86% supported passive euthanasia.
31
Taken out of a sample of 33 Queensland politicians.

Canada
A majority of the Supreme Court in Rodriguez v A-G for British Columbia held that
the interests of the state in protecting its vulnerable citizens superseded the individual
rights of a citizen who sought it.
England
The House of Lords Select Committee on Medical Ethics rejected the legalisation of
euthanasia in 1994 after using Holland as a case study. They were discomforted by the
frequency of non-voluntary euthanasia. They were also daunted by the slippery
slope argument; the anticipated pressures on sick and elderly people who saw
themselves as a burden (by relatives, doctors or nurses). This argument is
demonstrated by the evolution from the precedent in Bland to that set by the Irish
Supreme Court in Ward and then the Dutch Supreme Court in Chabot.32
Belgium
In Belgium, for active euthanasia to be available the patient must be in a hopeless

medical situation, and be constantly suffering physically or psychologically. The
person may or may not be in the terminal stage of their illness.
Oregon, America
Death with Dignity Act 1994 was the result of a public referendum. This act legalises
voluntary active and passive euthanasia, only if the patient is physically and
terminally ill. A person may make a written request to obtain medication for the
purpose of ending their life.
Holland
32

The defence of necessity33 is a widespread justification for all forms of euthanasia in
Holland (in 1970 there were 1000 cases of involuntary, 2300 cases of voluntary
passive and 400 cases of voluntary active euthanasia). Euthanasia is legal if the
patients suffering is lasting and unbearable.
However, the Kuhse-Singer survey found that the incidence of non-voluntary

euthanasia is greater where it is illegal, as in Australia, than where it is practised
openly, as in the Netherlands. Furthermore this survey found that 30% of all
Australian deaths were intentionally hastened, and only 4% of these were in
response to an explicit request by the patient.
33

LAW3301 Criminal Law and Procedure A

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LAW3301 Criminal Law and Procedure A

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Is the human

Was Ds act or Physical contact

Did it cause No = basic Did it cause

mens rea (6 of Yes

Contemporane Yes and Yes and

The acts prohibited:

Crimes usually involve invasions of the rights of life, liberty or property.

[Type text] [Type text] [Type text]

Aims of the criminal law

[Type text] [Type text] [Type text]

Indictable offences: offences punishable by more than 36 months (level 8)

Summary offences: lesser offences disposed of by a single magistrate without a jury.

[Type text] [Type text] [Type text]

<10 years old: Cannot be found guilty of a criminal offence

1417 years old: Tried in the Childrens Court.

Role of the jury

[Type text] [Type text] [Type text]

- Standard of proof: The degree to which an issue must be proved.

[Type text] [Type text] [Type text]

Identify conduct alleged to be criminal.

Actus reus (physical element)

Involuntary conduct includes:

[Type text] [Type text] [Type text]

Depends on if crime was a:

Tests for causation

Substantial and operating cause

Hallett (page 141 W&W):

[Type text] [Type text] [Type text]

Used to test whether a novus actus breaks the chain of causation.

However: If D leaves V unconscious in a building and then due to an earthquake the

Novus actus interveniens (applications of NC)

[Type text] [Type text] [Type text]

Smith (Queens Bench 1959):

Evans and Gardiner (No 2):

Removing life support

Malcharek and Steel:

[Type text] [Type text] [Type text]

Victim seeking to escape

Royall (page 146 W&W):

Victim failing to take medical advice

[Type text] [Type text] [Type text]

Mens rea (mental element)

To incur criminal liability the accused should be shown to possess a blameworthy

D possesses actual knowledge (foresaw the certainty) that a particular circumstance

[Type text] [Type text] [Type text]

Fagan (English decision):

Thabo Meli (Privy Council):

[Type text] [Type text] [Type text]

Common law assault can be committed:

There are four types of aggravated assaults:

[Type text] [Type text] [Type text]

Per Lord Steyn in Ireland:

Actus reus (assault)

A positive act is needed. This can be:

An omission does not constitute an assault. In Fagans case, D remaining on Vs foot

[Type text] [Type text] [Type text]

Assault requires the person threatened to apprehend violence. In Pemble, D pointed a

Apprehension does not equate to fear. In situations where V apprehends the

Brady v Schatzel (Queensland Supreme Court):

Ryan v Kuhl (VR):

Threat of immediate violence

The apprehension must be of the immediate or imminent infliction of physical

[Type text] [Type text] [Type text]

[Type text] [Type text] [Type text]