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CRIMINAL LAW 1

2017
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LAW1114 CRIMINAL LAW
Acts cited:
Crimes Act 1958 (Vic)
Summary Offences Act 1966 (Vic)
Jury Directions Act 2013 (Vic)
Human Tissue Act 1982 (Vic)
Cases cited on Reading Guide:
R v Brown [1994]
Fagan v Metropolitan Police
Commissioner [1968]
Thabo Meli v R [1954]
Ugle v The Queen (2002)
R v Crabbe (1985)
Boughey v R (1986)
McHale v Watson [1964]
Nydam v R [1977]
R v Hallett [1969]
Royall v R (1991)
R v Blaue [1975]
R v Pagett (1983)
R v Jordan (1956)
R v Evans & Gardiner (No 2) [1976]
R v Westaway (1991)
R v Campbell [1997]
Tuberville v Savage (1669)
Rozsa v Samuels [1969]
Zanker v Vartzokas (1988)
Barton v Armstrong [1969]
R v Ireland [1997]
Ryan v Kuhl [1979]
Scott v Shephard (1773)
Rixon v Star City Casino [2001]
McNamara v Duncan (1971)
Fontin v Katapodis (1962)
Williams v Milotin [1957]
Venning v Chin Chin (1974)
R v Clarence (1888)
3
Papadimitropoulos v R (1957)
Gallienne [1964]
Question of Law (No 1 of 1993) (1993)
DPP v Smith [1961]
R v Rhodes (1984)
Meyers v R (1997)
A-Gs Reference (No 3 of 1994) [1998]
R v Saunders & Archer (1577)
R v Butcher [1986]
R v Lavender (2005)
Miller [1983]
R v Stone & Dobinson [1977]
R v Taktak (1988)
R v Lamb [1967]
Pemble v R (1971)
Wilson v R (1992)
R v Stein [2007]
R v Wilson [1996]
Cases cited not on Reading Guide:
Ryan v R [1966]
R v Ward (1938)
Stephens v Meyers (1830)**
Police v Greaves [1964]
R v Knight (1988)
R v St George(1880)
MacPherson v Brown (1975)
State v Barry (1912)
Brady v Schatzel [1911]
R v Mostyn [2004]
Horan v Ferguson [1995]**
R v Millar [1998]**
R v McKnoulty (1995)**
R v West [1845]
Zecevic v DPP (1987)
Marions Case (1992)**
 4

TOPIC 3: INTRODUCTION TO CRIMINAL LAW

STRUCTURING AND EXAM RESPONSE

START: Identify and define the crime (make sure to reference the CA or acknowledge it as a CL
offence). Outline who has the BOP & the SOP as well as the need for contemporaneity

Start with all AR issues, then MR, then any defences. Each issue is a new short paragraph structured
like so:

1. Issue
o What is the issue? The grey area? OR;
o What is the next logical step?
2. Legal concept/rule
o What are the rules that govern this issue? Are there any exceptions to the rule?
o Cite cases, legislation, common law rules
o If applicable cite JDA
3. Apply concept to the facts and analyse
o Apply test or rule. Does the rule fit the facts well? Or uneasily? Why?
o Juxtapose case law are the facts similar to a few cases? Or are the facts so
different, either Prosecution or Defence might try argue the case law shouldnt
apply here?
o After bringing the two together, which side (P or D) has the stronger argument? On
which side will the law most likely land? Evaluate any weak points of application,
evaluating their significance to either P or D
o HD answers will be shrewd, and go into detail
4. Conclude
o Always conclude - satisfied or AR made out is sufficient

If you do address any criminal defences, make sure to state the evidential BOP and legal BOP.

FINISH: State on balance who youd suspect to win. If you believe the defendant would be found guilty,
specify the likely punishment for example, a min or max imprisonment time
 5

TOPIC 4: ELEMENTS OF A CRIME

ACTUS REUS + MENS REA

Actus Reus = guilty act; Mens Rea = guilty mind.

For all criminal offences learnt within this course, you need both MR and AR elements working
simultaneously, ie. in contemporaneity with one another (Fagan v Police Commissioner; Thabo
Meli v Queen)

AR: Voluntary Positive Act

All acts are assumed to be voluntary or willed (Ugle v Queen) unless D raises plausible
evidence they were done a state of automatism (coughing fit, epileptic fit, reflex as in Ryan v
R). If this is the case, P then has the legal burden to dispel this evidence BRD

MR: Intention

P must prove BRD/BOP that D intended to bring about the consequences of their conduct. It is
not sufficient D only intended to eg. pick up the knife and stab V in the jugular. D must have
intended to either kill V/inflict GBH
We cant mind read! Thus, intention is assessed objectively on the facts. Motive is not enough
but can be used to build a case. You might look at:
o The weapon & how it was used
o The nature of the offence itself
o The Ds acts immediately following incident

MR: Defining recklessness

A form of MR which belong purely within the bounds of criminal law (not civil)
CRIMINAL test: D subjectively foresaw the probable consequences of his/her actions but went
ahead anyway as if indifferent (Crabbe)
o No mathematical formula to assess probability. Described in Boughey v R as a
substantial chance which is real and not too remote
o Can have a reckless omission Eg. D foresaw the probable consequence of death if
they didnt put out the fire, and allowed it to continue to burn
Note the very fine line between intention and reckless They are often grouped together. This
is why a D can be guilty for murder if they satisfy the MR for recklessness but not intent

MR: Defining negligence

Measured objectively. Negligence concerns what the Defendant ought to have done, as a
modelled by the behaviour typical of the reasonable person in our current society
CIVIL negligence: Ds conduct (simply) fell short of the reasonable SOC (McHale v Watson)
CRIMINAL negligence: higher threshold than civil, very hard to make out.
Test from Nydam v Queen: Ds conduct was such a gross falling short of the SOC typical of
a reasonable person, that it merits criminal punishment
What special characteristics of D, do we transfer across to the reasonable person?
o Age? YES (McHale v Watson)
o Intellectual disability? NO (R v Ward)
o Physical disability? - NO
 6

CAUSATION 3 TESTS

1. Substantial and Operating Cause Test (R v Hallet)

o Apply when external NAI is in potentially present (third party, natural events etc)
o Test: Did Ds conduct have a sufficiently causal effect, which subsisted up until the
injury, without being spent or sufficiently interrupted by some other event?
2. Natural consequences test (Royall)
o Apply when the NAI has been committed by the victim
o Refer to Mason CJs dicta in Royall: where the conduct of the accused, [inducing]
the V into a well-founded apprehension of physical harm.. makes it a natural
consequence that the V would seek to escape, and the V is injured in the course
of escaping the injury is caused by the accused conduct
3. Reasonable foreseeability test (Royall)
o Test: where the consequences of Ds conduct reasonably foreseeable to a
reasonable person? This is an objective assessment not about what D actually
foresaw
o Has been criticised, consider the majority in Royall

NOVUS ACTUS INTERVENIENS

NAIs work to break the chain of causation (however is made out, on the tests above), rendering D
no longer liable for the offence in question. If OTF you see many NAI, discuss ALL in the exam. Only
one however is needed for complete acquittal. Recognised NAI on case law:

Natural Events:

The ordinary operation of natural causes will not be an AI. Needs to be an extraordinary event,
or act of god (R v Hallet). Compare: tidal wave vs tide

Acts of the Victim:

1. Victim trying to escape: use natural consequence test as per Royall did D induce a well-
founded reasonable fear of harm, making it a natural consequence V behaved the way
he/she did? Rarely a AI, as Vs mode of escape does not need to be objectively
reasonable (the court allows for the fact people in true fear, often act in irrational ways)
2. Victim refusing treatment: egg shell skull rule, D must take V as they find them (R v Blaue)

Acts of a third Party:

1. In general: acts of a third party will only be a NAI if they are free, deliberate and informed
(R v Pagett)
2. Poor medical treatment: generally, not a IA; has to be grossly improper and palpably
wrong (R v Jordan)

Can an omission be a NAI? No. Remember: R v Evans & Gardiner (E&G stabbed V, and V required
surgery. The doctor failed to diagnose a common post-operation complication and V died as a result)
 7

TOPIC 5: NON-FATAL, NON-SEXUAL OFFENCES AGAINST THE PERSON

CRIMINAL APPROACH: COMMON LAW

When faced with the opportunity to prosecute, the DPP has two options: (1) prosecute via Statute; or
(2) prosecute via Common Law. Whilst in reality, the DPP would rely entirely upon Statute, in an exam
you should discuss both.

Two types of CL assault:

1. Non-Physical interference (akin to civil assault)

2. Physical interference (akin to battery)

If considered an indictable crime, CL assault will carry a maximum penalty of five years
imprisonment (s.320 Crimes Act). Alternatively, CL assault (in instances of minor assault) is triable
summarily. If this is the case, under s.23 of the Summary Offences Act, any person who unlawfully
assaults or beats another person shall be guilty of an offence, and D is liable to a maximum of 3
months imprisonment.

TYPE 1: NON-PHYSICAL INTERFERENCE

Defining Non-Physical Interference assault: D may be liable for CL assault if he/she is found BRD
to have performed a positive voluntary act, which caused P to reasonably (Obj) apprehend imminent
physical interference, + D did so either intentionally (Westaway) or recklessly (R v Campbell)

RED FLAGS AND TYPICAL ISSUES

- CONDITIONAL THREATS (IF, BUT, W HEN)

- ANY SHADES OF GREY REGARDING IMMEDICACY OF HARM
- WHETHER OTF IT APPEARS P WAS TRULY APPREHENSIVE OF THE HARM

Conditional Threats

o A conditional threat, is a threat which only really becomes threatening, on the event a stated
condition becomes satisfied or fulfilled
o Ask yourself: if D makes V a CT however this Condition is not capable of being fulfilled can
V claim he/she was apprehensive? (Tuberville v Savage); (Stephens v Meyers)
Cf: if the condition itself is unlawful (Police v Greaves)
Cf: if, in the instance of self-defense, this defense is disproportionate to the threat
presented, and therefore is unlawful (Rozsa v Samuels)

Police v Greaves

Facts: 2 policemen investigating a domestic assault complaint, visited Greaves residence.

When G answered the door, he pointed a knife at the policemen and threatened; dont you
bloody move. You come a step close and you will get this straight through the guts.
Held: G was convicted of CL assault. The HC then quashed the conviction on the grounds that
Gs threat of violence was conditional. The court of appeal then restored the conviction
because preventing the police from proceeding with exercising their legal rights, was unlawful
 8

Immediacy of Harm

o Immediacy is determined by the Vs perception (subj), not the facts or Ds contention

o Without fear of immediate harm there is no assault
o Compare and contrast the various degrees of immediacy:
Zanker v Vartzokas - car abduction case, P did not know when she would arrive at the
destination where she would be raped
R v Knight - harm threatened would be applied in distant future
Barton v Armstrong immediacy of harm threatened was questionable, as threat was made
via telephone

Apprehension

o Are mere words, silence, or threatening gestures be sufficient to cause apprehension?

(R v Ireland); (Barton v Armstrong)
o Could pointing an unloaded gun constitute assault? (R v St George)
o Does the contact apprehended by P need to be grave? (MacPherson v Brown)
o Can assault can occur if P was unaware at the time, of Ds actions? (State v Barry)
o What it might mean if a lack of apprehension, on the part of the P, was by most peoples
standards, unreasonable? (Ryan v Kuhl)
Cf: Brady v Schatzel Chubb J held it is not material that the person assaulted should be
put in fear
Consider: Could D be charged with attempted assault? (R v Mostyn)
o Consider the facts of R v Ireland: The Plaintiff did not know what Ireland was likely to do next.
Did this matter? Did P need to have apprehended a specific act?

TYPE 2: PHYSICAL INTERFERENCE

Defining Physical Interference assault: D may be liable for CL assault if he/she is found BRD to
have performed a positive voluntary act, which caused direct physical interference with P, without Ps
consent, and in a manner which is beyond what is socially acceptable (Obj) + D did so either
intentionally (Westaway) or recklessly (R v Campbell)

RED FLAGS AND TYPICAL ISSUES

- DIRECT PHYSCIAL INTERFERENCE (& THE EFFECT OF NOVUS ACTUS

INTERVINENS)
- THE ROLE OF SOCIAL NORMS
- TOUCH VS ACTUAL HARM
- SELF-DEFENCE

Direct Physical Interference

o Ds actions must have been the substantial and operating cause (Hallett) which led to Ds
interference with Ps body/clothing. The chain of causation must not be broken by a NAI
o Contact may be applied via an object the D operates and doesnt necessarily have to be by D
themselves (Fagan v Police Commissioner)
o Ultimately causation is a question to be determined by the jury applying their common sense
to the facts as they find them Burt CJ in Campbell v The Queen
 9

Scott v Sheppard

Facts: D (Scott) threw a lighted gunpowder squib into Ys stall. Like a game of hot-potato, Y
batted it quickly away, to land on Xs stall. X acting instinctively swiped it towards Ps
(Sheppards) direction. It exploded, and Sheppard lost one eye
Issue: Did Ds initial action in throwing the squib to Y directly interfere with Ps body? Or
did the actions of Y and X, in batting the squib away and interrupting its trajectory, break the
chain of causation?
Held: D liable for Ps injury. D voluntarily threw the squib at Y. Whilst the actions of Y and X
were crucial in determining the squibs final destination, they were only acting partially out of
reflex, and partially out of conscious defence for themselves. Therefore, Y and X could not be
said to have broken the chain of causation leaving D (Scott) ultimately liable for Ps injury.

Social norms

o It would be absurd if the law held all non-consensual touching could amount to a civil battery
case! Thus, in around the role of social norms and/or context, can act as a pseudo-defence for
Ds touching (Rixon v Star City); (McNamara v Duncan); (Horan v Ferguson)
o Conduct must be considered against what is acceptable in the ordinary conduct of everyday
life (Rixon v Star City), within its wider context (when/where/why)
o The HCA has held that hostility is not a necessary requirement of assault, but simply one of the
factors to take into account. If anything, it might go to demonstrate intent, then turning an
otherwise unobjectionable act into an assault (Boughey v R)

Need for actual harm

o It has long been established that unlike civil battery, for CL Assault to be made out, actual
physical harm needs to become of the V. Ie. D didnt just touch me, D hurt me.
o The law is unclear whether there needs to be long-term damage inflicted to V, and there is no
test to measure whether an incident qualifies as being sufficiently harmful or not. Consider
OTF, whether pursuing a CL assault claim would be apt.

Self-Defense

o That D was acting out of self-defense might act as a general defense for his/her case.
Remember Fontin v Katapodis however the courts are reluctant to condone self-defense
unless it was absolutely necessary, and relative the threat presented

CRIMINAL APPROACH: STATUTE CRIMES ACT 1958
Offence
s. 15A Intentionally causing
serious injury in circumstances of
gross violence
s.15B Recklessly causing serious
injury in circumstances of gross
violence
s.16 Causing serious injury
intentionally
s.17Casuing serious injury
recklessly
s.18 Causing injury intentionally
or recklessly
AR Elements
Act was one of gross violence
and caused serious injury to V
through VA
Act was one of gross violence
and caused serious injury to V
through VA
Act caused serious injury to V
through VA
Act caused serious injury to V
through VA
D caused the injury to V through
VA
10
MR Elements Maximum Sentence
D intended to act as he/she did, in a Level 3 imprisonment (20
circumstance of gross violence AND cause years maximum)
serious injury by doing so
D subjectively foresaw that the conduct would Level 4 imprisonment (15
be likely to result in a serious injury but went years maximum)
ahead anyway, intending to act in a
circumstance of gross violence
D intended to act as he/she did, Level 3 imprisonment (20
AND intended to cause serious injury (R v years maximum)
Westaway)
D subjectively foresaw that his acts would Level 4 imprisonment (15
probably cause serious injury, but went ahead years maximum)
anyway
Not simply enough intend to act as he/she did, If the injury was caused
D must also intended to cause the injury (R v intentionallylevel 5
Westaway) imprisonment (10 years
OR maximum)
D was subjectively aware that the act would
probably cause injury but went ahead anyway If the injury was caused
recklesslylevel 6

s.19A Intentionally causing a
serious disease (defined as HIV)
s.20 Threat to kill
s.21 Threat to cause serious
injury
s.21A Stalking
s.22 Conduct endangering life
D caused victim to be infected
with HIV through VA
D threatens to kill V in VA
D threatens to cause V serious
injury in VA
D partakes in a course of
conduct designed to cause
physical or mental harm to the
victim OR to arouse
apprehension or fear in victim
for his/her safety, through VA or
course of actions
D places or may place V in
danger of life in VA or omission
11
imprisonment (5 years
maximum)
D intend to act as he/she did and cause the Level 2 imprisonment (25
serious disease years maximum)
Intent to make threat Level 5 imprisonment (10
AND years maximum)
D intends V would fear the threat be carried out
OR
was subjectively reckless as to whether that
person would fear the threat being carried out
See above Level 6 imprisonment (5
years maximum)
Starting point: Level 5 imprisonment (10
D intends to cause physical/mental harm to the years maximum)
victim or arouse fear in the victim for his/her
own safety
Alternatively:
S21A(3): an offender also has intention if:
(a) D (subjectively) foresaw that engaging
in a course of conduct of that kind
would be likely to cause
psychical/mental harm OR fear, but
went ahead anyway
OR
(b) D ought to have understood as a
reasonable person (objectively) that
engaging in the conduct would cause
physical/mental harm OR arouse fear
Recklessness- Level 5 imprisonment (10
D recklessly does so, subjectively foreseeing years maximum)
the consequence as a probability of their
actions, but going ahead anyway
Negligence-
 12

A reasonable person would have (objectively)

s.23 Conduct endangering person
D places or may place V in
danger of really serious injury
through VA or omission
realised that their actions placed V in a life
threatening situation
Recklessness- Level 6 imprisonment (5
D recklessly does so, subjectively foreseeing years maximum)
the consequence as a probability of their
actions, but going ahead anyway

s.24 Negligently causing serious
injury
D voluntarily acts or by omission
does not act, in a way which
causes V serious injury
Negligence-
A reasonable person would have (objectively)
realised that their actions placed V in danger
Ds actions grossly fell short of the standard of Level 5 imprisonment (10
care which a reasonable person would have years maximum)
exercised (objectively) and involved such a high
risk of serious injury that the doing of the act
merits criminal punishment

AR Elements (Crimes Act) Definition

Injury S. 15 def. "injury" means
(a) physical injury; "physical injury" includes unconsciousness, disfigurement, substantial pain, infection
with a disease and an impairment of bodily function; or
(b) harm to mental health; "harm to mental health" includes psychological harm but does not include an
emotional reaction such as distress, grief, fear or anger unless it results in psychological harm; whether
temporary or permanent
Serious Injury S. 15 def. of serious injury "serious injury" means
(a) an injury (including the cumulative effect of more than one injury) that
(i) endangers life; or
(ii) is substantial and protracted; or
(b) the destruction, other than in the course of a medical procedure, of the foetus of a pregnant woman,
whether or not the woman suffers any other harm;
Gross Violence S.15A(1) Outlines the circumstances which constitutes gross violence:
(b) the offender in company with 2 or more other persons caused the serious injury;
(c) the offender entered into an agreement, arrangement or understanding with 2 or more other persons to
cause a serious injury;
(d) the offender planned in advance to have with him or her and to use an offensive weapon, firearm or
imitation firearm and in fact used the offensive weapon, firearm or imitation firearm to cause the serious injury;
 13

(e) the offender continued to cause injury to the other person after the other person was incapacitated;
(f) the offender caused the serious injury to the other person while the other person was incapacitated
Alternative verdict on charge of causing serious injury in circumstances of gross violence. If Jury not satisfied BRD D is
guilty of offence done in gross violence but are satisfied D is guilty of an offence against section 16 or 17, the jury may
acquit the accused of the offence charged and find the person guilty of an offence against section 16 or 17 instead.
Stalking Outlined in S21A(2) A person (the offender) stalks another person (the victim) if the offender engages in a course of conduct which
includes any of the following
(a) following the victim or any other person;
(b) contacting the victim or any other person by post, telephone, fax, text message, e-mail or other electronic communication
or by any other means whatsoever;
(ba) publishing on the Internet or by an e-mail or other electronic communication to any person a statement or other
material
(i) relating to the victim or any other person; or
(ii) purporting to relate to, or to originate from, the victim or any other person;
(bb) causing an unauthorised computer function in a computer owned or used by the victim or any other person;
(bc) tracing the victim's or any other person's use of the Internet or of e-mail or other electronic communications;
(c) entering or loitering outside or near the victim's or any other person's place of residence or of business or any other place
frequented by the victim or the other person;
(d) interfering with property in the victim's or any other person's possession (whether or not the offender has an interest in
the property);
(da) making threats to the victim;
(db) using abusive or offensive words to or in the presence of the victim;
(dc) performing abusive or offensive acts in the presence of the victim;
(dd) directing abusive or offensive acts towards the victim;
(e) giving offensive material to the victim or any other person or leaving it where it will be found by, given to or brought to the
attention of, the victim or the other person;
(f) keeping the victim or any other person under surveillance;
(g) acting in any other way that could reasonably be expected
(i) to cause physical or mental harm to the victim, including self-harm; or
(ii) to arouse apprehension or fear in the victim for his or her own safety or that of any other person
with the intention of causing physical or mental harm to the victim, including self-harm, or of arousing apprehension or fear in the
victim for his or her own safety or that of any other person

Exam Tip:

These are easy marks! You do not need to describe each offence in detail, but simply list the offences for which D might be charged.

Remember - the devil is in the detail, and this is your chance to be creative. Note the definitions of injury and stalking are both quite broad.
Could you make use of these?
 14

CIVIL APPROACH

WHAT ARE THE MAIN DIFFERENCES BETWEEN CRIMINAL AND CIVIL ASSAULT?

1. The Standard of Proof. The threshold for Criminal Law (beyond reasonable doubt) > than
Civil threshold (on the balance of probabilities)
2. The need for actual injury. For civil law contact without harm is sufficient. For CL assault and
Statutory Assault P must prove actual harm
3. The relevance of Fault. In all criminal assault proceedings P has the evidential burden to prove
fault. For Civil Battery (NOT Civil Assault), it is assumed D either had 1) intent OR; was 2)
negligent, when he/she came into contact with the P, and D has the evidential burden to prove
the absence of intent or negligence (McHale v Watson)
4. How the MR of each offence is construed. Whereas the MR of criminal assault is typically
construed as either intention or recklessness, for civil the MR is construed as either intention
or negligence.

Exam Tip:

Unless it otherwise indicates, always provide both a Civil and Criminal answer in the
exam. HD answers will speculate (1 sentence) why/if on the facts of the case, it
might it be advantageous to pursue a civil cause of action instead of try prosecute
the offender. Remember most exam questions ask you to advise your client... so
do!

CIVIL ASSAULT

Defining Civil Assault: D may be liable for civil assault if on the BOP, he/she performed a positive
voluntary act, which caused P to reasonably (Obj) apprehend imminent physical interference, + in
doing so, D acted either intentionally or negligently.

Consider OTF whether the issues surrounding CL Non-physical Interference Assault, can also apply
to Civil Assault

(OTHER) RED FLAGS AND TYPICAL ISSUES

- NEW STANDARD OF PROOF DONT FORGET

- LEVEL OF CONTACT NEEDED TO BE APPREHENDED BY THE COMPLAINENT

Contact

o The contact apprehended by the complainant does not need to be grave. Apprehension of any
force is sufficient (MacPherson v Brown) - though this is qualified in that the apprehension still
needs to be (obj) reasonable.
 15

CIVIL BATTERY

Defining Civil Battery: D may be liable for civil battery if on the BOP, he/she is found to have
performed a positive voluntary act, which caused direct physical interference with P, without Ps consent,
and in a manner which is beyond what is socially acceptable (Obj) + in doing so, D acted either
intentionally or negligently (in the legal sense of the word)

Consider OTF whether the issues surrounding CL Physical Interference Assault, can also apply to
Civil Battery

(OTHER) RED FLAGS AND TYPICAL ISSUES

- NEW STANDARD OF PROOF DONT FORGET

- TOUCH VS HARM
- CONSENT
- FAULT EXAMINERS LOVE TO TRIP YOU UP ON THIS!

Touch

o Arguably a single touch is all that is necessary to fulfill the contact requisite for civil battery
actual harm resulting from this touch is not necessary

Consent

o By definition battery is non-consensual contact. It might become an issue however if OTF: 1)

consent is not expressly stated, but implied; or 2) whilst consent for some contact was given,
such consent did not stretch the scope of the contact in question

Rixon v Star City Casino

Facts: Rixon (the P) was banned from SC. After proceeding to play roulette at SC
nonetheless, a security guard working on behalf of SC, approached P, and put his hand on Ps
shoulder so as to inject him from the casino.
Issue: Did touching in this instance without consent amount to battery?
Held: No. Touching was done for professional ends, in a non-violent matter, and was
allegedly done so as to grab Ps attention. The contact in this context, was generally
acceptable in everyday life (and arguably more so, given P knew hed likely be chucked out)

McNamara v Duncan

Facts: McNamara (the P) and Duncan (D) were opponents in a game of footy. After P
disposed of the ball, D ran up to P and elbowed him in the head. Ps skull was fractured. He
was unconscious for 10 days and left with a permanent disability.
Issue: As a professional player, it could be said with no doubt that P, to some degree,
consented to contact by other players even if not expressly stated. Perhaps he too
consented to a little rough play which strictly fell outside of the game rules (eg. a high tackle).
But was contact like this instance consensual? Was it usual course of the game?
Held: Elbowing to the head was well outside the rule of the game, and thus it could not be
argued P implicitly gave his consent. In the absence of express consent D liable.
 16

Fault

o Intention or negligence is necessary for Civil battery. However, if the Plaintiff is successful in
making out all the AR elements of battery, then the fact the Defendant acted either intentionally
or negligently is assumed (ouch!).
o Whilst it may seem unfair, the legal burden then rests upon the defendant to throw off
this assumption proving on the BOP that both intention and/or negligence were absent at
the time the defendant acted out (McHale v Watson). The only exception to this rule are
highway cases, where the P is hit by the Ds car when illegally crossing the road (Venning v
Chin); (Williams v Milotin).
o The definition of civil negligence differs from criminal negligence. As a general rule, its therefore
best to NOT cite criminal cases, when discussing the MR elements of either civil battery or
assault.
For civil intent cite: Fagan v Metropolitan Police Commissioner
For civil negligence cite: McHale v Watson
o Whilst there is no test to discern between the two, criminal negligence is considered a more
gross negligence than civil negligence. If OTF youd consider there a case for criminal
negligence, there should also be a case for civil.
o Remember MR is always an objective evaluation of the Defendants state of mind, within the
bounds of the Defendants subjective characteristics (McHale v Watson)
McHale v Watson

Facts: McHale (the D, a 12yr old boy) was playing tag with his neighbour, Susan Watson, (the
P, a 7yr old girl). When the game drew to a close, McHale threw a sharpened metal rod
(essentially a dart stolen from his fathers workshop) towards a wooden post nearby. The
dart deflected and pierced Watson in the right eye, blinding her. As it was clear OTF McHale
did not intend to hit Watson, the girls parents, argued he was negligent in throwing the dart
towards the post when Watson stood not far from it.
Issue: McHale held the burden of disproving his own negligence. Thus, the crux of the case
rested on whether McHale should be held accountable to the same standard of care as a
reasonable man, or instead of a 12 year old boy, of similar intelligence and life experience. If
he were held to the standard of an adult, he would likely have been found liable. If he were
held to the standard of a child, he would be likely be found not liable.
Held: Windeyer J, talking of Glasgow Corporation v Muir: In Glasgow, Lord Macmillan said:
the standard of foresight of a reasonable man is, in one sense, an impersonal test. It
eliminates the personal equation and is independent of the idiosyncrasies of the particular
person whose conduct is in question. In this case, childhood is not an idiosyncrasy. It
may be that an adult, knowing of the resistant qualities of hardwood and of the uncertainty that
a spike, not properly balanced as a dart, will stick into wood when thrown, would foresee that it
might fail to do so and perhaps go off at a tangent. A person who knew, or might reasonably
be expected to know that might be held to be negligent if he were not more circumspect than
was this infant defendant. But whatever the position would be if the facts were different, my
conclusion on the facts of this case is that the injury to the plaintiff was not the result of a lack
of foresight and appreciation of the risk that might reasonably have been expected, or of a
want of reasonable care in aiming the dart. I find that Barry Watson was not negligent

Necessity

o if Ds physical contact with P was necessary for example to save the Ps or anothers life it
will be lawful, and not amount to civil battery
 17

TOPIC 6: SEXUAL OFFENCES

RAPE

Defining Rape: As per s.38 of the Crimes Act, D might be liable for Vs rape: if D is found to have
sexually penetrated V, without his/her consent, and without reasonably (Obj) believing he/she
consented to penetration

Rape is a level 2 offence, and if D is found guilty he/she is liable for up to 25 years imprisonment

Crimes Act 1958

37D Sexual Penetration:

(1) A person (D) sexually penetrates another person (V) if

(a) D introduces (to any extent) a part of Ds body or an object into Vs vagina; or
(b) D introduces (to any extent) a part of Ds body or an object into Vs anus; or
(c) D introduces (to any extent) their penis into Vs mouth; or
(d) D, having introduces a part of Ds body or an object into Vs vagina, continues to keep it
there; or
(e) D, having introduces a part of Ds body or an object into Ds anus, continues to keep it
there; or
(f) D, having introduced their penis into Ds mouth, continues to keep it there
(5) For sexual penetration by use of a penis, it does not matter whether or not there is emission
of semen

37G Reasonable belief:

(1) whether or not a person reasonably believes that another person is consenting to an act
depends on the circumstances
(2) the circumstances include any steps that the person has taken to find out whether the
other person consent or, in case of an offence against section 42(1), would consent to the act

37H Effect of intoxication on reasonable belief

(1) In determining whether a person who is intoxicated has a reasonable belief at any time
(a) If the intoxication is self-induced, regard must be had to the standard of a reasonable
person who is not intoxicated, and who is otherwise in the same circumstances as that
person at the relevant time; and
(b) If the intoxication is not self-induced, regard must be had to the standard of a reasonable
person intoxicated to the same extent as that person and who is in the same
circumstances as that person at the relevant time
(2) For the purposes of this section, intoxication is self-induced unless it came about
(a) Involuntary; or
(b) Because of fraud, sudden or extraordinary emergency, accident, reasonable mistake,
duress or force; or
(c) From the use of a drug for which a prescription is required and that was used in
accordance with the directions of the person who prescribed it; or
(d) From the use of a drug for which a prescription is not required and that was used for a
purpose, and in accordance with the dosage level recommended by the manufacturer
 18

(3) However, intoxication that comes about in the circumstances referred to in subsection (2)(c) or
(d) is self-induced if the person using the drug knew, or had reason to believe, when taking the
drug that it would significantly impair the persons judgement or control

34C Consent

(2) ..Circumstances in which a person does NOT consent to an act include, but are not limited to,
the following
(a) the person submits to the act because of force or the fear of force, whether to that person of
someone else;
(b) the person submits to the act because of the fear of harm of any type, whether to that
person or someone else;
(c) the person submits to the act because the person is unlawfully detained;
(d) the person is asleep or unconscious;
(e) the person is so affected by alcohol or another drug as to be incapable of consenting to the
act;
(f) the person is incapable of understanding the sexual nature of the act;
(g) the person is mistaken about the identity of any other person involved in the act;
(h) the person mistakenly believes that the act is for medical or hygienic purposes;
(i) if the act involves an animal, the person mistakenly believes that the act is for veterinary,
agricultural or scientific purposes

Jury Directions Act 2013

S.61(3) Both prosecution and defence counsel may request that the trial judge

(a) inform the jury that a person can consent to an act only if that person is capable of consenting
and free to choose whether or not to engage in or allow the act;
(b) inform the jury that where a person has given consent to act the person may withdraw that
consent either before the act takes place, or any time while the act is taking place; or
(c) inform the jury that the fact a person did not say or do anything to indicate consent at the time at
which the act took place, is enough to show that the act took place without thats persons
consent; or
(d) warn the jury that evidence of the following alone is not enough to regard a person as having
consented to an act
i. evidence that the person did not protest or physically resist; or
ii. evidence that the person did not sustain physical injury; or
iii. evidence that on a particular occasion the person consented to another act that is
sexual in nature (whether or not the same type) with the accused or with another
person

s.61(4) Both prosecution and defence counsel may request that the judge

(a) inform the jury of the relevant circumstances in which the law provides that a person does not
consent to an act; or

direct the jury that if the jury is satisfied beyond reasonable doubt that a circumstance referred to in
s.34C in the Crimes Act 1958 existed in relation to a person, the jury MUST find that the person did
not consent to the act
 19

Jury directions are not law per se, but more guidelines read to the Jury, explaining how to apply the
law. Section 61 of the Jury Directions Act 2013, details the relevant jury directions regarding consent.
As it would often be advantageous for either defence counsel/prosecution to request the trial judge read
the Jury Directions consider including a few sections within your exam response.

RED FLAGS AND TYPICAL ISSUES

- FACTORS WHICH MIGHT VITIATES VS CONSENT S.34C

- ALCOHOL/DRUGS
- THE OBJECTIVE REASONABLENESS OF DS SUBJECTIVE BELIEF
- FRAUD AS TO IDENTITY OF D OR NATURE OF ACT

R v Clarence

Facts: D had sexual intercourse with his wife whist knowing he was suffering from gonorrhoea at
the time. Upon learning this, his wife argued her consent previously given was in fact void, as
she only consented to disease-free sex.
Issue: If an element of Vs knowledge towards the sexual experience, is flawed, missing or
compromised can we say V properly consented to this act, with informed true consent?
Held: in this case, yes. V still understood the sexual nature of the act and this is enough.
Otherwise, many seductions would be rape.. the only cases in which fraud indisputably vitiates
consent.. are cases of fraud as to the nature of the act done or the identity of the accused

*Note: consider either charging D with procuring sexual penetration by fraud as per s.57(2) of the
Crimes Act (5 years max) OR charging D with intentionally/recklessly causing serious injury as per
s.17 of the Crimes Act (10 and 5 years max, respectively)

Papadimitololous v R

Facts: A Greek girl with little English went to the marriage registry with D who led her to believe
they were then married. A few days later, on their honeymoon the pair had sex several times,
and afterward D left her. V claimed her consent was vitiated by fraud.
Held: fraud as to marital status or occupation are not sufficient to vitiate consent. As the girl still
know the sexual nature of the act she legally consented.

Other cases worth noting

o Gallienne Wife had sex with stranger who snuck into her bed, thinking it was her husband.
Held: mistake as to identity = rape
o Question of Law (No 1 of 1993): the difference between submission and consent ca be a fine
line (but) submission is not consent.. Consent must be freely given, and acquiescence to
intercourse by reason of any threat or duress may properly be regarded as negativity consent
for the purposes... of rape
o R v Millar: Consent can be implied through action - It is the nature of things rare for consensual
conduct involving intimacy of this kind to be preceded by formal offer and acceptance. In some
instances, consent is capable of being inferred from acquiescence in the continuation of the
activity.
 20

SEXUAL ASSAULT

Sexual Assault: As per s.40 of the Crimes Act, D might be liable for Vs sexual assault; if D is found
to have intentionally touched V, in a sexual manner, for which V did not consent to, and D could not
reasonably have believed V consented to

Sexual Assault is a level 5 offence, and if D is found guilty he/she is liable for up to 10 years
imprisonment

Crimes Act 1958

37E Touching:

(1) Touching may be done-

(a) With any part of the body; or
(b) With anything else; or
(c) Through anything, including anything worn by the person doing the touching or by the
person touched
(3) Touching may be sexual due to
(a) The area of the body that is touched or used in the touching, including (but not limited to)
the genital or anal region, the buttocks or, in the case of a female, breasts; or
(b) The fact that the person gets sexual gratification from the touching; or
(c) Any other aspect of the touching, including the circumstances in which it is done
(4) A person does not commit an offence against subsection (1) if
(a) The touching is of a person and is caused to be done by D in the course of a procedure
being carried out by D in good faith for medical or hygienic purposes

For provisions on reasonable belief see s.37G and s.37H of the Crimes Act 1958. For provisions on
consent see s.34C of the Crimes Act. Finally, s.61 of the Jury Directions Act are also relevant for
sexual assault

Exam Tip:

Do not forget s.39 Rape by compelling sexual penetration, s.41 Sexual assault by
compelling sexual touching, s.42 Assault with intent to commit a sexual offence,
s.43 Threat to commit a sexual offence, and all sections relating to bestiality
 21

TOPIC 7: HOMICIDE

Death s.41 Human Tissue Act = Blood flow stopped, brain function ceased

S.3 Murder: max life sentence

S.5 Manslaughter: 20 yrs max
S.4A UDA Manslaughter
Other forms of statutory Manslaughter - incl. infanticide, suicide pacts, culpable driving
causing death, dangerous driving causing death

RED FLAGS AND TYPICAL ISSUES

- ANY NOVUS ACTUS INTERVENIENS SEE PG.3

- SATISFYING THE MENS REAS
- SELF-DEFENCE (ESP. FV)

THE MENS REAS OF HOMICIDE

CL MURDER - MAKE OUT AT LEAST ONE OF THE FOLLOWING FOR MURDER:

1. INTENT TO CAUSE GBH/DEATH

Intent gather from facts, try to identify motive. The nature of the Ds acts may provide
evidence of his/her motive (R v McKnoulty)
GBH: no concrete definition. Described as really serious injury (DPP v Smith), and can
include placing a pillow over Vs head (R v Rhodes), stabbing, punching, or any violence
rendering V unconscious (Meyers v R)
It is not sufficient that D intended to do the act which injured the V must also have intended
to cause serious injury (Westaway)
DOCTRINE OF TRANSFERRED MALICE?
Irrelevant D intended to kill/injure A, but instead harmed B Intention is carried
over (R v Saunders and Archer). Exception: cant have double transfer (A-G)
If D intends to kill anyone (ie. terrorist plot) the doctrine of TM still applies
DEATH OF FOETUS?
Legally a person is not in being until he/she is born in a living state. If a child is
injured whilst in the womb, or during the course of birth, and is born alive but
hereafter dies = homicide (R v West)
The destruction of foetus is classified in s.15 as really serious injury if not done as
legit abortion. Therefore, if foetus is lost (and mother has miscarriage or child is
stillborn) DPP can charge under s.16, s.17 or s.24, but cant file for s.3 or s.5
2. RECKLESSLY CAUSING DEATH
Recklessness: D subjectively foresaw the probable (described in Boughey v R as real and
substantial chance) consequences, but went ahead anyway as if indifferent (Crabbe)
3. CONSTRUCTIVE MURDER S.3A
(In Vic ONLY) where Ds act was one of intentional violence, committed in furtherance of a
crime, the necessary elements of which include violence for which a person may be
sentenced to 10yrs+ imprisonment (eg. armed robbery) the requisite MR for murder will
be constructed so as to be fulfilled.
Simply putting V in fear was found in R v Butcher = act of violence
 22

Re: violent act in furtherance of a crime crime does not have to have been
completed
4. CONSTRUCTIVE MURDER UNDER COMMON LAW
Where Ds act of violence was done in the course of resisting lawful arrest, or escaping
lawful custody (eg. jail breakout) requisite MR will also be constructed (Pagett)

CL MANSLAUGHTER CHARGES CAN INCLUDE:

1. NEGLIGENT MANSLAUGHTER BY OMMISION

Tick both boxes Lavender gross negligence, wicked omission
Issue 1: Was there a DOC? DOC can arise out of the three instances:
1. Statutory
2. Common Law (Guardian/child, doctor/patient, road users)
3. Circumstances where D placed V in a position of danger in the first place (Miller)
OR where D voluntary took a DOC upon themselves (Stone and Dobinson, Taktak)
Issue 2: Was there a gross falling short of the SOC? use Nydams test
Test: did the circumstances involve such a great falling short of the SOC which a
reasonable man* would have exercised, and which involved such a high risk of death
or bodily harm would follow, that the doing of the act merited criminal punishment?

*compare conduct of D as that of a reasonable person who possess the same

personal attributes as D (age, experience, knowledge) and in the
circumstances D found themselves, and having an ordinary fortitude and
strength of mind which a reasonable person would have.

2. NEGLIGENT MANSLAUGHER BY ACT

Only issue: Was there a gross falling short of the SOC? Nydams test

3. UDA MANSLAUGHTER: To prove the MR for UDA manslaughter, D must have intended
to perform the UDA in itself, but (1) did not intend the outcome of killing V (2) or foresee
death as probable (as this would be murder). UDA has 2 limbs which both must check up.
Limb 1: Was the act unlawful?
First ask whether D intended to the unlawful act (ie. an act that constitutes a crime known
to be against the law). Establish intent OTF, and then move onto the unlawfulness of an
act itself could the act be an actual crime? In most cases CL assault is the easiest
crime to cite, yet if you use this be wary to consider the role of:
1. Apprehension: and compare R v Lamb with Pemble v R
2. Consent: if act is consented to generally not unlawful. Wilson lists the various
acts where consent can to be given. R v Brown exception: serious harm inflicted
either through S&M or other means cannot be consent to
Note: an act done in self-defence is not unlawful (so long as necessary, proportionate)
Limb 2: Was the act dangerous? Either use/cite:
1. The objective test established within Wilson v R: A reasonable person performing
the same act as the accused, would have realised they were exposing another to
an appreciable risk of serious injury Serious injury = injury which is more than
trivial
2. As per s.4A of the CA, an act can be made out as dangerous if it constitutes a
single punch or strike to the head or neck
- Can use an object (Fagan v Metropolitan Police Commissioner)
 23

NM BY OMMISION: A BREACH OF SOC ARISING FROM DOC

In each of these cases we have an DOC arising from the Defendant in some way assuming
responsibility for the Victim. If applicable OTF, HD answers will compare these cases and parallel
the key differences of each, to the facts at hand. What case will Prosecution try use? What case will
Defense Counsel try use?

1. R v Istan (G)
2. R v Stone & Dobinson whilst Stone was a relative of V and therefore had an immediate
DOC, Dobinson voluntarily assumed DOC by helping V (G)
3. R v Taktak (NG)

Points of difference:

How much care was given, and the immediacy of this care (Tt v S&D)
Intent (Istan very clear V would die from Ds actions, whereas Tt not as clear)
Causal directness of Ds actions in bringing about Vs death (Istan accelerated death vs
Tt wasnt a cause)
Balance of power in relationship between D and V (Tt)
Failure to seek help (Istan) vs Ds deliberate isolation of V from third party (Tt)
 24

TOPIC 8: POSSIBLE DEFENCES

S322I D has the evidential burden to raise any form of defense, and P has the legal burden to dispel
any defense, beyond reasonable doubt.

S.322O - DURESS

Re: Ds reasonable belief of imminent threat:

s.322O(2)(a)(i) D must have subjectively believed there was a threat of harm that would be
carried out unless the criminal conduct by D (eg. beating, blinding the V..) was committed
s.322O(2)(a)(ii) D must have subjectively believed that carrying out the conduct was the only
reasonable way the threat could be avoided

Re: The reasonableness of Ds response to this threat: s.322O(2)(b) Ds conduct (ie. criminal
act) must have been a reasonable response to the threat

Re: Voluntary association: s.322O(3) - If the threat is made by, or on behalf, of a person with whom
the D has voluntarily associated for the purpose of carrying out violent conduct, duress cannot be made
out

Re: Death of V: s.322O(4) - If V ended up dying from Ds actions, D must have reasonably believed a
threat was to inflict death or really serious injury was operating

s.322P Family violence may be relevant in determining whether a person has carried out conduct
under duress

S.322K - SELF DEFENCE

Is only available when the D was defending themselves or another person, preventing an unlawful
deprivation of personal liberty of either themselves or another person, or protecting property.

Re: Ds own reasonable belief SD was necessary:

s.322K(2)(a) - D must have subjectively believed their conduct was necessary in self-defense.
See Zecevic v DPP
S.322M(1)(a) - In a family violence situation, the conduct need not be in response to some
immediate harm (and the trial judge may direct the Jury to this rule as per s.58 and 60 of the
Jury Directions Act)
Example: D might have a fear her child will be molested by his step-father sometime
tonight but not now per se and so acts to protect the child by attacking the step-
father in the morning

Re: Reasonableness of the SD itself:

S.322K(2)(b) - Ds conduct must have been an objectively reasonable response in the

circumstances, as D perceived them
s.322M(1)(b) in a family violence situation, conduct may have involved force in excess of the
force threatened by the victim (and the trial judge may direct the Jury to this rule as per s.58
and 60 of the Jury Directions Act)
If D is intoxicated, and the intoxication is self-induced, regard must be had to the reasonable
response of a person not intoxicated. If D is intoxicated and this was NOT self-induced, regard
must be had the to the reasonable response of a person intoxicated to the same extent as D
 25

Re: Death of V: s.322K(3) - If V ended up dying from said self-defense, D must have reasonably
believed they were defending themselves/another from death or really serious injury

WHEN DO WE HAVE A SCENARIO OF FAMILY VIOLENCE?

s.322J (2) Family member in relation to a person includes:

(a) a person who is or has been married to the person; or
(b) a person who has or has had an intimate personal relationship with the person; or
(c) a person who is or has been the father, mother, step-father or step-mother of the person; or
(d) a child who normally or regularly resides with the person; or
(e) a guardian of the person; or
(f) another person who is or has been ordinarily a member of the household of the person;

s.322J(2) - Examples of violence (wide definition) - physical, sexual, psychological, intimidation,

harassment, damage to property, threats of abuse, exposing a child to abuse etc.

Jury Directions Act 2013

S.32(7) covers directions given on request of either Prosecution or Defence Counsel including, that:

FV is not limited to physical abuse. It may include sexual abuse, psychological abuse,
intimidation and threats
FV may consist of a single act, or a pattern of what would appear to most people to be trivial
acts
People react differently to FV there is no normal response
It is not uncommon for a person to stay with or return to an abusive partner, or not report the
violence
Reactions to FV may be influence by cultural and social norms
The fact that D has previously assaulted V does not mean D was not acting in self-defense on
this occasion
 26

S.322R - SUDDEN OR EXTRODINARY EMERGENCY

Re: Ds reasonable belief that emergency exists:

s.322R(2)(a)(i) D must have believed there was an emergency

Even if emergency does not exist, it is sufficient that D reasonably believed an emergency
existed
s.322R(2)(a)(ii) D must have reasonably believed the conduct was necessary to avoid the
emergency scenario and thus reasonable conduct
Relevant cases: Limbo v Little

Re: The reasonableness of Ds response to the apparent emergency: s.322R(2)(b) Ds conduct

must have been a reasonable response to the emergency

Re: Death of V: s.322R(3) - If V died, D must have reasonably believed the emergency involved a risk
of death or really serious injury

(NOT A TRUE DEFENCE) - CONSENT

You cannot consent to an unlawful and dangerous act (R v Brown; R v Stien)

Consent renders CL Assault lawful, unless the act causes bodily harm eg. a playful slap won't
cause real harm
Limited scenarios where bodily harm is permitted include:
o Tattooing, body piercing and branding R v Wilson
o Surgery Marions Case
o Contact sports, in accordance to the rules McNamara v Duncan