UPDATE 231 MARCH 2013 CRIMINAL LAW NEW SOUTH WALES. AM Blackmore SC & GS Hosking SC. Highlights. New and amended commentary Legislative amendments

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UPDATE 231 MARCH 2013 CRIMINAL LAW NEW SOUTH WALES AM Blackmore SC & GS Hosking SC Highlights New and amended commentary Legislative amendments Material Code 30176020 Print Post Approved

1 UPDATE 231 MARCH 2013 CRIMINAL LAW NEW SOUTH WALES AM Blackmore SC & GS Hosking SC Highlights New and amended commentary Legislative amendments Material Code Print Post Approved PP255003/00353 Thomson Reuters (Professional) Australia Limited 2013 Looseleaf Support Service You can now access the current list of page numbers at If you have any questions or comments, or to order missing pages, please contact Customer Care LTA ANZ on Fax:

2 NEW AND AMENDED COMMENTARY The Crimes Act 1900 contains new and amended commentary at: Indictment at [2.2340] discusses charges for attempted murder through the administration of poison, wounding or the causing of grievous bodily harm. Jurisdiction, related provisions and cross references at [2.2360]. The case of R v Cengiz [1998] 3 VR 720 is cited. Elements of the offences at [2.2400] regarding the elements that must be proved on a charge attempted murder. Element (1) Administration etc of poison etc or wounding or causing grievous bodily harm at [2.2420] discusses the administration of poison or wounding or the causing of grievous bodily harm and the actus reus of attempted murder. Cases cited include Devine v The Queen [1982] Tas R 155; (1982) 8 A Crim R 45; R v Cramp (1880) 5 QBD 307; R v Haydon (1845) 1 Cox CC 184; R v Marcus [1981] 1 WLR 774; [1981] 2 All ER 833; (1981) 73 Cr App R 49; Moriarty v Brooks (1834) 6 Car & P 684; 172 ER 1419; Vallance v The Queen (1961) 108 CLR 56; R v Beckett (1836) 1 Mood & R 526; 174 ER 181; R v Berwick [1979] Tas R 101; R v Wood (1830) 1 Mood CC 278; 168 ER 1271; R v McLoughlin (1838) 8 Car & P 635; 173 ER 651; JJC (a minor) v Eisenhower [1984] QB 331; [1983] 3 WLR 537; [1983] 3 All ER 230; R v Shadbolt (1835) 5 Car & P 504; 172 ER 1073; R v Smith (1837) 8 Car & P 173; 173 ER 448; R v Shepherd [2003] NSWCCA 351; R v Jones (1849) 3 Cox CC 441; R v Waltham (1849) 3 Cox CC 442; R v Hatch [2006] NSWCCA 330; R v Duffıll (1843) 1 Cox CC 49; R v Chisari [2006] NSWCCA 19; R v Sheard (1837) 7 Car & P 846; 173 ER 368; R v Salisbury [1976] VR 452; McMillan v Reeves (1945) 62 WN (NSW) 126 and R v Mai (1992) 26 NSWLR 371; 60 A Crim R 49. Element (2) Intent to kill ( to commit murder ) at [2.2440] discusses impossibility or use of insufficient means is also examined. Cases cited include Viro v The Queen (1978) 141 CLR 88; 52 ALJR 418; 18 ALR 257; R v Cengiz [1998] 3 VR 720; R v Collingridge (1976) 16 SASR 117; Haughton v Smith [1975] AC 476; [1974] 2 WLR 1; [1973] 3 All ER 1109; Britten v Alpogut [1987] VR 929; (1986) 23 A Crim R 254; R v Whybrow (1951) 35 Cr App R 141; R v Spartels [1953] VLR 194; R v Grimwood [1962] 2 QB 621; [1962] 3 WLR 747; (1962) 46 Cr App R 393; Alister v The Queen (1983) 154 CLR 404; Knight v The Queen (1992) 175 CLR 495; 63 A Crim R 166; [1992] HCA 56; Park v The Queen (2010) 202 A Crim R 133; [2010] NSWCCA 151; R v Helmhout (1980) 1 A Crim R 103; 42 FLR 53; McGhee v The Queen (1995) 183 CLR 82; 69 ALJR 650; 79 A Crim R 281; [1995] HCA 69; Cutter v The Queen (1997) 71 ALJR 638; 94 A Crim R 152; [1997] HCA 7; R v Mai (1992) 26 NSWLR 371; 60 A Crim R 49; R v Barbouttis (1995) 37 NSWLR 256; 82 A Crim R 432; Onuorah v The Queen (2009) 76 Criminal Law NSW 2

3 NSWLR 1; 197 A Crim R 430; [2009] NSWCCA 238 and R v Shivpuri [1987] AC 1; [1986] 2 WLR 988; (1986) 83 Cr App R 178. Attempted murder defences at [2.2460] discusses the defences that may be brought against a charge of attempted murder. Cases examined include R v Gotts [1992] 2 AC 412; [1992] 2 WLR 284; [1992] 1 All ER 832; McGhee v The Queen (1995) 183 CLR 82; 69 ALJR 650; 79 A Crim R 281; [1995] HCA 69; R v Dudley (1884) 14 QBD 273; DPP for Northern Ireland v Lynch [1975] AC 653; [1975] 2 WLR 641; [1975] 1 All ER 913; R v McConnell [1977] 1 NSWLR 714; R v Howe [1987] AC 417; [1987] 2 WLR 568; (1987) 85 Cr App R 32; R v Wilson [2007] 2 Cr App R 411; R v Japaljarri (2002) 134 A Crim R 261; [2002] VSCA 154; R v Goldman (2004) 147 A Crim R 472; [2004] VSC 291; R v Wells (1981) 28 SASR 63; 3 A Crim R 453 and Roche v The Queen [1988] WAR 278; 29 A Crim R 168. Indictment at [2.2510] discusses charges for acts done to property in an attempt to murder. The case of Basto v The Queen (1954) 91 CLR 628; [1954] HCA 78 is cited. Jurisdiction, related provisions and cross references at [2.2520]. Elements of the offences at [2.2530] discusses the elements that must be proved on a charge of attempted murder by way of certain acts done to property. Element (1) Setting fire to a vessel etc; destroying a building with explosive etc at [2.2540] discusses the definition of terms such as vessel, cast away and railway as well as the actus reus of attempted murder. Cases cited include McMillan v Reeves (1945) 62 WN (NSW) 126 and R v Mai (1992) 26 NSWLR 371; 60 A Crim R 49. Element (2) Intent to kill ( to commit murder ) at [2.2550] discusses impossibility or use of insufficient means is also examined. Cases include R v Whybrow (1951) 35 Cr App R 141; R v Spartels [1953] VLR 194; R v Grimwood [1962] 2 QB 621; [1962] 3 WLR 747; (1962) 46 Cr App R 393; Alister v The Queen (1983) 154 CLR 404; Knight v The Queen (1992) 175 CLR 495; 63 A Crim R 166; [1992] HCA 56; Park v The Queen (2010) 202 A Crim R 133; [2010] NSWCCA and R v Cengiz [1998] 3 VR 720. Attempted murder defences at [2.2560] discusses the defences that may be brought against a charge of attempted murder. Indictment at [2.2590] discusses charges for other attempts to murder. The case of Basto v The Queen (1954) 91 CLR 628; [1954] HCA 78 is cited. Jurisdiction, related provisions and cross-references at [2.2600]. Elements of the offence at [2.2610] discusses the elements that must be proved on a charge of attempted murder by other means. Criminal Law NSW 3

4 Element (1) Attempt to administer poison, shoot at, drown etc at [2.2620] discusses various terms such as attempted administration, shoots at and drowning, suffocation or strangling as well as the actus reus of attempted murder. Cases cited include R v Collingridge (1976) 16 SASR 117; R v Cramp (1880) 5 QBD 307; R v Haydon (1845) 1 Cox CC 184; R v Marcus [1981] 1 WLR 774; [1981] 2 All ER 833; (1981) 73 Cr App R 49; R v Evans (1973) 5 SASR 183; R v Marshall (1987) 49 SASR 133; 26 A Crim R 259; R v Abdallah (2005) 157 A Crim R 219; [2005] NSWCCA 365; R v Jackson (1890) 17 Cox CC 104; R v Grogan (1889) 15 VLR 340; R v Pridmore (1913) 8 Cr App R 198; R v Haley (1959) 76 WN (NSW) 550; McMillan v Reeves (1945) 62 WN (NSW) 126 and R v Mai (1992) 26 NSWLR 371; 60 A Crim R 49. Element (2) Intent to kill ( to commit murder ) at [2.2630] discusses impossibility or use of insufficient means is also examined. Cases cited include R v Whybrow (1951) 35 Cr App R 141; R v Spartels [1953] VLR 194; R v Grimwood [1962] 2 QB 621; [1962] 3 WLR 747; (1962) 46 Cr App R 393; Alister v The Queen (1983) 154 CLR 404; Knight v The Queen (1992) 175 CLR 495; 63 A Crim R 166; [1992] HCA 56; Park v The Queen (2010) 202 A Crim R 133; [2010] NSWCCA and R v Cengiz [1998] 3 VR 720. Attempted murder defences at [2.2640] discusses the defences that may be brought against a charge of attempted murder. Indictment at [2.2890] discusses charges for attempts to murder not covered by ss The case of Park v The Queen (2010) 202 A Crim R 133; [2010] NSWCCA is cited. Jurisdiction, related provisions and cross-references at [2.2900]. Elements of the offence at [2.2910] discusses the elements that must be proved on a charge of attempted murder by means other than those covered by ss Attempted murder by any other means at [2.2920] discusses any means as well as the actus reus of attempted murder. Cases cited include R v Brown (1883) 10 QBD 381; R v White [1910] 2 KB 124; (1910) 4 Cr App R 257; Park v The Queen (2010) 202 A Crim R 133; [2010] NSWCCA 151; McMillan v Reeves (1945) 62 WN (NSW) 126; R v Mai (1992) 26 NSWLR 371; 60 A Crim R 49 and McGhee v The Queen (1995) 183 CLR 82; 69 ALJR 650; 79 A Crim R 281; [1995] HCA 69. Criminal Law NSW 4

5 Element (2) Intent to kill ( to commit murder ) at [2.2930] discusses impossibility or use of insufficient means is also examined. Cases include Park v The Queen (2010) 202 A Crim R 133; [2010] NSWCCA 151; R v Whybrow (1951) 35 Cr App R 141; R v Spartels [1953] VLR 194; R v Grimwood [1962] 2 QB 621; [1962] 3 WLR 747; (1962) 46 Cr App R 393; Alister v The Queen (1983) 154 CLR 404; Knight v The Queen (1992) 175 CLR 495; 63 A Crim R 166; [1992] HCA 56; McGhee v The Queen (1995) 183 CLR 82; 69 ALJR 650; 79 A Crim R 281; [1995] HCA 69 and R v Cengiz [1998] 3 VR 720. Attempted murder defences at [2.2940] discusses the defences that may be brought against a charge of attempted murder. LEGISLATIVE AMENDMENTS The Crimes (Appeal and Review) Act 2001 was amended by the Courts and Other Legislation Further Amendment Act 2013 (Act 1 of 2013), Sch 1.9, which commenced on 28 February The purpose of this Act is to make miscellaneous amendments to certain legislation with respect to courts and juries, civil and criminal procedure, the exchange of information by certain government agencies and the enforcement of fines and to effect minor statute law revision; and to repeal the Inebriates Act Section 59 and Sch 1 were amended. The Firearms Act 1996 was amended by the Firearms Amendment (Ammunition Control) Act 2012 (Act 34 of 2012), Sch 1[1] and [4], which commenced on 4 March The purpose of this Act is to amend the Firearms Act 1996 to make further provision for the purchase and sale of ammunition. Schedule 3 was amended. Section 45A was inserted. The Children (Community Service Orders) Act 1987 was amended by the Courts and Other Legislation Further Amendment Act 2013 (Act 1 of 2013), Sch 1.3, which commenced on 28 February Section 3 and Sch 1 were amended. Section 28B was inserted. Criminal Law NSW 5

6 The Children (Detention Centres) Act 1987 was amended by the Courts and Other Legislation Further Amendment Act 2013 (Act 1 of 2013), Sch 1.4, which commenced on 28 February Sections 3 and 37E 37H were amended. Section 39B was inserted. The Children and Young Persons (Care and Protection) Regulation 2012 was amended by the Children and Young Persons (Care and Protection) Amendment (Code of Conduct) Regulation 2013 (Reg 72 of 2013), Sch 1[1], which commenced on 1 March The purpose of this Regulation is to continue in force a provision that requires a person authorised by a designated agency to provide out-ofhome care to comply with a code of conduct (contravention of which may result in the cancellation or suspension of an authorisation) and to replace the prescribed code of conduct with a code of conduct approved by the Minister for Family and Community Services and other purposes. Section 25 was amended. The Fines Act 1996 was amended by the Courts and Other Legislation Further Amendment Act 2013 (Act 1 of 2013), Sch 1.12, which commenced on 28 February Sections 99A and 101A were amended. Criminal Law NSW 6

MLL214&'CRIMINAL'NOTES' ''''''! Topic 1: Introduction and Overview

MLL214&'CRIMINAL'NOTES' ''''''! Topic 1: Introduction and Overview ! Topic 1: Introduction and Overview Introduction Criminal law has both a substantive and procedural component. o Substantive: defining and understanding the constituent elements of the various common