LAWS1022 Criminal Laws Summary Sheet

Transcription

1 LAWS1022 Criminal Laws Summary Sheet Murder S 18 of the Crimes Act makes murder an offence. To make out this offence, the P must prove BRD the following elements (Woolmington v DPP [1935]): 1. Voluntary act/omission 2. Caused the death (Ryan) 1. D had the intention to cause death or GBH Reckless Indifference s 18(1)(a) 1. D s voluntary act caused the death (Ryan) Voluntariness is presumed, and if any defences are raised, onus of proof is on the defence Doesn t matter if the precise method of death does not eventuate (Royall) 1. D was recklessly indifferent to human life D foresaw the probability of death (Royall) but proceeded nonetheless indifference to the consequences is guilty of murder where death results (Crabbe) Foreseeability of risk of death is subjective (Pemble) indifference to known probable consequences The risk must be substantial, a real and not remote chance regardless of whether it is less or more than 50% (Fuare) not a mere possibility Actual knowledge or foresight that actions would probably cause death: Imputed knowledge not enough, but possible scope for wilful blindness (Crabbe) Murder by reckless indifference to human life is a specific intent and thus, evidence regarding intoxication will be taken into account Reckless indifference to GBH = manslaughter (Solomon) Constructive Murder S 18(a) of the Crimes Act makes murder occurring during or immediately after the commission or attempted commission of a felony punishable by imprisonment of 25 years. To make out this offence, the P must prove BRD the following elements (Woolmington): 1. Voluntary act (doesn t matter if accidental) 2. Caused the death, during or immediately after the commission of a felony punishable by imprisonment of 25 years (Ryan) The felonious conduct must have involved violence or danger to some person (Ryan) No need for a casual link between the felony relied upon and the danger itself, or proof of malice beyond the death itself (Munro) 1. Intent to commit the base offence only needs to be proved by the P (Munro) S 33 wounding with intent cause GBH s 110 breaking + entering a dwelling-house + assaulting with intent to murder s 98: robbery with arms and wounding (Ryan actual wounding). If the show of force was after the offence of armed robbery, then it couldn t satisfy the requirements for robbery with arms and wounding Manslaughter by an Unlawful and Dangerous Act S 18 of the Crimes Act makes manslaughter an offence. Manslaughter is undefined in statute; thus the common law provides two categories for manslaughter: manslaughter by an unlawful and dangerous act and manslaughter by criminal negligence. To make out this offence, the P must prove BRD the following elements (Woolmington): 1. Was the act a voluntary and intentional act? (Martin)

2 2. Was the act unlawful? (Wilson) Act must be criminal, as opposed to merely tortious Act must be unlawful itself unlawful otherwise than by reason of the fact that it amounts to a breach (Pullman), act must cause an appreciable risk of injury on part of the reasonable person in the accused s position Omissions cannot constitute as unlawful acts, even if deliberate. Will be manslaughter by criminal negligence (Love) Administering drugs as unlawful acts = narrow approach adopted by Australian authorities, not enough to prove accused administered the drug to the deceased and encouraged her to take it she needed to have her will overborne, and he had to be in a position of authority and control (Wilhelm) 3. Was the act dangerous? Did the act, from the the standpoint of a reasonable person in the accused s position, carry with it an appreciable risk of serious injury? (Wilson, Holzer) Reasonable person = + same age as the accused (DPP v Ty), same position as accused (Cornelissen). o Jury considers the physical features of situation + actions of accused, don t extend to mental/emotional state (Willis). 4. Did any circumstances exist to justify the act? Acts performed in self-defence is not unlawful (Cornelissen) Defence of rescue (Downs) 1. Intent to commit the act which is unlawful and dangerous, not accidental (Newbury) Manslaughter by Criminal Negligence S 18 of the Crimes Act makes manslaughter an offence. Manslaughter is undefined in statute; thus the common law provides two categories for manslaughter: manslaughter by an unlawful and dangerous act and manslaughter by criminal negligence. To make out this offence, the P must prove BRD the following elements (Woolmington): 1. Act must be voluntary (Nydam) 2. Act caused death 1. Whether the reasonable person would have appreciated a probability of death/gbh, and 2. Whether the conduct of the accused was wickedly negligent - fell well below that of the reasonable person to such a degree that it merited criminal punishment (Lavender) Reasonable person = test not entirely subjective as the person is clothed with the characteristics of the accused and his knowledge of the surrounding circumstances (Lavender) but does not extend to the accused s opinion No defence of HRMF (Nydam) Homicide by Omission S 18 of the Crimes Act makes homicide by an omission an offence. It is read down in law as the common law position is that although murder/manslaughter can be committed by omission, there must first be a duty to act. To make out this offence, the P must BRD make out the following elements (Woolmington v DPP [1935]): The accepted test is that stipulated in Taktak (approved in Taber). The following three requirements must be satisfied for an omission to constitute sufficient actus reus for manslaughter by criminal negligence: 1. There was a duty of care owed by the D to the deceased (Stone and Robinson). A duty of care is owed pursuant to the DoC test stipulated in Jones v USA: Where statute imposes a duty Where one stands in a certain status relationship to another (element of control: Burns) Where one assumed a contractual duty of care for another Where one voluntarily assumed the care of another, and so secluded the helpless person as to prevent others from rendering aid 2. The omission alleged was the proximate cause of the deceased's death.

3 3. The omission was conscious and voluntary Mens rea elements is that of manslaughter by criminal negligence (Taktak): 1. Whether the reasonable person would have appreciated a probability of death/gbh, and 2. Whether the conduct of the accused was wickedly negligent - fell well below that of the reasonable person to such a degree that it merited criminal punishment (Lavender) Reasonable person = test not entirely subjective as the person is clothed with the characteristics of the accused and his knowledge of the surrounding circumstances (Lavender) but does not extend to the accused s opinion No defence of HRMF (Nydam) Causation An unbroken chain of causation must be established that joins the accused s actus reus to the death of the deceased (Smith). The preferred test of establishing the chain of causation is that of Smith, affirmed in Royall, is the operating and substantial cause test. The question posited to the jury is whether the D s conduct was a substantial or operative cause to death. There is no need for a single cause of death. As long as the D s action was a part of that chain, (and the chain was not broken by an intervening event), he will be considered as causing the death. Means of escaping danger Reasonable actions performed in reaction to where the accused s conduct induces in the victim a wellfounded apprehension of physical harm such as to make it a natural consequence (or reasonable) that the victim would seek to escape and the victim is injured in the course of escaping, the injury is caused by the accused's conduct. The chain of causation is considered unbroken (Royall). Whether the victim s means avoidance of the perceived immediate peril is considered reasonable is a question for the jury. Royall further held that it is to be expected that person fearful for safety might perform something irrational due to circumstances. Medical Treatment To break the chain of causation, reckless (not negligence, abnormal, incompetent) medical treatment is required (Jordan) The substantial and operating cause test still operates to limit scenarios in which medical treatment has an effect on causation (Melcherek v Steel) To break the chain of causation, the second cause of medical treatment must be so overwhelming as to make the original wound merely a part of history (Smith). Such as palpably wrong medical treatment (Jordan). Refuse medical treatment The deceased s wish to refuse medical treatment does not break the chain of causation due to the rule that a person who used violence on another has to take their victim as they found him (Blaue). The refusal does not constitute an unreasonable reaction which would constitute an intervening act (Blaue). Acts of the deceased A foolish act by the deceased (e.g. drugs) breaks the chain of causation as it is their voluntary and informed decision (Burns). The chain of causation is broken if the deceased s act was vitiated by mistake or duress (Burns) Assault Common Assault [unlawful contact but not injurious] Statute is silent as to the elements of the offence of assault, only establishing the penalty in s 61 of the Crimes Act. The common law establishes the necessary elements that the P must prove BRD to make out the offence (Woolmington): 1. Unlawful forceful conduct 2. OR an act or words creating apprehension (Zanker) Cannot be an omission (Fagan) Unlawful force must be sufficiently imminent but word immediate could be stretched to cover events in the near future (Knight) The feared physical harm did not have to be immediate as long as there is a "present and continuing fear (Zanker)

4 Touching a person's clothes counts as touching the person (DPP v JW) Spitting counts as sufficient application of force for the purposes of assault (DPP v JWH) 3. Without consent of the victim (Bonoro) 1. Intention to effect an unlawful contact OR 2. To create an apprehension of imminent unlawful contact in the mind of the other person OR 3. Recklessness P must prove foresight of the probable of inflicting physical contact or the apprehension of imminent unlawful contact (MacPherson v Brown) Subjective test where the consequences are considered even if not desired (MacPherson) 'Defences' - application of force/words will not constitute assault if: 1. There is a lawful excuse. 2. There was consent on behalf of the victim However, consent is immaterial in unlawful situations or situations which the degree of harm is very severe: Brown. Assault occasioning ABH S 59 of the Crimes Act makes assault occasioning ABH an offence. The statute only states the penalty, thus the common law establishes the necessary elements that the P must prove BRD to make out the offence of assault and the specific intent of occasioning ABH (Woolmington): 1. Unlawful forceful conduct 2. Force occasions ABH Bodily harm is interpreted according to its ordinary meaning + includes any hurt or injury calculated to interfere with the health or comfort of the victim (Donovon) Injury/hurt need not be permanent but more than merely transient or trifling (Donovon) Bruises and scratches are examples of injuries capable amounting to ABH (McIntyre) but list is not exhaustive ABH could include psychiatric injury but does not include emotions such as fear or distress or panic (Chan-Fook) e.g. nervous shock (Lardner) Psychiatric injury = severe depressive illness and anxiety (Ireland and Barstow) 1. Intention to occasion ABH OR 2. Recklessly causing ABH P must prove foresight of the possibility of inflicting physical contact or the apprehension of imminent unlawful contact (MacPherson v Brown) Subjective test where the consequences are considered even if not desired (MacPherson) 'Defences' - application of force will not constitute assault if: 1. There is a lawful excuse. 2. There was consent on behalf of the victim However, consent is immaterial in unlawful situations or situations which the degree of harm is very severe: Brown. Wounding OR GBH with intent S 33 of the Crimes Act makes wounding/gbh with intent an offence. The statute and common law establishes the necessary elements that the P must prove BRD to make out the offence (Woolmington): 1. Wounds any person OR wounding is defined as the infliction of an injury which breaks the continuity of the skin (Shepard), breaking/cutting of the interior layer of the skin and the breaking of the outer layer is not sufficient (Howie & Johnson) seriousness of wounding considered in sentencing 2. Causes GBH to any person Defined in s 4(1): a. 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, and b. any permanent or serious disfiguring of the person, and

5 c. any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease). GBH doesn t require injuries to be permanent but does require injury is a really serious one (Haoui) Bodily disease offence doesn t require force (Aubrey) defence under s 79(3) if the court is satisfied that the D took reasonable precautions to prevent the transmission of the sexually transmitted infection Public Health Act 2010 s 52 makes it an offence for a person suffering from a scheduled medical condition who is in a public place and fails to take reasonable precautions against spreading the condition + s 79 makes it offence applying to sexual intercourse by person who know that they suffer from a sexually transmitted infection and has sexual intercourse with another unless they inform of risk of contracting an infection and person voluntarily agreed to accept risk 1. Intention to occasion GBH Reckless GBH or wounding S 35 of the Crimes Act makes reckless GBH/wounding an offence. The P must prove BRD the following elements (Woolmington): S 35(1) Reckless GBH in company 1. A person in the company of another person(s) 2. Unlawful forceful conduct 3. Conduct causes GBH Defined in s 4(1): d. 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, and e. any permanent or serious disfiguring of the person, and f. any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease). GBH doesn t require injuries to be permanent but does require injury is a really serious one (Haoui) 1. Reckless as to causing ABH Definition of recklessness Blackwell (2011) has more recently established a higher test for determining what constitutes recklessness than Coleman (2009) whereby foresight was the requirement accused must have realized that the harm may possibly have been inflicted upon victim from his actions Subjective test - where the consequences are considered even if not desired (MacPherson) S 35(2) - Reckless GBH 1. Unlawful forceful conduct 2. Conduct causes GBH Refer to above recklessness S 35(3) Reckless wounding in company 1. A person in the company of another person(s) 2. Unlawful forceful conduct 3. Conduct causes wounding wounding is defined as the infliction of an injury which breaks the continuity of the skin (Shepard), breaking/cutting of the interior layer of the skin and the breaking of the outer layer is not sufficient (Howie & Johnson) seriousness of wounding considered in sentencing

6 Refer to above recklessness S 35(4) - Reckless wounding 1. Unlawful forceful conduct 2. Conduct causes wounding wounding is defined as the infliction of an injury which breaks the continuity of the skin (Shepard), breaking/cutting of the interior layer of the skin and the breaking of the outer layer is not sufficient (Howie & Johnson) seriousness of wounding considered in sentencing Refer to above recklessness S 35(5) If the jury is satisfied that the accused lacked the necessary actus reus/mens rea but is satisfied that the the accused committed another offence within Division 6 of the Crimes Act, the jury may acquit the accused of the offence charged and find him/her guilty of another offence. Causing GBH [causes injury without further specific intent of GBH] S 54 of the Crimes Act makes assault occasioning GBH an offence. To make out this offence, the P must prove BRD the following elements (Woolmington): 1. Unlawful or negligent act/omission 2. Act/omission causes GBH Defined in s 4(1): a. 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, and b. any permanent or serious disfiguring of the person, and c. any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease). GBH doesn t require injuries to be permanent but does require injury is a really serious one (Haoui) 1. Intention to effect unlawful contact/omission causing GBH 2. Negligently effects unlawful contact/omission causing GBH Degree of negligence required is gross negligence akin to that require for manslaughter by criminal negligence (D [1984]) Conduct fell well below that of the reasonable person to such a degree that it merited criminal punishment (Lavender) Sexual Assault S 61J(1) of the Crimes Act makes sexual assault an offence. To make out this offence, the P must prove BRD the following elements (Woolmington): 1. Have sexual intercourse Definition of sexual intercourse contained in s 61H: a. sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by: (i) any part of the body of another person, or (ii) any object manipulated by another person, except where the penetration is carried out for proper medical purposes, or b. sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or c. cunnilingus, or d. the continuation of sexual intercourse as defined in paragraph (a), (b) or (c). 2. Without consent

7 Definition of consent contained in s 61HA(2): "consents" to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse. (Clark) S 61HA(4) Negation of consent A person does not consent to sexual intercourse: (a) if the person does not have the capacity to consent to the sexual intercourse, including because of age or cognitive incapacity, or (b) if the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep, or (c) if the person consents to the sexual intercourse because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or (d) if the person consents to the sexual intercourse because the person is unlawfully detained. (5) A person who consents to sexual intercourse with another person: (a) under a mistaken belief as to the identity of the other person, or (b) under a mistaken belief that the other person is married to the person, or (c) under a mistaken belief that the sexual intercourse is for health or hygienic purposes (or under any other mistaken belief about the nature of the act induced by fraudulent means), does not consent to the sexual intercourse. For the purposes of subsection (3), the other person knows that the person does not consent to sexual intercourse if the other person knows the person consents to sexual intercourse under such a mistaken belief. Types of mistake (GD Woods): 1) Mistake as to the nature of the sexual act: if person doesn t understand nature, cannot consent to it (Flattery) + s 61H5(c) 2) Mistake as to identity of person 3) Mistake as to qualification or aspect of the character of other party (Papadimitropoulos) (6) The grounds on which it may be established that a person does not consent to sexual intercourse include: (a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or (b) if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or (Gillard) (c) if the person has sexual intercourse because of the abuse of a position of authority or trust. (7) A person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse. (8) This section does not limit the grounds on which it may be established that a person does not consent to sexual intercourse. non-exhaustive 1. Intent to engage in conduct 2. Have knowledge of the circumstances of non-consent Concept knowledge expanded on in s 61HA(3) to include recklessness: Person does not consent to the sexual intercourse if: (a) the person knows that the other person does not consent to the sexual intercourse, or (b) the person is reckless as to whether the other person consents to the sexual intercourse, or (c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse. For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case: (d) including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but (e) not including any self-induced intoxication of the person. Inadvertant recklessness failure to advert at all to the possibility that the complainant is not consenting, means that the accused is reckless as to whether the other person consents (Kitchener) Does not even consider whether other person is going to consent (Banditt) Advertant recklessness accused adverts to the possibility of consent but ignores it + where accused is so bent on gratification and indifferent to the rights of the victim as to completely ignore consent (Tolmie)

8 Subjective test HRMF could be raised (s 61HA(3)(c)) Aggravated sexual assault S 61J of the Crimes Act makes aggravated sexual assault an offence. To make out this offence, the P must prove BRD the following elements (Woolmington): 1. Have sexual intercourse Definition of sexual intercourse contained in s 61H: a. sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by: (i) any part of the body of another person, or (ii) any object manipulated by another person, except where the penetration is carried out for proper medical purposes, or b. sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or c. cunnilingus, or d. the continuation of sexual intercourse as defined in paragraph (a), (b) or (c). 2. Without consent (refer to above) 3. Circumstance of aggravation present: (a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or (c) the alleged offender is in the company of another person or persons, or (d) the alleged victim is under the age of 16 years, or (e) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (f) the alleged victim has a serious physical disability, or (g) the alleged victim has a cognitive impairment, or (h) the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or (i) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence. 1. Intent to engage in conduct 2. Have knowledge of the circumstances of non-consent (refer to above for expansion) 3. Additional specific intent of consequence (use of knife etc) Aggravated sexual assault in company S 61JA of the Crimes Act makes aggravated sexual assault in company an offence. To make out this offence, the P must prove BRD the following elements (Woolmington): 1. Have sexual intercourse (refer to above) 2. Without consent (refer to above) 3. In the company of another person(s) Mere presence of a person is insufficient, must be some encouragement or assistance (Crozier) Proximity/remoteness acts committed by D 50 meters away from group still capable of being committed in company (Button; Griffen) Test to determine what constitutes in company : the coercive effect of group, must be such proximity as would enable the inference that the coercive effect of the group operated to embolden or reassure offender or to intimidate victim into submission (Button; Griffen) 4. Who:

9 (i) at the time of, or immediately before or after, the commission of the offence, intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (ii) at the time of, or immediately before or after, the commission of the offence, threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or Weapon/instrument no need for P to prove accused brought it to scene intending to use it in an offensive manner, sufficient to prove accused was using object in an offensive manner at time of commission of offence (RJS) (iii) deprives the alleged victim of his or her liberty for a period before or after the commission of the offence 1. Intent to engage in conduct 2. Have knowledge of the circumstances of non-consent Indecent Assault s 61L of the Crimes Act makes indecent assault an offence. To make out this offence, the P must prove BRD the following elements (Woolmington): 1. Unlawful forceful conduct 2. OR an act or words creating apprehension (Zanker; Fitzgerald v Kennard) Cannot be an omission (Fagan) Unlawful force must be sufficiently imminent but word immediate could be stretched to cover events in the near future (Knight) The feared physical harm did not have to be immediate as long as there is a "present and continuing fear (Zanker) Assault must have a sexual connotation part of the body touched or doing touching relevant (Harkin) Conduct must be directed/towards the victim such that they are aware or apprehends the indecent assault (Johnson) BUT towards can extend to where the act incited is not done in the physical/audible presence of accused or in physical presence of each other (DPP v Eades) 3. Committed or in circumstances of indecency Indecency simply means contrary to the ordinary standards of morality of respectable people within community (Harkin) No requirement to prove separate act of indecency from unlawful conduct, indecent act can also constitute act of assault (Fitzgerald v Kennard) 4. Without consent Consent of a child under 16 is no defence to charge s 77(1) 1. Intend to effect conduct/act 2. Knowledge of non-consent OR reckless as to whether complainant consented (Bonora) failure to give any consideration as to whether they were consenting (Fitzgerald v Kennard) Aggravated indecent assault s 61M of the Crimes Act makes aggravated indecent assault an offence. To make out this offence, the P must prove BRD the following elements (Woolmington): 1. Unlawful forceful conduct 2. OR an act or words creating apprehension (Zanker; Fitzgerald v Kennard) Cannot be an omission (Fagan) Unlawful force must be sufficiently imminent but word immediate could be stretched to cover events in the near future (Knight) The feared physical harm did not have to be immediate as long as there is a "present and continuing fear (Zanker)

10 Assault must have a sexual connotation part of the body touched or doing touching relevant (Harkin) Conduct must be directed/towards the victim such that they are aware or apprehends the indecent assault (Johnson) BUT towards can extend to where the act incited is not done in the physical/audible presence of accused or in physical presence of each other (DPP v Eades) 3. Committed in the circumstances of indecency refer to above 4. Committed in the circumstances of aggravation OR in the presence of other persons S 61M(3) Circumstances of aggravation: (a) the alleged offender is in the company of another person or persons, or (c) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (d) the alleged victim has a serious physical disability, or (e) the alleged victim has a cognitive impairment. 5. Without consent 1. Intend to effect conduct/act 2. Knowledge of non-consent OR reckless as to whether complainant consented (Bonora) failure to give any consideration as to whether they were consenting (Fitzgerald v Kennard) Defence HMRF defence as to question of age available Offence divided according to the age of complainant s 61M(1)liable for imprisonment for 7 years + s 61M(2) under 16 years imprisonment for 10 years Act of indecency S 61N of the Crimes Act makes an act of indecency an offence. To make out this offence, the P must prove BRD the following elements (Woolmington): 1. Intentional and voluntary indecent act 2. Act with or towards a person under (s 61N(1)/over (s 61N(2) age of 16 OR 3. Incites a person under/over 16 to an act of indecency with or towards a person (Fairclough v Whipp) with another person requires 2 participants in indecent act while towards another is committed by a person who act indecently towards a non-participant (Chonka) 1. Intend to effect conduct/act 2. Knowledge of non-consent OR reckless as to whether complainant consented (Bonora) failure to give any consideration as to whether they were consenting (Fitzgerald v Kennard) Aggravated act of indecency S 61O of the Crimes Act makes an act of indecency an offence. To make out this offence, the P must BRD the following elements (Woolmington): 1. Intentional and voluntary indecent act 2. Act with or towards a person under (s 61O(1)/over (s 61O(2) age of 16 OR 3. Incites a person under/over 16 to an act of indecency with or towards a person (Fairclough v Whipp) with another person requires 2 participants in indecent act while towards another is committed by a person who act indecently towards a non-participant (Chonka) 4. Knows act of indecency is being filmed for the purpose of the production of child abuse material (s 61N(2A)(b) (no circumstance of aggravation) (turn to section for definitions) 5. Committed in the circumstances of aggravation S 61O(3) Circumstances of aggravation: (a) the alleged offender is in the company of another person or persons, or (c) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (d) the alleged victim has a serious physical disability, or (e) the alleged victim has a cognitive impairment. 1. Intend to effect conduct/act

11 2. Knowledge of non-consent OR reckless as to whether complainant consented (Bonora) failure to give any consideration as to whether they were consenting (Fitzgerald v Kennard) Defence HMRF defence as to question of age available Offence is divided according to age of complainant under 16 liable for imprisonment for 5 years, of/above 16 for 3 years, under 10 liable for 7 years. Dishonest Acquisition Larceny The offence of larceny is a common law offence as s 117 of the Crimes Act merely stipulates the maximum penalty of 5 years imprisonment. To make out this offence, the P must prove BRD the following elements (Woolmington): (as established in Ilich) 1. The property is capable of being stolen Restricted to chattels Property must have a physical form that can be taken and carried away, even if physical nature of property is slight (e.g. gas from pipe) (White) Choses in action (intangible forms of property e.g. removing money from bank) cannot be stolen (Croton) 2. The property is in the possession of a person other than the D Possession comprises a degree of physical control of property + intention to maintain that physical control Mere control of property without intention to control or mere intention to control without actual/prior control of property not forms of property right Possible to steal property from person who it unlawfully in their possession (Anic, Stylianou and Suleyman) Constructive possession property found on person s enclosed land considered theirs even if had no knowledge of it (Williams v Phillips) Less than actual possession sufficient e.g. possession of an employee/servant (Hibbert v McKiernan) 3. The property is taken and carried away by the D (asportation) Very minimal actions sufficient to prove any movement of goods removal of property from spot where originally placed (Wallis v Lane) Mere intention without asportation insufficient (retaining money obtained by mistake) (Potisk) 4. Without the consent of the possessor without consent does not mean contrary to or against their will, but without consent (Middleton) Lack of positive intent (whether person had capacity to provide consent) (Kennison v Daire) Exceptions: Implied license if possessor only permits temporary custody of property through a license, but property deal with in breach of license, an asportation without consent occurred License revoked/breached where there is intention to damage goods/not pay for them (Kolosque v Miyaski) When lost property found, prior possessor deemed to consent to finder taking possession in order to return them (Thurborn) 1. Taken with an intention to permanently deprive Permanent deprivation and to take over complete control of property, not for a limited time (Holloway) If no intention, alternate charge of trespass available (Phillips and Strong) No defence of intention to return property (Foster) or conditional return (Sharp v McCormick) Changing the nature of property constitutes intention to effect permanent deprivation (Weatherstone) 2. Taken without any claim of right to the property Evidentiary burden to raise claim placed on the defence (Fuge)

12 Must be a legal entitlement, not a moral one Subjective test (Langham) Definition of a claim of right: (Fuge) 1) A belief as to the right to property/money in the hands of another 2) A genuinely held belief 3) Must be a legal entitlement, not just a moral entitlement 4) Claim must relate to the right to possess the property, not solely to the right to use certain means to recover it 5) Claim must extent to all of the property taken and not just to some of it 6) Case for persons charged as accessories, must be a genuine belief claim by the principle offender in order to exculpate accessory 7) Crown had burden of negativiting claim of right when it s sufficiently raised on evidence o But claim of right doesn t extent to the manner in which the disturbance of the existing possessory situation is affected (Mazzzara) 3. Taken fraudulently (dishonestly) Courts held that fraudulently and dishonesty are interchangeable terms Dishonesty has an everyday meaning and a moral basis (Feely) Objective test current standards of ordinary decent people and subjective test known by the accused to be dishonest according to standards of ordinary people (Gosh) Basic intent offence self-intoxication not taken into account (s 428D(a)) but if self-induced MAY be taken into account (s 428D(b) Robbery S 94 of the Crimes Act makes robbery an offence. To make out this offence, the P must prove BRD the following elements (Woolmington): 1. Must be from an actual person Extended to situations where victim has sufficient care or possession of goods to allow Court to say that constructively the goods were taken in his presence (Smith v Desmond) Doesn t have to take property literally from person s hand constructive possession sufficient (Delk) Pick-pocketing and bag snatching are stealing from the person (s 94 Delk) 2. Accused uses or threatens the use of force to obtain the foods before or at the time of taking Force must of such a nature as to show that it was intended to overpower the party robbed, and prevent his resisting, not merely to get possession of property (Gnosil) extended to situations where victim has sufficient care or possession of goods to allow Court to say that constructively the goods were taken in his presence (Smith v Desmond) 3. Violence used/threatened must be directed at the person, not merely the property If victim accidentally hurt when D taking property, not robbery (Gnosil) 1. Same as larceny 2. Intention to use violence Defence Claim of Right Basic intent offence self-intoxication not taken into account (s 428D(a)) but if not self-induced MAY be taken into account (s 428D(b) Breaking and entering offences included in notes Receiving stolen property S of the Crimes Act creates offences of receiving, disposing of or attempting to dispose of stolen goods, knowing them to be stolen. To make out this offence, the P must prove BRD the following elements (Woolmington): 1. Property is stolen 2. Received/disposing of the property

13 Accused took possession, not merely custody, of the goods May be held jointly with the thief or constructively through employee/accomplice Persons unknown possible to charge someone with larceny/receiving stolen goods from persons unknown but must be evidence that goods belong to someone (Isaacs) 1. Intentionally and voluntarily received/disposed of stolen goods 2. With knowledge that the property is stolen Sufficient that accused had the belief that property was stolen P actually has to believe property was stolen mere suspicion or deliberate closing of the eyes insufficient (Raad) HOWEVER court emphasised in Schipanski that references to willful blindness could lead to error Belief that property is stolen must exist at the time of receipt (Balough) Belief arose when there was no other reasonable conclusion or person had been told by someone with first hand knowledge (Hall) Common law doctrine of recent possession covers situations of less than actual knowledge, as expressed in Bruce where an accused person is in the possession of property which is recently stolen, the jury is entitled to infer as a matter of fact, in the absence of any reasonable explanation, guilty knowledge on part of accused o How long a period may be constituted by recently is an issue for jury/magistrate to decide (Bellamy) decision influenced by nature and value of property and circumstances in which it was obtained (Sinanovic) o Doctrine arises from unexplained fact of possession, not from any admission of guilt arising from failure to offer an explanation (Bruce) No receiving occurred when D had knowledge property stolen and intended to hand to police but later decided to keep goods (Matthews) If P unable to prove mens rea for receiving, s 527C of Crimes Act creates an alternative offence of persons unlawfully in possession of property which requires D to prove he/she was not negligent. In Grant, HC commented that a strict construction should be given to words of legislation due to possible conviction based on mere suspicion proceed with caution 1. Has anything in their custody/custody of another person/has anything in or on premises OR Had to be proved that D was in possession of goods at the time of apprehension, however where goods been lost before apprehension possible argument D remains in custody (English) 2. Gives custody of anything to a person who is not lawfully entitled to possession of thing Custody defined as immediate de facto control or charge of article (Ex p McPherson) 3. Thing may be reasonably suspected of being stolen or otherwise unlawfully obtained P must prove BRD that goods may be suspected (Anderson) Reasonable suspicion court doesn t need to determine most likely explanation, but merely if one of the reasonable explanations amount to suspicion (Chan) To negate P s case, D may show that suspicion was not well grounded or goods were lawfully obtained Fact that there is more than one conclusion reasonably open on the facts doesn t mean P failed to prove its case (Madden) It is the duty of the magistrate to decide whether he was satisfied at the time of the decision rather than at the time of arrest whether it was proper to entertain a reasonable suspicion that goods were stolen/unlawfully obtained (Haken v Johnson) No to be proved strict liability Defence - D may show that original suspicion was not well-grounded or that the thing in question was lawfully in his possession defence concerned with what the accused s belief was, not with that was the suspicion of arresting police (Anderson) objective test whether there are reasonable grounds for suspicion based on facts

14 Fraud S 192E of the Crimes Act make fraud an offence. To make out this offence, the P must prove BRD the following elements (Woolmington): An act of deception/dishonesty, with the consequence requirements of: Act by words or conduct (false statements, conduct and silence) (Bryan; Patmony; Silverman) Statements: may be lies or partially true, omission of material facts creating a false impression may amount to deception (M) Puffery (exaggerated/enthusiastic description/claim) doesn t amount to deception (Bryan) BUT telling someone that something is completely different is a false pretense (Patmony) Conduct/silence (Barnard): a person who makes statement at time is true, no obligation to alert victims to change in circumstance Dishonesty element only applies to obtaining or causing, and not use of deception (Salvo; Love) Dishonesty defined in s 4 dishonest according to the standard of ordinary people and known by the D to be dishonest according to these (Feely;Gosh) Causation Did the D by deception, dishonestly obtain/cause the following consequences: (Ho & Szeto) must be the effective ingredient for consequences 1. Obtaining of property (s 192C) Obtaining requires only that accused/3 rd party gain control or possession (192C(1)) Definition of property in s 4 tangible and intangible Covers situations where victim tricked into temporarily handing over possession/control but doesn t hand over property permanently (192C(1) 2. Obtaining of financial advantage; OR (s19d(1) Definition of financial advantage s 192D: a) obtain a financial advantage for oneself or for another person, and (b) induce a third person to do something that results in oneself or another person obtaining a financial advantage, and (c) keep a financial advantage that one has, Financial advantage can be permanent or temporary (s 192D; Murphy) Deliberately undefined to allow the broadest scope available (Vasic) but term financial considered to have some limiting effect (Coelho v Durbin) 1. Causing a financial disadvantage (s192d(2) Wider notion, easier to prosecute as don t have to prove D gained something 1. Intended to cause the deception; (Greene) OR 2. Was reckless as to the deception; AND test is an awareness of possibility that behavior is deceptive (Stokes and Difford; Blackwell) 3. Obtained/caused the consequent dishonesty Obtained advantage s 192B(2): intention to permanently deprive Caused disadvantage Mens rea presumption of intention/recklessness where silent is statute (He Kaw Teh) need not be an intention to cause permanent change (Murphy) Indifference of victim to deception no effective deception if the activity does not have its intended effect on the mind of the person who it is addressed, because that person realizes that a deception is being practicsed, the offence is not committed even if property handed over (Clemesha) Defence claim of right if it can be shown that there was no dishonest intent in obtaining/causing, any dishonest use of deception to achieve result doesn t create liability under s 192E since D believed had a claim of right, dishonesty was to cause the deception and not to obtaining/causing a consequence (Love)

15 Complicity Joint Criminal Enterprise The law of complicity can be invoked to extend criminal liability to persons other than the primary actor in the situation of JCE. JCE occurs where 2 or more persons agree to commit an offence, but the actual acts which constitute the actus reus were only carried out by one or some of the people. All persons are held liable for the crime. McEwan, Robb and Dambitis established the elements the P must prove BRD (Woolmington): 1. Accused reached an agreement/understanding with one or more persons to pursue a JCE that remained in existence at time offence committed Definition for agreement: an unspoken understanding or arrangement amount to an agreement (Tangye) Agreement doesn t have to be reduced to writing/formality, JE simple means that people are acting together of a common mind and with a common aim (Kanaan) Too spontaneous events that unfolded so quickly insufficient to constitute an agreement (Wellgreen) 2. Accused participated in that joint enterprise some way Mere presence insufficient Presence must amount to encouragement or assistance (Chishimba, Makasa, Muleng) Proof that accused was a party to the agreement did not depend upon proof that he had engaged in any particular conduct at scene (Huynh, Duong and Sem) If co-accused not present at time of party commits crime, P need to provide evidence of events, other than those pertaining to the offence itself, for proof of existence and scope of agreement (Sever) 3. In accordance with agreement, one or more parties performed all of acts necessary to commit offence 1. At time of entering into agreement, accused had state of mind required for commission of offence Only actions of group attributed to all members who are party to the agreement, not the state of mind of persons who carries out the actions (McEwan, Robb and Dambiti) Defence D was an innocent agent or a non-responsible party e.g. child, mentally ill person or persons under duress (Bourne) + partial/complete defences can still apply depending on specific/basic intent offence Withdrawal from a JCE To withdraw effectively from JCE (Tietie): 1. Withdrawal must be complete 2. Withdrawal must be timely 3. Must communicate withdrawal to others 4. Must do what reasonably he can to try to dissuade others from committing the crime If crime already begun, must countermand their actions or take action to undo the effect of his previous encouragement/participation if not withdrawal is not timely After communicating their withdrawal, accused honestly believed that others wouldn t go ahead and commit crime, no preventive steps required (Truong) What a person must do by way of withdrawal might depend on what role it was anticipated they would play in crime more D has done by way of planning, more likely required by way of withdrawal (Sully; Truong) Extended joint criminal enterprise There are some circumstances it will be appropriate for the prosecution to simultaneously run arguments based on joint criminal enterprise and extended joint criminal enterprise to secure an adequate conviction (Jacobs and Mehajer) The law of complicity can be invoked to extend criminal liability to persons other than the primary actor in the situation of extended JCE. Extended JCE occurs where during the course of a JCE, one or more members commit an additional crime that was not in the original agreement, therefore, other members may be held liable for all foreseeable additional offences.

16 1. Recklessness as to foreseeability of crime accused must have contemplated the possibility of a different crime occurring (subjective test) (McAuliffe and McAuliffe) Accused must have foresight of actus reus and mens rea of additional crime If did not foresee elements, D will be convicted of a lesser crime (McAuliffe and McAuliffe) secondary offender does not have to be convictd of the same crime as primary offender (Nguyen) Accused need not have foreseen the method of the crime, as long as he saw the possibility of harm of that magnitude (Keenan) Policy issues Kirby J points out the inconsistency in the law when the test for the secondary offender (foresight of possibility) is lesser than the test for the primary offender (elements of the crime). In Clayton, Kirby J noted the conceptual and practical difficulties with the overlap and inconsistency between the doctrines. The unreasonable expectation placed upon Australian trial judges... to explain the idiosyncrasies of differential notions secondary liability to a jury is something that should concern this court... The law should not be as unjust, obscure, disparate and asymmetrical as it is. Accessorial liability The law of complicity can be invoked to extend criminal liability to persons who is not involved in the JCE through the doctrine of accessorial liability. To be held liable for a crime under accessorial liability, the P must prove BRD the following elements (Woolmington) Principal in the second degree (Osland) 1. The accused was present in the commission of the crime 2. The accused aided, abetted, counselled or procured the crime (Phan; Clarkson) aiding or abetting = assistance/encouragement to main offender at scene of crime Mere acquiescence/assent to crime insufficient, must be proof that principle in 2 nd degree was linked in purpose with primary offender committing crime (Phan) In limited situations, silent amounts to acquiescence and consent if it is linked in purpose with primary offender and amounts to a degree of encouragement (Russell) Acts e.g. expressions/gestures intended to signify approval (Beck) Conduct must merely be communicated/offered to primary perpetrator (Lam) Offender does not have to be influenced by assistance or aware it it (Lam) P does not have to prove specific acts of assistance (Annakin) Distinction between a neutral and guilty presence at scene is for jury to assess (Beck) Accessory before the fact 1. Accused took part in preliminary stages of crime 2. Aided, abetted, counselled or procured but not present when crime committed Assistance must have ben in presence of offender, but need not have influenced him (Lam) counselling or procuring = participating in preparation or planning stages but not execution of crime 1. Intention to aid, abet, counsel, or procure the crime (Giorgianni) Not necessary for P to prove D intended to assist crime in precisely way it was carried out by principal, of the type sufficient (Bainbridge) 2. Knowledge of essential facts which constitute the offence (Stokes and Difford) Desire for crime to actually be committed is irrelevant (National Coal Board v Gamble) For murder - enough that he knew/believed that the principal must commit assault with an intention of causing victim serious injury (Liakiardopoulos) Withdrawal same as for JCE Assistance after the commission of a crime It is an offence to render assistance, after the event, to a person who has a committed a crime. 1. Acts of comfort or assistance to offender (Barlow)