Table of Contents. Topic 1: Principals of Criminal Responsibility Evidence that a child knew it was wrong Direct Liability...

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1 Table f Cntents Tpic 1: Principals f Criminal Respnsibility... 1 Children cmmitting criminal ffences... 1 Dli incapax... 1 Evidence that a child knew it was wrng... 1 Crprate Criminal Liability... 2 Vicarius Liability... 2 Direct Liability... 3 Crprate Culture... 4 Elements f a Crime... 5 The physical elements f a crime... 5 A specified frm f cnduct... 5 Vluntariness... 6 Causatin... 6 The reasnable freseeability test... 7 The substantial cause test... 7 The natural cnsequence test... 7 Nvus actus interveniens... 8 The acts f the victim (that may break chain f causatin)... 8 The acts f a third party (that may break chain f causatin)... 9 Medical Treatment... 9 Withdrawing life supprt The fault elements f a crime Subjective v Objective fault Intentin Mtive & Intentin Direct & Oblique Intentin Transferred Inventin Knwledge Knwledge & willful blindness Recklessness Recklessness & Indifference... 15

2 Recklessness & willful blindness Negligence Strict liability & Abslutely liability ffences Mistake f facts & strict liability ffences Mistake rather than ignrance Mistake f fact Hnest & reasnable mistake Mistake must render the accused's act inncent Criminal negligence & due diligence Mistake f law Knwledge f unlawfulness as a fault element The defence f claim f right The nn-discvery f laws The statutry defence f lawful excuse Cncurrence f physical & fault elements Fault element impsed n a 'series f acts' Fault element impsed upn a 'cntinuing act' Tpic 2 Unlawful Killing Table 1: Physical & Fault elements f murder Causing the death f a human being Physical element f murder & manslaughter A human being Is a fetus a human being? The end f life Euthanasia & unlawful killing Vluntary Euthanasia the NT experiment Arguments in favur f vluntary euthanasia Beneficence Arguments ppsing vluntary euthanasia "slippery slpe" argument Integrity f medical prfessin & palliative care Nn-vluntary euthanasia... 30

3 The fault element f murder Intentin t kill Transferred intentin Intentin t inflict serius bdily harm Recklessness Prbability Recklessness t inflict GBH Cnstructive Murder Table 2: Cmmissin f certain ffences (different wrding) The specified ffences in questin Manslaughter Fault element f manslaughter Unlawful & dangerus act manslaughter Unlawful assault causing death Unlawful act Pemble v the Queen (1971) Dangerus act Negligent manslaughter Duty f care Standard f care Breach f duty f care Offences invlving death Culpable driving Table 4: Culpable driving causing death Omissins & unlawful killing Offences related t suicide Assisting r encuraging suicide Suicide pact Abrtin, child destructin & cncealment f birth Abrtin Unlawful abrtins Child destructin... 49

4 Cncealment f birth Cnclusin Tpic 3 Offences against the persn Assault Cmmn assault The physical elements The threat f frce Cnduct cnstituting a threat f frce The victim's mental state The ntin f immediacy Cnditinal threats The use f frce The fault elements Aggravated assaults Assaults accmpanied by an intentin f a particular kind Assaults cmmitted n particular classes f peple Assaults resulting in harm f a particular kind Actual bdily harm GBH AKA "serius harm" AKA "serius injury" Causing r inflicting harm Table 1: Terms used in relatin t actual r GBH Fault Element Female genital mutilatin Lawful assaults Ordinary scial activity Arrest Self-defence Prvcatin Lawful crrectin f children Cnsent Persnal adrnment Surgery... 62

5 Rugh hrseplay & vilent sprts Cnsent & sadmaschism Other types f nn-fatal ffences Threats Stalking Offences endangering life r persnal safety False imprisnment, kidnapping & abductin Tpic 4 Sexual ffences Sex, vilence & the criminal law Tnen v Australia (1994) R v Brwn Sexual misadventure Feminist bjectin t 'right t privacy' as being legitimatin f sexual vilence Physical elements f rape/sexual assault Table 1: Physical & fault elements f rape & sexual assault Rape within marriage Defining cnsent Negating cnsent Negating cnsent by vilence, threats r fear Negating cnsent by fraud r mistake Negating cnsent by intxicatin Fault elements f rape/sexual assault Belief in cnsent the subjective v bjective apprach NSW: s61ha Knwledge abut cnsent Restricting the mistaken belief in cnsent defence Multiple meanings f recklessness in rape & sexual assault Advertent recklessness Culpable recklessness Aggravated sexual assault & rape NSW: s61i Sexual assault NSW: s61j Aggravated sexual assault "in cmpany"... 77

6 Rape law refrm: Fcusing n evidence in rape/sexual assault trials Tpic 5 Prperty Offences The develpment Table 1: Basic larceny & theft ffences The scheme f the law in NSW The cmmn law f larceny The definitin f larceny The physical & fault elements Theft ffences Dishnesty The rdinary meaning apprach Feely/Ghsh apprach MCCOC thughts & recmmendatins Twards unifrm standards f dishnesty in prperty ffences Peters v R (1998) Apprpriatin Theft by deceptin Prperty Identity theft Infrmatin as "prperty" Belnging t anther Prperty received n trust fr anther Prperty received by mistake Intentin t permanently deprive Intentin t dispse f prperty regardless f the rights f anther Piracy & theft f cpyright Deemed intentin: pawning, pledging, brrwing anther's prperty A cnditinal intentin t deprive Related ffences: Rbbery, burglary & receiving Rbbery Burglary & related ffences Receiving & handling stlen prperty... 94

7 Fraud & deceptin ffences Obtaining prperty, services & financial advantage Deceptin by cnduct R v Lambie (1982) Tpic 6 Recent (serius) Federal Offences The principal f territriality Tests fr criminal jurisdictin Jurisdictin where crimes are cmmitted utside Australia Internatinal Criminal Curt crimes Crimes against humanity Trture Murder Enslavement Rape Gencide Terrrism & Related Crimes Defining "terrrism" Table 1: Terrrism ffences under the Criminal Cde (Cth) Terrrist rganisatin ffences Table 2: Criminal Cde (Cth) Terrrist rganisatins Seditin Peple smuggling & trafficking in persns Divisin 73 peple smuggling & related ffences Migratin Act ffences relating t bringing in nn-citizens Trafficking in persns Prblems btaining a cnvictin Slavery & sexual servitude R v Tang (2008) Cybercrime Spam Online grming Jurisdictin in cyberspace & ther issues (categry A)

8 Tpic 7 Mental State Defences Mental impairment Table 1: Elements f the defence f mental impairment Intellectual disability & dementia Persnality disrders Knwledge & understanding Nature & quality f cnduct Capacity t cntrl cnduct Criticisms aimed at excusing persns frm crim resp n basis f lss f cntrl Burden & Mde f prf Dispsitin Special rders fr detentin Autmatism R v Falcner (1990) Cnditins giving rise t autmatism Cnsciusness & autmatism Dissciative states Autmatism & the defence f mental impairment Sane & Insane autmatism The recurrence r cntinuing danger test The internal/external test The sund/unsund mind test Presumptin f mental capacity Burden f prf Intxicatin Intxicatin & vluntariness Intxicatin & fault elements Table 2: Divisin btw crimes f basic & specific intent (where intx is/nt relevant) Intxicatin & negligence Intxicatin & mental impairment Intxicatin & ther defences Unintentinal intxicatin Burden f prf

9 Tpic 8 Partial Defences Prvcatin Prvcative cnduct Prvcative cnduct & lawfulness Prvcatin & the presence f the accused The accused's lss f self-cntrl The rdinary persn test The gravity f prvcatin Burden f prf Prvcatin & battered wmen Cmparing cmmn law & statutry NSW definitins Diminished respnsibility Abnrmality f the mind Causes f abnrmality f the mind Table 1: prescribed factrs Burden f prf Cmparisn btw mental impairment, autmatism, intxicatin & diminished resp Table: Cmparisn Infanticide Physical elements Fault elements The ablitin f partial defences The ablitin f prvcatin The ablitin f diminished respnsibility The ablitin f infanticide Cnclusin Tpic 9 Self-help Defences Self-defence Table 1: Elements f Self-defence Self-defence & the defence f thers Self-defence & the prtectin f prperty Excessive self-defence

10 Nature f the attack Pre-emptive strikes Unlawfulness Prvked attacks The accused's belief Necessary frce Excessive self-defence Burden f prf Battered wmen & self-defence Duress Limitatins t the defence Elements f duress Objective element Cntinuing & imminent threats Reasnable apprehensin the threat wuld be carried ut Prir fault & duress Preventin f the executin f threat Burden f prf Marital cercin Scpe f the defence Meaning f "cercin" Burden f prf The defence f necessity Scpe f defence Elements f the defence The nature f the emergency The accused's belief The bjective standard Cmparisn btw self-defence, duress & necessity Table: Cmparisn Cnclusin

11 Tpic 10 Cmplicity Accessrial liability Table 1: Terminlgy acrss jurisdictins Aids, abets, cunsels r prcures Physical element Criticisms Accessrial liability by inactivity Mere presence An missin t act Criticisms Withdrawal by accessry Criticisms Fault element Jint principal ffenders Inncent agency Acting in cncert "Primary" v "derivative" v "acting in cncert" Extending accessrial liability Extended cmmn purpse Traditinal dctrine f cmmn purpse The dctrine f extended cmmn purpse Criticisms Cntinuing cmmn purpse? Accessries after the fact Physical element Fault element Tpic 11 Inchate ffences Attempt Table: Attempts acrss jurisdictins Physical element The "last act" test The "unequivcally" test

12 The "substantial step" test Desistance Fault element Attempted rape Cnspiracy Ratinales fr criminalizing cnspiracy Physical elements Agreement Withdrawal Cmmn design Parties t the cnspiracy Undercver agent Fault element Incitement Physical element Fault element Attempting the impssible, r mistake and attempts Inchate ffences Attempts R v Mai (1992) The future f inchate ffences

13 Tpic 1: Principles f Criminal Respnsibility All persns are ratinal human beings with knwledge f the difference between right & wrng... Children cmmitting criminal ffences - SG7 & TXT171 & Activity 1.1 At cmmn law, there is an irrebuttable assumptin that a child aged 7yrs r under cannt be guilty f a crime Legislatin in each S&T have raised the minimum age f criminal respnsibility t 10yrs which mirrrs the psitin taken in s7.1 f the Criminal Cde (Cth) Under bth cmmn law & statute, nce a child reaches 14yrs they are regarded as an adult in terms f criminal respnsibility (hwever there may be sme leeway as t the standard f bhv accepted) A prblem arises as t hw t treat thse children f and ver the minimum age f 10 but belw the age f 14 - see TXT173 dli incapax dli incapax is a latin term fr 'incapable f wrngding' it is a cmmn law presumptin that nce a child reaches the age f 7 but is under the age f 14 they d nt knw the difference between right & wrng and are therefre incapable f cmmitting a crime because f a lack f mens rea the ratinale fr this presumptin is that it prtects children frm the full rigur f criminal law enfrcement the presumptin is capable f being rebutted - the prsecutin bears the legal burden f rebutting the presumptin they must prve the child cmmitted the criminal act with the requisite fault element and they had sufficient understanding t knw that what they were ding was wrng Prsecutin must prve the child knew the ffence was wrng (rather than simply naughty r mischievus) there is sme degree f uncertainty as t what will amunt t sufficient evidence t rebut the presumptin & allw a cnvictin - the evidence f the ffence itself is nt enugh n its wn t shw a child knew the act was wrng (C (a minr) v DPP which was held t be the law in Australia as well in R v CRH (1996 unreprted) the surrunding circumstances f the cmmissin f the act may g t prve the relevant capacity t knw the act was wrng: R v F; Ex parte AG (1999) Prf that the child knew the act was mrally wrng may nt be sufficient t establish the requisite understanding: JM (a minr) v Runeckles (1984) Hwever, prf that they knew the act wuld result in criminal punishment may be enugh: R (a child) v Whitty (1993) Evidence that a child knew the act was wrng may include:- evidence f the child's upbringing: X v X (1958) admissins t the plice that the child knew that the cnduct was wrng: Ex parte N (1959) cnduct after the criminal act, including attempts at cncealment (JM (a minr) v Runeckles (1984)) r running away when disturbed (A v DPP (1997)) cnduct & demeanur in curt: JM (a minr) v Runeckles mental capacity: JBH and JH (minrs) v O'Cnnell (1981) 1

14 any relevant prir cnvictins: R v A (1979) Crprate Criminal Liability - SG7 & TXT176 & Activity 1.2 A crpratin is cnsidered a legal persn (s22 Acts Interpretatin Act (Cth); ss 8(d), 21(1) Interpretatin Act 1987 (NSW); ss32d, 36 Acts Interpretatin Act 1954 (QLD)) and may therefre be criminally liable t the same extent as a natural persn The main restrictin (at cmmn law) is that a crpratin cannt be tried fr an ffence which can nly be punished by imprisnment (R v ICR Haulage Ltd (1944)) hwever legislatin in ACT& NSW cnverts punishment by terms f imprisnment int fines (s16 Crimes (Sentencing Prcedure) Act 1999 (NSW)) At cmmn law, a crpratin cannt be held criminally respnsible fr certain crimes which nly an individual can cmmit (such as perjury r bigamy) Hwever it may be held criminally liable fr ffences f cmplicity (Lewis v Crafter (1942)), cnspiracy (Canadian Dredge & Dck C Ltd v The Queen (1985), attempt (Trade Practices Cmmissin v Tubemakers f Australia Ltd (1983)) and incitement (Invicta Plastics Ltd v Clare (1976)) Because a crpratin des nt have a physical existence, it can nly act r frm an intentin thrugh its directrs r emplyees There are 3 ways which crprate criminal liability can be established:- 1. The Agency Mdel - by hlding a crpratin vicariusly liable fr the cnduct f its emplyees where thse emplyees were acting within the scpe f their emplyment 2. The Identificatin Mdel - by hlding a crpratin directly liable fr the acts f certain persns, such as the crpratin's Bard f Directrs, its managing directr r persn t whm the functins f the bard have been delegated, wh are cnsidered t be the embdiment f the cmpany 3. The Crprate Culture Mdel - by hlding the crpratin directly liable fr ffences authrised r permitted thrugh the prcedures, perating systems r culture f the cmpany Vicarius Liability - TXT179 It is nw well established that a crpratin may be held vicariusly liable fr the acts f its emplyees, prvided they acted within the scpe f their emplyment The status f the emplyee is irrelevant fr this purpse Hwever - a crpratin will nt be vicariusly respnsible fr the cnduct f an independent cntractr except where s prvided by statute: Allen v United Carpet Mills Pty Ltd (1989) VR 323 It is usually in relatin t strict liability ffences that crpratins will be fund vicariusly liable The Prsecutin must prve 3 elements fr vicarius criminal liability t be established:- 1. The relevant legislatin must intend that legal liability be applied vicarusly: Musell Brs Ltd v Lndn & Nrthwestern Railway C (1917) 2

15 2. The emplyee must have cmmitted the relevant act within the curse f emplyment r within the scpe f their authrity a. There is n requirement that the crpratin authrise the emplyee t cmmit the ffence: Australian Stevedring Industry Authrity v Overseas & General Stevedring C Pty Ltd (1959) 1 FLR 298 b. Nr des it appear that there is a requirement that the emplyee act with the intentin f benefitting the crpratin 3. Generally, a cmpany will nt be fund guilty n the basis f vicarius liability fr a criminal ffence having a subjective fault element, but may fr ffences f strict r abslute liability: Presidential Security Services f Australia Pty Ltd v Brilley (2008) Direct Liability - TXT180 & Activity 1.2(3) Crprate criminal liability fr serius ffences such as manslaughter is based n direct liability Rather than hlding the crpratin criminally respnsible fr the acts f its emplyees, direct liability views the emplyees' acts as thse f the crpratin the mere fact the emplyee perfrmed an act will nt be sufficient t establish liability fr a serius ffence it must be shwn that an act r missin was perfrmed by smene with authrity t act as the crpratin this persn must be said t embdy the crpratin the leading authrity in this area is Tesc Supermarkets Ltd v Nattrass (1972) AC 153 the Tesc principle limits the criminal liability f a cmpany t the cnduct and fault f thse wh may be said t embdy the cmpany such as the cmpany's bard f directrs, its managing directr r a persn t whm the functin f the bard has been fully delegated Criticism f the Tesc principle: it makes it difficult t establish crprate criminal liability against large cmpanies because ffences cmmitted by large nes are ften visible nly at the level f middle management whereas this principle requires prf f fault f a tp-level manager eg. R v AC Hatrick Chemicals Pty Ltd (unreprted 1995) - plant engineer & plant manager were acquitted f manslaughter because they were nt the "guiding mind" Despite criticisms f the Tesc principle it has been widely fllwed in Australia (hwever subsequent UK cases have been prepared t mdify the principle) In Meridian the Privy Cuncil held the cmpany liable fr actins f its Chief Investment Officer & Senir Prtfli Manager despite the actins being unknwn t the Bard f Directrs r Managing Directr The Privy Cuncil fund that knwledge f the emplyee's actins culd be attributed t the cmpany, but were careful t pint ut that it wuld be a 'matter f cnstructin' in each case as t whether the particular rule requires knwledge that the act had been dne r state f mind with which it was dne shuld be attributed t the cmpany In DPP (Victria) Reference (N 1 f 1996) it was cnfirmed that Lrd Hffman's apprach in Meridian prvides a framewrk fr analysis f direct liability This invlves deciding whether the crpratin is capable f cmmitting the ffence, then identifying whse acts r missins r state f mind are taken t be the acts r missins r state f mind f the crpratin itself 3

16 The rule f attritin depends n the ffence & facts f the case: DPP (Vic) Ref (N 1 f 1996) Where an emplyee whse cnduct is attributable t a crpratin has a persnal defence such as mental impairment r self-defence, this defence may be available t the crpratin: Wlwrths Ltd v Luff (1988) A Crim R 144 In relatin t ffences f strict liability, the defence f hnest and reasnable mistake f fact may als be available Crprate Culture - TXT182 & Activity 1.2(4) A mdel f crprate liability based n 'crprate culture' was first enacted in Australia by ss f the Criminal Cde (Cth) s12.1 cnfirms that the Cde applies t bdies crprate in the same way as fr individuals & that a bdy crprate may be fund guilty f any ffence, including ne punishable by imprisnment s12.2 states that the physical element f an ffence may be attributed t a crpratin where an emplyee, agent r fficer cmmitted the physical element whist acting within the actual r apparent scpe f their emplyment (similar t vicarius liability) Hwever if the relevant ffence cntains a fault element, s12.3 requires that intentin, knwledge r recklessness must als be attributed t the crpratin It is in relatin t these fault elements that the Cde departs frm the Tesc principle s12.3 states that a fault element will be attributed where a crpratin 'expressly, tacitly r impliedly authrised r permitted the cmmissin f an ffence' s12.3(2) lists 4 situatins whereby such permissin r authrisatin may be established:- a) prving that the bdy crprate's bard f directrs intentinally, knwingly r recklessly carried ut the relevant cnduct, r expressly, tacitly r impliedly authrised r permitted the cmmissin f the ffence; r b) prving that a high managerial agent f the bdy crprate intentinally, knwingly r recklessly engaged in the relevant cnduct, r expressly, tacitly r impliedly authrised r permitted the cmmissin f the ffence; r c) prving that a crprate culture existed within the bdy crprate that directed, encuraged, tlerated r led t nn-cmpliance with the relevant prvisin; r d) prving that the bdy crprate failed t create & maintain a crprate culture that required cmpliance with the relevant prvisin s12.3(6) defines crprate culture as 'an attitude, plicy, rule, curse f cnduct r practice existing within the bdy crprate generally r in the part f the bdy crprate in which the relevant activities take place' s12.4(3) als cntains prvisins dealing with negligent actins by a crpratin s12.4(3) states that negligence may be evidenced by, "inadequate crprate management, cntrl r supervisin f the cnduct f 1 r mre f the crpratin's emplyees, agents r fficers r by the failure t prvide adequate systems fr cnveying relevant infrmatin t relevant persns in the bdy crprate" Bth ACT & NT have adpted similar prvisins 4

17 ELEMENTS OF A CRIME - SG7 & TXT185 & Activity 1.3 Fr a D t be cnvicted f a crime, the Prsecutin needs t prve bth the physical ('external' r actus reus) elements f a crime and the fault ('mental' r mens rea) elements f the crime & that the 2 cncurred in time The Physical Elements f a Crime - SG8 & TXT185 & Activity 1.4 Physical element = External element = actus reus The physical elements f an ffence may refer t:- a specified frm f cnduct such as an act an missin a state f affairs; cnduct which ccurs in specified circumstances; r the results r cnsequences f cnduct A Specified frm f Cnduct - TXT185 & Activity 1.4(2) An Act The main issue here is identifying the relevant act - vluntariness & causatin are relevant here An Omissin An missin t act may give rise t criminal liability in situatins where a duty arises at cmmn law r impsed by statute At cmmn law - a duty t act may arise as a result f a family relatinship btw the parties (R v Russell (1933) VLR 59), r as a result f a persn undertaking t care fr anther wh is unable t care fr him/herself (Taktak (1988) 34 A Crim R 334) In R v Miller (1983), Lrd Diplck als referred t there being "n ratinal grund fr excluding frm cnduct capable f giving rise t criminal liability, cnduct which cnsists f failing t take measures that lie within ne's pwer t cunteract a danger that ne has neself created" Statutry examples include a duty t prvide necessities (s44 Crimes Act 1900 (NSW); s285 Criminal Cde (QLD)) and innt a duty t rescue r prvide help t a persn urgently in need f it & whse life may be endangered if it is nt prvided (s155 Criminal Cde (NT)) A State f Affairs There are certain ffences which criminalise a state f affairs (r state f "being" rather than cnduct) 5

18 Examples include being drunk & disrderly in a public place r ffences relating t vagrancy (summary ffences) and status ffences such as being "knwingly cncerned" in the imprtatin f illicit drugs Cnduct which ccurs in specified circumstances - TXT186 & Activity 1.4(1) A specified frm f cnduct may nt be a crime unless it is perfrmed in certain specific circumstances Eg. the crime f rape r sexual assault is defined by intentinal sexual penetratin (cnduct) which ccurs withut the ther persn's cnsent (the specified circumstance) Results r cnsequences f cnduct - TXT186 & Activity 1.4(1) & PrblemQ1 The physical element f an ffence may smetimes refer t the results/cnsequences f cnduct, rather than the cnduct itself Eg. What is prhibited in the crime f murder is the death f the victim rather than the cnduct which caused the death the cnduct which caused the death is irrelevant; prviding the cnduct f the accused results in the death f the victim, the physical element f murder will be established Where the physical element f a crime refers t the results r cnsequences f cnduct, it will be necessary fr the Prsecutin t prve that the cnduct caused the requisite cnsequences (causatin) Vluntariness - SG9 & TXT187 & Activity 1.5 & PrblemQ1 The requisite physical element f a crime must be perfrmed vluntarily, in the sense that it must be willed: s23 Criminal Cde (QLD); Ryan v The Queen (1967) 121 CLR 205 The Prsecutin must prve that Ds cnduct was vluntary A crime cannt be cmmitted unless Ds act was vluntary vluntariness cnstitutes a willed act, thugh its cnsequences need nt be intended vluntariness is presumed in the absence f cntrary evidence & is frequently dispsed f withut mentin in criminal prceedings There are 3 ways which an act may be cnsidered at law t be invluntary:- 1. when the criminal act was incidental that is - withut intentin, recklessness r criminal negligence 2. when the criminal act was caused by a reflex actin an act caused by a reflex actin is an act funded n an external cause rather than intentin: Ryan v The Queen (1967) per Barwick CJ 3. when the cnduct was perfrmed whilst the accused was in a state f impaired cnsciusness (autmatism) Causatin - SG9 & TXT187 & PrblemQ1 When the physical elements f a crime requires the ccurrence f specified results r cnsequences, the prsecutin must prve that the cnduct caused thse results r cnsequences Causatin is f particular relevance t the crimes f murder/manslaughter where it must be prved that the accused's cnduct caused the death f the victim Causatin is a questin f fact fr the jury: R v Pagett (1983) 6

19 The curts have develped a number f tests t assess whether the accused's cnduct caused the requisite result r cnsequence:- The Reasnable Freseeability Test The Substantial Cause Test (mdern cases favur this but they still interchange) The Natural Cnsequence Test The "But fr" Test - nw rejected by the HC in Arultthilakan v The Queen (2003) because it brught with it the danger f indicating that a negligible causal relatinship will suffice In sme 'unusual cases' - intentin may be relevant t causatin (see Brennan & McHugh JJ judgements in Ryall v The Queen (1991)) - eg. spider phbia & intending t scare with spider The Reasnable Freseeability Test - TXT190 This invlves examining whether the cnsequences f the accused's cnduct were reasnably freseeable Objective test - cnsidering what a reasnable persn wuld have freseen rather than an inquiry int the accused's appreciatin f the cnsequences f their cnduct (R v Hallett (1969) SASR 141) Ryall v The Queen (1991) - HC majrity stated that juries shuld nt be directed in terms f freseeability because f the risks f cnfusin in freseeability as an bjective standard & as a subjective state f mind hwever the minrity favured the use f this test which suggests that it may nt have been cmpletely laid t rest... The Substantial Cause Test - TXT190 AKA "significant cause" test AKA "Operating & substantial cause test" AKA "substantial cntributin test" 'Whether an act r series f acts (r missins/series f missins) cnsciusly perfrmed by the accused is r are s cnnected with the event that it r they must be regarded as having a sufficiently causal effect which subsisted up t the happening f the event, withut being spent r withut being in the eyes f the law sufficiently interrupted by sme ther act r event' (R v Hallett at 149) The SC held in Hallett that the accused's riginal blw which rendered the victim uncnscius started the events which led t the victim drwning. It culd nt be said that the tide cming in brke the chain f causatin. The accused's cnduct need nt be the sle cause f death in relatin t the rimes f murder & manslaughter (R v Pagett (1983)) Death may result frm several causes, but all that must be prved is that the accused cnduct was a substantial cause. The Natural Cnsequence Test - TXT191 AKA "cmmn sense" test This may apply t situatins where the victim has cntributed t his/her wn death by seeking t escape r attempting t avid being attacked by the accused The main case that sets ut this test is Ryall v The Queen (1991):- 'Where the cnduct f the accused induces in the victim a well-funded apprehensin f physical harm such as t make it a natural cnsequence (r reasnable) that the victim wuld seek t escape & the victim is injured in the curse f escaping, the injury is caused by the accused's cnduct [at 389] 7

20 Nvus actus interveniens - TXT191 & PrblemQ1 If a subsequent event renders the prhibited cnsequence n lnger a reasnably freseeable, substantial cause r natural cnsequence f the accused's cnduct, the curts have held that this amunts t nvus actus interveniens which breaks the chain f causatin Sme curts have stressed that the intervening act must be f an extrardinary/unexpected nature R v Hallett - SC SA held that the incming tide was nt unexpected r an event which wuld break the chain f causatin as ppsed t (eg) an extrardinary tidal wave There are 2 kinds f nvus actus interveniens that have been cnsidered by the curts:- The acts f the victim The acts f a third party The Acts f the Victim - TXT192 & PrblemQ1 Case law deals with 3 different types f acts cmmitted by the victim that may break the chain f causatin:- (a) Seeking t escape vilence Where a victim is killed seeking t escape the vilence f the accused, the victim's actins may break the chain f causatin The victim's act f self-preservatin must be prprtinate t that cnduct Ryall v The Queen (1991) - HC unanimusly held that the victim's actins f falling/jumping frm the bathrm windw f her 6th flr flat t avid an attack was nt regarded as nvus actus interveniens Even thugh they were divided with which test f causatin t use, the majrity applied the natural cnsequence test t the victim's reactin in preference t reasnably freseeability test Brennan J stated the victim's act f self preservatin must be reasnable, having regard t the nature f the accused's cnduct and the fear that it was likely t have induced [at 398] Deane & Dawsn JJ - the victim's attempt at self-preservatin des nt break the causal link if (a) the victim's fear/apprehensin is well-funded r reasnable in all the circumstances, and (b) the victim's act f escape r self-preservatin was the natural cnsequence f the accused's behaviur [at ] Masn CJ & McHugh J cncluded that the victim's act f self-preservatin need nt be reasnable & Masn CJ held there was n requirement that the steps taken t escape be reasnable [at 390] (b) Failing t take medical advice There have been sme cases where injuries sustained by a victim might nt have resulted in death except fr the fact they failed t take medical advice In these cases, curts have been reluctant t find that the victim's actins break the chain f causatin R v Bingapre (1975) 11 SASR SC SA held there had been n nvus actus interveniens; there had nly been the lss f pssible pprtunity f aviding death (hit in head & left hsp t early) R v Hlland (1841) - accused assaulted victim & injured their finger; rejected the surgen's advice t have finger amputated & died f lckjaw; Maule J rejected the accused's submissin that the cause f death was nt the wund inflicted, but the victim's refusal t have the finger amputated 8

21 R v Blaue (1975) - victim was stabbed & refused bld transfusin because they were Jehvah's witness which prbably wuld have saved her life; English CA held the victim's refusal did nt break the chain f causatin (c) Suicide There have been sme rare cases where the victim has cmmitted suicide after being assaulted 2 American cases shw a reluctance by the curts t see the victim's acts as breaking the chain f causatin (Peple v Lewis; Stephensn v State) The Acts f a Third Party - TXT194 & PrblemQ1 Medical Treatment The act f a third party may (in rare circumstances) break the chain f causatin The main circumstances which this will arise is where a victim receives medical treatment which may be an independent cause f death R v Pagett (1983) - refers t acts f a 3rd party in a wider sense & stands fr the principle that the act f a 3rd party will nly be cnsidered nvus actus interveniens when it is a vluntary act, in the sense that it is "free, deliberate & infrmed" [at 289] The accused's ex-girlfriend was sht by a plice fficer as they returned fire upn him shting at armed plice while using his ex-girlfriend as a shield The accused was cnvicted f manslaughter English CA rejected his argument that the victim's death was caused by her being sht by the fficer & was an act f a 3rd party which was a nvus actus interveniens The curt held that, in determining whether r nt a hmicide may be attributed t thse cases where the immediate cause f death was the act f anther, the rdinary principles f causatin apply The curt cncluded the plice fficer's actins were nt "free & deliberate" - the shting was an act perfrmed fr the purpse f self-preservatin & in perfrmance f a legal duty "[a] reasnable act f self-preservatin, being f curse itself an act caused by the accused's wn act, des nt perate as nvus actus interveniens" [at 289] It shuld be left t the jury t determine whether the causal cnnectin between the accused's cnduct and the death has been established The case law in this area is mainly cncerned with whether r nt medical treatment given by a 3rd party may break the chain f causatin It appears that it will nly be in the mst exceptinal circumstances that medical treatment (if given negligently) will be held t be a nvus actus interveniens R v Jrdan (1956) - ne f the rare cases where negligent medical treatment has been fund t break the chain f causatin the victim died after being stitched up in hspital frm being stabbed & it was fund the death was caused by the administratin f an antibitic & IV f t much liquid which gave them brnch-pneumnia (it was nt the stab wund) The UK curt thught that treatment that was palpably wrng culd be regarded as nvus actus interveniens which culd break the chain f causatin subsequent cases have stated that this case shuld be regarded as a case which was decided n its wn special facts 9

22 R v Evans and Gardiner (N 2) (1976) - Vic CA referred t R v Smith (1959) UK case with apprval where a victim was stabbed in the stmach by 2 fellw prisners - TXT195-6 bwel peratin was successful but she died 11mths later Immediate cause was a fibrus ring that caused a stricture in the small bwel at the site f the resectin peratin & medical evidence shwed the stricture was nt an uncmmn ccurrence after such an peratin There was als evidence that her cnditin shuld have been diagnsed & an p perfrmed t rectify it despite all this, the Full Curt f SCV upheld the 2 accused's cnvictins fr manslaughter "the failure f the medical practitiners t diagnse crrectly the victim's cnditin, hwever inept r unskilful, was nt the cause f death... the real Q fr the jury was whether the blckage was due t the stabbing" [at 534] R v Cheshire (1991) UK - English CA reiterated that nly in the mst extrardinary circumstances will medical treatment (hwever negligent) break the chain f causatin (sht & died f cardi failure) "even thugh negligence in the treatment f the victim was the immediate cause f his death, the jury shuld nt regard it as excluding the respnsibility f the accused unless the negligent treatment was s independent f his acts, and in itself s ptent in causing death that they regard the cntributin made by his acts as insignificant" [at 852] - TXT196 The cases since Jrdan shw a marked reluctance n the part f the curts t break the chain f causatin, even where medical negligence is an immediate cause f death Only in cases invlving grss negligence will medical treatment be regarded as nvus actus interveniens Withdrawing life-supprt R v Malcherek; R v Steele (1981) - English CA withdrew the issue f causatin frm the jury n the basis that the inflictin f the riginal injuries was the substantial cause f death; CA held that where cmpetent medical treatment invlved placing a victim n a life-supprt system, the decisin t discnnect that system wuld nt break the chain f causatin btw the inflictin f the riginal injury & the victim's death [at 429] The Fault Elements f a Crime - SG12 & TXT197 Traditinally, the fault elements have been divided int 'subjective' and (ccasinally) 'bjective' elements Fault element = Mental element = mens rea Subjective -V- Objective fault - TXT197 & Activity 1.7(1)-(2) Subjective cmpnents f fault are intercnnected 10

23 Wilsn, Deane & Dawsn JJ referred t intentin as being based n knwledge: Girgianni v The Queen (1985) 156 CLR 473 [at 505] Where the fault element is subjective, the Prsecutin must prve beynd reasnable dubt that (at the time f the cmmissin f the crime) the accused pssessed the requisite state f mind (this may ften be difficult t prve) In absence f an admissin r cnfessin, it is impssible t knw beynd reasnable dubt what the accused was thinking at the time f the cmmissin f the crime The law in this area is based upn a 'deeply entrenched' apprach t mental state attributin knwn as "Flk Psychlgy" This 'invlves interpreting smene as a perceiver with beliefs and desires which lead him/her t act in the wrld' What the trier f fact is being asked t d in assessing a persn's intentin, knwledge r recklessness, is t see whether ne f these mental states can be attributed t the persn, taking int accunt his/her behaviur & experiences By Leading legal philspher, Peter Cane - mdel attracts legal academic criticism The difficulty f prving subjective intentin r knwledge f the accused was recgnised by Kirby J in Peters v The Queen (1998): "...intentin must be rdinarily inferred frm all the evidence admitted at the trial...but the search is nt fr an intentin which the law bjectively imputes t the accused. It is a search, by the prcess f inference frm the evidence, t discver the intentin which, subjectively, the accused actually had" [at 551] Despite the emphasis n 'subjective' intentin, it has been accepted that in the prcess f attributing a mental state t an accused, jurrs will ften resrt t a cnsideratin f what a reasnable persn might have intended r knwn r believed in the circumstances This apprach has been accepted by the curts as unavidable: Pemble v The Queen The idea f this type f fault element being purely "subjective" is questinable What the ntin f subjectivity in this cntext really means is the trier r fact must make an assessment f fault in relatin t the particular accused, taking int accunt their behaviur, experiences and characteristics such as age, scial & cultural backgrund The difficulty in prving intentin, knwledge r recklessness beynd reasnable dubt is ne factr in the rise f ffences where the fault element is expressed as an 'bjective ne' Sme crimes incrprate an element f negligence as the basis upn which criminal respnsibility is assigned Subjective fault is a fault that requires a "bad mind" in the accused Objective fault requires n purpseful r cnscius bad mind in the accused; it sets a standard f what a reasnable persn shuld have knwn in the circumstances The curts have shwn a preference fr subjective fault elements in relatin t serius crimes Intentin - TXT199 The fault element f mst serius crimes is generally expressed as an intentin t bring abut the requisite physical element f the ffence 11

24 Intentin refers t the accused deciding t perfrm the cnduct In the sense f intentinal cnduct, it is clsely cnnected with the requirement that cnduct be vluntary in that it must be willed r cnsciusly perfrmed In relatin t the physical element regarding the results r cnsequences f cnduct, the prsecutin must prve that the accused's purpse was t bring abut the results r cnsequences f the cnduct: Bughey v The Queen (1986) 161 CLR 10 Where an accused has this purpse, he/she acts intentinally even where (t that persns' knwledge) the chance f them causing the result are small: Lenard v Mrris (1975) 10 SASR 528 If the accused des nt have this purpse, then he/she des nt act intentinally, even thugh t their knwledge the chances f causing the result are high (recklessness may be made ut here thugh) The difference in intentin as it relates t cnduct & as it relates t cnsequences is referred t as the distinctin between 'basic' and 'specific' intent Brennan J drew a number f distinctins in He Kaw Teh v The Queen in the use f the term 'intentin' in criminal ffences:- 'General intent & specific intent are... distinct mental states. General r basic intent relates t the ding f the act invlved in the ffence; special r specific intent relates t the results caused by the act dne. In statutry ffences, general/basic intent is an intent t d an act f the character prescribed by the statute creating the ffence; special/specific intent is an intent t cause the results t which the intent is expressed t relate" [at ] Where a persn intends t cmmit the requisite physical element, they may still be cnvicted even where the victim is nt the intended victim (R v Latimer (1886) 17 QBD 359) r where the crime takes effect in a manner unfreseen r unintended (R v Evans (N 2) (1976) VR 523) Mtive & Intentin Intentin is nt the same as mtive, which is generally referred t as an emtin prmpting an act "...It is the emtin which gives rise t the intentin and it is the latter & nt the frmer which cnverts an actus reus int a criminal act" (Hyam v DPP (1975) at 73) Mtive may be relevant in attributing intentin t an accused It may frm part f the circumstantial evidence that may establish that the accused did have the requisite state f mind Mtive becmes legally relevant in sme areas such as the meaning f dishnesty fr prperty ffences & terrrism ffences (& highly relevant at sentencing) Direct & Oblique Intentin - TXT200 Direct Intentin: - Brennan J stated in He Kaw Teh v The Queen that intentin "cnntes a decisin t bring abut a situatin s far as it is pssible t d s - t bring abut an act f a particular kind r a particular result" (purpse) 12

25 Oblique Intentin:- a brader frm f intentin where it relates t the situatin where the utcme f the accused's cnduct was nt directly linked t his/her intentin, but emerges bliquely as a cnsequence f that cnduct Hyam v DPP (1975) AC 55 - The Huse f Lrds defined intentin bradly in this case t include nt nly direct intentin but als fresight f a prbable cnsequence Lrd Hailsham tk the view that t intentinally & deliberately cmmit an act which expses a victim t the risk f pssible grievus bdily harm r death is 'mrally indistinguishable' frm intending t kill anther persn [at 78] If the accused fresaw that death was a prbable cnsequence f her actins, then she had the relevant intent t kill (petrl in neighburs letterbx kills 2 daughters) The effect f Hyam was t intrduce int the criminal law a brad definitin f 'intentin' which verlaps with recklessness Lrd Bridge in R v Mlney (1985) AC 905 stated that the meaning f intentin is best left t the jury t decide n whether the accused acted with the necessary intent [at 926] As a result f this case, the scpe fr giving a directin n blique intentin has been restricted quite substantially In practice, fact situatins giving rise t an analysis f blique intentin in Australia can usually fall within the cncept f recklessness (at least fr the purpse f the law f hmicide) Transferred Intentin - TXT202 This dctrine applies where an accused intends a particular crime & cmmits the requisite physical element f that crime, but with a different victim t the ne they had in mind they are still held criminally respnsible fr their cnduct it is usually cnsidered in the cntext f murder & ther crimes such as malicius wunding antenatal injuries cases in UK & HK pg202-3 it is unclear whether Australian curts will fllw the apprach f the Huse f Lrds in hlding that transferred intentin cannt be used t hld an accused guilty f the death f a child wh has suffered antenatal injuries Knwledge - TXT203 An accused may be criminally respnsible if he/she acts with the knwledge that a particular circumstance exists, r with the awareness that a particular cnsequence will result frm the perfrmance f the cnduct the requirement fr the existence f knwledge r awareness relates t the physical element f the crime as cnduct that ccurs in specified circumstances, and the physical element as the results r cnsequence f cnduct An accused may claim a mistaken belief in rder t shw that he/she did nt pssess the requisite knwledge (eg. Rape & believing it was cnsensual) In certain jurisdictins, mistaken belief has the effect f negating the requirement that the accused be aware that the victim was nt cnsenting Knwledge & the Rle f Wilful Blindness - TXT204 13

26 In sme cases, an accused has been deemed t pssess the requisite knwledge fr an ffence where he/she deliberately refrained frm making inquiries r wilfully shut his/her eyes in fear they may learn the truth (smetimes referred t as 'wilful blindness') Curts in Australia have been reluctant t equate wilful blindness with actual knwledge Kural v The Queen (1987) - HC had t determine the meaning f 'intentin t imprt a prhibited imprt' & held that this intentin did nt require actual knwledge f what was being imprted - a belief falling shrt f actual knwledge culd sustain an inference f intentin [at 505] Majrity pinted ut that wilful blindness was nt an alternative fault element fr this ffence, it was simply evidence that a jury culd use t infer intentin Pereira v DPP (1982) - HC cnsidered the ffence f pssessin f a prhibited imprt in cntraventin f the Custms Act 1901 (Cth) delivered cricket balls & jewellery case with cannabis resin in it but had nt pened the package befre she was raided Trial Judge directed the jury as t the imprtance f prving knwledge & that wilful blindness is the equivalent f knwledge The jury was directed that the accused culd be cnsidered wilfully blind if her suspicins abut receiving a parcel frm /s were arused & she refrained frm making any inquiries fr fear that she wuld learn the truth HC referred t previus decisin in Kural & held that in cntrast t the ffence f imprting a prhibited imprt, the ffence f the pssessin f a prhibited imprt DID require actual knwledge (nt imputed knwledge) A state f mind less than actual knwledge was nt sufficient Hwever the accused's suspicin cupled with a failure t inquire may be evidence frm which a jury can infer knwledge [at 220] The majrity decisins in Kural and Pereira relegate wilful blindness t an evidential rle which seems t ech the restrictin f the cncept f blique intentin Recklessness - TXT205 & Activity 1.7(3) It describes the state f mind f the persn wh, while perfrming an act, is aware f the risk that a particular cnsequence is likely t result frm that act Awareness f a risk is the essence f recklessness Hwever this fault element is als frmulated as ne f knwledge, fresight r realisatin that a cnsequence is likely t result The usual shrthand fr recklessness is having fresight f the likelihd f a cnsequence r circumstance ccurring An accused is said t be reckless when they engage in cnduct (act r missin) in the knwledge that a cnsequence is a prbable r pssible result f their cnduct: R v Crabbe Recklessness in relatin t murder in Australia is defined as fresight f a prbable cnsequence, and in relatin t ther ffences, as fresight f a pssible cnsequence: R v Crabbe (1985) An accused may als be said t be reckless where he/she is aware f the pssible existence f certain circumstances but acts regardless f their existence (eg. Sexual penetratin with pssibility f n cnsent) 14

27 It is treated n the same scale as intentin because f the ntin f blamewrthiness What is imprtant is that recklessness relates t a subjective attributin f awareness f risks that are substantial and the 'real and nt remte' chance that the cnsequences will ccur: Bughey v The Queen (1986) [at 21] per Masn, Wilsn & Deane JJ Recklessness & Indifference - TXT206 s18(1)(a) Crimes Act 1900 (NSW): Murder shall be taken t have been cmmitted where the act f the accused, r thing by him/her mitted t be dne, causing the death charged, was dne r mitted with reckless indifference t human life In NSW - it requires fresight f the prbability f death; fresight f prbability f grievus bdily harm is nt enugh (Ryall v The Queen at 396 per Masn CJ) Under cmmn law = it was nt necessary that an accused's knwledge f the prbable cnsequences f their actins be accmpanied by indifference (R v Crabbe) Eg. DR carrying ut high risk surgery n patient with cnsent... 2 defences culd be raised:- 1 - nus is n accused t raise sme evidence that the cnduct was justified - defence f necessity 2 - adpt a narrwer definitin f recklessness by requiring the accused's risk taking t be unjustifiable, with the burden f prving this quality f the cnduct falling n the prsecutin In deciding whether an act is unjustifiable, its scial purpse & scial utility is impt Recklessness (in this sense) culd be defined as substantial & unjustifiable risk taking Eg. DRs regularly fresee the risk f harm ccurring, but as the risk is 1 that is scially justifiable, DRs are nt cnsidered t be reckless This ntin was adpted by the Criminal Cde (Cth) - s5.4(1) & (2) - TXT207 This cde definitin f recklessness has been applied in ACT, NT & SA Recklessness & Wilful Blindness - TXT207 The HCA in Crabbe made it clear that the test f recklessness fr murder at cmmn law is the knwledge that death r grievus bdily harm will prbably result frm ne's actins Fr ffences ther than murder, the curts have nt applied the high level f recklessness based n fresight f prbable cnsequence R v Cleman - NSW CCA held that fr all statutry ffences ther than murder, recklessness is defined as the fresight f pssibility nt prbability [at 476] As a result f these cases, it is impt that the trial judge direct the jury as t the apprp meaning f recklessness La Fntaine v The Queen - Gibbs J made 2 suggestins regarding recklessness:- In murder trials, a directin cncerning the issue f recklessness shuld 'nly be given where the facts f the case make it a practical issue' He suggested that the term 'reckless' shuld nt be used in the trial judge's directin t the jury as it is liable t cnfuse 15